By Sheryl J. Seiden[1]
Parental alienation is a serious problem that plagues families when parents are involved in divorce proceedings where one parent successfully manipulates the child against the other parent. It is also a term that has become overused and misused in our family law practice. Unfortunately, there is no reported case in New Jersey which truly defines the concept of parental alienation. Practitioners and parents are quick to mention parental alienation, but few are able to define it. And even when a practitioner can identify parental alienation as a problem, they often do not know how to "fix" the problem. How then do we, as family law practitioners, know when it is appropriate to use the term parental alienation to define the toxic environment that torments a custody case? In order to identify parental alienation, family law practitioner, mental health experts and our judiciary must be familiar with the scientific data that identifies what parental alienation is and what it is not before we begin to try to address these custodial issues.
What is Not Parental Alienation?
All too often, family law practitioners resort to the term "parental alienation" to categorize a case where a child does not want to exercise parenting time with one of his/her parents or is often disrespectful to one of his/her parents after spending significant time with his/her other parent in a case where the parents are getting or are divorced. Not all cases where there is conflict between a parent and a child can be categorized as a case of parental alienation.
The first question to ask is whether the child's behavior toward one of his/her parent is justified.[2] The question presented causes the biggest debate as one parent will often blame the other parent for the downfall of the marriage and claim that the child has reasons independent of the breakup of the marriage which justifies their hatred for the other parent. On the other hand, the disfavored parent, failing to see the errors of his/her ways, claims that the reaction by the child to him/her is not justified.
In a case where the child's behavior toward the parent is justified, the behavior is known as estrangement. The concept of estrangement is not interchangeable with alienation. In some cases, there exists both estrangement and alienation. In understanding the distinction between estrangement and alienation, it is important to recognize that even children who were abused by one parent during their childhood seek to maintain a relationship with their abuser later in life. Jo Fidler & Nicholas Bala, Children Resisting Postseparation Contract with a Parent Concepts, Controversies and Conundrums, 48 Fam. Ct. Rev. 1, 11 (2010). It therefore begs the question whether the child is justified in rejecting the other parent.
The second question to consider is whether the child's behavior toward his/her parent is proportional to the parent's shortcomings or mistakes. We often say that in evaluating these cases, the punishment by the child against the disfavored parent must fit with the "crimes" of the disfavored parent.
The third question to consider is whether the child had a poor relationship with his/her parent prior to the commencement of the divorce matter. A child who has a poor relationship with one parent cannot be expected to have a good relationship with the parent during a time when the family is in turmoil.
How To Define Parental Alienation
When we think of custody cases, we automatically seek to invoke the "best interest standard" N.J.S.A. 9:2-4. In addressing parental alienation cases, a different approach is required. In order to determine if parental alienation exists, social science research dictates the examination of the eight factors to identify in the child. Fidler & Bala, supra, 48 Fam. Ct. Rev. 1, 12.
Campaign of denigration: This attribute has been called the most "prominent" aspect of parental alienation. See Amy J. Baker, Adult Children of Parental Alienation Syndrome, 49 W.W. & NORTON COMPANY (2007). In their family Court review, Jo Fidler and Nicholas Bala, two experts in the field of parental alienation, explain that an alienated child's "tone and description of the relationship with an alienated parent is often brittle, repetitive, has an artificial, rehearsed quality, and is lacking in detail. The child's words are often adult-like." Fidler & Bala, supra, at 16. Children may begin to assert their "constitutional rights" to privacy and freedom from the rejected parent.
Weak, frivolous or absurd rationalizations for the deprecation: This goes back to the disproportionate responses of children to an alienating parent's mistakes or shortcomings. "Although there may be some kernel of truth to the child's complaints and allegations about the rejected parent, the child's grossly negative views and feelings are significantly distorted and exaggerated reactions." Joan B. Kelly & Janet R. Johnson, Alienated Children in Divorce: The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39 Fam. Ct. Rev. 249, 254 (2001). This often starts with the report that the child is "just not comfortable" being with a parent absent explanation. Weak rationalizations may include a child's refusal to drive in the car with a parent, wear certain clothing that a parent purchases for the child, eat food prepared by the parent, and/or work on homework in a parent's home because that parent traditionally was not responsible for these parental duties for the child.
Lack of ambivalence: Children will believe that the favored parent is 100% good while the rejected parent is 100% bad. Their custodial preferences are clear that they want nothing to do with the rejected parent.
