Divorce

Leave No Child Behind: Parental Alienation in Family Courts

In late 2020, Ashish Joshi, the editor of Litigation—the American Bar Association’s preeminent journal in the field of trial practice—convened a panel to discuss how courts handle parental alienation issues. I was privileged to be one of the three panel members. Also on the panel were two judges. Judge Elizabeth Gleicher is a recipient of the State Bar of Michigan Champion of Justice Award and sits on the Michigan Court of Appeals. Judge Kristina Karle is a former prosecutor with experience in domestic violence and child abuse cases at the Monroe County, New York, District Attorney’s Office and presides in the Ontario County, New York, court.

A transcript of this discussion was published in the Summer 2021 issue of ABA’s Litigation. Joshi’s outstanding article is must reading for lawyers, judges, parents, and mental health professionals.

The article covers a wide range of issues including:
• the devastating effects of parental alienation on targeted parents
• tips for ensuring that a proper trial record is made for successful appellate review
• the importance of educating courts on the dynamics of child abuse and parental alienation
• common myths that can compromise judicial outcomes
• the danger of judicially enabled parental alienation
• the effectiveness of court-ordered psychotherapy
• payoffs and pitfalls when judges appoint attorneys to represent minor children
• the role of the child’s stated preferences in custody cases
• the fallacy of ignoring parental alienation concerns when an alienated child is performing well in school and social spheres.

I covered the last point in my article on “Ten Parental Alienation Fallacies That Compromise Decisions in Court and in Therapy,” but I especially welcomed Judge Karle’s contribution drawing on her experience as a child abuse and domestic violence prosecutor: “I had countless cases in which a child was regularly abused, yet excelled at school, got straight As. They could control their grades; they could not control the abuse. . . . We have to be very careful not to just reject concerns about high-performing children, thinking that if they are doing great in school, no abuse could be occurring. We’ve got to dig deeper.”

Judge Karle’s recognition of parental alienation as abuse, and the need for courts to rapidly impose consequences when court orders are flouted, is further evidence that advocates for victims of domestic violence and child abuse make a huge mistake when they reject the reality of parental alienation concerns. When a former prosecutor of family violence recognizes parental alienation as child abuse, isn’t it time for DV advocates to rethink their rigid dismissal of the concept of parental alienation and its value to family courts?

On the pitfalls of empowering alienated children with a court-appointed lawyer, Judge Gleicher observed, “We know in the criminal law context that the decisions adolescents make—even 17-and-a-half-year-olds—are not subject to the same review as those of adults. So why, in the family law context, do we suddenly forget those lessons and say to adolescent children we’re going to give you a lawyer so you can bring your craziness right into court and you can have an equal voice with everybody else. It just makes no sense.”

In my concluding remarks, I expressed the hope for “greater awareness in society of PA, with a corresponding ethos that discourages parents from, and condemns them for, engaging in alienating behavior.”

Gender Roles and Custody Reform: A Funny Thing Happened on the Way to the Laboratory – audio download

In the mid-1990s, a few high profile mothers who faced the prospect of losing custody of their children captured the attention of the media and led to cries of judicial bias. One of these mothers was O. J. Simpson prosecutor, assistant DA Marcia Clark.

Dr. Warshak was asked to address the issue of gender bias at a 1995 international conference in Montreal, Quebec, Canada.

He begins by discussing the manner in which gender stereotypes have shaped custody decisions throughout history. Next he takes up the question of whether, and in what form, gender bias is part of the current custody scene. Avoiding simplistic approaches to the topic, this presentation examines a range of criticisms leveled at the best-interests-of-the-child standard, from both women’s and men’s advocacy groups.

Dr. Warshak explains why allegations of systematic discrimination are difficult to evaluate and he gives examples of how advocacy groups and the media misrepresent the state of research in order to support their preconceived opinions.

