Perspectives On Parental Alienation, Child Custody And Dispute Resolution Systems Essay, Research Paper
Perspectives on Parental Alienation, Child Custody and Dispute Resolution Systems
Contested child custody provides many challenges for alternate dispute resolution. With no-fault divorce, and a standard for determining custody in light of the child’s best interest, judges are besieged with a backlog of disputed custody cases without clear and concrete guidelines to follow in deciding whether to favor the mother or the father. Many experts in family law – both from the legal and mental health arenas – have observed an increase in deceptive and manipulative tactics used by divorcing couples. This paper looks at Parental Alienation Syndrome, which is a complex manifestation of mental and emotional abuse resulting from conflicted parents fighting for custody. Recommendation are given for a model that could be employed by family law mediators that could decrease the number of custody cases that go to litigation, while ensuring that families suffering from Parental Alienation Syndrome receive prompt and effective intervention.
Mediation in Child Custody Disputes – Historical Perspectives
The surge in divorce rates during the past two decades along with major judicial reforms since the 1970’s has led to several significant changes in the ways that courts handle family law cases. Divorce and custody laws have been widely revised by states, and alternatives to litigation have emerged and gained prominence. Mediation has become a popular option, and in some states, mediation is mandatory for divorcing couples. Judicial systems in California, Minnesota and Wisconsin were early experimenters with the concept of conciliation courts, where parents were encouraged to work out divorce and custody conflicts. States that have introduced mandatory mediation in cases of contested custody include Delaware, California, Maine and Florida. (Herman, 1990)
There has been research that supports mediation as a positive intervention in custody disputes. Studies of custody cases in several large cities report that over half (between 50 and 90 percent) of the cases are settled through mediation. (Atkinson, 1996) A large empirical evaluation of mediation services in three court-based programs, showed generally high levels of user satisfaction according to the researchers. (Pearson & Thoennes, 1986) Both the Denver Mediation Project of the early 1980’s and a study conducted in Toronto found mediation to be successful in keeping divorcing families out of court. The Toronto study compared couples that mediated custody with those that litigated without mediation; only 10 percent of mediated couples returned to the courtroom after two years with problems related to custody or visitation, while 26 percent of the non-mediated couples were back in court within two years. (Herman, 1990)
Herman (1990) demonstrates that there are significant challenges to the suitability of mediation in some custody disputes. He asserts that the assumption that mediation will deter the bitterness, disappointment, and anger of divorcing couples and lead them toward cooperation, understanding, and tolerance has not been documented. “Even a highly skilled mediator cannot compensate for the sharp differences in sophistication and power that often exist between divorcing spouses.” (Herman, 1990, p. 56) In a small study of forty divorcing couples conducted at the University of Virginia, half the couples opted for mediation, while the other half litigated without mediation. The mothers in the mediation group reported more psychological distress than did the litigating mothers. (Herman, 1990)
The issue of mandatory mediation of child custody cases has received criticism. Carol Bruch, professor of Family Law at the University of California at Davis, publicly testified before the New York state legislature about her concerns that children are not best represented in mediation and women are often at a distinct disadvantage. She observes that there is no research evidence to support a claim that children whose parents mediate custody settlements do better than children of litigating parents. Furthermore, she points to her own experience with family law attorneys and mediators to support her assertion that the husband and his views are accorded more respect than the wife and her views. (Herman, 1990)
These conflicting viewpoints regarding the pros and cons of mediation in child custody disputes indicate a need for additional research. “There is no hard evidence that mediation is the preferred solution to any given custody dispute, that a party’s position will be heard any more objectively or accurately than it might be in court, or that children whose parents mediate a custody dispute do any better in the long run than children whose parents litigate.” (Herman, 1990, p. 60)
Parental Alienation Syndrome and Custody Disputes
The foregoing section reviewed the historical context of mediation in child custody disputes and some of the research findings, both pro and con, relative to the suitability of mediation in custody cases. There are concerns that mediation may not work to the advantage of everyone concerned in all cases of contested custody. “In most divorce cases where there is animosity and conflict between the parents, there is some degree of brainwashing and programming {of children.}” (Clawar & Rivlin, 1991). One of the situations that presents significant challenges for mediators, as well as court officials, is the phenomenon referred to as Parental Alienation Syndrome (PAS). Parental Alienation Syndrome refers to a disturbance where children are preoccupied with viewing one parent as all “good” and the other parent as all “bad”. The “bad” parent is hated and verbally vilified, while the “good” parent is loved and idealized (Ricketson, 1991). Another hallmark of PAS is the false charging of child abuse, which comes about when one parent is intent upon driving away the other parent (Carper, 1995). Cases where PAS is suspected require a diagnosis from a mental health expert prior to being referred for mediation.
