‘Parental Alienation contribute to the child’s alienation from identifiable phrase to what he had the other.” observed, Gardner created a contro- Syndrome’ Dr. Gardner observed an increase versy by referring to the condition of in these behaviors in the late 1970s, parental alienation as a “syndrome,” Forget The Title; Does the correlating with the shift in the law because he did not provide empirical Behavior Exist? from utilizing the “tender years doc- support for it as a distinct entity. trine” as the standard to be applied in Putting aside the label of “syn- By Lawrence Jay Braunstein deciding custody cases, to the broad- drome” and the validity of Gardner’s er concept of the “best interest of the methodology and testing criteria, the Parental Alienation, sometimes child” standard. Gardner hypothe- mental health community has general- referred to as Parental Alienation sized that since the court-applied ly recognized the destructive behavior “Syndrome” (PAS), is generally used to standard had shifted away from the of one seeking to alienate the describe the behavior of children who presumption that the mother — children from the other parent, includ- are enmeshed in their ’ highly unless proven “unfit” — should be ing the making of false allegations of contentious and custody litiga- the custodial parent and with the sexual abuse. tion and placed in the midst of it by “popularization of the joint custodial PARENTAL ALIGNMENT one of their parents. There is substan- concept,” the mother’s position In 1980, before Gardner’s “discov- tial disagreement within both the legal became more precarious in custody ery” of “parental alienation,” Dr. and psychological fields as to whether litigation. Gardner ultimately con- Judith Wallerstein and Dr. Joan Kelly, or not PAS is a legitimate concept. This cluded that ... mothers have been in their book, Surviving the Breakup , article explores the psychological more likely than fathers to attempt to addressed the concept of the “align- underpinnings of this behavior and alienate their children against fathers ment” of a child with a parent during the legal implications within the con- in order to strengthen their positions the divorce. They observed that: text of custody litigation. in custody conflicts … and …children A very important aspect of the LABELING THE SYNDROME have been supporting their mothers response of the youngsters in this The late Dr. Richard Gardner first much more than their fathers, provid- age group (ages 9 to 12) was the dramatic change in the relation- coined the phrase “Parental Alienation ing thereby their own contributions ship between parents and chil- Syndrome” in 1987 ( The Parental to the parental alienation syndrome.” dren. These young people were Alienation Syndrome and the Differen- Gardner also applied his theoretical vulnerable to being swept up into tiation Between Fabricated and concept of a parental alienation syn- anger of one parent against the Genuine Child Sex Abuse , Creative drome to explain the difference other. They were faithful and Therapeutics, 1987) after he had between fabricated and genuine alle- valuable battle allies in efforts to repeatedly observed a specific set of gations of child sexual abuse arising hurt the other parent. Not infre- behaviors in children involved in pro- in the context of a divorce or custody quently, they turned on the par- tracted, highly contentious custody liti- case, and devised a “Sex Abuse ent they had (previously) loved gation. Dr. Gardner defined the behav- Legitimacy Scale” with which to judge and been very close to prior to ior as “ … a disturbance in which chil- the veracity of the allegations. the marital separation. dren are preoccupied with deprecation CRITICISM Wallerstein and Kelly’s approach to and criticism of a parent — denigration Much criticism has been leveled the study of the alignment behavior that is unjustified and/or exaggerated.” against Gardner’s self-proclaimed and of children enmeshed in their par- Gardner further observed that describ- self-proven “syndrome.” In order for a ent’s divorce was grounded in and ing this behavior as “brainwashing” syndrome to be accepted in the men- based upon the accepted psycholog- was too narrow a definition. He stated, tal health community, long-estab- ical concept of “.” “The concept of parental alienation lished convention required a new the- In order for parental alienation to syndrome includes a brainwashing ory to be validated by peer review. exist, there must first be attachment, component, but is much more inclu- The peer review process challenges e.g. , an emotional bond between the sive. It includes not only conscious but concepts and the ability to replicate child and the child’s caregivers. In subconscious and unconscious factors results before the concept gains gen- essence, attachment theory focuses within the programming parent that eral acceptance into the mainstream. on understanding and identifying the Lawrence Jay Braunstein, Esq. , a Because Gardner’s writings were self- degree of the child’s emotional rela- member of this newsletter’s Board of published and based upon his own tionship with each parent, how the Editors, is a partner in the White personal observations and experi- child utilizes this emotional bond to Plains, NY, law firm of Braunstein & ences, they lacked peer review prior provide himself with a source of Zuckerman, Esqs. He is a Fellow of to publication and dissemination. security and strength, and ultimately the American Academy of Matri-moni- Consequently the