Recent Posts in Child Custody Category

Parental Alienation - A Corrosive Legacy 
By Judge Michele Lowrance

I have been a judge on the divorce bench for 16 years, and have watched the wreckage of the corrosive legacy of parental alienation and visitation interference play out over decades. We have no statistics for measuring this group, because the victims are too vast. But the concentric circles include the children, their children and the extended family as well. The declaration of war by one parent on another creates radioactive fallout, which contaminates for generations.

The alienating parent treats the target parent like a disease in the child that must be removed. They make the child's survival contingent upon such removal. So the child must extricate the parent without the privilege of grieving the loss. These are crippling circumstances.

I have witnessed impassioned declarations of love for a child by an alienating parent to masquerade the venom he/she feels for the other parent. Parents who do this are not interested in mere control. Their stakes are higher: total annihilation of the target parent's bond with the child. Little by little, alienation in a divorce case starts to take root. And when it fully takes root, I see the child's boundaries collapse before my eyes. Soon the child forgets how to protect him or herself, and must align with the alienating parent as if life depends on it -- because it does.

Perhaps curing this degenerating influence may, in the future, be addressed by therapy. But for now, we can and must do better. I want to tell you how to be proactive in court, and how to fight against the inclination to give up like so many hurt, alienated parents -- who are, frankly, not always welcomed in the courts.

Why Cases Involving Parent Alienation are so Difficult

Here are some reasons these cases are so difficult, and why judges often have no love for them:

1. Combative parents present conflicting stories of "he said / she said," and make it very difficult to determine who is telling the truth. Often an alienating parent comes to believe what he or she is saying, and their presentation seems authentic.
2. When targeted parents present their side of the case, they are often angry and frustrated -- and as a result, they don't present very well in court. Judges often consider attitude as influential as content.
3. The children often support the alienating parent by telling the judge, their attorney and mental health professionals how they have been treated badly, and of their dislike, for the target parent. The reasoning skills of alienated children are often compromised, as is their ability to choose freely.
4. Alienated children often won't cooperate with therapeutic intervention, and courts have difficulty enforcing these orders.
5. Judges like to believe that what they do works and it is the right decision. When their decisions don't work, they often get exasperated with both parties.

What You can Do in Courts

Despite these difficulties there is plenty that you can do. Here are some suggestions for handling parental alienation in the courts:

1. Parenting plan orders should be entered as soon as possible.
2. Create an alienation map or chart for the judge, which shows him or her in five minutes what couldn't be said in five hours. This map should include all missed visits, and a list of all the denigrating phrases made by alienating spouse to the children, including the friends and/or extended family of the hated parent (if they are admissible in evidence). If you know how to make a graph, you can show the increase in missed visits in a very compelling and impactful way.
3. Most judges aren't warm to the phrase Parent Alienation Syndrome. Instead, ask the judge to please keep an eye open for visitation interference, as the case progresses, and describe for him or her the maligning behavior.
4. Get a court order for parenting therapy as soon as possible.
5. If orders are violated, go to court on a Rule To Show Cause for violation of the order as soon as possible. If you can't afford an attorney, then do this yourself. Write petition for rule, for visitation violation, for family therapy, or for makeup visitation.

You may be among the many alienated parents I have known, who have grown weary due to the repetitive stress fracture on your heart. Each time your visitation is interfered with, it has a cumulative affect. This can make you hyper sensitive, which easily magnifies your emotional response.

Because your emotions are flooding your ability to reason, writing and rewriting a petition with your attorney is a rational thing to do and gives your thoughts "breathing time." If you immediately act upon your anger, you are just going to make things worse -- and perhaps run the risk that the other parent will get an order of protection against you. Reflect upon the past consequences of your amped up anger. Did you write nasty emails, make hostile phone calls, yell at your child, become overly aggressive, or decide to retreat and do nothing?

The way to tell if your anger serves you is to always ask yourself the following four questions:

1. Does this anger further my constructive goals?
2. Does this anger further degenerate my relationship with my children?
3. In what ways does this anger help me?
4. In what ways does this anger help my spouse?

If your reactions are based upon what has been done to you, you can only respond with hatred. When you do this, you give the alienating parent the "upper hand," because he or she has provoked you to become the hateful person who they are portraying you to be to the children. Don't let someone else provoke, influence, and therefore control how you behave. You run the risk of actually becoming as miserable and dysfunctional of a person as they're trying to portray you to your children. When you react with hatred, you not only play into their hands, you're letting them steer your ship, letting them determine your present and future.

When Your Children Come Home, Who do You Want Them to Come Home to?

