Showing papers in "Family Court Review in 2020"

Parental Alienation: In Search of Common Ground For a More Differentiated Theory

Abstract: The concept of parental alienation (PA) has expanded in popular usage at the same time that it remains mired in controversy about its scientific integrity and its use as a legal strategy in response to an increasing range of issues in family court. In this paper we describe how competing advocacy movements (for mothers, fathers and children) in the family justice field have, over time, helped shape the shifting definitions and widening focal concerns of PAfrom children who make false allegations of abuse, to those who resist or refuse contact with a parent, to parent relocation, and to the emotional abuse wrecked upon children who are victims of a manipulative parent. In search of common ground for a sound approach to using PA concepts, we argue that the Single Factor model of PA (asserting that an alienating preferred parent is primarily the source of the problem) is inadequate, overly simplistic and misleading. A Single Factor model rests on the fallacy that abuse or poor parenting on the part of either parent have been, or are able to be, ruled out as sufficient reason for the child’s rejecting stance. By contrast, multi-factor models of PA make more useful, valid, differentiated clinical predictions of children’s rejection of a parent, informed by basic and applied research on children and families. However, multi-factor models are complex and difficult to argue in court and to use in assessment and interventions. Suggestions are made for developing intervention-focused prediction models that reduce the number of factors involved and are applicable across different types of interventions.

Parental Alienation in U.S. Courts, 1985 to 2018

Abstract: Courts have been dealing with alienating behaviors in high conflict family litigation for hundreds of years. Experts in the behavioral sciences have been writing about mothers and fathers manipulating their children to disparage the other parent for more than seventy years. But in the last two decades some social scientists and legal professionals have questioned the legitimacy of parental alienation as a concept and its admissibility in child abuse and child custody litigation. This study was designed to examine the extent to which courts in the United States have found the concept of parental alienation material, probative, relevant and admissible. Thirty-four years of cases were found with a WESTLAW query and analyzed. Cases were selected for study only if the record reflected that a judge or an independent expert found the concept of parental alienation to be of value in the litigation. Results illustrate increasing awareness of the concept and document its admissibility in every one of the United States. The numbers, sex of the alienating parent and prevalence of significant custody changes are discussed. Limitations inherent in this form of quantitative analysis are also discussed with recommendations for future research.

Concepts, Controversies And Conundrums Of “Alienation:” Lessons Learned In A Decade And Reflections On Challenges Ahead

Abstract: There have been significant advances in understandings and practice related parent–child contact problems (PCCPs), with a growing consensus about some issues and continuing controversy about others. It is widely acknowledged that PCCP cases are most fruitfully understood from a multi-factorial perspective. While some cases may be totally the “fault” of one parent (a parent perpetrating violence or abuse, or a parent exhibiting alienating behavior), in many situations both parents bear some responsibility: focusing on a single cause is rarely helpful. Most professionals and researchers agree that the challenge in practice is to distinguish between false positives and false negatives for both alienation (or unjustified rejection) and realistic estrangement (justified rejection). There is continuing controversy over whether the concept of “alienation” should be used, especially in court proceedings, and a related disagreement about the extent to which family courts are now failing to respond adequately to cases of intimate partner violence (IPV) or child abuse when alienation is also raised. Continuing education, intentional exploration of alternative hypotheses, and active perspective-taking will contribute to effective professional involvement. Increased parent education and prevention can play an important role, although for the more severe PCCP cases the family courts system will continue to play a critical role. While more research must be done, given the complexity of issues, conclusive findings are unlikely in the near future. Legislators and family justice professionals must make decisions based on a thorough analysis of each family’s circumstances in the context of our present knowledge, taking account of the limits of the law. They will often face the conundrum of making decisions in the face of uncertainty.

COVID-19 in Australia: Impacts on Separated Families, Family Law Professionals, and Family Courts.

Abstract: Around the globe, many families are experiencing significant anxieties linked to COVID-19. These include health concerns and economic pressures, both of which are frequently taking place against a backdrop of various levels of social isolation. In addition, many parents have been juggling home schooling requirements in the face of radically different work arrangements including the loss of employment altogether. Unsurprisingly, additional challenges and stresses are emerging for separated families, family law professionals, and family courts. In this article - written at a point-in-time in a rapidly evolving COVID-19 context - we reflect on key challenges for separated families in Australia, and some of the emerging professional responses.

