In this episode, Andrew and Barbara talk with family lawyer Ashish Joshi, author of Litigating Parental Alienation, about how to evaluate and present a parental alienation case in court.
Note: This podcast was originally hosted on Barbara La Pointe’s website, which has since gone offline. I’ve reposted the episodes here so people still have access to the materials.
Transcript
Andrew Folkler: Welcome, everyone, to another episode of Broken Families, where we host conversations on divorce, parental alienation, and high-conflict relationships. My name is Andrew Folkler.
Barbara La Pointe: And I’m Barbara La Pointe. Today, we are going to discuss parental alienation in family court, and that is why we have brought on a very special guest speaker to help us really dive deep into this topic.
Barbara La Pointe: Ashish Joshi is a practicing family lawyer who specializes in parental alienation. He has counseled and/or represented clients in state and federal courts across the United States and internationally, including in India, the United Kingdom, Canada, Luxembourg, Hong Kong, British Virgin Islands, and China.
Barbara La Pointe: Ashish has also published a number of articles and co-authored books on several legal topics, including parental alienation, criminal defense, commercial litigation, international litigation, and trial practice. So without further ado, it is an honor to have you here today, Ashish.
Ashish Joshi: Thank you, Barbara, and thank you, Andrew.
Ashish Joshi: Pleasure to be here. Absolutely.
Barbara La Pointe: Awesome. So Ashish, you’ve just written a book called Litigating Parental Alienation: Evaluating and Presenting an Effective Case in Court. Congratulations on that book.
Ashish Joshi: Thank you...
Barbara La Pointe: You’ve also written an excellent article that I read called A is for Alienation, and in that article, you outline 13 tips for litigating.
Barbara La Pointe: And so I’d like to touch on that article later. But to begin with, you’re a lawyer, and I know that PA cases are notoriously difficult and extremely difficult to litigate. So I’m curious why the passion for this area of law?
Ashish Joshi: Well, Barbara, I came into this field through my former law partner, Dr.
Ashish Joshi: Demosthenes Lorandos. Doc, as I call him Doc and I go back a long way. When I came to America, this was in 2001, I came for my master’s at University of Michigan Law School. And when I graduated, I met Dr. Lorandos. I joined him as a researcher. He was updating one of his books on cross-examination.
Ashish Joshi: And I had come from a country where I had been a practicing lawyer for about four years before the High Court of Gujarat and other courts in India. And I had tried cases, I litigated cases, but India doesn’t have jury trials. It only has bench trials. So I was very keen to learn how to try a case before a jury.
Ashish Joshi: And I met Doc, who was an accomplished trial lawyer, and he had this unique blend of expertise of forensic sciences and law, behavioral sciences and law. And I followed him around. I joined him as a young associate thereafter. Eventually became a partner in the firm. We made a law firm focusing on cases involving behavioral sciences, on criminal cases, and civil family law cases.
Ashish Joshi: And that’s how I came into this area of parental alienation.
Barbara La Pointe: So that’s a really interesting journey. And even though in this very present moment, I still sense that you have a great deal of passion about parental alienation.
Ashish Joshi: I do. These cases are notoriously difficult. They’re difficult from a legal standpoint because you do need to convince a trier of fact, a judge, that at the end of the day, what he or she has in his courtroom is a case of child psychological abuse.
Ashish Joshi: But they’re also difficult in an emotional and financial sense as well. I mean, these cases are very expensive to litigate. You often need expert witnesses, sometimes more than one. You have to go through several motion hearings, evidentiary hearings, long trials. But it also take an enormous toll from an emotional standpoint, of course, on the targeted parent who is battling alienation, but also on the lawyers, particularly if they’re not careful to set the boundaries early on into the case and have the client understand that your lawyer is not your therapist.
Barbara La Pointe: We say that a lot on this show, your lawyer’s not your therapist and lawyers aren’t social workers. But at the same time clients have a lot of trauma when they’re entering into a case of parental alienation especially especially in the case of forensic evaluation, for example.
Ashish Joshi: Yeah. Yes, they do. And that’s why it’s important to gauge that early on how responsive is the client as to the daily pressures of a case involving parental alienation. Does the client understand the boundaries between the legal system and his or her First Amendment rights to free speech?
Ashish Joshi: Lawyers sometimes share cell phone numbers with their clients. I’m no exception. But it’s important to set the boundaries. It’s important to have the client realize that this is for emergency only, otherwise you might have a client calling you at all odd times day and evening, weekends, something goes wrong in the house with the parenting issues, they have the lawyer on speed dial.
Ashish Joshi: And frequently what lawyers end up doing if they’re not careful is to start giving parenting advice, and that’s a slippery slope. So in a case where you have significant amount of child’s rejection, refusal dynamics, RRDs or parenting issues are going on, it’s important to have a parenting coach for a client.
