As a family law attorney, child custody disputes are frequently in my office. Just like with nearly all legal matters, each client I represent has his or her own unique range of issues they are facing that lead them into our law firm. The outcome of each case is unique as well. Every family unit comes with a different history, composition, and problems. Because of the vast number of differences attached to each case, I have become familiar with the risks and impact on children going through the process of divorcing parents or a custody dispute.
Parental alienation is a phenomenon that commonly takes place in high-conflict divorces where the parties have minor children and post-divorce custody actions. What is parental alienation? In the Tennessee Court of Appeals case, McClain v. McClain, expert Dr. Schacht relied on a DSM5 Task Force Disorders of Child and Adolescence Work Group report and described parental alienation as: “[T]he essential feature of parental alienation is that a child . . . allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. The primary behavioral symptom is that the child refuses or resists contact with a parent, or has contact with a parent that is characterized either by extreme withdrawal or gross contempt. The primary mental symptom is the child’s irrational anxiety and/or hostility toward the rejected parent. This anxiety and/or hostility may have been brought about by the preferred parent or by other circumstances . . .”
Examples of actions that promote parental alienation, which I have observed in family court, include parents speaking negatively about the other parent’s family, denying parenting time, telling a child the other parent does not love them, describing the other parent as an alcoholic or drug abuser, and sharing details about the pending litigation. In the McClain case, the Tennessee Court of Appeals upheld the trial court’s finding that the “father had actively supported the children’s alienation from the mother without reasonable cause” based upon the following - _________. Evidence of parental alienation, is not limited to but, can be presented through the following: interviews with the parents, school records, interviews with teachers, court records, family documents and photographs, and text message conversations.
Children who are victims of parental alienation experience short-term and long-term effects. It should be noted, that the psychological damage does not impact only younger minor children – it reaches all minors, including those nearing the age of majority. If parental alienation has already plagued a parent-child relationship, family counseling to reestablish the relationship may be necessary.
Aside from the negative effects parental alienation has on minor children, what is the legal significance of alienation? In the family law context, severe alienation can constitute a material change in circumstances that justifies a modification of custody. The term “material change in circumstances” is the basis for a party bringing an action in court to request a change of the custodial parent – referred to as the Primary Residential Parent in Tennessee. Pursuant to Tennessee Code Annotated section 36-6-101(B)(i), in a custody modification action, the petitioner must prove by a preponderance of the evidence a material change in circumstance. The statute continues: “A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.” The fact that Tennessee courts are giving such weight to parental alienation in custody modification actions shows the substantial impact judges have observed during their practice or time on the bench.
Permanent Parenting Plans in Tennessee begin with the following boilerplate language: “The mother and father will behave with each other and each child so as to provide a loving, stable, consistent and nurturing relationship with the child even though they are divorced. They will not speak badly of each other or the members of the family of the other parent. They will encourage each child to continue to love the other parent and be comfortable in both families.” Parental alienation is a clear violation of this section of the parenting plan. Such violation is grounds for initiating a custody modification action.
Additionally, it should be stated that, estrangement differs from alienation. “The difference between estrangement and alienation resides in the presence vs absence of a reasonable objective basis for a child’s severe and persistent rejection and denigration of a parent. Rejection and denigration of a parent with a reasonable objective basis is estrangement; rejection and denigration without such a basis is parental alienation.” Essentially, estrangement is justifiable and parental alienation is not. How can we distinguish between the justifiable versus baseless circumstances? As with any custody dispute, the paramount concern is the best interest of the child. If the child is in danger with one parent and it is detrimental to their well-being to maintain that parent-child relationship, then estrangement is justified. Parties involved in high-conflict divorce or custody disputes may have clouded judgment due to resentment against the other parent; therefore, it is important as the family law attorney to objectively review the evidence and advise your client accordingly.
This post was authored by attorney Megan McGill. If you would like to discuss your case with her you can contact her at: Megan@BlinkLaw.Org or 615-651-7386.
 McClain v. McClain, 539 S.W. 3d 170, 182 (Tenn. Ct. App. 2017) citing Bernet, W. et al. (January 15, 2010) Parental alienation, DSM-V, and ICD-11. Draft report for submission to the DSM5 Task Force Disorders of Child and Adolescence Work Group, p. 12.  McClain v. McClain, 539 S.W.3d 170 (Tenn. Ct. App. 2017)  Tennessee Code Annotated section 36-6-101(a)(2)(B)(i).  McClain v. McClain, 539 S.W.3d 170, 182 (Tenn. Ct. App. 2017)