The "independent thinker" phenomenon (child claims these are their own beliefs, and not beliefs of the alienating parents): Fidler and Bala write that children's memories are so influenced that "if shown video or photographs [depicting happy times with the rejected parent] they will claim the images have been doctored or they were just pretending." Fidler & Bala, supra, at 16. The child will insist that the rejection is his or her own idea and will specifically report that he or she was not coached to make the statement by the favored parent.
Reflexive support of the alienating parent in the parental conflict: Fidler and Bala recognize that children may develop "an anxious and phobic-like response" as a result of their being "influenced to believe the rejected parent is unworthy and in some cases abusive." Id. at 16.
Child's absence of guilt over cruelty to, or exploitation of, the alienated parent: This often means that the child has no gratitude for the rejected parents' contributions to their rearing. The child will often claim that they have no recollection of the efforts that the disfavored parent had in raising them. A truly alienated child can be "rude and disrespectful, even violent, without guilt." Fidler & Bala, supra, at 16.
Presence of borrowed scenarios: Mental health experts are not so unrealistic as to posit that there are any perfect parents. However, "[i]n child alienation, the aligned parent puts a spin on the rejected parent's flaws, which are exaggerated and repeated. "Legends" develop and the child is influenced to believe the rejected parent is unworthy and in some cases abusive." Fidler & Bala, supra, at 16. The child may use words and terms that are identical to the favored parent's usage – which shows just how influenced the child has been by the "talk" of the favored parent about the disfavored parent.
Spread of rejection to extended family and friends of the alienated parent: Dr. Warshak explains that some children even go so far as to reject the affection of a family pet they once loved, if the pet is viewed to be "aligned" with the rejected parent. Richard A. Warshak, Ph.D, Divorce Poison, 50 HARPERCOLLINS PUBLISHERS, INC. (2010). In addition, there are often changes in the relationships with the disfavored parent's extended family. So a child who had a close relationship with their grandparents (parents of the disfavored parent) may now reject them too.
A display of all or even the majority of these factors in a child represents a "pure" severe case of parental alienation, which must be handled with extreme care. However, such cases are exceptionally rare. It is quite common for a case of parental alienation to be presented as a hybrid case whereby the child evidences both estrangement and parental alienation. Steven Friedlander & Marjorie Gans Walters, When A Child Rejects A Parent: Tailoring The Intervention to Fit the Problem, 48 Fam. Ct. Rev. 98, 109 (2010). Friedlander and Walters differentiated between cases of "alignment" (wherein the child has a "proclivity or affinity for a particular parent" that is "a normal development phenomenon" and "not. . .divorce specific"); "enmeshment" (wherein the "psychological boundaries between the enmeshed parent and child have not been fully and adequately established" and "the child has had developmentally inappropriate difficulty separating from the parent"); and "alienation," and noted that the majority of the cases were "hybrid cases". Id. at 100-106. See also Deirdre Conway Rand, Ph.D., The Spectrum of Parental Alienation Syndrome, 15 Am. J. Forensic Psych. 15 (1997).
Using Frye To Introduce Social Science Research:
In order to address parental alienation cases, New Jersey needs to adopt a definition of parental alienation to help identify these cases. In order to establish a definition of parental alienation, we must rely on social science research and expert testimony. New Jersey Rule of Evidence 702 permits experts to rely on social science data. It specifically provides that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702 (2012). The Comment to N.J.R.E. 702 makes clear that "proffered expert testimony should not be rejected merely because it cannot be said that such testimony is unassailable and totally reliable, because in some areas. . .scientific theory of causation has not yet reached general acceptance." Id., see alsoRubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991).
Furthermore, the "Frye Standard," named for Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) remains the standard in New Jersey in cases in which scientific evidence is to be introduced. SeeState v. Harvey, 151 N.J. 117, 169-170 (1997). This standard affords three ways a proponent of scientific evidence can prove its general acceptance and reliability: "(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance." Id. at 170. This necessarily directs the inquiry to N.J.R.E. 803(c)(18): Learned Treatises, which reads as follows:
[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or by judicial notice. If admitted, the statements may not be received as exhibits but may be read into evidence or, if graphics, shown to the jury.
N.J.R.E. 803(c)(18) (2012).
Thus, the second way to prove acceptance under Frye, "legal writings," is permitted even if an expert witness fails to acknowledge it is authoritative, so long as the reliability of the authority is established by other testimony or judicial notice. SeeTyndall v. Zaboski, 306 N.J. Super. 423, 428 (App. Div. 1997), cert. denied 153 N.J. 404 (1998). However, even after qualifying as a learned treatise, a text may still be excluded from evidence under N.J.R.E. 403 if the danger of prejudice outweighs its probative value.
