How to Prove Parental Alienation And Remedies To Fix It
Parental Alienation – Part 3 of 3: How to Prove It, And What Can Be Done To Fix It
Although very experienced in all aspects of family law, Kelly Peterson also has specific expertise for and specializes in cases involving parental alienation, gatekeeping, and parent time interference.
Terminating Parental Rights To Allow For Stepparent Adoption In Utah
In this article, you will learn:
- How to prove parental alienation; and
- What remedies the Court can impose to fix the problem of alienation
In Section One what we discussed was what parental alienation looks like, what behaviors alienated children engage in, what the alienating parent’s behavior looks like. We looked at how that plays out in preventing the target parent’s parent time, damaging the relationship with the target parent and the child and what kind of psychological and developmental damage that does to the child him or herself.
In the Second Section of what we talked about was how attorneys and courts and therapists and guardian ad litems can sometimes respond poorly and make the problems worse due to misconceptions about parental alienation and how to deal with it. We looked at why so many attorneys, even experienced family law lawyers, can actually harm their client’s alienation case by doing the right the wrong things.
Today we’re going to talk about the nuts and bolts of how someone can actually prove parental alienation, how to gather and organize the evidence, and also effective and ineffective remedies that the court confession to help fix the problem.
How Do You Prove Parental Alienation?
I am going to give very concrete practical steps of things that can be done to prove alienation. but the best place to begin is what not to do. So, let me start there just for a minute. Lots of folks want to spin their wheels focusing on the motives of the other side. “Dad is just trying to turn the children against me. He hates me and now he’s trying to get back at me.” These kinds of statements are generally not productive. The motives of the other parent are rarely provable and they’re often not even relevant. At the end of the day, we don’t really care whether the alienating parent is intentional unintentional or simply reckless. It is their behavior and their attitudes we need to spend our time focusing on, not their motives. There’s one exception to that and that’s if they’re just plain ignorant. If an alienating parent, once in a while, you get a case where the alienating parent just needs to be educated just because they’re kind of dumb and if they know better they’ll do better.
Unfortunately, judges think “the ignorant alienator” occurs far more often than is really the cas.e and that if they just throw a high-conflict parenting class at the alienating parent, that will fix things.
One of the biggest mistakes that parties and their attorneys make in attempting to prove alienation is simply providing to the court a few “examples.” They’ll give three or four examples of alienating behavior; and then they’ll claim “that’s a pattern” to the judge. Judges hear and discount allegations of ‘that’s a pattern’ all the time. They are waiting for the parties to connect the dots. You cannot connect the dots unless you have enough dots to connect. How do you prove a pattern? Incident by incident by incident. That takes an enormous amount of work of preparation. I’ll explain a little bit more how to do that later.
Steps To Take When Proving Parental Alienation
1) Create A Chronology Of Events
One of the first things that I have my clients do is build a chronology. When done right, this is a document that will be 80 pages, single spaced. Date on left, event on right.They’ll go all the way back from the beginning of when the problem started. I have them described everything. This is an enormous assignment. It’s frustrating, it’s time consuming, it’s irritating. Sometimes itfeels somewhat traumatic to have to relive all that stuff. I have them go through their text messages, their emails, their journals, their social media, their own memory and write it down. I also have them quantify things in their chronology. (One mistake that folks make is they use words like “rarely, frequently often, always, never.” I want them to quantify it: once a week, twice a month, three times a year. This chronology becomes one of the most useful tools in the attorney’s tool bag. And because of how time consuming, irritating, and tedious it is, a lot of folks just don’t put in the work.
Things that get added to the chronology as exhibits (in addition to what the parent and stepparent can remember) might include important texts, emails, social media posts, recordings, videos, and statements from other witnesses. But even if you don’t have any other data to support the chronology of events, you can rely on just your own memory for this process.
2) Witness Interviews
Some of the witnesses who may be interviewed during this process can include…
- Friends, or
- Other family members.
