What role does the court play in PA cases

In this blog post we at PsychLaw.net will be discussing the role of the court in PA cases. While the behavioral sciences have been concerned with PA for the last seventy years, PA has been identified in legal proceedings for more than two hundred years.  Stephens (2009) documented cases of PA all the way back to the 18th century in England.  There has been much criticism for many years regarding the handling of PA cases in court – with the criticism ranging from the adversarial nature of law itself to the rules and policies of many courts to the behavior of individual judges.  Many mental health and legal writers have expressed concern regarding: absence of active case management, legal disputes that continue for months and years, litigation that unnecessarily escalates conflict, litigation that encourages the children to gravitate to one parent and shun the other parent, and repeated violations of orders go unpunished so parents make a mockery of the court’s authority.

         Several judges in the U.S. and Canada have been outspoken in their suggestions for how to reduce the trauma of PA.  For example, Judge Michele Lowrance (2010) of Chicago stresses the corrosive power of anger in these circumstances and works to redirect it.  Justice Donna Martinson (2010) of British Columbia argued that “several steps are necessary in order to maintain the focus on the best interests of the children and move the case to a resolution in a just, timely and affordable way” including: early identification of the high conflict cases; setting, right at the start, firm rules about the expected conduct of the parents toward the litigation, the children and each other; setting a time frame within which the case must be concluded; and setting a schedule within the time frame for all the steps that must be taken before a solution can be reached including any necessary psychological or other assessments.

In cases involving PA, case management is important.  Bala, Fidler, Goldberg, and Houston (2007) wrote:

It is important for judges to take control of alienation cases, to limit the possibility of manipulating the court process by the parents, and to ensure a firm and quick response to violations of court orders. These are cases for which judicial case management is especially appropriate. 

 

         In cases involving PA, therapeutic jurisprudence may be very effective.  Sauber (2006) pointed out that the court has the power and the influence – even more than the psychologist, psychiatrist, mental health counselor, social worker, or family therapist – to moderate or alleviate PA.  Fidler and Bala (2010) wrote, “In many alienation cases, the education, coaching, and threats or encouragement of a judge can be a prime motivator for change. Many times in these circumstances, we see children adapt to firm court orders.” 

         In cases involving PA it is important to set limits, which may require extreme measures.  That may take the form of contempt citations, imposed supervised contact, a reversal of custodial arrangements, and suspension of visitations with the indoctrinating parent.  Sauber (2006) wrote, “It takes ‘guts’ for a judge to order this reversal even if the evidence is compelling, knowing how much the children will ‘hate’ and protest living with the ‘despised’ parent” (p. 15).

         In cases involving PA, environmental changes may be very effective in helping children overcome unreasonable negative attitudes.  Several authors describing their qualitative research using case studies have reported on the benefits of changing custody or enforced parenting time in severe alienation cases. For example, Clawar and Rivlin (1991) reported an improvement in children’s relationships with rejected parents in 90 percent of 400 cases where an increase in the child’s contact with the target parent was court ordered.  They wrote:

Children may say, “I hate her. I’ll never speak with her if you make me go see her,” “I’ll run away,” or “I’ll kill myself if he comes to see me.” However, in some cases, children were told to say these things by the programming and brainwashing parent…. It is not uncommon to see these threats disintegrate after court orders change (p. 144).

 

Today, there is general recognition that a reversal of custody may be warranted in severe cases (Drozd & Olesen, 2009; Johnston & Goldman, 2010; Johnston, Roseby, & Kuehnle, 2009; Warshak, 2010b).  

Bala, N., Fidler, B. J., Goldberg, D., & Houston, C. (2007). Alienated children and parental separation: Legal responses in Canada’s family courts. Queen’s Law Journal, 33, 79-138. 

Drozd, L. M., & Olesen, N. W. (2009). When a child rejects a parent. Paper presented at the 46th Annual Conference of the Association of Family and Conciliation Courts. 

Fidler, B. J., & Bala, N. (2010). Children resisting post-separation contact with a parent: Concepts, controversies, and conundrums. Family Court Review, 48(1), 10-47. 

Johnston, J. R., & Goldman, J. R. (2010). Outcomes of Family Counseling Interventions with Children Who Resist Visitation: An Addendum to Friedlander and Walters. Family Court Review, 48, 112-115. 

Johnston, J. R., Roseby, V., & Kuehnle, K. (2009). In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (2nd ed.). New York, NY: Springer. 

Lowrance, M. (2010). The Good Karma Divorce. New York: Harper Collins. 

Martinson, D. J. (2010). One Case – One Specialized Judge: Why Courts Have an Obligation to Manage Alienation and Other High-Conflict cases. Family Court Review, 48(1), 180-189. 

Sauber, S. R. (2006). PAS as a Family Tragedy: Roles of Family Members, Professionals, and the Justice System. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations (pp. 12-32). Springfield, IL: Charles C Thomas Publisher. 

Stephens, R. (2009).  A Historical Perspective on Parental Alienation and Child Custody Disputes: 1760-Present.  Unpublished manuscript. 

Warshak, R. A. (2010b). Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated Children. Family Court Review, 48, 48-80. 

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