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Mending the Split: Mandatory Psychological Evaluations for Children of Divorce

Abigail P. Gutleben

First Colonial High School

Legal Studies Academy

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Abstract

This paper explores and identifies the detrimental effects divorce has on children,

including but not limited to: long-term emotional and mental impairment, difficulty in moral and

spiritual development, diagnosable mental illness, heightened risk for physical maladies such as

inheritable illnesses and premature mortality, and an overall decreased state of well-being for

children that experience parental divorce. This paper advocates for mandatory psychological

evaluations to be performed on all children of divorce in family courts in the United States to

screen for mental illness and emotional difficulties that may indicate the need for therapeutic

intervention and counseling. A final recommendation for therapeutic measures, if any, will be

submitted to the parents by the evaluator in collaboration with the child’s guardian ad litem, if

appointed one. This measure will improve conditions for children of divorce going forward and

further destigmatize mental health treatment.

Keywords: divorce, children of divorce, mental health, mental illness

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Mending the Split: Mandatory Psychological Evaluations for Children of Divorce

The emergence of the first no-fault divorce law, enacted in California in 1969 under

Governor Reagan (Thomson Reuters, 2018), spurned the phenomenon of widespread parental

divorce which has left in its wake a plethora of split families, tarnished childhoods, and

unanswered questions. The question that has found itself at the forefront of the minds of parents,

attorneys, and researchers alike: how does divorce affect our children? Even when a divorce

seems of the utmost necessity, as said best by author of the first-ever national study of children

of divorce, Elizabeth Marquardt, “There’s no such thing as a good divorce” (Marquardt, 2005).

While the objective of this paper isn’t to condemn those parents who choose divorce, or to add to

the preexisting stigma divorced parents currently contend with, society would be negligent to

ignore the egregious mental overhaul and often lasting detrimental effects that divorce has on the

emotional wellbeing of our nation’s children. Precedence for court-mandated intervention,

specifically psychological evaluations, to determine the presence of emotional disorders needs

to be established to address a public health problem and to further destigmatize mental health

treatment in the United States.

The “Epidemic” of Divorce

As any journalist, researcher, or politician could tell you, statistics have a way of inflating hot

button issues. Cherry-picking favorable figures and stats can help further ideologies in favor of

overarching subliminal political or religious agendas. Divorce has been demonized and

denounced consistently in the media in past decades with the help of exaggerated divorce

statistics. However, the divorce “epidemic” is not nearly as prevalent as society perceives it to

be, nor is it an impossible avenue for struggling spouses and parents.

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Despite the claims of popular daytime news outlets, divorce rates in the United States aren’t

escalating rapidly; in fact, the way researchers have collected and interpreted data on divorce and

our perception of the supposed divorce “epidemic” is likely misguided (Baer, 2017). According

to University of Maryland sociologist Philip Cohen in his 2018 analysis “The Coming Divorce

Decline,” the national divorce rate has been in decline over the past decade. This may be an

indication of a shift in traditional American values; marriage is no longer seen as a mandatory

milestone for young adults (especially young women) or a significant marker of adulthood

(Cohen, 2018). In fact, according to the U.S. Census Bureau, young people are getting married

older than their parents did. In 2018, approximately a third of young adults aged eighteen to

thirty-four were married compared to two-thirds of young adults in a comparative age

demographic in the 1950s. However, even when debunking the divorce epidemic, many adults or

adolescents today will often find that a significant amount of their peers happen to be children of

divorce. Publishers such as Psychology Today and Children-and-Divorce.com claim that an

estimated 50% of children in the United States will witness the divorce of their parents during

their lifetime. Whether this statistic is accurately reported or drawn from a reputable source is

unknown, as it seems that neither the U.S. Census Bureau nor the CDC has recently reported

nationwide data on divorce with minor children; however, as of 1991, over 50% of children of

divorce were aged six or younger (Glenn, 1991). Children at critical development stages are

vulnerable to personality disorders, attachment disorders, and vivid remembrances of their

parents’ intense conflict when exposed to disruption at such an early age (Wallerstein & Lewis,

2004; Prevoo & Weel, 2014; Fraley & Heffernan, 2013). Divorce rates are on the decline;

however, the current prevalence of divorce in American society and the ages at which children
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are most affected by this phenomenon certainly raises concerns regarding the effects of divorce

and parental separation on the next generation of impressionable youth.

