In child custody proceedings, New York courts are charged with making critical, and emotional, choices about children’s lives. These choices include where a child will live, who will make decisions about a child’s medical and academic needs, and the level of access that the non-custodial parent will have to his or her own child. The standard for child custody determinations is highly subjective; N.Y. Domestic Relations Law §240(1)(a) provides that courts “shall enter orders for custody. . .as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child[.]” (The only restriction provided by the statute is that no court shall make an order providing for visitation or custody to a person who has been convicted of murder in the first or second degree, or of an offense in a foreign jurisdiction which would constitute said crimes in New York, where the victim was a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child who is the subject of the proceeding. N.Y. DRL §240(1)(a)(1-c).)
Allegations of parental alienation make the task even more difficult for New York’s jurists. Is the child a victim of abuse, or is one parent fabricating allegations to force the other parent out of the child’s life? Does the child have valid reasons to oppose any contact with the non-custodial parent, or is the opposition borne of manipulation by the custodial parent?
This article explores the means by which New York courts analyze these important and emotional questions. Specifically, this article will explore: (1) the definitions of parental alienation, (2) the sets of facts that courts use to conclude that parental alienation exists, (3) the remedies after courts enter findings of parental alienation, and (4) the role of the attorney for the child.
II. Defining Parental Alienation
A. Dr. Richard Gardner, and “Parental Alienation Syndrome”
Psychiatrist Richard Gardner defined Parental Alienation Syndrome (PAS) as: The programming of the child by one parent, into a campaign of denigration directed against the other. And the second component is the child’s own contributions that dovetail and complement the contributions of the programming parent. People v. Fortin, 184 Misc.2d 10, 12 (N.Y. Country CT.2000).
In other words, Dr. Gardner defined PAS as a disorder where: (1) a parent programmed a child to denigrate the other parent, and (2) the child contributed to that denigration, complementing the efforts of the programming parent.
PAS is not recognized as a valid medical syndrome by the American Medical Association, or the American Psychological Association. In addition, PAS is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM). Dallas, S.J. (1999). “Parental Alienation Syndrome: Is it scientific?” In E. St. Charles & L. Crook (Eds.), Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our Children Our Children Charitable Foundation. New York courts have disallowed expert testimony regarding PAS, holding that the evidence was insufficient in those cases to establish that PAS is generally accepted in the relevant scientific communities. People v. Fortin, 289 A.D.2d 590 (2d Dep’t 2001); People v. Loomis, 172 Misc.2d 265 (1997).
PAS is highly controversial, as the American Psychiatric Association (APA) considers its addition to the DSM-V in May 2013. Lithwick, Dahlia. “Mommy Hates Daddy, and You Should Too.” Slate.com, May 17, 2011. The National Organization for Women (NOW) advocates against the inclusion of PAS in the DSM-V, or its consideration in custody cases. Letter from Terry O’Neill, NOW President, to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the American Psychiatric Association (APA), dated April 13, 2010. See also Weiser, Irene. “The Truth About Parental Alienation.” Stopfamilyviolence.org, February 23, 2007. In a letter to the Childhood and Adolescent Disorders Work Group of the APA, the President of NOW, Terry O’Neill, argued that abusive parents use allegations of parental alienation to discredit parents who are trying to protect their children from further abuse. Letter from Terry O’Neill to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the APA, dated April 13, 2010. She also stated that PAS fails scientific muster, as it was not subjected to empirical studies or peer review. See id. Furthermore, Ms. O’Neill said that acceptance of PAS would allow perpetrators of domestic violence to argue that their victims’ responses are pathological. Ms. O’Neill asserted that legitimizing PAS could even help abusive parents to gain custody of their children. Id.
Dr. William Bernet, M.D., is the leading voice supporting inclusion of Parental Alienation Disorder (PAD), or Parental Alienation Relational Problem (PARP) in the DSM-V. Bernet, William, von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) ‘Parental Alienation, DSM-V, and ICD-11’, The American Journal of Family Therapy, 38: 2, 76-187. Dr. Bernet proposes using diagnostic criteria based partially upon PAS as the criteria to diagnose PAD or PARP.
The proposed criteria for PAD are as follows, as stated in Appendix A of the Bernet article:
A. The child – usually one whose parents are engaged in a hostile divorce – allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses visitation or parenting time with the alienated parent.B. The child manifests the following behaviors:
(1) a persistent rejection or denigration of a parent that reaches the level of a campaign
(2) weak, frivolous, and absurd rationalizations for the child’s persistent criticism of the rejected parent.
