FAMILY
WARS
…The Alienation of Children !
(Do
you know a child who is in the process of becoming alienated from a parent?)
Parental alienation is the creation of a singular
relationship between a child and one parent, to the exclusion of the other
parent. The fully alienated child is a child who does not wish to have any
contact whatsoever with one parent and who expresses only negative feelings for
that parent and only positive feelings for the other parent. This child has lost
the range of feelings for both parents that is normal for a child.
We will call the parent who acts to create such a
singular relationship between the child and himself the "alienating
parent". The parent who is excluded from the singular relationship is
"the target parent." We note that alienation can occur both ways, each
parent attempting to alienate the child from the other.
The persistent quality of the conflict combined with
its enduring nature seriously endangers the mental health of the parents and the
psychological development of the children. Under the guise of fighting for the
child, the parents may succeed in inflicting severe emotional suffering on the
very person whose protection and well-being is the presumed rationale for the
battle" (emphasis added).
It is psychologically harmful to children to be
deprived of a healthy relationship with one parent.
"Visitation agreements must
insure that the emotional bond of the child with both parents is protected.
There is substantial research that indicates that children need contact with
adults of both sexes for balanced development."
With the exception of abuse, there is no good reason
why a child should not want to spend some time with each of her parents, and,
even with abuse, most children still want to maintain some relationship with the
abusive parent. It is the job of the parents, the professionals and the courts
to see that such contact is possible under safe circumstances.
While alienating messages and behavior affect a child
negatively and impact upon the child's growth and development, the impact on the
child may not vary with the parent's intentions. The effect will be to place the
child in a severe loyalty bind, a position wherein the child believes she must
choose which of her two parents she will "love" more. To have to
choose between parents is itself damaging to the child, and, if the end result
is the exclusion of a parent from the child's life, the injury is irreparable.
There is a continuum of alienating parental behaviors,
which cause harm to children, and all positions on this continuum need be of
concern to the professionals and the courts.
All families are made up of individuals who live
together in relatively stable intimate groups with the ostensible purpose of
supporting and caring for each other. Family members develop their own rules and
boundaries, spoken and unspoken, about the ways that they will behave with each
other, support and care for each other. Each family's rules and boundaries
change over time to reflect modifications in membership, the evolving needs of
its members and the realities of the outer world. Most changes in the family
system are gradual, but some events force cataclysmic upheaval. Divorce is
usually such an event.
Unless a separating family can change its own rules
and boundaries without outside intervention, the divorce process itself may
reach an impasse, the term applied when the divorce process itself becomes
"stuck" and the family system fails to appropriately restructure
itself. When there is an impasse, any move by anyone, family member, attorney,
spouse, is met with a counter move resulting in no forward progress.
The impasse creates a system of its own, with its own
membership, rules and boundaries. Although little recognized by professionals,
membership in the divorce impasse system will include all members of the family
living together and all professionals involved in "helping" the family
get a divorce, i.e. the lawyers, mediators, therapists and even the judge. A
divorce impasse can occur at three levels: an internal level (inside an
individual); an "interactional" level (between two individuals);
and/or an external level (within the larger social and familial system). An
impasse at any one of the levels will affect the entire system, and how each
individual member responds will affect all members, especially the child.
The children themselves are members in both the
changing family system and in the developing broader divorce impasse system. As
a member of the family system, a child is attached legally, emotionally and
psychologically to each of his parents. As a member of a divorce impasse system,
a child is often asked to ally himself with one parent or the other, a request
that clearly places the child in a loyalty bind. Sometimes the request, either
overtly or covertly, is that the child make the alliance exclusive. All members
of the divorce impasse system, including the professionals, are affected by the
loyalty struggles and may become polarized.
An alienating parent most likely has strong underlying
feelings and emotions left over from earlier unresolved emotional issues which
have been resuscitated and compounded by the pain of the divorce. The
individual, in attempting to ward off these powerful and intensely uncomfortable
feelings, develops behavioral strategies that involve the children. One solution
to the pain and anger is to sue for custody of the child and to endeavor to
punish the other parent by seeking his or her exclusion. The internal world of
an alienating parent can have complex origins, which are beyond the scope of
this article.
If the motivating factors are unconscious, the
alienating parent may not feel and/or may not be aware of the feelings and
emotions described above. Unaware parents may deny alienating behavior
convincingly, but nonetheless, be involved in it.
Parents may also be aware of their angry or hopeless
feelings but may consciously desire to protect the child. They tell their
attorneys and the court of their conscious plans; however, despite the conscious
desires, they may, unintentionally and unwittingly, engage in alienating
behavior, driven by less conscious needs.
Frequently, the unconscious or unintentional
alienating behavior results in the milder form of alienation of the child from
the target parent. Nonetheless, it is important to recognize the concrete signs
of alienating behavior in order to thwart its development.
Courts should not tolerate alienating behavior simply
because the intention to alienate is denied.
