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September 12, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

When two authorities with the reputations for honesty and good sense like James Bocott and Dr. William Bernet tell us that Nebraska family court judges are beginning to recognize parental alienation and take effective action against it, we should sit up and take notice. Bocott is a long-time family lawyer and Bernet is perhaps the world’s leading authority on parental alienation. Bocott has done yeoman work in trying to promote shared parenting to a generally recalcitrant Nebraska legislature. Bernet edited the book that is the gold standard on parental alienation, comprising the work of researchers from over 30 different countries and hundreds of case studies.

They’ve looked at the actions of Nebraska family court judges and find a promising trend.

A series of recent court decisions suggests Nebraska judges are losing patience with parents who violate child custody orders.

The authors cite three cases. In each, judges sanctioned mothers who engaged in either minor or more serious parental alienation.

In the most recent case, the Nebraska Supreme Court affirmed a trial court decision that gave a mother a 60-day suspended jail sentence for “forcibly and intentionally placing the children of the parties in the middle” and then “using passive aggressive techniques to abrogate her obligations as the custodial parent.”

In this case, the trial judge found that the mother had encouraged her two sons, ages 16 and 15, to decide for themselves when to spend time with their father instead of following the schedule in their parenting plan.

That passive-aggressive stance is typical of alienators. They first convince the child that the target parent doesn’t want them, is dangerous to them, doesn’t love them, etc. Then they allow the child to decide whether he/she wants to spend time with the other parent. When the child refuses, he/she is rewarded, reinforcing the alienation.

From a legal standpoint though, a court order is a court order and no one is entitled to decide whether or not to abide by it. That’s true of parents who are the subjects of the order, but it’s also true of the kids. If the order calls for the child to spend a week with Dad, then so be it, irrespective of the child’s wishes in the matter.

To call this a great leap forward in judicial decision-making is at once true and sad. Judges have always had the power to hold in contempt any person who violates one of their orders, but family court judges are legendary for not doing so. In Australia, they’re actually forbidden by court precedent from doing so. Alone among all courts and all orders issued by those courts, family courts are prohibited from enforcing access orders by their inherent power of contempt. Australian historian John Hirst researched the matter and let us know in his excellent long essay “Kangaroo Court: Family Law in Australia.”

But all other family courts throughout the English-speaking world retain the power of contempt to enforce all the orders they issue. The sad fact is that they do so very seldom. Bocott and Bernet believe that’s finally changing in Nebraska. It shouldn’t have to. Those courts should have always enforced their own orders and their failure to do so is in great part responsible for the epidemic of fatherlessness we have today.

The Nebraska courts cited by Bocott and Bernet took a variety of punitive steps to rein in the miscreant mothers. Two gave suspended prison sentences and the third transferred custody to the children’s father.

In a third case, a trial court stripped a mother of custody and awarded custody of the children to their father. The court found that the mother encouraged the children to violate the parenting plan and was alienating them from their father.

In response to the mother’s claim that it was up to her teenaged child to decide whether to see her father, the judge told the mother, “I’m going to tell you the law in Nebraska is very clear, 15-year-olds don’t make the decision about whether they attend visitation time with their parents or not.”

That’s all appropriate as I see it. Not all alienation is alike and some alienators might be made to see the error of their ways without extreme measures being taken against them. So, in the first two cases, perhaps the threat of jail was good enough to teach the parent a lesson whereas nothing but transferring custody would suffice in the third. At this far remove, it’s hard to tell if those were the correct sanctions or not, but at least the courts did something to acquaint the mothers with the fact of who is in charge in family court.

To understate the matter considerably, this should happen far more often than it does. The failure of courts to enforce non-custodial parents’ visitation orders is one of the primary ways in which fathers are sidelined in their children’s lives. Plus, it sends the clear message to everyone that, despite what we may say, dads aren’t very important to kids, moms or family court judges.

Of course if judges did as they should – ordered equal parenting in the majority of cases – the need for enforcement of orders on behalf of the non-custodial parent would drop sharply. So would the type of parental alienation we see in the three cases referred to by Bocott and Bernet. PA is an opportunistic phenomenon; the more time a parent has with a child, the more opportunity she has to alienate and the less time Dad has to show the child the falsity of Mom’s claims.

And PA, particularly in its extreme forms, constitutes child abuse.

These cases are a welcome development. These behaviors are often red flags that a parent is trying to undermine the child’s relationship with the other parent. This is extremely harmful to the child.

Research indicates that children who have been subjected to alienating behaviors by a parent are more likely, later in life, to have higher rates of depression, anxiety and substance abuse. These “adult children of parental alienation” frequently feel intense guilt and remorse if they realize they contributed to the rejection of one of their parents.

Not all violations of parenting time orders constitute parental alienation, but they often can be a red flag courts must not ignore. Let’s hope Bocott and Bernet are right, that Nebraska courts are catching on to alienating parents and putting a stop to their abusive behavior. They should have been doing so all along, but, I suppose, better late than never.

 

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