Is Parental Alienation Real? Just Ask Alec Baldwin

In 2009 I was approached by a divorce lawyer to provide my thoughts on how a motion for custody based on a claim of parental alienation might be structured.  Bear in mind of course that I was not being sought out for my legal prowess as I am not a lawyer.  The reason for the request was largely due to my methods for researching a particular subject and providing a unique lens through which an existing problem or situation can be viewed.

Of course prior to the 2009 request my knowledge of parental alienation was nominal at best.  But, and as is often times the case, once you are exposed to a subject for the first time it seems to pop up everywhere including the following interview with Alec Baldwin on The View:

Armed with more energized curiosity than actual judicial experience (again I am not a lawyer), the following “draft motion” which was structured around a claim of parental alienation, took approximately 15 hours to research and prepare.  The outcome as you will note at the end is interesting and, looking back probably fair, considering all the facts surrounding this particular case.

Draft Motion RE Custody

According to the Family Law Act (R.S.O. 1990, c.F.3) passed by the legislative assembly of Ontario, the purpose of the law is “to encourage and strengthen the role of the family,” which provides for the “orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership,” and to “provide for other relationships” including the “equitable sharing by parents of responsibility for their children.”

In consideration of the above purpose, and in the spirit of its intent, we are seeking primary residence custody (or has referenced in the United Nations Convention on the Rights of a Child, residence) under a “shared parental responsibility framework” of (Child) based on the actions of his mother which have included a) access and contact blocking, b) unfounded allegations of abuse, c) deterioration in the relationship since separation, and d) intense fear reaction by the child.

We contend, and will prove that (the Mother), who it should be noted had signed over custody of (Child) not long after the child’s birth to (The Father) in March 2005 conduct is reflective of i) an attempt to win (The Father) back, or conversely punish him for his lack of interest in pursuing a reconciliation and, ii) maintain and if possible even increase her financial gain.

We further intend to demonstrate that (The Mother’s) actions are in fact a deliberate attempt to alienate (The Father) from his son, with concerns that the longer that access is denied, the greater the likelihood of parental alienation occurring.  This concern is further compounded by the fact that (The Mother’s) recent application for Canadian citizenship (she is currently a citizen of another country) is under review based on the fact that she is being investigated for welfare fraud, and thereby represents an increased flight risk.

(Reference Note: parental alienation was first described in 1976 as “pathological alignment,” in which a child unreasonably rejects a non-custodial parent.  While (The Child) continues to actively seek contact with both (The Father) and his extended family at this time, the continued access restriction imposed by (The Mother), combined with her past derogatory comments and accusations, may lead to a feeling of abandonment and subsequently anger and resentment.  This in turn could be the precursor to (The Mother) leaving the country with (The Father’s) son should she reach the conclusion that either a reconciliation of the relationship or additional financial benefit cannot be achieved.)

It should be noted that (The Father) has confined his response to (The Mother’s) arbitrary cessation of contact to due legal process, in an effort to avoid a confrontation that may prove detrimental to his son.  (The Father) also continues to dutifully pay support – even though the rate at which he pays is the subject of a separate action based on the fact that (The Mother) had provided inaccurate information regarding familial earning and as of the date of this motion continues to disobey a direction by the court to submit financial information to substantiate her earnings.

The Rights and the Best Interest of the Child

In support of this motion we refer to Section 16 of the Canada Divorce Act, and in particular 16 (8), 16 (9) and 16 (10).  Specifically;

Section 16 (8)

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage (or in this case common-law) as determined by reference to the conditions, means, needs and other circumstances of the child.

Section 16 (9)

In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Section 16 (10)

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

It should be noted that Section 16 (10) recognizes “as a precept” the child’s need to have a “meaningful relationship” with both parents, and it is therefore of critical importance to note that this is the only “explicit” principle which the law obliges the courts to respect apart from those in Section 16 (8).

Referencing Jensen v. Jensen (1984), Tremblay v. Tremblay (1987), Gagne v. Gagne (1986), Smith v. Smith (1987) and Wainwright v. Wainwright (1987), the judicial determination of which spouse should be granted custody of the child, where both spouses are equally competent parents, should be granted to the spouse “who will encourage maximum contact” with the provision that the decision is consistent with the best interests of the child.

And while (The Father) on principle is not adverse to an order of joint custody he nonetheless contends that such an arrangement would be difficult given (The Mother’s) past conduct and mercurial behavior.  Behavior which fluctuates between granting open access that extends beyond the existing interim order whereby (The Son) would be left in (The Father’s) care for up to days at a time (something that is interesting given her allegations of past abuse), to either a complete and total denial of access or extremely limited access through supervised visits under the most onerous of terms.

