"Welcome to the swamp."
That's what a judge once told a client of a Pennsylvania divorce attorney when accusations of parental alienation were leveled against the client in a custody hearing.
Parental alienation syndrome - a controversial diagnosis to describe a child who compulsively denigrates one parent in response to consistent brainwashing by the other parent - has become a common weapon in custody cases.
"It happens all the time," said Michael R. Walsh, a divorce attorney who specializes in divorce cases. "If Mom can't hurt Dad another way, what has she got left after she's tried to rake him over the coals on everything else?"
According to Richard Gardner, the psychologist who is considered the father of the syndrome, it typically manifests itself as a campaign of denigration by one parent against the other, which is accompanied by weak, frivolous and absurd rationalizations for the deprecation. As a result of this steady campaign of insult, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the targeted parent.
But the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to a statement in its website. The legal community is divided as well. While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children. "I think it's more of a code word that gets used in trial because one parent is not maintaining the relationship with the children and believes the other parent is interfering with the relationship," said Minneapolis divorce attorney Susan Gallagher.
Like it or not, parental alienation has become a common weapon in courts across the country. Even in jurisdictions that don't recognize it as a diagnosable syndrome in children, lawyers can still argue straight parental alienation - that one parent's attempts to turn the child against the other parent indicates that the first parent is not fit to have custody. Sometimes the behavior that prompts charges of parental alienation is subtle - frequent disparaging remarks within earshot of the child or setting up appointments and activities for the child during times when the other parent is scheduled to have visitation. Other times it is openly aggressive, such as unfounded accusations of child abuse or neglect. In some cases, a parent is deluded enough to believe their unfounded accusations - and other times when the accusations are true - so sorting out what is real and what is not can be a tall order for the courts.
"I can't tell you if the syndrome exists psychologically, but I can say it's very troubling and one of the hardest things for a judge to figure out if it's really happening," said Pradell. It's also possible for the child to be alienated from one parent without any campaign of denigration by the other. "Just for the sake of illustration, a 13-year-old girl finds out before Mom that Dad is cheating on Mom. That 13-year-old girl may become alienated from Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of Buffalo, head of the Family Law Section of the New York Bar Association. As the Anchorage judge said: "Welcome to the swamp."
Making it stick
Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order. "It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C. The best place to begin is with witnesses - anyone who was present when one of the alienating interactions occurred.
In some states, clients can record telephone calls or other conversations to create audio evidence. O'Reilly suggested that lawyers encourage their clients to communicate via e-mail and voice mail to create a tangible record. This will be far more effective in court than the typical he-said/she-said battles that dominate most custody battles. But the heart of any parental alienation case is the expert testimony, according to Stevens. "Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"
It many cases the judge will require a court-appointed psychologist to work with both parents and the children in order to obtain a non-partisan expert opinion. In a similar vein, lawyers may want to ask the court to appoint a guardian ad litem who will advocate on behalf of the child to determine whether parental alienation has occurred.
In the end, though, lawyers should be prepared for a tough battle. "It's very hard to prove, because if you have the client from whom the children are estranged, you don't have a child willing to cooperate with the process, and that's where most of the proof would be," O'Reilly said.
Defending against a charge
These same strategies, and a few others, are useful if unfounded allegations of alienation are leveled against your client. "Obviously they have the burden to prove the client's doing something," said O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your fault.' You have a little bit of advantage." First, make sure your client always takes the high road. Although the natural instinct of clients is to become indignant and defend themselves vehemently, protesting too loudly could undermine their credibility in the eyes of the court, said Gallagher. Instead, develop an action plan for how your client can build a stronger relationship with the children.
Change any behavior that is suspect. Have clients tell the judge that while they don't feel there is evidence to support the allegation, they are seeking the help of a professional as a precaution, and are prepared to change any behavior that is deemed inappropriate. "Who is not confident in a parent who is going to do and say that?" Gallagher asked. But just as in the case of the accuser, the most powerful weapon for a client who is accused of alienation is the psychological expert. "A good forensic expert has credibility because that person doesn't represent your guy and doesn't represent the other party - he's appointed by the court," said Tom Carnes of Carnes Ely in Houston.
Third-party witnesses can also be a powerful weapon in court. "Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested. Finally, Carnes suggests that lawyers request more visits between the targeted parent and child in an effort to strengthen the relationship between them. Of course, the best defense against an alienation charge is to make sure it's never made in the first place.
Advise your client not to get in the middle of disputes between the child and the other parent, O'Reilly advised. If a child refuses to go with the non-custodial parent, the custodial parent should insist. He or she should tell the child that the judge has required the visit. "I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."
