There is a ritual that plays out with remarkable regularity in Utah family court proceedings.
A divorce becomes ugly. A parent is angry. A child is anxious. Communication deteriorates. Someone cries in court. Someone says “trauma.”
Before long, somebody proposes therapy. Then everyone can feel as though something constructive has been done.
The lawyer recommending therapy looks responsible.
The parent requesting therapy looks concerned and virtuous.
The judge ordering therapy looks cautious and compassionate.
And the family leaves the courthouse with another appointment, another professional, another bill, and hope but no clear idea whether the therapy can solve the problem(s).
Therapy can be valuable when there is an identifiable psychological problem that therapy can treat.
But in child custody and parent-time disputes, therapy is increasingly used for something else: as a performative signal that the legal system is taking distress seriously. That is a very different, very cynical function.
And once therapy becomes a signal rather than a treatment, the incentives become badly distorted.
Therapy as a Cheap Signal
Behavioral economics and signaling theory help explain the phenomenon.
A signal is something a person does to communicate information about himself, his intentions, or his priorities to other people. The problem is that talk is cheap: anyone can claim to be committed, concerned, responsible, generous, or careful. For a signal to carry real weight, it often has to be difficult, expensive, risky, or inconvenient enough that a person who did not genuinely possess the quality being signaled would be less willing to send it.
That is what makes a “costly signal” credible. The cost helps separate sincere commitment from mere performance. When someone voluntarily accepts a meaningful burden—time, money, effort, risk, or sacrifice—the action tells us more than a bare assertion would.
Other signals are cheap.
In family court, recommending therapy is frequently cheap for the person doing the recommending.
A lawyer can suggest that a client enter therapy and thereby communicate: “My client is reflective, responsible, and taking this seriously.”
A parent can demand therapy for the other parent and communicate: “I am concerned about the children. My former spouse is the problem.”
A court can order therapy and communicate: “We recognized the family was struggling and did something about it.”
But who bears the actual cost of that signal?
Usually not the lawyer. Not the judge. Not the court system.
The family does.
The parents pay the therapist. They take time away from work. They arrange transportation. They alter parenting schedules. Other parent and child activities give way to time spent in and for therapy. Parents and children submit to questioning. They wonder what will be reported back to the court. They add another professional to an already crowded litigation ecosystem.
The legal system receives the credit for ordering therapy. It has its reward merely by ordering therapy. Whether it does any good does not really matter to the court.
The family bears all the costs, hassle, and risk.
The “50 Percent Discount” Problem
The incentives become stranger when one parent wants therapy and the court orders the parents to split the expense.
Suppose Parent A believes (or claims to believe) that Parent B needs therapy. Parent B disagrees.
If Parent A had to purchase the service personally, Parent A would have to decide whether the perceived benefit justified the entire price.
But once the court orders the parties to divide the expense, Parent A gets what amounts to a 50 percent discount on an intervention Parent A wanted in the first place.
Worse, the parent requesting the service may receive litigation benefits that the unwilling purchaser does not.
Therapy may produce records. It may generate professional opinions. It may keep allegations alive. It may furnish new vocabulary for describing ordinary disagreements as psychological problems. It may create an additional witness.
Thus, one party can receive much of the perceived strategic benefit while imposing half the financial cost on the opponent. That’s an unhealthy market signal. It’s cost externalization.
The Court Does Not Pay for Being Wrong
There is another asymmetry.
Imagine two possible judicial mistakes.
In the first, a judge orders therapy that turns out to be unnecessary. The parents spend thousands of dollars. The children lose time. Nothing useful happens.
Who is blamed? Who can be? After all, the court was only being careful.
Now consider the opposite mistake. The judge declines to order therapy, and six months later something goes badly.
Suddenly there is an uncomfortable question: “Why didn’t the court do something?”
Ordering therapy creates institutional insurance. The court receives the reputational benefit of precaution while bearing none of its cost.
The predictable result is overuse.
When the downside of saying “yes” falls principally on somebody else, while the downside of saying “no” falls on the court, “yes” becomes very attractive. Some might even call it a no-brainer.
Normal Distress Is Not Mental Illness
Divorce is painful. Parents become angry. They become frightened. They lose sleep. They grieve. They obsess about money. They worry about losing time with their children. They sometimes behave badly. None of this proves mental illness.
Yet family law has developed an unfortunate habit of translating ordinary human suffering into therapeutic terminology.
Anger becomes “dysregulation.” Distrust becomes “hypervigilance.” A difficult personality becomes “narcissism.” A child who does not want to do something is “unsafe.” A painful memory becomes “trauma.” Rules becomes “controlling behavior.” Ordinary conflict is redescribed as pathology.
And once a problem has been given a clinical (or clinical sounding) name, therapy appears to be the obvious answer.
But sometimes (often, even) the parent or child does not need therapy.
Sometimes the parenting plan needs to be clearer. Sometimes exchanges need to occur at a specific place and time. Sometimes parents need a rule limiting communications to child-related subjects. Sometimes somebody needs to obey the decree. Sometimes a child needs to learn that disappointment, anxiety, awkwardness, and frustration are tolerable parts of life.
And sometimes a divorcing parent or child of that parent simply needs to be told: “You are going through something extremely difficult. Feeling terrible about it does not necessarily mean something is psychologically wrong with you or the child.”
The Wrong Message
Ordering therapy also sends a signal to the person ordered to participate.
