I came across the following slide presentation from Rajiv Dabhadkar of the National Human Rights Commission in Delhi, India. Although written for an Indian audience it offers practical advice on how to handle interactions with the alienating parent.
View more OpenOffice presentations from guestacb4ca.
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Image by Christopher Chan via Flickr
In a decision that will give hope to fathers rights groups that some Judges are prepared to tackle parental alienation head on, the Ohio Family Law Blog in a recent blog post reports on an Ontario case where this took place.
Parental alienation is not in the best interests of children. As reported in the post by Robert Mues, the court in the Canadian case heard expert testimony that:
"long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70% of the individuals studied. Two-thirds of the same population became divorced themselves – a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives, and difficulties trusting other people. One-third were reported to have substance abuse problems. Fifty percent of this group in this study became alienated from their own children."
I agree with the Ohio Family Law blog's conclusion that "[c]ourts are unlikely to take the drastic step Judge McWatt ordered absent overwhelming evidence of a long-standing pattern of parental alienation and powerful testimony from an expert witness on parental alienation." Even though not a New Jersey case, such decisions from outside New Jersey generate recognition and awareness of the problem of parental alienation and can be used to show New Jersey judges how other judges have tackled the issue, in the hope they will do likewise.
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That is the question that comes to mind after reading Richard Diamond's insightful post on his New Jersey Divorce law Blog about the cases working their way through the New Jersey court system where one parent is seeking monetary damages from the other as a result of alleged alienation of affection from their children and the resulting emotional distress experienced.
As discussed in a December 2008 Star Ledger article, there are two Superior Court trial court cases on appeal where a father is seeking damages as a result of a mother's alleged alienation of the children from him. In Segal v. Lynch, a Morris County judge dismissed the claim, while in Smith v Smith, a Hudson County judge decided otherwise. The appellate division will hear the appeals this year.
At issue is whether a New Jersey law that prevents claims for alienation of affection (the 1935 Heart Balm Act) applies just to marital relationships i.e. between husband and wife or whether it includes the relationship between a parent and a child.
Father's rights advocates have long sought a remedy for parental alienation and are critical of what they see as a lack of ability to obtain justice in the family court. Court's appear reluctant to transfer custody from one parent to the other where alienation has occurred, so would the availability of money damages be an effective remedy or act as a deterrent ? Family law attorneys are divided on this issue. Some argue that money damages do nothing to restore the relationship with the alienated children, while others argue it provides a means of obtaining justice, particularly in situations where irreparable harm has taken place.
Given the public policy issues implicated, such as whether we want jury trials where children are required to testify against their parents, it seems likely these cases will end up in the New Jersey Supreme Court.
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Parental alienation should not be rewarded, but that’s not the decision in today’s unpublished appellate opinion in V.U. v. L.U. A-5395-04T5 (App. Div. Sept. 22, 2006).
In this case, the trial judge rejected the court’s expert psychologist’s opinion and based on the judge’s own interviews with the children, awarded custody to the mother who had repeatedly disregarded the court’s orders and alienated the parties’ children from the father.
In addition, the judge awarded $5000 in compensatory damages and $20,000 in punitive damages against the mother for the tort of intentional infliction of emotional distress as a result of the alienation activities she engaged in. Not only is the delay between the start of the divorce trial on January 26, 2004 and the issuing of the trial Judge’s opinion on May 4, 2005 troubling where custody issues are a major issue, but in a parental alienation case, the weight given by a Judge to interviews with the children raises some concern.
According to the limited excerpts in the appellate opinion, the trial judge rejected the opinion of Dr Rabinowitz, the court’s expert psychologist who recommended that custody should be transferred to the father, instead the trial judge decided to interview the children a second time noting the psychologist’s concern at this:
I fully recognize Dr. Rabinowitz’s concern that because of the [defendant’s] alienation of the children, that these children cannot be considered “valid reporters concerning their feelings about their fathers, their feelings about their mother, past behavior, and past life events.” [] For this reason, I decided to interview all of the children a second time in an effort to truly determine whether the children are well-adjusted and happly.”
In awarding custody of the parties’ two daughters to the mother based on his determination of what was in the best interests of the children, the trial judge to some extent relied on these interviews:
I am also influenced by the children telling me that [the mother] does not attempt to control their decision about spending time with the [the father].
According to psychologist Dr. Jonathan Gould, in parental alienation syndrome ‘[e]ventually, the child adopts the malicious, intolerant, rejecting attitude of the alienating parent toward the target parent, resulting in a belief system in which the child views the target parent with hatred and fear.” Gould states, “time is the alienating parent’s most powerful ally.” By the time the Judge interviewed the children they were settled in their new school and as a result he found that they were” thriving and doing very well.”
To me, this is analogous to the child abduction case where a parent abducts the child to another country and when the court case seeking to return the child to the other parent comes around, the child is by now settled and assimilated in their new living arrangements and beliefs. In the face of an illegal abduction, a court under the Hague Convention would have no compulsion in sending a child back to a parent, even if they have developed new ties to that country.
The maxim is clear under these circumstances that illegal behavior should not be rewarded. In this case, the appellate division affirmed the trial judge’s decision, based on the fact that a family part judge “is not obligated to accept the testimony of an expert witness.” State v. M.J.K, 369 N.J. Super. 532, 549 (2004). Secondly, in deference to the fact that “the judge interviewed each child twice in order to assess what was in the best interests of the children.”
Unfortunately there is no discussion of the reliability of testimony from children who have been subject to parental alienation, when there is substantial credible evidence to the contrary from the court’s expert psychologist.
One of the maxim’s I learnt as a law clerk was ‘[w]e must not lose sight of the broad equitable powers of the Family Part to accomplish substantial justice.” Weitzman v Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988). It’s questionable, at least from the father’s perspective whether that occurred here. Parental alienation should not be rewarded.
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This is the title of a July 3 article in the Salt Lake Tribune highlighted in Janet Langjahr’s florida divorce law blog.
The Salt Lake Tribune article describes how it took Irene Jensen thirteen years to gain custody of her daughter when the courts refused to believe Tiffany Ann’s claims that her father had abused her and her mother was branded a parental alienator.
The article also describes another Utah case and the frustration of a father who is accused of sexual abuse but maintains his innocence, yet the mother believes the allegations are true and consequently frustrates his visitation. In the middle is a judge who sits in a vacuum trying to make some sense of the conflicting arguments. Should he make an order for supervised visitation to be on the safe side or should he hold the mother in contempt for thwarting visitation? It’s hard to be a judge in these types of cases even with the guiding principle of acting in the best interests of the child.
Langjahr in her blog argues that one parent's parental alienation is another parent's protection of their child. She believes that with the high standard of proof required for a criminal child abuse conviction, the courts should always err on the side of safety for the child and put childrens rights before parental rights.
Both child abuse and false allegations of child abuse are reprehensible. Even where no criminal prosecution is ultimately brought, the time, expense and emotional damage they cause is enormous and long lasting. False allegations can be directed at both men and women as part of a custody battle.
Anyone who encourages their child to make false allegations of abuse does not act in the best interests of their child, and if found out may end up loosing custody as described in a previous blog post.
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