New York Judge Robert A. Ross Takes Parental Alienation Seriously - NH Judges and Marital Masters Could Learn Something From This Judge – (Post is from the Blog of Tracey A. Bloodsaw NYC Family Law Blog)

New Development in Parental Alienation in New York

      Many of you might have already heard, in the news, by your attorney or by someone affected by the case itself, that a Nassau County Supreme Court judge recently ordered a custodial mother to six weekends of incarceration for repeatedly alienating her child from the non-custodial father.  This decision has gotten the attention of practitioners across the state (and beyond) and the media, even being featured on Fox’s “Good Day New York” this past week, which included an interview with divorce attorney Raoul Felder. 

      The Honorable Justice Robert A. Ross ruled that the custodial mother, willfully violated the court order for child visitation by deliberately alienating the elementary school aged children from her ex-husband, the children’s non-custodial father.   Justice Ross stated:

 ”the evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of ‘good faith’ and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father.” 

The judge made his decision after hearing 23 days of testimony on a motion for contempt filed by the father.  The basis was that the mother violated the agreement that the parties made, in a Stipulation of Settlement as part of their divorce action, which included more than a dozen instances of interference or alienation.   Additionally, the mother made allegations of sexual abuse against the father, which the judge debased her for and found as being “baseless” and “not made in ‘good faith’…”. 

      Although this decision is monumental in the legal community, many legal scholars are concerned about how the Appellate Division will rule on appeal.   This judge did exactly what he had the power and authority to do under Section 753(A)(3) of the Judiciary Law when there is a motion for contempt before him.  Although an order for change of child custody is within the court’s powers where there is alienation and false allegations of abuse, this court ruled under the contempt portion of the father’s application thereby issuing penalties pursuant to the laws concerning contempt.  “Civil” contempt is when a party fails to obey a court order, where there is a court order explicitly set forth a mandate and the contempting party had knowledge of the order.  Penalties include a fine or confinement to jail, or both depending on the circumstances.   In family law cases, the judges rarely impose such harsh penalties as imprisonment because contempt is not really to “punish” the violating party per se but is merely an incentive to gain compliance to the court order.  In family law cases, which are typically very volatile and vitriolic, the court will attempt to temper flames by issuing warnings or explicit directives.   But in this case Justice Ross, who is esteemed for being astute at discerning the facts as they exist, felt that the mother’s actions were so egregious and consistent that jail was the only suitable recourse (although he is considering a change of child custody too.)

      In alienation cases, particularly, it is very difficult to get the court (especially Family Court where the matter is heard before a hired Court Attorney/Referee instead of an elected or appointed judge as in Supreme Court) to adequately address the alienating parent’s behavior, and deterring any future alienation.  Not because they do not have the power (as is evident here) but because they are afraid to rule against the custodial parent when allegations of abuse are made.  New York happens to be one of the states that has extensive resources to investigate, assess and intervene with alienation cases, as opposed to many other states where the judge is to basically rely on his or her own knowledge to discern the truth.  The New York courts use law guardians (now referred to as attorney for the child), forensics evaluators and child protective services to assist it in exploring the veracity of abuse and alienation.   So in cases where the judge is faced with “he said, she said”, there are vehicles in place that can help it to find the truth, minimizing erroneous or unjust findings.  Nevertheless, the courts are still reluctant to act, particularly where a change of custody is requested.  They are more inclined to order the parties to undergo extensive therapeutic and psychological intervention instead.   While basing their decision on “the best interests” standard, the court usually finds that evidence of alienation does not warrant a finding that the alienating parent is “unfit” which would justify a change in custody to the alienated parent.

      I recently attended the Association of Family and Conciliation Court’s annual conference in Denver, Colorado which focused on parental alienation.  The conference included all the players in assessing, treating and adjudging alienation, which included psychologists, social workers, therapists, parent coordinators, parent educators, judges, lawyers and everything in between.  And although it was refreshing to see that attention to this issue is gaining momentum, there is still a lot to be done.  Judges, court personnel, etc. need to be made aware of the reality of parental alienation.  Educating the key players is the only way the courts will take Justice Ross’s stoic position and affect change.