Justice Martinson of British Columbia (Martinson 2010) argues that courts are “… publicly funded institutions that exist to serve the public. They must be accountable to the public.” And yet, one of the most frequent complaints parents make regarding their custody litigation is that repeated violations of orders go unpunished, with some parents making a mockery of the court’s authority. According to Kelly (2010):
A significant number of these parents have come to believe that noncompliance with court orders, whether for facilitating contact between the child and the rejected parent or attending divorce education classes or therapy, brings no negative consequences.
There is an assumption that in severe cases, all or most children are likely to be traumatized or go into crisis when separated from the alienating parent. Although we do not have empirical studies for this particular population, comparing alienated children who were separated and those who were not separated from their favored parent, Bernet and colleagues (2010) offered that examination of the child protection literature may be instructive. Research from retrospective studies and clinical anecdotes reported by many seasoned clinicians has suggested that for the most part, the suspected trauma is short-lived if it occurs at all.
To facilitate a transition from the polarized environment of an alienator, Warshak (2010b) recommended that rather than assessing the relative blame of each parent for the children’s difficulties, the court could simply determine that alienator contact is likely to interfere with the children’s improvement. To lessen the “blame” attributed in the adversarial process, Justice Martinson (2010) of Canada offered that the trial process must be carefully managed. The negative, destructive behaviors of alienators often become more pronounced during the trial, as parents see trial as a means for achieving vindication. Judge Michele Lowrance (2010, in press) of Chicago stresses the corrosive power of anger in these circumstances and offered many recommendations to redirect it. Sauber (2006) pointed out that the court that has the power and the influence, more so than the mental health professional, “… so the education, coaching, and threats of a judge can be a prime motivator for change.” Many times in these circumstances, children adapt quickly to firm court orders. This was a phenomena documented in the largest study of alienated children (Clawar & Rivlin, 1991). When “a powerful third party (or parties) enters the scene and imposes a settlement,” wrote Pruitt and Kim (2004), conflict de-escalation is often an immediate result.
Bala, Fidler, Goldberg, and Houston (2007), speaking about the importance of case management in the alienation context, wrote
It is important for judges to take control of alienation cases, to limit the possibility of manipulating the court process by the parents, and to ensure a firm and quick response to violations of court orders. These are cases for which judicial case management is especially appropriate. Given the need for timely assessment and intervention, judges should ensure that assessments are completed in a reasonable time (say 90–120 days). Further, cases that cannot be settled should be brought to trial as soon as possible after completion of the assessment, so that it does not become stale and require an update.
This view is reinforced in Fidler, Bala, Birnbaum, and Kavassalis (2008), where the authors emphasize the importance of early identification, case management, and post-judgment control. As Sullivan and Kelly (2001) exclaimed more than a decade ago:
A clear mandate for support, with a threat of court sanctions if alienating behavior persists, is essential to the intervention process. These sanctions may include financial payments or enforcement of an order that the aligned parent’s primary legal or physical custody is conditional on supporting therapy and facilitating reasonable access.
Justice Martinson (2010) of British Columbia recommended:
“several steps are necessary in order to maintain the focus on the best interests of the children and move the case to a resolution in a just, timely and affordable way:
- Early identification of the high conflict cases;
- Early identification of the issues that need to be resolved;
- Setting, right at the start, firm rules about the expected conduct of the parents towards the litigation, the children and each other, both in and out of the courtroom; advising them that there will be consequences if they do not comply, and spelling out what the consequences will be, and then, if necessary following through with appropriate sanctions;
- Setting a time frame within which the case must be concluded that ensures that the case will be resolved in a timely manner, through either judicial or other dispute resolution processes or after a trial;
- Setting a schedule within the time frame for all the steps that must be taken before a solution can be reached including any necessary psychological or other assessments, or, where permissible and appropriate, therapeutic intervention;
- Sticking to the time limits; not permitting changes to the schedule unless there would be a miscarriage of justice not to do so; and
- Putting temporary (interim) court orders in place relating to the care and financial security of the children, and in doing so:
- Limiting the number of interim applications to the ones that are required to move the case to the resolution stage;
- Monitoring the nature of the evidence that is presented to make sure that it focuses on the issues, is not inflammatory and/or irrelevant and does not inappropriately involve the children;
- Ensuring that any court orders that are made are specific, clear and comprehensive; and
- Ensuring that the temporary orders are followed.”
