Divorce and the injustice to children caused by parental alienation

April 1st, 2019

‘Parental alienation is a set of processes and behaviours conducted and enacted by a parent to deliberately and knowingly damage or sever the relationship between a child and another parent with whom the child enjoyed a prior loving relationship’ (‘Parental alienation can be overcome’ 2018 (Aug) DR 8).

Parental alienation syndrome is a controversial phenomenon associated with high-conflict divorce cases and since its proposal by Richard A Gardner in 1985, few researchers, academics and psychologists contested its existence in some form when encountering high-conflict divorce cases.

It brings us to the question of whether the South African legal system understands or underwrites parental alienation.

Looking at South African divorce statistics where seven out of ten children are from a divorce-household and in some of those households where parental alienation aspects are present, one needs to be alert to the consequences that may arise in the community and in the lives of these young people in the next 20 years. Knowing that the nature, duration and level of parental conflict in divorce can have a lasting impact on all family members.

When parents, involved in divorce proceedings, approach mediators, legal practitioners or mental health professionals, we should try to educate them and negotiate or resolve their parenting and contact difficulties with constructive assistance, bringing an awareness and knowledge into the problem of parental alienation, especially where parents choose not to communicate, but focus rather on their anger, fears, pain, and resentment.

It is important to note the difference between ‘parental alienation’ and ‘parental estrangement’.

We have read the definition of ‘parental alienation’ in the paragraph above. Parental estrangement on the other hand results from one parent behaving badly towards their child/children, and the behaviour of the parent causes the child to refuse contact with that parent.

Situations frequently seen in parental alienation cases

  • The belief held by the alienating parent that the child/children do not really need the other ‘targeted’ parent in their life.
  • Where alienation is in play, one parents views the alienated parent’s attempts to contact or visit the child/children as harassment.
  • Gatekeeping in the form of not passing on information, telephone calls or text messages from the alienated parent to the child/children.
  • Not sharing information about school, functions or medical information with the alienated parent.
  • Frequently denigrating the alienated parent in front of the child/children.
  • The child/children are emotionally and psychologically rewarded for siding with the alienated parent, this can be very subtle or prominent.
  • The child/children are often rewarded emotionally for bringing back their own observations and information about the parenting flaws of the alienated parent after visits.

What are the consequences of parental alienation? Particularly active, intentional alienation

Children do not have adult logic, and it is often difficult to explain to them why they are scared, sad, or confused.

The message that a child/children may hear where parental alienation is active, according to writer and researcher Amy JL Baker; may sound like: ‘(1) I am the only parent who loves you and you need me to feel good about yourself; (2) the other parent is dangerous and unavailable; and  (3) pursuing a relationship with that parent jeopardizes your relationship with me’ (www.psychologytoday.com, accessed 28-2-2019).

Effect on children

In the article ‘Understanding and evaluating alienation in high-conflict custody cases’, Dr Philip Stahl states: ‘When children are caught up in the midst of this conflict and become alienated, the emotional response can be devastating to the child’s development. The degree of damage to the child’s psyche will vary depending on the intensity of the alienation and the age and vulnerability of the child. … In addition to this, alienated children are at risk of developing disturbances in many of their relationships. They often become manipulative and feel overly powerful. They may be resistant to authority and act out at school. … As they get older, there is a strong likelihood that they will develop a disturbance in their growing identity’ (P Stahl ‘Understanding and evaluating alienation in high-conflict custody cases’ (2003) Wisconsin Journal of Family Law 20).

In the thesis titled: Exploring the lived experiences of psychologists working with Parental Alienation Syndrome (unpublished MA thesis, North-West University, 2014), Marilié Viljoen states: ‘The long-term effects of [parental alienation syndrome] and other divorce-related syndromes on children could include distorted parental image and the distorted integration of parental roles which can lead to a negative impact on personality formation and functioning. Low self-esteem, self-hatred and feelings of betrayal arise in children as they develop a lack of ambivalence towards both parents, one of whom is only “good” and the other only “bad”. According to Reay (2007) as many as 70% of children involved in caregiver conflict where [parental alienation syndrome] is involved are vulnerable to develop depression. Other possible long-term effects of [parental alienation syndrome]  also include drugs and alcohol abuse, lack of trust in intimate relationships and a higher divorce rate later in life’.

In addition, we further see how parents and legal practitioners use the legal structures to remove a parent from a child’s life by means of ex parte applications to change primary residence orders in defended court cases. The adversarial system becomes one of the ‘winner-take-all’, forcing parents to denigrate each other to prove that they are the better parent and worthy of being granted primary residence status.

A case dealing with parental alienation was T v D (GP) (unreported case no 64290/14, 20-3-2015) (Mabuse J), where the court had to deal with an application for contempt of a court order, which concerned disputes about a contact the respondent was withholding from the applicant, after a final divorce.

