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New York Courts Address Parental Alienation
When the question of parental alienation and its influence on custody matters becomes an issue for the courts, problems of proof may arise on both sides of the conflict.

Both custodial and non-custodial parents often worry that they are being bad-mouthed by their exes when the kids are in the other parent’s care. Sometimes they are right. Sometimes they are wrong.

When the question of parental alienation and its influence on custody matters becomes an issue for the courts, problems of proof may arise, on both sides of the conflict. For example, in a case decided in December 2009 by the Appellate Division, Second Department, a mother’s attempt to have her child’s custody arrangement changed on the basis of parental alienation failed. In fact, although she had brought the original petition to have an agreed-upon custodial arrangement changed due to her children’s father’s alleged attempts to alienate them from her, the hearing court found that it was in fact she who was guilty of such actions. On appeal, the Second Department looked at the evidence she proffered — or, in her case, the lack thereof — and agreed with Westchester County Family Court that the award of physical custody to the father should not be disturbed. Adams v. Perryman, --- N.Y.S.2d ----, 2009 WL 4680555 (2d Dept. 12/8/09).

It is well recognized that a custodial parent is charged with the responsibility of ensuring that the non-custodial parent enjoys his or her access to their children. See Daghir v. Daghir, 82 AD2d 191 (2d Dept. 1981), aff’d 56 NY2d 938 (NY 1982) (“The custodial parent has a duty to protect and nurture the child’s relationship with the non-custodial parent, and to ensure access by the non-custodial parent.”) The courts in New York have consistently protected the non-custodial parent’s rights against the interference of the other parent. In fact, such interference has been held to be so inconsistent with the best interests of the child as to raise a strong per se presumption that the offending party is unfit to act as a custodial parent. Maloney v. Maloney, 208 AD2d 603 (2d Dept. 1994).

The outcome of the Adams case illustrates just one of the problems faced by those who want to change a custody arrangement based on allegations of parental alienation; parental alienation syndrome may be hard to prove. In some cases, it might come down to a “he said/she said” argument, which can backfire. Another problem for aggrieved parents is that, even when parental alienation syndrome is proven, the remedies available may not provide a satisfactory means for repairing the damaged parent/child relationship.

The Syndrome

Parental alienation can result due to a systematic programming of a child against the other parent. It can destroy the child’s love and respect for the other parent, causing the child to cease having contact with a parent for unjustifiable reasons.

The term, Parental Alienation Syndrome, was first coined by Dr. Richard Gardner and is described “as a disturbance in which children are not merely systematically and consciously ‘brainwashed’ but are also subconsciously and unconsciously ‘programmed’ by one parent against the other.” See J.F. v. L.F., 181 Misc2d 722 (1999). Dr. Gardner’s focus was both on the alienating parent who, consciously or subconsciously, programs the child with false allegations, as well as on the child’s own active contributions to the vilification. The term “parental alienation,” as used today in the legal context, places more emphasis on the brainwashing process rather than the additional component of the child’s active participation.

This alienation can occur in many different ways, some apparent, deliberate and willful and others insidious and subconscious. One significant way it can happen is when is when the alienating parent sends the message that the other parent is irrelevant to the child. This may be done in many ways. Some parents may choose not to talk to the other parent. In addition they might:

  • Fail to relay messages from the target parent to the child;
  • Destroy the target parent’s pictures that are in the home;
  • Manipulate the child’s time so that the child does not have time to see the targeted parent;
  • Exclude the targeted parent from important events and important decisions in the child’s life;
  • Denigrate and disparage the targeted parent to the child; and
  • Unilaterally decide to give the child choices about visitation.

These common strategies and techniques — used overtly or covertly, or even subconsciously — all may play a role in how the child views the targeted parent.

Proving Parental Alienation Syndrome

The first response by the court, when faced with an allegation of parental alienation, must be to determine whether the child’s reasons for not seeing the parent are justifiable. If the reasons are not justifiable, then it is possible that alienation has occurred. To accomplish this, courts may rely on expert opinions and the testimony of the parents. They may also consider the testimony of other witnesses to the alleged alienating behavior. Leistner v. Leistner, 137 A.D.2d 499 (2d Dept. 1988) (trial court should have permitted testimony by a third party as to an expression of hostility toward the father by one of the mother's witnesses).

