5/4/2016
Sexual Behavior Patterns and
Custody Related Concerns
Lori Schwartz, Ph.D., CST
Psychologist, Certified Sex Therapist
Kansas City, MO
Larry V. Swall, JD
Attorney/Mediator/Parenting Coordinator
Liberty, Mo
• Multidisciplinary Family Court Professional Association
• 5,000 + worldwide • Mental Health Professionals, Social Services, Social Sciences, Mediators, Parenting Coordinators, Parent Educators, Custody Evaluators, Judges, and even attorneys
• Get together to learn from each other to help families
• Missouri Chapter
• Learn More at www.afccnet.org
How do issues of sexual behavior present to the family court in custody cases?
• Divorce
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Cheating
Anonymous encounters
Same sex encounters
Encounters within family
Pornography
• Modification
• Multiple partners
• Exposure around children
• Pornograpy
• Never‐Married
• Similarities with both
DSM 5
• Separation of Sexuality and Gender Disorders
• DSM IV: Sexual and Gender Identity Disorders were married
How many reasons are there to have sex?
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Fun
Arousal
Horny
Accepted
Lonely
Procreation
Spite
Revenge
Pity
Make‐up
Money
Drugs
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Validation
Intoxication
Inhibited/Judgment
Attraction
Love/Intimacy
Power
Reward
Barter
Obligation
Fear
Coercion
Curiosity
DSM 5 Changes for Gender
• Gender Identity Disorder • Now in DSM 5
• Gender Dysphoria – Unhappiness rather than an Identity Issue
• Gender Identity Disorder Not Otherwise Specified Now DSM 5
Other Specified Gender Dysphoria 1
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Gender Dysphoria
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Specifiers for Sexual Attraction
In DSM 5 This is Deleted
In DSM 5 Added
Specifier: With a disorder of Sex Development
Specifier: Post‐Transition
Proposed Changes Not Approved
• Use of Tanner Stages for Pedophilia
• Hypersexual Disorder
Further Discussion of Erotica
• With exposure, males and females increase sexual behavior, but don’t add behaviors
• Males and Females are both aroused, but Women have more negative emotional reactions, especially in anxiously attached couples
• Mixed research on Violent Pornography especially in the Lab.
Gender Dysphoria
in Children
• Repeatedly STATES a desire to be the other sex
• Now in DSM 5
• Strong desire to be the other gender or insistence That he or she is the other gender
Issues in Erotica
• Wide Variation Between Definition of Erotica (positive) and Pornography (negative)
• Males and Females respond physiologically
• Erotica does not produce paraphilias
• Sex offenders have been exposed to fewer explicit materials
Requests for Assistance with Custody Matters
• Child Custody/Divorce • Polyamory, BDSM, Lifestyle/Swing
• In 2014, there was a significant drop in requests for help with child custody/divorce issues. That is due to the change in the DSM‐5 criteria, which made it clear that people who are kinky are not mentally ill:
• 2014 – 37 people
• 2013 – * see note (data unavailable) • 2012 – 87 people • 2011 – 115 people
• 2010 – 125 people
• 2009 – 132 people
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National Coalition for Sexual Freedom
• An even bigger change due to the DSM‐5 can be found in the percentage of kinky parents who now retain child custody. More kinky parents who come to NCSF for help are successful in removing kink as an issue in family court and with social service workers and Child Protective Services. Of the 33 cases, 3 are still ongoing, but of those that assigned custody:
• 2014 – 89% (27 out of 30 parents) custody was not removed because of kink.
• 2012 – 53% (41 out of 77 parents) custody was not removed because of kink.
• 2011 – 23% (23 out of 101 parents) custody was not removed because of kink.
• 2010 – 12% (13 out of 109 parents) custody was not removed because of kink.
