2021 | VOL. 53 | NO.

Family Law Review

A publication of the Family Law Section of the New York State Bar Association

The CSSA “Cap” in Interim Counsel

A is for Alienation: Tips
Theory and Recent Repeal the Archaic and Expert Fees: An
on Litigating Parental
Practice Terms “Child Custody” Essential Tool To Level
Alienation in Custody
By Lee Rosenberg and “Visitation” the Playing Field
Battles
Editor-in-Chief Between Spouses
A Is for Alienation: Tips on Litigating Parental Alienation
in Custody Battles
By Ashish Joshi

Family law is one of the top three highest risk areas of a solid understanding of PA? Do you understand the
practice for attorneys in terms of malpractice exposure.1 difference between PA and Parental Alienation Syndrome?
Are you familiar with the myths of the PA theory? Are
Within family law, cases involving parental alienation you prepared to debunk these myths in court? Do you
(PA) pose some of the unique challenges for a practitioner. keep up with the legal and mental health literature on
In Amy J. L. Baker’s survey, Even When You Win You Lose: the topic? And last but not least, are you willing to put
Targeted Parents’ Perceptions of Their Attorneys,2 the targeted in the significant time and energy that will undoubtedly
parents—the parents who are victims of alienation—were be required on your part to competently represent your
asked about their attorneys’ handling of their case. The client in such cases?
survey results provide us with a bleak outlook on how
targeted parents viewed their attorneys’ handling of their (2) Check for and challenge your biases. It is critical
court cases. One targeted parent reported: to be aware of cognitive heuristics or biases and how
they affect one’s perception, thinking, and ability to
None of the attorneys involved in my custody frame and present a PA case. For instance, consider
case understood the impact of PA. . . . how the heuristic of the Fundamental Attribution Error—
it doesn’t go away as the children get older! concluding that a behavior is dispositional, when it is
They kept telling me, ‘Once the divorce is situational. Say, your client, a targeted parent-mother,
over, they will come back to you’ . . . they had sits before you. You can clearly see that she is angry.
NO IDEA! Very angry. She is angry about how her children
Other targeted parents reported that the lawyers were mistreat her and disrespect her. She is angry about her
“in it” only for the money and lacked “any compassion or ex, the father of the children, consistently undermining
concern for the clients.” One parent reported, “I feel like her as a parent, bad-mouthing and ridiculing her
he couldn’t care less about custody/access/visitation/ in front of the children. She is angry about how her
parenting time. All he wanted to do was his paralegals parenting time is repeatedly violated, with zero
and himself bill as many hours as possible.” Yet another consequences for such violations. She is angry about
reported that the lawyer “told me to give up fighting for how “no one gets it.” As an observer, it is quite likely
custody” and “tried to convince me to settle before all of that you, the lawyer, may think that your client has
my concerns were heard.” The vast majority of attorneys a characterological or dispositional flaw rather than
who represented the targeted parents were perceived as looking at her behavior as situational. You may think,
not preparing their clients for the myriad professionals “I can see how angry she is in general. No wonder she
that become involved in cases involving PA, including is having problems with her kids and her ex. Perhaps,
guardians ad litem, minor’s counsel, forensic evaluators, therapy can help her deal with her anger. In fact, I
court-appointed therapists, and child protective service know just the right therapist who can help her.” But
workers. Adding to the targeted parents’ frustration was just because a person is angry about a specific situation
their outrage that their lawyers did nothing to enforce their does not mean she is an angry person in general. You
rights or to hold the alienating parent accountable. could find the rejected parent off-putting because she is
anxious or assertive. This could make you susceptible
Lawyers who litigate PA cases can vastly benefit from to an argument of estrangement—i.e., your client’s
proper training and education. It is imperative that these rejection by her children is legitimate or justified.
lawyers take the time to study the phenomenon of PA, And if that’s how you frame the case for litigation, it
carefully evaluate the facts of the case for evidence of may result in a totally inappropriate outcome and an
alienation, and discuss with the client (if necessary, with incorrect ordering of priorities. You, the lawyer, have
input from experts in the area of behavioral sciences) the now made a bad case of PA far worse.
appropriate legal and mental health interventions to rem-
edy the situation. Having litigated PA cases in a variety of
jurisdictions all over America, and internationally, I offer Ashish Joshi is the owner of the law firm Joshi: At-
the following tips to my professional colleagues. torneys + Counselors. Joshi’s work focuses on complex
family law matters including severe parental alienation,
(1) One of the oldest heuristics in medicine is primum pathological child enmeshment, child abuse, and inter-
non nocere—First, to do no harm. PA cases are not national child kidnapping. He has represented clients
only notoriously difficult to litigate but profoundly in state and federal courts across the United States and
counterintuitive. Before accepting such cases, a lawyer internationally. This article is excerpted from the authors’
should go through a mental checklist. Ask yourself: are new book, Litigating Parental Alienation: Evaluating and
you competent to handle the assignment? Do you have Presenting an Effective Case in Court (ABA, 2021).