Divorce as a Public Health Issue

There is a growing reservoir of empirical evidence on both the lasting psychological impacts

of the “nitty-gritty” of divorce proceedings in addition to the effects of parental separation. The

early 2000’s saw a significant increase in divorce-related studies when the first generation born

during the emergence of no-fault divorce legislation began to reach adulthood. The fascinating

result is a wealth of anecdotal evidence and tangible scientific appraisal of the divorce issue as a

public health problem (Marquardt, 2005; Meijas, 2015; Leman, 2018; Rappaport, 2013).

Emotional Impairment

The task of researchers to properly gauge the expansive aftermath of no-fault divorce

legislation on the nation’s newly-found wave of children of divorce was an arduous journey, but

was notably earmarked by psychologist and researcher Judith Wallerstein in her longitudinal

study, “The Unexpected Legacy of Divorce.”

Dr. Wallerstein and Dr. Julia Lewis composed a longitudinal study following a group of 131

children whose parents were divorced in the early 1970s, shortly after California Governor

Ronald Reagan signed into law the first no-fault divorce legislation. The ages of the participants

during the first wave of interviews were between 3-18, with the concluding interviews being

conducted when the participants were aged 28-43. Children (and their parents) were evaluated

based on interviews and questionnaires with teachers, parents/guardians, and other such trusted

adults to determine the emotional state immediately following divorce. Further in-depth

interviews conducted into adulthood to determine effects on factors such as intimacy, love, and

commitment, specifically in marriage and parenthood. Factors such as pre-existing emotional

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disorders were controlled to maximize the accuracy of the study. To evaluate the responses

elicited from the children studied, rating scales and categorical items were drawn based on the

children's responses during the ongoing interviews, self-reported data from the 25-year

questionnaires administered, the clinical impression of the interviewer, and the clinical

conference.

Not large, but specific changes were found between the comparison group (who were

selected based on having an intact marriage and having no extenuating factors that may skew

results) and the group with divorced parents that indicated the adverse impact of a divorce on a

child as they develop. Children and parents were confronted with a host of new problems and

circumstances to which they were forced to adapt; overall, children with “broken” families

struggled through adolescence with a higher presence of emotional conflict and bewildering

dilemmas of virtue. Wallerstein & Lewis found that many struggled with the tangible existence

of stable personal and familial relationships, (e.g. If my family couldn’t weather the storm, then

how will my engagement fare, if at all? Does a healthy relationship even exist?) These shocking

assessments were compounded with the inability to find comfort when and where they needed it

most. When the parent is understandably embroiled in the aftermath of the divorce, the child is

left with little to no support, unless it comes from an outside source. Sometimes, the child is left

to “parent” themselves. In addition to the burden of their possibly negligent parent, an

empathetic child may internalize their parents’ emotions, be they of sadness, anger, or joy. This

internalization can be pervasive in their adult romantic relationships. Wallerstein finds that as an

adult, the negative emotional experiences wrought on them in childhood may negatively impact

their decision-making when it comes to choosing their partner. One may feel compelled to leave

a healthy relationship to maintain the norm they experienced in childhood, or stay in an

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unhealthy relationship to prevent history from repeating itself. It was also found that the children

of divorce demonstrated elevated levels of drug and alcohol use, sexual activity, and less

participation in extracurricular activities for a variety of reasons. When enrolled in higher

education, it was found that children of divorce received less support from their parents, be that

emotional support prior to enrollment or during schooling. Students also received less financial

support from their parents. From those who enrolled in college, those from intact families in the

study graduated with their bachelor’s degree 33% more than those with divorced families. Fewer

educational opportunities due to financial trouble were afforded to children of divorce, so many

from the divorced group found themselves unhappy in their field of work upon graduating

college. However, of those who obtained sufficient education to pursue a field of interest, all

were self-supporting, and most were successful and proud of their capabilities in navigating the

social arena of the workplace (Wallerstein & Lewis, n.d., pp. 353-367).

Wallerstein finally asserts that the evidence of her study (in addition to many more)

should inspire a shift in the status quo and progression in the way we abate its lasting impact.

