Prof. Nicholas BalaFaculty of Law, Queen’s University, Canada

bala@queensu.ca

Monday, Feb 20,2012Australian Institute of Family Studies, Melbourne

(With thanks to Erin Gwynne, Queen’s JD 2013 for research assistance, to the Social Sciences & Humanities Research Council of Canada for financial support for this research,

and to Judge Tom Altobellli. FMCA, for many helpful comments.)

Parental Alienation, Contact Problems and the Family

Justice System

Feb 19, 2012

Summary 1: Bala on Parental Alienation While many children in high conflict separations maintain good relationships with both parents, a significant number of children become resistant to contact with one parent, often starting when 8 to 12 years of age.  Contact problems pose great challenges for the family justice system, in ascertaining facts, obtaining expert advice to understand complex dynamics and making decisions about how to intervene in managing parent-child relationships. In some cases the child’s rejection of a parent is justified by abuse, poor parenting or tensions within a step family (“estrangement”). Alienation occurs if one parent undermines the child's relationship with the other parent, resulting in the child’s rejection of that parent based not on the child's own experiences with the rejected parent but rather reflecting the attitude of the alienating parent. Alienation is emotionally damaging to children, with the harm often extending into adulthood, as well as deeply frustrating for parents. Often both parents have some responsibility for the contact problems (hybrid cases). This presentation will include an analysis of reported Australian decisions on parental alienation (n=74).   The decisions and the range of responses reflect the complexity and variability of these cases, as well as the challenges of finding effective interventions.

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Outline of PresentationIntroduction: Why do children resist contact with a parent?

Concepts: Alienation vs. Justified Rejection & Hybrid CasesEmotional damage to children from alienation

Australian Court Cases & Responses Profile of alienation casesUnderstanding individual cases

role of single experts & Family ConsultantsWishes of children

Role of judge in setting limits and protecting child’s interestsChange in residence

Conclusions Innovative responses: Canada & USANeed for effective judicial response and control

earlier identification, effective interventions & case managementComplexity & Challenge of these cases

Concepts & Context

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High Conflict Separations(MacLean& Eekelaar, 1996; Kelly, 2007)

Portion of high conflict cases declines, but does not disappear 30% of couples are “high conflict” at separation 10% -15% are high conflict after 3 years (Kelly)

High conflict cases characterized by mistrust & repeated litigation Often reflects unresolved feelings at separation of anger or rejectionPersonality disorder of one or both parentss

Children distressed by high conflict separationHigh conflict may cause alienation, but not necessarilyHigh conflict is worst for children if parents engage them in disputesMore time with a supportive father (non-resident parent) may help child despite

high conflict , but if his parenting is not strong, less contact may be best for child (Fabricius & Leucken, 2007; Sandler et al, 2010)

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Old Problems & New ConceptsProblems with children having contact with a non-residential parent have

been concern since the beginning of divorce Lady Caroline Norton in 1830’sc.1900 concern about “poisoned minds”

1987: Richard Gardner - “parental alienation syndrome”important concept but original articulation was inadequate

2001: Janet Johnston & Joan KellyNot a “syndrome”

DSM issueNot “mental disorder” of the childOften not all fault of one parent

The “alienated child:” considerConduct of both parents, Vulnerability of child

Age Anxiety, dependency Siblings etc.

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Significance of “discovery” of alienationHeightened awareness

more recognition by professionals, courts & parentsalso more unfounded claims of “alienation” by parents“alienation” is useful concept, but its use can heighten conflictMay help parents understand harm they are causing child

Australian courts reject “parental alienation syndrome” e.g Summers and Nathan, [2005] FamCA 1406),

But growing use of “parental alienation” e.g Udall & Oaks, [2010] FMCAfam 1482

DSM V unlikely to accept as a “syndrome”

Articulation of “alienation” has facilitated research long and short term harm of alienationintervention strategies

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ConceptsKelly & Johnston: Alienated Child: “child who freely and

persistently expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) toward a parent that are disproportionate to their actual experience of that parent.”

