Cases in which children refuse or resist contact with a parent become the most challenging and vexing for the attorneys representing their clients and for judges trying to decide what parenting plan is best for the children. More often than not, the differing perspectives of the parents represent 180-degree opposing positions as to what is causing their child’s behavior with respect to spending time with the other parent. The attorneys advocate the positions of their clients, while the judge is left trying to determine which of these perspectives more accurately reflects the actual dynamics in the situation.
For the rejected parent, the cause of the problem is simple. Their child is the victim of a parent who is exerting inappropriate influence on them to view him/her as dangerous and, therefore, distance themselves and resist contact. Under the relentless pressure of this angry, vengeful, mentally unstable, personality disordered parent, the child succumbs and rigidly aligns themselves with them.
For the parent with whom the child is aligned, the cause of the problem is equally clear. It is not they who are exerting, manipulating, or influencing the child. Rather, it is the child who has become appropriately fearful, uncomfortable, or distant from the other parent who has been too harsh, abusive, mentally unstable, inadequate, and/or personality disordered. Being a responsible parent of a young, defenseless child, the aligned parent is protecting their child from the abusive behaviors with which they have had to deal for years. If their child is older, they are supporting the independent and rational requests of the child not to be exposed to the potential harm of their other parent.
In the absence of a thorough understanding of the resist/refusal dynamics driving this conflict, a judge is left having to decide which of the two positions before her is “right.” An even more difficult task is to determine what can be done to ensure the best interests of the child with respect to contact with each parent.
Understanding the Problem
The phenomenon of a child becoming estranged from one parent during the course of a divorce has been observed and described in court cases and the mental health literature since the nineteenth century. Judges at that time noted cases in which one parent had “poisoned the mind of the child against the other parent.” B. Fidler, N. Bala & M. Siani, Children Who Resist Postseparation Parental Contact 14 (2013). Wallerstein and Kelly, in their 1980 book Surviving the Breakup: How Children and Parents Cope with Divorce, noted that children were enlisted by a parent to help wage war with the other parent in order to punish them. Over the years, terms like “pathological alignments,” “visitation refusal,” and, finally, “parental alienation syndrome” have appeared in the literature to label this behavior, first observed over 100 years ago.
Since that time, there have been much debate and confusion over the most appropriate term to use for descriptive purposes. Currently, “resist-refusal dynamics” seems to have come to the forefront in the mental health literature to try to capture the complex nature of the problem.
Returning briefly to the evolution of current theory on the cause of the phenomenon, Richard Gardner, in his book The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (1998), coined the term “parental alienation syndrome.” Gardner’s definition was that the disorder was the result of the combination of a favored parent’s brainwashing of a child and the child’s behavior aimed at vilifying a parent. It was the child’s behavior, marked by eight distinct factors, that led to a “diagnosis” of parental alienation syndrome. Those factors were:
- A campaign of denigration of the parent.
- The presence of trivial or outlandish rationalization for the child’s feelings.
- A lack of ambivalence about their feelings for the rejected parent.
- The presentation by the child that their thoughts are their own, and not those of the other parent.
- An immediate defense of the favored parent in parental conflict.
- A lack of guilt on the part of the child for their disrespectful or mean behavior towards their parent.
- The presence of shared or borrowed scenarios from the favored parent.
- The generalization of the negative feelings to family and friends of the alienated parent.
Although Gardner’s overall theory of parental alienation syndrome has been rejected, in part, because it inadequately describes the causes of the problem, the presence of these eight factors has been remarkably stable when observing children who resist and refuse contact with one of their parents during the course of a highly conflictual divorce.
In 2001, Kelly and Johnston presented a “reformulation” of the dynamics involved in cases involving an alienated child. J. Kelly & J. Johnston, The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39 Fam. Ct. Rev. (Special Issue) 249 (2001). They made a significant departure from Gardner’s theoretical formulation by describing a family-systems, multifactorial approach to understanding causation in these cases.
In essence, Kelly and Johnston note that a child’s relationship with their two parents following separation (or even while still in the intact family) can be described as existing on a continuum. The nature of the relative relationships ranges from no preference, completely balanced, equal relationship with both parents where the child moves easily from one parent to the other without a preference for either; to an affinity, or slight preference for one parent, which may shift over time and is consistent with normal development, where there is still easy movement between parents; an alignment with one parent, where the child shows a definite preference for that parent, and although they may show some difficulty in being with the other parent, they continue to spend time with them; and, finally, alienation from one parent, where the child shows anywhere from mild to severe levels of resistance and refusal to spend any time with the other parent.
