We have previously blogged on the issue of whether a separate tort cause of action exists for parental alienation.  At present there are at least  two cases in the Appellate Division addressing this issue.  In at least one of the cases, there is the direction that parental alienation should be dealt with in the family court, but not as a tort. 

In an unreported Appellate Division decision dated June 5, 2009 entitled Cole v. Cole one of the issues raised in an application was parental alienation on the mother’s part.  Specifically, the father alleged hat the mother seeks to alienate the children from him. He made a number of
general allegations that defendant was not abiding by the parenting schedule fixed by court order, including contentions that on multiple occasions defendant refused to allow court ordered parenting time or to permit the children to speak to him on the phone.  In her responsive certification, the mother denied  that she interferes with the father’s.   She stated that the children were "well, adjusted, healthy and normal, both physically and emotionally," although she did indicate problems with the children when they returned from defendant’s home.

The trial court did not change custody or even give a hearing.  The judge did find that certain additional parenting time should be considered for the father but denied his motion without prejudice.  The father appealed arguing among other things that the decision condoned the mother’s bad acts. The Appellate Division affirmed.  In doing so, there was a very interesting quote, as follows:

After a careful review of the record, we concur with the trial judge that defendant has not made a sufficient showing that changed circumstances have occurred and that "a genuine and substantial issue" of custody is present. Certainly, the hostility between these parents does not benefit the children. In a divorce setting, oftentimes the greatest test of a parent’s love for the children is to foster, in the face of adversity, the children’s love for and relationship with the other parent and to work with the other parent in a civil manner to benefit the children. It is a circumstance that forces a parent to dig deep into himself or herself and put that love for the children ahead of the bitterness felt toward the former spouse. However, defendant’s proposal to change custody will not accomplish that nor remedy any problem here.

If, indeed, parenting time is being denied, enforcement remedies should be sought. If defendant seeks additional parenting time, such as an additional weekday dinner as suggested by the trial judge, that relief can be requested from the trial court if the parties cannot agree. The record does not indicate that the circumstances here are so deleterious to the children that "a genuine and substantial issue" of custody
is present.


The full record is obviously not included in the opinion.  Of note, however, is that there does not seem to be a finding that the mother was not interfering with the father’s parenting time.  If that is the case, it sure seems that her bad acts have been condoned by the Court.

Perhaps a motion seeking to change custody was premature and a motion for enforcement, make up parenting time, etc. may have been more appropriate at first.  Maybe not.  Had that motion have been made, it would not be shocking if the result was that a court did not grant a plenary hearing, and further, makes no real findings at all – but rather just admonishes the parent not to violate the order in the future. 

Would it be shocking if that empowered the custodial parent to continue acting in an aberrant way, since nothing happened at the first motion.  In that event, it is conceivable that the non-custodial parent either becomes resigned to this treatment or another motion is filed. 

Maybe then the case is dubbed a "high conflict" case and a parent coordinator is appointed.  Does the conduct stop – or is it just now become the province of the parent coordinator?    If the Court really wont enforce an Order because perhaps there are conflicting Certifications, does the aggrieved party ever get any real relief?  Does the situation with the children worsen?  The Court above said that  a change of custody would not remedy the situation.  Why not?  If interference with custody and/or alienation were really dealt with and sanctions were really imposed, one would thing that that would be a deterrent to future bad conduct.  If loss of custody was a remedy, that too may be a deterrent. 

The argument made in at least one of the pending Appellate Division cases was that the situation with the children was too far gone and the only real remedy was a tort action where money damages were possible.  If the Family Part does not effectively deal with these issues, what is so wrong with that? 

The aspiration goals of the above quote are laudable.  But are they realistic?  I would expect that the quote would be lost on the very people to whom it was directed in this case – and to those who it would be directed in similar cases.

4 Responses to Possible Parental Alienation Given Short Shrift by Appellate Division

What will it take in NJ for custody to be reversed for bad behavior by the mother? Interfering with the father’s parenting time by cutting off phone contact, denying visitation, probably denigrating the father, especially if the children are acting weird with the father, these are all signs of bad behavior and alienation by the mother.

It seems that in NJ family court, and the appellate division, that a noncustodial parent must meet an insurmountable burden when it comes to parenting time interference. This must not be the case anymore. Parenting time is constitutionally protected. If the other parent willfully interferes, this is evidence that the other parent cannot put the children’s needs ahead of her own, and is evidence of unfitness to continue being custodial parent.

But, given the blatant gender bias in the NJ courts against fathers, I don’t foresee a shift of this, especially with reported cases as they do in NY State, to indicate that the courts will start taking custody away from mothers for willful interference.

I am the alienated parent and my ex husband and his wife brainwashed my 13 year old daughter. They live a mile away from me. Me and my daughter had a disagreement then she text her stepmom, after 5 minutes I realized that she had run away. Her stepmom picked her up without my consent. Right now I am still waiting for my daughter to come back they will not allow me to talk to her. We had a court appointed parenting time and they are breaking the court order by allowing our 13 year old decide where she wants to be? Am I right? What right do I have as a mother and what can I do in this situation to get her back. Can a 13 year old decide where she wants to live? Please advise.

we have a court order for each parnet to share the cosst of visitation. My step lives in another state. the ordered the mother to send him here once a month.She told the judge no, judge said, “Yes you will” since then, 3 month ago she has not sent him but once. Now she has turned my stepson againest his father and today he told him he never wants to see him again. This mother did this to a great father & his son BECAUSE SHE DOES NOT WANT TO SPEND THE MONEY! THE COURTS REALLY NEED TO LOOK AT BOTH SIDES. JUST BECAUSE YOU ARE FEMALE DOES NOT MEAN YOU ARE THE BETTER PARENT!!!!!!!!!!!!

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