California Divorce and Family Law

Parental alienation: The latest weapon in nasty divorces

"Welcome to the swamp."

That's what a judge once told a client of Anchorage divorce attorney Steve Pradell when accusations of parental alienation were leveled against the client in a custody hearing.

Parental alienation syndrome - a controversial diagnosis to describe a child who compulsively denigrates one parent in response to consistent brainwashing by the other parent - has become a common weapon in custody cases.

"It happens all the time," said Michael R. Walsh, a divorce attorney in Orlando, Fla. "If Mom can't hurt Dad another way, what has she got left after she's tried to rake him over the coals on everything else?"

According to Richard Gardner, the psychologist who is considered the father of the syndrome, it typically manifests itself as a campaign of denigration by one parent against the other, which is accompanied by weak, frivolous and absurd rationalizations for the deprecation. As a result of this steady campaign of insult, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the targeted parent.

But the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to a statement in its website. The legal community is divided as well. While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children. "I think it's more of a code word that gets used in trial because one parent is not maintaining the relationship with the children and believes the other parent is interfering with the relationship," said Minneapolis divorce attorney Susan Gallagher.

Like it or not, parental alienation has become a common weapon in courts across the country. Even in jurisdictions that don't recognize it as a diagnosable syndrome in children, lawyers can still argue straight parental alienation - that one parent's attempts to turn the child against the other parent indicates that the first parent is not fit to have custody. Sometimes the behavior that prompts charges of parental alienation is subtle - frequent disparaging remarks within earshot of the child or setting up appointments and activities for the child during times when the other parent is scheduled to have visitation. Other times it is openly aggressive, such as unfounded accusations of child abuse or neglect. In some cases, a parent is deluded enough to believe their unfounded accusations - and other times when the accusations are true - so sorting out what is real and what is not can be a tall order for the courts.

"I can't tell you if the syndrome exists psychologically, but I can say it's very troubling and one of the hardest things for a judge to figure out if it's really happening," said Pradell. It's also possible for the child to be alienated from one parent without any campaign of denigration by the other. "Just for the sake of illustration, a 13-year-old girl finds out before Mom that Dad is cheating on Mom. That 13-year-old girl may become alienated from Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of Buffalo, head of the Family Law Section of the New York Bar Association. As the Anchorage judge said: "Welcome to the swamp."

Making it stick

Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order. "It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C. The best place to begin is with witnesses - anyone who was present when one of the alienating interactions occurred.

In some states, clients can record telephone calls or other conversations to create audio evidence. O'Reilly suggested that lawyers encourage their clients to communicate via e-mail and voice mail to create a tangible record. This will be far more effective in court than the typical he-said/she-said battles that dominate most custody battles. But the heart of any parental alienation case is the expert testimony, according to Stevens. "Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"

It many cases the judge will require a court-appointed psychologist to work with both parents and the children in order to obtain a non-partisan expert opinion. In a similar vein, lawyers may want to ask the court to appoint a guardian ad litem who will advocate on behalf of the child to determine whether parental alienation has occurred.

In the end, though, lawyers should be prepared for a tough battle. "It's very hard to prove, because if you have the client from whom the children are estranged, you don't have a child willing to cooperate with the process, and that's where most of the proof would be," O'Reilly said.

Defending against a charge

These same strategies, and a few others, are useful if unfounded allegations of alienation are leveled against your client. "Obviously they have the burden to prove the client's doing something," said O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your fault.' You have a little bit of advantage." First, make sure your client always takes the high road. Although the natural instinct of clients is to become indignant and defend themselves vehemently, protesting too loudly could undermine their credibility in the eyes of the court, said Gallagher. Instead, develop an action plan for how your client can build a stronger relationship with the children.

Change any behavior that is suspect. Have clients tell the judge that while they don't feel there is evidence to support the allegation, they are seeking the help of a professional as a precaution, and are prepared to change any behavior that is deemed inappropriate. "Who is not confident in a parent who is going to do and say that?" Gallagher asked. But just as in the case of the accuser, the most powerful weapon for a client who is accused of alienation is the psychological expert. "A good forensic expert has credibility because that person doesn't represent your guy and doesn't represent the other party - he's appointed by the court," said Tom Carnes of Carnes Ely in Houston.

