Parental Alienation, the Courts, and Emotional Distress

What is Parental Alienation?

The intentional alienation of a child’s affections with his or her parent without cause.

The tactics used after methodical and calculated acts of child abuse which can result in severe consequences. The alienated child an targeted patterns can suffer irrepairable harm.

Even if the child and the targeted parent once had a close, loving relationship before the alienation began, in severe cases, they can lose any existence of a relationship as the direct result of the alienation.

The “alienator” is not always a parent, it can be anyone in the child’s life that has the control and opportunity to influence the child.

The alienation also oftentimes extends to the child’s friends and extended family members.

While family courts recognize that parental alienation happens, (especially in high conflict divorces with child custody disputes), allegations of domestic violence can create an atmosphere of improper justification for the tactics used in alienation.

Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. or the University of Michigan, School of Social Work, submitted a research report to the U.S. Department of Justice which analyzed parental alienation in the family court system.

In their findings, it was concluded that the Judges, private attorneys, and custody evaluators were more likely than domestic violence workers and legal aid attorneys to believe that mothers make false allegations of abuse. This position creates a difficulty for a battered spouse to protect themselves and the child from abuse as they are labeled as an alienator.

This can have catastrophic consequences when “parental alienation syndrome” is brought up by the abuser to counter an allegations of domestic violence. The. battered spouse can even lose custody to their abuser and be erased from the childs life..

In a 2002 case in Nassau County, 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).

This can be achieved by a forensic custody evaluation, home study, or in cases where conflicting testimony is present, 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. 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.

Parental Alienation as Form of Emotional Distress Tort Claim

Divorce lawyers see quite a bit of parental alienation in its various forms.

Some cases are severe, like the Tsimhoni case from Waterford & Clarkston, while other cases are mild.

An interesting case, Fukimaki v Ichikawa, decided in the Washtenaw County Circuit Court makes the Tsimhoni case look like a pro confesso divorce proceeding.

One particularly unusual aspect of the case is that the ex-husband filed a brand new case against his ex-wife in the court of general jurisdiction more than a decade after his divorce was completed in the family court.

The basis of the new case: tort claims for “alienation of parental affection” and “intentional infliction of emotional distress”.

The trial court judge dismissed the action on the grounds Michigan does not recognize the parental alienation tort claim and that the emotional distress claim was time-barred.

Not so fast, says the Michigan Court of Appeals. While the appellate court agreed that there is no cause of action for parental alienation, it held that the intentional infliction of emotional distress claim did not accrue until the mother began preventing parenting time with the father.

The trial court selected a much earlier date to begin running the “statute of limitations” clock: the date mother was awarded sole physical and legal custody of the child.

To establish the intentional infliction of emotional distress, the appellate court held that plaintiff must demonstrate that a defendant’s conduct was, “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”

In sum, the courts have held that to be actionable, the defendant’s conduct must be so severe and shocking that a community member is compelled to shout, “Outrageous!”

In his complaint, father sets forth the following allegations:

Mother was twice held in contempt of the family court for disallowing father’s parenting time with the child;
Mother arranged for the child’s teacher to keep the child while she served a stint in the county jail following her second contempt of court ruling;
Mother sent father letters promising that she was committed and determined to completely destroy father’s relationship with the child;
Mother denied father parenting time for 22 consecutive weeks, and
Mother conspired with the child’s school to exclude father from all school-related events.

Based on these facts, if proven by a preponderance of the evidence, would constitute “Outrageous!” acts of conduct.

The case now goes back to the Washtenaw County Circuit Court where this father gets the opportunity to establish the elements of an intentional infliction of emotion distress claim; not an easy thing to do.

Father will have to prove extreme and outrageous conduct that is intentionally designed to cause severe emotional distress.

Although rare, torts can be filed against one’s spouse or former spouse, just like any other named defendant.

Recognizing Parental Alienation

Parental Alienation can be difficult to detect, largely because it may not be intentional. Yet whether the alienating parent intends to disrupt the relationship between the targeted parent and the child, the damage is the same.

In extreme situations, the alienating parent may relocate the child without the targeted parent’s knowledge or permission. Generally, alienating parents feel they are doing the right thing.Fortunately, courts have jurisdiction over most cases; the relocating parent must obtain leave from the court to move out-of-state or more than 100-miles from the child’s established custodial environment.