In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in NJ may have a right to collect damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors. 

In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress.  In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children.  The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says.  It also says the children are afraid to sleep at their father’s home because they have been told they are in danger of being sexually abused.

The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong.  Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.

This is the first time that a NJ Court has recognized the ability to bring such a claim.  A prior suit  was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections.  Noting Judge Rand’s opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand’s interpretation of the decisional law in this state and found that a claim existed for these types of behaviors.  Since they are both trial court judges, Judge Rand’s opinion was not binding upon Judge Gallipoli.  Judge Gallipoli noted that the father would have to file an application in the family part seeking relief, however his claims against the maternal grandparents would proceed in the law division.

The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these. 

EDITOR’S NOTE:  It seems contrary to notions of judicial economy, mandatory joiner and the entire controversy doctrine that the claims against the mother and her parents would be handled in separate venues. In addition, while there is precedent to bring tort actions related to a divorce in the family part, a party may have a right to a jury on these issues and the cases are often severed and sent back to the law division anyway. 

The bigger question is how a court should handle these claims in a post-judgment situation where there is not an ongoing matter and ultimate trial date pending.  While court’s can order plenary hearings post-judgment, it seems that when these issues arise post judgment, the better place for them may be in the law division. 

Also, the theory here that makes the claim viable is not that there has been an alienation of affections, but that a person’s intentional act has harmed another, where the only possible remedy for same may be money.   ERIC S. SOLOTOFF

  • Irwin Ironstone

    It is about time. I went through a divorce and one of my two children are alienated. This issue was raised before several judges in Essex county and also in Hudson County.
    My ex, is a professor at NYU, and got preferential treatment before Judge Zampino, of Essex County, and also befor Judge Segluizzo of Hudson County when the action was transfered.
    There is no doubt that this type of behavior is encouraged by members of the legal profession and sometimes the judiciary.
    The suggested solution is to allow an action against both other than a complaint to the committee on judicial conduct, or the bar ethics panel.
    It is a good start to a long overdue problem. the issue of PAS (parental alienation syndrome has been around for a while, but is not always recognized.

    Several US supreme court justices have recognized that at least 1/2 of all non-custodial parents are alienated from their children within three years. At least one large study by Sanford Bravor that was government funded determined that the single most important factor related to a non-custodial parent maintaining a relationship with his/her children is the custodial parent!!

  • KD

    I have a question for anyone out there, who can answer a question about defending against child/spousal abuse in a divorce, vs. accusations of parental allienation etc.
    I do understand that there are very angry people out there who have wrongly been alienated from there own children, but what about being accused of alienating your children when you have not? I am doing my very best trying to “protect,” my children against a father/husband, who was neglectful & abusive psychologically/physically , to all of us. (even our small dog) My husband (not ex.yet) is very manipulative & has been diagnosed with a mental disorder (explaining rage), but will not take meds. advised. What do I do? He has “fooled” one court CNA evaluator and DYFS. (denied it all) I was told that a private “evaluator” is the only answer for me, but I do not have that kind of money. (thousands of $) I am amazed at all of this, considering there has been proof for DYFS & court, that he has lied about several things. The court has already changed the supervised visits ( after rest. order was changed to a civil order instead of per. rest. order) after I listened to lawyers advise. Big MISTAKE! We are afraid of my almost-ex. and the visits-even overnight & many miles from my home-were allowed.(rents a room from another guy….details are a nightmare!)He has already put them in danger (and one of my children has a serious illness that’s affected by the stress & pets that he lives with.) Nobody has cared, yet! What about the childrens rights? Help! There must be advocates for my ill son, at least? This is very, very unfair and frustrating! My children look to ME for protection, and my ability to help them has been robbed, due to this “parental allienation.” That’s all I hear.Why is the assumption of this “alienation,” automatic, where domestic violence is an issue? What about the Moms/Dads just trying to keep their children SAFE? Please send me some better advise! I’d give anything for my kids to have their Dad healthy mentally, and IN their lives. REALLY! Anyone have an answer, at all?!

  • Bill

    To KD –

    That’s what Supervised Visitation ia about. Talk to your attorney if you’re afraid of your kids being around your ex. IT IS NOT UP TO YOU. If you hold your kids back from him, you are alienating them and are promoting PAS. Use the legal system to resolve your problem like you’re supposed to.

  • C. Jeffrey

    Have there been any other cases where “intentional infliction of emotional distress” was successfully tried since Judge Gallipoli’s decision in this 2008 case?

  • Elisa F.

    I have been going through this for three years. The father of my two younger sons (who was physically & mentally abusive with me & I have court papers as proof) bribed and convinced my sons to live with him. I pay child support (you read right, I pay child support for my two younger son through the courts). My sons don’t even bother to call me to say happy mother’s day, happy birthday or any holiday. Whenever I make the attempt to talk to them, they’re either not home or with their friends. My middle son doesn’t even want anything to do with me, but my money is green to them. I feel that I should have right to see them since I’m paying for child support.