Third-party witnesses can also be a powerful weapon in court. "Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested. Finally, Carnes suggests that lawyers request more visits between the targeted parent and child in an effort to strengthen the relationship between them. Of course, the best defense against an alienation charge is to make sure it's never made in the first place.

Advise your client not to get in the middle of disputes between the child and the other parent, O'Reilly advised. If a child refuses to go with the non-custodial parent, the custodial parent should insist. He or she should tell the child that the judge has required the visit. "I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."

From Lawyers USA.

Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.

The trial court allowed a father, who sexually abused his adopted son,  to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes.  The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.

The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation.  It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."

In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
From the Family Law Prof Blog.

Case Law Development: Modification of Joint Custody in Relocation Case Does Not Require Proof of Changed Circumstances if Joint Custody Continues after Move

The California Court of Appeals has handed down a fascinating decision involving modification of joint child custody plans.  In terms of the legal developments, the majority and dissenting opinions' debate over the "changed circumstances" test  in child custody modifications is extensive and well-written.

The case involves an unmarried mother and father whose relationship was, in the words of dissenting judge Bedsworth, "Byzantine in its complexity."  The couple had an on-again, off-again relationship for over ten years after the child was born, despite the fact that Father was married to another woman for most of this time.   Custody and paternity proceedings were filed when the child was five years old and a custody order entered over four years later.   The custody order provided a 50/50 joint custody arrangement and ordered that neither parent could relocate out of the state without the other parent's permission or the permission of the court. A year later, mother moved to modify the parenting plan and for permission to move to Colorado, based on her allegations that she could no longer afford to live in California, her sister had offered her employment in Colorado, and father was "very controlling" and was abusing son in his sports workout sessions.  Father argued that mother's request was in bad faith because his wife was expecting their first child and he believed mother wanted to move away in order to prevent son from bonding with his new half-sibling.

The court heard the custody issue de novo under a best interests standard, rather than applying a changed circumstances rule.  It appointed an attorney for the child and a child custody evaluator.  Father employed a psychological expert to evaluate son, but the expert was unwilling to testify (with father alleging that his reluctance was due to pressure from mother and child's attorney).  The court refused to accept that expert's report into evidence, concluding that the expert had freely chosen not to testify.  Finally, the court refused to hear the testimony of the 12-year-old son or interview him in chambers, stating that it had a policy against children testifying and that it had sufficient information from the custody evaluator and child's attorney.

The trial court modified the child custody judgment, granting mother's move-away request and establishing a new co-parenting plan for joint physical custody, with son living with mom in Colorado during the school year, Dad during the summers and on alternate Thanksgiving and spring breaks.

The court of appeals affirmed, noting that ordinarily the parent seeking to change custody would have to prove changed circumstances, but such a requirement did not apply here "because the court did not change custody. Although the court gave [mother] permission to relocate [son], the court continued joint custody with a modified co-parenting arrangement."  The court also found no error in the trial court's refusal to allow the child to testify.

The dissenting opinion is a lovely piece of writing in which Judge Bedsworth takes the majority to task for its conclusion that changed circumstances were not required in this case.  Here is a small excerpt to give you a flavor of the opinion:    

They [decide the changed circumstances rule does not apply] by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangement.” ... In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.” I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of a final  custody judgment in this case, absent a showing of significant changed circumstances.

Niko v. Foreman (October 30, 2006)
Via the Family Law Prof Blog.

Understanding California Law for Child Custody during Divorce

Many people are unaware how the courts determine which parent will have physical custody of the children in a divorce, particularly where the parents cannot agree on this issue.

In California, children do not automatically go to the custody of the mother. Rather, California law requires judges to have as their primary consideration the child's "best interest" when determining the appropriate physical custody of a child.

California courts have wide discretion in determining a parenting plan that would be in the best interest of the child. The "best interest" rule does not necessarily mean that the parent with more money will win custody (although money is a valid and appropriate consideration). Rather, the judge will consider the full range of facts involving the health, safety, and welfare of the child.

The Court must determine which parent can better provide a nurturing, safe and stable environment for the child. Some factors under consideration include the amount of quality time each parent is able to provide for the child, discipline, safety precautions, feelings and desires of each parent, history of spousal or child abuse, stability and continuity of environment, and sometimes the child's own wishes. These are just some of the factors considered by the Court.