The foregoing provides the manner in which practitioners can use social science research through expert testimony to establish a standard for parental alienation.
The Fact That Parental Alienation Is Not Classified As A Syndrome in the DSM Is Not Determinate
One of the obstacles in classifying parental alienation has been the Superior Court of New Jersey, Appellate Division's consideration of whether the concept of parental alienation exists even though it is not defined as a syndrome by the DSM IV or DSM V. M.A. v. A.I., 2014 N.J. Super Unpub. LEXIS 2887 (App. Div. Dec. 15, 2014), cert. denied 221 N.J. 286 (2015) (unpublished decision).
Simply because the concept of parental alienation is not listed as a "syndrome" in the DSM IV or DSM V does not mean that it cannot exist in our custody cases. Courts should recognize parental alienation as a concept that exists in our custodial cases, which needs to be addressed. Social science literature by authors who, while explicitly rejecting the concept of parental alienation as a syndrome, accept the importance of the concept of parental alienation in child custody cases. See, e.g., Barbara Jo Fidler & Nicolas Bala, Children Resisting Postseparation Contact with a Parent: Concepts, Controversies, and Conundrums, 48 Fam. Ct. Rev. 10, 24 (2010).
Use of the word "syndrome" is irrelevant. The comment to N.J.R.E. 702 states that "proffered expert testimony should not be rejected merely because it cannot be said that such testimony is unassailable and totally reliable, because in some areas. . .scientific theory of causation has not yet reached general acceptance." Id., see alsoRubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991) (general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.") Id.
Just as Battered Women's Syndrome was recognized by the courts as a generally accepted concept despite controversy surrounding this concept in the scientific mental health community, the fact that parental alienation is not recognized as a separate "syndrome" in the DSM IV or DSM V is irrelevant. State v. Kelly, 97 N.J. 178 (1994). It is also notable that Battered Women's Syndrome was accepted by the Supreme Court of New Jersey as a proper subject for expert evidence despite it not having yet been accepted in the DSM. Id.
Sole or strict reliance on the DSM is an improper shift of the adjudication from New Jersey Courts to the American Psychiatric Association. There is no mandate that a phenomenon's inclusion in the DSM is an essential measure of general acceptance in the professional community, especially in the context of litigation. On the contrary, the introduction to the DSM-5 specifically cautions against potential misuse in forensic contexts. American Psychiatric Association, Cautionary Statement for Forensic Use of DSM-5, Diagnostic And Statistical Manual Of Mental Disorders, at 715 (5th ed. 2013) [DSM-5].
In any event, it can be argued that the DSM V does provide for parental alienation under different subsections of the manual. Specifically, in the DSM V, "Relationship Problems," and subsection entitled "Problems Related to Family Upbringing" diagnose children who are irrationally alienated from a parent. American Psychiatric Association, Cautionary Statement for Forensic Use of DSM-5, Diagnostic And Statistical Manual Of Mental Disorders, at 715 (5th ed. 2013) [DSM-5]. Diagnostic code V61.20 entitled "Parent-Child Relationship Problems" can be used to diagnose the alienated child's relationship to the rejected parent. Moreover, diagnostic code V61.29 entitled "Child Affected By Parental Relationship Distress" is used to diagnose cases "when the focus of clinical attention is the negative effects of parental relationship discord (e.g. high levels of conflict, distress, or disparagement) on a child in the family ....". Id.
It can be argued that a trial court's findings that a child's negative attitude toward a parent developed as a result of the favored parent's negative campaign against the rejected parent is covered by the foregoing sections of the DSM. Accordingly, even if a litigant seeks to dismiss the concept of parental alienation because it is not included in the DSM, parental alienation is recognized in the DSM V under different headings.
How Have Other Jurisdictions Defined Parental Alienation?
The state of New Jersey has not yet adopted a definition of parental alienation in New Jersey case law. The case of Segal v. Lynch, 413 N.J. Super. 171 (App. Div. 2010), comes closest to addressing parental alienation, yet it does not offer a definition or analysis. Instead, the court in that case dubbed the issue "alienation of a child's affection." The trend of sister states to turn to the social sciences to guide their decisions is compelling, and should be considered by the New Jersey courts when addressing this issue.
