Many say that Montana is a great place to raise a family, but a group of parents with the Montana Family Court Awareness Project warn that whatever you do, don’t get divorced here.

Elizabeth Peterson was divorced for several years before her ex-husband crashed through the door with a new legal maneuver, turning her divorce into a high-conflict custody battle.

He accused Peterson of alienating their children against him. The legal tactic, called parental alienation syndrome, is applied in family court when it is believed the child’s preferred parent has indoctrinated the child into rejecting the other by using psychological manipulation.

The PA theory claims that certain behaviors in the child are indicative of alienation, including when a child sees no redeeming qualities in the rejected parent or the child expresses feelings that are highly critical of the rejected parent.

It is important to note that PA claims are often used as a defense against alleged abuse. When used successfully, the court might ignore evidence of abuse and create a parenting plan that only allows the preferred parent to see the child in a supervised visit. In some cases, the court restricts all contact between the child and the preferred parent. Judges then grant full or primary custody to the rejected and abusive parent.

While many courts around the country have denounced PA as a viable legal tactic, the use of the pseudo-diagnosis has cropped up in hotspots around the country, particularly in California, New York, and Montana.

An unrecognized diagnosis

The parental alienation diagnosis has intentionally been excluded from the DSM-5, the classification manual of mental disorders in the United States. The manual, published by the American Psychiatric Association (APA), provides standardized guidance on identifying and treating mental disorders.

The DSM-5 has undergone five revisions since its creation in 1952, but parental alienation has not been added due to a lack of empirical or clinical evidence, according to the APA Dictionary.

In 2020, the International Classification of Diseases (ICD), the diagnostic manual used by the rest of the world and governed by the World Health Organization (WHO), removed parental alienation from its pages “because it is not a health care term.” Rather, the term belongs in certain judicial contexts, particularly in family court. The WHO also notes that there is no evidence-based intervention strategy for PA, thus disqualifying it from the ICD-11.

The PA tactic started cropping up in Montana’s courts around 2002, according to Kyla Hailstone, creator of the Montana Family Court Awareness Project, which advocates for family court reform and for parents who have lost custody of their children due to a PA claim. Since then, self-proclaimed experts have trained local mental health professionals in PA diagnosis, who now testify as expert witnesses in court.

“These professionals unknowingly contribute and foster an environment for the abuser to have incredible power to escalate their abuse and expose themselves to potential legal action,” Hailstone said.

A similar pattern played out when the pop-science craze of blood spatter analysis entered courtrooms in 1957 and persisted for more than 45 years despite no scientific evidence to support the theory, according to one ProPublica article.

Herbert MacDonell cooked up the forensic technique in his basement, eventually demonstrating his theory to a judge and jury with a vial of his own blood.

Even with no scientific evidence to back it up, blood spatter analysis was dubbed reliable enough to be entered into trial. Appellate courts in 36 states started turning to the blood spatter experts trained by MacDonell.

The eulogy for microscopic hair analysis came after the nearly two decades of being admissible in court. In 2015, the FBI conducted an investigation into the organization’s own microscopic hair comparison unit. The review of 2,500 cases found that errors had been made in 90% of cases. At least 33 people had been sentenced to death due to erroneous statements made regarding hair analysis. 

The FBI reported that at the time of the investigation, nine of the defendants had already been executed and five died of other causes while on death row.  

Bite-mark analysis, which links bite marks in flesh to the dentition of the suspect, is yet another forensic discipline that’s now dead because of the notable dearth of published, peer-reviewed research, according to the National Library of Medicine. 

Expert testimony by forensic dentists was admissible for nearly four decades before being brought into question in the early 2000s.

Like other previously popular forensic crazes, PA lacks sufficient peer-reviewed and published research to establish scientific validity. 

Domestic violence

PA labeling has been used as a method for dismissing reports of abuse and, in some cases, dismissal of expert child abuse evaluations, according to a study by Joan Meier, professor at George Washington University School of Law.

When abuse is alleged in family court, the victim is frequently referred to a psychologist. The problem is that some psychologists responsible for the evaluations have been trained in PA, according to Danielle Pollack, a policy expert who has focused on family court reform.

“If you allege abuse, there’s no exit. There’s no way to get real abuse claims to the light of day because you’re channeled into this,” Pollack said.

Historically, judges in family courts have been skeptical of claims of child abuse, because of sexist tropes that are alive and well in the U.S.

“I think it’s a relief for a lot of judges. Alienation provides a tool or an out for decision makers to say ‘he wouldn’t really (do that),’” Pollack said, adding that culturally, the U.S. is far from acknowledging the prevalence and severity of domestic violence.

Gallatin County lawyer Jody Palmer works as a family law consultant, and at times has advised her clients against reporting domestic abuse because of the pushback from bad actors in the county’s district court.

“Sometimes I advise my clients, if your kid is being abused, wouldn’t you rather be there 50% of the time in order to mitigate (the abuse)? Children only need one good-enough parent to turn out OK…the more adverse childhood experiences the higher chance of being a criminal or having dysfunctional lives,” Palmer said.

In Peterson’s case, a Bozeman mother who lost her children over a PA, a police report documenting an assault by her ex-husband and the permanent order of protection that followed was disregarded during the custody battle, according to an affidavit Peterson signed.

