Judicial opinions abundant in facts and rich in thoughtful analysis are as rare as a white peacock. Hon. Richard A. Dollinger, J.S.C. has delivered such a rarity in J.F. v. D.F., 61 Misc.3d 1226(A), 2018 N.Y. Slip Op. 51829[U], a determination of a contentious custody dispute. This 27,000-word exegesis presents a myriad of multi-faceted intellectual gems requiring multiple reads to fully mine its trove. Indeed, more than one column article will be required to address its many aspects. This article will address the court’s development of a specific definition of the complex, controversial and emotionally-charged term, “parental alienation.”
Facts of the Case
The parties entered into a custody agreement with respect to their daughters, ages 7, 13 and 15 at the time of the trial that is the subject of the decision being discussed. The agreement provided for joint legal custody and designated the father as primary custodial parent. It established a shared parenting schedule with the children spending two days each week with one parent, the remaining five with the other, then flipping the arrangement during the second week. The agreement provided for a week-to-week rotation during the summer. Judgment was entered in November 2013. The post-judgment festivities began almost at once, with multiple proceedings occupying 2014 and 2015. In 2017 the parties launched what the court dubbed yet “another litigation war of attrition” that led to the decision under discussion.
The mother, an attorney, fired off her opening salvo with a petition for sole custody, claiming that the father, a college professor, was inhibiting the children’s development by refusing to take them to certain activities. She sought to modify the agreement to permit the two older daughters to spend the entire week with her during the school year. The father returned fire, claiming, inter alia, that the mother had violated the agreement by scheduling activities on his parenting time without his approval. He also sought sole custody based on his claim that the mother had alienated the children from him. All applications were consolidated and were the subject of a multi-day hearing conducted over the course of a month, at the conclusion of which the court conducted a Lincoln hearing (Lincoln v. Lincoln, 24 N.Y.2d 270 (1969)) with the three daughters.
Prior to submission of summations by the parties and the attorney for the children, the trial judge made temporary findings and concluded that the evidence established “sufficient parental alienation” to require modification of the parties’ agreement. The court modified its parenting time provisions, giving each parent a week on and week off during the school year with a mid-week meal for the non-residential parent. The temporary order continued the parties’ joint custody but modified its terms by establishing “zones of interest” for each parent.
Unfortunately, after signing the temporary order, the judge who conducted the hearing and signed the order died. The parties stipulated pursuant to Judiciary Law §21 that the matter could be decided by another judge based on the trial record. Thus situated, the matter landed on the desk of Justice Dollinger. Importantly, he stated at the outset that “This court did not utilize any of the work of the prior judge or her law clerk in reaching this determination.” In effect, Justice Dollinger would determine the case based upon his own review of the record, unconstrained by the temporary findings of the prior judge.
The Definitional Quest
Justice Dollinger began discussion with a detailed exploration and analysis of parental alienation, a concept that, in his words, “sidled its way into New York’s family law largely as a result of aggressive parent reaction to changes in their relationships with their children after a divorce.” After setting forth a valuable disquisition of the history of the concept of parental alienation, referencing both behavioral science literature and case law, the court focused on the fact that judicial discussion of parental alienation has often spoken in terms of an “unjustified frustration” of parental access. Justice Dollinger, concluded, however, that “a more demanding definition” of parental alienation was required, one that would more explicitly describe what constitutes “unjustified behavior.” In deriving such a definition, the court borrowed “from a comparable tort-law cousin: the tort of intentional infliction of emotional distress,” the elements of which are “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.”
The court then propounded the simple word substitution of “parental alienation” for “emotional distress” to create “an equivalence between this tort designed to protect an individual’s emotional status and the family law concept to protect and preserve a parent’s relationship with their children.” The court postulated that “if the substitution works” the definitional contours of the parental alienation construct would emerge, consisting of “four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe alienation of any parent from a child; (iii) a causal connection between the alienating conduct and the child’s rejection of a parent; and (iv) severe parental alienation.” The court then refined its definition further:
When analyzed in this light, parental alienation, as a legal concept, requires (1) that the alleged alienating conduct, without any other legitimate justification, be directed by the favored parent, (2) with the intention of damaging the reputation of the other parent in the children’s eyes or which disregards a substantial possibility of causing such, (3) which proximately causes a diminished interest of the children in spending time with the non-favored parent and, (4) in fact, results in the children refusing to spend time with the targeted parent either in person, or via other forms of communication.
The derived definition is, to put it softly, constrictive. Facing such a mountainous standard one might expect that many a litigative alpinist will fail to conquer the summit. In the case at bar, the court found that the father’s proof of the mother’s alleged alienating conduct fell short and dismissed his claim of parental alienation.
Apart from its application to the present case, several aspects of the court’s proposed definition warrant analysis.
The first and second elements of the proposed definition, taken together, require that the alienating parent act “with the intention of damaging the reputation of the other parent in the children’s eyes” (emphasis added) or acting in disregard of a substantial possibility of causing such damage. Further, the parent alleging alienation must prove that there was no other “legitimate justification” for the parent’s actions. In other words, as later stated by the court in dismissing the father’s alienation claim, “There is no evidence that the mother solely intended that these activities alienate the daughters from their father” (emphasis added).
