Alienating children or protecting them?

Alienating children or protecting them?

In the late 1980s, a new phrase started to pop up in American and then Canadian family courts: parental alienation syndrome (PAS). Originally coined by American psychiatrist Richard Gardner, the term was used to describe situations where one parent intentionally interfered with the children’s relationships with the other. (It might be more accurate to say that it described situations where one parent claimed the other parent was doing this.)

Gardner’s research was highly problematic for many reasons; one of them his essential misogynist approach, which saw fathers as innocent and hapless victims of their conniving ex-wives. Not surprisingly, abusive men embraced his work.

While Gardner’s work garnered considerable attention for some time, his label of “syndrome” was never accepted by any medical or professional association. In fact, after a number of years, his work became highly criticized by judges, lawyers, child psychologists and others.

In the context of intimate partner abuse

Gardner’s claims were also called into question by violence against women advocates, who saw a pattern, as early as the 1990s, in which men who had been abusive to their intimate partners used the claim of PAS in an attempt to call the allegations against them into question and to draw attention away from their behaviour. These men used a “poor me” discourse, claiming to be victims of vindictive ex-partners who were attempting to take all their money and stop them from seeing their children.

During the years that Gardner’s ideas had some popularity, they had an impact on custody and access proceedings. Judges were receptive when a man claimed that his former partner had turned the kids against him and often either increased access to the father or gave him custody, even when there was evidence he had been abusive to his partner.

By the late 1990s, claims of PAS had died down considerably, largely because Gardner’s work had been refuted by other professionals and because many judges were not prepared to entertain his ideas in the context of custody and access cases.

Unfortunately, it has reared its head again, especially in custody and access cases where the mother has made claims of partner abuse. While parental alienation no longer carries the moniker of “syndrome,” mothers who take actions to protect their children from possible abuse or neglect (sometimes called protective mothering) are having to face and defend themselves against allegations that they are alienating the kids from their father while the court ignores the mother’s original claim of abuse.

We know more now

Fortunately, thinking and research on what might more properly be called “strained parent/child relationships” or “child estrangement” has progressed since Gardner’s day. There is now an understanding that there can be many reasons that a child is less interested in spending time with one parent than with another.

It may be a matter of personality: one child has a greater affinity for one parent than for the other, both before and after separation. It may be that, post-separation, a child feels anxious about visiting the non-primary parent or is uncomfortable being around that parent’s new partner. The non-primary parent may be rigid or unreasonably controlling during access visits, insisting the child spend all their time with him and not engage with friends or in other regular activities. The child may feel protective towards the mother and may be angry with the father for his abuse of the mother. Or, the estrangement may develop because the parent tries to draw the child into parental issues, to get the child to take his side or is threatening or abusive to the child.

While some parents do engage in behaviour intended to alienate children from the other parent, this is just one of an array of reasons that a child may prefer not to see one of their parents.

Bringing an informed approach to alienation allegations

While we know more now, PAS allegations are often successful: between 1989 and 2008, 60% were upheld in family court.

It is time for judges to bring an evidence-based approach to these allegations. This should start with a careful assessment of any prior claims made by the mother about abuse by the father. If such claims are substantiated (on a balance of probabilities), then the alienation claim needs to be viewed with some skepticism.

Courts need to use validated and peer-reviewed research rather than the often highly emotional anecdotal “evidence” provided by the parent claiming to have been alienated.

Language matters

As a diagnostic tool, examining the cluster of symptoms or issues the family presents will lead to better outcomes than will focusing on the language of parental alienation as though it were diagnostic.

Ontario’s Children’s Law Reform Act requires courts to apply the best interests of the child test in making decisions about custody and access.

One way to make sure that is what the court is doing is to step away from the language of parental alienation, which implies a wrong has been done to the parent. Instead, courts need to look at whether the child has reasonably withdrawn from contact with one parent because of the behaviour – past and present – of that parent.

That way, decisions can take into account all of the relevant factors, including intimate partner abuse, and ensure that children have living arrangements that are safe for them and their parents and that allow them to flourish – even if sometimes that means contact with one parent is limited or non-existent.

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