Parental Gatekeeping and Child Custody Evaluation: Part II: Justification

Analysis: Suggested

Generic Forensic Protocol for Protective Gatekeeping©

William G. Austin, Ph.D. (2018, August). Cite as Unpublished Manuscript. Do not cite without permission. wgaustinphd2@yahoo.com1

Abstract

A generic forensic assessment protocol is described for a justification analysis when a

parent (or custody evaluator) recommends restricting a parent’s timeshare as part of the

parental gatekeeping forensic evaluation model. The model is described with an emphasis

on Protective Gatekeeping (PG) that refers to the reasons a parent is proposing

restrictions on the other parent’s timeshare and/or is not supportive of the other parent’s

relationship with the child. Justified and unjustified restrictive gatekeeping are

distinguished. Case data and context may lead an evaluator to conclude the parent’s

restrictive behaviors and/or legal proposal is not justified, but they may be

understandable. The restrictiveness may also reflect parent alienating behaviors presented

under the guise of PG. The parent’s protectiveness occurs when the parent believes there

is a risk of harm to the child associated with spending parenting time with the other

parent. The forensic evaluation model is contrasted with other conceptual models on

gatekeeping that have emerged in the literature. Forensic issues or contexts where PG

occurs are identified, such as when there has been a history of intimate partner violence;

allegations of child sexual abuse; harsh parenting; or when the mother opposes overnight

care by the father for young chidren. The generic protocol is a best practices forensic

1 Available at www.child-custody-services.com or www.parentalgatekeeping.com

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assessment tool that practitioners can adapt to different forensic contexts involving

allegations of harm to the child and/or parent.

Parental Gatekeeping Concept and Forensic Model

Development of Justification Analysis

The purpose of this article is to add to the development of the parental

gatekeeping forensic model (Austin, 2011; Austin, Pruett, Kirkpatrick, Flens & Gould,

2013a; Austin, Fieldstone & Pruett, 2013b) by presenting a generic form of a forensic

assessment protocol for child custody evaluators for a Justification Analysis concerning

issues about protective gatekeeping. In such cases one parent, or even both parents, are

proposing to restrict the other parent’s access to the child and the parenting timeshare

based on concerns of potential harm to the child. Or, they are just not being supportive of

the other parent-child relationship. The restrictive parent is being protective based on his

or her asserted reasons on the sources of potential harm to the child. In such a context,

the restrictive parent needs to be prepared to justify the reasons for the proposed

restrictiveness, and usually not being supportive, or being conditionally supportive, of the

other parent-child relationship. The custody evaluator and court, then need to determine if

the restrictive parent’s reasons and rationale/explanation are cogent, or justified, based on

the facts, context, circumstances, a practical analysis, and professional literature relevant

to the case.

The goal of this article is to develop a generic form for a justification protocol2

that can serve as a heuristic basis for adapting the analysis to specific child custody

forensic contexts on the issue of Protective Gatekeeping. These contexts would include

2 By “protocol” is meant a proposed step that an evaluator can follow and factors, variables that can be considered in light of the parental gatekeeping model and the facts, context, circumstances, a practical analysis, and the relevant professional literature.

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cases where there are allegations of a past pattern of intimate partner violence by a

parent; past harsh parenting practices or child abuse; allegations of child sexual abuse;

substance abuse, or other parental concerns about the risk of harm. Another protective

gatekeeping context includes when a parent (usually the mother) wants to limit or deny

overnight parenting time by the father when he is seeking overnights for a very young

child. This situation of opposing overnights, by definition, is a restrictive gatekeeping

position when the other parent is ardently requesting overnights and wants to be

substantially involved with the child. The author suggests that the restrictive parent needs

to justify the basis for an assertion of the risk of harm for the child, which may turn out to

be clear and justified, or not (Austin, 2018a). There are different schools of thought on

this issue.

Research establishes that the quality of mothers’ post-divorce co-parenting

behaviors are significantly affected by perceptions of the father’s competence or fitness

in parenting (Madden-Derdich & Leonard, 2002; Russell, Beckmeyer, Coleman &

Ganong, 2016) leading them to be cautious or restrictive in their co-parenting, or in being

not supportive of and trusting the father to exercise parental care. Both parents, but

probably much more often, the mother, then becomes a protective gatekeeper. The

forensic gatekeeping model is described below.

When one or both parents are not being supportive of the other parent, and may

have proposed restricting the other parent’s access and involvement with the child, then it

is proposed the rational basis for that view and legal position needs to be scrutinized for

the reasoning and factual basis as to why it would be in the child’s best interests. When

custody evaluators recommend restricting parenting time, then they also need to be

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prepared to justify their opinions and recommendations. Custody evaluators always need

to justify their expert opinions and parenting plan recommendations, or to explain the

rationale and supporting data, but in cases involving recommendations for the restriction

of parenting time the author proposes there needs to be a systematic approach to this

forensic task. The justification analysis should entail the examination of assertions that to

some degree of, or a pattern of parenting time by the other parent, poses a risk of harm to

the child or children. Contexts that involve protective gatekeeping often involve one the

special and complex issues such as allegations of intimate partner violence. The Model

Standards for custody evaluation (AFCC, 2006/2007) recommend that custody evaluators

take a systematic approach when the case involves one of the special issues, e.g., intimate

partner violence, relocation, child sexual abuse, etc. Forensic models, such as the

gatekeeping model, affords custody evaluators one means, or a tool, to take a systematic

approach to data gathering and interpretation of the quality of co-parenting.

Researchers have hypothesized a “motherhood [cultural] mandate” that functions

as a “duty” to protect their children from harm (Weaver & Coleman, 2005). At the same

time, research shows that many women who have been victims of intimate partner

violence find a way to continue to co-parent with their former abusive ex-partners due

many reasons, e.g., fear, pragmatic considerations, and belief in the value of father

involvement (Hardesty & Ganong, 2006; Russell et al., 2016). However, this co-

parenting process remains a challenge as victim-parents need to balance facilitating

access with safety concerns and the need to protect oneself from recurring emotional

harm (Hardesty, Haselschwerdt & Johnson, 2012).

