The View from the Bench and Bar: How Legal Professionals...

Friday, February 19, 2016 • 12:30 p.m. to 4:45 p.m.

The View from the Bench and Bar: How Legal Professionals Can Help When a Child

Resists Contact with a Parent (I3)

PresentersComm. Marjorie Slabach (Ret.)

Hon. Mary Ann Grilli

Donna Guillory, MFT

Steven Friedlander, Ph.D.

Marjorie Gans Walters, Ph.D.

Michael J. Kretzmer, Esq.

Abstract:The High Conflict case where an aligned child resists and refuses contact with a parent is one of the most diffi-cult cases to deal with in the judicial system. Judges are frustrated with lack of knowledge and resources, and attorneys are conflicted about their obligations to their clients. This Institute brings judges, a FCS Mediator and psychologists together to train the bench and bar on how to deal with these families in the court. The is-sues to be addressed include: early identification and intervention; screening for relevant contributing factors; preparation and enforcement of orders; a team approach for collaboration and problem solving; understand-ing when to change custody – all from a legal systems approach. Attorneys and judges will learn when and how to rely on the assistance of mental health professionals, and mental health professionals will learn how to be helpful given the demands of the judicial system. a

Outline:1. Brief definition of the problemA. Refuse/resist behavior— “RRD”

B. Determining the contributing factors

a. Rule-out abuse— definitive deter-mination often not possible

b. Alienation (AN); Estrangement (ES); Enmeshment (EN): Others

c. “Hybrid”

d. Ideas/beliefs vs. ‘reality’

C. Crucial role of time—Time is the enemy

a. Expedite hearings

b. Delays and continuances as strat-egy

c. CCE takes too long— Order inter-vention/ family therapy before

CCE, to continue, as indicated by thera-pist, during CCE

2. Special considerationsA. These cases often require something different from conventional wisdom

a. Need for innovation and creativity

b. Axiom: Don’t talk with your children about x, y and z. In these cases we must talk to children about x, y and z.

c. Axiom: Children do better when both parents are inolved— maybe not in an RRD case if AN seen a abusive

d. Allow the family to determine its own direction and find its own way—In these cases we often have to monitor and oversee to the point of microman-aging

e. These children often look like they are doing exceedingly well; they are

‘stars’—should not be taken as evidence that nothing needs to be done

f. The AP often looks like a model parent—Can be confusing

B. More about time

a. Because these cases often require extreme orders and interventions that are inconsistent with conventional wis-dom, confidence in the conclusion that it is an RRD family is important.

b. Such confidence is often a function of time

c. RRD cases require early intervention, when confidence may not be high

d. Pros and cons of acting on sus-picion or when RRD is only a ‘working hypothesis’

C. Age of the child—4 year-old vs. 8 year-old vs. 11-12 year-old

a. Developmental considerations

AFCC California Chapter • 57

Outline (cont ’d):

3. Early identification of at-risk family—Signs that trigger concern/question

A. Unfounded allegations of abuse

B. Parent insists on the child’s voice—“My child needs to be heard…”

C. Reports that child does not want to go or complains about spending time with a parent

D. Problems with parent-child relation-ship—separation issues

a. Parent and child entwined in wait-ing room

b. Attachment parenting

c. “My child can’t be away from me for that long…”

d. Cannot schedule a meeting be-cause child cannot be left with babysit-ter

e. Parent openly struggles with sepa-ration from child

f. Parent resists pre-school or other age-appropriate activities that require/foster separation

g. Parent argues for homeschooling

h. Parent ‘over’ volunteers at child’s school

i. Parent goes to school on other par-ent’s custodial time or argues for right to do so

j. Parent sleeps with child

k. Other signs of EN

4. Early intervention/ PreventionA. ISC and similar court-based programs

B. Mediator as gatekeeper

a. Mandatory mediation identifies at-risk family; triage to early intervention

C. Education

a. Mandatory, court-based education-al programs

b. Reading material specific to RRD

c. Meet with ‘coach’/consultant

D. PC/Recommending Mediator/MC

E. Innovative intervention, e.g.,

a. Slabach—Read book, write book report

b. List ten positive characteristics of other parent

c. Judge talks to adolescent in chambers abut the Court’s position and

‘expectations’ regarding contact with the RP and the importance of following the PP

