GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2010

Status

Accepted

Abstract

Specialists in abuse and alienation have long taken opposing positions on the legitimacy of the concept of alienation in custody cases where abuse is alleged. One increasingly popular response that appears to carve a middle path is acknowledge that both alienation and abuse may co-exist, and to focus on "hybrid" cases, i.e., those in which there are cross-allegations of abuse and alienation. This article discusses and critiques, from the perspective of an expert on abuse, one of the earliest and most significant approaches to the hybrid case: Drozd and Olesen’s "Decision Tree." The author concludes that, while the Decision Tree is a thoughtful and well-intentioned effort to objectively and fairly assess abuse and alienation as well as other potential sources of a damaged child-parent relationship, the "hybrid" approach itself as well as some of the Tree’s concepts, such as "counter-productive protective parent," implicitly privileges alienation over abuse, and unintentionally but inevitably contributes to the marginalizing or hiding of credible abuse and risk to children. Johnston’s credible empirical research has demonstrated that child alienation occurs in only a small fraction of cases where parents engage in alienating behavior and is almost always caused at least in part by the disfavored parent’s behaviors. Alienation, however, has been widely used to defeat legitimate and credible abuse concerns. The article concludes that alienation has been vastly over-emphasized in family courts and in the literature, in part because it furthers family courts’ desire to maximize fathers’ role in separating families. The article ends with an alternative and simpler 7-step proposal for assessment of alienation in "hybrid" cases, which is premised on the assumption that "true" alienation must be de-linked from the presence of abuse allegations and can only legitimately be evaluated after abuse has been screened out.

GW Paper Series

GWU Legal Studies Research Paper No. 526; GWU Law School Public Law Research Paper No. 526

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