This is the last component of my series on Parental Alienation and the role of each of the players in the legal process.  And although I saved the court’s role for my final entry on the topic, it is certainly not the least with regards to importance.  Unfortunately I have not actually stepped into the shoes of the judge, but I have to deal with them in either role as representing the child or representing the parents.  The judge that hears your case will greatly determine the overall outcome.  You can have an effective law guardian (attorney for the child), a determined attorney or a civil adversary, but if the judge hearing your case fails to acknowledge the existence of parental alienation, inappropriately treats it or minimizes its impact, your case can wind up being a wasted effort. 

         The judge has the absolute obligation to apply the “best interest of the child” in any and every case that is brought before him/her.  This requires that the court take into consideration several factors that will determine the psychological, emotional and physical well-being of the child and ensure that the child is raised in a loving and nurturing environment.  The court has several measures it can take to get a full and comprehensive picture of the entire set of the circumstances.  Once the parties appear in court and the basic facts are laid out, the court wants to address the child’s interests and his/her perspective on things.  In the first instance, a law guardian (attorney for the child) is or should be assigned to interview the child and report to the court.  The purpose of this report is to communicate to the judge what the child’s position is and his/her desires in regards to visitation or custody.  From here, the judge may order a forensics evaluation, which entails appointing a psychiatrist, psychologist, social worker or other appropriate expert to examine all the parties, the child and any other persons he/she need to make an assessment in reference to child visitation or child custody.  The judge has the discretion to order forensics in child visitation and child custody cases, unless the parties request one or the evidence raises an issue with respect to the child’s or either parent’s mental, psychological or emotional health.  However, the determination of whether parental alienation meets the criteria for cases in which forensics are necessary, as opposed to discretionary, is still up in the air.  In a 2002 case in Nassau County, for instance, a trial court found that in cases where parental alienation is alleged, “the court has the duty to become aware of and seek out every bit of relevant evidence and advice on the custody issues before it”, which included a forensic evaluation.  (Zafran v. Zafran, 740 NYS2d 596).  But in another Second Dept. case a few years later, the Appellate Court affirmed the Family Court’s decision denying forensics even where there were such concerns.  It is my practice to adamantly insist on a forensic evaluation when parental alienation is alleged.  Either as law guardian (attorney for the child) or attorney for either parent, the mere fact that we have a child not seeing the other parent is enough to warrant an expert’s  opinion.  Furthermore, I will insist that we use an expert (preferably a psychologist or psychiatrist) that has some experience in parental alienation, particularly if I represent the child or the alienated parent.  And although the expert’s opinion is not determinative of whom the court awards child custody or if it suspends child visitation, it is a very significant factor considered by the judge.

          The next step, typically, is that the judge orders a home study, conducted by Department of Probation or the Administration for Children’s Services.  This department’s objective is to interview persons and obtain pertinent data that will aid the court in determining child custody.  The agency will go out to the home of both parents, interview both parents and others who live in their homes and may interview teachers, physicians, etc. to provide a report to the court.  The home study is also in the discretion of the judge, but is typically ordered in cases where there are concerns or issues of safety to the child that are raised to the court.

          Another tool the court has the authority to use is an “in camera” interview (also called a Lincoln hearing) with the child.  The judge will interview the child in the absence of the parents and their attorneys, having only the child’s attorney present.  The judge has the discretion to do an “in camera”, usually making this determination by assessing several factors.  These factors include the facts of the case, the age and maturity of the child and the need to protect the child from the adversarial proceeding.  My experience is that the judge will conduct an “in camera” if they hear conflicting testimony or if one of the attorneys make the request.  A lot of judges are partial to getting children directly involved in child custody or visitation cases and will therefore only conduct an “in camera” when it is absolutely necessary.

          The judge, regardless as to which path he/she chooses, has the authority to implement other directives in addition to the ones I mentioned.  The judge can order supervised visits during the pendency of the case, can direct that the alienated parent and the child have therapeutic visits (where a therapist both examines the parties together and evaluates each party) and can direct that the alienator parent refrain from or engage in certain acts or behaviors, with the possibility of penalties ranging from financial sanctions to incarceration (for finding of criminal contempt) to change of custody.  It is not uncommon for the judge to change child custody from the alienating parent to the alienated parent.  In fact, in child custody disputes one of the most significant factors considered by the court will be whether the custodial parent fosters a healthy and nurturing relationship with the noncustodial parent. So even where parental alienation is not raised per se, the court may on its own observation decide that the lack of contact is important enough. 