5. InterventionsA. MMFI—Family therapy

a. Both parents actively involved

b. i.e., NOT re-unification therapy only with child and RP

B. Intensive, short-term interventions

a. OCB

b. Intensive weekend

c. Transitioning Families (Bailey)

d. Change custody to RP

i. Other interventions have not been effective

ii. The AN behavior rises to the level of abuse

iii. Still need to work with the AP

iv. No contact wit AP for specified period of time

1) Need to enforce

2) Effect on child—provide neces-sary support

3) Specific, behavioral require-ment for resumption of contact

4) Requirements for resumed contact to continue

v. Family Bridges (Warshak)

6. The Court is a more active participant in the solution

A. The Court, PC, and the therapist(s) as a team

B. The attorneys support the interven-tion vs. maintain the adversarial process

C. Innovative orders as intervention

a. If EN

i. Order child participate in activity without parent. e.g., preschool vs. class with parent; ‘sleep away’ summer camp for latency age child

ii. Order that parent may not par-ticipate/volunteer at school—maintain school as neutral, conflict-free zone

D. Orders must be detailed and highly specific

a. Monitoring by Court

i. Compliance with orders

ii. Participation in intervention

b. Insuring accountability

E. ‘Customized confidentiality’—more open communication and collaboration between the therapist(s) and the court

7. Advice on how attorneys can help their clients

A. If client is Rejected Parent (RP)

a. Coaching for the RP

b. Support group

c. Do’s and Don’ts for attorneys

B. If client is the Aligned parent (AP)

a. Coaching and education

b. Do’s and Don’ts for attorneys

8. How Judges can help RRD families

A. The importance of the Court having a strong and authoritative ‘voice’

B. The same Judge follows the RRD family

C. Specific expectations of each family member, detailed in highly specific Orders

D. Case management, Follow-up hearings


Institute 3

THE VIEW FROM THE BENCH AND BAR: HOW LEGAL PROFESSIONALS CAN HELP WHEN A

CHILD RESISTS CONTACT WITH A PARENT

AFCC-CA Pre-Conference Institute 2016 (Friedlander, Grilli, Guillory,

Kretzmer, Nachlis, Slabach, and Walters) 1

DEFINITION OF THE PROBLEM REFUSE/RESIST BEHAVIOR REFUSE/RESIST DYNAMIC—RRD RULE OUT ABUSE – ABSOLUTE DETERMINATION OFTEN NOT POSSIBLE



ALIENATION (AN) ESTRANGEMENT (ES) ENMESHMENT (EN) OTHERS--e.g., Child vulnerabilities ‘HYBRID’ CASES INTRACTABLE AND SEVERE CASES IDEAS AND BELIEFS VS. ‘REALITY’



What factors contribute to the RRD within the case described?

What steps should be taken? What might cause this case to become an intractable case?



These cases often require something different from conventional wisdom These cases require innovation and creativity

EXAMPLES: Axiom: Don’t talk to the children about X.

In these case we MUST talk to the children about selected subjects; but when, who, how and what?



Axiom: The child/problem just needs time Rarely true



60 • www.afcc-ca.org

2016 AFCC-CA Annual Conference

TIME IS THE ENEMY—Provides opportunity for dynamics to become entrenched

Delays and continuances as strategy Expedite hearings

Child Custody Evaluations Often take too long Order therapeutic intervention before CCE, to continue as indicated by therapist during the CCE

Importance of early identification

AFCC-CA Pre-Conference Institute 2016 (Friedlander, Grilli,

Guillory, Kretzmer, Nachlis, Slabach, and Walters) 8

Because these cases often require extreme orders and interventions that are inconsistent with conventional wisdom, confidence in the identification of an RRD family is important. Such confidence is often a function of monitoring and assessment and thus takes time. RRD cases require early intervention when confidence may not be high. Pros and cons of acting on suspicion, or when RRD is only a ‘working hypothesis.’





