When a survivor of domestic violence is able to safely leave their abuser, there can be a feeling of great relief, that the horrible ordeal they have been experiencing is finally over. Unfortunately, that is often not the case. Even after victims are no longer living with their abusers, in any sort of relationship with their abusers, or even in contact with their abusers, there are ways that perpetrators can continue or escalate trying to control, manipulate, and exert power over survivors. After separation from an abusive partner, up to 90% of women report continued harassment, stalking, or abuse (JAN). This is especially common when the survivor and abuser are married and/or have children together. Two continuing abuse tactics widely used in these instances, often in conjunction with each other, are known as post-separation legal abuse and parental alienation. This post will delve into what exactly these tactics entail, how abusers use them, and suggestions for minimizing their effectiveness.
From High Conflict Education & Resources, Copyright OMB LLC 2021
What is Post-Separation Legal Abuse?
Post-separation legal abuse is a coercive control tactic in which abusers use the courts to harass their victims after they have left the relationship. It is also sometimes called vexatious litigation, procedural abuse, judicial terrorism, custody stalking, and domestic violence by proxy. Judges, custody evaluators, guardians ad litem, and other court-related professionals also often mistakenly label these cases as “high-conflict divorces”. This term, however, implies a similar level of escalation by both parties, whereas, in reality, in post-separation legal abuse only one party continues to seek conflict and prolong proceedings. They often do this in ways that make it seem that they are trying to find solutions or be a good parent, and thus, are frequently quite effective.
Common Post-Separation Legal Abuse Tactics
The goal of abusers utilizing post-separation legal abuse is to keep controlling their victims and make their lives more difficult and much more stressful. Abusers may file frivolous motions or lawsuits designed to increase conflict or drag out court cases. They may gaslight victims and/or judges, by claiming victims are mentally unstable and/or creating a false narrative of events that paints the abuser in a wonderful light and their victims poorly. Abusers may manipulate situations and evidence to hide their abuse and place blame on the victim. It can be very difficult for judges to determine who is telling the truth and easy for them to mistakenly believe abusers’ lies when the abuser appears calm and sensible in court while making victims appear to be uncomfortable, anxious, angry, and/or defensive.
When children are involved, abusers may request at least half-time custody, even if they don’t really want it, just to have a way to prolong litigation and to create an avenue for future contact and control of their victim through the children. Additionally, filing for custody may assist and enable abusers with other tactics because when there is a custody dispute, judges are less likely to grant protective orders and child protective services are less likely to investigate reports of abuse (JAN). Abusers also sometimes use issues they created against victims in custody disputes, such as claiming the victim is a bad parent, mentally unfit to have custody of the kids, because they sought treatment for anxiety or depression that was caused or exacerbated by the abuse.
Effects of Post-Separation Legal Abuse
Having to come back to court again and again, facing their abusers and fighting to be believed, can take a toll mentally, physically, and financially on victims. It is a form of emotional/psychological abuse, keeping victims trapped in a web of lies and manipulation even after they have left their abusers, that can lead to mental health problems such as anxiety, depression, and PTSD. Continued stress can also lead to physical health issues such as digestive problems, weight gain, headaches, muscle tension/pain, heart disease, high blood pressure, and stroke (Mayo). Lawyers’ fees and missed days of work in order to appear in court can add up to huge financial losses as well, which may force victims to move themselves and their children into a shelter or even return to their abuser (DomesticShelters).
Children can also be deeply affected by post-separation legal abuse, even when that abuse isn’t targeted directly at them. Parent abusers who had little interest in the children but fought for partial or full custody only to continue abusing their ex-partner may neglect or abuse the children as well, and/or be unwilling or unable to provide them with love, support, and stability. If the abuser is successful in gaining custody and even preventing the victim from seeing the children at all, they cut off support from a loving parent, causing emotional distress for both the children and the victim.
Mitigating Post-Separation Legal Abuse
It can be very challenging for victims to be believed and make court personnel understand what the abuser is really trying to do. If possible, engaging lawyers and mediators who have experience with cases involving abuse and are knowledgeable about post-separation abuse can be very beneficial. They are often better able to point out tactics and to try to prevent or counteract them. Educating judges on domestic violence and legal abuse can help them look out for signs and patterns that one party is trying to manipulate the system to control the other. Judges rendering perpetrators accountable by holding them in contempt on their first failure to comply with orders such as paying child support or sanctioning them for filing frivolous or unnecessary motions can minimize the number of hearings needed and help reduce contact and stress for victims. (DomesticShelters) Judges can offset financial abuse through courts by requiring abusers to cover victims’ legal fees. In custody cases, judges can help protect children by denying visitation or setting restrictions on visitation periods and requiring supervision. Setting up systems and intermediaries to communicate about shared children when visitation or joint custody is granted can help minimize the amount of interaction between survivors and their abusers. (PFL)
What is Parental Alienation?
Parental alienation is when one parent accuses the other parent of brainwashing, manipulating, and/or “poisoning” the child(ren) against them such that the child(ren) do not want to spend any time with that parent and of purposefully denigrating them to the child(ren) in order to undermine their parent-child relationship. Children, of course, can be manipulated and gaslit just as easily as adult victims, if not more so. However, in the context of domestic violence, parental alienation usually refers not to abusers trying to turn their child(ren) against victims (which they may do), but rather to abusers accusing victims of trying to turn their child(ren) against them when it is the abuser’s own behavior that is actually causing the child(ren) to not want a relationship with them.
