Children Resisting Contact & High Conflict Families: Recognizing the Limits - PowerPoint Presentation

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Children Resisting Contact & High Conflict Families: Recognizing the Limits of Law

Prof. Nicholas BalaFaculty of Law, Queen’s University, Canadabala@queensu.caInternational Society of Family LawAmsterdam, NLJuly 26, 2017

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Themes

Context: Child Resisting Contact [CRC]: High conflict cases often have with parents not supporting child’s relationship to other parentIf conflict continues, children often start to resist contact Range of reasons: alienation to justified

estrangement

Often

best seen as a “family functioning problem,” but also to recognize alienation - one parent is more responsible Judicial Responses to Children Resisting Contact – Limits of the Law Best legal responses involve active case management to educate parents & facilitate changeLegal remedies are very blunt – hold accountable for breach of orders & enforce with possibility of custody reversalLawyer’s role: firefighter or arsonist?

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Complexity & Challenges

Conflicting versions of eventsParent-child interaction very difficult for court to assessOften responsibility of both parents“hybrid cases”Personality disordered and high-energy litigantsmanipulation of court ordersoften self-representedRecusal motionsConcurrent ProceedingsFamily & child protection &/or criminalLack of appropriate resourcesParties lack resources and/or professionals lack understanding

Lack of good social science research

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Alienation & Abuse

Post-separation parents quickly “learn” about concepts like “alienation” (friends, internet, advisors etc.) may use but often misuseClaims of child & spousal “abuse” met with counterclaims of “alienation”Each may be totally or partially true, exaggerated or unfoundedrelatively high rate of unfounded allegations of abuse in context of separation and atypical role for child protection 5

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Parental Alienation Syndrome: Gardner (

1987)

Although Gardner did significant work, parental alienation is

not a “syndrome” of a child, and children rejecting one parent often has complex aetiology.Further Gardner criticized for proposed responses, including juvenile detention & his analysis highly gendered

Richard

Gardner

American Psychiatrist

(1931-2007)

Bala, ISFL 2017

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Alienated Child

Janet Johnston & Joan Kelly, 2001Not a psychiatric “syndrome,” but requires multi-factoral assessment

Alienated child

is one

“who freely and persistently expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) toward a parent that are disproportionate to their actual experience of that parent.”Dynamic of many factors: both parents, vulnerability of child, siblings, third parties, professionals, adversarial system, etc.

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Child

’

s Response

Intense Marital

Conflict Before/After

S

eparation

Divorce Conflict & Litigation

Personality of Rejected Parent

Personality of Aligned Parent

Humiliating Separation

Child

’

s Vulnerability

Aligned Parent

’

s Negative Beliefs, Behaviors

Rejected Parent

’

s Reactions

Sibling Relationships

Factors contributing to & sustaining parent-child contact problems

Adapted from Kelly & Johnston, 2001;

By

Fidler

& Bala

Lack of Functional Coparenting

Extended Families

Aligned Professionals (Education, Health, Legal)

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Bala, ISFL 2017

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Strained Parent-Child Relationships: A Continuum

ALIGNMENT Divorce-specific reasons (eg, anger re ending marriage, affair, new partner); results in loyalty conflict but not total rejection. FP supports relationship with other parent

AFFINITY

Preference for one parent, but no rejection of other; age or gender-related reasons

JUSTIFIED REJECTIONReaction primarily independent of FP; due to underdeveloped relationship with RP, exposure to IPV, uncontrolled mental illness, substance abuse, emotional abuse, significantly compromised parenting & FP may overreact, project own fears, anxieties, anger onto child, distort, exaggerate; protective to the point of compromised parentingALIENATION - Child shares FP’s attitudes, behaviors; unreasonable/disproportionate reaction; previously had good relationship with RP; Without PABs of FP, child would not have rejected other parent

HYBRID –

PABs by FP & parenting difficulties by RP, exaggerated by child & FP; RP may be reactive to child’s resistance, bad behaviour

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Bala, ISFL 2017

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Parental Alienating Behavior(PAB)

In high-conflict cases, PAB often exhibited by both parents; yet not all children become alienatedSome continue relationship with both parents despite PABWhat alienating parents do:directly and indirectly denigrate or instill feararrange conflicting activities; talk about activities missedinduce guilt about visits, good times with other parent

make unfounded abuse allegations – report to

CPS

Do NOT support relationship to other parent: Tell child: “It’s up to you” effectively devalues importance of relationship with other parentsupports “right” of child

