Recent Trends in Divorce and Custody Litigation – Richard Gardner

from Academy Forum, Volume 29, Number 2, Summer, 1985, p. 3-7

During the last six to seven years there has been a burgeoning of child custody litigation. This has been the result of two important changes in child custody determinations. The first relates to the appreciation that the “tender years presumption” (in which the mother, by virtue of being female, was automatically considered to be the preferable parent) was criticized by fathers as being basically sexist. And the courts agreed. Accordingly, fathers no longer passively accepted the fact that mothers would automatically be awarded custody and began litigating for custody of their children. The second factor, which is even more recent, relates to the increasing popularity
of the joint custody concept. Designating one parent as the sole custodial parent and the other as the visitor came to be appreciated as inegalitarian and ego-debasing for the non-custodial parent.
Although there is much to argue for the joint custody concept, it has proved to be useful mainly for those who can cooperate and communicate well and who are equally capable regarding parenting capacity. When these criteria are not satisfied parents will commonly litigate in order to win joint custody. As a result of these two developments the position of custodial mothers has become much more precarious. Whereas previously they could rely upon the tender years presumption and the sole custody concept to protect them from attempts on their husbands’ part to gain custody, they now have no such reassurances. Fathers know this well and have been litigating at an ever-increasing rate. The psychological toll of this burgeoning litigation on both parents and children has been formidable.

Of the many types of psychological disturbance that can be brought about by such litigation, there is one that I focus on here. Although this syndrome certainly existed in the past, it is occurring with such increasing frequency at this point that it deserves a special name. The term I prefer to use is parental alienation syndrome. I have introduced this term to refer to a disturbance in which children are obsessed with deprecation and criticism of a parent — denigration that is unjustified and/or exaggerated. The notion that such children are merely “brainwashed” is narrow. The term brainwashing implies that one parent is systematically and consciously programming the child to denigrate the other parent. The concept of the parental alienation syndrome includes the brainwashing component but is much more inclusive. It includes not only conscious but subconscious and unconscious factors within the parent that contribute to the child’s alienation. Furthermore (and this is extremely important), it includes factors that arise within the child — independent of the parental contributions — that contribute to the development of the syndrome.

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