For most cases, after all of the evidence has been submitted to the Court, it will fashion an appropriate custody order that strives to give the child access to both parents, not just one parent. The Court wants to assure that "frequent and continuing contact" with both parents is maintained, as this is usually considered in the "best interests" of the child. In all cases, it is beneficial to both parents (and usually beneficial to the child) if they can come to an agreement regarding this issue.

From the Navy Compass.

Katrina disrupts divorce pacts: With relocations come court battles over child custody

In June, after a long dispute, a judge decided that Bobby Spurlock and Zandrea Johnson should share custody of their daughter. Then came Hurricane Katrina. Spurlock, whose home in Jefferson Parish was undamaged in the storm, remained in Louisiana. Johnson, whose home in eastern New Orleans was destroyed, evacuated, with the child, to Memphis. Now Johnson plans to stay in Memphis indefinitely, and an already unpleasant clash over the best interest of a 6-year-old girl is unlikely to be resolved anytime soon.

The storm and the flooding that came with it uprooted families, leaving them in staggering states of stress and uncertainty. For some families, already torn apart by separation and divorce, the fallout has been especially damaging, producing painful new battles over child custody and visitation, financial support and division of assets.

"How can things change from joint custody to relocation in a couple of months?" asked Spurlock, a 37-year-old sales manager for a car dealership. "I am not trying to take her from her mom, but I want equal time with my daughter."

After the damaged Orleans Parish Civil District Court set up operations near Baton Rouge in October, custody and support cases began to mount. Since January, when the court returned to New Orleans, judges and lawyers say they have seen scores of family disputes related to the storm. Other parishes have experienced similar surges. "Families that were operating on an emotional string, well, that string has broken," said Paulette Irons, a district court judge. "All that's left is dissension. It will be a busy summer, I can tell you."

Although some broken families have just been struggling for a new sense of stability, others have used the storm to try to beat the legal system, Irons said. She said she had seen noncustodial parents who had spirited away their children without notice, custodial parents who had moved without good cause, and parents who had tried to avoid payments of child support. Some cases involve demands by parents for the return of children who were taken to other cities, and others are requests from relocated parents to stay temporarily in a new place with their children or to move permanently. In some cases, both parents have relocated.

Jeffrey Harris, a disabled ship worker who moved to Arlington, Texas, after the hurricane, is using a legal aid service to try to arrange visits with his 5-year-old son, whom his wife took to Alabama. The couple's divorce proceedings were interrupted by the hurricane, and Harris' lawyer is now in Atlanta. "All I want is to have my divorce final and get to see my son, and it ain't happening," said Harris, 36. "I am on a fixed income. I just can't get over there to see him. I don't know what to do."

There have been so many cases like Harris' in Texas that the American Academy of Matrimonial Lawyers sponsored a Webcast with the Texas Bar Association last month on family law issues related to Hurricane Katrina. Louisiana has strict guidelines governing requests for relocation in settled custody cases. They include prior written notice to the remaining parent of the intent to move, and a waiting period during which the remaining parent can file an objection.

But the guidelines do not address emergency upheavals, like those caused by Hurricane Katrina, which leave judges the messy task of determining when a required evacuation becomes a voluntary relocation and -- when children are involved -- who can stay where and for how long. "It's hard to make these decisions," Irons said. "On the one hand, you want people to come back, but you don't want them to have to come back to squalor. It's just case by case."

Some lawyers are pushing for legislation that would add guidelines relating to emergency evacuations into the state's relocation statute. In the meantime, some warring spouses are taking their own precautions. Judge Manny Fernandez, a chief judge in St. Bernard Parish, said he heard a case recently in which the parents specified in their custody agreement how the children should be relocated in the event of an evacuation. "I was in practice for 34 years before becoming a judge, and I've never seen anything like that," he said. "Everything has changed now."

From the New York Times via the San Francisco Chronicle.

'Virtual' visits for children of divorce pushed in states

Divorce put David List and his 2-year-old daughter on opposite sides of the Atlantic Ocean, and he worried that she would soon forget him.

She hasn't, though. List's divorce agreement guaranteed him "virtual visitation" - the chance to talk with his daughter through an Internet video connection - and he and Ruby Rose, now 5, usually connect at least twice a week. The chats sustain them in between their in-person visits, which come only a few times a year.

