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Parental Alienation Case Law (Document last updated 04/25/2011: 179 items)
Copied From: http://www.warshak.com/alienation/paslegal.html
RECENT HIGHER COURT DECISIONS RE:
PARENTAL ALIENATION AND PARENTAL ALIENATION SYNDROME
In the following cases, a higher court affirmed a lower's court's ruling based, in part, on findings regarding allegations of parental alienation. My explanatory text is italicized and blue. When words are italicized in the excerpts below, the emphasis has been added to draw attention to the inclusion of concepts related to parental alienation and parental alienation syndrome. Although these court decisions are public record, other than the case citation, the names of the parents and children have been redacted in the excerpts.
UNITED STATESMATTER OF BOND v. MacLEOD 2011 NY Slip Op 03153 509360.Appellate Division of the Supreme Court of New York, Third Department. Decided April 21, 2011.Based upon the expressed preferences of 13-year-old and 11-year-old children, and the mother ceasing her contacts with the children in the face of their protests, the attorney for the children sought to end the mother's parenting time. The Appellate Court upheld as credible the Family Court's finding that the mother stopped the contacts out of frustration in response to the children's repeated refusals to see her. The attorney for the children cited other reasons for the children's rejection of their mother, including a one-time argument between the daughter and the maternal grandmother in which the mother chose not to intervene, the mother's failure to attend the children's extracurricular activities, and the children's dislike of the mother's boyfriend. The Appellate Court did not find these reasons compelling.
From the Appellate Court's decision: "Although the children's desires regarding visitation should be considered, Family Court appropriately noted that their wishes are not determinative (see Matter of Sinnott-Turner v Kolba, 60 A.D.3d 774, 775 ) and, in any event, the court indicated that it believed some degree of parental alienation by the father had occurred (see Matter of Bronson v Bronson, 63 A.D.3d 1205, 1207 ). Based on the foregoing, we do not find that the termination of the mother's visitation would serve the children's best interests."
This case is another in a series suggesting that courts are beginning to understand the complex dynamics of parental alienation. As alienated parents know, children's refusal to follow the court-ordered parenting schedule can be a formidable obstacle to contact. While I recommend in my book, Divorce Poison, that rejected parents should not passively accept the lack of contact, in some situations this is the least detrimental option. Even when it is not advisable, it is important for courts to appreciate that acquiescing to the children's demands is a very common error made by rejected parents (and by some courts). Hanging in when children repeatedly refuse contact is tough. Moreover, the parent may be acting on advice from a therapist who hopes that a cooling off period will help heal the relationship.
The decisions by the Family Court and the Appellate Court suggest that the judges understand that the reasons offered by the children's attorney for ending the children's contact with their mother fail to justify such a tragic outcome. When compared to the gravity of ending a parent-child relationship, the reasons are trivial. In addition, the Appellate Court explicitly recognized that the father played a role in the children's estrangement from their mother - "some degree of parental alienation by the father had occurred" - thus undercutting the argument that the children's preferences were reasonable and a guide to their best interests. Both courts noted that children's expressed preferences are not determinative. For an analysis of the hazards of relying on children's stated wishes in custody disputes, see my peer-reviewed article, Payoffs and Pitfalls of Listening to Children, and my lecture on the DVD, Benefits and Hazards of Involving Children in Custody Decisions.
THE SUPREME COURT OF NEW HAMPSHIRE
Portsmouth Family Division No. 2009-806
IN THE MATTER OF JAMES J. MILLER AND JANET S. TODD
Opinion Issued: March 31, 2011Vacated the lower court's award of custody to a mother who was found to be alienating her children from their father.
After effectively interfering with the father-child relationship, the trial court awarded custody to the mother primarily because the children had spent the majority of their lives with her and that is where they feel most comfortable. This is typical in cases where one parent has effectively interfered in the children's relationship with the other parent. The absence of contact establishes a status quo that the court then feels bound to honor in order to spare the children a drastic change in their lives.
The Supreme Court recognized that the father was denied contact with his children for more than two years as a result of unfounded allegations of abuse, and that awarding custody to the mother because of the lack of father-child contacts, raises a concern that the mother is rewarded for violating court orders.
The court quoted the Vermont Supreme Court: "Although obviously well intended, the court's decision effectively condoned a parent's willful alienation of a child from the other parent. Its ruling sends the unacceptable message that others might, with impunity, engage in similar misconduct. Left undisturbed, the court's decision would nullify the principle that the best interests of the child are furthered through a healthy and loving relationship with both parents."
This reasoning gives voice to the biggest complaint I hear from parents regarding their custody litigation: repeated violations of orders go unpunished, with some parents making a mockery of the court's authority.
The court cited favorably an opinion from a Vermont case: "Across the country, the great weight of authority holds that conduct by one parent that tends to alienate the child's affections from the other is so inimical to the child's welfare as to be grounds for a denial of custody to, or a change of custody from, the parent guilty of such conduct."
"[A] child's best interests are plainly furthered by nurturing the child's relationship with both parents, and a sustained course of conduct by one parent designed to interfere in the child's relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent."