Ashish Joshi: You can introduce the client to some parenting coaches who do a magnificent job of holding their hands and walking them through some tough situations. Or encourage them to go and seek counseling because this is a long haul. It’s not going to be over in few weeks. It typically takes months, if not years, to get some long-term resolution in place, and the client needs to be there mentally and emotionally for this entire battle
Barbara La Pointe: I often tell women that divorce is a marathon, it’s not a sprint.
Barbara La Pointe: And I personally think that lawyers have great integrity when they advise their clients to seek therapy or a parenting coach is an excellent idea as well.
Andrew Folkler: Yeah, absolutely. And in a way you could also say that coaches and lawyers could partner up to kind of cover each other’s ends, since the coach can’t cover the legal aspects, but then the legal aspects can’t cover the more social elements within this predicament.
Ashish Joshi: Absolutely. They complement each other, and often they are working as a team. If you have a good parenting coach and a lawyer who understand these dynamics, it can be a very effective team at the end of the day.
Barbara La Pointe: Ashish, I was just curious if you could share with us the difference between PA and PAS, parental alienation and parental alienation syndrome.
Ashish Joshi: The way PAS came into vogue was through the child psychiatrist Richard Gardner. Dr. Gardner came up with this term parental alienation syndrome as to the signs that he observed in the children who have been subjected to alienating behaviors, and he talked about specific signs, specific symptoms of children who are alienated.
Ashish Joshi: And that after a while grew into a different category. There’s a lot of debate still going on whether the syndrome exists or not, whether the syndrome is covered by DSM-5, the bible of the psychiatric disorders in America. And a lot of courts have started to get away from the controversy.
Ashish Joshi: What we have seen in the past decade or so are the courts coming out and saying, “We don’t really care about whether the syndrome exists or not. We don’t really care what label we put on this disorder or this set of behaviors. But at the end of the day, we accept that a parent can engage in certain set of behaviors that could result into a child being alienated from the targeted parent.”
Ashish Joshi: At the end of the day, we look at the set of behaviors engaged in by the favored parent, let’s say, and how those behaviors have affected the child and how they have affected the relationship that the child has with their targeted parent or the unfavored parent, rejected parent. And when you have evidence of those two things, that’s what typically convinces a judge to make a finding of parental alienation. That doesn’t mean that the entire syndrome is a hogwash or is junk science.
Ashish Joshi: It does exist. There are reliable ways to gauge whether a child is an alienated child or not. The concept of parental alienation is also covered under DSM-5 in three separate diagnoses. But that controversy or that debate between PA and PAS, the courts have moved on from there, and rightfully so. At the end of the day, we don’t need to waste a parent’s resources in trying to battle esoteric theories in courtroom.
Ashish Joshi: And some judges have flat out, come out and say, “There is no debate about this.” You know, anyone old enough to drink coffee, for example, can know or does know that a parent can turn a child against the other. The children are susceptible to manipulation. The children are susceptible to coaching, undue influence.
Ashish Joshi: Even adults are. So it’s not too big of a leap to understand and acknowledge that a child can be turned against a parent.
Barbara La Pointe: So I appreciate the way you’ve sort of distilled that down and taken the labels off of it. But with your permission, just because I’m learning and much of our audience is learning, maybe I could ask you a few more challenging questions with your permission.
Barbara La Pointe: Okay. So parental alienation is a concept that is increasingly used in family law, popular sometimes among fathers groups. But what do you say to critics claiming parental alienation has not been proved by empirical research, or has been rejected by the medical community, or, as you just said, junk science?
Barbara La Pointe: What would you say to someone who thought that?
Ashish Joshi: I would say that, at best that person is misinformed. At worst, that person is being willfully blind to the existing peer-reviewed research and case law that supports the theory of parental alienation.
Ashish Joshi: We have empirical research supporting the concept of alienation. We have empirical research supporting how the alienating behaviors come into vogue, how they affect the child and the relationship, and we have research supporting the signs of alienation in the child as well. I mean, a lot of people have written about it.
Ashish Joshi: Dr. Amy Baker comes to my mind, Dr. William Bernet, Dr. Jennifer Harman, Richard Warshak, Demosthenes Lorandos, and the list just goes on and on. You know, Barbara, one of the popular fallacies out there is that this entire theory of parental alienation syndrome or parental alienation was just a figment of imagination or a brainchild of one person, Richard Gardner, and that’s not true.
Ashish Joshi: If we look back and if we carefully analyze the Anglo-American jurisprudence, we see decisions from England and America and other courts on the issue of child alignment and alienation going back all the way to 19th century.
Barbara La Pointe: That’s interesting.
Ashish Joshi: All the way back. And we have tremendous jurisprudence on this.
Ashish Joshi: And even with Dr. Gardner, while he was propounding this theory of alienation, there were independent researchers outside of Dr. Gardner’s work, social workers, psychiatrists, psychologists, who were doing the same research, reached similar conclusions on their own independent of Gardner’s study and research.
