Parental Alienation Unleashed

For many, many years the psychological and legal communities have grappled with what both would describe as emotional abuse on the part of parents. The current diagnostic analysis (called DSM-V) says that child psychological abuse is defined as “nonaccidental verbal or symbolic acts by a child’s parent or caregiver that result, or have the potential to result, in significant psychological harm to the child.” A sub species of this was termed by the late Dr. Richard Gardner as “Parental Alienation Syndrome” or PAS.  It is the intentional effort to alienate a child from another parent or caregiver.

The topic is discussed by lawyers and judges in hallways and conference rooms but the American Psychological Association has never adopted PAS as a disorder. The typical symptoms are a child’s rejection of a parent often to a degree where the parent is dismissed as having no merit and therefore unworthy of engagement with the alienated child. Again, it has no formal acceptance, but it did find its way into the custody factors as 23 Pa. C.S. 5328(a)

(2.3)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party if contact is consistent with the safety needs of the child.

Because parental alienation is not formally recognized by the mental health community, judges deciding these cases will tiptoe around the issue. If a judge is persuaded it exists, the tendency is to discuss Section 5328(a)(2.3) but use the other custody factors to buttress a decision to steer a child away from an “alienating” parent.

On April 29, we saw a case that waded directly into the issue in an unflinching way. L.D.E. v. T.O. involves a 14 year old child with a history of residence with Mom in York County PA. but summers with Dad in South Carolina. Father filed a custody modification in Pennsylvania alleging that Mother was violent with the child and the child wanted to change custody to live with his Dad. Mother was represented. Father was pro se. The interview of the child was in camera (outside the courtroom and without the parents). In that interview the child indicated that his mother was physical with his punishment; that conflict was high and life with Father might well be more peaceful. The child wanted to reverse the custody and live primarily with Dad.

Every custody lawyer reading this case has been here and the facts make a Mom’s lawyer quiver. Fourteen year olds are a handful to begin with. This one is male and wants to spend time with his Father in South Carolina. The risk that the child will flee or engage in anti-social behavior of some kind is high if not granted his custodial wish. There had already been a couple of transitions where Father testified that the child did not want to leave. And, of course, Dad professes that he is doing this at the instance of the child. The child seems to confirm his reluctance to return to Pennsylvania because of the conflict with Mom.

Well it takes 51 pages of opinion but the Superior Court affirms the trial court ruling that not only does P.E.O. (the child) remain in Pennsylvania but all contacts between Father and son are to be supervised. And yes, that includes telephone contact with Father. Realize that Father had come to court seeking a modification in a setting where summers were his. So, despite a child by his side, Father went from at least 20% custody to almost none.

How could this be? Well the fleas show themselves quickly. Father professes that he lives in South Carolina with his own mom (paternal granny) but the courts struggle to identify an actual address. At one point, mother came to retrieve the child and found no one at the address where pick-up was to occur. A local sheriff also failed. Father’s employment is also not found in the testimony which makes it challenging to assess who will be providing the adult supervision besides a grandmother who did not appear as a witness. Thus, the case is based on allegations that Mother uses physical discipline in intemperate ways coupled with the child’s wish to spend more time with his Dad.

The trial court could have hung its custodial hat on the absence of a clear plan in South Carolina, but it chose to grab the alienation issue by the horns. We should note that the child did not state that he feared his mother, but that he was subjected to physical punishment. The Superior Court notes that corporal punishment is not proscribed unless it is causing serious physical or emotional harm. P.R. v. Dept. of Public Welfare, 801 A.2d 478, 485 (Pa. 2002)  18 Pa.C.S. 509(1).

The trial court focused on the abuse Father had inflicted on Mother in 2022. It seems  charges were filed but disposition was unclear. Meanwhile, Mother indicated the incident had required $5,000 of dental work to her mouth. While on this topic, the trial court circled back to some of Father’s other erratic behavior, none of which could be termed “abuse.” The trial court notes the child’s preference to live with Father did have moderate weight but was “discounted” because Father had made “pervasive efforts to alienate the child.”

Specifically,  “Father appears to be taking every opportunity he can to depict Mother in a negative light. When Child talks about Mother in negative terms[,] Father rarely corrects Child. Father also treats their interactions as clandestine[,] implying that Mother would never approve of Child seeing Father. Father continuously undermines [Mother’s] authority. This creates the image of Mother as someone who is to be hidden from and insulted, a person who is the only reason, aside from court personnel, that Child and Father cannot be happy together.”

The factual gruel in the combined opinions is a bit thin. The quote in the preceding paragraph is not amplified by actual statements or descriptions of conduct.  The trial and appellate courts basically conclude there was no abuse of discretion here although the Superior Court opinion seems to muddle the standard for review. The Supreme Court is cited to hold that appellate reiview of custody requires “very broad” review King v. King, 889 A.2d 630 (Pa. 2005) while the Superior Court finds the standard “gross abuse of discretion.” Rogowski v. Kirven, 291 A.3d 50 (Pa. S. 2023). But, to any lawyer looking for strong language attacking alienation and imposing what amounts to supervised visits to address that condition, L.D.E. v. T.O. 1757 M.D.A. 2024  is a case you want to stuff in your trial bag.