NY Higher Court Decision on Parental Alienation

MATTER OF BOND v. MacLEOD 2011 NY Slip Op 03153 509360.Appellate Division of the Supreme Court of New York, Third Department. Decided April 21, 2011.

Based upon the expressed preferences of 13-year-old and 11-year-old children, and the mother ceasing her contacts with the children in the face of their protests, the attorney for the children sought to end the mother’s parenting time. The Appellate Court upheld as credible the Family Court’s finding that the mother stopped the contacts out of frustration in response to the children’s repeated refusals to see her. The attorney for the children cited other reasons for the children’s rejection of their mother, including a one-time argument between the daughter and the maternal grandmother in which the mother chose not to intervene, the mother’s failure to attend the children’s extracurricular activities, and the children’s dislike of the mother’s boyfriend. The Appellate Court did not find these reasons compelling.

From the Appellate Court’s decision: “Although the children’s desires regarding visitation should be considered, Family Court appropriately noted that their wishes are not determinative (see Matter of Sinnott-Turner v Kolba, 60 A.D.3d 774, 775 [2009]) and, in any event, the court indicated that it believed some degree of parental alienation by the father had occurred (see Matter of Bronson v Bronson, 63 A.D.3d 1205, 1207 [2009]). Based on the foregoing, we do not find that the termination of the mother’s visitation would serve the children’s best interests.” [Emphasis added.]

This case is another in a series suggesting that courts are beginning to understand the complex dynamics of parental alienation. For a list and analysis of higher court decisions in cases where parental alienation is alleged, click here. As alienated parents know, children’s refusal to follow the court-ordered parenting schedule can be a formidable obstacle to contact. While I recommend in my book, Divorce Poison, that rejected parents should not passively accept the lack of contact, in some situations this is the least detrimental option. Even when it is not advisable, it is important for courts to appreciate that acquiescing to the children’s demands is a very common error made by rejected parents (and by some courts). Hanging in when children repeatedly refuse contact is tough. Moreover, the parent may be acting on advice from a therapist who hopes that a cooling off period will help heal the relationship.

The decisions by the Family Court and the Appellate Court suggest that the judges understand that the reasons offered by the children’s attorney for ending the children’s contact with their mother fail to justify such a tragic outcome. When compared to the gravity of ending a parent-child relationship, the reasons are trivial. In addition, the Appellate Court explicitly recognized that the father played a role in the children’s estrangement from their mother – “some degree of parental alienation by the father had occurred” – thus undercutting the argument that the children’s preferences were reasonable and a guide to their best interests.

Both courts noted that children’s expressed preferences are not determinative. For an analysis of the hazards of relying on children’s stated wishes in custody disputes, see my peer-reviewed article, Payoffs and Pitfalls of Listening to Children and my lecture on the DVD, Benefits and Hazards of Involving Children in Custody Decisions.