Dynamics, Not Diagnoses

• Date: 01 April 2020
• Published date: 01 April 2020
• DOI: http://doi.org/10.1111/fcre.12492
• Author: Benjamin D. Garber

DYNAMICS, NOT DIAGNOSES

Benjamin D. Garber

I am grateful for the opportunity to contribute to this compilation of insightful ar ticles and, in

particular, for the opportunity to respond to the critical commentary on rhetoric and alienation by

Milchman et al. (2020). I write as much to complement those authors on their incisive perspective,

as to suggest that we may all be asking the wrong questions.

Milchman et al., renew the call for objective, scientifically sound research informing the con-

structs and methods that underlie child custody evaluations (“CCEs”). They correctly disparage rhe-

toric in favor of empiricism. They demand that balance replace advocacy, and they caution

professionals and courts not to be misled by emotionally compelling, but logically flawed and statis-

tically weak arguments. These observations are as important today as they were when they were first

formulated by Aristotle (Cooper, 1993) and codified under Frye (1923), Daubert (1993) and

Mohan (1994).

Milchman et al., are furthermore correct to remind us of one of the central tenets of cognitive

behavioral therapy and cognitive science more generally, that is, that words reify experience

(Boroditsky, 2011). Thus, the labels that we use carry meanings that often communicate more than

what may be intended. This is why many jurisdictions have replaced emotionally-loaded language,

such as “custody”and “visitation,”with more descriptive and objective concepts, such as “decision-

making responsibility”and “parenting time.”Indeed, my other article in this volume (Garber, 2020)

advocates for just such an objective, balanced, and behavior-based approach to resist-refuse

dynamics.

For all of the wisdom in these words, I fear that we are, nonetheless, asking the wrong questions.

Careful attention to our choice of words, to the capitalization of labels, to the empirical credentials

and consensual acceptance of those labels is necessary, but not sufficient. I fear that we are trying

to tape and glue together a workable structure on an essentially flawed foundation. That foundation

is the medical model of individual illness, diagnosis, and intervention that psychology inherited

from its physician parents, disseminated more or less effectively among its allied mental health sib-

lings, and has since brought to bear on our efforts to assess and intervene with high conflict, court-

involved families.

It is the medical model that prompts us to even consider whether “alienation”should be codified

as a “syndrome,”a“disorder,”or a lower-case description of behaviors. It is the medical model that

prompts us to try to impute family law meaning to clinically designed methods. It is the medical

model that prompts so many custody evaluators, attorneys, and courts to incorrectly believe that an

assessment of mother, father, and child is the same as an assessment of the system that they make

together. Thirty-plus years in the trenches have slowly and painfully worn away my training as a clini-

cian and diagnostician. Trial by fire has allowed me to finally understand that family law questions

are about relationships, not individuals. The work that we do is about dynamics, not diagnoses.

There is no Diagnostic and Statistical Manual (“DSM”) of relationships. The DSM and the ICD

are catalogs of individual pathologies. Applying those nosologies to family law matters is a bit like

trying to measure time with a tape measure. This is at the core of my argument against the use of

standardized adult psychometric instruments in the context of CCEs (Garber & Simon, 2018; cf.,

Corresponding: bdgarberphd@familylawconsulting.org

FAMILY COURT REVIEW, Vol. 58 No. 2, April 2020 368–370

© 2020 Association of Family and Conciliation Courts