Ethical Issues Arising in A Parental Alienation Case

PASG LEGAL COLUM JULY 2018

Targeted parents, and those advising them, need to be cognizant of the high base rate/frequent occurrence of ethical issues relating to various participants in the case in order to ensure a successful outcome.

Errors, through inadvertence or misinformation or lack of competence and experience or ethical breaches can have a material impact on the result of the case. Ethical violations including lack of competence arise on the part of therapists, custody evaluators, child protection workers, schools, activity providers, family/children’s doctors, dentists and other medical providers, children’s counsel and guardians and extended family members and friends [tribal warfare].

Ethical issues are prevalent in PA cases because PA is counterintuitive, generally misunderstood and there is a lack of training and centralized accessible experience for the various third parties involved with these families.

The legal response is, first, to be cognizant of these typical ethical/competency errors and to spot them as they are beginning to occur. Secondly, to intervene by communication and by escalation internally within the particular third-party organization. Most have supervision and internal escalation protocols and this can often produce corrected behavior.

Thereafter, if necessary, counsel can bring a proceeding for relief within the case or as an additional procedure. Complaints to supervising bodies and governmental authorities can also be considered. The latter tend to take too long and are not a practical remedy in the moment.

With respect to counsel for the favored parent, professional standards provide only weak guidance in terms of departures from the strictly adversarial role of the counsel in a custody litigation system. . Of course, mis-representing established facts to the Court or raising issues or narratives that are prohibited res-judicata/issue estoppel before another Judge in the hopes of getting a different answer are ethical breaches. Any statements which could be directly or indirectly undermining of the necessity to comply with current Court Orders would also constitute an ethical violation.

Unfortunately, aligned parents tend to terminate counsel who push back in the best interests of children.

Children’s counsel must stay “in-bounds” the different rules and mandates and restrain their assertions and submissions to that appropriate to their role. If it is a simple advocacy role, best interest arguments should not be asserted. If it is a mere “voice of the child” roll there is nonetheless an obligation not to make evaluative judgements and to bring any concerns about lack of independence of those views to the Court’s attention.

Common issues of concern in the helping professions include bias, transference, errors of logical reasoning, dual role prohibition breaches [such as being doctor for parent and children, a marriage counsellor who subsequently becomes one party’s therapist or an assessor who then purports to provide therapy or parental coordination services or vice versa]. In addition, mental health practitioners need to avoid deliberately or inadvertently becoming an advocate for one of the parties and taking on assignments that are out of their specific experience/expertise. PA and related matters such as false allegations of sexual abuse or physical abuse do require specialized expertise and experience and such professionals should be chosen carefully and avoid taking on assignments that they are not qualified for.

Therapists and custody evaluators must be cognizant of all professional standards that apply to their designation, the state-of-the-art science in conducting custody evaluations and therapeutic services for families in crisis. Professional Standards may require specialized training and experience to deal with this “special population”.

Therapists and custody evaluators need to understand procedural fairness including proper communications about what documents and material provided to them they are going to read and why and which third-party collaterals they are requested to interview they are going to speak with and why. They need to maintain a perception and reality of independence at all times.

Therapists need to understand their role and whether they are engaged in a directive manner to fix a broken family system or merely to provide typical therapy. They must understand how the “therapeutic alliance” would taint their services that are meant to be directive or to produce a result and they must be cognizant of the need to resign under professional standards if their services are not being effective. The scenario of a therapist causing perpetual delay and stagnation in the family system is an unfortunate occurrence in a typical PA case. Therapists must avoid making evaluative judgement on the parent with which they are not engaged in therapy and avoid becoming an advocate.

A common problem is the role of child protection authorities. They are often involved in situations when they ought not to be and refuse to get involved when therapists and others are begging them to be involved because there is still an under appreciation of the impact of and diagnosis of emotional harm. In a PA case there is a very fine line between what is a custody and access issue and what is a child protection issue and there is a lack of training in that regard. Child protection workers often stray into what are strictly custody and access matters and refuse to intervene in clear child protection matters because the case is otherwise before the Family Courts, even though that process can be ponderously slow, with the result that relationships are irreparably damaged before there is an intervention.

Neither therapists nor custody evaluators nor child protection authorities nor police officers or other third parties should ever advocate or authorize breach of Court Orders just because a child does not want to see the other parent and yet we see this frequently.

Police forces need training to deal with cases where they are called to enforce Court-Ordered parenting time in the face of refusal by the child. Often having the favored parent remove themselves from the scene and then just give the guidance and insistence to the child that the favored parent refuses to do will suffice

Friends and family members need to avoid aiding and abetting a breach of Court Order and/or participating in the alienation. All of these can subject them to claims for defamation and wrongful withholding. Traditional torts (interference, alienation of affection) are limited in most jurisdictions regarding claims for damages. However Restraining Orders and associated Court costs and non-disparagement Orders as well as directions to avoid interfering with Court Orders can be readily obtained.

Schools and activity providers can, if they uphold their core principles, actually act as a stabilizing force and a “safe harbour” for children’s relationships with both parents. Unfortunately, all too frequently the alienating parent co-opts such third parties and creates such a ruckus that the target parent either feels completely uncomfortable and unaccepted in those forums or a Court Orders that only one parent can be at an activity at a time, which results in significant loss to the children. A frequent and necessary clause in Parenting Plans is that both parents and extended families are eligible to attend children’s events and our welcome to do so and all are expected to put the children’s needs first and avoid any controversy that would spoil the experience for the children.