Sometimes, the most telling evidence may come from the court’s observations of and conversations with the children themselves. In J.F. v. L.F., 181 Misc2d 722 (1999), for example, the court’s in camera interview with the children of a man claiming he was the victim of parental alienation syndrome disclosed the following evidence of the mother’s harmful actions. Said the court:

[The children] are both highly intelligent and articulate and, in many ways, engaging and charming. They also show a resilience and ability to adapt to situations. Yet, particularly when discussing their father and his family, they present themselves at times in a surreal way with a pseudo-maturity [that] is unnatural and, even, strange. They seem like “little adults.” This court finds that they live a somewhat sheltered, cloistered existence with their mother, emotionally and socially. They do not have friends to their home on a regular basis, and they do not go to other children's homes with any frequency. They do not have friends in their mother's neighborhood.

The loving way in which the children perceive their mother, and the way in which they uncritically describe her as being perfect, stands in stark contrast to their descriptions of their father. Their opinions about their father are unrealistic, misshapen and cruel. They speak about and to him in a way which seems, at times, to be malicious in its quality. Nothing in the father's behavior warranted that treatment. The psychiatrists testified that the children are aligned in an unhealthy manner with the mother and her family. This is evidenced not only in the testimony of the father but also in the in camera interview. They repeatedly refer to the mother's family as “my family,” but they do not refer to the father or his family that way. Both children used identical language in dismissing the happy times they spent with their father as evidenced in the videotape and picture album as “Kodak moments.” They deny anything positive in their relationship with their father to an unnatural extreme.

The Consequences

Of course, the point of bringing parental alienation to the court’s attention is to challenge the custody arrangements already in place. Once the alienation is established what should the response of the court be?

In the eyes of New York’s courts, the best interests of the children are of the utmost importance in change of custody determinations. Friederwitzer v. Friederwitzer, 55 NY2d 89 (NY 1982). Among the factors to be considered are the quality of the home environment and the parental guidance the custodial parent provides for the child (Matter of Ebert v. Ebert, 38 NY2d 700 (NY 1976)); the ability of each parent to provide for the child's emotional and intellectual development (Porges v. Porges, 63 AD2d 712 (2d Dept. 1978)); the relative fitness of each parent, and the length of time the present custody arrangement has been in effect (Matter of Nehra v. Uhlar, 43 NY2d 242 (NY 1977)); and the effect that an award of custody to one parent might have on the child's relationship with the other parent (Bliss v. Ach, 56 NY2d 995 (NY 1982); Young v. Young, 212 AD2d 114 (NY 1995)). The custodial parent also has a duty to promote a good relationship between the child and the non-custodial parent, and to ensure access to the child by the non-custodial parent. Daghir v. Daghir, 82 AD2d 191 (2d Dept. 1981), aff’d 56 NY2d 938 (NY 1982).

Courts will often grant a change of custody as a remedy when parental alienation is proven. In the matter of J.F. v. L.F., 181 Misc2d 722 (1999), three forensic experts were unanimous that the children were alienated from their father by their mother. However, because the children were so well indoctrinated into disliking their father, they recommended that the mother retain custody. Judge Sandra B. Edlitz, of the Westchester County Family Court, disagreed after finding that if left in their mother’s care the children would continue to be psychologically damaged by her. Judge Edlitz concluded that extended summer visitation with the father or a mandate that the children receive therapy would not be sufficiently effective to remedy to the situation that had developed due to the mother’s actions. Judge Edlitz wrote: “The short-term consequences to the children of a change in custody, including foreseeable emotional upset and possible trauma, are outweighed by the long-term consequences of allowing physical custody to remain with the mother, which likely will result in the children having pathological personality traits which would interfere with their ability to establish whole relationships not only with their father but also with peers, future spouses or significant others, extended family members, employers and co-workers, and which may result in their passing down a jaundiced and paranoid view of life to their own children.” Thus, in order to promote the long-term emotional best interests of the children, the court granted the father’s request for a change of custody to him. The court also directed that the children be placed in therapy to help counteract the effects of their mother’s programming.

