Before the mid-1980s, judges didn't pay much attention to one parent disparaging the other in combative child custody cases, attorney Joan S. Meier, JD, told participants at special session on child custody cases involving allegations of family violence at an APA/American Bar Association conference in May.
"Judges would roll their eyes and say that neither parent should denigrate the other," said Meier, founder and legal director of the Domestic Violence Legal Empowerment and Appeals Project and a clinical law professor at George Washington University.
Since then, however, concern about denigration of one parent by the other has been elevated into a new paradigm that has taken hold in courts — the idea that mothers falsely claim child abuse by fathers as a way to ensure they win custody.
While all child abuse claims need to be investigated, this theory implies a question about whether and how often abuse allegations are really attempts to gain the upper hand in custody disputes. What courts have focused on less is the question of what so-called parental alienation means and how it actually affects children.
Despite family courts' major emphasis on parental alienation, research by alienation experts shows that only a tiny percentage of children end up seriously alienated from one parent in divorce cases, said Meier. That finding — that parental alienation is really a small problem — should transform family court practice, she said. What's more, she said, the studies consistently show that those kids are usually alienated for a good reason and one that's related to the disliked parent's behavior. "We have a tempest in a teapot in terms of family courts' treatment of parental alienation as a dominant concern," she said.
The use of the parental alienation model has grave consequences, said Meier, with children often removed from caring mothers and handed over to abusive fathers when judges are too quick to dismiss abuse allegations as false.
"Once you slap the alienation label on one parent, the other parent can do anything and not be held accountable," said Meier, calling on courts to rely on more balanced evaluations so they don't miss real abuse. "It's a scarlet A, and once it's on a mother's forehead, it doesn't matter what the facts are."
Family courts also tend to over-rely on the idea of equity, said psychologist Lenore E. Walker, EdD, executive director of the Domestic Violence Institute and a professor in the Center for Psychological Studies at Nova Southeastern University in Fort Lauderdale-Davie, Florida.
"Family courts are supposed to be fair," said Walker. "But there's no fairness when you're talking about abuse."
The standard assumption is that it's good for kids to have relationships with both parents, but that's a big problem when one parent is abusive, she said. In Walker's experience, courts also tend to over-rely on what the custody evaluator says to the exclusion of almost all other evidence, including allegations of abuse. Yet custody evaluators don't always know what they're doing, said Meier, explaining that they may use the wrong psychological tests to evaluate parents or misinterpret data. And because judges and lawyers don't always understand what a good evaluation looks like, they can be swayed by the evaluator's personality rather than the facts of the case. Research also shows that many family court judges and attorneys don't know enough about abuse or its psychological impact on children, which can result in inappropriate custody decisions, Walker added.
Judges and lawyers aren't the only ones making mistakes, said psychologist Robert Geffner, PhD, of the Institute on Violence, Abuse and Trauma at Alliant International University. He believes some psychologists and other mental health professionals are also committing grave ethical offenses.
He believes some psychologists involved in contested custody cases are practicing outside their areas of expertise. Others violate the APA Ethics Code's ban on dual relationships, taking on roles as expert evaluators, parenting coordinators and therapists with a family, he says. Others don't get informed consent from the family members they are evaluating. Other problems include conflicts of interest, inappropriate release of information and failure to report abuse to child protective services.
Rebecca A. Clay is a journalist in Washington, D.C.
