When is litigation the right response to parental alienation?

On Behalf of | Nov 30, 2021 | Parental Alienation

Increasingly, divorcing and divorced parents hear that they should seek to mediate their disagreements. Others tell them that litigation breeds conflict, and conflict is bad for the children. However, these statements don’t always hold up to scrutiny, and this is often the case when it comes to parental alienation.

In fact, as attorney Ashish Joshi made clear in a podcast with The Litigation War Room, it’s often in the child’s best interests for an alienated parent to bring the case to court. Courts and psychologists have long recognized parental alienation as a form of emotional abuse. Litigation can help end this abuse. The truth is that court hearings often bring change faster than piles of motions and unending series of agreements made and broken.

Six things parents and litigators should know about parental alienation cases

In his interview, Mr. Joshi discussed a range of topics that covered everything from identifying parental alienation to winning parental alienation cases in court. Six of the key takeaways included:

  • How to recognize parental alienation: As the term “parental alienation” has entered mainstream society, people have splashed it across social media, in books and in movies. When they use the term loosely, it loses weight. It is important to distinguish true parental alienation from other forms of rejection. The key is that in parental alienation cases the child’s rejection of the disfavored parent is always disproportionate to anything the parent allegedly did. This is different from cases of estrangement, in which there are legitimate reasons, such as physical abuse, that the child may reject a parent.
  • Look at the other parent: The favored parent’s behaviors are a key part of parental alienation. While the child may be rude or defiant and say things about the rejected parent that seem strange or untrue, it is also important to examine the favored parent’s actions. This parent is likely fanning the flames, continuing to defame the other parent and breaking down the healthy boundaries that might have existed between parent and child.
  • Parental alienation runs on a spectrum: Parental alienation cases run from mild to moderate to severe. Courts have frequently categorized the more severe cases as emotional abuse. Children in these cases will often “freak out” when they see the disfavored parent. They sometimes yell, scream or even become physically violent.
  • Time is the enemy: Time is the enemy because parental alienation grows worse the longer it continues. The child’s relationship with the disfavored parent continues to suffer and break down. Time is also the enemy because courts and judges may feel less inclined to act when the children reach their teens. They often believe they can’t do anything to repair an adolescent child’s relationship with a disfavored parent. As a result, parents want to act early. Traditional therapy is unlikely to lead to real improvement. Instead, parents want to gather evidence and move forward.
  • How to prepare a case: In the early stages, parents want to look for evidence of parental alienation. This may include psychological evaluations of all parties involved. The evaluator can answer specifically whether there is a presence or absence of a parental alienation dynamic. Parents also want to do their due diligence before getting a guardian ad litem appointed. A bad guardian ad litem may actually hurt the case. Finally, it is important to work with an attorney who will bring the case to court. Too many parental alienation cases get stuck in piles of motions that go nowhere. Attorneys make deals. Then parents break those deals, and nothing gets resolved.
  • Factor three is often the sticking point: There are different ways to prove parental alienation in court. One of the most common methods involves the 5-Factor Model. This model lists the five factors parents must review to prove their cases, and the third factor is often the trickiest. It examines the disfavored parent for an absence of abuse, neglect or significantly deficient parenting. However, parents want to be ready for their former spouses to magnify and distort all their flaws. It is common for the favored parent to point to something such as a strict parenting style and claim that it is “abusive.”

Widely practiced throughout the United States and internationally, Mr. Joshi also addressed how other nations regard parental alienation, and he offered some advice for other attorneys. While it is common for U.S. attorneys to focus on the cases solely in their jurisdictions, they can often improve their arguments by exploring similar results in other states. Judges might not be bound by the decisions of a court in another state, but they are often receptive to the insights of other courts when attorneys present those insights respectfully.

Children want both parents

In Michigan and many other states, custody law presumes it is in a child’s best interest to maintain “a strong relationship” with both parents. Beyond this, research has shown that even in cases where the children actually suffered abuse, the bonds between child and parent were so strong that they sought ways to maintain the relationship. For example, they might blame themselves.

Parental alienation is unnatural and damaging. When one parent manipulates a child so badly that the child starts to reject the other, that manipulation harms the child. In these cases, mediation is seldom the answer. Motions and agreements tend to stall and falter. Litigation is often the path that best serves the child’s interests.