Neither should the courts predicate a custody award on
the hopes that the behavior witnessed and cited in court is merely a product of
the acrimony generated by the litigation. Parties engaged in a high conflict
divorce may show their worst behavior to all, but it is impossible to predict,
as the courts so often wish they could do, whether this behavior will lessen
after the final resolution of the case. In a case in which the Plaintiff father
was awarded custody against the recommendation of the Guardian ad Litem, the
Marital Master concluded:
"The (Father) has also
demonstrated some behaviors which have been troublesome to the Master as well as
the Guardian ad Litem. The (Father) has been manipulative in the presentation of
this case, the Master concludes that he has inappropriately attempted to
influence and pressure the children into giving negative information about their
mother and he has demonstrated a lack of cooperation and flexibility in
respecting the (Mother's) parental rights. It is the hope of the Master that
these factors have been the result of this litigation and the hostility between
the parties will resolve themselves and not be a factor following this
decree." S.L. v. S.L., Superior Court, 19XX.
Here, the master has been witness to a divorce
impasse, which may not resolve itself without intervention, and the parties'
statements of good intentions should not be relied upon to bring about a
reversal of a behavioral trend already witnessed.
In a "cooperative" divorce, both parents
work together to restructure their own relationship and their family to allow
the children as normal a relationship with each of them as is possible. This
means cooperating as to finances, logistics and schedules as well as actively
supporting the children's emotional relationships with the other parent and the
extended families.
All parties to divorce experience a wide range of
intense emotions, including rage, disappointment, hurt and fear. In
"cooperative" divorces the parties consciously try not to engage in
behavior they understand to be inflammatory to the other side.
However, an angry divorce is not necessarily an
alienating one. Alienation occurs when the parties to divorce or custody
litigation use their children to meet their own emotional needs, as vehicles to
express or carry their intense emotions or as pawns to manipulate as a way of
inflicting retribution on the other side. The focus in determining whether or
not there is alienation in an angry divorce must be not on the degree of rage or
loss expressed, but on behavioral willingness to involve the children.
Parental alienation occurs along a broad continuum,
based on the level of internal distress of the alienating parent, the
vulnerability of the child and the responses of the target parent as well as on
the responses of the external system (family, attorneys, mental health
professionals, the legal system). The range may be from children who experience
significant discomfort at transition times (mild), through children who feel
compelled to keep separate worlds and identities when with each parent
(moderate), to children who refuse to have anything to do with the target parent
and become obsessed with their hatred (severe).
There are alienating parents who are completely
unaware of either their emotional state, the motivation to alienate, or the
effects of their behavior (unconscious), while at the other end of the
continuum, there are parents who absolutely intend to bind the child to
themselves in an exclusive relationship and are explicit in their statements and
behavior (overt).
Recognizing the mild form of alienating behavior is
tricky: the alienating behavior is subtle, and the alienating parent prone to
deny motivation and acts, and driven to verbally assert the opposite of what is
true.
Although such statements are sincerely meant, the
alienating parent's view of the other parent is compromised at this stage, as
indicated by behavior. Not aware of the feelings that motivate the unintentional
alienating behavior, the evaluator must look at the underlying messages that are
given directly to the child. In this milder form there is less polarization of
the external sources of the divorce impasse system (attorneys, courts). The
communications to the child of the regard with which the other parent is held is
the key to detecting alienating behavior.
Examples of mild forms of alienating behavior include:
1.
Little regard for the importance of visitation/contact with
the other parent:
o
"You're welcome to visit with Mom; you make the choice;
I won't force you."
o
No encouragement of visits;
o
No concern over missed visits;
o
No interest in the child's activities or experiences during
visitation (in a positive manner);
2.
Lack of value regarding communication between visits:
o
No encouragement of communication between visits;
o
Little awareness of the distress a child may feel if a visit
or phone call is missed.
3.
Inability to tolerate the presence of the other parent even
at events important to the child:
o
"I won't go to any soccer games if your mother is
there."
4.
Disregard for the importance of the relationship to the
child:
o
Displaying a willingness to apply for and accept a new job
away from the other parent, without regard to the child's relationship with that
parent.
At this stage alienation is most likely to become
obvious during family system transition times, such as when children leave one
home and go to another, when one parent remarries or has another child. The
knowledge that a child needs the other parent may be present, but this rational
belief may become overwhelmed by internal and interactional problems at this
phase.
The alienating parent has some awareness of her
emotional motivations (fear of loss, rage) and little sense of the value of the
target parent. Sometimes, an alienating parent will understand the theoretical
importance of the other parent in the life of her child, but believes that in
her case, the other parent, due to character deficiencies, cannot be important
to the child. Their statements and behaviors are subtle but damaging to the
child.
1.
Communications of dislike of visitation:
o
"You can visit with your Dad, but you know how I feel
about it."
o
"How can you go to see your father when you know...I've
been sick; Aunt B is here..."
o
"Visitation with your Dad is really up to you."
2.
Refusal to hear anything about the other parent (especially
if it is good):
o
"That's between you and your father... (regarding
reports of visitation; plans for visitation);"
o
I don't want to hear about... (what you did with your father)
(especially if it was fun);
3.
Delights in hearing negative news about the other parent;
4.
Refusal to speak directly with the other parent:
o
When the target parent calls, gives the phone to the child,
"It's him," in a disgusted tone of voice.
o
Hangs up phone on the target parent;
o
Silently hands the phone to the child when it's the target
parent calling.
5.
