When a family unit breaks apart or deteriorates over time, children often suffer as a result. Emotions can run high between parents in a divided family with children feeling torn in their emotions to not disappoint either parent by choosing sides. Most parents would say with confidence their child is the most important person in their life, yet many lose sight of that fact during a divorce or break-up of a relationship. The pain of rejection, betrayal or failure can consume a parent and cause backlash towards the other parent—through their child.
WHAT IS ALIENATION?
Parent alienation is a prevalent theme in many family law cases. Alienation by one parent can be an intentional, conscious choice and a tool used cause the other parent pain. Alienation can also result without intention.
Alienation of a child is a form of manipulation. A parent will try to manipulate the love and affection of their child through guilt, subtle comments and even purposeful, disparaging remarks about the other parent.
CAN A PARENT BE DETERRED FROM ENGAGING IN ALIENATING CONDUCT?
Child custody orders can contain provisions to deter one parent (or both) from speaking negatively about the other parent in their child’s presence.
For example, the court can make the following orders to deter one parent from alienating the other parent:
1. “The parties will not make or allow others to make negative comments about each other or about their past or present relationships, family, or friends within hearing distance of the children.”
2. “Other than age-appropriate discussion of the parenting plan and the children’s role in mediation or other court proceedings, the parties will not discuss with the children any court proceedings relating to custody or visitation (parenting time).”
3. “The parties will communicate directly with each other on matters concerning the children and may not use the children as messengers between them.”
The above three examples are found on State Judicial Council form number FL-341(D) titled: Additional Provisions – Physical Custody Attachment.
SIGNS OF PARENTAL ALIENATION
Signs of parental alienation, although not an all-encompassing list, are as follows:
1. A child’s withdrawal emotionally from a parent.
2. A child’s parroting of the negative comments spoken by one parent about the other.
3. A child being overly protective of a parent.
4. A child’s lack of desire to spend time with a parent.
5. A child’s separation anxiety at custodial exchanges.
6. A child’s inquiry about matters related to the court case and details they would not be privy to unless heard from a parent.
7. A child’s refusal to engage in parenting time or activities with a parent.
The above indicators are common in family law cases where there is parental alienation (but of course can result from other causes as well).
THE RULE OF HEARSAY UNDER CALIFORNIA LAW
From an evidentiary perspective, you must consider how to get the information about parental alienation to the judge. When you file a motion called a “Request for Order” to address custody issues (either preliminary orders or a modification of current orders) you can declare, under penalty of perjury, the details you want to share with the judge, but in doing so you may draw from the opposing party (or their attorney) an evidentiary objection based on the “hearsay rule”.
“Hearsay” is defined by California Evidence Code section 1200 as follows:
(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
(b) Except as provided by law, hearsay evidence is inadmissible.
(c) This section shall be known and may be cited as the hearsay rule.
Translation: If you want to share with the judge the details of what your child told you, a declaration alone will likely not be sufficient.
APPOINTMENT OF MINOR’S COUNSEL FOR YOUR CHILD
A tool that can be used for the purpose of addressing parental alienation (and other concerns related to your child) and additionally getting the details to the judge for consideration, is something called “minor’s counsel”. Minor children are allowed to testify in a family law proceeding only under very limited circumstances and it is not common at all. Due to this reality, the judge can choose to appoint an attorney for your child (called “minor’s counsel”) to interview your child about your child’s concerns. If minor’s counsel is appointed, the attorney is for your child only and not either parent. Minor’s counsel is appointed by the court to protect the best interest of your child.
California Rules of Court, Rule 5.240 deals with appointment of counsel to represent a child in family law proceedings.
CHILD CUSTODY EVALUATIONS
Another mechanism used to address parental alienation is a child custody evaluation. California Rules of Court, Rule 5.220 deals with court-ordered child custody evaluations. The rule states, in pertinent part, the following:
Purpose: “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.”
A custody evaluation provides the court with an overall assessment of the family dynamics, each parent’s ability to meet their children’s needs as well as a recommended parenting schedule that is in the children’s best interest based on the assessment.
The process of a custody evaluation includes, but is not limited to, interviews of each parent and their children by the evaluator, observations of the parents and children together, review of the case file and interview with collateral contacts (e.g., extended family, school personnel, medical providers, etc.).
Parental alienation is serious and can have a lasting impact on the parent-child relationship if not addressed promptly and properly through the court process.
Consulting with an attorney about the options of minor’s counsel and a child custody evaluation will help ease your mind about the process and arm you with information necessary to prepare yourself for what lies ahead.
Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.