Parental alienation cases fraught with ethical danger

By Staff

Parents and their advisors must negotiate a multitude of ethical issues on their way to success in parental alienation cases, Toronto family lawyer Brian Ludmer tells

Ludmer, principal of LudmerLaw, says the emotionally charged nature of these matters leads to an elevated level of risk for parents, their friends and families, as well as the various professionals involved, including lawyers, physicians, therapists and teachers.

“Errors — through inadvertence, misinformation, lack of competence and experience, or ethical breaches — can have a material impact on the result of the case,” he says.

The situation is not helped by the lack of understanding and training in general around parental alienation, according to Ludmer, who describes the phenomenon as “counterintuitive.”

He says professionals can manage the risk by recognizing potential ethical breaches as they arise, and then communicating and escalating issues within their organizations in an attempt to correct the behaviour.

“Thereafter, if necessary, counsel can bring a proceeding for relief,” Ludmer says. “Complaints to supervising bodies and governmental authorities can also be considered, although they tend to take too long and are a less practical remedy in the moment.”

He says guidance is light for counsel representing the child's favoured parents, but that professional standards provide certain boundaries. For example, relitigating settled issues before a new judge or making statements that encourage disobedience of court orders are clearly ethical breaches. Still, he says the attitudes of clients can place lawyers in tricky positions.

“Unfortunately, aligned parents tend to terminate counsel who push back in the best interests of children,” Ludmer explains.

Children's counsel are strictly bound by their rules and mandates, he adds.

“If it is a simple advocacy role, best interest arguments should not be asserted. If it is a mere ‘voice of the child’ role, there is nonetheless an obligation not to make evaluative judgments and to bring any concerns about lack of independence of those views to the court's attention,” Ludmer says.

Professionals can easily find themselves exposed to allegations of bias or conflict of interest in cases where doctors treat both the child and a parent.

“In addition, mental-health practitioners need to avoid deliberately or inadvertently becoming an advocate,” Ludmer says “Parental alienation and related matters, such as false allegations of sexual or physical abuse, do require specialized expertise and experience, and such professionals should be chosen carefully and avoid taking on assignments that they are not qualified for.”

For therapists and custody evaluators, he says specialized training and experience may be required before they are permitted to deal with parental alienation cases. Members of these disciplines may also be less familiar with legal concepts such as procedural fairness.

“They need to maintain a perception and reality of independence at all times,” Ludmer says.

Therapists should also take care to understand the precise terms of their retainer with clients.

“Are they engaged in a directive manner to fix a broken family system or merely to provide typical therapy,” he says, explaining that an error in terms of scope could taint the services given.

“The scenario of a therapist causing perpetual delay and stagnation in the family system is an unfortunate occurrence in a typical parental alienation case,” Ludmer adds.

Another common problem involves the role of child protection authorities, who are often brought in unnecessarily or refuse to get involved when requested by therapists and others, he says.

“In a parental alienation case there is a very fine line between what is a custody and access issue and what is a child-protection concern, and there is a lack of training in that regard,” he says. “Child protection workers often stray into what are strictly custody and access issues and refuse to intervene in clear child-protection matters because the case is otherwise before the family courts.”

Too often, he says therapists, custody evaluators, child-protection authorities and police officers facilitate the breach of court access orders simply because a child does not want to see the other parent.

“Police forces need training to deal with cases where they are called to enforce court-ordered parenting time in the face of a refusal by the child,” Ludmer says. “Having the other, more favoured parent remove themselves from the scene will often suffice.”

Friends and family members also run risks when participating in the alienation or helping a parent breach a court order.

“All of these can subject them to claims for defamation and wrongful withholding,” Ludmer says.

While traditional torts such as interference and alienation of affection are limited in most jurisdictions when it comes to damages, he says restraining and non-disparagement orders to prevent their interference are on the table.

When acting properly, schools and activity providers can act as a stabilizing force for the children's relationships with both parents, Ludmer says.

“Unfortunately, all too frequently the alienating parent co-opts such third parties and creates such a ruckus that the target parent either feels completely uncomfortable and unaccepted in those forums or a court orders that only one parent can be at an activity at a time, which results in significant loss to the children,” he adds.

“A frequent and necessary clause in parenting plans is that both parents and extended families are eligible to attend children's events, are welcome to do so, and that all are expected to put the children's needs first, as well as avoiding any controversy that would spoil the experience for the children,” Ludmer notes.

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