It is essential, argued Martinson, that the resolution is one that provides long-term stability and financial security for the children and significantly reduces conflict. To address this problem she reasoned, the trial judge must do two things: first, clearly explain in the judgment what the basis of the custody decision was and, second, issue orders that are detailed, comprehensive, and clear, and she argued, courts must enforce their orders because if the order was intended to promote the best interests of a child, its violation is contrary to the child’s best interests. Judge Martinson argued that enforcement of the court’s decision is critical to the process.
By way of example, Bala et al. (2010) discussed the Canadian case of Cooper v. Cooper to point out that often the defense offered during contempt proceedings in alienation cases is that it is the child(ren) and not the parent refusing contact. In Cooper, the custodial mother was found in contempt for having “willfully and deliberately sabotaged” telephone access between the children and their father. Although she made the children “available” by having them at home when the father called, she would neither answer the telephone nor, in her words, “put the telephone to the children’s ears.” The court rejected her argument that “it was up to the children to decide whether or not they would answer the phone” and found her in contempt for “shirking her responsibility and obligation directly, and … indirectly conveying to the children her disapproval of telephone access.” The sentence included an order to secure counseling for the children, and to pay a fine of $10,000.
New York State Supreme Court Justice Robert A. Ross led a movement to change New York’s matrimonial system. He presided over numerous sensational courtroom dramas, and in Lauren R. v. Ted R., he carefully handled a celebrated custody battle. In this case, Justice Ross faced Mrs. Lauren Lippe, “a vengeful roadblock, the barbed wire standing in the way of her two daughters and their desperate dad” according to the New York press. On the other side of the trauma was Ted Rubin, an alienated 52-year-old marketing executive. In months of hearings and over two hundred thousand dollars in fees and costs, the story of Mrs. Lippe’s behavior unfolded. The court records documented that Mrs. Lippe, the Plaintiff in the original divorce:
… intentionally scheduled their child’s [ names of children withheld by author] birthday party on a Sunday afternoon during defendant’s weekend visitation, and then refused to permit defendant to attend … Plaintiff threatened to cancel [−]’s party, and warned her that her sister, too, would be punished “big time” for wanting to spend time with her father … when she completed [−]’s registration card for [ names of schools withheld], she wrote that defendant is ‘not authorized to take them. I have custody. Please call me.’ … plaintiff wrote to [names of school personnel withheld], demanding that they restrict their conversations with the defendant to [−]’s academics, as plaintiff is ‘solely responsible for her academic progress and emotional well being.’ … she identified her new husband [−], as [−]’s parent/guardian.
Justice Ross carefully analyzed the extensive testimony and noted that Defendant father testified:
that there were countless times when plaintiff deliberately scheduled theater tickets, family events and social activities for the girls during his visitation, and he was compelled to consent or risk disappointing the girls. These occurrences continued even during the time span of proceedings before me.
Plaintiff Lauren Lippe testified that it was the two girls “…who refused to see their father, because they were angry with the ‘choices’ he had made on their behalf…” “Choices” noted Justice Ross, that Lippe had forced the father into after the fact. Justice Ross took special note that the two girls “parroted their mother’s demands” and on several occasions actually “…read from a script…” during dinner’s dad was allowed to attend with them. Justice Ross reasoned:
The fact that the children were as angry as they were with the defendant … demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective … Plaintiff’s contention that she had no involvement in these children’s ‘demands’ was belied by the very fact that the children had intimate knowledge of their mother’s position on all of these issues.
Justice Ross, was especially taken with Lauren’s sabotage of holidays:
I observed the plaintiff smirk in the courtroom as defendant emotionally related how he was deprived of spending Hanukkah with his children, and was relegated to lighting a menorah and watching his daughters open their grandparents’ presents in the back of his truck at the base of plaintiff’s driveway on a December evening.
Justice Ross found the proofs so compelling, he found that they went past the usual clear and convincing standard and rose to proofs beyond a reasonable doubt. He was especially troubled that, Mrs. Lippe:
… frequently disparaged the defendant in the presence of the children, calling him a ‘deadbeat,’ ‘loser,’ ‘scumbag’ and ‘f–g asshole.’ On one particular occasion, while holding [−] and [−] in her arms, plaintiff said to the defendant, ‘We all hope you die from cancer.’