The court also quoted it's opinion in a prior NH case: "The obstruction by a custodial parent of visitation between a child and the noncustodial parent may, if continuous, constitute behavior so inconsistent with the best interests of the child as to raise a strong possibility that the child will be harmed." Read the entire decision.
In re MACKENZIE F., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. SHARON P., et al., Defendants and Respondents; MACKENZIE F., Appellant. No. G043146. Court of Appeals of California, Fourth District, Division Three. Filed September 20, 2010.
This decision illustrates the importance of expert witnesses showing that they considered a child's special needs in reaching their opinions. This court found that the diagnosis of Autism Spectrum Disorder or Asperger's Syndrome could have affected the child's negative behavior toward her father and that the experts did not give appropriate consideration to this possibility. The case cites the decision in In re Brison C. (2000) 81 Cal.App.4th 1373, 1379, in which the Appellate court ruled that "Brison's aversion to his father does not inherently prove serious emotional disturbance or unhealthy parental alienation." Such a decision runs counter to the assertions by advocacy groups that courts automatically accept allegations of alienating behavior and fail to discriminate among the various reasons for children's rejection of a parent.
SANCHEZ v. HERNANDEZ, SANDRA SANCHEZ, Appellant,v.CARLOS A. HERNANDEZ, Appellee.No. 4D09-15.District Court of Appeal of Florida, Fourth District.September 8, 2010.This decision emphasizes that the mere allegation of parental alienation is insufficient to establish its existence. This type of case contradicts the propaganda espoused by radical advocates who believe that judges, en masse, automatically award custody to the parent who alleges that the other has alienated the child. Attorneys with clients who have been accused of alienating a child should educate themselves about the most common errors made when mental health professionals misdiagnose parental alienation syndrome.
"Although the mother threatened to prevent the father from exercising his visitation rights with the child, she never actually followed through with these threats. The guardian ad litem's report states she believed the mother 'is capable of facilitating a parent/child relationship between the child and the father and that the child has bonded with the father.' If a finding of parental alienation is based upon communication difficulties between the parents, this is not sufficient evidence that the father's visitation rights have been denied. Id. at 361. In fact, the evidence demonstrates that the father was allowed to visit the child. Thus, no competent evidence was presented that the child was alienated from her father."
In re the Marriage of: BARBARA HOLLINGSHEAD, fna WILSON, Appellant, and ERNEST R. WILSON Respondent. No. 26593-5-III, Consolidated with No. 27225-7-III, No. 27501-9-III. Court of Appeals of Washington, Division Three. Filed: August 17, 2010.The Court of Appeals determined that the "[mother']s actions have been willful, in bad faith, spiteful and vexatious." The Court upheld the trial court's decision in fashioning a parenting plan and ordering unsupervised visitation between the father and children, finding the mother in contempt for her willful and bad aith violation of the court's orders, and awarding attorneys fees and costs to the father.
The trial court found that the mother was "doing everything within her power to alienate these children from their father," and she "is determined to roadblock [father]'s relationship with his children." An interesting aspect of the case is that the trial judge recused himself because of his strong emotional reactions to the mother's behavior, saying "I find that the effect that she's had on these kids is serious and long-lasting." The next Commissioner in the case denied [mother]'s motion to change venue in order to prevent [mother] from continuing to 'manipulate the legal system to the detriment of father.'"
In the Matter of the Custody of D. T. J. S-B, a Minor Child. CHARLES ANDREW BUXTON, Co-Petitioner-Appellant, v. ERICA LYNN STORM, Co-Petitioner-Respondent. 020362434, A136958. Court of Appeals of Oregon. Submitted on December 4, 2009. Filed: August 11, 2010.The trial court found that increased conflict between the parents had a detrimental effect on the child and constitutes a substantial change in circumstances, but did not award custody to the parent who was the target of alienating processes. The Court of Appeals overturned the lower court's decision with respect to custody. The case discusses many of the signs of irrational parental alienation discussed in Divorce Poison, such as the child's expressions of contempt for the father without providing any justification for this contempt, and using adult terms to denigrate father and stepmother.
"The [psychological] evaluator, [name redacted], reported that mother's test results showed signs of moderate to severe depression and a tendency to feel overburdened, blocked, or trapped. [The evaluator] was concerned that mother would be prone to attempt to alienate child from father, noting that mother is "disposed to dichotomize someone * * * [and] could be quickly sensitive to her child's comments that favored the other parent over her.
"Although mother was the primary parent, [the custody evaluator] had concerns that mother would undermine father's relationship with child. [Second custody evaluator] was particularly concerned about child's extremely negative statements about Nicole, which were 'indicative of alignment or alienation, or at the very least, exposure to extreme negativity towards Nicole on the part of [mother].' Child displayed increasing verbal and physical aggression toward Nicole. For example, he spat at Nicole hit her, and threatened to cut off her face and hands and to slice her throat open and kill her. He called her a "f-ing bitch," "slut," and "ho." Child's therapist, [name redacted], indicated that, in light of child's age, child was likely repeating something he had heard in referring to Nicole as "Nick-ho.
