Tajobsindia (Senior Partner ) 29 September 2010

In Child custody – Parental Alienation Syndrome citation

I have taken liberty to create a FOLDER for dumping all Parental Alienation Syndrome citations from contextual Jurisprudence (worlwide includes India) and members are encouraged to dump above reasoning specific citations in this folder as they may wish in days to come for general readers help.

Thank you all for co-operating
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Citator re.: 2007(4) CTC 565

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20-8-2009
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
OSA No.156 of 2008
and
MP No.2 of 2008

N.Punidha .. Appellant

J.Selvan .. Respondent

Original Side Appeal preferred under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the order of this Court made in O.P.No.659 of 2003 dated 26.7.2007.

For Appellant : Mr.S.Silambanan

Senior Counsel

for Ms.C.Uma

For Respondent : Mrs.Chitra Sampath

JUDGMENT

(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)

This appeal challenges an order of the learned Single Judge of this Court made in OP No.659 of 2003 appointing the respondent herein as guardian for minors Kishore Kumar and Praveen Kumar.

2. The respondent father filed OP 659 of 2003 with the following averments:

The marriage between the respondent and the appellant was solemnized on 9.11.1987. Both the minors Kishore Kumar and Praveen Kumar were born on 19.4.1990 and 20.5.1994 respectively. The respondent was employed as Manager in State Bank of India at different places. The appellant wife remained unemployed. Though they were living separately due to strained relationship, they did not seek dissolution of the marriage. From the time of marriage, the appellant was moving and acting with an absolute inactive attitude. She always suspected the conduct and fidelity of the respondent. When they were living together at Krishnagiri, Dharmapuri, Coimbatore, Tirunelveli and Tenkasi, many an occasion, the respondent husband suffered embarrassing situation. She was always complaining that he was having illicit intimacy with women. Due to the mental aberrations, she was not only talking ill of the respondent, but also others. In April 2002, the appellant forcibly took the children away, and they were living together at Tenkasi. The respondent was not informed of the whereabouts of the children. Only after exercising great efforts, the respondent came to know that the children were admitted in Don Bosco School, Peravallur. In view of the education of the children, the respondent opened a bank account in the State Bank of India, Perambur Branch, and asked the elder son to operate the account. She effectively prevented the respondent even from having access to the children. Even the phone calls were disconnected. From the time onwards, the appellant was brain washing the children, and he was not allowed to meet the children. Under such circumstances, the respondent had no option than to file the OP for custody of children.

3. The said OP was countered by the appellant wife stating that she had cruel treatment in the past; that the respondent used to come home in the night hours in a drunken mood; that he was a womaniser; that she had occasion to see the respondent in the company of other woman at Tirunelveli; that on one occasion, the Assistant Manager of the State Bank of India, Tirunelveli Branch, came and insisted the respondent to marry his daughter on the ground that he had closely moved with her for a long time; that when questioned, the appellant was attacked; that in April 2002, the appellant went to Tenkasi and was staying alone in the house; that on enquiry, she came to know that the respondent had gone to Tirunelveli leaving the children in lurch; that under the circumstances, she was compelled to take the children to Chennai and admitted them in Don Bosco Matriculation School, Peravallur; that herself and her parents were taking care of the children; that she also suffered an operation during the course of her pregnancy; that the same was due to the physical cruelty on the part of the respondent; that once he was attempted to kill her by throttling; that she was running a computer centre and has fixed deposits; that under the circumstances, there would not be any difficulty in bringing up the children by her, and hence the petition was to be dismissed.

4. Pending the OP, the respondent took out an application in A.No.1858/2006 for interim custody of the minor children during the vacation in May 2006 since the earlier order giving her visitation rights were disobeyed by her. An interim order came to be passed permitting the respondent to take the interim custody of the minor children on 20.4.2007 and the children were to be returned on 26.4.2007. Since the said order was disobeyed, the respondent took out a contempt petition in C.P.No.447 of 2007. Both the applications were taken up together along with the OP for enquiry by the learned Single Judge. The respondent has examined himself as P.W.1., and he has also examined three witnesses on his side. Equally the appellant who examined herself as R.W.1, has examined her parents as R.Ws.2 and 3 respectively. Both sides relied on documents.

5. The learned Single Judge by an elaborate order has held that the respondent was entitled to permanent custody of the minor children, and it was also open to the appellant to visit the children whenever she wanted, and the respondent should not resist the same.

6. Pending this appeal, it was reported that the first minor Kishore Kumar has attained majority, and hence the proceeding insofar as the appointment of the respondent as guardian comes to an end, and he has got to be discharged. Thus, the scope of the proceeding before this Court is only in respect of the second minor Praveen Kumar.

