Seeking to Reverse Parental Alienation Through Court Action | Part 4 of 4

How to Combat Parental Alienation is a four part series for parents and family lawyers.  Part 4 discusses: Seeking to Reverse Parental Alienation Through Court Action. How Do You Win a Parental Alienation Case in Court? Parental Alienation: Changing Legal and Physical Custody.

Part 4:  Seeking to Reverse Parental Alienation Through Court Action

When parental alienation is working and the targeted parent has tried everything, filing with the court is an option. Failing to take legal action allows the abuse to continue, hardening the child’s rejection. Although litigation may exacerbate alienation in high conflict cases, sometimes requesting a change of custody is the only choice in the child’s best interest.

Before deciding what tack to take – to file or not to file – the alienated parent must appreciate the court’s powers and limitations. What relief will be requested? How will the problem of parental alienation be addressed? Before seeking requested relief, understand what the judge can and cannot order. Most experienced judges will not simply order: “Neither parent will alienate the child from the other parent.”  Enforcement would be a nightmare.  Be informed. Use this overview to learn what a court filing could look like.

How Do You Win a Parental Alienation Case in Court?

Evidence will be key. Proving the effects on the child is key. The alienated parent’s attorney will request information and documents during discovery (interrogatories, depositions, requests for production of documents, and requests for admissions). The attorney will depose the alienating parent and subpoena records and witnesses. The targeted parent should have been documenting events, spotting behavioral patterns, preparing a chronology, and gathering information and evidence already.

What requests for relief should be included in the pleading? The alienated parent may ask the court to order any of the following:

1. Mandatory counseling;
2. An Independent Child Custody Evaluation (ICCE);
3. Appointment of a Guardian ad Litem (GAL); and to
4. Punish the alienating parent.

What follows is a brief explanation of each relief order.

1. Mandatory Counseling

Whether evidence of alienation is thin or abundant, the judge may order counseling as the first step. Mandatory counseling means compelling the alienating parent to attend family therapy with the child and possibly with the other parent.

The downside? Some people resist being compelled to participate in counseling.  There are MHPs and attorneys who argue mandatory counseling could make matters worse, particularly when alienation is severe. Filing suit may be the white flag of surrender an alienating parent has been hoping for and working toward, proof the target has lost or is losing the battle. (Alienating parents “almost always manifest narcissistic, and borderline personality features,”[1] and mandatory counseling could be another avenue for manipulation.)

Is there ever a time to give up the ship? If the alienation has been so successful with a child, then total, unconditional surrender may be best. Friedman and Landers concur on this, despite the emotional impact on the alienated parent. To Landers, “[C]hildren who have been the subject of alienation for long periods of time, and children who are older are the most difficult children to turn around. With an older child who has been alienated for a significant period of time it might be a better choice to avoid litigation and let time and experience help you. Your mental health providers will need to guide you carefully on this terrible decision.”

The best outcome will be with early intervention. Judicial intervention is not always desirable with mild alienation where alternative measures may be more effective (a four-year-old gets upset during exchanges, but settles down shortly thereafter). Court intervention is necessary in severe cases where the target’s access to the child is blocked (a teenager refuses to spend time with the parent for no good reason). Mandatory counseling could work with early intervention. Realistically, though, by the time the case is heard the alienation may be advanced with urgent measures necessary.

Two or more qualified, trained, experienced MHPs may be needed. Treating only the child will likely fail and could reinforce the pattern of rejection. A combination of therapy, psychological testing, and support for parents’ emotional responses is typical. Although well-meaning, a therapist who is not specially trained in the area of parental alienation could reach an incorrect diagnosis. Although reunification therapy could work, few psychologists specialize in this area.

2. Independent Child Custody Evaluation (ICCE)

   

   How Do You Win a Parental Alienation Case in Court?

A court-appointed forensic child custody evaluator serves as an expert witness.[2]   In preparing a comprehensive report, the independent forensic child custody evaluator gathers objective data and posits multiple, plausible explanations for the child’s alienation. (Allegations of parental alienation may stand alone, be part of a relocation case, or combine with domestic violence allegations.) The evaluator may find many reasons for the rejection or find no realistic basis at all for the child’s feelings.[3] The expert may recommend a family therapist be agreed upon by both parents.

Interviewing both parties, the evaluator gets each parent’s take on allegations of interference or alienation – each other’s strengths and weaknesses, the child’s unique needs, the level of cooperation and communication in co-parenting, and so on. The evaluator needs to ask the parents and the child all the right questions to ascertain:

• The history and nature of each parent’s relationship with the child (before and after separation).[4]
• The child’s exposure to adult conflict and any history of actual or alleged abuse or violence.
• Each parent’s view of what is contributing to the child’s resistance toward the target and suggestions for resolving the problem.
• Why a parent alleges alienation if the child is not currently resisting parenting time with him or her.
• Aspects of parental gatekeeping (facilitative or restrictive).

In alienation cases specifically, the evaluator conducts multiple interviews with the child:

• What does the child think about each parent? What positives and negatives has the child experienced in a relationship with each?[5]
• How does the child feel about the parents’ conflict? How has the child managed his or her feelings to cope with the conflict?
• What is the child’s explanation for not wanting to see the target?
• How does the child explain each parent’s reaction to the resistance?
• What does the child think will help resolve the resistance?
• Does the child wish to share something more with the evaluator? Is something unique to the case?

With the report complete, the attorney offers evidence to either substantiate or minimize the evaluator’s most plausible hypothesis.

Example: The alienated parent requests modified custody a year after the parties’ high conflict divorce. The evaluator concludes the most plausible explanation for the child’s alienation is the parties’ persistent conflict. (The child found safe harbor by clinging to one parent and rejecting the other.)