"Father and Nicole reported an incident when father awoke during the middle of the night to find child standing next to the bed with a baseball bat in hand. When asked what he was doing, child said that he was going to hit Nicole in the head while she was sleeping. When father asked why, child said, 'My mom told me to.' Nicole testified that, on another occasion, child reported that mother was going to have somebody kill Nicole; during a trip to the store, child was "looking all around and he was just acting scared and wanted to hurry up and get back to the house" so that they would be safe.
"During a visit at mother's home, [child's attorney] asked child, who was comfortably playing, to identify the people in photos in his room. Child calmly identified his mother, but when asked to identify his father, he 'sprang up, grabbed the photo and threw it as hard as he could across the room and back into his closet. [Child] then stood there, his body completely rigid, his fists clenched and his face turning red as he screamed, ' That fucking man. That fucking man. I hate him. He's stupid. He's a liar.' [Child's attorney] was alarmed at that complete change in demeanor. She 'tried to calm him down, [but child] ignored all of that and sat back down on the floor and almost immediately started playing again.' When questioned about it, child reiterated that his dad was a liar and that he was stupid, but was not interested in discussing why he made those comments or why he used that kind of language.
"Child's extreme comments and behavior—including verbal attacks on father and Nicole and standing over Nicole with a baseball bat in the middle of the night—appear to reflect mother's influence.
"Child's grooming and appearance during transfers for parenting time with father seem calculated to provoke conflict. Mother has interfered with father's participation in child's medical evaluation and treatment, contrary to treatment providers' recommendations. All of that evidence supports the conclusion that the escalation of conflict between the parties, and particularly mother's evident role in that conflict, has had an adverse effect on child and represents an unforeseen change of circumstances."
A noteworthy aspect of this decision is that the court, while identifying the extreme conflict between the parents, identifies one parent's contributions to the conflict as paramount. A mistake people often make is to use the label "high-conflict couple" without identifying differential contributions to the conflict or noting that one parent's behavior drives the conflict to which the other parent must respond. When such differences are not articulated, the court may conclude that both parents are equally responsible for the conflict, or, as with the trial court in this case, fail to make findings on such issues, and the court may fail to reach a disposition that is most likely to protect the child from future harm.
"We address the trial court's findings regarding specific factors in our discussion below, but pause to note that the trial court specifically declined to make any credibility findings on issues where there was conflicting testimony, including the troubling issues regarding custody exchanges and child's involvement in the conflict, which figure prominently in our analysis. The record contains testimony and recommendations from neutral professionals who had extensive opportunities to evaluate the circumstances. That body of evidence, which contains consistent and well-supported articulations of concerns about mother's involvement of child in parental conflicts, carries significant weight in our analysis.
"Her pattern of sending child to father's home with changes to his appearance apparently designed to provoke father, along with child's aggressive language and physical abuse toward Nicole, reflect mother's involvement of child in parental conflict that is destructive to child.
"Mother's interference with father's relationship with child has been severe. Mother has a pattern of making unsubstantiated criminal accusations against father, has obstructed his access to child's treatment providers, and has sent child to father's house with changes in his appearance designed to provoke conflict. By contrast, father has engaged in minor interference with mother's telephone access to child during visits, and father reports that mother likewise denied him telephone access. Although both parents should have telephone access to child, father's behavior does not give rise to the same concerns as mother's pattern of behavior. Accordingly, although we share the court's concerns about both parties, we conclude that this factor favors father.
"Considering all these factors together, we are persuaded that it is in child's best interests for father to have custody. Both parties have contributed to the parental conflict, but mother's escalation of that conflict, heedless of the effect on child, shows a willingness to disregard child's needs and has been damaging to child."
Woodward, 2009 ND 214, 776 N.W.2d 567.Affirmed the district court orders denying mother's motion to modify or limit father's visitation with the parties' three children, granting father's motion for compensatory visitation, finding mother in contempt for failure to comply with the visitation provisions of the divorce judgment, and ordering mother to undergo a parental alienation and psychological evaluation.
Woodward v. Woodward, 2010 ND 143, No. 20090316, Supreme Court of North Dakota, Filed July 15, 2010.Affirming the District Court's modification of primary residential responsibility, the Supreme Court of ND opined[¶ 5]: "After an evidentiary hearing, the district court partially granted [father]'s motion for change of custody and changed custody of only the youngest child. The court found there had been a significant change in circumstances since the original custody decision, including that [mother] had persistently and without justification denied [father] visitation with the children, the children were significantly behind in their schooling, the children had been isolated in [mother]'s home, and [father] had remarried and has a stable home in Grand Forks. The court also found it would be in the children's best interests if [father] had primary custody because he is better able to satisfy the children's educational needs, he is more aware of the children's social and emotional needs and the importance of developing outside interests, he provides opportunities for the children to interact with their relatives, [mother] has centered on her continuing conflict with [father] and exposed the children to that conflict and alienation, and she has issues which adversely affect the children's relationship with their father."
