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Home / Articles / Child Custody / Children Used as Pawns in Court

Children Used as Pawns in Court

How abusers put survivors on defensive with deceptive custody strategy

Children Used as Pawns in Court

You’ve heard it before: “Don’t mess with a mama bear.” Nothing stirs the protective instincts of a woman quicker than threatening the well being of her children. So when an abuser uses a couple’s children as a tactic for power and control, such as fighting for custody solely to perpetuate fear in his victim, women can feel desperate to stop it.

In the 1980s, a psychiatrist named Richard Gardner coined a disorder called “parental alienation syndrome,” or PAS, which most domestic violence advocates and mental health professionals renounce today for its lack of scientific basis and its manipulative use in court. Abusers have been known to employ this term to convince a judge their partner is “brainwashing” a child into refusing to go to the abusive parent for visits. As a result, many survivors find themselves in the throes of a court battle to prove otherwise.

“Gardner made this up based on his own clinical observations with no science behind it,” says Mo Therese Hannah, Ph.D, founder of the Battered Mother’s Custody Conference and New York professor of psychology at Sienna College. “It’s a way to divert attention away from the attacker and onto the victim. It’s like a joke that was taken very seriously.”

Hannah says it starts with a survivor bringing legitimate concerns to the attention of a court regarding abusive behavior from the father of her children. The children may be fearful of going to the abusive parent’s home alone as a result. “Then, those representing the abuser blame the victim,” says Hannah, who adds that the PAS accusation has been very effective in the past, resulting in many abusers gaining custody of their children.

Not a Medical Diagnosis

PAS was found by a task force from the American Psychological Association to have a significant lack of data to support it as scientifically sound. It’s also not a diagnosis listed in the Diagnostic and Statistical Manual of Mental Diseases (DSM) or The International Classification of Diseases.

“Non-court-regulated psychologists haven’t even heard of it,” says Hannah. While the outcry over its lack of scientific basis has led to the term fading out somewhat in the last decade, Hannah says the theory itself is still being used. “If a mother tries to protect her child or distance her child [from the abuser] terms like ‘maternal gate-keeping’ or ‘alienation theory’ now come into play. The idea is, if a child is reluctant to be with one parent, the other parent is wrongly convincing the child of something that isn’t true.” Hannah calls it “so beyond what is real,” adding, “Any mother will tell you it’s hard to influence your child to do anything, especially when they’re older. These women are being accused of being magicians.”

As a result, survivors are rightfully worried that if they bring up abuse in court, it’ll be turned around on them, “and they’ll be accused of being mentally ill, instead of courts looking at the facts of the case,” Hannah says.

Confusing Normal Behavior for a Disorder

Carol Bruch, research professor of law at the University of California, Davis, released a paper titled Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, in 2001. In it, she explains why PAS can be so harmful to victims of abuse.

“In recent years, use of the term PAS has been extended dramatically to include cases of all types in which a child refuses to visit the noncustodial parent, whether or not the child’s objections entail abuse allegations … the focus of [Dr. Gardner’s] attention is directed at discerning whether the beloved parent and child are lying, not whether the target parent is untruthful or has behaved in a way that might explain the child’s aversion.”

And Gardner’s recommendation to “cure” this aversion children have to their abusive parent? Bruch says he recommends “transferring custody of the child from the beloved custodial parent to the rejected parent for deprogramming. This may entail institutional care for a transitional period, and all contact, even telephone calls, with the primary caregiver must be terminated for at least a few weeks.” After that, he recommends supervised visitation for the non-abusive parent.

Bruch says there are myriad deficiencies in Gardner’s theory, among them, the fact that he fails to recognize a child’s “angry, often inappropriate and totally predictable behavior” following the separation of their parents. “Gardner confounds a child’s developmentally related reaction to divorce and parental conflict (including violence) with psychosis,” writes Bruch.

‘It’s Like Going Through a Meat Grinder’

The pain of fighting for or, in worst cases, losing custody of one’s children during a separation from an abuser can be emotionally overwhelming, which is why Hannah says she founded her annual conference. “How to defend yourself against [PAS]—that’s the million dollar question. We bring together survivors and experts and talk about what works and what doesn’t work. We try to help these incredibly devastated, damaged mothers.” The court battles, she says, are like “going through a meat grinder.”

Attorney Nancy Erickson, who has dealt with incidents of PAS in child custody cases during her career, offers some possible defense options for parents facing an allegation of PAS. Among them, consider filing criminal charges, if you haven’t already, for the domestic abuse that occurred. “If the parent making allegations of parental alienation is convicted of a crime, and the conviction is proven, the judge in the custody case will have to consider that in making the custody decision,” says Erickson.

Also, survivors must be diligent about keeping detailed records of everything, says Erickson. “Keep a record of everything significant she [the survivor] says and does, the abuser says and does and the children say and do….The protective parent should keep every item that could be used to demonstrate to the court that the abuser is indeed abusive and that [the survivor] is not interfering with the father/child relationship.”

This record might include a calendar, says Erickson, on which the survivor records the abuser’s visitation times and keeps track of what happened on each visit, such as if the abuser was late without calling to let the survivor know, or if the children were crying when the abuser picked them up.

Finally, any changes in the schedule should be done in writing. Even if the abuser calls the survivor to let her know he won’t be able to pick up the children for a visitation, the survivor should send an email along the lines of, “This is to confirm that you phoned today, March 3, 2016, to tell me that you were not going to pick up the children for visitation this weekend.” Then, send a copy to your attorney and keep one for your files.

If you can’t make it to the conference, you can still find support with other victims going through similar custody trials. A support group at your local domestic violence shelter is a good place to start. Find a shelter near you by entering your ZIP code here.

Additionally, the Battered Women’s Justice Project offers several online webinars that can help educate and support women in custody disputes, including this one called Strong Moms/Safe Kids.