Ashish Joshi: So it’s not just one person who came up with this. And even today we see peer-reviewed publications in scientific journals, in professional literature from all parts of the world, America, Canada, Australia, Asian countries, Europe, everywhere. It’s not an American invention, so to speak.
Ashish Joshi: To say that the theory has no empirical support or no scientific underpinning is absolutely false.
Barbara La Pointe: I like the way you’re making that distinction that Dr. Richard Gardner was not the only one, and it’s not an American invention, ‘cause I think we really do just think of that doctor, and his work was supported and also highly disputed at the same time.
Barbara La Pointe: So it really widens the lens of people who have researched this, are talking about it in our current modern day.
Ashish Joshi: Sure. And to give you an example we have a conference coming up this summer or fall in Brussels, and that’s being put forward by the European community. It’s on alienation. We have judges from European Union taking part in it.
Ashish Joshi: We have lawyers. We have mental health experts. And the entire focus of this conference, which is a part of the parental alienation study group as well, is on prevention, and that’s a great thing because we often talk about what can the judges do, what’s a cure. Do you change custody? Do you sanction the alienating parent, and interventions and all that?
Ashish Joshi: But we don’t talk about preventing it in the first place, and that’s the focus of this conference in Europe. It’s more on prevention. When you see a high-conflict case just coming into the court system, when you see a couple filing for divorce, and there are already signs of hostility, of allegations of abuse, of allegations of counter protective measures, request for personal protection orders and all sorts of things, it’s important to sit down at that point in time and trying to figure out. Is this a case of genuine abuse?
Ashish Joshi: Has one partner or has one parent engaged in abusive behaviors? If so, the case needs to be channelized in one direction. On the other hand, if it’s a case of false allegations and someone trying to game the system, someone trying to orchestrate allegations by protective ... I’m sorry, orchestrate investigations by protective services, law enforcement, using the courts to issue protection orders to keep the child away from the other parent, well, that needs to be addressed as well.
Ashish Joshi: So you dig in at the very earliest opportunity, and that’s where you can try to implement some psycho-educational tools. That’s where you can try to sit down the parents, the parties, and give them the tools to understand that these behaviors are going to significantly affect the children. Child alignment is a thing, and it’s very difficult to overcome as time passes by.
Ashish Joshi: And what are the consequences? What are the consequences in terms of mental health and emotional issues? What are the consequences in terms of legal consequences, and financial as well? And I think it’s important to give them that education early on rather than to wait until the case becomes a severe case of alienation, and then try to take the measures to remedy it.
Barbara La Pointe: Exactly, because there’s probably some red flags or early symptoms or signs at the beginning of a high-conflict case that would allow an early intervention. So that’s, very encouraging that this conference is taking that focus. Let’s... With your permission, can I address an elephant in the room?
Barbara La Pointe: ‘Cause I’ve always... Because sometimes we do hear that you were talking about false allegations, and in determining parental alienation. So I’ll just read you a little quote from a woman named Kim Hawkins, and she’s the executive director of the Rise Women’s Legal Centre in Vancouver.
Barbara La Pointe: Because sometimes false allegations of abuse, when made by women, are somehow turned against them. And she says, Kim says that what we’re seeing in practice is that parental alienation claims are being brought by parents who’ve been accused of family violence. And I know that’s also an issue in the United States that women are actually being told to silence domestic abuse for fear of having their children taken away, or that it could somehow be used in a parental alienation silver bullet for custody. I don’t know if that’s true or not, I’m not a lawyer, but it does make me curious. What are your thoughts on that?
Ashish Joshi: Well, Barbara, that’s an important question, and it’s an interesting one as well. From an anecdotal standpoint, not a research standpoint, but purely anecdotal standpoint, I have represented women and men who have been targeted with alienation. Targeted parents who have been on the receiving end of alienating behaviors.
Ashish Joshi: So parents who are complaining that we have been alienated from our children by the other parent, both men and women. I have also represented both men and women who have complained that the other parent has falsely accused them of parental alienation. I mean, most recently I represented a woman in Michigan court who was falsely accused of alienation when all she was trying to do is to protect the child and protect herself from abusive behaviors and from nonstop controlling behavior.
Ashish Joshi: And we took her to a trial. We showed the judge what was going on. We showed that how she is not alienating. She’s trying to protect the kid, and she’s trying to defend herself as well. And at the end of the day, the court saw that. But I did not stand up and start spewing nonsense and argue that the alienation theory is junk science, or parental alienation doesn’t exist, or that, this whole thing was dreamt by Richard Gardner.
Ashish Joshi: I mean, that’s nonsense. You can argue a case based on the facts of the case without just throwing the baby with the bathwater, so to speak. At the end of the day, both women and men are victims of parental alienation. And like any other theory, like any other syndrome or concept, yes, the concept of parental alienation is often and sometimes misused or miscategorized as alienation.
