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FAMILY LAW: Children, Trauma, and the Potential for Tort Litigation

Robert A. Simon

The impact on children of family-based trauma can be long-term, and it can affect the normal development of the brain. When representing a child in tort litigation arising out of alleged trauma, awareness of the following factors can be helpful.

Trauma and the brain. Trauma, especially for children, creates significant psychological problems. Trauma impacts multiple areas of functioning. It can impact physical functioning by causing eating and sleep problems, low energy, and even chronic pain. Trauma can affect emotional functioning and result in depression, hopelessness, despair, anxiety, panic, fearfulness, obsessive and compulsive behavior, impulsiveness and anger, emotional numbness, and interpersonal withdrawal. Trauma can impact cognitive functioning, adversely affecting memory, decision making, learning, and concentration, and leading to hypervigilance, hyperarousal, distraction, and symptoms associated with attention-deficit hyperactivity disorder (ADHD).

People who have experienced trauma may reexperience the trauma in the form of intrusive thoughts, flashbacks and nightmares, and emotion- or image-flooding related to the trauma. They may experience detachment, guilt, grief, an altered sense of time, and even obsession with death. Individuals who have experienced trauma are at a far greater risk for psychological dysfunction, physical illness, and drug and alcohol abuse.

Trauma changes the brain. Because the human brain is not fully mature until at least age 25, the presence of trauma actually impacts the developing brain in a way that can result in long-term neuropsychological problems. Trauma affects the developing limbic system, which is the brain’s center of emotional functioning and a critical memory center. The limbic system also is implicated in epinephrine production and motivation, and it has a role in the sense of smell, which helps explain why certain smells can trigger memories and trauma. Trauma is additionally associated with changes in cortisol levels (cortisol is also known as the “stress hormone”).

Trauma also impacts the functioning of the prefrontal cortex, an area of the brain that is involved with planning complex cognitive behavior, personality expression, decision making, and moderating social behavior. One of the most important functions of the pre-frontal cortex is so-called executive functioning. When executive functioning is impaired, individuals can have problems differentiating conflicting thoughts, they may struggle to distinguish good from bad, similarities and differences, and the future consequences of current behavior. Goal setting is a part of executive function, as is the ability to inhibit impulses that could lead to socially undesirable outcomes.

Thus, not only is trauma subjectively unpleasant to feel and experience, trauma also has the effect of inducing changes in the developing brain. Therefore, the psychological and neuropsychological effects of trauma can be serious and long-term.

Trauma, when present, can interfere with day-to-day functioning and coping. This is because the psyche uses its resources to manage conflict before it is available to engage in so-called conflict-free functions. Therefore, children struggle in school, adults struggle at work, and relationships for both children and adults are stressed and made more complicated.

Trauma and family life. In the context of family life, trauma can result from numerous sources. Most often, it results from the presence of family violence. Children, when exposed to protracted and intense conflict between their parents, may experience trauma. Children who witness a parent being physically and/or emotionally abused by the other parent or who are the victims of abuse at the hands of the other parent can become traumatized. Children who have been molested by a family member are often traumatized. It is difficult to predict how any particular child will respond to trauma, and some children are traumatized by seemingly minor things, whereas other children who experience ongoing abuse apparently emerge with few signs of trauma. It is reasonable, however, to expect children who experience the various forms of family violence and abuse to display signs of trauma. And when a parent is also traumatized, the severity of trauma on children can increase.

Trauma and tort litigation. When representing a child in tort litigation in which trauma to the child is alleged, it is essential to fully explain the nature and ramifications of the trauma and link the trauma to specific events or a series of events. For example, if you represent a child who is claiming to now have post-traumatic stress disorder (PTSD) owing to physical or emotional abuse, be very specific about the trauma-related symptoms. Also, be specific about what experiences induced the trauma. You will also want to demonstrate by way of the individual’s history that the symptoms your client reports were not present prior to the traumatic event or events and that his or her level of functioning has diminished since the traumatic event or events. Remember that something that does not produce trauma in one person can produce trauma in another person, and be prepared to deal with the idiosyncratic nature of trauma. It is not uncommon for those who experience a trauma reaction to a stressor to be somewhat “predisposed” to the trauma.

Stress, of course, is a part of life. All people experience stress. Traumatic stress is different and is related not only to what is going on in the here and now but is also related to how the traumatized brain is “triggered” by current stress and how it reexperiences previous trauma and stress. Traumatic stress can be distinguished from routine stress by assessing the following: how quickly one is triggered (very quickly); how frequently one is triggered (more frequently); how intensely threatening the source of upset is (the threat is minor, the reaction is major); how long upset lasts (longer); and how long it takes to calm down (longer).

Treatment for trauma. Expressive psychotherapy (i.e.,“feeling your feelings”) is probably not a useful way to approach the treatment of trauma. Promising and effective treatment approaches for people who have experienced trauma, however, do exist. While these approaches do not necessarily “re-wire” the brain when normal development has been altered by trauma (although there is some evidence that this may be possible), it is possible to learn how to react differently and therefore to experience less distress.

Cognitive behavioral therapy is a useful approach for treating trauma. Cognitive behavioral therapy recognizes that unpleasant emotions are the result of dysfunctional thinking. In other words, the emotions are not the problem—the thought processes that lead to emotional experience are the problem. The therapy works to solve current problems and change dysfunctional thinking, which in turn changes dysfunctional behavior and dysfunctional emotional experience.

Another promising approach to the treatment of trauma is EMDR (eye movement desensitization and reprocessing). EMDR combines elements of a range of therapeutic approaches with eye movement or other forms of rhythmical stimulation, such as hand taps or sounds. It is not entirely clear why EMDR works. Some research suggests that the rapid eye movements or other rhythmical stimulation may allow the brain to access and process traumatic material.

ABA SECTION OF FAMILY LAW

This article is an abridged and edited version of one that originally appeared on page 22 of Family Advocate, Fall 2016 (39:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/family

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RECENT BOOKS: Electronic Evidence for Family Law Attorneys; Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, 3d ed.; Mastering Crucial Moments in Separation and Divorce; The Family Law Trial Evidence Handbook.

Robert A. Simon

Robert A. Simon, PhD, is a national leader in forensic psychology consulting. Based in San Diego, California, Simon is retained by attorneys throughout the country to consult and provide expert witness testimony.