4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

The Family Code now requires much more attention be given to mental illnesses, especially those suffered by military veterans. Family Code §§ 211.5; 3040 (d). Thus, it is an appropriate time to become familiar with post-traumatic stress disorder and how it may impact decisions relating to child custody.

Scholar/author/attorney Evan R. Seamone's article on child custody cases involving combat veterans with post-traumatic stress disorder provides needed guidance for California judges, lawyers and child custody evaluators. Seamone suggests that rather than applying a one-size-fits-all approach to mental illness, a different methodology should be applied when the invisible wounds of combat are factors in child custody cases.

Numerous considerations come into play when invisible wounds are involved. The manner in which PTSD affects the military person and the family must be considered. Gender differences need to be taken into account. Secondary trauma to children is of utmost importance. Biases about military service have to be recognized. The uniqueness of military families should be considered. Redistributed family functions while the service member was away may have shifted family life. Misuse of alcohol may make a difference. Violence resulting from a combat injury may have arrived in the household.

How PTSD affects the military person and the family

PTSD is caused by an overwhelming life-threatening event that deprives the brain and body from processing a normal response. In other words, it short-circuits the coping and grief processes. The event festers and recurs at unexpected places and times. The mental scars from the initial trauma are not visible to the naked eye like a flesh wound.

A psychiatric journal described one veteran's experience with PTSD: ". . . Last night, I went to bed, was having a good sleep for a change. Then in the early morning a storm front passed through and there was a bolt of crackling thunder. I awoke instantly, frozen in fear. I am right back in Vietnam, in the middle of the monsoon season at my guard post. I am sure I'll get hit in the next volley and convinced I will die. My hands are freezing, yet sweat pours from my entire body. I feel each hair on the back of my neck standing on end. I can't catch my breath and my heart is pounding. I smell a damp sulphur smell. Suddenly I see what's left of my buddy Troy, his head on a bamboo platter, sent back to our camp by the Viet Cong. Propaganda messages are stuffed between his clenched teeth. The next bolt of lightning and clap of thunder makes me jump so much that I fall to the floor...."

The condition stays with different people in different ways and has the potential to adversely affect family relationships and parenting, whether from unhealthy suppression of emotions and intimacy, verbal outbursts, physical aggressiveness, or loss of sexual desire. PTSD can compound already existing family problems and strains.

PTSD is not rare. A RAND Corporation study estimated that approximately 300,000 veterans of combat operations in Iraq and Afghanistan returned with PTSD. The study also reported that a majority of them were married with children.

Gender differences with PTSD

Research reveals that women are at least twice as likely as men to sustain PTSD when exposed to overwhelming events. Complicating women's increased suffering from PTSD is the additional risk of sexual harassment and sexual assault while serving. In a 2009 statement to the House of Representatives, Representative Jane Harman stated about her conversation with doctors at the West Los Angeles VA facility: "My jaw dropped when the doctors told me that 41 percent of the female veterans seen there say they were victims of sexual assault while serving in the military; 29 percent say they were raped during their military service. They spoke of their continued terror, feelings of helplessness and the downward spirals many of their lives have taken since."

Seamone says in his article that while women with combat-derived PTSD experience hyperarousal, intense flashbacks, nightmares, and other symptoms just like similarly diagnosed men, they also tend to be overly protective of their children or unable to bond with their children as they did prior to their deployment. In Iraq and Afghanistan, it was often the female soldiers who were charged with relating to civilian women and children, and traumatic flashbacks of children being killed, orphaned, or homeless haunts the minds of some female veterans.

If the parent with PTSD as a result of military service is eligible for VA benefits, the court may want to consider a referral since each VA facility has specialists who provide treatment for veterans with PTSD. And some of the treatment programs are specifically adapted toward treating women.

Secondary trauma to children

According to Seamone, the primary cause of secondary trauma transmission is the child's mistaken belief that he or she is responsible for causing the parent's reactions, rather than the illness of the parent. He says that children are quite capable of dealing with a parent's trauma so long as they have a functional framework for understanding the cause. But he cautions that the potential that a child might be present during a parent's stress response should not be the determinative reason to limit or prevent custody or visitation. Instead, the child should be educated regarding the parent's recovery process and trained in the case of an emergency. Where the parent and child have a good relationship, despite the disorder, the child's prognosis is quite good.

The National Center for PTSD says a good first step in helping children cope with a parent's PTSD is to explain the reasons for the parent's difficulties, being careful not to share too many details of the event with the child.

Children can be taught new family routines that may include asking parents for permission to hug or touch them before approaching as a precaution to prove that they do not pose an enemy threat. The family can shop only in the early morning when the fewest people are at the grocery store. When confronted with realities, children quickly sense that their mommies or daddies are not the "same" person as they used to be. Children adapt to new realities.

Biases about military service

As stated in Family Code § 211.5 (h), Section 1: "Service-linked mental health issues come with their own unique barriers, stigma, and complications." Left unchecked, biases against military families can lead to incorrect conclusions. Unless recognized, courts and evaluators may unwittingly base decisions on biases and not consider seriously enough the child-raising abilities of the military veteran with PTSD.