          It is important to familiarize yourself with the legal process in child custody and child visitation cases.  Knowing the role of each player, researching the pertinent laws and procedures, informing the court and being persistent are all key to obtaining your ultimate objective.  Although the ultimate decision is up to the judge, do not for one minute undermine the importance of each phase of the case and the impact it may play on that decision.  Because although the court must do what is in the best interest of the child, it may not think about the child’s longterm well-being without your prompting.

          Feel free to contact my office to discuss your child custody, child visitation or family law case.

         As of December 2007, the Chief Judge Judith Kaye promulgated a new rule with regards to the ethical standards of law guardians in New York. Law guardian are now referred to as the “attorney for the child”.  Under the new rule, section 7.2 of the Rules of the Chile Judge, the attorney for the child must “zealously advocate the child’s position”.  This means that the attorney for the child must consult with the child and advise the child, gaining a full understanding of the child’s circumstances.  If the child is capable of “knowing, voluntary and considered judgment”, the attorney must follow the wishes of the child, even if the attorney believes those wishes are not in the child’s best interests.  If the child is incapable of such judgment, or the child’s wishes would create a imminent risk of serious harm or injury, the attorney is justified in advocating a position contrary to the child’s wishes.  This in essence means that a “law guardian” in parental alienation cases does not have to consider what is in the best interest of the child/client.  Since that is the case if a child tells his attorney that he does not wish to see is alienated parent, unless the attorney is convinced that the child is unable to make sound judgments or is in imminent risk of serious harm by his/her not seeing the alienated parent, the attorney must advocate that child’s position in court.

SEE FEBRUARY 10, 2008 BLOG ENTRY:  PARENTAL ALIENATION: A LAW GUARDIAN’S PERSPECTIVE

          As an attorney, when representing clients I am required to abide many ethical obligations, one of them being to represent the client zealously.  This means that even if I do not agree with the client’s wishes, if I choose to continue to represent that client, I must advocate the client’s position particularly after providing the client with the consequences of his/her choice.  There are still many people in the legal and therapeutic profession that dispute whether parental alienation actually exists, more specifically parental alienation syndrome (“PAS”).  However, with the ubiquity of internet resources, seminars/lectures, publications, etc. on the topic, there are more and more of believers.

          The task of representing the custodial parent/alienator in child custody or child visitation matters in Family Court or as part of a contested divorce in Supreme Court, can be a contentious feat or can be summed up as “all in a day’s work”, depending on the attorney’s stance on parental alienation.  Most of us know that there is nothing more precious than the right to visit with one’s child and the very important impact on the child of having the presence of both parents in that child’s life.  However, convincing the custodial parent/alienator of these idealisms can be another challenge.  Not all custodial parents going through a contested divorce or nasty break up, deliberately interfere with contact between their child and the other parent.  Experts indicate that it is typically the party that was “shocked” or “caught off guard” by the other party’s desire to split or divorce that reacts by sabotaging the child’s relationship with that parent.  It is my experience that the custodial parent that expresses bitterness, anger, sadness, detachment/disassociation, shock, etc. over the breakup is usually the party that selfishly keeps the child away from the other parent.  Even where the child openly and knowingly expressed an affinity and maintained a close relationship with the alienated parent, the custodial parent will still encourage detachment.  I have been in several situations where my client, the custodial parent/ alienator, fired me or complained to the court because I attempted to dissuade them from engaging in their alienating behavior.  And although I take my ethical obligations very serious, my moral beliefs always prompted me to at least try to proselytize them. 

          In child visitation cases, the role of the attorney is to arrange a workable schedule where the child can share some quality time with the noncustodial parent.  Visitation schedules typically depend on the current relationship between the noncustodial parent and the child.  A child that has either lived in the home with both parents (where there was no domestic violence or child abuse) or had a nurturing relationship with the noncustodial parent very early on, typically warrants a schedule of alternate weekends, a few hours during the week and splitting the holidays/summer vacations.  However, where there was a history of domestic violence or child abuse or the child had no previous relationship with the noncustodial parent, it is not uncommon to start with supervised visits, either in the community or at an authorized agency.  Either way, the ultimate objective is to maintain and ensure meaningful and constant contact between the child and the noncustodial parent. 

