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Saturday, December 18, 2021

How to prove parental alienation in custody disputes. Written by a New York Family Law Attorney

As a Parental Alienation  attorney in New York I have litigated many custody battles involving this issue in both Divorce actions and in Family Court. If you can prove that alienation indeed exists it can justify you being awarded custody or a modification of a current custody order in your favor. Certain fact patterns often exist in parental alienation (PA) cases. It occurs when a child rejects one parent completely due to no fault of that parent. Children that have been alienated express a deep seeded hatred of the other parent and sometimes this animosity is directed to that parent’s extended family as well.  This article will explain how to spot and prove PA in a custody battle.

 

Spotting Parental Alienation

 

When children are asked about why they hate the other parent they often give trivial or absurd answers like “I hate my mother because she embarrassed me at Little League practice when she sprayed us with stuff that killed bugs,” or because “Daddy always making me sit up at the dinner table.”

 

A child that has been alienated against you will want little or no contact with you. Their behavior toward you can be hostile, defiant and extremely disobedient. The child will not only reject you but your extended family. The children often will defy court orders of visitation.

 

Emotionally a child suffering from alienation shows little or no affection or appreciation toward the other  parent. The child may be aloof towards you or meet you with contemptuous behavior despite having a good relationship with you in the past. This child may call you or members of your extended family names.

 

This child’s thoughts of the other parent often appear cruel, inauthentic and shallow. Their behavior often share some common characteristics such as:

 

• “Unreasonable, persistent, negative attitudes (anger, hatred, fear, distrust, or anxiety) about a parent who was viewed more favorably in the past. Such attitudes often are freely expressed to the parent and others;

• No apparent guilt for treating the parent with malice, contempt, and utter disrespect; exploits parent by accepting money and gifts without gratitude;

• Explanations for hatred or fear that are trivial, irrational, inadequate, and out of proportion to the rejected parent's behavior (or false allegations of abuse);

• One-sided views of parents: children describe the alienated parent exclusively or predominantly in negative terms and deny or minimize positive feelings, thoughts, or memories about that parent. By contrast, children describe the other parent as nearly perfect;

• In any conflict between the parents, the children automatically support the favored parent without exercising critical thinking or considering other perspectives. Some children ask to testify against a parent in court;

• Parroting adult language: The children's expressions echo the alienating parent--often clearly beyond the child's normal vocabulary and understanding-- or concern adult matters such as court motions, evidence, and testimony;

• Preoccupation with favored parent while in the rejected parent's presence, including frequent and lengthy phone conversations and texting;

• Declaration of independence: The children profess that their rejection of one parent is their own decision and that the other parent had no influence on the alienation;

  • Hatred by association: The children denigrate and reject relatives, friends, even pets associated with the rejected parent, despite a previous history of gratifying relations. To

 

 

To be clear, if the parent and child have a history of conflict or there is abuse by the parent against the child and  the child subsequently rejects that parent a Court will mostly likely not find that alienation exists. Also just because a child has hostility or is reluctant to spend time with the other parent doesn’t mean that alienation exists.  

 

For example if the dislike of the parent:

 

• Is temporary and short-lived rather than chronic (not to be confused with intermittent alienation that returns when in the presence of the favored parent)

• Is occasional rather than frequent

• Occurs only in certain situations

• Coexists with genuine expressions of love and affection

  • Is directed at both parents

then alienation may not exist. Sometimes a child may simply feel more comfortable with one parent over the other but still seeks to maintain a relationship with the other parent. Other times a child may have a parent that is emotionally unstable and that child may be afraid to leave the parent alone. The child may not want to spend time with the other parent because of a dislike of the step parent or step children. The child may simply not like the home environment of the other parent. 

 

Proving your case

 

Proving parental alienation in a Divorce or a Family Court proceeding, as stated above can lead to a change in or a modification of custody.  There are a number of ways to prove parental alienation in a custody battle. Some of the ways outlined below rely on third parties to get the point across. It is your job to present as much evidence as possible to these third parties so they know what they are to look for when they investigate the claim of alienation. That is why it is in your best interests to hire an experienced New York Parental Alienation attorney to bring the truth out. 

