If you are a parent embroiled in a child custody case where you are certain that the other parent is manipulating the child or children to say that they do not wish to see you, you are facing an all too common and very difficult situation. In fact, a recent study of 1,000 custody cases in the United States found that parental alienation syndrome was present in approximately 30% of child custody cases. But, how do you prove in court that this is going on?
Parental alienation may be a tactic used by one parent against the other, perhaps in retaliation for child support issues, but it can also be unintentional.Children may reject a parent as a result of having witnessed incidents of domestic violence, or for many other reasons, which can range from a parent favoring one child over another to sex abuse.
Sometimes parental alienation is definitely present, but it is not clear who is alienating the child. Parental alienation may come from the father, mother, a step-parent, older step-children, or one parent’s in-laws.
While the burden of proving parental alienation can be steep, There are at least 7 ways that you can prove to the court that parental alienation by the other parent has been going on.
However, please be advised that because my experience is limited to practicing in the New York Courts, and laws differ in different states, this article pertains only to the New York Courts. Also, this article is intended to give general information and does not constitute legal advice. Legal advice has to be based upon the specific facts of your particular situation.
Proving Parental Alienation-Start Keeping Detailed Records
If you suspect parental aliental alienation, it is absolutely necessary that you start keeping detailed records, because New York court will need proof. To prove parental alienation, you need to show that you have not been able to spend enough time with your child. Keeping detailed records of everything that happens in your case, especially all contact you have with your child and the other parent can help you make your case to New York Courts. You want to keep a log of all visits, missed visits, as well as what happened on each visit. You also want to document, preferably by emails or text messages, all communications between you and the other party .
Most New York courts recognize parental alienation as a major concern, and is sometimes a reason for changing custody, it can be difficult to prove, since you must prove that the of the other parent, have caused the child to refuse to spend time with the other parent, or have had a significant negative impact on your relationship with the child. Many courts will require you to produce evidence that the actions of the other parent have caused the child to refuse to spend time with you, or have significantly impaiired your relationship with the child. Even then, the court must be convinced that changing custody iwould be in the best interests of the child.
Signs Of Parental Alienation And Ways To Prove It In A Custody Case
- The child has been making statements which are not age appropriate and indicate manipulation. For example, once when I represented a 10-year-old girl, she told me during an interview that her father “owes me child support” and complained that on visits he only takes her “window shopping”. These type of statements are sometimes captured in the report of a social worker, acs case worker, and sometimes in the child’s own text messages.
- A child may exhibit behaviors that are consistent with parental alienation, such as extreme acting out during visitation or withdrawing from the other parent when there is no reasonable explanation for this behaviour. If this behaviour takes place during visits which are supervised by a licensed social worker, the social worker can testify as to the inappropriate behavior and perhaps even that the social worker was concerned that parental alienation was taking place. Licensed social workers, at least in New York, are even allowed to make mental health diagnoses in certain situations.
- You can call other witnesses who have witnessed the negative behavior of your child and those who witnessed your and the child’s relationship when things were good. Witness who are either relatives, babysitters, nannies or family friends may be allowed to testify as to changes in the child’s behavior or attitude that coincide with the other parent’s behavior, especially any overt attempts by the other parent to undermine the relationship. Testimony by these kinds of witnesses can be very powerful.
- A full forensic evaluation by a trained forensic psychologist may comprise the closest thing to definitive proof of parental alienation. Forensic psychologists often recommend a parenting plan and/or a parenting schedule to the court in these difficult situations. Forensic evaluations are more frequent in divorce cases than cases in family Court.
- An independent child psychologist or therapist who is treating the child may diagnose the child with parental alienation syndrome. is It is rare for a treating therapist to make such a diagnosis, however, as it is almost always the custodial parent who is able to alienate the child, and the custodial parent chooses the treating psychologist. Typically, the treating psychologist or therapist will have already developed a strong relationship with the custodial parent.
