14.03.2024

Parental alienation - possible legislative remedies

Recently, Oradea District Court (by criminal judgment of 23.01.2024) sentenced the father of two minors and the father's current wife to 5 and 4 years imprisonment, respectively, with execution, for the continuous commission of the offense of ill-treatment of minors. The court found that the convicted persons had systematically prevented the minors from systematically maintaining contact with their natural mother, even though she had obtained in court the residence of the younger boy and a program of personal contact with the older girl (aged 4 and 11 at the beginning of the investigation).

Thus, while at the time of the parents' divorce, the relationship between the children and their mother was one of attachment and natural filial affection, the children developed feelings of exacerbated hatred and violent rejection of their own mother. Taking advantage of the children's de facto confinement to their father's home, the father initially denied them any contact with their mother. As the period of separation extended, the gulf between the children and their mother widened. Whenever the mother came to the father's home to collect the children, she was either not allowed access to the property or she was chased away and hosed down by the two defendants. The mother's presents never reached the children, they were either thrown away or conspicuously displayed on the fence. When the mother went to the girl's school, the child challenged her and insulted her in front of the other classmates and teachers with calls such as "Stupid cow", "You'll end up in jail", " Are you still prostituting yourself?", "Your presents will end up in the garbage, where you belong", "I can't wait to see you with swollen eyes". The toddler was initially hidden by the father and his current wife, who refused to comply with summonses to bring the child to the bailiff's office for the mother to take the child, and when the mother came with the bailiff to the defendants' home, the father picked up the child and put him in the house, then claiming to the police that he refused to give the child to the mother on the grounds that she would beat him. The court-appointed clinical forensic psychologist found that both children claimed that they had been beaten by the mother, but the younger child was unable to relate a specific episode of such an assault, saying only that he had been told so. The psychological expertise also revealed a common sense aspect, namely the fact that the lack of a natural relationship between the parent and the children, or rather the lack of any relationship at all, caused the minors to become alienated from their mother, which in specific language is called parental alienation.

The criminal court sentenced the children's father and his current wife to a custodial prison sentence, noting that the minors were negatively influenced by the two defendants who involved the children in the parental conflict, on the one hand by denigrating the mother in front of the children, the language used by the minors, unspecific to their age, obviously copied from the defendants, which is also the reason why the court did not take into account the statements of the older girl, but the conduct of the defendant who isolated the children from their mother and ignored the measures taken by the courts through court decisions. From all the evidence adduced, it emerged that the defendants used their adult ascendancy over the two minors to subtly highlight, by comparisons observable only by another adult, all the less favorable aspects of the mother's behavior. At the same time, every minor gesture of the father and his wife was highlighted in a positive way, leaving the minors the apparent option of choosing with whom to stay, highlighting the imperative of seeking psychological counseling to rebuild the relationship between the children and the mother, largely destroyed due to the manipulation of the children by those with whom they continued to live.

Theill-treatment of the minors also consisted in the fact that the defendants restricted the minors' right to education and schooling, in that they withdrew the minor from attending school for three weeks for the simple fact that the mother had previously left a packet of food on the bench, requesting a protection order against her, and they withdrew the boy from kindergarten for one year in order to prevent the mother from seeing her child, at least in that institutional setting. Likewise, the refusal to take the minors for psychological assessment and counseling, which would have helped the children to maintain or rebuild their relationship with their mother, on the grounds that the minors did not want psychological counseling, despite the provisions of the civil courts and the prosecutor, was also considered ill-treatment of the minor.