Paraphilas
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Definition of Mental Health
Continuum of Normalcy
Non Coercive Paraphilias
Coercive Paraphilias
– Explanations
• Classical Conditioning
• Courtship Disorder
Paraphilic Disorders
• Now in DSM 5
• There is a distinction between having a paraphilic interest and having a paraphilic disorder. An interest is necessary but not sufficient for having a disorder and having a paraphilia itself does not justify or require clinical intervention.
• You must have Arousal AND Problematic Behavior to qualify for a diagnosis– not just an interest
Types of Paraphilic Disorders
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Voyeuristic Disorder
Exhibitionistic Disorder
Frotteuristic Disorder
Sexual Masochism Disorder
Sexual Sadism Disorder
Pedophilic Disorder
Fetishistic Disorder
Transvestic Disorder (now for males and females)
Paraphilic Disorders Specifiers
• In a controlled environment
• With Asphyxiophilia (for Masochistic)
• With body parts, nonliving objects (for Fetishistic)
• With fetishism or autogynephilia(for Transvestic)
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Non‐Coercive Paraphilias
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Sexual Masochism
Sexual Sadism
Fetishistic Disorder
Transvestic Disorder (now for Males and Females)
Coercive Paraphilias
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Voyeuristic Disorder
Exhibitionistic Disorder
Frotteuristic Disorder
Pedophilic Disorder
Sexual Behavior in Preschool Children
What do we see?
• Normal: Touches/rubs own genitals when going to sleep, when excited, anxious, or for pleasure
• Of Concern: Continues to touch genitals after being redirected
• Seek Professional Help: Touches or Rubs self to exclusion of normal childhood activities
(Cavanaugh, 2011)
Sexual Behavior in Preadolescent Children
Contributing Factors to Children’s Sexual Behavior
So, what about the children?
• Normal: Interest in touching genitals or breasts or buttocks of same aged children or have other child touch his/hers
• Of Concern: Makes others uncomfortable by requests to touch theirs or have other child touch his/hers
• Seek Professional Help: Coerces unwilling children to touch his/hers and forced oral, anal or vaginal sex
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Change in Perspectives about Sex
Inadequate Supervision
Sexualized Environments
Limited Privacy within the home
Children Participating in Fulfilling Parental
Emotional Needs
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Contributing Factors: Continued
Considerations in Parenting Related to Sexual Behavior Problems
• Substance Abuse and Sexual Behavior with no
Regard to Children’s Presence
• Physical or Emotional Abuse
• Sexual Abuse
1. The Quality of the Caregiver and Caregiver Engagement
2. The Capacity of the Caregiver to Monitor and Supervise Behavior
3. The Warmth and Support of the Caregiver
4. The Presence of Positive or Negative Role Models in the Child’s Environment
5. Types of Discipline and Consequences
Considerations in Parenting: Continued
Considerations in Parenting: Continued
6. Emotional, Physical, Sexual Boundary Violations in the Home
7. Available Opportunities for Inappropriate
Behavior
8. Sexual and/or Violent Stimulation in the Child’s Environment
9. Exposure to Traumatic Situations
10.Cultural Factors are Considered, i.e. religious, cultural
11. Factors of Resilience and Strength can be Developed (Chaffin, et. al., 2008)
Sexual Behavior in Caselaw
• Top Researchers regarding families and the court
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Family Court Review – Quarterly Journal
Get together to learn from each other to help families
Working to make courts a safer place for families
Missouri Chapter
• Learn More at www.afccnet.org
• Most of the cases revolve or center around issues of homosexuality
– Missouri 1982: Homosexual behavior sufficient finding to restrict visitation/custody rights.
• J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo. App.W.D., 1982)
• Citing cases: New York, New Jersey, North Carolina, Michigan, Utah, Indiana, North Dakota and Oklahoma
• Ranging from severely restricted access to restricted exposure to lifestyle
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Softening of the Edges
• In a case brought by mother to further restrict visitation of cross dressing father
– Court upheld denial of mother’s request P.L.W. v. T.R.W., 890 S.W.2d 688 (Mo. App. S.D., 1994)
– “. . . that such practices ever occurred in the presence of the child, that this behavior has affected the child in any way, or that there had been any conduct after the dissolution which could be construed as threatening to the child's physical health or emotional development. “ – “We do not pass judgment on private morality in the absence of some societal interest. That is left to others. Our concern here is the best interest of the child. That is the polestar we are duty bound to follow.”
