We have blogged in the past about parental alienation and “Parental Alienation Syndrome.”  Currently, Parental Alienation Syndrome (PAS) is a hot topic among the family law and psychiatric communities. The American Psychiatric Association is in the process of updating its formal list of medical disorders and, therefore, has to decide whether to include PAS in its new list of confirmed mental health disorders.

According to Wikipedia, “Parental Alienation Syndrome (abbreviated as PAS) is a term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent (almost exclusively as part of a child custody dispute) and the child’s own attempts to denigrate the target parent”.

I suspect virtually all Family Law attorneys will tell you that, unfortunately, purposeful parental alienation is all too common in hotly contested custody actions. So, while there appears to be little debate on its existence, there is a bitter debate as to whether it represents a mental illness.  On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (e.g. a teenager being oppositional) or otherwise justified.  The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact. But the group supporting its inclusion believes that recognition of parental alienation in the psychiatrists’ manual would lead to fairer outcomes in family courts and enable more children of divorce to get treatment so they could reconcile with an estranged parent.  Certainly, no matter where you stand on the debate about the inclusion of PAS as a mental illness, alienating behavior can be exceedingly damaging to a child.

The psychiatric association first published its manual of diagnostic disorders, known as the DSM, in 1952. The last major revision was published in 1994 and updated in 2000, and the fifth edition — DSM-5 — is due for publication in May, 2013.  Dr. Darrel Regier, vice chair of the task force drafting the manual, recently said, “The passions on both sides of this are exceptional.”  However, PAS was not included in the preliminary draft of the recent version, and Dr. Regier described chances for inclusion of parental alienation as “slim” — given that it has not been selected for field trials that normally would be a prerequisite for official recognition.

The APA has developed a comprehensive website about the DSM-5 task force, including preliminary draft revisions to the current diagnostic criteria which are available for public review and comment. To access it, click here.  If you wish to read the October 5, 2010, press release from the American Psychiatric Association about the start of the field trials for the DSM-5, click here.

Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; interstate and international parental abduction; interstate custody and parental alienation. She has testified in numerous Courts throughout Ohio and the country. Judi presently resides in Columbus, Ohio.

Recently, there has been a flurry of news reports and discussions regarding cases where an abduction has already occurred and a child has been taken and retained in a foreign jurisdiction.  The most recent is a case where a father attempted a “snatch-back” in Japan.  As is usually the case, this self-help method does not result in the recovery of a child.  Unfortunately, in both that case and in the Goldman case where the child is in Brazil, it appears that nothing was done in the way of prevention before the loss of the child.

There are many measures which can be put into place to aid in the prevention of an international abduction.  To begin with, any parent who chooses to have a child with a foreign national should always anticipate the possibility that the foreign parent will eventually elect to take the child and return “home”.  Since this is an obvious predictable event, the American parent must be pro-active in availing himself of all of the remedies available.  There are certain absolutes even before a divorce or custody action.   First and foremost is preventing access to the child’s passport, if one exists, to the foreign parent.  Second, steps can be taken to delay or prevent the foreign jurisdiction from issuing a passport for the child based on the parent’s citizenship status.  Too often a parent is not aware that a foreign country can and will issue the passport if the parent is a national of their country.

Too often the left-behind parent has allowed the child to be taken on “vacation” to the other parent’s country, only to never see the child again, or at the most be able to have rigidly controlled contact when the child is found.  This, in essence, is giving permission to abduct and conceal.  There are creative mechanisms available, each dependent on the specific situation.  I have made various recommendations tailored to the individual cases I’ve dealt with.  Among them, if the mother chooses to visit her home of origin, then the father should travel there with the child, retaining the passport; offering to provide round-trip transportation to the foreign grandparents to come to the U.S. for a visit; refusing to co-sign a passport application, thus barring the child from international travel until after the age of 16 years.  Too often, a parent will “allow” a trip actually believing that the child will be returned.  Even in cases such as the current one in the news, a parent will allow a visit and the child will be returned, but the foreign national parent will retain the passport opening the door to the actual abduction.  The first trip is always a test run.

During custody litigation where one parent is a foreign national, even if a U.S. passport has not been issued for the child, the U.S. parent’s attorney should ask that the other parent turn over ALL passports, including any obtained by the foreign parent from his/her country of origin.  In a recent case in California, the mother actually had six passports for the child: One current and two expired U.S. passports plus a “pair and a spare” from her country.  Considering the risk in all of the scenarios involving a U.S./foreign national custody issue, the next step is to request a bond be ordered by the court, revocable even if the parent crosses a state line without permission of the court.  The attorney must be well prepared for arguing this issue since many judges will simply call it “anticipation of a crime” and act accordingly, thus essentially aiding the foreign parent’s plan.