7. The Court heard the learned Senior Counsel Mr.S.Silambanan for the petitioner and also the learned Counsel for the respondent and looked into the materials and in particular the order under challenge.

8. Admittedly, the marriage between the spouses had taken place in the year 1987, and both the minors were born in the year 1990 and 1994 respectively. The respondent father has been working in the managerial capacity in State Bank of India at Krishnagiri, Dharmapuri, Coimbatore, Tirunelveli and Tenkasi. The spouses at the time of marriage in the year 1987 and also after the birth of the children were living at different places. It is alleged by the respondent father that in April 2002, when they were living at Tenkasi, she took the children forcibly even without informing him, and they were actually put in Don Bosco Matriculation School, Peravallur at Madras; that she has also shifted her residence and was staying at Madras from the time onwards along with her parents. In support of the averments made, the respondent and the appellant examined themselves on their side apart from other witnesses. From the documents filed by the respondent, it could be seen that he had sent letters and money orders; that he had come to Chennai to meet the children; that there was exchange of letters and notices; and that a complaint was lodged by the respondent to the police. That apart, a life insurance policy was taken by the respondent jointly in the name of himself and the appellant in the year 1995. The appellant has issued a notice to the respondent as found under Ex.P22 which brought forth a reply by the respondent as found under Ex.P23.

9. It is pertinent to point out that even in the averments in the petition and also the evidence before the Court, the respondent has stated that the appellant was suspecting his conduct and character and was accusing him that he had got illicit intimacy with other women, and they were all due to the mental aberrations. But it is pertinent to point out that he had not complained of her conduct or character. On the contrary, the appellant as RW1 has categorically deposed that she has seen the respondent in the company of other woman, and he was in the habit of coming home in the night hours in the drunken mood. By branding him as a womaniser and drug addict, she has actually made character assassination of the respondent. She has also narrated a few instances which impelled her to think and express so. According to her, the Assistant Manager of the State Bank of India, Tirunelveli Branch, examined as P.W.2, came to the house and asked the respondent to marry his daughter since he was closely moving with her for a long time. From the evidence of P.W.2, it would be quite clear that the appellant phoned over to P.W.2 and informed about the conduct of his daughter stating that the respondent was found in the company of his daughter and they were found together in a public place; that P.W.2 replied in the negative; and that she has not only stopped with that, but also informed to P.W.2's wife, and it was also thoroughly discouraged. At this juncture, it is pertinent to point out that ever since the marriage in the year 1987 and after the two children were born in the year 1990 and 1994 respectively, something was available to pass in the mind of the appellant to suspect the fidelity of the respondent. On the contrary, except complaining of mental aberrations on the part of the appellant, the respondent husband had nothing further to add. While both these spouses were leading a happy matrimony, the respondent is unable to adduce one reason which made her to keep her company away from him from 2002 onwards.

10. It is also evident that when they were living at Tenkasi, she took the opposite house on lease and was living separately, and thereafter she came down to Madras and was living with her parents. She has categorically admitted that she took both the children to Madras, and they were put in Don Bosco Matriculation School for education. According to her, she had sufficient reason to live apart. It remains to be stated that in view of the apprehension in her mind that the future of the young children should not be spoiled, she could have taken both the children away from the company of her husband who, according to her, was embodiment of vices. Hence the act of the appellant taking the children from the matrimonial home at that juncture can be justified. It could be easily inferred that the welfare and future interest of the minors should have been all the more working in her mind.

11. This Court is of the considered opinion that the testimony of P.Ws.2 to 4 cannot be attached with any evidentiary value since the respondent husband and the appellant wife are the competent persons to speak about the happenings in their matrimonial life. From the evidence of R.Ws.2 and 3, it would be quite clear that complaints were made to them, and despite their knowledge as to the strained relationship between the spouses, they have not attempted to pacify and patch up the situation. As could be seen from the averments and materials, the respondent and appellant are making complaints against each other. Needless to say, the interest and welfare of the parties cannot be given much weight or importance since it is not a matter between them; but, the interest and welfare of the minor children are paramount importance. While considering the interest and welfare of the minor children, the Court must take into consideration the nature of attachment, the preference of the minor, parental alienation, the special needs of the children and in particular, education, gender issues at the time of the consideration of the issue, physical and mental health and also the work schedules of the parents, financial capacity of the parents and discipline apart from ethics, values and religion.

