APPELLATE DIVISION REJECTS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS REMEDY FOR INTERFERENCE WITH CUSTODY
Previously, we blogged about a trial court opinion that allowed a parent to seek damages for interference with custody/parental alienation. In fact, we noted the conflicting trial court opinions released in the last year or so, one of which (in Hudson County) allowed a suit for intentional infliction of emotional distress in these matters, and another (in Morris County) which denied this relief for failing to state a claim.The Appellate Division weighed in on the Morris County case on May 3, 2010, affirming Judge Rand's decision to dismiss the case in Segal v. Lynch. This was a reported, thus precedential opinion.
While rejecting the trial court's decision to dismiss the case based upon the "Heart Balm Act" which prohibited suits for interference with a marital relations, the Appellate Division nonetheless decided that the suit was barred based upon best interest and public policy considerations. In doing so, the court held:
We acknowledge with equal force, however, that plaintiff's cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child's loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally
distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.
Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children
involved in this suit.
While the Court did not foreclose a spouse bring suit against the other for intentional infliction of emotional distress, even as it related to custodial interference, the situations cited as possibilities for suit were limited. In fact, the Court stated:
That being said, we are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification.
That said, the Court determined that public policy should not be driven by extreme scenarios such as those. Rather, the need to protect the children from being drawn further into the battle, from being deposed about a parent's conduct was overarching. As to which division of the Court should hear this matter, the Appellate Division held that:
As a matter of public policy, the grievances raised by plaintiff in this suit must be brought before and addressed by the Family Part as part of an action for custody or parenting time, where the governing principle for adjudication will be the best interests of these two children. In these matters, the Family Part has both the expertise and the power to correct abuses by one parent against the other, while shielding the children from the type of emotional injury that is inextricably linked to a civil action for damages.
Because such claims raise issues that are uniquely suited to the function and expertise of the Family Part, they must be brought as part of an action seeking custody or parenting time under the Family Part's well-established ancillary jurisdiction as recognized by the Court in Tevis. That being said, it is imperative that this determination be made by the Family Part at the preliminary stages of the litigation process. In order to avoid entangling the children in the emotionally destructive process of discovery, a reviewing court must evaluate and determine the legal efficacy of this cause of action upon joinder of issue or in the context of a motion brought pursuant to Rule 4:6-2(e).
This decision raises several questions. Quite often the interference with custody or parenting time, parental alienation or other offending conduct occurs post-judgment, long after the divorce. The decision does not seem to contemplate this. Arguably, to the extent that the conduct is egregious enough, a Complaint could be filed in the Family Part. Otherwise, the aggrieve parent may be stuck with the existing remedies for violation of court orders and interference with custody. Often, these come with conflicting Certifications, which would then require a plenary hearing (essentially a trial) to decide. Rarely, does a litigant get a plenary hearing on these issues. In fact, though the Court rules and equitable powers of the Court allow for sanctions, they are rarely granted. Thus, a party is forced to make motion after motion, getting little relief. If alienating conduct is occurring, the parent's relationship with the child gets worse and worse.
In a perfect world, the Segal v. Lynch decision is sound in many ways. On the other, it will fall short of family judges do not seriously address issues of custodial interference and parental alienation.