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In applying the forensic gatekeeping model, the justification analysis will mean

the evaluator is examining the question of whether a parent’s Protective Gatekeeping is

justified based on the facts, context, circumstances, professional literature, and a practical

analysis. The “restrictive parent” would have conducted an “implicit personal risk

assessment” concerning the child’s involvement with and parenting time with the other

parent. When there are assertions or allegations of risk of potential harm to the child, so

that the restrictive parent is being protective, then the evaluator would be well-advised to

conduct a psychological risk assessment as part of the custody evaluation, based on risk

factors gleaned from the professional literature, such as a parent’s mental instability,

substance abuse, and past intimate partner violence, but especially on the facts.

At the same time, there may be instances where a parent is asserting the need to

be protective as part of a legal strategy to gain a greater parenting timeshare. Such a

situation could be characterized as “pseudo protective gatekeeping.” This would be the

case when a parent is fabricating or exaggerating allegations of abuse. In contrast, a

parent may be exaggerating and distorting data on the assertion about the other parent’s

restrictive gatekeeping, or asserting that the protectiveness is ingenuous and represent

“parent alienating behaviors.”

Integration of Parental Gatekeeping into Family Law Context

The concept of parental gatekeeping and the developing forensic evaluation

model appear to have become well-integrated into the professional lexicon and as a

useful analytical tool for child custody evaluators, judges, and family law practitioners.

Gatekeeping refers to the pattern of co-parenting behaviors on the issue of how well each

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parent is supportive of the other parent-child relationships (SOPCR), in the context of the

post-separation and post-divorce family system.

The gatekeeping concept also embodies a common best interests statutory factor

found in the majority of U.S. states and other Western countries (Florida Statutes, 2015a).

Gatekeeping can be either positive or negative as a set of co-parenting behaviors and the

expected effects on the quality of parent-child relationships. It is both a metaphor and

scientific concept that is supported by an extensive research literature (Ganong Coleman,

& Chapman 2016). There is conceptual and logical overlap between gatekeeping and

several complementary concepts, as discussed below, e.g., co-parenting, parental conflict,

and parental alienation.

Research has almost exclusively focused on maternal gatekeeping in intact

families (Allen & Hawkins, 1999). A pioneering and high quality research project drew

attention to the application of the gatekeeping concept and the relevant literature to the

population of separated and divorced parents (Pruett, Williams, Insabella, & Little, 2003;

Pruett, Arthur & Ebling, 2007). A preliminary conceptual piece applied the concept to the

context of child custody and parenting evaluations (Austin, 2005a). Workshops on

gatekeeping and child custody evaluation have been presented at national and regional

conferences since 2006 to familiarize the fields of family law and child custody

evaluation with the potential for describing and better understanding the dynamics of and

relevance of co-parenting behaviors, as well as recommending parenting time plans that

are in the best interests of children.

Numerous articles and book chapters have described the importance for assessing

parental gatekeeping in the context of child custody relocation disputes (Austin, 2005b;

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2008; 2012; Austin & Rappaport, 2018; Parkinson, Cashmore, Taylor & Austin, 2016).

Relocation disputes probably allow for the clearest application of the concept and the

forensic model. In the relocation context, the question of how a proposed parent and child

relocation will affect the quality of the nonresidential parent-child relationship inevitably

becomes a central focus of the dispute. The evaluator and court will examine will make a

prediction on the likely quality of the moving parent’s gatekeeping/co-parenting in a long

distance parenting arrangement. It follows that the court will look closely at how well the

moving parent is likely to support that relationship and apply the statutory factor, whether

there is a statutory factor, or not (In re Marriage of Collingbourne, 2003).

Parental Gatekeeping Forensic Evaluation Model

Gatekeeping is a research-based concept and forensic model that has scientific

grounding in an established research literature that is largely drawn from the field of

family studies and also from research on co-parenting and conflict (See, for reviews,

Pruett et al., 2007; Austin et al., 2013a; 2013b; Ganong et al., 2016; Saini et al., 2017).

The description of the model, along with accompanying research reviews builds upon

early conceptual efforts that encouraged the identification of specific gatekeeping

behaviors within the context of separation and divorce, that would be expected to either

enhance or diminish the other parent-child relationship (Austin, 2005a; Austin et al.,

2013a; 2013b; Trinder, 2008).

The model is designed to be a guide for forensic evaluation and investigation, and

it has appealing practical application to a wide range of child custody contexts. It is

designed to be a “user friendly” forensic model and heuristic with a judge’s “bench book”

version available (Austin, 2013b). There is even a judge’s “bench card,” a very short

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version with checklists of gatekeeping behaviors that was posted on two Florida judicial

websites to describe specific gatekeeping behaviors, as does the bench book version

(Austin, Fieldstone & Pruett, 2012). Lists of behavioral examples of “gate-opening” and

“gate-closing” behaviors are available (Austin et al., 2012; 2013b).

Complementary Concepts

Austin et al., 2013a; 2013b distinguished gatekeeping from several other general

constructs: co-parenting, parental conflict, and parental alienation. Gatekeeping has value

by introducing a different language to describe co-parenting attitudes and behaviors.

Gatekeeping behaviors are co-parenting behaviors, positive or negative. It is a more

general concept due to the frequent involvement of persons other than parents to

influence the quality of and involvement of the parents with the child, such as

grandparents and other extended family, who engage in gatekeeping behaviors, either

positive or negative. Speaking metaphorically, many individuals can act to either open or

close the parental gate on support and access for the other parent (Saini et al., 2017).

