• Brendan

Mimetic Desire and High Conflict Custody Litigation

What can a French literary critic/philosopher of science/historian say to us about child custody litigation? Before we explore that answer, let us first consider the subjects, objects and nature of such a legal dispute.

In an active litigation setting, Father and Mother are likely unable to agree upon some or all of the following with respect to the child they share together:

  • where the child will reside primarily;

  • how much time the child will spend with each parent;

  • where the child will go to school and who will be responsible for making that decision;

  • what medical or psychological care the child will receive and who will be responsible for making those decisions;

  • what activities and sports the child will participate in and who is responsible for making those choices;

  • in what religion or faith will the child be reared

In many instances, as you can imagine, the amount of time that a child spends with each parent becomes the greatest area of dispute. Whether one has divorced personally — or is merely acquainted with the divorce process of friends, colleagues or family — the concept of maximizing or minimizing allocation of parenting time is a familiar one. In the absence of both parents resolving the parenting time and other issues identified above, the contested matters will be resolved by a judge.

The judge may elect to appoint a lawyer or a psychologist to serve in one or more roles to assist him or her in gathering relevant information to facilitate making a determination regarding allocation of time and the decisions above. While each state’s law is different in many respects, the ultimate consideration for a jurist in custody matters is the “best interests” of the child involved. Although states vary to the extent certain factors are explicitly codified for consideration, most jurisdictions identify factors that touch upon the psychological, physical, moral, emotional, and intellectual wellbeing of the child.

Because the court is not able to observe personally and gather data in an investigative capacity, many times a lawyer is appointed to meet with the parents, the child and other relevant third parties (such as nannies, teachers, health care providers and extended family). Further, because so many of the relevant considerations revolve around psychological considerations, a forensic custody evaluation by a mental health professional is also often ordered.

In a custody evaluation, an array of psychological tests are frequently given to the parents and/or the child. Multiple interviews and observation sessions are often conducted with each parent, the child, and also with each parent and the child together. Many times, the evaluator will ask for certain documents or communications to contextualize claims that one or other of the parents (or the child) is making. Out of this evaluative process, the appointed professional ultimately renders an expert opinion, often in a report, relative to the questions posed to him or her by the Court.

This report will explore the history of the parties’ relationship with each other and with the child. It will consider the existence or degree of any developmental, emotional, intellectual and/or physical limitations of the parents or child. The report will identify and assess factors such as bonding, attachment, cooperation, temperament, and communication. Having cast a wide and expansive net, the report will explain where parenting deficits may exist and what, if any, relevance those deficits may have to the ultimate questions at issue. The expert will do her or his best to identify the needs of the child and then assess how those needs are best met in light of the two parents involved. There is, to be quite general, a determination of the “fit” between those needs of the child and the parent’s attributes and abilities.

After the report is issued, many times one or both parents is quite unhappy. Parents may then seek to obtain an additional evaluation from a retained expert of his or her own. But after the pre-trial phase of investigation, evaluation and analysis is complete, the custody trial proceeds. In this trial, each parent offers evidence to support the requests being made on child-related matters. Typically, the parents will testify, the mental health professional will testify, and (if permitted by the relevant state law) the guardian ad litem for the child will testify. Rarely do judges receive child testimony directly.

In very basic terms, the broad description of the process set forth above is necessary to begin to understand custody litigation but it is not sufficient. In the real world of litigation, practitioners often see the process play out in ways that Rene Girard would likely recognize.

Girardian theory asserts that mimetic desire is at the root of human experience and life. What does that mean? Essentially, Girard posits that we want things because others want them. Because of this, we often find ourselves in an environment of conflict and rivalry. For Girard, our desires are mediated (though not in the legal sense). In this triangular conception of desire there is a subject, an object, and a mediator or model. At the individual level, when we (a subject) want some thing, place, status, or person (an object) because another wants it, that other individual becomes our mediator. When the subject then imitates the mediator/model’s desires, he or she often falls into rivalry and conflict with the model/mediator. When the mediator occupies a status, position or role beyond the close reach of the subject, there is said to be external mediation, and the subject and the rival cannot truly come into conflict. However, if the mediator inhabits the same social, positional, or status world as the subject as an equal, there is, by contrast, internal mediation — and the subject and mediator interact in a reciprocal fashion that can lead to rivalry and conflict given the shared desire the very same object.