A Crisis for a System in Crisis: Forecasting from the Short- and Long-Term Impacts of COVID-19 on the Child Welfare System1

Abstract: The COVID-19 pandemic has thrust the world into a crisis - and the child welfare system is particularly susceptible to its effects This pandemic has exacerbated some of the most problematic aspects of the system, and its impacts will reverberate long after the immediate crisis ends As COVID-19 spread, families were instantly impacted - in-person family time was cancelled, youth and families were unable to access basic resources, services, and technology, and access to the courts was curtailed Those short-term effects may give way to long-term harms such as disrupted attachments and delays in achieving permanency The pandemic also reinforced the importance of key tenets of a well-functioning child welfare system: high-quality legal representation, creativity, and youth and family engagement Attorneys must learn from the fallout of the pandemic, retain the best responsive practices, and use the lessons learned from this crisis to transform dependency cases, and the system writ large, into what families need and deserve Key Points for the Family Court Community Many child welfare agencies and courts' first response to COVID-19 was to suspend in-person family time (visitation) for all youth in care;these blanket suspensions failed to take into account individual family circumstances, contravened federal guidance, and isolated youth from their families - and virtual visitation did not serve as a meaningful substitute for all youth, particularly when taking into account age, developmental needs, and access to technology During COVID-19, families and youth in the dependency system experienced restricted and limited access to daily living needs (food, shelter, education), technology, reunification services and resources for transition-aged youth, and the courts and attorneys Because quality family time supports attachment and expedites permanency, parent/child relationships may be long impacted by COVID-19 restrictions, well after the immediate crisis ends Attorneys have an important role to play in ensuring that meaningful, quality family time resumes and that disrupted attachments are repaired through increased contact and/or targeted therapeutic services Closed courts, cancelled services, and suspended visitation may lead to delays in achieving permanency for youth in the child welfare system during COVID-19 Attorneys should ensure the court has before it a full record of what was supposed to happen and use the reasonable efforts requirement to hold agencies accountable for what did or did not occur during the pandemic (and why) - including services, family time, placement changes, and case plan compliance The child welfare system can mitigate the worst impacts of COVID-19, and begin to become the kind of system that families need and deserve, by focusing on and emphasizing high-quality legal representation, creativity in advocacy and policy design, and meaningful youth and family engagement - all best practices that shone through even during the pandemic

The Application of the Polyvagal Theory to High Conflict Co‐Parenting Cases

Abstract: Families, litigants, lawyers, advisors embroiled in cases of complex divorce with child contact issues, manage many stressors at once. Participants involved with these types of cases are often exhausted and burned-out from the long-term battles of prolonged litigation. The inability to problem-solve or even communicate effectively reflects the chaos and traumatic stress of the experience and can be seen as a hallmark of this population. When people are consistently stressed, there is a breakdown of communication skills that can create an immunity to receiving help from any direction. Often all parties involved appear to be both hyper-alert to potential threat, and hyper-reactive to one another: no one feels safe. Stephen Porges’ Polyvagal Theory is premised on the idea that neuroception plays a key role in the nervous system’s ability to assess danger in the environment. Neuroception is a neurophysiological response that does not involve cognitive processing. When cognitive processing is not involved, the result may lead to misinterpretation of, and an inability to accurately assess situations: executive functioning including rational thinking and communication skills are lost to physiological response. Rather than evaluating families and individuals involved in the aforementioned complex divorce cases through the lens of pathology, Polyvagal Theory explains their behavior as an adaptive stress reaction. Utilizing Polyvagal Theory offers a promising path to treatment with these families and diminishing the poor communication and the heightened emotion, assisting practitioners in understanding the impact of neurobiological response in managing stress and trauma. Applying Polyvagal Theory to court involved populations can help both litigants and practitioners recognize the role of the autonomic nervous system, providing the opportunity to understand, to self-regulate, and to improve communication and decision making.

Sherlock Holmes and the Case of Resist/Refuse Dynamics: Confirmatory Bias and Abductive Inference in Child Custody Evaluations

Abstract: Had Sir Arthur Conan Doyle’s fictional detective, the great Sherlock Holmes, actually engaged in deductive reasoning, he would have solved many fewer crimes. In fact, Holmes’ logical progression from astute observation to hypotheses is a model of a type of inductive reasoning. This paper argues that mental health professionals tasked to evaluate why a child is resisting/refusing contact with one parent must approach each family the way that Holmes approached each case, without a presumed suspect, moving systematically from detail to hypothesis, well-versed in the full range of dynamics that may be at play, and erring in favor of parsimony rather than pathology. By contrast, the custody evaluator who approaches these matters through a deductive process, seeking data that support an a priori theory, is vulnerable to confirmatory bias and doing harm to the child whose interests are paramount. The literature concerned with resist/refuse dynamics is reviewed, yielding 13 non-mutually exclusive variables that evaluators must consider so as to more fully identify why a particular child is resisting or refusing contact with one parent. On this basis, the hybrid model is expanded to include the full spectrum of contributing dynamics. Specific recommendations are made for judicial officers in the interest of writing orders for custody evaluations that minimize the risk of confirmatory bias.

Responding to Severe Parent–Child Rejection Cases Without a Parentectomy: A Blended Sequential Intervention Model and the Role of the Courts

Abstract: There have been significant developments over the past two decades that have expanded our understanding of the dynamics of parent–child contact problems post-separation, which have resulted in some changes in judicial processes to respond to these cases. One significant advancement is a more sophisticated differentiation of the nature and severity of contact problems, which better assists legal and mental health professionals to provide more suitable legal and clinical interventions. However, the issue of innovative court processes has received limited attention. The authors describe a subgroup of families within the “severe” category, for whom an expanded intervention model, referred to as a Blended Sequential Intervention is proposed. This approach involves a reversal of care with court mandated therapeutic support for the rejected parent and child, but also involves the favored parent in the therapeutic plan from the outset, and is intended to avoid a permanent “parentectomy” of the child from either parent. The authors discuss how the courts should respond to these cases, and posit that until all therapeutic treatments are exhausted, interim orders should be preferred to final determinations, and judges should maintain oversight. The authors discuss the critical role of judicial leadership in working with lawyers and mental health professionals to manage and address the issues in these high conflict cases.