Ashish Joshi: One of the commonly held misunderstanding in this field is that people who are against the theory of alienation, they argue that the proponents of parental alienation argue that every child who rejects a parent must be alienated. That’s a straw man argument. No one says that. No bona fide expert, no proponent of parental alienation who has done research, who has published in this field, who knows what they’re talking about, has ever said that you can find parental alienation simply because a child has rejected the parent.
Ashish Joshi: But it’s easier to say that and to create that aura because then you can demolish it easily? And that’s a essence of a straw man argument. And in court, when you argue alienation, you have to be sure, you have to be certain, otherwise you lose credibility. I don’t walk into a court and start arguing alienation as the first sign of violation of parenting time, for example. We don’t walk into the court and argue alienation the moment a child is defiant or disrespectful or rude to a parent.
Ashish Joshi: Before you make a claim of parental alienation, there needs to be significant evidence, usually based on the five factor model, which we can talk later on.
Ashish Joshi: But yeah, you don’t just make that allegation. So is the theory sometimes misused? Yes. I mean, if you look at the other side of the coin, how many cases do we have where one party falsely accuses the other of domestic violence?
Ashish Joshi: How many cases do we have where the Child Protective Services or law enforcement are repeatedly called in to investigate an allegation of abuse and didn’t find abuse? I mean, how many cases where we have where one parent calls CPS again and again and again and again, and forces the child to go through significant amount of intrusive medical examinations when the doctors have ruled out abuse, but the parent refuses to give up?
Ashish Joshi: At some point in time, the court needs to stop that abuse and stop that situation. And the courts have found that it’s abusive for the child to undergo this repeated interactions, repeated investigations, repeated interviews by police, by CPS, by nurses, by doctors. That child is being robbed of its normal childhood.
Ashish Joshi: His or her normal childhood.
Ashish Joshi: Now, that doesn’t mean that we ignore abuse allegations. I mean, Protective Services are bound to investigate every allegation. But at some point in time, we need to decide whether these allegations of abuse have merit. And if not, why are they being made? No doubt there’s an element of some coercive control in many situations.
Ashish Joshi: No doubt many people chose to stay silent about the abuse that happened during the marriage, and they’re only speaking out now because they are bold enough to come out and file for divorce.
Ashish Joshi: So not every case of alienation, not every allegation of parental alienation is true. In a similar nature is not every allegation of domestic violence is true, and that’s why we have courts.
Ashish Joshi: And one of the hallmark of our Anglo-American system of jurisprudence is adversarial method? An allegation has to be tested and proved in a court of law. And even though some temporary measures are put in place sometimes to protect the children at early on, sometimes even on ex parte basis, the courts at the end of the day have to give the person who is accused of abuse his or her day in the court.
Ashish Joshi: And that’s where you try to prove a case of abuse or allegation.
Barbara La Pointe: Right. You’ve made some really good points and clarified a lot of points. Thank you for that.
Andrew Folkler: I was definitely curious to hear more about that process of how do you prove alienation in court.
Andrew Folkler: I think you said it was, like, a five-step process or five-model process.
Ashish Joshi: Yes. So typically, the way you prove alienation in a court of law, more often than not, the court orders a custody evaluation or a comprehensive psychological evaluation of the family, and the evaluator who does that evaluation finds evidence of alienation or some toxic behaviors on the part of one parent which has undermined the other parent, which have sabotaged the relationship between the other parent and the children, which have turned the children against the other parent and all of that. On other occasions you simply may have to go through a trial and present expert testimony by someone who has done a forensic record review.
Ashish Joshi: An expert who even though he or she may not have actually spoken with the child but has had enough data, enough information that is trustworthy and reliable to make up their mind on this issue. And such information could be child protective services reports, therapy notes, therapy reports, medical evaluations and medical reports, police reports, affidavits filed by witnesses, by parties interviews done by police or the investigators, emails, voicemails communications between the parties and the children, and all of that.
Ashish Joshi: Together this information allows an expert to opine with a level of medical or clinical certainty as to whether this is a case of alienation or not. But to go down on a deeper level, lawyers have their own way of proving alienation. There’s no one way of proving alienation in a court of law.
Ashish Joshi: Typically, what I like to do, in my opinion, it’s the best way to prove a case of alienation, is to use the five-factor model. The five-factor model has been put forward by Dr. Amy Baker and her colleagues, and you look at all these factors together. The first factor is that the child is rejecting the parent or is actively resisting contact with the parent.
Ashish Joshi: And here, if you may go down a deeper level, there’s a misconception that if a child happens to be seeing a parent, if a kid’s willing to go on visitation with a parent, then that’s all. That’s not a case of parental alienation then, and that’s false. You may have a case of severe parental alienation even though the child may not have missed a single visit with the rejected parent.