Limited research suggests restrictive gatekeeping will be much more frequent and intense

following separation and divorce (Trinder, 2008; Fagan & Barnett, 2003; Pruett et al.

2007).

Surprisingly, formal definitions of co-parenting are difficult to find in the

literature, even though courts seek information about and custody evaluators routinely

describe the quality of the co-parenting relationship. The “gatekeeping best interest

statutory factor” basically directs custody evaluators to assess the quality of co-parenting

by both parents. Co-parenting can be described simply as “parents ability to actively

engage one another to share child rearing responsibilities” (Sobolewski & King, 2005, p.

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1198). A more complex definition is offered by Pruett (Marsha Kline Pruett, personal

communication, November 13, 2016): When parents show:

Substantive agreement about who the child is and what he/she needs; Explicitly or implicitly value the other parent’s contributions; Recognize individual differences in each child that allow for differential

responses to the children’s needs; Allowing children’s needs to guide how conflicts get resolved; They can act as a team and engage in mutual support when children need firm, but

loving support to guide them.

It is possible to describe the co-parenting pattern as “cooperative vs. uncooperative

co-parenting,” or “functional vs. dysfunctional co-parenting” as alternative dichotomous

terms that could be defined operationally as continuous variables on continua in a similar

manner to the gatekeeping continuum that is described below.

Austin et al. (2013b) described how the concept of parental conflict becomes

intertwined with gatekeeping so that parenting time disputes that lead to litigation

become high conflict cases on access issues that can be characterized as “gatekeeping

conflict.” Both parents will often be accusing the other of being a restrictive gatekeeper.

Often, a custody evaluator will not be able justify the parent or parents’ lack of support

for the other parent-child relationship and/or attempt to restrict access to the child, but

also may find the restrictiveness to be justified. The children often will be exposed to the

conflict as part of the gatekeeping dispute. Research demonstrating the harmful effects

due to exposure to conflict is well established (Hetherington, 1999; Davies & Cummings,

1994). There is a reciprocal causal connection between conflict and gatekeeping so that

higher conflict begets restrictive gatekeeping, and vice versa.

Austin et al. (2013a; 2013b) have also differentiated gatekeeping from alienation.

Parent alienating behaviors, e.g., PABs (Saini, Johnston, Fidler & Bala, 2012), could be

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characterized in the alternative gatekeeping language as “unjustified restrictive

gatekeeping” (URG), as described below with the gatekeeping model. Behavioral

examples are found in the “bench book” article (Austin et al., 2013b). However, most

examples of post-separation URG will be part of parental conflict and not represent

PABs, or not have the parent-child disturbed relationship dynamics that are often

apparent in cases of alienation where children are resisting and refusing contact with a

rejected parent (Fidler, Bala & Saini, 2013), including boundary problems/enmeshments;

parents’ active encouraging the child to reject the parent (or “brainwashing”); and

encouraging the development of unhealthy parent-child alliances.

Parental alienation as a generic concept has been characterized as “behaviors by a

parent that negatively influence or poison the child’s relationship with the other parent”

(Saini et al., 2012; p. 399; Darnell, 1998). The emphasis is on the parental behaviors and

effects on the quality of the other parent-child relationship. The similarity to the

gatekeeping definition is clear, but this generic definition is focused only on the negative

end of the gatekeeping conceptual continuum, or restrictive gatekeeping. It is known that

many parents engage in alienating behaviors, but the children are sufficiently resilient or

“adaptive” and do not resist or refuse contact with the targeted parent. The author

proposes a succinct definition of parent alienation as “attitudes and behaviors by a parent

that create a conspicuous expectation of ensuing significant harm to the other parent-child

relationship and therefore to the child.”

The original conceptual reformulation of the alienation concept and movement

away from the idea of a Parental Alienation Syndrome placed the emphasis on the child

and the contributions by both parents to conflict and alienation (Kelly & Johnston, 2001).

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The gatekeeping model places the focus on the quality of co-parenting behaviors (and

gatekeeping attitudes behaviors by others) as they would indirectly affect the child’s

adjustment, wellbeing, and development, both positively and negatively, by its expected

impact on the quality of the parent-child relationships. In this sense, the gatekeeping does

focus on the child. Unjustified restrictive gatekeeping diminishes the child’s access to

one, or both, parents’ social capital. Elaborations of the reformulated alienation

framework have continued to focus on child participation in the alienation process and

effects on child wellbeing (Fidler, 2013; Ludolph & Bow, 2012).

The conceptual frameworks for the analysis of parental alienation have also used

the justification language and analysis (Kelly & Johnston, 2001; Fidler et al., 2013; Saini

et al., 2012). When a parent is engaging in alienating behaviors and/or a child is resisting

or refusing contact, then it is often asserted that there are rational reasons for doing so

based on the past behaviors of the rejected parent. There may be allegations of harsh

parenting or past IPV. When this is the case, then the resistance/refusal may be

characterized as “realistic estrangement” (Kelly & Johnston, 2001). The alleged

behaviors or parental misconduct is then used as the basis for justifying the lack of

support for the other parent, favoring a restriction in parenting time, and the child’s

resistance. Thus, when encountering a case with allegations of parental alienation the

custody evaluator needs to conduct a justification analysis.

It is easy to confuse the gatekeeping and alienation concepts. For example,

experience shows that in relocation cases the nonmoving parent, usually the father, often

asserts the mother is trying to alienate the child when this will seldom be the case. A

proposal for relocation will be a case of restrictive gatekeeping due to the inevitable

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effects on reducing parent-child contact, but it then needs a justification analysis and how

to manage the risk to the nonmoving parent-child relationship (Austin & Rappaport,

2018). In the well-known and controlling California case (In re Marriage of LaMusga,

2004) the evaluator reported there were indications of alienation and the Supreme Court

then treated the relocation as showing alienation. In fact, the court’s opinion described

what was unjustified restrictive gatekeeping. The children did not show signs of being

alienated.