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IN RE MARRIAGE OF TORRES, No. B214980, Court of Appeals of California, Second District, Division Eight. Filed July 13, 2010.The Appellant father appeals the trial court's award of attorney's fees to the Respondent mother. The Court of Appeals affirmed the lower court's ruling. This opinion is relevant to concerns, expressed by some who seek to prevent courts from hearing evidence regarding parental alienation, that merely claiming that one parent's behavior contributes to a child's alienation from the other parent is a potent strategy in custody litigation, and that courts routinely "get it wrong" when evaluating such claims. In this case, the trial court determined that there was no evidence for parental alienation and the higher court upheld this finding and an award of attorney's fees to the mother who had been accused of alienating behavior.
In its discussion, the Court of Appeals states:
"The trial court found there were no facts to support appellant's claim and expressly found appellant's request for change of custody on the grounds of parental alienation to be 'far-fetched.' At the hearing, the court stated such a claim was 'a very serious charge when there really isn't any evidence of it.' The court observed respondent had to hire an attorney, and the attorney had to deal with the far-fetched parental alienation complaints, requiring respondent to incur a 'significant amount' of attorney fees.'
"We find ample support in the record for the court's finding that appellant's conduct in bringing baseless charges against respondent, causing her to incur substantial fees to defend them, merited imposition of sanctions. The responsive papers related the long history of the litigation, including a reference to the dependency court, noted the approximately one dozen experts who were involved with the family, and pointed out that never once was there any allegation by appellant or anyone else of parental alienation. The record, on the other hand, was replete with appellant's obstructive behavior with respect to visitation and custody issues, conduct leading to the frustration of the statutory policy of promoting settlement and the reduction of costs."
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Grigsby v. Grigsby, Case No. 2D09-5255, District Court of Appeal of Florida, Second District. Opinion filed July 7, 2010.Affirming the trial court's award to the father of sole parental responsibility and temporary suspension of mother's time-sharing with the children, the court stated
"For reasons not apparent from the record, shortly after having the injunction dissolved the Mother began a campaign to alienate the Father from the children. Then, in December 2006, she filed her petition for dissolution of marriage. In that petition, the Mother sought sole parental responsibility for the children. The Father filed a counterpetition in which he sought sole parental responsibility for the children. In his counterpetition, the Father also requested that the court 'determine an appropriate parenting schedule and contact schedule which provides the children with meaningful access to their mother taking into consideration the mother's active attempts to alienate the minor children from their father.' The Father also requested that the court 'determine if temporary measures are necessary to normalize the relationship between the father and the children and to enter that temporary relief to normalize those relationships.'
"After hearing four days of testimony and observing the demeanors of both parents, the trial court found that the Mother had 'actively interfered with the love and emotional ties that previously existed between the Father and the children.' The court characterized the Mother's actions as the worst case of parental alienation that it had ever seen. Based on the Mother's egregious behavior, the trial court assigned sole parental responsibility for all four children to the Father and completely suspended the Mother's time-sharing with the children. While the trial court designated the suspension of the Mother's time-sharing as temporary, the court's order did not set forth what steps the Mother could take to reestablish time-sharing with the children. Instead, the court ordered that the Father, after consultation with 'professionals,' could determine when the Mother's time-sharing would be reinstated.
"In this appeal, the Mother argues that the trial court abused its discretion by awarding sole parental responsibility for the children to the Father and by suspending her time-sharing with them. However, the record supports the conclusion that the Mother illegitimately used every tactic available to a parent who is legitimately concerned about the safety of her children in an effort to gain a tactical advantage in this custody case. Accordingly, we cannot agree that the trial court abused its discretion in awarding the Father sole parental responsibility and in suspending the Mother's time-sharing.
"However, despite facts fully justifying the trial court's decision to completely suspend the Mother's time-sharing, case law requires that we reverse the trial court's order to the extent that it omits a ruling on the specific steps the Mother must take to reestablish time-sharing and to the extent that it delegates the decision of whether and when to reinitiate time-sharing to the Father.
"[T]he trial court must reserve jurisdiction to consider the Mother's progress and may not delegate to the Father and unidentified "professionals" the determination of whether and when the Mother is sufficiently rehabilitated to have time-sharing with her children. In all other respects, the court's order is affirmed."
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HANNA v. HANNA, No. CA09-214, Court of Appeals of Arkansas, Division I. Opinion Delivered January 20, 2010."Although the attorney ad litem, Curtis Hogue, initially declined to make a custody recommendation, at the close of the hearing, he offered an opinion. He noted that in his report, he had focused on the relocation issue and opposed the move. Further, however, he opined that, 'based almost exclusively on the testimony of [mother],' the children would be better served by being placed in their father's custody. He pointed to Donna's insistence that she intended to relocate to Florida, regardless of whether the children relocated. Further, he stated that he believed that [mother]'s sharing the court order with [son] put him in the position of 'taking sides.' Hogue addressed the 'inappropriate touching' issue by saying that he believed [daughter] when she told him that 'her dad had never molested her and would never molest her.' He also believed that there was a pattern of conduct that indicated that [mother] was trying to alienate the children from their father. Hogue noted that the emails were strong evidence of this attempt at alienation. Conversely, he found [father] to be 'mature and thoughtful as it related to the custody of the children.' He noted that [father] signed the March 2007 order to 'calm the turmoil,' which he considered 'positive parenting.'