Ashish Joshi: Because what happens when you have an alienated child, I’ll give you a scenario that often plays out in these cases. The kid goes to parenting time because the kid knows and the favored parent knows that if there’s a direct violation of visitation orders, the judge is not gonna be happy about this.
Ashish Joshi: So let’s check the box, let’s pay lip service to the court order, but let’s make sure the kid goes on visitation. So the kid comes in with the headphones on, much like Andrew who is sitting here right now. They have the headphones on or the AirPods in. They walk into the door. There is no eye contact.
Ashish Joshi: There is no hi, hello. There is no conversation with the parent in question. They walk into the room. They shut the door. They come prepared with a bag full of food, snacks, video games, phones, charger, batteries, whatever they need to go through their weekend or their time their time. They refuse they refuse to come out for meals. They refuse to have conversations. They just do not engage, period. Or they are highly disruptive. They are highly defiant, they’re highly rude. They know what buttons to push. They incite anger. They make the parent engage in some disciplinary work, and they have their guardian ad litem, the lawyers, the Child Protective Services, the police on speed dial.
Ashish Joshi: And the parent tries to do the parenting. For example, “Well, you have been very disrespectful to me. I’m gonna take your phone away.” “No you are not.” “Well, yes, give me your phone.” “No, don’t you dare touch my phone.” And immediately a 911 call is made. “He abused me, he assaulted me, he hit me, he scratched me.”
Ashish Joshi: Police are called, CPS are called. So from the legal perspective, the guardian ad litem, the court, the rest of the world sees we have a problem between this parent and the child. The other parent doesn’t seem to have a problem. The child is very well-behaved. The child is well-behaved in school. The kid’s getting straight As.
Ashish Joshi: The kid’s very respectful. Everyone loves the kid, but somehow it’s only this parent that’s causing the issue, so he or she must be a bad parent. So that’s a premise, and that’s not the right way to look at it because you’ve gotta dig deeper. But that’s a first factor. We look at the significant problem that is present in the case by either a child resisting contact or rejecting the relationship with a parent.
Ashish Joshi: The second factor we look at, what was that relationship like before the separation or before the divorce, or before the problems just began to arise in this case? You look at the historical relationship, the baseline relationship. The parent who is now being rejected, was that parent an involved parent?
Ashish Joshi: In other words, did that parent show up for parent-teacher conferences? Was that parent a parent who was involved in the child’s schooling activities, games, extracurricular activities helping the kid to do the homework, showing up at birthday parties, going on vacations coaching the little league team at the school, whatnot?
Ashish Joshi: If you see an otherwise good normative relationship between the rejected parent and the child, and you compare that with the current scenario, and there’s a dramatic mismatch, that’s factor two.
Ashish Joshi: On the other hand, if you see that parent was never an involved parent, that parent was absent half the time from the child’s life, that parent had repeated interactions with law enforcement, with CPS, with the school counselor, there was never a good relationship or a healthy relationship between the parent and the child, when that’s concerning, and it might not be a case of alienation.
Ashish Joshi: It might be a case of estrangement or something else.
Ashish Joshi: What is remarkable is that America has been in one war or another for the past so many years. You look at Iraq, Afghanistan 9/11 commission, people being posted all sorts of places in the military. We don’t see this high level of alienation from military officers or troops who come back home after absence of 6 or 9 or 10 months.
Ashish Joshi: Their children don’t reject them.
Ashish Joshi: You know? So if absence of parent was somehow a factor, then you would see a dramatically higher cases of children rejecting the parents when they come back from overseas postings.
Barbara La Pointe: That’s interesting.
Ashish Joshi: You don’t see that. The same is true of people who do work on offshore oil rigs, for example, where they’re away for months at end out there and the only contact they have is through a video or phone call, and they come back and you don’t see a dramatic rise of alienation in those cases as well.
Ashish Joshi: So you keep an open mind. You look at factor two. Then you go to factor three. The courts have to look at it carefully, and the lawyers have to consider this factor carefully as well. Factor three is absence of abuse or neglect, and here we are talking about severely abusive behavior. We are not talking about some parenting styles.
Ashish Joshi: We are not talking about some suboptimal situational bad parenting. We are not talking about a parent who has lost his or her mind or got angry at the kid on a few occasions? If a parenting style was authoritarian from the very get-go, all of a sudden that parent is not rejected by the child for that parenting style.
Ashish Joshi: We are talking about severely abusive behavior on the part of the parent, and not just allegations, but some evidence of it. So it could be a finding of substantiated abuse by the protective services. Could be a guilty verdict by a jury if the parent was prosecuted for some abusive behavior, sexual or emotional or physical abuse.
Ashish Joshi: Could be in the medical reports that the parent had engaged in absolutely horrible parenting, and there’s evidence of that. But not just someone say so. Not just bare naked allegations without any support. So you look at that, and you look at whether that behavior, abusive behavior was present early on, whether that behavior is the reason that the child is rejecting the parent. Then you look at factor four where we talk about evidence of alienating behaviors.
