Alienation in New Jersey
by Mark Gruber, J.D., L.L.M. and Natalie L. Moran, Esq.
Parental Alienation in New Jersey
By: Mark Gruber, J.D., L.L.M.
Natalie L. Moran, Esq.
The parental alienation syndrome (PAS) is a childhood disorder that arises almost exclusively in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent. When true parental abuse and/or neglect is present, the child’s animosity may be justified and so the parental alienation syndrome explanation for the child’s hostility is not applicable. Richard A. Gardner, http://www.rgardner.com/refs/pas_intro.html.
The following is a list of symptoms and types of behavior, as defined by Douglas Darnell, Ph.D., that are common in cases of parental alienation:
1. Allowing a child to feel as if they have some choice regarding visitation when the schedule has already been set forth by the court;
2. Disclosing details about the marriage or break up of the marriage to the children;
3. Failure to allow the child to transport belongings between the parents homes;
4. Failure by one parent to allow access to the children’s medical records or school records to the other parent;
5. One parent blaming the other parent for financial problems, breaking up the family, changes in lifestyle or having a boyfriend/girlfriend;
6. One parent refusing to be flexible with the parenting time to accommodate the child’s schedule;
7. Assuming that a spouse who has been abusive, will also be abusive toward the children;
8. Asking the child to choose one parent over the other;
9. The child becoming exceptionally angry with one parent
10. A parent or step parent raises questions about changing the child’s name or suggests adopting the child;
11. A child being unable to express why they are angry with a parent;
12. One parent having secrets, special signals, private rendezvous, or words with special meaning to communicate with the child;
13. One parent uses the child to spy on or gain information about the other parent;
14. Giving the child temptations that might interfere with the other parent’s parenting time;
15. One parent acting upset or hurt if the child enjoys spending time with the other parent;
16. One parent asking the child about the other parents personal life;
17. A parent will physically or emotionally rescue the child when there is no threat to the child’s safety;
18. One parent making demands on the other parent, which conflicts with the court order;
19. One parent eavesdropping on the child’s phone conversations with the other parent;
20. A parent can alienate their own child by continually breaking promises to the child.
Dr. Darnell believes that parents may exhibit the above symptoms and types of behavior in varying degrees. He has therefore characterized alienating parents into three categories:
(1) The Naïve Alienator
“A naïve alienator generally means well and recognizes the importance of children having a healthy relationship with the other parent,” but will occasionally disagree with or have a brief conflict with the other parent. A naïve alienator does not usually require continued trips back to court, as he or she is able to communicate with the other parent and work out differences.
A child is usually not harmed by the behavior of naïve alienators, because the child is able to cope; “either by talking out their feelings to a receptive parent, ignoring the argument or trusting that the skirmish will pass and all will heal.”
A naïve alienator has the ability to put the child’s needs before their own.
(2) The Active Alienator
Active alienators have a difficult time controlling their frustration, bitterness or hurt. The active alienator usually means well and wants the child to have a healthy relationship with the other parent, but is often unable to make that happen because of the old feelings that they continue to harbor. As a result, the active alienator often finds him or herself returning to court to over problems with parenting time.
According to Dr. Darnell, active alienators are usually receptive to receiving professional help if they have difficulties that will not resolve themselves, as the parent is concerned with helping the child deal with the divorce.
(3) The Obsessed Alienator
The obsessed alienator is a parent whose sole purpose is to align the children to his or her side and destroy the child’s relationship with the targeted parent. The child of an obsessed alienator develops the personality and beliefs of the alienator.
The behaviors of an obsessed alienator usually begin to surface after the divorce becomes final. The obsessed parent is often angry, bitter, or feels betrayed by the other parent. These feelings are often justified because of what the non-alienating parent did during the marriage, the difficulties arise when the alienator’s feelings do not heal, but worsen by being forced to continue a relationship with the ex-spouse because of the children.
There are no successful treatments for the obsessed alienator or the children of obsessed alienators. The only hope is that the symptoms can be identified early on and prevented.