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Alienated Child

Even abused children usually want a relationship with both parents, and rejection of parent by a child is usually reflection of conflict, if not alienation Less common in younger children, usually starts during pre-adolescent or adolescence (9-13 years) due to cognitive maturationRigid thinking (like FP); “black & white” views; idealization/devaluationMay say they are fearful of RP, but actually not afraid. Rather child is belligerent, aggressive, unkind

Likely

to reject extended family, friends, even

pets 11

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Negative Effects of Alienation

(Saini, Johnston, Fidler, Bala, 2016; Baker, 2013)Alienation is emotionally harmful to childrenLoss of contact with parent & extended familyGuilt, self hatred, self-esteem issuesContinued unconscious identification with rejected parentChild may come to believe unfounded abuse allegationsBehavioral disturbances in alienated children

Aggression & conduct disorders

Poor impulse control

Alienating parent is often personality disordered: perception of reality can be distorted when emotionally aroused, blames the target & will not respond “rationally” to court ordersResearch suggests long term negative effects into adulthood, including depression, intimate partner difficulties

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Role of Lawyers & Adversarial System

“Win-lose” nature of adversarial process may encourage personality disordered parents to seek vindication Letters & court documents may inflame angerLawyers for parents may increase tensions and help create unrealistic expectationsBut good lawyers attempt to promote settlement & educate parents about human & social costs of alienation and litigationFor favoured parent, lawyer to encourage settlement to take control and empower rather than leaving to judgeFor rejected parent, encourage settlement to gain complianceMental health & child protection professionals may also become “allied” and unhelpful to child

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Prevalence

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Prevalence of Alienation

(Saini, Johnston, Fidler, Bala, 2016)Alienation is more likely to occur in highly conflicted families involved in litigation rather separated parents with no involvement with the courtsEstimates of the presence of alienation in custody-disputing samples range from 10% to 60 % depending onsample setting (e.g all cases, cases where report)

definitions used to establish the presence of alienation

methods for data

collectionBoth mothers and fathers can be alienated from their children, but most “successful” alienation is perpetrated by the parent with custody or primary care of children (most commonly the mother)

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Who Alienates Children?

(Slightly more Moms, but Dads make more unfounded claims)(Australia, 1997-2010, Bala, 2011; see also Bala, Hunt & McCarney, 2010)

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Usually residential parent who “successfully” alienates

Australia: 1997 -2010

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Legal Responses(often more variation between judges than between jurisdictions)

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Assessment & Differential Response

Valuable to have early assessment by an experienced, court-appointed mental health professional with training in alienation, abuse and domestic violence Lack of professionals and costLack of valid/reliable assessment toolsDifferential legal and clinical interventions will depend on: nature of parent-child contact problemintensity, frequency & duration of the parental conduct Willingness of each parent to accept guidance and demonstrate ability to change behaviour, stop parental alienating

behaviours

and comply with

ordersResources19

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Judges Educating & Exhorting Parents

Comments at case conferencesget parents to focus on welfare of childrenShort & long term“How do you think it will be if your child has a wedding?”“ How can you help your child to have a good relationship with the other parent?”warn of harm and costs of their conflictwarn of potential for custody reversal.Judicial Orders

may include

“

orders” for no derogatory comments made by one parent against the other to the childrenenforcement is a problem 20

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Court gives greater role to Rejected Parent

Compensatory contact timeCourt increases time with RPShift from custody by FP to joint custodyBut how to enforce??21

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Court ordered therapy & caveats

Judicial “push” towards therapy may have positive effectsNeed to involve child & both parents in “reunification therapy”Therapy for child alone not likely to be effectiveImportant to have provision for reporting to court about engagement with counselingDoes

counselor have

experience & training with issue of children resisting contact?

Expect behavioral changes (more contact) within 3- 6 months or likely will not happen There are intensive short residential programs that can be provided in Assist in custody transition (Family Bridges)Work with both parents and children (Overcoming Barriers)In more severe alienation cases, no positive outcome for therapy without custody reversalPersonality disordered FP will undermine therapy

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Contemp

t Contempt is a “blunt instrument” for promoting better parentingsuspend sentencing for compliancebehavioural conditions rather than fine or jailif flagrant & persistent breach, jail is possible maintain focus on interests of childThreat of imprisonment may be more important, does move some parents Godard v Godard

– Ontario Court of Appeal - 2015

“No doubt, it may be difficult to comply with an access order, especially as children get older.

Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can23Bala, ISFL 2017

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Police Enforcement - “last resort

”Parent can call for police to enforce access orderIn theory in most jurisdictions police obliged to enforce access orders, but in practice reluctant to do soMore willing to enforce if “police enforcement clause”Such orders can be highly intrusive and may frighten children: “an order of last

resort”

”

Despite concerns, judge may conclude that without threat (or reality) of police enforcement, access will not occur.Focus should be on ensuring that parent complies with order (requires child to go on visits), not on forcing adolescent child to comply L. (N.) v. M. (R.R.), 2016 ONSC 809, per Perkins J

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Variation of Custody

Must demonstrate variation in the child’s best interestsCompare parenting capacities, including step-parentDegree of harm from remaining with emotionally abusive (or enmeshed) alienating parent

C.L.J. v. J.M.J.

, [2006]

NSJ 171, the judge decided “left with no alternative” but to take “the drastic step of changing custody.” Considering the repercussions of this remedy, she remarked: “I am fully aware that a change in custody will cause great emotional anxiety for [the son], but nothing else has worked… The only way to ensure that he will have a relationship with both of his parents, which he needs and deserves, is to change custody to [the father].”Judicial reluctance, but with growing knowledge judges seem more receptive if severe alienation:may need to combine with suspension of contact with alienating parentcourt may suggest transitional counselling (Family Bridges, Warshak

)

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Bala, ISFL 2017

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Child Protection Services in

CRC Cases(Houston, Bala & Saini, 2018)CPS increasingly involved in high conflict and Child Resisting Contact casesparents in high conflict cases increasingly involve CPSparents may make unfounded allegations of abuse or neglect against former partners, step-parents etc., but also founded allegationsg

rowing recognition that high conflict is emotionally abuse

p

referable for agency to work with both to reduce conflictusually each parent alone would be adequateinvestigative services and possibility of foster carein extreme cases agency should consider removal from bothNeed for greater CPS commitment as this is a form of emotional abuse26

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Other legal responsesLegal cost sanctions

Possibility of effect on spousal support (Ont) or even child support (NY)Tort possible in some jurisdictions (not Canada)Criminal Offence to alienate child (Mexico and proposed fror Brazil)

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Time – Paradox & Challenge

Crucial Role of TIME – Time is the Enemy!early response and avoid delaychild’s resistance may increase over timeAlienation cases require early intervention, when evidence is limited: But it takes TIME to figure it out and judge to be confident

Case

management – judicial continuity

Judge gets knowledge of dynamics of the case gains credibility & respect of partiesJudicial continuity with clear orders & consequences can helps promote good behaviour even from personality disordered28

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When to stop trying to enforceStress to child of enforcement in high conflict cases, esp if child resistingChallenge of enforcement with determined adolescentIf severe alienation,

enforcing access may not be in child

’

s interests Possibility of supervised “final” visit mode for continuing communication Significant incidence of “spontaneous” reunion in late adolescence or adulthood – no guarantee

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Bala, ISFL 2017

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bala@queensu.ca

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References

Baker (2010). “Adult recall of parental alienation in a community sample: Prevalence and associations with psychological maltreatment, J Divorce and Remarriage, 51, 16-35. Baker & Sauber (Eds.) (2013). Working With Alienation Children & Families: A Clinical Guidebook. NY: Routledge: Taylor, Frances.

Bala, Hunt &

McCarney

, “Parental Alienation: Canadian Court Cases 1989–2008” (2010) 48 Family Court 162-177.Bala, Birnbaum & Martinson, “Differentiated Case Management for Family Cases: ‘One Judge for One Family’” (2011), 26 Canadian Journal of Family Law 339-394.Bala & Herbert (2016). Children resisting contact: What’s a Lawyer to do? Can Fam Law Quarterly, vol. 36, 1-56.Fidler & Bala (2010). Children resisting post-separation contact with a parent: Concepts, controversies & conundrums. Family Court Review, 48, 10-47.Fidler, Bala & Saini (2012). Children Who Resist Post-separation Parental Contact: A Differential Approach For Legal And Mental Health Professionals. American Psychology

-Law Book

Series

. Oxford

.

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References (2)

Fidler, B.J., Bala, N., & Hurwitz, H. (2013) Best practice guide: Responding to emotional harm of children in high conflict separation. Toronto: High Conflict ForumFidnick, Kock, Greenberg & Sullivan (2011). Guidelines for court-involved therapy: A best practice approach for mental health professionals. Family Court Review, 49, 564-581.

