In keeping with the tone heightened by Alec Baldwin’s recent campaign to bring awareness to the plight of parental alienation, I decided to address recent legislation signed into law in New York this month concerning child custody and visitation and the impact of parental alienation.
   
          It is no secret that one the factors, amongst the several, the courts consider in making a determination in child custody cases is whether the parent seeking custody has abused or neglected the child.  However, the mere allegation of child abuse or child neglect or the existence of a report with the statewide central registry is not necessarily enough to substantiate a claim of child abuse or neglect and is viewed differently in child custody cases.  The adversarial parent may report false claims as a deliberate move to bolster his or her position in a custody proceeding.  As a result, the law states that an admissible report made to the central registry must have allegations that were investigated, noted as a reported allegation that is supported by some “credible evidence” and must be marked as an “indicated” finding.  This is to minimize the adversarial parent’s ability to benefit from entering into evidence of an “unfounded” finding or false claims of child abuse or neglect that they reported merely to sabotage the other parent’s case.

         On the other hand, a false allegation of child abuse or neglect is also a factor considered in custody proceedings by the court when making the determination of “the best interests of the child”.  However, this factor is not the sole factor and therefore may not be determinative of which parent is the more “fit” parent.  As a matter of fact, there have been several instances where not only the judge and the law guardian downplayed the profound effect false allegations of child abuse has on children, but I have seen court appointed experts recommend that custody be awarded to the parent who blatantly used manipulation and conniving tactics to create a wedge between their child and the other parent, totally disregarding what this does to the child.

         Interference with a child’s relationship with the other parent is also a factor given some weight in child custody proceedings.  Courts typically view a parent who consistently and deliberately interferes with the child’s visitation with the other parent as a strong indication that that parent is “unfit”, holding that such behavior is wholly antithetical to what is in the best interests of the child.  Nonetheless, courts do vary as to how they address a parent who willfully interferes with parent-child visitation, imposing sanctions ranging from ordering additional visits to civil contempt of court charges, depending on the circumstances of the particular case.

          Unfortunately, there are still plenty of naysayers who believe that parental alienation does not exist, that it is just propaganda.  These disillusioned folks believe that parents conveniently made up this theory to create some sort of “footing” in an arena where they would normally not have a chance.  They also believe that spreading such a notion only hurts children, causing parents who have legitimate concerns of child abuse or neglect to remain reticent, thereby perpetuating the abuse.  NYS Assemblyman Bing was the original supporter of the bill, which was signed into law on September 4, 2008.  This is the new amendment to Domestic Relations Law Section 240 which reads as follows:

       “…If a parent makes a good faith allegation  based  on  a reasonable  belief  supported  by  facts that the child is the victim of  child abuse, child neglect, or the effects of domestic violence, and  if that  parent  acts  lawfully  and  in  good  faith  in  response to that reasonable belief to protect the child or seek treatment for the  child, then that parent shall not be deprived of custody, visitation or contact with  the  child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable  actions  taken  based  on  that belief.  If  an  allegation  that  a  child  is abused is supported by a preponderance of the  evidence,  then  the  court  shall  consider  such evidence  of  abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to  that child…”
         The justification behind this law was that the reality of losing a child in a custody proceeding merely based on an allegation of child abuse would have a “chilling effect” and can lead to continued abuse.  The law seeks to impart fairness to contested child custody proceedings to parents who would otherwise be penalized for reporting child abuse even if there was no proof.  In practical terms, this law is superfluous because a recent review of courts’ decisions in child custody proceedings in New York show that judges are still reluctant to order custody or a change in custody based solely or primarily on the fact that there were false allegations of child abuse or neglect.  Even in cases where the court appointed experts indicate that there are concerns of the emotional or psychological impact of such capricious antics, judges will go to the extreme to find that same parent the more “fit” parent and award custody to him or her.  I have witnessed judges employ a myriad of tactics to justify the levity or lack of emphasis on the existence of parental alienation or interference in many cases. And whether it is because they don’t believe it is as serious as some make it out to be, they have their own biases about the mother as custodial parent as opposed to the father, etc.  the fact still remains that it is often ignored.  Furthermore, a new law that only serves to give the courts another means of justifying their decision to downplay the presence of parental alienation and its impact on parent-child relationships is certainly something we could all do without.

          Feel free to contact my office to discuss your family law case.