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Dear Judge - Follow-up Open Letter from a Decimated Parent

January 24, 2018

Dear Judge:

 

It’s me again. You remember me, don’t you?

 

Oh, you don’t? I’m that pro se dad – you were really, really mad at me when I appeared in your courtroom at the end of last year. I’m still wondering why you were so angry; I guess I’ll never really know.

 

Well, I told you last year that I was about to withdraw my petition and I did. I sent it to the court clerk; I didn’t send a courtesy copy to your clerk – I learned my lesson after you excoriated me for having the temerity to send courtesy copies to your chambers. I guess the idea of foregoing a courtesy copy in family court is a pretty good metaphor for family court in general: there isn’t a shred of courtesy to be found there.

 

I know you don’t care, but I’m going to tell you anyway why I hung on as long as I did. One of the motions that I filed – the one you denied without even reading, the one you treated like dog poop on your shoe – was a motion to oppose the appointment of an attorney for the child (AFC). The job of the AFC is to represent the child’s wishes in the litigation. I did some research, and the ethical obligation of an AFC in your jurisdiction is to represent the child’s wishes even when the AFC disagrees with the child’s position. 

 

Now imagine if that child has been subjected to pathogenic parenting for years and years. The result of that exposure is toxic. The child has now completely rejected one parent and is enmeshed with the other parent. The child presents specific identifiable traits that demonstrate a diagnosis of child psychological abuse: attachment system suppression; personality disorder traits such as grandiosity, absence of empathy, entitlement and splitting; a phobic anxiety toward a parent; a fixed false belief.[1] What, your Honor, do you think that such a child is going to tell his or her attorney about custody and visitation? 

 

In my motion, I suggested that it was unnecessary to appoint an AFC because we already knew what the child would say. I was prepared to stipulate that the child would oppose any position taken by me or that the child would side with the mother’s position.  Adding an AFC into the case would simply mean my voice would be outnumbered 2-to-1, and would make the alienation even worse.  Not that you read or heard any of these arguments. 

 

When the AFC was appointed, I reached out to him. He took my call, and I had a good initial conversation with him. He was the first person in this entire case that actually treated me like a human being. I pointed him to the material that I had filed and in particular to a law review article concerning the ethical obligations of an AFC when representing an alienated child.  He promised to read that article and the rest of my filings and that he would get back to me.

 

The article is extremely important.  It is titled The Child’s Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity, written by Jamie Rosen and published in Family Court Review, Vol. 51, no. 2, April 2013, pp 330-343.  The central thesis of this article is that an AFC should evaluate an alienated child for “diminished capacity” under Rule 1.14[2], and if “diminished capacity” is found, the AFC should act in the child’s best interest, not according to the child’s wishes:

 

"If the child’s preference has been unduly influenced by others, especially a parent, and thus is not reflective of his own judgment, that preference raises an ethical dilemma for the lawyer. When the child is alienated, he or she may not be competent to direct the lawyer’s advocacy as the client-centered model requires.  Specifically, the alienated child may not be capable of making decisions when directing the lawyer as to a desired custody or visitation agreement because the client [i.e., the child] may be under a disability. A client is considered to have diminished capacity when he or she lacks the capacity to make ‘adequately considered decisions in connection with a representation.’ In child custody cases where parental alienation exists, the appointed Child’s Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct, and is so, must treat the client accordingly under Rule 1.14…" (Rosen, p. 331; emphasis added).

 

The attorney for a client with diminished capacity “has a duty to prevent the client from pursuing decisions that are potentially harmful” (Rosen, p. 333). The decision to reject me as a parent is not only potentially harmful, it is actually harmful.[3]

 

So after you appointed the AFC, I held out a slight hope – just a very slight hope – that the AFC would act in accordance with these ethical obligations. When he agreed to review the material I had filed, the small flame of hope flickered just a bit more. Maybe – just maybe – the AFC would see that my child was brainwashed and lacked the capacity to consider the ramifications of issues to be decided.  And if the AFC were to act in the child’s best interest, then the AFC would advocate for a position that restored the relationship.

 

As the hearing date approached, I began to reach out to the AFC. He didn’t return emails or phone calls. Finally, the day before the hearing, he told me that he would talk to me in the presence of the other attorney. The small candle of hope was extinguished when it became clear that he would simply parrot my child’s wishes. “Despite this ethical dilemma, Child Attorneys often rely on the child’s preference in custody proceedings where parental alienation exists, leading to continued exposure to parental alienation in many households” (Rosen, p. 331).

 

All of the professionals involved to date – every single one of them - have failed my children. The initial mental health professional didn’t know what was going on. The mother’s attorney ignored all overtures to cooperate towards a solution. The AFC breached his chief ethical obligations. And you, your Honor, you didn’t even read my petition. And I doubt you read my withdrawal, so here’s what I said:

 

"There is no indication that further deliberation will render any safety from protracted impairment of emotional health of my child by a parent (see, e.g., definition of “abused child” in the statute) based on previous determinations to the contrary and my inability to secure collaboration with either the respondent’s attorney or the child's attorney. Pathogenic parenting is counterintuitive and unless a trained diagnostician is involved, there is no way an untrained professional will be able to assess, diagnose and treat this pathology.

 

Since further proceedings would be futile, I hereby respectfully withdraw my petition." 

 

I have given up on the court, but your Honor – I will never, ever give up on my children.

 

 

 

[1] See, Diagnostic Checklist for Pathogenic Parenting, Dr. Craig Childress, accessed at http://www.drcachildress.org/asp/admin/getfile.asp?RID=94&TID=6&FN=pdf

 

[2] The Model Rules of Professional Conduct are published by the American Bar Association, and form the basis of ethical canons applicable in most US states.  Rule 1.14(a) – (b) states as follows: 

"Client With Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."

 

[3] “There is now scholarly consensus that severe alienation is abusive to children (Fidler and Bala, 2010), and is a largely overlooked form of child abuse (Bernet et al, 2010), as child welfare and divorce practitioners are often unaware of or minimize its extent. As reported by adult children of divorce, the tactics of alienating parents are tantamount to extreme psychological maltreatment, including spurning, terrorizing, isolating, corrupting or exploiting, and denying emotional responsiveness (Baker, 2010). For the child, parental alienation is a serious mental condition, based on a false belief that the alienated parent is dangerous and unworthy. The severe effects of parental alienation on children are well-documented—low self-esteem and self-hatred, lack of trust, depression, and substance abuse, and other forms of addiction are widespread as children lose the capacity to give and accept love from a parent. Self-hatred is particularly disturbing among affected children, as children internalize the hatred targeted toward the alienated parent, are led to believe that the alienated parent did not love or want them, and experience severe guilt related to betraying the alienated parent. Their depression is rooted in feelings of being unloved by one of their parents, and from separation from that parent, while being denied the opportunity to mourn the loss of the parent or to even talk about them. Alienated children typically have conflicted or distant relationships with the alienating parent also, and are at high risk of becoming alienated from their own children: Baker reports that fully half of the respondents in her study of adult children who had experienced alienation as children were alienated from their own children.”  The Impact of Parental Alienation on Children, Dr. Edward Kruk, retrieved from https://www.psychologytoday.com/blog/co-parenting-after-divorce/201304/the-impact-parental-alienation-children.

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