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(3) Keep yourself abreast of the latest research, alienating behaviors on the part of the favored parent;
publications, and peer-reviewed literature on PA. and (5) exhibition of many of the eight behavioral
Get ready to debunk the myths and fallacies that manifestations of alienation by the child.
surround the theory of PA. For instance, be prepared
to educate the court that despite the commonly held (7) Learn to manage the clients. PA cases are notoriously
belief, it is a myth that adolescents’ stated preference difficult and extremely stressful to litigate. Often, they
should dominate custody decisions, especially if the produce an alarming number of false allegations of
adolescent has been alienated. It is also a commonly physical, emotional, or sexual abuse by alienating
held, but false, belief that courts cannot enforce orders fathers or mothers manipulating and indoctrinating their
for parent-child contact against an alienated teen’s children into believing and making false allegations.
wishes. Or that children who irrationally reject a parent Targeted parent-clients experience a host of emotions
but thrive in other respects (such as in school or with including frustration, outrage, bewilderment, anxiety,
sports) need no intervention. These false beliefs have and fear caused by being falsely accused of heinous
been repeatedly debunked in professional literature and crimes or terrible behaviors on one hand and being
judicial opinions. rejected by their children on the other. They suffer from
what psychologists call “ego-dystonic incongruity,”
(4) Frame the case properly. The primary goal in a PA a life-threatening form of stress with physical and
case must be to protect the child from ongoing abuse. psychological ramifications. Clients undergoing such
Professional literature makes it clear that causing severe stress cannot sleep, think, or aid their lawyers. Think
PA is a form of child psychological abuse. Therefore, about getting professional help to manage such clients.
it is critical that the number one priority in such cases Remember, you are a lawyer, not a therapist.
is to protect the child from further abuse. Instead,
lawyers often ignore the abuse and instead focus on (8) Think about using a parenting coach to help the
the child’s relationship with the targeted parent. The client. Alienated children are not easy to parent. As one
failure to properly frame the case shifts the focus parent described her children, “I no longer recognize
from child protection to superficially repairing the my kids. It’s like the spark has gone out of their lives.
relationship between the child and the targeted parent. As soon as they see me, they put in their earphones on
Instead of taking urgent and appropriate measures or go into their room and close the door. No hi, no hello.
to ensure the child’s safety and mental health, the . . . nothing.” Targeted parent faces a dilemma: if she
court and the professionals now begin discussing “truly” loves the children, she should, as the children
“reunification therapy.” This is a striking example of a (and the alienating parent) asks, “leave them alone”
misunderstanding of legal and clinical priorities. and “walk away.” But if she does that, the children
may be alienated for good and the relationship gone.
(5) Challenge the fallacy of the “high conflict” model. If she refuses to “walk away,” the children retort, “You
The model assumes that both parents are equally or don’t get it! It’s all about you.” It’s the classic damned-
significantly responsible for the family dynamics. It if-you-do, damned-if-you-don’t conundrum. In such
also assumes that a child’s rejection of or resistance to scenarios, there is a danger of the targeted parent’s
one parent cannot be traced to primary contributions frustration boiling over and engaging in behaviors that
from the other parent. It is, of course, plausible that essentially play into the hands of the alienating parent.
this indeed may be the case. That upon a forensic To avoid such situations, a lawyer should consider
investigation, one could determine that the case is recommending that the client retain the services of a
“hybrid”—with both parents contributing to the family parenting coach. Parental coaching is a valuable tool in
dynamics and the child’s rejection of or resistance to a litigator’s toolbox. It helps the lawyer stay in her lane
a parent. But it would be a mistake, and a huge one at and focus on legal issues instead of giving parenting
that, to simply assume from the outset that a case is a advice.
“high conflict” case simply because the parties appear
to be hostile to each other. The high conflict model fails (9) Select the right expert. If a trial is in the cards—and
to consider the possibility that one parent might be the in PA cases, it almost always is—you will need a good
alienator and the other might be defending to save the expert to effectively present a case in court. Expert
parent-child relationship. testimony in PA cases should cover the three “S’s”
of parental alienation: symptoms of alienation in the
(6) Litigating PA cases requires meticulous and careful child; strategies of alienators—and—the sequelae of
preparation. It is critical to provide the tools to the trier parental alienation in the lives of the child affected.
of fact to get the appropriate intervention. One of the When making a decision on using an expert, a lawyer
effective ways to prove a PA case in court is to present will need to decide whether the expert should function
the evidence using the five-factor model, which requires as a “general,” education-only expert or as a “specific,”
the proponent of PA to show: (1) the child actively education-and-case-specific expert. The former expert
avoids, resists, or refuses a relationship with a parent; would not be privy to the underlying facts of the case
(2) presence of a prior positive relationship between and would not offer an opinion as to whether PA is
the child and the now rejected parent; (3) absence of present in that particular case. Such an expert would,
abuse or neglect or seriously deficient parenting on however, describe the phenomenon of PA, the peer-
the part of the now rejected parent; (4) use of multiple reviewed scientific literature in support of the condition,