Alienation vs. Justified Rejection [“estrangement”]Need to determine whether child’s conduct is justified

(e.g. by abuse, poor parenting, step parent rejection etc.)

Many cases are “mixed” (or hybrid) with both parents engaging in alienating conduct or having some responsibility for break-down in relationship of child with one parent.

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Alienating Behaviour of Parents - ExamplesIntentional but more often “unconscious”Verbal, non-verbal, conductDenigrating other parent, extended family & even petsAsking child intrusive questions about other parent (“spying”)Creating a need for child to hide information & conceal positive feelings

about other parentFalse empowerment

“You can decide whether you want to see your Dad” [but not whether you go to school, church etc.]

Creating fearsFalse allegations of abuse

Borrowed or exaggerated stories:“My Dad beat my Mom when I was in her tummy”

Arranging fun events that conflict with visits

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Parental Alienating Behaviour & Alienation

In high conflict cases, alienating parental behaviour is commonDisparaging comments about other parent are commonMay escalate to active undermining of relationship to other parentOften both parents are engaging in poor parenting, but one parent who has

primary responsibility for contact problems

Despite alienating conduct by one or both parents, many children not alienated.

Alienation often starts as child ages & personality becomes integrated (e.g. 8-12yrs)Cases may change over time – sometimes quicklyAlienation may start a considerable time after separation

Abusive and alienating behaviour may be related (sabotage)Abusive father may undermine relationship with victim parentChild may identify with abusive, powerful parent

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Range of Reasons for Child to Resist ContactNormal development

Infants may have difficulty with transitionsIn teen years, stronger identification with one parent (affinity)

Reaction to separationChild’s loyalty reaction to discovery of affair

Rejected parent is too rigid or lacks insight is parent not attuned to child?

Child has genuine fear due to abuseeven an abused child is likely to have some positive feelingsalienated child likely to express all negative attitudes

Alienating conduct of favoured parent

Alienation of child may result in rejected parent “dropping out,” but also many “disappearing Dads” despite supportive Moms.

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Mixed (or hybrid) Cases CommonAlienating conduct by both parents with child aligning due to

circumstances of separation (e.g absence of parent or new family soon after separation)

Alienating conduct by favoured parent lack of warmth and poor parenting by rejected parent

Spousal abuse leads favoured parent to react to other parent & causes fear in childAlienation & abuse are not mutually exclusive

As children start to become alienated they can become obnoxious, hard to discipline etc. -> other parent may have “poor reactive parenting”

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Negative Effects Of AlienationMost kids want contact with both parents (even if abuse)

Alienation is emotional harmful to childrenLoss of contact with parent & extended familyGuilt, self hatred, self-esteem issues

Continued unconscious identification with rejected parentChild may come to believe unfounded abuse allegations

Behavioural disturbances in alienated childrenAggression &conduct disordersPoor impulse control

Alienating parent is often personality disordered -> perception of reality is in some respects distorted & will not respond “rationally” to court orders

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Young Adults Alienated as Children

Amy Baker (2007)Adult Children of Parental Alienation Syndrome

Higher rates of depression, relationships difficulties

As young adults reported that when they were children, they had secretly hoped that their stated wishes would be ignored

Methodological limitations to this research

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Prevalence of High Conflict & AlienationNo reliable data on alienation, contact problems or high conflict

Lack of consensus about definitions Variation over course of recent historyLikely more today as dads more involved in intact

families & post-separation

50% + of high conflict separations have disagreements over kids American Bar Association

USA estimates:1% of children & youth suffer alienation (Benet, 2010)20,000 – 250,000 new cases a year (Warshak, 2010)

Exact numbers unknown, but alienation is significant problemNegative effects on childrenProfoundly distressing for parents who lose relationship to child

Societal frustration with family justice system

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Gender PoliticsAdvocacy groups for both mothers and fathers use

“welfare rhetoric” to deny and seek contact.(Kaganas & Day Sclater, 2004;Kaganas , 2011)

Some feminists reject alienation as a concept and argue that mothers only deny access if fathers are abusive. (Meier, 2010)

Father’s groups are increasingly raising concerns about contact problems and children suffering from lack of involvement with Dads.

