Law Times

Law Times • February 7, 2011 FOCUS Kids want alienation discovered: study Continued from page 10 and is totally focused on his or her needs," Bala explains. "What happens to children that you leave with an alienating parent? The literature is not encourag- ing. They can end up in the mental hospital, too." In A.A. v S.N.A. in 2007, the B.C. Court of Appeal said the court should focus on the child's long-term welfare notwithstand- ing the short-term risk. This view is supported by a 2001 study by Dr. Richard Gardner (who first introduced the term parental alienation syndrome and pio- neered its study). He found that where custody was reversed, pa- rental alienation syndrome was eliminated or reduced in 90 per cent of cases and the children all expressed relief at the change. Where there was no custody change but other alternatives were pursued, only nine per cent saw any improvement in the sit- uation and the remainder were worse off or the same. In cases that amount to emo- tional abuse, academics agree that custody reversal can be the least detrimental alternative. Fi- dler and Bala note that where the aligned parent is mentally ill, has a serious personality disorder or doesn't comply with orders and therapy, a custody reversal may be warranted as long as the re- jected parent has sufficient par- enting capacity. The most telling research may be studies that involved inter- views with adults who suffered alienation and court intervention as children. During interviews for a study by Amy Baker in 2007, virtually all of the partici- pants remembered claiming they hated and feared the other par- ent but secretly hoped someone would realize they didn't mean it and wanted the alienation to be discovered. Mamo reported that many people feel there's no point of interviewing children if Guidelines play role Continued from page 9 who have to be at work from 7 a.m. to 7 p.m. Their plan is to leave the children with a care- giver when the other parent is at home." Landau adds: "You also have to consider the stage of devel- opment and temperament of the child. Do the children take to change easily or do they suf- fer anxiety over the smallest changes? There is a need for stability, security, and a reason- able routine." Landau also stresses the need to look at the parenting con- nection before the separation. "Some parents who are ask- ing for 50 per cent have never looked after the child on their own except for maybe 20 min- utes while someone went to the 7-Eleven. You need to build up the child's comfort and confi- dence." Landau also stresses that the level of communication be- tween the parents needs to be respectful so the children aren't travelling back and forth be- tween war zones. Bucci, meanwhile, believes parents need to prove they were equally involved in parenting prior to separation. "One part- ner says, 'Yes, I was absolutely equally involved.' The other partner says, 'Absolutely not. I did the majority of the decision- making.' Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?" Bucci, in fact, finds a lot of litigants get very hung up on a particular label. "So many par- ents want joint custody but are not really prepared to put in the work." Landau places the blame for this situation squarely at the feet of the child-support guidelines. "The question of equal time is contaminated by the supposed 40-per-cent rule of child sup- port. Virtually every man wants 40 per cent of the time in the mistaken belief that they won't have to pay child support. I call it the faint-hope clause. If you took away the 40-per-cent rule, there would be a lot less fights over the percentage of time." Landau believes most cases start with a presumption that it's in the child's best interests to have a full relationship with both parents in any case. "A judge has an overriding responsibility to deal with each case in an indi- vidualized way, and that doesn't preclude joint physical or joint legal custody." LT Untitled-2 1 2/4/11 10:45:33 AM they're known to be alienated. "With respect, that shows a lack of understanding of what hav- ing the child heard means. It's even more imperative in paren- tal alienation cases so their lives are not acted upon without any input." It may also offer an in- sight into why the children are saying those things even if what they say is known to be skewed. Another approach sup- ported by research is to prevent alienation in the first place by providing public education about divorce; providing earlier clinical and court interventions when alienation is identified in the triage process; and having case management done by one judge. This is endorsed by Fidler and Bala, who have provided a summary of recommendations for practice and policy when courts, practitioners, and health professionals are faced with these challenging cases. LT NEWLY REVISED & UPDATED FOR 2011 Separation Agreements and Marriage Contract/Agreement Revisions have been made to existing clauses and commentary, plus we've added new clauses and schedules (including a streamlined "Statement of Income, Assets and Debts/Liabilities"), based on current case law and legislation including: easy-to-use comprehensivewell-drafted To order online Don't spend valuable time and resources updating your precedents when DIVORCEmate has already done the work for you! DIVORCEmate One...From Marriage Contracts to Divorce Judgments and Everything in Between. a product of Toll Free: 1-800-653-0925 or 416-718-3461 x446 e: sales@divorcemate.com www.divorcemate.com PAGE 11 EVIDENCE IN FAMILY LAW Editor-in-Chief: Harold Niman Associate Editor: Anita Volikis a team of prestigious practitioners, academics and accountants as contributors THE FIRST BOOK TO PROVIDE CLARITY IN THIS COMPLEX AREA OF LAW Find out from leading practitioners, academics and accountants how to best obtain, preserve and present evidence with Evidence in Family Law. This resource is structured to follow the evolution of a family law case through trial and appeal. 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