In Connecticut, when faced with the question of whether the children of the marriage had been alienated by their mother from their father, the Appellate Court affirmed a trial court's adoption of psychologist Ira Turkat's definition of parental alienation. Balaska v. Balaska, 130 Conn. App. 510, 521 (Conn. App. Ct. 2011). The Connecticut Appellate Court recognized that the trial court's "significant research" of treatises and other writings on the topic of parental alienation had led to the following, appropriate definition: "parental alienation syndrome occurs when one parent campaigns successfully to manipulate his or her children to despise the other parent despite the absence of legitimate reasons for the children to harbor such animosity." Id.
The Court of Appeals of Arkansas explained the concept of parental alienation when it held that alienation existed when a mother refused to keep the child's father apprised of medical information, to have the child ready for visitation or to spend time with his father, and did not permit the father the first right to babysit the child when she was away. Sharp v. Keeler, 256 S.W.3d 528 (Ark. App. 2007). Although the Arkansas Appellate Court did not set forth a definition for parental alienation, it provided examples of parental alienation to describe it which can be relied on in other cases to determine if parental alienation exists.
The Supreme Court of Colorado addressed parental alienation in Ryder v. Mitchell, 54 P.3d 885 (Colo. 2002). The court accepted the testimony of a therapist who reported that one parent's false accusation of child abuse by the other parent constituted parental alienation. Id.
Similar to the Connecticut court in Balaska, supra, in order to adopt a definition of parental alienation, a trial court needs to rely upon the social science research and treatises in formulating a standard for analyzing parental alienation.
Our sister state, New York, has acknowledged the importance of parental alienation in custody cases. In Zafran v. Zafran, 740 N.Y.S.2d 596 (N.Y. Sup. Ct. 2002), the trial court recognized that the New York Courts embraced the concept of parental alienation in custody/visitation cases and permitted the defendant to proceed with a Frye hearing on the theory of parental alienation syndrome. In addition, in J.F. v. L.F., 694 N.Y.S.2d 592 (N.Y. Fam. Ct. Westchester Co. 1999), the New York trial court granted sole custody to father and suspended mother's right to visitation where it found that mother interfered with child's relationship with non-custodial parent.
Alabama has recognized the need to rely on expert testimony in addressing parental alienation issues. In C.J.L. v. M.W.B., 879 So. 2d. 1169 (Ala. Civ. App. 2003) the Court of Civil Appeals of Alabama questioned whether parental alienation syndrome would be an acceptable standard under Frye. Nevertheless, the Court in that case found parental alienation without the need to diagnose parental alienation syndrome where it found that the mother had alienated the children against the father based on expert testimony.
The concept of parental alienation was also recognized by the Florida courts in the case of Shultz v. Shultz, 522 So. 2d 874 (Fla. Dist. Ct. App. 3d 1988) where the court held that mother's First Amendment Rights were not violated where she was required to convince the children that it was her desire that they see their father.
Moreover, in the case of Wiederholt v Fischer, 169 Wis. 2d 524 (Wisc. Ct. App. 1992) the Wisconsin Court of Appeals found parental alienation after a three day trial based on expert testimony. However, despite a finding of parental alienation, the Court did not transfer custody of the children to the disfavored parent.
There is a need for our state to adopt a definition of parental alienation that is tailored to guide both the legal community as well as families in New Jersey faced with this dynamic. An entire peer-reviewed edition of the Family Court Review was dedicated to parental alienation in January of 2010, validating its general acceptance and widespread existence in this country's family courts. A definition of parental alienation such as the one adopted in Connecticut or as articulated in this article would not only serve to guide the legal community in recognizing this family dynamic, but also in recognizing what it is not, thereby reducing its mention as a litigation strategy when inappropriate.
Unfortunately, parental alienation is a concept that plagues many custody cases. Our state can greatly benefit from a definition of this concept to enable practitioners the judiciary to better serve the public in addressing this devastating family dynamic. Having a guiding definition will help streamline, and perhaps even shorten, custody litigations.
How to Handle Cases Involving Parental Alienation?
Once parental alienation is identified, the next challenge is determining how best to address it. The potential remedy for parental alienation depends upon the severity of the alienation. Much has been written about what types of therapy are available for children who are rejecting their parents. The late Richard A. 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." Gardner, Sauber & Lorandos, The International Handbook of Parental Alienation Syndrome, Charles C. Thomas Publisher, LTD. (2006). Gardner found that such interventions are often "no-win" if they involve trying to: (1) reason with the rejected child and convince him that the alienated parent really isn't that bad, (2) confront the rejecting child with the reality that this parent has not done anything wrong, and/or trying to directly, (3) 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. Id.
