Parental Alienation Is Real but Remains Hard to Prove

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While parental alienation is most usually discussed as a cause of adult child-parent estrangement, I think it's more productive and accurate to see it as a form of verbal abuse and a manipulative power play perpetuated by a soon-to-be or ex-spouse; the abuse is actually aimed at the ex-spouse, with the child's emotional health and broken ties to that parent as the collateral damage.

What is parental alienation? The efforts of one parent to undermine the other parent's relationship with a child or children through manipulation, lies, or forcing the child to "choose" between parents or reject one parent over another. The term came into public awareness in the mid-1980s after a rather rocky beginning, which has also contributed to the contemporary problem of proving it today.

The Problem of Defining Parental Alienation

The term was invented and popularized by psychiatrist Richard Gardner, who originally called it "Parental Alienation Syndrome" or "Parental Alienation Disorder." Gardner was a self-published author of some 40 books, and his observations were drawn from his clinical practice and never peer-reviewed. That said, the idea created a buzz, and he submitted it for inclusion in the bible of psychiatry: the DSM or Diagnostic and Statistical Manual of Mental Disorders. It was rejected, but that didn't stop his discovery from finding a home in the offices of both attorneys and therapists who testified in divorce and custody hearings.

Gardner himself testified in some 400 custody cases, and, of course, parental alienation became lucrative for lots of people. (It should be said that Gardner's views of other matters ranged from weird to abhorrent, as outlined by Joan S. Meier, a professor of law, in a research paper published in the Journal of Child Custody. He believed, for example, that children often were the sexual seducers of adults and that sexual abuse wasn't necessarily traumatic. I will leave it at that.)

Parental Alienation Is Real, But…

How do we separate the conflicting "he said/she said" accusations that often characterize claims of parental alienation or, for that matter, separate out what looks like parental alienation on the surface from the efforts of one parent to disempower an abusive parent and lessen his or her influence on the child? Psychologist Amy J.L.Baker formulated that for parental alienation to have taken place, four factors must be present:

1. There must have been a positive relationship between the child and the now-rejected parent in the past.
2. There must be an absence of parental abuse or neglect.
3. There must be proof of one parent actively behaving in a manner so as to alienate the other parent. There are 17 behaviors Baker identifies as constituting proof: denigrating the parent to make it seem he/she was unsafe, unavailable, or unloving; limiting the child's contact with that parent; limiting communication with that parent; making it hard for the child to talk about that parent; withholding love if the child expresses love for the other parent; presenting time with the other parent as "optional"; pressuring the child to reject the other parent; telling the child that the other parent doesn't love him or her; making the other parent seem dangerous; making the child take sides in disputes between the parents; asking the child to spy on the other parent; referring to the other parent by his/her given name, not "Mom" or "Dad"; making the child call a significant other "Mom" or "Dad"; changing the child's name to sever the connection to the other parent; withholding information from the other parent; and undermining the other parent's friends and family.
4. The child must exhibit eight behaviors that differentiate children who are alienated from those who aren't. These behaviors are: denigrating the alienated parent; being unable to explain why the parent is being rejected; a black-and-white vision of one parent as "good" and the other as "bad"; lack of guilt for rejecting the parent; complete loyalty to one parent only in all situations; claiming total independence and rejecting the idea that he or she has been influenced by the alienating parent; mimicking the words of the alienating parent; animosity towards the alienated parent's family and friends.

As you can see, it is a formidable list.

What Happens in Court

I turned to two New Jersey attorneys, Sarah J. Jacobs and Jamie N. Berger, to elucidate why parental alienation is so hard to prove. What they had to say was illuminating.

• It's become an overused buzzword. The attorneys point out that the term is often used in custody disputes that have nothing to do with the traditional idea of parental alienation. The overuse makes it harder to separate out those cases that actually involve parental alienation.
• Parental alienation is difficult to prove because it's hard to substantiate. Most of the time, what the parents say to the children happens within the confines of the home, and without documentation, the attorneys note, "it becomes a game of telephone as to who said what to whom." And, they add, even if there is a video or audio recording documenting alienating behavior, the judge then has to decide whether the child or children have been impacted by the behavior and whether their relationship to the alienated parent has been demonstrably affected. Jacobs and Berger note that "without psychological experts involved, and sometimes even with them involved, this becomes a difficult chain to establish."
• While it's true that courts are inclined to believe that it's in the best interests of the child to have access to both parents and relationships with both, they do not recognize how parental alienation undermines the premise. Jacobs and Berger underscore that, generally, the family court systems are overburdened and that it takes months for litigants to be heard; when one parent is trying to alienate the other, those intervening months make the situation even worse. As attorneys in the state of New Jersey, they observe, "The case law is bereft of real detail in properly defining alienation, how to analyze whether it exists or does not exist, and whether the court is inclined to say it does." Even worse, when the court agrees that there is parental alienation, they emphasize that the absence of case law means that "proper remedies for meaningfully and appropriately addressing it to mitigate further damage, regardless of whether existing damage can be rectified," don't exist either. What does it all come down to? Basically, who puts on a better show: "…without firm, codified law solidifying this amorphous entity, it becomes the argument of the more persuasive attorney or litigant, not a true fact-sensitive judicial analysis."

If you are a parent experiencing parental alienation, these are all issues you need to discuss with your attorney. State laws, as well as case law, vary. But their points are well-taken, as one judge's ruling in New York State made clear.

A Cautionary Tale: JF v DF

This New York State case involved two incredibly litigious parents, deep pockets, and three minor children; the first agreement named the father as the custodial parent, with the kids rotating between the households. Within a month of signing that agreement, the father filed an order of protection against the mother.

The court had to continuously intervene over the next two years as the parents duked it out in court; finally, each parent sued for sole custody, with the mother alleging that the father wasn't taking the children to activities and thus limiting their growth while the father also sued for sole custody, claiming that the mother was alienating the children and scheduling activities to limit their time with him. The judge found evidence of "mild alienation" on the parts of both parents, modified visitation, and continued joint custody, though splitting the decision-making between the two parents, and issued a temporary order. Unfortunately, the judge then died.

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The case ended up in the hands of Judge Richard Dollinger, who had to start from scratch and came up with this conclusion: "The parental alienation doctrine has become a basis for contentious parents to undercut parenting agreements; agreements that were based, at their inception, on a parental concurrence of the best interests of the children." There it is in a nutshell: Claiming parental alienation can be a tool to game the judicial system.

If You Believe You Have Been Alienated From Your Child

Do discuss these points with your attorney before proceeding and recognize too that the act of taking protracted legal action—which may include your children testifying—may make matters worse in the short term. It is also wise to consult a psychologist.

Copyright © 2023 Peg Streep

This post is loosely adapted from my book, Verbal Abuse: Recognizing, Dealing, Reacting, and Recovering. Many thanks to attorneys Sarah J. Jacobs and Jamie N. Berger.