Continuing our Mental Health and Addiction Series with this podcast episode on borderline personality disorder. Jake Gilbreath and Brian Walters discuss how having a party diagnosed with a borderline personality disorder may affect divorce proceedings.
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Jake Gilbreath: Welcome back to For Better, Worse, or Divorce. I’m Jake Gilbreath. I’m here with Brian Walters and we’re going to be continuing our mental health and addiction in litigation series.
So this time, and as a reminder, Brian, you and I aren’t mental health professionals, but we see obviously, particularly in child custody cases, it can come up in a divorce when you don’t have kids involved, but particularly child custody cases. Part of being family law litigators is we see personality disorders. A lot of times that’s why somebody’s going through a divorce or having a fight with their spouse or they’re being accused of having a personality disorder.
So, last time we talked about narcissistic personality disorder. As a reminder, Brian and I aren’t mental health professionals, but sort of talking about how we see this play out in our world and how it’s used in the court system. So, let’s talk about borderline personality disorder.
So without diagnosing it, I don’t know about you, Brian, but when I was a first year associate working with family law, one of the first cases I had, I think it was the mom in this case, had been diagnosed with borderline personality disorder. I remember sitting, I was talking to a child’s counselor with Jim Piper who works with us now, but I worked for Jim Piper at the time and was talking about mom.
The kid’s counselor, the way she described it, she said borderline personality disorder, they don’t make friends, they take hostages. That always sort of stayed with me through the years of how to describe it. Borderline personality disorder is something that’s defined in the DSM-5. I’m not going to go through the diagnostic criteria, but it’s kind of scientific definition to it.
But Brian, just in your world as the non-scientific approach, you have some client call in wanting to hire you, the case is going on, they say, “I think my wife or my husband has borderline personality disorder.” How’s that play out in your world?
Brian Walters: Right. In my kind of layman’s definition of it is, that’s a good one by the way, but the one I’ve relied on a lot is these people, you are either their best friend or greatest enemy, there’s no in between. By the way, that can switch maybe in the same day back and forth, but there’s no-
Jake Gilbreath: Right. Maybe in the middle of an argument.
Brian Walters: Right. There’s no gray area that you as a spouse or a friend or whatever, or child of one of these people is either out to destroy them or the greatest person ever, which just isn’t the world, right? Everybody’s shades of gray to some extent. There’s certainly some people on one extreme or the other, but that’s a typical type of discussion that we have.
I think it’s often in a situation where a spouse will call me up or parent and say, “I know I need to get out of this. I know this is not a healthy situation for me or my children, but I am … ” It’s a hostage thing, right? It’s like, “If I leave her or him, they are going to come after me. They’re going to try to see that I don’t see my child, they’re going to accuse me of every possible thing on the planet.” And this is terrifying to somebody.
I think the DSMV, last time I looked at it was 1% or 2% of the population is probably a clear diagnosis of this, maybe more. But it seems to me to be 20%, 15%, 25%, some large way out of proportion percentage of the family law litigation when you count, I don’t know, hours in court, for example.
Jake Gilbreath: Right.
Brian Walters: These people are very destructive and there is no negotiating with these people a lot of the time. That’s how it plays out a lot of the time for me, unfortunately.
Jake Gilbreath: Yeah, I think that’s right. Yeah, a lot of times thinking through the initial consult or somebody’s looking to hire us and stuff, it is rare that somebody comes in with an actual diagnosis. “My spouse has been diagnosed with borderline personality disorder.” Maybe they’ve been to treatment like inpatient treatment and has a dual diagnosis with alcohol use or something like that, but it’s rare.
If you have a therapist, again speaking as a practitioner of family law, if you have a therapist treating somebody, it’s not really a reason to sit there and diagnose your patient with borderline personality disorder. I’m not sure if I’d continue to go to my therapist if I got his notes and he write something, “By the way, Jake’s borderline personality disorder. “Why’d you write that down? Don’t do that.” It’s not really a motivation for them to do that. They’re going to code something as I understand it, so you get insurance coverage. So you see, a lot of times we get these cases and they’ve been diagnosed with adjustment disorder or something benign. But then when you really dig in and talk to the therapist or gather the information from your client or from collateral witnesses, you can really tell that there is something seriously going on.
And like you were saying, Brian, it’s, it can run the gamut, you see it in a lot of parental alienation cases. And it’s like you were saying, it’s that all good versus all evil. “You’re married to me or you’re with me, so you’re all good. You file for divorce, you’re all evil, so you can’t be around our kids anymore.” And some of it’s just that simplistic. It’s like, “You’re all evil, you can’t be around the kids.” And they don’t even really bother to articulate a reason.