Kelly and Johnston note that alienation is always an abnormal, pathological state that is extremely unhealthy for the child. However, they also describe a form of alienation, estrangement, where the child’s refusal or reluctance for contact is a normal response to an unhealthy parent, i.e., a parent with mental health or substance abuse problems or who is a perpetrator of abuse. Estrangement can also be manifested as a result of a variety of factors associated with the child, such as age, temperament, and/or psychological health.
What is particularly important about the Kelly and Johnston reformulation is that they recognize that when a child is demonstrating behaviors consistent with alienation, the alienating parent (alienator or favored parent), the alienated parent (target parent), and the child may all be contributing to the problem. Their theory was a clear departure from older formulations based on Richard Gardner’s formulation for parental alienation syndrome, where the entire problem was said to result from behaviors of the alienating parent, most often the mother. As a function of recognizing the contributions of a variety of parties to the problem, solutions needed to be more systemic and include interventions that change the destructive, unhealthy behaviors of each party.
It must be added that almost all theoretical explanations of the cause of resistance and refusal by children agree that a primary factor in unjustified rejection (as opposed to justified rejection or estrangement) is a systematic, pernicious attempt by one parent to undermine or destroy the child’s relationship with the other parent. B. J. Fidler & N. Bala, Children Resisting Postseparation Contact with a Parent: Concepts, Controversies and Conundrums, 48 Fam. Ct. Rev. 10 (2010). A parent can accomplish this goal through a variety of behaviors, but a lack of support or encouragement of the relationship between child and parent without justification is always present.
On the other hand, a fundamental component of justified rejection or estrangement is that one parent’s behavior, whether the result of domestic violence, abuse, mental health issues, and/or addiction, is beyond the range of normal, adequate parenting and puts the family’s or child’s physical and/or emotional health at risk of harm. Therefore, the child’s resistance or refusal to spend time with that parent is “justified” given the abnormality of the parental behavior.
Kelly and Johnston recognized that there are very few “pure” cases of alienation or estrangement. In other words, there is rarely a situation when the only factor in creating the family dynamic is the bad acts of one parent. More often, the child’s refusal to visit is based on a complex set of intersecting factors of varying significance and origin. For example, the “alienating” or favored parent may be angry, sharing negative comments about the other parent, discouraging contact with that parent, or lying about past events or behavior. Additionally, the alienated or target parent may have some significant parenting deficits. They may be harsh and authoritarian in their parenting style, have been absent from the family for extended periods of time, be disengaged even when present, have a new love interest, and/or speak angrily about the other parent, or the child may be at a vulnerable developmental period of their life, may have interests that align them with the favored parent, may suffer with an emotional or behavior problem, and/or have cognitive and emotional deficits.
Finally, there may be a host of influences outside the immediate circle of the family, such as angry extended family, misguided professionals, and/or protracted litigation, that contribute to the problem. It is the confluence of all these various factors that can lead to significant changes in the child’s relationship with one of their parents, such that they resist or completely refuse spending time with them.
Kelly and Johnston’s multifactorial model of resist-refusal dynamics has been generally adopted and expanded upon throughout the professional community.
The Model Standards for Comprehensive Custody Evaluations promulgated by the Association of Family and Conciliation Courts (2006) and the Model Standards for Comprehensive Custody Evaluations adopted by the American Academy of Matrimonial Lawyers (2010) provide guidance with respect to standards of practice when undertaking the assessment of parenting-time issues for families involved with the court. Each of these documents stresses two extremely important factors for evaluators assessing issues related to resist/refuse dynamics.
First, Standard 1.2 of the AFCC Model Standards stresses that evaluators need to have “. . . formal education and training in the legal, social, familial and cultural issues involved in custody and access decisions.” More specifically, Standard 1.2c states that specialized training is needed in “the assessment of children’s resistance to spending time with a parent or parent figure and allegations of attempts to alienate children from a parent, parent figure, or significant other.” This point is further stressed in Standard 5.11 of the Model Standards:
5.11 DATA BEARING UPON SPECIAL ISSUES
Special issues such as allegations of domestic violence, substance abuse, alienating behaviors, sexual abuse; relocation requests; and sexual orientation issues require specialized knowledge and training. Evaluators shall only conduct assessments in areas in which they are competent.
