Proving Parental Alienation and Psychological Damages to the Child at Trial

On April 10, 2019, partner Jordan Trager published an article in the New York Law Journal entitled “A New Way Forward – Looking at Parental Alienation from a Different Perspective”.  In that New York Law Journal article, he analyzed what parental alienation is and how to prove it at trial.  Since then, much has been written on the topic of parental alienation, and therefore this article deserves a second look.

From Jordan Trager:  

Recently, I successfully litigated a parental alienation case in the New York County Supreme Court, involving a 14-year-old teenager who adamantly refused to have a meaningful relationship with her father, due to the severe effects of parental alienation.  After almost 60 court appearances and nearly two years of on and off trial, the court concluded that parental alienation was conclusively proven, that the child had suffered extensive psychological damage as a result of the alienating conduct, and that custody be awarded to the alienated father, against the express wishes of the 14-year-old teenager.

While parental alienation is becoming increasingly accepted by the courts, many judges are still hesitant to take the kind of aggressive action needed when parental alienation has been successfully proven at trial, out of a misplaced fear that changing custody or incarcerating alienating parents could potentially harm the child.

As such, when conducting a parental alienation trial, it is not only necessary to prove the existence of parental alienation as the primary cause of the child’s rejection of a parent, it is also imperative to prove the extensive damage that parental alienation has done to the child and will continue to do to the child, absent the court taking appropriate legal and therapeutic action.

Studies have shown that the psychological damage caused by parental alienation can be compared in some instances to the harm caused by domestic violence.  As with domestic violence, it is not simply the physical signs of harm, but the enduring psychological trauma that can endure long afterwards.

At trial, proving damages in a parental alienation case involves some similarities to the way an attorney proves damages in a negligence case.  It is highly advised that the attorney and his or her client retain the services of an expert witness with extensive experience in parental alienation matters. 

This is not always so simple, as many forensics experts will assure the attorney and his or her client of their knowledge of parental alienation.  The attorney should make sure that the forensic expert is well versed in the 17 alienating behaviors of parental alienation and is able to testify about them extensively as they pertain to the case before the court.

Once parental alienation has been proven at trial, the expert must then be able to testify to the psychological damage caused to the child by the parental alienation, and which the child will likely continue to suffer well into adulthood. 

The psychological damages caused by parental alienation can take the following forms:

• shorter lifespan
• depression
• anxiety
• social withdrawal
• aggression
• acting out
• low self-esteem
• insecure attachments
• substance abuse
• disorders
• fears and phobias
• inability to trust themselves
• inability to trust others
• poor academic performance
• poor physical health
• neurological damage
• inability to think critically
• developmental delays

In New York State, the role of the attorney for the child is not to represent the best interests of the child, as this is the responsibility of the judge.  Absent a very few limited exceptions, the role of the attorney for the child is to advocate for the wishes of the child, regardless of whether those wishes are in his or her best interests.  This makes it even more vital to prove psychological damages.  To override the child’s own wishes, a judge will need to be convinced that it is in the child’s best interests to do so.

Under the best of circumstances, parental alienation cases are difficult to litigate.  Most divorce lawyers are not well equipped to handle parental alienation matters, which is a highly specialized field.  Thus, it is incredibly important that if you are an alienated parent, that you do your research and retain the services of an attorney well versed in parental alienation matters and the proper way to litigate a parental alienation case, so that you receive the best representation possible at trial. 

The author is an attorney admitted to practice law in the courts of the State of New York with over 30 years of experience with a specialization in the field of matrimonial and family law, divorce mediation, and parental alienation matters.