A. Education
In the ideal cooperative divorce, there is little or no alienation occurring.
Parents recognize the difference between their own needs and the needs of their
children. They fully believe that their children have needed both parents throughout
the marriage and will continue to need them after the divorce. Each parent values
the role that the other parent can play in the lives of the children and the different
interests and talents the other has to offer the children. There is no motivation
for alienation because of the value attributed to the other parent.
This ideal is infrequently realized in real life because divorce is such an intense
change of role, life stage and life style for almost all who go through it.
Participants need as much education, support and information as possible to help mitigate
the harms that result from high conflict divorce.
Certain counties, court systems and other governmental entities are requiring all
parents of children involved in a divorce to attend an educational program designed to
help them understand the impact of the divorce process on themselves and their children
and to recognize the value to children of having both parents involved. The parents
are educated as to the typical stages in divorce and child development and the impact they
can anticipate their divorce having on their children. The studies of the long term
effects of divorce and the usual problems that occur are discussed. These programs
are designed to be preventative of the kinds of problems that commonly arise when parents
do not understand the psychological and emotional consequences their divorce has upon
themselves and their children.[7]
Other states require mandatory mediation prior to a court trial as a way of avoiding
litigation. Mediation advocates believe that mediation is more successful than the
courts at avoiding future litigation.[8]
While there have been no studies as to the effectiveness of these programs in
preventing or ameliorating alienation, in one such program the participants themselves
have reported great satisfaction with the program and have recommended that it be
expanded.[9]
B. Attorneys
Attorneys and therapists are the front line professionals in most custody
battles. They, too, have an obligation to educate their clients that divorce
involves anger, rage, upset, distress, loyalty binds, and kids and parents who manipulate
each other in crisis. The clients must be helped to understand the normality of
these themes and to learn the strategies for controlling them and outgrowing them.
Alternatives to intense battles must be explored.
It is the duty of the attorney to advocate for her client. Good representation
will include assessing the family system clearly from the client's point of view, and to
advocate for that client's interests zealously. However, we believe that such
zealous advocacy must occur in the context of the client's long term interests as a member
of a restructuring family system. Whatever the outcome of the immediate litigation,
the client will remain in the family system with contact and relationship with all other
members of the family system for the rest of his or her life. Long after the lawyers
are gone, the client will live with the effects of the positions taken and the statements
made in litigation. The client may later regret the vitriol and the permanency of
the damage done by a high conflict divorce.
It is the attorney's job to help the client through the immediacy of the pain and the
rage and to help the client see the long term view of involved family relations.
Attorneys must also be acutely cognizant of the divorce impasse system itself and the
important part they play in it. Maligning the other spouse, requiring the client to
have no further contact with the spouse, prohibiting any temporary agreements or a
temporary separation can interfere with a real resolution of the conflict. Zealous
advocacy is a poor excuse for actually damaging a client's long term familial
relations.
Alienation cases present the greatest difficulty for attorneys. In the advocacy
role, an attorney is bound to allow the client to define the goal of the representation
and to advance that position zealously.[10] An
attorney is also bound not to bring or defend frivolous actions.[11] We believe that actions harmful to children could
fall under that prohibition.[12]
If alienation is in progress, accepting at face value all derogatory comments about the
opposing party will ill serve both the client and the attorney, as the client's judgment
is emotionally tainted. It is incumbent on the attorney to sufficiently explore with
the client his motivation and the reality basis of his beliefs before litigation is
undertaken. Careful and thoughtful exploration with the client about the good times
in the marriage and the positive parenting traits of the other side will give the attorney
much information about both parties, and will tell the attorney just how balanced a view
the client holds.
We believe that under no circumstances should an attorney encourage a client to gain
information about the opposing party from a child. Nor should an attorney interview
a child even if the child is unrepresented.
[13]
The willingness of a client to directly involve a child in the litigation should be a red
flag that the parent may well be using a child to further her own agenda, even if the
child is apparently acquiescent.
It is crucial to note, however, that we are describing cases where alienation exists,
and other forms of abuse, such as physical or sexual abuse, do not. If abuse is
honestly suspected, safety of the spouse or children becomes paramount and full evaluation
by a competent professional is a necessity.
C. Courts
Courts must recognize the initial seeds of alienation and seek
information about family structure to examine the degree of risk in the
family: Are the adults using or manipulating the children in furtherance of their
own emotional needs? Are the children vulnerable to alienation?
All children can be enlisted into the battle, but, generally speaking, the children who
are most vulnerable may be overly dependent, fearful and passive. These children may
express guilt feelings about their parents' divorce, identify with or play the rescuer of
the alienating parent, assume caretaking roles of a parent, and/or feel conditionally
loved. The more vulnerable children pick up and resonate with the parental feelings.
Generally, the children will have little insight into their situation.
The factors that identify families where alienation is less likely are: abundant
positive contact between both parents and the children; sibling groups who all have good
relations with both parents; good relations of the children with family and friends of
both parents; free communication to the child by others of the good qualities of both
parents; lack of defensiveness on the part of each parent as to the emotions, statements
and criticisms of the other; ability of each parent to discuss schedules and parenting
concerns with the other parent; ability of each parent to accommodate the schedules and
desires of the other.
Many high conflict families view the court as determining not only custody and
visitation, but also making judgments about the right and wrong, good and bad
parenting. Court is seen as a place where one person is judged to be fit, and
the other unfit. The court can help ameliorate this unfortunate scenario by making
explicit the legal and pragmatic grounds for a decision. If appropriate, the court
can declare neutrality on personal and moral issues that do not expose a child to harm.
Compassionate communication that does not further the anger, loss, shame and humiliation
in this public forum can be immensely healing.
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