The implementation of the new Law No. 4821/2020 in family disputes seeks to regulate the relationship between parents and children on the basis of what should be – one might say, in accordance with the nature of the law, “in an ethical way”. In pursuing this aim, to shape post-separation or post-divorce relationships in an “appropriate” manner, it is based on the ability of parents to work together, the need to encourage the child’s relationship with each parent, their mutual support and co-decision on matters concerning their child. As a system it presupposes “optimism” about these relationships and, in order to preserve the optimistic image it wishes to maintain, that every child needs its two ‘good’ parents’, it often overlooks cases where both parents are not so ‘good’. Thus, he often chooses to separate an abusive parent’s behaviour towards his partner from the criteria taken into account overall in custody arrangements, preferring, in a psychological over-optimistic and ‘ideal’ way, to consider the impact of his behaviour towards the child as something ‘separate’.

The impact of this “weaponization” of the courts in the case of abusive partners creates a psychological Calvary for the other parent, who is judicially called upon to respond that he or she has no intention of “alienation”, that he or she does not choose to ignore the pressing and controlling messages of the abusive parent or to make decisions in the best interests of the child, to which the abusive parent creates unnecessary obstacles, in “abusive exercise of custody,” to defend against unfounded motions to remove custody on those grounds, and ultimately to right himself first as an individual after the rupture created by separation from such a partner, and then as a parent, and to be a support for his own child. It should be noted here that this “optimism” has been shared both in handling cases as a lawyer and in earlier written submissions by the author.

In these cases, unfortunately, n. 4800/2021 and the amendment of the Civil Code pursuant thereto, gives, by deviating from its purpose, a new weapon in the hands of the abusive parent to control the other parent, who is usually the primary caretaker of the child, to discredit and destroy him as a person in the name of ‘interest’ in his child and to exercise good old ‘patria potestas’ in the name of an “active interest”, in effect avenging the parent who has attempted through the termination of the cohabitation to challenge his “authority”.

While the exit from such a psychologically abusive relationship is in fact far away and often passes outside the boundaries of court decisions, which rarely bring ‘redemption’, the law at the same time provides the tools and opportunity for the parent to create an environment that is safe for him or her and the child, even if one parent ultimately plays a key role in it.

A few words about psychological abuse in the context of so-called “conflict divorces”.

Law n. 4800/2021 on co-parenting states in Article 1 that it shall take into account in its application the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), ratified by Act No. Article 31 of this Convention stipulates that “1.The Parties shall take all necessary legislative or other measures to ensure that in determining custody and visitation rights of children, account is taken of the cases of violence covered by the scope of this Convention. 2.The Parties shall take such legislative or other measures as may be necessary to ensure that the exercise of any rights or custody does not prejudice the rights and protection of the victim or children.”

Such violence is defined as psychological violence and in particular as deliberate conduct intended to cause serious harm to the psychological integrity of a person through coercion or threats.

At the same time, the European Parliament Resolution of 6 October 2021 on the impact of intimate partner violence and custody rights on women and children (2019/2166(INI)) points out that perpetrators often use judicial procedures to extend their power and control, as well as to continue to intimidate their victims and instill fear in them. It also highlights that the child and the request for co-custody are often manipulated by the abusive parent in order to continue to have access to the mother after separation.

The issue is that this direction is in practice lost in the multitude of files that the family court judge receives: in most cases a formal check is made for the existence of physical violence against the parent, which is considered irrelevant to the judgment on the best interests of the child, as long as it is not directed against the child. The problem that is not addressed is how a child can be safe in an environment where the psychological abuse of the parent, who is usually the primary carer, is extended and reinforced by the court process. What criteria can a child be protected in the case of psychological abuse of a parent? In other words, how can it be shown that such a situation also adversely affects the best interests of the child, especially when the court does not have the means (and sometimes the interest) to diagnose such details of a case (e.g. by ordering a social investigation or psychiatric expert examination)? Can it be argued that the parent continues to control his or her former partner and “compete” with him or her abusively in the custody dispute, without the relevant allegation backfiring on the parent seeking court protection and ultimately having his or her voice silenced under the umbrella of the concept of “high conflict divorce”?

Practical rules of the custody dispute

The characterization of the conflict into which the abusive partner forces the post-separation situation as “high conflict divorce” “divides” the responsibility for the abuse that the court-pressured parent continues to endure, with the result that he or she is seen to be harming the child’s best interests as well, and co-habitation is often chosen as a solution to “de-escalate” the tension, even though the root of the problem lies precisely in the controlling-abusive behavior. The parent, in such a situation, is often called upon to refrain from demonstrating this behavior, precisely so as not to be seen as maintaining the “tension” to the detriment of the child’s best interests. This does not mean, however, that this situation cannot be challenged in court. Here is some practical advice for the parent involved in such a dispute:

– The psychological abuse of a child, even when it consists of the pressure the child feels in seeing the parent and primary caregiver subjected to what as a child may not be able to perceive as abuse but is still a traumatic situation for the child, is difficult to outline in court. You may have many indications that your ex-partner is suffering from a psychiatric disorder and possibly a personality disorder, such as Narcissistic Personality Disorder (NPD), but it is difficult to order both a social investigation and a psychiatric expert report that establishes this, since the volume of cases that reach the family court and the understaffing of the structures make such a possibility a “luxury”; social research is often limited to the detection of symptoms of physical or sexual abuse or a state of major neglect and negligence, while psychiatric expertise is limited to establishing whether or not there is an “active psychopathology”. In other words, proving such an allegation becomes difficult and may be used by the other side as an argument against you for attempting to “alienate” the abusive parent from the child. The judge may also ignore other arguments essential to the child’s best interests.

– Pick your battles. The court does not have the ability to consider everything, and too often we end up counter-arguing over minor incidents that the other side may raise, trying to prove our own true version of the facts and hoping that the judge will understand the “viciousness” of the opposing party. Judges usually pass over such incidents as arguments between the parties, always under the umbrella of “high conflict divorce” and are simply taken into consideration for your ability to cooperate in the context of co-custody.

– Keep a record of messages and calls. Very often evidence is distorted to show e.g. lack of information or obstruction of contact by the parent, who may send continuous messages either with questions about the child’s daily life or to contact the child regardless of the contact program or the information they actually have. It is something that can be easily responded to usually by the flow of the electronic conversation itself.

– Focus on the criteria set by the law itself for the exercise of custody. A very basic criterion for poor exercise of custody is attempting to break the relationship with the other parent. While this allegation is usually the main arrow in the quiver of the parent who claims “alienation,” it is most often a projection of that parent: the abusive parent is the one who will speak ill of the other parent to the child, influence the child in relation to other family members (or any new partner of the parent), and manipulate the child in any way to his or her own advantage in the custody dispute. Similarly, it is usually the parent who, as a form of “revenge” during his or her time with the child, will believe that he or she has the right to unilaterally make a decision that should be co-decided in the joint custody setting, to not answer a call, to not provide notice on the way the contact right is exercised, or even to violate the court-ordered schedule. All of these constitute criteria for a miscarriage of custody under the law and put the claim of “alienation” to the reality test.

In other words: the psychologically abusive behavior of the controlling parent towards you and towards the child is often difficult to prove, but it does not follow that you cannot secure the best interests of your child: even if courts are reluctant to use the term abuse for such behaviors or to see the dimension and effect they have on the child, based on the law they can qualify the child’s best interests in the same direction. It is a basic principle of our family system that the best interests of the child are not considered in the abstract and on the basis of slogans: if in a particular case the safety of the child and the stability he or she needs in his or her upbringing can be guaranteed by one parent alone, the second one may not be necessary.