Forensic psychologist, Dr. Richard Gardner, coined the term Parental Alienation Syndrome (PAS) in the mid 1980’s to refer to a situation where one parent who has previously had a very close and loving relationship with the child becomes the object of hate and degradation by the child, due to conscious or unconscious brainwashing by the other parent. Gardner (1992) claims that between 80 and 90 percent of all custody cases exhibit some form of PAS from mild to moderate to severe symptoms. Mediators and court officials may have difficulty recognizing PAS and may assume the “hated” parent is indeed a poor parent and merits the child’s rejection.
Manifestations of the Parental Alienation Syndrome in children consist of eight elements described by Gardner (1992)in Table 1.
Table 1 Common Characteristics of Children with Parental Alienation Syndrome
PAS TraitDescription of Behavior
A campaign of denigrationThe child is obsessed with “hatred” of a parent. This denigration by the child often has the quality of a litany
Weak, frivolous, or absurd rationalizations for the deprecationThe child provides irrational and often ludicrous justifications for not wanting to be near the hated parent
Lack of ambivalenceAll human relationships, including parent-child relationships, are ambivalent. In PAS. the children have no mixed feelings. The hated parent is all bad and the loved parent is all good.
The “independent thinker” phenomenonMany children proudly state that their decision to reject the other parent is completely their own; they deny any contribution by the custodial parent.
Reflexive support of the loved parent in parental conflictCommonly the children will accept as 100 percent valid the allegations of the loved parent against the hated one, even after seeing evidence that the loved parent was lying.
Absence of guiltThe child shows total disregard for the hated parent’s feelings.
The presence of borrowed scenariosThere is a rehearsed quality to the scenarios and they often use language or phrases that are not commonly used by the child.
Spread of the animosity to the extended family of the hated parentThe child rejects the network of relatives that previously provided numerous and important psychological gratifications.
In PAS the parents may be referred to as the “alienating parent” and the “target parent” (Walsh & Bone 1997). Typically the alienating parent (AP) has an agenda for turning the child against the other parent. The motive may include revenge, guilt, fear of loss of the child, or loss of the role of primary parent, or the desire to have control or ownership over the child. The AP may be jealous of the other parent, or desire to obtain leverage in the divorce settlement relative to property distribution, child support, or alimony. It may be that the AP suffers from a past history of abandonment, alienation, physical or sexual abuse, or even loss of identity (Walsh & Bone, 1997). These motives lead the AP to program the child to deny the existence of or love for the target parent.
The target parent (TP) becomes the victim of false allegations and may feel frustrated and bewildered over the child’s changes in behavior. While the allegations of the TP’s wrongdoing are grossly distorted perhaps to the point of being obviously fabricated, nevertheless the child and the alienating parent appear to deeply believe these fictitious allegations (Walsh & Bone, 1997). In their study of sixteen PAS cases, Dunne and Hedrick (1994) found that PAS does not necessarily signify dysfunction in either the target parent (TP) or in the relationship between the child and TP. Instead they argue that PAS appears to be attributable to the pathology of the AP and the unhealthy relationship between the AP and the child. All of the AP’s in their study experienced intense feelings of dysphoria, which were blamed on the former spouse; in addition, the AP’s predominantly experienced intense narcissistic injuries. (Dunne & Hedrick, 1994) . Clawar and Rivlin (1991) determined that brainwashing and programming are intensified the more the TP succeeds in life after the separation (financial success, new and happy relationships, etc.)
