Parental gatekeeping in California child custody disputes is an old and ongoing problem. Maternal gatekeeping is more dominant than the paternal kind but both can create barriers toward co-parenting, communication, quality time between a parent and child and, ultimately, alienation of affection. In this comprehensive article, we will address parental gatekeeping in child custody disputes, what it is, how it is used, the intent behind it and what can be done to break through it, even if it means taking custody away from the gatekeeping parent.
Our focus is California child custody laws and no other State. Nothing in this article should be considered legal advice.
What is parental gatekeeping?
We have heard and read different definitions of parental gatekeeping by the psychological community. We are not psychologists. We are California divorce lawyers and, unlike psychologists, we are in the litigation trenches of this issue. We don’t see parental gatekeeping in the abstract or through a therapeutic setting. We deal with parental gatekeeping head on, often amidst contested and complex child custody cases. Thus, our definition may be different than theirs.
What is ours? Parental gatekeeping are measures taken by a parent to shield a child from actual, perceived or manufactured harm. Notice we broke up parental gatekeeping into three categories. They are:
1. Parental gatekeeping due to actual harm: Psychologists sometimes call this “protective” gatekeeping, which is intended to justify the measures a parent takes, often in the face of physical or emotional child abuse or neglect. Protective gatekeepers don’t intend to harm the parent-child relationship but share a reality-based concern about the other parent, whether that is due to a history of abuse or neglect or threats of it.
2. Parental gatekeeping due to perceived harm: Perception is the better or greater part of reality in many aspects of life and child custody litigation is often not an exception. In divorce or paternity cases that involve child custody, emotions can run hot. Concern during the marriage can turn to fear during divorce.
Custodial parents who have spent the relationship primarily or solely caring for the child or children now face the truth they cannot always be there as their child’s safety net. That is because they will likely not be around to help when the other noncustodial parent has the child. This may result in a hypersensitivity to perceived harm. Is that to say the perception is distorted? Not necessarily. Sometimes, it is reasonable and based on logic and facts. Other times however it can be based on exaggerations and the parental gatekeeper’s insecurity.
3. Parental gatekeeping due to manufactured harm: False allegations is at the heart of such gatekeeping. Psychologists sometimes refer to this as “restrictive” but our lawyers believe that term is insufficient to really categorize this condition. Restrictive gatekeeping is more often seen in cases of perceived harm. Parental gatekeeping due to manufactured harm is, at worst, malicious and, at best, reckless, and is not born from a genuine concern for the child but rather hostility and anger toward the other parent.
This type of gatekeeping can fester into false allegations of abuse, neglect, abduction and, as a child grows older and becomes more susceptible to influence, parental alienation.
What age are children most susceptible to parenting gatekeeping?
Since gatekeeping is a parent-directed measure, it affects children of all ages. From birth to late teens, mothers and fathers act as gatekeepers, for better or much worse.
Since our focus in this article is parental gatekeeping based on perceived or manufactured harm (restrictive, reckless or malicious), we will focus on those in this section:
The younger the child, the more susceptible a child is to gatekeeping. That is simply because the younger the child, the less likely he or she will be able to express a contrary statement or be interviewed to flesh out the truth of what occurs.
Children, unlike the worst gatekeepers, have no desire to lie. Their motivations don’t arise from a wish to sever their relationship with either parent. They want to love and be loved.
But a child between 1 to 6 years old rarely has the emotional faculties to actually express such thoughts clearly if interviewed by a social worker (in or out of the child custody process) or judge. In fact, most children don’t have the ability to break through and actually help a case of improper gatekeeping until they get well into their teenage years and, if the gatekeeping has escalated into parental alienation, this break through becomes more challenging.
What are the most dangerous types of parental gatekeeping in child custody disputes?
There is a degree of danger to every kind of gatekeeping based on perceived or manufactured harm. As sacred as our children are to us, a boy or girl who grows up unreasonably shielded from one parent’s positive influence may suffer as he or she grows older and as his or her own views of the world, relationships and parenting are molded by the gatekeeper.
