What is Parental Alienation?
"The term "parental alienation" encompasses a broad variety of behaviors including keeping a parent from seeing a child, making disparaging comments about a parent in a child’s presence, or even simply ignoring a child’s need to remain in contact with the other parent. If these behaviors become extreme, and create a belief that the alienated parent is dangerous or unloving, it may fall under the definition of parental alienation."
Though the concept has been around for some time, parental alienation syndrome is most commonly attributed to Dr. Richard A. Gardner. In the mid ’80s, Dr. Gardner theorized that children could be molded by their parents to think poorly, and sometimes even dangerously, of their other parent during and after divorce.
Ties to this theory are still strong today, and can be seen in many Texas divorce, child custody, and child support cases.
Defining Parental Alienation
While parental alienation can take on many forms, psychological expert Robert E. Garrity and others have defined it as a child’s "campaign of denigration" against a parent.
In the real world, this dynamic can take on other meanings. It may mean that you have a child who refuses to spend time with his or her other parent, seemingly without reason. The child may cry or beg to not go, or he or she may become withdrawn, aggressive, or even violent in the other parent’s presence.
It may mean that your ex refuses to allow you contact or custody. Small techniques include dropping the ball on scheduling a visitation, forcing you to call when it’s not really appropriate, or discouraging your child from even asking about you.
Signs of Parental Alienation
According to experts , there is a set of common signs that define parental alienation. They include:
Many of these signs require expert testimony for court purposes. If you’ve seen them in action, or if your ex is showing similar signs, you need professional advice from a psychologist.
The Problem With Parental Alienation
When you walk into your divorce or child custody hearing and tell the judge that your ex has been alienating your child from you, it may seem like an obvious case. But unfortunately, family courts do not require proof of parental alienation: they simply require a legal reason to cut off contact between the child and the alienated parent. In short, it’s often difficult to prove, and in the eyes of a judge, when it comes to child custody, the best interest of the child tends to trump all other concerns. Dr. Gardner was often criticized for his theory of parental alienation disease. Critics claimed in many cases, it was the estranged parent that was damaging the child. However, in their study, Breaking the Ties that Bind, Garrity and Gary R. Bonny found that in general, children respond well to healthy parenting from both parents — even after severe or ongoing abuse. While no study is without issue, their work showed that the concept could not be dismissed out-of-hand.
Involving the Experts
If parental alienation behavior is evident it may be in your best interest to discuss your circumstances with a psychologist. If your child is old enough, seeking his or her opinion can also help. Courts typically consider the professional and the child’s opinions in determining custody and visitation issues.
Texas Statutes Regarding Parental Alienation
Texas does not have a law specific to parental alienation. On the surface, that may appear shocking to some people given the severity of the behavior and the damage it can do to children. However, on a practical level, parental alienation is rarely considered as a stand-alone issue in a case. Instead, it may be advanced as evidence to support an allegation of contempt in a modification action, or to justify an order for compensatory possession and access. A demonstrated pattern of using a child as a weapon against the other parent can have severe consequences including denial of access, termination of access, contempt of court, and even criminal prosecution for interference with custody order. As you can see, the law has its eye on the issue as part and parcel with traditional remedies like custody orders and contempt actions.
Recent Texas appellate decisions examine the use of parental alienation in cases decided under the Texas Family Code. In re Busardi (2001), Tex. App. LEXIS 3649 (Tex. App. Fort Worth 2001), highlights the permissive approach in Texas to allow a mental health professional to testify as an expert on parental alienation in a child custody case. In re Miller (2004), 143 S.W.3d 810 (2004), shows the other side – that it is within a trial court’s discretion to exclude such testimony if the expert cannot demonstrate a sufficient knowledge of Texas "Standard Possession Orders."
Even Texas lawyers with decades of experience have told me, "I’ve never had one of these cases." Now, anecdotally, I know that isn’t true. Parental alienation exists throughout Texas; we just don’t have the benefit of a specially-dedicated family law court to keep track of these cases.
The Role of Parental Alienation in Custody Litigation
In Texas, parental alienation can heavily influence custody decisions. A court will often view "parental alienation" or "extraneous influences" on children with a degree of skepticism. Therefore, the allegations must be serious and well-founded; otherwise, the court is likely to remain unconvinced or, at the very least, unperturbed. With that said, many legal scholars have found that "parental alienation" may indeed play a greater role in Texas family courts than ever before-a fact not not lost to disbelieving practitioners. In some cases, the "extraneous influences" of a possibly psychologically disturbed or manipulative parent end up having a lasting (and negative) effect on children (and their opinions toward the alienated parent). These long-term effects are noted in such works as Naomi Richman’s "Confronting the Parental Alienation Syndrome" in the Texas Tech Law Review, Vol. 35, No. 3 (2003), page 1093. It is a tragedy, and cannot be tolerated.
Legal Remedies & Court-Ordered Interventions for Parental Alienation
Legal Remedies and Interventions for Parental Alienation in Texas
One of the primary legal remedies for estrangement or alienation is the use of the Courts to order a child to have possession with or access to the parent in question. The request for an order from the Court may simply seek to have the Orders previously rendered by the Court enforced, or it may ask the Court to find the other parent in contempt of court. If the estrangement or alienation has been long standing and pervasive, then the Court might need to consider a modification of the Orders previously rendered to provide for alternative possession of the child by the estranged parent until such time as proper bonding can be accomplished between the estranged parent and child.
Texas law provides for several means to enforce orders of the Court pertaining to possession and access. One approach is the holding of the offending party in contempt of court. By invoking the contempt powers of the Court, the "hammer" nature of contempt proceedings may be enough to encourage the offending party to comply with the Court orders. Contempt, however, is not designed as a punitive tool and should generally only be used if it is fairly clear that it will remedy the problem.
