Parental Alienation 235-1970 .

 , Primary Source,E-JOURNAL #65247, 05/16/17, @TerryBankert Flint , 810-235-1970. Do you have questions about Family Law , Divorce, Child Custody, Parenting time in Flint Mi and Genesee County?
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The Court may decide to change custody for instance “ on a finding that plaintiff had engaged in efforts to alienate the children from defendant by telling them not to eat his food because he poisoned it, not to express any love or fondness for him, not to hug him, not to keep his gifts, not to call him father, and to generally treat him despicably, along with failing to make minimal efforts to support defendant’s exercise of parenting time.”[#65247]
“Parental alienation may be one of the most challenging and insidious aspects of family law practice, for the advocate as well as for the fact-finder and decision-maker. Misinformation and misunderstanding predominate this real and dangerous phenomenon. Disbelieved, misdiagnosed, or left untreated, parental alienation can cause lifelong trauma and destruction in a child’s life. “ [Family Law Institute 15th 11/10/16 Parental Alienation Identification Cause and Remedies. ( herafter FLI15)].
You must avoid a challenge to you that your actions are a “ failure to promote a close and continuing relationship between defendant and the children…””[#65247]

“In Vodvarka, 259 Mich App at 514,… [the]…Court held that for purposes of establishing a “change of circumstances,” “the movant cannot rely on facts that existed before entry of the [underlying] custody order.” However, with respect to “proper cause,” the Vodvarka panel observed: The same is not necessarily true for proving proper cause, though in most cases it will hold true. The phrase “proper cause” is not by the words themselves tied to a change in events as is “change of circumstances.” Rather, proper cause is geared more toward the significance of the facts or events or, as stated earlier, the appropriateness of the grounds offered.””[#65247]

“Some of the claims may have occurred before the last order.

Some of the acts by plaintiff to alienate the children from defendant were also new, but a great many did occur prior to the 2015 motion and were associated with the two-month period following the 2014 divorce judgment when defendant had supervised parenting time due to the 2013 CPS investigation into the sexual abuse claims.””[#65247]

“ Regardless, we conclude that it was appropriate for the trial court to consider all of plaintiff’s acts of promoting alienation, as they gave context to the more recent and new events and supported a finding that the ever-mounting acts of promoting alienation were not going to stop, thereby finally giving rise to “proper cause” to revisit custody.”[#65247]

“The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.””[#65247]

“There was evidence that plaintiff engaged in a concerted and continuing effort to alienate the children from defendant and that plaintiff had no intent to stop doing so.”MCL 722.23(j) contrary to law,”… factor (j) generally concerns the facilitation of a close and continuing parent-child relationship, and our Legislature added language to factor (j) providing that “[a] court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.””[#65247]

Prior “… evidence …[is]… relevant to showing a pattern and history of alienation that was not going to end anytime soon…””[#65247]

Most Recent Appellate Cases Addressing Parental Alienation { Below FLI15}

The following is a brief digest of the most recent cases involving some aspect of parental alienation, no matter how minor. The decisions and factual analyses lend insight to how the cases are handled and the legal impact of parental alienation. They are attached as Exhibit 2.

Eibschitz-Tsimhoni v Tsimhoni, unpublished opinion per curiam of the Court of Appeals, issued April 14, 2016 (Docket No. 329406).

The trial court changed custody of the children and precluded any parenting time for the mother for ninety days. The Court of Appeals reversed and remanded for the requisite evidentiary hearing. Given this disposition, the Court of Appeals declined to reach the mother’s request to preclude expert testimony regarding “parental alienation syndrome” at all future evidentiary hearings, stating that the trial court, as the the gatekeeper of evidence, would decide whether the testimony was sufficiently reliable. FLI15

Moir v Moir, unpublished opinion per curiam of the Court of Appeals, issued February 11, 2016 (Docket No. 323725).

The Court of Appeals affirmed the trial court’s award of sole legal and sole physical custody of three children to the mother over the father’s claim of parental alienation. The father had been involved in physical altercations with the children, had engaged in long-term extramarital affairs and promiscuity, and had struggled with drug and alcohol addiction.

