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Thursday, January 29, 2015

ALIENATION OR JUST BAD BEHAVIOR?
 © Jonathan D. Gordon, Esq. 2015


Jonathan D. Gordon, Ph.D., J.D.
I frequently come across parents in Family Court who allege Parental Alienation Syndrome (PAS).  This, for some, may become a mantra in cases when there is really no alienation, but rather, a parent wants to either (a) portray him/herself as a victim, or (b) wants to put the other parent on the defensive for the purposes of litigation, ongoing harassment, or just plain hostility.  Sometimes a parent will purposely and methodically denigrate the other parent to a child, may sabotage parenting time with the other parent, and may do great damage to the child doing so.   We are talking about an otherwise fit alternate parent who is being marginalized (or eliminated) by the concerted efforts of the residential parent.  This essay is not at all meant to be a review of the current literature, but rather to air the issues commonly encountered in Family Court, related to alienation.
Parental alienation, when it is real, can be considered to be a form of child abuse—it is a cruel kind of emotional abuse.  It robs a child of a parent.  It is difficult, however, to prove in court because PAS has no conclusive research to support it as a psychological syndrome.  Even the 5th edition of the Diagnostic and Statistical Manual (DSM-5)[i] does not list this as a diagnosis.  Rather, it refers to Parental Relationship Distress in a separate category (“V-Code”) of conditions that are not mental disorders, but that may be a source of distress or concern for treatment purposes. (Id., p. 715-16).
It is easier, however, and more tangible to show a court that the other parent (usually the primary residential/custodial parent) is acting badly to sabotage the non-residential parent’s relationship with a child.  It is easier to prove bad behavior than to prove a syndrome which requires scientific testimony.  In Court, expert testimony has to be based on good scientific underpinnings, helpful to the Court, and based on methodology and data that are generally accepted within the scientific community, or the Judge will not let it be admitted into evidence.  In a recent unpublished case[ii], the New Jersey Appellate Division stated that PAS is a “novel” concept that was not yet established as being scientifically reliable or generally accepted, although it did not preclude the possibility that this could happen in the future.
Regardless of the controversy regarding the scientific efficacy of the PAS concept, there is still the question of how the Court should handle various scenarios when it is clear that one parent is actively sabotaging a child’s relationship with the other parent.  A Court can appoint a forensic mental health practitioner to assess what exactly is going on, if it is not already clear. The Court needs also to know the effects on the child.  For example, does the child still have any relationship with the alienated parent?  Does the child have any mental health issues as a result of the parental behavior?  The bottom line is the inappropriate and damaging behavior of one parent, designed to marginalize or remove the other parent from the life of the child.  A Court can discern if this is happening also if the residential parent is purposely scheduling appointments or activities for the child during the other parent’s parenting time.  Or, perhaps that parent purposely does not make the child available for parenting time, tells the child inappropriate things about the other parent, denigrates that parent and creates a fiction of dangerousness to the child that does not exist.  In extreme cases, some parents make false allegations of sexual abuse about the other parent.
How about the parent who brings about this alienation by his/her own behavior toward the child or to the other parent (often in front of the child)?  Another term often used to describe these effects is estrangement, although estrangement is often used synonymously with alienation.  Regardless, there are plenty of children who want nothing to do with the other parent (the “alienated” parent) because of their having been subjected to abuse, witnessing domestic violence, severe neglect, or something as simple as chronically being disappointed by that parent.  Years of broken promises, lies, failures to show up, lack of loving, nurturant behavior toward a child can result in estrangement.  For that parent to subsequently complain about the child not wanting contact, or refusing to take the parent’s phone calls is disingenuous.
The Court has numerous remedies for alleged alienating behavior on the part of a parent.  The Court can impose monetary sanctions, impose other sanctions such as limiting the time the residential parent has with that child, or even transfer custody entirely to the alienated parent.  A Court can impose supervised parenting time for the alienating parent to ensure that nothing bad is said to the child about the other parent.  Reintroduction therapy or other therapeutic interventions can be set up.  Either way, much of this often will come only after many months or years of active alienation by the parent who is acting badly.  The child may be permanently damaged by the time that the intervention is put into place and the estrangement/alienation may be irreversible by then.  See my previous blog post on Permanent Damage (January 19, 2015) for a further discussion about this.
So any way you slice it, a parent who intentionally works at alienating a child from the other parent (an otherwise fit parent) is doing something bad, mean and selfish.  It has nothing to do with what is in the child’s best interests.  As I mentioned above, the exceptions include a child who is necessarily distanced due to a history of child abuse, sexual assault/molestation, witnessing domestic violence, being treated badly by the parent in general.  Sometimes a parent simply brings it upon themselves. To play the victim later in court, to make the other parent and the child jump through the hoops of forensic evaluations and the expense of trials and arguments in court, is more abuse. It can sometimes amount to harassment through litigation, and continues putting the child through seemingly endless interviews and observations.  The Judge needs some time to figure out what is in the child’s best interests, via assessments and testimony.  The Court starts from the premise of joint legal custody and co-parenting.  Anything less has to be justified, based on evidence.  Ultimately, if the parents cannot work together for the best interests of their child, if the parents continue to hate each other and to compete over their child for their own selfish reasons, then the Judge will step in and take over the decision making.  Both parents may leave court disappointed.  They will also leave court with much less money in their wallets, money that they could have spent on their child’s future, rather than on trying to obliterate the other parent at the expense of their child’s mental health.

Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Esq. 2015
Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.

Web Site:  www.jdgordonlaw.com

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[i] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed., Arlington, VA, Amer. Psychiatric Assoc., 2013.
[ii] M.A. v. A.I., 2014 WL 7010813 (N.J.Super.A.D.)