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The missing link

Legal Report: Family Law
|Written By Ian Harvey

There’s something missing in the courtroom battles over parental alienation syndrome, says lawyer Jeffrey Wilson: the kids.

Family law lawyer Wilson, of Wilson Christen LLP in Toronto, believes the system itself has lost track of the real focus: the children themselves. While, there is provision for judges to interview children and for them to have a lawyer appointed, they are markedly absent from courtrooms and usually unheard. “There’s an assumption — largely untested but deeply felt — that children are harmed by any connection to a court proceeding,” he says, adding even if a child has a court-appointed lawyer, he or she is not bound to act according to the child’s wishes only in accord with what the lawyer deems to be in the child’s “best interest.”

PAS has too easily become a catch-all strategy and brought into play “as an ailment that can be cured scientifically with the right recovery medicine. But, at what cost, and are the courts engaged more in that of a hullabaloo than a fair inquiry exercise?” asks Wilson.

Fuelling his frustration were his experiences this year acting for an 18-year-old who approached him after his 12- and 14-year-old brothers were committed to a mental ward and sent to foster care while their own court-appointed lawyer did nothing because they defied a court order to live with their father. “Their wishes to refuse therapy, refuse foster care, and instead live with their father, considered ‘toxic’ by their counsel, were overridden by their counsel’s views of their best interests,” he says, noting it happens frequently.

It all raises more questions than answers, says Wilson. Where does it leave the children and their own wishes? If they choose one parent over the other will they be cited for contempt? What ethical rules do lawyers face if children turn to them for help? Who are the experts in this field?

Indeed PAS generates heart-wrenching headlines such as the case of the brothers that was settled when the 18-year-old worked out a deal between his feuding parents. In another recent case, a Muslim cleric is now estranged from his 10-year-old daughter after an Ontario court reluctantly allowed the mother to move her to Saudi Arabia despite the fact she had consistently ignored court orders, lied, and been manipulative. The damage was already done, the court ruled, and there was little point in forcing the child to accept her father.

Those stories and others have vaulted PAS onto the front pages and into the lexicon but it has long been controversial. Feminists call it “junk science” propagated by a “misogynist,” while fathers rights’ groups have heralded it as the dénouement of a long-shrouded practice by estranged wives to demonize them in the eyes of their children and a way to fight back against the label of “deadbeat dad.”

The man who coined the term, Richard Gardner, was a Columbia University professor of psychiatry for 40 years until his death in 2003 and, though he tempered some of his opinions in his latter years, is still either vilified or saluted as is his philosophical heir, Richard Warshak.

The bigger question, is not whether the issue is real but whether it’s being abused and alleged as a “magic bullet” strategy, says Queen’s University law professor Nicholas Bala who looked at 145 cases across Canada over a 19-year period from 1989 to 2008. His paper will be published in the Family Court Review next winter. To counter the potential for abuse, Bala advocates strict case management of PAS cases and more mandatory education programs for divorcing parents to stem the demands on court resources. “I think we’re doing a better job in the Canadian courts [recognizing and dealing with PAS], but there’s still a great deal to be done,” says Bala, noting one of the reasons for emerging PAS battles is a shift in parenting norms with more fathers taking a larger role in the nurturing of their children while more women continue to pursue higher profile careers and split responsibilities with their partners. The result is often a more hotly contested battle over who would be the better parent.

Still, PAS disputes are not the norm, says Bala. In the vast majority of family law cases, custody battles themselves represent the small minority of matters which occupy the courts and within that group itself, PAS is alleged in an even smaller number of disputes. Of the 145 cases looked at by Bala, 89 rulings upheld a finding of PAS with an increasing trend towards such rulings in the second half of the time period examined. Bala also found mothers are twice as likely as fathers to alienate children from the other parent but this is consistent with the statistics that fathers rarely get sole custody. It is also reflected in that fathers are three times more likely to make unsubstantiated claims of alienation, says Bala.

In the event of a finding of PAS, in just over half the cases the court reversed custody to the alienated parent; in 10 per cent of cases the offending parent was barred from access; and in a little more than a quarter of the cases reviewed, therapy for children, family, or both was ordered.

University of British Columbia feminist legal studies professor Susan Boyd says she’d be happier if PAS would drop the “syndrome” tag and simply be known as parental alienation. She also worries the courts may have embraced it too fully and quickly. “There are often good reasons why children don’t want to see one parent,” she says, warning against alienation as the first conclusion. “It may be abuse, it may be violence, it may be alcohol or substance abuse in the other home.”

Because it is a social science, says Boyd, lawyers and courts can’t claim to be experts and must be guided by those with the appropriate expertise. Even then, the draconian solution imposed by many exasperated judges to reverse custody and bar the alienating parent access to the children during the “cooling-off period” may also have long-lasting social consequences. “You’re completely removing the child from their main caregiver,” she says. “Without long-term and even short-term studies on the consequences, it seems a little experimental.”

Bala concurs with the need for a longer-term look at the effects of alienation and specifically the effects of different resolutions, though there is already growing evidence that children subjected to alienation tend to be less productive in adulthood, have more mental health issues, and have difficulty forming long-term relationships. The more immediate problem in reviewing the stats, says Bala, is the disproportionate amount of time PAS cases are burning up within the system, not to mention the costs.

Case management is a must, he says. “With case management you have the same judge up to point of trial and that judge is familiar with the file, the issue, and the parties and it limits the potential for one of the parties to manipulate the process,” says Bala, stressing court orders should be clearly worded and rigorously enforced. 

  • Law Suits Problem

    Southern California Attorney
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