The child is the most seriously affected victim of PAS. The brainwashing campaign creates confusion in the child as a result of internalizing distorted beliefs and perceptions. In an extensive longitudinal study, 40 percent of the children developed self-hatred and guilt because they were used as any ally in the war against the TP. In the same study, 90 percent of the children were cut off to some extent from extended families of the TP. (Clawar & Rivlin, 1991) Dr. Phyllis Chessler has studied the effects of forced separation of children from one of their parents. She claims that where the forced separation is from the mother who reared the child, this constitutes a traumatic and lasting form of child abuse. “Any child who rejects his {or her} mother is probably doomed to suffer guilt forever. The need to deny such guilt may lead to the suppression of all authentic feelings, especially those of love, anger, grief, self-confidence, and hope.” (Chessler, 1986, p. 186)
Issues in Mediator Qualifications for PAS cases
When these types of cases are referred to mandatory court mediation, the scenarios could be quite difficult for a mediator to sort out. The child and alienating parent will appear to have a very close and loving bond, while the other parent (unknowingly) is accused of a long list of horrifying behavior, which often includes quite credible accusations of child abuse/sexual abuse (Gardner, 1982). There are varying degrees of severity of PAS and in severe cases the PAS dynamic may be so toxic that a relationship with both parents may not be possible, or in the child’s best interest (Dunne & Hedrick, 1994).
There are several issues of mediator competence that need to be examined. First the question of detection of PAS presents itself as a dilemma for mediators who are not trained in mental health diagnostic procedures. Secondly, once PAS is suspected, detected, or diagnosed, should mediation proceed, and if so, under what circumstances? The education, training and skills of the mediator obviously come into play when dealing with the highly deceptive and manipulative tactics of parents who have brainwashed their children. Mediators need training to understand and recognize the underlying motives for a parent’s refusal to promote accessibility between the child and the other parent. Some motives could be an avenging spouse who wants to punish or get even with the spouse who left him or her; the “narcissist” who regards custody as a way to prove his or her self-worth to the world after a failed marriage; or a lonely parent who seeks to control the children for fear of losing them, or from a need for their own emotional support from the children (Warshack, 1992).
When divorcing couples voluntarily participate in mediation, there may be an assumption of their willingness to cooperate on a settlement for everyone’s best interests. It may be that PAS families do not come to mediation voluntarily, but rather are part of a court ordered or mandatory mediation process. Unfortunately if one of the parents is unreasonable or uncooperative, the mediation effort can easily be sabotaged (Turkat, 1994).
There is a need for training to teach mediators how to detect and deal with PAS families; again there is no research to date indicating that family mediators are trained in PAS. A thorough literature review for this research paper showed no such training procedures reported at the time of this writing, although there are several researchers that call for training to help all family interveners deal effectively with brainwashing, programming and alienation tactics by separated parents (Cartwright, 1993; Clawar & Rivlin, 1991; Dunne & Hedrick, Gardner, 1992; Hysjulien et al., 1994, Lund, 1995; Turkat, 1994; Walsh & Bone, 1997). In their 1994 review of methods for child custody evaluation used in litigation and alternate dispute resolution Hysjulien, Wood and Benjamin concluded that models for training competent evaluators or for educating attorneys and the judiciary about custody evaluation issues are lacking (p.485).
Several states, including Florida, require mandatory mediation prior to a trial for divorcing couples with children. The Florida legislature has established criteria for mediator qualifications, with a special set of training and education requirements for certification as Family Mediator. The educational standards include masters level or higher degree in mental health or behavioral science; or they may be an attorney or CPA with four years experience in mental health, behavioral or social sciences. The training requirements stipulate a 40-hour training program plus observation of two family mediations and supervised practice of two family mediations. (For more detail, see Florida rules for certified and court-appointed mediators. Sec. 44.1011, Fla. Stat.) While it is possible that Parental Alienation Syndrome may be mentioned during the forty hour training program, it is unlikely that significant depth is given to PAS training issues. The brochure describing course content for the 1997 Family Mediation Certification Training Program focuses primarily on basic mechanical and legal content geared to teach the skill of mediation. (Florida Atlantic University brochure, 1997)
Ethical Issues for Mediators Dealing with PAS
It is well documented in the literature on mediation that many perceive a successful mediation as one that produces an agreement (Umbreit, 1995). Couple this success indicator with a state’s legal preference for “joint custody”, and a mediator who is not aware of PAS could inflict disastrous consequences on families by attempting an agreement for joint custody. Joint or shared custody normally requires a very high degree of parental cooperation. When an inflexible parent encourages the child to have nothing to do with the other parent, s/he may not be capable of such cooperation. A well-meaning, but unaware or untrained mediator who is trying to encourage substantial contact may be creating “endless possibilities for antagonism between the parents, with predictably detrimental effects on the child’s well being.” (Mnookin & Kornhouser, 1979). Mediators and other professionals who work with the divorcing population need to be aware of the symptoms of PAS and the difficulties that these cases present. A failure to properly identify and intervene in the early stages of PAS cases may result in the AP being given professional support; thus reinforcing the child’s need to maintain or expand complaints about the TP (Dunne & Hedrick 1994). Gardner (1992) suggests that professionals need to understand the therapeutic interventions necessary to treat and alleviate symptoms of PAS before any custody or visitation arrangement can succeed.