SIGNS THAT TRIGGER CONCERNS

Parent reports the child does not want to go to other parent’s home, or complains about spending time there. Unfounded and repeated allegations of abuse Parent insists on ‘my child’s rights’ Parent insists that the child talk to the judge

MORE SIGNS OF CONCERN – ENMESHMENT HYPOTHESIS Parent and child entwined in waiting room Attachment parenting “My child can’t be away from me that long.” Cannot schedule appointment because child cannot be left with babysitter Parent openly struggles with separation from child Parent resists pre-school or other age appropriate activities that require/foster separation from parent Parent argues for home-schooling Parent ‘over’ volunteers at child’s school Parent goes to school at other parent’s time and argues for right to do so Parent sleeps with child, etc.



MORE SIGNS OF CONCERN—ALIENATION HYPOTHESIS Child’s position is totally aligned with FP Child uses FP’s words in describing behaviors of RP Child is familiar with litigation issues When seen with RP, child’s behavior may briefly switch to affection, then back Child’s behavior/beliefs about RP are rigid; not based in realities of previous experience with RP; ‘black or white’—show no ambivalence Child resists/refuses contact with RP’s extended family Child joins with FP in continuing to verbalize previously investigated and disproved allegations vs. RP




Institute 3

MORE SIGNS OF CONCERN--ESTRANGEMENT HYPOTHESIS RP’s limited ability to empathize with child’s situation, or to understand how stress on child contributes to rejection Child and FP both describe parenting practices in RP’s home that are harsh, rigid and often punitively enforced RP withdraws and may relinquish parenting decisions and discipline practices with child to new spouse or partner RP’s threats of counter-rejection



Some combination of alienation, enmeshment and estrangement

Can lead to confusion—everyone is ‘right’



These children often look like they are doing exceedingly well; they are “stars.”

This should not be taken as evidence that nothing need be done!

The Aligned or Favored Parent (FP) often looks like a model parent

He’s the favorite of the child’s friends; she’s warm and nurturing ; she coaches the soccer team; he volunteers in the classroom.



Developmental considerations: What does each developmental stage ‘push for’ in the child?

Pre-school age children Latency age children Adolescence

Special considerations about the adolescent Early adolescence—puberty Mid-late adolescence—separation/individuation



MMFI – Family reorganization therapy Both parents actively involved i.e., NOT ‘re-unification therapy’—NOT only RP and child

Intensive, short term interventions Overcoming Barriers (Sullivan, Ward & Deutsch,2010)

An intensive weekend Transitioning Families (Bailey)



Family therapist does comprehensive assessment of the family’s situation to guide intervention plan, using CCE if available Intervention tailored to family’s needs and means Family therapist determines whom to work with and when—initially, often works in dyads Family therapist heads the treatment team and works with individual therapists, if any PC or Judicial Officer may oversee and coordinate the intervention Leverage attained from coordinated clinical, legal and educational interventions in order to effect change





May have one therapist, the family therapist, or, multiple therapists may be involved

Family therapist Individual therapist for child(ren) Individual therapist/coach works with FP Individual therapist/coach works with AP

May have PC and/or MC May have monitoring Judicial Officer



MMFI components Therapy Education Coaching

How change happens Behavior Beliefs Feelings



Overcoming Barriers Family Camp Multi-family http://www.overcomingbarriers.org

Overcoming Barriers Weekend Single-family

Transitioning Families http://www.transitioningfamilies.com



Interdisciplinary Settlement Conference (ISC) and similar court-based programs Mediator as Gatekeeper

Mandatory mediation identifies at-risk family Triage to early intervention

Education Mandatory, court-based educational programs Reading material specific to RRD Meet with Coach/Consultant



Parent Coordinator Recommending Mediator MC




Institute 3

The Intervention Team: the Court, attorneys, P.C. and therapists—A new paradigm The attorneys support the intervention rather than maintain the adversarial process ‘Customized confidentiality’ – more open communication and collaboration between the therapists and the court that still protects the therapy. Ethical dilemmas for each profession/team member



If Client is the Rejected Parent Coaching for the rejected parent Support Group Do’s and Don’ts for attorneys

If Client is the Favored Parent Coaching and education Do’s and Don’ts for the attorneys