These are individuals who have witnessed the same kinds of things as the custodial parent and will be given the opportunity to put their testimony into an affidavit or declaration. Some clients have even recorded conversations and been able to submit transcripts of those conversations. In Utah, it is legal to record a conversation as long as at least one party to the conversation knows its being recorded, whether it’s in-person or over the phone.
Sometimes I will do the interview sometimes my paralegal will do the interview or sometimes the parent can just talk to them. Depending on your state you may be able to record the interview. You can ask the witnesses to send you an email and you draft a declaration for these folks to sign and that information gets dumped into the chronology. You can also engage in what’s known as discovery.
3) Paper Discovery
You can also engage in what I call “paper discovery” to help bolster your case. Paper discovery includes methods by which attorneys can find out information.
One that you might be familiar with as a subpoena. An attorney can subpoena records such as bank records, criminal records, phone records, sometimes even therapy records, medical records, substance abuse records, etc.
You generally get up to ten requests for admissions. Requests for admissions are written in a document that you send out to the other side that basically says, “Please admit X, please admit Y, please admit Z”. The other party has to respond to a request for admission within 28 days. If they fail to respond within the given timeframe, then everything that you’ve asked them to admit becomes truth for purposes of the case.
Some examples might be:
- please admit that father is a good father;
- please admit that the child would benefit from large amounts of time with each parent;
- “please admit that it would be developmentally harmful to the child to have parent time interfered with,
There are many more that can be used. I often ask questions that it doesn’t matter whether they answer admit or deny it’s helpful either way.
Interrogatories are open-ended questions that you ask in writing and the other party has to respond within 28 days. An interrogatory can include any 10 (in Utah) open-ended questions, such as (but worded more carefully):
- please tell me all my strengths as a parent,
- please tell me all your weaknesses as a parent,
- please tell me what you think good co-parenting means,
- please tell me all the reasons why that you believe that the child should or should not have parent time with me, etc. and very often the questions,
Often it doesn’t matter how they answer, it’s helpful.
You also get 10 (in Utah) requests for production of documents. These are like 10 subpoenas on the other side. Please provide me all your bank records, please provide me all your all your telephone records, those kinds of things.
That’s what I refer to as paper discovery and you get that paper discovery back, you highlight the good stuff and the good stuff gets dumped into your chronology.
Initially only 30% of the answers you receive will be helpful, and 70% or more of the answers that you’re going to get back are going to be unhelpful (objections, attempts to avoid real answers, etc) . When that happens, you can file a motion called a “Statement of Discovery Issues” explaining to the court, “Here was my request, judge, here was their answer. It’s completely insufficient, or they failed to answer this part of the question, or they failed to provide this document. Please force them to do so.” And the court will look at that motion and make a decision. Very often you’ll get much more information after you bring it to the judge’s attention how they’ve attempted to avoid answering X, Y, and Z.
In alienation cases, a deposition of the other party, and sometimes their spouse, is critical. Depositions are also an extremely powerful form of discovery. A deposition is when the other party receives a notice that says that they are required by law to show up at an attorney’s office at this date and time. The notice will indicate that there will be a court report, a stenographer, present at the meeting who will put you under oath to tell the whole truth. The attorney is then allowed to ask questions for up to seven hours. And even if they object to a question, they still have to answer it.
It’s pretty hard to avoid answering questions for seven hours. And even if 70% of their answers are unhelpful or attempts to avoid answering, 30% of a seven-hour deposition is a lot of significant data and answers. It’s a powerful way of getting information to help prove grounds and best interests.
Many attorneys make the mistake of using the deposition to do their initial data collection rather than using it for confrontation. During the deposition, you ask questions to elicit not only their behavior that they’ve done in their past but also very importantly, their attitudes.
Some questions might include such things as this:
- Hey, between you and the other parent, who has the greatest degree of influence over the child?
- How do you feel about the other parent? I
- s the other parent a good parent? Do you trust them as a parent
- Now the kids need both a mom and a dad, right? How firmly do you do you believe that? Why do you believe that?
- How important is the other parent in the child’s life?