Transfer of Custody
Courts in a number of jurisdictions have begun to recognize the Parental Alienation Syndrome and have allowed expert testimony on the subject. Some courts have even ordered that custody of the child/children be transferred to the alienated parent. The following is a summary of three such cases:
In the Matter of J.F. v. L.F., 181 Misc. 2d 722 (1999), Family Court, Westchester County, New York.
At the time of the parties’ divorce in October 1994, the wife was granted sole custody of the two children. In 1995, a consent order was entered which gave the parties joint custody, with primary residential custody to the wife. The consent order also contained the following language:
Should any further interference with the rights of the other parent be demonstrated to the satisfaction of this court, the court after a hearing shall use its power to terminate the joint custody arrangement and award sole custody to one party under the appropriate circumstances and to incarcerate a parent for any willful interference.
The wife did not comply with the consent order and in 1998, the husband filed an order to show cause to transfer sole custody of the children to him based upon alleged willful interference with visitation, and alienation of the children from him. The court conducted a hearing over the course of 15 days. During the hearing, the court conducted in camera interviews of both children and heard the testimony of three experts. The court was convinced that the children had been alienated from their father by their mother. The court found that the children’s negative view of their father was out of all proportion to reality. Dr. Herbert Lessow, a Board certified psychiatrist, served as the independent court psychiatrist on this matter since 1994. For the hearing in 1998, Dr. Lessow conducted evaluations of both parents and the children. He concluded that the wife had alienated the children against their father, but did not recommend a change in custody because he was concerned about the effect the change would have on the children. However, he was also concerned on the effect of not changing custody. A psychologist appointed by the court, Dr. Melvin Sinowitz, concluded that, “the parental alienation syndrome is ‘clear’ and ‘definite’ with both children.” However, Dr. Sinowtich believed that both children would have some difficulty adjusting if custody were transferred. The husband retained Dr. Feinberg, a Diplomat of the American College of Forensic Examiners, as an expert. Dr. Feinberg stated that the case was the worst case of “PAS” that he had seen in his 33 years of doing child psychiatry. He recommended that custody be transferred to the husband.
In order to transfer custody in New York, the court had to find that the transfer would serve the best interests of the children. Based upon the testimony and evidence presented, the court found that the best interests of the children would be met by transferring custody to the husband. The court found that that the mother’s view of the husband had been completely adopted by the children. She had made no attempt to foster a relationship between the children and their father and had caused the children great damage, which could not be ignored. The court recognized that a change in custody would cause the children, to be upset, angry and disappointed, however, it believed that in the long run, the children’s best interests would be served by the transfer of custody. The court also ordered that the children would have to be in therapy with a therapist experienced in parental alienation.
Hanson v. Spolnik, 685 N.E.2d 71 (1997), Court of Appeals Indiana.
In the Hanson case, the trial court changed joint custody of the parties’ daughter and gave sole custody to the husband based upon the wife’s constant interference with the husband’s relationship with child. The court also found that the wife had failed to acknowledge and properly get treatment for her child from a previous relationship, who inappropriately touched the parties’ daughter. The wife’s interference with the relationship between father and daughter included repeated allegations of sexual abuse, which were unsubstantiated and the wife’s making numerous disparaging comments and allegations about the husband in front of the child and others. The appellate court held that the trial court did not err in modifying the custody order and awarding sole custody to the husband.
The court did note that, although lack of cooperation or isolated acts of misconduct by a custodial parent cannot serve as basis for modification of child custody following dissolution of marriage, a parent’s egregious violation of a custody order or behavior towards the other parent, which places the child’s welfare at stake, can support a modification of a custody order. Id at 78.
In re the Marriage of Beverly Robin Rosenfeld and Martin Sanford Rosenfeld upon the Petition of Beverly Robin Rosenfeld, and concerning Martin Sanford Rosenfeld, 524 N.W. 23d 212 (1994), Court of Appeals, Iowa.