12. While all the above have got to be taken into consideration, this Court is of the considered opinion that the appellant mother should continue the care and maintenance of the second minor child till he attains majority. At the time when the applications were considered by the learned Single Judge, the minors were aged 17 and 13 respectively. From the year 2002, they were under the care and custody of the appellant mother. At that time, the first minor was doing his education in the high school and the second minor was doing his education in the elementary school. It is brought to the notice of the Court that after the completion of the school education, he is put in engineering and doing his III Year Course in Velammal Engineering College, and he has attained majority now. As far as the second minor is concerned, he is now aged 15 and is doing his XI Standard in Don Bosco Matriculation School. It is pertinent to point out that both these children have been in the custody of the mother from 2002 till today. No complaint is made by the father that they were not given any proper education or from the health point of view.

13. It was repeatedly contended by the husband's side that he is in a better position to provide financial support to the children; that since the first boy was to go for higher studies, high financial support was required; that since the father was employed as Chief Manager of State Bank of India having a very good income, he alone could provide the financial support to the children; that even as per the evidence of the appellant wife she remained unemployed; that she has also deposed that she along with the children is living under the support of her parents and brothers, and in such circumstances, he would be the fit person to be appointed as guardian. This Court is unable to agree with this contention. It is true that he is in a managerial capacity of a bank and getting a good salary. It is also true that he might be in a better position to provide financial support to the children, and he could also provide a comfortable living to the children at present. It is also the evidence that the father is a tennis player, and during a short period of stay of the children with him, they were sent for tennis and for swimming. But, all these, in the opinion of this Court, will not suffice, and that might be one of the relevant considerations, but cannot be the sole determining factor for the custody of the minor child. Giving the children a comfortable living alone cannot be taken as the welfare of the child. There can be flow of finance which can give only a comfort physically, but not mentally. The welfare of the minor child has to be considered by the Court in the background of the relevant facts and circumstances. Each case has got to be decided on the facts, and the Court should exercise its judicial discretion in the background of all relevant factors. But at the same time, the welfare of the child must be the paramount consideration. Better financial resource of the father cannot be the sole determining factor for the custody of the child in the considered opinion of the Court.

14. As far as the first child was concerned, he has attained majority, and hence there cannot be any impediment for the first child meeting the father and the father meeting the first boy now a major. Insofar as the second minor child, he has been in the custody of the mother from 2002 onwards. Now he is put in education in Don Bosco Matriculation School, Peravallur, and is doing XI Standard. He has to go for his +2 and higher education. The Court made an enquiry to the second minor this day when he appeared. From the enquiry, it would be quite clear that he has attained maturity of mind. According to him, he is 15 years old, and he is doing XI Standard in Don Bosco, and he has no complaints against his mother, and he is now comfortably living with her, and he does not want to stay with his father. Considering the age of the boy namely 15 years, the wish of the minor children must also be taken into consideration. This Court is unable to see any reason why an order compelling the minor to be away from the company of his mother should be passed. It is true that she remained unemployed; but, she is being supported by her family members by which she has not, in any way, found her financial position deficient. It is pertinent to point out that the respondent father is now working at Villupuram. The second minor is put in education in Madras, and he has to proceed his further education. The second boy is also under the care and maintenance of the mother. The learned Single Judge has given much and undue importance to the financial support stating that better financial support could be given only by the father. But, as stated above, that cannot be the sole criteria. Taking into consideration all facts and circumstances as narrated above, which are relevant to decide the issue, this Court is of the considered view that the second minor child Praveen Kumar should be under the care and maintenance of the appellant mother till he attains majority.

15. Accordingly, the second minor child Praveen Kumar is directed to be under the care and custody of the appellant mother till he attains majority. The respondent father is given visitation rights on the second minor child on the second and fourth Saturdays and Sundays of every month between 10.00 A.M. and 5.00 P.M. The father could also have the custody of the second minor child during the first fifteen days in the month of May namely Summer Vacation, and also the first half of Christmas Vacation. The appellant mother should not resist for both visitation and custody by father. 16.In the result, this original side appeal is allowed in the above terms. The parties shall bear their own costs. Consequently, connected MP is also closed.

nsv
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6 Replies

aflatoon dash (health) 29 September 2010

thanks Tajobs ,The behaviour of mother gives strong hint of Parntal alienation but The judement no where mentions that she was indulging in parental alienation.I remeber one judement by justice dhingra when wife was fined for making the child cry in court and parnetal alienation was recognized .Its much quote judementI have it.Can any one provide ajudement where judge says that it is parental alienation and child has PAS.

THANKS in advance.

aflatoon dash (health) 29 September 2010

justice dhingra fines awoman for indulging in alienating behaviour-Aman Oberoi vs Tina Oberoi 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated of Reserve: July 02,2008

Date of Order: July 08, 2008

Cont.Cas.(C)No.295/2008 08.07.2008

Mr. Aman Oberoi ...Petitioner

Through: Mr. S.P. Pandey, Adv. With

petitioner in person.