Greenberg

,

et al. (2012). Keeping the developmental frame: Child-centered conjoint therapy. Journal of Child Custody, 9(1-2), 39-68. Greenberg, L.R., Gould, J.W., Schnider, R.A., Gould-Saltman, D.J., & Martindale, D.A. (2003). Effective intervention with high-conflict families: How judges can promote and recognize competent treatment in family court. Journal of the Center for Families, Children and the Courts, 4, 49-65.Houston, Bala & Saini, Houston, Bala & Saini, Crossover Cases of High Conflict Families Involving Child Protection Services: Ontario Research Findings And Suggestions For Good Practices (in press, 2018: Family Court Review)  Jaffe, Ashbourne & Mamo. (2010). Early identification and prevention of parent-child alienation: A framework for balancing risks & benefits of intervention. Family Court Review, 48(1),

136-152

.

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References (3)

Judge & Deutsch (Eds). (2016). Family-based interventions for children’s resistance, rejection, alienation: Overcoming barriers and other clinical approaches. NY: Oxford University Press.

Ludolph

, P.S., & Bow, J.N. (2012). Complex alienation dynamics and very young children.

Journal of Child Custody, 9, 153-172.Pruett, Deutsch, & Drozd (2016). When and how to do step ups in shared parenting arrangements. In L. Drozd, M. Saini & N. Olesen (eds). Parenting plan evaluations. 2

nd

edition

. Oxford.

Saini, Johnston,

Fidler

, & Bala (2016).

Empirical

studies

of

alienation

. In K.F.

Kuehnle

& L.M.

Drozd

(

Eds

.),

Parenting

plan

evaluations

:

Applied

research

for the

family

court.

Second Edition. NY: Oxford

Press

. Saini, Drozd, Olesen (2017). Adaptive & Maladaptive gatekeeping behavior & attitudes: Implications for child outcomes after separation & divorce. FCR, 55(2), 260-272.Warshak, R.A. (2015). Ten parental alienation fallacies that compromise decisions in court and in therapy. Professional Psychology: Research and Practice. Advance online publication. http:/

dx.doi.org/10.1037/pro000003.33

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Book co-authored by Bala

Children Who Resist Post-separation Parental Contact: A Differential Approach for Legal & Mental Health Professionals By Barbara Jo Fidler, Nicholas Bala & Michael A. Saini Paperback, 320 pages Jan 2013Oxford University Press www.amazon.ca

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Alienation Resources For Parents

Richard Warshakwww.warshak.comDivorce Poison: How to Protect Your Family from Bad-mouthing and BrainwashingWelcome Back, Pluto a DVD for children, teens, and parentsBill Eddywww.highconflictinstitute.comDon't Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce

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Appendix

SOME RED FLAGS FOR PARENTAL ALIENATION (Fidler)Proving parental alienation can be very difficult, and assessments must be done to ensure the child isn't turning their back on a parent with whom they used to have a loving relationship because of neglect, physical or sexual abuse. But here are some red flags:• Constant bad-mouthing of one parent by the other.• Spying on one parent by the child at the behest of the other.• Your ex-spouse starts giving the child the power to choose: "It's okay, Mom. I'm not coming home for the weekend. Dad has something more fun planned for me."• There are no pictures that include you in your ex-spouse's house, which is meant to give the child the message that you no longer exist and they shouldn't be thinking about you.• The child starts referring to you by your first name, rather than Mom or Dad.• The other parent starts undermining your authority on your own time with the child such as, say, buying them a TV to put in their room at your house knowing you are opposed to that notion. It sets you up to be the villain and creates the sense your rules are dumb.

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SOME RED FLAGS FOR PARENTAL ALIENATION (2) (

Fidler) • Interfering with communication: You get hung up on and your letters and gifts aren't passed on to your child. This is especially damaging for parents who live too far away for frequent face-to-face outings, making that contact especially important.• Your child is complicit with your ex-partner in keeping secrets from you: He or she has booked a special trip with your child during your holiday time and then convinces the child there's no need to tell you until the last minute, for fear you'll interfere with the fun.• Your ex-spouse gets upset when the child has any kind of contact with you. The "classic example" is when both of you show up for your son's soccer game and it's clear your child is reluctant, or even afraid, to talk to you in the presence of the other parent.• Your child is being told highly personal information about you, aimed at diminishing you in their eyes: "Mommy did drugs in high school." "Your dad is too small." Comments aimed at making the child feel angry with the one parent or feel sorry for the other.

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