THE BLOG
08/12/2014 02:49 pm ET Updated Oct 12, 2014

Are Child Custody Laws That Treat Parental Gatekeeping Like Child Abuse Long Overdue?

When you first read or hear the words "parental gatekeeping", what do you think about? You may have an image of a parent standing in front of a locked gate, arms crossed with a child on the other side and the other parent trying to get through.

Hold that image.

Parental gatekeeping is not an everyday word intact or separated families use but it has a very real impact and import on child custody cases.

Gatekeeping is simply the act of facilitating or restricting the relationship with a parent and a child. I have found the "facilitative" aspect of it (and the concept of facilitative gatekeeping) a bit of an oxymoron. After all, to facilitate generally means reasonable communication, open access gates and no real need to be a "keeper."

Restrictive parental gatekeeping is just as it sounds. Placing limitations, often through actions, to restrict communication or access to a child. Restrictive gatekeeping can be for the child's protection (often in physical abuse, serious neglect or substance abuse cases) or unreasonable, in an attempt to harm the parent-child relationship. The latter often festers into parental alienation.

Now we come to the question and it's not an easy one. Should a restrictive gatekeeper who is not gatekeeping due to abuse, serious neglect, or real concerns about alcohol or drug abuse but rather to intentionally harm the parent-child relationship be treated just like a parent who has been found to have committed serious, physical child abuse and have custody taken away from him or her? Along with that, is a state like California and others that don't have specific family codes punishing this type of gatekeeping behind on this necessary legislation?

Let's get more specific.

Assume a father and mother are going through a divorce. They are a middle-income family and have little savings or disposable income. The mother is angry with the father. Assume the reason is infidelity. They have two children, ages four and six. Mother has been the primary care taker of the kids but father has been involved, just nowhere near equal involvement.

Father tells the mother he no longer loves her. He tells her he wants a divorce. Mother is hurt, the children are confused and eventually mother's hurt becomes something more -- hostility. Father has a new girlfriend, a new life and helps out financially here and there. Mother decides father doesn't deserve time with the children or to be involved in their life because he abandoned the family. Mother then starts a pattern of disparaging the father to the children, to the point the children develop negative feelings toward the father.

Mother tells the father she won't let the father take the children overnight and shuts down nearly all communication. Father's parenting time is infrequent and irregular. Many months go by and despite father's attempt to persuade the mother to act otherwise, she is not having any of it.

Flexibility? Forget it.

Sharing information and making decisions together? No way.

Mother tells the father little to nothing and makes unilateral decisions. After six or more months, father's relationship with the kids has been seriously harmed and is heading toward deterioration. The children cry when father comes to pick them up, even for short visits. Mother creates drama at every exchange and Father sometimes engages and yells back.

Father cannot afford an expensive child custody battle and mother knows that. She also knows if she keeps this up, she will have created enough division in the relationship that the children will not want much, if anything, to do with their father.

Has the mother physically harmed the children? No.

Emotional or psychological abuse? Yes?

Notice I didn't paint the father as a saint. He did cheat, leave the family and certainly there is enough blame to pass around for why the separation occurred.

California gives a codified version of lip service to parental gatekeeping. Frustrating parenting time, lack of co-parenting and false allegations are all important in child custody cases but how most judges apply them is, at best, inconsistent.

Is it time to stop dancing around the issue and get to the heart of it? How about something like this?

"If the Court finds substantial evidence that a parent within the last 24 months has engaged in restrictive gatekeeping by unreasonably restricting contact with a minor child contrary to the child's best interest with the intent to interfere with the other parent's lawful contact with the child and that conduct has resulted in harm to the other parent's relationship with the minor child, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the gatekeeping parent is detrimental to the child's best interest."

Of course, gatekeeping should have some reasonable definition and examples.

What do you think? Too much? Not enough? Are laws against reckless or malicious, restrictive gatekeeping overdue or is this a solution looking for a problem?

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