Parental alienation cases are hard. They are hard for the alienated parent. They are hard on the Judge, who may not have the tools or the time to effectively deal with the problem and/or otherwise, initially dismiss the allegations since many parents who have parenting time issues with their kids or the other parent, use the buzzword “parental alienation” when the explanation may be something different – including their own bad conduct. The cases are hard for the attorneys handling them. They are probably most hard for the children who are caught in middle – losing time with one of their parents during their childhood that they can never get back. In fact, there are many who liken parental alienation – real parental alienation – to abuse.

Several years ago, when handling probably the worst alienation case of my career, I had somewhat of an epiphany that shaped my views on the tragedy that these cases are. Specifically, I realized that childhood is fleeting and that while some will always be the child’s parent, that the childhood portion of it has an expiration date. Lost time, birthdays, holidays, sporting events, graduations, etc. cannot be made up. There are no do-overs.

And too often, courts are too slow to act and by the time they do, the damage gets worse and/or becomes impossible to remediate during the children’s childhood, not to mention that there is often no remedy to make the alienated parent whole and/or punish the alienating parent.

All this preamble leads me to the unreported (non-precedential) Appellate Division decision in the matter of C.S v. J.S. decided on January 9, 2023. In this case, mistakes by a well-meaning trial judge trying to ameliorate what seemed like clear, on-going parental alienation, were essentially reversed by the Appellate Division. Essentially, because due process matters, sometimes form over substance arguments win, as they did here. Also, the fact that a case bounced from one judge to the next didn’t help either.

In this case, the parties were married in 2000, had three kids, born in 2003, 2005 and 2008 and divorced in 2014. The post judgment litigation was “ongoing and contentious.” In 2019, following a 4 day plenary hearing, the trial judge noted that the matter was a “tragic mess” and entered an Order that continued plaintiff’s parenting time but stated that the oldest child should not be present because of her:

… influence over her younger sisters’ relationship with plaintiff. The order further provided during plaintiff’s parenting time, defendant “shall have no contact” with the children. The children were also “barred from sequestering themselves in [their] bedroom[s]” and were directed to interact and eat meals with plaintiff and their stepfamily. The order additionally provided plaintiff with parenting time for the entire 2020 summer with Jane and Cindy. This provision was an effort to assist plaintiff in
repairing his relationship with the children. Plaintiff was also to be fully informed of Jill’s college search.

The November 12, 2019 order required defendant to “do everything in her power to effect the terms and purpose of this order, and actively encourage the girls’ relationship with [plaintiff] on a daily basis,” that plaintiff should be involved in all decisions regarding the children, and he should be kept informed of any events involving the children. The order also indicated any decision for further family therapy was in the sole discretion of plaintiff. The order further provided the provisions of the order should be discussed with the children, but not the court’s opinion. Finally, the court order provided, “should this order not be strictly observed by all involved, the court can and will consider a full change of custody . . . .”

Not surprisingly, Defendant appealed that Order. While the appeal was pending, In August 2020, she filed an Order to Show Cause seeking to change parenting time and the plaintiff sought enforcement of the 2019 Order. A different Judge ordered “a plenary hearing “…a “plenary hearing contemplating defendant’s attempts to facilitate the children’s relationship with plaintiff.”” Defendant filed a motion seeking to limit the scope of the hearing to exclude consideration of a change in custody because the issue of custody was on appeal. The trial court denied the motion.

Typically, when a matter is on appeal, the trial court is divested of jurisdiction to hear a matter except for enforcement of prior orders. It is hard to understand why the trial judge here did not couch the hearing as one related to enforcement. The trial judge also shifted the burden to defendant to show that she was complying with the Order as opposed to the plaintiff proving that she was not.

Usually, I would not put all of the dates in a blog post such as this but here it is important as it relates to my preliminary comments. The 4 day plenary hearing took place on November 13, 2020, January 21, 2021, February 3, 2021 and February 24, 2021. During the hearing, the judge ordered the children to commence reunification therapy and also interviewed the younger children.

The case was still not decided by August 26, 2021 when the judge contacted counsel that new information had come to light from the reunification therapist that was going to be addressed on a September 3, 2021 conference. At the September 3rd appearance, plaintiff was questioned regarding issues related to the oldest child’s college selections and then he rendered a decision.

The judge found that defendant failed to comply with the 2019 Order, awarded full custody of the two younger children to plaintiff and gave defendant supervised therapeutic visitation.

So despite the fact that this process took almost a year, it appears that the good guys won, right (i.e. the alienated parent got custody and there was a harsh remedy imposed on the alienator). Wrong! Defendant appealed and the Appellate Division reversed for a new hearing.

First, as noted above, the trial judge denied the motion to limit the scope of the hearing. Not only that, but the Judge said ” I will consider what the [c]ourt deems appropriate. And I will determine the scope of said considerations.” So not only did the judge not specifically address the lack of jurisdiction due to the pending appeal, but he also did not define the exact parameters of the hearing. The Appellate Division found it to be error because “… defendant did not have clear direction as to what the court would consider or ultimately determine.”

The Appellate Division also deemed that the shifting of the burden – on plaintiff’s enforcement motion – to defendant, was error.

Another error noted by the Appellate Division was the trial judge’s statement that the prior judge determined that this case …”was one of the “worst cases of parental . . . alienation that [it had] seen” because that statement was not in the prior record. Rather, the prior judge found, at least on the record, that “”[w]hile there is no evidence [defendant] set out to alienate the children, there is every indication she has been only too happy to facilitate the estrangement from the [plaintiff] that they clearly feel. The prior court further stated, “[plaintiff] believes his ex-wife has alienated the children. There is no direct or circumstantial evidence that she did so.”

The Appellate Division determined that the judge went into the hearing with a preconception that was wrong and suggesting the prior conduct had not changed.

As a result of these three things, the Appellate Division determined that defendant was entitled to another hearing.

But that’s not all. The Appellate Division also found error with the trial court’s use of the reunification therapist’s report. Defendant argued that the trial court improperly reopened the case based upon the report and that the parties were unaware that additional testimony was going to be taken at what was to be a “conference.” Moreover, defendant argued that the court filed to follow R. 5:3-3 by not providing the therapists report in a timely manner, not permitting her to depose the therapist and not giving her an opportunity to cross examine him.

Again, the Appellate Division agreed, particularly because while the trial judge said that he was not relying on the report, he directly referenced the report and accepted it as accurate.

The matter was reversed and remanded to yet another judge because she previously expressed an opinion on the matter. And while another hearing was going to be scheduled, the parties were compelled to attend mediation, which is ponderous and in this type of case and will only lead to more delay.

It has now been almost 2 and a half years since this round of the litigation started and there likely won’t be a plenary hearing before the Spring, at best. And while the trial judge may have gotten the result right, due process was pushed aside and the parties will have to litigate some more, all while the children remain caught in the middle.

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