Prior Reference to Best Interests
• T.C.H. v. K.M.H., 784 S.W.2d 281 (Mo. App. E.D., 1989)
– Rather, the rule appears to be that "[t]here must be a nexus between harm to the child and the parent's homosexuality." S.E.G. v. R.A.G., 735 S.W.2d 164, 166 (Mo.App.E.D.1987).
– In 1989 the “nexus” was clearly more easily assumed based upon the sexual preference and practices of the parent
2003 US Supreme Court
• Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) • Justice Kennedy wrote:
– “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”
Big Changes for Missouri
• J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo., 1998)
– In a strange decision surrounding technical violations with the appeal
– MO Supreme Court, en banc, states under a plain error review: “A homosexual parent is not ipso facto unfit for custody of his or her child, and no reported Missouri case has held otherwise. “
– The Court upheld the underlying decision to award custody to the father, due to the way mother’s homosexuality effected her child.
– Groundbreaking nonetheless. However, elsewhere in MO
• J.P. v. P.W., 772 S.W.2d 786 (Mo. App. S.D., 1989)
– “. . . the state has a substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from being influenced by those who advocate homosexual lifestyles.” Id. At 792.
Then there was Idaho
• McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (Idaho, 2004)
• “Sexual orientation, in and of itself, cannot be the basis for awarding or removing custody; only when the parent's sexual orientation is shown to cause harm to the child, such that the child's best interests are not served, should sexual orientation be a factor in determining custody.” Id. At 117
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Pornography a Factor in Custody
• Miller v. Miller, 184 S.W.3d 174 (Mo. App., 2006)
– Father’s self admitted “addiction” to pornography in pretrial evaluations, including prior attempts at counseling
– His own statements that he sought it out like a drug
– Even viewing child pornography, the stranger the better
• But father testified at trial that he didn’t need counseling
– Evidence of fearfulness of children around father
– Court ordered supervised visitation
– “A trial court shall not order supervised visitation unless it finds that the visitation would endanger the child's physical health or impair his or her emotional development.”
– Here the behavior was directly tied to some perceived harm of children
– Behaviors not well managed.
Sexual Behavior and Custody
• Going to depend on management of sexualized behavior
– Not inherently bad
– Must show nexus between behavior and harm or perceived harm to child
– Either tie negative behaviors to child
– Or challenge alleged ties to negative outcomes to child
Parent’s Presentation of Evidence
• Is there any causal relationship between behavior and alleged harms
• Lay vs. Expert testimony
• Qualitative difference between two approaches
Pornography Not a Factor
• “There is no evidence that the child has been exposed to or has access to Father's pornography, or that father reviewing pornography affected father's conduct, his relationship with his daughter, his daughter's environment, or otherwise jeopardized his daughter . . . “Cooley v. Cooley, 131 S.W.3d 901 (Mo. App., 2004)
• Differences go to management of the behavior
In the Courtroom
• Be specific about behaviors alleged
– What are they
– When have they been exhibited
– Where is the child
• Is there that nexus between the
Alleged bad behavior
And
Harm to a child
Lay vs. Expert Testimony
• Lay testimony – Anecdotal evidence
– Often legally objectionable
• Hearsay
• Perceptual connections not necessarily causal
– Can appear alienating – Appear spiteful
– Can create more of a risk of appearing alienating rather than assisting trier of fact
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Expert Testimony
• Professional Evaluation
– Can be helpful
– Costly
• Not always available to litigants
– Make sure to differentiate between exposing causal connections and
– Simply supporting a preconceived conclusion
Sample Scenario #1
• Mother and Father married 15 years. Two children, 7 & 10. Mother and Father have been involved in a “swinging” lifestyle for their entire married life. Mother had hidden relationship outside the “lifestyle” with one other married member of their group. She became pregnant with his child. Father filed for divorce.
