Month: September 2022

Misinformation In Child Custody

Posted on by Shawn Wygant

Misinformation:  “Parenting is a privilege not a legal right … courts have no right to interfere,” and children have a right to choose with whom they live.[1]

         The idea that parenting is not a legal right, by Hoult, is equally as misguided as her misunderstanding First Amendment law:

The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child …. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.[2]

         Every actual expert in child custody law understands that a parent’s right to custody must be “balanced against the state’s need [and power] to determine the best interests of the child.”[3] In determining what will serve a child’s best interests, experts and our courts typically use a multi-factor test[4].  One, but just one, factor, and certainly not the weightiest, is the child’s preference—which typically has more sway the older the child[5]. However, the child’s preference is always out-weighed by a “parent’s natural right to the custody of his or her child.[6]” Therefore, while a “well-reasoned preference by a mature teenager can … be a deciding factor …. [I]n cases where … there is evidence that the choices were motivated by bad reasons, the court may choose to disregard the child’s preference, or to give it little weight.”[7] One prominent example of just such a bad reason is PA, which justifies a custody award against a manipulated child’s preference.[8]

         We believe at PsychLaw.net It is clear that the construct–PA passes all relevant tests, be it Daubert, Frye, or some other variant. Using material in this book, it is not only easy to prove this in court, but to fully refute the arguments of those who claim otherwise.

[1] Hoult, supra note 136, at 7:39-7:54; 25:45; 51:15; 76:30.

[2] Santosky v. Kramer, 455 U.S. 745, 753 (1982)

[3]  See Pater v. Pater, 588 N.E.2d 794, 798 (Ohio 1992); Palmore v. Sidoti, 466 U.S. 429, 433

(1984). See also In re Estate of S.T.T., 144 P.3d 1083, 1088 (Utah 2006).

[4] See, e.g., Schaeffer-Mathis Schaeffer v. Mathis, 407 P.3d 485, 492-493 (Alaska 2017)

(discussing its nine-factor test).

[5]  See Meehan-Greer v. Greer, 415 P.3d 274, 282 (Wyo. 2018). Thompson v. Thompson, 905

N.W.2d 772, 779 (N.D. 2018)

[6]  In re Lilly S. v. Kenny S., 903 N.W.2d 651, 662 (Neb. 2017)

[7] Mathis, 407 P.3d at 492-493(affirming trial court’s finding mother had coached and influenced children to lie to authorities about father’s conduct and ignoring children’s stated preferences).

[8]  Id. Wolt v. Wolt, 778 N.W.2d 786, 793 (N.D. 2010) (“evidence of parental alienation is a

significant factor in determining custody). Stern v. Stern, 758 N.Y.S.2d 155, 155 (N.Y. App.

Div. 2003) (“The defendant’s conduct in alienating the children from their father is an act …

inconsistent with the best interests of the children…”). Price v. Price, 611 N.W.2d 425, 434-435

(S.D. 2000) (ignoring 11-year-old’s expressed preference in face of mother’s pattern of

alienation).

 

How the “Natural History” Of A Child Abuse Allegation Must Be Examined

Posted on by Shawn Wygant

Psychologist researcher Hollida Wakefield and Lutheran Minister turned clinical psychologist, Ralph Underwager, taught that the “natural history” (origin, timing, and nature) of a child abuse allegation must be examined (Wakefield & Underwager, 1990 & 1991).  While they focused primarily on sexual abuse accusations, their strategy is applicable to other forms of alleged abuse as well.  They provided preliminary guidelines for the determination of true versus false accusations. They defined factors behind false allegations of sexual abuse, including the character of the accuser, the persons who aid and in many cases abet the accuser, and the use of leading or manipulative questioning.  Counsel and the defense team should be mindful of the list Wakefield and Underwager (1990 &1991) provided to differentiate between real and false allegations; they suggested the fact finder examine the:

  • Origin of the disclosure;
  • Timing of the allegations;
  • Age of the child;
  • Behavior of the accusing parent;
  • Nature of the allegations;
  • Characteristics of the child’s statement;
  • Personality characteristics of the parties involved; and
  • Behavior of the Professionals involved.

For this reason counsel, staff researcher and the defense team expert must carefully analyze every statement made by Adrian, every statement attributed to Adrian by another, and specifically how the CPS and the CAC personnel arrived at their conclusions.  The CAC video-recorded “forensic” interviews must be analyzed, second by second, for indications of parental influences; interviewer bias; leading, suggestive, or repetitive questions; interviewer modifications of what was said; questions that suggested new content; questions that denigrated Richard; and so forth.  Each utterance must be coded as to when it was made, what specifically was said and to whom the statement was made.   Lacking a skilled researcher, this process can be replicated by any attorney near a university.  A little searching (try Craig’s List) will find a social sciences graduate student who is already plugged into numerous medical and behavioral science databases through their study.  They all need money and the good ones can break down the science jargon easily. The statements analysis should then be laid out in an Excel spreadsheet.  These coded lists should be cross-referenced as they will form the basis for cross-examination of the accuser and other witnesses over their inconsistencies, contradictions, and outright fabrications.

