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What is parental alienation?

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 specifically recognized in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (known as the “DSM”), it has nevertheless been argued in Courts throughout the United States.

Dr. Gardner defined 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 the other parent. In general, PAS is a “disturbance in which children are obsessed with deprecation and criticism of a parent – deprecation that is unjustified and/or exaggerated.”

According to Dr. Douglas Darnall, Ph.D., signs of parental alienation include:

  • Giving children choices when they have no choice about visits. Allowing the child to decide for themselves to visit when the court order says there is no choice sets up the child for conflict. The child will usually blame the non-residential parent for not being able to decide to choose whether or not to visit. The parent is now victimized regardless of what happens; whether the parent sees them or not, the children are angry.
  • Telling the child “everything” about the marital relationship or reasons for the divorce is alienating. The parent usually argues that they are “just wanting to be honest” with their children. This practice is destructive and painful for the child. The alienating parent’s motive is for the child to think less of the other parent.
  • Refusing to acknowledge that children have property and may want to transport their possessions between residences.
  • Resisting or refusing to cooperate by not allowing the other parent access to school or medical records and schedules of extracurricular activities.
  • A parent blaming the other parent for financial problems, breaking up the family, changes in lifestyle, or having a girlfriend/boyfriend, etc.
  • Refusing to be flexible with the visitation schedule in order to respond to the child’s needs. The alienating parent may also schedule the children in so many activities that the other parent is never given the time to visit. Of course, when the targeted parent protests, they are described as not caring and selfish.
  • Assuming that if a parent had been physically abusive with the other parent, it follows that the parent will assault the child. This assumption is not always true.
  • Asking the child to choose one parent over another parent causes the child considerable distress. Typically, they do not want to reject a parent, but instead want to avoid the issue. The child, not the parent, should initiate any suggestion for change of residence.
  • Children will become angry with a parent. This is normal, particularly if the parent disciplines or has to say “no.” If for any reason the anger is not allowed to heal, you can suspect parental alienation. Trust your own experience as a parent. Children will forgive and want to be forgiven if given a chance. Be very suspicious when the child calmly says they cannot remember any happy times with you or say anything they like about you.
  • Be suspicious when a parent or stepparent raises the question about changing the child’s name or suggests an adoption.
  • When children cannot give reasons for being angry towards a parent or their reasons are very vague without any details.
  • A parent having secrets, special signals, a private rendezvous, or words with special meanings are very destructive and reinforce an on-going alienation.
  • When a parent uses a child to spy or covertly gather information for the parent’s own use, the child receives a damaging message that demeans the victimized parent.
  • Parents setting up temptations that interfere with the child’s visitation.
  • A parent suggesting or reacting with hurt or sadness to their child having a good time with the other parent will cause the child to withdraw and not communicate. They will frequently feel guilty or conflicted not knowing that it’s “okay” to have fun with their other parent.
  • The parent asking the child about his/her other parent’s personal life causes the child considerable tension and conflict. Children who are not alienated want to be loyal to both parents.
  • When parents physically or psychologically rescue the children when there is no threat to their safety. This practice reinforces in the child’s mind the illusion of threat or danger, thereby reinforcing alienation.
  • Making demands on the other parent that is contrary to court orders.
  • Listening in on the children’s phone conversation they are having with the other parent. [Symptoms of Parental Alienation.]

Moreover, a limited recognition of PAS was incorporated into the most recent version of the Diagnostic and Statistical Manual of Mental Disorders. The latest version of the DSM, at least as of the date of this post, is the DSM-V. The DSM-V contains a new and broader definition of child psychological abuse: “non-accidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child.” This definition is, of course, broad enough that parental alienation behavior may fall within its reach. The DSM-V also includes reference to “Parent-Child Relational Problems. The term is, again, broader than parental alienation, but it seems to imply its existence: “Examples of behavioral problems include inadequate parental control, supervision, and involvement with the child; parental overprotection; excessive parental pressure; arguments that escalate to threats of physical violence; and avoidance without resolution of problems. Cognition problems may include negative attributions of the other’s intentions, hostility toward or scapegoating the other, and unwarranted feelings of estrangement.” To many, these inclusions spell out parental alienation even if they do not state its name. [Barbara Kay, National Post, “Teaching children to hate the ex” (May 23, 2013).]

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 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.

How do I prove parental alienation?

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 in a number of ways. The simplest is to gather direct evidence. If you have a recorded conversations (phone call, text messages, or emails) 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 real “teeth” in the future.

How can I stop parental alienation?

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 misconduct. 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. I strongly suggest hiring an attorney to assist you through the process.

Can I sue for parental alienation?

You can, of course, use parental alienation as a factor in deciding a custody dispute. In that sense, you are absolutely entitled to sue. Further, 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, 413 N.J. Super. 171 (2010).] The Court cited (a) abduction and (b) intentionally false allegations of sexual abuse as situations that might constitute intentional infliction of emotional distress. The Court, however, found that the specific allegations raised in the case it was reviewing did not rise to the level of intentional infliction of emotional distress:

“Here, the gravamen of plaintiff’s case rests on defendant’s actions after she relocated to this State in 2006. According to plaintiff, defendant established a residence with the children in this State without his knowledge or consent, blocked all forms of communications between him and the children, and matriculated the children in a local school district under her surname. All this was intentionally done by defendant as a means of unlawfully depriving plaintiff of his parental rights to see and enjoy a relationship with his children. This period of isolation lasted for approximately three months. The facts recited, on their face, do not constitute a cause of action for intentional infliction of emotional distress as a matter of law.

As a matter of public policy, the grievances raised by plaintiff in this suit must be brought before and addressed by the Family Part as part of an action for custody or parenting time, where the governing principle for adjudication will be the best interests of these two children. In these matters, the Family Part has both the expertise and the power to correct abuses by one parent against the other, while shielding the children from the type of emotional injury that is inextricably linked to a civil action for damages.

However, we do not foreclose the possibility that a cause of action may be brought alleging facts that are ‘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,’ thus satisfying prong two of the [intentional infliction of emotional distress] standard. As we previously noted, cases involving prolonged parental abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating the innocent parent’s custodial rights, or intentional false accusations of parent/child sexual abuse, are but two examples of factual scenarios that may satisfy the outrageous conduct requirement under Buckley.

Because such claims raise issues that are uniquely suited to the function and expertise of the Family Part, they must be brought as part of an action seeking custody or parenting time under the Family Part’s well-established ancillary jurisdiction as recognized by the Court[.] That being said, it is imperative that this determination be made by the Family Part at the preliminary stages of the litigation process. In order to avoid entangling the children in the emotionally destructive process of discovery, a reviewing court must evaluate and determine the legal efficacy of this cause of action upon joinder of issue or in the context of a motion [to dismiss].”

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