"Further, based on [daughter]'s testimony that she would do anything, including make false accusations that her father had inappropriately touched her, to live with her mom, the trial judge found that [mother] had caused 'irreparable damage to the relationship between [daughter] and her father.' As far as the children's stated preference for relocating to Florida, the trial judge found that their statements sounded 'rehearsed.' She agreed with, and adopted, the attorney ad litem's recommendation against allowing relocation.
"Regarding custody, the trial judge found a material change in circumstances in an escalation of the 'parental alienation conduct' by [mother]. She noted that [mother] did engage in such conduct, such as the 'porch incident' where [mother] called the police while [father] waited to pick up [son] at the conclusion of the summer visitation, prior to the March 2007 order. However, since then, [mother]threatened in front of the children to report [father] for animal cruelty, reported [father] to DHS for physical abuse, which was unfounded, 'brought [daughter] into this' with the bumping and inappropriate touching allegations to the point that [daughter] 'said to the Court that she was willing to say her father molested her to be able to go live with her mom.'
"Further, the trial judge found that [mother] had called [father] names, and threatened to encourage [son] to sue his father over his handling of the trust. The trial judge specifically referred to the incident where [father] allegedly walked in on [daughter] while she was naked, which [father] denied, and found that [mother] either had a 'different perception of the truth' or was being 'deceitful to this Court.' She found a similar situation in [mother]'s testimony concerning the incident where she had the family dog euthanized and the time when [father] drove [son]'s car in Chicago. She concluded that 'if ever there was a chance for [father] to salvage any sort of future relationship with his children, it must be now.'
"[Mother] next argues that the trial court erred in determining that parental alienation had occurred where there was no showing that her offending acts actually caused the children to view their father in a negative light where there was no evidence that the children were even aware of the acts and where there was evidence that the father himself was the cause of any discord and alienation between himself and the children. She acknowledges that parental alienation can be grounds for a change of custody. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007); Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003); Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). Appellant, however, asserts that the trial court erred in finding alienation in this case. She contends that no one disputes that in the year and a half that her children were in her custody, their relationship with their father had improved markedly. Additionally, it was uncontroverted that she has not withheld visitation. We do not find this argument persuasive.
"Contrary to [mother]'s assertion, when a trial court finds a custodial parent is attempting parental alienation, it is not necessary that he or she complete the process before the trial court is justified in changing custody. In Benson, this court affirmed a change of custody where a father and son still had a good relationship, but there was testimony that the son was uncomfortable in expressing that he enjoyed his visit when he returned to the custodial parent. We stated, 'Whether one parent is alienating a child from the other is an important factor to be considered in change of custody cases, for, just as the chancellor noted below, a caring relationship with both parents is essential to a healthy upbringing.' 59 Ark. App. at 113, 953 S.W.2d at 598. We also believe that the instant case is analogous to Carver, where we affirmed a finding of parental alienation where the custodial parent was apparently behind unfounded sexual-abuse allegations made against the noncustodial parent. While we acknowledge that in both Carver and Benson, the custodial parent did interfere with visitation, our focus was in both cases, as it is here, on the actions of the custodial parent to destroy the relationship with the noncustodial parent. We can think of nothing more detrimental to a caring relationship between a child and a noncustodial parent than when every casual physical contact between the noncustodial parent and the child is called sexual abuse by the custodial parent, and he or she influences the child to interpret these incidents as such. Here the trial court found that [mother] was trying to alienate the children from [father] in this fashion, and we cannot say that this finding is clearly against the preponderance of the evidence.
"Further, the trial judge specifically found that the stated preferences of the children regarding relocation sounded 'rehearsed.' As noted previously, it is our practice to defer to the trial judge to determine the credibility of witnesses and the weight to be afforded their testimony. Also, the trial judge gave considerable weight to the effect that the move would have on the exceptionally close extended-family relationships that the children enjoyed in northwest Arkansas. Under these circumstances, we cannot say that the trial judge clearly erred in disallowing Donna's relocation of the children to Florida."
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CANADABains v. Bains, 2009 BCSC 1666, Date: 2009-12-03, Docket: E8019http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1666/2009bcsc1666.html
The updated and revised edition of Divorce Poison describes how an abusive former spouse may influence children to reject the other parent. In this British Columbia Supreme Court case the court found that the father was an abusive husband during the marriage. The court also found that this father's behavior alienated the children from their mother. The court ordered that the father's face-to-face contact with the children be supervised, and suspended all other contact between the father and children, including phone and Internet contact. The court also ruled that if the father violated the terms of the order, the mother could unilaterally terminate the father's supervised access.
The decision cites the lower court's finding, based on Affidavits, that "persuade me that supervised access by the defendant is entirely appropriate in this matter. It must occur, at least for a short time, until the defendant can show the court that he has learned to control his behaviour. More than that, access will be supervised until the defendant provides evidence from the plaintiff or others that he is supporting the plaintiff’s parenting of the children and speaking to the children in positive terms about their mother."
