Family Courts (Where have courageous and just judges gone?)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2005

Judges vary in their capacity to be hard (strong) and/or compassionate (softer). The latter type tend to often administer lighter sentences for the same or similar offences compared with harsher (longer) sentences by less compassionate judges. Hence advocates will often ask who they are facing when defending or prosecuting. All this indicates that the administration of justice can be highly subjective. Barristers as well as alleged offenders are clearly aware of this difference between the judges they may face.

Judges are influenced by many elements before them in the court including evidence, witnesses, the appearance of the alleged offender, and the manner in which matters are communicated in connection with the alleged offender. Justice may therefore be dependent on many different criteria. It is accepted that the legal system is imperfect, but on the whole “as good as it can be.” Life is after all also imperfect as well as frequently unfair. The courts of law are merely a reflection of this.

Many judges are also aware of how they will be regarded by society, and the mass media in the verdicts they produce. It is this area that concerns me most as a practicing forensic psychologist who often works within the family court system. I, as all who are concerned with seeking justice for those facing the traditional system feel there is room for improvement. I feel there is a need for robust and also compassionate sentencing and verdicts depending on the situation. This difference of dealing with cases can never be obviated.

Family courts differ from criminal courts in that decisions are required about those who have not committed criminal acts in most cases. They instead deal with serious controversies between former close partners in a relationship who are now in a state of acrimony if not “war” which often affects children. Children are in the middle of their parent’s powerful acrimony towards one another. My role and experience with this type of situation has been as an expert witness appointed either by one side in the conflict or by the court as a single joint expert to try to sort matters out and advise the court on what can be recommended, in order to proceed in a way that is fair to all parties. Unfortunately children become involved when parents are in conflict and the situation is usually that alienation has been practiced against the non custodial parent which tends to be the father. Fathers and sometimes mothers (who are not the custodial parent) seek regular harmonious contact with their children. This can cause difficulties and the non custodial parent seeks redress through the courts. However, this does not always happen in a fair and just way.

Opposition to contact often occurs as a result of a desire for revenge by the custodial parent for having been rejected, or displaced. Hence the conflict between the former partners is ongoing after the relationship has ended. My own position, which I consider to be independent, encourages both parents to play a part in the lives of their children whenever possible. There are exceptions to this when either mother or father are a danger to children. It is essential that children be protected from physical, sexual and emotional abuse. That is a priority.

Unfortunately false allegations are often made against one parent or another primarily to deny them access to a child. The most vicious and unjust allegation is the allegation of sexual abuse when it has not in fact ever occurred. This is primarily directed by mothers towards fathers although I have had such false allegations also made against mothers.

Once such serious allegations have been refuted, the embittered alienator will seek other unjustified ways to discredit the fitness of one parent in order to deny them contact or provide them with limited contact. The next step is to alienate the children against an innocent, loving parent who is unable to reverse the programming of brainwashing being systematically conducted openly or subtly. This influences children adversely. It occurs despite the fact that these children have often experienced love and care from the now disparaged parent.

In time the children believe what they have been told about the alienated parent and behave in a rejecting manner. This is of course satisfying to the alienator who will tend to deny that they have done anything to bring the situation about. The result is that such children identify totally with the alienator. When courts and judges are involved, they are faced with the consequences of alienation. Now the children claim that they want no further contact or rare contact with the absent parent.

Judges and minions of the court process are influenced by the “child’s decision” to no longer be engaged with the sidelined parent. What judges are hearing actually is the voice of the alienator who has won over the mind of the child. That is often the end of the matter for some judges. Others agree to a process of mediation in an attempt to get the child round to having some contact with the absent parent, usually the father. If this is ineffective, which it often is, then judges claim that on the whole that they can do nothing more but to follow the views of the child. The views of a child are unlikely to have changed due to the fact that the process of alienation is ongoing and continues even during the mediation process against the non custodial parent.