In this case, the trial court transferred custody from the husband to the wife post divorce. Initially, the husband was given custody because the trial court had made findings that the wife suffered from migraine headaches and was addicted to her medication and had attempted to alienate, the oldest child from her father. After the divorce, the wife moved to transfer custody based upon changed circumstances.
The court found that two changes in circumstances had occurred since the initial custody determination:
(1) Mom’s relationship with the children had deteriorated since the time of the divorce, in that the children had been turned against their mother by conduct from the husband’s household; and
(2) Mom had learned that her migraine headaches were caused by food allergies and modified her diet and gained control of herself.
The trial court stated that it was clear that both parents could provide for the basic needs of the children and that both parents should have been able to support each other in their respective relationships with the children, however that had not happened with these parents. The children in the case had done cruel and hurtful things toward their mother. The court found that, the husband and his current wife had prompted this conduct. The trial court therefore changed custody to mom.
The husband filed an interlocutory appeal, and a stay of the custody change, both of which were granted. After the appeal was filed, the trial court enlarged its findings of fact, stating that this was a case of parental alienation syndrome, which was very severe. The trial court gave several specific examples of conduct on the part of the husband and his current wife, which the court found to fit in the pattern of “PAS.” One incident occurred when the wife had to work on Fourth of July weekend and requested that the parties change holidays. The husband refused to switch days and got their son ready for visitation, knowing that the wife had to work. The son waited for two hours for his mother to come. Another situation involved an attempt to charge the wife or someone who cared for their son at the wife’s direction with sexually molesting or abusing the son. The husband’s wife took their son to four different doctors on two separate occasions. All of the medical opinions refuted the husband’s wife’s claims. Regardless, she told others about her suspicions, including the parties Rabbi and the parties’ son.
On appeal, the husband alleged that the court improperly considered the “PAS”, and should not have admitted in evidence treatises about the syndrome. He argued and had expert testimony that the PAS is not a reliable theory and should not be considered by the court. The appeals court stated that it did not pass on the issue of whether the parental alienation syndrome was a reliable theory. Rather, it looked at the evidence induced and drew its conclusions. The appeals court decided that based upon the evidence and concern exhibited by the trial judge, who listened to all the testimony and viewed the parties, it would give considerable weight to the credibility assessments by the trial court and affirmed the decision to transfer custody.
Interference with Custody – Sanctions
There are no published cases in New Jersey that specifically discuss the parental alienation syndrome. Our courts do not however, take interference in the parental relationship lightly.
The code of criminal justice provides criminal sanctions for removing a child from the state. N.J.S.A. 2C:13-4 provides as follows:
A person, including a parent, guardian, or other lawful custodian, is guilty of interference with custody if he: (1) takes or detains a minor child with the purpose of concealing the minor and thereby depriving the child’s other parent of custody or visitation of the minor child; or (2) after being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody and visitation rights to a minor child, takes, detains, entices, or conceals the child within or outside the State for the purpose of depriving the child’s other parent of custody or visitation, or to evade the jurisdiction of the courts of this State….
Interference with custody is a crime of the third degree, but the presumption of non-imprisonment set forth in subsection (e) of N.J.S.A. 2C:44-1 for a first offense of a crime of the third degree does not apply. However, if the child is taken, detained, enticed or concealed outside of the Unites States, interference with custody is a crime of the second degree.
A crime of the third degree may lead to imprisonment for three (3) to five (5) years or a fine of $7,500 or both. A crime of second degree carries a specific term of incarceration from between five (5) and ten (10) years and a fine of up to $1,000,000 or both. See N.J.S.A. 2C:43-3 and N.J.S.A. 2C:43-6.
In addition to criminal sanctions, the courts may also impose civil sanctions for interference with custody. The injured parent can seek relief under R. 1:10-3 for contempt or R. 5:3-7(a), which lists a number of sanctions or remedies that can be imposed if the court finds that a party has violated an order respecting custody or parenting time. The remedies and sanctions include: compensatory time with the children, economic sanctions, counseling for the children or parents at the expense of the parent in violation of the order, and or temporary or permanent modification of the custodial arrangement.