For Girard, the subject’s imitation of a model may appear to fixate on the discrete objects of the other, which is termed appropriative or acquisitive desire. However, that focus is fed, in its essence, by a desire to be or become the model and therefore eliminate or displace the model/mediator. Very often, that metaphysical desire is not conscious to the subject. Moreover, the reinforcing feedback loop of desire being what it is, the model who knows of the imitation by the subject then himself becomes a desirer of sorts.

Out of this dynamic process of rivalry and conflict, violence (broadly defined) can build and ultimately erupt. In order to manage that violent escalation, cultures, communities and people often make the substitutionary sacrifice of what Girard called the “scapegoat” — referring to the ancient ritual and sacrificial practice. Girard differentiated between the scapegoat ritual and the scapegoat effect. In referring to the effect, Girard identified “that strange process through which two or more people are reconciled at the expense of a third party who appears guilty or responsible for whatever ails, disturbs, or frightens the scapegoaters.” The end of the scapegoat ritual, is the figurative or literal sacrifice that resolves the mimetic crisis.

Capturing the complexity and depth of Girard’s thought on these and related topics is beyond the intent and scope of this writing. With a cursory sketch of custody matters and Girardian theory, we may turn now to consider what, in the child custody litigation realm bears out certain traces of Girard’s thought, albeit imperfectly?

Zooming in for a closer look at the internal life of a custody matter will begin to connect the dots. From the start of a custody case, we often see each parent become hyper-conscious of their counterpart parent in ways they previously were not. From newfound attention and concern over: who is picking up and dropping off, doing homework, putting to bed, carpooling to school, driving to practices, making appointments, and cooking meals, etc. — the mother and father reciprocally observe and feed off of one another in a manner reminiscent of the Girardian dance of subject/mediator vis-a-vis mimetic desire.

Typically, before the legal case had even begun, one of the two parents was likely more bonded with the child, more attuned to the child, and this is a fact known to both parents, although perhaps not always identified and spoken of openly. For the subject-parent, to speak in a Girardian fashion, the object is the child and the model/mediator is the parent with what appears to be the closer relationship with the child at the time of the litigation. Of course, as parents we all know that this is often a changing and challenged position of privilege. As the subject-parent adapts to the new circumstances and increases her or his actions and communications relative to the triangle of the object-child and the model/mediator, the mediator becomes aware. The process of the feedback loop plays out yet again, on new territory — the custody fight.

There may suddenly arise: pitched battles over the child going to camp, getting a tutor, receiving a vaccine or playing sports. All of a sudden grandparents can become enemies and agents of the “other side.” Initial potential scapegoats begin to take form in family, lawyers, the court system and its professionals. Escalation easily begins to mark and darken the matter. Sometimes, as hostilities further develop, the child must be exchanged at a neutral location. One parent may refuse to step foot within the other’s home and the other parent may refuse to let their opposite enter the driveway. Parents may each want to attend their own teacher’s conference. Each parent may want to prevent the other from attending soccer games or band practices when it occurs during their “time” with the child.

Other times, parents become very attached to clothing, toys and technology items; and they will refuse to allow those items to enter the home of the other or to permit another’s items into their home. Relatedly, the parent who knows the child has a new iPad at the other home may rush out to also buy a new one or to object to the item being purchased. It would be very easy to go on at great length, chronicling the fraught landscape of what daily life looks like during the custody dispute phase. But the examples above paint enough of a picture.

Finally, however, this iterative mimetic process culminates in the sacrificial ritual of the divorce and custody trial. It is then and there that the now warring sides put an end to hostilities with the formality of adjudication process and obtaining the seeming finality of the trial. The marital status is severed. Mother and Father are stripped of their status as Husband and Wife. The high priest/priestess of the sacrificial ritual, the judge, presides from his/her bench and renders judgment over the parties and the object of their conflict, a human being known and existing as the parties’ Son or Daughter.

