Month: June 2020

Intervention Options for Alienated Children and Their Families

Posted on by Shawn Wygant

We at PsychLaw.net have found that discussions in the social science literature describe few options for children who suffer severe and unreasonable alienation from a parent and highlight the ineffectiveness of available remedies.  For example, Rand, Rand, and Kopetski (2005) reported the failure of traditional psychotherapy in their follow-up study of the 45 children from 25 families Kopetski had studied over 20 years starting in 1976.  A range of moderate to severe PAS characterized those cases. Alienation was interrupted by judicial action for 20 children from 12 families where there was enforced visitation or a change of custody. But for those in the treatment group where there were only orders for therapy and gradually increased access, alienation remained uninterrupted and in some cases became worse.  

 Qualitative case studies and experienced clinicians have found that traditional psychotherapy as the primary intervention simply does not work in severe and even in some moderate alienation cases (Clawar & Rivlin, 1991; Dunne & Hedrick, 1994; Gardner, 2001; Kopetski, 1998a, 1998b; Kopetski, Rand, & Rand, 2006; Lampel, 1996; Lowenstein, 2006; Lund, 1995; Rand, 1997b; Rand, Rand, & Kopetski, 2005). Fidler and Bala (2010) concluded that “all severe and some moderate cases of alienation … are likely to require a different and more intrusive approach if the relationship with the rejected parent is not to be abandoned and the alienation is to be successfully corrected.” 

 A reunification option, short of reversing custody, is for the court to order a prolonged period of residence with the target parent, such as during the summer or an extended vacation, coupled with counseling and temporarily restricted or suspended contact with the alienating parent. This arrangement, which in the long run provides less disruption and greater continuity of care, may in some cases be more appropriate than reversing custody permanently.  This period of prolonged residence affords the child and target parent the uninterrupted time and space needed to repair and rebuild their relationship, assuming that the alienating parent either relinquishes their malicious efforts or gives up trying to destroy the target parent’s relationship with the alienated child.  

 Warshak (2010b) and Warshak and Otis (2010) offered an alternative approach called Family Bridges, in which the target parent and the alienated child travel to a program site – a family home, hotel or vacation resort – for four consecutive days.  The alienated children and the target parent share their experiences with one another and re-examine their assumed, indoctrinated false beliefs to which the children have become accustomed.  In commenting on Family Bridges, Kelly (2010) wrote that the daily structure and other program components were guided by well-established evidence-based principles and incorporated multimedia learning, positive learning environment, focused lessons addressing relevant concepts, and learning materials providing assistance with integration of materials. She noted that the lessons and materials were drawn from universally accepted research in social, cognitive, and child developmental psychology, sociology, and social neuroscience. Another important feature of Family Bridges, wrote Kelly (2010), is the safe atmosphere created by the program leaders from the very beginning.  She saw this as an essential feature of the program that promotes more willing participation and active learning. See Chapter 5 for a more complete discussion of Family Bridges. 

 Another approach to bringing the alienated child back into a relationship with the target parent that we at PsychLaw.net have looked into is the development of a comprehensive reunification plan.  Reunification therapy is generally a one-time opportunity, so it needs to be done correctly from start to finish.  Usually, the alienated child is resistant and must be “forced” to meet with the target parent.  Also, the alienating parent may publicly support the idea of reunification but will privately engage the child, and often alienation allies as well, to sabotage and undermine the therapeutic effort. Thus, the likelihood of success becomes minimal without good planning.  Frequently, it is helpful for the court to appoint an independent expert or an expert retained by the target parent to conduct a study and formulate a well-developed plan or blueprint for all the parties to follow.  The reunification planner may be a different MHP than the reunification therapist.   

 Most MHPs acknowledge that they have neither the training nor experience to work as a reunification specialist.  Generally, the reunification specialist is contacted by a “selection committee,” which may be comprised of the clients and/or their attorneys.  The selection committee should consider the competence of the prospective therapist, her level of experience, and her willingness to adhere to a well-developed reunification plan developed by an independent evaluator or at least participate in the formulation of an effective approach to reunification as the process unfolds.  (See Chapter 7 for a further discussion of reunification therapy.) 

 Systemic issues in family law create “points of slippage” when the judge is vulnerable to being misled, which is related to: the court’s bias toward the protection of children; the unmatched discretion and latitude of the family trial judge; and the fact that psychological matters are being decided by someone unlikely to be trained in psychology.  Also, attorney representation by its very nature consists of advocating by another non-psychology professional.  Alienation cases are confusing, highly conflictual, and replete with false allegations and questions of credibility.  It takes a skillful MHP to assist the attorney in a consultative role, much like an attorney may rely on a forensic accountant.  A mental health consultant should serve in a non-visible but active role both with the client and attorney, never testifying or blurring the roles of therapy and evaluation.   