Ashish Joshi: Because remember, the detractors complain that the proponents of alienation don’t look at evidence. In their mind, in their eyes, just because a child has rejected a parent, that’s the reason good enough to claim alienation. And that’s not the case because factor four is precisely about that. Factor four we look at some of the well-known documented alienating behaviors, typically known as 17 alienating strategies.
Ashish Joshi: Whether any of those behaviors have been manifested, have been engaged in by the favored parent, and we look at evidence of that. We don’t sit back and speculate that this is what must have happened behind the closed doors. We look for evidence about a campaign of disparagement or badmouthing by one parent?
Ashish Joshi: Do we have witnesses? Has anyone witnessed this parent badmouth the other parent in front of the child? In some extreme cases, they do it just out in the open. I had a case where the mother was disparaging the father and openly claiming how she had to go out and find love outside the marriage because he wasn’t a man enough, and she copied the children on these emails.
Barbara La Pointe: Oh. Oof.
Barbara La Pointe: Very intense.
Ashish Joshi: So here we have an example of a mother who not only told the father, “You are not a man enough, but I had to go and find other men during our married life. And, yes, I cheated on you, and that’s because you were not the man enough for me.” And she copied the kids on this toxic communications day in and day out, and children started to parrot that in therapy. You were never there present for us.
Ashish Joshi: You never were there for us. Mom was alone raising us, which was completely not true, and the therapist could see how that was affecting the children. So you see, you look for evidence of these alienating behaviors, and then that could be through emails, voicemails social media posts, witnesses who have seen a parent engage in particular behavior.
Ashish Joshi: Sometimes you can find that in therapy notes where there are one parent, let’s say dad, is sitting next to the kid in front of the therapist and openly badmouthing the mom, openly telling the therapist how bad it was to stay married to her, how she’s an alcoholic, she’s crazy, she does all these things.
Ashish Joshi: She doesn’t love the kids. She doesn’t love me, and this is all being recorded or memorialized in some way, and this is happening in front of the child. You look at the medical reports. What was said to the doctor or the physician in front of the kid? Together, you look at all these evidences of one parent’s behaviors, and finally, as they say, the proof is in the pudding.
Ashish Joshi: You look at the factor five, signs of alienation in the child. Is the child showing distorted thinking? Is the child showing black and white thinking? Is the child polarized in his opinions between the two parents? For example, Mom is all bad. There’s nothing that Mom has done in her entire life that’s good.
Ashish Joshi: On the other hand, Dad is just perfect. My dad’s my hero. My dad has never done anything to displease me or nothing wrong. Black and white thinking. You look at the child engaging in completely distorted thinking about what has happened in the past. Even though you have photographs and videos showing Mom present at all the birthday events, Mom being primary caretaker, all of a sudden, that’s completely discounted.
Ashish Joshi: You show the alienated children their smiling, laughing photographs where they’re hugging the parent on vacations. I was faking it. She forced me to take those pictures. They will completely disengage. They will start spying. They’ll look, go through the computers. They will email confidential document to the other parent.
Ashish Joshi: It’s significant violation of boundaries between a parent and a child.
Ashish Joshi: It’s almost you are encouraging your child to act as an adult, as an ally in your litigation against the other parent. The children they prompt information and they say without being asked, “I thought of this on my own.
Ashish Joshi: No one asked me to say this.” You know, independent thinker phenomenon. So there’s particular signs of alienated children. And what is interesting, Andrew and Barbara, is that we have research showing that truly abused children do not display these signs. Children who have been truly abused, where the parents have pled guilty or have been found to be abusive by courts or by protective services, and when the social workers have to remove the children from the toxic homes, those children end up making excuses for their abusive parents.
Barbara La Pointe: They will always choose their abusive parent.
Ashish Joshi: They will... Okay, she’s not... she was just... It’s my fault. I asked for the beating.
Ashish Joshi: I wasn’t a good kid. It’s not her fault. She doesn’t drink that much or whatnot. They will try to maintain, they’ll try to save a relationship. They’ll want to be bonded to the abusive person.
Ashish Joshi: In alienation situation, faults are exaggerated. The reasons are frivolous. I don’t want to see my mom because she’s mean. She drinks all the time. She yells, she screams. When was the last time your mom screamed at you? Doesn’t matter. I don’t want to see her. She just doesn’t love me. She’s mean. She was never there.
Ashish Joshi: It’s like nonstop propaganda of misinformation, disinformation, and distorted thinking. So together, this five factor model may give you a clue that you may have a case of alienation. And again, it’s a spectrum. You might have a mild case of alienation. You might have a moderate case of alienation.
