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.