Don’t buy your client’s story without question Do keep an open mind Don’t interview the children Do refer children to ethical, experienced therapist Don’t scream “Parental Alienation” Do describe the results (hearsay?) Don’t use negative adjectives in your declarations Do use calm objective nouns and verbs Don’t delay the hearings Do get to the judge quickly and ask for a team meeting



Issuing Orders/Facilitating Stipulations Innovative orders without supporting statutory family law codes Detailed and highly specific articulation of the Court’s goals and expectations for the family

e.g., Goals and measures of success (Drozd & Walters)



See handout Court orders should include statements about

The goals for the family to achieve: family reorganization The court’s expectation that each family member will participate and cooperate The manner in which the court will monitor the family’s progress





Order child participate in activity without parent, e.g. preschool, sleep away camp for latency age child

Order that parent may not participate/volunteer at child’s school – maintain school as neutral, conflict-free zone



FURTHER EXAMPLES

Axiom: Make the orders and send them on their way – they’ll work it out on their own.

In these cases we often have to monitor and oversee to the point of micro-managing



Monitor and Enforce Orders/Insure Accountability

The importance of the Court having a strong and authoritative ‘voice’

Provides structure/context for the MH intervention Enhanced by information provided to Court by MHP

Insure there is compliance with orders Insure there is full participation in the intervention Be a Real Case Manager; follow up hearings Same Judge needs to follow the family throughout jurisdiction



A Word about Contempt Actions in RRD Conventional Wisdom: Contempt actions are worthless in Family Court Not so; soon and often No punishment by jail – counterproductive Creative sentencing: e.g., Read books and do book reports; write essay about the other parent’s 10 good qualities; etc.



A Word About the Child’s Voice Axiom: the adolescent has the right to speak to the judge

Not if it is harmful to child Empower an already overly empowered child We already know what he will say Tell it to the mediator/PC/CCE/Therapist

Better Practice: Judge can talk to the child about the court’s expectations of his/her behavior Consequences: Judge can ground the child; take away electronics; take away car privileges



When other interventions have not been effective When the Court has found the active alienation has risen to the level of abuse When the Court has found the RP is an ‘adequate’ parent Continue working with FP, but… No contact with FP for specified period of time

Need to enforce—sanctions and monitoring Effect on child – provide necessary support Specific, behavioral requirements for resumption of contact Requirements for resumed contact to continue

Family Bridges (Warshak, 2010)




Institute 3

Helping the family members through the transition—(MMFI) The PC’s and/or Family Therapist’s expanded roles The question of the FP’s reintegration & participation in the child’s life Supervised time for the FP Updated evaluation Court monitoring



Panel Discussion Q & A



Steven Friedlander - [email protected]

MaryAnn Grilli - [email protected]

Donna Guillory - [email protected]

Michael Kretzmer, - [email protected]

Lorie Nachlis - [email protected]

Marjorie Slabach – [email protected]

Marjorie Gans Walters – [email protected] AFCC-CA Pre-Conference Institute 2016 (Friedlander, Grilli, Guillory,




AFCC-CA PRE-CONFERENCE INSTITUTE

The View From The Bench And Bar: How Legal Professionals Can Help When A Child Resists Contact With A

Parent

Selected Readings Dale, M.D. (2014). Don’t forget the children: Court protection from parental conflict is in the best interests of children. Family Court Review, 52 (4), 648-654. Friedlander, S., & Walters, M. G. (2010). When a child rejects a parent: Tailoring the intervention to fit the problem. Family Court Review, 48, 97-110. Garber, B. (April, 2011). Parental alienation and the dynamics of the enmeshed parent-child dyad: Adultification, parentification, and infantilization. Family Court Review, 49 (2), 322-335.

Greenberg L. R., Doi Fick, L. & Schnider (Ret.), Hon. R. (2012): Keeping the Developmental Frame: Child-Centered Conjoint Therapy, Journal of Child Custody, 9 (1-2), 39-68. Greenberg, L. R., Gould, J.W., Gould-Saltman, D.J., & Stahl, P. (2003). “Is the Child’s Therapist Part of the Problem?” Family Law Quarterly, 37 (2), 241-271.