The predominant worldview society has adopted concerning divorce and its implications is

inherently flawed; it would be remiss of lawmakers, researchers, and the media alike to pretend

as if divorce isn’t a complete revolution in the intact family model. Even in spite of a mutual and

amicable divorce, agreeable financial circumstances, and consistent contact between the child

and both parents, divorce is not and will not remain a short-term problem or “a bump in the

road.” As Wallerstein explains,

As every “child of divorce” in our sample told us, no matter how often they see their

parents through the years, the image of them together as a couple is forever lost; and a

father in one home and a mother in another does not represent a marriage. Joint custody
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does not teach children how to create adult intimacy and mutual affection, how to resolve

marital conflicts, or how to deal, as a couple, with a family crisis. As they grew up, these

children lacked this central reassuring image. By strong contrast, the children from intact

families told many stories about their home life and how their parents met and married.

They had spent their growing-up years observing their parents’ interactions and learning

about marriage, and they were well aware of the expectable ups and downs. For the

children of divorce, the parents’ interactions—including the courtship, the marriage, and

the divorce—collapsed into a black hole, as if the parents as a unified couple had

vanished from the world and from the child’s inner life. (Wallerstein & Lewis, n.d., pp.

367-370)

A return to the day-to-day and per-usual isn’t a foreseeable possibility for a family after divorce.

Instead, an appropriate acknowledgement of the new circumstances and potential threat to a

child’s mental and emotional well-being via counseling efforts and therapeutic intervention is of

the utmost importance. Further legislative efforts suggested by Wallerstein include: organized

efforts in public high school and college to alleviate the concern and cynicism that may permeate

young adults’ relationships who are struggling with life after parental divorce; a level playing

field in access to higher education by extending child support to young adults who would have,

under pre-divorce circumstances, received adequate funding to pursue collegiate studies; a

greater degree of consideration at the hands of lawmakers, attorneys, judges, and parents in

determining custody schedules and visitation rights as to minimize undue disruption of the

child’s personal, educational, and extracurricular schedule; responsive therapeutic efforts in

families who’ve experienced an egregious amount of parental conflict or violence that would

contribute to ongoing symptoms of post-traumatic stress disorder. However, regardless of any

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mandated intervention, some university counseling services indicate that adults from divorced

families choose to participate in therapy of their own volition, which is typically of substantial

benefit to them. For those uneducated and unaware of the tangible causes of their parents’

divorce, however, divorce is a prevailing issue in determining their functioning in adult romantic

relationships and vulnerability to emotional disorders (Wallerstein & Lewis, n.d., pp. 367-370).

As well-received as Dr. Wallerstein’s study was, some have criticized the conclusions

drawn from the results. Dr. Sol R. Rappaport claims in his journal, Family Law Quarterly, that

particular factors separate from the actual divorce contribute to the emotional impairment of an

adolescent in question. Dr. Rappaport cites the study performed by Dr. Wallerstein as an apt

example for studies that attribute emotional damage to divorce rather than external variables

such as the psychological problems of the parents, and claims that she had no comparison group

nor did she account for the “psychopathology of the parents, the trauma of the parenting, or the

conflict in the marriage.” Additionally, Rappaport posits that the data in Wallerstein’s study

doesn’t imply any actionable long-term effects that include mental illness, but rather mere

memories and adverse emotional experiences (Rappaport, 2013).

Another early-2000’s study comes from author and self-proclaimed child of divorce,

Elizabeth Marquardt. She’s responsible for publishing the first national study of fully matured

children of divorce, Between Two Worlds: The Inner Lives of Children of Divorce.

In Marquardt’s 2005 publication, she reports the findings of more than 70 extensive

interviews with college graduates from divorced and intact families aged 18-35 with a similar

level of success as she did and had remained in contact with both parents during and after the

divorce and had experienced parental divorce before the age of 14. Questionnaire interviews

were also administered to a random sample of 1,500 adults aged 18-35, with approximately half
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of the those surveyed from divorced families and half from intact families. Questionnaires were

based on the in-depth interviews and were conducted over the telephone in the U.S.