Versus

Ms. Tina Oberoi ...Respondent

Through: Mr. P.K. Aggarwal, Adv. with

respondent in person.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.

JUDGMENT :

1. This Contempt Petition has been filed by the petitioner against respondent for defiance of the order of this Court dated 6th July, 2007 whereby this Court had directed the respondent to hand over the custody of minor child Master Laksh Oberoi to the petitioner on every Sunday at Kwality Sweets, Hari Nagar, Clock Tower, New Delhi and child was to be returned to the respondent at same place same day at 6.00 pm.

2. The above visitation rights were granted to the husband/petitioner by this Court after hearing both the parties and after making unsuccessful efforts to bring consensus between the parties. Thereafter, the wife made application for modification of the order. Husband also wanted more visitation rights and moved this Court for modification of the order. These application were dismissed by the Court on 12th February, 2008. Wife also approached the Supreme Court by way of an SLP against the order of granting visitation rights, but when the SLP came up for hearing she withdrew the SLP.

3. The petitioner/husband filed this petition because wife was not complying with the order of visitation rights. It is contended by the petitioner that despite the orders of this Court granting visitation rights, the wife did not hand over the custody of the child to him on the Sundays between 26th August, 2007 to 12th February, 2008 and 24th February, 2008 till date.

4. The notice of the petition was served upon the wife who appeared along with her counsel and also brought the child to the Court. She stated that she could not comply with the order as the child was unwilling to meet his father. The child in this case is about five and a half years old and is student of Class-I. While her mother was addressing the Court the child started weeping loudly and cried that he does not want to meet his father and he continuously cried for some time. It looked as if weeping button has been switched on. Thereafter, this Court enquired from the child why he was unwilling to meet the father. The child told that his father used to beat him and his mother, during meetings. He could not give a single instance of beating either of him or his mother. It is not the case of respondent also that the petitioner used to beat them at the time of meeting under visitation rights. The enquiry made from the child showed that the mind of child was highly poisoned against the petitioner by the respondent and he was tutored to a great extent. It is amply clear that the respondent who was not agreeable to the visitation rights, had

seen to it that the child himself created such a scene in the Court that the Court was convinced that child was unwilling to meet the father. The child is of tender years age. The manner in which the mind of the child has been poisoned against the father shows that the respondent was out to frustrate the order of the Court.

5. It is apparent that there is a clear and willful design of defiance of the order of this Court by the respondent who used the child as a tool of her design by poisoning the mind of the child to such an extent that the child started crying on just seeing the father without any provocation in the Court itself.

6. Although, it is a clear case of contempt committed by the wife but I consider that it would not be appropriate to sent the wife to the jail since that would cause further trauma of the child and it would be appropriate if a fine of Rs.25,000/- is imposed on the wife for defying the order of the Court. A fine of Rs.25,000/- is imposed on the respondent. In case of default of depositing the fine she shall suffer a simple imprisonment for a period of two weeks.

7. The sentence awarded shall remain suspended for a period of four weeks. She is given an opportunity to mend her ways and comply with the order of Court. If she continuously obeyed the directions of the Court regarding visitation rights, the sentence shall remain suspended. However, it is made clear that in future non-compliance of the order shall amount to further contempt of Court.

The petition is disposed of with above directions.

July 08, 2008

SHIV NARAYAN DHINGRA J.

1 Like

Tajobsindia (Senior Partner ) 29 September 2010

Originally posted by :aflatoon dash
"	thanks Tajobs ,The behaviour of mother gives strong hint of Parntal alienation but The judement no where mentions that she was indulging in parental alienation.I remeber one judement by justice dhingra when wife was fined for making the child cry in court and parnetal alienation was recognized .Its much quote judementI have it.Can any one provide ajudement where judge says that it is parental alienation and child has PAS. THANKS in advance.	"

1. Ha ha

2. You will may probably get all masala at one stop have patience.

3. Download attachment which is the circuit header of hard copy of actual citation which you say no where……..

4. Aab sir consider changing above quote and unquote of yours. Still don’t trust me !

Attached File : 31 31 pas.doc downloaded: 294 times

Tajobsindia (Senior Partner ) 30 September 2010

Aflatoon dear

Here are some actual fodder and a knowledgeable person such as you may hit the right cord in Family Court using this chintu 1 page USA Jurisprudence quote:

Notification of Judgment - Kilgore v. Boyd (U.S.)