The custody order itself must not provide for shared parenting, but rather sole legal custody to the U.S. parent.  “Shared or Joint” can be loosely interpreted and many foreign consulates consider it to mean that their own citizen has an equal right to remove the child.  This does not interfere with any particular parenting time plan, just firmly vests the legal status in the U.S. parent.  If the foreign national parent chooses to move to another jurisdiction, then all parenting time with that parent should be required to occur in the home jurisdiction.  While many may consider this harsh, it is far less harsh than losing a child to a foreign country, with no hope or at least very little hope of recovery.

In all cases, both pre- and post-decree, it is imperative that if the child is taken that the left-behind parent must immediately file a missing child report with the local police and immediately get an attorney to file for an ex-parte emergency custody order and for a writ to take the child into custody when found.  The wording of the writ, or pick up order, is very crucial because it must be directed to all law enforcement and not just the local jurisdiction.  The instructions in the writ must be concise and clear and not subject to interpretation.  The writ should be separate, not just wording in the temporary emergency order.  I have, at one time or another, assisted counsel in preparation of this document for cases in almost every jurisdiction in the U.S. Our suggested writ language has uniformly been adopted.  However, while it strengthens a case technically, it is of little use if the foreign parent is able to have time to actually flee the country.

In all jurisdictions, custodial interference is a felony; and the parent is able to obtain a warrant almost immediately.  There should be no delay in following these steps the minute a parent discovers that the other parent has fled or is concealing the child.  Contact should be made immediately with the foreign consulate and all documents should be provided, along with a request that a foreign passport not be issued for the child.  I advise parents not to attempt these consulate contacts on their own but rather avail themselves of a professional’s intervention.  Self-help by the parents is absolutely not a good approach and only leads to delay.

The next step would be considering using the “do-not-fly” list, flagging the child with Interpol, seeking a federal warrant and appropriately using media releases.  It is a good idea to be armed with these remedies or at least the knowledge that they exist. Time is of the essence. Except for contacting the foreign consulate, the rest of these steps should be taken immediately even if the abduction is within the U.S. or one of its territories. However, even in interstate abductions the state department flags should be put in place just in case a parent manages to flee the continental U.S.  The most frequent “stop over” today for fleeing parents is American Samoa, so having the paperwork already available is, once again, imperative.  Prevention is the key word and should be pursued aggressively by legal counsel.

Click here to read Judianne Cochran’s last article posted on the Ohio Family Law Blog about Parental Alienation Syndrome (PAS).

One of the most interesting and well written pieces that I have read in a long time is a keynote address presented by Dr. Frank S. Williams to the National Council for Children’s Rights in Washington D.C. on October 20, 1990. Dr. Williams is a noted child psychiatrist and the Director of Family and Child Psychiatry at Cedars-Sinai Medical Center in Los Angeles. While this presentation was almost 19 years ago, Dr. Williams’ sage advice is no less relevant now than it ever was!

During my 31-year law career, I have focused a large part of my efforts both professionally and as a member of various community organizations and non-profit Boards towards diverse child-welfare related causes. So with that stated background, I whole-heartedly encourage everyone to read Dr. Williams’ presentation in full, by clicking here.

I will attempt to capsulate some of the salient points as well as set forth the six (6) recommendations he made based on his extensive clinical experience to prevent parentectomies.

According to Dr. Williams, a ”parentectomy” is the removal, erasure, or severe diminution of a caring parent in a child’s life, following separation or divorce. A parentectomy is the most cruel infringement upon children’s rights to be carried out against human children by human adults. Parentectomies are psychologically lethal to children and parents.

The consequences for a child may be that he or she is actually abandoned by a parent who became burned out by years of court fights and battling a pervasive pattern of alienation known as parental alienation syndrome (PAS). According to Dr. Williams, that while kids hate to see battling parents, they misinterpret a parent giving up the fight as that parent not caring enough about them. “These children frequently become depressed – especially in later adolescence. At times their depression reaches suicidal proportions. In my own clinical work, as well as in school and emergency room consultation experience during the past 15 years, I have found a very high correlation between suicidality in adolescents and a divorce in their earlier years, which virtually results in one parent being erased from their lives.”

So what did Dr. Williams conclude or recommend you ask? He states that “the following recommendations on how to prevent parentectomies may, in part, appear drastic. These prevention measures, which are presented in the spirit of suggestions and based on clinical experience, include:

1. Person contemplating marriage and children should consider a proposed mate’s tendency toward relying on the role of being a parent as his or her exclusive identity. Such persons may need to rely totally on full-time control over the children for identity following divorce.
2. One should try to fall in love with and have children with a mate who has great empathy for children’s needs and feelings. A mother or father with empathy who loves his or her children will usually not subject the children to a parent removal.
3. One should not separate from one’s mate without a scheduled, structured, legal custody arrangement in advance of parting the marital relationship.
4. Once separated, a parent should never speak with and certainly should never see a mental health professional – other than a court appointed one – that he or she has not helped choose in advance; and should further avoid like the plague a friendly-sounding psychiatrist, psychologist, social worker, or counselor, who calls and says he or she wants to help the parents and children through the pain of divorce. This is especially so when that professional has already seen the children and the other parent.
5. Parents should seek and hopefully find attorneys not biased by the conviction that all children need a primary home and a primary caretaker after divorce.
6. The first moment it becomes clear that scheduled custodial time with one’s child is being consistently blocked, the parent so blocked should run (not walk) with his or her attorney to the nearest family court.”