Also many rejected mothers.Failure of justice system to adequately address

alienation fuels perception of bias against fathersChild support is state enforced, why not contact?

Court Cases Responding to Contact Problems &

Alienation

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Increase in cases where PA claim decide(see Appendix for Methodology)

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Who Alienates Children? (Slightly more Moms, but Dads make more unfounded claims)

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Usually residential parent who alienates

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Presumption of Contact with Both ParentsContact as “basic right of the child”

Family Law Act s. 60B(2) – strengthened in 2006Need for caution with “rights” rhetoric in alienation

cases, as an alienating parent often claims that it is child’s “right” to not have contact. Better in alienation cases to use rhetoric of each parent having “duty” to support the other.

“Where a parent is the resident parent pursuant to a residence order, they have clear obligation, not only to comply with the [contact] order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order.”

Re David, (1997) FLC 92-776 (Full Court)

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Initial Legal Issue: Why resistance to contact?Alienation vs. justified rejection

Consider attitudes & capacities of favoured & rejected parent – hybrid cases

Abuse allegationsSome founded sexual abuse claims - justified rejection

Leighton &Carey, [2008] FamCA 868But also high incidence in this context of unfounded claims

Expert evidence Usually Family Consultant or court appointed single expert

Wishes and perceptions of childHow communicated to court?Not determinative, but important for child to be heard

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PA found in 36/74 cases. Not found in 38/74

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Alienation & Contact Issues: ExpertsCourt-ordered assessment by expert

Often influential(n=56)

But assessmentsAre costlyTake time to completeIntrusiveSome professionals do not understand alienation

Lack of expertise

Followed Not Followed Not Clear47 (84%) 3 (5%) 6 (11%)

Courts & Opinion of Experts (n=56)

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Domestic Violence & Contact

domestic violence is an important factor in suspension of contact, esp with FLA 2011 amendments, but not an absolute bar.

Miller & Wilcox, [2008] FMCAfam 917: no contact for father of 11 year old girl who would find visits “intensely distressing” due to family violence perpetrated by him. Father is “estranged” from daughter

Supervised contact is possible, especially on interime basis if d.v. or abuse concerns & lengthy

delay in resolutionSupervision is not a long term solution for a parent who poses a

significant risk

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Hearing the voice of the child(Caldwell, 2011;Birnbaum & Bala, 2010 & Birnbaum, Bala & Cyr, 2011)

Ensuring that child’s voice is heard is important, even in alienation casesbetter child outcomes“A voice but not a choice”

Methods of hearing from child vary with age, wishes of child, resources, professional “comfort”Role for meeting with judges

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Wishes not determinative“the older girls’ [aged 10 and 11] wishes [to live with

father] must be understood in light of the way they have been brought up. They have lived their entire lives in a home where their mother has been abused and belittled by their father. This occurred not only in private, but also in the presence of neighbours and friends. Their father lavished affection and attention on the girls for much of the time – but withdrew it when he saw fit. The older girls craved his attention and affection, and behaved in a way designed to attract it.”O and O [2005] FWCA 20; court orders 3 girls to live with

mother despite their wishes

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Two Responses to High Conflict & AlienationIf alienation is occurring, objective is to change attitude

& behaviour of alienating parent and alienated child,

Two approachesConflict reduction & resolution vs.Coercive legal responses

Determining the most appropriate combination or sequence responses depends on:Nature of relationship dynamicsPrevious interventions attemptedCommunity & individual resources

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Conflict Reduction & Parental EducationAddress underlying relationship issues & facilitate contact

Post-separation parenting educationMediation, counseling

Best for most cases, but requires willingness by parties to participate and meaningfully engage