C. The child manifests two of the following six attitudes and behaviors:
a. Lack of ambivalence
b. Independent-thinker phenomenon
c. Reflexive support of one parent against the other
d. Absence of guilt over exploitation of the rejected parent
e. Presence of borrowed scenarios
f. Spread of the animosity to the extended family of the rejected parent.
D. The duration of the disturbance is at least 2 months.
E. The disturbance causes clinically significant distress or impairment in social, academic (occupational), or other important areas of functioning.
F. The child’s refusal to have visitation with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.
Dr. Bernet argues that inclusion of such disorders in the DSM-V would enable better study and treatment of parental alienation. He also asserts that inclusion would prevent abusive parents and unethical attorneys from misusing parental alienation in custody disputes. Bernet, William , von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) ‘Parental Alienation, DSM-V, and ICD-11’, The American Journal of Family Therapy, 38: 2, 82.
Joseph E. Cordell, Esq., Principal Partner of Cordell & Cordell, also argues that some parents seek orders of protection, based upon abuse allegations, as “tactical nuclear weapons” in their divorce cases. Mr. Cordell says that these parents make abuse allegations in order to gain exclusive possession of the marital home, and sole custody of the children, by obtaining orders of protection against the other parent. Cordell, Joseph E. “Order of Protection: And Justice For All?” Huffington Post, September 23, 2011.
At present, the general consensus among jurists is that PAS is not generally accepted in the scientific community, and is therefore inadmissible in court proceedings. Fortin, 289 A.D.2d 590; Loomis, 172 Misc.2d 265. The National Council of Juvenile and Family Court Judges recommends that courts deny applications by litigants to introduce expert testimony regarding PAS. National Council of Juvenile and Family Court Judges. “Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide.” (2006) p. 24.
B. The facts-based inquiry regarding parental alienation
Courts generally engage in an intensive, facts-based inquiry to determine the legitimacy of allegations of parental alienation, without mentioning PAS. Parental alienation encompasses a wide variety of behaviors used by one parent to interfere with the other parent’s relationship with their child-in-common.
Courts often find parental alienation where a parent disparages the other parent to, or in the presence of, the children. Anthony MM v. Jacquelyn NN, 91 A.D.3d 1036, 1037 (3d Dep’t 2012); Lovitch v. Lovitch, 64 A.D.3d 710, 712 (2d Dep’t 2009); Usack v. Usack, 17 A.D.3d 736, 738-39 (3d Dep’t 2005); Young v. Young, 212 A.D.2d 114, 116 (2d Dep’t 1995); Lauren R. v. Ted R.., 27 Misc.3d 1227A (2010); SMB v. DRB, 17 Misc.3d 1132A (2007). Another ground for a finding of parental alienation is interference with the non-custodial parent’s visitation. Jones v. Leppert, 75 A.D.3d 552, 553 (2d Dep’t 2010); Lovitch, 64 A.D.3d at 712; Usack, 17 A.D.3d at 738-39; Kershaw v. Kershaw, 268 A.D.2d 829, 830 (3d Dep’t 2000); Lauren R.., 27 Misc.3d at 1227A; SMB, 17 Misc.3d at 1132A. Further grounds include relocation with the child or children, without consent or a court order, Ortega-Bejar v. Morante, 81 A.D.3d 962, 962 (2d Dep’t 2011), and discussion of the case with the child or children. T.F. v. F., 148 A.D.2d 449, 451 (2d Dep’t 1989).
A common ground for a finding of parental alienation is fabrication of abuse or neglect allegations against the other parent. See Anthony MM, 91 A.D.3d at 1037; Martinez v. Hyatt, 86 A.D.3d 571, 571 (2d Dep’t 2011); Sloand v. Sloand, 30 A.D.3d 784, 785-86 (2d Dep’t 2006); Amanda B. v. Anthony B., 13 A.D.3d 1126, 1127 (4th Dep’t 2004); Young, 212 A.D.2d at 116; Lauren R.., 27 Misc.3d at 1227A. Where one parent accuses the other of abuse or neglect against a child-in-common, this creates a volatile situation for jurists presiding over custody cases.
C. The precarious situation where a parent reports abuse or neglect by the other
A difficult situation arises where a parent discovers evidence that the other parent is abusing or neglecting their child-in-common. Aside from the inherently painful nature of the situation, the parent must make a difficult choice about how to proceed in court.