- Have you ever engaged in any conduct contrary to that belief?
- Have you ever engaged in this kind of behavior or that kind of behavior?Disparaging, asking the child for preferences, transferring your anxiety about the child’s safety to the child, and you can describe what that looks like: have you ever done anything like that? That would tend to diminish the child’s affection for the other parent?
- Have you ever done anything to gatekeep or interfere with the other parent’s parent time? On a scale of one to ten, how firmly do you believe that?
Then you pull out your chronology.
- Okay what about this incident? For example, a text message was sent saying, “you’re such an awful parent, the child has decided that he doesn’t want to go with you and I support his decision.” That’s a text message you sent, correct? Do you think that was appropriate? Do you think that was helpful to the child?
There’s no win for an alienating pareent there because if the alienating parent says that yes the other parent is important in the children’s lives, great. And if they say no the other parent isn’t important in the child’s life, great. Either way it’s helpful to you. Either they are ignorant and lack Insight in which case their alienating behaviors, or else are likely to continue or they know exactly what they’re doing when they’re when they engage in alienating behavior.
Whatever they give you, it’s often helpful. Lying is okay, squirming is okay. Justifying is okay, because it demonstrates their attitudes.
Now imagine doing that kind of thing and asking those kinds of questions for up to seven hours. Now you are in a position to prove “patterns,” because you have gone through incident by incident by incident. You’ve built your chronology, you’ve done your paper discovery and now you’ve deposed the other side confronting them with that data.
What Do You Do With The Discovery And Deposition?
You go through the deposition transcript, you highlight the good stuff, the good stuff gets dumped back in to the chronology. When you go to trial, if you have to go to trial, guess which questions you ask the other side? Only those questions that you’ve highlighted. Why? Because if they deviate this much from their answer previously, then you can confront them with their deposition transcript in open court in front of the judge showing they’re a liar. And because you are asking them only the questions that are helpful to you, your examination of them is powerful. Every question is a zinger and helps demonstrate your case. If there is a custody evaluator or a parental fitness evaluator or a therapist, give the highlighted transcript to the therapist or evaluator or to DCFS or to other third-party professionals that are involved.
5) Expert Discovery
A more powerful form of discovery, though, is expert discovery.
For example, if the child is being treated by a therapist, the therapist can weigh in on the relative bond between the child and the biological parent and compare that with the bond that the child has with the stepparent and discuss any concerns that the child has or damage that’s been done to the child-parent relationship between the child and the non-custodial parent.
There are also “forensic” psychologists that you can hire to do:
- A best interest evaluation,
- A custody evaluation, parent time evaluation, or parental fitness evaluation,
- Psychological testing, and Interviews.
That psychologist is then able to render an opinion to the court as to what is in the best interest of the child, and/or the parental strengths/weaknesses of the person(s) evaluated.
Generally speaking, it is, but there are ways of getting hearsay (e.g., statements from the child(ren)) admitted into court. There are exceptions to the hearsay rule. Evaluators and therapists can often get hearsay in. If there is a recording of the child that will often be admitted.
Using a forensic evaluator can be extremely powerful. It’s pretty hard for the other side to overcome that. If a treating therapist also testifies about similar things, that can also be extremely powerful.
A lot of times, attorneys make the mistake of relying too much though on the evaluator. Evaluators are generally therapists; they’re nice people and they’re generally not going to spend seven hours asking hard-hitting, hardball kinds of questions. The evaluator will spend a total of maybe three hours over two interviews, interviewing the parties and half the questions they ask are going to be softballs. So, when they get the transcript of a hard-hitting deposition they love it because that’s data for them upon which they can base their evaluation. But a lot of times attorneys simply say, oh let’s just have an evaluation and the evaluator will sort it out, but psychology is a science. It’s a soft science but it’s a science which means that it relies on data, as Sherlock Holmes would say we need data, data, data, and if there is a lack of data or if the data that is provided to the evaluator is garbage, you know its garbage in-garbage out; how can you expect a good result from an evaluation if the data that was provided to the evaluator is garbage?