Alternative Conceptual Frameworks

Alternative gatekeeping conceptual frameworks have been proposed for intact

families concerning maternal gatekeeping (Allen & Hawkins, 1999; Adamson, 2010;

Puhlman & Palsey, 2013), including one for the child custody context (Saini, Drozd &

Olesen, 2017). The forensic evaluation model draws upon the early work of Trinder

(Trinder Beck & Connelly, 2002; Trinder, 2008), especially the focus on specific gate-

opening and gate-closing behaviors and the need to justify restrictive, non-supportive

attitudes and behaviors towards the other parent in the exercise of parental

responsibilities (Austin et al., 2013b). The gatekeeping model views the types of

gatekeeping behaviors, e.g., facilitative, restrictive, protective as continuous variables so

the overall quality of gatekeeping/co-parenting in a given custody dispute can be

described in terms of degrees on either their positive or negative valence.

Puhlman and Palsey (2013) have expanded this type of behavioral analysis for

intact families and proposed different patterns of maternal restrictive gatekeeping. They

also suggested the potential for application to the divorce and custody family system

context. Their approach is from a feminist, or mother-centric perspective, e.g., assuming

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the mother will be a primary caregiver, or lead parent, in an intact family, or in the same

parental role in a post-separation context.

Saini et al. (2017) propose an expansion of the gatekeeping model to include a

dichotomous variable of adaptive vs. maladaptive gatekeeping. Case examples are

provided to illustrate their approach.

Definitions and Gatekeeping Patterns

Definitions

Parental gatekeeping is defined as “how parents’ attitudes and actions affect the

involvement and quality of the relationship between the other parent and child, either in a

positive or negative way” (Austin et al., 2013b, p. 2). Gatekeeping can be part of

cooperative co-parenting or represent the unpleasant psychological dynamics when there

is parental conflict and dysfunctional co-parenting.

The forensic model identifies types of gatekeeping, or gatekeeping behavioral

patterns. Facilitative Gatekeeping (FG) “occurs when a parent acts to support continuing

involvement and maintenance of a meaningful relationship with the child [by the other

parent]. Facilitating behaviors are proactive, inclusive, and demonstrate for the child that

the parent values the other parent’s contributions” (Austin et al., 2013b, p. 5). Restrictive

Gatekeeping (RG) “refers to actions by a parent that are intended [or expected] to

interfere with the other parent’s involvement with the child and would predictably

negatively affect the quality of their relationship” (Austin et al., 2013b, p. 5). Research

shows that about 20% of mothers are restrictive gatekeepers in intact families (Allen &

Hawkins, 1999) and it is expected that this would be a much higher percentage following

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separation and divorce (Fagan & Barnett, 2003) and involve gatekeeping by both parents

(Austin et al., 2013a; Puhlman & Palsey, 2013; Ganong et al., 2016; Saini et al., 2017).

It is important for evaluators to keep in mind that co-parenting (or gatekeeping

behaviors) is part of the quality of parenting practices. There are “secondary effects” due

to gatekeeping in that the quality of gatekeeping attitudes and behaviors are expected to

have an impact on children’s adjustment and sense of wellbeing (Whiteside, 1998) just as

the level of parental conflict has such predictable effects (Davies & Cummings, 1994). In

fact, Amato (2010) found that the quality of the co-parenting affects parents’ and

children’s physical and mental health. Research has found that the quality of parenting is

more important for children’s adjustment, but the quality of co-parenting does affect

child adjustment (Russell et al., 2016).

Legal Context

Gatekeeping as a concept and gatekeeping behaviors are important considerations

for trial court judges, child custody evaluators, mediators, parenting coordinators, and

trial attorneys for three main reasons. First, there is a legislative declaration in most U.S.

states and Western countries that encourages the “frequent and continuing contact” of

both parents following separation and divorce as a social policy statement (Colorado

Revised Statutes, 2015a; Florida Statutes, 2015b). Second, extensive research shows that

children of divorce show the best long-term adjustment when they enjoy quality

relationships with both parents (Ahrons, 1994; Hetherington & Kelly, 2002; Leclair et al.,

2018 get ref), especially under conditions of low conflict (Amato & Sobolewski, 2001).

However, quality of the relationship seems more important than the level of conflict

(Nielsen, 2017). In addition, extensive research demonstrates the importance of fathers

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for child development and children’s adjustment and success following divorce (Nord,

Brimhall & West, 1997; Amato & Sobolewski, 2004; Flouri, 2005; Sandler, Miles,

Cookston & Braver, 2008; Lamb, 2010; Pleck, 2010). The research supports the

legislative declaration. However, the research does not translate to an expectation of a

presumption for equal parenting time as this same research shows that it is the quality in

the father-child relationship, or sufficient parenting time for the opportunity for the

development and maintenance of a meaningful relationship, rather than the frequency of

father contact with the child per se (Hetherington, Bridges & Insabella, 1998; Kelly &

Emery, 2003; Dolan & Hynan, 2013). The research does support a related conclusion that

children of divorce generally will benefit from both parents being substantially involved,

or a “shared parenting” arrangement, especially with school-age children (Warshak,

2014). Finally, the pattern of gatekeeping embodies a common statutory best interest

factor in many jurisdictions (Colorado Revised Statutes, 2015a; Florida Statutes, 2015a)

directing courts and evaluators to consider that ability of both parents to support the other

parent-child relationships. This statutory factor is part of the list of statutory best interest

factors found in the majority of states.

Gatekeeping Continuum and Gate-Closing Behaviors

The gatekeeping model proposes a hypothetical continuum that ranges from

extreme restrictive gatekeeping (RG) on the negative end to very cooperative, proactive

factilitative gatekeeping (FG) on the positive end. Extreme examples of restrictive

gatekeeping are extreme alienating behaviors by a parent, or child abduction. RG

behaviors also inevitably are part of post-separation, divorce conflict and serve to

increase the conflict.

