Posted by: K.O. Herston | May 26, 2011

Parental Alienation and Child Custody in Tennessee

There has been a lot of controversy recently among mental health professionals as the American Psychiatric Association contemplates adding something called “Parental Alienation Syndrome” (PAS) to the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). This subject should be of great interest to family law attorneys and divorcing or divorced parents everywhere.

I recently read two articles that I found very informative on this subject, both of which are excerpted below.

The first is “Parental Alienation in Child Custody Disputes” by Marlene Moses and published in the Tennessee Bar Journal. This article provides a nice introduction to the subject and discusses the few Tennessee cases where PAS has been explicitly addressed by name. As the article notes, the claim that one parent is failing to promote the child’s relationship with the other parent is commonly litigated in Tennessee, even if neither parent attempts to call it PAS by name.

The second is “Parental alienation sydrome: It’s not a real disease, but some people want it to be” by Dalia Lithwick, the legal affairs reporter for Slate Magazine. This article covers the recent controversy over the proposed inclusion of PAS in the upcoming DSM.

Parental Alienation in Child Custody Disputes

It should be a truism that in the absence of danger to a child, “[a] child’s interests are well-served by a custody and visitation arrangement that promotes the development of relationships with both the custodial and noncustodial parent . . . .”

A parent who acts contrary to the foregoing tenets, perhaps even alienating a child from the other parent and actively interfering with the child having a loving relationship with the other parent, risks losing custody. In making a custody determination, the court is required to consider “the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.”

Sometimes, particularly in the context of a bitter divorce or custody dispute, a parent (the so-called “alienating parent”) engages in certain behaviors that influence the child, either intentionally or unwittingly, to turn against the other parent (the so-called “alienated parent” or “target parent”). “Parental alienation” is a term commonly used to describe the negative impression and attitude children may develop about one parent by listening to the words or following the actions of the other parent. Often, the form of parental alienation most experienced is that of negative words of one parent about another, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. In extreme cases, the alienating parent might make false accusations of child abuse and sexual abuse against the other parent.

Some other signs of parental alienation include: the destruction of mail or gifts from the alienated parent; the child expressing contempt for the alienated parent, often in the presence of the alienating parent; the child paraphrasing or parroting statements used by the alienating parent, with the words used often atypical of words likely to be used by a child; the child speaking about exaggerated or contrived abuse experienced at the hands of the alienated parent; and encouragement of the child to be with friends or otherwise preoccupied in preference to interacting with the alienated parent.

A corollary of parental alienation is “Parental Alienation Syndrome” (PAS), a term coined by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behavior of parents involved in child custody disputes and noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a disorder. He described the so-called disorder or syndrome as follows:

Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent . . . .

Although many feel that the concept of PAS makes sense, it is not generally accepted as a syndrome, nor is it widely embraced by the mental health or legal communities. The theory is widely criticized for lacking scientific validity and reliability and has been criticized as “simplistic junk science” and an “unsophisticated, pseudoscientific theory” by some. PAS is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), but Dr. Gardner and others, including Vanderbilt University psychiatrist William Bernet, have lobbied for its inclusion in the next revision of the DSM. A survey of American custody evaluators published in 2007 found that half of the respondents disagreed with the inclusion of PAS in the DSM, while a third thought it should be.

While PAS is widely criticized, the separate but related concept of parental alienation (described as the estrangement of a child from a parent) is a more readily accepted dynamic . . . .

Some members of the legal community feel that expert testimony regarding PAS should not be admissible in child custody hearings based on both science and law. The U.S. National Council of Juvenile and Family Court Judges has recommended that PAS not be considered in child custody cases. Regardless, the concept of PAS (and parental alienation, for that matter) is not absent from the case law, and testimony regarding these conditions is becoming more common.

Although there are several Tennessee cases referencing parental alienation or some form thereof, there appear to be only two cases (both unreported) that reference PAS: Cone v. Cone and Costley v. Benjamin. . . . [In Cone], the court changed custody to the father based in large part on the fact that the mother had been unwilling to encourage a close and continuing relationship between the child and the father.

