Custody dispute cases

In custody dispute cases where allegations of domestic violence or child abuse are made, it is common for those allegations to be accompanied by allegations of PAS, which also serves as the basis for nullifying the mother’s attempts to thwart the father’s attempts at approaching the child [4]. In such cases, the parents mutually accuse each other of having problems, and extremely careful observations and approaches are required to judge the genuineness of domestic violence and PAS, which requires specialized experience and training in domestic violence, trauma, and PAS [2,4,8,44].

In the actual presence of abuse, the caregiver’s defensive reactions can be understood in the context of domestic violence, and should not be labeled as PAS, to prevent the transfer of custody to the offender of domestic violence. In dealing with children and victims of violence, it is essential to be familiar with the concepts of trauma and complex post-traumatic stress disorder [4,8,22]. Reports of abuse should not automatically lead to a conclusion without verifying evidence and context. Decisions over domestic violence and PAS should be interpreted based on the understanding of context.

It is important to know that there are no typical victim or offender profiles or circumstances. The evaluator cannot determine whether a person is a victim or an offender by psychological examinations, interviews, or observations alone [2]. In case of domestic violence, contrary to the common expectation that the victim will attempt to alienate the abuser, the abuser can also be the alienating parent [44,45]. If the abuser attempts alienation, a wrong decision can lead to great danger. Furthermore, abusers are not usually violent in the presence of others, especially specialists, and often successfully hide emotional and behavioral problems [44,46].

The distinction between PAS children and abused children can become challenging. Although there are distinctive behavioral patterns exhibited by these two groups of children [34], children’s behaviors may widely vary such that the decision of the presence or absence of abuse should not rely on children’s reactions alone. In some cases, abused children identify the offenders without fear or ambivalent feelings toward them, and the possibility of false allegations of abuse should not be taken as a given. The custody evaluator must check for all facts about the alleged domestic violence whenever PAS is suspected. Meier [4] proposed the following abuse-sensitive approach when allegations of PAS are made.

  • 1) Assess abuse first.
  • 2) Require evaluators to have genuine expertise in both child abuse and domestic violence.
  • 3) Once abuse is found, do not consider alienation claims by the abuser.
  • 4) Do not base any finding of alienation on unconfirmed abuse allegations or protective measures taken by the preferred parent.
  • 5) Evaluate alienation claims only if i) actual abuse has been ruled out, ii) the child is actually unreasonably hostile to the other parent and resistant to visits, and iii) there is active alienating behavior by the “aligned” parent.
  • 6) A finding of alienation should require, at minimum, that the parent consciously intends the alienation and specific behaviors can be identified.
  • 7) Limit remedies for confirmed alienation to healing the child’s relationship with the estranged parent.

The understanding of cultural diversity is one of the emphatic markers to be considered in custody evaluation. The Korean culture of marriage and divorce is different from that of other countries, and is changing rapidly [47]. With the recent surge of children-centered family trials, there are some domestic data for court officials [48]; however, there is minimal domestic literature for the commissioned specialist to perform custody evaluation. In the future, it will be necessary to accumulate domestic data and develop resources taking account of Korea’s cultural particularities. Custody evaluation that can safeguard the child’s best interests will become possible when the policy and academic support, such as the refinement of the legal system and the establishment of professional training courses adapted to Korean situations, are continued.

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