Managing Contact Difficulties: A Child-Centred Approach

2003-FCY-5E

1.0 INTRODUCTION

1.1 Background

The number of Canadian families experiencing divorce,[1] like those in comparable jurisdictions (Australia, New Zealand, the United Kingdom and the United States),[2] has increased dramatically since the 1970s (Furstenburg, 1990; Nicholson, 2002b; Statistics Canada, 2002a, 2002b; The Vanier Institute of the Family, 2000). Researchers have directed considerable attention to studying the impact of divorce on children (Emery and Kelly, 2002; Emery, 1994; Freeman, 1995; Gold, 1992; Hetherington, 2002; Kalter, 1990; Kelly, 2000; Wallerstein and Kelly, 1985; Wallerstein et al., 2000). Several important themes emerge from three decades of research dedicated to understanding and ameliorating the impact of divorce on children. Three variables, in particular, are mentioned frequently as contributing to child outcome: ongoing parental conflict, parenting capacities and the development of a positive post-divorce child-parent relationship.

The focus on children's needs has influenced the clinical and legal course of cases in Canada (Cossman and Mykitiuk, 1998; Freeman, 1998). Current federal and provincial legislation directs that the standard for decision-making about children in post-divorce families is the best interests of the child. However, Smith and Gollop (2001: 30) suggest that "… while ‘the best interests of the child' have always been a consideration in the aftermath of divorce in legal contexts, these have almost always been strongly dominated by professional assumptions about what is good or bad for children…" Social science research findings, such as those noted above, undoubtedly influenced the 1986 revisions to the Divorce Act. For example, Section 16 states that "…a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose [the Court], shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact" (Government of Canada, 1986). This is often referred to as the principle of maximum contact.

Despite legislative changes and the increased depth of understanding about the impact of parental divorce on children, divorce-related litigation continues. Cossman (2001: 183) reminds us that "…no amount of law reform can eliminate all the conflict for separating and divorcing parents". For example, changes to Australia's family law legislation have created challenges as parents and courts try to attain the vision of continuing parental responsibility, while reducing conflicts arising between divorcing parents. Maintaining ongoing contact has frequently exposed children to increased parental conflict (Sheehan, 2000).

Although the importance of the child-parent relationship for children's well-being is generally accepted, building and supporting relationships that benefit children is generally difficult in the post-divorce family. The problems that arise with post-divorce child-parent relationships are increasingly referred to in the literature as contact difficulties.[3] Some authors argue that despite the importance of this relationship, there may be situations in which continued contact may not benefit children (Hewitt, 1996). For example, if a child's physical or psychological safety cannot be assured, supervised contact might be appropriate. The identification and management of contact difficulties frequently involves service providers, lawyers and the courts. Since 1975, a substantial literature has developed in this area. The debate about contact difficulties has become polarized as authors and lobby groups articulate their respective positions. Well-intentioned legal or service responses often reflect the prevailing rhetoric in the popular and professional literature, and do not always adequately reflect children's best interests.

1.2 Scope of This Project

The terms "parental alienation" and "parental alienation syndrome" are increasingly being used in litigation (Williams, 2001). Consequently, the Department of Justice requested that the authors provide a critical appraisal of this literature to determine whether parental alienation is a useful and generally accepted concept. Given the emphasis the Government of Canada is placing on its newly announced Child-centred Family Justice Strategy (Department of Justice, 2002; Government of Canada, 2002), we were also asked to provide information about evidence-based service responses that reflect children's best interests.

Our initial review of the literature suggested that there is a spectrum of child-parent relationship difficulties in the post-divorce family. Alienation represents only one aspect of the complex nature of post-divorce relationships. It is usually an extreme form of ongoing hostility between estranged parents. When children become alienated from a parent, the hostility they feel is often reflected in severe and long-lasting opposition toward that parent. As a result, the Department of Justice agreed to extend its original request to encompass what we are referring to as contact difficulties. We believe that contact difficulties are a phenomenon that provides a more comprehensive picture of the issues for children and ways of meeting their needs.

