Family Courts: What is an ideal Judgment?
(Dealing with difficult scenarios)
Abstract & Summary
This article attempts to probe deeply into
scenarios where a child who had had a good relationship with a now absent
parent refuses to have good contact with that parent. This situation occurs
due to the implacable hostility of one or both parents towards one another
following divorce and separation. Why custodial parents behave as they do
is explained. Its effect on the child is also delineated. In some cases a
parent, for a variety of reasons, has had a poor or pathological
relationship with the child, and such a parent should not be in contact
with the children. However, if there has been a good relationship with the
parent, further contact with the child should occur. Why it does not take
place is discussed. The view of one expert witness is expressed and how
this view may influence the Judiciary.
I am frequently engaged with
being an Expert Witness in the Courts dealing with families as I would term
it “in turmoil”. I always hope as a result of my assessment of
the various individuals involved, the children and the adults, that an
ideal solution can be found following the break-up of a marriage or
relationship. Such break-ups involve conflict which results from the
implacable hostility between the parents.
My main concerns always, are
the children involved, but followed closely behind the welfare of the two
natural parents who have created these children. The main problem appears
to be contact disputes between the two parents in relation to the children
and who they are with, or when and how frequently, or not at all! The main
difficulty appears to be when there is an acrimonious relationship between
the parents which is usually exacerbated by separating or divorcing and the
hostility which ensues and has probably been present in the past. This
impinges on the emotional security of the children. The children, if not
before, certainly following, the parting of the parents are aware of the
hostility which exists between the parents and this is of great concern to
One of my articles published
recently in the Expert Witness Institute Newsletter, Summer 2012, was on
the subject of the “Important Parent Friendly Doctrine and the
Judiciary (a response and solution to implacable hostility leading to
parental alienation) “. This article presents two cases: one which
ends in a harmonious relationship between the parents as they both accept
this is in the ‘best interest of the children” that they work
together to bring these children up in the best possible way; the second
scenario concerns when this does not occur.
The article that follows now is in a similar situation where the
parents are at odds and suffer from implacable hostility on both sides or
on one side only. This leads to problems with contact, or at least good
contact, between children and the now absent parent.
Parents who have such
problems with one another are increasing as divorce rates are increasing
also. In these scenarios the parents are more concerned about expressing
their hostility towards the other parent than being concerned with what is
in the best interest of their children. I will now consider when it is
unlikely that one of the parents should have contact with a child followed
by when such a parent should have contact.
When should a parent not have contact with
a particular child following divorces and separation?
There are cases where the
children have had a poor relationship with the now absent parent and this
has led to them not wishing any, or very little contact with the now
nonresident parent. The source of the problem may have been that the child
was physically, emotionally, or sexually abused or that he/she suffered
from neglect and lack of appropriate parenting.
In these situations it is
not likely to be of benefit to the child to have contact with such a parent
and it may well be better for that parent not to play a role in the
child’s life. Some parents who have had a poor relationship in the
past with their children may be helped, through therapy, to improve in
their attitude and behaviour towards the child/children in question. Other
parents are unlikely to benefit. A parent who practices paedophile
activities or is violent towards the child is unlikely to be of value to
It is the role of the expert
witness and others to attempt to identify such problems and in such
instances it is probably best, at least immediately, for there to be as
little contact as possible between that parent and the child unless it is
supervised and unless the child him/herself wishes it. Eventually, there
may be a rehabilitation of a parent who has failed the child in some way,
and hopefully the child will respond to this in a favourable way, as should
the custodial parent.
When should a child/children have contact
with their absent parent?
It is the view of the
current expert witness that children who have had a good relationship with
a parent in the past, and there has been no abuse either physical,
emotional, sexual or otherwise, good contact with that parent is of great
value to the present and future of the child. This is of course sometimes
opposed by the custodial parent, as already explained due to their
hostility towards the now absent parent.
The good relationship which
the child has experienced before the break-up of the marriage should be a
guideline as to whether future contact will be of benefit to the child.
