We Need Changes in How Courts Handle Parental Alienation

What about "therapeutic jurisprudence"?

Posted Jun 06, 2019

MR.Yanukit/Shutterstock
Source: MR.Yanukit/Shutterstock

When one parent alienates children from the other parent, the outcome can so seriously harm the child that alienation is now considered child abuse. Yet the courts in many instances misunderstand these cases and fail to protect either the children or the targeted parent. What changes to the courts' system for handling these cases could upgrade the outcomes?

The words therapeutic jurisprudence sound like a contradiction in terms. Far too many court cases for parental alienation only increase anxiety, depression, and anger for the litigants, and often for the alienated children as well.

For most parents who struggle against an alienating co-parent, going to court means entering a nightmare. Court-based litigation costs a fortune. It causes painful emotional wear and tear. Worse, the outcome in parental alienation cases more often than not rules against rather than for the best interests of the child.

Even though parental alienation is now considered to be one of the most damaging forms of child abuse, most family courts prove totally unable either to recognize alienation or to respond effectively. 

How could any court therefore claim to be exercising therapeutic jurisprudence?

Understanding Therapeutic Jurisprudence

Fortunately, there is good news. An International Journal of Law and Psychiatry article by Philip Marcus, Judge (Retired) of the Jerusalem Family Court, offers much-needed hope. This article is also a chapter in the forthcoming book referenced below.

In his article, "The Israel Family CourtTherapeutic Jurisprudence and Jurisprudential Therapy from the Start," Judge Marcus describes radical innovations that have upgraded his country’s family courts’ functioning, making them less adversarial and more psychologically informed. I've culled the following information from section 4.10 of Judge Marcus's article to offer a short summary of how therapeutic jurisprudence works. 

  1. The court system has developed a parallel team of social workers who assess every family law case. 
  2. In addition, litigants do not hire their own evaluators; they are provided by the court from a list of people who have training (plus extensive experience) in assessment, treatment, and domicile recommendations for divorcing families in general and alienating situations in particular.
  3. The judge has judicial authority to make immediate decisions, aided by the advice of the court social services team. The team members are highly skilled in assessing cases in which violence or other endangerment has been alleged. Children must be protected from abuse of all types—physical, sexual, and emotional, as well as abuse via parental alienation. 
  4. The combination of experienced judges and highly professional social work/psychologist teams results in a radical reduction in ongoing post-divorce family disputes.
  5. When subsequent disputes do erupt, the court again evaluates the family and makes an appropriate new ruling as needed.
  6. Judges are empowered to impose stiff sanctions, including fines and imprisonment, on any parent who does not follow court orders. Immediate responsivity to blocked visitation rarely occurs in our current American family law system—to the major detriment of alienated children, who can be left for months and even years with a parent whose alienating patterns cause ever-increasing psychological damage to the child.
  7. When an assessment of divorcing parents and their children suggests a pattern of alienation that will require treatment from a knowledgeable mental health professional, the social services team recommends referral to an expert, and helps define the matters to be dealt with. This service is referred to as jurisprudential therapy.
  8. Collaboration between the judges and the social services team is built into the system so that judges can call on the services of the consultation team as needed, and the team can ask for judicial rulings on a similarly as-needed basis. A judge who refers a case to the social services team gives instructions as to the matters which need evaluation, consultation, and initial treatment. At the same time, the social services team can draw matters to the attention of the judge—matters which may not have appeared on the initial court documents, yet arise during the work of the social workers with the family.
  9. The court controls the procedures. Rules relating to confidentiality ensure that the activities of social services team guard due process.
  10. The outcome? Speedier and longer-lasting resolution of disputes; restoration of proper relationships in the family; termination of costly litigation; minimization of harm to the adults and also to the children.

Has It Been Successful?

Collection of statistics on the satisfaction of families who have been adjudicated in the Jerusalem Family Court system has led to clear conclusions: Therapeutic jurisprudence works. Therapeutic jurisprudence, as opposed to a traditional adversarial court system, results in far less stress, time, and costs for everyone involved. At the same time, it produces wiser decisions, significantly increasing the likelihood that children in divorcing families will get to grow up with healthy parenting, safe from abusive alienation.

The statistics, in fact, have been so good that family courts throughout all of the state of Israel have followed the initial Jerusalem court’s example. Therapeutic jurisprudence has become the standard court procedure throughout the country for determining living arrangements for children of divorcing and contested post-divorce families. 

Information Is Power

Therapeutic jurisprudence means that decisions about alienation are handled by fully knowledgeable psychological, legal and judicial professionals. When professionals who truly understand alienation (and other forms of abuse) assess the needs of children and the capabilities of parents, they design and implement interventions that, from the outset of divorce proceedings, truly serve the best interests of the child. 

That's why therapeutic jurisprudence lowers the rates of parental alienation, and succeeds in halting much post-divorce alienation in cases that were not prevented. Therapeutic jurisprudence enables the courts to order and provide therapy to remediate the damage from alienation—which, in many cases, has begun way prior to the divorce. It even can help alienating parents who are open to change to break out of the pathological mentality that had produced their alienating behavior.

Want to Try It In Your Locale?

Therapeutic jurisprudence certainly looks far superior to adversarial litigation for addressing the needs of divorcing parents and their children, and particularly for addressing parental alienation and other forms of abuse. Which cities, counties, and states in the U.S. (and elsewhere) will give it a try? 

Everyone reading this article has a potential voice. How about if you were to contact the leadership of the family court system in your city, county, or state to ask them to consider this dramatically better option? Explain to them that the problem is far broader than the ineffectiveness of any particular lawyer or judge. It's a systemic problem; the court system itself needs to be changed. 

Our children deserve a better court system for handling decisions regarding alienation, and other forms of abuse as well. A collaborative therapeutic jurisprudence system could enable judges to genuinely protect the best interests of every child.

References

Marcus, P.  (2019).  Parental Alienation, Contact Refusal and Maladaptive Gatekeeping: A Multidisciplinary Approach to Prevention of Contact Failure.  In Family Law and Family Realities, 16th ISFL World Conference Book,  C. Rogerson, M. Antokolskaia, J. Miles, P. Parkinson, M. Vonk (eds.) (2019). The Hague, Eleven International Publishing, 349-366.