Ashish Joshi: You may have a severe case of alienation. What typically works in a mild case may not, probably will not work in a moderate to severe case. So not every case of alienation requires that you rush into the court and suddenly ask for change of custody, no contact order, sanctions, jail time, all those things.
Ashish Joshi: If it’s a mild case of alienation, yes, you should ask for early intervention because you don’t have the luxury to sit back and wait until it gets to a severe case. But you can start with psycho-education tools. You can ask for a little bit more parenting time to counter that toxic propaganda of misinformation.
Ashish Joshi: The courts can warn the parent that, look, this is concerning. The kid doesn’t seem to be that affected yet, but we’re not gonna let this go. These behaviors must be contained. Let’s have a review hearing in six weeks or 12 weeks to figure out if the situation has changed because if not, we might have to go to the next level.
Ashish Joshi: The mistake that many lawyers make is to they take a look at the case from a superficial standpoint. They ask the client, “Well, is the kid coming to see you?” “Yes.” “Well then don’t let’s not worry about it. That’s what the judge is going to ask me. If there’s no violation of parenting time orders, just go to counseling, go to therapy, work it out.
Ashish Joshi: It’s not a case of alienation.” And that’s a mistake because children are resilient, and alienation affects children in different ways. Even sometimes in the same family, an older child might be affected very differently from a younger child. You might have a child who is completely alienated, who refuses to engage with a parent, but the younger child is completely fine, doesn’t seem to be that affected, and is able to fight back against the alienating parent, or vice versa.
Ashish Joshi: But you have to address those behaviors and try to nip them in the bud if you can. Otherwise, it gets phenomenally expensive from an emotional standpoint and a financial standpoint. And sometimes if the kid’s going to be 16 or 17 sometime soon, it may be too late at that time.
Barbara La Pointe: Time is definitely a key factor key theme. Well, we talk a lot about high-conflict personalities and how high-conflict personalities exhibit that all or nothing thinking or the polarity in thinking or black-and-white thinking. Do you find a lot of alienators are narcissists or high-conflict personalities just in your own experience within your practice?
Ashish Joshi: It’s hard to have a ... I don’t have a thumb rule about it. I mean, there’s no requirement that in order to be an alienator, you have to have narcissistic personality disorder or something of that nature. Often experts believe that severe alienators often have undiagnosed personality disorders, that’s a hallmark or that’s something in common.
Ashish Joshi: But I have a different take on that. I often, not often, in fact I always advise my clients to not use those terms unless they have a diagnosis in their hand. Unless you have an expert report which has categorized or diagnosed your ex showing severe traits of narcissism or a narcissistic personality disorder, don’t use those terms.
Ashish Joshi: Because you often find people getting frustrated, and they lash out on the social media. They call their ex a narcissist, sociopath, psychopath, and whatnot. They use the same terms for judges they don’t happen to like or the lawyers they don’t happen to like, and this all affects your credibility in the court of law.
Ashish Joshi: And it’s shocking to find these loose labels even in court filings. He or she is the ultimate narcissist. He or she is a sociopath. And those terms have their own importance and significance when viewed in a clinical sense. So if you are complaining about some behaviors that are commonly found amongst people who have been diagnosed with narcissistic personality disorder, then talk about those behaviors.
Ashish Joshi: Talk about what makes you think that your ex is a sociopath instead of just saying he or she is a sociopath. You know? If, for example, the other parent has never shown any empathy towards the child or toward the situation, if the other parent is completely oblivious of how he or she is coming across to third parties or the children, talk about those behaviors.
Ashish Joshi: Talk about situations. That would give the judge some sort of sense as to where you’re coming from, and that might get you the evaluation that you desperately need in your case. But using those terms loosely often backfires.
Ashish Joshi: In all cases especially in a case involving parental alienation, your credibility is the key as a lawyer and as a parent.
Ashish Joshi: The moment you lose your credibility in the court of law, it’s very hard to get it back.
Barbara La Pointe: Well, that’s a powerful point. A very powerful point.
Andrew Folkler: I do have one more question for you. We’re getting close to that one-hour mark, but before we wrap up, I wanted to ask you your opinion on what parents can do when alienation’s taken to an international level, especially in regards to the Hague Treaty.
Andrew Folkler: I’ve talked to some parents where they woke up one day and their child was taken out of the country to maybe they dated a foreigner, and then their ex-partner took their children to their home country. What exactly can they do to deal with something like that?
Ashish Joshi: Well, there are several resources. First of all, the State Department’s website is a very informative tool. You can start there to find out which countries in the world are signatories to The Hague Convention. If you have a country which is a signatory to The Hague Convention, then you can get the child back using the mechanisms in America and that signatory country.
Ashish Joshi: Few, couple of years ago, I had a case where the parent had taken the children to Australia with the consent of the other parent, but then once there, just refused to come back. And the parent who was left here had to involve the central authority, as they call it, in America and in Australia, had to fight a legal battle on both fronts, and it was about 24 months before the children came back.