The Court of Appeals held that the trial court was correct to find no evidence of parental alienationand that it was the father’s own conduct that contributed to his deteriorated relationship with the children. It noted that the trial court was correct to be concerned about the children’s mental well-being, and stated, “Even on appeal, [the father] fails to see that his own past behavior with the children has colored their relationship with him.” FLI15

McNutt v McNutt, unpublished opinion per curiam of the Court of Appeals, issued December 15, 2015 (Docket No. 328214).

The two daughters in this case were ordered into the custody of their father after years of pervasive alienation by their mother, a ruling that the Court of Appeals affirmed. The mother was relegated to three hours of supervised parenting time a week. The mother’s alienation tactics are described at length in the opinion and included relentless but unsubstantiated sexual abuse allegations against the father’s son from a prior relationship and then against the father himself, continual interference with the girls’ therapy, failure to ensure proper treatment for the girls’ psychological distress, and repeated denial of parenting time. 

This case serves as a dire warning of the psychological consequences to children of alienating parents. The daughters ended up with serious psychiatric issues, including cutting and institutionalization. The mother had zero insight into her role in alienating the children. She interfered significantly with their counseling, including during her appeal, causing the father to move to expand the record on appeal with additional evidence of her continued conduct.
Months of discovery, testimony by expert witnesses, and involvement of a legal guardian ad litem and finally culminated in an order changing custody of the teenaged daughters to their father. Notably, the trial court declined to consider the girls’ preference in the best-interest-factor analysis, holding that their preference was not reasonable given the severity of the alienation perpetrated by their mother. FLI15
Maier v Maier, 311 Mich App 218 (2015)

In this case the trial judge did not interview the minor, but did make an implicit fact-finding that this particular child could not formulate or express a reasonable preference, one that was not based upon the inherently indefensible basis of coaching and emotional distress. In making this fact-finding, the court had before it a record that included the child’s diagnosis of both depressive disorder and ADHD. Additionally, the record contained evidence of four unsubstantiated CPS complaints, testimony from therapists who opined that the minor was being coached and a traumatic visitation exchange that the minor perceived to be a kidnapping. Additionally, more than one witness also, testified that plaintiff voiced concerns and criticisms of defendant in the child’s presence. Thus, the court found that while JM was of sufficient age to be able to form and express a preference, his fragile emotional state, coupled with significant efforts to influence his preference, rendered him unable at the time to form a reasonable preference. Clearly, the court fulfilled its statutory duty. The court’s fact-finding was supported by the record and is affirmed. Maier, pp. 225–226. FLI15

Akio Fujimaki v Ichikawa, unpublished opinion per curiam of the Court of Appeals, issued November 17, 2015 (Docket No. 324173).

The father in this case sued the mother in a civil action for alienation of affection and intention infliction of emotional distress, both related to parental alienation. The father asserted that the mother had “commenced a campaign to destroy his relationship with the minor child” and had “consistently denied him parenting time.” In fact, the mother was found in contempt of court twice and jailed for the parenting time denials.

A psychologist who examined the mother found “extreme parental alienation.” While the trial court agreed, it felt it had “limited options” because the seventeen-year-old child’s relationship with his father “was already damaged.”

The mother moved for summary disposition of the father’s claims, which the trial court granted. The trial court agreed with the mother that there is no independent cause of action for alienation of affection in Michigan. (Because the father acknowledged this on appeal, that ruling was affirmed.) But with respect to the claim of intention infliction of emotional distress, the Court of Appeals disagreed with the trial court that the statute of limitations had run. It held that the damage caused by the alleged intention infliction of emotional distress was incurred long after the mother was awarded sole custody of the child and, thus, the father’s claim was not time-barred. FLI15

Brady v Brady, unpublished opinion per curiam of the Court of Appeals, issued September 22, 2015 (Docket No. 326396).

The Court of Appeals affirmed a change of sole legal and sole physical custody from the mother to the father in this case. The father expressed two areas of concern—the mother’s alcohol abuse and parental alienation. His parental alienation claims included the following:

The mother refused to allow the father into the child’s hockey locker room during hockey games.

The minor children would not say hello to the father at games.

The minor children had to walk up the mother’s driveway at parenting time exchanges (presumably because she would not allow the father to drive up the driveway).

The mother’s sister told the children that the children’s father beat and cheated on their mother during the marriage.

