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Hope In Darkness

Parental Alienation Research, Courts and Mental Health

Severe cases characterized by extreme and pervasive alienating behavior by definition involve emotional harm/abuse (Harman & Kruk, 2018). Absent appropriate legal measures to restrict or suspend contact with an alienating parent, mental health interventions will not succeed and are considered a contraindicated treatment approach in the most severe cases (Fidler & Ward, 2017; Warshak, 2019). In these cases, it is difficult, if not impossible, for a parent‐child/teen relationship to heal when a child/teen continues to live with a parent who does not support and/or value the child/teen's relationship with the other parent (Fidler & Bala, 2010; Garber, 2015; Warshak, 2010, 2019). These cases often require an interim or permanent change in custody coupled with a suspension of contact with the alienating parent (e.g. at least 90‐days) with the hope that the no‐contact order and period of restorative contact with the rejected parent will shield children from the ongoing negative influence of the favored parent and motivate the children to comply with the court order (Warshak, 2015). In some severe cases, after the court has made an order for a custody change to the resisted parent, the family works through the transition without educational or therapeutic intervention, particularly families who may not have sufficient resources for further intervention. In other severe cases, the custody reversal is combined with an educational and/or therapeutic intervention to assist the child with a "soft landing" (Warshak, 2010) transition from the favored to the rejected parent (Kelly & Johnston, 2001; Warshak, 2010).

This legal measure ‐ removing the child from the favored parent ‐ has been referred to by some as a "parentectomy," as it requires the physical removal of a parent for a period of time. Although the intensive interventions have shown considerable success in assisting with a court‐ordered custody reversal, clinical reports suggest that restoration of a good relationship with both parents is not a common outcome. It is likely that any intervention that is combined with a custody reversal and suspension of contact with the favored parent will have limited success in engaging the favored parent, who is intentionally or unintentionally, deeply ensconced in their negative and distorted belief system. It is known from anecdotal reports, that favored parents often do not engage. In some cases, favored parents do not meet the criteria set by the judge to resume contact with their children and may eventually be denied contact altogether. In some instances, the favored parent will consent to receive their own psychoeducational intervention as a step toward resuming contact with the child after the period of no contact. In many cases the question of future involvement of the previously favored in the child/teen's life is left unaddressed. The question of what happens in the lives of these families is a matter for further research.

It is noteworthy that those who are critical of the courts making a finding of alienation and making an order for the child to live with the rejected parent in severe cases fail to recognize that without a judicial response, the child was not seeing the rejected parent. Indeed, if a child is alienated and a court fails to enforce contact with a healthy parent, the resulting disruption in contact with the rejected parent may be considered a form of parentectomy. While the discontinuation of the child/teen's contact with the rejected parent may be viewed by some as justified or even desirable, in part as it is based on the child/teen's stated preferences, research raises serious concerns about the short and long term negative effects on the child of loss of the relationship with a rejected parent due to alienation.

It is noteworthy that those who are critical of the courts making a finding of alienation and making an order for the child/teen to live with the rejected parent in severe cases fail to recognize that without a judicial response, the child was not seeing the rejected parent. Indeed, if a child is alienated and a court fails to enforce contact with a healthy parent, the resulting disruption in contact with the rejected parent may be considered a form of parentectomy. While the discontinuation of the child/teen's contact with the rejected parent may be viewed by some as justified or even desirable, in part as it is based on the child/teen's stated preferences, research raises serious concerns about the short and long term negative effects on the child of loss of the relationship with a rejected parent due to alienation.

COURT RESPONSES
The challenge for courts making interim determinations to change residential care or custody arrangements must never be underestimated. Most modern family law statutes require courts to consider a number of non‐exclusive factors that ultimately inform a highly discretionary assessment of what is in the best interests of a child/teen. There is a strong presumption that it is important for a child/teen to have meaningful, enduring relationship with both parents, but this must be balanced against other fundamental objectives, such as protecting the child/teen from the risk of physical and/or psychological harm; placing appropriate weight on a child/teen's views; and minimizing, if possible, unnecessary changes to a child/teen's life. Further, interim decisions are often made by judges in highly timeconstrained circumstances, with limited, incomplete and conflicting evidence that cannot be tested by cross‐examination. In jurisdictions with a common law heritage, judges are heavily reliant on the parties, or their lawyers, for bringing evidence and proposals for interventions to the courts. Arguably, the "wrong" interim decision may be as detrimental for the child as the loss (perhaps temporary) of a relationship with a parent. Any interim determination is a highly imprecise balancing of risks exercise but, as will be argued below, is an essential tool to manage resist‐refuse cases.

In one Ontario case, Justice Trimble of the Ontario Superior Court of Justice concluded, after an 11‐day trial, that the mother had engaged in significantly alienating conduct. The judge ordered custody of the three children/teens to the father and no contact with mother for 90 days, while the father and children participated in Family Bridges, a short intensive psychoeducation intervention. The judge advised the mother she would be permitted to re‐engage with the children/teens on certain conditions. The Court ordered that before contact was to be resumed, the mother had to comply with the following milestones:

1. Demonstrated working knowledge of the parent‐child/teen alienation in general and with insight into their own specific alienating behaviors;
2. Demonstrated compliance with Court orders; and
3. Acquired, willingly accepted and complied with the Parallel Parenting Model, which is designed to permit both parents to parent (while recognizing the custodial authority of one, if so ordered), in a completely disengaged way."2

In this case, J. Trimble clearly identified the psychoeducational and behavioral requirements of the court in order to re‐establish contact.

JUDICIAL LEADERSHIP IN RESIST-REFUSE CASES
The important role of judges in resist-refuse cases should be self‐evident. Whether judges perceive themselves to be leaders in their individual courtrooms, or to have leadership responsibilities in resist‐ Polak et al./RESPONDING TO SEVERE PARENT‐CHILD REJECTION CASES WITHOUT A PARENTECTOMY 519 refuse cases, the reality is that they have a critical leadership role in these cases. While any effective response to resist‐refuse cases is undoubtedly a coordinated and collaborative social science‐legal response involving legal and mental health professionals based on mutual respect and understanding, in the courtroom it is the judge who must lead that coordinated, collaborative response. What are some of the attributes of the judge‐leader? Effective judge leaders in resist‐refuse cases might demonstrate the following behaviors:

! Humility and ambition: Humility might involve recognizing that an earlier decision made in the same case was ineffective, perhaps even damaging to the family. Ambition involves striving to make informed, evidence‐based, and effective prospective decisions.

Courage: It takes courage to try different things such as heterodox models of decision making. It takes courage to resist contemporary trends in case management that emphasize minimizing the number and duration of court events. It takes courage to resist the temptation to endorse early (but fragile) settlements.

Respect and Sensitivity: While judges must hold parents accountable and expect child focused behavior, they must also appreciate the stress of the court process on parents and children and the effect this stress may have on them. Lawyers for parents (and children) have a critical role in bringing evidence to the court, proposing and planning for possible interventions, and encouraging parents (and children) to comply with court orders.

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