Refusal to allow the target parent physically near:
o
Target parent not allowed out of the car or even on the
property, in the driveway, for pick-up and drop-off visitations;
6.
Doing and undoing statements: Negative comments about the
other parent made and then denied:
o
"There are things I could tell you about your Dad, but
I'm not that kind of person."
o
"Your Dad is an alcoholic; oh, I shouldn't have said
that."
7.
Subtle accusations:
o
"Your Dad wasn't around a lot when you were
little."
o
"Your Dad abandoned me."
8.
Destruction of memorabilia of the target person.
At this stage alienation continues to occur more
frequently during transitional times, but is present in other circumstances.
With moderate forms of alienation, all three divorce impasse systems are
involved. The alienating parent is facing an internal conflict; the alienating
parent is interacting with the spouse in a manner designed to produce conflict;
and the external forces, such as therapists, attorneys and the court, are
involved in the polarization, at least to some degree.
When the alienation is overt, the motivation to
alienate (the intense hatred of the other) is blatant. The alienating parent is
obsessed and sees the target as noxious to himself or herself, the children, and
even the world. A history of the marriage is related which reflects nothing but
the bad times. The target parent was never worthwhile as a spouse or a parent
and is not worthwhile today. Such a parent shows little response to logic, and
little ability to confront reality.
Many alienating parents at this stage entertain the
overt belief that the target parent presents an actual danger of harm to the
children. They present this belief as concrete knowledge that if the children
spend time with the target parent they will be irreparably harmed in some manner
or that they will be brainwashed by the target parent not to value/love the
alienating parent.
1.
Statements about the target parent are delusional or false:
o
"Your Mom doesn't pay support" when there is
evidence to show payment.
o
"Your father doesn't love us" (or "you")
when there is no evidence to that effect.
o
"Your mother drinks too much," "uses
drugs," "smokes," etc. when there is no evidence to support these
statements.,
o
"Your father went out and got the meanest lawyer in
town;"
2.
Inclusion of the children as victims of the target parent's
bad behavior:
o
"Your Mom abandoned us";
o
"Your Dad doesn't love us (or you) anymore;"
3.
Overt criticism of the target parent:
o
"Your Mom is a drug addict/alcoholic/violent
person..."
o
"What's wrong with your Dad; he never/always
does..."
o
"Your mother endangers your health,"
o
"Your father doesn't take good care of you/doesn't feed
you/take you to the doctor/understand you during visits."
4.
The children are required to keep secrets from the target
parent:
o
"Don't tell your Mom where you've been/ who you've seen/
where you are going/ etc."
5.
Threat of withdrawal of love:
o
"I won't love you if you... (see your Dad, etc.)"
o
"I'm the only one who really loves you."
6.
Extreme lack of courtesy to the target parent.
At this stage of alienation, conscious motivation is
always present, and the internal, interactional and external systems are fully
engaged in supporting the alienation process.
By the severe stage, the alienating parent no longer
needs to be active. In terms of the motivation, the alienating parent holds no
value at all for the other parent (whether motivated by fears, emptiness,
helplessness) and the hatred and disdain are completely overt. The alienating
parent will do anything to keep the children away from the target parent.
At this stage the child is so enmeshed with the
alienating parent that he or she agrees totally that the target parent is a
villain and the scum of the earth. The child takes on the alienating parent's
desires, emotions and hatreds and verbalizes them to all as his own. The child
too sees the history of the target parent and family as all negative and is able
to neither remember nor express any positive feeling for the target parent.
These, and overt cases of the previous paragraph, are
the ones that as an attorney invade your private life and lead to emotional
over-involvement, although any high conflict alienation case beginning in the
moderate category can do so.
In the ideal cooperative divorce, there is little or
no alienation occurring. Parents recognize the difference between their own
needs and the needs of their children. They fully believe that their children
have needed both parents throughout the marriage and will continue to need them
after the divorce. Each parent values the role that the other parent can play in
the lives of the children and the different interests and talents the other has
to offer the children. There is no motivation for alienation because of the
value attributed to the other parent.
This ideal is infrequently realized in real life
because divorce is such an intense change of role, life stage and life style for
almost all who go through it. Participants need as much education, support and
information as possible to help mitigate the harms that result from high
conflict divorce.
Certain counties, court systems and other governmental
entities7 are requiring all parents
of children involved in a divorce to attend an educational program designed to
help them understand the impact of the divorce process on themselves and their
children and to recognize the value to children of having both parents involved.
The parents are educated as to the typical stages in divorce and child
development and the impact they can anticipate their divorce having on their
children. The studies of the long-term effects of divorce and the usual problems
that occur are discussed. These programs are designed to be preventative of the
kinds of problems that commonly arise when parents do not understand the
psychological and emotional consequences their divorce has upon themselves and
their children.
Other states require mandatory mediation prior to a
court trial as a way of avoiding litigation. Mediation advocates believe that
mediation is more successful than the courts at avoiding future litigation.
While there have been no studies as to the
effectiveness of these programs in preventing or ameliorating alienation, in one
such program the participants themselves have reported great satisfaction with
the program and have recommended that it be expanded.
