by Shawn Weber, JD, CLS-F* | Sep 29, 2012 | Uncategorized
So it’s official. The American Psychological Association has made it clear that Parental Alienation Syndrome (PAS) will not be included in the forthcoming DSM-V as a psychological disorder. Frankly, I am relieved.
Read about it here: http://www.huffingtonpost.com/2012/09/21/parental-alienation-is-no_n_1904310.html
I have seen some very alienating behavior over the years in my family law practice. It comes from both genders and every time it comes up, a child is harmed. Sometimes it is driven by emotional issues such as addiction, abuse or even a personality disorder. More often than not, however, it is just because someone is being mean by putting their poor emotionally defenseless child in the middle of their divorce.
To get an idea of what Parental Alienation Syndrome (PAS) is, here is an article from PsychCentral.com: http://psychcentral.com/blog/archives/2008/02/13/what-is-parental-alienation-syndrome-pas/
PAS has not been well received in the California courts. For one thing, the science is not very good and is not deemed as sufficiently reliable for use in custody proceedings.
Here are some links to sources by skeptics of Parental Alienation Syndrome:
I have had many potential clients call me wanting to launch a legal campaign in family court based on PAS. I try to explain that the science is considered unreliable. However, these parents often feel so convinced that they are victims of PAS that they won’t hear anything else. When I start to explain that PAS is not a recognized psychological disorder, I am quickly written off.
I try to explain that the BEHAVIOR, without talking about the label, is what counts. It is universally accepted that exposing children to alienating behaviors is harmful to them. We can hang our hats on that concept in court rather than getting caught up in the label of a so-called syndrome.
As a caution, experience has also shown me that many parents who complain of PAS often miss the point that it is quite possible that the child is alienated because the alienated parent truly IS terrible for that child. It is not uncommon for an abuser to complain that the other parent is alienating. But that’s a discussion for another day.
My recommendation to all parents in difficult custody cases is to focus on the undesirable behaviors and not assign psychological labels.
My brother, in describing how he can spot an emotional problem without being a trained psychologist, relates the story of how a mishap on a swing resulted in his own self-diagnosis that his arm was broken. How was this child able to diagnose his fracture without being an M.D.? He simply looked at his arm and noticed that it was bending at a forty-five degree angle the wrong way. No medical books required — his arm was broken! It’s not much different in figuring out that there is a serious problem in a custody battle.
I have observed that most cases where alienating behaviors occur often involve psychology that is more reliable than the very unreliable “unscience” of PAS. For instance, there is often abuse of a parent or the children. Very often substance abuse is involved. Perhaps one or both parents suffer from a personality disorder. I don’t need the en vogue diagnosis of a psychological disorder to show the court that there is a problem and that a child is suffering. Just like my brother’s childhood diagnosis of his own broken limb — Judges don’t need it either.
Here’s an idea. When there is bad behavior in a custody battle — the Judge should simply call it out and put an end to it. You don’t need a DSM diagnosis to conclude that it is bad for kids if one parent is on a campaign to alienate the other parent. It’s just rotten, nasty and mean behavior. Period. This is not about gender, because I see rotten behavior from moms and dads equally. Where I practice family law in San Diego, it is almost standard in every case that there is an order that neither parent shall speak negatively of the other parent in the hearing or presence of the child. I believe a child has a right to draw his/her own conclusions about a parent without being subjected to either parent’s mean-spirited histrionics — no DSM diagnosis required. As Bob Newhart would say, just “stop it!”
[youtube=http://www.youtube.com/watch?v=Ow0lr63y4Mw]
by Shawn Weber, JD, CLS-F* | Jun 22, 2012 | Uncategorized
Very few people have had as much affect on Family Law jurisprudence in California as Judith Wallerstein. She will definitely leave very large shoes to fill.
