The NJSBA's Family Law Section examines the issue of parental alienation in a series of articles included in its latest publication. From caselaw to helping kids, this is a must-read. The edition provides a caselaw overview on the issue; a look at its psychological underpinnings; and practice and litigation guidance. Here's a look at Litigating the Parental Alienation Case.
Editor's note: The New Jersey Family Lawyer is a publication of the Family Law Section. The publication is a benefit of membership in the section. To join the section, call Member Services 732-249-5000.
By Sheryl J. Seiden
When a client consults with legal counsel and advises that his or her children are being alienated by the other parent against him or her, one must first assess whether the case is one of parental alienation or estrangement. This is the essential question presented in parental alienation cases. Parental alienation is a serious problem that plagues families, particularly when parents are involved in divorce proceedings, where one parent successfully manipulates a child against the other parent. Parental alienation is also a term that has been overused and misused in family law practice. Estrangement, by contrast, is a term used to describe a situation where a child’s disrespect, hatred, and/or refusal to exercise parenting time with a parent is justified. Often, these cases have elements of both alienation and estrangement.
Parental alienation cases present some of the most toxic custody cases in family law practice. They can consume considerable time for an attorney and can be emotionally difficult for the client and for the lawyers as well. Litigation of a parental alienation case requires significant resources, knowledge and patience.
Filing the Initial Motion in the Parental Alienation Case
When presented with a case of parental alienation, time is of the essence. The longer the parental alienation continues, the worse the relationship between the alienated parent and the children becomes. In a pre-judgment divorce matter, the time between the filing of a complaint for divorce and the adjudication of a trial will be significant. In a post-judgment matter, the time from the filing of a motion to the adjudication of a plenary hearing can also be significant. Thus, addressing the parental alienation issue in either context must be expedited.
To bring the issues of parental alienation to the attention of the court, the alienated parent should consider immediately filing a motion to commence steps to repair the relationship between the children and the alienated parent. The prayers for relief in the notice of motion should focus the court on addressing the alienation. The motion should include the following requests: 1) uninterrupted parenting time with the children, 2) no contact with the children by the favored parent during the alienated parent’s parenting time, 3) an evaluation by a forensic psychologist or psychiatrist who has expertise addressing parental alienation issues, 4) that the children ultimately be enrolled in a program designed to remedy parental alienation, and 5) counsel fees.
Shared and/or Extended Parenting Time
In cases where the divorce matter is first commencing, the motion should request shared joint legal and physical custody of the children pendente lite. Uninterrupted time with the children outside the presence of the alienating parent is essential to provide the alienated parent with the opportunity to repair the relationship with the children. In her study of adult children of parental alienation children, Amy Baker, Ph.D., a well-known author and developmental psychologist, found that creating opportunities for the child to spend time with the rejected parent is key: “[Alienated] children need an excuse to spend time with the targeted parent in order to avoid the wrath of the alienating parent.”1
If the parties are both living in the marital residence, consider requesting a nesting arrangement where the parties alternate use of the marital residence during their parenting time. While it would be ideal for the alienated parent to have more than 50 percent of the time with the children, often that is not realistic. In such a case, the attorney for the targeted parent should request a shared physical custody arrangement plus extended time with the children during summers and/or extended vacations to provide him or her the opportunity for uninterrupted time with the children. It is during this uninterrupted parenting time that the alienated parent and the children can reunite and rebuild the bond that was broken by the alienation.
Change in Custody
In the most true, severe cases of parental alienation, prohibiting contact with the children by the alienating parent during the targeted parent’s parenting time may not be enough. Or, in some circumstances, it might not be an option if the children are old enough to refuse to go with the targeted parent. In such severe cases, a temporary or permanent change of custody might be necessary. If a parental relationship causes emotional or physical harm to the child, a court is authorized to restrict or even terminate custody.2 Although this might sound extreme, mental health professionals have found that “in the severest of cases which may present as such at the outset or later after various efforts to intervene have failed, custody reversal may be the least detrimental alternative for the child.”3
The idea of ‘harm’ to a child through alienation was explored in a 2012 unpublished Appellate Division decision in which the court affirmed Judge Bonnie J. Mizdol’s holding that a mother’s false allegations of child sexual abuse on behalf of the father, and her convincing the child that the allegations were true, constituted abuse and neglect.4 At the trial level, Judge Mizdol held that this behavior by the mother did constitute abuse and neglect, and modified residential custody to permit the child to be with the father to avoid further injury to the child. The Appellate Division affirmed.
