What Can A Court Do About Parental Alienation In Custody Proceedings?

Parental alienation is just what it claims to be.¹ It is a parent (usually the custodial parent if the parties are divorced or the child is born out of wedlock) who engages in a systematic campaign to denigrate the other parent and make the child(ren) of the parties afraid of the other parent. Unfortunately, with children of a young age, they may be more than just conditioned to be afraid of the alienated parent, but they may come to have false memories of some bad act or event caused by the alienated parent. How this plays into a contested custody case and what a court can do to help an alienated child is the focus of this blog post.

As a threshold matter, where physical custody has not been established, the court makes its decision based on the best interests of the child. There is no presumption in favor of the mother or the father.² While the court can consider any and all factors it deems relevant to a child’s best interests, the controlling statute sets forth nine (9) considerations:

• The age and sex of the child.
• The wishes of the child’s parent or parents.
• The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
• The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interests.
• The child’s adjustment to the child’s home, school, and community.
• The mental and physical health of all individuals involved.
• Evidence of a pattern of domestic violence or family violence by either parent.
• Evidence that a child has been cared for by a de facto custodian.
• A designation in a power of attorney (regarding custody) of the child’s parent or a person found to be a de facto custodian.³

Clearly, a parent who is alienating a child from his or her other parent is a factor the court can and should consider under the mental and physical health of a parent in deciding initial or modification of custody cases. That said, in an initial custody determination, the finding by a court a parent has alienated a child from his other parent likely indicates the non-alienating parent should be awarded physical custody.⁴ Normally, to prove this a forensic clinical psychologist may need to conduct a custody evaluation to make such a determination. However, there are other ways to prove this in a court, such as by use of a guardian ad litem or interview of the child by the judge. The facts of the alienation of the case will help you with counsel determine how to establish the alienation to the court and show it how it impacts the child’s best interests and modification to the parent who is not alienating the child.

In many cases where custody has been decided, disagreement and perhaps some level of alienation may be present. For it to be a substantial change to make a basis for modification,⁵ it must be established in the evidence and the best interests of the child must be served by modification. There is a strong policy that stability is paramount to a child’s sense of well-being so the court will not modify child custody because of an occasional lack of cooperation or isolated acts of misconduct by a parent.⁶ These alienation cases thus present a bigger evidentiary challenge, but with skilled counsel and development and presentation of the evidence, parental alienation may form the basis for a custody modification.

Sometimes parental alienation is severe, and a transition to the other parent presents significant mental distress for the child in the process. Again, Indiana trial court judges are experienced and have a wide array of legal tools in the Divorce Act that can be used by them and a party’s counsel to meet virtually any need of a child. For instance, in cases of severe alienation, a trial court may order a forensic clinical psychologist to assist with reunification therapy to help the child with transition in custody modification.

Parental alienation is a significant risk to a child in the immediate instance because of its impact on relations with the non-custodial parent. Additionally, a child who is severely alienated may well carry this “psychological baggage” into future relationships. These cases are not unwinnable, but they do present unique challenges. With skilled domestic counsel and the right presentation of evidence, an alienated parent may protect his or her relationship with the child and protect the child’s as well, obtaining a modification of custody. Ciyou & Dixon, P.C. advocates handle complex domestic cases throughout Indiana and have partnered with other family law attorneys across the United States and globe to properly handle a given family law matter. This blog is written for general educational purposes only. It is not legal advice or a solicitation for services. It is an advertisement.

1. For clarification, parental alienation is not the same as “parental alienation syndrome” a highly debated psychological/psychiatric topic, although the latter is still debated in some legal venues.
2. The “maternal preference rule” or “tender years’ presumption”, which preferred children, particularly younger children, be placed in the care and custody of mothers has been abrogated. Now in making an initial custody determination a trial court looks only at the best interests of the child and there is not presumption in favor of either parent.
3. Indiana Code section 31-17-2-8 (initial custody determination statute in divorce cases).
4. Hanson v. Spolnik, 685 N.E.2d 71 (Ind.Ct.App.1997).
5. Indiana Code section 31-17-2-21.
6. Hanson v. Spolnik, 685 N.E.2d 71 (Ind.Ct.App.1997).