Source Lawyers USA
"Welcome to the swamp."
That's what a judge once told a client of Anchorage divorce attorney Steve
Pradell when accusations of parental alienation were leveled against the client
in a custody hearing.
Parental alienation syndrome - a controversial diagnosis to describe a child
who compulsively denigrates one parent in response to consistent brainwashing by
the other parent - has become a common weapon in custody cases.
"It happens all the time," said Michael R. Walsh, a divorce attorney in
Orlando, Fla. "If Mom can't hurt Dad another way, what has she got left after
she's tried to rake him over the coals on everything else?"
According to Richard Gardner, the psychologist who is considered the father
of the syndrome, it typically manifests itself as a campaign of denigration by
one parent against the other, which is accompanied by weak, frivolous and absurd
rationalizations for the deprecation. As a result of this steady campaign of
insult, the child reflexively supports the alienating parent and experiences no
guilt over their own cruelty towards the targeted parent.
But the mental health profession is far from agreement about the existence of
the syndrome. Noting the lack of supporting data, the American Psychological
Association has "no official position on the purported syndrome," according to a
statement in its website.
The legal community is divided as well.
While many family lawyers believe the syndrome is a legitimate psychological
diagnosis, others view it as nonsense. They say it's used primarily by parents
who want someone to blame for their poor relationship with their children.
"I think it's more of a code word that gets used in trial because one parent
is not maintaining the relationship with the children and believes the other
parent is interfering with the relationship," said Minneapolis divorce attorney
Like it or not, parental alienation has become a common weapon in courts
across the country. Even in jurisdictions that don't recognize it as a
diagnosable syndrome in children, lawyers can still argue straight parental
alienation - that one parent's attempts to turn the child against the other
parent indicates that the first parent is not fit to have custody.
Sometimes the behavior that prompts charges of parental alienation is subtle
- frequent disparaging remarks within earshot of the child or setting up
appointments and activities for the child during times when the other parent is
scheduled to have visitation. Other times it is openly aggressive, such as
unfounded accusations of child abuse or neglect.
In some cases, a parent is deluded enough to believe their unfounded
accusations - and other times when the accusations are true - so sorting out
what is real and what is not can be a tall order for the courts.
"I can't tell you if the syndrome exists psychologically, but I can say it's
very troubling and one of the hardest things for a judge to figure out if it's
really happening," said Pradell.
It's also possible for the child to be alienated from one parent without any
campaign of denigration by the other.
"Just for the sake of illustration, a 13-year-old girl finds out before Mom
that Dad is cheating on Mom. That 13-year-old girl may become alienated from
Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of
Buffalo, head of the Family Law Section of the New York Bar Association.
As the Anchorage judge said: "Welcome to the swamp."
Making it stick
Although parental alienation has become a common weapon in custody cases
around the country, proving it can be a tall order.
"It's like everything else in a custody case - it all comes down to what you
can prove at trial. A lot of bad things happen, but they're very difficult to
prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C.
The best place to begin is with witnesses - anyone who was present when one
of the alienating interactions occurred. In some states, clients can record
telephone calls or other conversations to create audio evidence.
O'Reilly suggested that lawyers encourage their clients to communicate via
e-mail and voice mail to create a tangible record. This will be far more
effective in court than the typical he-said/she-said battles that dominate most
But the heart of any parental alienation case is the expert testimony,
according to Stevens.
"Take the child to a mental health professional and let him do testing," he
suggested. "Then you've got an expert witness to come and say, 'In my expert
opinion, this is what's going on.'"
It many cases the judge will require a court-appointed psychologist to work
with both parents and the children in order to obtain a non-partisan expert
opinion. In a similar vein, lawyers may want to ask the court to appoint a
guardian ad litem who will advocate on behalf of the child to determine whether
parental alienation has occurred.
In the end, though, lawyers should be prepared for a tough battle.