When the child has been manipulated or influenced by the custodial parent
to have as little contact as possible with the now absent parent, then the
child him/herself may be in a conflict situation. They may well feel that
having lost one parent following the break-up of the relationship between
the parents, the child may also lose the current custodial parent. This
sometimes leads to the child allying him/herself with the remaining parent
and sharing to the views of that custodial parent. That means, essentially,
that the child has lost the now absent parent, despite having had a good
relationship with that parent in the past, and does not also wish to lose the
care of the remaining parent.
Such manipulation by one
parent, due to the animosity he/she feels towards the other parent, is
frequently termed “parental alienation”. Many do not accept
this particular term and I would prefer therefore to use the term
“parental manipulation” based on implacable hostility towards
and absent parent. Such alienating is most often carried out by the
custodial parent, but could equally be exercised by the noncustodial
The Judiciary and the expert witness
An expert witness is
appointed via the Judiciary for the purpose of advising on what is the best
course of action in relation to a child and contact with an absent parent.
The expert witness must base the evidence that is presented to the Court on
what is discovered about the child’s apparent wishes as well as the
reason for those wishes. As already stated before many children refuse to
have contact, or wish to have very little contact, something has happened
with the absent parent. Despite a good relationship having existed in the
past, due to the manipulation or influence of the custodial parent against
the now absent parent a child often refuses contact with the nonresident
parent. It is for the expert witness to present the reason why a child has
decided to have little or no contact with the now absent parent in cases
where there has been a good relationship between the child and that parent.
Expert witnesses, much as
anyone else, despite the fact that they are “independent” have
certain views about what they feel is an ideal solution to the problem of
children who have been manipulated or alienated into not wishing to have
contact with an absent parent. The current expert witness is no exception.
It is the view of the current expert that it is in the best interest of
children now and in the future to have two good loving, caring and guiding
parents who are working together for the benefit of the child. The question
is: “How can this be achieved?” especially when the child wishes
to have no contact with the absent parent.
The Judiciary will
frequently be aware of the different ages of the child/children involved in
seeking to make a decision. It is frequently the Judiciary’s view
that older children, say over the age of 10, have a will of their own and
have a view of their own which must be taken into consideration. It is the
expert witnesses’ role however to always present reasons why an older
child does not wish contact with the once loved and now absent parent.
The Judiciary frequently
seeks to change the view of children, whatever age, by providing them with
therapy, since in the past that child has had a good relationship with the
now absent parent. It is the role of the therapist to obtain the
child’s support and interest in seeking eventually to have good
contact with the now absent parent. This is not an easy matter!
Parents who manipulate
children are in a very strong controlling position and have a great deal of
influence which is difficult to oppose even through the best of therapy
approaches. Psychologists and others are aware that children react to the
influence that is upon them, and in some cases, this is a form of emotional
abuse by the controlling custodial parent taking advantage of their
position to strongly influence the child’s future behaviour. Seeking
justice and fairness in what is in the best interest of a child is not an
easy matter, and the Judiciary are frequently placed in a role of making
decisions that are not always viewed as just, fair or right.
The child who states,
whatever their age, that he/she does not wish to have any contact with the
absent parent may well feel that it is in the best interest of the child to
have no contact, or very little contact, with the now absent parent with
whom they enjoyed an excellent relationship in the past. The question the
Judiciary must ask itself is: “Is such a decision truly the best
decision, considering the child has now been deprived more or less of a
good parent due to the influence of the other parent?”
Once therapy has been used
to seek to change the view of the child/children, and it has not succeeded,
then a decision needs to be made as to whether some form of coercion should
be involved. It is frequently clear to the Judiciary that if the custodial parent
were to insist, and truly insist, that the child have good contact with
their absent parent, such contact would in fact ensue. Frequently, a parent
such as this, will claim to have made every possible effort to get the
child to have contact with the absent parent but the child/children firmly
refuse to do this.
This occurs when after a
period of intensive manipulation or indoctrination has been successful and
cannot be reversed easily. This is especially the case with older children.