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Facilitative behaviors can be viewed metaphorically and functionally as “gate-

opening” behaviors that allow for easy access and involvement by the other parent

(Trinder, 2008). Restrictive behaviors can be viewed as “gate-closing” behaviors

(Trinder, 2008) and they generally fuel conflict. Children are often very much aware of

their parents’ gate-opening and closing behaviors.

Custody disputes that are litigated and/or make use of a custodial evaluation can

be viewed as “gatekeeping disputes” with non-resolvable points of disagreement

concerning relative parenting timeshares as to what will be most beneficial to the children

and/or decision-making authority. There will be implicit or explicit assertions about

restrictiveness concerning parenting time and/or decision-making, e.g., a position of

opposing joint decision-making will be seen as restricting a parent’s involvement in the

child’s life.

Gatekeeping as a Continuous Variable and Communication to the Court

Gatekeeping is best (and most scientifically) conceptualized as a continuous

variable and occurring within different behavioral domains. A custody evaluator can

strive to identify the quality and specifics of gatekeeping within each domain. The degree

of gatekeeping quality can be communicated to the Court (e.g., low, medium, high in

terms of FG and RG) as to the relevance for the recommended parenting plan.

Examples of behavioral domains include information sharing about the child;

parents’ willingness to communicate with each other; compliance with the parenting time

schedule and spirit of the parenting plan, including being flexible as needed; not being

critical of other parent to the children or others (i.e., public criticism); and showing to the

child an appreciation of value in the contributions of the other parent.

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The evaluator can also communicate with the court about an overall level of

rating the quality of each parent’s gatekeeping behaviors, or summarizing across the

behavioral domains. A parent may show significant restrictiveness in one domain (i.e.,

communication), but not in another (i.e., compliance with the parenting time plan). The

court will want to understand each parent’s general supportiveness of the other parent and

communication behaviors as required by the statutory best interest factor. For example, in

a relocation case, a stronger case for relocation is made with a past track record of being a

cooperative co-parent and facilitative gatekeeper.

The forensic model also distinguishes between gatekeeping attitudes and

behaviors (Austin et al., 2013a). With litigating parents in pre-decree cases (with all the

emotional angst and the accompanying conflict), RG and negative attitudes about the

other parent as both a parent and a person, seem to be common, or normative. Parents

need to learn to compartmentalize their negative attitudes from their co-parenting

behaviors so as to insulate the children from the conflict (Whiteside, 1998). This will

make it more likely that the children will show better adjustment (Hetherington, 1999).

One study showed that even when mothers hold RG attitudes that if fathers are able to be

substantially involved, then the children show better adjustment (Pruett et al., 2003).

Protective Gatekeeping

“Protective gatekeeping (PG)3 is a form of RG that arises when a parent acts to

limit the other parent’s involvement or is critical of the other parent’s parenting skills

because of possible harm to the child. PG is defined in terms of the reasons a parent

wants to limit access of involvement by the other parent” (Austin et al., 2013b, p. 5). An

3 The term Protective Gatekeeping was originally proposed by Leslie Drozd in considering gatekeeping in the context of allegations of intimate partner violence in child custody disputes (Austin & Drozd, 2006).

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elaborated definition of PG is: attitudes, actions, and/or legal position of parent that are

designed to limit the other parent’s access, contact, or involvement with child based on

stated reasons that parenting time and involvement places the child at risk for harm,

emotional distress, behavioral problems, adjustment difficulties, or negative

developmental impact. As noted above, frequently asserted reasons for PG include

allegations of the presence of a Major Mental Illness, past or current Substance

Abuse/Alcohol issues, past pattern of intimate partner violence, harsh parenting practices

or child abuse, and allegations of child sexual abuse. The generic Justification Analysis,

as described below, then needs to be adapted to each of these contexts with the prominent

issue and accompanying allegations.

It is possible for a restrictive parent to also be supportive of the other parent. The

mother who opposes the father having overnights for a 2-year old may be very supportive

of the father having substantial daytime parenting time and to be generally quite involved

with the child. The parent who is restrictive out of concern for a substance abuse issue or

mental illness may be very supportive of treatment options to manage the risk of harm

associated with parenting time. Puhlman and Palsey (2013) also propose that parents

(i.e., mothers) can be both encouraging and discouraging of the father’s level and type of

involvement, but their analysis is geared towards intact families.

When a parent is engaging in RG attitudes (e.g., being critical or verbally non-

supportive of the other parent as a parent) and/or RG behaviors (e.g., hindering access

and/or involvement with the child), then the evaluator needs to examine if the actions are

justified. Similarly, when the parent is acting as a protective gatekeeper, then the same

question needs to be addressed. When the data from the forensic investigation “supports

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the restricting parent’s [legal] position or corroborates allegations of harm, then it is a

case of Justified RG (or JRG)” (Austin et al., 2013b, p. 5).

This analysis depends on competent forensic investigation and description of the

data with behavioral specificity. The analysis may lead to a conclusion that the PG is only

partially justified so that it is concluded the proposed degree of restrictiveness while not

justified, the parent’s concerns were understandable. The analysis could lead to the

evaluator disagreeing with the proposal for supervised parenting time for the other parent,

but agreeing that only a fairly limited amount of parenting time is warranted. The case,

for example, could have to do assertions about harsh parenting, or substance abuse, and

these issues could be addressed with suggested interventions and monitoring. “When the

[data are] not supportive of the gatekeeping behaviors [or legal position], then [the

situation] represents Unjustified RG” (or URG) (Austin et al., 2013b p. 6). Behavioral

examples of JRG and URG have been presented (Austin et al., 2013b),4 building upon

early work by Trinder (2008) on examples of both proactive and inhibitory gatekeeping

behaviors.