The in-depth examinations and systematic collection of data combined with Marquardt’s

personal experiences support the acknowledgment of divorce’s profound impact on a child’s

adolescent growth, their grapple of moral and spiritual experiences, and to serve as a wake-up

call for attorneys, judges, parents, mental health experts, and anyone else involved in the divorce

process: the denial of our children's well-justified emotions and experiences only serve to

aggravate their pain, loneliness, and isolation. As opposed to Wallerstein’s study, which focused

on developmental problems during childhood and adolescence and emotional difficulties,

Marquardt is one of the first of its kind to engage in the exploration of the moral and spiritual

development of children of divorce. Marquardt finds that children of divorce will, perhaps

unexpectedly, struggle with questions of religious and moral ascribment. A divided marriage has

divided values; an intact family will have little difficulty in imparting cohesive morals and

ethical values onto their children; however, children of divorce will often struggle to forge their

own values in light of the separation; which parent has it right? Are both of my parents wrong?

Marquardt finds that children of divorce are less likely to ascribe to a particular religion, and on

the whole attended religious services regularly with their family less often than those in intact

homes. When and if they did attend such institutions, they were heeded less often than those in

intact families by religious leaders. Marquardt’s publication also serves to debunk claims made

by professionals in the psychiatric community concerning the enhanced resilience of children

and strong, well-rounded outlook that’s typically associated with children of divorce in addition

to the praise of blended families, families with multiple step-children from different marriages

and subsequent divorces (Merriam-Webster, 2018). “Happy talk”, as Marquardt deems it, may
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encourage the suppression of realistic, admissible feelings of admonishment and sadness rather

than the exploration and acceptance of divorce’s legacy in a child’s life. This perspective, in

addition to simplifying the long-term effects of separation on a child’s worldview and emotional

well-being, is an incomplete and inadequate solution to the problems children of divorce face

and a cop-out for researchers, attorneys, judges, psychologists, and even parents. No matter how

successful a child of divorce may seem in adulthood, self-concepts may always be tainted with

the burdens of childhood: trying to bridge the gap between two disparate livelihoods, appealing

to each new family, and practically parenting your own parent can blur your self-identity and

make adolescence a lonely and bewildering experience. (Marquardt, 2005).

Secondary factors. In a study conducted to determine the relationship between family

disruption in childhood and the risk of adult depression, it was found that behaviors associated

with major depressive disorder occurred more frequently in subjects who were at a lower

socioeconomic status and had higher levels of parental conflict and family disruption (Gilman, S.

E., Kawachi, I., Fitzmaurice, G. M., & Buka, S. L., 2003). This is an intriguing example of

emotional disorders being attributed to secondary factors (in addition to the dissolution of the

family unit), such as financial status and parental conflict, rather than sole divorce or separation.

In Dr. Rappaport’s study, five factors were found to be associated with long-term psychological

problems in children of divorce. Parental conflict being the first and foremost, with attention also

paid to the children’s exposure to said conflict and their interpretation of this conflict, is the

greatest point of aggravation. Commonly seen instances of parental conflict and domestic

disputes can include hostile verbal disagreements, aggressive physical confrontations, mental or

emotional abuse by one or both of the parents exerted onto the other, or outspoken disagreements

involving the child, in front of the child (Sutherland, 2014). The second notable factor is the
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preexisting mental health of the parents. According to Dr. Manning and Dr. Gregoire of

Psychiatry, “Parental factors that may impact directly on their offspring include the inherited

genetic makeup of the child, the intrauterine environment and antenatal exposure to anxiety or

depression, and the risk of direct exposure to the parental mental illness itself” (Manning &

Gregoire, 2009). While genetic variability and predisposed risk to mental disorders isn’t to be

blamed on the parents, the ethics of parenthood still apply, regardless of mental health. The third

significant factor is the relationship between the child and a secondary caregiver (e.g.

grandparents, teacher, babysitter), who can significantly improve the child’s well-being by

providing a foundation of emotional support. A role model or external caregiver won’t serve as a

complete substitute for the biological parent however having a consistent and reliable pillar of

encouragement is an essential component of recovery. Fourth is the financial outcome of the

legal proceeding and circumstances. When compared to intact marriages, single motherhood is

found to bring in approximately $21,000 less (Lopoo & DeLeire, 2014). This is money that could

be spent on education, extracurriculars, higher-quality food, and higher education (Rappaport, S.

R., 2013). Rappaport’s findings are an important addition to the depths of research on children of

divorce and the alternative causes of emotional/mental impairment that may belie children of

divorce.