psychological com- how one of the caregivers uses this al Lawyers, and is Co-Chair of the New munity was deprived of the opportu- attachment against the other. York State Bar Association Law nity to test his theories and assump- Section, Committee. tions. Although he ascribed an easily continued on page 6 January 2007 The Matrimonial Strategist O www.ljnonline.com/alm?matrimonial 5 Parental Alienation child’s allegiance toward one parent Kelly and Johnston identify “com- by attacking the child’s attachment to mon behaviors and organizing beliefs continued from page 5 that parent, as part of the “strategy” of of the aligned [alienating] parent” THE ATTACHMENT THEORY a custody battle. Manipulation by one consisting of the following: Psychologists have studied the qual- parent intent on destroying the child’s • Extremely negative views of the re- ity of child-caregiver emotional rela- relationship with the other parent is a jected parent freely, angrily and tionships and psychological support as very real danger and is the basis of repeatedly expressed to the child a way of defining attachment theory. parental alienation. This is often done by the aligned parent; John Bowlby and Mary Ainsworth are under the guise of protecting the • The stated belief that the child does generally recognized as pioneers in child, but is actually an expression of not need the other parent in his life; the study of attachment theory. the alienating parent’s co-dependen- • The rejected parent is denigrated, From 1958 through 1960 Bowlby cy and associated insecurity. and the personality and published three papers entitled “The In his 1969 work, Attachment and flaws of the rejected parent are exaggerated and discussed fre- Nature of the Child’s Tie to His Loss , Bowlby recognized that divorce quently in the child’s presence; Mother,” “Separation Anxiety” and was one of the events that would • The aligning parent believes that the “Grief and Mourning in Infancy and cause a child to alter his IWM of each rejected parent is dangerous to the Early Childhood.” These three pub- parent, and would result in a disrup- child, and therefore that parent’s lished works, as well as several others, tion of the child’s attachment security access to the child must be blocked; formed the groundwork for attach- to either or both parents. Researchers and ment theory, and certainly comple- Kelly, Lamb, Solomon and Biringen • The belief of the aligned parent that mented the legal notion that the moth- have all sought to recommend post- the rejected parent does not and er was the emotional anchor for the separation custody scenarios, utilizing has never loved or cared about the child, and that a strong mother/child the theory of attachment, so as to min- child. relationship was necessary for the imize the disruption of the child’s Kelly and Johnston also note that emotional growth of the child. attachment security toward each par- “in many cases of alienated children, Since attachment theory is a psy- ent. There is widespread agreement parents who are rejected have con- chological concept widely accepted in that positive, child centered co-parent- tributed to the alienation in one or the mental health community, ing arrangements best support the more significant ways,” in essence researchers have sought to use attach- child’s security attachment to both par- stating that the victim of alienation ment theory as the context within ents. Sadly, when parents cannot –– or contributes to his own victimization. which to study the behaviors of chil- will not –– make the child the priority, Most interestingly, Kelly and dren caught in the middle of their par- these arrangements cannot succeed, Johnston state that their “observa- ent’s acrimonious divorce. This theory and the child suffers. tions of the behaviors and emotional focuses more on an analysis of the THE ALIENATED CHILD responses of alienated children are child’s behavior than on an analysis of The impact of parental alienation similar to those reported by others the parent’s behaviors. upon the child is destructive and (Gardner, 1987, 1992; Wallerstein & Bowlby hypothesized that a child long lasting, and affects the child’s Kelly, 1980)”. The article concludes maintains an “internal working reality, impacts upon his ability to with the following statement: model” (IWM) of each of his attach- sustain healthy relationships, encour- No one factor produces the ment figures (presumably his parents, ages him to become manipulative, alienated child. A full under- as primary caretakers), and that as and impacts upon core issues of standing of this pathological part of the child’s development, the identity and a sense of belonging. development in the parent-child IWM of each attachment figure is con- In The Alienated Child, A Reformu- relationship, most often separa- stantly being refined and modified. lation of Parental Alienation Syn- tion engendered, can then lead Alienating statements and behavior by drome , Kelly and Johnston approach to an effective plan and structure the parent toward the child toxify this for legal, judicial, and therapeutic the concept of parental alienation process and relegate the child to a life interventions directed at resolv- from the perspective of a family sys- of insecurity in relationships with ing the profound alienation of tems analysis and propose to view the associated anxiety and inhibition. the child from the parent. issue by focusing “on the alienated Consistencies and inconsistencies child rather than on parental alien- CONCLUSION impacting upon the