Greenberg, L. R. & Sullivan, M. J. (2012). Parenting coordinator and therapist collaboration in high-conflict shared custody cases. Journal of Child Custody, 9 (1-2), 85-107. Guidelines for Court-Involved Therapy. (2011). AFCC Task Force on Court-Involved Therapy. Family Court Review, 49 (3), 564-581. Johnston, J.R., Walters, M.G., & Friedlander, S. (2001). Therapeutic work with alienated children and their families. Family Court Review. Special issue: Alienated children of divorce, 39, 316-333.


Institute 3

AFCC-CA Pre-Conference Institute 2016 (Friedlander, Grilli, Guillory, Kretzmer, Nachlis, Slabach & Walters) Page 2 Lebow, J. & Black, D.A. (2012). Considerations in court-involved therapy with parents. Journal of Child Custody, 9 (1-2), 11-38. Moran, J.A., Sullivan, T., & Sullivan, M.J. (2015). Overcoming the co-parenting trap: Essential parenting skills when a child resists a parent. Natick, MA: Overcoming Barriers Inc. Parkinson, P., & Cashmore, J.(2008-12-18). The Voice of a Child in Family Law Disputes. : Oxford University Press. Retrieved 11 Nov. 2015, from http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199237791.001.0001/acprof-9780199237791. Rosen, J. (2013). The child’s attorney and the alienated child: Approaches to resolving the ethical dilemma of diminished capacity. Family Court Review, 51 (2), 330-343. Sullivan, M.J., & Kelly, J.B. (2001). Legal and psychological management of cases with an alienated child. Family Court Review, 39, 299-315. Sullivan, M.J., Ward, P.A., & Deutsch, R.M. (2010). Overcoming barriers family camp: A program for high-conflict divorced families where a child is resisting contact with a parent. Family Court Review, 48, 115-134. Walters, M.G., & Friedlander, S. (2010). Finding a tenable middle space: Understanding the role of clinical interventions when a child refuses contact with a parent. Journal of Child Custody, 7, 287-328. Warshak, R.A. (2003). Payoffs and pitfalls of listening to children. Family Relations, 52 (4), 373-384. Warshak, R.A. (2010). Family Bridges: Using insights from social science to reconnect parents and alienated children. Family Court Review, 48 (1), 48-80. Warshak, R.A. (2015). Parental alienation: Overview, management, intervention, and practice tips. Journal of the American Academy of Matrimonial Lawyers, 28,181-248.



AFCC-CA Pre-Conference Institute 2016 (Friedlander, Grilli, Guillory, Kretzmer, Nachlis, Slabach & Walters) Page 3 Weir, K. (2011). High-Conflict contact disputes: Evidence of the extreme unreliability of some children’s ascertainable wishes and feelings. Family Court Review, 49 (4), 788-800.


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AFCC-‐CA PRE-‐CONFERENCE INSTITUTE

The View From The Bench And Bar:

How Legal Professionals Can Help When A Child Resists Contact With A Parent

SCENARIO ONE: The Bickersons

Ira and Gail Bickerson were married for just under 10 years. They have two minor children, Robin, age 13, and Quinn, age 10. The parties separated 3 years ago and their marriage was dissolved 2 years ago. By stipulation, the parties shared joint legal and physical custody of the two children, with the children spending approximately equal time with each of their parents.

Father (Ira) has far more rules and structure at his home than Mother (Gail) does. Mother alleges that Father is overly controlling and Father asserts that Mother is far too liberal with the children.

Both of the children are very bright. At the end of the last school year, Quinn was diagnosed with ADHD. The parents have disagreed over the issue of whether Quinn should take medication to assist her with the ADHD.

Over the past year, each of the parents began relationships with others and each is now engaged to be married. Over the summer, Robin and Quinn spent two weeks with each of their parents. Robin told both parents that she wanted to stay with her Father and go to school near his house. When Gail turned down this request, Robin began refusing to see her Mother. She complained about her Mother’s boyfriend and refused to return to Mother’s home unless the boyfriend was not there. Quinn really misses Robin and wants to stay where she is staying.

The parents agree to work with a mental health mediator/counselor and each has an attorney. What would you do with this?