An important test in that a US court found that PAS now met the Frye test for scientific acceptability in Court.

from Richard Gardner

I am pleased to report that on Wednesday, November 22, 2000, a family court in Tampa, Florida, ruled that the PAS had gained enough acceptance in the scientific community to satisfy Frye Test criteria for admissibility. Richard Warshak and I both testified at the Frye hearing, which lasted two days. H Michael Bone was also involved in the case and provided valuable assistance. The citation for use in future cases: Kilgore v. Boyd, 13th Circuit Court, Hillsborough County, Fl., Case No, 94-7573, November 22, 2000. I believe that this is the first case in which a court has so ruled. There is good reason to believe that this case will serve as a precedent. I am grateful to those who have sent me scientific literature references and legal citations. Please keep them flowing; the list can never be too long.

Extract from the judgement

(Excerpt taken from Kilgore v. Boyd, Circuit Court of the 13th Judicial Circuit of the State of Florida, Hillsborough County, Family Law Division. Case no. 94-7573, Div. D)

THE COURT: ... If I do have to apply a Frye test he has passed the Frye test. And I find that parental alienation syndrome has passed the Frye test in my courtroom, which is a Circuit Court Courtroom in the Family Law division, based on the evidence and the argument before me. The evidence and the argument before me, the testimony and the CV of Dr. Gardner, together with an excerpt of his writings. There was also proffered an article from the Florida Bar Journal which, quite frankly, I read when it came out and at the time I read it I placed some credibility in it. I'm also impressed by the fact that Dr. Gardner is cited in the footnote in at least one of the cases, I believe it's Schultz vs. Schultz hang on a second. Off the record a second. (There was a discussion off the record.)

THE COURT: It has also been proffered that the state of Texas gives it credence in its book of evidence and as Dr. Warshak testified the-- I cannot cite exactly the group, but it's some national psychologist organization, cites it approvingly and cites Dr. Gardner's writings approvingly in its child custody evaluation criteria.

Weighed against that was the testimony of Dr. Carter, who is a psychologist who seems to have no national criteria and whose opinion was bolstered by Dr. Whyte. I know Dr. Whyte, I have a very high opinion of Dr. Whyte's capabilities and quite frankly, based on their testimony I could see only that there only seems to be some sort of disciplinary turf battle between psychologists and psychiatrists, and just because psychologists don't approve of the parental alienation syndrome and because they cite that it's not in the DSM-IV doesn't mean that his test is not widely accepted in the relevant scientific community of child psychiatrists. Based on the evidence before me I have every reason to believe that it does.

Furthermore, Dr. Gardner's argument that it's not in the DSM-IV his argument is it's not in there yet because the DSM-IV hasn't been updated since 1994. Both of the examples cited, that is the fact that AIDS was widely discussed and treated and diagnosed before it was included in the DSM-IV, as was Tourette's syndrome, is persuasive.

The study by Dr. Gardner has been around since 1985, which is fifteen years. He testified that he's had some successful results, he's run some studies. His testimony was bolstered by Dr. Warshak, who is a psychologist and is also a full professor at a fairly prestigious university.

So based on the totality or that I find that even though I might not have to have the test meet the Frye criteria that it does meet the Frye criteria, and therefore I'm denying the former wife's motion to strike the testimony and evidence in the reference to parental alienation syndrome.

A few have asked: "What is the Frye Test?"

In the early 1920s, a man named James Frye was found guilty of murder on the basis of a new lie-detector test based on the theory that when a person lied, the systolic blood pressure would be elevated. In 1923, the Washington D.C. appeals court ruled that before a new scientific principle or discovery could be used as evidence in a court of law, it "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." The court ruled that the blood-pressure test had not gained such acceptance, and so Frye`s conviction was reversed. On the basis of the two-day Frye hearing in Tampa, the court ruled (primarily on the basis of the 100 peer-reviewed articles on the PAS and 38 court rulings in which the PAS had been accepted by the judge) that the PAS had gained general acceptance in the fields of psychology and psychiatry and can thereby be used as evidence in courts of law. Courts are free to accept evidence that has not passed the Frye test--and this has certainly happened with the PAS--but such acceptance is more easily appealable. Now such cases will be more difficult to appeal.

Notification of Judgement - Berg v. Perlow (U.S.)

We've just received copy of the above judgement, Berg v. Perlow, Case No. CD 98-1285-FC, 15th judicial circuit in Palm Beach County Florida dated March 15, 2000, specifically recognizing Parental Alienation Syndrome, Some quotes include "the wife seeks sole parental responsibility and to eliminate any contact between husband and child based upon the Parental Alienation Syndrome". Husband diagnosed as psychopath, with copious quotes from DSM-IV. Father diagnosed as psychopath and child diagnosed with moderate to severe PAS by mental health professionals including Ellinger, Heller, Gardner and Bush. Court order includes such items as:

"The Husband...shall have absolutely no contact with the parties' child (now 8) until the child reaches age 14. No contact with the child forthwith shall include but not be limited to (the court will specifically reserve jurisdiction as to this issue as the husband will probably find a way to somehow circumvent this order, so that the Court will enter additional orders on behalf of the Wife so as to require strict compliance with this order) the following:

A. No telephone contact
B. No e-mail contact
C. No computer contact
D. No videos
E. No visitation
F. No visits at school
G. No records from school
H. No records from any health care providers
I. No contact indirectly by third parties on behalf of the Husband, whether they are relatives or not."