Fidler and 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." Fidler and Bala, supra at 33 (emphasis added). The counter-productivity of therapy is particularly applicable to individual therapy for the children. 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." Janet R. Johnston & Judith Roth Goldman, Outcomes of Family Counseling Interventions with Children who Resist Visitation: An Addendum to Friedlander and Walters, 48 Fam. Ct. Rev. 112-113 (2010). It is counterintuitive that therapy, particularly for a child, could be harmful or exacerbate the problem. Much of the scientific data supports this and should be brought to the court's attention in addressing the parental alienation case.
Given that therapy is often counterproductive in parental alienation cases, other treatment means need to be explored. The main goal should always be to achieve a loving relationship for the child with both parents.
In parental alienation cases, it is imperative that the rejected parent have unfettered and uninterrupted parenting time with the child. The favored parent's insistence on constant contact with the child during the rejected parent's parenting time via, via telephone calls, text messages, email and/or Skype should be discouraged. The rationale is that a child who was 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 during the child's parenting time with the rejected parenting. 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 the children.
The experts addressing parental alienation agree that it is imperative for the rejected parent to remain in contact with the child without the influence from the favored parent. See, e.g., Warshak, Divorce Poison, supraat 236. In her study of adult children of parental alienation children, Baker 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." Baker, supra, at 233. However, getting a Court Order that forbids contact from the favored parent during the rejected parent's time is only the tip of the iceberg.
In the most true, severe cases of parental alienation, unfettered parenting time may not be enough. Or, in some circumstances, it might be an option if the children are old enough to refuse to go.
The courts are next faced with the question of how to enforce such an Order. There is a line of cases dating back to 1909 which states that a Court may decrease child support for a custodial parent so as to force that parent to comply with unfettered parenting time for the noncustodial parent. SeeVon Bernuth v. Von Bernuth, 76 N.J. Eq. 200 (1909); Daly v. Daly, 39 N.J. Super. 124 (J. & D.R. Ct. 1956), aff'd 21 N.J. 599 (1956); Smith v. Smith, 85 N.J. Super. 462 (J. & D.R. Ct. 1964). Baker found that these sanctions or consequences can also be helpful in compelling the child to attend mandated parenting time with the rejected parent as the child will be given "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." Baker, supra, at 233.
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. Wilke v. Culp, 196 N.J. Super. 487 (App. Div. 1984).[3] 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." Fidler and Bala, supra at 35. Another option is for the Court to order "a prolonged period of residence with the parent, such as during the summer or an extended vacation. . .and temporarily restricted or suspended contact with the alienating parent." Id. at 28 (emphasis in original).
In sum, once parental alienation is identified, with appropriate treatment, the child and the disfavored parent can be reunified. In order to do so, nontraditional custodial arrangement need to be made.
[1] Sheryl J. Seiden is an attorney admitted to practice law in the States of New Jersey and New York. She is the founding partner of Seiden Family Law, LLC in Cranford, NJ. She is an officer of the Family Law Section of the New Jersey State Bar Association and a fellow of the American Academy of Matrimonial Lawyers – New Jersey Chapter. She is a frequent lecturer on topics affecting the practice of family law. In preparing this article, she would like to thank Lizanne J. Ceconi, Esq for her valuable leadership on a complex parental alienation case that they tried together for 23 days and Andrea Albrecht, Esq. for her valuable assistance in drafting the appellate pleading on this complex parental alienation case. She also thanks Ms. Ceconi for her insight in preparing an article entitled Parental Alienation – Buzz Word or Critical Issue, which was first presented at the 2014 Family Law Symposium and was resourceful in preparing this article. [2] The parent that is allegedly being alienated from the child is referred to as the disfavored parent or the alienated parent. The parent that is alleged to be responsible for alienating the child against the disfavored parent is known as the favored parent or the alienating parent. [3] The idea of "harm" was explored in the unpublished decision of N.J. Div. of Youth & Family Servs. v. C.O., 2012 N.J. Super. Unpub. LEXIS 2591 (App. Div. Nov. 27, 2012) wherein the Appellate Division affirmed Judge Mizdol's holding that a mother's false allegations of child sexual abuse against the child's father, and her convincing the child that the allegations were true, constituted abuse and neglect. Judge Mizdol held that it did and modified residential custody to be with the father so as to avoid further injury to the child. The Appellate Division affirmed.