Of the different categories however, the malicious gatekeeper is by far and away the most dangerous. Such gatekeepers, through their conduct, engage in a very real and tangible form of child abuse. Our divorce lawyers have successfully handled cases against malicious gatekeepers, including through formal hearings and trials, and our experience is that there is rarely a reasonable compromise that can be reached with these types of gatekeepers. In short, their goal is rarely reasonable resolution or anything that requires them to stop the behavior and aid in any reunification of parent and child that needs to take place.
Why do custodial parents engage in restrictive gatekeeping?
1. The parental gatekeeper’s anger or revenge
This is not the most common reason but it is the most dangerous. The anger can come from many sources, including infidelity, abuse (actual or perceived) or simple marital discord that has grown into hostility. The revenge aspect comes into play when the gatekeeping parent uses that anger to lash out at the other parent by trying to take the children from him or her.
2. The gatekeeper’s childhood and own parental upbringing
This is usually not the sole reason but can be a contributing cause. In our experience, parents who are restrictive, reckless or malicious gatekeepers sometimes grew up in similar households. Our experience is that they can come from either bitterly divorced parents or parents where one parent (typically the mother) was the sole (or close to the sole) caretaker and that is what they have known. Then, when their own marriage breaks down, they revert back to what they were used to, growing up.
This condition coupled with anger takes time to penetrate because the gatekeeping parent’s psychology needs to change or custody needs to be taken away from the gatekeeper.
3. Leverage on non-custody related issues
Children are used as leverage in child custody cases every day in family court. Parental gatekeepers and unfortunately unscrupulous lawyers (some of whom think their role is that of a puppet who should do his or her client’s bidding so long as he or she is paid, without regard to the damage caused to the family) will use children as leverage on support issues and sometimes even property ones.
Remember that California child custody laws place great emphasis on parenting time when determining child support. That all but gives malicious parents a green light to use custody as leverage.
4. Complete lack of respect for the other parent’s role in the child’s life
Arrogance, narcissism, whatever the reason, some parents simply do not respect the other parent’s role in the child’s life and don’t believe he or she should be actively involved.
We have seen such parents first hand, they often comes across self-righteous, with inflated egos who question how their judgment can be questioned on how to best raise a child. Such parents, in our experience, also harbor some degree of anger or resentment that fuels their lack of respect and blinds them to the importance of a father and mother in a child’s life. Such gatekeeping parents also attempt to replace the other parent by bringing in another parental figure into the child’s life – don’t assume that is always the new boyfriend, fiancé or husband. We have even seen grandparents (of the opposite sex) used for this purpose as a “father” or “mother” figure.
How do custodial parents use parental gatekeeping in child custody cases?
Our experience has shown the following to be the most common tactics used by gatekeepers. This list assumes the parental gatekeeper is not being reasonable protective due to the other parent’s abuse or neglect. We are addressing ill motivated gatekeepers:
1. Restricting parenting time before the court filing and process begins: They place themselves in the role of the gatekeeper by requiring their permission for the other parent to take the child and they use numerous excuses to limit that time – “my son is not used to you yet,” “my daughter will be traumatized if she spends an overnight with you,” “you don’t know how to take care of him,” “that is too long, it will interfere with [insert activity here]” and you name it.
2. False allegations during the court process: Bad news is this – when those who intend to engage in parental gatekeeping realize that Family Code 3040 and California public policy mandate frequent and regular contact and favor shared parenting (absent certain exceptions) the gatekeeper looks for a Plan B to keep the child or children from the parent. Typically, this leads to false allegations of child abuse in the divorce, false allegations of neglect, abduction or false allegations of domestic violence, drugs, alcohol abuse and so forth.
3. Violation of Court orders: Don’t assume a restrictive, reckless or malicious gatekeeper respects Court orders and follows them. Some will flat-out violate them with the thought that the other parent will not enforce it. Others make things as difficult as possible for the other parent through gamesmanship and even covert alienation of the child.
We have sometimes seen parental gatekeepers who lose in Court then step up alienation efforts to use the “but the child doesn’t want to see you” reasoning to either get back into Court or delay the process of reunification if the parent who was kept away from his or her child is now able, through court intervention, to get back into his or her child’s life.
How do you combat parental gatekeeping in your child custody case?