Another major ethical dilemma for a “neutral” mediator is how to deal with the dishonesty, deception and unwillingness to cooperate of the alienating parent. It would be na?ve for the mediator to think that s/he could persuade the alienating parent (AP) to be reasonable and cooperative; in fact, falling into the trap set by the AP could again be terribly harmful for the target parent and the child. Any agreement produced without mental health intervention for the family may only serve to prolong the PAS. In their study of over 700 cases of children who were brainwashed and/or programmed by one parent to hate the other parent, Clawar & Rivlin (1991) conclude that most parents who brainwashed or programmed their children extensively were “poor candidates for re-education and counseling. They were largely ‘other-blamers’ and took no responsibility for their damaging influence on their child.” (p.153)
Thus mediators have several ethical dilemmas to resolve. Who do they believe… the skillful and apparently sincere parent who has the love
When is Mediation Not Appropriate in Custody Cases
“Mediation is an informal, but structured process in which one or more impartial third parties assist disputants in talking about the conflict and in negotiating a resolution to it that addresses the needs and interests of the parties. Mediators do not impose a settlement and participation in the process is usually voluntary.” (Umbreit, 1995, p. 24) By definition, mediation is a voluntary process where no one is compelled to participate or to reach an agreement. A notable exception to “voluntary participation” is the mandatory mediation built into the judiciary system in many states. The question is raised whether it is incongruent to mandate unwilling parties to participate in a process that is designed to be cooperative, interactive and participatory. Fuhr (1989) concluded in his review of existing literature on mediation that there is a need for empirically sound methods for discriminating between couples who were ready for mediation and those who were not. (in Hysjulien et al, 1994) Mediation may be a step that should be bypassed in cases with severe PAS symptoms. Cartwright (1993) states that while negotiation is often a good solution in other forms of litigation, it tends not to be effective in cases of PAS. He asserts that “… the lack of a swift, clear, forceful judgement is often perceived by the alienator as denoting approval of the alienating behavior. This tends to reinforce the behavior and renders a great disservice to both the child and the petitioning parent… Courts must not fall victim to the alienator’s scheme of stalling for time in order to continue the program of vilification.”
Issues of abuse and violence are prevalent in custody disputes. It has been argued that mediation may not be appropriate for couples who have experienced domestic violence because it may place women and children at risk for ongoing intimidation (Hysjulien, Wood & Benjamin, 1994). The mediation process can and has allowed an abusive spouse to maintain control and domination with the sanction of the courts (Geffner & Pagelow, 1990). At least three states recognize the paradox of mediating in abusive relationships, and in North Dakota, Oregon, and Minnesota, mediation is waived where parties allege domestic violence or child abuse. (Bruch, 1988 and Sun & Thomas, 1987 in Geffner & Pagelow, 1990) While PAS has never been formally linked with domestic violence or spouse abuse cases, the issues of control, domination and emotional abuse are present in both types of cases. PAS and child brainwashing are forms of child abuse (Chessler, 1986; Clawar & Rivlin, 1991; ; Gardner, 1992, Herman, 1990, Walsh & Bone, 1997, Ward & Harvey, 1993), and, as such, could fall under the same precautions as domestic violence cases with regard to mandatory mediation.