Many custodial parents are extremely shrewd in the way they pay
“lip-service” to what the Court wishes to happen but then does
everything possible for preventing it occurring i.e. good contact between
the child and the now absent parent. How is the Judiciary to know whether
in fact the parent has really made a sincere, definitive, and firm
encouragement that the child should have contact with a now absent parent
and that this contact should be most positive and constructive?
As already mentioned members
of the Judiciary recommend some form of therapy for the child and possibly
for the alienating parent. This is sometimes effective but more often or
not it fails also, or no funding is available for such therapy to take
place. It is the role of the expert witness to provide evidence to the
Court as to why the child has failed to wish contact, or indeed why the
custodial parent has failed to insist that such good contact take place.
Expert witnesses vary as to
what they consider to be the next best step forward if indeed there is one.
It is the view of the author that under such circumstances there may be a
need for very definitive or firm reaction to make certain that all is being
done to get the child to be in the presence and under the influence of the
now absent parent. This may mean fining or otherwise punishing the parent
who has indoctrinated the child against the absent parent. In some cases it
will be necessary to remove the child and changing the residence of the
child to a neutral centre such as a children’s home or to the absent
parent. In this way the alienated parent can renew their relationship,
which has been unjustly prevented by the action of the custodial parent.
On the whole the Judiciary
is reluctant to use such draconian methods claiming that this is harmful to
the child in question and the child’s emotional security.
Rationalisation for such action is frequently that the child will or may in
due course hopefully seek to make contact with the absent parent when that
child is older or when he/she is no longer under total control and
influence of the custodial and manipulating parent. Although this occurs
from time to time it is not a certainty by any means. Many children lose
permanent contact with the absent parent and sometimes the absent parent
either moves away or indeed dies. Many absent parents also start new
families and although they are ready to welcome the alienated child, if
that child wishes to have contact with them, this again is an impediment to
good contact with the child.
The long term effects on
children who have been alienated are well documented. Many children develop
educational, psychological, and behavioural problems and have difficulties
in their relationship with others in the future. Many have learned bad
habits such as lying and deception from the custodial parent and they will
continue in this behaviour. Many are known to suffer in the future from
psychological problems of various kinds including depression. This is
frequently not considered by the Judiciary judging a current case although
expert witnesses are fully aware of the strong possibility that children
when older become maladjusted in various ways due to the experience of
having been alienated from a good parent.
The Judiciary is often
unable to find an ideal judgment and then take a realistic or pragmatic
view of the situation by finding a solution which in their eyes which is
least harmful, initially at least, to the child in question. Frequently,
the Judiciary does not like to consider long term effects of children who
have been separated from a good parent and are more concerned with the
immediate situation and how to resolve the problem to their best ability.
Perhaps the Judiciary hope that there will be no long term effects on a
child who has been unfairly emotionally separated from a good and loving
parent. This however, may be wishful thinking!
It is almost certain that
once a child has had an opportunity of resuming contact with an absent
parent, despite the period of alienation against that parent by the
custodial parent, the good relationship can resume between that absent
parent and that child and this is to the benefit of the child. It could
also be considered a just and the right solution.
It is the view of the
current psychologist and expert witness that any parent who manipulates a
child against another parent is committing a form of emotional abuse which
should be considered a good reason why that parent should not have custody
of that child. Often if an emotionally insecure parent who has been
alienating a child against another. They realise that they may well lose
contact with or custody of the child. This fear may sometimes lead to the
cooperation of the alienating parent by sincerely encouraging the
child to have good contact with the absent parent. Sometimes warnings such
as this, or threats are ineffective, in these circumstances it is probably
best to remove that child from the environment where the emotional abuse is
taking place. This, it is realised, is a drastic step which not many
members of the Judiciary are willing to undertake. It has however, been
tried and been found effective in many cases, and is ultimately in the best
interest of a child now and in the long term.
It should be reiterated that
the current psychologist believes in making every possible attempt to avoid
having to utilize such drastic methods and that some form of therapy could
well be of value, which could provide an opportunity for the child to have
good contact eventually with the absent good parent. It is however, when
this is ineffective that the current expert feels fairly firm and decisive
action is necessary for the Judiciary to right the wrong that has been done
to the child as well as to the absent parent