Parental alienation, family violence and family law: Part one

Woman looks out window

The terms parental alienation syndrome (PAS) and its more recent iteration, parental alienation (PA), have been creating challenges in family law cases involving parenting claims since at least the 1990s. Initially proposed by American psychologist Richard Gardner, PAS was his response to what he claimed were false allegations of child sexual abuse brought by mothers during divorce proceedings. Gardner’s work has been largely discredited, and PAS has not been accepted by any medical or professional association.  However, allegations of PA continue to arise in family law cases, especially those involving family violence.

It’s a troublesome issue for courts (and families) to grapple with. Emotions run high during the separation process, and not all parents can keep their feelings separate from the legal issues that need to be resolved. Either or both parents may fail to focus on the best interests of the children, which places the kids squarely in the middle of an adult conflict.

One tactic can be for a parent to align the children with them, to the exclusion of the other parent. Another can be for one parent to claim the other has alienated the children, even if that is not true.

There is, of course, a spectrum of reasons why children may not want to spend a lot of – or any – time with one of their parents, of which parental alienation is only one. Children’s attachments to their parents range across a continuum from the very healthy (the child wants to have a close relationship with both parents) to the very unhealthy (the child rejects spending time with one parent). But even at the unhealthy end of the continuum, the child’s lack of desire to spend time with one parent may be due to that parent’s neglectful or abusive behaviour rather than alienation efforts by the other parent.

While both genuine PA and false allegations of PA are highly problematic, my focus in this article is on the latter in the context of cases involving family violence.

PA has been a challenging issue for many women leaving abusive partners for almost three decades. In recent years, PA claims have increasingly been used by abusive men as a response to their former partner’s evidence of intimate partner violence (IPV).

An abuser may claim that the mother is intentionally alienating the children from their father when, in fact, she is taking steps to ensure parenting arrangements will be safe for her children and herself. For example, she may be reluctant to allow extensive, overnight or unsupervised parenting time for the father because he has threatened to harm or not return the children. Or, she may be seeking sole decision-making responsibility because of her former partner’s past and ongoing abuse, including coercively controlling behaviours.

Not only might an abusive father raise a false PA allegation against his former partner, he might attempt to alienate the children from their mother as part of his efforts to maintain power and control over her.

In other words, abusive men may use PA in two different ways: by falsely alleging the mother is alienating the children from them and/or by attempting to alienate the children from her.

Once the PA allegation has been raised, as research in both Canada and the United States has shown, the attention of the court focuses on the possibility that the mother has engaged in PA and loses sight of her initial claim that her former partner has subjected her to intimate partner violence (and, often, is still doing so). The resulting court outcomes can be dramatic: a reversal of parenting time and/or decision-making from the mother to the father; a blackout period during which the children are not allowed any contact with the mother; an order that the family participate in reunification therapy.  

Courts face a daunting challenge when untangling these situations to craft outcomes that are in the best interests of children. Those orders also need to keep the children’s mothers – survivors of family violence- as safe as possible. In part two of this article, I will discuss a proposal from the United Nations Special Rapporteur on Violence Against Women and Girls to ban the use of PA in family law cases and why I disagree with this approach.

This article was originally published by LAW360 Canada.