Friday, December 11, 2009

Thoughts on Parental Alienation Syndrome

Not too long ago I was taken to task for a post on Parental Alienation Syndrome. The writer mistook reporting for advocacy, but he made one point that has stuck with me. I do not think any of my reports on PAS can be understood as my having any psychology training - nor do I think that any lawyers speaking on PAS do likewise.

The writer also made the point that PAS is not a recognized syndrome by the appropriate professional societies in charge of such things. He missed the points I think all lawyers try to make about PAS: 1) this kind of behavior does not help one's case; and 2) that what some writers call PAS lawyers recognize some recognizable behavior such as we really do not care whether it is a psychological condition as we think of it as part of human nature.

In an earlier post, I went on at some length about Euripedes' Medea.  I suspect we would have a great shortage of poetry and literature but for a certain unreason running through human nature.  History would have a fewer wars.

Likewise, our courts would lose a certain amount of work but for the same sort of unreason.  We see the similar behavior in probate litigation (give Dickens' Bleak House a look or The Probate Lawyer Blog and posts such as Family fight over control of Michael Crichton's trust.).  Consider the continual laments about American litigiousnessFroot of the Poisonous Tree of Litigiousness, the entirety of Lowering the Bar and Overlawyered Blogs,

What this type of behavior in the family law setting is that the subject of the behavior/litigation is not a pile of money but a child.  While much of our adversarial system does not translate well into the child custody/visitation area, here might be a compensation.  Lawyers and judges see this behavior often enough in other contexts that we know what we are seeing in the child custody/visitation context without the need of a psychological label.  Putting the most polite word to it that I can, we know a jerk when we see one.

Perhaps from Toronto Family Lawyer explains this process best in his Children’s Wishes and Paternal Alienation:

2. Parental Alienation

Justice Harper did not make a determination regarding whether this was a case of Parental Alienation. Counsel for the father argued that Parental Alienation evidence accepted in another case should be accepted as evidence in lieu of expert testimony in this case. Justice Harper did not believe that it was proper to accept a summary of expert testimony from another case because such evidence could not be scrutinized. He also did not believe that he could take judicial notice of Parental Alienation.

He went on to explain that a finding of Parental Alienation was not necessary in this case because the Best Interest of the Child test provided him with the framework he needed to make a proper custody decision. As he put it, “In this matter, I do not need expert testimony to help me draw the necessary inferences on the evidence. The concept of the best interest of the child is a legal concept and not a clinical concept. I will restrict my analysis to the factors set out in the Children’s Law Reform Act s. 24 in determining the best interest of the child.”
One final thought, about the role lawyers play in encouraging the behavior of jerks.  I suppose we all know lawyers who propagate themselves as stout fighters, the ones who scare everyone by their mere presence.  These people do not help discourage certain types of behavior in their clients.   They will probably continue so long as there are clients who want this type of service.  When it becomes unprofitable to have this as the only type of practice, it will stop.

However, I have a suggestion if you think this is the only type of divorce lawyer or the best type of divorce lawyer.  Check out sites like Collaborative Divorce and Family Law (on Twitter here), or (on Twitter here), or put "collaborative divorce" in the search box above.

1 comment:

Anonymous said...

Here's a big thank you for your post on parental alienation. This destructive family dynamic affects countless children, parents and extended family members every year. Educating parents, legal and mental health professionals is the best way to help children maintain normal, healthy relationships with both parents.


mike jeffries
Author, A Family's Heartbreak: A Parent's Introduction to Parental Alienation