A Mediation Model for Suspected PAS Families
The question remains about whether mediation is an appropriate form of intervention in cases of Parental Alienation Syndrome. Pearson and Thoennes (1986) contend that mediation will not transform hostile couples into cooperative ones and it will not eliminate future conflict, but it is perceived to be a less damaging intervention than court. Lund (1995) believes that it is important to lower the overt conflict in PAS cases so that the children are not “triangulated” into the parents’ conflicts. In a sense, the mediator can become the person who is triangulated instead of the child. A mediator can also help inflexible custodial parents respond to changes in visitation schedules and other situations that require cooperative interaction between the parents (Lund, 1995, p.315).
Incorporating the issues raised in this paper, a mediation model that would be designed to intervene in custody disputes where PAS is suspected must address four areas of concern. First the need for mental health expertise both to diagnose the underlying motives and extent of alienation and to prescribe appropriate therapeutic interventions prior to any agreement or decision on custody and visitation. Secondly, the mediation process would need the assurance that the court will take swift, clear judicial action when necessary to discourage tactics of stalling and deception by the alienating parent. The third component needs to balance the power discrepancy felt particularly by the target parent who has been isolated from the child’s life and love. The last and very critical element of a mediation model is a mechanism to manage the manipulative and deceptive behavior exhibited by the alienating parent, as well as an ongoing process to monitor cooperation with court orders or agreed upon steps in the mediation process.
An additional critical element is the determination of which PAS families are “ripe for mediation.” It is very possible that in mild to moderate cases of PAS, mediation could be effective to achieve a number of goals to help conflicted parents. However, in severe cases, the research cited herein indicates that negotiating with an alienating parent who exhibits serious psychopathology would be futile. Premediation screening could be used to determine which cases are suitable for mediation, which is also a recommendation for mediation of domestic violence cases advanced by the Toronto Forum on Women Abuse and Mediation of 1993 (in Umbreit, 1995, p. 109.)
Intervention models that may be useful for PAS cases have been developed and proposed by various researchers. Four such models are referenced in this review and selected elements from these models support the major areas of concern outlined above. The mediation models are 1) the American Association for Mediated Divorce (AAMD) (in Herman, 1990), 2) the Stepwise Mediation Process for Psychiatric Family Mediation and Evaluation Clinic at the University of Kentucky Medical Center (in Miller & Veltkamp, (1987), 3) a three phase system of child custody dispute resolution proposed by child psychiatrist, Dr. Richard Gardner (in Gardner, 1992), and 4) the Remedial Plan described by Michael Walsh, a certified family lawyer, mediator and arbitrator and J. Michael Bone, Ph.D., a psychotherapist and certified family law mediator (in Walsh & Bone, 1997).
In the AAMD process, couples are first screened to determine their suitability for mediation, and their motivation and ability to negotiate with each other are assessed. Couples that seem appropriate and are willing to enter into the process, sign a pre-mediation agreement and begin sessions. Co-mediators are suggested by the AAMD (Herman, 1990, p. 48). The concept of co-mediators representing each gender, and complementing one another’s expertise in mental health, legal background and mediation skills fits very well with the criteria established in this paper for a useful mediation model.
Need for Expertise in Mental Health
The first step proposed by Gardner in his three-phase custody dispute resolution system is mediation. He recommends that training programs would have to be set up to ensure that only qualified mediators could be utilized. He envisions court-designated mental health clinics that would provide mediation services at a fee commensurate with the parents’ financial situation (Gardner, 1992, p. 313). Implicit in the Stepwise Mediation Process is the fact that the process is conducted by professionals trained in psychiatry at the Child Psychiatry Clinic of the University of Kentucky Medical Center. In the Stepwise model, it is first determined if reconciliation or mediation is possible. When mediation proves unsuccessful, there is a shift toward (psychiatric) evaluation (Miller & Veltkamp, 1987). Warshak (1992) also recommends that a professional with a background in child psychology would be preferable to an attorney-mediator in disputes involving children because such a mediator could better evaluate the children’s needs (p. 221).
Need for Swift, Clear Judicial Action
Walsh and Bone argue that successful intervention of PAS requires coordination by the court and all members of the legal and mental health community. The court appointed psychologist initially identifies the causation factors and determines the motives of all family members, the defense functions of PAS in the family, and the specific techniques and patterns involved. When the psychological evaluation is completed, it is forwarded to the court. At that point, the parents can attempt to negotiate a plan. If the conflict continues, the court must quickly intervene and use its authority (Walsh & Bone, 1997).