Other quotes include:

"The Court finds that the order of the Court in which the Wife should not disparage the Husband to the child is now becoming a detriment to the child. The wife needs to be as truthful to the child as possible taking into consideration the child's youth, but that the wife should advise this child of this Court's specific findings and why this Court has done what it has done, including but not limited to the husband's extensive background involving his deceitfulness, his lack of remorse, his arrests, his poor behavior control and impulsivity, his lack or empathy, and his total anti-social personality disorder".

aflatoon dash (health) 30 September 2010

Anurag verma vs Sweta verma may 2010-Estrangement between warring spouse does not reduce their love for progent.Visitation awrded to non custodial spouse despite obection by child and mother.

Attached File : 22 22 anurag verma vs shaveta verma on 10 may 2010.pdf downloaded: 332 times

Tajobsindia (Senior Partner ) 11 October 2010

Reproduced below is an article on Hostile Aggressive Parenting, Parental Alienation Syndrome and International child Abduction, in October 2010 issue of Lex Witness (India's magazine on legal and corporate affairs).

What action should be taken against the Alienating Parent and her crooked lawyers as well as the uncaring judges who allows this to happen?

L E X W I T N E S S https://witnesslive.in/index.php#
OCTOBER 2010

HOSTILE AGGRESSIVE PARENTING AND PARENTAL ALIENATION SYNDROME: AN OVERVIEW

Dr. B.L. Agarwal
Chairman (Pediatrics), Lawrence Hospital, New York

Dr. Anita Nischal
MD Womens Healthcare Pavillion and Former Professor, Wagner College, New York

Hostile Aggressive Parenting (HAP) is a pattern of behaviour, manipulation, actions or decision-making of a parent that either directly or indirectly creates undue difficulties in the relationship of a child with the other parent; and/or promotes or maintains an unwarranted unfairness or inequality in the parenting arrangements between the child’s parents; and/or promotes ongoing and unnecessary conflict between parents which adversely affects the parenting, well-being and rearing of a child. HAP is most apparent in child-custody disputes and is used most often as a tool to align the child with one of the parents during litigation over custody or control of the child.

Parental Alienation Syndrome (PAS) is an abnormal psychological condition in a child which adversely impacts the child’s relationship with a (target) parent in a number of clearly identifiable and dysfunctional ways and the causes of the disorder can be reasonably traced back to the actions, behaviours and decision-making of a person(s) who are interfering with the child’s relationship with the (target) parent. It is one of the most damaging outcomes affecting children as a result of exposure to HAP. The most common symptom of children affected by PAS is their severe opposition to contact with one parent and/or overt hatred toward such parent when there is little and often, no logical reason to explain the child’s behaviour. The effects of PAS can last well into adulthood and may last for a lifetime with tragic consequences.

PAS is usually related to highly litigious court cases where there is a “destroy to win or the end justifies the means” mentality. Alienating parents are driven by the overriding need for power, influence, domination and control. They have no internal conflict, because they truly believe they are right. If a problem arises, it is always someone else’s fault.

Alienating parents find it easy to misuse the law because some family courts do not use mental health experts to assess the psychological underpinnings. If psychological evaluations are conducted on the alienating parent, they often reveal the “borderline, narcissistic, or hysterical personality” disorder. Although they may know how to act the part, they do not have empathy, sympathy or compassion for others. Unlike rational people, they do not distinguish between telling the truth and lying. Alienating parents know that sanctions of fines, jail time, or community service are seldom applied to those held in contempt of visitation orders and hence cases are dragged for years. This jeopardizes the child’s relationship with the target parent, and allows the alienating parents the advantage to continue alienating.

The emotional cost of PAS is excessive to the target parent. Legal intervention is a must to remove the alienated child from the custody of the alienating parent, set boundaries for the alienating parent, and have the alienated child deprogrammed by a child psychologist. Without legal intervention, alienated children lose their ability and free will to make rational choices over their lives, experience serious psychiatric disorders, have poor social relationships, and of course pass the problem on to their children.

Dr Roma Kumar
Clinical Psychologist, Sir Ganga RamHospital (Delhi)

“Nothing stirs up passions more than tile controversy generated when parents are at war over the custody of a child.”

