Court Intervention in Child Alienation Cases

Alienation: What It Is And What It Is Not

The term alienation, which has become a part of the lexicon of high conflict divorce, is frequently misunderstood and misused. At its core, alienation is about a child's disturbed behavior, not about a parent's behavior, and it involves a profound change in a child's reaction to a previously loved parent. This reaction typically occurs in the context of an acrimonious divorce in which the child has been exposed to a great deal of anger and conflict and suddenly begins to reject one parent and become intensely aligned with the other parent. The child's anger at the parent is not based on the reality of what has actually happened between the parent and the child, despite what they may claim. In the most severe cases of alienation, the relationships in the family become completely polarized. There is a good, loved parent and a bad, hated parent. The child has lost the freedom to love both parents.

Although often attributed to “brainwashing,” alienation is a complex phenomenon that is caused by a convergence of factors. A history of intense marital conflict, a separation that is humiliating for one parent, persistent denigration of one parent by the other, the personalities of the parents, a child who is vulnerable in one way or another, and aligned professionals and aggressive litigation can all contribute to the creation of this problem. While the persistent denigration by one parent of the other is a necessary pre-condition for alienation, it is rarely the only factor that drives this process.

Some children rapidly become severely alienated from one parent and refuse contact completely, while others become aligned with one parent and want only limited contact with the other. Initially, these latter children may not completely reject the other parent, though the underlying dynamic of polarized family relationships is present. If the issues in these families are not addressed, however, the children are at risk of becoming alienated. Therefore it is critical not only to identify the already alienated children but also those children who present with milder or more moderate signs of becoming alienated.

Alienation is not what has been identified as “realistic estrangement” or “justified rejection.” There are times when children reject a parent for good reasons, such as when the parent has been violent, abusive or neglectful, or has demonstrated several parenting deficiencies. In these cases, the child's rejection of the parent does not reflect unreasonable or unfounded anger toward a previously loved parent. Rather, the rejection is a healthy response to the parent's damaging behavior.

Hostility, denigration and other expressions of anger by one parent toward the other during a high-conflict divorce should also be distinguished from alienation. Parents in these cases frequently attack one another and say nasty and vindictive things. Accusations of alienation quickly follow. However, while this behavior is far from optimal, it is not alienation. Alienation is about the disturbed behavior of a child and the transformation of the parent/child relationship. Anger is about parental behavior and is observed in many high conflict cases. That is, when a child rejects and refuses contact with a parent, alienation is present. When a parent becomes hostile and attacking, it is bad behavior but not alienation. This is one of the most critical concepts to understand.

What the Court Can Do

There is a consensus in the mental health field about how to improve our approach to alienation cases. While in some cases the alienation may be so severe that it is resistant to intervention, in many others the court can have a significant positive impact on the family. Knowing full well that these cases are extremely complicated and range from severe to moderate to mild, there is agreement that they require the following actions.

Early Identification: Early identification of the issue is indisputably necessary in these families. Time is of the essence and delay in identifying alienated children, or those at risk, reduces the likelihood of successful intervention. A child's refusal to visit, or the suspension of visits, is a “red flag,” particularly if the parent and child previously did things together before the separation and if there are no clear indicia of realistic estrangement. While a full forensic evaluation may be useful in some cases, early identification of the problem should not await such an evaluation. Instead, careful inquiry and prompt intervention is crucial in these families.

Strong and Consistent Judicial Case Management: The court has credibility and authority and the respect of all parties, and must play an important role in these cases. Unless the court provides direction, establishes expectations, monitors the family regularly and ensures consequences follow for violations of court orders, the likelihood of successfully overcoming the alienation is low.

Clinical Interventions: Clinical interventions must be crafted and ordered by the court. They should be structured and responsive to the specific needs of each family and should include both parents and the children. A family systems approach to treatment should be utilized with a team of clinicians, objectives of treatment/intervention should be established, and minimum periods of time for treatment should be delineated by the court. Clinicians who work with the family must be knowledgeable about alienation. If they are not, intervention can be useless, or even destructive.

Collaboration: Collaboration between the court and mental health professionals is necessary to identify critical issues and to structure interventions and orders that integrate the perspectives of the psychological and legal professions. Any intervention plan should be informed by clinical insights and implemented through the court's authority.

Continuing Contact: Contact with the rejected parent must not be suspended, even if it requires therapeutic involvement or the presence of another person (not supervision). The moment contact stops, the risk of entrenchment increases.

Authority for Court Intervention: The Case Law in New York

New York family law reflects an historic interplay between the legal and mental health communities and underscores the authority and responsibility of courts to compel parties to participate in, to facilitate their children's participation in, and to pay for mental health treatment.

