Combating False Allegations of Parental Alienation (PAS)

Abusers sometimes use false allegations of parental alienation against the protective parent to help deflect away from the abuse allegations and to turn the tables on the protective parent. Unfortunately, it works. Thus, as a protective parent, you need to make sure you have evidence to prove that you have not alienated your child(ren) from the abusive parent.

For protective parents trying to prove that their child has been sexually (or physically) abused by the opposing party in a custody case (whom I will refer to as "the abuser"), one of the most difficult things for protective parents to do is to allow the child to go to visits with the abuser during the pendency of the case, especially if the abuser has been granted unsupervised visitation pending the trial.

However, it is absolutely critical to follow the Court’s Orders. If you withhold visitation and are found in contempt of court, you could risk losing custody of your child to the abuser. It is equally important to appear to encourage your child’s relationship with the abuser during the pendency of the case because if you do not, it will be used against you. One of the biggest factors in custody cases is that judges want to give custody to the parent who will encourage the child’s relationship with the other parent.

Obviously, this sounds crazy when you are convinced that the other parent is sexually abusing your child, but you have to be ever mindful of it and actually do things that will prove that you have encouraged the child’s relationship with the other parent, despite what you believe. When a protective parent talks badly about the abusive parent, allows others to do so, or does other things to make the child fear or hate the abuser, then the protective parent is in danger of being labeled as having alienated the child from the other parent.

Of course, one of the most critical factors in proving parental alienation is that the child actually has expressed or otherwise exhibited hatred or fear of the abusive parent. These cases can make a protective parent a bit crazy because it should be perfectly normal for a sexually abused child to fear or hate the abuser, but it is more likely that the child actually loves the abusive parent.

Moreover, if evidence of alienation is shown in the custody (psychological) evaluation or any other evidence (including the abuser’s own testimony) at trial, it will be used against the protective parent and could work to give the abuser custody of the child.

It sounds crazy to do nice things for the abuser, but it will help you in your case and fend off any attempt by him to say you have alienated the child from him.

Here are some ways to make sure you have evidence that you are NOT alienating your child from the abuser. With all of these, you need to take photographs of the items or make copies of them to keep for evidence:

• Have the child make gifts and/or cards for the abuser (birthday & all holidays).
• Make sure the child calls the abuser at least every other evening, preferably from a cell phone so you will have a record of the telephone number called.
• In writing (email is fine) inform the abuser in advance of all regular doctor and dental appointments, and teacher’s conferences, and invite him to attend (unless you have a domestic violence restraining order against him), and if he does not attend, send him an email letting him know what happened and what the doctor said or recommended .
• Set up and use ourfamilywizard.com as a communication tool between you and the abuser.
• Make copies of all school report cards, progress reports, notes from teachers, and examples of the child’s school work and send these to the abuser with a cover letter saying please find X enclosed. You can send US Mail with tracking so you have proof it was received without the recipient sign for it. Keep copies of your letters and keep the originals or copies of the things you have sent.
• Send the abuser school pictures, even a few extra for his family, again with a cover letter, and keep a copy for yourself.
• Be polite and professional in all your communications with the abuser. Remember, everything you say can and will be used against you. He is probably taping your every call.
• Do not send adult communication through the children -- always communicate it directly to the abuser in writing.
  

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When the Guardian ad Litem goes the other way ...