As you read this, you may be on the edge of giving up. You may be starting to feel that nothing can work against your former spouse's devotion to destroy your relationship with your children. Even though you may be physically invisible to your children, you will always be visible to them through stories, gossip and second hand reporting from all sources. When we lose a loved one, we often decide to live the way that the departed person would have wanted us to. In the same spirit, when you lose a child to alienation, you need to live as if he or she is watching you. Your long term goal is to become the person your child wants to come home to.

Michele F. Lowrance has been a domestic-relations judge in the Circuit Court of Illinois since 1995. A child of divorce who was raised by her grandparents, Judge Lowrance has been divorced and has devoted her professional life to helping those similarly situated.

In California, the pendulum continues to swing with respect to our "move-away" law.  Based on three recent published opinions from San Diego County, the custodial parent's presumptive right to move has been significantly strengthened.  In order to understand how California move-away law has been changed by these decisions, it is first necessary to understand the two California Supreme Court decisions that set the ground rules for trial courts dealing with this issue.

            During the mid‑1990s the California Supreme Court published a decision entitled In Re Marriage of Burgess, which held that a custodial parent has the presumptive right to move away with the parties' children, so long as the move is not motivated by vindictive purposes, and that there is a rational basis for the move.  The Supreme Court specifically held that the trial court is not allowed to second guess the custodial parent's reasoning for the move.  Thus, even if the trial court believes that the custodial parent's reasoning is a little off and that he or she has the same or better opportunities in California, it cannot deny the move. 

Approximately seven years later, the California Supreme Court published a second "move away" decision entitled In Re Marriage of La Musga, which purported to clarify the prior decision.  In La Musga, the California Supreme Court held that if a non‑custodial parent makes a prima facia showing that the move away would be detrimental to the children and to the relationship between the left-behind parent and the children, the trial court must decide the issue after a full evidentiary hearing, and that the court must decide if the move is in the best interest of the children.  The California Supreme Court also stated that the trial court must take into consideration several common-sense factors such as the distance of the move, whether or not the custodial parent would share custody, whether or not the relationship between the children and the left-behind parent would be damaged by the move, etc.

            In my practice as a family law attorney, I have seen the pendulum swing in both directions on this issue.  After the Burgess decision, the trial courts were pretty much rubber stamping requests for move away and it seemed like any opposition to the move was futile.  After the La Musga case was published, however, trial courts and mental health professionals became very vocal in their opposition to move aways and it became significantly harder for a custodial parent to move away with children if the other parent objected.

            Now, in the wake of the three published cases out of San Diego, I believe that parents wishing to move away with children will have a much better chance of doing so.  Since all three decisions essentially ruled the same way, I will review only one of the cases for the purposes of this article, In Re Matter of Mark T. v. Jaime Z.

In Mark T. v. Jaime Z., the father filed to establish paternity in 2007.  On November 10, 2008 the Trial Court made orders for the father to have overnight visitation.  The mother was obviously given primary custody of the child.  The mother then filed an Order to Show Cause requesting the court's permission to move to the State of Minnesota with the minor child.  The mother's reasons for the move, as stated in her declaration, were that she had support from family members in Minnesota, she had no job in San Diego, and that she was forced to borrow money.  She also stated that she believed she would have better job opportunities in Minnesota.

            In February, 2009, the mother and father entered into a Stipulation and Order that they would participate in a child custody evaluation.  Subsequent to their agreement, a child custody evaluator interviewed the parents and eventually made recommendations.  However, while the custody evaluation was underway, the parties entered into a second Stipulation and Order that acknowledged the mother was the primary custodial parent.

            In June 2009, the child custody evaluator released her report.  The child custody evaluator stated that the mother's need for her family support in Minnesota was no substitution for the child's need to be with the father.  The Trial Court followed the recommendations of the evaluator and precluded the mother from moving to Minnesota because the Trial Court believed that the move would have a detrimental effect on the child.

            The mother appealed the decision.  The Court of Appeal reversed and remanded the case back to the Trial Court with specific findings that:

            1.         When faced with a move-away request, the Trial Court must decide custody based on the assumption that the move will take place and determine what custody arrangement is in the child's best interest if the move occurs;

            2.         The Trial Court applied the incorrect legal standard in ruling on the mother's move-away request because it based its order on an assumption that the mother would not move if the Trial Court denied the request;

            3.         The Trial Court's order was impermissibly coercive;

            4.         The child custody evaluator's report failed to address what the proper parenting plan would be if the mother moved to Minnesota and the Trial Court erred by adopting the child custody evaluator's recommendations;

            5.         The father's attorney should not have been allowed to question the mother regarding whether or not she would move without the children; and

            6.         Improper motive for move is only one factor for the Trial Court to consider and it is not an automatic ground for a custody change.