One of the jobs of you and of your attorney is to develop the evidence so that you can spoon feed the data to the evaluator. Presumably the other side will be doing the same, but more data is better. Don’t just rely on the expert alone to do all the data gathering for you. Those are the main tools that an attorney will use to prove alienation.
“Treating” Experts – Therapists – Can Help
Treating therapists can help prove alienation. The statements of a child and an alienating parent during therapy, in many circumstances, can be brought before the court. But a therapist can also help the child cope with enforcing parent time. Let’s suppose you have an alienated child who doesn’t want to go on parent time. The therapist can say, “Hey kiddo, I’m not here to change the court orders. The court orders are what they are and you still have to go on parent time. What we want to do is give you coping mechanisms to help parent time be a good experience for you. You don’t have a choice about whether to go but you do have a choice about what attitude to take when you go. So let’s work on that.”
Remedies For Alienation
Early Intervention, when alienation is nipped in the bud early, that’s the most effective. The remedy depends on whether or not the alienation is mild moderate or severe. Severe being you know the child’s running away and just refuses to go; mild is they resist a little bit and maybe have an attitude problem against the other parent because of the alienation. it also depends on how long standing the alienation is. As we discussed in the Second Video, what doesn’t work are threats and lectures from the judge, traditional therapy or a cooling off period or reducing or supervising the target parent’s parent time.
Instead what the court could order is a combination of a variety of things:
First an attorney can file a Motion to Enforce or an Order to Show Cause. This is a motion to have the other side held in contempt saying, “hey here was the court order, they had the ability to comply, they knew about the court order and they failed to comply.” And if you can have the other side held in contempt for those behaviors, the court can sanction them with fines, paying your attorney’s fees, removal of driver’s license, even jail time, community service, and various things. If you can have the alienating parent held in contempt for their behavior,sometimes they’ll get the message and change their behavior..
Next is a Temporary Restraining Order if you can demonstrate that the alienation is severe enough. You can ask the court for an immediate order suspending the other parent’s parent time, or making it supervised, until you can get a hearing in 14 days to demonstrate why a preliminary injection should enter making that more permanent. You have to demonstrate by clearing convincing evidence that immediate and irreparable harm is occurring to the child. So, depending on the quality of your evidence and the severity of the alienation, that may be an optionthat can quickly help nip alienation in the bud.
You can also file a Petition to Modify the custody decree; changing custody from the favored parent to the non-favored parent, or award the non-favored parent additional parent time, or make up parent time.
In combination with these and other remedies (described more fully below) the Court can order favored parent to
- write apology letters to the child explaining how they alienated the child, explaining their poor behavior, their mistakes, so that the child with additional therapeutic support can begin to change their own attitudes.
- require the favored parent to exercise all of their parental authority for example, imposing negative consequences for a child’s failure to attend parent time. What if you were to change the court orders and file a motion to change the court orders to include this language: Ensuring the other parent’s Parent Time, each parent is specifically directed to enforce the court ordered parent time except as the parties otherwise agree in writing. The children are not given the choice whether to attend parent time, they are ordered to do so.Thus, If the child declines to visit or have contact with the other parent, as ordered, the parent with the child will provide continually escalating consequences to the child until the child complies. For example, removing privileges, taking away cell phones, prohibiting time with friends, prohibiting time on electronic devices or games, taking away driver’s license disallowing extracurricular activities, volunteering makeup time with the other parent, in extreme cases reporting the child as a runaway and ungovernable and placing the child in respite care. Additionally, the parent can provide incentives and rewards for the child complying with the Court’s orders. The parent who does not have parent time will not allow the child to return to their home, will not give the child a soft place to land other than the other parents home, for example, they will only allow the child to stay at the other parent’s home during the other parent’ Parent Time. It will be the responsibility of the parent who has the child to enforce parent time and contact with the other parent. When providing consequences to the child, the parties will in no way suggest to the child that it’s the other parent’s fault that the child is being given consequences or that the other parent could simply agree not to exercise their time with the child. To the contrary, the parent giving the consequences will actively promote the opposite Viewpoint, will take full responsibility for the consequences administered and will state they were do they are doing so because the child’s time and contact with the other parent is so important. Getting those court orders put into place sometimes will nip it in the bud. You can require court orders that neither party will schedule events for the children on the other parent’s parent time, or allow the child to do so except if the parties otherwise agree in writing. In combination with other remedies, requiring the favored parent to pay a set fee or a fine for every day of missed Parent Time. Other remedies that the court can order can include a temporary no contact, or less contact order with the alienated parent while the child spends more time with the target parent. While a child is in therapy, to help the child cope with their new situation. You can enter orders about cell phones and electronic communications, that each party gets to log in, to have the login credentials, and that no secret communications will happen with the child. You can enter orders against tethering; in other words that the alienating parent can’t be sending 700 text messages per day to the child or calling the child from 10 to midnight every night.
