Fred and Mary were married in 1989. They had one son in 1994 and in May, 1996, they separated following Fred's disclosure that he was having an affair with a co-worker and wanted a divorce. By the time their wrangling over custody came to the Vermont Supreme Count in the US, in April and May of 1997, Mary was living with their three-year-old child in the marital home and the father was living with his new partner and her children.
Both of them had been good parents with responsible jobs. Before separation, they shared in meeting their baby's childcare needs. Mary arranged her work to have Fridays off to spend with the child. Fred took the child to day-care in the morning, visited him there during the day and brought him home at night. Mary generally took time off from work when the baby was sick, took care of his clothing, did his laundry. During the divorce proceedings, the court found that both provided the child with love, discipline, structure and guidance and that either would be fit to serve as the custodial parent.
After the separation, Fred voluntarily moved out and the mother and child continued to reside in the family home. Almost immediately, Mary began to impede Fred's access to the baby, forcing him to take a number of court motions to establish an emergency visitation schedule. Mary filed a succession of petitions alleging that the father had physically and sexually abused the child. The allegations ranged from nappy rash to sunburn, cuts and bruises and inappropriate touching. These petitions further disrupted Fred's access to his child.
The court found that none of the abuse allegations was substantiated and all of the petitions were ultimately dismissed. Indeed, they found that the excessive number of approaches to the court by the mother were weak at best and, in fact, that the mother had "imagined abuse where there was no abuse".
The court also found that the mother's actions were the result of a heightened distrust of the father because of his marital infidelity and that her baseless suspicions had adversely affected the child, in that he was no longer as loving towards his father as he had once been.
A team of psychiatrists, appointed by the court, observed that the child interacted well with each parent but noted that the mother's repeated accusations had damaged the child's relationship with the father. It warned that if such accusations continued, they would seriously compromise the father/child relationship.
The court awarded sole parental rights and responsibility to the mother, albeit "with some hesitation". The court found that the child had an extremely close, emotional relationship with the mother and that "upsetting that relationship was likely to be detrimental to the child".
The court further observed that the mother had sought counselling to overcome her emotional problems resulting from the divorce and concluded that she would be able, "in a reasonable period of time, to help repair the damage she caused to the relationship between the father and child and could actively encourage frequent and open contact between them". To ensure that this occurred, the court specifically ordered the mother to encourage the child to keep a warm and loving relationship with the father. It forbade either parent from making disparaging remarks about the other in the child's presence and ordered extensive visitation with the father, totalling about 50 per cent of the child's time.
In my work as European Parliament Mediator for Transnationally Abducted Children, I have observed some excessively traumatic situations where I have been appalled at what some parents are prepared to do to their children in the context of the break-up of a relationship. Increasingly, in the US, courts are holding that conduct by one parent that tends to alienate the child's affections from the other, is so inimicable to the child's welfare as to be grounds for a denial of custody or a change of custody from the parent guilty of such conduct. And in some US states, parental alienation syndrome is now a criminal offence for which a parent could be jailed.
All issues relating to child custody have the best interests of the child as their base. Children are not responsible for the misconduct of their parents towards each other and should not be uprooted from their home merely to punish a wayward parent. The belief that attention should be directed to the needs of the child rather than the action of parents is the basis for all child welfare legislation. Nevertheless, a child's best interests are plainly furthered by nurturing the child's relationship with both parents and a sustained course of conduct by one parent designed to interfere in the child's relationship with the other casts serious doubts about the fitness of the offending party to be the custodial parent.
A growing body of case law in the US has probed the issue of what is now known as parental alienation syndrome. One of the courts declared the desires of young children subjected to distortive manipulation by a bitter or even well-meaning parent do not always reflect their long-term best interests. Although stability is important, the short-term disruption caused by a change of custody may be more than compensated for by the long-term benefits of a healthy relationship with both parents.
Courts are enjoined to be wary, however, of over-reliance on the child's emotional attachment to, or expressed preference for, the offending parent. Where the evidence discloses a continual course of conduct by a parent designed to poison a child's relationship with the other parent, a change of custody from the offending parent may well be in the child's best interests in the long term.
Another phenomenon in contentious custody cases - a more subtle but no less invidious form of interference - may take the form of persistent allegations of physical or sexual abuse. A US court reversed an award of custody to the mother where the trial court had inexplicably ignored uncontradicted evidence that the mother had filed numerous false accusations of sexual abuse by the father. As the court observed, "these repeated, uncorroborated and unfounded allegations of sexual abuse, brought by the mother against the father, cast serious doubt about her fitness to be the custodial parent". Other courts have made similar observations where the mother had made numerous, bizarre, outrageous and totally unfounded accusations of child abuse against the father.
Letters produced in evidence from the children have also given considerable cause for concern. A letter received from a young boy, expressing a preference to live with his father, was not the product of a child of his age. The boy's recriminations against his mother, the court found, "clearly reflect the discussions with his father and further persuaded the court of the father's non-constructive role in corroding the boy's relationship with his mother". The court concluded that, while several factors had contributed to the estrangement between the mother and sons, "the single most significant factor had been a constant poisoning of the relationship by the father".
In this case, also before the Vermont Supreme Court, the father had been granted custody of his two sons. In relation to the younger boy, the court expressly found that the mother was more likely to provide suitable custodial guidance. Nevertheless, the court concluded that the boys' hostility towards their mother, encouraged and fuelled by their father, precluded an award of custody to the mother. The court explained: "The father may not deserve to win custody of the boys but he has effectively done so." Accordingly, the court awarded him sole physical and legal rights for the children and granted the mother limited visitation.
Parental alienation syndrome is a cause of considerable conflict between lawyers. In its more extreme form, it reflects an increasingly distressing consequence of marriage breakdown. It can equally be present in families where the relationship has not broken down and the partners continue to live together. On a positive note, increasing research into this area by family therapy groups throws light on families where considerable pain exists within the privacy of the family.
International child abduction frequently includes dramatic elements of parental alienation syndrome. Extremely painful accusations by one or both parents are almost routine. As a result, what should be a relatively simple procedure under the Hague Convention - returning children to the country of "habitual residence" for decisions on their custody - becomes a bitter and heartbreaking war of allegations of misconduct. One woman said: "We started out as two parents who loved our children. Now, because of allegations made by both sides, we are two criminals fighting while our teenage children bear the obvious scars of this process."