As a teaser to encourage you to read the rest of his address, I have purposefully omitted some very candid observations about “hired-gun” child development experts, false allegations of sexual abuse, psychological “allergic” reactions to the other parent and how attempts at performing a “parentectomy” surgery create a psychological reign of terror!

Parenthetically, I must note that Dr. Williams also makes a very interesting point based upon his personal consultations with Dr. Richard A. Gardner, a renowned clinical professor of psychiatry, known for coining the term parental alienation (PAS) in 1985. Apparently, Dr. Gardner defined the term “joint custody” much more narrowly than most. When Gardner stated that “joint custody” requires a high degree of parental cooperation, he was using his particular definition of joint custody – one in which there is a free-flowing, flexible arrangement; one in which the children and the parents may frequently shift schedules, may often change the days and times the children are with each parent; and may alter parental responsibilities for the children’s school and social activities. Dr. Williams learned that Gardner believed “that when there are two highly bonded loving parents, a rigid structured schedule of even 50-50 shared residential overnights, as well as a pre-defined structure decision-making authority plan for each parent may be appropriate to best serve the children.” Unlike most people, Dr. Gardner would just not define such a 50-50, rigid structured arrangement as “joint-custody”. So when a psychologist or lawyer talks about Dr. Gardner’s conclusions about joint custody, it is worthwhile to appreciate how he defined that term.

I will be posting more in weeks to come based upon my recent personal conversations with Dr. Williams. He has many more interesting insights to share! Stay tuned…

Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; interstate and international parental abduction; interstate custody and parental alienation. She has testified in numerous Courts throughout Ohio and the country. Judi presently resides in Columbus, Ohio.

It is important that family law attorneys remain aware of the patterns of behavior found in cases involving possible parental alienation and pay heed to ongoing complaints by clients experiencing even the early stages of alienating behavior. Early in a custody case it can be very apparent that one parent is extremely angry, bitter or feels betrayed, by both the other parent and by expectations of the “system”. Having to share custody may only intensify the anger due to having to continue the relationship with a person they despise. Then a campaign begins to align the children to his or her side and together with the children work to destroy any viable relationship with the target parent.

Often the alienating parent will file false domestic violence charges, seeking the easy route to obtaining sole custody by obtaining a civil protection order which includes the children. During this stage, the alienating parent, most often the mother, will seek support from family members and more often than not the local domestic violence shelter. These supporters often crowd the courtroom during hearings even though they aren’t called as witnesses. This phalange of people appear to operate in a quasi-bodyguard capacity, presenting the appearance of “protection” from the target parent.

One must understand some of the characteristics of the alienator to be able to correctly read the pattern as it develops.

1. The alienating parent is obsessed with destroying the child’s relationship with the target parent. Children, especially younger children, will begin parroting the alienating parent and start to express anger or fear about the target parent. The child often cannot tell you the reasons for their feelings beyond what they are told by the alienating parent.
2. A pattern of interference with parenting time begins very quickly after a custody order is in place. Telephone contact is either cut off or sharply curtailed. Visitation is often denied, often by claims that the child is ill or was ill during the night, or citing vague excuses.
3. Their anger sometimes becomes irrational and no one, especially the court, can convince them they are wrong and anyone who tries becomes the enemy. At this stage, often the alienator will begin firing and retaining new attorneys in an effort to find someone who will “side” with them and file “smoke and mirror” motions in an effort to get the court to intercede and block the target parent from seeing the child. If met with any success in modifying the order, the alienating parent then has a powerful tool to use in their effort to convince the child there is danger in a relationship with the target parent.
4. The court does not intimidate or deter them, and they will openly defy any orders. What may appear as a series of minor incidents actually foretell a fully developed case of Parental Alienation Syndrome (PAS).
5. In some cases, when thwarted in getting their way with the court, a parent may actually abduct and conceal the child. In their minds, they are doing “whatever is necessary” to “protect” the child, and they wholeheartedly believe the action is justified. It should be noted that in almost every instance of criminal custodial interference, once caught and arrested, the abducting parent claims they were simply protecting the child. Even a cursory look at the history of a case will often show the developing pattern of behavior and the fact that absolutely no evidence of abuse, domestic violence or inappropriate behavior has ever occurred.

