By Marisa Endicott, Common Sense News
When Jaclyn moved to Ohio with her two young children, she thought she could begin a new life. She and her husband had divorced outside of the courts, and he had given her sole custody of the kids.
But her ex-husband, whom Jaclyn had accused of domestic abuse, changed his mind ― and took her to family court. His case was based on the theory of parental alienation, a condition that describes a child who turns against a parent because of the other parent’s manipulations and indoctrinations.
To Jaclyn’s shock, her ex-husband alleged in court that she had interfered with his communication with the kids and coached their daughter to reject him. Moreover, he accused Jaclyn of being mentally unstable because of these purported efforts.
The judge granted him full custody. And Jaclyn was relegated to supervised visitation two hours a week.
“It is the worst torment on earth,” Jaclyn told Common Sense News, which is withholding her last name to protect the privacy of her children and because her case is still under appeal.
A shifting trend
Jaclyn is not alone in her torment. Some experts and advocates worry that abusers are using claims of Parental Alienation Syndrome (PAS) ― and its less controversial but similar iteration, Parental Alienation (PA) ― to rebut abuse allegations and gain custody and control of children.
Most divorces are settled with minimal intervention from the court system, but for the minority that do go to litigation, abuse allegations are commonly part of the case, raising the stakes when parental alienation is asserted.
Parental alienation syndrome was identified by Dr. Richard Gardner in the 1980s, but controversy has swirled around whether it is truly a syndrome and how ― if at all ― it can be defined and diagnosed.
There is little empirical data on parental alienation and its use in the courts, but some initial research indicates that it is frequently claimed when abuse is alleged ― and often sways a judge.
One three-year study is looking at thousands of cases involving abuse, custody and alienation. A preliminary examination of 238 cases indicates that fathers accused of abuse (adult or child), who in turn accused the mother of alienation, won their cases 72 percent of the time. They won 69 percent of the time when child abuse was alleged and 81 percent of the time when child sexual abuse was alleged. In the seven cases where judges credited both abuse and alienation in the ruling, the father won every time. When the court credited abuse but not alienation, fathers only won 16 percent. The researchers defined winning as any time the litigants received some or all of what they requested, ranging from more visits to full custody.
It’s critical that abuse take precedence over alienation claims when it is alleged, said Joan Meier, the study author who is also a law professor at George Washington University and founder of the Domestic Violence Legal Empowerment and Appeals Project, which provides pro-bono representation and training for lawyers and courts.
“Assess the abuse first. Put alienation completely to one side,” she said. “If it happened or if it may have happened, you have no business going on about alienation...You can talk about it, but don’t talk about it as a way of denying abuse.”
Ongoing in the courts
In the three years since litigation began, Jaclyn has moved back to California to be near her kids and the unfolding case. Despite her painstakingly gathered arrest and police reports, confession letters, recordings and witness statements, the court so far has not budged, even though the children themselves, Jaclyn said, are now alleging abuse by their father.
The California Protective Parents Association (CPPC), a group created to protect children from abusive parents, is lobbying Congress to reform how family courts treat abuse allegations in custody cases.
“Let’s just try to stand in the abuser’s shoes. Suddenly my child accuses me of what I’ve been doing and tells somebody,” said Connie Valentine, co-founder of CPAC. “Well, the first thing I want to do is get a hold of that kid and shut them up, and how do I do that? Well, this PAS thing is really handy.”
But proponents like PAS expert Dr. Amy Baker says the controversy over whether there is a syndrome ― and whether it’s being used to protect batterers ― is a false distraction that gets in the way of proper training and better identification of alienation.
“Frankly, alienation is a form of emotional abuse,” she said. “If you care about abused kids, you would care about whether they are being alienated, not just whether they’re being physically or sexually abused.”
The American Psychological Association has no official position on PAS, but notes a lack of supportive data. The Diagnostic and Statistical Manual of Mental Disorders, a guide used worldwide to diagnose disorders, does not recognize the syndrome, either, despite campaigns for it to do so.
The debate over the definition of the condition is a distraction, said Ned Holstein, founder of the National Parents Organization, formerly Fathers and Families, which advocates for shared parenting in family court. “Is there a precise definition of reckless driving? But it’s still dealt with by the courts. There is certainly plenty of alienating behavior, and it is tortuous to distract with whether it’s a syndrome.”
However, the definition of parental alienation is broad, and many of the symptoms are similar to those of legitimate estrangement. This allows those alleging parental alienation a wide berth, making it more confusing for the courts to decide, critics say. The ambiguities can be easily used to cast the parent who alleged abuse as a liar and to discount anything the child says as the product of manipulation.
What’s at stake
“I had zero credibility to be a voice for my children,” Jaclyn said, “and my children had no voice.”
There is a common perception that mothers are greatly favored in custody disputes, and fathers’ rights organizations have argued that parental alienation serves as a tool to balance the unequal playing field. However, courts have moved away from a maternal bias since the disavowal of the Tender Years Doctrine, which directed custody of young children to mothers.
When it comes to highly contested cases with abuse allegations, critics say, parental alienation is inherently biased against women, and an American Psychological Association task force found a reluctance in family courts to believe mothers’ abuse claims. Indeed, these claims often cast the mothers themselves as unstable, hostile or alienating.
Jaclyn has experienced this first hand during her legal battle. Because she never pressed domestic violence charges, the abuse essentially didn’t exist in the court’s eyes. Then when parental alienation came into play, the court chalked up her abuse allegations to manipulation or signs of mental instability.
Many point to a lack of abuse-specific training among judges, evaluators, mediators and experts in family court as the root of the problem.
“Evaluators need to be well-trained to actually accurately identify what they’re seeing, and judges need to be well trained, because you don’t see what you’re not looking for,” said Judge Katherine Tennyson, president of the National Council of Juvenile and Family Court Judges, who sits on the Multnomah County Circuit Court in Oregon.
Another problem lies in the way the family court system is set up. In criminal court, everyone has the right to an attorney, because the government is involved, and freedom is at stake. But in family court, no representation is provided, because the proceedings involve disputes between private parties.
Jaclyn appeared by phone from Ohio without representation for her first court appearance. She had no idea how to navigate the system, unlike her ex, who had an attorney to guide him. She then had to learn to conduct her own trial and write an appeal.
“It was the hardest thing I’ve ever done in my life,” Jaclyn said of writing her appeal, which she filed in April. “Just the pressure of it was like I was melting down ― because what’s at stake here is my kids.”
Marisa Endicott is a contributing writer to Common Sense News. Learn more at commonsense.org/news.