Conceding that the absence of reliable data on the question of gender bias in court decisions invites rhetoric in place of reason, Dr. Warshak next addresses the wider issue of whether gender bias rules the ninety percent of cases decided outside of court. Dr. Warshak shows why the question “Which parent should get custody?” lies at the heart of gender bias claims. He then examines four explanations that have been offered to defend the mother’s preferential claim to custody, and concludes that the best scientific evidence proves that neither nature nor experience gives women a monopoly on parental competence either before or after divorce. This section offers a more detailed analysis and criticism of the primary parent standard than in Dr. Warshak’s previous work.

The presentation concludes with a brief discussion of research findings demonstrating the need for a new approach to custody decisions that guarantees children their birthright to both parents. Dr. Warshak makes a simple suggestion to ensure that custody reform reflects the needs of children rather than the demands of adults.

Approximately 30 minutes

The Approximation Rule Survey: The American Law Institute’s Proposed Reform Misses the Target

The Approximation Rule Survey: The American Law Institute’s Proposed Reform Misses the Target

The American Law Institute (ALI) proposed that in contested physical custody cases, the court should allocate to each parent a proportion of the child’s time that approximates the proportion of time each spent performing caretaking functions in the past. The rule is intended to function as a default presumption in disputes decided by a court and as a backdrop for pre-trial negotiations. Proponents of the approximation rule assume that the adoption of the rule, by Continue reading

Benefits and Hazards of Involving Children in Custody Decisions – video download

30-benefits-and-hazardsOn this video, see and hear Dr. Warshak deliver what he considers one of his finest speeches. This entertaining and very well-received keynote address was delivered to an audience of judges, attorneys, and mental health professionals.

Dr. Warshak explains why and how children can make important contributions to custody decisions. But he
cautions professionals about the risks of damage to children and their families when children participate in custody Continue reading

Bringing Sense to Parental Alienation: The Disputes and the Evidence

Bringing Sense to Parental Alienation: The Disputes and the Evidence

This article, published in a prestigious law journal, is Dr. Warshak’s most thorough examination to date of different ideas about pathological alienation and its status in custody litigation. It examines a continuum of opinions about parental alienation with reference to relevant scientific literature and is an attempt to introduce rationality in an area that suffers from polemics and politics.

Continue reading

Obstacles and Controversies in the Pursuit of Children’s Best Interests

Obstacles and Controversies in the Pursuit of Children’s Best Interests

This pamphlet is an expanded version of an enthusiastically received keynote address delivered by Dr. Warshak in Arizona in 2000. It proposes the types of reforms necessary for parents, professionals, and courts to better define the best interests of children.

Dr. Warshak calls for more diligence in custody evaluations and in reviews of the literature. He criticizes policies which automatically  discourage joint custody when divorcing parents are in Continue reading

Relocation Litigation And Children’s Best Interests: Revisiting Burgess 1

Relocation Litigation And Children’s Best Interests: Revisiting Burgess 1

This article appeared in a 1999 State Bar of Texas Family Law Section Report. It was adapted from the relocation monograph described as Social Science and Relocation Litigation. Readers interested in an abbreviated overview of the monograph will find this article helpful, but it lacks the documentation of the more complete publication (e.g., 20 versus 199 endnotes).

The article discusses the relevance and utility of social science in relocation disputes, and it Continue reading

Parental Alienation Syndrome in Court

Parental Alienation Syndrome in Court

Mental health professionals increasingly diagnose Parental Alienation Syndrome (PAS) in child custody matters. Critics of this diagnostic label, however, believe that it lacks an adequate scientific foundation and that testimony regarding this diagnosis, its course, and its treatment should be inadmissible.

This monograph, originally prepared as a chapter for a manual on expert witness testimony Continue reading

Overnight Access for Young Children

Overnight Access for Young Children

In 1994 the Texas Supreme Court Committee on Child Custody was considering a recommendation of no overnight access between children under the age of three and their non custodial parents. In this written commentary to the Committee, Dr. Warshak argues that
such a proposal is inconsistent with child developmental theory, research, and common sense. He points out the significant benefits Continue reading