No Contact Provision
When the alienated parent has parenting time with the children, it is imperative that the alienating parent have no contact with the children. While it is quite customary to permit one parent to have constant contact with the child during another parent’s parenting time via telephone calls, text messages, email, or Skype, in cases addressing parental alienation issues such contact should be discouraged. The rationale is that a child alienated from the rejected parent will be ‘uncomfortable’ with the rejected parent, and will seek the approval of the favored parent.
A truly alienated child will be pressured by the favored parent and may feel the need to ‘report’ the rejected parent’s shortcomings observed during the child’s time with the rejected parent. Experts addressing parental alienation agree it is imperative for the rejected parent to remain in contact with the child without the influence from the favored parent.5 It is for this reason that limiting the contact between the child and the favored parent during the rejected parent’s parenting time will assist in relieving some of the pressure on the child and will allow the rejected parent to rebuild the relationship. A court order that prohibits such contact can take the pressure off child victims of parental alienation. A motion should include a request for this relief in parental alienation cases.
Parental Alienation Programs
It is important for the children and the alienated parent to be enrolled in an appropriate program to address the alienation and reunify their relationship. While it is unusual for a court to order the children to attend these programs on the initial motion, it is important to include a request that the children and the alienated parent attend such a program as part of the relief requested. As detailed below, the filing of the motion will likely lead to the appointment of a custody expert and scheduling of a trial. Only after the court determines that parental alienation has occurred will it require the children and parent(s) attend a reunification program.
It seems logical that while the process is ongoing, the children should be enrolled in therapy to address their issues with the other parent. However, therapy is contra-indicated in these cases. Much has been written about what types of therapy are available for children who are rejecting their parents. The late well-regarded psychiatrist Richard Gardner cautioned that family therapy interventions are extremely delicate, “a therapist working with a [parental alienation] case often only has one chance to be effective.”6 Gardner found that such interventions are often ‘no-win’ if they involve trying to: 1) reason with the rejected child and convince him or her that the alienated parent really isn’t that bad, 2) confront the rejecting child with the reality that the targeted parent has not done anything wrong, 3) directly, inadvertently, undermine the coalition between the child and the alienating parent by questioning or challenging the charges or beliefs expressed by the alienating parent, and/or 4) challenge the alienating parent in a direct confrontation of power struggle.7
Canadian research psychologists Barbara Jo Fidler and Nicholas Bala further caution that “therapy, as the primary intervention, simply does not work in severe and even in some moderate alienation cases...therapy may even make matters worse to the extent that the alienated child and favored parent choose to dig in their heels and prove their point, thereby further entrenching their distorted views.”8
The counter-productivity of therapy is particularly applicable to individual therapy for the children. Organizers of a study of 42 children from 39 families who were “resisting or refusing visitation during their treatment in the context of a custody or access dispute with an average duration of almost a decade” found that those “who had been forced by Court orders to see a successive array of therapists of reunification counseling were, as young adults, contemptuous and blamed the Court or rejected parent for putting them through this ordeal.”9
In this author’s experience, it is counterintuitive to the courts that therapy, particularly for a child, could be harmful or exacerbate the problem. However, much of the scientific data supports this theory. Therefore, on the initial application, an attorney for an alienated parent should bring the high risk of harmful effect of individual therapy on rejecting children to the court’s attention to defuse the court of the presumption that therapy could assist the family while the application is pending when, according to the scientific data, the opposite is likely true.