Chagrined as he was over the terrible alienating behavior witnesses described in Lauren Lippe, Justice Ross noted that it just got worse and worse:
The crescendo of the plaintiff’s conduct involved accusations of sexual abuse. Plaintiff falsely accused defendant of sexual misconduct … shortly after defendant moved to [−] and the children’s friends were enjoying play dates at defendant’s home … Undaunted by the lack of any genuine concern for [child]’s safety, plaintiff pursued a campaign to report the defendant to Child Protective Services. To facilitate this, she spoke with [psychologist] at the school [−] attended. Plaintiff also ‘encouraged’ [−] to advise [ the children’ s pediatrician] that defendant inappropriately touched her—but he saw no signs of abuse. Plaintiff also advised Dr. [−] Ms. [−] Dr. [−] … and family friends of the allegations …”
Justice Ross noted that after a thorough investigation, the Children’s Protective Services investigators found the entire allegation process to be baseless. Ross explained “… by making such allegations, plaintiff needlessly subjected the child to an investigation by Child Protective Services, placing her own interests above those of the child.”
Described as an “an extraordinary supervising judge,” Justice Ross won numerous awards including a Memorial Tribute from the Nassau County Bar Association Matrimonial Law Committee. His findings of law are a veritable template for judges in the USA. In brief, this is what he did:
- He explicitly and in great detail explained the court’s jurisdiction in custody cases and the various mechanisms available for enforcement of the court’s orders in these matters.
- He explained in detail the court’s powers to maintain jurisdiction in post-judgment custody cases in contradiction to arguments of res judicata.
- He outlined statutes and cases that state “Visitation is a joint right of the noncustodial parent and of the child.”
- He outlined how a court must determine what is “in the best interests of the child” in custody cases; and laid out the standards in these cases.
- He cited with specificity court cases that have found that parental alienation is not in the best interests of the child and how it amounts to custodial interference; how it is a pernicious violation of court orders in these cases and a direct violation of the target parent’s rights.
- He explained the resultant court procedures in his jurisdiction and specifically pointed out how it is in the best interests of the child that there be a prompt evidentiary hearing to determine appropriate custody/visitation time and any remedial issues that may be necessary to insure that the court’s orders be followed and the target parent’s rights are restored.
- He explained what the appropriate procedure is for determining if criminal contempt charges are appropriate, where that court power derives from, what the burden of proof is, and how it is met.
- He explained how and why the defendant has reached his burden of proof.
- He delivered the factual findings with very specific details and specifically included his impressions and observations of the alienator plaintiff both during her own testimony and the testimony of the target parent. He included with painstaking detail many instances of the plaintiff alienator’s egregious behavior and the effects on both the target parent and the children.
- He explained exactly what remedies in civil contempt; criminal contempt; criminal sanction via the state’s law prohibiting custodial/visitation interference and remedies in tort for money damages.
- He summarized from precedent and the record before him reiterating the court’s role in custody hearings, specifically in cases of Parental Alienation, and again explained why and how the court maintains jurisdiction in the children’s best interests.
- Justice Ross concluded by setting up a hearing to determine Lauren Lippe’s responsibility for the hundreds of thousands of dollars in costs and attorney fees and then sentenced Mrs. Lippe to 12 days in jail.
Experience shows that environmental changes can be very effective in helping children overcome unreasonable negative attitudes (Clawar &Rivlin, 1991; Dunne & Hedrick, 1994; Gardner 2001a, 2001b; Rand et al., 2005; Warshak, 2010b). Experienced clinicians and those reporting on their qualitative research using case studies have reported on the benefits of changing custody or enforced parenting time in severe alienation cases (Clawar & Rivlin, 1991; Dunne & Hedrick, 1994; Gardner, 2001a; Lampel, 1996; Rand et al., 2005; Warshak, 2010b). For example, Clawar and Rivlin (1991) reported improved parent-child relationships in 400 cases where an increase in the child’s contact with the target parent was court ordered. Indeed, when they discussed the effectiveness of changes in living arrangements, Clawar and Rivlin (1991) reported, “Children may say, ‘I hate her. I’ll never speak with her if you make me go see her,’ ‘I’ll run away,’ or ‘I’ll kill myself if he comes to see me.’ However, in some cases, children were told to say these things by the programming and brainwashing parent…. It is not uncommon to see these threats disintegrate after court orders change.”
