Parental Alienation

Who wins? --- Who loses?

Despite scientific research demonstrating that, when compared to singles, married people live longer, are healthier, feel more secure and are less likely to be afflicted by cancer or heart attacks, more than half of marriages in America end in divorce. And, many divorces are accompanied by the War of the Roses, where rage and bitterness typifies the relationship during and even after the divorce.

But, who wins and who loses in these situations. My experience as an attorney is that everyone loses, except the lawyers. And no one wins, except the lawyers. Perhaps the children however suffer the greatest losses.

Often though as part of the rage and bitterness, one party seeks to drive a wedge between the other party and the children, to turn the children against the other party, apparently more interested in Pyrrhic victories than in what is best for the future of their children. This practice has come to be known as parental alienation, a practice recognized in many states and only recently recognized in the District of Columbia.

The emotional damage to children due to parental alienation, the D.C. Court of Appeals recently reasoned, would be worse than the difficulties they would face in attempting to salvage their relationship with the alienated parent. The court in that Case essentially found that the children’s emotional development would be significantly impaired if it did not award joint custody for or healthy visitation with the estranged parent. And, the Court, citing the trial court’s opinion concluded that “the trial court was aware of incidents cited by one party, noting that she had ‘described multiple incidents where her former spouse lost his temper,’ but that "[t]hese incidents do not fall within the definition of domestic violence in the District of Columbia."

Parental alienation is when one parent turns children against the other. The District of Columbia favors joint custody for children. The Parental Alienation Syndrome, not recognized in the District of Columbia, is different from Parental Alienation. A case that illustrates the difference between parental alienation and Parental Alienation Syndrome is the Supreme Court of Illinois decision of In re Marriage of Bates. In Bates, the former wife sought to restrict certain testimony on the grounds that it did not meet reliability requirements set out in cases that require a scientific foundation before expert testimony on child brainwashing would be allowed. A hearing was held, and the trial court found that the principle of Parental Alienation Syndrome, otherwise commonly known as child brainwashing, was sufficiently established to have gained general acceptance in the particular field. Consequently, the testimony was allowed. The trial court changed custody to the father based on this conduct by the mother. The court however later said that it would "throw out the words 'parental alienation syndrome'," basing its findings on the statutory standard, which was the willingness and ability of each parent to facilitate and encourage a continuing relationship between the other parent and the child. This ruling was ultimately affirmed by the Supreme Court of Illinois. That Court found that the various evidence supported the conclusion that the mother consistently failed to facilitate and encourage a close and continuous relationship between the child and the father.

A series of U.S. Supreme Court decisions have recognized the constitutional parenting status of even unwed fathers. Indeed, going back to the 1920s in cases like Meyer v. Nebraska and Pierce v. Society of the Sisters of Holy Names of Jesus & Mary, the United States Supreme Court has held that parents have a fundamental constitutional right to raise their children without state interference. In Troxel v. Granville, a year 2000 Supreme Court Case, the Court observed that “[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” In another Case, Santosky v. Kramer, the Supreme Court rationalized heightened constitutional protection against termination of parental rights—requiring “clear and convincing evidence” of any alleged parental misconduct—on the ground that it mutually served the important interests of both children and parents. Santosky presumed that children, too, would benefit from this protection of parental rights. Yet the Court’s assertion of an identity between the interests of parents and children was more than an afterthought, intended to eliminate the argument for watering down parents’ rights, rather it was an expression of the foundational justification for according protection to parents’ rights. The Court spoke first and most emphatically about the “grave” consequences of termination for parents: “Even when blood relationships are strained,” the Court wrote, “parents retain a vital interest in preventing the irretrievable destruction of their family life.” The interests of children were secondary. In Reno v. Flores, the Supreme Court seemed to go even farther in acknowledging that the interests of parents are worthy of legal recognition independent of any derivative benefits to children. The Court observed that the “best interests” standard used in parent-versus-parent custody disputes does not ordinarily apply in conflicts between parents and non-parents because “the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.” Consistent with Constitutional mandate, joint custody is assumed to be in the best interest of the child in the District of Columbia.

A trial court is required either to conduct an evidentiary hearing or to explain with specificity why such a hearing is not required, despite serious allegations that may be raised to modify custody. Because of this emphasis on the rights of parents, evidentiary hearings are even strongly encouraged where allegations are made against one parent of present endangerment to a child’s health or emotional well-being. By recognizing the reality of parental alienation in the District of Columbia, perhaps some of the losses in divorce cases from the past will be eliminated.