A court met with conflicting certifications from each parent will have great difficulty adjudicating the application. The alienating parent will claim the behavior of the children toward the other parent is justified, while the targeted parent will claim the favored parent’s alienation causes the children’s rejecting behavior. How, then, can a court decide which parent to believe? Rule 5:8-6 requires the court to conduct a plenary hearing where it finds that a genuine and substantial issue of custody of children exists. This hearing shall occur within six months after the last responsive pleading is filed.
The court may appoint a custody expert (or each party may retain their own custody expert), in which case a trained mental health professional will assist the court by opining upon the reasons for the children’s behavior. If the alienated parent plans to hire his or her own custody expert, he or she should consider consulting with that expert prior to the filing of the motion. The expert can provide the targeted parent with guidance regarding any appropriate programs for the family to attend. He or she can also assist in crafting the notice of motion to ensure the rejected parent requests the appropriate safeguards from the outset of the case. It is important when selecting a custody evaluator that the evaluator be a psychologist or psychiatrist with experience in parental alienation, who will interview collaterals (e.g., family members, teachers, friends, and the like) to compare the historical relationships of the parents—and grandparents, in extreme cases—and the children to the current relationships. These qualifications are also critical for any expert called upon to opine on whether the case is one of parental alienation or estrangement.
Enforcing the Court’s Order
Obtaining an order forbidding contact by the favored parent during the rejected parent’s parenting time is difficult, and it is only the tip of the iceberg. Once an order is entered, the court is next faced with the question of how to enforce the order. The courts do have some remedies available. For example, a line of New Jersey cases dating back to 1909 state a court may decrease child support for a custodial parent to force that parent to comply with an order for unfettered parenting time for the rejected parent.10
In addition, the Baker literature found sanctions and other consequences can help encourage the child to attend court-mandated parenting time with the rejected parent, because the child will have “an excuse (to help the alienating parent avoid the sanctions) and can, therefore, be freed from the responsibility of appearing to choose or want this time with the targeted parent.”11
Obtaining an order to allow unfettered parenting time for the rejected parent in parental alienation cases is important. Aggressively enforcing such an order in these cases is even more important. An alienated child will be more likely to comply with a parenting schedule when he or she understands it is a directive from the court. This provides an excuse for the child to exercise parenting time with the disfavored parent and gives him or her a means of complying without betraying the favored parent.
Bifurcation under Rule 5:7-8; Expedited Trial under Rule 5:8-6; Financial Issues
In divorce proceedings involving parental alienation, it is critical to address the custody and parenting time issues immediately. However, adjudication of a complex matrimonial matter often takes more than a year from the date the complaint for divorce is filed. The alienated parent should consider asking the family presiding judge to bifurcate the custody and parenting time issues from the financial issues. This requires a demonstration of extraordinary circumstances.12 Rule 5:7-8 permits bifurcation of the trial of the custody dispute from the trial of disputes over support and equitable distribution “only with the approval of the Family Presiding Judge, which approval shall be granted only in extraordinary circumstances and for good cause shown.”13 Thus, a lawyer faced with a parental alienation case is encouraged to argue parental alienation as an extraordinary circumstance adversely affecting the wellbeing of the rejecting children and the alienated parent.
In requesting the matter be bifurcated, practitioners should also cite Rule 5:8-6 for authority to expedite the matter. Rule 5:8-6 provides where custody is a genuine and substantial issue, a hearing date must be set no later than six months after the filing of the last responsive pleading.14 Moreover, “in order to protect the best interests of the children, [the court may] conduct the custody hearing in a family action prior to a final hearing of the entire family action.”15 Therefore, there is ample opportunity to argue the custody matters in parental alienation cases be expedited.
Combining these two concepts in the recent unreported Appellate Division case M.A. v. A.I., the trial court bifurcated the custody and financial issues in a divorce matter to permit the court to address the custody issues on a more expedited basis.16
In post-judgment parental alienation cases, advocating to protect the best interests of the children supports a request for expedition of the plenary hearing.