The BC Supreme Court quoted the custody evaluator's report: "It is my observation that [daughter] is particularly susceptible to and influenced by [father's] erratic interpersonal pattern and alienating stance and tends to align herself with him to avoid his wrath. This, in my opinion, is largely responsible for her feelings of alienation from and derogatory statements about her mother." From the court's decision:
"Dr. K. [custody evaluator] concluded that [father] had been engaging in consistent behaviours that alienated the children from their mother and that a joint parenting relationship at this time would irreparably damage the children’s relationship with their mother. As a result of her conclusions concerning [father's] conduct, Dr. K. recommended that he have only supervised visits with the children; that the children participate in counselling with a professional skilled in dealing with alienation cases and domestic abuse; and that father pursue anger management counselling, as well as counselling to help him learn to promote [mother's] parenting of the children.
"Although I am satisfied that this is not a case where the children are in physical danger while in the care of their father, it is apparent that Mr. Bains has in the past damaged their emotional and psychological well being in a variety of ways. Mr. Bains’ behaviour has alienated the children from their mother; he has made the children, and particularly Kiana, his own emotional caretaker, and convinced them that any affection they have for Ms. Bains is an act of disloyalty and a betrayal of their father. Ultimately, the children are forced to choose one parent over the other because Mr. Bains will not permit them to have a relationship with both parents."
In ordering that the father's access to his children be supervised, the court wrote: "I agree with Dr. K.'s conclusion that because of [father's] alienating behaviour it is unlikely that the children are capable, at this time, of disclosing their true wishes. [Daughter] will be turning fourteen next year and she will undoubtedly begin to assert some independence when it comes to seeing her father regardless of how destructive this might be in terms of her relationship with [mother]. . . . [Father] shall have supervised access visits with [children] twice each week for a period of two consecutive hours at dates and times mutually agreeable between the parties. . . . [Father] shall have no other contact with the children, directly or indirectly, or through other persons, and this prohibition specifically includes contact by telephone or cellular telephone, via the internet, and through any third party via any of these means of communication. [Father] shall immediately change his Facebook password to ensure [daughter] has no access to his account and he shall immediately remove her name from his list of “friends” so that she is not able to read messages on his public wall. [Father] shall also immediately advise all of his adult friends to cease contacting [daughter] by any means, including via the internet and cellular telephone. If [father]breaches this term of the order, [mother] is at liberty to unilaterally terminate the supervised access to [daughter] described in paragraph (b), subject to [father's] right to apply to the court to reinstate this supervised access and I remain seized of any such application."
C.S. v. M.S., 2010 ONCA 196 DATE: 20100316 DOCKET: C46361, Court of Appeal for Ontario.This decision upheld the lower court's decision which gave the mother custody of the youngest child, M, barred the three adult children of the marriage from having access to M, issued a restraining order keeping the father from contacting his ex-wife or M, and awarded the mother costs of more than $320,000.
"As a preliminary matter, we observe that many of the grounds of appeal and much of the appellant’s argument dealt with the so-called “parental alienation syndrome”. In our view, this focus in the appellant’s case was misconceived. There is alienation between parent and child in the S family. The alienation is between the three oldest children (now adults) and the mother. This appeal, however, focuses on a different relationship, namely, the one between the child M and her father and, secondarily, her siblings. Uniquely, M is alienated from no one in her family.
"The focus of the trial was, as the trial judge recognized, on the best interests of the child M. The evidence in support of the no access order, at the time it was made in late 2006, was overwhelming. The father had taken aggressive and persistent steps to alienate his other children from their mother. The likelihood of this continuing with M if the father had access to her was virtually certain. The trial judge concluded that the risks to M if the father were given access were simply too great to serve her best interests. As expressed by the trial judge near the end of his comprehensive reasons:
'Both the father and the two oldest children actively participated in the disobedience of the court order placing the third child in foster care during the investigation of very serious protection concerns. I have no reason to have confidence that the father or the older children would respect terms of a new access order, such as terms prohibiting negative comments about the mother or pressure on the child [M] to move to the father’s home, any more than they have respected previous court orders on various subjects. I note particularly the father’s attitude toward the order for reconciliation counselling involving the third child during the protection case. The father was having none of it, and neither was the child as a result. So it could never happen. I see no sign of positive change on the father’s part in promoting a reconciliation of the three oldest children with the mother.'
"We agree with this description and conclusion. The inclusion in the access order of the other children who are alienated from their mother is justified by the finding that the father has engaged them in his cause and that they operate as a single camp. We also observe that there is nothing in the fresh evidence tendered by the father that would diminish the continuing applicability of the trial judge’s conclusion quoted above three years later. On these facts, which are extreme, the maximum contact between the appellant and M that is consistent with M’s best interests is no contact, subject to a material change in circumstances.
"The restraining order against the father strikes us as, in this unusual and troubling case, a logical and necessary corollary of the no access order. Again, there is nothing in the fresh evidence to challenge its continuing appropriateness.
"Finally, we affirm the costs award. It is a very large award. However, the father’s conduct of the litigation over several years and the simple reality of an 18-day trial led inevitably to huge lawyers’ fees on both sides. The mother won at trial and is, therefore, entitled to costs.