Attitude of lawyers often influence parents Supportive of counseling or skepticalLeast impact on severely alienating parents

Threat of legal response may encourage parental engagement, but sometimes not enoughEsp. with personality disordered parents

Education/counseling not effective in more severe cases

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Judges Educating & Exhorting ParentsMany parents influenced by judicial approaches

Judicial ‘Education’ of parentsDiscussion from Bench about importance of relationship of child to

both parents

Judicial ‘Exhortation’ of parentsComments about importance of relationship of child to both

parentsOrders for attending Information Programs, Orders and adjournments may include provisions for better

parental behaviour e.g. no derogatory comments against other to the childrenenforcement is a problem

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Court Ordered Therapy or Counseling Order may apply to both child and parents

Court ordered therapy can be effective if judge can persuade parents involved of its value and importance of ensuring that the children have positive relationships with both parentsFor less severe alienation, a judicial “push” towards therapy may have positive

effects

Only effective if those receiving “reunification” counselling or therapy are willing to engage 6mo maximum until judicial review to see if contact is changing

Remedy for violation of counselling order is not contempt, but change in parenting/residence

In severe alienation cases, likelihood of positive outcome for therapy is low (especially if only the child is in therapy), unless change in residence

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Contempt – Rarely Used in AustraliaPurpose is to secure compliance, not punish

Contempt is a “blunt instrument” for promoting better parenting, but in Canada experience suggests that for some parents, threat of sentence can be effective

Sentences in Canada If flagrant & persistent breach, jail is possible

Alienating parent may be ‘martyr-like, to childSuspend sentencing to see if there is compliance

Impose behavioural conditions

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Police involvement – recovery orders Threat of police enforcement may be appropriate in rare

cases, but very intrusive and not a long term solutionMade is some cases

Especially on interim basis“a continuing recovery order that enables the police to

intervene whenever [the child]runs away [from the mother and returns to his alienating father …is completely unacceptable and to make such an order would pour petrol on the raging fire that is already burning.”Altobelli F.M., Sawyer & Reid, [2009] FMCAfam 228

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Involvement of Department of Child ProtectionDCP involved in high conflict cases

Physical & sexual abuse allegationsHigher rates of unfounded sexual abuse allegations in context of parental

separation (Bala et al, 2007)Also founded allegations of abuse in this context

In Australia 15/75cases had child sexual abuse allegation Finding of sexual abuse 1/15 “unacceptable risk” 2/15 Finding of no abuse 12/15; in

Alienating parent may have mental health issuesAlienating conduct may be emotional abuse

DCP can be asked by court to investigate & provide services FLA s.91B

DCP staff need better training for emotional harm from alienation cases

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Change of Residence “The stark dilemma” (Preston J. BCSC, 2004)

Most extreme judicial remedy, but usually only way to affect most severe alienationSome children change very quickly with residence changeIn a few reported cases, children traumatized by change and

reversal needed

Is change in residence in child’s best interests? Compare parenting capacitiesIs alienating parent personality disordered?Will rejected parent support relationship to other parent?Developmental considerations

Increasing judicial willingness to consider

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Variation of Residence – How to EffectHow to inform child?

Often rapid change is best

Suspension of contact & communication by alienating parent?May be necessary in severe cases as alienating parent may continue to

undermine relationshipMore common on interim basisAlmost impossible to prevent communication with a teenager

In theory, possible role for transitional foster care Re S, [2010] EWCA Civ 325 (CA) (“stepping stone”)No research to support

Very difficult to find suitable foster home T and B [2006] FCWA 37

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Non-enforcement of ContactIn some cases of severe alienation, not enforcing contact may be

the least detrimental alternative for childBarak & Veitch [2008] FMCAfam 335

Court may decide not to enforce despite “obsessive alienator” if too much stress on child “ There is no reason to anticipate that supervised contact [ for 6 year old

boy ] is likely to proceed smoothly if it is ordered again. I am quite satisfied there would be further proceedings if I made such an order.… Litigation is very stressful for all of those involved.” T and B, [2006] FCWA 37, per Thackray J.