Thus, no one should be undertaking such a complicated assessment without the “specialized” training required.
Secondly, an essential component of the custody evaluation process is that evaluators consider multiple hypotheses related to the referral questions and that they use diverse methods of collecting data related to all hypotheses before reaching conclusions and opinions. This practice is articulated in Standard 5.2 of the Model Standards:
5.2 FACTORS OR VARIABLES TO BE ASSESSED
Child custody evaluators shall assess the factors and variables pertinent to the evaluation. These factors or variables shall be determined according to local statutes, case law, referring questions and research.
One can see that to meet the standards of practice in assessing resist/refusal dynamics in a given case, the evaluator must have specialized knowledge of alienation/estrangement and, using the most recent professional literature, consider and evaluate the multitude of factors contributing to the problem. Utilizing multiple hypotheses regarding causation, the evaluator can render an expert opinion on the result of the analysis of the data collected.
Perhaps more importantly, a high-quality assessment report can serve as a bridge for the parents, attorneys, and court spanning across the causative factors for a child’s resistance and refusal to the family and environmental interventions that will assist the family in resolving the problems. Dr. Benjamin Garber argues that this process starts with a well-crafted court order for the evaluation that includes some variation of language such as “Parties will enlist a qualified mental health professional to conduct an evaluation intended to summarize the history and quality of the child’s relationship with each parent, seeking in particular: (1) to identify the circumstances and precipitant(s) of any change in the quality of those relationships; and (2) to recommend the specific constellation of interventions best suited to facilitating the child’s opportunity to enjoy a healthy relationship with both/all caregivers.” B. D. Garber, Sherlock Holmes and the Case of Resist/Refuse Dynamics, 58 Fam. Ct. Rev. 386, 390 (2020).
After all the theorizing and assessing is complete, the parents, attorneys, and court are left with the difficult question, “What do we do to fix this problem?”
In some ways, the answer is similar to that which we are confronting with the COVID-19 pandemic. There are some known therapies that seem helpful, and then there are some more advanced, experimental therapeutics to help survive severe illness. However, in light of scant or only preliminary empirical evidence on treatments and “cures,” the most sensible approach is prevention, followed by early recognition and intervention.
Wear a mask, social distance, and wash your hands is the mantra of the pandemic era because those behaviors are known to help prevent getting sick. Where a custody conflict is brewing and there is the opportunity for children to be negatively affected by that conflict, there are also steps that can be taken to limit the potential development of unhealthy alignments between children and their parents.
Fidler, Bala, and Saini make a distinction between what they refer to as primary, secondary, and tertiary prevention. B. J. Fidler, N. Bala & M. A. Saini, Children Who Resist Postseparation Parental Contact: A Differential Approach for Legal and Mental Health Professionals (2013). They write that primary prevention targets everyone in society who is separating and has children. The goal of the various primary methods is to increase protective factors related to the health of children and their parents to protect them from potential, future contact problems. The preventive measures include public awareness initiatives and nonspecific parent education programs.
Knowledge is power. Learning as much as possible about a child’s developmental needs, the effect of separation and divorce on children, the positive effects of healthy co-parenting, and the negative impact of separation and divorce on everyone’s emotional well-being can be learned in parent education programs presented early in the separation process. These general educational programs, which may be either mandated or recommended, can help to reinforce behaviors, attitudes, and skills that are protective of the healthy adjustment of the family.
Secondary prevention approaches are specifically geared towards individuals and families that identify as having a greater risk for contact problems than the general population. These programs also seek to reduce risk factors associated with parent-child contact problems through teaching about protective factors. However, the curriculum is focused on identifying and changing strained parent-child relationships. The interventions include clinical and psychoeducational approaches that are selected depending on the nature of the problem and the degree of severity. The programs may be directed towards justified rejection, unjustified rejection, or both, and have greater effectiveness when the severity of the problem is on the mild end of the continuum of severity. The different programs may be directed towards parents or children who fit into this category. Unfortunately, little empirical data are available regarding the overall effectiveness of these programs.
Early referral to appropriate, qualified mental health professionals by attorneys of clients who appear to be suffering emotionally and who are demonstrating early “alienating” behaviors can be extremely helpful to prevention. Care must be taken in the selection of the mental health professional chosen because one who simply advocates the positions of the parent often inadvertently escalates problems and reinforces their polarized position, rather than helps them acquire healthier parenting behaviors.