Because the mimetic desire, per Girard, goes far beyond the object-child, the desire of elimination and replacement of the model is usually not obtained by the subject-parent at trial. Nor does the model/mediator beat back the aims of the subject-parent entirely. Trials do result in “winners” and “losers” to some extent. But the object-child, who in less Girardian terms would constitute a scapegoat in some instances, remains contested ground for future mimetic contests and the prospect of later scapegoat rituals (i.e., modification and post-judgment litigation).

Having read all of this, one might now observe, the fact that parents sometimes fight over a child is nothing that we all did not know prior. The fact that disputants and litigants may take positions based on wanting what someone else has is also not new. But what I think is relevant out of all of this, for the work of child custody litigators, is two-fold. First, situating what we know of these cases within Girard’s theory is of practical assistance to us as trial lawyers and attorneys if we consider how the “desire” is triangular and the subject-model conflict reciprocal. Rather than a subject merely desiring an object, a subject and the model are in competition for the object BUT ALSO for occupying or eliminating the other’s role. This fits very well with my observations over time as a litigator.

The child is a proxy in this to no less an extent than property and money are in the financial divorce. Most intimate partner litigation is ostensibly about X but is really driven by X AND Y. Cases often take on lives of their own, driven by seemingly subterranean impulses, drives and desires that bear little relation to the materiality or relevance of the ostensible object of dispute. Mimetic theory assists in conceptualizing this phenomenon. While every litigating parent (I am divorced myself) loves and cares for his or her child, understanding the conflict as being far more than just fighting for what is “best” for one’s child is informative for parties and for their counsel.

Second, the essential nature of the scapegoat effect/ritual to Girard’s theory is important in our courtroom setting as well. Although many lament the time/cost/destruction that custody litigation entails, it is also the case that in some instances it is necessary to prevent some worse set of circumstances that we would prefer not to envision. The sacrifice of the trial, then, is the minor “violence” that Girard posited was vital to forestall greater “violence.” The trial process, for everything that is bad and hurtful and wrong about the experience is, for some, the less-bad alternative. Also, for Girard, the scapegoat was always depicted as villain despite being a victim. In litigation, scapegoats are frequently one or both of the attorneys, the judge or the forensic evaluator. All three of these roles are not the creators of the conflict, but they do often become fingered as guilty parties — lawyers for doing what clients want, judges for resolving disputes the parties asked them to resolve, and evaluators for making judgment calls they were asked to make.

Interestingly, parties may be at each other’s throats in litigation and yet they many times coalesce and share a blaming and disdain for the attorneys. We lawyers all know the pattern and profile of the times when litigants “turn” on the lawyers. Even more frequently, the family law system itself is the shared scapegoat and it is offered in sacrifice at trial — resolving for the mimetic combatants their present crisis. Girard, for his part, contended that sacrifice “languished” most in societies with firmly established judicial systems. Although his writing was centered mostly on considerations of vengeance, justice and penal matters, it is important to note why and how family law matters imperfectly fit within the judicial system and how sacrifice remains a potent aspect of resolution. We cede to the State the right to seek justice and vengeance. The People of the State or Commonwealth prosecute.

The intimate dispute, although resolved in the courthouse, is not addressed in terms of justice. Justice is obtained for victims of crimes and torts. The language of divorce and custody does not share a “justice” orientation beyond procedural justice. Substantive “vindication” remains contested in realms beyond the judicial system’s ability to reach. In other words, the legal venue is even more so a pure place of sacrifice in domestic relations matters.

Whatever one ultimately makes of Girard and the ideas expressed above, it is worth considering the dynamics at play in high-conflict custody litigation. While traditionally we look at those complex dynamics through the lends of the individual, a mimetic approach or view can do much to illuminate what we as lawyers or clients say and do; and inform how we lawyers counsel our clients and how we prepare for the ritual of trial.

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