          In child custody cases, the role of the attorney depends on which party the attorney represents.  Where there was no domestic violence, child abuse (aside from the alienation), drug/alcohol abuse or other behaviors that are contrary to providing a loving and stable environment, there will be a “fit” parent vs. “fit” parent test.  This means that the attorney representing the alienating parent must convince the court that there is no alienation, that any lack of continuity of or impingement on contact is the child’s doing or of the other parent’s own volition.  That attorney must prove that the custodial parent encourages the child to maintain contact, makes the child available for the noncustodial parent and does not support any verbal, behavioral or emotional disparagement of the noncustodial parent.  Many attorneys try to shift the focus onto either the noncustodial parent’s lack of parenting skills, the child’s justification in his/her own decision not to have contact (depending on their age) and other circumstances that can cause the interference.  And although there are instances where that attorney is unable to achieve his/her goal, there are still far too many cases where the alienating parent is able to maintain custody and perpetuate the alienation.

          As the attorney representing the noncustodial/alienated parent, his/her job is quite an uphill battle.  Not only are you up against the law guardian (“attorney for the child”), who must zealously advocate his/her client’s position, a position wholly contrary to your client’s. But you must also defend against another attorney who will work effortlessly to prove that his/her client, the custodial parent/alienator, is not deliberately interfering with contact but is supposedly only supporting their child in his/her choice in the matter.   And although the success of the alienated parent’s case greatly depends on the court’s stance on parental alienation, the attorney representing him/her also has a very significant role.  The attorney representing the alienated parent must first convince the court that there is in fact parental alienation, which should be done as early on in the case as possible.  This means that he/she should adamantly insist on having an assessment done by an expert experienced with parental alienation, as soon as signs are exhibited.  The attorney should provide support to his/her client, in dealing with the frustration, disappointment, sadness of the separation, while insisting that the client continues to attempt contact despite these feelings.  Once the attorney convinces the court that parental alienation exists, his/her job then becomes one of convincing the judge that this is contrary to what is in the best interest of the child, even going as far as proving that it is in fact a form of child abuse.  Expert testimony, a consistent and well contrived plan and a determined client, all serve to propel the attorney into a much better position while defending the alienated parent.
 
          Far too many cases end up with an unfavorable result, where the child only grows up dealing anger, depression, resentment, etc. as a result of the detachment.  Fully understanding and diligently advocating against parental alienation is necessary for all of us who stand on the front lines in Family Court.  I will continue to aggressively defend the alienated parent while trying to enlighten the alienator parent about the impact of alienation.  I believe it is my duty not only to provide competent, zealous and candid representation to my clients, but to ensure that each child has a nurturing and loving relationship with both parents.

          Feel free to contact our office to discuss your child custody-parental alienation, child visitation or contested divorce matters. 

          The aim of today’s discussion is not necessarily to focus on the meaning of parental alienation, since there is a plethora of resources available for that purpose.  Instead, I want to explore the significant roles, within the court process, that each of the players play in child custody cases where parental alienation is a factor.  It is safe to assume that there is at least a minimum understanding of what parental alienation is-the brainwashing, manipulation, control of the child by one parent to stir up feelings of hate, anger, disdain, disrespect, disregard of the other parent, to name a few.  According to the DOJ, it is domestic violence, while to many others it is a form of child abuse/neglect.  Whichever way one chooses to characterize it, define it, diagnose it or treat it, it is indisputably one of the most egregious and catastrophic issues currently plaguing our society as a whole, worthy of open and daily discussion amongst us all.

          Family Court cases are an enigma in that it is involves the only field of law where personal prejudices, cultural influences, religious mores and economic resources all converge, having a direct and profound impact on the outcomes of each case.  Even as an attorney, I am continuously reminded of the fact that there is no hard and steadfast rule in how one should rear or nurture their family.  However, there is a resounding principle in Family Court, as in any other arena, that children are our most precious jewel and should not be sacrificed for any reason.  Nevertheless, it is the individual interpretation of this principle that leads them to make judgments or implement plans that are not aligned with this most important viewpoint.  The  governing standard, ‘the best interest of the child” sometimes loses its acuity as a result, and thus the only person that typically suffers is the child.