And then particularly, and I’ll say it, for legal cases, you get the false accusations and stuff, you get somebody coming in at being falsely accused of sexual abuse of a child or falsely accused of family violence or child abuse. And sometimes it goes back to that underlying personality disorder of the person making the accusation. I always say, again, kinda lay person talking, but when you have these cases, it goes to what you were saying, Brian, about the percentage that we see in our world. Particularly when you have family violence cases where there’s accusations of family violence or child sexual abuse or other types of child abuse, when you have that in a case, probably, I don’t know if it’s an appropriate way to describe it, but I tell people all the time, that means that somebody’s crazy, frankly. And see if you have that type of accusation in a case.
I mean think about a child’s sexual abuse case. You only have two options. It’s just like a borderline personality. It’s either all good or all bad. You have two options. The abuse happened, which is awful, obviously. Horrible. Or the abuse was made up. And that’s awful and horrible. And both are devastating, devastating to families. And same for family violence though. It’s somebody accusing, says, “My spouse hit me.” Well that’s either true or not and either way it’s awful behavior on one of the parents.
And then our judges and juries are often tasked with making that determination. There’s no gray area. There’s no, “Dad says he changed diapers 50% of the time and mom says it was 5% of the time that he changed the diaper.” It’s a lot more than that. And it’s really, really high stakes because depending on who you believe, it’s going to obviously impact not only who has custody, but particularly when you have cases with physical sexual abuse of a child, somebody’s going to probably going to be supervised with that child. Either the parent making the accusation if it’s false, or the parent who actually did it. And I guess probably we’ll turn the topic to how this gets handled in litigation.
The worst, I guess, and best phone calls or cases that I take are when we have the opportunity to help in that situation. Where it’s the false accusation, you actually have the opportunity to go and prove that. Or when it’s happening and you go in there, you can prove that it is happening. Those are gut wrenching cases. It’s such high stakes and it can so easily be mishandled. And it’s a hard enough job for judges or juries to figure out who’s lying to these situations.
And then you compound that with poor representation or not being prepared or not knowing all the evidence from a lawyer. People come to us all the time halfway through it. And something awful has happened in court and you’re going, “How on earth that happened given these facts?” And you read a transcript and you’re like, “Well no wonder the judge didn’t buy this,” or “No wonder the judge did buy this. And it’s not true, given how it was presented.”
So Brian, on that comment about how many of these cases that you see that let’s say, let’s call it borderline personality disorder. I guess back it up before we even talk about going to trial, what do you do? I mean they don’t have the diagnosis, but there’s these suspicions. Just like somebody comes to you and talks about their spouse having a drinking problem, they may not be diagnosed with a drinking problem, but they can tell the stories of hidden alcohol, or 10 drinks a night, or passing out drunk, or DWIs. What do you do as a litigator to prove that to a judge or a jury?
Brian Walters: And just to be clear, we have represented people that have the BPD diagnosis as our clients. And they make these horrible accusations against the other side. They don’t have a diagnosis. You don’t wear your diagnosis on your head, even if they had one. And it’s very difficult all the way around to know who. I mean, child sexual abuse is a good example. How would you know? Unless there’s a video, a surveillance camera of it, which is I’ve yet to see that case, it’s he said, she said, or it’s actually is not even that it’s he said or she said, the kid said or something happened and child had some medical condition or whatever. And it is impossible. And all we can do is try to ask the hard questions is, “How certain are you about that?” Or “Is there anything that could be misconstrued?” And then represent those folks as they try to protect their children as they see fit.
And I agree with you, it is high stakes when that happens because you make that allegation against your, say a wife accuses her husband of sexually molesting their four year old daughter. Make that allegation, you’re never going to co-parent with that dad again. And if it’s not true and the judge doesn’t believe it’s true, again, it’s very, very difficult to ever disprove a negative. If you don’t convince a judge that that’s true, be aware that the judge is going to view that as the psychological equivalent of what you’re accusing your husband of.
And vice versa for, and it’s not always this way, but it usually is. If the husband’s accused of something, here’s the bad news, the judge doesn’t know what’s true. Someone comes in with an emergency restraining order, “My husband touched my daughter.” Well what are they going to do? The judge doesn’t know if that’s true or not. They’re going to probably be cautious and they’re probably going to say to the dad, “You can’t be alone with your daughter for a while until we figure this out.” And it’s almost like it’s guilty until proven innocent. Backwards from what we’re used to. And then there’s a long process of digging out of that hole and convincing mental health professionals of court that it’s not true. But if you do get to that point, then I think things flip the other way. It is, I mean..