child’s IWM for ation.” They define an alienated child It is easy to discount the concept of each parent are part of the child’s as “ … one who expresses, freely and parental alienation by taking the posi- normal development within intact tion that since it is not a syndrome, persistently, unreasonable negative family systems. In the context of a (and therefore not a recognized and feelings and beliefs (such as anger, family experiencing a break-up due generally accepted psychological disor- hatred, rejection, and/or fear) toward to divorce, however, the potential der), it has no conceptual and practical a parent that are significantly dispro- exists to use these developmental validity. To do so, however, would be portionate to the child’s actual experi- tools as a weapon to manipulate the ence with that parent.” continued on page 8

6 The Matrimonial Strategist O www.ljnonline.com/alm?matrimonial January 2007 LITIGATION PATERNITY AND child support. Thereafter, in 2003, those sections establish a substantive, Where the state legislature creates Lovelady filed a motion appealing from rather than a procedural right. The a statute to protect a substantive right the 1996 order under R.C. 3119.961 et supreme court affirmed the court of to obtain relief from final judgment, seq. , claiming that recent DNA testing appeals. It considered language of Ohio’s that statute does not violate the con- established that Lovelady was not the General Assembly that was exactly on stitutional separation of powers. father of the subject child. The trial court point, stating that the R.C. 3119.96 et seq. The State Ex rel. Loyd v. Lovelady , denied Lovelady’s motion, holding that deals with a person’s substantive right to No. 2004-1465, Supreme Court of RC 3119.961 et seq. violate the separation obtain relief from a final judgment of an Ohio, Feb. 1, 2006. of powers by interfering with the Ohio order that requires that person to pay In 1985, Loyd gave birth to a child. Supreme Court’s exclusive authority to child support. The court concluded that The local child services agency sought a regulate state court procedures. Lovelady the Ohio General Assembly intended to paternity order from Lovelady. Lovelady appealed, and the court of appeals create a substantive right to address failed to appear, and a default judgment reversed and remanded, finding the RC potential injustice. was entered establishing paternity of the 3119.961 et seq. do not violate the consti- —O— subject child and ordering him to pay tutional separation of powers because Custody molested and her attempts to forum- Family Court’s prior orders, warrants shop and misrepresent the status of granting petitioner’s application and continued from page 7 the case. Nonetheless, Judge Hummel awarding sole legal and physical cus- the court’s order and absconded with awarded Ms. Chase custody. He also tody of the parties’ minor child to him,” her son for 15 days, informing the granted Mr. Chase more visitation and Justice Carl J. Mugglin wrote for the media of her stance and publicly dis- again directed the mother to stop dis- court. Mr. Chases’ attorney, Mitch cussing the sex-abuse allegations. cussing the sexual abuse allegations Kessler of Cohoes, Albany County, Judge Hummel issued an emergency unless she also provided copies of remarked that he’d never seen such an order temporarily shifting custody to the court’s findings that those allega- egregious case of parental alienation. Mr. Chase, which led to a protest out- tions were unfounded. Thomas D. Shanahan of Shanahan & side his chambers by Ms. Chase’s PARENTAL ALIENATION Associates in Manhattan, who repre- friends and supporters, and women’s In November, the Third Department sented Ms. Chase, insisted his client rights groups. unanimously reversed, granting Mr. acted like a responsible parent, if not Judge Hummel then held a lengthy Chase full custody and directing the necessarily an obedient litigant. hearing, where he expressed concern trial court to set a visitation schedule for —O— over Ms. Chase’s persistent interfer- Ms. Chase. “[R]espondent’s repeated ence with Mr. Chase’s visitation interference with petitioner’s parental LAW JOURNAL NEWSLETTERS REPRINT SERVICE Promotional article reprints of this article or any rights, her failure to abide by court rights, coupled with her crusade to other published by LAW JOURNAL NEWSLETTERS are available. orders, her “dangerous obsession” Call Matt Solomon at 212-545-6289 or brand [Mr. Chase] a pedophile and her e-mail [email protected] with the idea that her son had been well-documented refusal to abide by Reprints are available in paper and PDF format. Parental Alienation classified as a “syndrome” and focusing of professionally accepted psycho- on the family dynamics before the sep- logical principals of child develop- continued from page 6 aration, the personalities of the family ment, attachment theory and family intellectually dishonest, and would members, and the actions of parents as systems, it will yield a more univer- ignore what has become a custody liti- they battle their way through the sally accepted analysis of the prob- gation strategy for a growing number divorce and custody litigation utilizing lem and may make addressing the of parents. Understanding why a child a “scorched earth” approach. offending behavior that much easier. is alienated requires putting aside the If the judges and attorneys can —O— issue of whether the behaviors can be view these factors within the context

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