            Consequently, the Court of Appeal held that the Trial Court abused its discretion by failing to apply the proper legal standard for making the move-away orders.

            The lessons that we learn from the three cases from San Diego are very important.  First, we now know that trial courts may not coerce parents into remaining behind by giving them a choice of either staying and having primary custody of the kids or moving away without the children.  Second, we also learn that it is not permissible for a child custody evaluator or an opposing counsel to ask a custodial parent if he or she will in fact move if the children were ordered to remain with the other parent.

            Practically speaking, now a trial court has the tough decision of deciding where the children should live, assuming that the custodial parent has already moved.  In Mark T. v. Jaime Z., the Trial Court should have decided whether the children were better off with the mother in Minnesota or with the father in San Diego.  Obviously, if the parties have already stipulated that the children are better off with the mother on a primary basis, it will be difficult to assume that they would be better with father in the case of a move away.  I believe that these decisions will cause more people to litigate over who should have primary custody because if the primary custodian decides he or she wants to move, it will be pretty difficult to object in most cases. 

After seeking assistance from a Pasadena divorce attorney, non-custodial parents often find themselves wondering how to handle visitation with their children. The idea of scheduling time to spend with your child takes some getting used to, but visitation can be a positive experience for everyone involved if it's handled appropriately.

In many cases, the natural impulse of the newly divorced non-custodial parent is to try to pack visitation times full of activities. Movie nights, bowling trips, shopping sprees, or amusement park visits are fine for special occasions, but they shouldn't be a regular occurrence. When you lived with your child on a full-time basis, it wasn't your job to entertain him every minute of the day. Treat visitation the same way. Special activities are fun, but the goal of visitation is to allow you maintain a normal relationship with your child. This includes things like assigning chores, helping with homework, and visiting extended family members as well as simply spending a quiet night together at home.

Non-custodial parents who are having financial difficulties often downsize to smaller living quarters. However, you should try to have a separate bedroom for your child if at all feasible. It's important for your child to feel like he is more than just a visitor in your home. It's not necessary to spend thousands of dollars on new furniture, but it is a good idea to encourage him to bring favorite toys, posters, or other items to help decorate his room so it feels like a warm and inviting place. If it's not possible for your child to have a separate bedroom, at least make sure he has adequate space for his personal belongings during visitation times.

Realize that visitation is often traumatic for children of divorce. It's perfectly natural for a child to miss his other parent during visitation times. Allowing phone calls, emails, or web cam chats can be helpful in alleviating some of this homesickness. Let your child know that it's OK to miss his mom or dad and encourage him to talk about his feelings with you. Never say anything negative about your ex while your child is present or make statements that could be interpreted as asking your child to pick sides in your Pasadena divorce.

In most cases, family law lawyers in Pasadena will tell you that non-custodial parents have the same rights as custodial parents in regards to their child's education. Unless there is a court order to the contrary, a non-custodial parent is allowed to participate in parent teacher conferences and school activities. He or she is also entitled to copies of documents relating to a child's education, including test scores, report cards, and progress reports. However, many schools will assume that communication should take place with the custodial parent. If you want to make alternative arrangements, you will need to speak to a school administrator directly. School officials are understanding of the many different home situations their students are dealing with, but they won't know about your divorce unless you make an effort to keep the lines of communication open.

According to the American School Counselor Association, some schools have policies saying that a custodial parent will be notified as a courtesy if the non-custodial parent has been contacted regarding a child's performance at school. Depending upon the circumstances surrounding your divorce, this may be an issue you wish to discuss with your child's teachers.

For most married couples, one parent takes the role as the dominant authority figure when it comes to communicating with teachers and making decisions regarding a child's education. Unfortunately, this dynamic doesn't work well after a divorce. Studies have shown than children with divorced parents benefit from having both their mother and father involved in their education. However, as a non-custodial parent, you must realize that staying involved will require more of a conscious effort on your part.

If you have remarried after your divorce, you may be wondering what rights a stepparent has in regards to a child's education records. The Family Education Rights and Privacy Act (FERPA) is the federal statue that governs access to a child's education records. This law defines a parent as "a natural parent, a guardian or an individual acting as a parent in the absence of a parent or a guardian." A stepparent is considered to have the same rights as a natural parent in regards to educational records if he or she is present in the child's home on a regular basis. If you are the non-custodial parent, therefore, your new spouse's rights will be limited under FERPA.

by Jill Burrett and Michael Green

Separation always disrupts the familiar patterns of family life. Routines and responsibilities that had been established as the family grew and developed have to be renegotiated. How your family operated probably came about without a lot of proactive planning. It's unlikely that either parent worried too much, especially in happier times, about who did what and how much actual time each spent doing the hands-on stuff of day-to-day family life.

