Parental Alienation Syndrome: Frye v Gardner in the Family Courts (Part 1)
by Jerome H. Poliacoff, Ph.D., P.A., Cynthia L. Greene, Esq., and Laura Smith, Esq
Marriage and Divorce
In 1990 the marriage rate was just double the divorce rate (approximately 2.4 million marriages and 1.2 million divorces). Following the literally millions of divorces during the preceding decade approximately 35% of the minor children in the United States were affected by the divorce of their parents.
Despite the spousal conflicts leading to divorce, almost ninety per cent of divorcing parents are able to reach a mutual agreement regarding custody and visitation with little or no intervention from the Court. Because the other ten per cent of the divorcing parents cannot agree on custody and visitation issues initially, they are likely not to be able to agree on parenting issues in the future. Courts strive to help these families by creating flexible arrangements that will hopefully work as families grow and change.
Unfortunately the adversarial nature of the system that is supposed to provide relief serves only to become an alternate forum for the expression of conflict.
For instance, Sullivan (FN1) studied sixty-one divorcing families with children over a five year period. After five years many of the parents were still fighting and nearly one third of the children continued to be subject to intense bitterness between the parents.
Children become the prize to be won or lost in what often becomes an escalating conflict. And, the courts, often at a loss as to what determination to make for which children, turn to mental health experts for advice.
With increasing caseloads and limited time to assess a divorcing parent’s claim for designation as either residential or responsible parent the courts have responded to simplistic accusations which cast blame on one parent in order to make it easier for the other parent to prevail.
Notable among the allegations made by counsel in representing their client’s claim for “sole ownership” of the “prize” is that of “parental alienation syndrome“. The popularity of such a claim has been enhanced by the prolific writing and public appearances of Richard Gardner, M.D. as originator of this “syndrome” (FN2).
Sorry to be cynical but if it is discovered that ParentalAlienation has been occurring and the court is actually doing something about it, then we are starting with a good precedent to make change – something that is so desperately needed. Be warned though, this is only the beginning. It will take an army to get change but a start, any start, is a good start.
the boy and girl had been “tortured” into making false claims, and said that their “minds were scrambled”.
A condition which in my experience, can be regularly seen in children who are influenced to say things and believe things that are not true about a once loved parent.
Whilst this case is extreme in its presentation, there are cases of false allegations which spiral up from innocent events in which children who are caught between warring parents or, in many cases, between one parent determined to eradicate the other. Children who are at the root of such situations, have often said or done something which has been taken by an angry parent who has misinterpreted what has been said as confirming their own deeply held beliefs about how bad the other parent is. When children are confronted by this parent’s reaction to what they have said, they can be brought to a place where they are scared of the consequences of not confirming what the parent assumes is being said. And it is at this point that a child can trip something that actually happened but which was not wrong and not damaging, into a full blown crisis. Once inside the family court system, staffed as it is with people who are largely trained to take the wishes and feelings of children at face value, this crisis will burn through the lives of all it touches like wildfire. The flames being fanned by the children who will, quite easily by now, embellish the original story and shift it and change it to meet the needs of the adults around them.
read more – Taken from https://karenwoodall.wordpress.com/2015/03/21/when-children-lie-and-why-they-lie-and-why-people-who-work-with-separated-families-should-know-that-they-lie-and-why/
In family law, the Court can order a Residence Order of the Family Court under section 8 of The Children Act 1989 following the breakdown of a marriage and determining where the children are to live and with whom. The order can be sole or joint, and if joint, it can be made to a couple regardless whether they are married. If a residence order is granted, this automatically gives him, her, or them parental responsibility for the child(ren) which will continue until the order terminates (usually this will be until the child(ren) reach their sixteenth birthday unless there are exceptional circumstances justifying a longer period).
Who can apply?
The following can make an application for a Residence Order under section 8 of The Children Act 1989 as of right:
- the parent or guardian of the child(ren);
- a married stepparent of the child(ren) where the child(ren) lived with the stepparent as child(ren) of the family;
- anyone with whom the child has lived for at least three years (this period need not have been continuous but must have been recent).
- anyone who:
- a) where there is already a Residence Order in place has the consent of every one who holds that Order, or
- b) who has the consent of the local authority where the chid is in their care, or
- c) has the consent of every one who has parental responsibility for the child.
If an applicant cannot apply for the Order as of right, (e.g. they are wider family members such as grandparents etc. who wish to seek orders for their grandchildren), they can make an application to the court seeking leave to issue the application. In deciding whether to grant leave, the court will consider, amongst other things:
- the nature of the application,
- the applicant’s connection with the child, and
- the risk that the proposed application might disrupt the child(ren)’s life to such an extent that they should be harmed by it.
The welfare principle
As a matter of public policy, the courts have always operated under the doctrine of parens patriae to make the best interests of any children their first and paramount concern. From time to time, this doctrine has been included in statutes, the most recent relevant version being section 1 of The Children Act 1989 which requires the court to consider the “welfare checklist”. Before making a section 8 order (i.e. a residence order) the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
- His or her physical, emotional and/or educational needs;
- The likely effect on him or her of any change in the circumstances;
- His or her age, sex, background and any other characteristics which the court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering;
- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
A child is not automatically a party to the proceedings and will be represented by a Guardian ad litem unless the court considers it necessary. If a Guardian is appointed but the children and the Guardian do not agree on what recommendations to make to the court and the children are of sufficient age and understanding, they will be able to instruct a solicitor directly to represent their views and the Guardian will present an independent view to the court. Whether or not a Guardian is appointed, the court can request a Welfare Report under section 7 of The Children Act 1989, either from the local authority where the child currently resides or from a Children and Family Reporter who is an officer appointed by CAFCASS. The report will usually inform the court of the child’s wishes and feelings, but the officer will recommend what he or she thinks is in the child’s best interests in the circumstances of the case rather than just advocate the child’s wishes.