Attorneys and therapists are the front line
professionals in most custody battles. They, too, have an obligation to educate
their clients that divorce involves anger, rage, upset, distress, loyalty binds,
and kids and parents who manipulate each other in crisis. The clients must be
helped to understand the normality of these themes and to learn the strategies
for controlling them and outgrowing them. Alternatives to intense battles must
be explored.
It is the duty of the attorney to advocate for her
client. Good representation will include assessing the family system clearly
from the client's point of view, and to advocate for that client's interests
zealously. However, we believe that such zealous advocacy must occur in the
context of the client's long-term interests as a member of a restructuring
family system. Whatever the outcome of the immediate litigation, the client will
remain in the family system with contact and relationship with all other members
of the family system for the rest of his or her life. Long after the lawyers are
gone, the client will live with the effects of the positions taken and the
statements made in litigation. The client may later regret the vitriol and the
permanency of the damage done by a high conflict divorce.
It is the attorney's job to help the client through
the immediacy of the pain and the rage and to help the client see the long-term
view of involved family relations.
Attorneys must also be acutely cognizant of the
divorce impasse system itself and the important part they play in it. Maligning
the other spouse, requiring the client to have no further contact with the
spouse, prohibiting any temporary agreements or a temporary separation can
interfere with a real resolution of the conflict. Zealous advocacy is a poor
excuse for actually damaging a client's long-term familial relations.
Alienation cases present the greatest difficulty for
attorneys. In the advocacy role, an attorney is bound to allow the client to
define the goal of the representation and to advance that position zealously. An
attorney is also bound not to bring or defend frivolous actions. We believe that
actions harmful to children could fall under that prohibition.
If alienation is in progress, accepting at face value
all derogatory comments about the opposing party will ill serve both the client
and the attorney, as the client's judgment is emotionally tainted. It is
incumbent on the attorney to sufficiently explore with the client his motivation
and the reality basis of his beliefs before litigation is undertaken. Careful
and thoughtful exploration with the client about the good times in the marriage
and the positive parenting traits of the other side will give the attorney much
information about both parties, and will tell the attorney just how balanced a
view the client holds.
We believe that under no circumstances should an
attorney encourage a client to gain information about the opposing party from a
child. Nor should an attorney interview a child even if the child is
un-represented. The willingness of a client to directly involve a child in the
litigation should be a red flag that the parent may well be using a child to
further her own agenda, even if the child is apparently acquiescent.
It is crucial to note, however, that we are describing
cases where alienation exists, and other forms of abuse, such as physical or
sexual abuse, do not. If abuse is honestly suspected, safety of the spouse or
children becomes paramount and full evaluation by a competent professional is a
necessity.
Courts must recognize the initial seeds of alienation
and seek information about family structure to examine the degree of risk in the
family: Are the adults using or manipulating the children in furtherance of
their own emotional needs? Are the children vulnerable to alienation?
All children can be enlisted into the battle, but,
generally speaking, the children who are most vulnerable may be overly
dependent, fearful and passive. These children may express guilt feelings about
their parents' divorce, identify with or play the rescuer of the alienating
parent, assume care-taking roles of a parent, and/or feel conditionally loved.
The more vulnerable children pick up and resonate with the parental feelings.
Generally, the children will have little insight into their situation.
The factors that identify families where alienation is
less likely are: abundant positive contact between both parents and the
children; sibling groups who all have good relations with both parents; good
relations of the children with family and friends of both parents; free
communication to the child by others of the good qualities of both parents; lack
of defensiveness on the part of each parent as to the emotions, statements and
criticisms of the other; ability of each parent to discuss schedules and
parenting concerns with the other parent; ability of each parent to accommodate
the schedules and desires of the other.
Many high conflict families view the court as
determining not only custody and visitation, but also making judgments about the
right and wrong, good and bad parenting. Court is seen as a place where one
person is judged to be fit, and the other unfit. The court can help ameliorate
this unfortunate scenario by making explicit the legal and pragmatic grounds for
a decision. If appropriate, the court can declare neutrality on personal and
moral issues that do not expose a child to harm. Compassionate communication
that does not further the anger, loss, shame and humiliation in this public
forum can be immensely healing.
Once an alienation process has been identified, the
court must intervene. Even at the mild or beginning stages there is much work to
be done. There is usually a healthy psychological bond between each of the
parents and the child and at least a cognitive recognition on the part of the
alienating parent that an estrangement between the child and the target parent
is not in the best interests of the child. The alienating parent is frequently
willing to participate in a program to change the direction of the case, if
given the information and the guidance necessary.
Often the alienation at this stage is motivated by
fear that the impending divorce will cause the child to love the alienating
parent less. The finalization of the divorce itself together with specific
education and the therapy described below may ameliorate the situation.
At the mild stage, it is imperative that the family be
engaged in a "family systems" therapy that is focused on changing the
behavior of the parties around the child. The traditional individual therapies
are not helpful, as individual treatment tends to focus on only one side,
therefore potentially increasing the alienation by advocacy for a client. If
individual therapy is necessary for a child or a parent, it must take place with
a therapist who understands the alienation process and who supports the value to
a child of having a relationship with each parent. Family systems work may need
to include the child at some or all sessions.