          There are key players in child custody cases, which include the attorneys for the parents, the law guardian (the attorney for the children), the court, the forensics (experts), the parents and, most importantly, the children.  I want to explore the role of the law guardian first, since their role is the most pivotal.  This is the person whose job it is to represent the child’s interests, convey the child’s wishes and to protect the child, all concomitantly.  And although this may sound pretty basic, it is in theory but certainly not in practice. I have extensive experience in representing children in child custody and child visitation cases in Family Court and in contested divorces, and in many of my cases I am confronted with or surmise that parental alienation exists.  In many cases, either the custodial parent badmouths the non-custodial parent, will not communicate with the non-custodial parent about significant events, occurrences, etc. in the child’s life, will intentionally disregard scheduled child visitation, blames the non-custodial for the dissolution of the family, makes the child unavailable to the non-custodial by engaging the child in other activities, gains empathy and/or sympathy from the child about his/her emotional state, minimizes the non-cutodial parent’s role while imposing a new partner on the child in his/her place, amongst many others. 

          The law guardian’s role is challenging because despite the circumstances that exist, the child’s wishes must be regarded and communicated to the court by the law guardian and many times this means that his/her client’s wishes not to have any contact with the non-custodial parent must not be dismissed.  Conversely, protecting the child often means that, even where the law guardian must inform the court of his/her client’s wish not to have contact with the non-custodial parent, the law guardian’s going along with this may not be in that child’s best interest.  And although our ethical rules dictate how we are to resolve such conflicts, in practice this can be much more difficult, especially when our own values or sociologic viewpoints come into play. 

         What is much more explicit in our obligations and duties as law guardian is that we are not limited to the issues in the child custody litigation, but have the obligation to address all of the child’s material needs.  In essence, we are held with the responsibility to investigate further if we suspect that there is any form of child abuse/neglect present, and must report this to the proper authority.  In the most extreme case, where parental alienation poses a risk or harm or potential harm to the child’s emotional, psychological or physical well-being, we have a duty to report to the court and Child Protective Services, which may result in a child abuse/neglect case being brought against the alienating parent.  Consequently, again, we are placed in a position of conflict, since reporting any suspicion of child abuse/neglect can sometimes only exacerbate any emotional turmoil the client already experiences.

          The skillful and experienced law guardian will effectively investigate, explore and engage all relevant sources in an effort to establish their client’s rationale for their desire not to visit with the non-custodial parent.  The law guardian should establish a rapport with his/her client, gain the client’s trust and ensure the child that he can confide in him/her, interact with the child in a manner that is suitable for the child’s age, maturity and developmental stage while keeping in mind that there is a complete story.  The law guardian should interview the parties, other relevant persons who may give valuable insight, as well as potential expert witnesses.  The importance of visiting the home environment should not be overlooked, nor should reviewing pertinent records, i.e. school, medical, etc. to be better able to make a complete and comprehensive assessment of what is in the child’s best interest.  Understanding the impact of parental alienation will only serve to equip the law guardian with the tools needed to prevent, terminate or minimize its deleterious effects on children.  At first glance, one can very easily communicate to the court that his/her client has expressed a strong desire not to see the non-custodial parent, particularly when they of “unimpaired” age (12 years old and above). However, it is only when the law guardian truly accepts the importance of the child having a relationship with both parents, by any means, that they can effectively act in the child’s best interest and protect the child. There are various resources and methods available to law guardians to get the court, as well as the other key players in the child custody litigation, involved in addressing parental alienation.  Under rare circumstances should the path taken by the law guardian be supporting the termination or suspension of child visitation with the non-custodial parent, this only serves to compound the problem and perpetuate hate, anger, guilt, fear, etc. well into adulthood. 

          I personally make every attempt to seek every resource available to not only the child, but to all parties, so as not to deprive my client, the child, of either their parent.  I will seek therapeutic visitations, forensics evaluations, individual and/or family therapy, in addition to whatever else is available.  It is important that I stoically and persistently champion for the protection of my client’s interests no matter what the obstacle I face.  I firmly believe that it is our societal duty to ensure that, unless it is expressly contrary to the child’s best interest, each child maintains a healthy and nurturing relationship with both parents.

Contact our office if you need any assistance with your child custody, child visitation, contested divorce cases. 