The other Tennessee case referencing PAS is Costley v. Benjamin, a 2005 Court of Appeals decision involving a father’s unrelenting efforts to gain custody of the parties’ daughter after the mother had already acquiesced to him having custody of their son. The bitter litigation between the parents had a profound negative effect on both children. After the son moved in with the father, the son’s relationship with the mother deteriorated to the point that he stopped visiting with her. The daughter, too, began to align herself with her father. The trial court stated that the father had, “consciously or unconsciously, attempted to weaken the bond between [the daughter and the m]other.” The daughter’s therapist opined that “the prolonged situation that [the daughter] is in and the contribution, either knowingly or unknowingly, her father … [has] created a very serious psychiatric problem . . . .” The therapist felt that the daughter’s behavior was motivated by the belief that “all of this will finally stop if I just go live with dad.” The therapist was concerned that the father was actively alienating the daughter from her mother, and because of this, she did not believe it was in the child’s best interest for custody to change to the father . . . .

Ultimately, the trial judge reasoned that if the child lived primarily with the father, she would probably lose contact with the mother, just as the parties’ son had. On the other hand, if she were ordered to stay with the mother, the father would not relent in his attempt to obtain primary residential placement, and the child would remain torn and conflicted. The trial court granted the father’s petition to modify the parenting plan by awarding him primary custody in order to “end the conflict.”

The appellate court reversed the trial court because the father failed to demonstrate “a proper ground for modification of the prior parenting arrangement and because the proof shows that the mother is more inclined than the father to encourage the child’s relationship with the other parent.”

Divorce can affect children profoundly by undermining their sense of stability and well-being. Creating a situation where a child feels forced to choose sides only worsens the effects.

While the use of testimony pertaining to PAS may be far from firmly entrenched in our legal system, Dr. Gardner’s findings are at the very least useful for making sense of the family dynamics in some of the most antagonistic custody proceedings. While the legal battle will end, the effect it can have on children caught in the middle will have long-lasting effects.

Parental alienation sydrome: It’s not a real disease, but some people want it to be

The competition to get your favorite disease recognized in the bible of mental health, the Diagnostic and Statistical Manual of Mental Disorders, can be as fierce as the talent contest in the Little Miss St. Paul Contest. The American Psychiatric Association is contemplating adding something called “parental alienation syndrome” (PAS) to the new edition of the DSM, scheduled to be published in May 2013, and the question has launched a national lobbying and letter-writing campaign on both sides. That angry letters and editorials might play any part in a debate about mental health and custody disputes probably tells you most of what you need to know about the validity of PAS.

What is parental alienation syndrome? William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the DSM-5, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.” There is no doubt that an ugly divorce can affect kids’ relationship with their parents or cause children to choose sides, often in anger. In fact, that probably happens more often than not. But Bernet and others who argue for adding PAS to the Sears, Roebuck catalogue of mental health want to see it recognized as a legitimate mental health disorder in order to “spur insurance coverage, stimulate more systematic research, lend credence to [the] charge of parental alienation in court, and raise the odds that children would get timely treatment.”

They want, in other words, to affix a name, some blame, and also a price tag on a broad range of child responses to a custody fight—some perfectly justified and some not—in the hopes of expanding its use in court.

And what’s the downside to including PAS in the DSM? Well, for one thing, with a minimum of three participants needed to diagnose it, PAS starts to look less like a mental health disorder than an epidemic. It assumes that one crazy person (the mother) brainwashes a second crazy person (the child) into telling lies about a third person (the father). Just because a lot of parents have experienced blocked visitation and unreturned phone calls doesn’t make every instance of that conduct the result of a medical “syndrome.” Joan S. Meier, a professor of clinical law at George Washington University School of Law, has explained it this way: “PAS is a label that offers a particular explanation for a breach in relationship between a child and parent, but insofar as that breach could be explained in other ways, it is not in itself a medical or psychological diagnosis so much as a particular legal hypothesis . . . .”

Supporters of PAS argue largely from personal experience, and their stories are often compelling. But the theory of PAS is not recognized as valid by the American Psychological Association, the American Psychiatric Association, or the American Medical Association. And the National Council of Juvenile and Family Court Judges has published guidelines for custody courts clarifying that “the theory positing the existence of ‘PAS’ has been discredited by the scientific community. Any testimony that a party to a custody case suffers from the syndrome or ‘parental alienation’ should therefore be ruled inadmissible and/or stricken from the evaluation report . . . .”

