Even though these cases are a small minority of cases, they take up an inordinate amount of time in your law office and in the court. More often than not they end with the complete loss of parental contact which carries with it poor outcomes for the child.
Since the mid 1980’s this phenomenon has erroneously been called “parental alienation syndrome” as an umbrella term for all manner of resistance. The DSM-V has chosen not to identify the phenomenon as a syndrome. So, presenting it as a syndrome in trial testimony should not meet the Daubert test. Research experts in the field have found that the factors involved are so rarely purely the matter of one evil parent alienating the child against the other model parent, that focusing on a parent’s actions by using the term “parental alienation” to describe all forms of this dynamic is too narrow and loses sight of the child. Therefore, let us call the child an estranged child and the parents either the favored or aligned parent and the rejected or alienated parent. When we talk about estrangement we will also use terms such as realistic or unrealistic estrangement. And rather than talking about all protective actions by the aligned parent as alienating we will discuss it in the form of gatekeeping. These terms have very specific meanings in the research literature, and must be used carefully.
As the action plays out in our offices and courts, the big fight is always: is the child justified in rejecting the parent due to some danger presented by that parent; or is there some active alienation occurring? If, in fact, the estrangement is justified, we say that the gatekeeping coming from the favored parent is appropriate – e.g. the rejected parent is physically or emotionally abusive or a danger to the child as a result of drug abuse or alcoholism or intimate family violence.
More often than not, the case is a hybrid case – a mix of inappropriate gatekeeping on the part of the aligned parent, poor parenting from the estranged parent, the child’s personality and age, and outside forces in the family’s environment. Ferreting out the factors that went into creating this toxic cocktail is the important job of both mental health professionals and the attorney.
So what’s the harm? If a child doesn’t want contact with a parent and that parent has some parenting difficulties, why not just leave it alone and stop trying to bring the two together? The consequences to the child are severe.
One of the most devastating consequences is the lesson the child learns – that avoidance is the proper solution to difficult situations and conflict.
Best practices for lawyers working in this arena should focus on three themes: 1) This is a case requiring intervention with the whole family, not just the child or the child and rejected parent. 2) It takes a team of legal and mental health professionals acting as a team – pulling in the same direction and not pulling against one another. This team creates the container of expectations, close monitoring and consequences for failure. 3) And number 3 – Because estrangement can become more entrenched as time goes by, TIME is the enemy. Work fast.
Characteristics of a good attorney include 1) An inquiring mind and healthy skepticism; 2) Openness to seeing the vulnerabilities of your client; 3) willingness to be a team player; 4) able to acknowledge the possibility that what your client wants may not be what’s good for the child; and 5)appreciation of the complexity of the case.
Don’t adopt your client’s story without question. Do keep an open and inquiring mind about the whole family system. Don’t interview the children. Do refer the children to an ethical, experienced therapist for assessment. Don’t scream “parental alienation” – that’s a conclusion, not a description and you’ll embarrass yourself if you use the term “syndrome.” Do describe the behaviors, facts, concerns you are seeing. Don’t delay the process or hearings. Do get to the judge quickly and ask for a team meeting.
The judge is an essential member of the team. She is the role model for good parenting – spelling out expectations, using the bully pulpit to educate and persuade, and creating accountability by responding appropriately to misbehaviors. And the judge has the authority to order appropriate interventions that can reintegrate the family system.
The ideal team is made up of the judge, the attorneys, the therapists for the family members, and a therapeutic coordinator, and perhaps minor’s counsel. This is an expensive prospect, and can be whittled down to the absolute essentials of a family therapist and the judge. The judge is the team leader and active participant; the attorneys are supportive of the team process and not adversarial; the parents give the therapists authorization to talk to one another and to the coordinator who talks to the legal team members. The team creates the specific and detailed court order regarding both the parenting schedule and the parents roles and responsibilities, but also includes the intervention process and description of the roles and responsibilities of each of the team members. The orders will state the objectives of the intervention, the timing of the frequent return to the court, and the consequences of a violation of the court orders.
It takes practice and expertise; but, if the team of legal and mental health professionals avoids delays, creates detailed court orders and meets frequently to manage the case and share information, the child may be lucky enough to have a healthy relationship with both parents.