Jake Gilbreath: Yeah. And back on the diagnosis, it’s kind of a sword in the shield. I’ve seen people be falsely accused of borderline personality disorder because I’ve yet to see the case where somebody stands up and goes, “Yep, you’re right. I actually did hit my spouse, you’re right, I did hit my child. What she’s saying is true. What he is saying is true.”
No, they get up there and say, “This person’s crazy.” And it could be absolutely true. And I’ve had those cases where it’s absolutely true. Absolutely true that the abuse happened. And thinking through off the top of my head, every single one of those cases, my client was accused of having some personality disorder, either narcissistic or borderline personality disorder. I’ve had cases where a mental health professional comes in and says, “I think that.” And then when turn to out, I think the credible evidence was that it actually did happen.
But nobody wants to think that abuse happens. And so they used this as a shield. “I’m accused of something, my spouse is crazy, she’s borderline. She’s just borderline, she’s making it up.” So it cuts both ways. And it just goes back to how important it’s to present your case to the court.
I guess let’s talk a little bit about evaluation since I mentioned in that case there’s a psychologist. A lot of times when there’s these accusations or there’s some concern from the judge that there’s a personality disorder or just because there’s an accusation being made both ways, the court can order psychological evaluations of the parents, they can order custody evaluations, which usually but don’t have to include psychological evaluations. And then you have a psychologist coming in and doing a battery test and talking to collaterals. And so we see that a lot I think in these situations.
And then having a case where a psychologist comes in and says, “The mom or the dad has borderline personality disorder,” or really any personality disorder is a big deal in court. The courts are going to, at least in my experience, Brian, I’m curious about yours, but that the judges take that really seriously. If an evaluation’s done by a PhD psychologist and they come in and think that this parent has a personality disorder, is that your experience?
Brian Walters: It is. I mean, judges are looking for something concrete to grab onto. And mental health is not mathematics. It’s not one plus one is two. It’s like you said, battery test, scientifically recognized principles. These are intelligent people who mean well, I’m sure most of the time. But they’re not perfect. They’re different levels of competence, different levels of maybe concentration, different people. Certain very, very smart people can manipulate test results or tell people what they want to hear. And it’s not perfect.
And the other part of that is that a lot of the times those mental health evaluations are less than certain. I mean you can have a diagnosis or not, but it’s again, not one plus one is two. If someone is not diagnosed with a personality disorder, that doesn’t mean they don’t have a set of serious problems. And vice versa. You could have a diagnosis of a personality disorder that’s either incorrect or very barely over the meter.
So there’s a lot of gray area with it, a lot of nuance. But it’s at least something for the court to hang their hat on. And they’re not necessarily going to rubber stamp it, but they’re going to take it pretty seriously unless the other side can show that they didn’t do the evaluation properly, or a different mental health professional comes to a different conclusion, or there’s some reason for bias or being unfair, or that it’s not relevant to the very specific situation. Those are your only defenses. But you’re definitely behind the eight ball if you got a diagnosis against your client.
Jake Gilbreath: Well yeah. And again, it goes back to it cuts both ways. I mean, I’ve had cases where I’ve got the parent and the other side diagnosed borderline personality disorder or narcissist personality disorder or presume that to the judge and the jury. I have cases where my client’s coming to me and they’ve gotten the diagnosis and we don’t agree with the diagnosis and we’re looking at hiring rebuttal experts. You’re having that conversation. We’ve talked about this in other podcasts. You’re having that conversation of, “Do I want to take this to a judge or a jury?” If judge so-and-so appointed this mental health professional to do an evaluation and you disagree with that mental health professional, that’s like you said, Brian, behind the eight ball, going back to Judge so-and-so and saying, “I disagree with the evaluator that you appointed.” You’re having that discussion with a client and saying, “Maybe we should be talking to a jury about this.”