There are a lot of websites, experts, and emotion invested in this debate. But there aren’t two empirical sides. There is science, and then there is passionate non-science. As Paul Fink, a professor of psychiatry at Temple University School of Medicine and a past president of the American Psychiatric Association in Arlington, Va., once said of Gardner, “He invented a concept and talked as if it were proven science. It’s not.”

Even without a scientific basis, parental alienation, like climate denialism, has its own language, passions, and saliency. Right or wrong, recognized or not, most family courts now take PAS extremely seriously. Experts testify, court-appointed advocates offer diagnoses, and family-court judges regularly adopt alienation explanations as a way of rejecting abuse allegations. As Meier wrote in a 2009 article: “Despite the palpably extreme and unbalanced quality of both the PAS theory and the thinking of its author, as well as the lack of scientific basis, the theory has for over a decade become virtually ubiquitous in family courts.”

Parental Alienation in Child Custody Disputes (Tennessee Bar Journal, May 2011).

Parental alienation sydrome: It’s not a real disease, but some people want it to be (Slate Magazine, May 17, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


Responses

  1. Parental Alienation in its extreme form is a real mental issue that is so devastating to the child that he can form a hatred and rage toward the targeted parent that is unbelievable. It is fueled by a parent who wants to take the other parent to total destruction. In the case I am involved in as a family member, the father is the alienator, using his son to turn on a once beloved mother, using untruths and a campaign of destroying her and her reputation within the community. It extends to other family member, friends, and any person not on his ” team “. There is no relief negotiating with the 2 attorneys and the judge. The input of school and personal counselors is disregarded. There is no hope. This father is allowed to do as he pleases keeping the son with him, not allowing the mother’s family to see him. It is brainwashing to the lowest form of child abuse imaginable. And no one can help.

  2. I was unfortunate enough to be involved in a divorce/custody proceeding in 1997, after the “tender years” doctrine had been replaced with “comparative fitness” but PRIOR to the implementation of mandatory parenting plans, parenting classes, etc. A judge awarded custody of my infant twin girls to their father (based largely on the false testimony of an employer that I had filed a sexual harassment complaint against). I appealed the decision, but as there is no “new” evidence on appeal, the court affirmed the trial court. Their father (and his mother, who was the one who wanted my daughters for her own) would literally have to pry my girls crying from around my neck when I returned them after visitiation. This went on for about a year. Then my daughters eventually stopped crying for me. They shut down emotionally and developed an almost blank stare.. They are almost 15 years old now and they have no friends, no social skills, suffer from sever anxiety and have such an attachment to their father’s family that they will no longer willingly stay with me for the amount of visitation time that I was awarded. I have done everything possible to foster a relationship with my daughters, but when a judge (based on the testimony of someone who obviously had ulterior motives) removes infant girls from their mother (I am a college graduate and have had the same job for over 16 years, never arrested, no allegations of abuse, nothing), and the girls are raised by their paternal grandmother, who constantly extolled the virtues of their father, what else can be expected? My daughters were not even able to go to public school this year due to their lack of ability to communicate even on the most superficial level with classmates. This all stems, in my opinion, from the separation of a bond that is innate in all species, the bond between mother and child. I fear if this is not addressed soon, I will have no relationship with my daughters, but I cannot find ONE family law attorney willing to take my case. Can anyone advise??

  3. PAS is a standard tactic abusive men use to attempt to gain custody over a comparatively more fit mother. It is often sucessful, especially if there was any type of domestic violence involved. The strategy rarely works in reverse- once the abusive parent gains custody, he will use the children to continue his reign of dominance and control.

    The best bet is to plan ahead on this one and be prepared to show the court exactly what you do to “facilitate a relationship”.

    In my opinion, this IS junk science… my child’s father has tried everything- from telling my son I am a whore (yes he did that) to telling him mommy just uses him. It doesn’t work! My son is as bonded to me today as he was before his father was involved in his life.

    I focus on positive parenting and ensure that my time with my son revolves around enriching his life. “PAS” has backfired miserably because children are NOT stupid- they DO get it. Only 5, my son resists going with his father because it makes him angry that “daddy says mean things about his mommy”.

  4. [...] up on the debate discussed earlier on this blog, the American Psychiatric Association has determined that parental alienation will not be [...]


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