Parental Alienation – A Cause for Action
The legislature clearly intended that one parent or guardian should not intentionally interfere with another parent’s relationship with a child.
As stated by Dr. Gardner, and many other experts, parental alienation syndrome, whether specifically called such, is a major problem in child custody cases. One parent must not be allowed to purposely destroy the relationship of their child with the other parent. In order to help prevent this type of interference with the parent/child relationship, a cause of action for parental alienation must be recognized. Parental alienation could be dealt with in the criminal court, in the law division as a tort, or in the family division as part of the divorce.
Parental Alienation – Is there a Cause of Action for Damages
Recognizing parental alienation as a tort could provide relief for victims of alienation, even though most courts have refused to do so thus far. Under the common law, a cause of action for interfering with the custody of a child was recognized under the following limited circumstances:
Anyone who intentionally interfered with the custody of children by abducting a child, enticing a child away or harboring a child who had left home against the wishes of the parent. The parent was required to prove deprivation of the services or custody of the child by the actions of the defendant, but having proven this element, the parent was then also entitled to damages for loss of the society of the child and for accompanying mental distress. Strode v. Gleason, 510 P.2d 250, (1973), Court of Appeals, Washington.
The Restatement of Torts does not allow recovery for parental alienation cases without loss of custody or loss of services of the child. 3 Restatement of Torts §699 (1938).
New Jersey does not recognize a cause of action for parental alienation. In Scholz v. Scholz, 177 NJ Super. 647, (Ch. Div. 1980), the court held that an action for interference in the parent-child relationship would not lie in the absence of either seduction of the child or removal from the home. Id. at 650, (citing, Prosser, Law of Torts (4 ed. 1971), 883.) Many other jurisdictions have also refused to recognize interference with custody as a cause of action. See 451 N.W.2d 285 (S.D. Jan 31, 1990), Bartanus v. Lis, 332 Pa.Super. 48 (Pa.Super). Jul 27, 1984), Hester v. Barnett, 723 S.W.2d 544 (Mo.App. 1987); Morris v. Bruney, 78 N.C. App. 668, (1986); Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985)(applying Virginal law); Hyman v. Molovan, 166 Ga. App. 891 (1988).
The Washington Court of Appeals, however, did recognize a cause of action for parental alienation. See Strode v. Gleason, 510 P.2d 250 (1973), Court of Appeals, Washington. In Strode, the natural mother of two children filed an action against a third party, who had once been the children’s primary care giver. Between 1952 and 1962, the children lived with the defendants, the Gleason’s, but visited their parents on the weekends. Beginning in 1962, the children lived with their natural parents and visited with the Gleason’s frequently. In the following years, the son became difficult to control. The son made tapes of his mother, which he felt illustrated her inability to parent. Meanwhile, the son stayed in close contact with the Gleason’s. The son eventually filed a complaint with his school counselor, who in turn filed a juvenile court petition. The mother alleged that the Gleason’s were the cause of the juvenile petition being filed, and that the filing demonstrated that the children had been alienated from her.
The Strode court recognized the cause of action for alienation of parental rights, notwithstanding the fact that the action had not been recognized in the jurisdiction before. The court stated that:
The novelty of an asserted right and the lack of precedent are not valid reasons for denying relief to one who has been injured by the conduct of another. The common law has been determined by the needs of society and must recognize and be adaptable to contemporary conditions and relationships. Id. citing Funk v. United States, 290 U.S. 371, (1933); Russick v. Hicks., 85 F. Supp. 281 (W.D. Mich. 1949; Miller v. Monsen, 228 Minn. 400, (1949).
