8.8.3 Parental Alienation Claims

The use of custody evaluations in abuse cases makes it much more likely that the parent with a history of abuse will benefit from inadmissible and discredited “parental alienation” theories.  A 2023 United Nations report described “parental alienation” as a “highly gendered” pseudo-psychological concept that has gained traction in family courts globally, despite having been rejected by the relevant medical, psychiatric, and psychological communities.1  As explained in the report, “[t]here is no commonly accepted clinical or scientific definition of ‘parental alienation’. Broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.”2  Perpetrators of abuse invoke “parental alienation” in custody cases as a way of discrediting legitimate reports of abuse—by accusing the abused parent, or the protecting parent of an abused child, of coaching or poisoning the child against them.3  Some states, like Louisiana, have adopted “friendly parent” provisions in their child custody statues that abusers often invoke when making parental alienation claims, asserting that the parent who is trying to protect a child is an “unfriendly” parent who is unwilling to facilitate a relationship with the other parent.4  The U.N. report provides a clear, comprehensive overview of “parental alienation” theory, its use by domestic violence perpetrators in family courts, and the devastating extent to which it has endangered victims of domestic violence and their children.5

The first thing lawyers need to know about “parental alienation” theory is that it is not a mental health diagnosis, it is a legal defense. The defense strategy involves accusing the abused or protecting parent of “parental alienation” if a child reports abuse to her or a third party or the parent who has been subjected to abuse seeks visitation or contact restrictions on the abusive parent. Under parental alienation theory, a child’s report of abuse, her alignment with the safe non-abusive parent, or her rejection of the abusive parent, is attributed not to the child’s experiences of abuse but to a mother who is vindictive and has “poisoned” a child against their father.6

The defense is highly effective, in part because the harder the mother tries to prove the abuse or protect the child, the stronger the abuser’s alienation claim becomes.7  For example, if the child continues to report abuse after being disbelieved, the reports become evidence of continued brainwashing and the mother’s recalcitrant position; if the child’s therapist opines that the child is abused, the therapist is demeaned as biased and contributing to the brainwashing at the mother’s behest; if the mother seeks to have her child professionally evaluated, her conduct is labeled medical or psychological abuse; if the mother provides reassurance or guidance to the child about how to distinguish between healthy relationships and abuse, or does anything to acknowledge how the child’s experiences with or exposure to abuse has impacted them, the mother is accused of undermining the other parent. “High-conflict” litigant has become a code word that courts and custody evaluators often use for victims who fight for appropriate restrictions on a dangerous parent.  Ironically, mothers who fail to respond appropriately to their children’s reports of abuse and fail to seek out treatment or assessment, risk losing their children for failure to protect. Because any course of action can be used against them, the “parental alienation” defense creates a legal “catch-22” for protecting parents of abused children.

The parental alienation defense is highly gendered and is especially effective against victims of abuse because of the way it plays into cultural tropes about vindictive women. It shifts the burden onto victims to show that they are not alienating the children, while the party making the alienation accusation need only prove that the child is afraid of them or aligned with the other parent. The party alleging alienation need not prove any actual conduct by the parent accused of alienation. Instead, they show only that the child disclosed abuse, aligned with the parent accused of alienation, or is fearful of the parent accused of abuse and then the alienation is presupposed. In other words, the evidence of abuse is the evidence of alienation.

The parental alienation defense is delivered to family courts primarily through testimony from custody evaluators who label victims “unfriendly parents” or “alienators” when they seek restrictions on an abusive parent. From a legal standpoint, testimony about parental alienation syndrome (or related parental alienation theories named differently) should be excluded under evidentiary standards for admissibility because it is not supported by empirical science and has been rejected by researchers.8  But from a practical standpoint, most courts conduct little evidentiary gatekeeping for custody evaluations or the flawed unscientific theories they rely upon, like parental alienation. So, attorneys should expect resistance from family courts if they contest custody evaluations or challenge the scientific validity of the testing and theories relied upon by evaluators. Courts routinely rely on concepts of parental alienation to find allegations of abuse not credible.

It is important to note that the unscientific “parental alienation” theories espoused by many evaluators differ from legitimate psychological concepts of alignment, estrangement, and alienation. Some parents do engage in behavior that denigrates the other parent and damages the relationship between the child and the other parent.9  In fact, this type of conduct is a prevalent feature of the parenting style seen in batterers.10  But instead of relying on testimony about a mystery syndrome that presupposes its conclusion, lawyers and experts should prove the conduct that the party is accused of engaging in. In other words, lawyers representing victims should present evidence and testimony to prove the ways the abusive parent deliberately undermines the victim’s parenting and denigrates her to the children—and avoid relying on unscientific theories that are harmfully deployed against victims.

• 1Reem Alsalem (Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences), Custody, Violence Against Women and Violence Against Children, U.N. Doc. A/HRC/53/36 (Apr. 13, 2023).
• 2Id. at 3.
• 3Joan S. Meier, The Misuse of Parental Alienation Syndrome in Custody Suits, in 2 Violence Against Women in Families and Relationships 147 (Evan Stark & Eve Buzawa. eds., 2009). At most, parental alienation is a legal hypothesis to explain a problem in a parent-child relationship. Id. at 150. The theory is not supported by empirical evidence and has been broadly discredited as a scientific theory. Id.
• 4See La. C.C. art. 134(12) (requiring that courts consider in awarding custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party” (emphasis added). The italicized “except” clause above resulted from a recent amendment, which presumably makes it harder for an abuse perpetrator to use the statute against a victim parent or protecting parent.
• 5Alsalem, supra.
• 6Id. at 148.
• 7Id. at 149–50.
• 8See Nat’l Council of Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
• 9Cf. La. C.C. art. 134(A)(12) (requiring that courts consider when evaluating custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party”). Note that the provision does not apply in domestic abuse cases. See La. C.C. art. 134(B).
• 10Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).