Our Legal System Misses the Complexity of Parental Alienation. That Needs to Change.

By: Gus Dimopoulos, Esq.

The most accomplished lawyers share a set of common traits. Creativity and confidence are widely recognized, due in part to their frequent portrayal in movies and shows. An equally important – albeit less flashy – trait, however, is precision. The best lawyers meticulously craft arguments word-by-word in order to win cases in court or achieve favorable outcomes in settlement.

As a divorce attorney with close to three decades of experience, I can attest to the impact of precision. Lawyers with careful, decisive styles prevail when litigating the division of assets, and custody disputes. Conversely, lawyers guilty of imprecision or a lack of preparation can do serious harm – to the case, their clients and clients’ family, and their own reputation.

Unfortunately, I can also attest that imprecision is all too common when it comes to one particular high-stakes element of divorce cases: custody battles involving claims of “parental alienation.” Parental alienation is the phenomenon of one parent manipulating a child to poison them against the other, distorting and disrupting the mother-child or father-child relationship.

Parental alienation is a deeply complex and highly controversial phenomenon. It is a thorny mix of child and adult psychology that has been studied, debated, re-studied, and re-debated for decades. Talented social scientists have devoted their careers to examining the subject and have written countless articles, conducted numerous pee-reviewed studies often with dueling and competing findings. As a result, the field is rich with oftentimes conflicting findings, suggestions and conclusions. To effectively argue parental alienation, it is imperative that the attorney is familiar with the competing angles, understand the nuances and can effectively argue for the desired goal. To effectively argue for—or against---parental alienation requires knowledge, expertise, and most importantly, precision.

But this is not the reality in many courtrooms across the U.S. The nuance that social scientists have dedicated to the phenomenon rarely translates. Instead, many divorce attorneys claim “parental alienation” liberally and without proper foundation. Lawyers are quick to deploy it as an expedient attack or defense. I have seen and read about parental alienation being confused with other dynamics or simply bandied about as a catchy phrase to grab judges’ attention. And it works: Many judges, like the lawyers standing before them, also have limited knowledge of the topic. Claiming the other litigant is guilty of parental alienation when he/she is not can do catastrophic damage to one’s case. Conversely, being unable to recognize it when it does exist, or know how to properly address is, can be equally damaging.  

Most importantly, imprecise arguments about parental alienation can place a child in a situation they should not be in, damage the child’s mental health along with the parents’ mental health, and fuel further misinformation about the phenomenon. For these reasons, it is paramount that lawyers develop a deeper understanding of parental alienation.

The history – and evolution – of parental alienation

One parent unduly influencing their child’s opinion of the other parent is not a new phenomenon. However, parental alienation as an academic and legal term is a relatively recent development. The phrase first entered our lexicon toward the end of the 20th century, when American child psychiatrist Richard Gardner coined the term “parental alienation syndrome” (PAS). Gardner, in his research and publications on the topic, believed PAS to be a mental illness present in children.

In the decades since, society’s understanding of “parental alienation syndrome” has evolved into “parental alienation” – and Gardner’s initial classification has faced serious criticism. The phenomenon today is rarely viewed as a mental illness or a creation by the child. Instead, it is understood to be a complicated mix of family dynamics and child and adult psychology. Gardner’s now-defunct definition is viewed as unfairly maligning children and, in the process, downplaying actual abuse by parents. Notably, parental alienation syndrome was never included in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

That shift away from a syndrome is just one aspect of the complexity. Even as society’s fundamental understanding of the phenomenon evolved, our conception of its root causes remained oversimplified. For years – and still in some courtrooms today – parental alienation was viewed as a “single factor” phenomenon: something that exists in isolation and is attributable to just one parent. Experts argue, however, that this perspective is far too reductive. Parental alienation is a messy phenomenon intertwined with additional issues, such as a parent’s emotional immaturity, poor parenting styles, and other behaviors and dynamics. Further, it is rare for just one parent to be responsible for parental alienation; experts contend that both parents can fuel the issue and exhibit problematic behavior^[1].

Over time, society’s relationship with parental alienation has also been influenced by parallel advocacy movements. Dr. Janet Johnston, a leading expert on parental alienation, highlights three key advocacy movements in her seminal 2020 essay, “Parental Alienation: In Search of Common Ground for a More Differentiated Theory,” published in the journal Family Court Review. These movements, Dr. Johnston notes, “have since pressured the family law system with laudable but competing claims [about parental alienation],” adding more controversy to an already fraught topic.

The first advocacy movement arose in the 1970s among those seeking to protect abused women and children. As “no-fault” divorce laws gained traction across the U.S., more cases were encouraged to settle through mediation rather than litigation. However, advocates for domestic violence victims argued that mediation could expose vulnerable parties — particularly women and children — to coercion by abusive partners. These advocates pushed for greater recognition of parental alienation and other forms of abuse as a means to bring custody cases out of mediation and into the courtroom.