Another legal remedy to aid the return of the child to the custody of the pleas for assistance of the Court is to appoint an amicus attorney (or guardian ad litem) to represent the interests of the court. The amicus may also request an appointment of a mental health expert to interview the child and assess the root of the problem. One of the functions of the amicus may be to interview the child and develop a schedule with the child’s cooperating counselor to facilitate the reunification process. In more extreme cases, the Court may appoint a temporary possessory conservator and/or a therapeutic conservator to assist the Court in custody and access issues.
In extreme cases of alienation or estrangement, the Court may consider a change in the conservatorship of the child. A change in the conservatorship of the child will not be rendered lightly, however, and only occurs in cases where the offending parent has a history of intentionally keeping a child from possessing and accessing the other parent and the offending parent is unable or unwilling to prevent that behavior.
A decrease in possession may be ordered where there is a pattern or a threat of active alienation by one parent against the other by obstructing the possession schedule. Active alienation focuses on the conduct of the alienating parent in interfering with the relationship between the child and the targeted parent. While passive alienation is equally damaging to the child, i.e., withholding the child from loving contact on holidays, weekends and special occasions and/or allowing stepparents to have more influence over the child than natural parents, Courts are less likely to intervene. If the court is convinced that there is no reasonable chance that a parent will follow the Possession Order or that the parent is likely to successfully alienate the child from the other parent it can restrict the ability of the alienating parent to have possession of the child or make such possession supervised. Supervised possession may be done at a qualified supervised visitation facility or under the supervision of another, including the non-offending parent, or a CP facility.
Under the circumstances where a drastic ruling will be made and a change of custody is not appropriate, the Court may consider an order for additional therapeutic intervention between the child and the targeted parent. Although a change of custody will not take place lightly, the Court may be convinced that drastic measures may be needed in extreme situations. Changing custody does not change the substantive rights of either parent, but only the legal status of the conservatorship of the child. In very rare instances, and with a high degree of proof, the Court may modify the parent’s conservatorship rights and give sole custody to one parent or, a rare joint managing conservatorship order.
Evidence of Parental Alienation in Court
The evidence required to prove parental alienation in a Texas court can be quite comprehensive, as the court must determine, by a preponderance of the evidence, that the alienating behaviors are occurring and that they have substantially damaged the relationship between the child and the aggrieved parent – often referred to as the Toney factors.
Evidence typically includes:
While third-party testimony is not required by law, it plays a significant role in this type of case. Witnesses with information about an alienating parent or behavior should keep notes of incidents and conversations. If your child is having difficulty with their other parent or showing symptoms associated with parental alienation, document the incidents, and keep a log of when and where each occurs, who was present, and what was said or done . Those records can be helpful to third-party witnesses, such as doctors, therapists, neighbors, coaches, and anyone else who would be expected to have knowledge relevant to your situation.
Expert evaluations can also be needed to help your attorney prepare the case for presentation to the court. Qualified child psychologists can interview children and family members to identify issues, such as alienating behavior, parental bonding, the impact of separation on the child, parent-child attachment, and physical and psychological trauma. These qualified evaluators can then provide expert reports and, if necessary, testify on behalf of the aggrieved parent about how parental alienation is impacting the child.
What Happens to an Alienating Parent in a Custody Dispute
A parent found to be guilty of parental alienation in Texas may face several consequences as a result. Court-ordered therapy sessions can be one method for addressing the existence of parental alienation. More often than not, the courts order this therapy on the condition that the children will attend the sessions as well. The therapist may use specific interventions with the children, or provide separate treatment for each child. In addition to therapy, a parent guilty of parental alienation may lose custody of the children if the manipulation is believed to be damaging to them. Even if the court does not strip the parent of custody, ordered visitation schedules may change to better reflect the needs of the children. Scheduling more time with the manipulative parent can often help alleviate the symptoms of parental alienation, which can lead to positive outcomes for everyone involved in the long run.
Seeking the Help of a Lawyer
If you suspect that parental alienation is present in your case, it is essential to seek out the counsel of an experienced Texas family law attorney, who can advise you on how best to protect your rights and your children’s well-being.
Because parental alienation can take many different forms, custody and visitation orders must be tailored to deal with specific situations. If parental alienation is present, the court may place the entire burden of explaining the legality of the situation on the parent who was not responsible for the alienating behavior, often putting him or her at a disadvantage. While this may seem unfair, it is necessary to ensure that everyone understands the situation before taking action.
If you are dealing with parental alienation, consider the following tips when choosing an attorney:
Your attorney should have extensive experience with custody and visitation plans. While these plans are important in every custody case, they become even more so when the issue of parental alienation arises. Parents who are not directly involved in the alienating behavior often find themselves at a great disadvantage in custody hearings.
Be wary of lawyers who suggest you take immediate action , especially if your goal is to remove the other parent’s visitation entirely. Texas courts do not look favorably upon parents who prevent the child from visitation with the other parent or try to remove that parent from custody entirely. The underlying claim must be that the child is in some sort of danger, and you should be prepared to provide clear, specific evidence of this.
If possible, try to document the behavior of the other parent. This will help your attorney determine the most effective way to move forward in court. Consider maintaining a record of precise dates and times when your child exhibits signs of distress, including crying or screaming at the mention of the other parent’s name. In addition, consider recording any interactions with the other parent.
If you suspect that parental alienation may be taking place, obtain the services of an attorney as soon as possible. The faster you can take action, the better your chances are of protecting your rights and your child’s well-being.