Mental Illness & Physical Health

In addition to emotional impairment, children of divorce suffer a variety of mental and

physical maladies when studied longitudinally. According to professor Paul Amato and Bruce

Keith in a University of Nebraska-Lincoln publication, “Parental Divorce and Adult Well-Being:

A Meta-Analysis,” children who’ve experienced parental divorce have, on the whole, a lessened

physical well-being when compared to the general population (Amato & Keith, 1991). They
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suffer a greater amount of physical injuries, inheritable diseases such as asthma (which is

aggravated by heightened anxiety, also common among children of divorce (Stroschein, 2005)),

and even a 44% increase in mortality risk when parental divorce occurs prior to the age of

twenty-one. This could be due to the decrease of socio-economic status following a divorce that

results in single motherhood, or the disadvantages involved with parental absence. While

emotional impairment has a significant impact on a child’s life and longevity, diagnosable

mental illness is a more pervasive problem. Mental illness is a broader issue because when

developed, it can disrupt your daily functioning, personal relationships, occupational ambitions,

and cause notable distress or disability (Merriam-Webster, 2018). According to a variety of

sources and publications in the past five decades, experiencing parental divorce at an early age

causes an increased risk of major depressive disorder, general anxiety disorder, bipolar disorder,

and post-traumatic stress disorder (Stroschein, 2005; Popenoe, 1996; Afifi, Boman, Fleisher, &

Sareen, 2009).

Legal Analysis

International. In the United Kingdom, child arrangements are typically planned for in a

“family-based arrangement” without the help of the court; if disagreement concerning the child

persists after mediation, a couple could take the case to court (Gov.UK, 2018). These changes

were implemented after popular claims of the family court’s incompetency, especially in

ensuring child contact with the father during divorce (Freely, 2002). An internally-managed

system where domestic disputes are handled by the family as opposed to the indifferent court

system served the U.K. people better. U.K. family law currently makes no mention of post-

divorce court-mandated therapy or mandatory psychological evaluations for children of divorce.

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National. As family law typically varies by state in the United States, there have been

few federal acts of legislation determining the procedures for divorce, if at all. Many of those

that are federally regulated involve non-complex regulations that could apply to any other court

procedure: all divorces occurring in a particular state must be recognized in other states, and law

applicable to the divorce is where the couple chose to file the divorce, rather than where the

couple married (Ross, 2016). The hope of the author is that mandatory psychological evaluations

may be a federal act one day.

State. Various states in the United States have definitive statutes concerning the

mandation of counseling after a divorce proceeding which, assumedly, occurs following a

psychological evaluation. Illinois statute “Illinois Marriage and Dissolution of Marriage Act”

mandates counseling for either the family or child upon the finding of one or more of the

following factors: “1) both parents or all parties agree to the order; 2) the child’s physical health

is endangered or that the child’s emotional development is impaired; 3) abused of allocated

parenting time under Section 607.5 has occurred; 4) one or both parties have have violated the

allocation judgment with regard to conduct affecting or in the presence of the child.” (Illinois

Marriage and Dissolution Act, 2017). West Virginia statute § 49-2-16, “State responsibility for

child care”, mandates counseling for at least a year in instances in which a child has been found

to experience excessive abuse or neglect, as defined by state standards, as a direct result of being

placed in foster care by the state of West Virginia, whether that be temporarily or permanently

(West Virginia Legislature, 2017). In this context, children in distress as a result of foster care

are comparable to children of divorce, even though by definition children of divorce haven’t

been orphaned. According to the National Conference of State Legislature, an approximate 80%

of children in foster care have significant mental health issues (Polihronakis, 2008). Shockingly
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high rates of mental illness in foster children arguably justifies this West Virginia statute,

however, with a 25% rate of mental illness for children, a baseline evaluation to determine the

presence of mental illness or emotional impairment may be justified in divorce cases as well

(Hill, 1993).