The court noted that historically, a child had a cause of action for the loss of the love and affection of a parent. The court did not see how that cause of action could be recognized, without acknowledging that a parent has a like cause of action for damages against a third person who spitefully alienates the affections of a minor child or maliciously interferes with the family relationship. The court therefore held that a cause of action for parental alienation should be recognized. The court stated that the loss of custody or services of the child, should not be a necessary element of the cause of action, but rather an element of damages. The court further stated that in order to establish a cause of action for alienation of a child’s affection, a parent must show malice in the form of an unjustifiable interference with the relationship between the parent and child. Finally, the Strode court held that the right of action should accrue when some overt act takes place indicating a lack of affection and making the parent aware that the hurt is suffered. The Strode court aptly cited to 1 F. Harper & James, the Law of Torts § 8.5 (1956) at page 623, in its discussion:
The true ground of action is the outrage, the deprivation; the injury the father sustains in the loss of his child; the insult offered to his feelings; the heart-rending agony he must suffer in the destruction of his dearest hopes, and the irreparable loss of that comfort and society, which may be the only solace of his declining age.
Strode is a good role model for modern courts, who have more readily allowed suits for marital torts. As stated in Strode, courts must recognize and be adaptable to contemporary conditions and relationships. Unfortunately, parental alienation has become a common occurrence in society, which our courts are going to have to adapt to. Courts must take notice of parental alienation and develop ways to combat it. One way to combat parental alienation is to hold the alienating parent accountable for his or her actions. In order to do so, a cause of action for parental alienation should be recognized. A parent need only show malice in the form of an unjustifiable interference with their relationship with their child and damages flowing from that interference in order to establish a prima facie cause of action.
Parental Alienation – Alternate Approach
Courts have recognized causes of action for intentional torts committed by one spouse against another that causes physical injury. See Tevis v. Tevis, 79 N.J. 422, (1979); Merenoff v. Merenoff, 76, N.J. 535 (1978), G.L. v. M.L., 228 N.J. Super 566, (Ch. Div. 1988). The court has even recognized that one spouse may sue the other in a divorce action for intentional infliction of emotional distress, in the absence of physical injury. Ruprecht v. Ruprecht, 252 N.J. Super. 230, (1991). The court held that the conduct must be so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Ruprecht v. Ruprecht, 252, N.J. Super. 230, 236 citing Restatement Torts 2d (1965) §46 comment d and Hafner v. Hafner, 135 N.J. Super 323, 333 (Law Div. 1975). Additionally, the injured spouse must show that the act was the proximate cause of distress and that the distress is severe.
In C.M. v. W.P., 320 N.J. Super 119 (Ch. Div. 1999), the husband filed a third party claim against his wife’s paramour for the emotional distress which resulted from learning that the children he had been led to believe he fathered, were in fact born of the adulterous relationship between the wife and her paramour. The court found in favor of the husband stating that:
Keeping the duration of the affair a secret from the husband as well as suppressing the true paternity of the children…without regard to the high degree of probable harm to the husband would indeed leave the average member of the community to exclaim “Outrageous.”
The court stated that, New Jersey looks to the Restatement of Torts to clarify the threshold necessary to satisfy the “outrageous” element:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the fact to the average member of the community would arouse his resentment against the actor, and led him to exclaim “Outrageous!” Id. at 127, (citing the Restatement (Second) of Torts §4b cmt. d.).
Parental Alienation causes the alienated parent emotional distress, as it prevents the injured parent from having a relationship with their child. A parent who has had a child alienated from them, by the acts of the other parent could easily make out a claim against the alienating parent that would satisfy the “outrageous” element necessary to establish a cause of action for intentional infliction of emotional distress or outrageous conduct. Making false accusations of sexual abuse against a parent, interfering with parenting time and purposely destroying the relationship between parent and child, is the type of behavior that could be seen as so extreme, to go beyond all possible bounds of decency and be regarding as atrocious, and intolerable in a civilized community.
A tort action against one spouse could be joined in a divorce action if the behavior occurs before or during the pendancy of the divorce action. The action could also be brought post judgment if the alienation does not occur until after the divorce, which is often the case.
Mark Gruber is certified by the Supreme Court of New Jersey as a matrimonial attorney. He is a fellow with the American Academy of Matrimonial Lawyers and has offices in Hopatcong and Newton, New Jersey.
Natalie L. Moran is an associate with the firm of Gruber & Colabella, P.A. and is the former law clerk to the Honorable Thomas N. Lyons, J.S.C.