In a custody case, sometimes a judge will appoint a guardian ad litem ("GAL") (sometimes called a CASA) to represent the best interests of the children. Sometimes the GAL is a lawyer, sometimes not. Sometimes the GAL is a volunteer, but often the parents end up paying for the GAL's time, especially if the GAL is an attorney. Another time, I will address the issue of how to deal with the GAL during the case (there are many answers to that question), but now, I'm just addressing the situation where the GAL has done her (or his) investigation, written her report and made recommendations to the judge as to what custody and visitation arrangement the GAL thinks is in the best interest of the children. When the GAL recommends that the other parent have custody (full or primary), you have a big dilemma. If you sit back and do nothing about it, there is a strong likelihood that the judge will "rubber stamp" or adopt the GAL's recommendations. The judge sees the GAL as a neutral person who is only looking out for what is best for your child(ren); so, the GAL's recommendations carry a lot of weight in the judge's custody determination. This common knowledge is the reason why many parents in custody cases end up settling the whole custody case based on the GAL's recommendations -- because their lawyers have told them that it's no use going to trial, that the judge is just going to do what the GAL recommends. So, the question is, what can you do if you are in that situation where the GAL goes the other way, recommends that custody of your children should be awarded to the other parent? At that juncture, you really ought to dig up the money for your lawyer to take the GAL's deposition and subpoena the GAL's complete file to the depo. A deposition is sworn testimony of a witness taken outside of court before the trial (usually in one of the lawyers' offices) in front of a court reporter. The purposes for taking a deposition are in large part to find things out (called "discovery") and also the pin the witness down to a certain version of the facts (their truth / their opinion / their perspective). A deposition can be and is often much longer than the actual trial testimony of that witness. It helps the attorney know what the witness is likely to say in court. One of the most important rules for trial lawyers is don't put a witness on the stand if you don't know what she/he will say. There are many ways to find out what the witness will, or is likely to say, but in my opinion, taking their deposition is the best way, provided that the attorney is prepared for the depo and skilled at taking one. It is an art. It's even fun sometimes (for the attorney, that is). Lawyers usually only take depositions of witnesses for the opposing party because friendly witnesses will talk to you for free (ie, you don't have to pay a court reporter). So, in this situation, I think that it's important for the lawyer taking the GAL's depo, to go through the GAL's experience, qualifications, education and training in the issues involved in the case and also just with custody cases in general, the GAL's background, methods used in the investigation and coming up with the GAL's recommendations, things the GAL was supposed to do & did or didn't do (or how long ... like only observing the children for an hour with each parent), really get into the nitty gritty of why the GAL made this decision, explore any possible biases the GAL might have, and get the GAL to admit that she didn't consider certain things before making her recommendations. In my opinion, you really need this to do the GAL's depo in this situation, and you need to challenge this GAL's qualifications, method, report, recommendations and possible biases or else the judge very well may agree with the GAL as judges, not only think GALs are non-biased, they also appreciate that GALs can investigate the case as the judge really can't do. So, you have to get the judge to doubt the reliability of the GAL. If you don't, you are going to be in trouble. I would NOT roll over and consent to the other parent having custody without a major challenge to the GAL ... also, with that kind of recommendation, it sounds like you need to go to trial if you want custody of your children ... you need to ask your lawyer, what more do I have to lose??? You need to talk with your lawyer about whether the GAL is also recommending that you have supervised or very limited visitation/access -- if that is the case and the other parent will settle with you having unsupervised and liberal visitation/access, then you might want to consider trying to negotiate a settlement you can live with. You need to talk to your lawyer about what other evidence you have that would contradict the GAL's report. After the depo, you should weigh out the risks of taking the case to trial versus trying to settle the case. I hope you have an aggressive attorney. The GAL just changed the power equation with the recommendation that the other parent have full custody. Good luck!!!

A few housekeeping matters ...

If you are an opposing party in one of my cases, please do NOT post any comments on my blog. I cannot talk with you. I don't want to even read any comments from you before I delete them. I'm not meaning to be rude, but I have to follow the ethical rules. Also, this blog is NOT about the Holleman v. Clay Aiken, et. al. case. All comments on that case will be deleted so please save your energy. All spam will be deleted too. Finally, (all lawyers should be really careful about saying that word!) I cannot give you legal advice about your case on this blog. If you need legal advice, you can contact my office or another lawyer. I am only licensed in NC, FL & DC; so, when I practice in other states, I have to come in pro hac vice with local co-counsel. (See, I shouldn't have said that word!) ... Let's get started!