 |
| Suzanne Zaccour |
Parental alienation theory (which hypothesizes that when a child rejects their father, it’s due to the mother’s actions or inactions) causes unparalleled harm to families. Interventions ordered in the name of preventing alienation include forcing children and teenagers to live with a violent father, sometimes completely cutting them off from their mother and primary caregiver (watch a powerful example here). To address these traumatic interventions, the UN’s “Special Rapporteur on violence against women and girls, its causes and consequences” recommends banning the use of parental alienation and other pseudo-concepts in family law.
In rejecting the ‘one-size-fits-all,’ we are in danger of adopting the ‘one-size-fits-none’
Why can’t we let judges decide whether to use “parental alienation”? Discretion can be useful in family law, but it “involves a considerable amount of economically, intellectually and emotionally demanding improvisation, by the judges, lawyers and parties” (Miles, Joanna. 2017. “Should the Regime Be Discretionary or Rules-Based?” In Law and Policy in Modern Family Finance, edited by Jessica Palmer, Nicola Peart, Margaret Briggs, and Mark Henaghan, 272. Intersentia). By contrast, clear rules reduce bias as they “help us decide large numbers of cases in an efficient, consistent, and so predictable manner” (Miles 2017, 266). This is why we have chosen to adopt clear rules in areas such as property division and spousal support.
A partial solution to parental alienation accusations would be to the detriment of women, as discretion doesn’t affect men and women equally. Uncertainty in the law penalizes the more risk-averse parent, most often the mother, who is often poorer and more likely to be the victim of domestic violence. That uncertainty penalizes women can be seen in the way violent men are using the threat of parental alienation accusations to get women to stay with them, stay quiet or stay away from support and other claims (Lapierre, Simon, and Isabelle Côté. 2016. “Abused Women and the Threat of Parental Alienation: Shelter Workers’ Perspectives.” Children and Youth Services Review 65 (June): 120–26). Threatening accusations of parental alienation is a new form of coercive control.
What is so scary about banning a harmful concept?
Some commentators fear that a complete ban on parental alienation accusations will prevent individualized justice, but the opposite is true. Parenting time decisions are supposed to be guided by numerous factors, including family violence, the history of care and the child’s wishes. Parental alienation theory often leads judges to lose sight of these factors — or worse, to penalize the mother for having experienced family violence, being the primary caretaker and having a closer bond with the child.
Often, the court’s focus is almost exclusively placed on forcing a father-child relationship, with little to no consideration given to the child’s needs and circumstances beyond their preference for their mother. Even prominent parental alienation researchers recognize this approach as unsound (Johnston, Janet R., and Joan B. Kelly. 2004. “Commentary on Walker, Brantley, and Rigsbee’s (2004) ‘A Critical Analysis of Parental Alienation Syndrome and Its Admissibility in the Family Court.’” Journal of Child Custody 1 (4): 87)
Removing biased or stereotypical reasoning is beneficial to the truth-finding and individualized justice process. To achieve justice, bans are legitimate legal tools that can be used when the risk of harm is great (for example, a full ban on sex with children rather than an individualized assessment of their maturity) and when a concept is unfounded and discriminatory (for example, a full ban on using myths and stereotypes, or the idea of a husband’s immunity, to resolve sexual assault cases). A ban on parental alienation accusations meets these criteria.
Legal decisions should be based on … the law
“What would you do in a case where …” is the start of many questions we get about our campaign. What if the children are young? What if the mother lied? What if it’s the mother who is rejected?
“What if” scenarios are a common refrain, but these one-sentence questions are not answerable. This is because the law requires courts to conduct a full evaluation of the child’s needs and the parents’ abilities, assess the family context and make an order that prioritizes the child’s safety and well-being. That’s the destination we want: an individualized, unbiased and child-centric assessment. If one thing is clear, it’s that parental alienation will not get us there.
This is part one of a two-part series. Part two: Silencing the abused: How parental alienation accusations penalize victims.
Suzanne Zaccour is the director of legal affairs for the National Association of Women and the Law. She is also a family law and domestic violence researcher with a doctoral degree in law from Oxford University. She is leading NAWL’s campaign to ban parental alienation accusations from being used in family law cases.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.