Parental Alienation Syndrome

Wendy McElroy posts at LRC (http://blog.lewrockwell.com/lewrw/archives/009174.html) and at Liberty & Power (http://hnn.us/blogs/entries/17475.html) about the concept of “Parental Alienation Syndrome”. I agree with her that it seems unproductive to characterize the phenomenon of parental alienation as a psychological condition. Much as “Battered Spouse Syndrome” framed as a psychological condition contributes little to understanding the phenomenon and dealing with it, framing parental alienation in such terms is unlikely to lead to more just handling of custody and visitation matters. It just means more money for psychologists who hold themselves out as experts.

The main issue I have with Parental Alienation Syndrome (PAS) is that it seems a gratuitous way of “medicalizing” a series of interactions among family members. None of the participants in these interactions may be said to “have” the syndrome; rather, the interactions comprise the syndrome. The criteria for “diagnosing” PAS include: access and contact blocking, unfounded allegations of abuse, deterioration of the relationship with the non-custodial parent, and an intense fear reaction in the children as to the non-custodial parent. Access and contact blocking will occur in almost every case, and deterioration in the relationship is almost inevitable. The critical issue for courts is to distinguish between cases of abusive non-custodial parents and cases where allegations of abuse are false. Whether an allegation is "unfounded" is a factual determination, not a clinical one.

It is uncontroversial that it is better for children of divorced parents if their parents can act like adults and consider the interests of their children in what is, in any event, a difficult transition. It is damaging to children, emotionally and socially, for either parent to alienate the affections of the children for the other parent, and in extreme cases this might be considered emotionally abusive. It greatly increases the probability that the non-custodial parent will withdraw from the lives of the children and even neglect financial obligations.

Courts and others involved in custody and visitation issues are well aware that custodial spouses often attempt to alienate the affections of children toward their other parent for any number of reasons, spite being quite common, and this phenomenon is supposed to be considered as one of many factors in determining custody and visitation. The problem is not that the phenomenon is poorly understood; rather, the problem is that courts are ill equipped to do anything about it other than order parents to make nice. Moreover, where there are allegations of abuse, courts are generally going to err on the side of protecting children rather than the alleged abuser. Calling the phenomenon a “syndrome” is not going to be helpful if there is no just mechanism for investigating and evaluating allegations of abuse. If I were a judge, I would not be satisfied with just an “expert” opinion that a situation was PAS rather than actual abuse. I would want an old school factual inquiry.

On the one hand, PAS is a phenomenon that is driven by spite and anger. On the other, it is driven by the nature of the family court system in that there are strategic advantages to be gained from making false allegations of abuse. There are rarely any negative consequences for the false accuser. For a variety of reasons, there is a veritable presumption that accusations of abuse are true, and as a practical matter the sometimes impossible burden of disproving them falls upon the accused. Courts generally do not have the resources to investigate allegations of abuse, and child welfare agencies are not in a position to distinguish between real abuse and false accusations. What child welfare bureaucrat is going to go out on a limb and rule out abuse when the safer course is to believe the accuser or take no position? What judge is going to risk public wrath and diminish his reelection prospects by siding with an accused with the possibility that the accused really is abusive? The rational choice for the judge and the bureaucrat is to assume that the accused is abusive. Sure, the non-custodial parent and the children may be harmed by this, but the judge and the bureaucrat won’t be. The best interests of the state trump all.

The trouble is that there are abusive parents and false accusers, and resources are needed if courts are to be more discriminating. Social and political priorities are at issue. Do we do justice to families at the expense of exposing some children to abuse in case of error and where abuse is hard to prove? Or do we protect as many children as possible from abuse at the expense of screwing up the relationships of some children with their falsely accused parents? How can we do justice and protect children at the same time?

I come down on the side of having family courts insist on evidence and on allocating resources to investigate such allegations independently. The burden should be on the accuser, and there should be no presumption as to the truth or falsity of any accusation. Every case must be evaluated on its own merits. In order to insulate judges and investigators from political and social pressure, custody and visitation should be subject to default provisions which may be deviated from only by agreement or upon proof that deviation would be in the best interests of the children. The burden would be on the party seeking to deviate from the default, and the court would be required to make specific findings of fact justifying its orders. Every litigant in family court should be required to sit through classes in how to act like an adult and how to make the process less damaging to children. Every child should be represented by counsel to advocate his or her own interests.

False accusers should face consequences, and their lawyers should be subject to sanctions if they advance allegations for which they have no basis.

This would increase transaction costs in custody and visitation proceedings, but justice may be more closely approximated only if adequate resources are devoted to it. Mistakes will be made. Abusers will get away with it, and false accusers will prevail, but such errors will be significantly less likely if family courts actually tried factual allegations presented to them. As long as the state is in the business of dispensing justice (and I am not sure that it should be), it might consider actually trying to do it.

How would a free society deal with disputes over custody and visitation? One way might be to recognize one parent or the other as having paramount rights in the child. Perhaps the parent who broke the marriage contract would lose parental rights. This would require very little in the way of a dispute resolution process. The dynamics of power within families would have to be considered to ascertain what would be most consistent with liberty, and I plan to devote some thought to this issue. The views of my imaginary readers would certainly be of interest.