Michael E. Bertin Partner at Obermayer Rebmann Maxwell & Hippel.
From time to time a parent who is undermining the other parent’s relationship with their children is a predominant factor in custody cases. One parent’s undermining of the other parent’s relationship with their children has been termed “parental alienation”, which is a controversial issue in psychological and legal areas. This is because “Parental Alienation Syndrome” (also known as PAS) has been discussed, analyzed and criticized in the mental health and legal fields. However, whether or not parental alienation can be viewed as a “syndrome” does not negate the fact that a court in a custody case may find that one parent is alienating or undermining the other parent’s relationship with children.
The Pennsylvania Child Custody Act and the Court of Appeal require the trial courts to analyze all 16 legal custody factors listed in the Custody Act in order to arrive at a valid custody decision. Parental alienation becomes relevant among many of the 16 legal factors.
In the most recent case of ALB against MDL, ___ A.3d ___, 2020 PA Super. 216 (September 4, 2020) focused on the issue of parental alienation and child custody, leading to the father losing equal custody (50/50) every other weekend to become a partial physical steward. The relevant facts of the ALB case are as follows: the parties had been married for 20 years and four boys were born out of the marriage. The mother had an affair with the neighbors to the parties, who was also a math teacher at the high school that the two oldest children attended. The mother then became engaged to her lover. The marriage of the parties ended because of the mother’s affair with her neighbor. In the opinion, the relationship between the mother and her lover was “a major point of contention in this custody matter. To this end, the court found that this relationship “was the trigger for the divorce of the parties”. [and] the hostility and alienation of the father towards the mother. “After the parties separated, they entered into an agreed-upon agreement that they would share custody and equal custody of the four children week after week. Then there were legal disputes. The father applied for primary custody and asked for an order not ordering contact between the children and the mistress. The mother also asked the father to stop talking to the children about their personal life and financial affairs. The court appointed a custody examiner. The evaluator submitted a 126-page report.
In the opinion of the custody examiner “came to the conclusion that the father alienates the children to a moderate degree from the mother”. The opinion also highlights that the father’s behavior caused the eldest child to alienate his siblings from the mother. The reviewer also found that the oldest child had been diagnosed with anxiety and depression and was prescribed medication for them. The expert recommended that the mother and the children share legal and physical care, as well as reunification therapy and the resumption of individual therapy by the oldest child. Thereafter, the parties applied for custody, among other things. The court then appointed an ad litem guardian. The Guardian Ad Litem noted that the father clearly alienated the children from the mother. The legal guardian recommended that the mother have sole custody of the children and sole custody of the children for a period of 90 days, during which time the father only visits through supervised phone calls or therapy sessions and then gradually increases his physical condition .
The court then ordered the custody investigator to prepare an updated custody assessment. In the updated custody assessment, the evaluator noted, “Father’s escalating alienation tactic that says’ Father alienates his children from the [mother] to a very high degree of severity that exposes the children to serious psychological damage. “The updated report also stated that the oldest child was at risk for self-harm. The appraiser recommended that the mother be granted primary and sole custody. The custody process lasted three days, and the third day of the trial took place almost two months after the second day.
The court issued a final order that the mother has sole and primary custody, while the father has partial custody every other weekend. After the father’s request for re-examination after the court had issued the decision, the father filed an appeal with the Supreme Court in good time. A major issue the father had raised on his appeal was that the court had made a mistake in denying his oral request to proceed at the beginning of the first day of the trial so that he could secure his own custody specialist and assessment to the Custody Checkers Refute Parental Alienation Finding. The custodian’s updated assessment was received only a week before the trial, and the assessor changed his recommendation, increasing the father’s level of alienation from moderate to severe. The Supreme Court found that the father’s claim “failed”. The Supreme Court stressed that the court stated, “While their opinions [the evaluator and GAL] were helpful and well thought out, this dish did not need an expert to clearly see that the father had carried out a campaign aimed at deliberately alienating the mother. “The Supreme Court also found that two months had passed from the second day of the trial to the third day of the trial, during which time the father could have found his own expert. The Supreme Court also noted that the father, who read the original custody assessment, was warned that parental alienation and undermining was an issue that would be addressed in the trial. The father could have hired an expert in the months leading up to the trial.
The father raised numerous questions on appeal, including allegations that the court replaced the Guardian Ad Litem’s judgment with its own and relied too much on the opinion of the Guardian Ad Litem. The Supreme Court found that the court had not inappropriately delegated its judicial duties to the guardian ad litem and found that no relief was due. The Supreme Court also found that the court properly analyzed all 16 factors of the custody law and upheld the court’s order.
It’s important to remember that every custody case is fact-specific. In the ALB case, the father’s tactics of undermining and alienation were severe and had a negative impact on the children’s well-being. Factor 8 of the custody factors (under 23 Pa.CS Section 5328) determines: “The attempts of one parent to turn the child against the other parent…” Factor 1 determines: “Which party encourages and allows more frequent and continued contact between the child and one other party. “The ALB case is an example where the presence of parental alienation can reduce joint custody to every other weekend custody in the parent-alienator. Hence, the consequences of parental alienation in custody disputes can be very costly.
Michael E. Bertin is a partner in the law firm Obermayer Rebmann Maxwell & Hippel. Bertin is a co-author of the book, Pennsylvania Child Custody Law, Practice and Procedure. Bertin is the immediate past chair of the family law division of the Pennsylvania Bar Association, a fellow of the American Academy of Matrimonial Lawyers, past chair of the family law division of the Philadelphia Bar Association, and the current co-chair of the custody committee. He can be reached at 215-665-3280 or [email protected]