POST DIVORCE CHILD CUSTODY - PARENTAL ALIENATION

This case is worth a read. It is a post divorce custody matter involving the testimony of 4 experts. I only post the scholarly discussion on parental alienation.

J.F. v. D.F., NYLJ 12/27/18, Date filed: 2018-12-06, Court: Supreme Court, Monroe County, Judge: Justice Richard Dollinger, Case Number: 2012/01795:

"The Law of Parental Alienation in New York

Against this broad canvass of conflicting emotions among parents and children, this court acknowledges that the New York courts have accepted the notion of parental alienation as a factor in determining whether a change in circumstances exists. The judicial refrain is unmistakable: a concerted effort by one parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child, that it, per se, raises a strong probability that the interfering parent is unfit to act as a custodial parent. Matter of Avdic v. Avdic, 125 AD3rd 1534 (4th Dept 2015) (the court’s determination that the mother had engaged in parental alienation behavior raised a strong probability she is unfit to act as a custodial parent).6 The acknowledgment of this concept requires a more demanding definition than just the “unjustified frustration of the non-custodial parent’s access.”7 Vargas v. Gutierrez, 155 AD3rd 751, 753 (2nd Dept 2017). Parental alienation as a basis to alter parenting access is a relatively new concept in family law. The term was first coined in 1985 by a researcher who recorded impressions involving false allegations of child sexual abuse.8 These initial observations led to development of the still-controversial Parental Alienation Syndrome, a form of psychological, but non-sexual abuse. Id.9 When first articulated in New York, the concept was linked to a parent “programming” a child to make claims of sexual abuse. Karen B. v. Clyde M., 151 Misc2nd 794 (Fam. Ct. Fulton Cty 1991), affd sub nom Karen PP v. Clyde QQ, 197 AD2nd 753 (the trial court concluded that a parent was unfit by casting the false aspersion of child sex abuse and involving the child as an instrument to achieve his or her selfish purpose).10 Less than a decade later, a New York court found alienation without allegations of sexual abuse, but there was overwhelming evidence that one parent had virtually brainwashed the children:

In the instant case, the children do not want to visit with their father. With the passage of time, these children have become “staunch corroborators” of their mother’s ill opinion of the father. They call their father names, they make fun of his personal appearance, they treat him as though he were incompetent, and they speak of and treat his mother similarly…The mother’s view of the father has been completely adopted by the children and she has done nothing to promote their relationship with him. J.F. v. L.F., 181 Misc2nd 722 (Fam. Ct. Westchester Cty 1999). As the concept worked into New York law, the courts, without evidence of physical abuse or false reports of sexual abuse, required proof that a party “intentionally” engaged in conduct for the “sole purpose” of alienating the child. Smith v. Bombard, 294 AD2nd 673 (3rd Dept 2002). Trial courts held that occasional adverse statements, even made in the presence of children, and the occasional failure to communicate about scheduling treatment sessions, while deplorable behavior calculated to antagonize the other parent, did not countenance a finding of change of circumstances sufficient to change custody. F. D. v. P. D., 2003 NYLJ LEXIS 2057 (Sup. .Ct. Nassau Cty 2003) (both parties in this matter agree that there has been no interference with visitation). With respect to statements alleging abuse of the child, the court added:

This court finds that [the therapist] testified credibly and truthfully, and that in fact the Mother’s statements [regarding alleged abuse by the father] were made while the child was present. While this court does not countenance the Mother’s statements and deplores them, the statements on the several occasions testified to, did not result in any alienation of the child.

Id. at 9.The court concluded:

In this matter, although the Mother’s statements to [the therapist], in front of the child, are not to be countenanced and are never to occur again, nevertheless the court does not find that the Father has met his burden of proof with respect to change of circumstances. Regardless of the unfortunate statements by the Mother, the visitation with the Father has been unhampered, and in fact, the Father has had additional visitation in excess of that provided by the current so-ordered stipulation. The child further loves his Father very much, despite the Mother’s negative comments and apparent attempts to alienate the child on the several occasions the Mother made certain statements to [the therapist] in the presence of the child.

Id. at 11. While the court rejected a finding of parental alienation, the trend to allege alienation based on a pattern of intentional conduct involving statements and derogatory comments took hold in New York. The Family Court in Whitley v. Leonard, 5 AD3rd 825 (3rd Dept 2004) found alienation when a parent encouraged a child to negotiate changes in visitation directly with the father, denied the father an opportunity for visitation while she was away on vacation, failed to communicate with the father concerning the child’s problems at school, discussed court proceedings with the child, and promised the child that he would be returned to her custody. In addition, courts began to summarize parental alienation as a form of “brainwashing” of the child. Jennifer H. v. Paul F., 6 Misc3rd 1013 (A) (Fam. Ct. Suffolk Cty 2004). Throughout this process, the courts, as a sine qua non, have insisted on a finding of an actionable refusal or failure by the children to visit the targeted parent. Duzant-Forlenza v. Wade, 2009 NY Misc. LEXIS 6688 (Fam. Ct. Westchester Cty 2009).