The physical altercation occurred in 2012 when Peterson told her husband that she was going to file for divorce. His reaction was explosive. It resulted in bruised ribs and a fractured hand. Moments after the attack, her husband called their four children downstairs to see her crumpled on the floor, according to Peterson.

During the custody battle, it was recommended that her son, Pahl Johnson, now 19, be evaluated for PA and most likely undergo reunification therapy, court ordered therapy meant to repair the relationship with the rejected parent. But at the time of the custody hearing, Johnson was out of state and was determined to stay there if the alternative meant reunification and living full time, once again, with his father.

“He wouldn’t feed us until we said ‘mom is a whore’ or something like that to boost his self-confidence,” Johnson said, adding that angry outbursts were common. “A 30-year-old man would be screaming at us because we didn’t do the dishes right.”

Peterson’s oldest child, Hannah Johnson, wrote a statement at the end of 2018, describing her time living with her father.

“It was a dark, confusing, hurtful, neglectful and emotionally dangerous situation for any child to be exposed to,” she wrote.

Despite the physical and emotional abuse, Peterson’s ex-husband now has sole custody of their two younger children, and Peterson, labeled as the alienator, has been granted one hour of supervised visitation, which costs her $60 for every session.

GAL and CPS

Guardian ad Litems (GAL) and Child Protective Services (CPS) workers are supposed to be neutral parties who are there to advocate for the children through a tumultuous period in their lives. But these neutral parties are oftentimes not so neutral and overreach is common.

Judges often abdicate their decision-making power to the neutral parties because they’ve had the most engagement with the family involved in the divorce, thus judges opt to adopt their position.

Phillipsburg resident Dave Kesler was initially granted full custody of his daughter, Kelly, following his divorce. It wasn’t long before his ex-wife challenged the decision before the Supreme Court, but lost the appeal.

When Kesler made allegations of neglect and abuse against his ex-wife, the Child and Family Services Division decided to initiate an investigation on Kesler instead. Details about Kesler’s history were included in the findings, which per statute, should have been omitted by the state, according to a findings report by the Office of the Child and Family Ombudsman (OCFO). The report also found that the investigations into the alleged abuse were handled inappropriately.

From the investigation, it was concluded that Kesler’s daughter should be removed from his care because of a son who died by suicide.

“The kicker is that I’ve never had a son, period….I’ve never had a son. I have two daughters 20 years and 12 days apart,” Kesler said. Neither have died by suicide.

The CPS worker on Kesler’s case eventually removed Kelly on suspicion of PA.

Kesler reached out to legislators and the head of CPS, and four days later Kelly was returned with no conditions in place. Officials notified Kesler that a mistake had been made and the CPS worker was no longer involved.

The OCFO reported evidence of preferential treatment to Kesler’s ex-wife. The case was closed, with documents stating the co-parenting had improved, but other issues would be dealt with in the parenting plan.

By way of the CPS worker, Kesler’s files were turned over to Yellowstone County psychologist Dr. Michael Butz, who is often utilized by the Montana Supreme Court in cases of PA.

Butz found that Kesler was not engaging in parental alienation, but the report was suppressed in court. CPS then brought on Robert Page, a licensed clinical professional counselor who also advertises forensic consultation services in Great Falls.

Page’s assessment found PA to be occurring, but could not identify who was engaging in alienating behavior. 

Witness advocates have submitted statements that Kelly told her attorney that she didn’t want to visit her mom anymore, but CPS interpreted the statement as a sign of alienation. Now, CPS has temporary legal custody of Kelly, but she has been placed with her mother.

Kesler travels the 556 mile roundtrip from Phillipsburg to Billings regularly for family therapy and supervised visits, but his ex-wife often cancels at the last minute.

Legislation

In March 2022, President Joe Biden signed into law the Violence Against Women Reauthorization Act, which included Kayden’s Law, legislation that incentivizes courts to minimize the use of reunification programs and therapies and increase domestic violence education among judges.

Kayden’s Law was named for Kayden Mancuso, who was murdered by her father in Philadelphia during a court-ordered unsupervised visit when she was 7 years old. Mancuso’s mother had submitted evidence to the court of the father’s violent history, but still he was granted unsupervised contact with the child.

There have been at least eight children murdered by a divorcing or separating parent in Montana since 2008, and 851 cases throughout the country, according to data compiled by the Center for Judicial Excellence.

Now it’s up to individual states to decide if they’ll adopt the legislation. Recently, mental health professionals and advocates have testified at the Child Family Health and Human Services Committees to raise awareness of the issue, but conversations about adopting the law have yet to begin.

Yellowstone County District Judge Ashley Harada has voluntarily participated in 2021 training provided by the Montana Judge’s Association that included training on PA.

“You need to look closely at (PA claims). It doesn’t fit every circumstance. You have to really understand what’s happening behind closed doors,” Harada said.

There are a plethora of reasons that a child may reject a parent in a divorce including hybrid cases in which there may be alienating behaviors from a favored parent but real parenting difficulties in the rejected parent.

“Terminology is important in these cases,” Harada said.

Dr. Robert Simon, forensic psychologist out of San Diego, conducted the Montana Judge’s Association training and provided a packet containing slides from the presentation.

Simon states that alienation is very hard to accomplish, especially when a parent has established a secure and quality attachment with a child. And oftentimes in these situations, both parents engage in alienating conduct and both contributed to the breakdown of the relationship.

Overall, “alienation is surprisingly infrequent given how much attention is given to it,” Simon said.