All therapists engaged with the family must understand
family dynamics and parental alienation, have a systems approach and clearly
understand that children need two parents. The therapists must be strong and
forceful and able to utilize the force of the court through the Guardian ad
Litem. The therapy must be directed at the resolution of the divorce impasse.
The Court ordered divorce impasse therapy must include
all the adults directly involved in the custody of the child. This includes both
parents and any live-in lovers or current spouses and any other adult who lives
in the home of either the alienating parent or the target parent and any other
adult who may be involved in the alienation. A court order may be necessary to
require the warring adults to sit in the same room together, but we believe that
they must actually face each other if possible, or, at a minimum, be involved
with the same systems therapist if meeting together is not recommended.
The Court order must be forceful and explicit. The
rights, responsibilities and duties of each parent must be spelled out
explicitly. Attendance in therapy as required by the therapist must be court
ordered. The custody and visitation schedule may also need to be explicit, with
details of how, when and where pick-ups and drop-offs are to occur. All parties
must understand that a court order cannot be modified unless approved by the
court; if modifications can be made by the family with the agreement of the
systems therapist, this must be made explicit in the order.
Confidentiality will always be an issue that should be
addressed by the court, the parties, lawyers and the therapist. If the parties
are able to agree to confidentiality, it should be written into the court order.
If the therapy is confidential, it should be confidential to all, including the
court and the Guardian ad Litem. The ability of the parties to agree to
confidentiality would be a major step to resolution as it indicates both
motivation and trust of the system.
If the parties cannot agree to confidentiality, the
court should do what it can to insulate the therapist from legal inquiry, with
due regard for the parties constitutional rights.14 The court can order the
attorneys not to speak with the therapist (except for the Guardian ad Litem)
during the therapeutic process, order complete confidentiality for the
therapist's working notes; delay all depositions until further court order, or
otherwise limit the therapist's involvement in the litigation process.
There must be a mechanism for enforcement of the court
order. The court should appoint a Guardian ad Litem who will have the authority,
independent of further court order, to require a complete family system
evaluation if the above treatment is not successful. The order at this stage
should include the mechanism for the payment of both the Guardian ad Litem and
the court ordered evaluation.
The order should also contemplate the need for rapid
and complete intervention, should the parties fail to ameliorate the situation.
We suggest that the court schedule a review hearing at the time it issues the
therapy order, and allow only the Guardian ad Litem to cancel it.
We are hopeful that, in most cases, the court ordered
expensive evaluation will be sufficient sanction to motivate the parents to
genuinely participate in treatment, but the parties must be made to feel the
strength of the court behind the court order. Sanctions for failure to comply
must be explicit. We urge the court to spell out the next stage of intervention
(described below) and include an explanation of what sanctions to expect at a
future date, if necessary.
Intervention for moderate alienation cannot be only
the educational and counseling intervention described for mild alienation.
Education cannot be successful because the alienation at this level is not a
rational process and reason alone will not change irrational behavior. At this
level the alienating parent's individual internal difficulties have become so
intense that insight and judgment as to the target parent is impaired. Further,
the alienating parent's interactions with and about the target parent are based
not on observed behavior but on inner fears and serve to reaffirm the belief
that the target parent is bad. Additionally, external forces (individual
therapists, attorneys, extended family) have become polarized on behalf of one
party and serve to perpetuate the alienation.
We believe that the family system must be thoroughly
evaluated by a professional or a team of professionals competent in the
"family systems" approach. The evaluation must be of the entire
system, including all adults directly involved in the life of the child, as
described above. The evaluation must be generated by a single source or team;
multiple individual psychological evaluations will not be able to advise the
court as to the inter-relational issues that are affecting the functioning of
the family.
The purpose of the evaluation is to 1.) identify the
specific motivations and behaviors that are causing the divorce impasse or
subsequent alienation; 2.) to assess whether or not individual therapy might be
beneficial for any party to help resolve intra-psychic issues; and 3.) to
develop a complete behavioral plan to intervene in the alienation process.
The behavioral assessment must be very specific as to
the motivations for the impasse behaviors that are causing the alienation, and
the changes necessary to alter the system. Once the behaviors and beliefs are
identified, the evaluator can make recommendations as to specific behavioral
measures to counter the alienation. The recommendations must be sufficiently
detailed and specific to be quantifiable.
We wish to emphasize here that individual
psychological evaluations and therapies, or "talking" group or family
therapies are of minimal value in these situations, as they may only serve to
perpetuate the alienation process. The goal of appropriate treatment is not only
to gain understanding of the divorce impasse but also to behaviorally reduce or
eliminate alienation within the system. In order to intervene in alienation,
behavior and group dynamics must be modified.
We suggest the Individual Educational Plan (the IEP)
as a model. The Recommendations must be as specific and goal oriented as the
IEP, and compliance must be targeted in much the same manner. Compliance should
be approximately 70% compliance the first two months; 80% the third or fourth
month; 90% the fifth month and thereafter.
For example:
1.
The child will see Target Parent X times per week without
parental conflict at times of transition;
2.
The child will telephone Target Parent X times per week and
talk about positive things for a minute or two; (depending on the age of the
child); (depending upon whether telephone calls to a hostile environment would
be beneficial or not to the child);
3.
