Responding to Children’s Refusal to Visit After Separation - Part 3 - LawNow Magazine

Responding to Children’s Refusal to Visit After Separation – Part 3

Family Law ColumnIn the first part of this article, I wrote about the research on children who refuse to visit a parent after separation and how children’s relationship with a parent can sometimes break down for reasons other than the interfering actions of the other parent. In the second part, I talked about the warning signs that suggest a child is at risk of becoming alienated from a parent, about how few claims of alienation are actually proven in court and about how the courts tend to respond to alienation claims that are proven.

In this, the final part of my article, I’ll talk about the options that are available when alienation is suspected or established, and offer some suggestions for how cases involving claims of alienation and estrangement should be handled when they go to court.

Understanding why the child refuses to visit

A child may refuse to visit a parent for a variety of reasons including estrangement, alienation and reasons that are appropriate to the child’s age, maturity and gender. These can include separation anxiety, fear for an emotionally vulnerable parent or a simple preference for one parent over the other, and suggest neither estrangement nor alienation. The steps that are best suited to address a particular child’s refusal to visit a parent depend on why the child is refusing to visit the parent. The interventions appropriate in cases of alienation aren’t necessarily going to be appropriate in cases of estrangement, and children who have distanced themselves from a parent for reasons that are age- and gender-appropriate may need no intervention at all.

Unfortunately, understanding a child’s refusal to visit will usually require the assessment of a mental health professional like a psychologist. It can be very difficult, if not impossible, for the parents to figure it out themselves. No one likes to think that their parenting skills need to be improved and few people who are trying to damage the child’s relationship with another parent are going to admit it.

This assessment should be performed as soon as possible, which may require applying to court for an order if the parents can’t agree. Professor Nick Bala and psychologist Barbara Jo Fidler say that:

“The success of legal and mental health interventions depends on establishing, as early as possible, the reasons a child rejects a parent, and responding before parents and children become set in their attitudes and patterns of behaviour. … Bitter, protracted litigation may transform ‘reasonable’ alignment with one parent into outright rejection of the other, and some cases of severe alienation may be effectively impossible to reverse during childhood.”

This assessment should also identify the intervention most appropriate to the child and the circumstances; this intervention is something else that should be started as soon as possible.

Counselling

Psychologists Joan Kelly and Janet Johnston write that the child and each of his or her parents have different needs that might be addressed through counselling.

In cases of alienation, the favoured parent may need counselling aimed at reducing negative comments about the rejected parent, helping the parent avoid unconscious and indirect expression of negative feelings about the rejected parent, and educating the parent about the harmful effects alienation has on children. In cases of estrangement, the favoured parent may need help supporting the child’s relationship with the rejected parent and responding to the child’s negative statements about that parent.

Rejected parents may need counselling about their reactions to the breakdown of the parent-child relationship, managing conflict with the favoured parent, and avoiding counter-rejecting the child and withdrawing from the parent-child relationship. Counselling may also help to address any parenting or personality deficits that may have contributed to the alienation or estrangement and provide the parent with guidelines for responding to the child’s negative comments.

The first objective of counselling for children will be to shore up the child’s relationship with the rejected parent and ease the child’s resistance to spending time with that parent. Counselling may help children address any traits, such as being anxious, fearful or passive, or having low self-esteem, that increase their vulnerability to alienation.

Therapeutic programs

A number of programs exist in Canada and the United States that are aimed at rebuilding broken parent-child relationships. These programs are run by mental health professionals who specialize in dealing with separation and divorce. They may take place in a camp or resort setting, or they may involve multiple meetings with a team of counsellors with no residential requirement.

Some of the better known programs are the Family Bridges program run by psychologist Richard Warshak, the Overcoming Barriers Family Camp run by psychologists Matthew Sullivan, Peggie Ward and Robin Deutsch, and the Family Forward program run by counsellor Alyson Jones. Unfortunately, to my knowledge none of the therapeutic programs aimed at alienated children, including these, have been evaluated by independent experts and it is hard to say how successful they are or how long-lasting the improvements are when program succeeds.

Options for the court

Warshak writes that the basic options available to the court when a child refuses to visit a parent are:

  • award or maintain custody with the favoured parent, with court-ordered psychotherapy and, in some cases, case management;
  • award or maintain custody with the rejected parent, in some cases with court-ordered or parent-initiated therapy;
  • take the children away from the daily care of either parent; and
  • accept the child’s refusal of contact with the rejected parent.

Although there are variations and nuances, those are the court’s essential choices. However, when an order or agreement about parenting is in place, the court may also:

  • change the parenting order or agreement on a temporary basis, to support the child’s relationship with the rejected parent or give an intervention time to work;
  • make the parenting order or agreement more specific, to remove any opportunity for a parent to make decisions that interfere with the child’s time with the other parent;
  • enforce the order or agreement through things like ordering a parent to pay the other parent’s legal costs, finding a parent in contempt of court or ordering the police to enforce the order; and

appoint a parenting coordinator to work with the family and implement the parenting order or agreement.

There isn’t a lot of research on how well these orders work either. The job of the court does not include policing its orders or following up on the outcome of its decisions; our justice system leaves this to the people involved in a court proceeding.

Handling alienation claims in court

If a court proceeding is underway, or if a court proceeding is inevitable because the parents can’t agree on what should be done, a few things should happen as soon as possible. First, there needs to be an assessment to figure out why a child is refusing to visit a parent. Second, if the assessment recommends an intervention, it’s generally best to get that intervention started sooner rather than later. Letting things slide risks making the damage to the parent-child relationship worse and allowing the child’s feelings to become entrenched and harder to change in the future.

Third, Matthew Sullivan and Joan Kelly recommend asking for close case management of the court proceeding right from the start. They say that getting the case under the control of a single judge can help to:

  • preserve the relationships between lawyers and clients, clients and mental health professionals, and clients and parenting assessors;
  • ensure the continuity of parenting time between the child and the rejected parent; and
  • enforce orders for parenting time, counselling and assessments.

I see three other important benefits of case management:

  • controlling the favoured parent’s efforts to delay and hinder the progress of the case toward resolution;
  • ensuring that applications are heard expeditiously and the case proceeds to trial with a minimum number of delays and interruptions; and
  • providing a way for the mental health professionals to report back to the court on the parents’ compliance with the intervention and its progress.

In my opinion, case management meetings should be scheduled in advance, every two or three months, for example, rather than be left for the parties to schedule when the need arises. Regularly scheduled meetings gives the court the opportunity to check on the parents’ compliance with parenting plans, hear from any counsellors and psychologists who may be involved in the court proceeding and make any orders necessary to get things back on course. They give parents the continuous oversight of a single judge who is familiar with their case. Parents also have the opportunity to check in with each other and the court, and to discuss problems and concerns that might otherwise be too trivial to justify a hearing.

The process of asking for case management changes depending on the court. In some jurisdictions, you can ask for case management by writing a letter to the Chief Justice. In other jurisdictions, you need to need to apply for an order for case management. Although case management can be difficult to arrange at times, when a family law proceeding involves issues of alienation, and even estrangement, case management can be critical the success of mental health interventions and the speedy resolution of the case.

Authors:

John-Paul Boyd
John-Paul Boyd
John-Paul E. Boyd is a family law arbitrator, mediator and parenting coordinator, providing services throughout Alberta and British Columbia, and counsel to the Calgary family law firm Wise Scheible Barkauskas. He is the former executive of the Canadian Research Institute for Law and the Family at the University of Calgary.
 


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