By Esther M. Schonfeld, Esq.
“Parentage is a very important profession, but no test of fitness for it is ever imposed in the interest of the children.”
—George Bernard Shaw
All too often, we see cases where visitation is being withheld by the custodial parent, yet the non-custodial parent is still paying child support. One may question whether that is fair. Is it not contrary to public policy to obligate a parent to support the children even when that parent is being denied visitation? What if one bitter parent makes it his or her life quest to alienate the child against the other parent? Should the parent who is being alienated still be required to pay child support?
A recent case addressed a few of these issues. In a decision by the Appellate Division Second Department, in a Westchester County case, the court ruled that the father was not obligated to pay child support due to the mother’s “pattern of alienation” of their child and her interference with the father’s visitation rights. The court found that the mother failed to provide the father with any medical information about the child and she had failed to tell the father that the child had been hospitalized until after he was already in the hospital.
While the family court had appointed a forensic evaluator in the case, the forensic evaluator could not complete the valuation since the mother refused to bring the child for the interview and even refused to consent for the evaluator to speak to the child’s school or mental-health providers. The mother and child refused to cooperate with the visitation for months.
The court relied on a prior case in which the court found that the mother deliberately frustrated visitation between the father and child by manipulating the child’s loyalty to the father and orchestrating and encouraging their estrangement. In that case also, the court suspended the father’s child-support payment until visitation was resumed.
The sad fact of this case is that despite the monetary relief given to the father, the court was unable to do anything to prevent the terrible destruction of the relationship between a boy and his father, and the appellate court’s decision comes far too late to repair the damage that had already been done to the family by the parental alienation.
So what exactly is “parental alienation”? A psychologist, a therapist, and a family lawyer may each provide a different definition. From an attorney’s perspective, parental alienation occurs when a child becomes so enmeshed with one parent as a result of that parent’s influence and rejects the other parent without any legitimate justification. The child is encouraged by the alienating parent to reject and even turn against the other parent. Unfortunately, parents who engage in alienation often believe they can get away with it.
Parental Alienation Syndrome is a theory first made popular in the 1980s by Richard A. Gardner, M.D. Several years before his death, I tried a custody and visitation case in Nassau County where the theory of Parental Alienation Syndrome was argued by the mother against the father, and Dr. Gardner testified as to his theories. While the courts do recognize the concept of parental alienation, as demonstrated by the recent Westchester decision, Parental Alienation Syndrome is not recognized as a disorder by the medical or legal communities, and Richard Gardner, along with his theory and related research, has been extensively criticized by legal and mental-health scholars for many reasons, including lack of scientific validity and reliability.
According to Amy Baker, Ph.D., a researcher, author, and expert in the area of parental alienation, “While PAS is not in the American Psychiatric Association’s manual of diagnoses (the DSM-V), it does meet the APA’s definition of a syndrome.” Furthermore, she believes that “the child victims of parental alienation are not aware that they are being mistreated and often cling vehemently to the favored parent, even when that parent’s behavior is harmful to them.” It is critical never to blame the child for his or her actions. Young children sometimes react in these ways when the stability and security of their life are disturbed.
Visitation and parenting-time rights are taken seriously by the courts. The best interest of the child—which is the standard used by courts in determining issues relating to child custody and visitation, parenting time, and access—dictates that children need to spend time with both parents. In making a determination of the “best interest” of a child, one key factor that the court will consider is the degree of each parent’s willingness to encourage contact and foster a relationship between the child and the other party.
One of the most important things divorced parents can do is help their child maintain a close relationship with both parents. Fostering a loving relationship between parent and child is critical to the development of a child. According to experts, “Every child has a fundamental right and need for an unthreatened and loving relationship with both Mom and Dad, and to be denied that right by one parent, without sufficient justification such as abuse or neglect, is a form of child abuse.” Experts say children do best when both parents continue to provide love and guidance. This will require a parent to put aside personal resentments—not an easy thing to do.
As experienced divorce attorneys, we have seen our share of parents attempting to alienate a child or children from the other parent. The range of alienation runs the gamut from extreme to petty—but all are extremely destructive. For example, we have seen parents removing their child from the country without the knowledge or consent of the other parent; removing the child from summer camp on the day of the other parent’s visitation; telling the child major lies about that parent to scare the child from ever wanting to be with the other parent; interfering with the other parent’s communication with the child, such as not putting through phone calls, or discarding mail or other communication sent to the child.
The good news is that our lawyers have successfully advocated for parents who fought against alienation. It is a difficult road and you need an attorney who has experience dealing with these types of issues.
Most divorced parents confront issues in their divorce that cause frustration or anger toward the other parent, but using the child as a pawn is dangerous and can be forever damaging to the child. Divorce is between the mother and father, and should have nothing to do with the relationship between parent and child. All children need positive role models and certainly benefit from seeing two mature adults interacting in a positive manner. It is no secret that children thrive under the attention of both parents.
Putting your kids in the midst of parental conflict is toxic and is one of the greatest causes of post-divorce family problems. Children are torn about taking sides. It’s a no-win situation because they feel guilty regardless of whom they choose.
We are also often asked by alienated parents how to cope. Maintaining your sanity when your child rejects all attempts at contact is very tough, and navigating these issues and proving it in court is difficult, costly, and time-consuming; yet the alienated parents must hang in there and never give up hope. With the help of an experienced therapist, the alienated parents will eventually see that the alienation they are experiencing is not about what kind of parent they are, but rather about an ex-spouse’s struggles with unresolved anger and other issues.
It should also be noted that custodial parents have been penalized for interfering with visitation and attempting to alienate children from the non-custodial parent. A custodial parent runs the risk of losing custody or being held in contempt and risks further consequences if the conduct continues.
Alienating a child against a parent is tantamount to child abuse and deprives the child of the right to be loved by both parents. This destructive action never turns out well for the child, and often completely backfires on the alienating parent. As the children mature, they may come to resent the alienating parent for inhibiting and sometimes irreparably damaging the relationship with the other parent. As the old adage goes, “What goes around comes around.”
Esther M. Schonfeld, Esq., is a partner with the law firm of Schonfeld & Goldring, LLP with offices located at 112 Spruce Street, Suite A, Cedarhurst, New York 11516. The attorneys at Schonfeld & Goldring, LLP limit their practice to divorce law, family law, and matrimonial law in both secular court and rabbinical courts. The law firm represents clients located in the five boroughs, Nassau, Suffolk, Westchester, and Rockland County in all aspects of family and matrimonial law with resolution through litigation, mediation, and collaborative law. Ms. Schonfeld, also a trained mediator, is a member of the NY State Council on Divorce Mediation.