During the visit, the Alienating Parent may call only
"x" number of times (or may not call at all);
4.
The child will send Target Parent a picture or painting in
the mail once per week, with a positive note attached;
5.
The child will bring home from visits a project done or a
note to Alienating Parent about what was enjoyed during each visit.
6.
The Target Parent will provide a photograph of himself to the
child, and the Alienating Parent shall encourage the child to display it.
Essentially, what the evaluators must do is to
understand the impasse, address it directly and compassionately. Clearly, this
plan will work best if the internal and the interactional issues which created
the divorce impasse are concurrently addressed and alleviated. At the same time
the court must mandate the occurrence of specific behaviors that counteract the
battle forces. The court must make the parents demonstrate that they can follow
a plan whose ultimate goal is the mutuality of interest, even if they don't feel
it. It is our position that the alienating parent must become the welcoming
parent in deed if not in thought.
Finally, the plan must cover a specific and lengthy
period of time during which behavioral requirements of the parties and the child
are explicitly laid out. This will provide the parties sufficient predictability
to calm the system down and to allow every one in it to get used to the idea
that different relationships between the members are going to be established in
a predictable manner. We suggest that the plan cover approximately six months
with an automatic court review at that time.
Procedurally, we suggest that the Guardian ad Litem be
authorized at the first stage of intervention, as noted above, to require the
evaluation, and that the Guardian's request have the force of the court behind
it. When the evaluation is commenced, the Guardian ad Litem simultaneously
should request the Court to schedule a hearing to be held before the Court when
the evaluation is complete. At the hearing, all parties could present to the
court proposed remedial measures; the Guardian ad Litem would present the
evaluator's report and recommendations which will likely include individual
therapy to address the impasse and an IEP-like behavioral management program.
The Court should then issue a detailed, quantifiable, specific order with
sanctions enumerated, as to the behavioral changes necessary to ameliorate the
alienation and order the parties into therapy, if recommended.
There will be no confidentiality by the time a family
is in this stage of alienation and need for intervention. The court needs to be
able to monitor the progress of the family through the behavior management
therapy. The behavior management therapist will need to be able to communicate
with any individual therapists involved with family members so that there is a
full and complete exchange of information and no family secrets.
Creative sanctions must stand behind the court order
as compliance at this stage will be motivated only by fear. The ultimate
sanction is a change of custody, but there are many others we could suggest. The
legal system has traditionally used fines and loss of liberty as punishment for
failure to comply with court orders. Certainly, these are sanctions that could
be used in these cases, but they may harm or confuse the children as much as the
contemnor. Obviously, an award of attorney's fees, the threat of attorney's
fees, the threat of weekend jail time may be a useful sanction. Threats of
transferring or assigning responsibility for the Guardian ad Litem's fees, the
cost of the evaluation, the costs of the child's therapy or even therapy for the
other parent can all be used to motivate compliance in this early stage of
intervention, subject always to the best interests of the child.
We also suggest that the court could shift both time
(expand visitation or award cherished holidays and birthdays to the complying
parent) and function (assign areas of traditionally joint parental authority
such as medical care, education) in favor of the target parent, both as
appropriate sanctions, and as possible preparation for the ultimate sanction, a
change in custody.
The careful monitoring of such a detailed court order
is an essential piece of this intervention, and we suggest that there be a
monitoring team to do it. The Guardian ad Litem and a therapist, most likely the
evaluator or the original post-divorce counselor, should work together
monitoring compliance. Such monitoring perforce will be largely through reports
of the principles involved, the parents and the child, but can also be done by
teachers, individual therapists, friends, etc. through reports to the Guardian
ad Litem. For instance, teachers can be asked to report on the emotional
condition of a child before and after visits and to report on any information
the child offers in school. A child can be asked where he keeps the photograph
of the Target Parent (as an indicator of the degree of comfort the child has in
the display in the allegedly hostile environment).
A team is necessary to lessen the danger of the
professionals becoming caught into the polarization in the family system. In
extreme cases the monitoring team may even want to have a third consultant
monitor available to them to oversee the case as a more distant figure, not
caught up in the everyday details these kinds of cases chronically present. A
consultant monitor could stay aloof of the various warring factions.
If the parties fail to comply with the court orders
there needs to be swift access to the courts and a second look at the custody
situation.
If the above described interventions fail and the
child remains virtually without relationship to the target parent a different
level of intervention is warranted. If the alienating behavior continues despite
the education, the post divorce counseling, impasse resolution therapy, and the
specific behavior management intervention, one can conclude as a matter of
established fact that the alienating parent does not have the capacity to foster
a relationship with the other parent.
There is a considerable body of research that
specifically examines the effects on children of single parent homes. A full
review of this literature is beyond the scope of this paper, but, in general,
the evidence is overwhelming that in father-absent homes, boys have lower self
esteem, are more likely to be rejected by peers and may experience deficits in
cognitive functioning. Girls may be less affected than boys in father-absent
homes, but the research does show negative effects on girls' social and
cognitive development.
There is an additional body of research on reactions
of children to high conflict divorce. Children who experience high degrees of
conflict between parents during divorce show more emotional difficulty than
those whose parents are able to better resolve their difficulties. Children
whose parents are in conflict "are more likely to feel caught, and children
who feel caught are more likely to experience depression, anxiety, and, to a
lesser degree, participate in deviant behavior."