Case Law

According to Meghan Heisterman Wills, an associate attorney of K. Page Kistler Law

Firm in Virginia Beach, Virginia, during her experience in the Juvenile and Domestic Relations

District Court of Virginia Beach, the court mandated counseling for children of divorce in

approximately half of the cases she bore witness to. Typically, therapeutic efforts were made

when the parents or guardian ad litem requested it. And as one might expect, these

determinations were made on a case-by-case basis ((M. H. Wills, Esq., personal communication,

November 9, 2018)). However, distinctive case law on the subject is inaccessible to the general

public, as family and domestic court records involving minors are sealed in the interest of

preserving the “identity and innocence” of those under eighteen (Davis, 2018). Secondary

sources of information can be gleaned from particular records that have been selectively

released; however: In the Court of Appeals of North Carolina in 2014, Roberts v. Roberts, an

appeal is filed by John B. Roberts, defendant, in objection to the denial of his motion to restore

the visitation of his child custody rights. In light of disparaging comments made about the

plaintiff, Laura H. Roberts, to the children from the defendant, and violation of his mandatory

counseling, the court denied this motion. It’s mentioned in a consent order that the children have

mandatory counseling with a licensed therapist, Mrs. McInerey, and that both parents are to

refrain from interfering with the counseling. However, it’s asserted that in addition to not

attending counseling, not submitting to random drug tests, making disparaging comments about
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the plaintiff, the defendant also attempted to intimidate Mrs. McInerey and interfere with the

therapy (Court of Appeals of North Carolina, 2014). While this source doesn’t establish

precedence for universal mandatory psychological evaluations for children of divorce, but

merely an instance in which counseling was definitively mandated for the children by the lower

court, it presents to us a realistic example of court-ordered counseling and the benefits of such

counseling, especially in cases of parental substance abuse and negative inter-parental relations.

Solution: Psychological Assessment

Requirements

The concept behind the psychological evaluations is to provide a universal indicator for

all children of divorce through which emotional impairment & mental illness can unveil itself to

the parent or guardian involved with the oversight of the child’s welfare. This proposal is not to

enforce mandatory counseling for all children of divorce. Every child may not need it, every

family doesn’t have the financial means to provide for treatment, and mandating court-approved

therapists for every child may lead to ethical quandaries if the judge appointing the therapist

selects a practitioner with a particular political or social agenda to impress upon the child for

unspecified gains. However, without such a medium, due to a lack of awareness concerning

mental health needs present in children of divorce in 2018, the need for counseling may never

occur to parents unaware of the toll divorce has on their child, nor become imbued with the

motivation and willingness to seek therapy. While adults in America are seeking therapy at

higher rates than ever before, a child hasn’t the means to seek therapy during critical moments in

their development, rendering them more vulnerable to long-lasting emotional impairment and the

development of mental illness (American Psychological Association, 2004). The procedure for

performing an evaluation should be conducted in an objective context that favors neither the
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overzealous need for therapeutic intervention nor the assumption of neglect based on the mere

existence of the parental divorce. However, regardless of the outcome of the evaluation, the

evaluator should maintain respect for the parents’ relationship to the child and any ongoing

custodial arrangements that may affect the informed consent aspect of any post-evaluation

treatment. The cost of the evaluation should be implemented into any court fees and divided

appropriately among both parties, however, payment for any treatment sought following the

recommendation should be arranged between both parties without court involvement.

Societal Implications

Destigmatization

Divorce. The stigma of divorce, aided by its religious condemnation, has only been of

detriment to struggling children of divorce. Single motherhood is subject to significant

disapproval; according to a press release by the Pew Research center, 69% of Americans

disapprove of single motherhood (Pew Research Center, 2004). Divorce shouldn’t be stigmatized

nor encouraged; it’s a life-changing event that should be considered with great caution on a case-

by-case basis, especially when children are involved. It is the hope of the author that parents who

choose divorce will not be denounced and the children whose parents do choose such a path do

not receive scorn from their peers, family, or otherwise.

Mental Health Treatment. Mental health treatment and counseling for anybody who

needs it is absolutely vital to maintaining a positive livelihood and an unencumbered path to

happiness. Although rates of therapy and mental health counseling are rising, there are still those

who remain who condemn treatment for ideological reasons and shun those who ask for help

from a professional (Pew Research Center, 2004). However, the lives of those around us in

addition to our own can benefit from a shoulder to cry on, an ear to listen, or arms to embrace.
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Children who’ve experienced the dissolution of their family and the change of life as they very

know it deserve to have educated, informed parents who strive to keep them happy and healthy

throughout development and for the rest of their lives. Without awareness and advocacy of

mental health and intervention on the part of professionals in our community, this would not be

possible. To mend the seemingly unhealable split in the lives of the nation’s tarnished and

broken families, we must utilize every resource available to us, and that starts with

destigmatizing mental health and looking after our children.

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