The notice of motion provides the client’s wish list for what he or she believes is needed to address and repair the damage caused by the parental alienation. Several of these provisions may require a plenary hearing to be adjudicated. At the hearing, the attorney for the rejected parent should focus on demonstrating the normal relationship that existed between the targeted parent (and that parent’s family) and the children, and how that relationship has dissipated or become damaged over time. Often with parental alienation cases, the children not only reject the disfavored parent, but they also reject the disfavored parent’s family. A child who had a great relationship with his or her grandparents on the targeted parent’s side often also is taught to hate those grand-parents as a product of the alienation. To establish that this rejection is not justified, demonstrating the strength of the relationship before the acts of alienation began is essential. In order to demonstrate the deterioration of the relationship, both the parent, the parent’s family and close family friends can be called as witnesses at trial.
The custody evaluator can also be called as an expert if his or her report is helpful to establish the alienation. Not only should the custody evaluator’s opinion regarding the alienation be testified to but his or her suggestions for remedying the alienation should be explored.
Several of the programs that provide reunification for the family may require strict orders to admit the children into their programs. If this is the case, consider calling a professional from the reunification program as a fact witness to educate the court regarding the strict provisions the program requires and explain the rationalization for each of these provisions. For example, one of the reunification programs requires that the alienated parent have sole legal and physical custody of the children, with no contact for the other parent for at least 90 days. When presenting this requirement to the court, a court may be quick to reject it provision and, in doing so, inadvertently disqualify the family from the reunification program. By calling a professional from the program to explain the basis for these requirements, the court can understand the basis for these provisions, which the court may then be more willing to enter as part of an order.
In sum, as an advocate for the alienated parent, by filing a motion early in the case, one can shape the direction of the litigation while focusing the court on the remedies that are critical to repair the relationship. It will take time to achieve the goals of the alienated parent, but with focus, dedication, and education, one can help rebuild a family destroyed by parental alienation, one block at a time.
Sheryl J. Seiden is the founding partner of Seiden Family Law, LLC.
1. Amy J. L. Baker, Adult Children of Parental Alienation Syndrome: Breaking the Ties That Bind at 233 (W.W. & Norton Company 2007).
2. Wilke v. Culp, 196 N.J. Super. 487 (App. Div. 1984).
3. Barbara Jo Fidler and Nicholas Bala, Children Resisting Postseparation Contact with a Parent: Concepts, Controversies and Conundrums, 48 Fam. Ct. Rev. 1, 35 (2010).
4. N.J. Div. of Youth & Family Servs. v. C.O., 2012 N.J. Super. Unpub. LEXIS 2591, 2012 WL 5907077 (App. Div. Nov. 27, 2012)
5. See, e.g., Richard A. Warshak, Ph.D., Divorce Poison at 50 (HarperCollins Publishers, Inc. 2010).
6. Richard A. Gardner, Richard S. Sauber and Demosthenes Lorandos, The International Handbook of Parental Alienation Syndrome (Charles C. Thomas Publisher, Ltd. 2006).
8. Fidler and Bala, supra at 11.
9. Janet R. Johnston and Judith Roth Goldman, Outcomes of Family Counseling Interventions with Children who Resist Visitation: An Addendum to Friedlander and Walters, 48 Fam. Ct. Rev. 1, 112-113 (2010).
10. See, e.g., Von Bernuth v. Von Bernuth, 76 N.J. Eq. 200 (1909); Daly v. Daly, 39 N.J. Super. 124 (1956); Smith v. Smith, 85 N.J. Super. 462 (1964).
11. Baker, supra at 233.
12. See New Jersey Court Rule 5:7-8.
13. New Jersey Court Rule 5:7-8.
14. New Jersey Court Rule 5:8-6.
15. Id., see also Leventhal v. Leventhal, 239 N.J. Super. 370 (Sup. Ct. Chan. Div. Family Part Bergen Co. 1989) (recognizing that although New Jersey generally disfavors bifurcation in family matters, custody hearings may be bifurcated to ensure that the best interests of the children are achieved).
16. M.A. v. A.I., A-4021-11T1, 2017 N.J. Super. Unpub. LEXIS 818, 2017 WL 1229946 (App. Div. April 4, 2017).