19 October 2015

A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

10 comments:

  1. Hi Mr Boyd,

    Last week many people in my support group were insisting that in BC, after six months of unmarried cohabitation an end to the relationship demands that half of a person's assets and ongoing income must be given to their former partner. Many comments on a CBC news article said similar things.

    From what I've read here and elsewhere, I think this is incorrect. I believe it is one year of cohabitation before people must file taxes with each other listed as partner, and two years of cohabitation before people become liable to split assets (gained since move-in date) and possibly pay support.

    Does six months of (romantic) cohabitation in BC mean each partner is potentially liable to pay the other assets, split debts, pay spousal support, or pay child support for a partner's child upon a breakup? If not, when does that legal responsibility kick in?

    Thanks!

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    1. i'm afraid that the people in your group are mistaken. You're right, in broad terms, about the rules on family property and unmarried spouses in BC. Although unmarried couples who have lived together for less than two years can become liable for support, that's only if they have a child together and doesn't apply to property and debt.

      Rather than try to summarize the law about when unmarried couples become spouses and the rights and responsibilities of unmarried spouses, let me just refer you to my wikibook:

      http://wiki.clicklaw.bc.ca/index.php/Unmarried_Spouses

      This page ought to tell you all you need to know.

      Delete
    2. Chris Hawley14/1/16 12:20 AM

      I'm sorry for coming so late to this thread. I think this is an interesting concept; certainly, any approach that reduces blame and seeks resolution and restoration ought to be explored and pursued. But, with respect, I think you might be overlooking one important factor. In situations where one parent alleges alienation activities against another parent, there are likely many cases where the allegations are legitimate and substantiated. It's hard to know how many allegations are legitimate, but I read one recent study that stated that judges arrived at a finding of alienation in 61% of the family court cases where an allegation was made.

      In these cases, the behavior of the "favored parent" (as you call it) is a major issue. In my view, attempting to poison a child against a parent is one of the most damaging things a parent can do, and will probably have lasting effects deep into adulthood. While it's admirable to suggest that intervention should focus on restoring the relationship between the targeted parent and the child, the fact is that the favored parent remains in the mix, and in many cases will be resisting restorative efforts with the targeted parent. After all, the point of alienation activities is usually to disrupt the attachment of the targeted parent, isn't it?

      It's likely that some parents who are on the receiving end of parental alienation activities aren't actually terrific parents. It's also likely that some parents who are on the sending end of alienation activities simply believe the other parent isn't actually a terrific parent. It's difficult to say. But whatever the case, an attempt by one parent to create camps inside the family, and persuade the child to move into one camp over the other, is never the right move. I'm sure it often points to an underlying psychological condition, of which alienation is only one manifestation. Accordingly, I wonder about the wisdom of addressing the symptoms without addressing the cause.

      Having said all that, I agree that these sorts of allegations are toxic, deepen the conflict, and place a considerable strain on court and family resources to address. But, then again, sometimes they are true. No doubt, targeted parents feel a deep sense of hurt, but sometimes those feels are mixed with genuine concern for the wellbeing of the child. One possible therapeutic approach would be to combine work that restores the relationship with the child and the rejected parent, while providing behavioral co-parenting coaching to both parents.

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  2. What if a parent agrees to show up every 2 months to visit the child (consent order) and they don't show for an entire year? Then they just all of a sudden decide to come again...every month or 2 months. Is this behavior allowed?

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    1. No, that's not okay. It's really not cool at all. If someone buggers off like that, with no effort to maintain contact with the child, I'd be worried about the child, and how confused he or she would be with the parent just showing up. Depending on how old the child is and how he or she is reacting to the absence, I would be thinking about varying the order to reduce the parent's time with the child or perhaps require some sort of parenting counselling. Also, the new Family Law Act actually includes remedies for when someone doesn't exercise the time they have with a child.

      Whatever you do, you really must speak with a family law lawyer in your neighbourhood about your options.

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  3. If a parent who had gaurdianship of a child, has to allow contact with another parent (who does not have gaurdianship) can the non-gaurdianship parent do whatever they want with the child during the visit? Or does the gaurdian have a say?

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    1. When one parent is a guardian and the other parent isn't, the guardian has all of the parenting responsibilities listed in s. 41 of the Family Law Act as well as the right to make day-to-day decisions about the child when the child is with her. The parent who isn't a guardian doesn't have care and control of the child during his contact, doesn't have the right to make day-to-day decisions about the child and doesn't have the right to exercise any parenting responsibilities with respect to the child.

      What this means, of course, is that the non-guardian can't take the child to a doctor or counsellor during his contact, can't enrol the child in a new school during his parenting time, or indoctrinate the child in a new religion, get the child's teeth fixed, pierce the child's ears, get the child's hair cut and so on. This doesn't mean that the non-guardian can't do irritating things like take the child to an inappropriate movie or do a risky activity with the child.

      If this sort of thing is going on, and the non-guardian won't agree to stop, the guardian can apply to court for an order limiting the sort of things the non-guardian does with the child.

      If this is happening to you, you really should speak to a family law lawyer in your neighbourhood to get some proper legal advice about what your rights and options are.

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    2. Okay so let say that (hypothetically, I realize you can't give legal advice) the visits are supervised (ongoing) and the agreement states that the supervisor has "general care" of the child. "General" is open to interpretation. I would assume it would mean the supervisor is the Guardian during the visit, and is allowed to make decisions about the child's care. Let's say the agreement also states that the supervisor holds the authority to end the visit at thier absolute discretion. I'm assuming since that is open for interpretation, it could mean that the supervisor has a say in the level of appropriateness each activity the parent with contact chooses to participate in with the child. Reasonably of course...

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    3. A supervisor who isn't a guardian doesn't become a guardian unless he or she is appointed a guardian. If the supervisor is a professional, he or she will likely have guidelines about the nature of the role and the circumstances that will trigger intervention in the contact visit.

      You really must speak to a lawyer to get some proper legal advice. You can speak to a lawyer for free through Access Pro Bono or your can get 30 minutes of a lawyers' time through the Lawyer Referral Service.

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