What about parental alienation in New York child custody cases?

Broken familyClaims of parental alienation in child custody, matrimonial and family law cases abound. This article will focus upon parental alienation in the context of child custody and parenting time or visitation cases.  I have previously written about constructive emancipation which is applicable to child support cases.  The ultimate sanction, if parental alienation has risen to a point that the relationship between one parent and a child is irreparable, is to have the child declared constructively emancipated and to terminate child support.  This is the remedy for children of employable age.  For children of less than employable age there is case authority that stands for the proposition that child support should be suspended until visitation with the non-custodial parent resumes.  Please see my earlier blog article which discusses constructive emancipation in detail.

It is important to point out that certain actions that would be characterized as alienation, if they were taken for no reason, might be held by a court to be justified under certain circumstances. For example, protecting a child from abuse, be it physical or mental, can be found to be a proper justification for limiting contact.  What constitutes and does not constitute parental alienation is a judicial determination that is shaped by the presentation of facts through testimony and argument.  Something for both sides to keep in mind is that baseless allegations of abuse can be a reason for a court to find that the accuser puts their interests above the children.  Specifically, though, what is parental alienation?

Parental alienation has been described by psychologists as behavior, whether intended or unconscious, by one parent that poisons the child or children against the other parent. When such poisoning occurs, the children take on mischaracterizations or embellish misrepresentations that a parent teaches them about the other parent.  Interfering with another parent’s visitation or parenting time is one form of alienating behavior. 

Parental alienation could be as drastic as cutting off all contact between the child and the other parent. Hiding the child from the other parent is parental alienation.  Cutting off telephone contact with the other parent may be parental alienation.  Not bringing or allowing the child to visit with the other parent whether court ordered or voluntary visitation might be alienation.  Negative comments about a parent to the child(ren) or in front of the children has been found to constitute alienation.  The failure to encourage a relationship and meaningful parenting time with the other parent is a form of alienating behavior.   The foregoing is exemplary of some of the more common scenarios that I have seen alleged in my custody and visitation cases.  There are countless other examples.   Some of these claims were found to have merit while others were not.  Allegations alone are not enough to have a court make a finding of parental alienation.  In  matrimonial and family law cases, the determinations by the court should be proven by a preponderance of the evidence.  This means that the allegations are more probably true than not.  The ultimate standard, however, in fashioning an order in a child custody and parenting time case remains the best interests of the children.

If the best interests of the children is what is important, then why does a court really care if one parent is alienated from the children? Studies show that children’s best interests are for both parents to be substantially involved in a meaningful way with bringing the children up. Children thrive best, in situations when the parents no longer live together, when both parents have regular and frequent parenting time or visitation with the children.   Children specialists in mental health believe that there is an increased risk of personality disorders and unhealthy relationships for the children in their futures when parental alienation occurs.

What is the effect, if parental alienation is found, in custody and visitation cases? Damages, like in personal injury cases, are not awarded.  There might be some type of financial sanction, however, like for one side to pay the attorney fees of the other.  Because of the risks to the children connected with parental alienation, parental alienation might be a reason to find that the best interests of the children are not to be with the alienating parent.  Sometimes it is held that the magnitude of interference might be substantial enough to indicate that the alienating parent was unfit.  A change of custody, though, must be found to be in the children’s best interests, which is not always an easy task to prove.  Short of changing custody to the other parent, there could be certain requirements imposed in the custody order or modifications made. Extended or make up visitation could be ordered.  The parenting time schedule might be changed. Therapy for the children and/or the parents might be directed among other remedies.

Custody and parenting time cases are challenging and have many nuances. Parental alienation is a serious subject that is best addressed with effective advocacy.  Whether one finds themselves defending against such an allegation, or believes they are a victim of alienation, it is important to understand your rights.  Please see our website and other blog articles for details about other family law, divorce, mediation and collaborative law topics.  As always, feel free to contact us about your free initial consultation.  Let’s see if we can help.