Thus understood, the constructed definition would seem to make no room for cases of parental misbehavior that can damage the child’s relationship with the other parent where there is neither an intent to alienate nor even an awareness of the possibility that the behavior carries such potential. Prominent forensic psychologist David A. Martindale, Ph.D. elucidates this concept as follows:
It is unwise for experts or jurists to attend only to those actions by parents the “sole purpose” of which is alienation of the child from the other parent. Mental health professionals with expertise in family interactions are well-aware of a dysfunctional dynamic in which parents transform children into confidants and sources of emotional support. When emotionally fragile parents undergo divorce, their needs may include the need that their children perceive them as ‘right’ and ‘good’. In their efforts to ensure that their needs will be met, they may—without any thought of alienation—make statements and engage in actions that drive a wedge between their children and the other parent. (Martindale, D.A., private communication, 01-05-19)
The fourth element of the court’s definition is also troubling. It requires that the favored parent’s conduct in fact “results in the children refusing to spend time with the targeted parent.” In other words, the targeted parent must prove that the alienating parent has successfully carried the child into the end-zone of total rejection of the targeted parent. The problem with this, of course, is that it seemingly disempowers the court from shielding the child from the alienating behavior until it is too late to salvage the relationship between the child and the targeted parent. It is unlikely that Justice Dollinger intended such constriction.
In a landmark article on the subject, prominent researchers Joan B. Kelly and Janet R. Johnston made clear that alienation is a process that occurs over time. Among other factors, the child’s cognitive and emotional development can affect the point at which the alienation takes hold:
Children’s responses to alienating processes and to the behaviors of each parent are influenced by their own psychological, cognitive, and developmental strengths and vulnerabilities and by external arrangements involving the rejected parent … . Overall, the most common age range of the alienated child is from 9 to 15, although some older adolescents and young adults also can become alienated.
Kelly, J.B., Johnston, J.R., “The Alienated Child: A Reformulation of Parental Alienation Syndrome,” Family Court Review, Vol. 39 No. 3, 249-66 (Sage July 2001).
Dr. Martindale elaborates this point as follows:
It is imprudent to conceptualize the complex dynamics of alienation in dichotomous terms (present v. not present). Many parent-child relationship problems develop slowly, and where the forces that create those problems are present, constructive steps must be taken to address patterns of behavior that, if not curtailed, will produce predictable negative consequences. Just as harm is done when, with insufficient evidence, it is concluded that alienation exists, harm is also done when the current absence of specific indicators of harm in a parent-child relationship leads us to conclude that there is no cause for concern.
Martindale, D.A., private communication; Martindale, D.A., “Expert Witnesses: Observing the Limits of Expertise,” The Matrimonial Strategist, 35(3), 1ff (2017).
Indeed, Justice Dollinger recognized this dynamic when he wrote:
The mother’s conduct could have resulted in alienation and, in other cases, similar conduct could lead to a child’s rejection of a parent. But, in this case, even if the mother intended to alienate these children from their father, she failed. This court has no doubt that parental alienation—destroying a parent in the eyes of a child—exists and should not be tolerated. But it does not exist for these children. (emphasis added)
So again, where is the elbow room within the constructed definition for judicial action in the face of alienating behaviors that have not yet completely severed the parent-child relationship? It may be instructive at this juncture to step back from the definitional difficulty—indeed, to step back from the “parental alienation” label itself, and focus instead on parental behavior and its potential impact on the children.
A Broader Perspective
The search for definitional specificity of parental alienation, important though it is, carries with it the risk of losing sight of the larger issue of the parental obligation to foster a meaningful and positive relationship between the child and the other parent. This parental obligation is well ensconced in New York law (Bliss on Behalf of Ach v. Ach, 56 N.Y.2d 995 (1982)) and has become a major factor in custody cases. Significantly, the law speaks not only of a “willingness” to encourage “contact” with the other parent but of willingness and ability to foster the “relationship.” Rosenstock v. Rosenstock, 162 A.D.3d 702 (2d Dept. 2018); see also Williams v. Bryson, 2018 N.Y. Slip Op. 08941 (2d Dept. 2018). In effect, a parent must not only express a willingness to nurture that relationship but must act accordingly.
Clearly the parental obligation to foster the child’s relationship with the other parent requires more than merely refraining from active efforts to alienate. It is an affirmative duty to behave in ways that actively promote the relationship. Dobies v. Brefka, 83 A.D.3d 1148 (3d Dept. 2011) exemplifies the point. The court called foul against the mother because she “could not identify one instance when she disciplined [the child] for refusing to visit the father or for misbehaving while visiting.” Interestingly, perhaps ironically is the better word, when Justice Dollinger ultimately turned to the fostering factor he found that “the mother, despite the claims that she has attempted to alienate the children, has worked harder to foster a relationship between the daughters and their father than the father has worked to foster the relationship between the daughters and their mother.”
Given this affirmative duty to promote the relationship, one could argue that, if a tort analogy were to be applied, the negligent infliction of emotional distress fits more snugly than its more stringent sibling employed by the court. In any event, a more direct and productive path would be for the court to bypass the labels and simply measure parental behavior. Apart from questions of motivation or intent, and irrespective of whether the child has yet reached the point of total rejection of the targeted parent, the court can assess whether specific proven parental behaviors are likely to foster the other parent’s relationship with the child or to undermine it. In effect, by their deeds you will know them.
Justice Dollinger’s prodigious work product in J.F. v. D.F. is an important and evocative contribution to family law jurisprudence. It is a decision not only to be read but to be studied, indeed savored, as it reflects a standard of scholarship to which one would hope all among bench and bar would aspire. Whether one wholly embraces his proposed definition of parental alienation or not, the decision serves as an important reminder that such loaded terminology ought not to be lightly bandied about. It carries practical import as well. The practitioner, when presenting a case on behalf of a “targeted parent,” would do well to cast the case in the broader terms of whether the opposing parent’s behavior lives up to the affirmative obligation to promote the client’s relationship with the child rather than relying solely upon a theory of “parental alienation.”
Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John’s University.