One child did not tell her father about an epileptic seizure the mother had because she was afraid her mother would get in trouble. This occurred after the child had contacted her father when her mother had a medical emergency and the other told her that her father “was the last person that she should ever have called” during the emergency.

The child felt “tremendous guilt” for calling her father during her mother’s medical emergency.

The Court of Appeals concluded that the findings of the referee, which were adopted by the trial court, were not against the great weight of the evidence. The appellate court found that the mother’s “parental alienation affected the relationship between defendant and the minor children by preventing some contact between them” and, thus, was relevant to the best-interest factors. The Court of Appeals also agreed that the parental alienation was having a “significant effect” on the minor children, thus constituting proper cause or a change of circumstance sufficient to revisit custody. FLI15

Wehbe v Wehbe, unpublished opinion per curiam of the Court of Appeals, issued July 30, 2015 (Docket No. 325847).

In this case rife with complete co-parenting dysfunction, the father was granted sole legal and physical custody, which was affirmed by the Court of Appeals. The appellate court laid out a detailed analysis of the best-interest factors, which revolved largely around the mother’s pyshcial discipline and her refusal to obey a court order to keep her boyfriend away from the children, but reference to alienation and coaching contributed to the rationale the grant of sole legal custody.

Poag-Emery v Emery, unpublished opinion per curiam of the Court of Appeals, issued April 22, 2014 (Docket No. 318401).

Besides constantly denying and interfering with parenting time, the mother alleged all sorts of things against the father that were ultimately characterized as alienating behavior. For example, she accused him of physical abuse, but a doctor suspected she was attempting to frame the father. And she accused him of possessing child pornography when he had taken baby photos of their six-month-old child in a diaper. She also denied parenting time constantly, filed frivolous motions, and made demonstrably false statements in pleadings.

In ordering sole physical custody to the father and joint legal custody to both parents pursuant to the parties’ agreement, the trial court incorporated very specific terms pertaining to parental alienation in its order as follows:

The mother’s parenting time would be supervised until the mother demonstrated accountability and insight into her parental alienation;

A parenting time coordinator would monitor and report on the mother’s parental alienationtendencies; and

The parenting time coordinator would select a counselor trained and experienced in parenting time for the mother, and the mother would undergo counseling for parental alienation.

The carefully crafted order did not help, and the father was back in court requesting sole legal custody in just under a year. The mother had failed to comply with the order and still had zero insight into her problematic behavior. And despite essentially dropping out of the child’s life, she unreasonably withheld her consent in joint decision-making. The trial court ruled, and the Court of Appeals affirmed, that sole custody to the father was appropriate. FLI15

Fisher v Jordi Lloré Justribo, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2013 (Docket No. 312106).

After years of litigiousness brought by the mother in this case, the trial court granted sole legal and sole physical custody to the father and supervised parenting time to the mother. The mother’s allegations against the father were seemingly endless and included unsubstantiated allegations of sexual abuse. The trial court was particularly disturbed by a video the mother had taken of herself interrogating the child about alleged abusive conduct of the father.

An expert in the case testified that the mother’s allegations were based on “hypotheses, possibilities, and assumptions or were simply unreasonable conclusions based upon unreasonable value judgments.” The expert also concluded that although there was no evidence of “programming” by the mother, her focused attention on the alleged abuse when interacting with the child had a negative effect. The mother was found to be manipulating CPS, and the CPS caseworker testified that the mother “lacked credibility and distorted normal child behavior.” A police officer who had interviewed the minor child concluded that the child was saying things to try to please his mother out of a sense of duty or the hope of reward.

The Court of Appeals approved the trial court’s judgment in full, including a provision prohibiting either parent to see any other counselor without the court’s prior approval. The court held that the child experienced trauma every time he was re-interviewed about the alleged abuse. FLI15

Wright v Wright, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2013 (Docket No. 314022).

Father appealed order denying his motion for custody and unsupervised parenting time. The order was affirmed. The case does not address great detail, but references parental alienation behavior as partial reason for the continued supervised parenting time. The father engaged in attempting to distort the minor child’s recollection of mother’s statements and by playing the children audio of their mother in a negative light. FLI15

For additional questions contact Attorney Terry Bankert at , 810-235-1970 or @TerryBankert

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