 During the initial phase of the consultation, the MHP must determine whether the case involves PA or simply estrangement that resulted from abuse by the rejected parent.  If it is a case of estrangement, we recommend that the mental health consultant offer the client rehabilitative advice and then withdraw from the case.  On the other hand, if it is a case of PA, the mental health consultant as a team member assists in developing an effective strategy from the chronology of the case to the conflicting findings and opinions throughout the case, whether presented in court proceedings, depositions, or collateral contacts. The role of the consultant includes advising the attorney how to challenge therapists, evaluators, guardian’s ad litem (GALs), parenting coordinators, and other lay witnesses and experts involved in the case.  The mental health consultant’s role is confined to “consultation” rather than “collaboration,” the latter term meaning shared authority in making decisions (Bone and Sauber, 2012).

A Brief History of Parental Alienation

Posted on by Shawn Wygant

At PsychLaw.net,we understand that parental alienation has been discussed, debated, and critiqued in the scientific community for half a century. Between 1990 and 2010 there was considerable discussion and debate regarding PA and PAS in the mental health and legal professional literature.  Most of the disagreement related to PAS as it was conceptualized and defined by Richard Gardner, as well as Gardner’s recommendation that cases of severe alienation should be treated by transferring custody of the child from the alienating parent to the target parent.  For example, Gardner was criticized by Faller (1998, 2000), Faller and DeVoe (1995), Bruch (2001), and by Hoult (2006).  In 2001, Kelly and Johnston critiqued Gardner’s definition of PAS (which they felt focused too much on the role of the alienating parent) and proposed a reformulation of the phenomenon as “the alienated child” (which focuses more on the feelings and behavior of the child).  See Chapter 10, “The History of Parental Alienation from Early Days to Modern Times,” and Chapter 13, “Parental Alienation Initiatives around the World,” for a more complete discussion of the controversies regarding PA and PAS. 

 In 2000, Elizabeth Ellis published her text Divorce Wars: Interventions with Families in Conflict.  Ellis explained that by the year 2000, the concept of PA had “come to be accepted by clinicians working with families involved in post divorce conflict.” She went on to point out, “Definitions for PAS have been unclear, because clinicians still confuse a child’s symptoms with the parent’s behavior and the qualities of the relationship between the child and the alienating parent” (p. 227).  Ellis offered a brief review of folie à deux and suggested that it involved striking similarities to PAS.  In folie à deux, the primary individual who is dominant in the relationship gradually imposes his or her delusional system on the more passive, initially healthy second person (p. 218). 

In 2010, Joan Kelly pointed out that there was “broad consensus among the mental health and family law community that the risk of child alienation is increased in highly conflicted separations accompanied by protracted adversarial child custody disputes” (Kelly, 2010). She commented that while case analysis and research improved our understanding with respect to PA, there existed ample frustration about the “surprisingly little progress made by courts in successfully dealing with these cases in the past 30 years.” 

 While some MHPs and attorneys reject the concept of PAS as defined by Gardner, almost all mental health and legal professionals accept the general definition of PA used in this book.  That is, almost all mental health and legal professionals agree that some children – whose parents are engaged in a high-conflict separation or divorce – ally themselves strongly with one parent and reject a relationship with the other parent without legitimate justification.  In an informal poll of members of the Association of Family and Conciliation Courts, which occurred in 2010, 98% of the 300 respondents agreed with the statement, “Do you think that some children are manipulated by one parent to irrationally and unjustifiably reject the other parent?” (Baker, Jaffee, Bernet, & Johnston, 2011). 

Although the great majority of mental health and legal professionals agree that some children of divorced parents manifest PA – as we use the term – there has not been agreement on whether PA should be a formal diagnosis for use by MHPs.  The proposal that PA become an official diagnosis was published in Parental Alienation, DSM-5, and ICD-11 (Bernet, 2010).  See Chapter 15 of this book for an account of the development and submission of proposals that PA be included as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Diseases. 