“Conditional PG” occurs when the restrictive parent proposes, or insists, that the

other parent’s unsupervised parenting time depends on certain interventions, or

conditions designed to manage the risk of harm to the child associated with parenting

time. For example, the restrictive parent who is concerned about the other parent’s

alcohol use and dependency may insist that an ambitious, long-term alcohol monitoring

program be in place (e.g., Soberlink; Etg tests) along with psychotherapy. This issue can

4 The conceptual reformulation of parental and child alienation (Kelly & Johnston, 2001) with the differentiation between alienation and “realistic estrangement” basically involves a justification analysis. The parent’s lack of support for the other parent-child relationship and the child’s resistance refusal to parenting time with the disfavored parent may be justified by alleged aversive behaviors by that that parent. In other cases, the investigation may confirm parent alienating behaviors so that the assertive protectiveness will be unjustified restrictive gatekeeping.

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be framed in terms of identified risk factors, e.g., alcohol dependence, questionable

parenting competence, harsh parenting practices, and mental disturbance. These factors

are “dynamic” risk factors as opposed to “static” (or historical) ones. Dynamic risk

factors are subject to behavioral modification. For example, on the overnights issue,

fathers who are on a “learning curve” in their managing their parental responsibilities can

show rapid improvement in providing high quality childcare.

Modification of Statutory Gatekeeping Analysis

When there are allegations of significant harm and a forensic corroboration of

them, then the case calls for a modification of gatekeeping and the statutory factor that

may exist (or in case law, e.g., In re Marriage of LaMusga, 2004). This issue has been

vociferously raised in the context of cases involving allegations of intimate partner

violence (i.e., IPV), or the “Friendly Parent” issue (Dore, 2004). The feminist position is

that the court should not afford significant weight to this factor of support for the other

parent-child relationship when there has been IPV. Simply put, the point is that courts

(and custody evaluators) should not expect victim-parents to act “friendly” towards the

abusive ex-partner following separation when substantial IPV has been corroborated.

This issue led to the removal of the gatekeeping factor from the Australian “Family Law

Act” (2015). The author’s view is that the “friendly parent” issue is easily dealt with by

the appropriate language in the statute, as it has been revised in Colorado (Colorado

Revised Statutes, 2015b).

When it has been established that significant-substantial IPV occurred, the

gatekeeping analysis is easily modified to take this into account in a protective

gatekeeping assessment (Austin & Drozd, 2012). The identified (and corroborated)

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pattern of IPV needs to be considered to determine the relevance of the IPV issue. In the

context of IPV-salient custody cases, or those involving other allegations of potential

harm, then it is useful to frame them in terms of involving JRG relevant to the issue of

crafting an appropriate parenting plan and appreciating the dynamics of co-parenting.

Professional guidelines now exist to assist custody evaluators in conducting their PG

analysis when there are allegations of IPV (Association of Family and Conciliation

Courts, 2016).

What Qualifies as Restrictive Gatekeeping?

Concerning a parent’s legal position on parenting, timeshares, the meaning of the

term “restrictive” in a gatekeeping analysis and application of the forensic model needs to

be considered by evaluators in their communications to the court. The legal meaning of

the term usually is associated in case law to mean findings of past substantial harm or risk

of imminent harm that results in orders for supervised parenting time or a suspension of

parenting time/access to the child. Case law reviews usually identify instances of child

neglect or abuse as a legal justification for the restrictiveness (In re Marriage of West,

2004).

In a child custody gatekeeping analysis, the term of restrictiveness becomes

relative and parents will have different interpretations concerning the appropriate

timeshares in custody disputes. One could argue that any significant deviation from an

equal parenting time arrangement could be interpreted as “restrictive,” but this would

seem to be a non-constructive, or not a practical view. The author defines restrictive

gatekeeping as a parent’s parenting time proposal that calls for a substantially different

timeshare for the other parent than is being requested by the other parent. A not unusual

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fact scenario seems to be one where a father is requesting an equal parenting time

arrangement and the mother is proposing a “traditional” every other weekend and maybe

another overnight on the alternate week, or a 2 to 4 overnights out of every 14 days. Or, it

could be a 5/14 overnights schedule. Each parent then needs to justify the basis for their

position for the best interests of the child.

In every case that needs a parenting plan to be created and registered with the

court, there needs to begin a discourse between the parents on what is an appropriate

parenting plan with respect to the relative timeshares and decision-making authority,

along with other specific issues that need to be addressed. A practical analysis needs to be

included to address work schedules and availability; locations of the separate residences.

It is always better if this process can involve rational discourse where conflict remains

under control, but this is often not the case. Mediation can help. In more extreme cases,

involving allegations of substantial risk for substantial harm, and that are corroborated, it

may be easier to apply a justification analysis than in less complicated cases where the

dispute is about which parenting time schedule is in the child’s best interests. For

example, with two competent, committed, and loving parents of children, ages 10 and 12-

years, it may be challenging to put-forth cogent justifications for a schedule of 5 out 14

overnights for the father that is more beneficial to the children compared to some form of

an equal parenting time schedule, or why 5/14 would be preferable to 6-7/14 overnights.

There is not going to be scientific research basis/justification for this ultimate issue

opinion on which proposed schedule will be best for the child (Tippins & Wittmann,

2005). However, there is convincing research on the advantages to the child associated

with shared parenting (Warshak, 2014; Nielsen, 2014). The past pattern of exercising

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parental responsibilities, practical considerations, the local judicial norm, or the social

values of the trier of fact may end up being the basis for the justification explanation.

With this type of common scenario of negotiating over the most appropriate

schedule without any assertions of the risk of harm, it may be technically be “restrictive

gatekeeping,” but realistically, it will be best to focus on what is best, practical, and

appropriate in light of the facts, context, and circumstances. It does not necessarily follow

that the parent is not being supportive of the other parent-child relationship. It is not

protective gatekeeping.

