Divorce is never easy on anyone, especially the children. But if one parent is alienated from the children by the other, should it be defined by law as a crime?
“TELL the judge you want to stay with papa. Otherwise, I will send you away. And nobody will love you.”
Those were the words used by a father to get his child to choose him in the custody battle with his ex-wife.
That’s a real life example of how divorcing couples can be when they try to alienate the other partner from their children, depriving the kids of one parent’s love.
Parental alienation is actually rather common in Malaysia, say experts.
While more countries are calling for it to be criminalised, the question arises as to whether Malaysia should also define it as an offence.
Currently, there are no laws in Malaysia on parental alienation.
But countries like Mexico and Brazil have outlawed it. In Italy, parents can be fined while those in Mexico can be jailed up to 15 years.
Others, like the United States and Canada, have practices against parental alienation.
Describing it as an emotional form of child abuse, Suriana Welfare Society Malaysia chairman James Nayagam laments that some parents have “pure malice” by manipulating their children and “brainwashing” them against the other parent.
“The children are taught to falsely accuse a parent of sexual abuse or beating them up. Or blaming them for everything.
“Some parents also get the child to act differently before the judge and condition them to say things that will favour them,” says the former Suhakam commissioner.
From his experience, Nayagam says children who are usually subjected to such manipulation are aged between five and eight.
“Sometimes, the ‘acting’ is so real. The children cry and tell a false sad story. So I don’t blame the courts,” he says.
Nayagam proposes that it be made mandatory for the judge presiding over custody cases to be assisted by child psychologists who can observe and figure out what are lies and what are truths.
“The judge will be able to make more well-informed decisions and minimise the effects of parental alienation,” he says.
While some blatantly ignore the visitations rights of the other parent, some also try to go around the court order.
“There was one father who allowed the children to see their mother at her house but only for a few minutes while he waited outside in his car.
“So, he can say he has obeyed the court order when he has really deprived her of precious time,” Nayagam says.
The harm caused by parental alienation is extensive and can be permanent to all parties, Association Against Parental Alienation Kuala Lumpur and Selangor (Pemalik) president R. Ravishanker warns.
“Parental alienation is becoming a ‘trend’ among divorcing couples as there’s a lot more at stake than just the kids. Money and property are the centre of the dispute. The innocent child is used to manipulate the other party into submission.”
When one parent feels that they have been unjustly treated, he or she will “teach” the other parent a lesson by taking the child away.
Fathers, he sighs, are increasingly being left in the cold, prevented from spending time with their children because of “mummy’s rules” and fixed schedules.
The parent with visitation rights is traumatised whenever the child is forbidden to see them.
Lengthy court procedures, parental access to a child subjected to a timetable, one parent taking the child out of the country, a parent using third parties to manipulate the child, and sending a child to “so-called” sessions with a psychiatrist without informing the court, are actions that threaten a child’s well-being, he says.
The legal community, he says, must be aware of parental alienation. He suggests:
> Better mediation efforts
> Clearly defining and documenting the role of the divorce tribunal
> Ensuring that divorce lawyers have qualifications related to child issues.
> Forming an independent board of enquiry to oversee all child-related matters, provide counselling, listen to parents’ grievances, and step in if parental alienation is happening, even after the courts have decided. The board must uphold the child’s rights in all matters.
“It cannot just be about money. It must be about how and where our children end up when they’re adults,” Ravishanker says.
R.S. Ratna, a founding member of Pemalik, observes that there’s been an increase in the number of parental alienation cases over the last decade.
The Bar Council, he says, should step in. The legal profession, he says, mustn’t just focus on winning when it comes to family law.
“Society’s attitude must change. Mothers are not necessarily the best nurturers. If both parents work, children spend a lot of time at day care centres and schools. They need their fathers and extended family.”
Stressing that children should never be deprived of either parent’s love, he says:
“There is bitterness after a divorce because the custodial parent exercises superiority over the other, making him or her feel small to the children. Often, agent provocateurs, lawyers, or new partners, are responsible.”
The judiciary, Bar Council, government and relevant agencies lack the will to help single parents and children when it comes to custodial matters, he feels.
If the law recognises and defines parental alienation, judges can analyse the facts of the case and weigh the opinion of experts, to determine if parental alienation had occurred, says Women’s Aid Organisation executive director Sumitra Visvanathan.
This, she says, will allow for timely intervention to stop the parental alienation and uphold the child’s interest.
She, however, disagrees that the law gives preference to mothers. Judges, she says, usually take the child’s best interest into account when handling custody cases.
“Nonetheless, the court’s analysis of the child’s best interest should go beyond whether the child was assaulted or had witnessed abuse. “The court must also consider the child’s safety, psychosocial development, emotional and physical needs.”
The National Population and Family Development Board says there are some extreme cases where the children bear grudges against their parents and abuse them physically or emotionally when they become adults.
“In line with the Child Act and Domestic Violence Act, we propose that counsellors be more proactive and provide early intervention to minimise negative effects on the children,” says the board, which comes under the Women, Family and Community Development Ministry.
Students involved in custody battles can also meet with school counsellors if they have problems, an Education Ministry spokesman says.
“Students must feel like school is their second home, and the teachers are like their parents,” he says.
What is parental alienation?
- One parent, usually the custodial parent, influences the children to reject the other parent.
- Includes badmouthing and lying about the other parent.
- It is often intentional. But sometimes, a parent engages in it unconsciously.
- Anyone who stops a parent from engaging directly with the children in a healthy and holistic manner, is an ‘alienator’.
The damage done
- Erodes the child’s love and trust in the alienated parent.
- Harmful to the child’s physical and mental health, and can cause them to have behavioural issues.
- The child may think he/she does not need the alienated parent, or that the alienated parent is unworthy
- The child may develop low self-esteem and depression.
- Some will carry feelings of hatred with them throughout their lives.
- Psychologically damaging to the alienated parent.
- In cases involving domestic violence, the victim may return to the abuser to preserve the relationship with their children, leading to more abuse.
- May be worsened by other family members, who influence the child to reject the other parent.
- May cause other relatives to withdraw themselves from the alienated parent. Losing family support can be traumatising for the alienated parent.