The Association of the Judiciary and the Expert Witness in Family Contact Disputes Involving Alienated Children

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

Abstract

This article points to the different functioning of the Judiciary and expert witnesses and yet how they work together to solve difficult disputes between hostile parents and alienated children. The function of judges and experts are considered in some detail. Both the Judiciary and Expert Witness are independent providing evidence based on their expertise. The difference between experts in how they interpret and deal with contact issues is discussed in some detail.

The Association of the Judiciary and the Expert Witness in Family Contact Disputes Involving Alienated Children

The association of the Judiciary and the Expert Witness should be, and on the whole is “complementary”. Each has his/her own area of expertise and functioning. Each is independent of the other in making a decision based on what they deem to be evidence. The Judiciary makes the ultimate or final decision. The Expert Witness provides information for the Judiciary to make the best possible decisions available.

In Family Courts, Juries tend not to be involved. Much therefore relies upon the Judge, Expert Witness and all those involved in the legal process. Some Judges, but not all, choose to act on the advice of the Expert Witness because they value it. Others may not respond to or share the views of the expert. Sometimes they themselves select experts or  they rely on others to select an expert who will help but not decide on issues or cases. Decisions are reached by the Judiciary having taken into consideration all evidence available.

We will consider first the Expert Witness and how he/she contributes via their function. This will be followed by the role of the Judiciary.

A. The function of the expert witness

In the case of frequently complex and acrimonious family disputes involving children and parents, the expert psychologist of psychiatrist is frequently requested to investigate the following in two parts: 1) the problem, 2) resolving this problem.

1. The problem

The problem would be looked at in the following way:

(a) What is the basis of the problem?

(b) Who is responsible for the problem?

(c) What are the possible ways of resolving the problem, according to the views of the expert witness using his/her expertise

2. Resolving the problem

(a) Assessing the various individuals via intensive interviews and psychological testing as well as judging the written evidence of reports and statements.

(b) Utilising a process of mediation.

(c) Reporting to the court the effectiveness or lack of effectiveness of the mediation carried out.

(d) Recommending a course of action(s) to the Judiciary as a way of resolving the issues which could not be resolved through mediation.

(e) The Judiciary making decisions based or not based on the expert witness’ advice and the Judge’s own findings.

B. The expert witness’ function in family law cases

Expert Witnesses differ greatly in the way they think and the way they work. All claim to be “independent” in their judgement and in relation to family matters and complex issues that need to be resolved. From my own experiences, I would estimate that there are essentially two kinds of expert witnesses currently acting for parent, children and the Judiciary. This is essentially from the point of view or orientation in which each espouses. They are:

(i) Those who are concerned with the children’s current mindset as to whether they wish or do not wish for contact with an absent parent. Where they do not wish for contact such experts will make decisions on what they deem to be the reasons for the choices made by the child and what is in the best interest of the child now and not necessarily in the future of the child. Such experts have considered the needs for contact with the now absent parent but will consider first and foremost the child’s current choice as paramount. Such experts will often hope that in the future such children who do not wish contact with their absent parent will seek to be rehabilitated with the now absent parent. Such experts are less or not at all concerned immediately with the long term effects of lack of contact of a child with his now absent parent. This view is based on the child usually aged 4 to16+ wishing no contact with the absent parent due to the alleged animosity they feel towards that parent.

(ii) The second kind of expert witness is concerned with the children’s current mindset but not accepting necessarily when children decide not to seek contact with a good absent parent, when there is no good reason for such a decision. In these cases, the absent parent has not been abusive physically, sexually or emotional toward their child/children. Frequently such children have in the past enjoyed a good relationship with this now absent and potentially alienated parent. Such expert witnesses do not accept the reluctance of children to see an absent parent or to have contact with him/her as the final answer. Such experts, (of whom I am one) will base their approach and assumption on the following:

a) that the child most benefits when both parents are involved with him/her as equally as possible in rearing and guiding the child towards adolescence and adulthood. For this to occur, both parents must aim to be unified in their approach or be advised and supported by a third independent body when required.

b) that the child may have been alienated by the custodial parent against a now absent parent. That is, the child is totally influenced by a hostile parent against a formerly loving parent. It is for this reason only the child wishes no control with the absent parent. This necessitates the expert witness to assess the family and all its members for the possibility of the child having been “brainwashed” against a now formally valued absent parent. Hence that absent parent through no fault of his/her own is being ostracized in playing a vital role in the lives of his/her children.

Here the expert witness offers a thorough investigation which will put forward a plan of action for changing the mindset of children who claim they wish to have no contact with the now absent parent. The expert witness makes the child and the alienating parent aware of the positive and vital role of the absent parent. This is considered to be to the benefit of the child. Some, but not all, alienating parents suffer from an “implacable hostility” towards the other parent.. Where such hostility exists in the custodial parent more drastic measures are in order. This must be done with the co-operation of the Judicial system.