In Richard’s case, counsel will prepare specific science content areas to deal with the alleged “Daddy hurt me” statement and its aftermath. Review of the natural history of the allegation shows that some time before little Adrian is said to have made the “Daddy hurt me” statement, Jane was away at a continuing education seminar and Adrian and Richard traveled to a hotel and theme park.  On the return trip to the family home, Richard was cut off in traffic by an elderly couple driving through a red light.  When he slammed on the brakes, Adrian’s improperly fastened seat belt gave way and the child collided with the rear passenger doorpost.  Her black eye and bruises took several hours to appear.  When they arrived home, Jane grabbed Adrian and left the home.  To educate the trier of fact about what Jane has been saying to Adrian and how the “Daddy hurt me” statement came about is counsel’s first science content area: parental influences on children’s memory.   When Jane took little Adrian to CPS, the investigator sent Jane and Adrian to the local CAC for a forensic interview.  With respect to the interview and the effects of the play therapy on Adrian, counsel’s second science content area is children’s suggestibility.

Over the course of months since the alleged “Daddy hurt me” statement, the play therapist has carefully noted the many additional statements Adrian has made involving “Daddy” and “hurting” and “a long time.”  Jane’s counsel, the prosecutor and the play therapist all say that Adrian’s alleged “Daddy hurt me” statement is clearly a delayed disclosure.  This, then, is the third science content area counsel we at PsychLaw.net know must develop.

Wakefield, H., & Underwager, R. (1990).  Personality characteristics of parents

making false accusations of sexual abuse  in  custody   disputes. Issues in

Child Abuse Accusations, 2(3), 121–136.

Wakefield, H., & Underwager, R. (1991). Sexual abuse allegations in divorce and

custody disputes, Behavioral Sciences and the Law, 9(4), 451-468.

The Debate Regarding PA And PAS In The Mental Health And Legal Professional Literature

Posted on by Shawn Wygant

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 because each 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).

In this chapter, we at PsychLaw.net briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  See Chapter 2 for a more complete explanation of the evaluation process and Chapters 3, 4, and 5 for a discussion of the treatment of mild, moderate, and severe cases of PA. For additional information regarding reunification therapy, see Chapter 7.  Mental health and legal professionals also try to influence courts and legislatures in shaping social policy, which is discussed in Chapter 9.

Baker, A. J. L., Jaffee, P. G., Bernet, W., & Johnston, J. R. (2011).  Brief report on parental alienation survey. The Association of Family and Conciliation Courts eNEWS 30(2).  

Bernet W. (1983). The therapist’s role in child custody disputes. Journal of Child Psychiatry 22:180-183.  

Bernet, W. (2010). Parental alienation, DSM-5, and ICD-11. Springfield, IL: Charles C Thomas Publisher. 

Bruch, C. (2001). Parental alienation syndrome and parental alienation: Getting it wrong in child custody. Family Law Quarterly, 35, 527. 

Bone, J. M. & Sauber, S. R. (2012). The essential role of the mental health consultant in cases of parental alienation.  In A. J. L. Baker & S. R. Sauber (Eds.), Working with alienated children and families: A clinical guidebook.  New York: Routledge. 

Ellis, Elizabeth M. (2000). Divorce wars: Interventions with families in conflict. Washington, DC: American Psychological Association.

Faller, K. (1998). The parental alienation syndrome: What is it and what data support it? Child Maltreatment, 3(2), 100-15. 

Faller, K. (2000). Child maltreatment and endangerment in the context of divorce. University of Arkansas Little Rock Law Review, 22, 429-444. 

Faller, K., & DeVoe, E. (1995). Allegations of sexual abuse in divorce. Journal of Child Sexual Abuse, 4(4), 1-25. 

  • 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.

Greenburg, L. R., Gould, J. W., Schnider, R. A., Gould-Saltman, D. J., & Martindale, D. A. (2003). Effective Intervention with High-Conflict Families: How Judges can Promote and Recognize Competent Treatment in Family Court. Journal of the Center for Families, Children and the Courts, 4, 49-65. 

Hoult, J. (2006).  The evidentiary admissibility of parental alienation syndrome: Science, law and policy.  Children’s Legal Rights Journal 26 (1): 1-61. 

Kirkland, K., & Kirkland, K. E. (2006). Risk Management and Aspirational Ethics for Parenting Coordinators. Journal of Child Custody, 3(2), 23-43. 

Kelly, J. B. (2010). Commentary on “Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated Children” (Warshak 2010). Family Court Review, 48(1), 81-90.  

Kelly, J. B., & Johnston, J. R. (2001). The Alienated Child: A Reformulation of Parental Alienation Syndrome. Family Court Review, 39, 249-266. 

Sullivan, M. J. (2004). Ethical, Legal, and Professional Practice Issues Involved in Acting as a Psychologist Parent Coordinator in Child Custody Cases. Family Court Review, 42, 576-582. 

 

 

 

 

The Debate Regarding PA And PAS In The Mental Health And Legal Professional Literature.

Posted on by Shawn Wygant

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 because each 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).

In this chapter, we at PsychLaw.net briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  See Chapter 2 for a more complete explanation of the evaluation process and Chapters 3, 4, and 5 for a discussion of the treatment of mild, moderate, and severe cases of PA. For additional information regarding reunification therapy, see Chapter 7.  Mental health and legal professionals also try to influence courts and legislatures in shaping social policy, which is discussed in Chapter 9.