1.2.1 What Are Contact Difficulties?

The term contact difficulties encompasses more than just alienation and alienating behaviours; rather it represents any negative change in the child-parent relationship following divorce. Contact difficulties are considered to occur in situations when the occasions during which a child and parent see or speak with each other are less frequent or less satisfactory after the parents have separated than before. The dynamics of contact difficulties are complex, and require careful consideration of factors related to the child, his or her parents and the situation within which they build the post-divorce family. In some cases, minimal or non-existent child-parent relationships represent abandonment of the child by a parent. Contact difficulties can also be a reflection of a child's reluctance to spend time with a parent. Ongoing parental conflict can interfere with the family's ability to support successful child-parent relationships. Stoltz and Ney (2002) point out that systemic issues such as litigation and adversarial conflict resolution processes can also create and perpetuate contact difficulties.

1.2.2 Objectives of the Paper

This background paper discusses critical issues pertaining to contact difficulties. In particular, we examine the concept frequently referred to as parental alienation (PA) or parental alienation syndrome (PAS). We summarize contemporary professional thinking and research about children's needs and child-parent contact difficulties in the post-divorce family. As part of this broader discussion, we also summarize current understanding of the term parental alienation, whether there is agreement as to definition and the effect of these labels on a child's relationship with his or her parents.

Chapter 1 describes the methodology utilized to review the literature and survey key informants. Chapter 2 discusses significant questions pertaining to contact difficulties, including how contact benefits or creates risk for children, factors that influence contact, the child's perspective about contact, prevalence of contact difficulties and the major formulations for understanding contact difficulties (Gardner, 1992; Johnston, 1993 and Kelly and Johnston, 2001). Chapter 2 also considers some of the criticisms of these formulations. Research concerning alienation is summarized in Chapter 3. Chapter 4 discusses the implications of a child-centred response to contact difficulties and potential policy directions for a child-centred family justice system. Concluding comments are presented in Chapter 5.

1.3 Methodology

There has been considerable debate as to the sources of difficulties in child-parent relationships in the post-divorce family, the terminology used to describe difficult relationships, and the appropriate clinical and legal responses. Birks (1998: 15) notes that "…there do seem to be fashions for theories, and sometimes prevailing theories seem to conflict with each other". We did not approach our task with any preconceived definition of PAS, nor did we have a position as to whether it meets the evidentiary requirements of generally accepted international diagnostic classification systems. Rather, we used the extensive literature search and key informant interviews to gather definitions for review and consideration.

Building on an earlier literature review conducted by one of the current authors (Freeman, 1998), we surveyed books and major refereed journals in law and the social sciences from 1995 onwards. Key words used in this search included: children and divorce, parental alienation, alienation, alignments, custody, access and visitation. An Internet search using the key words alienation, parental alienation and parental alienation syndrome was also undertaken using search engines such as Metacrawler and Google.

Our preference is to use language that is respectful of children and their relationships with parents. However, to ensure an accurate representation of source material, we have reflected the language used in the original source when referring to an author's work. For example, Wallerstein's (1985) terminology of the "visiting relationship" is used in our discussion of her work. We use the term "non-custodial" parent in dealing with the work of Racusin et al. (1994). Gardner's terminology of "target parent" and "alienating parent" is used when discussing his work.

Our initial review of the literature suggested that research concerning PAS was limited. Since it is not uncommon for new research to take up to two years to appear in a refereed publication, a consultation with key informants in law and the social sciences was undertaken to complement the literature review. In addition to Canadian informants, the consultation process included key informants in four other jurisdictions: the United States, Australia, New Zealand and the United Kingdom. Appendix A lists the key informants. Using purposeful sampling, we contacted prominent researchers, mediators, academics and practitioners from legal and mental health disciplines. The process also provided an opportunity for capturing more recent information about clinical, research and legal perspectives about the issue. Appendix B summarizes the published definitions collected during the literature review process.

During the interviews (refer to Appendix C), we provided an opportunity for key informants to tell us how they defined the concept of PAS, and to provide us with their thoughts on the prevalence of contact difficulties, reasons for why contact difficulties are present to different degrees in families and factors that could be used to predict contact difficulties. We were interested in their ideas about whether a child's age influenced difficulties, how violence or abuse history have an impact on relationships and the role of extended family or other interested parties. We discussed the utility of the concept of PAS, whether it can be considered a syndrome and the success of particular legal and clinical interventions. The extent to which the child's voice was included in the identification and resolution of difficulties was also discussed. Possible directions for policy and practice were elicited along with ideas for future research.