- In very rare situations, the child may be examined at a Child Advocacy Center (CAC). Child Advocacy centers are places where a team of psychiatrists or psychiatrists, and social workers who have special training interview the child to determine if the child has been the victim of child abuse or neglect. Sometimes the interviews are conducted by police detectives. The interviews are videotaped. Years ago, I represented two very young boys. The mother was making various allegations against the father, and when I interviewed the children, I suspected that the mother was coaching the children. The mother took the child to several different hospitals and CAC’s. None believed the allegations, and I learned that one center was considering calling the case in to the Child Neglect Hotline because they believed that the children were being negatively affected.
- Even without a forensic evaluation or any expert testimony, it is possible to convince the judge at a trial or hearing that parental alienation has been taking place. This approach requires a very skilled and experienced attorney who can marshall all the evidence and present a compelling case.
When You Absolutely Need a Forensic Evaluation
Sometimes an experienced Child Custody lawyer can tell that it will likely be very difficult to persuade the judge that parental alienation is taking place. In some cases, even though parental alienation is quite obvious, a seasoned child custody attorney will see that the judge is very resistant to changing custody, and sometimes changing custody is the only practical way to deal with the situation.
Also, under the current New York Court rules, attorneys for the child or children are required to advocate the child or children’s expressed preferences in most situations which involve children over a certain age and maturity. They are only allowed to “subsitute judgment” and advocate for the child or childrens’ best interests rather than their expressed wishes in very limited circumstances, unless the child or children are very young.
If, however, there is a full forensic evaluation where the report indicates that parental alienation exists, the attorney for the child may be more inclined to substitute judgment.
Most judges, and even most appellate courts, give significant weight to the recommendations of the attorney for the child.
If you are successful in getting a forensic evaluation, the evaluator will interview both parents extensively, and will usually observe the child or children with each parent, and with older children will interview the children, and also speak with collateral witnesses such as grandparents, other family members, or the child or children’s therapist, if there is one. An experienced child custody evaluator will have had many child custody cases under his belt, and will be familiar with the estrangement of children from a parent.
Forensic psychologists, when writing their reports and making their recommendations, are not limited by the rules of evidence and often incorporate or discuss various documents such as reports of other mental health professionals, school records, social media posts, emails, and other documentation which technically are not admissible.
Forensic psychologists will typically observe the interaction between the child or children with each of the parents. These observations may take place in the psychologist’s office, or in the home.
What To Do If You Can’t Get A Forensic Evaluation
In general, the decision about whether to order a forensic evaluation is within the sound discretion of the trial court. If you make a motion for one, and the motion is denied, you may be able to take an appeal from the judge’s order if your papers document the need for the evaluation.
Sometimes the problem is that your client cannot afford the cost of a full forensic evaluation. In Family Courts, judges will sometimes order an evaluation by Mental Health Services. Mental Health Service is an arm of the court, with offices in all of the Family Courts ,and is free. In the past, MHS was limited to doing evaluations in child neglect cases, but in more recent years they have been taking custody and visitation cases as well. The clinicians are licensed psychologists, and I have found that, at least in Manhattan, they are experienced and qualified.
In addition to being free, they typically work much faster than independent forensic psychologists or psychiatrists, and can provide a report much quicker, sometimes within 60 days, whereas independent forensic psychologists can take from 3 months up to a year in some circumstances to provide a report.
This may not be available in all boroughs.
Some courts have also allowed very experienced forensic social workers to do reports which are similar to reports done by forensic psychologists, although they are shorter and do not include psychological testing.
It can also be helpful to have a certified social worker observe visitations between the non-custodial parent and the child or children . Some social workers’ main practice is to supervise visitations and write reports for the court. Most make excellent witnesses.
While discovery is usually not available in a custody case, it is sometimes possible to get the court to allow discovery in a custody case. Discovery can consist of demands for documents, sending written questions that must be answered under oath, and even depositions.
The Court Can Order Forensic Evaluations In The Middle Of A Custody Trial
Although the Trial Court in general has discretion whether or not to order a forensic evaluation, this discretion is not absolute, and can be reversible error in situations where there are serious allegations of domestic violence, child neglect or abuse, or where a party suffers from drug use, or serious mental health issues. This evidence may not be available until the middle of trial, and there are many reported appellate cases where the Judge either decided during the trial to order an evaluation or was reversed for failing to do so.