High conflict custody litigation poses special challenges faced by no other form of litigation in this age of the junk concept of “Parental Alienation,” guided by its inventor, Richard Gardner, MD.
What makes the Gardner narrative a dangerous one to follow is the prescription for the capacity for one parent to be demonized in order to cover the ill deeds of a parent who has subjected a child to harm. The Foundation for Child Victims of the Family Courts has assisted with many situations in which a child has been subject to physical, emotional, sexual, and psychological harm at the hands of a parent.
The reasons behind such behavior involve extreme pathology on the part of the abusing parent.
If strangers engaged in such activity, it would be regarded as criminal and brought before a prosecutor. But in the context of custody litigation, any such accusation is viewed with suspicion. The court will often interpret abuse accusations as false statements geared to gain an advantage by one parent over another.
The Gardner theory of Parental Alienation evolved from his defense of multiple parents accused of abuse in the course of custody litigation. Gardner’s views of sexual abuse varied from the norm as to behavior that constitutes acceptable boundaries in parent-child sexual engagement. (See the article Richard Gardner in His Own Words.”)
The willingness to cast out the dark-side genesis of Gardner’s theories can be explained by the efficiency the theory introduced into the custody litigation process.
Gaslighting in family courts
Family courts tend to fail to be able to engage the type of psychological sophistication and in-depth analysis and evaluation to understand interactions beyond the superficial. The good/bad scenario involves denial of abuse, even unquestionable domestic violence, often described as “he said, she said” defenses, by the stable continuum of evidence presented in abuse situations.
The term “gaslighting” often applies, as the defense of the abuser attempts to discredit the word of both victim and protectors by saying that alleged events and behaviors did not occur, even that the subject child has been induced to provide a false narrative by the accusing parent.
Traumatized children are re-traumatized, their experiences evidenced by behavioral sequelae related to exposure to assault and abuse having been argued to have occurred as a result of false accusations by a spouse. Children’s own accounts of abuse and suffering are credited as false reports stemming from an alignment with a hostile parent in order to impugn an innocent spouse. Spurious arguments confuse fact and fiction, victim and perpetrator.
With a weaponized theory, a cottage industry has evolved in the family court system: evaluators, therapists, and attorneys who “diagnose” treat, investigate, and litigate. A black and white, clear-cut scenario of crimes against children is twisted out of all recognition to become one of “parental alienation”: one parent is creating a false narrative, while the other parent is as innocent as a lamb. The protective parent, who seeks to present evidence to protect a child, finds that family court has turned into an arena of blood sports, where the winners take the spoils. The accused departs the victor with the spoils, while the protective parent leaves childless, homeless and penniless.
In fighting the family court, you must be a vigilant watchdog
The fear and trembling that accompany confrontation with court appearances, wrangling with local court rules, local judicial rules, statutes, complaints, rules of evidence and so on, are fully reasonable, whether or not one has attorney representation. The responsibility of the Protective Parent to be fully informed about every aspect of their case is a critical element of which most litigants are unaware.
The thought that a litigant can place their case in the hands of an attorney without the rigorous oversight of that attorney and all the moving pieces of that case is sadly mistaken. The inner workings of cases, the personal assumptions, opinions, shared history of court actors have an impact on the course of handling evidence, witnesses, examination and even the presentation of the case narrative. The litigant needs to be fully familiar with the case strategy from beginning to end and as the case moves from moment to moment.
Whether litigants choose to be passive or assertive throughout the course of action can make all the difference in fighting the family courts. If you are unwilling to take “no” as the answer to many difficult, even “impossible” issues such as judicial recusal, filing civil suits in the midst of a trial, and the most challenging issues related to immunity and qualified immunity, then this can well make the difference in your achieving a successful outcome. .
When case settlement is not an option
The FCVFC often hears from our clients that their case is impossible to win. In one such situation, a parent was told that the result of an evaluation that recommended that three young children be transferred from the hands of a demonstrably Protective Parent into the hands of a demonstrably severely impaired parent. The Protective Parent was being accused by the evaluator as being the cause of all of the problems of the spouse who had been separated from the children over a period of years because of that person’s addictions. The Protective Parent was also blamed for the children’s estrangement, trauma, and distress which occasioned their resistance to engagement with the estranged parent.
A “pay to play” evaluator attempted to present a case for removal of children from the Protective Parent who was to be, perhaps, eventually, afforded supervised visitation. The client’s lawyer expressed that the judge would listen to the evaluator and there was no path to a different outcome.
The FCVFC had a different view of the case. In collaboration with the client, our attorney and support experts, confrontation of the independent evaluator resulted in the Judge’s removal of the court-appointed evaluator, based on bias and incompetence. The evaluator was removed by the judge as of mid-afternoon of the second day of trial, following cross-examination by an attorney who was well prepared to deal with the relevant content exposing the evaluator’s incompetence and bias. The case was placed on a ninety-day postponement, which does not threaten the custody of the children nor status of the Protective Parent.
Ongoing vigilance in the forensic evaluation and management of high conflict custody litigation is critical from the moment the case begins through final orders granting custody and parenting plans. Attorney oversight, understanding of the entire court process, evaluating the evaluator and the evaluation process, client court demeanor and interaction with court actors must be under micromanagement until a safe outcome for all vulnerable parties is secured.