Need for judicial realism – end expense & intrusion Supervised “final” visit or communication process? Hope that relationship may be re-established later -

non-enforcement may help this process in more severe casesAppreciate risks of children with personality disordered parents

Alienating Dongara Mom kills two girls and herself

How Can Courts Better Respond to High Conflict Cases & Contact Disputes?

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Complexity & Challenge of Contact CasesConflicting versions of eventsPartial responsibility of both parents

“mixed cases”Personality disordered and high-energy litigants

Manipulation and defiance of court ordersOften self-representedAppeals & complaints to professional bodies

Lack of resources More access to education & skills training for parentsBetter education and awareness for professionals

Need to continue “change in culture” – greater recognition by society, professionals and courts of harm to children from high conflict, value of less adversarial dispute resolution, but also importance of role of both parents in lives of their children.

Delay is a major concern: where alienation is an issue, early effective judicial intervention is critical. In Australia mediation slows down response Need for Relationships Australia to have better “fast tracks”

In the most severe and intractable cases, early use of threat to change residence or actual change

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Better Court & Mental Health CollaborationNeed more effective collaboration between courts and mental health

services after finding of alienationJudicial control & reporting to court post-adjudication

Only limited confidentiality to therapy – specify in court orderDetailed “multidirectional” orders

Schools, therapists etc.Reporting to judge by mental health professionals

Court directed intervention (Edmonton, Alberta Practice Note 7)Parents payCourt appoints trained mental health professional (or lawyer)to “manage”

case: educate parents, resolve minor disputes (mediation/arbitration), report to court

There may also be “reunification therapy” for parents/childMay be one professional or team who consult with each otherShort adjournments to hear about progress (3mo. - 6mo.)Need research

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Short Intensive Program for Entire Family(USA: Sullivan, Ward & Deutsch et al, 2010)

Overcoming Barriers Camp (5 families at a time)Court order or agreement for both parents and child(ren) to

attend 2-5 day camp program

Initial focus on separate groups and working towards engagement in games, art etc. and then reconciliation in

Helps both parents and child(ren)

Requires both parents to have degree of willingness to attend plus no violence concerns

Encouraging research initial research 9/10 families had positive gains at followup

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Short Intensive Transitional Assistance: USA(Warshak, 2010)

Family BridgesNew custodial parent (rejected) takes child to 4-5 days “psycho-educational

program” at resort setting (expensive)Usually with court order or approval, but some voluntary cases

Small initial study by Warshak indicated that his program often is effectively to change children’s attitudes22/23 changed by end of week18/22 maintained strong relationship to gains at 2- 4 years

No contact with alienating during stay; later attempts to engage the alienating parent (if they are willing)

www.warshak.com

Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing

Welcome Back, Pluto a DVD for children, teens, and parents

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EDUCATION of PARENTS is KEYALIENATION RESOURCES FOR PARENTS

Benjamin Garberwww.healthyparent.com

Bill Eddywww.highconflictinstitute.comDon't Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce

Eddy is also developing court-related psycho-educational programs for parents

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Best Practices for Family ProceedingsWhile Australia has more resources than many jurisdictions, lack

of resources, heavy case loads and delay are major concernsProlonged litigation is harmful to children and rarely effective in

addressing contact problemsDelay is a major concern: need more responsive system

Alienation is easier to address before entrenchedNeed better identification and response, including in mediation stage

Specialization & Case management – judicial continuity short adjournments & review ordersJudge to gain knowledge of dynamics of the case gain credibility & respect of partiesJudge to set clear limits & ensure consequences

Parental accountability, esp. important for personality disordered parents

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Best Practices for Family Courts (2)(Bala, Birnbaum, Martinson, 2011)

Judicial role in education, exhortation & setting limitsSanction breach or courts lose credibility