"When she gets off the plane, I know what she had for dinner last night," said List, 49, of Santa Cruz, Calif. "She'll run right up to me and jump in my arms because I know exactly what she's all about."

Advocates of virtual visitation want states to spell out in their laws that judges can make it part of a divorce agreement.

The benefits go beyond helping parents and children stay close, supporters argue. They say noncustodial parents are more likely to pay child support regularly if they can stay in touch, and electronic visits can help keep children from getting caught up in fights when bickering exes meet in person.

Utah made virtual visitation an official option in 2004, and similar legislation awaits the governor's signature in Wisconsin. Illinois, Missouri and Virginia lawmakers have introduced proposals, too.

"A telephone can only go so far," said Republican state Rep. Ruth Munson of Illinois.

The idea has its critics, though, who fear judges might use the option of virtual visitation as justification for ordering fewer real visits with children or letting one parent move away with the children.

"Real parents need real time. Real kids need real time," said David L. Levy, director of the Children's Rights Council.

"It can be a wonderful accessory, but the danger is that it will be used as a substitute for real visitation."

Virtual visitation agreements can cover things as mundane as telephone calls, e-mail and instant messages, but the focus is on video connections. With the technology becoming more commonplace and affordable, divorce lawyers say more parents are using it, often without any formal court agreement.

But many lawyers and judges are still unaware of it.

"I think that it is an evolution and, unfortunately, a lot of older attorneys aren't even aware that it is an option," said Cheryl Hepfer, president of the American Academy of Matrimonial Lawyers and a Rockville, Md., attorney.

Hepfer said she has seen cases where virtual visitation helped keep the peace between exes because seeing the child's face eased the absent parent's fear that the child was being manipulated or monitored. She also called it "common sense" that parents using virtual visitation would be more willing to pay child support.

Read it all here.

NPR Program "The Tug of War Over Children"

With over 40% of marriages ending in divorce, the battle for child custody and support are among the most common and contentious disputes heard by our nation's courts. What do judges look at when making custody and child support decisions? Do moms get an unfair advantage? What happens when one parent snatches the kids and hides them from the other parent? Should teenagers get a say in where they live? NPR  takes a deeper look at family law and ask what happens to the kids when parents break up?

Relocation Decisions After Constested Custody Decisions Don't Require Evidentiary Hearings

The California Supreme Court looked at a case where a parent with sole legal and physical custody of a child wanted to relocate to Nevada. The noncustodial parent tried to prevent the move by modifying the custody order.

The court held that under the changed circumstances rule, "custody modification is appropriate only if the parent seeking modification demonstrates 'a significant change of circumstances' indicating that a different custody arrangement would be in the child's best interest." The noncustodial parent must prove that the "proposed relocation of the child's residence will cause detriment to the child, requiring a reevaluation of the existing custody order."

Once the noncustodial parent makes the initial showing of detriment to the child, the court will consider a variety of factors to decide whether to modify custody in light of the proposed move.

In addition, the court held that an evidentiary hearing in a move-away case should be held only if necessary. "Where, as here, one parent has been awarded sole legal and sole physical custody of a child, and the noncustodial parent opposes the custodial parent's decision to relocate with the child, a trial court may deny the noncustodial parent's requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent's allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is legally insufficient to warrant relief." Here is the court's opinion.

Court Refuses To Terminate Father's Parental Rights For Conviction of Multiple Felonies

Last week, the Court of Appeals held a father's conviction of multiple felonies does not serve as a sufficient basis to terminate his parental rights to his daughter.

In the case, a prospective adoptive family sought to have the biological father's parental rights terminated for committing multiple felonies. The biological father was convicted of burglary, attempted burglary, and drug possession.

The court first noted that the "termination of parental rights is 'a drastic remedy to be resorted to only in extreme cases." In order to terminate the father's parental rights, "there must be a nexus between the decision to terminate the parental rights...and the underlying facts of a parent's felony conviction." In other words, the statute is limited "to those situations where a parent commits a heinous felony offense, often against a family member, which in and of itself demonstrates that the parent will be forever unfit to have any measure of custody of his or her children." You can read the court's opinion here.