Fox Rothschild LLP

Sadly, serious fractures in a parent-child relationship come up frequently in our practice.  Sometimes, it is because of a parent’s self-destructive conduct (e.g. drug or alcohol addiction, abuse, untreated mental illness, etc.) and other times it is due to the other parent’s or their new partner’s parental alienation or alienating behavior. These cases are difficult because (1) it is not always easy to get to the bottom of why a child is rejecting their parent, (2) the need to balance a parent’s constitutional right to have a relationship with their children vs. child’s best interests; (3) the slowness of the justice system, (4) the lack of reunification therapists much less ones that will get to the root of the issue and work on fixing the problems of both the parent and child (with their therapists), etc.  During a particularly bad alienation case I had several years ago, I came to the conclusion that childhood is fleeting, and any time missed is time that can never be gotten back.  Logically, while the the child will always be the child of the parent, they will not always be a child (i.e. under 18 years old.)  In some cases, the reunification never happens, or does not happen until the child is an adult and the estranged parent has missed out on a good portion of their child’s childhood.

A big issue in these cases is what to do when the child refuses to attend even reunification therapy.  Some judges simply mandate that it be attempted.  I have even heard of instances where the non-estranged parent has been threatened with sanctions because the child has refused to attend.  In other matters, there is a team approach where therapists, the reunification therapist, a Guardian Ad Litem or Attorney for the Child, if ones have been appointed, all confer to try to reach the best conclusion.  In other matters, the court has just deferred to the wishes of a child, which in alienation cases, is obviously problematic.

Deference to the wishes of a 12 year old child is exactly what happened in the case if H.I. v. S.I. n/k/a S.S., an unreported (non-precedential) decision released on September 20, 2021.  In that case, the issue does not appear to be one about alienation but rather, problems that the mother had, described as follows: “The mother has a long history of alcoholism, undergoing treatment, and relapsing, although she asserts that she has been sober for nearly three years and has been working in the field of education after reportedly earning a master’s degree.”  That said, the son had suffered emotional trauma due to his parents’ divorce and his mother’s alcoholism, and had even witnessed her being arrested after being drunk and passed out at a bus stop.  There are also allegations that the mother was abusive at a supervised visit although the New York child welfare agency that investigated at the referral of the child’s therapist did not find evidence that the allegations were true.  In this case, the mother sought to accelerate the reunification process and her motion was denied based upon the court’s receipt of reports from his therapist and a court appointed psychologist, both dubbed “expert reports” recommending against taking steps toward reunification therapy because the child did not want to continue with therapy or reunification therapy.   The son’s therapist suggested that he should be evaluated every three months.

The court denied the mother’s motion based upon these reports, adopting the recommendation that the matter be re-evaluated every three months to assess his readiness to begin reunification therapy.  The mother appealed arguing that “… the experts’ opinions are skewed and do not adequately consider her current sobriety and the affirmative steps she has taken to become a stable parent. The mother further argues the experts and the judge improperly relied on the expressed preferences of a twelve-year-old boy.” The Appellate Division affirmed.

The Appellate Division noted the standard in cases like these, as follows:

Although parents have a presumptive constitutional right to have a relationship with their children, those rights at times must yield to the best interests of those children. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The court has a parens patriae responsibility to consider the welfare of the child in resolving disputes over custody and the terms and conditions of parenting time. Borra v. Borra, 333 N.J. Super. 607, 611-12 (Ch. Div. 2000).

The Court noted that aside from considering the expert reports (and by the way, it is odd that a treating therapist was elevated from a fact witness to an expert witness), the child’s GAL also reported that the child “”presented as frantic at the thought of seeing his mother again” and was “very agitated emotionally at [the GAL’s] suggestion and questions” on the topic.”  The Appellate Division found that this as neither abdicating the decision making role, and that a plenary hearing was not required.

While the result may or may not have been appropriate in the case, certainly, procedurally this raises eyebrows.  First, as noted, a treating therapist is usually not considered an expert, but rather, is usually treated as a fact witness.  Second, expert reports are hearsay and should not usually be considered by a court absent the ability to cross examine the expert. Third, the rule regarding GAL’s provides that cross examination of them should be permitted.

The mother relied on a passage from a 1951 Supreme Court opinion, Callen v. Gill which held, “[a] 12-year-old child has not attained that ripened discretion which enables him to determine conclusively what his own welfare demands. . . .”  The court noted that the mother overstated the significance of this “rather old observation” and noted later (Appellate Division, not Supreme Court) case law that “…has since clarified that a child’s preferences, while not dispositive, are important factors in the court’s decisions.”  The Court went on to state:

We have not regarded a child’s age of twelve as categorially too immature to qualify as relevant to the court’s analysis. Indeed, Rule 5:8-6 authorizes Family Part judges to interview children within the court’s discretion, without specifying age limitations. Historically, such interviews were deemed appropriate for children who were at least seven years old. Robert A. Fall & Curtis J. Romanowski, Current N.J. Child Custody, Protection & Support Family Law §23:3-6 (c)(2021).

Here, the twelve-year old son’s expressed anxiety and fear about resuming contact with his mother was a relevant and important factor to be considered by the experts and the judge. There was no need for a plenary hearing. In this regard, we note the GAL’s cautionary observation that subjecting the son to additional interviews for litigation purposes could further traumatize him.

Essentially, the court held that the three month reviews were good enough.  However, with a child that isn’t presently in therapy and doesn’t want to deal with the past trauma, it seems as likely as not, reunification may never occur and other than making repeated motions every three months, there may be nothing mom can do about it, notwithstanding the positive steps she has allegedly made.  Again, maybe the result was right at this time, but how this occurred seems to create a difficult, if not impossible hurdle for the mother to ever overcome.

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