"The trial judge reviewed the father’s conduct throughout the litigation, including persistent disobedience of court orders (including consent orders), and concluded: 'In this case, the father has acted in bad faith over a long period of time, in relation to more than one issue, and on many occasions. The consequences of his bad faith have been a vastly prolonged and more expensive court case and vastly increased emotional damage.' We agree with this description of the father’s conduct and its consequences. It justified an award of costs on a full recovery basis."
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UNITED KINGDOMNeutral Citation Number:  EWHC 192. In the High Court of Justice case no. CV06PO0007; Family Division Coventry District Registry; Between: TE (Applicant) and SH (First Respondent) and S (by his guardian ad litem, the National Youth Advocacy Service) (Second Respondent); http://www.familylawweek.co.uk/site.aspx?i=ed52522 or read in PDF.His Honour Judge Clifford Bellamy, Designated Family Judge for Warwickshire and Coventry, 4th January 2010.
This detailed and comprehensive decision describes the favored parent's alienating behavior as creating a risk of psychosocial harm to the alienated child, including "distorted views of his father and paternal family with all the consequences that will have for his self-identity and self-esteem." The court concludes that the mother is incapable of restoring the relationship between father and son, is unlikely to alter her alienating behavior despite the harm this causes her child, and that the long term benefits of reuniting with the rejected parent outweigh concerns about the potential stress of a transfer of residence. Noteworthy is that the court's ruled was contrary to the position advocated by the Guardian ad litem, who opposed the transfer of residence to the rejected father. The terms "alienation" and "alienated" are used 15 times in the court's decision.
The court found "i) that S has suffered emotional harm (though he appears to be thriving at school and there was no question that the mother's care was at fault except on the issue of contact); ii) that the father will be able to care properly for S and was sincere in his assurances of the need to maintain contact with the mother if residence was transferred and; iii) chances of re-establishing direct contact if S remained with the mother were remote. He therefore ordered a transfer of residence as the balance came down to which parent was most likely to change and "traumatic though it may be in the short term, it is in the best interests of S's long-term welfare for him now to live with his father" because of the potential psychosocial harm S may suffer if denied that relationship."
The decision notes the discrepancy between the mother's verbal endorsement of father-child contact and the mother's conduct that both obstructed and failed to encourage contact, including the use of tactics such as encroachment and failure to exercise authority over her son's contemptuous behavior toward his father and paternal relatives. For a fuller discussion of these tactics, see Chapter 6, The Corruption of Reality, in Divorce Poison.
Here is the court's description of the mother's encroachment on the child's time with his father by creating a conflict between seeing the father versus participating in scheduled activities: "The mother has now arranged for S to have extra-curricular activities every day of the week, including weekends, means that there is now no space in his life for contact – and therefore no space for his father. Even if S were more open to the possibility of contact, the impact of a reintroduction of contact would be likely to have some negative side effects in S's mind, given that he would have to reduce some of these activities."
As I note in Divorce Poison, alienating parents often fail to recognize the contradiction between asking the court to find that they are better suited to raise the children, while simultaneously claiming that they lack sufficient authority over their children to obtain compliance with court-ordered contacts with the other parent and even to ensure that the child behaves with common decency toward the rejected parent. Alienating parents often claim that the child's failure to spend time with the other parent is the child's own choice. The court noted these phenomena in the following excerpt:
"Ms J [S's first guardian ad litem] noted that the mother has 'significant influence and power' in S's life and thus expressed surprise that the mother 'has not been able to persuade S to even look at a letter from his father'. S said his mother had given him the choice whether he read the letter or not. As Ms J said 'Sometimes the "tough love" of a parent is not to give an 8 year old child a choice if we believe what we are doing is in their best interests.' The same point could be made in respect of S's failure to acknowledge presents received from members of the father's family and his unwillingness even to send a postcard to his half-brothers when on holiday.
"In my judgment, when taken together, and in the context of the whole of the evidence before me, all of this strongly suggests that in truth this mother has no real wish to see contact restart.
"Mrs K [the Guardian ad litem who opposed the court's decision] was strongly of the opinion that the therapy provided for the parents and S by Mr L and Ms W had been beneficial for S and should continue. In contrast, Dr W's analysis was that the situation that has developed is properly to be characterised as one of alienation and that in those circumstances 'it is highly unlikely that any form of psychotherapy will lead to a change in [S's] response' and that 'no amount of therapy would be of any use unless it takes place alongside direct contact'. On that issue I accepted Dr W's evidence."
In Divorce Poison, Chapter 8 - Getting Professional Help, I note how professionals sometimes confuse a child's irrational alienation with a reasonable rejection of a parent. In this case, the court observed such behavior in the Guardian ad litem:
"Dr W advised that it is important for the parents and for all of the professionals working with S to recognise that his expressed wishes and feelings are irrational and should form no part in the Court's decision making. It is clear that Mrs K does not accept that advice. Indeed, it appeared to me that she had become so emotionally involved in her duties as S's guardian that she has lost some of that sense of objectivity which is so vitally important in a case such as this."
The court noted that the basis for a reversal of custody must go beyond the identification that the child is alienated to include consideration of the favored parent's behavior, such as making repeated false accusations of abuse and inculcating negative beliefs about the other parent, which is characterized as "emotionally abusive" in line with the views of prominent authorities on alienated children [see Endnote 17 in CR33 for citations].