Similarly, in Bobinsky v. Bobinsky, 9 A.D. 3d 441, 780 N.Y.S.2d 185 (2d Dept. 2004), the Appellate Division affirmed the Supreme Court’s award of sole custody to the father based on the mother’s alienation of the children from the father, interfering with the children’s relationship with the father and disregarding the father’s rights as a joint custodial parent. These acts, the court concluded, were acts inconsistent with the children’s best interest.

In Zafran v. Zafran, NYLJ pg. 19, (col.1), 2/22/2005, the court was faced with a non-custodial parent’s alleged parental alienation behavior while visiting with his daughter. The court found the father had indeed attempted to alienate the child from her mother, as he had done with their two older sons, who had earlier been placed in his custody. Rather than cut off the father’s visitation rights, the court initially directed that a case manager be assigned to the family. The case manager was to try to curtail the alienating behavior through therapy with the children and both parents, and to facilitate visitation between the alienating parent and the parties' daughter. In addition, the court stated that “[a]s a central dimension [of the problems confronting the family] is the extreme anger of the alienating parent toward the other parent, the [father], as the alienating parent, shall also participate in individual psychotherapy with a provider to be selected by the case manager, permitting a transfer of information.” Pending the results of these remedial actions, the court held a final visitation order in abeyance. Unfortunately, the father continued in his campaign to disrupt the relationship between the child and her mother, and he refused to continue to pay for or take part in ongoing therapy sessions. The father’s lack of cooperation then prompted the court to curtail the father’s visitation, as his conduct was not only “detrimental but inimical to the best interest” of the child.

The courts heavily weigh the impact on a change of custody on the children. Sometimes the disruption in their lives that would result from a change in custody to the parent they’ve been groomed to dislike is too great. However, there may be some recourse for the injured parent. The legislature has provided relief in the form of financial detriment to the interfering parent by the passage of DRL § 241. It addresses the situation in which a custodial parent who is receiving support wrongfully interferes with the visitation rights of the payor parent. DRL § 241 states:

“When it appears to the satisfaction of the court that a custodial parent receiving alimony or maintenance pursuant to an order, judgment or decree of a court of competent jurisdiction has wrongfully interfered with or withheld visitation rights provided by such order, judgment or decree, the court, in its discretion, may suspend such payments or cancel any arrears that may have accrued during the time that visitation rights have been or are being interfered with or withheld.”

The rule was applied in Lew v. Sobel, 46 AD3d 893(2d Dept. 2007). There, the Appellate Division affirmed the lower court’s denial of a change in custody from the mother to the father as it was not in the best interest of the children, but granted a reduction in the child support payments based on the mother’s deliberate interference with the father’s visitation rights. The father was directed to pay 50% of his child support directly to the mother and a 50% reduction was ordered. Those reduced payments were to be paid into the mother’s attorney’s escrow account until such time as the mother could certify to the court’s satisfaction that she was in compliance with the visitation provisions.

DRL § 241 also allows the court, in its discretion, to suspend payments of spousal maintenance to a custodial parent who has wrongfully interfered with or withheld visitation. See Matter of Orange County Dept. of Social Services v. Meehan, 252 AD2d 588 (2d Dept. 1998); Lew v. Sobel, 46 AD3d 893 (2d Dept. 2007); Hiross v. Hiross, 224 AD2d 662 (2d Dept. 1996).


The courts and the legislature have created remedies for parental alienation of children from one of their parents. Unfortunately, the courts frequently cannot act fast enough to prevent its harm. With the time that litigation takes — in particular the judicial wish to maintain the status quo for the child, wherever possible — and the time required for the forensic evaluation process, the child may drift further from the targeted parent as the alienation continues and becomes further entrenched. At that point, as seen in some of the cases above, a change of custody may be detrimental to the child’s well being. This leaves the injured parent only with the possibility of a financial remedy, which punishes the custodial parent but does not give the targeted parent the relief of resuming satisfactory relations with his or her child.

Proving parental alienation syndrome remains a “Catch-22”: Often the evidence will be inadequate until the offending parent’s campaign has fully succeeded.

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