Parental Gatekeeping Justification Analysis: A SuggestedGeneral Forensic Protocol for Protective Gatekeeping

When the parent is making assertions of harm and the asserted legal position is to

substantially limit the parenting time of the other parent, then the gatekeeping forensic

model calls for a justification analysis (Austin et al., 2013b). The author suggests that

there are many possible paths to conducting a justification analysis, or how to examine if

a restrictive parenting time plan proposal is justified. The extensive, generic forensic

protocol described below is a “best practices” protocol for a comprehensive forensic

assessment. It is designed to be a sufficient analysis, but all of the elements are not

necessary for consideration in a given case. An evaluator will want to consider which

elements are most relevant for a given case in the type of forensic context. The type of

analysis that is needed for a relocation case will be different from a case involving the

issue of overnight care by fathers. The type that is well suited for a case involving

allegations of intimate partner violence will be different from one involving allegations of

child sexual abuse. There is not one right protocol or approach. It is suggested the

guiding general principle should be one of fitting the forensic approach and steps in

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analysis to the context of the case. This generic protocol can then be adapted to each

forensic complex case involving a special issue such as the overnights issue (Austin,

2018) or relocation (Austin & Rappaport, 2018).

The protocol is presented in the form of six initial caveats on the nature of

protective gatekeeping and application of the forensic model. Seventeen (17) questions

are then presented that point to important issues and types of data to be gathered.

When there are one or more salient issues, then the evaluator’s systematic

approach can be one that largely just focuses on corroborating the allegations (or not) and

translating the forensic conclusions to the issues of parenting time and co-parenting, and

safety issues, if needed. The salient issue may qualify as a major risk factor with a

supporting literature, e.g., IPV. The evaluator may want to use available forensic

evaluation models for that issue to try to efficiently guide a justification analysis. For

example, when the allegations of substantial IPV are corroborated by investigation, or

from a legal finding, then the justification analysis and parenting plan recommendations

will greatly follow from a focused analysis on this prominent issue. It will be guided by a

risk assessment and risk management analysis. With allegations of IPV and protective

gatekeeping, the main forensic models to use for analysis for justification will be Austin

(2000); Austin & Drozd (2012); and Johnston, Roseby and Kuehnle (2009).

The following generic forensic protocol is suggested for child custody evaluators

as a heuristic to guide a Justification Analysis as part of the protective gatekeeping

assessment.

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Caveats

Caveat 1: Protective Gatekeeping concerns a parent’s reasons for restrictive gatekeeping towards the other parent. The forensic model directs attention to potential gatekeeping attitudes and behaviors by both parents. Protective Gatekeeping always involves a parent’s concerns and allegations of potential harm to the child.

Caveat 2: Protective Gatekeeping involves a parent who has conducted his or her own personal risk assessment concerning potential harm to the child, either implicitly or explicitly.

Caveat 3: When there are allegations of potential harm to the child related to parenting time, the evaluator needs to conduct a risk assessment concerning harm to the child and to the child-parent relationship on the issue if parenting time should be very limited or restricted, and to what degree.

Caveat 4: When there are allegations of potential harm to the child related to parenting time, the evaluator needs to consider options for managing both the risk to the child and to the parent-child relationship. This is a balancing process, e.g., the case of overnight care by fathers.

Caveat 5: If the custody evaluator is conducting a parental gatekeeping analysis and with the gatekeeping model, then the meaning of the term restricting parenting time needs to be defined clearly.

Caveat 6: When evaluators reference the professional literature as part of the justification analysis they need to do so in a balanced and accurate way, including discussing alternative views or schools of thought on the given issue, or alternative forensic frameworks to consider (Emery, Holtzworth-Munroe, Johnston, Pedro-Caroll, Pruett, Saini & Sandler, 2016). The forensic approach requires custody evaluators to consider alternative hypotheses on the salient issues and to use a multi-method, multi-source approach (Martindale & Gould, 2004).

Suggested Forensic Protocol

1. General: describe the key facts, case context, circumstances, accurate description of relevant professional literature and research, and present a practical analysis for crafting and implementing a parenting plan in light of the allegations of potential harm to the child.

2. Measure/Assess legal factors and provisions in statutes, case law, and court rules that would be relevant to the gatekeeping issues (e.g., overnights, IPV, parent mental disorder, substance abuse). Typically, this would consist of best interest factors (and relocation factors in a relocation dispute). It might include the statutory definition of domestic violence.

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3. Remember that the Justification Analysis for Restrictive Gatekeeping involves allegations of risk of harm to the child so the alleging parent must describe the predicted harm with behavioral specificity. The evaluator then needs to investigate, describe the data, and present his or her analysis of the allegations risk of harm to the child.

4. Address specifically the nature of the concerns and allegations offered by “restricting parent.” Describe the “personal risk assessment” that the parent has implicitly or explicitly conducted. The restricting parent needs to be required “to show the sources and extent of the predicted harm.” The parent needs to explain why the lack of support and/or restrictiveness is justified.

5. Address specifically how the “restricted parent” responds to the allegations, including how to address and manage the alleged risk and the other parent’s concerns. Has the parent satisfactorily addressed a substance abuse problem? Are anger issues under control? Is a parent coach needed? Is the father amenable to gradually phasing in overnights for a young child?

6. Evaluator needs to do a risk assessment about the issues of concern. Risk and Protective Factors need to be identified. Utilize research-based factors and forensic models when possible. Risk and safety issues can be described. The goal should be to help develop a risk management plan as part of a recommended parenting plan.

7. Key variables and practical analysis: What are the key variables or factors to consider on the issue of each parent’s access and any practical considerations relevant to crafting the parenting plan? Quality of a parent’s past and current gatekeeping is one key variable. Research-based risk factors are key variables. Relocation cases require an extensive practical analysis. Creating a workable parenting time schedule for working fathers and very young children requires consideration of time availability.

