Divorces can get ugly, feelings get hurt, and parents often feel validated when the children take sides. Unfortunately, one parent actively discouraging a child from having a loving and meaningful relationship with the other is extremely common. This is referred to as “parental alienation.”
Parental Alienation Syndrome (PAS) is a term first applied in the 1980s by Dr. Richard A. Gardner, Ph.D., a Columbia University-based psychiatrist, to describe a child’s pattern of negative behaviors toward the alienated (typically non-custodial) parent, seemingly without objective justification. Although PAS is not recognized in the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V), it has nevertheless been argued in Courts throughout the United States. Affected parents have organized national awareness groups and local support groups to address alienation (see below). At least one appellate court in New Jersey has held that parents may sue each other for money damages on the grounds of parental alienation when it is so egregious as to constitute the well-established civil claim known as intentional infliction of emotional distress (Segal v. Lynch, No. A-0805-08T2 (App. Div. Jan. 5, 2010)). The Court cited (a) abduction and (b) intentionally false allegations of sexual abuse as situations that might constitute intentional infliction of emotional distress.
Dr. Gardner defines PAS as a disorder occurring during a child-custody dispute in which the child engages in a campaign against one parent, with no apparent justification, as the result of brainwashing and indoctrination by a the other parent.
According to Dr. Douglas Darnall, Ph.D., signs of parental alienation include:
[Symptoms of Parental Alienation.]
Family courts in New Jersey have substantial experience in dealing with these issues. Having served as a law clerk to three Family Part judges in Somerset County, I was repeatedly confronted with parental alienation and had to advise the judges on how to deal with those claims. There are two basic issues that a Court must address in nearly every case of parental alienation: (1) deciding, in the face of conflicting testimony from the parents, whether parental alienation is actually occurring; and (2) where alienation is clearly taking place, what the Court should do about it.
Most lawyers and self-represented litigants fail to overcome the first hurdle. Proving parental alienation is an inherently difficult task. Many believe that a Court will consider their testimony at face value, feel shocked at the opposing party’s action, and take decisive action as a result (such as a change in custody). If you fall into that camp, I have some bad news: an immediate change of custody is unlikely. Your ex-spouse is likely to respond by categorically denying everything that you’ve asserted, and the Court is then placed in a precarious position. Courts in New Jersey are prohibited from deciding cases based on conflicting certifications. If there is a significant dispute over the facts, the Court is required to hold a trial. Family courts are widely understaffed and the burden presented by the number of divorcing litigants can be overwhelming. Judges try to avoid holding trials except when absolutely necessary. As a result, you need to gather solid proof.
Notwithstanding, “unlikely” does not mean “impossible.” As a practice tip, always request a change in custody, but argue in the alternative that the Court should take some more conservative action. This gives the judge the ability to do one, both, or either. If you only ask for a change of custody, your request may be denied entirely and Courts are generally reluctant to order relief that has not been specifically requested (which would be known as a sua sponte order).
Every case is different, but you may be able to prove alienation is a number of ways. The simplest is to gather direct evidence. If you have a recorded conversation, phone call, or copies of a text message or email where the parent is actively engaging in alienation, you are already miles ahead of the average litigant. Keep in mind that these types of evidence are most effective if obvious. Try to gather evidence that, as closely as possible, falls into the form “your mom/dad is a bad person.” Alienation that is unclear, or is difficult to understand without context, is difficult for a judge to understand and easier for the opposing party to deny. Moreover, secretly recording conversations under some circumstances can be considered a crime. Only one party (you) needs to consent to recording a conversation in New Jersey, but other jurisdictions vary and you need to be careful concerning interstate or out-of-state communications.
If it’s not possible to gather direct evidence, you may want to consider seeking an order that your child undergo therapy (if he or she is not already doing so). Children will often confirm that alienation is taking place in the private and secure environment of therapist’s office. Generally, therapists will not testify in Court about their sessions with your child. Such information is protected by a wide range of laws. Nonetheless, a Court can and often will order the therapist to disclose certain information directly to the judge for his or her private review. While you may or may not be given direct access to that information, the judges actions thereafter may prove revealing. If alienation is confirmed, the Court will be much more likely to issue an order with “teeth” in the future.
That brings us to the second issue: once alienation has been proven, what should you ask the Court to do? Frankly, judges are as confused by this issue as you are. Nevertheless, they are generally sympathetic and look to protect children wherever possible. When parental alienation is alleged, the Court will almost always enter an order (if requested) requiring both parents to refrain from disparaging the other and from discussing the litigation with the children. Unfortunately, unless enforced, a court order is only a piece of paper and often proves insufficient to change a parent’s course of action. If your ex-spouse is alienating your kids from you, lace up your boots and get ready for the long haul. You may be in for a tough fight.
The Court can also order any of the usual sanctions specifically authorized for violations of custody orders under New Jersey Court Rule 5:3-7:
(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.
Ultimately, your goal may be a permanent modification of custody to get your child out of the damaging situation he or she has been put in by your former spouse. Be forewarned that Courts are reluctant to take that step unless and until alienation is definitively established and lesser sanctions have proven ineffective. Courts are often, however, willing to take more creative measures in the interim. Consider first requesting that the Court order the child to continue individual therapy or joint therapy with you in addition to ordering the opposing party to participate in community service and to successfully complete a parenting education course. The combination of alone time with your child, the reassuring voice of a neutral therapist, and harsh consequences for the other parent has proven effective in the past. It may also be beneficial, depending on the level of animosity between you and your ex-spouse, for the two of you to participate in co-parenting therapy. Whatever hurt, pain, and insecurity is driving your former spouse to attack you through the child is unlikely to be resolved through a court order alone.
If these methods fail to stop your ex-spouse, you can then file an application before a judge that has some experience with your situation and is likely as frustrated as you are with the opposing party’s conduct (not just in alienating your child, but also in violating explicit court orders). Your application will likely be supported by qualified professionals who have built ongoing relationships with your kids and have extensive knowledge of the alienation. In that position, a judge is much more likely to feel ready and willing to transfer custody.
Finally, remember that you’re not alone! Parents across New Jersey and the entire country are dealing with alienation. They are experiencing the same frustration, anger, doubt, and hopelessness that you are. They have experience with what works and what doesn’t, and they want to share. Consider joining a support group, such as Parental Alienation Support and Awareness NJ.
This process can be extremely complicated, especially as the opposing party attempts (probably with the aid of an attorney) to maneuver in every way imaginable to escape a change of custody or other serious sanctions for their actions. He or she will likely throw every available accusation into their pleadings in an effort to cast you as a bad parent and as the source of the problem. Parental alienation actions call for designing and following through with careful short and long term strategies crafted with the judge, the parents, and the law in mind. We strongly suggest calling one of the attorneys here at the DeTommaso Law Group to assist you through the process.