Parental Alienation

By Attorney Gregg Herman
January 1, 1998

One of the most difficult issues to deal with in a divorce is allegations of parental alienation. First identified as a “syndrome” by controversial New Jersey child psychiatrist, Dr. Richard Gardner, the issue presents several problems. Preliminarily, it is highly disputed whether parental alienation is properly classified as a “syndrome” at all. Moreover, syndrome or not, parental alienation exists to some degree in most, if not all cases. For that matter, it is present in many intact marriages. It is of greater concern that there is no universal agreement on how to deal with parental alienation. Wisconsin statutes authorize the court to consider alienation as a factor in its custody and placement determinations, but the primary goal remains to promote the best interests of the child.

Therein lies the dilemma. According to some mental health experts, where the alienation has proceeded to a certain point, the child may have become so alienated that transferring custody to the parent with whom the child has been indoctrinated to hate would be harmful. Therefore, if the child’s best interests is primary, rather than making an order consistent with the rights (or wishes) of the innocent parent, custody should be awarded in these instances to the alienating parent. Such a result paradoxically rewards the parent who acted inappropriately and punishes the innocent parent — clearly contrary to that which our legal system strives to achieve. Two very recent cases decided simultaneously by the Vermont Supreme Court squarely addressed the issue of parental alienation, each with quite different results.

In Begins v. Begins, No. 97-334, 1998 WL 598583 (Vt. Sep. 11, 1998), the supreme court reversed an award of custody to the father where the trial court found that the father had encouraged animosity by the children towards their mother and had constantly “poisoned” the relationship. The trial court found that the hostility of the children towards the mother precluded giving her custody, even though the hostility was “encouraged and fueled” by the father. In reversing the order, the Vermont Supreme Court held that the trial court had “effectively condoned a parent’s willful alienation of a child from the other parent”. The court continued:

“[The trial court’s] ruling sends the unacceptable message that one might, with impunity, engage in similar misconduct. Left undisturbed, the court’s decision would nullify the principle that the best interest of the child are furthered through a healthy and loving relationship with both parents.”
On the same day as the decision in Begins, the Vermont Supreme Court decided Renaud v. Renaud, No. 97-366, 1998 WL 598560 (Vt. Sep. 11, 1998). In Renaud, the mother had impeded the father’s contact with the child, by, among other things, making a succession of unfounded allegations of physical and sexual abuse. Nonetheless, the trial court awarded the mother custody and the supreme court affirmed.

The supreme court distinguished Begins, finding that in Renaud, the mother’s actions were transitory, unlikely to be repeated and subject to cure. Some, if not all, of these findings apparently were based on the testimony of the mother’s therapist, who substantially downplayed any alienation in favor of an opinion that the mother was merely seeking “expert guidance and reassurance that the children were being well cared for” by making the abuse allegations.

Certainly, the similarity between these two cases — the mothers “win” in both — can only fuel the fires of the “Father’s Rights” advocates who believe that the deck is stacked against them. But, are there other lessons to be drawn?

From the outset, these cases, like all custody cases, are highly fact-intensive, making them of questionable precedential value. Surely, there is no definitive litmus test for where the child has passed the point of no return. Even if there was a definitive test, there exists no consensus among mental health professionals that even if the child has been totally alienated, the child should remain with the alienating parent.

Most “custody” cases are actually “arithmetic” issues, allocating 24 hours of a day and 7 days in a given week, between two parent. As such, the focus is typically on how much time the alienating parent has to do the harm. Even if there is supervised placement (very rare) or a denial of placement altogether (even more rare), harm can occur, albeit for a smaller period of time. Certainly, it makes a difference if a child is with an alienating parent 10 days out of 14 as opposed to 4 out of 14. But where is the breakpoint? Does an extra day or two truly make a difference?

There appears to be no definitive answers to these questions. Moreover, as lawyers, while we want to help these children, there is a limited amount we are trained to do to address parenting issues. After all, legal training is designed primarily for confrontation, not resolution.

Therefore, probably the best means of dealing with alienation would not be to litigate custody in court, which tends only to polarize people and increase antagonism. Rather, if parents could truly see what alienation does to the child, perhaps they realize the harm they are causing.

Mandatory parental education courses are now mandatory in many counties, although forced counseling is always suspect. Another method of education is a video produced by the American Academy of Matrimonial Lawyers. This video, entitled “The Voices of the Children of Divorce”, consists of children of divorce speaking of the impact upon them resulting from the conflict. The children express the angst, pain and sadness which alienation causes. The video costs $10, can be ordered by calling 1-800-422-6595. It should be required viewing by every parent going through a divorce.

By encouraging counseling and educational programs, we can at least attempt to ameliorate the effect of conflict of the innocent victims — the children.

This article originally appeared in Wisconsin Opinions.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.