          This month I will focus on Parental Alienation, which is keeping the non-custodial parent, typically the father, out of the child’s life.  Parental Alienation is a very sensitive and highly complex topic.  In fact, Parental Alienation Syndrome (“PAS”) is a somewhat recent phenomenon that is often disputed but very real concept, usually resulting in very dire consequences.  I have been holding off on approaching the topic of parental alienation because I wanted to aptly “time” this very heated discussion.  However, recently I was representing a non-custodial father in a child visitation case in Family Court, where we had every reason to have the court rightfully grant my client at least supervised visitation.  However, the court acquiesced in the custodial parent’s deliberate interference with child visitation, essentially co-signing and perpetuating the alienation.  After not having any contact with his son for six years, the court refused to order even telephone contact for my client, reasoning that she “would not put the child through that”.  “The child” had a relationship with his father, he in fact lived with both parents for a period of his life.

          Parental alienation is very different from estrangement.  The former is when the custodial parent unjustifiably interferes with the relationship between the non-custodial parent and his child(ren), while the latter is when the child(ren)’s contact with the non-custodial parent ceases for justifiable reasons, usually direct issues between the child and that parent.  And although some experts use the terms interchangeably, there is a difference in the way the courts treat them, the depth and breadth of intervention and the impact on the child, to name a few. 

          In estrangement cases, more often than not the child was either born out of wedlock, never lived with the non-custodial parent, was abandoned by the non-custodial parent after a bitter divorce or experienced domestic violence in the household (including child abuse/neglect), which prevented or stifled the opportunity for a meaningful relationship to have ever developed between that parent and child.  For example, some of the more volatile environments that can lead to estrangement include the child:  
  1. being the victim of abuse from that parent;
  2. witnessing that parent as the abuser;
  3. witnessing that parent’s immature and irresponsible behavior;
  4. being subjected to that parent’s unduly rigid and restrictive parenting; and/or,
  5. witnessing that parent’s own psychological, psychiatric issues or drug/alcohol abuse.

          Consequently, in many of these cases child visitation was never really an issue because either there was never really a nurturing relationship between the non-custodial parent and the child, the parent continues to behave in a way that perpetuates the estrangement or the non-custodial parent’s whereabouts are or become unknown (especially where there is an issue of child support).  Furthermore, more often than not, getting court-ordered child visitation with the non-custodial parent in these instances undoubtedly requires that the non-custodial parent proves him or herself to the court. And although that may sound like a hurdle, oftentimes it is just a matter of being consistent and persistent, showing the court that the pattern of behavior that lead to the estrangement no longer exists.  In essence, establishing or re-establishing a healthy relationship with the child(ren) is very important.  Once a relationship has been established, typically starting off with telephone contact and/or supervised visitation, the focus then becomes one of stability.  The courts must always keep the “in the best interests of the child” standard at its helm.  In that, the path to reconciliation consists of establishing and implementing a very practical and gradual child visitation schedule.  The range and degree of the child visitation schedule will depend on several relevant factors, i.e. the age of the child, the child’s knowledge of or previous relationship with the parent, the child’s emotional, psychological well-being, etc.

          However, what is one of the most important factors is the emotional impact the estrangement has on the child(ren).  Experts state that even in cases where there were issues of volatility within the family, children sometimes exhibit feelings of anger at not being able to establish a bond with the non-custodial parent.  For this reason, it is much more important to address the emotional and psychological impact of the estrangement, in a great number of cases, than it is to highlight the need for establishing or re-establishing a bond between parent and child.  The court process, as well as the parties, can aggravate this situation if either minimizes the significance of the child’s emotional predicament.   Anger, resentment, guilt, sadness are all typical of a child who has experienced or endured estrangement with a parent.  And since children rarely understand their emotions or know how to effectively channel their feelings, approaching the case from that standpoint only facilitates the rehabilitative process for both parents and child.  Developing and maintaining a relationship with both parents is tantamount to the child being able to better manage conflict and to establishing healthy intimate relationships in adulthood. 

         When I represent clients in these sort of cases, I always try to prepare them for the varying phases of the proceeding.  I always explain to them that their own behavior, both then and now, plays a very significant role in the court process and the length of time it takes to reach the ultimate goal. 

         Please feel free to contact my office to discuss your child visitation or child custody issues.