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by Barry Bricklin, Ph.D. and Gail Elliot, Ph.D.

The absolute best way to prevail in a custody dispute, especially if the dispute moves toward an evaluation, is to emphasize all of your good traits as a parent, even if still in the courtroom. At the same time, it is equally important to down-play any attempt to make the other parent look unfit. This is not to say that one should not point out the faults of the other person (especially if abuse or neglect is involved); but this should not become the focal point of your argument. As said before, the pendulum has swung so far in this area that if one is seen as an alienator or as attempting to cast the other parent as Hitler or Caligula, it is almost assumed that the person painting this awful picture, whether deserved or not, is the less adequate parent.

But here we have the horns of a dilemma, because it is the legal system itself that encourages a parent to take this very position. In many ways, the legal system speaks out of both sides of its mouth. While being very sensitive to uses of alienation strategies, the reasoning behind determining the better parent or the parent who can more frequently act in the child's best interest still rests on a fault model.

While many states have moved toward a no-fault version of divorce, "fault" reasoning still permeates custody determinations. The old fault model in marriage involved awarding custody to the parent who had been most "faultless" within the marriage and within the divorce action. Fault was typically defined in terms of the parent who either committed adultery, was a drug or alcohol abuser, was a physical abuser, or guilty of neglect or abandonment, any kind of criminal activity or even some kind of mental illness. Most judges will certainly consider that which they think they are quite expert on judging, that is, the moral character of a parent. And this can lead to a consideration of a lot of life style issues (which judges think they can correctly evaluate).

So the dilemma is this: while almost all evaluators and certainly many, many judges now almost have a negative knee-jerk reaction when they see alienating strategies on the part of a parent, and are almost always inclined to act in a negative way toward such a manifestation (even when deserved) the law itself actually encourages parents to engage in alienating strategies. As long as a prevailing thrust of the legal process is going to be based on a fault model, the legal system itself is encouraging parents to do the very thing it will punish them for if they find them doing it.

The way around all of this is to absolutely upgrade one's own parenting skills and to demonstrate everything that one has done to learn and master effective parenting techniques and to emphasize all of this in making one's argument. The major thrust of how to handle the negatives on the part of the other parent could be paraphrased somewhat as follows.

"My spouse has done xyz, and I do not think it is a good idea, but I know if I am going to emphasize this and attack him for it I am going to further destroy my child’s relationship with him, which I know is not a good thing. I would prefer that it be addressed therapeutically so that what is going on can be handled in a way that spares the child."

In other words, it is important to separate the idea of being a good parent from the idea of seeking to punish a parent seen as a bad parent. It would be best to push for some kind of psychotherapeutic intervention for whatever the bad practices may be on the part of the other parent, so that you are protected from the need to respond to the legal process by emphasizing the finding of fault. Almost always, this will involve your using what will be seen as alienation strategies, which have far too high a likelihood these days of operating like a double-edged sword. You will hurt you and the child.

Do you want more information about child custody? Access over 200 child custody publications click here.

About the Authors:

Dr. Barry Bricklin is a psychologist in private practice, Adjunct Associate Professor at Widener University and has previously served on the faculty of Jefferson University and of Hahnneman University. He is past president of the Philadelphia Society for Personality Assessment and the Philadelphia Society of Clinical Psychologists. He has authored books and articles many topics related to custody evaluations. For over 25 years, Dr. Bricklin has developed various data-based approaches to the decisions which must be made when parents divorce. He is the Chair of the Executive Operating Committee of the Professional Academy of Custody Evaluators (PACE).

Dr. Gail Elliot is Head, Child Development and Family Processes Research, Bricklin Associates, the Vice Chair of the Professional Academy of Custody Evaluators and a psychologist in private practice. She has served as a consultant to public and private schools and coordinated multidisciplinary treatment plans. She has authored and researched numerous works related to custody evaluation. To learn more about the more than 200 custody publications they have developed for people struggling with custody battles, click here.

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