There is no secret recipe to this. Every case and situation is dependent on its own facts. If you are reading this and you are dealing with another parent who is engaging in gatekeeping, you may think you are up against one of the worst. We doubt that. You would be surprised what our experienced child custody lawyers have seen and the cases we have won. Here are some things to keep in mind when battling the gatekeeper:
1. Hire an experienced and knowledgeable family law attorney: It’s not a cliché. The right lawyer can make a difference. While lawyers don’t make facts and certainly cannot make you a better parent, properly advocating facts and knowing the law will help.
If you go cheap, you often get cheap and if you intend to trust your complex child custody case to just any attorney, especially one who is a general practitioner or one who lacks the staff and resources to help you, then you may be starting the process with a handicap.
2. Become and remain child centered: Whoever tells you to fight fire with fire in a family law case is a fool or trying to sell you something. Great family law attorneys will tell you that you must always maintain honesty, integrity and credibility.
If you start engaging in your own misconduct to offset or battle the other parent’s, you dilute the other’s misconduct and put yourself at that same level – that means the family law judge will not longer be looking at one parent who is child centered, reasonable and honest but two parents who are equally at fault. Think that increases your chance of prevailing? Think again.
3. Be ready for Court: Your case may not settle. This isn’t a poker game where you can bluff. You have to be prepared to take your case to hearing or trial against the parental gatekeeper. Many gatekeepers learn the lesson that their misconduct will have adverse consequences when a Judge explains it to them.
Again, we have seen this first hand in hearings and trials we have won although this isn’t so much about “winning” as it is about fleshing out the facts and exposing the restrictive, reckless or malicious parental gatekeeper for what he or she has done . The goal is the Court will make proper orders to put a stop to it and perhaps even make appropriate attorney fees and sanctions orders against the gatekeeping parent.
4. Be vigilant about violations of Court orders: The court’s order didn’t teach the gatekeeper the lesson? Your lawyer, if he or she is effective, will document these violations and, when the timing is right and makes sense, seek enforcement.
Often, documenting it will cause the parental gatekeeper to get their act together, for fear of the consequences that will come if they don’t – contempt of court in divorce and child custody cases can carry jail time. If they don’t leaner the lesson, then be prepared to file a contempt action or seek a modification of custody or visitation, if needed. There are several rights and remedies available in child custody cases when there is a violation of the Court order.
What consequences should ultimately befall the gatekeeper parent if he or she does not relent?
There are currently some laws in effect that help with this. For example, look at these code sections (the entire code section is not listed)
Family Code 3027.1 (a) states:
“If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.”
Family Code 3027.5 (b) states,
“The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state’s policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.”
Family Code 3028 also allows for compensation when a parent has been “thwarted by the other parent when attempting to exercise custody or visitation rights contemplated by a custody or visitation order, including, but not limited to, an order for joint physical custody, or by a written or oral agreement between the parents.”
There are more laws, general laws that discourage frustration of parenting time and instruct courts to take that into consideration when determining child custody orders. For example, Family Code 3040 states in part (pay particular attention to the section I have placed in bold):
3040. (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order…”
There is a lot more to Family Code 3040 but notice, at the outset, our California legislature placed a premium on which parent would more likely allow the child frequent and continuing contact.
Now that you have read all of that, does it seem like parental gatekeepers can get away with their misconduct?
The sad part is they do most of the time, even though California law has protections in place but that is mostly due to inaction by the other parent. To use those protection means you have to do your part as a parent to work hard to spend time with your child, document the gatekeeper’s misconduct (experienced lawyers like those at our law firm do that well) and be prepared to take the matter to a family law judge when the parental gatekeeper violates your custodial rights, which is also where we come in.
What have we been able to accomplish for parents who have had to deal with gatekeepers? We have taken custody away from parental gatekeepers, limited their custodial time, gotten attorney fees and sanctions against them and beaten them in Court.
Courtroom experience, knowledge of California Family Law and the ability and resources to handle these types of cases, especially when they can become complex, will help you and give you a reasonable chance of success. There are no crystal balls and don’t forget that you have to do your part too. You cannot just sit on the sidelines and pretend to want quality time with your child. It has to be your intention and your action.
Do you need help with a gatekeeper? Contact us today for representation for your California divorce or child custody case. Our law firm is located in Orange County, California and we generally handle cases in Orange County, Los Angeles and, in select cases, the Inland Empire and San Diego Counties.