Written by attorney Ronald Anthony Sarno

New York Case Law on Parental Alienation: Part 1 Young v. Young, 212 AD 2d 114 - NY: Sup.Ct (1995)

In Young the trial court had kept the children with the mother in spite of strong evidence of severe parental alienation syndrome. In Young the reviewing court decided the trial court was wrong in ignoring the strong evidence against the mother as an alienating parent: The Young case is valuable for citing other relevant NY cases in its argument.

The court reasoned: “In this case, after having spent approximately 56 hours meeting with and evaluating the parties and the children, Dr. Marc Reubins, the court-appointed psychiatrist, was of the opinion that it was ‘not in the best interest of the children to remain living in the house with their mother as she is thoroughly incapable of supporting a relationship between the children and their father and has demonstrated this incapacity over the past four years with consistent effort and diligence’"

To the reviewing court this was clear evidence of parental alienation, and also sufficient legal grounds for switching custody: The court said: “ Inexplicably, the trial court ignored this unequivocal testimony and recommendation of Dr. Reubins. In its decision, the court stated that ‘neither Dr. Reubins nor the Law Guardian concluded that the mother was materially less fit as a parent’. Yet, the record is completely to the contrary. In as clear language as possible, Dr. Reubins testified that,’she's unfit, and that's why I'm saying the kids shouldn't live with her’.

The reviewing court noted that the expert was appointed by the court (so he was not an advocate for one parent over the other. The trial court also refused to consider the forensic evidence which had been presented at trial: The court said: “Moreover, in rejecting the recommendation of the court-appointed psychiatrist, the trial court herein stated that, ‘There is no convincing or dependable psychiatric evaluation for the court to accept and rely on in making the custody determination’. It is evident that the court completely disregarded Dr. Reubins' recommendation; and, without any discernible reason or basis in the record to support such a determination, its conclusion is nothing short of arbitrary (see, Matter of Harvey v Share, 119 AD2d 823, 824).

The reviewing court also noted that the trial court relied too much on the mother’s expert who had stated on the record that he lacked the qualification to make a recommendation as to custody: “Furthermore, the court chose not only to disregard and ignore the very strong and unequivocal opinion of Dr. Reubins, it also based its determination on the opinion of the mother's expert, a Dr. Green, whose own evaluation was concededly flawed. Dr. Green himself, who had interviewed the mother and children for only a few hours over a two-week period in February 1994, admitted that his qualification to make a custody recommendation was limited since he had not seen both parents and he had not seen the children interact in the presence of both parents. Under these circumstances, little or no weight should have been accorded to his recommendation that custody be awarded to the mother (see, Matter of Rebecca B., 204 AD2d 57; 120*120 Matter of Williams v Williams, 188 AD2d 906; Frank R. v Deborah Ann R., 204 AD2d 615).

The reviewing court held that more weight should have been given to the court appointed expert because he had done a much more complete evaluation: “In the case at bar, Dr. Reubins performed the only complete evaluation of the parties and children as the court-appointed forensic expert. His opinion was strong, firm, competent, weighty, and unbiased. Since Dr. Green's testimony was of limited probative value, there was, in essence, no qualified expert opinion to contradict the recommendation of Dr. Reubins. Thus, in this respect, the trial court's decision, which entirely disregards and ignores the very strong and unequivocal expert opinion and recommendation of Dr. Reubins, lacks a sound and substantial basis."

The reviewing court also criticized the trial court for not seeing how clearly the Law Guardian (the advocate for the children) had determined the mother was an unfit parent because of her unrelenting interference with the father’s visitation: The Young court said: “In addition to rejecting without explanation the recommendation of its own impartial psychiatric expert, the trial court also dismissed the equally compelling recommendation of the appointed Law Guardian. The court's criticism of the Law Guardian's recommendation was primarily centered upon the Law Guardian's perceived failure ‘to touch upon the mother's fitness as a parent’. Yet, in his report, the Law Guardian clearly articulated reasons as to why he thought that the mother was unfit, and those reasons clearly had to do with the mother's interference with the father's visitation with the children. The Law Guardian unequivocally recommended that the custody of the children be transferred to the father and that the mother should only have supervised visitation.

The reviewing court in Young also criticized the trial court for not considering that the experts were most concerned about the mother blocking visitation and her false accusations of sexual abuse. The Young court said: “We now turn to the underlying basis for both Dr. Reubins' and the Law Guardian's recommendations for a change of custody; namely, the mother's constant interference with the father's visitation with the children. While the mother's interference took on many forms (e.g., the mother frequently made other plans or arrangements for the children on the dates and times that the father was to have visitation), its most pernicious form was the numerous false allegations of sexual abuse made by the mother against the father.

The reviewing court considered the history of 1) multiple accusations of unfounded charges of sexual abuse against the children and 2) a prior court decision not to grant the mother an order of protection: The Young court said “Initially, it should be noted that Mr. Benjamin Malewicz, a caseworker with the Child Protective Services of the Nassau County Department of Social Services, testified that during the course of his investigation into an incident that allegedly occurred in October 1993, he had learned that there had ‘been numerous sexual abuse charges filed, somewhere in the number of seven different reports, and that they [had] all come back unfounded’ . This confirmed the earlier testimony of Mr. Mark Clavin, a senior investigative caseworker for the 121*121 Child Protective Services of the Suffolk County Department of Social Services, who had stated that he had been aware that other sexual abuse charges had been filed with respect to the Young children and that all had proven to be unfounded. Clavin also indicated that the May 1993 incident that he had investigated was also unfounded. Dr. Reubins' report also noted the numerous allegations of sexual abuse made by the mother to Child Protective Services which had been unfounded. Moreover, a hearing had been held in April 1992, in Suffolk County Family Court, with respect to two alleged instances of sexual abuse, after which the Family Court dismissed the mother's petition for an order of protection.

The reviewing court noted that the mother had produced three experts who were supposed to prove the truth of sexual abuse of the children and none of the three would support the allegation: “In addition, during the course of the trial, the mother presented the testimony of three medical doctors, all pediatricians, in an attempt to bolster her claims of abuse. Significantly, none of the three would confirm that there had been abuse. Indeed, Dr. O'Rourke, who was Emily's regular pediatrician, testified that she had examined Emily on April 9, May 4, and May 8, 1992, and that all three examinations had been normal with no signs of abuse. Dr. Dominquez, a pediatrician at the Nassau County Medical Center who examined (and photographed) Emily on May 3, 1993, testified that although she had found some evidence of ‘tunneling with traction’, such a condition was equally consistent with a finding of constipation and by itself was not consistent with an allegation of abuse. The third doctor, Dr. Ford, also a pediatrician at the Nassau County Medical Center, testified that she had examined Emily on January 1, 1994, and found no evidence of abuse."

The reviewing court in Young concluded: “These repeated uncorroborated and unfounded allegations of sexual abuse brought by the mother against the father cast serious doubt upon her fitness to be the custodial parent. Moreover, during the course of her unrelenting campaign against the father, the mother has subjected the youngest child, Emily, to numerous physical examinations including the probing and photographing of her private parts, and culdoscopies. Furthermore, during an in camera interview, Emily told the court that her mother reminded her every night that her father hurt her and that her mother would not let her father have visitation ‘because then my mom said he would learn his lesson.’"

Additional resources provided by the author

Please see my two other legal guides: New York cases on PAS, Part Two and Part Three; Also Parental Alienation Syndrome: an Introduction; Parental Alienation and Family Law Litigation; Divorce and Separation in New Jersey and in General; Child Abduction and International Law

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