Again, thinking from experience, I mean both of us, I think, Brian, tried even the days of COVID, tried more jury trials than most other family law litigators and you got to take that there’s a certain strategy behind when dealing with mental health professionals and mental health issues of whether or not you’re going to have a jury do this or not because juries have a different attitude about mental health than judges do. And they have a different attitude about mental health providers than the judges do. And frankly, if you disagree with Dr so-and-so who’s always appointed by Judge X. And Judge X is going to go in there and rubber stamp. Maybe not rubber stamp, but say, “I appointed this doctor, I’ve seen her work all the time, I don’t disagree with her, I’ve never disagreed with her,” that’s different than going in front of a juror of 12 people. Who’s Dr. So-and-so? I don’t know who that is.” And probably have more skepticism towards the mental health professional than maybe the judge would.
But it’s a case by case basis. And probably the fourth time I’ve said it now, but it could really be screwed up by the lawyer. If you just don’t handle this right, is these cases are complex, it’s a soft science, but there is a science behind it. And having the right experts lined up and understanding this case and having the experience could have a huge impact. Not just on who gets custody, but what’s possession access look like. Where does everybody live, geographic restrictions. It impacts all this stuff. And it can go sideways real fast if it’s not handled right.
Brian Walters: I agree. And just from our perspective, these are probably the hardest cases that we handle. The emotional impact, the consequences of our performance, just dealing with clients. If you represent the BPD client, wow, that’s a handful. That’s a daily struggle to make them to meet their expectations. And if you’re representing the person who’s on the receiving end of a bunch of false allegations, it’s really hard. Like we said, that first round of it, the judge is going to be very cautious and it’s going to be really disappointing for a perfectly innocent, wonderful parent to be restricted. And then, is that my fault because I didn’t handle it right? Or is that just the way it rolls? Those are tough things for us. I try not to talk too much about how hard our job is sometimes, but these kind of cases are really, really difficult for everybody. And by the way, I think they’re really hard for the judges as well and a jury. And we’ve all been in jury rooms after hard decisions in cases like this. And those 12 people struggle with it too, for sure.
Jake Gilbreath: Well, I guess I’d probably wrap up the topic with what we talked about when we talked about narcissistic personality disorders as far as what to plan for with the divorce. And just like when somebody calls in and we’re starting the process and they’re warning me that their spouse is narcissistic personality disorder, I have somebody calling in saying, “I think my spouse is borderline.” It’s having this discussion that we’ve been having the last 20 or 30 minutes, it’s kind of, “Hang onto your hat. We’re going to court.” Because it’s going to be a rough ride.
It’s rare that you have that personality disorder where you’re not going to end up in a courtroom either on temporary orders or on final or on both. And you just got to be prepared for that because it doesn’t work. Just like a narcissistic personality disorder, my experience does not work giving in to the bully or the terrorist. You’re just going to have to figure out what’s best for your family and your kids and you have to be prepared to go to court for that because you’re probably going to get pushed in that direction by the other side.
Brian Walters: It’s real unfortunate. And there’s a reason they feel like they’re being held hostage, which is that yeah, because if you try to leave, the price is going to be very high and emotional. Your child’s relationship, financial, it’s terrible. But I guess sometimes very oftentimes living with a person like that is even worse.
Jake Gilbreath: Yeah. I mean for you and your kid.
Brian Walters: Right.
Jake Gilbreath: That’s what all this is about at the end of the day. If you’re going through a divorce and you don’t have kids and you’re married to a borderline personality disorder, it’s good to know that because you know it’s going to be coming forward and your divorce is probably going to look a lot like your marriage. I was taught, as Jim told me right off the bat, he used to tell clients, “Why would you expect your spouse to act any differently in your divorce than they did during your marriage?”
Brian Walters: Good point.
Jake Gilbreath: If there’s not kids, it’s good to know. But really it’s about these personality disorders and this whole series is how is this going to affect the kids? And judges, they care about the marriage and if the relationship was good or bad and who’s at fault. That matters. But what really matters is how is this going to impact the kids? If you have this narcissistic personality disorder, or borderline personality disorder, or histrionic personality disorder, or dependent personality disorder, anytime you have one of those in this case, then the judge or the jury is going to have their antenna up that this is going to impact the child or the children. That’s why it’s taken so seriously.
So I would say let’s wrap it up with that. And that’s what we have for today. I’d like to let everybody know, if you like what you heard today, do us a favor and leave a review. That’s very helpful. We really appreciate all the feedback that we’ve been getting and we appreciate feedback moving forward. It helps us better this podcast. Always feel free to send us a message of any topics you want us to discuss and we’d be happy to do it. And don’t miss next week’s episode when we talk about navigating histrionic and dependent personality disorders in divorce. So I’m Jake Gilbreath.
Brian Walters: Brian Walters, thank you very much.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.