 

  • Gathering your evidence

 

If your child acts as outlined above with you, it would benefit you to document this behavior. You can keep a written log of the behavior of the your child and the negative actions taken by the other parent inconsistent with your rights as a parent. Text messages and emails between you and the other parent are a great way to document your interactions and to prove bad conduct. You can call other witnesses who have witnessed the negative behavior of your child and those who witnessed your and the child’s relationship when things were good. 

 

  • Use of a Forensic Psychologist

 

In a divorce or Family Court proceeding a forensic evaluator may by appointed by the Court to give an opinion on who should have Custody. The expert opinion of this person is held in high regard by the Court and often can tilt the balance in a Custody proceeding.  A Forensic Psychologist has extensive training in clinical psychology. They can have a Masters or Doctoral degree (PhD). This Psychologist will have years of experience in diagnosing and treating mental disorders and may specialize child custody matters and childhood development. 

The Forensic psychologists will conduct an evaluation, which includes clinical interviews of the parties to the case, the child and other collateral resources relevant to the case (like friends and family members). They will do a comprehensive review of records, collect collateral data, and do psychological tests.

These Psychologists are usually called in for difficult cases especially in cases of parental alienation, child abuse, mental illness and drug abuse arise. Since each side generally says conflicting things in a custody case about each parent’s respective parenting skills the Psychologist will use certain investigatory techniques to get to the truth as they see it. 

Once their evaluation is completed they will provide their written findings to the Court for the Judge’s consideration. The Court can agree or disagree with the evaluator’s opinion but it carries a lot of weight. It would behoove a person in a custody battle to impress this evaluator, be respectful and provide relevant information about the other parent’s undue influence to the Psychologist so they can make the best decision possible. If you are in a custody battle where PA is alleged it is wise to ask the Court to appropriate neutral forensic evaluator to get to the truth.

  • In Camera Interview

In the determination of who will get residential custody of a child an in camera interview may be conducted. In a case of undue influence of one parent over the child your New York Parental Alienation attorney may request that this interview be done.  The Judge, will meet with the child and the child’s attorney. A court reporter may be present. 

When a Judge must decide which parent should have residential custody of a child, the Judge will often meet with the child in the Judge’s chambers. The only individuals who are allowed to attend the in camera are the child’s attorney and a court reporter who will record what is said. A court officer may also be present but this is not always the case. What is shared by the child in this interview is confidential but will impact the Judge’s decision. In a PA case the Judge will ask the child questions to get to the bottom of the allegations of the parent regarding this alienation. Sometimes the attorneys for both sides will be able to submit a list of questions that can be asked of a child. This is a great opportunity for a parent who believes he or she is being talked badly about to shine light on their concerns. The Court will take the child’s preference of who they want to stay with into consideration but will also take into account many other factors. The older the child is, the more important his or her preference is. If the Judge feels that the child was coached in anyway, which happens a lot in PA cases, the Judge may discount the child’s wishes.

  • The Lawyer for the Child

In a parental alienation case the opinion of the lawyer for the child can carry a lot of weight when they have to substitute their opinion for that of the child because of the child’s age or mental functioning. The lawyer for the child (LFC) is appointed by the Court and they have the ability to call witnesses and cross examine witnesses on behalf of the child. The LFC’S job is to point out to the Court what is in the best interests of the child and not to advocate for one parent’s opinion or the other. In an alienation case and where the child is not old enough to have an opinion about who he or she wants to stay with, the LFC, if they are aware of the undue influence of one parent, will most likely opine that custody should go to the parent who can best facilitate a relationship with the other parent, to wit, the parent that is not doing the alienating.

In forming their opinion the LFC will speak to both parents, and possibly family members, teachers, doctors and other service providers or anyone else they deem relevant in forming their opinion. It is important to maintain a good relationship with the LFC because their opinion has a lot of weight. When you speak with the LFC it is never a good idea to bad mouth the other parent but if you have concerns about the other parent’s undue influence over the child you need to voice this concern to to the LFC. It is important to remember that the LFC is not your attorney, it’s the child’s attorney and you can’t presume that they will be on your side.

A parent that alienates a child against another parent may be seen by the Court in a divorce or family court custody proceeding as an unfit parent.  As a New York Parental Alienation Attorney at the Gilmer Law Firm, PLLC I have over twenty years experience representing parents whose children have been unduly influenced by the other parent. Give me a call at 718-864-2011 for a free phone consultation.

 


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