- In some severe cases, a court can order the child to be placed in residential or respite care for a while. For example, if the child is threatening self-harm, there can be a court order that the child be taken to the emergency room to evaluate whether the child should be admitted. If the child is deemed safe to be released, they get released to who? The non-favored parent, because then you have a residential care facility or a doctor or a psychologist that is there to say, “we’re going to release you to the non-favorite parent kiddo” and if the child then says, “well I’m going to kill myself;” the treatment provider can respond, “ okay, I guess you need to stay here longer.” Now you have a third-party professional who is trained to evaluate the child who can assess when the child is ready to be released and so the child should generally be released to the non-favored parent’s care with the hospital staff evaluating whether the child’s safe to do so. If they’re not safe to do so, then the child should stay.What you shouldn’t do is have the child release to the favored parent’s care, because then the child now has a ready excusing to get out of parent time by claiming ” I’m suicidal or cutting on myself and so just take me to the hospital and the parent I like better will pick me up later or dad will pick me up later.” You can ask for orders that the child admitted to the Residential Care will stay there until the child is deemed safe to be released to the non-favored parent. This both ensures the child’s safety and also avoids the child or the favorite parent using these kinds of threats to balk the Court’s orders.
In some cases, you can ask the court for what’s called a writ of assistance or a pickup order. This authorizes law enforcement to pick up the child wherever they’re at and deliver them to the non-favored parent. This is kind of an extreme remedy but sometimes it’s ordered and usually, it only takes a few times of law enforcement going and getting the child with the authority of the court and then taking them to a non-favored parent for the child to say, oh okay, I guess I really do have to go.
Other things that can be done: there are specialized reunification programs. There area few of these across the country. They’re very expensive, unfortunately and they have waiting lists but they are specialprograms where that you can send the child away from the favored parent with the non-favored parent where they do really intensive therapy over like four days or a week to detoxify the child and help repair the relationship with the alienated parent.
Role Of An Experienced Attorney In Resolving Parental Alienation Issues
My role might differ depending on whether I’m assisting a client in Utah or someone outside the state, which can be done in some limited ways. Obviously, I can represent clients throughout Utah doing any of these things that we’ve talked about. I can also be co-counsel with another attorney to help organize the evidence, case planning, deposition, and trial planning, develop and organize the evidence, helping to coordinate with therapists and evaluators, and that kind of thing, pro hoc vice limited scope out of state with another in-state attorney.
Family Law attorney Kelly Peterson, who again specializes in Parental alienation cases, estrangement cases and cases involving Parent Time interference and gatekeeping. If this is an issue for you or someone you love, you won’t want to miss the previous segments we did as well. In those previous two segments we talked about alienating behaviors of the alienated child and the parent, and how the child is mentally harmed by alienation, and those misconceptions; even judges, attorneys, guardian ad litems and therapists and how they can get it wrong about this complex area. If this is an issue you struggle with, don’t hesitate to contact attorney Kelly Peterson’s office to see how he can help.
For more information on Proving Parental Alienation and How To Fix Parental Alienation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.