Parental Alienation Syndrome in Child Custody Cases

One concern many parents have is that the other parent is alienating their child from them, or that the child is suffering from Parental Alienation Syndrome (“PAS”).  Before going to far with this topic, understand that this is an extreme situation and does not apply to every case.  Many times a parent will vilify the other parent or a child will act out.  Those situations can still be acted upon and have an effect in a case without it being PAS.

If you know me, you know I try to always start with a definition -

Parental Alienation Syndrome:

The parental alienation syndrome (PAS) is a childhood disorder that arises almost exclusively in the context of child-custody disputes.  Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification.  It results from the combination of a programming parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.  

 See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xx.

This means PAS consists of two parts, (1) the child bad-mouthing the target parent without justification and (2) the alienating parent trying to program the child that the target parent is bad without justification.

Symptoms of PAS:

In addition to the above, PAS is defined by a number of symptoms evidenced by the child.  Those symptoms are:

  1. A campaign of denigration
  2. Weak, absurd, or frivolous rationalizations for the deprecation
  3. Lack of ambivalence
  4. The “independent-thinker” phenomenon
  5. Reflexive support of the alienating parent in the parental conflict
  6. Absence of guilt over cruelty to and/or exploitation of the alienated parent
  7. The presence of borrowed scenarios
  8. Spread of the animosity to the friends and/or extended family of the alienated parent

 See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xxv.

A couple of those symptoms are explained more fully below:

The first symptom, a campaign on denigration, is simply the child continuously discussing their hatred of the target parent or the imagined faults of the target parent, with weak or absurd reasons (second symptom) and lack of guild (sixth symptom).

Lack of ambivalence is the idea that one parent is all good while the other parent is all bad.

Independent thinker phenomenon is when the child refers to the alienating parent’s expressions or ideas as their own.  An example would be repeated what a parent said about the other, “Daddy doesn’t care about us,” and claiming it as their own.

Presence of borrowed scenarios is when a child incorporates speeches of a parent as reasons for hating a parent.  Typically this are obvious as the statements would never come from a child’s mouth, either because they do not understand the words or would not understand the context/situation.

Problems with PAS:

First, PAS is commonly seen as ‘junk science.’  This diagnosis is still in the early stages of development and it has yet to be seen if PAS will become accepted by the scientific community.  What this means in the legal world is that attorneys are going to have a difficult time getting testimony and opinion about PAS specifically into  evidence.  I say specifically because while courts will address the actions of parents and the situations described as symptoms above, the court may not want to put it in the context of PAS.

Second, many times there is some justification, no matter how limited, for a child’s behavior.  The child may not want to go to a parent’s house because there was a bad experience in the past, or they will have to miss out on an activity they would otherwise enjoy.

Third, a parent may claim PAS only to flip the focus of the case from them to the other parent.  Courts are aware of this behavior, view PAS with scrutiny and often will re-focus on the parent alleging PAS if the court believes the claim unfounded.

Conclusion:

Alleging PAS, while certainly an option, should only be done with extreme caution.  All of the underlying actions a parent takes that make up the allegation can be addressed without alleging PAS.  Many courts view PAS with skepticism and the alleging party may lose some credibility before even stepping into the courtroom.  With that in mind, and the relative newness of this diagnosis, parties should be cautious in trying to assert it in a child custody matter.  Keep in mind that there are many roads to the same destination or goal, and some are better than others.

Challenging Child Support by Challenging Paternity

When parents divorce, it is only proper that the parents still support their children.  In the case of women, there are very few circumstances where there is a question as to whether she is the biological Mother.  However, men don’t have it that easy, and some men accept children, and the obligation to support them, only to find out later that the child is not their offspring.

How to challenge a child support order when the child is not yours?

Thanks to a new law, men can challenge their child support order by challenging the biological relationship with the child (think DNA testing).  There are some restrictions.

For all orders prior September 1, 2011, the man must have believed at the time of the order or signing of the acknowledgment of paternity that he was the father due to misrepresentations made to him.  If the order was prior September 1, 2011, he has until September 1, 2012, to challenge the order in a court of law.

For orders after September 1, 2011, the man must have believed at the time of the order that his was the father due to misrepresentations made to him and must file to terminate the relationship within one year of finding facts that indicate he is not the biological father.

Under either route, timing is important.  If you wait too long to challenge the order, you waive the objection.

Trying to find those text messages?

I recently had someone call to ask about getting text messages from a phone company.  This comes up often with regard to allegations of adultery, and I found the below article.

http://www.divorce360.com/divorce-articles/cheating/catching/checking-text-messages.aspx?artid=1071

The gist is that some companies keep the actual data (text) sent, but most only keep the information regarding who sent and who received those text messages.

Don’t let this stress you!  Most of the time, parties are only looking for this information to prove adultery, which can be done with other tools and methods.  Once adultery is established by evidence, the party has done all they need to do to have the Judge take that action into consideration.  Those added texts probably will not have that much more effect than the evidence already presented.

Alimony (really Court-Ordered Spousal Maintenance) Changes on the Horizon

Any blog about Texas “alimony” should first state that in Texas, courts do not order “alimony,” courts order “spousal-maintenance.”  Alimony, or post-divorce spousal payments, must be agreed to by the parties while the court may order spousal-maintenance in some situations.

In the past, Texas required a spouse to either have been married for 10 years or have suffered domestic violence within the past two years to even be considered a candidate for spousal maintenance.  Even then, maintenance was limited to three years and the lesser of $2,500.00 or 20% of the payor’s gross income.

The legislature recently changed this by re-writing maintenance section of the Texas Family Code.  These changes take effect September 1, 2011, and hit three main areas, the 10-year bar language, the duration and the amount of maintenance.

10-Year Bar

The legislature saw fit to change the language in the 10-year requirement to state the court may order maintenance if a spouse is unable to provide for their minimum reasonable needs due to an incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  This is slightly different wording than used before and may possibly lead to a more lenient view of when spousal maintenance is appropriate.

Duration of Maintenance

  1. Maintenance can now be ordered for up to five years if the marriage lasted less than 10 years and the payee was the victim of domestic violence within the past two years, has an  incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  The five-year maximum will also apply to a marriage that lasted more than 10 years but less than 20 years.
  2. If the marriage lasted between 20 – 30 years, the court can order maintenance up to 7 years.
  3. Finally, if the marriage lasted 30 years or more, the court can order up to 10 years of maintenance.

Amount of Maintenance

  1. The legislature also saw fit to change the maximum maintenance a court could order.  Now the amount is the lesser of $5,000.00 or 20 % of the payor’s monthly income.
Other Considerations
Attorneys and parties should keep in mind that the factors determining maintenance still apply and can be used by either side in helping the court determine if and how much maintenance is appropriate.  This includes the amount of community property that the spouses will have post divorce and if that property is enough to provide for their minimum reasonable needs with the income each will likely have.  Finally, the court retains jurisdiction to review the maintenance order and a party can file to have that order reviewed upon proper showing of a material and substantial change in circumstances of one of the parties or a child of the marriage.
Follow

Get every new post delivered to your Inbox.

Join 172 other followers

%d bloggers like this: