In recent years, I have seen a steep increase in claims of parental alienation raised in hotly disputed child custody cases. Courts have only recently recognized the concept of parental alienation and unfortunately, the concept has often been twisted to meet the agendas of advocates for one parent or the other. The issues raised in a true parental alienation case are so serious, so far reaching for the mental health of the child, and so difficult for a litigator to prove (or disprove), that more must be done to educate the public and practitioners about what is, and what is not, true parental alienation.
Why is this so serious?
While parental alienation does not exist as a diagnosis supported by the Diagnostic Statistical Manual (DSM), numerous psychological studies, dating to the 1980s or earlier, have documented the extreme mental trauma and psychological damage suffered by children who have been victimized by a parent’s alienation of their relationship with the other parent. As a result, courts in Tennessee, as well as in many other states, have recognized parental alienation as a form of child abuse.
Pursuant to T.C.A. 37-1-102, “A child is dependent and neglected if the “parent, guardian, or person with whom the child lives, by reason of cruelty, mental incapacity, immorality, or depravity is unfit to properly care for such child.” Furthermore, Tenn. Code Ann. §37-1-102(b)(1) defines “abuse” as, “when a person under the age of eighteen (18) is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a…mental condition caused by brutality, neglect, or other actions or inactions of a parent.”
Alienation cases have been compared to sexual abuse cases in terms of the psychological harm done to the child.
Knoxville Reunification Specialist Cliff Miller puts it this way, “Children who are part of alienation could suffer psychological harm that includes maladaptive relationship skills, risk for trust issues in relationships, depression, anxiety, and even substance abuse.”
A child custody court must understand that the term “parental alienation” is a term of art, not a rhetorical flourish of a zealous advocate. The term “parental alienation” must have legal and psychological meaning, and upon the presentation of proper proof, must be addressed with speed and decisive action including aggressive treatment of the child and elimination of the cause of the child’s suffering.
So, what exactly is parental alienation?
"[T]he essential feature of parental alienation is that a child . . . allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. The primary behavior that a parent or the Court will observe is that the child refuses or resists contact with a parent or has contact with a parent that is characterized either by extreme withdrawal or gross contempt. The primary mental symptom is the child's irrational anxiety and/or hostility toward the rejected parent. This anxiety and/or hostility may have been brought about by the preferred parent or by other circumstances . . ." McClain v. McClain, 539 S.W.3d 170, 182 (Tenn. Ct. App. 2017).
Right out of the box, litigants and judges need to understand the difference between an “alienated” parent and an “estranged” parent. Both are common in family law cases but there’s a vital difference that courts must explore to issue appropriate orders. Children become estranged from a parent because of that parent’s behavior. For example, a child may become estranged from a parent who verbally abuses the child. A child may become estranged simply out of anger at their parent for leaving the marriage. Whether the reasons are legitimate or reasonable or not, estrangement is a relationship dynamic between the child and the parent at whom the negative emotions are expressed, and there is at least some rational justification or explainable cause for interpersonal tension. There is also room to grow past that tension – an opportunity that most children will acknowledge, especially with a qualified therapist. For advocates and judges dealing with estranged parents, the answer is likely to order traditional family therapy and follow the recommendations of the therapist.
By contrast, a child experiencing parental alienation is not rational. The child hates one parent without equivocation. They can’t explain why, exactly, though they will come up with something. They’ll typically use adult words, like abuse, without being able to describe what, precisely, that abusive incident was. They will pitch a fit at the mere mention of contact with the alienated parent. To the observer, it will feel weird.
In considering whether parental alienation exists, courts are instructed to consider the following elements:
- Whether the children have allied themselves strongly with one parent and rejected a relationship with the other parent without legitimate justification
- Whether the children persistently reject or denigrate a parent to the point of a campaign
- Whether the children offer weak, frivolous and absurd rationalizations for their persistent criticism of the rejected parent
- Whether there is a lack of ambivalence in the children’s opinions of their parents
- Whether one parent insists that the children’s observations are solely their own
- Whether the children appear to reflexively support one parent against the other
- Whether the children have an absence of guilt over exploiting the rejected parent
- Whether the children simply borrow scenarios articulated by the preferred parent
- Whether the children’s animosity spreads to the family and associates of the rejected parent
https://www.tncourts.gov/sites/default/files/duke.corr_.opn_.pdf
Part of the problem of litigating parental alienation cases is the legal standard that Courts apply. Because parental alienation is a form of psychological abuse, responsible attorneys should likely litigate true parental alienation cases in Juvenile Court, which has exclusive jurisdiction to hear cases alleging child abuse. In Juvenile Court, litigants must prove abuse by “clear and convincing evidence.” T.C.A. 37-1-129. Under that standard, the lawyer must produce evidence that, “must eliminate any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence and should produce a firm belief or conviction as to the truth of the allegations to be established.”
In all parental alienation cases, the child is highly motivated to testify against the alienated parent, describing numerous reasons as to why the child hates that parent. Courts are conditioned to believe the child. A lawyer who represents an alienated parent must not only defeat the claims of the alienated child and the hostility of the other parent, but they must prove these claims are false clearly and convincingly. There can be little-to-no room left in the Judge’s mind that the claims of the child and the other parent are false. The lawyer for an alienated parent must, in essence, prove that their client is innocent of the child’s claims. Proving guilt is hard. Proving innocence is much harder. Confronting an alienated child, likely the star witness in the case, is hardest of all.
Another problem for the litigator is the inherent ambiguity present in all child custody cases. It is unlikely that the alienated parent is entirely innocent, or the alienating parent entirely guilty. Children are also active beings, not simply “victims.” They have their own motivations and agendas that play out, sometimes in ugly, self-serving ways in family law courts. Furthermore, just as someone who has a sniffle doesn’t have pneumonia, children can have parents who engage in alienating behaviors that don’t result in the children becoming fully alienated.
Proving alienation is among the hardest things your family law attorney will be asked to do in their career. Be prepared for a long, expensive and painful process. Hire a lawyer you trust and be ready to go the long haul with them.
