Does Domestic Violence Disappear from Parental Alienation cases? Five Lessons from Quebec for Judges, Scholars, and Policymakers

Abstract

La version française de cet article peut être consultée à: http://ssrn.com/abstract=4009846

The theory of parental alienation—which asserts that children who reject one parent are brainwashed by the other parent—has often been used to punish caring mothers and grant custody to dangerous fathers. The legal community’s quick infatuation with this concept has sparked fiery debates between its proponents and domestic violence scholars. My research contributes to this urgent conversation by shedding new light on the role of domestic violence in parental alienation cases.

I observe how series of cases involving the same family deal with the issue of domestic violence. This method reveals a worrisome “disappearing act”: as families repeatedly interact with the justice system, domestic violence tends to leave the picture. The result? A distortion: most women accused of parental alienation are victims of conjugal violence, yet the jurisprudence barely addresses this issue. The disappearance of domestic violence creates the impression that it is the exception, rather than the norm, in parental alienation cases.

I draw five lessons from the Quebec jurisprudence:

1) The prevalence of domestic violence in parental alienation cases is higher than we think;

2) This is because domestic violence, alleged or proven at first instance, is often ignored on appeal;

3) Domestic violence should instead be given centre stage in parental alienation cases;

4) Considering parental alienation while ignoring domestic violence is a form of bias against women;

5) Stating that the parental alienation framework applies unless there is domestic violence does not protect victims of undisclosed violence.

The concept of parental alienation is dangerous for victims of family violence; thus, scholars suggest that when intimate partner violence is proven, the parental alienation framework should not apply. This caveat is not enough. My study challenges the conventional belief that domestic violence can be treated as a mere exception to parental alienation, calling for legal actors to reconsider the role of parental alienation in custody disputes.

Keywords: parental alienation, parental alienation syndrome, domestic violence, intimate partner violence, Canada, family law, child, custody, gender, best interest of the child, gender bias, feminism, mothers

JEL Classification: K36