In Wolfson v. Minerbo, 108 A.D.2d 682 (1st Dept. 1985) the First Department “insist[ed]” that the parties “ meaningful[ly]” comply with a Family Court order that “ directed that the parties and the children submit to counseling and that the father pay the costs therefor” “so that a reasonable relationship can be reestablished between father and children.” The Second Department joined the First Department in Resnick v. Zoldan, 134 A.D.2d 246, 248 (2d Dept. 1987), directing “the parties and their daughter to undergo a program of psychiatric counseling under the court's direction and supervision in an effort to attempt a gradual assumption of visitation.” Since then, the appellate and trial courts have in myriad cases directed parties to participate in some form of psychotherapy.

Courts have also monitored the parties' attendance in treatment.

In Mark-Weiner v. Mark, NYLJ 8/24/01, p. 18, c. 4 (New York Co., Gische, J.), the Supreme Court required the defendant to provide “proof that he is actively involved in such therapy” in the form of a bill marked “paid” or other receipt for services. In Singer v. Peters, 284 A.D.2d 152 (1st Dept. 2001), the court held that, with the parties' consent, the Supreme Court was entitled to review the therapist's notes and to obtain the testimony of the therapist to determine the parties' “participation and progress in the therapeutic process.”

Trial judges, with the approval of appellate courts, have been involved in selecting the “nature” of the therapy or the “manner in which [it] will be accomplished.” Scheuering v. Scheuering, 27 A.D.3d 446 (2d Dept. 2006). In LR v. AZ, N.Y.L.J. 7/31/09, p. 26, c. 1 (New York Co., Drager, J.), the court ordered the appointment of an “intervention therapist” to assist the parties in finding a “cognitive-behavioral” therapist to provide short-term treatment for the child. Where the therapy selected by a parent “was neither consistent nor effective,” the Second Department ordered the parent to enroll the child in “intensive and consistent therapy with a child psychiatrist, with the goal of repairing the relationship between the father and the child so that visitation could resume in the future.” Stebelsky v. Schleger, 135 A.D.3d 774 (2d Dept. 2016).

The Appellate Divisions have made the trial courts responsible for using their remedial authority to ameliorate the damage caused by alienation of children. In Schnee v. Schnee, 268 A.D.2d 392 (1st Dept. 2000), the children were “extremely alienated from the mother” and did not want to “reestablish a relationship with their mother.” Nonetheless, the trial court refused to order the parties and the children into previously agreed-upon therapy “where to do so will serve no useful purpose” because both the father and the children refused to attend therapy. “The court is not unsympathetic to the plaintiff's plight, but can do little to award her the relief she really requests, her children's love and respect. Even a judge has no such power.” The First Department disagreed. Noting that the experts unanimously recommended continued therapy, at least for the children if not the entire family, the court held that the “record does not presently support” the denial of family therapy.

In Wolfson, the court found that neither party was participating in therapy in good faith. The Second Department “insist[ed] that there be a meaningful effort by both parties to participate in the counseling process so that a reasonable relationship can be reestablished between father and children.” In Zafran v. Zafran, 306 A.D.2d 468 (2d Dept. 2003) (Zafran I), the trial court ordered temporary visitation to be implemented by a court-appointed case manager. The alienating father refused to cooperate and “undermined the court's efforts to facilitate unsupervised visitation.” The father next resisted an update of the court-ordered forensic evaluation. Zafran v. Zafran, 28 A.D.3d 753, 754 (2d Dept. 2006) (Zafran II). The trial court, growing frustrated, denied the mother's motion to hold the father in contempt, but “terminated” all visitation. On appeal, the Second Department reversed, directing the lower court to reconsider the issue of contempt and suspending the visitation, reasoning that termination of the father/daughter relationship was not in the daughter's best interests. Since the daughter's interests also were at stake, the court found that contempt, not termination of visitation, was an appropriate vehicle for addressing the father's recalcitrance.

The trial court decisions in Schnee and Zafran express the view that there are limits to what courts can do to repair fractured families. Implicit in these appellate decisions is the hope that, with the assistance ' and, if need be, the coercive power ' of the court, mental health professionals can help to repair severely damaged parent-child relationships. It is unclear what the appellate court in those cases would have done if the father in Zafran or the children in Schnee continued to refuse to participate in therapy in the face of enforcement of the court's contempt powers. Perhaps those appellate courts would reach the conclusion ' as, it seems, the trial courts did ' that there is nothing more that the courts can do for these families. But the appellate courts are insisting that we have to try, and mental health professionals, with the backing of the law, have provided us with a treatment plan that may help in some cases.

Recommendations for Triage

Attorneys with an alienation case should move early in the case for orders that will ensure that contact between the rejected parent and the child continues and that mental health services (that specifically address alienation) are immediately implemented. The motion is more likely to succeed if it is supported by an affidavit from a mental health professional, experienced in parental alienation, who identifies specifically the reasons for the initial assessment of alienation and a plan for addressing the problem. That affidavit should highlight the justification for prompt action.

Elliot J. Wiener is a partner at Phillips Nizer. Bernice H. Schaul is a clinical psychologist. This article also appeared in The New York Law Journal, an ALM affiliate of this newsletter.