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.