If love is a battlefield, a divorce involving children can be a world war that threatens to cause permanent harm to them. In a best-case scenario, parents overcome any bad blood between them and work together to make the transition to separated family life as painless as possible for their kids. But sadly, in some cases, the children are sent as foot soldiers by one bitter parent to hurt the other. In these situations, one parent may find out too late that the other has been manipulating the children to share negative views of that parent, turning what was once a united family into a “hero-villain” situation. When an indoctrinated child becomes hostile to or wants nothing to do with one parent, custody and visitation matters can go “nuclear.”
This is called Parental Alienation Syndrome and was introduced by Dr. Richard A. Gardner in 1985. Symptoms include using a child to get information about the other parent, creating distractions or temptations that may interfere with the father or mother’s parenting time, asking the child to “choose” one parent over the other, and blaming the other parent for breaking up the marriage, or other wrongs. Traditionally, Parental Alienation has been used as either a claim in a divorce, or as a separate claim for emotional distress. In New Jersey, both had received little positive attention from the medical and legal communities until recently. In family courts, a claim of parental alienation was dismissed as just another petty trick used in highly-emotional divorce proceedings. And it fared even worse as a separate claim – the Heart Balm Act, created in 1935, prohibited money damages for claims of alienation of affections. But there’s been a small change in attitudes in recent years, as New Jersey courts have gradually become more accepting of a claim of alienation.
In a 2010 case, Segal v. Lynch, an Appellate Court didn’t automatically dismiss that claim, which was brought in the law, not the family court, as one of “intentional infliction of emotional distress. ” The court merely decided that it belonged in family court, where it would be subject to the “Best Interests of the Child” test. It also said that the claim could result in money damages if the symptoms of parental alienation interfered with parental rights, such as joint custody or visitation. This case was seen by many as a new opportunity for parents to redress this type of harm inflicted against them and their child.
On the other hand, another Appellate Court in 2014, in the case of M.A. v. A.I., rejected an 8 part test for parental alienation claims because it found that the scientific and legal authorities in New Jersey haven’t fully accepted it as reliable or legitimate. While this case shouldn’t necessarily deter a parent from bringing an alienation claim, he or she should be warned not to make parental alienation the only foundation of their case. Parental alienation claims seem to be most successful when they show a clear infringements on right – like interference with joint custody – and can then be combined with the Best Interests of the Child test to show that the manipulating parent is acting contrary to the child’s best interests. Until a clear standard is established, New Jersey courts will continue to see parental alienation as a legal novelty–even if it’s one that in “real life” can cause irreparable damage to emotionally vulnerable kids – and their parents. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and will soon serve as Managing Research Editor of that publication.