In another recent case concerning international child abduction, the Bucharest Court of Appeal (by Civil Decision of 19.02. 2024) ordered the return of the minor to the state of his habitual residence from which he had been unlawfully removed by his mother, brought and unlawfully detained in Romania, although at the hearing the 10-year-old minor had clearly stated that he was the one who had taken the decision to come to Romania, that he does not want to return to his father, whom he claimed had beaten and punished him, but wants to stay in Romania with his mother, whom he said is the good parent, as she does not punish him. The court ordered a psychological examination of the minor in order to ascertain whether the minor shows sufficient maturity and cognitive development to take his views into account, whether or not his views have been influenced by his mother - the abducting parent, and the degree of severity of the possible influence. The mother resorted to every maneuver to evade the psychological expertise, the minor stating to the appointed clinical forensic expert that he "does not trust psychologists " to justify his refusal to talk to the expert, after the mother, in the minor's presence, had accused the expert of "lying". On the basis of the observations made, the interview with the parents and the study of the documents, the expert concluded that the minor's opinion appeared to be severely influenced by his mother. He argued that no information was found to show that the minor wished to leave the State where he was born and had lived continuously for more than 9 years and from his father, this being the sole wish of his mother. The expert concluded that the boy was subjected to a situation of serious parental alienation by his mother.

Arguing this conclusion, the expert referred to: unjustified rejection and hatred towards the father; weak, frivolous and absurd arguments for rejection ("my father pulled my ear, snatched the remote control, did not say 'Good night' when he was angry with me"); lack of ambivalence towards the mother (mother is good - father is bad); the phenomenon of the "independent thinker" (the child decided to come to Romania, the child decided to sever all ties with the father, the child does not trust psychologists, etc. ); absence of guilt in terms of attitude towards the target parent; reflexive support against the alienated parent from the alienating parent in the parental conflict; presence of scenarios borrowed from the alienating parent. Specifically, the expert pointed out that the mother unilaterally decided to dislocate the child from the environment in which the child was born and grew up and in which the minor was perfectly integrated at school and socially. The mother's motivation appears to relate exclusively to her difficulties in social integration and problems with the authorities, while the allegations of abuse of the child and of the child are not sufficiently presented and explained and are not confirmed by the authorities. The mother does not encourage, even prevents a relationship between the child and his father. The expert identified, during the interview with the mother, prevalent or delusional ideas of prejudice and persecution, warning of the possibility of reaching the level of a delusional disorder induced in the child (folie a deux).

For all these arguments, the court ordered the mother to return the minor to the state of his habitual residence, on the grounds that the child's remaining in Romania, with his mother, exposes him to a major risk of damage to his mental health, and the conclusions of the psychological expert report are confirmed by the rest of the evidence.

In previous articles on parental alienation (1, 2, 3), we have drawn attention to the fact that, in most cases, the conflict between former spouses or life partners does not end when the divorce decree is drawn up, but resentment may persist long after the separation.

A new facet of the conflict is parental alienation, a worrying phenomenon that developed in society with the entry into force in 2013 of the provisions of the New Code of Civil Procedure on the enforcement of judgments in juvenile and family matters. Articles 910 - 914 NCPC allow the enforcement of measures concerning minors to be practically paralyzed by the child's refusal, regardless of age, to comply with the court decisions. Against this legislative background conducive to parental alienation, parental conflict has escalated to a previously unknown level, with children being used as bargaining chips by one parent to obtain money, material benefits, revenge or simply the satisfaction of humiliating the other parent. The alienating parent has the comfort of not exposing himself to any imminent legal risk, being legally protected by the child's refusal, which, isn't it true, no one can dispute ...

One legislative solution that we propose to mitigate this phenomenon is to add a new paragraph to Article 913 of the Code of Civil Procedure, stipulating that where a court decision based on a psychological expert's report by a court expert establishes that the minor's refusal is influenced or determined by parental alienation maneuvers by the debtor parent, the executor is entitled to apply the provisions of ordinary law on enforcement. The minor's failure to undergo a psychological expertise will be regarded as a presumption of alienation against the debtor parent.

This legislative remedy could mitigate or stagnate a phenomenon with dramatic consequences for all those involved, given that the other remedies provided for by the Civil Code (ordering the minor to undergo psychological counseling, penalties for the debtor parent) have proved ineffective, as they have been avoided or simply ignored by the alienating parent, proof that the courts have had to react forcefully to discourage parental alienation. At the time of publication of this article, the judgment of the Oradea Court is neither final nor enforceable.

An article by Valentina Preda (vpreda@stoica-asociatii.ro), Partner, STOICA & ASOCIAȚII.