Citing Hintze v. Hintze (1985), Morozoff v. Morozoff (1988), Ladner v. Ladner (1980), Nichols v. Nichols (1985), Dussault v. Ladoucer (1988) and Stewart v. Green (1983), it is clear that the child’s best interests would be served through granting Mr. Cameron primary residence custody as he is committed to the principles of a joint custody arrangement provided under the “shared parental responsibility framework,” the concept of which was presented in a December 2008 paper by Dr. Edward Kruk, M.S.W., Ph.D. at the University of British Columbia titled “Child Custody, Access, and Parental Responsibility: The Search for a Just and Equitable Standard.”

The paper’s conclusions surrounding shared parental responsibility is based on research that strongly supports a shift away from the “one size fits all,” “winner take all” sole custody framework toward the notion of shared parental responsibility.

(The Father) believes strongly in this precept and has demonstrated both the willingness to follow proper legal channels and minimalize the familial confrontation that has proven to be harmful to the children of parents going through a separation or divorce, and fully support fair and reasonable access to (The Mother), as well as active participation in all decisions involving (The Child) should the court grant his motion.

(The Mother) has repeatedly demonstrated behavior that is not consistent with even a shared parental responsibility.  Putting aside the fact that she falsely accused (The Father) of abuse, seeking shelter at a women’s facility without justification and claiming to be financially destitute in order to collect welfare payments and receive legal-aid representation ((The Mother) in reality has historically earned more money than (The Father)), when (The Child) expressed the desire to see his father and extended family, (The Mother) indirectly contacted (The Father’s) sister and brother in-law, as well as mother to schedule a visit outside of (The Father’s) knowledge or involvement.

Children have an inherent need for each parent, and it is axiomatic that any separation of a child from his or her parent, whether it is due to divorce or death is contrary to the child’s best interests.  The capricious alienation of (The Father) without just cause is therefore damaging to (The Child).  Damage which has been well documented in a number of studies including those written by Dr. James M. Herzog, M.D., a professor of psychiatry at Harvard Medical School.

In a 1991 Dévelopments Récents En Droit Familial, P. 121 – 145, Anne-France Goldwater maintained that the courts “must respect a child’s best interests by requiring the custodial parent (or person) do everything in his or her power to ensure real contact between the child and the non-custodial parent.”  Goldwater added that “no custodial parent would expect a judge to accept that the child be permitted not to attend school because he didn’t feel like going.  Why then should a judge accept that the child not visit his other parent for the same reason?”  This is especially true when the child wishes to see the non-custodial parent but is kept from doing so by the custodial parent.

And while abuse and neglect must always be considered as a determining factor, where none exists, or unsubstantiated claims have been made, it is reasonable to agree with Goldwater’s position that “one must rely on positive steps by the custodial parent to rectify the alienation within the child, in that child’s best interest.”  While no such alienation exists between (The Father) and (The Child) at this time, (The Mother’s) actions are detrimental to the important relationship between father and son, the consequences of which if the pattern continues is incalculable at this point in time.

Dating back as far as 1985, and making specific reference to the decision of the Supreme Court in King v. Law 1 R.C.S. 87, Mr. Justice McIntyre commented on the “evolution of societal views of the role of parents” stating the following:

“The law relating to the custody of children and the rights of parents where custody claims are involved has undergone progressive change since early in the nineteenth century when the parent, usually the father, had a right to custody of an infant child unless disqualified by reason of some serious circumstance, having to do with the welfare of the child, making him unfit to have custody.  By legislative intervention and evolving case law the situation has changed.  The law has moved, first, toward an increase in maternal rights; a progressive diminution of parental rights; and then, a corresponding increase in the consideration of the interest or welfare of the infant, as the significant factor in custody determination. This latter factor has become progressively more important until it may now be said that the welfare of the child is the paramount consideration when the courts address the problem.”

In conclusion, while (The Mother) has repeatedly demonstrated a maternal-centric mindset in which she, and she alone determines the level and conditions under which contact between (The Father) and his son are established, despite the proven detrimental impact on her son, (The Father) has and continues to remain a picture of both reasonableness and careful contemplation in which the best interests of his son remain in the forefront of all of his decisions and subsequent actions.

We respectfully request that an interim order of primary residence custody be granted to (The Father), which is the only manner by which full and reasonable access to both parents can be assured for (The Child).

(Story Follow-up: While the mother in the above case did retain primary custodial responsibility, the father was granted increased visitation.  The mother was also ordered to pay back $9K in child support as a result of providing the false information upon which the original court ordered support payments were based.  Will this current court ordered arrangement ultimately work, only time will tell?)

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Comments
One Response to “Is Parental Alienation Real? Just Ask Alec Baldwin”
  1. fielding dent says:

    Good topic!

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