Dr. Dianne Bartlow interviewed judges for a chapter in my book about the court response to the pattern of child murders related to custody cases. The judges who participated tended to be the best judges with the most training in domestic violence which is why they agreed to take the time for the interviews. Lawyers and students can learn a lot by reading the judges’ discussion of domestic violence issues. Some of the judges said they didn’t think any of their colleagues would use Parental Alienation Syndrome because it has been so discredited.
I wish that was true, but we continue to see many cases in which children’s lives are destroyed because the judges failed to discredit Parental Alienation Syndrome. More commonly they use Parental Alienation Syndrome by another name like alienation or parental alienation. When it is used to limit protective mothers to supervised or no visitation and when it is used to assume that problems in a relationship between an allegedly abusive father and the children must be caused by alienation, the courts are using Parental Alienation Syndrome. They do this despite the lack of any scientific basis, rejection from the DSM-V which would include all valid diagnoses and disapproval from every legitimate professional association. Judges who use Parental Alienation Syndrome by any name are not among the good judges and should not be hearing custody cases.
Response From Good Judges
Parental Alienation Syndrome and alienation are such incendiary topics that there is a tendency to roll out many of the strong arguments and research that confirm it should never be used. I have heard good judges (and many others) point out that of course parents, even in good relationships say bad things about their partners in front of the children. Alienation has become such a charged topic that it might be helpful for a reasoned and unemotional discussion about how good judges should evaluate alienation separate from any claims of Parental Alienation Syndrome. Here are some considerations good judges should keep in mind.
Abuse Reports Not Alienation: Some of the judges interviewed by Dr. Bartlow made the important point that courts should not treat reports of abuse as if this was alienation. Children need to know that abusive behaviors are not acceptable. One of the reasons boys who witness domestic violence are at greater risk for abusing future partners and girls for being abused by future partners is because the lack of consequences create a dangerous message that this behavior is acceptable. Discussing abuse with children encourages them to speak openly about their feelings and concerns.
I have heard some evaluators make claims about “unconscious alienation” where mothers act in ways that show she is afraid of the father even if not intending to do so. Even worse some courts have accepted this nonsense. If a mother is showing her fear it is because her abuser is doing something that scares her. This is critically important to the children because this fear leads to stress in mothers and children that undermines their health and safety.
A finding by a court or other agency or officials that disbelieves reports of abuse does not mean the reports are untrue, much less a deliberate fabrication. Sufficient evidence might not be available or might not be presented. The complaining party may not have been able to overcome their burden of proof.
The Saunders’ study found that many court and other professionals do not have the specific training they need to recognize domestic violence. Superior financial resources may have given the abuser an unfair advantage. This is why there are many cases where courts initially denied abuse claims but subsequent events confirmed the original reports.
All this means that good judges should require separate and convincing evidence of deliberate false reports before assuming there is an alienation issue. This is especially true in sexual abuse cases which are especially difficult to prove and face tremendous skepticism.
What is the Harm? The purpose in asking this question is not to deny there is harm but to articulate what the actual harm is. Alienation does not rise to a health or safety risk unless it results in ending the relationship between parent and child. When a parent makes false statements about the other parent, the most likely result is that it will harm the relationship with the parent making that false claim. Any damage to a relationship based on negative statements in the context of a custody dispute is likely to be temporary.
Such statements are much less likely to create problems if the parent about whom the statements are made has a close and loving relationship with the child. It is much harder to convince a child a parent is a bad person when the child has experienced something very different.
Alienation claims are often based on generalizations and speculation so it is important for judges to look for specific facts. What is the alienating parent alleged to have said or done to undermine the relationship and what is the specific proof this actually occurred? Did the complaining parent do anything that contributed to any problems in the relationship? If the parent is having regular contact with the child it would seem like any “alienation” is not creating a serious or long-term problem. What can the complaining parent do to improve the relationship?
“Alienation” was brought into custody courts through unscientific theories designed to help abusive fathers and enrich the cottage industry of professionals who help them. This means the significance of alienation is often exaggerated or worse. Looking for specifics and considering alienation in the context of other issues can help a court give claims of alienation a more realistic significance depending on the circumstances in the case.
What is the Cause of the Bad Relationship? Fathers with poor relationships with their children would like to believe it is caused by the mother, but often this is wrong. One of the fallacies of unscientific alienation theories is to assume that problems in the relationship must have been caused by alienation. Research shows that a large majority contested cases are really domestic violence cases. Organizations and professionals who support abusers encourage them to seek custody even when they had limited involvement in caring for the children during the relationship. There are many common tactics abusers use to gain custody, but judges and other neutral professionals are rarely trained in recognizing these tactics.
Joan Meier has advocated a practice in the typical contested custody case in which the mother claims domestic violence and, or child abuse and the father counters with allegations of alienation. Professor Meier recommends that the court first make a determination regarding the abuse complaints. Since mothers make deliberate false complaints less than 2% of the time, this will usually resolve the custody issues.
If the father has committed abuse this will be the cause of the poor relationship and it is far more consequential to the children than the alienation claims in the case. Children tend to love their parents, even very flawed parents, so when children strongly object to visiting a parent there is usually a good reason. Practices that seek to force children into relationships against their will can cause severe harm to the children and tend to suppress information courts need to understand a case.
What Did She Do? The most common context of alienation claims is that fathers accused of abuse counter with claims of alienation. They are claiming the mother said or did something to harm his relationship with the children. But where does this information come from?
In most cases the father would not be present when the alleged actions occurred. He might say the children told him, but that is hearsay and God knows what he did to convince the children to repeat such claims.
More commonly he is just speculating based on his poor relationship with the children. That is Parental Alienation Syndrome, and so should not be considered. The point is that with many of these claims there is no real evidence to support the claim.
The most common form of alienation that actually occurs in custody court cases is better described as domestic violence by proxy.
The Batterer as Parent found that all batterers including “low level” (verbal and emotional) abusers engage in harmful parenting practices that include undermining the mother’s relationship, teaching bad values (sexism) and setting a poor example.
In many cases, particularly where evaluators and other court professionals do not have specific training in screening for domestic violence, the court grants custody to the alleged abuser based on the belief he is more likely to promote the relationship with the mother. Instead he uses the control granted by the court to interfere with the mother’s contact with the children and destroy the relationship. This is exactly what we would expect an abuser to do and it confirms the mother’s original reports.
If a mother similarly interfered with the father’s relationship she would be severely punished, but the courts rarely take genuine alienation by fathers as seriously. Some of the judges interviewed by Dr. Bartlow said they believe other judges are influenced by the fact that so many fathers abandon their children. I think this is why courts often take alienation by fathers far less seriously.
It is important for good judges to be aware how easily gender bias can be used without realizing we are doing it. A good way to check is to consider how an issue would have been handled if the genders were reversed.
Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody Visitation Recommendations Author: Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D., Richard M. Tolman, Ph.D.