Warshak (2010b) argued that when judges make it clear to the children that the court expects them to work on repairing their damaged relationship with the target parent, “…that failure is not an option, that refusal to cooperate will not result in a custody award to the favored parent, and that the sooner the children heal their damaged relationship with the rejected parent, the sooner they will have contact with their favored parent” things tend to improve quickly. Today, there is general recognition that a reversal of custody may be warranted in severe cases (Drozd & Olesen, 2009; Gardner, 1998; Johnston & Goldman, 2010; Johnston, Roseby, & Kuehnle, 2009; Sullivan & Kelly, 2001; Warshak, 2010b). Bala et al. (2010) pointed out that a number of recent Canadian appellate decisions have affirmed a transfer of custody from an alienating parent. For example, in J. W. v. D. W., the Nova Scotia Court of Appeal affirmed a trial judge’s finding that the mother had “demonized” the father to the children and that they were emotionally abused. Describing another recent Canadian case, Bala et al. (2010) documented that in A. A. v. S. N. A., the trial judge recognized that he faced a “stark dilemma” in whether to leave the child with a “highly manipulative” and “intransigent” mother who would never permit her child to have any sort of relationship with her father. The other side of this “stark dilemma” was to transfer custody to the father, who had little contact with the child for over a year. Despite the finding of alienation, Justice Preston refused to award custody to the father due to the Justice’s concern that “the immediate effect of that change will be extremely traumatic.” Justice Preston wrote:
The probable future damage to M. by leaving her in her mother’s care must be balanced against the danger to her of forcible removal from the strongest parental connections she has … I conclude that the forcible removal of M. from her mother’s and her grandmother’s care has a high likelihood of failure, either because M. will psychologically buckle under the enormous strain or because she will successfully resist re-integration with her father.
In reversing this decision and awarding custody to the father, the British Columbia Court of Appeal observed:
the trial judge wrongly focused on the likely difficulties of a change in custody—which the only evidence on the subject indicates will be short- term and not ‘devastating’—and failed to give paramountcy to M.’s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years.
The Court of Appeals carefully explained that:
The obligation of the Court to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransigent parent who is ‘blind’ to her child’s interests … The status quo is so detrimental to M. that a change must be made in this case.
Understanding Lawyers and Judges
The competent custody evaluator must know her audience. A substantial body of research exists on the personality characteristics of attorneys and law students. Research informs that attorneys tend to be more logical in their decision-making than members of the general population (Daicoff, 1996). This same research compared attorneys to the general population and found that attorneys and law students tend to be uniformly less interested in people, in emotions, and in interpersonal concerns (Daicoff, 1996). Other researchers found that although many attorneys have good social skills, most show low interest in emotions or others’ feelings (Shneidman, 1984). Solkoff (1968) found that the lowest ranked law students tended to obtain higher humanitarian scores. In fact, altruistic concerns were a motivating factor for no more than 20% of entering law students (Anderson, Western, Boreham, 1973; Stevens, 1973; Hedegard, 1979).
In an extensive study of the personality types of law students, Miller (1967) reported that the personality type that is most prevalent in law school is typically “dependable and practical with a realistic respect for facts, who absorbs and remembers great numbers of facts and is able to cite cases to support his evaluations, and who emphasizes analysis, logic and decisiveness.” And the least common personality type in law school belongs to the type of person who is “concerned chiefly with people, who values harmonious human contacts, is friendly, tactful, sympathetic, and loyal, who is warmed by approval and bothered by indifference and who tends to idealize what he admires” (Id.).
It’s lawyers who become judges. What does research have to say about lawyers when they take the bench? Posner (2010) points out that politics, ideology, and strategic concerns infuse judicial decision-making. Commenting that the law is shot through with politics, Posner used Bayesian decision theory to explain that judges clearly possess preconceptions that influence their decision-making (Posner, 2010). Posner went on to comment that “judges are not moral or intellectual giants (alas) . . . They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work” (Id.). Researcher Laura Langer (2002) explained that judges are “. . . rational actors who pursue at least two goals: (1) translating their sincere preferences into public policy, and (2) retaining their seat on the bench.” The competent custody evaluator must recognize as Marjorie Silver (2004) explained, many judges fear being transformed into glorified social workers without any training.
As if this were not bad enough, recent analysis of judicial decision-making is chilling. Michigan trial court judge Donald E. Shelton graduated from the University of Michigan Law School and began his career in 1970 as a staff attorney for the U.S. Army Judge Advocate, in Germany. He then served as an attorney for the litigation division of the U.S. Army in Washington, D.C. and then as a small town mayor and trial lawyer. In 1990 he was elected to the trial court bench where he has served for twenty-four years. Shelton earned a master’s degree in criminology and criminal justice in 2007 and a Ph.D. in judicial studies in 2010. During his graduate study Shelton researched juror and judicial decision-making in court trials (Shelton, Kim, & Barak, 2006; Shelton, 2010; Shelton, 2012). In his 2012 analysis of juror and judicial decision-making, Shelton drew on the work of many commentators on science in the court room and quoted Faigman, Saks, Sanders, and Cheng (2013-2014) for the proposition that “…judicial decisions for the most part do not indicate that the judges, trial or appellate, weighed the scientific validity of the proffered evidence in any meaningful way” (Shelton, 2012 emphasis added).