Sometimes in custody disputes, one parent attempts to get a leg up in the custody case by bad-mouthing the other parent to the children. Additionally, in more extreme cases, a parent in a litigation may even try to persuade a child to make false claims of abuse or neglect against the other parent. Courts take these matters very seriously and this type of behavior is strictly prohibited. In New Jersey, judges will often include a “Childrens’ Bill of Rights” directly into court orders to prohibit parents from discussing any litigation or drawing their children into disputes with the other parent. Unfortunately, because these activities occur behind the scenes, it can be difficult to prove that these events are actually occurring.
A parent faced with this problem can bring a custody or divorce action or he or she can file a post-judgment motion to preclude this conduct or to modify an existing order. A family court judge in New Jersey has the authority to order compensatory, make-up parenting time. A family court judge also has the authority to reduce or limit the custodial rights and parenting time of the offending parent if it can be proven that the alienating behavior is causing harm to the children.
Most of the time, if a parent raises these types of claims against another parent, these claims may only be litigated in the family part. This means that other than possible awards of counsel fees, or court sanctions there would be no substantial money damages awarded against the offending parent for this type of conduct.
A New Jersey appellate court in Segal v. Lynch, 413 N.J. Super. 171 (App. Div. 2010), addressed whether or not a parent could seek civil redress against the other parent for emotional damages relating to custody and parenting time cases. In Segal, a mother had had made frequent numerous alienating statements to the parties’ children, which resulted in the loss of the relationship between the father and his two children. The father brought a civil tort suit against the mother, alleging that the mother committed intentional infliction of emotional distress. The lower court dismissed the action. A New Jersey appellate court reviewed the decision of the lower court. The appellate court held that parents should not be permitted to routinely bring civil suits against each other for alienation of the affections of their children. The Court stated that routine claims of intentional infliction of emotional distress arising out of one parent’s alienation of the affections of the children were against public policy. The Court explained that these claims would almost always require the children to act as witnesses against one or both of their parents and it would not be in the best interests of the children for these cases to proceed.
However, interestingly, the appellate court left the door open for one parent to file a civil action against the other parent in extreme cases. The appellate court in Segal specifically noted that civil redress would be appropriate when “one parent falsely and intentionally accuses the other parent of sexually abusing the child.” Id. at 189. The appellate court explained that a false accusation that a parent has sexually abused his or her own child is “so despicable and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts.” Id. at 189. Another Court in an unpublished decision in Monmouth County New Jersey held that a grandparent who colluded with a parent to withhold a child in another country and advised the child that his parent had abandoned him, could also potentially be liable in a civil claim.
Ordinarily, a parent is precluded from bringing claims of emotional distress against the other parent in New Jersey. However, in extreme cases, a parent who has been alienated from his children by the other parent may bring a civil action for damages against that parent if the claims of alienation include false accusations of sexual abuse or otherwise lying to a child about one of their parents. Anyone seeking to bring this type of claim must recognize that this relief is very limited and the circumstances must be extreme.
Amanda W. Figland concentrates practices in family law, where she handles divorce, dissolution of civil unions, partition, and child support and custody issues. She works out of Obermayer’s Cherry Hill, NJ office and can be reached at 856-795-3300 or at Amanda.Figland@obermayer.com.