One possible reason for bias is the Military Family Syndrome, a term first used after the Vietnam War to describe the behavioral problems of children of deployed parents, as well as the effects of deployment on the relationship between the child and the parent remaining at home. The impact of deployment can be particularly hard on children, ranging from the need to take on additional responsibility for younger siblings or household duties to fears for the absent parent's safety. Such stressors can result in less family involvement and reduced emotional warmth and responsiveness. On the other hand, increased responsibility can also result in a greater sense of self-worth and family loyalty. Thus, a close examination of the particular household should be used, rather than stereotypes.

Another source of possible bias is a presumption of parental unfitness out of fear that PTSD is something a child must be protected from because, as Seamone puts it, the parent might "infect" the child with the disorder. But under the uncodified part of Family Code § 211.5 (m), Section 1, indicating legislative intent: "No parent should lose custody of their child due solely to a manageable mental health issue."

A third source of possible bias is a court's consideration of the parent's decision to volunteer for military service as a negative factor. When a military parent is deployed, the non-serving parent gains the advantage of bonding with the child. Some courts have made best interest of the child determinations based on past or the possibility of future deployments because the serving parent was or is temporarily absent from the child's life. Seamone quotes a lawyer who tells clients that child custody and military service are incompatible.

A Missouri case exemplifies this issue. In Cooley v. Cooley (2004) 131 S.W. 3d 901, the mother served in the Air Force and was deployed a few times. After she left the service and the family lived together for several years, the father filed for divorce. Despite evidence of violence against the mother by the father, use of chewing tobacco and marijuana by the father and viewing of pornography by the father, the trial court awarded physical custody to the father. To illustrate how the evidence was in the best interests of the child, the appeals court noted that the lower court stated: "The mother, on the other hand, has left the minor with the father for periods of time when she volunteered for overseas military service."

A California case, E.U. v. J.E. (2012) 212 Cal.App.4th 1377, also shows the challenges faced by military parents who are deployed. In that case, it was the father who served and the mother who was awarded custody of the child. The court ruled that the father should lose the primary custody he had before his deployment to Afghanistan. That decision was made despite Family Code section 3047's mandate for courts to "ensure that parties who serve in the military are not penalized for their service by a delay in appropriate access to their children."

Uniqueness of military families

Military families appear to be exceptional in their ability to cope and adapt to the frequent moves and deployments required by the military. Their ability to adapt may, sadly, go amiss. Some military families remain quiet and aloof to volatile emotions and outbursts involved in the service member's disorder or deployment-related problems. When family troubles begin, that special quality of military families, their attempts to keep things running smoothly despite stress, may inadvertently result in major problems. Situations that might not get out of hand in nonmilitary families, may reach a boiling point in the military family and result in ultimately splitting up the family with restraining orders or the removal of children.

Seamone warns that courts must consider the child-raising abilities of the parent who is a military veteran with PTSD in the context of the family with which he or she is associated. The alternative, he says, is like "talking about a fish without acknowledging that it lives in water."

Redistributed family functions

When a service member has PTSD, its effects can reverberate throughout the family. The parent with PTSD may be unable to fully engage with the children, which affects the children's ability to cope. The uninjured parent may not be able to engage as fully either, since that parent has to take on some of the responsibilities of the injured parent. Relationships between parents and children, or between spouses, may become further strained as their roles change.

And parents returning from deployment sometimes find that family structures have shifted. The military parent can feel ignored and left out, and some kind of family renegotiation is in order. Seamone describes this phenomenon as Avoidant-Detached Adaption or ADA. He points out how the military parent sometimes prefers to return to duty, viewing that alternative as simpler and less stressful than family life. Signs and symptoms of ADA may appear indistinguishable from PTSD. Experts must be very careful in the evaluation.

Alcohol and PTSD

Misuse of alcohol by persons suffering with PTSD often changes the dynamics. A 2014 psychiatric journal concluded there is a clear association between PTSD and alcohol misuse. VA publications also state that using too much alcohol makes it harder to cope with stress and trauma memories. Erhan Bedestani's recent law journal article explains that PTSD and alcohol misuse was associated with a marked increase in violence and aggression among veterans.

Violence resulting from a combat injury

In her article "9 myths about PTSD," Megan Thielking said the majority of people with PTSD aren't dangerous. But she points out that risk factors such as alcohol abuse and drug misuse play into the relationship between PTSD and violence.

It is a reality that sometimes persons with combat-caused PTSD come home to act out violently. In fact, the Council on Criminal Justice reports that veterans with PTSD have been found to perpetuate intimate partner violence at rates two to three times the national average.

On the other hand, the uncodified part of Family Code § 211.5 (d-f), Section 1, indicating legislative intent, states: "Having a mental health disorder, including a service-linked disorder, does not inherently make you more violent.¶ A mental health disorder should not be used as a sole predictor of future violence.¶ Research indicates individuals with a mental illness are more likely to be victims of violence than perpetrators of it."

Also, California has an exceptional approach to gauging whether or not domestic violence is involved in cases. California Rules of Court, rule 5.215 (d)(2)(D), states that family court services must "Conduct a differential domestic violence assessment in domestic violence cases and offer appropriate services as available, such as child custody evaluation, parent education, parent orientation, supervised visitation, child custody mediation, relevant education programs for children, and other services as determined by each superior court."

Conclusion

Courts, lawyers and evaluators dealing with child custody issues are going to have to familiarize themselves with the myriad issues that can crop up now that, as of January 1, 2024, Family Code §§ 211.5 and 3040 are going to require them to take closer looks as issues involving mental health issues such as combat-related PTSD.