The term “parental alienation” derives from several books written about the topic in the 1980s by child psychologist Richard Gardner, who was a paid expert witness in over 400 child custody cases, most often testifying on behalf of fathers accused of sexually abusing their children (ProPublica). Gardner had no research to support his concept, and it was never peer-reviewed. Because of this, “Parental Alienation Syndrome” is not a mental health condition recognized by the American Psychological Association, the American Medical Association, the World Health Organization, the National Council of Juvenile and Family Court Judges, nor the United Nations’ Human Rights Council (Healthline & ProPublica). Though it is not an official syndrome in mental health or scientific fields, many people, including psychologists and legal professionals, endorse and promote it, diagnose it, and use it as evidence in court cases. It is also championed by many “father’s rights” groups.
How Abusers Use Claims of Parental Alienation
Despite, or perhaps because of, the fact that parental alienation is such a controversial and divisive concept, it is often used as an all-too-effective legal abuse tactic. If the victim accuses the abuser of domestic violence, the abuser may try to counter that accusation by leveling one of their own, that of parental alienation. The abuser claims the victim is lying about the abuse in order to deny the abuser custody and turn the child(ren) against them. They not only refute allegations of abuse, but actually use those allegations against the victim, shifting the theoretical burden of proof from themselves to the victim. It is extremely difficult for victims to prove that they are not manipulating the child(ren), and once there is a perception that the victim and/or child(ren) are not credible, it can easily escalate so that nothing they say is believed and everything is used against them.
Psychologist Jennifer Freyd created the term “DARVO” to describe how abusers use parental alienation and other similar tactics. DARVO stands for “Deny, Attack, and Reverse Victim and Offender”. The goal of DARVO is to deflect the accusations and create uncertainty about the facts. As journalist Grant Wyeth describes the power of parental alienation, “The ‘genius’ of Gardner’s tool was that the more a mother or a child insisted that abuse had taken place, the more evidence of the ‘alienating’ syndrome. He designed a trap.” Often, abusers’ allegations of alienation sound just as legitimate as victims’ allegations of abuse. They use the same evidence but interpret it in a very different way. It may be extremely challenging for judges to determine who is telling the truth, especially if they are not familiar with the concept of parental alienation or how it can be used as a continuing abuse tactic.
Effects of Parental Alienation Allegations
Unfortunately, when abusers claim parental alienation, victims’ claims of domestic violence are often not properly investigated and sometimes even used as “evidence” of parental alienation. Courts may not consider other reasons why the child(ren) may reject one parent. (Brunel) A 2019 George Washington Law study found that when mothers accused fathers of abuse, especially child physical or sexual abuse, it increased the mothers’ risk of losing custody. If the fathers turned around and accused the mothers of parental alienation, that risk virtually doubled. The study specifically used gendered language because it noted that this impact of parental alienation accusations is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim parental alienation. While victims and abusers can be of any gender, historically the majority of victims are women and abusers are men. There are centuries of cultural influences, stereotypes, myths, and misconceptions that likely feed this parental alienation gender-bias in custody cases. Often the mother or “protective parent” is forced to be extremely careful about what they say and do in court, and not try to remove the child from the abuser completely because it is too much of a risk that that is what will end up happening to them instead, that the abuser will be given full and sole custody of the child(ren).
Beyond victims potentially losing custody and having their domestic violence allegations dismissed, parental alienation can have devastating consequences for the child(ren). Not only do they have the emotional distress of being caught between two parents, one of whom is feeding them lies and trying to use them to control the other, but they risk being court ordered into dangerous situations. It is common for judges to respond to allegations of parental alienation by separating the child(ren) completely from the parent accused of parental alienation (the victim or “protective parent”) and giving full custody to the abuser. Or the child(ren) may be ordered to attend expensive and unregulated “reunification camps”. At these camps, children are often threatened that if they don’t recant abuse allegations and/or “get along” with the allegedly abusive parent they could be sent to foster care, never see their protective parent again, or that the protective parent may go to jail. These “treatments” can be extremely terrifying and traumatic for the child(ren). (Medium)
Curtailing Parental Alienation
Regrettably, survivors may need to think very carefully about what they should and should not discuss with their child(ren) and bring up in court, and what outcomes are possible based on their particular case, evidence, legal team, experts, judge, etc. Especially when children are being abused, it can seem unthinkable to not try to prevent the abuser from seeing them, but there is a high risk that abusers will use parental alienation and other legal abuse techniques to successfully win full custody of the children, potentially causing them greater harm. However, with a lawyer with knowledge of parental alienation and experience refuting it, they likely have a better chance. If possible, also hiring neutral, well-respected experts who can testify as to the credibility of the victim’s abuse claims or the lack of credibility of the abuser’s parental alienation claims may also strengthen their case. Documenting incidents and evidence can be helpful, as can corroborating testimony of other reliable adults in children’s lives, such as teachers, doctors, and therapists.
Judges should be cautious about accepting claims of parental alienation as a valid legal argument and thoroughly investigate all allegations, especially if the other parent alleges abuse. “The good news,” explains Dr. Freyd, “is that if we teach people about the concept of DARVO and the behavior, they are much better able to identify it and be less swayed by it.” In a 2023 report, Special Rapporteur to the United Nations Human Rights Council, Reem Alsalem, made numerous recommendations for changes to laws and court systems to reduce parental alienation, including mandatory training of the judiciary and other justice system professionals on gender bias, the dynamics of domestic violence, and the relationship between allegations of domestic abuse and of parental alienation; the use of only publicly funded experts or regulations as to necessary expert qualifications; and the prohibition of reunification camps. “Judges and evaluators need to move away from focusing on the identification of behaviours that are contested within the discipline of psychology,” she reports, “and towards a focus on the specific facts and contexts of each case.”
Post-separation legal abuse can be a devastating continuation of domestic violence for survivors, with parental alienation as perhaps the most terrifying tactic employed. Its manipulation is slowly becoming more widely recognized and understood, and with more education and changes to laws, it will hopefully become a less effective technique in the future.
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