The court can, and must, play an active role with these families, by issuing detailed orders regarding parental behavior. Such orders early in the life cycle of a custody case can help prevent or interrupt the progression of parent-child contact problems. The orders can outline specific expectations and steps that are aimed at keeping children out of the middle of conflict, reinforce the healthy involvement of parents in their children’s lives, and focus on reinforcing behaviors and activities by the parents that enhance the fulfillment of the children’s developmental needs.
Over the last two decades, a variety of specialized interventions and/or therapeutic models have been introduced to treat families, involving cases of mild, moderate, and severe parent-contact problems. It is universally recognized that the less severe the contact problems, the greater the chance for success with interventions involving unjustified rejection. As the time following recognition of the problem increases, and as children become more intractable in their resistance to contact, the probability for success in returning to normal parent-child relationships decreases.
With respect to interventions for mild to moderate cases, a variety of interventions are being used. Almost all adhere to the theory that parent contact problems are the result of complex issues within the family system, and thus employ some variation of a family system approach to therapy. The programs go by different names, such as Multi-Modal Family Therapy, Family Restructuring Therapy, and Family Reintegration, but almost all are provided on an outpatient basis by a “team” of providers.
The interventions utilize a variety of treatment modalities including psychoeducation, skill training, communication skills improvement, behavior modification and desensitization, and family and individual counseling. Additionally, family members may be engaged in individual work, counseling with another member of the family, and/or family therapy. Oversight of the process is often provided by the judge, or some case manager who can report back to a judge. Because interventions are often ordered by the judge, the court is intimately involved and highly interested in progress and success of the treatment.
Unfortunately, there are scant amounts of empirical data regarding the overall success of these interventions, although there is a considerable amount of anecdotal evidence of successes that have used these approaches. On the other hand, there is a considerable body of research that has verified, empirically, that the different therapeutic processes used within the overall intervention—i.e., cognitive behavior therapy, family therapy, trauma sensitive therapy, co-parent counseling, psychoeducation, and experiential therapies—are successful in creating change. Therefore, there is a strong argument that these various programs are empirically grounded and evidence informed. Nonetheless, there remain little current data on overall success as measured by restoration of a “normal relationship” between parent and child.
The same problem of a lack of empirically based outcome data exists with respect “intensive” interventions. These are interventions that are being used to try to reverse severe cases of resistance and refusal in parent-child relationships. There are a small number of intensive programs throughout the United States and Canada, including, but not limited to, such programs as Transitioning Families, Family Bridges, and Overcoming Barriers.
The interventions generally include a three- to five-day in-residence treatment model that may or may not include the “favored” parent in the process. All of the various treatment processes referred to above are likely to be incorporated in the treatment regimen and are intentionally provided within an environment that is separate from where the family lives. Following the intensive intervention, an aftercare or follow-up plan is designed to continue and build upon the process that was started during the initial program.
Utilization of these programs is extremely controversial. The fact that some of these programs require that custody of the child be reversed from the favored parent to the target parent, at least temporarily, and that contact with that parent be limited for some extended amount of time raises serious concerns for some mental health professionals, domestic violence advocates, and judges. Furthermore, the fact that this is done without the benefit of strong empirical evidence regarding the probability of success of the program, success being somewhat undefined, only serves to increase concerns and reinforce the arguments of those who oppose their use. Of course, there are also no scientific studies that show that the concerns raised by the critics of interventions, i.e., that the child will exhibit severe chronic mental health problems from the intervention, will develop secondary to their use.
In summary, resist-refusal contact problems (also known as alienation, estrangement, or justified or unjustified rejection) are rarely the result of one parent negatively influencing a child against another parent. Rather, resist-refusal dynamics are the result of the complex interaction of multiple factors affecting the many individuals within and outside of the family system, i.e., it is a multifactor model. As a function of this set of dynamics, assessment of the problem must include the development of multiple hypotheses and the use of multiple evaluative methods that assess the relative contributions of the various factors so that opinions regarding causation and recommendations regarding interventions reflect the complexities of the situation.
Finally, interventions should occur as early as possible, including preventive interventions, to limit the probability of the development of chronic intractability in the parent-child relationship. The court needs to take an active role in developing concrete, specific orders that fit the needs of the family. Additionally, the court needs to maintain oversight of the family throughout the course of the interventions to ensure cooperation and success in the ultimate goal of reestablishing and maintaining healthy relationships for the children with each of their parents.