The National Council of Juvenile and Family Court Judges has posted an interesting report at https://www.ncjfcj.org/policyinfo#policyissues discussing child custody decisions in the presence of domestic violence. The report notes that “Parental Alienation Syndrome (PAS), discredited by the scientific community, is not admissible evidence and any reference should be stricken under the standards established in Daubert and Frye”, (“Daubert” refers to standards for acceptable scientific evidence, “Frye” to standards based on whether most members of a profession support an idea.)
In spite of this recommendation from NCJFCJ—echoed by many other sources—family courts daily admit evidence about parental alienation (PA) and even make decisions based on that evidence. Parents whose children avoid contact with or who reject the other parent are increasingly accused of creating PA by manipulating and exploiting their children. People who are accused of PA risk losing custody of and even contact with their children even when there is no evidence that they have caused the children’s attitudes. Worse, advocates of PA argue that most children who reject a parent are emotionally disturbed, that the emotional disturbance was caused by the preferred parent, and thus that the preferred parent is an abuser and must be removed from the child’s life, in the child’s best interests. For parents who are teachers, psychologists, or physicians, a court’s acceptance of this argument can have a devastating effect on their professional lives in addition to the tragic effects on family relationships.
Fighting allegations of PA can be ruinously expensive. A lawyer I talked to yesterday estimated possible costs to one parent at $100,000 to $150,000 over several years. As a result, it is common for the accused parent to run out of money and no longer to be able to afford legal representation. (This situation may allow for legal aid in Canada and the United Kingdom, but to the best of my knowledge this is not the case in the United States.) Thus, although we all know that “the person who has himself for a lawyer has a fool for a client”, many people sooner or later find that they have to represent themselves in family court—or simply give up their attempts to have contact with their children.
NCJFCJ has prepared a document called “10 Things to Know About Family Court” (https://www.ncjfcj.org/sites/defaut/files/NCJFCJ_10ThingsKnowFamilyCourt_Final.pdf). This document describes family courts’ officers and their functions and defines and discusses some important terms that should be kept in mind if you have to represent yourself when fighting PA allegations.
Here are some terms and concepts that are especially important to parents accused of PA:
1. 1. In discussing presumptions made by courts, the NCJFCJ document refers particularly to the role of child abuse in custody decisions. They say “many states …have a presumption forbidding a court from awarding custody to a parent who has abused the child or the other parent, if the abuse is properly proven, unless the court finds reasons that would not be in the child’s best interests.” This item is highly relevant to the claims made by PA advocates that PA can be determined simply on the basis of a child’s attitude and behavior, and that PA is by definition a type of abuse. Although neither of these claims is generally accepted by psychologists, there is nothing to stop a family court from basing decisions on them unless strong arguments to the contrary are presented – or even then.
2. 2.The NCJFCJ document points to the role of the “burden of proof” in family courts. People who ask for unusual decisions or who make unusual claims must present more convincing evidence to support what they say than those who have more typical claims or requests. Because PA concepts and their associated treatments are poorly substantiated by empirical research , related claims and requests should bear a heavy burden of proof and should be required to address either the Daubert or the Frye standards mentioned above, depending on what a state’s laws determine. Requests for ordinary, normal parenting plans and schedules should not require much proof, nor should refutation of PA claims require much proof to be offered. When PA claims are made, claimants should be asked to provide published evidence of research support for the claims. If an evaluator has stated that PA is present, the evaluator should be asked to show how his or her methods met the guidelines of the American Psychological Association given at https://www.apa.org/practice/guidelines/child-custody. A very important point about these guidelines is that a psychologist making a custody recommendation should have interviewed all family members as well as looking for supportive evidence from teachers, neighbors, etc. PA recommendations are often made on the basis of an interview with one parent and are based on the belief that a child’s avoidance of the nonpreferred parent is caused by the machinations of the preferred parent.
3. The NCJFCJ document discusses settlement out of court and points to problems of reaching agreement when one parent is threatening or has been involved in domestic violence. Allegations of PA by the nonpreferred parent may arise following complaints about child abuse or domestic violence, so this issue may be an important one. In many ways court orders may work better for parents who have been accused of PA, but there are also downsides to court involvement that may lead to orders of complete custody change.
If you are fighting allegations of PA and must represent yourself, the NCJFCJ document can be helpful-- but it is not the same as having experienced counsel.