It is important to document the escalating pattern of behavior of interference and defiance of court orders and make certain that this is presented appropriately to the court. It should not be allowed to continue for a long period of time because there is the danger that the alienation becomes so entrenched in the child that any hope of the target parent having any meaningful relationship with the child is destroyed. It is interesting to note that more often in the last several years a target parent with good representation in a CPO hearing may end up with a stay-away order between the parents, but the children are not included and the parenting time is not disrupted. This, of course, will engender more anger in the alienating parent, and it should be expected that the interference may escalate. It does appear that courts are beginning to recognize the behavior and the need for modification of the custody order.

It should be noted that while we are able to see the appellate decisions and reported cases, it should be kept in mind that most of these decisions at the trial level are not reported so careful attention should be paid to the current “climate of the court” in any jurisdiction. A well documented history, or log, of the patterns presented in supporting memorandum to a motion to modify is becoming more successful in Ohio courts today.

Submitted by Robert L. Mues with legal research and assistance from Aaron Hill, an extern from the University of Dayton School of Law.

There are a number of different factors and circumstances that have an effect on the determination of custody in Ohio. According to O.R.C. §3109.04(F)(1), the court must consider all relevant factors when determining the best interest of the child. One of those relevant factors under Section 3109.04 (F)(1)(I) includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court. While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. Further, it is not uncommon for some amount of alienation to occur when parents first separate. Usually, the alienation subsides after the parents’ transition through the separation and move on with their lives. In some cases it doesn’t, and instead it continues and escalates to what has become referred to as “Parental Alienation Syndrome”. This disorder was first identified by Richard A. Gardner, a forensic psychiatrist, in the mid-1980s, and defines it as:

Gardner, R.A. (1998). The Parental Alienation Syndrome, Second Edition, Cresskill, NJ: Creative Therapeutics, Inc.

There are three stages of PAS. These stages include mild, moderate and severe. In a mild case there are naive alienators and the perpetrator can be educated and changed. However, in a severe case the perpetrator is often delusional and their entire being is focused on destroying the other parent’s relationship with the child.

How Do Courts in Ohio Deal with PAS Cases?

Most judges and magistrates are conservative in their orders. Even in severe cases, sanctions to the alienating parent are often relatively inconsequential. If a party perseveres and repeatedly demonstrates to the Court continued contemptuous violations by the alienating parent, a few brave judges have switched custody. In those cases, often the alienating parents ultimately become desperate, their excuses and mental health weaken. But typically, the time and effort to demonstrate this to a Court can take years; during which the innocent parent often becomes frustrated with the process recognizing the irreparable harm to the child. Mild or moderate cases of PAS do not result in custody changes. So expert testimony as to the level of PAS is required.

In Pathan v. Pathan, the Second District Ohio Court of Appeals in Montgomery County determined that a mild or moderate case of PAS was not enough to prove a change in custody was necessary. Pathan v. Pathan, 2nd Dist. No. 17729, 2000 WL 43711 (Jan. 21, 2000) at pg 4. In Pathan, the mother was found to have caused a moderate case of PAS in the child by disrupting the efforts of the father to communicate with his child. However, the court found that the harm caused by changing custody to the father outweighed the advantages of a change in environment.

In Allen v. Murphy, the Fifth District Ohio Court of Appeals agreed with the lower court’s determination that the mother engaged in “the worst sort of parental alienation” and created “an alternate sphere of reality” by convincing her children they were victims of abuse. Allen v. Murphy, 5th Dist. No. 2003AP100081, 2004-Ohio-2578, 2004 WL 1124953 (May 17, 2004) at pg. 1. This more severe case of PAS resulted in a change in custody. Another case of severe PAS was presented to the Ohio Court of Appeals Twelfth District in Doerman v. Doerman. In Doerman, the mother thwarted every attempt of the court to ensure the father parenting time. Doerman v. Doerman, 12th Dist., 2002 WL 1358792 (June 24, 2002) at pg. 6. The court determined it was in the best interest of the children that the father be named legal custodian.

PAS is one of many factors that are considered for the determination of custody set forth in O.R.C. §3109.04(F)(1). However, PAS can play a significant role in the determination of custody. Through an expert opinion, the court will first determine if PAS exists. Second, the court will make a decision as to the level of PAS in the particular case. In Ohio, there must be a severe case of PAS for custody to change on the basis of PAS alone. Proving a severe case of PAS is difficult. It requires exceptionally strong facts, a long history of alienation, expert testimony and a judge who is willing to make what might be perceived as a controversial decision.

Next week, Judianne Cochran, a nationally recognized expert on parental alienation, will be a guest contributor to the Ohio Family Law Blog. We are very pleased to be able to post an excellent article she has written for us outlining the warning signs of parental alienation. Don’t miss her insights!