I and two co-authors recently completed an analysis of all United States state statutes pertaining to the child factors judges should be considering when deciding custody disputes. Factors vary from state to state and range from general statements to laundry lists of specific behaviors and issues. Interestingly, in my personal experience as an expert witness in custody cases, many judges do not appear to be taking these factors into account. But that is not necessarily in violation of the statute because most of the statutes give judges considerable judicial discretion by including the phrase “and any other factors.” In addition, there are no guidelines in any of the 50 statutes regarding how to weigh the various factors. In other words, there are situations in which acting on one factor would go against another factor. For example, a child might state a preference to be with one parent (one factor, the child’s wishes) but placing the child with that parent would involve a change in the child’s school and neighborhood (another factor, maintaining continuity). In such situations, judges have no formula for deciding which way to go. These two issues have been noted by other scholars as well.
The paper, to be published in the Journal of Forensic Sciences, highlights several additional problems with the BICS statutes specifically as they relate to parental alienation. This was a gap in the literature that needed addressing. The paper identifies three issues specific to parental alienation. The first is that although many state statutes include as a factor the child’s preference, no statute takes into account that some children express “preferences” that are a product of pressure and manipulation and are not truly in the child’s best interests. Ideally, the statutes would encourage judges to take that into account. A second issue with BICS as it relates to parental alienation is that not all statutes include any statement about the ability of each parent to support the child’s relationship with the other parent and those that do, do not provide specific guidelines about what that means. Third, while many statutes include mention of each parent’s prior abuse of the child, few include emotional abuse (or related terms such as psychological maltreatment). Taken together, these three problems allow for alienating and emotionally abusive parents who manipulate their children to express a “preference” that is not truly in the child’s best interest to prevail in court.
The following four recommendations are offered in the paper as potential remedies.
(1) First, custody decision makers should be provided with specific guidelines for ascertaining whether children’s stated preferences are freely generated as opposed to a product of coaching and coercion – regardless of the age of the child.
(2) If alienation is occurring, the child should be considered as having diminished capacity and the attorney for the child should substitute his or her judgment for that of the child, regardless of the stated preference of the child.
(3) The concept of “supporting the child’s relationship with the other parent” should be operationalized to include the 17 primary parental alienation strategies through modification of state statutes and/or establishment of case law.
(4) Custody evaluators should be trained and certified to conduct a parental alienation-informed evaluation.
These four remedies could go a long way to ensuring that children’s actual best interests are served in court.