"The possibility of transferring residence from mother to father is an issue upon which Dr W was asked to advise. The following question was sent to him: 'Given your assessment of the mother and her family's stance, is this a case where there should be consideration of a Residence Order being made to the father in the interests of S, either on a temporary basis while S's relationship with his father is restored or on a long term basis?' In his final report, Dr W gave this answer: 'I would support a change of Residence if there was evidence that S suffered emotional harm and/or abuse as a result of care given by the mother. I would not regard the presence of "alienation" in S as sufficient to conclude that the mother caused emotional harm and/or abuse. There would have to be other Findings of a type which would normally lead "to removal from or supervision of contact with residential parents. Such parents' factors include severe clinical pathology in the residential parent, Munchausen's by Proxy, parental neglect and/or abuse. It also includes making repeated and unsubstantiated allegations of abuse about the rejected parent, emotionally abusive attempts to inculcate negative beliefs in the child and child abduction…" That approach seems compatible with the Court's approach in the UK though the quotation comes from the United States…'
"Miss Ball [father's attorney] submits that these findings are concerning both as to harm suffered and as to risk of future harm. She refers to Dr W's evidence as to the harm which alienation can cause to a child's welfare. That risk of harm is so important that the father (and the court) cannot simply sit back and do nothing. If the residential parent is unable to help to restore the relationship between father and son, and plainly this mother cannot, then that should lead the court to consider whether the risk of future harm may now be most effectively avoided by a change of career."
In my peer-reviewed journal article, Payoffs and Pitfalls of Listening to Children, and my DVD, Benefits and Hazards of Involving Children in Custody Decisions, I discuss factors for courts to consider in weighing the stated preferences of children whose negative attitudes and beliefs have been influenced by the favored parent. The judge in this case, noting that the child's wishes are entitled to respect, determined that the child's irrational alienation detracted from the reliability of the child's expressed wishes and needs to be considered in assessing the weight to attach to those wishes.
"I have found that S has become alienated from his father. S has said that his father is a 'monster' and that he 'hates' him. It is clear from Dr W's evidence that such behaviour fits within the pattern of behaviour of children who have become alienated from their non-resident parent. In his report of 18th July 2008 Dr W was very clear. He said that 'It is also important for both parents and for all professionals working with the child to recognise that the child's expressed wishes and feelings are irrational and should form no part in the Court's decision making.'
"I cannot and do not ignore S's expressed wishes and feelings. However, in the light of Dr W's evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of S's age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them."
IN THE HIGH COURT OF JUSTICE CASE No. NU10C00043 FAMILY DIVISION COVENTRY DISTRICT REGISTRY 11 August 2010. Before His Honour Judge Clifford Bellamy Sitting as a Deputy Judge of the High Court.This case continues the previous case in this list. The Court of Appeal allowed an appeal by the child of the earlier decision to transfer custody to the father. The Court of Appeal then substituted an interim care order that moved the child to foster care while the guardian ad litem facilitated five sessions of contact between the child and father. The guardian became concerned about the child's mental state and recommended a return to the mother's home. The father consented to this while attempts were made to implement the original order for the child's transfer to the father's residence. The child refused to engage in contact with the father. A therapist recommended that the father abandon his efforts to have the child live with him immediately and instead work over a 6-12 month period to reunite. The other expert in the case disagreed stating that therapy and "stepping stone" approaches are of little use in cases of alienation, and may make matters worse. Eventually the father abandoned his attempts to enforce the residence order.
Reflecting on the case, Judge Bellamy makes the following observations that carry important implications regarding the role of expert witness testimony in cases with allegations of parental alienation: "In the light of the public and professional interest surrounding this case, and having been the judge with responsibility for this case for more than three years, I conclude this judgment with some reflections on some of the issues that have arisen.
"In the light of the considerable body of evidence I have heard and read in this case over the last three years, the research literature that has been produced and my experience of dealing with other high conflict cases involving different experts, I am satisfied that Dr. Weir's evidence as to the concept of alienation as a feature of some high conflict parental disputes may today be regarded as being mainstream.
"Since he became involved in these proceedings Dr. Weir has produced copies of a number of research articles including several papers from the January 2010 edition of an American journal, the Family Court Review, which was devoted to this issue."
The journal to which the Judge refers is the one in which Dr. Warshak contributed the centerpiece article and two additional articles.
"The relatively small number of cases of alienation inevitably means that not every child care professional will have experience of dealing with a case involving an alienated child. In this case, for example, in her final statement [the therapist] very frankly conceded that 'despite my 21 years of experience in Social care, high conflict cases and child protection, prior to this case, I did not have any previous experience in alienation'.
"In determining any high conflict case involving an alienated child it is essential that the court has the benefit of professional evidence from an expert who has personal experience of working with alienated children."
The judge began his decision by stating, "A wholly deserving father left my court in tears having been driven to abandon his battle to implement an order which I had made...."
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U.S. AND INTERNATIONAL COURT RULINGS RE: PARENTAL ALIENATION AND PARENTAL ALIENATION SYNDROME
UNITED STATES (22 States)Alabama
CANADA (8 Provinces)Quebec