Should Parental Alienation Influence Custody Rulings?

For over two centuries, courts have recognized parental alienation as an influential factor in child custody matters. In cases of contentious divorce or separation, a parent may try to get their child to "take sides," often resulting in child developmental issues down the line. However, some argue that parental alienation shouldn't be a factor in deciding custody matters. Is parental alienation a legitimate concern?

The Consequences of Parental Alienation

Many legal and mental health professionals treat the influencing, manipulating, or brainwashing of a child to reject the other parent as a form of emotional child abuse with detrimental and lifelong consequences. Across the board, mental health professionals agree that parental alienation ultimately harms the child.

Children can develop extreme guilt and anxiety in the presence of the estranged parent. Very young children may believe the alienator's lies and take these beliefs into adulthood, developing trust issues and stunted interpersonal development.

What Causes Parental Alienation?

Motives for parental alienation vary. Common motives include getting revenge against the other parent, fear of losing custody, and fear that the other parent will alienate the child (a race to get the child on their side first).

In some cases, the alienating parent may not be aware they are actively manipulating their child and others around them. They may feel their accusations against the other parent are accurate and that, by warning the child to stay away, they are protecting their child from a "bad person." But their statements and accusations are factually and obviously false, indicating a flawed perception of reality that could be caused by mental and emotional stress due to the relationship dissolution.

Common Signs of Parental Alienation

One common factor of parental alienation is that the child has not rejected the other parent in the past. Before the separation, the child exhibited a healthy relationship with both parents. Friends, family, and neighbors may report that the parent and child never had a bad thing to say about the other parent until the breakup of the relationship.

After the separation, the child holds unreasonable negative beliefs about the other parent. The child's statements and actions may express feelings of fear, anger, or hatred of the other parent, feelings that are significantly different from the child's actual experience with the parent.

In some cases, the child may use words that seem out of character or unmatched to their age range.

They may repeat word for word what the alienating parent has told them about the other parent. Psychiatrists evaluating the child and parent separately often report the use of the same exact phrases when talking about the estranged parent and very different language when talking about other topics.

Arguments Against Parental Alienation

The adverse effects on children have been described in the literature for decades. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) lists a diagnosis of Child Affected By Parental Relationship Distress (CAPRD) to help clinicians address the negative impact of parental relationship problems on children.

Yet many groups have disputed the validity of parental alienation. Children's rights advocates question whether parental alienation exists at all, claiming that children have their own opinions and that to say they are brainwashed into those opinions is inappropriate. Some argue that using parental alienation as a deciding factor in custody cases is discriminatory against women. Estimates suggest that 75% of alienating parents are female. Finally, some legal and medical professionals question the scientific legitimacy of the concept of parental alienation and its admissibility in courts of law.

Parental Alienation as Evidence in Custody Court

For divorcing parents experiencing parental alienation, the question then becomes—will this behavior influence the custody decision?

In general, evidence is admissible in court if:

  1. It is material
  2. It has probative value
  3. It is relevant
  4. It is valid and reliable

Evidence is "material" if it is somehow connected to the matters at stake in the case. Since U.S. courts generally adhere to the "best interests of the child" standard when deciding custody matters, any acts by the parents that threaten the child's well-being would indeed qualify as material to a custody case.

Evidence has "probative value" if sufficiently useful to prove or disprove an essential aspect of the case. Again, applying the child's best interests standard, parental alienation is useful in proving or disproving parental fitness.

Evidence is "relevant" if it has the potential to make a fact of the case more or less probable, AND the fact in question is critical to the case. For example, say the "fact in question" is that the mother is better equipped to care for the child than the father. Forensic evaluators report that the mother has been alienating the child from the father. This finding is relevant. It suggests the mother may not be better equipped.

To be valid and reliable, parental alienation must be able to be measured consistently and accurately. This can be difficult since each case is different and involves many overlapping factors. However, scientific evidence of harm to the child is significant enough to place importance on considering parental alienation in custody cases. In addition, the historical admissibility of similar evidence also supports its validity and reliability.

U.S. litigators, jurists, and mental health professionals are increasingly recognizing parental alienation as a legitimate form of emotional abuse that can serve as evidence to help decide custody issues. A recent study evaluated 3,555 U.S. appellate cases involving some discussion of parental alienation between 1985 and 2018. Among these 3,555 cases, a finding of parental alienation significantly impacted child custody decisions in 2,168 (61%).

A majority of U.S. courts are willing to recognize parental alienation as material, relevant, probative, and admissible in cases involving parental discord and child custody. In most cases, courts seek to identify the alienating parent. Many courts tend to distinguish between (1) a parent saying bad things about the other parent to the child and (2) a parent acting to sabotage the child's relationship with the other parent.

Parents facing separation or divorce and those involved in custody disputes should consider the role parental alienation can play in their case. Avoid arguing with or speaking negatively about your ex-partner in front of the children. Try to nurture your child's relationship with the other parent when it is safe to do so. If you suspect your ex-partner is trying to alienate your child, be sure to note your concerns. Keep a written log of your child's actions or statements. Your lawyer may decide such evidence could be helpful in your case.

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Karen Rosenthal

Karen B. Rosenthal is a partner at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 30 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, and New York magazine.

To connect with Karen: 212.682.6222 | Online

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