All in the Family: Parental alienation recognized and defined

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The concept of parental alienation was first referenced by Minnesota’s appellate courts through an unpublished decision in 1998 (Jokippi v. Miller). A long list of unpublished decisions concerning allegations of alienation followed.

Now, 20 years post-Jokippi, the Minnesota Court of Appeals has, for the first time in a reported decision, recognized, and (partially, but specifically) defined, parental alienation.

The decision in Amarreh v. Amarreh was issued on August 13, 2018. In addition to alienation issues, the court specifically found that allegations of substantial interference in a parent/child relationship constitutes endangerment, sufficient to justify an evidentiary hearing.

In Amarreh, Father and Mother met after they immigrated to Columbus, Ohio, from Somalia. They are the parents of two children. The parties were highly educated. Father earned a Ph.D. in neuroscience and a master’s degree in public affairs. Mother earned a master’s degree in education and French.

In 2008, the family moved to Madison, Wisconsin. A domestic incident occurred in 2011, and authorities subsequently arrested Father who plead guilty to disorderly conduct. A Wisconsin District Court temporarily prohibited Father from having contact with Mother. Thereafter, the parties separated.

Mother moved, with the children, to Green Bay, Wisconsin. A Wisconsin judge awarded the parties joint legal custody, physical placement (the Wisconsin term for custody and/or parenting time) of the children with Mother, and periods of physical placement with Father.

In 2014, Father relocated to Washington, D.C., in connection with his work. He continued to financially support the children and visit them in Green Bay.

Mother relocated to Minneapolis in early 2016. The children remained in the care of Mother’s mother, in Green Bay, until June 2016.

Father registered the Wisconsin Order in Dakota County District Court in September 2017 and moved to modify custody on the basis of Mother’s denial of, and interference with, his parenting time.

Father alleged that Mother moved the children to two new cities, and a new state, without advance notice to him. Father further claimed that Mother had denied him any contact with the children for eight months, including phone communication. Finally, Father argued that Mother enrolled the children in a Minneapolis Mosque, about which he had no knowledge or information.

The District Court denied Father’s motion, without an evidentiary hearing. The court concluded that Father failed to make a prima facie case that the children’s emotional health or development was endangered.

Father appealed, arguing that he was entitled to an evidentiary hearing.

Judge Heidi Schellhas began with a helpful summary of the law concerning the modification of physical custody based upon endangerment claims.

She noted that “[t]o make a prima facie case for an endangerment-based motion to modify custody, the moving party must allege: (1) the circumstances of the children or custodian have changed [since the entry of the most recent order]; (2) modification would serve the children’s best interests; (3) the children’s present environment endangers their physical health, emotional health, or emotional development; and (4) the benefits of the change outweigh its detriments with respect to the children.”

Schellhas reiterated three key overarching principals relative to custody modification motions:

First, the District Court must accept the facts in the moving party’s affidavit as true, disregard the contrary allegations in the nonmoving party’s affidavits, and consider the allegations in the nonmoving party’s affidavits only to the extent that they explain or contextualize the allegations contained in the moving party’s affidavit.

Second, the district must determine, in its discretion, whether the moving party has made a prima facie showing for the modification.

Finally, whether a party makes a prima facie case to modify custody is dispositive of whether an evidentiary hearing will occur on the motion.

On appeal, Father argued that his allegations of endangerment were sufficient to support that element of his prima facie case. He cited Mother’s “complete disregard [for]…and interference with [his] relationship with and access to the children.”

The District Court concluded that Father did not allege facts which, if true, would show that the emotional health or development of the children was “presently” endangered, and that father had not “established” the four elements required to establish a prima facie case.

Still, the District Court found that Father’s affidavit alleged that mother had interfered with his relationship with the minor children.

Schellhaus opined that father need not “establish” anything; Father only needed to make an allegation which, if true, would allow the District Court to grant the relief he sought. She noted that a majority of courts, including those in Minnesota, agree that “a sustained course of conduct by one parent designed to diminish a child’s relationship with the other parent is unacceptable and may be grounds for denying or modifying custody.”

The court went on to suggest that “[i]nterference with a parent-child relationship, or parental alienation, is sometimes referred to as ‘psychological kidnapping,’ and means ‘any constellation of behaviors by a parent, whether conscious or unconscious, that could evoke a disturbance in the relationship between a child and the targeted parent.’”

Citing the work of Sandi S. Varnado, Associate Professor of Law at the Loyola University College of Law, the Court of Appeals included a specific, but non-exclusive, list of actions that constitute parental alienation, including: (1) cutting off the other parent’s access to information about the children; (2) denying the other parent information about the children’s activities; (3) denying the other parent access to a child’s medical or school records; and (4) limiting the other parent’s contact with a child by refusing to allow telephone conversations or visits.

Varnado’s Fall 2011 article in the DePaul Law Review titled “Inappropriate Parental Influence: A New App for Tort law and Upgraded Relief for Alienated Parents” provides further supplement to Schellhaus’ perspective.

Ultimately, Schellhaus concluded that the District Court abused its discretion by concluding that father failed to allege facts which, if true, would make a prime facie case for modification…because father “sufficiently alleged emotional endangerment by providing examples of mother’s substantial interference with his relationship with his children.”

The Amarreh decision, seemingly straightforward, is certain to find traction as a key appellate decision for family law practitioners.

For the first time in a published opinion, the court recognized the concept of parental alienation. The court took the additional step of providing clear (and, in our experience, common) actions that constitute alienation – and directed us to secondary authority for further details. Finally, the court refined the notion of “endangerment” to include alienating behaviors.

Two months ago, in this publication, we called for reform in the way endangerment cases are handled by the judicial branch. The concerns we raised dealt primarily with case management and procedure. Amarreh demonstrates that there is room to advance the ball on substantive issues as well.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.