The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. It’s primary manifestation is the child's campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent's indoctrinations and the child's own contributions to the vilification of the target parent. Basically, this means that through verbal and non-verbal thoughts, actions and mannerisms, a child is emotionally abused (brainwashed) into thinking that the other parent is the enemy. PAS is more than brainwashing or programming, because the child has to actually participate in the denigrating of the alienated parent. This is done in primarily the following eight ways:

(i) The child denigrates the alienated parent with foul language and severe oppositional behavior.

(ii) The child offers weak, absurd, or frivolous reasons for his or her anger.

(iii) The child is sure of him or herself and doesn't demonstrate ambivalence. i.e. love and hate for the alienated parent, only hate.

(iv) The child exhorts that he or she alone came up with ideas of denigration. The "independent-thinker" phenomenon is where the child asserts that no one told him to do this.

(v) The child supports and feels a need to protect the alienating parent.

(vi) The child does not demonstrate guilt over cruelty towards the alienated parent.

(vii) The child uses borrowed scenarios, or vividly describes situations that he or she could not have experienced.

(viii) Animosity is spread to the friends and/or extended family of the alienated parent.

The most common pattern of the mother is to show that ‘she is in control’. She will do that in a variety of ways ranging from ignoring the father to humiliating him. Paradoxically she is able to do it on the basis that the father loves his child so much he will put up with it. In most cases, the mothers do not take the children away with any clear cut strategy in mind, it is usually an extension of normal hostile reactions going through the sequence of:

(1) Arguing
(2) Hostile silence
(3) Restricted communication
(4) No communication
(5) Hostile action

A PAS mother cannot imagine that the father is capable of planning the child's time while in his care. The mother may even decree whom the child can and can’t see, particularly specific members of the child's extended family on the father's side. The mother desperately wants control over the time when the child is not with her. Obviously, without anyone to stop the alienation from progressing, the child will become estranged from the alienated parent. The relationship with this parent will eventually be severed.

It is doubtful that, without psychological intervention as the child grows, he or she will ever understand what happened. Many of these children come to experience e serious psychiatric problems. Children who have been psychologically violated and maltreated through the act of parental alienation, are more likely to exhibit a variety of psychological and social handicaps. They can be depressed, have a loss of community, loss of stability, security and trust, have excessive fearfulness, loneliness, anger, helplessness, poor identity formation and a fear of abandonment.

Attachment is the deep and enduring connection established between a child and caregiver in the first few years of life. It profoundly influences every component of the human condition: mind, body, emotions, relationships, and values. Children who lack permanence in their lives often develop a “one-day-at-a-time” perspective of life, which affects appropriate development of the cognitive-behavioral chain: thoughts, feelings, actions, choices and outcomes.

Above all, children who have been denied access to one parent and have been brainwashed or parentally alienated cannot and should not be asked for their preference of which parent they want to stay with, since they will not be able to express their true feelings and would always answer in favor of the alienating parent.

Anil Malhotra

Of the 1.1 Billion Indians, about 30 million are Non- Resident Indians (NRIs) constituting the largest diaspora living in 130 nations across the world. The high number and volume statistics show an immense potential for free cross border movement of NRIs. This conversely has given rise to new dimensions of inter-country family oriented disputes. Inter-Parental Child Abduction is one such emerging problem which defies legislative solution in India. Unresolved interparental custody conflicts of children have recently generated parallel conflicting legal proceedings in different jurisdictions without any resolution at either end. A British police appeal in the international media for tracing a missing ten year old Indian
girl and another recent Supreme Court order directing the CBI to trace a young boy shows the alarming nature of the problem which defies the resolution in Indian law.

INTER-PARENTAL CHILD REMOVAL

Although the Indian legal system treats inter and intra-state child abduction in India as a crime, Inter-Parental Child Removal across international borders is not defined in any Indian legislation and is not specified as an offence under any statutory law. The problem is compounded by the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980, which is signed by 80 countries worldwide. Hence, inter-parental child custody conflicts are invariably decided by Indian courts supposedly on the principle of the welfare of the abducted child as being the paramount consideration, and can take an average of 8 years by which time the child attains majority during his/her illegal detention in India. The abducted child is generally a foreign citizen by birth and the abductor could be an Indian citizen or a foreign citizen, and there may be pre-existing custody orders from competent courts in the child’s country of habitual residence. The prerogative writ of Habeas Corpus as a expedient remedy is thus consistently invoked being the most effective, emergent and efficacious one to a distressed parent whose child has been removed to India from foreign borders or vice-versa.