In that matter, Mabuse J presided over the application and ruled at para 16: ‘The respondent’s aforementioned disobedience must, in the circumstances of this particular case, be regarded as wilful or intentional and should be treated as a contempt.’

The order for committal was for a period of 30 days suspended for five years, on condition that the respondent complied during the period of suspension with the order granted by the Kempton Park Regional Court on 30 September 2013.

The respondent was ordered to pay the costs of the application.

In committal proceedings, where a person is required by an order to do or abstain from doing an act, but refuses or neglects to do it within the time granted, the court may make an order for committal on application.

Parental alienation is frequently seen in high conflict divorce proceedings or separations where the residency of the children is in dispute and the financial impact of maintenance comes into play.

In another matter R v R (GJ) (unreported case no 2016/00404, 4-2-2016) where accusations of parental alienation and change of residence were dealt with, the judge commented in his judgment at para 34: ‘I have already expressed my disapproval of the respondent’s contemptuous conduct, lack of respect for the rule of law, and complete disregard for the applicant’s rights and standing as a parent.’

Many questions and discussions were raised at the Parental Alienation Workshop held in June 2018 (see ‘Parental alienation can be overcome’ (op cit)).

  • What are some of the corrective measures that the magistrate or judge will order when early alienation is noted?
  • What route should be taken when inexperienced or uninformed professionals are involved in the case – alienating parents can represent themselves as the perfect parent and their relationships with their children are usually perfect.
  • Decisions regarding children and residency should not be heard via ex-parte
  • Why do magistrates and judges seem reluctant with older children (under the influence/web of alienation) to order parent-child reunification.
  • If there is a relatively easy process to sidestep early alienation, would the courts follow it?
  • The inability of the legal system, for various reasons, over-load and to take corrective measures.
  • The legal system not being knowledgeable about how the system can be abused to ‘get the children’ and following thereon an inability to take corrective measures because a stalemate has been reached.
  • One example includes an ex-parte application to remove the children from the former family home, while divorce proceedings are still pending and setting a new status to the residence of the child/children as soon as possible.

Ways to combat parental alienation

We need effective ways to combat parental alienation via a multi-faceted approach.

  • Suggestion A

Professional recognition of parental alienation as a serious form of child abuse.

  • Suggestion B

Suggestions by the South African Law Reform Commission to underwrite some fundamental reform of the family law system.

In ‘Suggestions for a divorce process truly in the best interests of the children (1)’ 2018 81.1 THRHR 48, Professor De Jong, writes that a new process must be conducive to conciliation and problem-solving and less confrontational. It specifically needs to address the heightened risk factors and the other problems inherent in the current court process and incorporate the ‘voice of the child in a child-friendly manner’. In this regard, there have been calls for a simplified, briefer low-cost process for making decisions in difficult cases, and high-conflict family cases which cannot be resolved through pre-court processes.

  • Suggestion C

More use of mediation and encouraging co-parenting, parallel parenting and parenting plans.

– Mediation takes high-conflict out of the adversarial arena and shifts the focus on problem-solving.

– Parents creating their own parenting plans are more committed to execute it.

– In the mediation process the voice of the child/children will be heard.

– Children will be informed of decisions affecting their lives.

– Children and parents will have the certainty of clear contact set out in a parenting plan.

– Conflict can be resolved by mediation and approaching the court will not be the first point of departure.

– Parents who parent their children at different times, but who have little or no direct interaction are engaged in parallel parenting. This occurs when they engage in the same tasks, if they have little or no contact with one another.

– Where a lot of parenting plans focus on co-parenting, and the parents communicate and work with one another to raise their children in a cooperative fashion, high-conflict families sometimes do not succeed at this task, as each parent usually thinks their style is the only way to parent and is often very critical of the other.

– Very strict parenting plans with parental coordinators are used to assist in these instances.

  • Suggestion D

Provision of effective treatment programmes and services by trained service providers, including reunification services and prevention programmes.

The provision of effective treatment services by trained service providers, including reunification services and prevention programmes, is vital to restoring the relationship between children and parent exposed to parental alienation.

  • Suggestion E

Effective legal enforcement of parenting plans and court orders, and legal consequences for parents who withhold children from the other parent.

Legal sanctions must include meaningful consequences for failure to comply with parenting plans and court orders.  There is a need to ensure compliance, as well as consequences for engaging in parental alienating behaviours.

Finally understanding that parental alienation in divorce can have a lasting impact on all family members, should compel judges and magistrates to be ever vigilant in preventing its growth and continuation.

Marici Corneli BIuris (UP) is the Director at Family Assist and a Mediator at Mediationworx in Pretoria.

This article was first published in De Rebus in 2019 (April) DR 33.

South African COVID-19 Coronavirus. Access the latest information on: www.sacoronavirus.co.za