It is unfortunate that judges frequently do not take this fact into consideration. Judges tend to make some “status quo decision” of no contact or supervised contact for the absent parent who deserves better than this. This is normally a humiliation to the caring and loving parent, who previously to the vicious alienating process, had a warm and loving relationship with the child.

Most of the victims are fathers, and of course the child and children involved. It is therefore not surprising that some militant type organisation such as “Justice for Fathers” has developed. They have, in often unorthodox ways, attempted to influence the legal and political system which limits their involvement with their own children. Other fathers opt out sooner or later in seeking any further contact via the courts that have essentially made unjust decisions. The traditional system it would seem has accommodated the perpetrator of alienation and been punitive against the victim of the process of alienation. One must ask one self is that the justice we should expect from the judicial system?

What the Judiciary should do when alienation leads to implacable hostility

It is often been said by many that that it is easier to criticise than to find just and fair solutions in cases of parental conflicts affecting children. It is this very thing I should like to do now. It must be accepted that most alienators are mothers. From time to time I have also encountered fathers who are the programmers against mothers. This, however, is comparatively rare. There is a long tradition of judges being more sympathetic toward mothers than fathers in parental alienation type conflicts. This is often denied by judges who claim their main concern is only the child.

Mothers, on the whole gain custody of a child. Most do not alienate children against the father. This is for the benefit of all concerned; most especially the child. The child thereby recognises and in time accepts that mummy and daddy no longer live together or love one another, but, both parents love and care and are devoted to the child they have created. In these situations both parents support the other parent in the eyes of the child. This unfortunately does not occur in the case of the process of alienation.

In the case where alienation is practiced, it is usually the mother who carries out this highly damaging activity. It does not matter who alienates. Whoever carries out this activity is wrong, and it should be determined that they are wrong by the court! Judges should not be influenced by the sex of the parent who alienates the child against the other parent. They should not be influenced by the parent who has custody since it is most always given to the mother. They should not be only influenced by what a child says, but why a child says what it does.

It should be understood that he or she that programmes the child against the other parent is abusing the child emotionally and is abusing their position by the fact that they have custody and are taking advantage of this to brain wash the child. Hence when the child states that he or she does not want anything to do with a parent with whom they previously enjoyed a warm and loving relationship, the court must realise from where the rejection of one parent originates. It is usually the mother that carries out the process of alienation. The mother then claims that it is the child who has made the decision to seek little or no contact with his/her father. This, unfortunately, is more often or not believed by the court. Such errors of judgement need to be rectified and rectified as soon as possible.

The court must act against the parent who is in the wrong. This, in most cases, is the mother. She must be made aware that a child is not only hers to mould as she sees fit against the father. She must be made aware that the child does not have regular contact with the father then she will certainly lose custody of the child because she’s responsible for the child making such a decision. The child will then be placed with the father or a member of the father’s family. Such a threat often suffices for some mothers at least, to see sense some then will encourage the child to have a relationship with the father. The others who fail to accept the decision should feel the full force of the law by losing custody of the child.

Judges are loath to act in this way. Perhaps they do not see the injustice they are perpetuating? Perhaps they are concerned with how society or the media would view such a decision? Perhaps they consider, wrongly, that it is in the best interest of the child to have the security of being with the mother and the side lining of the father is therefore acceptable? Taking the easy way out is not justice it is not fair and it is not good for the child!

Alienating parents should not be allowed to be in opposition to seek justice. This should be done whatever the sex of the alienator. Father and mothers both deserve justice and fair play and most of all, the child deserves this. The answer also doesn’t rest in the prolonged legal actions that usually follow. Once it has been established by a qualified psychologist that there has been alienation by one parent against the other, a report by that professional, who has investigated the matter thoroughly should lead to action and it should be the action indicated by the findings of the psychologist. This would reduce some of the current activities of fathers in the effort to seek justice.*

The judiciary would also in time be viewed as showing the courage of their convictions. There will be no further need for articles such as the present one asking the question: “Where have courageous, just judges gone?”

* The author of this article has already written an article “The signs of parental alienation” Lowenstein 2005 and a number of other articles. A list of these have been included at the end.