The deliberate alienation by one parent of the other,
unmodified by the numerous interventions described above, is psychologically
harmful to the child.
"It is important...to
appreciate that a parent who inculcates a parental alienation syndrome in a
child is indeed perpetrating a from of emotional abuse in that such programming
may not only produce lifelong alienation from a loving parent, but lifelong
psychiatric disturbance in the child."
A change of custody must be contemplated under the
best interests standard as the Perrault standard of a "strong possibility
of harm" has been met.
The court must determine what custody location would
be the most beneficial to the child, although in many of these cases the courts
actually have to decide which placement is the least damaging to the child. A
comparative determination of the custodial capacity of each parent must be done.
The court or the parties may well have sufficient information at this point to
litigate the issue of the best interests of the child. If not, parenting
evaluations become crucial.
Knowing that the alienating parent does not have the
ability to foster a relationship between the child and the target parent, the
issue before the court will be, does the target parent offer the child
sufficient parenting capacity to outweigh that very serious harm. We believe
that, because of the very nature of the harm to the child from the lack of a
relationship with the target parent, the court must determine whether the target
parent has adequate parenting capacity.
If the target parent shows a parenting ability that is
adequate as defined in the research and fits the needs of the child and there is
a reasonable likelihood that the target parent will foster the relationship of
the child with the alienating parent, the court should seriously consider
modifying custody, unless the child is so enmeshed with the alienating parent
that a change in custody would be permanently harmful to the child. If the
target parent is not adequate, it becomes incumbent on the court to see if there
are other family members or foster care available to take the child, someone to
help the child create and maintain a relationship with each of his parents.
If the alienation is allowed to progress and the child
has few resources with which to resist the influence of the alienating parent,
the child may become fully "enmeshed" with the alienating parent. It
is estimated that very few children suffer this harm (between 1% and 5% of
alienation cases) but there are those situations where it is impossible to
encourage or even force a child to be with the target parent. These children
have only extremely hostile feelings for the target parent, and no amount of
evidence disproving their stated reasons for their hatred will serve to dissuade
them. Enmeshed children have incorporated the alienating parent's hatreds,
emotions and desires with regard to the target parent, such that it is often
difficult to discern who is expressing them.
In some of these cases, the enmeshment is so complete
that it would cause the child to suffer an emotional breakdown of devastating
proportions if custody were awarded to the hated target parent. In these cases,
the child's sense of self is totally dependent on the relationship of the
alienating parent, and a loss of that relationship would mean destruction of the
self. Certainly, attempts to switch custody would be fought against and
undermined by the child: tactics would include runaways; reports by the child of
physical/sexual abuse by the hated parent; reports by the child of self
destructive behaviors such as drug abuse, suicide attempts; refusal to
participate in school; etc.
In these rare cases, the child must stay with the
alienating parent, as it is not proper to use a child to punish a parent for
misbehavior. For whatever solace it is, the target parent must be assured that
at some point children do seek out the other parent, and the relationship is not
lost forever.
When there is no relationship allowed or allowable
between the target parent and the enmeshed child, some courts have suspended a
target parent's child support or allowed the target parent to escrow child
support so that the target parent does not have to provide financial assistance
to the household that hates him so profoundly. However, even this sanction must
be used cautiously as the detriment may be experienced by the child, not the
alienating parent.
"Weapons" are the false allegations by the
alienating parent of behavior on the part of the target parent inimical to the
welfare of the child. The most commonly used weapons are false allegations of:
or threats of:
Even when such an allegation is made in the context of
high conflict litigation, it must be taken very seriously on its face and fully
investigated to determine its validity. Each allegation accuses the target
parent of behavior harmful to the child. Safety of the child is paramount.
Neither the courts, the lawyers, the therapists or, perhaps, the parents, want
to risk the welfare of the child when there is a possibility that the
accusations might be true.
By their very nature, the allegations shift the
emphasis of investigation onto the accused, the target parent. Several of the
accusations are of very private behavior, in the home only, which behaviors are
difficult to prove and/or disprove.
Most domestic violence remains invisible despite the
increase in awareness of the problem. Under New Hampshire procedures outlined in
NH RSA 173-B, a complaint of domestic violence taken to court together with a
request for exclusive custody can give the complainant a considerable advantage
in the legal system.
Custody can be gained in an ex-parte proceeding. A
sworn claim of violence or the threat of violence is all that is needed.
Extrinsic proof of danger or harm is rarely requested, and Judges make no
inquiry whatsoever into the nature of prevailing custodial arrangements. In most
cases, the procedures are appropriate and the protection given critical to the
life and safety of domestic violence victims and their children. In rare cases,
the procedures afforded to domestic violence victims are manipulated to gain
advantage in custody cases without being grounded in real fear of physical
violence.
Attorneys are bound by their own ethical rules not to
knowingly mislead a tribunal. It is highly questionable practice to refer
clients who have not suffered domestic violence or the serious threat of it to
court for the quick relief afforded such victims under NH RSA 173-B, although
the New Hampshire District Court Judges report an increasing number of such
custody cases. Advising a client to gain a tactical advantage by using the
emergency procedures afforded under NH RSA 173-B may violate the Code of
Professional Conduct even if the attorney is not involved in the presentation of
the case to the court.