Dynamics, Not Diagnoses

Abstract: I am grateful for the opportunity to contribute to this compilation of insightful articles and, in particular, for the opportunity to respond to the critical commentary on rhetoric and alienation by Milchman et al. (2020). I write as much to complement those authors on their incisive perspective, as to suggest that we may all be asking the wrong questions. Milchman et al., renew the call for objective, scientifically sound research informing the constructs and methods that underlie child custody evaluations (“CCEs”). They correctly disparage rhetoric in favor of empiricism. They demand that balance replace advocacy, and they caution professionals and courts not to be misled by emotionally compelling, but logically flawed and statistically weak arguments. These observations are as important today as they were when they were first formulated by Aristotle (Cooper, 1993) and codified under Frye (1923), Daubert (1993) and Mohan (1994). Milchman et al., are furthermore correct to remind us of one of the central tenets of cognitive behavioral therapy and cognitive science more generally, that is, that words reify experience (Boroditsky, 2011). Thus, the labels that we use carry meanings that often communicate more than what may be intended. This is why many jurisdictions have replaced emotionally-loaded language, such as “custody” and “visitation,” with more descriptive and objective concepts, such as “decisionmaking responsibility” and “parenting time.” Indeed, my other article in this volume (Garber, 2020) advocates for just such an objective, balanced, and behavior-based approach to resist-refuse dynamics. For all of the wisdom in these words, I fear that we are, nonetheless, asking the wrong questions. Careful attention to our choice of words, to the capitalization of labels, to the empirical credentials and consensual acceptance of those labels is necessary, but not sufficient. I fear that we are trying to tape and glue together a workable structure on an essentially flawed foundation. That foundation is the medical model of individual illness, diagnosis, and intervention that psychology inherited from its physician parents, disseminated more or less effectively among its allied mental health siblings, and has since brought to bear on our efforts to assess and intervene with high conflict, courtinvolved families. It is the medical model that prompts us to even consider whether “alienation” should be codified as a “syndrome,” a “disorder,” or a lower-case description of behaviors. It is the medical model that prompts us to try to impute family law meaning to clinically designed methods. It is the medical model that prompts so many custody evaluators, attorneys, and courts to incorrectly believe that an assessment of mother, father, and child is the same as an assessment of the system that they make together. Thirty-plus years in the trenches have slowly and painfully worn away my training as a clinician and diagnostician. Trial by fire has allowed me to finally understand that family law questions are about relationships, not individuals. The work that we do is about dynamics, not diagnoses. There is no Diagnostic and Statistical Manual (“DSM”) of relationships. The DSM and the ICD are catalogs of individual pathologies. Applying those nosologies to family law matters is a bit like trying to measure time with a tape measure. This is at the core of my argument against the use of standardized adult psychometric instruments in the context of CCEs (Garber & Simon, 2018; cf.,

Risks and Realities of Working with Alienated Children

Abstract: Involvement in custody cases that include accusations of parental alienation—whether as an evaluator, expert witness, lawyer, judge, therapist, provider of a specialized intervention, or researcher—incurs both professional and personal risks. Some risks relate to false negative or false positive identifications of parental alienation that can lead to regulatory agency complaints and public condemnation by the parent who feels wronged by the case outcome. Other risks stem from providing services in an emerging area of practice and working with children who overtly oppose repairing the relationshipwith their rejected parent. These risks include: unfounded accusations of mistreating children; negatively biased commentary and sensationalist attacks in the media and in social media, professional conferences and journals, and in courtroom testimony; harassment, vilification, and invasion of privacy; threats of violence and public humiliation; shunning and rumor spreading by colleagues; and complaints to regulatory agencies. This article examines circumstances, beliefs, and dynamics that give rise to these risks, suggests precautions to reduce the risk of false accusations against professionals, and offers recommendations for dealing with regulatory agencies. Criticisms that a court or service provider has mistreated a child merit careful scrutiny in the context of the case evidence and empirical data. While some interventions for alienated children raise legitimate concerns, others have been maligned by anecdotal complaints that studies showdo not represent the experience of most participants.

Child Voice in Parenting Coordination: Toward a Model of Inclusion

Abstract: Is it possible to bring the voice of children to the parenting coordination process without their involvement? And, if children are involved, what are the considerations for safe and appropriate inclusion? Ninety-two parenting coordinators recently surveyed responded about their current practice and thoughts on child inclusion. Their comments, along with current trends in child-inclusive practice, and with the Association of Family and Conciliation Courts Guidelines for Parenting Coordination (2019), assisted in providing a guiding framework and a forum for discussion for the community of parenting coordinators.