Dr. Gardner also recognizes the need for court intervention if mediation breaks down. Step two of his three-phase system proposes an arbitration panel consisting of two mental health professionals and one attorney who are empowered to subpoena evidence and interview witnesses. The arbitration panel would work within the court structure (Gardner, 1992, p. 315). Hopefully, the decision of the arbitrators would be timely, clear and have the quality of a binding legal decision. It is certainly likely that arbitration would result in a more expedient decision than court litigation.
Power Imbalance Favoring Alienating Parent
In PAS, the alienating parents seem to have power tipped in their favor. The children profess love for them and a desire to live with them. The court, legal and mental health professionals may initially be swayed by the child’s stated preference, particularly if s/he is an older and articulate child. After all, PAS is not widely recognized; there are relatively few individuals with sufficient expertise to diagnose PAS in the early stages. As Walsh and Bone (1997) point out, many therapists shy away from making a PAS diagnosis for fear of being wrong. Clawar and Rivlin (1991) agree, stating that many professionals know it exists but are frustrated with detecting it, objectifying it, and knowing what is best to do for the parents and children.
To compensate for the natural tendency to favor the alienating parent, mediators must be well trained in detection, causation, underlying motives, and common patterns of deception that may be employed by the family members (including the children.) Gardner (1992) recommends that the mediators be trained in mental health, family law, and mediation skills. He believes training in intensive custody evaluations is also necessary (p.322). In addition, the natural gender difference can be addressed by using co-mediators of each gender.
Dealing with Manipulation, Deception and Uncooperativeness
The co-mediation team process advocated by the American Association for Mediated Divorce (AAMD) would consist of an impartial lawyer and an impartial mental health professional meeting with the divorcing couple. The model also uses a process to screen couples prior to mediation as well as the pre-mediation agreement mentioned earlier. The couple understands that they are working toward a three part agreement: 1) part one reaffirms the need for both parents to be actively involved with their children after the divorce and the need for mutual cooperation toward this goal; 2) in part two, both parents agree how to share the duties of parenting and how to cooperate when decisions are made; 3) part three includes a foundation for agreement about financial issues and provides for future mediation should problems arise (Herman, 1990, p. 48). Parties who cannot agree to this type of openness and cooperation would be screened out to bypass the option of mediating an agreement.
Additional provisions or groundrules could be addressed up front that specify unacceptable behaviors such as deceptions, fabrication, accusations, allegations and the like. If the court is already in possession of a psychological evaluation that identifies PAS, the alienating parent may be better off putting aside his or her manipulative tactics in favor of negotiating. If s/he is not willing or capable of cooperating, the court needs to make it clear that s/he may lose custody until s/he is emotionally fit to cooperate with the other parent.
Recommendations for PAS Mediators
It is clear from this study that the merits of mandatory mediation in contested child custody is questionable. Unsuccessful mediation may prolong emotional damage to the family by delaying the kinds of intervention and treatment necessary to alleviate brainwashing and programming of the children. If PAS symptoms are present in 80 to 90 percent of child custody disputes as suggested by Dr. Gardner (1992), it follows that mediators dealing with custody cases need a thorough understanding of the challenges prevalent in PAS families.
In their twelve year research study of 700 to 1000 cases of programmed and brainwashed children, which is published by the Family Law Section of the American Bar Association, Clawar and Rivlin (1991) conclude that the legal system in most states in not currently adequate to protect children from this form of abuse. They also determined that 80 percent of the children wanted the brainwashing detected and terminated; and that there was often a substantial difference between a child’s expressed opinion and their real desires, needs and behaviors ( pp. 163 – 172.)
An intervention model is needed that is appropriate to the capacity of the alienating parent to recognize and abstain from his or her programming tactics, which may be unconscious. A screening process could be utilized to determine which families are suitable for mediation and which cases require mental health intervention before parties can negotiate.
Co-mediators need knowledge and skills which include mental health expertise, an understanding of child custody evaluation techniques, familiarity with the legal system, and alternate dispute resolution skills that facilitate building trust and cooperation between disputing parties. Additional skill development techniques should be taught to help professionals with detection of PAS and methods to objectify it; determination of the extent of the psychological and emotional damage done; and how to develop an appropriate remedial plan.
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