A parent has a legal responsibility to protect a child from abuse or neglect from the other parent. If a parent fails to fulfill that duty, the court can find that the parent abused or neglected the child, by failing to protect the child from the abuse or neglect. N.Y. Family Court Act §§1012(e) and (f); The Matter of Karen BB and Another, 216 A.D.2d 754 (3d Dep’t 1995); The Matter of Alan G., 185 A.D.2d 319 (2d Dep’t 1992); The Matter of Beverly WW, 159 A.D.2d 802 (3d Dep’t 1990); The Matter of Glenn G. and Another, 154 Misc.2d 677, 688 (1992). In contrast, if a custodial parent manufactures allegations that the non-custodial parent abused or neglected the child, the court may change custody based upon parental alienation. Anthony MM, 91 A.D.2d at 1037-38; Martinez, 86 A.D.3d at 571; Sloand, 30 A.D.3d at 785-86; Amanda B., 13 A.D.3d at 1127-28; Young, 212 A.D.2d at 116; Lauren R., 27 Misc.3d at 1227A.
Where a custodial parent accuses a non-custodial parent of abuse or neglect, the non-custodial parent’s defense will generally be that the custodial parent manufactured the allegations in order to alienate the child or children. Therefore, where a custodial parent seeks judicial intervention to protect a child from the other parent, there lies a danger that the court will credit the non-custodial parent’s version, and change custody. On the other hand, if the custodial parent fails to act against an allegedly abusive or neglectful non-custodial parent, the custodial parent faces the danger of a judicial finding that such inaction itself constituted child abuse or neglect.
D. “Bridget’s Law”
To assist parents seeking to protect their children, in 2008, Governor Paterson signed “Bridget’s Law,” which provides that:
If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation, or contact, based solely on that belief or the reasonable actions taken based on that belief. N.Y. Domestic Relations Law §240(1)(a). See also Stashenko, Joel. “New Law Shields ‘Good Faith’ Abuse Accuser in Custody Cases.” New York Law Journal. September 9, 2008, p. 1.
In theory, the law addresses the predicament that a custodial parent faces when confronted with evidence that the non-custodial parent’s behavior endangers the child. Nevertheless, it is unlikely that the law will result in a drastic change. In order to be protected by Bridget’s Law, the court must find that the accuser-parent acted in good faith. Because the parents likely had a tumultuous relationship prior to the accusations of abuse or neglect, the accused parent will almost invariably contend that the other parent acted in bad faith. The accuser-parent will face the same possibility that the court credits the other parent’s version, and suffer the same consequences as a result.
III. Remedies after a finding of parental alienation
After a court enters a finding of parental alienation by a custodial parent, a common remedy is for the court to change custody. Anthony MM, 91 A.D.3d at 1038; Martinez, 86 A.D.3d at 572; Ortega-Bejar, 81 A.D.3d at 963-64; Jonex, 75 A.D.3d at 553; Lovitch, 64 A.D.3d at 711; Frey v. Ketcham, 57 A.D.3d 543, 543-44 (2d Dep’t 2008); Sloand, 30 A.D.3d at 784, 785-86; Amanda B., 13 A.D.3d at 1127; Bobinski, 9 A.D.3d at 441-42; Young, 212 A.D.2d at 125. A change of custody should not be issued “solely as a means for punishing a recalcitrant parent.” Lauren R., 27 Misc.3d at 1227A. However, parental alienation is an act considered inconsistent with the best interests of the child, which raises a “strong probability that the offending party is unfit to act as a custodial parent.” Young, 212 A.D.2d 114, 115. The court may also issue an order that the offending party receive supervised visitation, and participate in therapy. Zafran v. Zafran, 28 A.D.3d 753, 754 and 756 (2d Dep’t 2006). Where the court finds that the custodial parent is responsible for alienating the child from the non-custodial parent, the court may, short of changing custody, award expanded visitation to the non-custodial parent. Goldstein v. Goldstein, 68 A.D.3d 717, 720 (2d Dep’t 2009).
Where a court finds that a custodial parent has wrongfully interfered with or withheld visitation provided by a court order, the court may suspend alimony or maintenance, or cancel arrears that accrued during the time that visitation was being interfered with or withheld. N.Y. Domestic Relations Law §241. However, interference with visitation cannot serve as a defense in an application to enforce payment of child support, and cannot constitute grounds for cancellation of child support arrears. Id.
