The Challenge of Personality Disorders in Custody Evaluations

John A. Zervopoulos, Ph.D., J.D., ABPP1

1 John A. Zervopoulos, Ph.D., J.D., ABPP, a lawyer and board-certified forensic psychologist, directs PsychologyLaw Part-ners, where he assists family lawyers as a Consulting Partner to understand, critique, and use psychological materials and evidence in their cases, and helps edit and draft motions and briefs relating to experts’ work and testimony. John has authored two ABA-published books: How to Examine Mental Health Experts: A Family Lawyer’s Handbook of Issues and Strategies (2d ed. 2020) and Confronting Mental Health Evidence: A Practical PLAN to Examine Reliability and Experts in Family Law (2nd ed. 2015). In addition, he publishes PsychologyLaw Brief, a weekly email newsletter that helps family lawyers understand and man-age the work and testimony of mental health experts. John is online at www.psychologylawpartners.com. You can contact him at 972-458-8007 or at jzerv@psychologylawpartners.com.

Preparing for a deposition of a court-appointed evaluator in your child cus-tody case, you open the evaluator’s report for questions related to how the eval-uator characterized Mother, your client. The evaluator, who had several concerns about Mother, assigned her a borderline personality diagnosis. You strongly dis-agree. Instead, you believe Father has a severe narcissistic disorder that triggers Mother’s emotional reactions. How do you know if these diagnoses are legit?

DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) lists several personality disorder diagnoses, including narcissistic, borderline, and antisocial personality disorders. To catch a judge’s attention or professionally la-bel disagreeable parent behaviors, mental health experts and family lawyers

often misuse these diagnoses to characterize, sometimes sully, parents in high conflict cases.

Context

In 2022, the American Psychiatric Assn. published the DSM-5-Text Revision. Although this new edi-tion introduced some modifications compared to the DSM-5, the language and criteria for Personality Disorders remain unchanged. Since most experts still rely on the DSM-5 when they testify, this article focuses on the DSM-5.

The Personality Disorder Problem

Unfortunately, too many experts use personality disorder diagnoses to fill gaps in an otherwise thin assessment. The lure of these diagnoses is fueled by a cottage industry of writings and workshops that teach how to use diagnoses to label and manage objectionable parent behaviors. Further, experts may use personality disorders to lend a scientific sheen to their descriptions of parents and to bolster their recommendations.

Furthermore, DSM-5 distinguishes between personality traits and personality disorders. Personality traits are enduring ways of seeing, interacting with, and thinking about the world and oneself, expressed across various social and personal situations. Examples include a brain surgeon who is exceptionally detail-oriented, an actress who is more emotionally expressive than most people, or a friend who is overly cynical. These individuals can adjust how they express those traits depending on the situation. Person-ality traits become a diagnosable personality disorder only when they are inflexible, maladaptive, and cause significant impairment in functioning or personal distress. (DSM-5 at 648).

DSM-5’s Cautionary Statement

Of the DSM-5’s 947 pages, one-page sticks out: page 25. Titled, Cautionary Statement for Fo-rensic Use of DSM-5, the page offers direction to challenge how experts and family court may misuse diagnoses in their reports and testimony. This page is replicated in the DSM-5-TR.

The Cautionary Statement emphasizes three key points:

First, DSM-5 was developed to meet the needs of clinicians, public health, professionals, and re-search investigators, not to meet the needs of courts and lawyers. That’s a critical distinction.

In clinical settings, DSM-5 diagnoses may guide treatment and communication with other providers. Uncertainty about a diagnosis is often clarified during treatment, leading to modifications in the diagnosis. In addition, researchers use diagnoses to refine definitions and advance understanding of mental disor-ders.

But legal settings differ. Decisions about case outcomes have a more immediate urgency than ther-apy, which may occur over months, if not longer. Further, a diagnosis is not inherently tied to a parent’s ability to co-parent effectively or act in the child’s best interest. Too often, experts base their decisions on whether a parent meets criteria for a diagnosis on loose or forced interpretations of their data. Instead, courts need reliable, admissible, and case-relevant information to inform their decisions.

Second, even so, DSM-5 diagnoses may help courts consider how to rule in certain cases. For in-stance, in some jurisdictions, a diagnosis may be required for a criminal court judge to make certain rulings. DSM-5 diagnosis may also help judges better understand characteristics of a mental disorder rather than rely on ungrounded speculation about the disorder and the person’s functioning. But this doesn’t mean a DSM-5 diagnosis proves legal relevance or parenting impairment.

Third, DSM-5 warns that its use in court carries risks and limitations. Diagnoses can be imprecise, over-interpreted, or misapplied. The Cautionary Statement asserts:

These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and information contained in clinical diagnoses.

(DSM-5 at 25).

That’s especially true in family court, where most parents experience stress amid a major life-chang-ing event played out in public. Parents’ worries about their future involvement with their children, financial security, and emotional ups-and-downs may temporarily mimic diagnostic criteria. Behaviors that look like they fit a diagnosis may be contextually normal.

The Role of Clinical Judgment

Personality disorder diagnoses also require clinical judgment. For instance, DSM-5 does not require every listed criterion to be present. For example, Borderline Personality Disorder requires five of nine criteria. That leaves room for a practitioner’s clinical judgment—and reasonable disagreement. In high-conflict custody litigation, evaluators must distinguish between enduring personality traits that meet diag-nostic criteria and a parent’s stress-driven reactions.

That diagnostic flexibility makes it essential to examine not merely which criteria were checked, but how carefully they were applied and whether alternative explanations were considered.

Even a carefully considered DSM-5 diagnosis tells a court relatively little about whether a parent can meet a child’s developmental, emotional, and safety needs. A person with borderline personality disorder may be a devoted and capable parent; a person without any diagnosis may pose significant risks to a child. The court’s inquiry is functional: How does this parent behave in the parenting role, and what does the evidence show about the child’s well-being? Lawyers should press evaluators to connect any diag-nosis explicitly to observed parenting behaviors and documented child outcomes—not allow the diagno-sis itself to serve as a proxy for the parenting assessment the court needs.

Addressing the Personality Disorder Issue

Diagnoses answer a classification question. Family court asks a functional question.

As you question the evaluator’s use of a personality disorder diagnosis, focus on one orienting ques-tion: How do you know what you say you know?

Push back. DSM-5’s Cautionary Statement and admissibility rules require

experts to show their work and acknowledge the limits of DSM-5 in court.

Don’t let the diagnosis speak for itself. Ask the expert:

How did you reach the diagnosis?

How does the diagnosis directly relate to parenting or the child’s best interest.

Which specific diagnostic criteria were met?

What evidence supports each criterion?

Which criteria were not met?

What alternative explanations did you consider and rule out?

Challenge vague reasoning. Ask what standardized tests were used and how the evaluator inter-preted the results, how many hours the evaluator spent with each parent, and which collateral sources were interviewed.

Now, as you prepare for that deposition and question the evaluator about a Borderline Personality Disorder diagnosis, don’t argue over labels. Focus instead on the diagnostic criteria, the methods, and, most importantly, the parent’s functioning. DSM-5 may classify behavior, but the court must decide par-enting capacity. Keep the inquiry where it belongs: on how the parent actually parents and how the child is affected.