To counter the evaluator’s conclusion, the attorney introduces evidence of the other party’s alienating tactics to show an intentional campaign (does not let the child talk privately to the client on the phone, disregards the exchange schedule, has the child call to cancel parenting time). This is to show a different explanation is more plausible or equally plausible than the one posited by the evaluator.

3. Guardian ad Litem (GAL)

In Tennessee and other jurisdictions, the judge may appoint a Guardian ad Litem (an attorney) to represent the child’s best interests by gathering facts and presenting them to the court. A parent’s “interference, or threatened interference, with custody, access, visitation, or parenting time” is basis for appointment.[6] Involving the GAL to conduct a full investigation and provide feedback is essential. The court has determined that the child’s best interests are either not adequately protected by the parties or the parents’ interests may conflict with the child’s.

Once appointed, the GAL is required to represent the child’s best interests in court proceedings only. However, that appointment does not give rise to an attorney-client relationship with the child.[7] There is a legal distinction between representing the best interests of the child and representing the child. (An attorney-client privilege does exist between a Child’s Attorney and minor client.) What does this mean practically? When litigating parental alienation, the indoctrinated child may “wish” to remain with the alienating parent, resist therapy, or express a desire for supervised visitation, among other things. If, after the investigation, the GAL believes the minor’s wishes go against the child’s own best interests, then the GAL has no duty to advance the child’s desires. The GAL may assert the child’s psychologist-patient privilege to keep confidential mental health records from disclosure during the proceedings.

4. Punish the Alienating Parent

The notion that simply filing an action is punishment enough is quite mistaken. In fact, the alienating parent may even be emboldened by the target’s decision to file. With parental alienation, the punishment should fit the harm but also be in the best interests of the child. Given the seriousness of the harm once proven, there are four possible consequences. The court may:

• Change legal and physical custody from the alienating parent to the alienated parent;
• Modify parenting time;
• Require supervised parenting time; and
• Make findings of contempt with proof the existing order was violated.

Determining what is in the child’s best interests is foremost. A change in custody is the most severe penalty, representing a dramatic loss for the alienating parent.

Parental Alienation: Changing Legal and Physical Custody

Parental Alienation: Changing Legal and Physical Custody

Should custody be taken away from the alienating parent? The victim of an alienation campaign may request sole legal decision-making authority and PRP designation. Requesting a custody change away from the parent who is harming the child places the burden of proving the alienation on the parent seeking modified orders. Again, evidence is crucial. The parent seeking modified custody will have to prove a change of circumstances that materially alters the child’s well-being. One such material change is the alienating parent’s failure to adhere to the court-ordered parenting plan.

Modified Parenting Time

Requesting a change to the original parenting time schedule is less severe than a change of legal or physical custody, but still involves proving a material change of circumstances has occurred since the original custody decree. For example, by showing that when the alienating parent has the child, he or she routinely refuses to allow regular parent-child communication and is habitually late for the return exchange.

Supervised Parenting Time

The court may order supervised parenting time for the alienating parent as well. This is to protect the child during the visit and prevent additional harm. Supervised therapeutic visitation may be ordered if the court determines that visitation with an alienating parent is likely to endanger the child’s physical or emotional health.[8] Generally, the parenting time supervisor may be a qualified counselor, family member, or approved agency.

Contempt of Court

Has the alienating parent violated the court’s final orders? As with child support orders, violating custody orders (and everything embodied in the Parenting Plan) can result in the alienating parent being compelled to either comply or risk jail time. Additionally, the alienated parent may request an award of reasonable attorney’s fees.

How family law attorneys successfully defend against false allegations of child abuse also applies to these cases. But where no physical harm is involved, the judge might not take immediate action to upset the status quo.

These are challenging cases and rarely clear-cut. Going to court on these issues can be expensive. Judges have difficulty determining who is telling the truth. The only witness is a child or children, and most judges want to avoid hearing from a young child. Expect to involve an MHP experienced with these situations. Listen to your lawyer. Consider options seriously and unemotionally.

Lastly, do not assume this could never happen. Be vigilant. Some mothers and fathers deliberately interfere. But data shows how even well-intentioned adults can cause or exacerbate parental alienation. High conflict divorces put pressure on children who, too often, feel they must cast away one parent to find safe harbor with the other.

Continue reading: How to Combat Parental Alienation

• Part 1: What Is Parental Alienation?
• Part 2: How Do I Protect My Child from Parental Alienation?
• Part 3:  How to Prove Parental Alienation in Court
• Part 4:  Seeking to Reverse Parental Alienation Through Court Action
• Top Lawyers’ Advice for Targets of Parental Alienation
• Parental Alienation Evidence with Forensic Psychologist Robert Simon, Ph.D.

Endnotes:

[1] Susan Heitler, PhD, Parental Alienation: Treatment and Resources, retrieved 6/25/2020. https://www.therapyhelp.com/parental-alienation-assessment-treatment/

[2] See Mason, M, “A Guide to the Independent Child Custody Evaluation” 51 Tennessee Bar Journal, 11 (Nov. 2015) reprinted by permission at https://memphisdivorce.com/independent-child-custody-evaluation/.

[3] Stahl & Simon at p.29.

[4] Stahl & Simon at p.140.

[5] Stahl & Simon at p.141.

[6] Supreme Court of Tennessee Rule 40A: Appointment of Guardians ad Litem in Custody Proceedings.

[7] Runyon v. Zacharias, No. W2016-02141-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018). See https://memphisdivorce.com/tennessee-child-custody/appointment-gal-not-give-rise-attorney-client-relationship/ for case summary.

[8] In re Jackson, No. W2018-00629-COA-R3-JV (Tenn. Ct. App. Nov. 1, 2018).