Earlier change of residenceRemaining seized after trial for review

Review ordersBetter collaboration of courts & mental health professionals

Court ordered involvement& reports to courtMonitoring of progress on contact by the courtRole for Child welfare Judicial duty to report emotional abuse or engage Local Authority

Resources for investigation, support, foster care

bala@queensu.ca   Prof. Nick Bala

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Some ReferencesAltobelli, “When a child rejects a parent: Why children resist

contact”(2011) 25 Australian Journal of Family Law 185Bala, Mitnick, Trocmé & Houston, “Sexual Abuse Allegations and

Parental Separation: Smokescreen or Fire?” (2007) 13 Journal of Family Studies 26-56.

Bala, Hunt & McCarney, “Parental Alienation: Canadian Court Cases 1989–2008” (2010) 48 Family Court 162-177.

Bala, Birnbaum & Martinson, “Differentiated Case Management for Family Cases: ‘One Judge for One Family’” (2011), Can J Fam Law.

Birnbaum & Bala (2010). Judicial Interviews With Children In Custody And Access Cases: Comparing Experiences In Ontario And Ohio, International Journal of Law, Policy and the Family, 24(3) 300-337.

Berns, “Parents behaving badly: Parental Alienation syndrome in Family Court – magic bullet or poisoned chalice” (2001) 15 Aust J. Fam L. 190

Caldwell (2011). “Common law judges and judicial interviewing,” 23 Child& Family Law Quarterly 41-63

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Some References (2)Fidler, Bala, Saini, A Differential Approach to Children Resisting

Post-Separation Contact: A Guide for Legal & Mental Professionals (Oxford University Press, New York, forthcoming Sept 2012).

Fidler & Bala, “Children Resisting Post-separation Contact With A Parent: Concepts, Controversies And Conundrums “(2010) 48 Family Court Review 10-47.

Kaganas, “Regulating Emotion: Judging Contact Disputes” (2011) 23 Child & Fam. L.Q 63-93.

Martinson, “One Case – One Specialized Judge: Why Courts Have an Obligation to Manage Alienation and Other High Conflict Cases” (2010) 48 Family Court 180-189.

Trussler, “Managing high conflict family law cases for the sake of the children” (2008) 86 Canadian Bar Review 515-538.

See also special issue Family Court Review 48:1 (Jan. 2010) on Alienation and Children Resisting Contact (on-line)

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Appendix I – Study MethodologyMethodology – Search Terms

Using the AustLii database, the following searches were performed: Alienate/alienation/alienator within 5 words of parent/parents/parentalAlienate/alienation/alienator within 3 words of child/children "Parental Alienation Syndrome”

This idenitified roughly 230 cases which were combed through to determine whether they represented cases where the court dealt with an issue of alienation. An additional 9 cases from Western Australia on the Family Court of Western Australia website by using the terms

alienation parental alienationbrainwash

Of these, 74 cases dealt with the issue of an allegation of parental alienation—these cases were coded and analysed. Many cases are unreported, and some cases involving alienation allegations may not use this term, due to judicial preference to avoid raising the issue using this potentially inflammatory language, to avoid the controversy over “parental alienation syndrome” or some other reason.

Appendix II: Some cases recognizing alienation

Udall & Oaks [2010] FMCAfam 1482 , Harrman FMDiscusses literature, including Fidler & Bala (2010) varies residence to give alienated Dad shared residence

P and P, [2004] FCWA 150 High conflict, M is alienating but F also personality disordered so he only gets supervised contact only and no further applications without leave of court

O and O [2005] FCWA 20 Alienation by F, so wishes of 3 daughters (6, 10 & 11 yrs) children not followed; residence to M, only supervised contact to F, who was emotionally abusive to W;

T and B, [2006] FCWA 37 High level of conflict and alienation by “obsessive alienator”; no contact for father despite alienation : 6 year old child.

Cambridge and Walter,[2010] FCWA 30 Unsubstantiated allegations of sexual abuse as part of alienation, change from supervised to unsupervised contact.