Thursday, December 20, 2012
This is the first of four weekly posts regarding the four criteria which are present in cases were Parental Alienation is present. These posts are derived from an article that was published in the Florida Bar Journal in 1999. Since that time, we have learned quite a bit, and it seemed fitting to update those original thoughts. The first criterion that inhabits virtually all parental alienation cases is Access and Visitation Blocking. I believe the most important thing to understand about this criterion is that it occupies a vast continuum os possibilities. On the most extreme end would be the overt and purposeful blocking of access to one’s children by what will end up being the alienating parent. This extreme and unsubtle version of this criterion would be that alienating parent refusing to deliver or produce the children when the allotted access time occurs. Perhaps surprisingly, this extreme expression of this kind of access blocking is more the exception than the rule, since it is easy to spot and confront. If a court order states that child A will be delivered to the non-custodial parent on say Friday at 3:00 PM, and the child is not delivered and no warning or reason is given, that alienating and offending parent is placing them self in a position to be chastised by the court. While this does occur on occasion, it is my experience that it is rather rare. Most alienating parents are more savvy than this. We must be reminded that the Family Law system throughout the land is biased towards the protection of children, which it should be. Children should and must be shielded from abuse and danger. It is important to understand that this default setting of protection does in fact constitute a bias. What this means is that even the most subtle suggestion that a child would be better off not seeing that (targeted) parent tends to be absorbed by this bias. The legal phrase “out of an abundance of caution” is often heard during these moments. In other words, out of caution for making certain that the child in question is not in danger, the access time might well be at least postponed, if not cancelled all together, due to this bias. However, as we know in the case of parental alienation, it is precisely this bias that is manipulated and exploited. In other words, even when there is no articulated (false) allegation as to why a child should not see that other parent, the bias to protect that child from danger very often jumps into the thinking of the court, which causes the court to rarely act quickly and decisively to confront a violation of its own order. Therefore we more often than not find that the access and visitation blocking represented by this criterion - implicitly clothed in some suggestion that the child is better off not having their contact time with that parent - passes muster with the court. “There must be some reason this child did not want to see that parent” is a phrase that hovers over these incidents, which causes the court to “lean back” out of caution, rather than “lean forward” in a confrontational posture. This caution and hesitation is the very ghost of this bias to protect. It simply is the default setting, so much so that little reason must be given as to why the court’s order was not followed. I stress this point so much here because I believe that the bias to protect - again, legitimate and necessary as it is - constitutes a powerful undertow that can easily wash a parent’s time with their child out to sea, so to speak. Therefore, the alienating parents task is easy. Even the hint or suggestion of displeasure or danger tips the bias over the edge. And it is this pietre dish of bias to protect, where the bacterium of alienation can grow both quickly and easily. The alienating parent’s task is easy. The playing field is not level. It is slanted in favor of the alienating parent when alienation is present. We must simply recognize this if it is to be overcome. So what forms of this access and visitation blocking might we see? The most extreme and unsubtle is noted above, but the more subtle yet still impacting must also be identified. In today’s hyper communicative environment, replete with social media, text messaging, Facebook, Twitter, email and telephone, all of these media are subject to the expression of this criterion. When it comes to social media, we might find that a parent is “unfriended” or perhaps an alternate identify is created for purposes of cutting off communication with that parent. In the case of the other digital media, we see alternate email addresses being created, and alternate cell phone accounts being opened. In the case of telephonic communication, we might see telephone calls not being returned or voicemail messages not being played. Ironically perhaps, since we now have so many more communicative media available, they all represent opportunities to show to the court the presence of this criterion. I therefore make the strong recommendation that logs of calls, messages and all other data exposing this criterion be created and maintained. While it is unrealistic to expect that any trier of fact (Judge) is going to listen to many or any of these messages, the effect of having abundant documentation that carries the theme of access and visitation blocking, is significant. Moving down the scale of subtly, one of the more common expressions of this criterion is that of the alienating parent scheduling a child for activities that occupy the time that the child is to see the targeted parent. This has the familiar theme of thereby causing the targeted parent to be in a quandary as to what to do. Should he or she insist on disallowing the child to participate in the activity in favor of contact, or should he or she alter their activities to attend the activity with the child, or should he or she simply allow the activity to occur and forgo contact? There are no pat answers to these questions as each set of circumstances must be assessed and weighed individually. However what is clear is that this quandary as to what to do may be presented to the court as having been created by the actions of the alienating parent. The alienating parent must be shown to be the puppeteer who manipulates the child to be in the middle, and to act as their agent, and examples of using activities to block access can be a fertile ground to make this argument. In my experience, when the court begins to understand the pattern of one (alienating) parent setting up circumstance after circumstance wherein this quandary occurs, the court begins to rule in a more productive direction. Until that is made clear however, the court most often fails to act in a curative direction, if it acts at all. As with my other posts, I invite comment and suggestion. I hope that this discussion helps.