New York Case Law on Parental Alienation: Part 3: Krebsbach v. Gallagher

New York State has some key cases where a court was reviewing a trial court decision about custody and had to decide whether or not Parental Alienation existed and if it did, was it so destructive to the children that the court should have switched custody. My two prior legal guides on this topic review the Young case where the reviewing court decided that the trial court was wrong in continuing custody with the alienating mother and awarded custody to the father. This guide considers a case Krebsbach v. Gallagher, (181 AD 2d 363 - NY: Sup. Ct., Appellate Div., 2nd Dept. 1992). which went the other way: where it was determined that the trial court was wrong in awarding sole custody to the father. The court ruled that the father had failed to demonstrate parental alienation. This case is valuable for understanding when PAS is not so severe as to merit a change in custody.

In Kresbach the father had won sole custody after accusing the mother of being an alienating parent. In this case the court reviewed the family history and the expert analysis and determined that the trial court had made an error in switching custody and the father had not proven his accusation. Custody was restored to the mother.

One determining factor was the mother's willing participation in treatment, her progress in reducing her hostility to the father, and that she had not poisoned the children against the father: The court said: "In this regard, it is important to note the testimony of Dr. Reubins, who, after treating the parties once a week for almost 16 months for over 50 sessions, noted that the mother had made progress in dealing with her feelings toward the father and that 'she hasn't poisoned the kids.'"

One of the accusations of the father was that the mother and stepfather were engaged in a mutual campaign to harm his relationship with his children. The court disagreed, saying: "Nor, as has been suggested by the father and the Family Court, is there any evidence that the mother and her second husband have attempted to alienate the boys from their father. Again, after 16 months of observing the parties in therapy, Dr. Reubins unequivocally stated that he saw no signs of "parent alienation syndrome" -- "I don't think there is a plot or plan to alienate the children".

The expert also pointed out that the stepfather was a good parent to the two sons of the former marriage and the father's parental visitations were not blocked. The court stated: " As far as the mother's second husband was concerned, Dr. Reubins noted that he was merely attempting to be a good parent to the two boys. Moreover, Dr. Reubins also testified that although there may have been a 'lack of vigilant planning' on the part of the mother and father, [but]he saw no evidence of a malevolent intent to deny the father access to his children or to deny him his appropriate role. The Krebsbach case also explained that alternate parenting styles does not automatically mean parental alienation, and instead of refusing to change, the mother had improved her parenting: : "Similarly, many of the complaints raised by the father and many of the reasons given by the Family Court in support of its decision to change custody merely reflect a difference in parenting styles rather than any unfitness by the mother. Indeed, Dr. Reubins pointed out that while '[t]heir general values of home and family and sports and school are very parallel, their specific values of cinema and comics and reading perhaps are different'. Significantly, Dr. Reubins testified that the mother's parenting skills had improved during the course of therapy.

In Krebsbach the reviewing court also noted that the court expert had seen some severe weaknesses in the father's approach to parenting: The court stated: "In contrast, Dr. Reubins's testimony paints a picture of the father as being a manipulative and controlling personality who is not content unless he gets his own way. For example, the father's need to control his sons' lives translated into a battle for sole custody, and his failure to understand that his sons had a social life separate from his. Dr. Reubins was concerned 'about the [father's] capacity to parent these children independent of his own needs * * * He had a hard time appreciating that this kid had a life too.'. Moreover, many of the problems between the parties arose because of the constant provocation by the father. Finally, Dr. Reubins expressed grave concern because the father had recorded extensive notes of the parties' therapy sessions for use at the custody trial, noting that a person who engages in such note-taking is not truly a part of the therapeutic process. While the father was a controlling individual, the mother did not mind sharing the children with the father."

The Kresbach the reviewing court also stated there was positive forensic evidence about the mother's parenting: Significantly, Dr. Reubins noted that a forensics report from August 1990 had said that there was no reason to change custody and that he had earlier testified on September 11, 1990, that a change of custody was not in the best interests of the children."

New York Case Law on Parental Alienation: Part 3: Krebsbach v. Gallagher

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