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 the five-factor model for determining whether it is records, police reports, child protective services reports,
present, typical behaviors of an alienating parent, and a host of other kinds of materials. The exercise of
typical symptoms of an alienated child, short-term and putting together a package of materials for a forensic
long-term sequalae of parental alienation, and, last evaluator should be done carefully and with diligence.
but not least, why the court should intervene in cases This is not a data dump. Do not expect an evaluator to
involving PA, and intervene early rather than late. comb through a mountain of haphazard documents and
Such a general expert can also answer hypothetical materials and find corroborating evidence to support
questions from attorneys and/or judge, which can help the client’s narrative. It’s the lawyer’s job to help the
link the educational testimony to the facts of the case. client present an accurate, complete, and organized
In contrast, the case-specific expert, in addition to the narrative to a forensic evaluator.
educational testimony, would also testify about the
facts of the case, and would proffer an opinion as to (12) Counsel the client to follow court orders and
whether PA exists in the case, and if so, what should be show respect towards the court and the legal
done about it. There are pros and cons associated with process. Targeted parents typically suffer from chronic
each kind of expert and a lawyer should weigh these frustration and an overwhelming sense of helplessness.
carefully before making a decision. When no relief is in sight and alienation continues,
there is a risk that the targeted parent may want
(10) Prepare the client for a forensic evaluation. PA cases to “shake the things up.” Often, a lawyer’s refusal
often involve forensic evaluations. Make sure that or failure to seek timely action adds to the parent’s
the client understands that a forensic evaluation is an frustration and outrage. A frustrated client is likely to
investigation, not therapy. One of the sure-fire ways to express her frustration in an unhelpful manner. She
tank a forensic evaluation is for a lawyer to counsel her may speak out of turn at a court hearing, refuse to
client “to be herself” when meeting with the evaluator. make a child support or alimony payment, and vent
Remember the Snickers commercial where a belligerent her frustration by posting unhelpful comments on
Joe Pesci turns into an affable young man after taking social media. But a client who knows that her lawyer
a bite of the candy bar? Sending an unprepared not only cares about the case but is also working
targeted parent-client to an evaluation is like sending diligently to execute a plan of action will not only
in ornery Joe Pesci. A client who is distressed by her be easier to deal with but will be an important ally
children’s rejection, who is outraged by the repeated in preparing the case for litigation. Some of my best
violations of her court-ordered parenting time, who is outcomes in litigating parental alienation cases have
frustrated having been through several baffling and been when the clients undertook the task of gathering
infuriating “therapy” sessions with her children, is a and organizing a mountain of information for use in
person who has undergone trauma. Without proper litigation. Encourage and empower the clients to help
preparation, such a person, typically, is ill-equipped to you help them.
present a coherent picture of the family dynamics to an
evaluator. Unless the lawyer takes the time to ensure (13) Understand that time is the enemy. In PA cases,
that the client understands the dynamics of a forensic delay only serves the alienating parent and can
evaluation, there is a high risk that the client will frequently allow the child to age out and be beyond
rush in and regurgitate the pent-up complaints and the court intervention. Even if children don’t reach
frustration and simply trash the alienating parent. She majority, they frequently come of an age where
risks playing into the hands of the alienating parent judges simply assume that any decision related to
who has or will portray her as “abusive,” “angry,” reunification will be fruitless, or it is simply too late,
“authoritarian,” “devoid of empathy,” or simply or the children will reunite “on their own” as they get
difficult to deal with. Preparing the client for a forensic older. Lawyers who fail or refuse to act appropriately
evaluation is a critical part of litigating parental and in a timely manner end up causing a lot of
alienation cases. If a lawyer does not believe that this is frustration and harm, sometimes irreparable, to the
within the scope of the attorney-client relationship, he clients and their relationship with their children.
should alert the client to the need for preparation and Litigating cases involving parental alienation is chal-
make referrals or suggestions for such preparation. lenging, often frustrating, and, on occasions, painful. It is
gut-wrenching to see a targeted parent’s grief over the loss
(11) Help the client prepare a package of well-organized of a child—a child who is biologically alive, but emotion-
documents for the evaluator’s review. Forensic ally and psychologically dead to the parent. All we can do
evaluators’ findings, recommendations, and opinions as lawyers who represent targeted parents is to promise our
are only as good as the data that they are based on. clients that we will represent them in a competent, diligent,
An experienced forensic evaluator is always prepared and honest manner.
to meet an examining lawyer’s (or judge’s) question,
“Where’d you get that?” and explain her analysis.
Record review is an important part of the forensic Endnotes
evaluation process. Evaluators review a wide variety 1. See, e.g., //www.americanbar.org/news/abanews/publications/
of records—photographs, videos, audio recordings, youraba/2018/april-2018/why-every-lawyer-needs-malpractice-
letters, emails, greeting cards, affidavits, transcripts, insurance/.
court pleadings, school records, therapy notes, medical 2. The American Journal of Family Therapy, 38:292-309 (2010).

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