Allegations of abuse of a child (physical and/or
sexual) may be fabricated but may also be absolutely accurate; in all instances,
but especially in the context of a custody battle, such allegations need to be
dealt with immediately by a competent professional who fully understands: (1)
sexual and/or physical abuse of children; (2) family systems; (3) divorce and
custody litigation and the impact of lawyers and the legal system.
Sexuality triggers intense feelings in all listeners,
and fear and panic may, at times, obscure reason. Some litigants have learned to
use to their advantage the irrationality that can attend allegations of sexual
abuse. We caution all involved: get professional intervention immediately with a
coordinated, systemic evaluation of both the allegations of sexual abuse and the
family system that has produced the allegation.
Allegations of physical abuse are not used often in
the context of custody litigation, perhaps because physical abuse is usually
easier to detect than sexual abuse, making it easier to prove or disprove. When
the allegations are made and sufficiently established to cause concern in the
Superior Court, the court or the parties involved must refer the case to the
Division for Children and Youth Services under NH RSA 169-C.
If it is unclear that there is in fact abuse (sexual
or physical), then the allegations may have been produced by the intensity of
feelings about the divorce, the fear of abuse and a misreading of a particular
situation. However, the failure to disprove the allegations will paralyze the
system to the advantage of the alienating parent because the emphasis of the
Court and the professionals must be on the protection and safety of the child.
Unless disproved, these suspicious allegations cast a pall of potential harm to
the child that no one person, institution or agency will have courage enough to
ignore.
We believe that it is important to establish a
baseline of facts upon which all persons involved in the divorce impasse system,
family and professionals alike, can rely for future decisions regarding
visitation and custody. Because of the emotionally charged atmosphere sexual and
physical abuse charges generate, we believe that no one person should be
responsible for establishing those facts. Therefore, we suggest that advisory
juries be empanelled to aid the judge in his findings regarding the allegations
of abuse. NH RSA 519:23; NH RSA 491:16. Unless
this is done and reliable facts are established in these cases, an accused will
always be treated as guilty unless proven innocent with regards to contact with
the children.
Accusations of alcoholism, mental illness or
homosexuality also place a burden on the target parent to prove fitness to be
with the child, but these factors are less potent in most custody litigation
today than they used to be. It is easier to prove or disprove alcohol or drug
abuse or mental illness as the behavior is not necessarily private. These
accusations also do not directly implicate parenting capacity in the same way
allegations of physical or sexual violence do, and the courts are routinely
requiring that litigants prove a nexus between the alleged behavior and harm to
the child.
Another weapon is the threat of moving, or the actual
flight of the alienating parent. The court must immediately look to the motive,
spoken or unspoken, for the move; if the motivation is to keep the target parent
away, this is a clear red flag that the alienating parent will stop at nothing
to achieve an exclusive relationship with the child.
No matter when a "weapon" shows up in the
course of the litigation, the fact of its allegation must lead directly to a
full systems evaluation by a qualified, competent professional. It serves as an
indication that the alienating parent knows no bounds and that education,
information and behavior management will be insufficient interventions. The
courts must look to the long term best interests of the child in terms of
custody because the alienation process will continue. The use of a weapon should
catalyze the system to the evaluation of the custodial capacities of each
parent. An expert must look at the entire system, assess the truth and relevance
of the allegations, the motivation for the allegations, assess the safety and
welfare of the child and make recommendations as to the best placement and
visitation arrangements for the child.
A partnership of judges, attorneys, and mental health
professionals is critical in the resolution of high conflict alienation cases. A
judge has the power to order changes but is not readily available. Lawyers are
more available, but do not necessarily have proper understandings. As advocates,
they can easily become part of a divorce impasse system, aggravating an already
inflamed system. Mental health professionals must have a systems understanding
and usually are available, but do not have the power of the court, nor the legal
understandings of the attorney. A partnership is essential.
Attorneys must help clients discern long term
interests regarding children, the meanings behind a custody battle (hurt,
revenge, fears) and ensuing alienation. Attorneys must offer education about the
importance of co-parenting and moving beyond the battleground. Attorneys must
treat with caution and trepidation a client who sees a divorcing spouse as all
bad and must avoid joining with the client in further escalating this belief.
Attorneys must refer to mental health professionals trained in family systems,
those who need someone who will work for the best interest of the whole family.
Attorneys must recognize when they have been enlisted as active parties in the
polarization alienation conflict, and seek consultation so as not to further
escalate the process.
Courts must act decisively and explicitly in cases of
high conflict divorce and alienation. Orders must be pragmatic and the grounds
for decisions must be explained in terms that make it less likely that one party
can claim a moral victory and the other feel shame of defeat. Courts must use
their knowledge and power to understand the family system, to recognize high
conflict alienation cases, and to make appropriate, timely and specific
referrals and recommendations. By recognizing alienation in its early forms,
prevention of future harm to the child and family may well be possible.
Intervention, at any point along the continuum of harm is crucial to prevent
further harm.