Parental Alienation – The Resist/Refuse Dynamic in Child Custody

In my role as a child custody lawyer I’ve had several clients whose child was resistant to visiting the other parent, and the preferred parent was accused by the other of ‘parental alienation’ and threatened with aggressive legal action to modify custody. ‘Parental alienation’ is a theory which grew out of the ‘men’s rights’ movements in family law during the 1990s when mothers who refused visitation with fathers due to suspected sexual abuse were accused of alienating their children. Recently I have been participating in an online symposium sponsored by the Association of Families & Conciliation Courts to re-evaluate this controversial theory.

While there are certainly cases in which a vindictive parent may poison a child’s relationship with a co-parent by disparaging words and contemptuous actions, recent research into what is now known as the Resist/Refuse Dynamic indicates that a child’s resistance to visitation with a parent is better evaluated by mental health professionals than lawyers, using a multifactor analysis, including consideration of a child’s temperament, affinity and previous relationship with each parent; a child’s willingness to please a parent to avoid parental conflict; the interference of parental visitation with social or athletic events important to a child; a disfavored parent’s possible estrangement of a child by an insensitive, unresponsive or abusive parenting style; and a preferred parent’s unwarranted disparaging words and contemptuous actions toward the disfavored parent.

In a recent case, my client’s pre-teen daughter preferred my client’s house and dog to her mother’s apartment, and the criticism she sometimes encountered when visiting her mother. The mother resented her daughter’s preference for sleepover parties to which she was invited which pre-empted mother-daughter special time and sometimes forbade her attendance. Mother’s insecurity manifested in occasional rage episodes in the daughter and father’s presence. The parties had perhaps unwisely divorced without a parenting schedule, leaving the then seven-year old daughter with age-inappropriate discretion where and when she would visit with her parents. Now the mother blamed the father for the daughter’s learned agency in navigating the joint custody arrangement to minimize conflict. Fortunately, with the intervention of a savvy mental health professional the parents and daughter have successfully negotiated a regular parenting time schedule with flexibility to accommodate the daughter’s social schedule.

Courts don’t always get it right, particularly if the parties are litigious and affluent enough to press the simplified ‘parenting alienation’ case for a reunification remedy. In one reported case, a 10-year old girl on the autistic spectrum resisted overnight visitation at her divorced father’s new home, although she enjoyed daytime visitation with him. Over a period of four years the parties spent tens of thousands of dollars hiring attorneys and custody evaluation experts. Several child protective services investigations concluded that mother’s allegations of paternal abuse were unfounded, and father pressed allegations that mother was alienating the child. As the parent’s communications deteriorated, the daughter’s grades tumbled and she began to have rage episodes with peers. By her fourteenth birthday, influenced by the parental schism, the daughter refused to see her father. The Judge was persuaded by the father’s experts that the mother had alienated the daughter and ordered father and daughter to attend an intensive reunification program. Sadly, the daughter was overwhelmed by the abrupt change and interruption of her familiar routine, regressed dramatically, and the program failed.

In hindsight, experts came to understand that the daughter’s resistance was due to her anxiety and aversion to the texture and scent of the bedsheets at father’s house, triggering a sensitivity associated with her autistic spectrum disorder, which more effective co-parents might have solved together. Mother was not actively alienating the daughter against the father, and father was not an abusive or insensitive caregiver – except to the extent that both parents ignored their daughter’s genuine needs while blinded by the emotional haze of the adult conflict.

If your co-parent or his or her lawyer accuses you of ‘alienation’, I urge you to consult me for a better understanding of the implicit litigation risk, and to refer you to an unbiased custody evaluator who can give you insight and perhaps neutralize the potential threat to your amicable co-parenting. Sadly, there are lawyers who are glad to take parents’ money to litigate one parent’s disappointment into a toxic conflict that will undermine your ability to co-parent your children.

Child Custody and Co-Parenting in the COVID-19 Climate

Governor Hogan’s March 30th Stay-At-Home Order is already causing confusion among divorced parents who share custody of children. While the Order generally prohibits travel away from home except for essential activities (e.g. grocery shopping, medical care), travel required by a court custody order is implicitly protected, consistent with the March 27th Maryland Judiciary Statement on Matters Concerning Children and Family, which affirmed that “All court orders for a child’s custody, parenting time, and child support are still in effect.” However, fearful of COVID-19 contagion, some parents are hesitant to comply with their existing visitation schedule for reasons ranging from:

  • the other parent has tested positive for COVID-19
  • the other parent is a medical first responder potentially exposed to COVID-19
  • the other parent doesn’t wash his hands or otherwise practice good hygiene
  • the other parent has stopped paying child support (because his employment was terminated)

In ordinary circumstances a parent seeking relief from a custody order might bring a motion showing either emergency circumstances (not limited to financial detriment, but involving a risk of actual physical harm) or a material change in circumstances adversely affecting a child. But with the Maryland courts closed to the public through May 1st except for emergency, criminal and domestic violence hearings, there is virtually no opportunity for a court to hear and determine disputes among parents regarding child visitation. What should parents with conscientious concerns do?

The Maryland Judiciary Statement acknowledges that, “In some situations, if permitted under the court order, custodians can jointly adjust their shared parenting responsibilities in ways that they agree are best for the children. If custodians are not able to agree, the court order controls.” Family lawyers and mediators can facilitate negotiations and counsel clients via videoconferencing where parents may not be able to reconcile their concerns. Unreasonable denial of visitation pursuant to a custody order exposes the non-compliant party to contempt sanctions and perhaps the other parent’s attorney’s fees. Reasonable alternatives may include deferring visitation with the infected parent until at least a 14-day self-quarantine period after testing, or deferral of scheduled visitation with the medical first responder parent during her COVID-19 exposure in exchange for extended summer visitation with the children. But it is never acceptable to suspend visitation due to an interruption of child support. As regards the parent who is dissatisfied with the other parent’s hygiene … well, how likely is a judge evaluating a motion for contempt in June to find that reasonable?

Cases involving interstate child visitation present another predicament. Although Governor Hogan’s Order doesn’t expressly address interstate travel, his public statements discouraging Maryland residents from leaving the state, and requiring 14-day self-quarantines for those who return to Maryland, place a burden on an out-of-state parent’s visitation. Cooperating co-parents could certainly drive to meet at the Maryland border to transition their children (though they should be carrying a copy of the custody order in their vehicle in case they are challenged by state police). Or they could yield to the common predicament we are all facing without personalizing the temporary disparity in child access if they agree to extend the disadvantaged parent’s visitation at a later time. In time may this pandemonium pass!