Why families work well

Traditional family life has its own built-in efficiencies that work well for children, if not always for parents. Children can see both of the most important people in their lives every day. Busy parents can feel connected with everyone on very little time. Each parent takes on responsibilities that fit their skills, availability, and interests, and a natural division with commonsense delegation of domestic activities develops. Whatever partnership frustrations and disappointments you are struggling with, the family you have created is the only one your children know and is what they depend on for their security. It's an effective and uncomplicated arrangement for your kids that meets their growing needs even if it doesn't always work for you.

Why separating means big changes

Because you're living separately, you have to adjust to a system of parenting in shifts, in which you are completely on or off. You may have to go for days without seeing your kids, and you might not have bargained on making that adjustment until they were much older. Now the kids are off to their other home for parts of the week, leaving you feeling stranded and unsettled.

The scene is set for you both to start worrying about potential grievances and uncertainties: what's fair, how to juggle everything so you don't lose touch, whether the kids will love you less if you're not there all the time, who's paying for everything for the kids, how a parent who's never been around much for them can look after them properly, and so on. Research on children of divorce has produced varied results. However, there is agreement that separation can put children at serious risk in a number of ways. Currently, about 80 percent of the children whose parents are separated live in sole-mother custody arrangements, and around a third of them have little or no contact with their fathers. The common arrangement for parenting children after divorce living with Mom and visiting Dad often leaves everyone dissatisfied. There is evidence that it does little for parent child relationships and can reduce one parent to onlooker status. Children cared for mainly by mothers can too easily lose contact with their fathers. Mothers can find parenting on their own a tough task and need relief and support. Fathers who experience difficulties maintaining contact often withdraw from their children's lives, with negative consequences for themselves and for the children.

But recent research brings us good news: children in shared-care arrangements appear to be better adjusted on several levels; and many studies show that most parents with majority care want their ex-partners to see more of the children.

What should parents do?

Because families are all different, no one post-divorce arrangement can be in the best interests of all children. It's how you parent, not how many hours you put in, that matters, although quantity of time is relevant because it supports quality parenting.

Parenting takes patience, self-sacrifice, and self-analysis. Separation is an opportunity to rethink your parenting priorities. Your children need time-meaningful time-with both of their parents. They need to feel you are available. They need you to give them guidance, sympathy, discipline, and supervision. They need you to convey a strong sense of their importance to you despite your other priorities. Quality parenting takes time, but having time with your children is no guarantee that your parenting is going to be meaningful and constructive, unless you make sure it is. What your kids want, need, and deserve is emotional commitment and active participation from both of you, however their time with you is divided, provided you both have plenty of time with them.

Shared parenting can produce happier children and more satisfied parents

Shared parenting allows both parents substantial time with their children, during which they have full responsibility for day-to-day decisions about them. There is no "major caretaker" or "custodian" of the children, no "part-time" or "visited" parent. Time-sharing may be equal, or something approaching that. Both parents share responsibility and authority for their children's upbringing; both are acknowledged to be equally important for the lives of their children; both have the duty to foster their own and each other's healthy and meaningful relationships with their children.

Consider a radical overhaul

"Equal time-share," "fifty-fifty," "joint custody" whatever you call it may not be the most practical, desirable, or affordable one for all sorts of reasons. But there's no reason why your starting point for planning how you organize yourselves shouldn't be a level playing field. Your children are your equal responsibility. This was your starting point for family life as you planned and expected it to be, and separating shouldn't and doesn't need to change this. Whatever has happened between you two that caused you to separate, and however angry or resentful you might feel about it, your kids need you both.

So start thinking about parenthood continuing as fully as possible for both of you, about the scope for engaged parenting developing in new ways, and about what changes (in attitude and output) you're going to have to make if shared parenting is to work well for your children:

• Put your children's welfare ahead of your own feelings
• Believe that your children love and need two parents
• Recognize and accept that everyone is different, and different in their parenting
• Work out a parenting plan that is creative and flexible
• Keep at it through thick and thin

Shared parenting can work, and children today will benefit enormously if there's more of it.

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This article has been edited and excerpted with permission from Shared Parenting: Raising Your Children Cooperatively After Separation. Copyright © 2009 by Jill Burrett and Michael Green, Celestial Arts, an imprint of Ten Speed Press, a division of the Crown Publishing Group, Berkeley, CA.