Call for consideration of New Zealand Law reform around Parental Alienation
A University of Otago study calling for consideration of law reform in the complex field of parental alienation has been published this week in the New Zealand Family Law Journal.
The author of the postgraduate thesis, Nelson solicitor and law firm director Lee James, has a practising career extending back to 1996. She completed the research while attaining her Master of Laws from the University of Otago. The thesis was finalised in April this year.
Ms James says New Zealand is lacking a suitable legal framework to deal with parental alienation issues, which can have widespread and serious negative impacts on children.
“This research has identified significant detrimental impacts to children who have been alienated by a parent. The thesis identifies that there are certain limitations within both the current New Zealand legislation and the facilities available for dealing with alienation,” Ms James says.
Alienation from a parent can often stem from a difficult or broken relationship between parents, and can include alienating behaviour such as a parent making negative comments about the other parent, limiting contact, being upset if a child was affectionate with the other parent, said or implied the other parent did not love the child or was unsafe, expected the child to choose between the parents, making communication difficult, asking a child to spy or making the child feel bad about spending time with the other parent.
Ms James says examples of some of the negative effects on children can include depression, insecurity, reduced self-esteem, attachment issues, gender identity problems and aggression and mistrust towards others, to name a few.
In her thesis Ms James explains that to maximise the Court’s ability to consistently identify alienation and improve outcomes for children where alienation is present, the legislative framework should include:
- The ability to assess a parent’s psychopathology such as the presence of mental or personality disorders to consider the intent behind the behaviour and whether their behaviour is obstructive
- Requiring parents to subscribe to, and complete all relevant steps, in the online family-wellbeing website; Our Family Wizard
- Appointing a Parenting Co-ordinator to work with parents and monitor compliance and, where alienation is present, to direct therapeutic intervention for the alienating parent and the family to encourage reunification (and the implementation of specific programmes to address this).
Ms James believes there is little doubt that there will be cases where the alienation is so severe that early Court intervention will be necessary, and the recommended reforms would pave the way forward for New Zealand courts to identify alienation more quickly and effectively and to impose adequate determinations. She says there are challenges for the courts in determining the presence of alienation as there are some situations where a child becomes “justifiably estranged” from a parent for reasons such as violence, abuse or neglect.
“These cases are known as “hybrid” or “crossover” cases and are known to consume significant resources to determine. The reforms suggested would assist the courts in determining such cases and in turn, would improve outcomes for children who are the subject of disputes involving alienation,” Ms James adds.
University of Otago Family Law expert, Professor Mark Henaghan, who supervised Ms James during her research, says parental alienation cases provide the biggest headache and challenge for the Family Court and can be drawn out for years.
“Lee’s thesis provides very well-researched, improved methods that can be used in the Family Court to put processes in place – such as counselling – to support families and prevent alienation cases from damaging children,” Professor Henaghan says.
“Counselling for families was weakened by the 2014 Family Law reforms. The thesis also shows that early identification of alienation is crucial to nip it in the bud before too much damage is done. This requires appropriate assessment by experienced experts at an early stage. Other jurisdictions have specific systems in place to deal with alienation. We do not have the resources for such processes in New Zealand at present,” says Professor Henaghan
Professor Henaghan believes these early interventions could allow reunification processes to be put in place, and he notes the thesis makes a clear distinction between alienation and justified estrangement such as when a parent has been abusive to a child.
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The most prevalent alienating behaviours (as featured in Ms James’ thesis)
A survey conducted by Baker and Verrocchio involving 257 undergraduate psychology students at the University in Chieti, Italy, and utilising the 20-item measure of the Baker Strategy Questionnaire (BSQ) formulated by Amy JL Baker in “Knowledge and Attitudes About Parental Alienation Syndrome: A Survey of Custody Evaluators” (2007a) American Journal of Family Therapy 35 1-19; Amy JL Baker and Jaclyn Chambers “Adult Recall of Childhood Exposure to Parental Conflict: Unpacking the Black Box of Parental Alienation” (2011) Journal of Divorce & Remarriage 52 55-76; Amy JL Baker “Behaviours and Strategies Employed in Parental Alienation: A Survey or Parental Experiences” (2006) Journal of Divorce & Remarriage 45 97-124), found the following prevalence of parental alienating behaviours:
- made negative comments – 61.5%
- confided – 34.4%
- encouraged reliance on himself/herself – 33.2%
- required favouritism – 32%
- asked to keep secrets – 21.9%
- upset if I was affectionate with other parent – 19.8%
- discomfort if I looked at picture – 18.2%
- tried to turn against other parent – 15%
- fostered anger/hurt at other parent – 14.2%
- made child choose – 13.8%
- encouraged disregard for other parent – 13.4%
- said parent was unsafe – 12.1%
- asked me to spy – 11.7%
- limited contact – 9.3%
- said parent was unloving – 9.3%
- made communication difficult – 8.5%
- called other parent by first name – 6.1%
- hard to be with extended family – 4.9%
- withheld or blocked messages – 1.6%
- referred to new spouse as mum/dad – 1.6%
There are a number of factors that are relevant to the question of whether such behaviour will result in the child becoming alienated.