C. The Judiciary’s function in family law cases involving contact disputes

The Judiciary may or may not agree with the conclusions reached by the expert witness.  If the Judiciary agrees with the expert and suggestions are made to provide a process whereby a solution can be found, this is the best possible chance of a resolution. In some cases the Judge needs to order mediation and/or court ordered treatment. Following such treatment further decisions can be made. Some success had been achieved in harmonising the relationship between acrimonious couples, when both parents concentrate on what is in the best interest of their child.

In the most recalcitrant cases, mediation and the court ordered treatment will be ineffective. In other cases it will be effective. It is, however, always important that such mediation is attempted. The only solution is threatening the alienating parent with a change in the custody of the child. Fear of losing a child altogether for failing to encourage contact sometimes helps that parent to co-operate and sincerely and firmly insist that the child has good open contact with the victim of alienation. This provides the alienated parent with the opportunity of promoting a good relationship, once more with the child. The child, because the court ordered it, will no longer feel guilty in spending time with the alienated parent, because the brainwashing received from the custodial parent has been overcome by a stronger power i.e. the Judiciary.

In this way, the absent parent is given the chance of rebuilding a relationship with the child without the alienator influencing and preventing this from happening. Once the process of alienation has stopped, the alienated parent should gain custody in the first instance. Then the treatment of the alienator could also begin. When the alienator realises and accepts guilt for their abusive alienating behaviour further steps may be in order.

At that time the alienator could be assesses via a supervised contact with the child. It is vital that the alienator has accepted that he/she must speak well to the child of the previously demeaned and alienated parent. The alienator can only be judged as being a worthy parent when he/she strongly encourages the child to have good regular contact with the previously alienated parent.
The second type of psychological expert will have studied in depth, the reasons for the family being in dispute and a child/children not having contact with an absent loving parent. It is always important in such a dispute to declare who is/are at fault.

ecommendations are made in the psychological report presented to the court upon which the Judiciary may wish to act. The expert or others may continue further work with the family members to obtain a just and fair solution to the previous acrimony and lack of contact by the absent parent with his/her children.

Judges will differ in how far they will go in seeking to resolve contact disputes and other problems that occur after divorce or separation. Judges, on the whole, are mindful of how the implacable hostility of one or both parents muddy the water. This often prevents judges finding a  truly just solution.

If the mediation and treatment is effective, and the child still refuses contact with the absent parent, this could frequently be due to the continuing efforts of the hostile residential parent to discourage the child subtly or directly in having good contact with the absent parent. The Judge should be made aware  of this and can order the child to be removed from the home and placed in a setting where intensive treatment of the child can continue. Here too the alienated parent, but not the alienating parent should have direct good access and contact with the child. The child must learn that what has been done by the alienator is wrong, unjust and sometimes pathological.

The child must be made aware that he/she has been given false information. He/sh has a good parent albeit an absent one, but one who would like to share and guide the child in a positive direction. The child must be made aware of the fact that the absent parent has been excluded through no fault of his/her own. The child needs also to accept via therapy received, the fact that he/she has been wrongly used by the alienating parent because of the unjustified anger and hatred that parent feels about the now absent parent. If this scenario is explained by the therapist in the simplest way, the child may well understand about what has been happening and respond accordingly. This is the way to change the attitude and behaviour of the child towards the now absent and unjustly vilified parent. It is the way forward for that child eventually to have good contact with the absent parent.

The ideals and realities

We have contrasted the roles of different expert witnesses with different orientations working with the courts in seeking to resolve child contact disputes when these disputes arise as a result of “implacable hostility” between the parents. It is my view that the second kind of expert witness described is to be preferred as he/she believes not only what is in the short term interest of the child but also the child’s long term future interest. This is an ideal to be sought.

The preferre expert looks more deeply into the reasons or lack of reason for children not wanting and not having contact with an absent and frequently aliened parent. The child must learn and accept that the alienating, custodial parent is wrong in what they have done. If it can be shown that the child is behaving on behalf of the alienator certain steps are required to be taken to ensure that justice is truly done. This should be for the short as well as the long term benefit of the child. It is unfortunate that many expert witnesses fall short of seeking to achieve this. They fail by not following the pattern of the second example of how an expert witness should behave and work. Some experts take the ‘easy way out’ by accepting the status quo. It is a solution but in the views of the current expert it is a poor solution to work as the first type of expert works.

It leads to the fact that the alienating parent has won unjustly against the truly deserving sidelined parent. This is not to the benefit in the long term of children or the sidelined parent. It is in fact a victory for injustice! Such a victory can never be regarded as ideal. It is unfortunate however, that such injustice occurs more frequently than true justice being done as recommended by the current psychologist. This is because there is a need for considerable determination and skilled handling of such cases and to view them in depth rather than superficially.

The objectives are also the short and long term aims to do what is in the best interest of children: a good relationship with both parents. This can only be achieved when both parents eventually co-operate in showing behaviour which is in the best interest of the child instead of responding to their hostility.

The expert witness allied to the court must instill together with the court a feeling of optimism and altruism in parents where this is lacking. This must be done by persuasion in the first instance but when such persuasion fails via firm legal action. It may be the only real justice that can be achieved in the family courts.