8. Assess each parent’s level of psychological functioning as it relates to the salient issue of potential risk of harm.

9. Assess each parent’s credibility on the allegations and denial of allegations, and describe the process used for assessing credibility. This is complicated forensic task with a limited professional literature. For example, for allegations of IPV in the custody case, the only forensic model appears to be Austin (2000).

10. Have the parents adequately addressed ways or interventions to contain parental conflict and/or how to shield the children from being exposed to conflict?

11. Identify the contributions of both parents to creating risk of harm to the child. Unjustified restrictive gatekeeping creates a risk of “relationship harm” between parent and child, and “developmental harm,” e.g., Austin (2010), due to diminishing social capital available to the child.

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12. Based on careful forensic investigation, the facts, context, circumstances, professional literature, and a practical analysis can it be concluded that the restrictive parents’ allegations, assertions, and concerns are justified? Or, that it is a situation of justified restrictive gatekeeping, and therefore, Protective Gatekeeping that can be justified?

13. If the restrictive gatekeeping and the restrictive parent’s legal position on access and parenting cannot be justified, can it be concluded that the parent’s concerns are at least understandable? Then, how can this conclusion be translated to the recommended parenting plan? Interventions may still be necessary.

14. Communicate to the court to (1) explain why the restricting parent’s position and concerns constitute justified or unjustified restrictive gatekeeping; (2) provide specific recommendations to contain, manage, and reduce the risk of harm to the child, including if it is feasible that the harm can be appreciably managed and/or reduced or eliminated; (3) address a plan for how the restricted parent’s time and involvement could be increased over time, if that would be in the child’s best interests; (4) if the restrictiveness is based on age, developmental concerns, and/or the overnights issue with young children, then address the plan for the father to be substantially involved in short-run and more involved in the long-run (Deutsch et al., 2016).

15. Based on the investigation, facts, context, circumstances, and professional literature, conduct an analysis that differentiates restrictive gatekeeping from parental alienation. A restrictive legal position by a parent will very frequently be met by allegations of “alienation.” If the conclusion is that the parent has been engaging in parent alienating behaviors, then the recommendations on parenting time and intervention options should framed accordingly and to reflect the professional literature for possible interventions. Consideration of the hypothesis of “realistic estrangement” needs to be considered.

16. This generic forensic protocol for a justification analysis needs to be adapted to the context of and main issue in the case. These contexts will vary greatly in terms of level of risk and for what type of potential harm, and how amenable the situation is for risk containment. Common stated reasons for restricting parenting time concern:

Past harsh parenting; child abuse Allegations of child sexual abuse History intimate partner violence Overnight care by fathers with young and very young children Substance/alcohol abuse Relocation with the child

17. If the evaluator’s investigation leads to conclusions that the allegations of risk of or actual harm cannot be confirmed, or are possibly disconfirmed, and the restrictive, non-supportive parent continues to rigidly hold on to these beliefs, then determine what intervention options are available. It may be that parent who continues to be a “true believer,” and make allegations of abuse that have been found to be unjustified, he or she

27

needs to be told that he or she will possibly lose custody or have one’s parenting time restricted, if he or she cannot let go of these beliefs and move on to constructive co-parenting.5

Summary

The parental gatekeeping forensic model for application to child custody disputes

and custody evaluations was reviewed. The distinction between justified and unjustified

restrictive gatekeeping has been previously described (Austin et al., 2013b), but the

forensic process of a justification analysis had not yet been proposed or described. This

article discussed complexities and nuances of what is involved in a justification analysis

as part of applying the gatekeeping model. It is suggested that evaluators need to take a

systematic approach to this analysis when one of special and complex issues are salient in

the form of allegations of harm, e.g., intimate partner violence, relocation, or child sexual

abuse, as recommended by the Model Standards (AFCC, 2006/2007). Part of this

systematic approach is for the evaluator to describe the approach to examining the

parent’s justification for a restrictive position.

An extensive generic forensic protocol for gatekeeping justification analysis was

presented as a “best practices” approach. It is designed as a “template” to draw upon for

adaptation to specific forensic contexts involving protective gatekeeping and allegations

of harm to the child. Evaluators can consider the suggested elements in the protocol for a

gatekeeping justification analysis. When a salient issue of potential harm is present, e.g.,

allegations of IPV, then the justification can focus on investigating that issue and

translating the conclusions to the issue of protective gatekeeping and what is needed in a

5 The author has seen many cases where the custody evaluator and judge are ready to move quickly to change custody when this is the case, without providing for less extreme interventions and giving the restrictive parent an opportunity to make behavioral changes and to begin constructive co-parenting. This seems to occur not infrequently in cases involving allegations of child sexual abuse.

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parenting plan. This analysis includes how to manage the potential of risk of harm to the

nonresidential parent-child relationship should there need to be restrictions placed on

parenting time.

Practice Tips

1. Parental gatekeeping as a concept and forensic evaluation model will be relevant in all litigated child custody disputes for the analysis of the quality of the co-parenting relationships.

2. A protective gatekeeping analysis may be indicated in all cases involving assertions and legal position on the need to restrict the other parent’s access to and involvement with the child.

3. Protective gatekeeping behaviors and a parent’s legal position to restrict parenting time call for a Justification Analysis by a custody evaluator to communicate with the court.

4. The generic Justification Analysis protocol is a best practices one to guide evaluators in adapting the analysis to specific forensic contexts that involve allegations of the risk of harm.

5. Forensic contexts and issues that call for a protective gatekeeping analysis include allegations of intimate partner violence, harsh parenting, child sexual abuse, parent alienating behaviors, relocation, and attempts to deny overnight care by fathers with young children.

6. Protective gatekeeping proposals by one parent often will be conditional and allow for more liberal access arrangements with interventions to manage the risk and to improve the quality of parenting.

Key Words

Protective Gatekeeping, Restrictive Gatekeeping, Justification Analysis,

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