Ashish Joshi: And during that time, they were completely cut off from all contact with the other parent. Now, the other parent was arrested for abduction when the parent came back into the country. But there are several countries which are not signatories to The Hague Convention. India, for example, one of them?
Ashish Joshi: So typically, the judgment of divorces, they have this clause that neither parent is allowed to take the children to a non-signatory country outside without the court’s permission or the written consent of the other party. There are also things you can do to take precautionary measures. You know contact the airlines, contact the State Department, make sure the passports are with a neutral party.
Ashish Joshi: And what, I mean, there’s no foolproof way to avoid child abduction, unfortunately. And people who have gone through that nightmare scenario, I mean, it’s just unbearable pain. You know your child’s away someplace. You can’t get a child back into this country. And even when you are able to do it successfully, it’s often after enormous amount of expense on time, effort, and money.
Ashish Joshi: But the State Department’s website is a very good place to start. And then there are articles available written by legal professionals who specialize in this area in trying to prevent a parental kidnapping.
Barbara La Pointe: So Ashish, there’s a lot of positive things happening in parental alienation.
Barbara La Pointe: Where can people access your new book?
Ashish Joshi: Well I have a copy here. So the book’s published by the American Bar Association. So one way to find it is to go to the website of the American Bar Association and search in publications, and you can find the book there. You can buy it. You don’t need to be a member of the American Bar Association to buy the book.
Ashish Joshi: I think Amazon also has copies. You can buy it from Amazon. And I think now the book is also available in an electronic book format that you can read it on a Kindle or your iPad as well. A lot of people overseas have bought the book electronically, and they told me how it was easy to get, download and use it on an iPad. But the world is moving so fast.
Ashish Joshi: I mean I just wrote about this on one of my social media posts. Day in and day out, we are seeing good, positive decisions on alienation. We just had a decision from India. One of the high courts in India came out and acknowledged alienation as psychological abuse or mental abuse of the child.
Ashish Joshi: We have seen cases come out of the UK, Canada, America. Just couple of months ago, we had a wonderful decision from Canada, Ontario, where the judges, the court of appeals said that a court can and should take judicial notice that alienation exists, and when it exists, it needs intervention. And that’s a pretty bold statement.
Ashish Joshi: Here’s a panel of judges that say that you don’t need to waste time on debating whether this exists or not. It does exist. It may not exist in a particular case but let’s not debate the theory of alienation. Let’s not, for example, debate whether there’s such a thing called domestic violence?
Ashish Joshi: It is. It is a real thing, and it’s not gender specific. No gender has monopoly on abusive behavior. We have seen men behave horribly. We have seen women behave horribly. We have seen third parties behave in that manner. I mean, sometimes it’s not the parent, it’s a third party, a stepfather or stepmother or a grandparent engaging in alienating behaviors, and the other parent is just too submissive or is unable to do anything.
Ashish Joshi: And in some situations, we have had cases where the judges, the appellate courts, have found that this is a case of judicially enabled alienation, that this is a case where the trial judge, unfortunately, by refusing to take action and by kicking the can down the road, so to speak, allowed alienation to continue and get entrenched.
Ashish Joshi: Well, that’s pretty powerful statement from a court of appeals in the United States.
Barbara La Pointe: I agree.
Andrew Folkler: Yeah, absolutely. All righty, well we are right about at that hour mark. Ashish, was there any last pearls of wisdom that you would want to share with listeners before we wrap up today?
Ashish Joshi: I think we covered the field, I believe.
Ashish Joshi: I don’t have anything else to say.
Andrew Folkler: Right on. In that case what would be the best way for listeners to reach you if they wanted to contact you?
Ashish Joshi: My website is the best way to reach me. It’s www.joshiattorneys.com. That’s J-O-S-H-I-A-T-T-O-R-N-E-Y-S.com.
Andrew Folkler: Right on. All righty. Well, in that case, it sounds like that’s all we’ve got time for today. Once again, everyone, thank you for taking the time to be with us. And if you enjoyed this episode, be sure to like and subscribe either on YouTube or through our podcast on the various podcast platforms.
Andrew Folkler: Don’t forget, we summarize everything that we talked about in a downloadable document below to help you and your loved ones deal with these traumas, especially in all these high conflicts. Barbara, if listeners wanted to reach out to you, what would be the best way to do so?
Barbara La Pointe: Barbaralapointe.com.
Andrew Folkler: All righty.
Andrew Folkler: If you wanna reach me, you’re welcome to email me at startnow@andrewfolkler.com. And as always, thank you for taking the time to be with us today at the Broken Families podcast, where we discuss and help you find solutions to divorce, parental alienation, and high-conflict relationships. Have a wonderful day, everyone.
Barbara La Pointe: Thank you, Joshi. Bye-bye.
Ashish Joshi: You. Thank you. Pleasure being with you. Bye.