Parental alienation, family violence and family law: Part two

In her 2023 report entitled, “Custody, violence against women and violence against children”, U.N. Special Rapporteur on Violence Against Women and Girls, Reem Aslalem, describes parental alienation as a “discredited and unscientific pseudo-concept” that serves as a tool for abusers  “to continue their abuse and coercion and to undermine and discredit allegations of domestic violence made by mothers who are trying to keep their children safe.”

This analysis is good news for those of us who support women and children who have fled family violence and then been subjected to false PA claims in family court. As discussed in part one of this article, such a claim can lead to poor outcomes for both mothers and children. We have seen too many decisions in which the mother’s evidence of long-term and ongoing (including post-separation) family violence has been ignored in favour of what appears to be an uncritical acceptance of the father’s allegation that she is alienating the children.

Raising the issue of family violence is not a form of PA. Taking children and going into a shelter for abused women is not a form of PA. Seeking parenting time and decision-making arrangements that do not expose the children to ongoing family violence, protect them from possible abduction and keep mothers safe is not a form of PA. Asking for limits on electronic contact and communication is not a form of PA.

We need to change how family law deals with PA allegations, but I don’t agree with the Special Rapporteur’s recommendation that countries legislate “to prohibit the use of parental alienation or related pseudo-concepts in family law cases.” The problems arising from PA claims in family law cases where there has been a history of family violence are complex, and a ban is an overly simplistic response to those problems.

As mentioned in part one, abusers sometime engage in PA as part of their pattern of abuse, attempting to align the children with him. What avenue could the mother pursue in such a situation, if the use of PA claims were banned?

Further, banning the term without other steps being taken won’t stop the claims from being made; they will just be made using different language.

What is needed is a stepped approach when a party in a family court proceeding wants to raise the issue of PA, as proposed by American law professor Joan Meier as framework for courts when confronted with an alienation claim.

Meier’s approach does not ban the use of PA claims, but would have such claims evaluated only under limited circumstances. Once an allegation of PA is made, the court’s first step would be to assess whether family violence is present, using experts in family violence to do so. If family violence is found, the PA claim by the abuser would not be considered. (In other words, the family violence survivor cannot be found to be alienating the children.) If the family violence allegations are not confirmed, the PA claim could be considered, but the family violence allegations themselves would not be treated as evidence of alienation. Only conscious intent and specific behaviours would constitute alienating conduct. Remedies for confirmed alienation would be limited to healing the child’s relationship with the alienated parent, not undermining the child’s relationship with the preferred parent.

Coupled with high-quality education for all actors in the family court system, this approach –not a ban – has the potential to work well to ensure that courts respond appropriately to PA allegations and lead to good outcomes for IPV survivors and their children.

This article was originally published by LAW360 Canada.