Read the Article at HuffingtonPost
by Shawn Weber, JD, CLS-F* | May 7, 2012 | Uncategorized
Mother’s Day is coming up. This is one of those emotion charged holidays that seem to increase my billable hours. This is because so much mischief is done around Mother’s Day and Father’s Day. I will be posting different articles throughout the week with tips on handling mothers day– for both Mom and Dad. With some thinking ahead, mental preparation, a thicker skin, some consideration for the other party’s feelings and more consideration for the kids’ feelings, Mother’s Day can be a positive experience even after the divorce. Here is a great article from Divorce360.com to get us started.
divorce360.com | Mother’s Day after Divorce.
by Shawn Weber, JD, CLS-F* | Dec 7, 2011 | Uncategorized
Judith Wallerstein does an excellent job pointing out in this article on Huffington Post some of the important obstacles facing children of divorce. In my legal practice, I often observe that children have to grow up too quickly. They often become “parentified” in their relationships with their siblings and often even their parents. I think it is essential that divorcing parents do everything they can to shield their children from their conflict and to just let their children be kids.
Read the Article at HuffingtonPost
by Shawn Weber, JD, CLS-F* | Nov 29, 2011 | Uncategorized
California Family Code section 3041.5 provides a mechanism for drug and alcohol testing for parents involved in custody disputes. Testing can be ordered if the court finds, by a preponderance of the evidence, that a parent uses illegal drugs or alcohol habitually or continually.
It doesn’t end there, however. The tested party is entitled to a hearing to challenge any drug results. So, a positive test, in and of itself, is not sufficient grounds for a ruling to limit or terminate custody rights. However, it can be a huge factor in evidence.
Interestingly, only certain tests are allowed thanks to a case known as Deborah M. v. Superior Court (Daryl W.) (2005) 128 Cal.App.4th 1181. In Deborah M., the court held that because Family Code section 3041.5 requires drug testing to conform to federal drug testing procedures and standards, only urine testing is allowed.
While a 5 panel urine drug test can indicate whether drugs have been used recently, the preferred test, the hair follicle test, cannot be ordered by the court unless the parties agree. Hair follicle testing is more reliable than urine testing because the evidence of substances remains for as long as the hair follicle exists, whereas in urine testing the substances pass out of the system in 24 hours. . It is then that professional help might be sought and with the help of service providers (such as Countrywide Testing) in this specialized field, proper results can be achieved. More often than not, the tests conducted tend to give accurate results and the same lays a significant effect on the outcome of various hearings. However, as with all methods, there can still be faults with hair drug testing. Regardless, the Court has made it clear that the code’s requirement of conformity to the federal standard of urine testing is what will be allowed. Of course, parties can agree to a more stringent standard.
If a client of mine is worried about the other parent’s alcohol or drug use, but there is not enough evidence to get a drug test ordered or there is a concern that unrine testing will be insufficient, I often recommend that the client try to get an order for a mutual prohibition of alcohol or illegal drug usage in the presence of the child.
If there is a past history of addiction, the Court will often require attendance with a sponser at Alcoholics Anonymous or Narcotics Anonymous. Whenever I represent a party with a history of addiction, no matter how slight that history may be, I often recommend and even insist that the client attend AA or NA as a protective measure in the case. I have never seen a Judge punish a party for going to meetings.
I have also had cases in the past where there is concern that a client is abusing prescribed pain medication such as Oxycontin. In such case, it is a good idea for the non-using parent to insist that there be controls in place to ensure that the other parent doesn’t abuse his or her medication. For instance, there should be a pain management contract regulating the use of controlled substances. I have also had success in getting orders for mass spectometry and liquid chromotography testing, which does a more thorough examination of a urine sample using laser technology. Not only does it give a qualititative result (i.e., relating to the presence of a substance) but also gives a quantitative result (i.e., how much of a given substance is present). This is helpful because the test itself is a simple urine sample type test, so it is no more invasive than any other urine test, but the data is so much more useful. It is especially helpful in determining whether a pain management patient is compliant with his contract or if he is overusing a particular medication or is mixing the medication with alcohol. Although I have been successful in getting orders for such a test, I have seen no caselaw to test whether it meets the standard set out in Deborah M.
In general, unless you have obvious and provable abuse, it is hard to produce enough evidence to limit a drug or alcohol abusers parenting. The best alternative approach is to insist on boundaries and controls that can provide the most possible protection for the child, even if parenting cannot be limited.