The foreign court custody order forms the basis of invoking this extra-ordinary constitutional remedy. A case law analysis reveals that till 1997, Indian courts perpetually exercised a power of summary return of a removed child to the country of habitual residence in compliance with a foreign court order to restore parental rights of an aggrieved parent. However, from 1998 onwards, the Supreme Court has held that a custody order of a foreign court shall be only one consideration while determining the matter on merits where the welfare of the child principle will be the clinching factor. Resultantly, whenever any Habeas Corpus petition seeks summary return of an abducted child to a foreign country, the court invariably opines that it needs further determination by requiring evidence to be led by warring spouses, and the parties are relegated to conventional court custody proceedings. Because of the huge backlog of cases in the Indian courts, a protracted, time consuming, expensive and tedious custody petition results, and the unfortunate removed child is fought over as a trophy to be won in a battle of egos of one or both litigating parents.

Sometimes, the love and affection of the abducted child is hijacked by the abductor with a psychological disorder to such an extent that the child’s tender mind gets permeated with ill-will towards the other parent who for no fault is denied access to his loved one.

GENESIS OF THE PROBLEM

The world is a far smaller place now than it was a decade ago. Inter-country and inter- continental travel is easier and more affordable than it has ever been. The corollary to this is an increase in relationships between individuals of different nationalities and from different cultural backgrounds. Logistically, the world in which we and our children live has grown immensely complex. It is filled with opportunities and risks. International mobility, opening up of borders, cross-border migration and dismantling of inter-cultural taboos have many positive traits but are fraught with a new set of risks for children caught up in cross-border situations. Trapped in the cross fire of broken relationships with ensuing disputes over custody and relocation, the hazards of international abduction loom large over the chronic problems of maintaining access or contact internationally with the uphill struggle of securing cross frontier child support.

DIRE NEED TO CLEAR THE MESS

With the increasing number of NRIs abroad and multiple problems arising leading to family conflicts, inter-parental child removal to India now needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Most of the inter-parental child abductions from the UK, Australia, Canada and the USA are to India. It is a matter of national shame that India has acquired the dubious distinction of being classed a safe haven for perpetuators of international inter-parental child abduction. Steps have to be taken by joining hands globally to resolve these conflicts through the medium of courts interacting with each other. Until India become a signatory to the Hague Convention, this may not be possible. The time has now come where it is not possible for the Indian courts to stretch their limits to adapt to different foreign court orders arising from different jurisdictions. It is equally important that to create a uniform policy of law some clear, authentic and universal child custody law is enacted within India by adhering to the principles laid down in the Hague Convention. Divergent views emerging at different times may not be able to cope up to the rising number of such cases, which come up from time to time for interpretation. We, in India are thus wanting for an expeditious acceptance and implementation of the International principles of inter-parental child removal which are couched in the Hague Convention. Today, removal of children across borders has also acquired a dual carriageway dimension. Earlier, cases of foreign children brought to India against parental consent were common citations.

Now, the reverse is also true and child removal from India makes it a two way street. How would Indian courts deal with situations when Indian children were removed to foreign jurisdictions in violation of local court orders or parental wishes? Which law would apply and how would it extend to a foreign country? Clearly, there is no international legal instrument that can be invoked and the only remedy with the aggrieved parent would be to invoke the national law of the foreign country where the child is wrongfully retained. Though, it is easier said than done, visa formalities, traveling expenses, litigation costs and above all foreign court procedures would be insurmountable deterrents. Such a problem would defy solutions and workable remedies.

UNIVERSAL CONCERN

Be that as it may, the universal solution to both domestic and international problem of our global NRI community in the matter of inter-parental child conflicts cannot be resolved on a universal platform until India becomes a part of the global family of contracting countries who are signatories to the Hague Convention. There was an Indian endeavours to do so by the framing of a Civil Aspects of International Child Abduction Bill, 2007. But, alas, it was never tabled before the Parliament and it never saw the light of the day. India cannot be a beneficiary of an international conclave unless it joins the table with the convention countries by acceding to the Convention. We now need a new synergy, a motivated effort and a commitment to the cause of the removed child to shape a law to prevent the unfortunate removal of children. The child should not suffer. A law must be put in place forthwith for the cause of the child.

Inter-parental child abduction is a serious problem considering that it induces life-long psychological damage to the tender mind of the abducted child.

Because of the huge backlog of cases in the Indian courts, a protracted, time consuming, expensive and tedious custody petition results, and the unfortunate removed child is fought over as a trophy to be won in a battle of egos of one or both litigating parents.

Anil Malhotra is practicing law in the Punjab & Haryana High Court and Supreme Court since September 1983. He has recently authored a book titled "India, NRI’s and the Law".