MHPs sometimes find themselves involved in cases of PA involuntarily and perhaps unwittingly.  For example, a social worker might already be the therapist for a parent, who then divorces and becomes either the alienating or the target parent as the family sinks into an alienation scenario.  Or a school counselor might be working with an overly anxious child, who takes a turn for the worse when his parents divorce and he forms a strong alliance with one parent and rejects the other.  On the other hand, MHPs also become involved in PA cases in a voluntary, knowing manner.  A psychiatrist might agree to conduct a custody evaluation although she realizes that one of the parents has alleged that the child is manifesting PA.  Or, a psychologist might agree to help a child and his mother re-establish a healthy relationship after being alienated from each other for several years. 

 Many MHPs are reluctant to become more than superficially involved in these difficult cases becauseeach parent’s attorney will challenge them unless they support that parent’s position.  Advocacy for one parent leads opposing counsel to attempt to discredit them, disregard their evaluation, or present their work as inadequate in an effort to remove them from the case.  However, some MHPs make the opposite mistake of becoming overly involved in PA situations; for example, trying to be both the child’s therapist and the custody evaluator.  It is almost always risky and hazardous for a MHP to take on multiple roles.  It may constitute an ethical violation, which could be brought to the attention of the state licensing board.  Fidler & Bala (2010) explain that it is very difficult for one MHP to achieve desired objectives and meet the various, complex, and often competing needs of different family members.  Trouble and headaches will certainly be encountered when a MHP assumes dual roles of therapist and decision maker (Bernet, 1983; Bone & Sauber, 2012; Greenberg, Gould, Schnider, Gould-Saltman, & Martindale, 2003; Kirkland & Kirkland, 2006; Sullivan, 2004). 

At PsychLaw.net, we briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  Check out our website for a detailed discussion about the evaluation process, treatment of mild, moderate, and severe cases of PA, reunification therapy, and shaping social policy.

When Voir Dire Goes Right

Posted on by Shawn Wygant

At PsychLaw, we frequently discuss how to voir dire experts in the behavioral sciences. Voir dire challenges are necessary to keep pseudo science out of our courtrooms. When voir dire goes right, a court will strike the pseudo science. For instance, in Holman Enterprises v. Fidelity and Guar. Ins. Co.,[1] the district court granted a party’s motion to strike the report of an expert where the expert’s report was “replete with legal conclusions and speculations,” “obvious conclusion[s] of law,” “fail[ed] to even discuss the insurance industry’s basic definition,” “provided no analysis to support … blanket conclusions,” and ultimately failed to meet the Daubert standard.[2]

In Hall v. United Ins. Co. of America, the opinion of a “licensed professional counselor,” purporting to evaluate the competency of a person he never met, but solely on a review of documents, was struck by an Alabama federal court for failing to meet the requirements of Rule 702[3]. In affirming the decision, the Eleventh Circuit noted:

Petrella’s “expert” opinion was based on his review of several documents related to Bobby’s mental health …. While Bobby’s medical doctor concluded that he was competent, Petrella came to the opposite conclusion, with no explanation offered in his affidavit for this contrary result. The district court concluded that [the plaintiff] had not demonstrated that the information Petrella reviewed contained sufficient facts or data upon which to base his opinion … and that Petrella did not cite to any scientific methodology or literature supporting his conclusions or approving of the method he employed to make those conclusions. … Accordingly, the judgment of the district court is affirmed.[4]

At PsychLaw.net we know that the legal profession, writ large, has an apparent aversion to “science,”[5] perhaps born out of what Justice Breyer described as a “lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims.”[6] As noted above, too often attorneys and courts rely simply on the professional’s recitation of their expertise and the perception that their field’s governing body would police any unethical or unprofessional conduct. Unfortunately, governing bodies frequently fail to discipline an unethical or unprofessional colleague. Certainly, this is the case with the psychological profession, where purported expert testimony that fails to meet the American Psychological Association’s (APA’s) ethical standards and practice guidelines routinely goes unpunished.

[1] Holman Enterprises v. Fidelity and Guar. Ins. Co., 563 F.Supp.2d 467 (D.N.J. 2008).

[2] Id. at 472-73.

[3] Hall v. United Ins. Co. of America, 367 F.3d 1255, 1261 (11th Cir. 2004).

[4] Id. at 1261-62.

[5] Lorandos, supra note 8. Moreover, the majority of this misleading, unreliable and highly damaging inexpert testimony is introduced by prosecutors, who, as a group, enjoy near carte blanche when seeking to admit any scientific expert; according to a 2010 study, a whopping 95.8% of proffered prosecution experts were admitted, compared with only 7.8% of those offered by criminal defendants. Id.

[6] Stephen Breyer, Science in the Courtroom, 16 Issues in Sci. & Tech. 52, 53 (2000). Lorandos, supra note 8, at 4-5.