"It's very hard to prove, because if you have the client from whom the
children are estranged, you don't have a child willing to cooperate with the
process, and that's where most of the proof would be," O'Reilly said.
efending against a charge
These same strategies, and a few others, are useful if unfounded allegations
of alienation are leveled against your client.
"Obviously they have the burden to prove the client's doing something," said
O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your
fault.' You have a little bit of advantage."
First, make sure your client always takes the high road. Although the natural
instinct of clients is to become indignant and defend themselves vehemently,
protesting too loudly could undermine their credibility in the eyes of the
court, said Gallagher.
Instead, develop an action plan for how your client can build a stronger
relationship with the children. Change any behavior that is suspect. Have
clients tell the judge that while they don't feel there is evidence to support
the allegation, they are seeking the help of a professional as a precaution, and
are prepared to change any behavior that is deemed inappropriate.
"Who is not confident in a parent who is going to do and say that?" Gallagher
But just as in the case of the accuser, the most powerful weapon for a client
who is accused of alienation is the psychological expert.
"A good forensic expert has credibility because that person doesn't represent
your guy and doesn't represent the other party - he's appointed by the court,"
said Tom Carnes of Carnes Ely in Houston.
Third-party witnesses can also be a powerful weapon in court.
"Try to line up witnesses that would have had the opportunity to see [the
parent] interact with the child. Teachers, scout leaders, dance teachers, karate
teachers - people who see them during times when parents let their guard down
and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything
bad about Dad,'" Stevens suggested.
Finally, Carnes suggests that lawyers request more visits between the
targeted parent and child in an effort to strengthen the relationship between
Of course, the best defense against an alienation charge is to make sure it's
never made in the first place. Advise your client not to get in the middle of
disputes between the child and the other parent, O'Reilly advised. If a child
refuses to go with the non-custodial parent, the custodial parent should insist.
He or she should tell the child that the judge has required the visit.
"I encourage my clients to act reasonably, assume anything they do or say
could be shown to the judge - or better yet, that the judge is standing there
watching," said Stevens. "I don't know if that's great advice or I've just had
good clients, but I haven't had many alienation claims alleged against my
Keep your sanity
Custody cases are among the most frustrating cases a lawyer takes on,
Although he said he doesn't duck under his desk when a potential client walks
into his office with an alienation claim, "there's certainly a gastro-intestinal
response that says, 'Oh jeez.'"
And there's more than your professional satisfaction at stake. Choosing the
wrong clients could damage your firm's reputation.
"We represent the alleged perpetrator more often, but we make sure we think
they're not a pervert or hitting their kids before we ever take them on," said
Carnes. "If we take people who are in the gray area, the court is going to
develop a different view of us over time."
Stevens is also careful to take cases he believes in strongly.
"It's not worth it to me to deal with clients who are acting deliberately,"
he said. "If they're going to do that to their child's parent, I'm going to have
a problem with them at some point."
But that approach concerns Pradell, who worries it will make it difficult for
the parent who really is guilty of alienation to find adequate counsel. He
believes lawyers should take the assertions of prospective clients at face
value, while maintaining a willingness to fire any client who wants them to do
To maintain his sanity, Carnes periodically takes time off from custody cases
and concentrates on his business litigation practice.
As gut-wrenching as custody cases can be, Pradell said there is something
that keeps him coming back for more. He recalled a case he took on when he was
starting to burn out after 15 years of family law.
His client was a father who was awarded custody of his child and an unborn
sibling because the mother and her boyfriend physically abused the child. The
woman disappeared before the birth. But many months later, Pradell received a
call from the police in Washington, who had just raided the home of the mother
and boyfriend. The officer found a copy of the signed order giving custody of
the unborn child to Pradell's client. The baby girl had a broken arm, but
doctors expected her to be okay. The state confiscated the child and delivered
her to her father.
Six months ago, Pradell, who is also a magician, performed a show at the
little girl's birthday party. "At the end of the show I sat with her and I said,
'I knew you before you were born,' and she goes, 'You must be magic.'"
"That case changed me - now I know I make a difference."
By Amy Johnson Conner Contributing