Very often when parents are in dispute over custody of their children the court is asked to formulate a decision on the basis of two opposing poles: the domestic violence claim on the one hand and the parental alienation claim on the other. In short, one parent claims that the other parent is abusing the child and the latter claims that these allegations are the product of the former’s parental alienation and that they are in fact taking place precisely to exclude him or her from the child’s life. The judge’s task becomes even more difficult when the dispute is at the stage of interim judicial protection, where the court can only speculate the allegations and where there can be no full proof. This is a commentary of a client’s case, which led to the issuance of the decision No. 25/2023 of the Kavala Court of First Instance, and which, after a procedural “thriller” of interim orders and injunctions, which ended up separating the three minor children of the parties, decided on the one hand to reunite them and on the other hand to exclude the mother from their custody. The court held that the mother was systematically violent towards the children and that no allegation of parental alienation could justify her conduct, awarding sole custody of all three children to their father.

On 12.01.2023, judgment No. 25/2023 of the Kavala Court of First Instance was published, which was rendered on the opposing actions of the parents for the custody of their three children (a boy, aged 9, diagnosed with autism spectrum disorder, and two girls, aged 17 and 12) and the dissolution of their marriage.

By that judgment, the court gave final judgment in a fierce dispute which gradually unfolded as follows: the father initially applied for an injunction to have the mother removed from the home on account of her behaviour towards their minor children, in particular her violent outbursts against them, for the sole custody of the children to be awarded to him and for an interim order to be made. At the same time, he filed a complaint against the mother for domestic violence, accusing her of acts which involved, inter alia, the mother’s systematically violent behaviour towards the younger child, whose particularity as a person with autism she could not manage, with the result that she was losing her patience and ‘lashing out’ at him. By interim order in February 2021, the mother was ordered to move out of the family home. In turn, the mother filed a cross-petition for interim order, seeking sole custody of their children and a corresponding temporary order. The court held that the children had suffered “parental alienation” from the father and his environment, that the mother’s behaviour was nothing more than isolated and “justified” incidents in her attempt to regain “control” over her relationships with her daughters, and that she had never been violent towards the youngest child. So, by a new interim order in March 2021 the court awarded custody of them exclusively to the mother. The father requested a reform of the interim order and refused to hand over the children to the mother, resulting in her filing criminal charges against him for violating a court order. The court (of the ‘3rd’ interim order), following a ‘Solomonic’ solution, decided that he should have sole custody of the eldest daughter, the mother should have sole custody of the youngest child (the boy with autism spectrum disorder) and they should have joint custody of the middle child (the younger girl), who would continue to reside with the father.

The injunction court, ruling on the two opposing applications in the summer of 2021, after re-examining the evidence and taking into account the opinion of the two girls (and older children), held that the mother’s behaviour against them had justifiably disrupted their relationship and it was better for them to continue to live with their father, but without going into judgments about the existence of domestic violence. He accordingly did not accept that there was anything “objectionable” about the mother’s behaviour towards the younger child. He therefore awarded sole custody of the two girls to the father and of the boy to the mother, ‘validating’ the separation of the brothers.

Criminal trials followed in the course of which the father was convicted in both first and second instance for violating the (2nd) interim order, which had awarded sole custody of the children to their mother, regarding the non-delivery of the younger child to her and rejecting, inter alia, his claim that the delivery of the child to the mother due to her previous conduct against his child was impossible for reasons relating to his best interests and protection. In short, it had been held that the older children were justified in not wanting to follow the mother, but that there was no reason for the younger child, who, because of his autistic disorder, was unable to express his feelings and wishes verbally, to stay away from her.

This situation came to be changed by the trial court in March 2022, which in the judgment in question held that the mother could not justify her “outbursts” against her children on the basis of any problems she was having with her husband and his family and the parental alienation she had invoked, that the nature of the acts in themselves showed that the incidents could not have been isolated, and that the mother’s behaviour was violent also towards her youngest child, who was pushed away by her,  pushing and pinching his hands and body whenever he became ‘troublesome’ towards her, while claiming that experts had allegedly recommended this behaviour to her. As the judgment states: ‘In the light of the social and educational concepts which exist in modern family law […] any form of violence by a parent towards a child, even if it is an isolated incident, is unacceptable and unjustified. Moreover, according to the lessons of common experience, incidents of domestic violence such as the one at issue are rarely isolated but either never occurred because the average prudent parent finds it unthinkable to suffer any form of violence for any for any reason against his children or they have occurred many times because the abusive parent considers that his role allows him to resort to violence against his children in order to admonish them as the easiest and most effective means of complying with his orders, without the special effort required, wasting the time that he has to devote and showing the necessary great patience, which he clearly does not have even in the least, in order to demonstrate to his children, in a gentle, clear and comprehensible manner, that they should and should not behave in accordance with the circumstances, by attempting to present to them as normal to suffer and tolerate the violence he inflicts on them as a means of punishment and, in any event, by failing to take into account or, worse still, by disregarding the psychological trauma inflicted on his minor children each time they become the recipients of his violent conduct, for whatever reason”. Taking into account the facts proved, the Court held that “the statute under § 1511 para. 2 of the Civil Code dictates that the best interests of the children following the termination of the marital partnership of their parents dictate the exclusion of their mother from exercising custody of them in order to prevent the risk of a recurrence of similar acts of violence by the latter towards them and to avoid further psychological trauma to them”, awarded sole custody of the children to the father (my client) and declared the dissolution of the marriage due to a strong shock consisting of the violence used by the mother against the children.

In lieu of epilogue

After a judicial adventure that lasted almost two years, with its decision the Court restored the institution of justice in the eyes of the children themselves first and foremost, proclaimed the obvious, that domestic violence cannot be justified in any form and enshrined their right to be heard. More importantly, the court’s decision protected the most vulnerable child, who, because of his or her disorder, had so far been unable to be ‘heard’.