While parental alienation cannot serve as a ground to cancel child support obligations retroactively, courts have suspended child support obligations prospectively, upon a finding that the custodial parent deliberately interfered with the relationship between the child and the non-custodial parent. Colicci v. Ruhm, 20 A.D.3d 891, 891-92 (4th Dep’t 2005); Usack v. Usack, 17 A.D.3d 736, 737-38 and 739-40 (3d Dep’t 2005); Hiross v. Hiross, 224 A.D.2d 662, 663 (2d Dep’t 1996); SMB, 17 Misc.3d at 1132A. In The Matter of F.S.-P. v. A.H.R., Nassau County Family Court held that a non-custodial parent can invoke parental alienation as a defense where the custodial parent seeks an initial child support order. 17 Misc.3d 390, 393 (2007). A parent who seeks suspension of child support based upon parental alienation must demonstrate that the custodial parent deliberately interfered with the parent-child relationship. Foster v. Daigle, 25 A.D.3d 1002, 1004 (3d Dep’t 2006); Hiross, 224 A.D.2d at 663. Furthermore, the Court cannot impose this remedy if the record establishes a danger that the child will become a public charge as a result. Usack, 17 A.D.3d at 739; SMB, 17 Misc.3d at 1132A.
Other remedies for parental alienation include criminal liability for custodial interference (N.Y. Penal Law §§135.45 and 135.50), a tort action for custodial interference, and orders of protection. N.Y. Domestic Relations Law §240, Lauren R., 27 Misc.3d at 1227A. Where the court finds that acts of parental alienation violate prior court orders, the court may also incarcerate the offending party. N.Y. Judiciary Law §§750 and 753; see also Lauren R., 27 Misc.3d at 1227A.
IV. The Role of the Attorney for the Child
In child custody proceedings, New York State courts have the authority to appoint attorneys to represent children “when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child.” N.Y. Family Court Act §249(a).
On October 17, 2007, the Chief Judge of the State of New York Judith S. Kaye issued Rule 7.2, entitled, “Function of the attorney for the child.” Rule §7.2(d)(2) provides, in relevant part:
[T]he attorney for the child must zealously advocate the child’s position. . .If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.
If a parent successfully alienates a child from the other parent, it is clear that the child will wish to have a minimal relationship, or even no relationship, with the alienated parent. Therefore, under the Rules of the Chief Judge, it is likely that an attorney for the child will have to advocate for the court to issue as little parenting time as possible for the alienated parent. Family Court practitioners are aware that the position of the attorney for the child often carries significant weight. The requirement for direct advocacy by the attorney for the child may cause frustration among litigants who assert that the opposing party has alienated the children. As Rule 7.2 becomes more established, the bar should expect to see appellate cases, where aggrieved parents argue that courts gave undue weight to children’s attorneys who advocated the wishes of alienated children.
One could hardly think of a more important task for a judge than the task of deciding which parent should have custody of a child. Allegations of parental alienation make the task even more difficult.
Presently, the American Psychiatric Association is deciding whether parental alienation should constitute a disorder in the DSM-V. Is parental alienation a tool for abusive parents to obtain custody or their children, or is it a syndrome which merits scientific study, and treatment for its child victims? The APA’s decision will have critical consequences for the Family Court, and for the scores of children whose futures depend upon the decisions of Family Court judges.
Regardless of whether parental alienation is a mental disorder, courts constantly face allegations that litigants are engaging in behaviors designed to interfere with parent-child relationships. These same courts must then decide whether parental alienation exists, or whether the party asserting alienation is an abusive parent. These choices, based upon conflicting testimony and subjective determinations, make or break the lives of innocent children, who find themselves in the middle of a conflict between the two most important people in their lives.
Recent developments in the role of the attorney for the child complicate parental alienation cases. As attorneys for children advocate the wishes of their child-clients, alienated parents find themselves feeling more frustrated in their battles to maintain relationships with their children.
Parental alienation cases feature the most desperate litigants: parents willing to falsely accuse the other parent of child abuse, and abusive parents who try to bury the other parent for protecting the child. The devastating consequences of parental alienation cases remind members of the bar of the importance of serving as counselors, as well as advocates. If we successfully counsel our clients to put the children’s best interests at the forefront, we can make an immeasurable impact upon the lives of the children who depend upon the Family Court.