AFCC-CA PRE-CONFERENCE INSTITUTE

The View From The Bench And Bar: How Legal Professionals Can Help When A Child Resists Contact With A

Parent

Sample Statements For Court Orders With RRD Families Note: This is NOT a model for a complete court order or stipulation. Instead, these statements are examples of how support for the family intervention could be woven into a stipulation or court order. It is expected that these statements would be modified to meet the needs of a particular family and/or court. These statements reference Mother as the Reject Parent and son as the child who is rejecting Mother, but could just as easily be written to reference Father and daughter, or some other variation. 1. Mother and Father shall promptly facilitate receiving the services of Dr X (family therapist). All family members shall participate in the family therapy with Dr. X, and cooperate fully with the services of Dr. X. 2. The Court expects Mother and Father will engage with Dr. X in good faith and in a manner that reflects their mutual commitment to the specified goal of the family therapy, that their son has healthy, positive relationships with both parents and members of both households. 3. Dr X will assist son with the goal of re-establishing and developing the best potential relationship with Mother. 4. The Court expects Mother and Father to cooperate promptly with scheduling and follow-through with all appointments requested by Dr. X., provide releases and background information as Dr. X requests. Father will transport son to and from appointments with Dr. X. 5. The Court will be monitoring the participation and anticipated progress of Mother, Father, and son. To the extent that Dr. X determines that siblings or other family members are necessary or at least important to achieving the goals of the family therapy, the Court shall also monitor their participation. 6. The Court will set Case Management Conferences (CMCs) or potential hearing dates every 60 days for this case, until an ending time determined by the Court. Fifteen days before each set date, Dr. X will provide a brief report in writing to the attorneys and the court. The attorneys can cancel the CMC or hearing date upon agreement. Further CMC or hearing dates are scheduled for _____________, ____________,____________.


Institute 3

7. Dr. X is encouraged to write to the Court directly, copied simultaneously to the various lawyers for the parents and the children and the court, in the event that Dr. X encounters difficulty with securing the cooperation of the parents, and concludes that the Court’s assistance is necessary to meet the goals of the family therapy as set forth here and in ______. 8. If Dr. X does not feel s/he can continue as the family therapist for any reason, the parties shall attempt to agree upon a qualified, substitute therapist. If the parties are unable to agree, each party shall submit one or more recommendations and the court shall appoint the family therapist. Neither party may unilaterally terminate the services of the family therapist without an order of this court. 9. Dr. X’s fees shall be shared in the following way: Mother pays ______%, Father pays _______%. Dr. X shall be paid in a timely manner according to her Treatment Agreement. Non-payment of her fees shall be construed by the Court as a form of non-cooperation with Dr. X’s treatment. The Court shall reserve jurisdiction to modify the fee sharing arrangement in the event that the court makes a finding that a parent is not cooperating with this order. Judge’s Participation and Compliance Agreement, for use with an adolescent.** I, _______, understand that the Judge has the power to make decisions about whether my mom or dad has legal or physical custody of me. I know that I have a right to tell the Judge what my opinion is and that the Judge makes this decision based on what s/he believes to be in my best interests. As part of this court case, I understand that the Judge will give my dad legal and physical custody of me. As a condition of that custody, the Judge has ordered my dad to schedule, and make sure that I attend and participate in, family therapy with Dr. X for the purpose of the best possible potential relationship I can have with my mom. I understand that Dr. X will listen to my concerns and ensure that contact with my mom is consistent with my best interests.

Therefore, I agree to do the following things: 1) Attend all therapeutic sessions and appointments that my parent schedules for me. 2) Communicate and cooperate with Dr. X. 3) Participate in contact and communication with my other parent as recommended by Dr. X, even when it is uncomfortable for me, and 4) Follow through with the parenting timeshare schedule. Dated:________________________ ____________________________________ Signature of child Dated:________________________ ____________________________________ Signature of Minor’s Counsel



**This agreement is written on Court stationery (e.g. In the Superior Court of the State of … for the County of … in the matter of:, Case Number…, labeled as Participation and Compliance Agreement For …name of child), and once signed, it is filed with the Court stamped with the date filed.

The View from the Bench and Bar: How Legal Professionals...

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