• Children knew that Mother and Father had lots of friends with whom they had parties; however, they were with a babysitter every time there was a “lifestyle” event.
• Father alleges that Mother’s infidelity broke a known rule of their “lifestyle” and was incensed by the pregnancy. He told the children that Mother cheated on him and was having somebody else’s baby. Children have aligned with Father and relationship with Mother is on rocks.
• Father asks court to consider Mother’s behavior in awarding him custody.
Scenario # 2 (cont.)
• Once the parents had divorced, the father remarried a woman whom was open and interested in pursuing behavior patterns around this sexual desire. The mother became aware of this through some mutual acquaintances. The mother was also concerned that the father had engaged in what she perceived to be "addictive" behavior patterns which involved masturbation behavior to erotic images. She knew that he engaged in masturbation during their marriage. Some of these images that he found arousing involved women whom the mother found objectionable given their perceived young adult or "barely legal status." The incident which sparked the referral for the psychological evaluation occurred because the father had taken pictures of his genitals and placed them on his cellular phone. Possible Court Response
• What is appropriate response
– What is being requested
– Why is it being requested
• Restrictions
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Must be unreasonable risk of harm to child
Lessened visits
Supervised visitation
Therapeutic visitation
No visitation
• No Restrictions
• Looking for least restrictive alternative that protects a child or a parent
Sample Scenario #2
• A 35 year old white male was referred in a custody matter for a psychological evaluation. This patient is the father of the single eight‐year‐old daughter. Although the mother from whom this man was divorced has had ongoing concerns about the father's parenting, she had been willing up to the point of referral to manage to co‐parent without much duress. She believed that he often ignored the child’s needs and paid her little attention on visits. However, an incident occurred which led to consultation with her attorney and a referral to this psychologist such that the father was requested to receive a psychological evaluation. The history of the father involves an interest in a swinging lifestyle. The mother was aware of this interest during the time that she was married to the father but she avoided the topic and indicated to the father that she was disinterested in participation in this sexual interest pattern. Scenario #2 (cont.)
• Apparently, without recollection of these images at least as he reported during his psychological evaluation, he offered the phone to his daughter such that she could play games on his “old phone.” Because the images were not password‐protected, it was considered that the daughter easily had access to these images. It is unknown by the mother or the father if the daughter actually had stumbled across these images in her use of the phone. However when the mother learned that the daughter had been given the phone by the father, the mother examined the phone and located the images rather easily. It was at that time that the father's sexual interest and proclivities became quite problematic and concerning for the mother.
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Scenario #2 (cont.)
• There were additional concerns that the mother voiced particularly around the father's choice of friends. These friends had been known to the mother to also have had interest in polyamory or swinging lifestyle behaviors and the mother was well aware that the daughter had participated in social events with these adult friends, such as float trips. The mother was concerned that the daughter had been exposed to inappropriate adult sexual behavior and was concerned that the child might have seen the images of her father's genitals as well as other naked images which were sent to the father by various women. The mother did not voice specific concern that she believed the child had been molested by the father. The mother was requesting that the father have supervised visits and that she be considered for sole legal custody.
Contact Information
Dr. Lori Schwartz, Ph.D., CST
Psychologist, Certified Sex Therapist
7611 State Line Road, Suite 226
Kansas City, MO 64114
Phone: 816 753‐7071 ‐ Fax: 816 926‐9180
Email: [email protected]
Website: www.counselingpsychologistsllc.com
Larry V. Swall, JD
105 E. Mill St
Liberty, MO 64068
Phone: 816‐792‐8700 ‐ Fax: 816‐792‐8746
[email protected]
www.kcfamilylawattorney.com
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