The second advocacy movement sought to promote a more active role for fathers in child-rearing, particularly in divorced families. Our society and legal system have transformed in the past few decades to expect greater fatherly involvement. This shift has led more fathers to argue for custody or shared custody in court – and amid those court cases, accusations of parental alienation can proliferate.

The third movement emphasized the importance of amplifying “the voice of the child,” in Johnston’s words. “Societal norms have come a long way from the era in which children were 'to be seen and not heard,'” she explains. There is an externality of this children’s rights development, however: “Co-parenting conflict can create a power vacuum that the child’s voice can prematurely fill,” Johnston notes. This dynamic can lead to behaviors from children that are often conflated with parental alienation.

Leading voices on parental alienation

While the legal system frequently misunderstands parental alienation, it is not for a lack of available research or expert guidance. Several prominent scholars and practitioners have contributed invaluable insights into the phenomenon, offering tools and frameworks for lawyers and judges alike.

Dr. Amy J. L. Baker, a developmental psychologist with a PhD from Columbia University, is one of the leading figures in parental alienation research. She has authored nearly a dozen books, including the influential “Parenting Under Fire: How to Communicate with Your Hurt, Angry, Rejecting, Distant Child.” Dr. Baker does not simply study the phenomenon – she also crafts tools and frameworks for confronting it. She pioneered “The Baker Model for the Identification of Parental Alienation,” five factors for determining whether parental alienation is present.

Another prominent expert is Dr. Richard Warshak, a psychologist and author best known for his book, “Divorce Poison: How to Protect Your Family from Bad-Mouthing and Brainwashing.” Dr. Warshak’s work not only focuses on the phenomenon itself, but also how it is discussed and understood at large – and what that means for parents and children at the center of the issue.

Dr. Janet Johnston has also made significant contributions to the field, particularly in emphasizing the gradations of parental alienation. Dr. Johnston argues that the phenomenon exists on a spectrum, ranging from mild to severe, and that no two cases are identical. For example, in mild cases, a child may initially feel standoffish toward the alienated parent but can quickly warm up during interactions. In contrast, severe cases may involve a child who exhibits hatred or fear toward the alienated parent, often due to the alienating parent’s deliberate and sustained efforts to sever the relationship.

It should not come as a surprise that a complex phenomenon like parental alienation has many different shades, yet this complexity is often absent in the courtroom. Many within the legal system still see parental alienation as a binary without grey areas. Addressing such a complex issue requires moving beyond binary thinking and adopting tailored interventions that consider the severity and unique dynamics of each case. No discussion of parenting alienation claims in custody litigation is complete without first understanding how the Courts have determined cases involving these claims.

Key Decisions Involving Claims of Parental Alienation Offer Little Guidance

The most challenging part of reviewing previous Court decisions to offer guidance on current cases is that no two cases are the same. The facts are always different, as are the ages and personalities of the children, and the conduct of the parties. Thus, determining themes amongst the cases is critical.

Moving toward a more sophisticated understanding

What steps can the legal system take to address its misconceptions around parental alienation? It begins with education. Continuing education programs for those working in the family law space should incorporate the latest research from experts like Drs. Johnston, Baker, and Warshak. Lawyers must remain current on emerging studies to ensure their arguments are precise, informed, and effective. Research continues to publish, and our understanding of the phenomenon could evolve just as drastically as it did between 1985 and today.

Best practices should also guide how lawyers and judges approach parental alienation in court. Dr. Johnston, in her Family Court Review essay, advocates for a systematic approach that, unsurprisingly, emphasizes precision. She writes: “Before opining on PA in a specific case, it is responsible practice to a) define PA terms precisely and use them, consistently, b) disclose all sources of information about the case, and c) summarize the theory or process about PA that informed the formulation of that opinion.” Dr. Johnston also recommends deploying the term “parental alienating behaviors,” since specific behaviors can more easily be observed and evaluated. 

Dr. Johnston and others advise that interventions be calibrated to the severity of the parental alienation, ranging from psychoeducation and family counseling to — in severe cases — the modification of custody arrangements. Lawyers should also take it upon themselves to educate their colleagues, correcting misconceptions and promoting accurate understanding whenever possible.

A call for cooperation

Families achieve the best outcomes when divorcing parents collaborate rather than compete. While some cases inevitably require litigation, many are able to be resolved through mediation. Custody battles themselves — and the fear of losing them — can often exacerbate or even trigger parental alienation behaviors. By prioritizing mediation and fostering cooperation, parents can mitigate harm and prioritize their children’s well-being.

Parental alienation is an intricate and deeply personal issue, and addressing it requires a combination of legal expertise, psychological insight, and genuine compassion. For the sake of the families involved, it is time for the legal system to rise to the challenge.

^[1] While not directly relevant here, another trend in this area is the development of a concept referred to as “Resist and Refuse Dynamics.” With Resist and Refuse, a child generally has difficulty visiting or spending time with one parent, but there is little evidence of deliberate conduct by one parent. This concept examines all factors that lead to a child’s refusals, which may include parenting deficiencies, housing issues and is generally deemed to be multi-faceted.