One other precedent attracts interest because it was the basis for the court to admit testimony from the experts during the hearing. In Mastrangelo v. Mastrangelo, 2017 Conn. Super. LEXIS 226 (Sup. Ct. 2017), a Connecticut court held that even though the children were not seeing their father, the father’s conduct in seeking to establish parental alienation was not proven and what emerged was “a picture of two parents constantly in court over issues involving the children.” The court in Mastrangelo said that pursuing the alienation claim was part of the father’s “efforts to take the mother down.” In that case, three of the experts who testified here, also testified on behalf of the father in Connecticut. In addition, the “rejection” alleged by the father in Mastrangelo was complete in that the children were not seeing their father; a fact in stark contrast to the more-then-equal access that the father has in this instance. The decision in Mastrangelo, while not controlling, is instructive on several fronts. It demonstrates that alienation can be a two-way street. Excessive litigation based on a flimsy theory can be as alienating as any other strategy. The presence of the same three experts here — at a substantial cost by the father — suggests to the court that the parental alienation theory is a new tool in the “para-psychology-in-the-courtroom complex,” as part of a strategy to upend negotiated parenting agreements by the more aggressive and more moneyed spouse. Finally, in Mastrangelo concludes that even if there is proof “rejection” (lack of access by a parent), that fact alone does not lead to the conclusion of alienation.11 In this case, as noted throughout the opinion, there is no evidence of lack of access for this father to his children.

Other New York courts have expressed equal skepticism over the scientific validity of “parental alienation.” Matter of Montoya v. Davis, 156 AD3rd 132, 136 n.5 (3rd Dept 2017) (the appeal was concerned about the forensic evaluator having been deemed an expert in “parental alienation,” which is not a diagnosis included in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders and further noted that, in the criminal context, “parental alienation syndrome” has been rejected as not being generally accepted in the scientific community, citing People v. Fortin).12 Another New York court used a descriptive method to reference parental alienation:

Parental alienation has been described as the programming of the child/children by one parent, into a campaign of denigration against the other. The second component is the child’s own contributions that dovetail and complement the contributions of the programming parent. It is this combination of both factors that define the term parental alienation.

P.M. v. S.M., 17 Misc3rd 1122 (A) (Sup. Ct. Nassau Cty 2007); Zafran v. Zafran, 191 Misc2nd 60 (Sup. Ct. Nassau Cty 2002). See also Seetaram R. v. Pushpawattie M., 2018 NYLJ LEXIS 2069 (Fam. Ct. Queens Cty 2018) (parental alienation is where a custodial parent actively interferes with, or deliberately and unjustifiably frustrates, the non-custodial parent’s right of reasonable access).

Amidst the swirl of these increasingly more frequent cases, the concept of parental alienation remains controversial, both in psychological studies and the courts. In a widely-quoted study, a California law professor in 2001 commented: PAS as developed and purveyed by Richard Gardner has neither a logical nor a scientific basis. It is rejected by responsible social scientists and lacks solid grounding in psychological theory or research. PA, although more refined in its understanding of child-parent difficulties, entails intrusive, coercive, unsubstantiated remedies of its own. Lawyers, judges, and mental health professionals who deal with child custody issues should think carefully and respond judiciously when claims based on either theory are advanced. Although the use of expert testimony is often useful, decision-makers need to do their homework rather than rely uncritically on experts’ views. This is particularly true in fields such as psychology and psychiatry, where even experts have a wide range of differing views and professionals, whether by accident or design, sometimes offer opinions beyond their expertise. Lawyers and judges are trained to ask the hard questions, and that skill should be employed here. Burch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Family Law Quarterly 527, p.33 (2001). Another judge intoned in a Maryland family dispute:

I write separately to state my view that I consider the diagnoses of “parental alienation” or “parental alienation syndrome” (which, quite evidently, are the basis for Father’s appeal) to be based on novel scientific theories. Prior to admissibility, testimony on these subjects must be subjected to a Reed/Frye hearing to prove that such diagnoses are generally accepted in the relevant scientific community, a conclusion about which I have significant doubt. See Smith, Parental Alienation Syndrome: Fact or Fiction? The Problem with Its Use in Child Custody Cases, 11 U. Mass. L. Rev. 64 (2016) (collecting cases denying admissibility of diagnoses of parental alienation syndrome); Burch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527, 539 (2001-2002) (quoting Dr. Paul J. Fink, past president of the American Psychiatric Association: “[Parental Alienation Syndrome] as a scientific theory has been excoriated by legitimate researchers across the nation. Judged solely on [its] merits, [Parental Alienation Syndrome] should be a rather pathetic footnote or an example of poor scientific standards.”). Unless and until that happens, however, I would caution courts, lawyers, expert witnesses, and litigants not to use the terms “parental alienation” or “parental alienation syndrome” casually, informally, or as if they have a medically or psychologically diagnostic meaning that has not been established. Gillespie v. Gillespie, 2016 Md. App. LEXIS 1366, p.36 (Ct. Sp. App. Md. 2016) (Freidman, J., concurring).13 Despite these judicial misgivings expressed by others, there is no doubt that parental alienation exists.14 As one commentator noted:

Although PAS has generated much controversy in both the mental health and legal fields, there is little doubt that parental alienation exists, and has existed, for years. See, e.g., Fidler & Bala, Article: Children Resisting Postseparation Contact with a Parent: Concepts, Controversies, and Conundrums, 48 Fam. Ct. Rev. 10, n. 12 (2010) (noting that parental alienation “is not a new phenomenon”)…Young, Parent Trap, Parental Alienation Cases divide Scholars, Boise Weekly, January 2007 (“Whether or not a psychological ‘syndrome’ exists, parental alienation clearly does.”). As a news reporter glibly claimed, “Anybody old enough to drink coffee knows that embittered parties to divorce can and do manipulate their children.”

Vernado, Article: Inappropriate Parental Influence: A New App: A New For Tort Law and Upgraded Relief For Alienated Parents, 61 DePaul L. Rev. 113, n. 6 (2011). In this somewhat uncertain landscape, this court seeks a more demanding definition of parental alienation to more explicitly describe the concept of what constitutes “unjustified behavior.” To achieve this, the court borrows from a comparable tort-law cousin: the tort of intentional infliction of emotional distress, a concept in which an individual, as a consequence of certain directed behavior, caused harm to the emotional status of a second party. Howell v. New York Post Co., 81 N.Y.2nd 115 (1993). The tort of intentional infliction of emotional distress consists of four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Id. Simple word substitution — “parental alienation” for “emotional distress” — creates an equivalence between this tort designed to protect an individual’s emotional status and the family law concept to protect and preserve a parent’s relationship with their children.15 If the substitution works, then parental alienation consists of four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe alienation of any parent from a child; (iii) a causal connection between the alienating conduct and the child’s rejection of a parent; and (iv) severe parental alienation.” The resulting equivalence allows a more refined analysis of what “unjustified…frustration of access” means in the parental alienation context.

In reaching this equivalence, the court examines the nature of the conduct that is the first prong of this test. In intentional infliction of emotional harm, the standard of “extreme and outrageous conduct” is “strict,” “rigorous” and “difficult to satisfy” unless there is evidence of a prolonged “deliberate and malicious campaign of harassment or intimidation.” Nader v. General Motors Corp., 25 NY2nd 560, 569 (1970).Importantly, New York courts have recognized that alienating conduct by a parent must meet the family law equivalent of “extreme and outrageous” conduct that supports the tort of intentional infliction of emotional harm. In defining the conduct that constitutes parental alienation, the courts have broadly stated that the underlying conduct must be “so inconsistent with the best interests of the children.”16 Matter of Sanders v. Jaco, 148 AD3rd 812, 813 (2nd Dept 2017); Rosenstock v. Rosenstock, 162 AD3rd 702 (2nd Dept 2018) (absconding with the child as “inconsistent conduct”); Altieri v. Altieri, 156 AD3rd 667 (2nd Dept 2018) (false accusation of sexual abuse as “inconsistent conduct’). In short, the alleged alienating conduct must be more than minor parental mishaps — an isolated vulgarity, a missed communication or unreturned phone call on a child’s welfare, a disparaging comment about the other spouse’s significant other, a statement about “who loves you more,” questioning the ex-spouse’s judgment, an occasional complaint about inadequate support or the other parent’s reliability.17 While downplaying these incidents, this court concedes that a chorus of suspect behaviors — perhaps all of the above repeated over a prolonged period of time — might reach the “extreme and outrageous” threshold to justify a finding of alienation. In short, the alleged conduct to support a finding of parental alienation must “so” violate norms of proper parenting, age appropriate conversations with children and/or parenting conduct. This aspect of the analysis — determining the standards of parenting and when parent conduct sharply violates those valued intra-family standards — represents a serious challenge to the court, but one that this case demands be resolved.

When analyzed in this light, parental alienation, as a legal concept, requires (1) that the alleged alienating conduct, without any other legitimate justification, be directed by the favored parent, (2) with the intention of damaging the reputation of the other parent in the children’s eyes or which disregards a substantial possibility of causing such, (3) which proximately causes a diminished interest of the children in spending time with the nonfavored parent and, (4) in fact, results in the children refusing to spend time with the targeted parent either in person, or via other forms of communication."