The court may believe it is saying: “We want to give you support.” The parent may hear: “The court thinks I am mentally defective” and/or “The court is showing me it’s in control.” That difference is not trivial.
Forced therapy can produce precisely the opposite of the introspection its proponents claim to want.
A parent begins wondering: What is the therapist writing down? Who will see the notes? Is the therapist talking to my former spouse? Will frustration be characterized as anger problems? If I disagree with the therapist, will that be called lack of insight? If I say therapy is unnecessary, will that itself be treated as evidence that I need therapy?
This can create a nearly unfalsifiable system.
Compliance proves therapy was necessary. Resistance proves therapy was necessary. Continued distress proves more therapy is necessary.
And improvement may prove that the therapy must continue because it is “working.”
That is not a treatment model with clear endpoints.
It’s a ratchet.
The Therapist’s Incentive Problem
This does not require therapists to be greedy. The structural problem is simpler.
A therapist is ordinarily paid for providing therapy.
The therapist is generally not paid for concluding after one or two meetings: “There is no disorder here that I am equipped to treat. These people have a legal and interpersonal dispute, not a psychiatric problem.”
Nor is there usually a financial reward for saying: “Treatment has accomplished what it can. We should stop.”
Professional ethics may require therapists to avoid unnecessary treatment. Many undoubtedly take that obligation seriously. But the economic structure still matters.
The person providing an indefinite service is often also the person deciding whether more of that service is needed.
That ought to make courts more demanding about treatment goals, duration, progress measurements, and termination criteria.
Instead, orders sometimes amount to little more than: “Go to therapy until further notice.”
No defined diagnosis. No measurable objective. No presumptive duration. No meaningful cost ceiling. No objective definition of what successful completion looks like. If almost any other court-ordered professional service were structured this way, lawyers would recognize the problem immediately.
Therapy and the Problem of Taking Sides
There is another difficulty when treating therapists enter custody litigation.
Good therapy depends partly upon therapeutic alliance. The therapist listens. The therapist empathizes. The therapist attempts to understand the patient’s experience from the patient’s perspective. Those are strengths in treatment. They can become weaknesses when the therapist drifts into a forensic role.
A therapist may hear one parent’s story first, most often, and in greatest detail. A child may report events through the emotional framework supplied by one household. The other parent may rarely appear in the therapist’s office at all. Human beings naturally construct explanations from the information repeatedly presented to them.
Therapists are human beings.
The danger is not necessarily that the therapist consciously decides, “I am taking Mother’s side,” or “I am taking Father’s side.” The greater danger is that the therapist does not recognize the alignment as taking sides.
Therapeutic validation subtly, imperceptibly becomes factual verification. “I understand why you experienced that as frightening” gradually becomes “the other parent frightened the child.”
Then the clinical vocabulary becomes more authoritative: “The child demonstrates significant dysregulation in anticipation of contact.” That sentence may be perfectly sincere.
But what does it actually establish?
Perhaps the parent caused the distress. Perhaps someone else caused it. Perhaps the child has learned that displaying distress produces a desired result. Perhaps ordinary anticipatory anxiety is being reinforced rather than overcome. Perhaps the litigation itself is causing the problem.
A treating therapist ordinarily has neither the information nor the forensic methodology necessary to distinguish reliably among those possibilities.
Yet once clinical terminology enters a courtroom, judges and lawyers can easily attribute more evidentiary weight to it than it deserves.
The danger is not primarily that therapists consciously choose money over patients or one parent over another. It is that the system pays them to continue, trains them to form therapeutic alliances, and then too often mistakes therapeutic confidence for forensic objectivity.
Activity Is Not an Outcome
This may be the central behavioral-economic mistake.
Institutions love things that can be counted. Sessions attended. Evaluations completed. Courses taken. Professionals appointed. Reports filed.
Those are visible activities. They are not necessarily outcomes. The important questions are harder: Did the parents become better able to exchange the children? Did litigation decrease? Did the child become more resilient? Did communication become shorter and clearer? Did accusations decline? Did parent-time become more predictable? Did the family spend less time managing professionals and more time living normal life?
Those are the outcomes that should matter. Yet they are often displaced by the easier question: “Is everybody in therapy?”
A Better Approach
Courts need not stop considering therapy. They must, however, stop using it reflexively.
Before ordering treatment, the court should be able to answer several basic questions: What specifically is the problem? Why is therapy an appropriate treatment for it? What kind of therapy is appropriate? Who is the patient? What is the therapeutic goal? How will progress be measured? How long should treatment reasonably take? What will indicate that therapy should end? Who will pay for it? What information, if any, may the therapist provide to the court?
And is there non-therapeutic option for addressing the problem?
Sometimes the answer will indeed be therapy. Other times it won’t.
Sometimes the answer will simply be recognition that distress during divorce is not proof of psychological pathology.
Family courts should be particularly suspicious of interventions that are cheap for the person ordering them and expensive for the person required to endure them. That is precisely where bad incentives hide. Therapy is too important to reduce to courtroom theater.
If treatment is warranted, treat it like treatment: identify the problem, prescribe the intervention for a reason, measure whether it works, and stop when it does not.
Otherwise, everyone may leave the courthouse feeling that something has been done while the family pays dearly for accomplishing nothing.
Utah Family Law, LC | divorceutah.com | 801-466-9277