LEGAL GUIDE
Written by attorney Ronald Anthony Sarno | May 8, 2010

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

This is a continuation of my legal guide on New York case law and Parental Alienation The reviewing court in Young also noted that the mother was incapable of understanding that the children should have a father in their lives: "The mother's testimony was devoid of any understanding or recognition of why it is important for her children to have a relationship with their father. As Dr. Reubins indicated in his report: 'It has become eminently clear that if the four children of the Young marriage are left in the care of Mrs. Miller, they will not only have no relationship with their biological father, but they will grow up in an environment where they are taught that he is a devilishly perverse parent who offers them an ever-present threat of abuse. There is clear information to support Mrs. Miller's everyday teaching of this to her children without the slightest appreciation of how that distorts their view of themselves, her past or their father. She sees only before her the obligation to protect her children from her fear with no appreciation that the totality of allegations she has raised have been unfounded. She is single-minded in trying to teach the children how dangerous their father is and through that single-minded preoccupation does not allow them to form any type of neutral relationship with their father. Mrs. Miller has been thoroughly unable to support visitation between the children and their father or to engage the children with their father in any way that would support any relationship whatsoever'". The reviewing court in Young also criticized the trial court for totally ignoring the consistent interference by the mother of the father's visitation rights: "Although the trial court heard the testimony of both expert and nonexpert witnesses as to the problems with the father's visitation and had the benefit of Dr. Reubins' report, its decision was noticeably silent as to the mother's persistent interference with visitation. It is clear that the court failed to consider the overwhelming evidence that the mother consistently and willfully interfered in the father's relationship with the children." The reviewing court in Young repeats the basic legal principle that such alienating behavior justifies switching custody: "It is well established that such interference with the relationship between a child and the noncustodial parent has been said to be: 'an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent' (Daghir v Daghir, 82 AD2d 191, 194, affd 56 N.Y.2d 938). This is in recognition of the principle that visitation is a joint right of both the noncustodial parent and the child and that the best interests of the child would be furthered by being nurtured and guided by both of the natural parents (see, Bostinto v Bostinto, 207 AD2d 471, supra). Moreover, '[o]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent' (Matter of Raybin v Raybin, 205 AD2d 918, 921), and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination (see, O'Connor v O'Connor, 146 AD2d 909, 910; Lohmiller v Lohmiller, 140 AD2d 497, 498)." The reviewing court in Young noted in this case that this mother should not have continual custody: "In this case, it is clear that the mother's anger and hostility toward the father has made her unfit to be the custodial parent 'since her attitude would substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the noncustodial parent' (Janecka v Franklin, 150 AD2d 755, 757; also, Matter of Mahoney v Marrano, 134 AD2d 834). The mother's conduct in the instant case was so egregious as to warrant a change of custody to the father (see, Landau v Landau, 214 AD2d 541; Matter of Betancourt v Boughton, 204 AD2d 804; Matter of Beyer v Tranelli-Ashe, 195 AD2d 972; Matter of Carl J. B. v Dorothy T., 186 AD2d 736)." The reviewing court also noted that in Young the trial court was wrong in heeding the children's expressed desire to stay with the alienating parent: "In view of the mother's consistent preaching to the children that their father was an evil and dangerous man, the trial court incorrectly placed emphasis on the children's desire to remain with the mother. A child's preference for a particular parent, while a factor to be considered, cannot be determinative (see, Darema-Rogers v Rogers, 199 AD2d 456; Zucker v Zucker, 187 AD2d 507). In weighing the child's expressed preference, 'the court must consider the age and maturity of the child and the potential for influence having been exerted on the child [citations omitted].' (Eschbach v Eschbach, 56 NY2d, supra, at 173). This is particularly true in a case such as this where there is overwhelming evidence 'that the children's feelings were fostered by the [mother's] hostility towards the [father]' (Bubbins v Bubbins, 136 AD2d 672; also, Zelnik v Zelnik, 196 AD2d 700; O'Connor v O'Connor, 146 AD2d 909, supra). 'The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children' (Matter of Nehra v Uhlar, 43 N.Y.2d 242, 249)." The reviewing court in Young also noted that the trial court had placed too much emphasis on stability it cannot be a conclusive factor in the court's decision: 'Moreover, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of custody would be extremely disruptful to the children. Although stability has been found to be in a child's best interests (see, Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94), it also cannot be determinative. For, as the Court of Appeals has since observed, while stability is an important consideration, "the disruption of change is not necessarily conclusive' (Matter of Louise E. S. v W. Stephen S., 64 N.Y.2d 946, 947)." The reviewing court in Young also noted that the court appointed expert had addressed the issue of stability and disruption. The Young court concluded stability was not a critical determination when the alienating parent's manipulation is so destructive: "'That a change in custody may prove temporarily disruptive to the children is not determinative, for all changes in custody are disruptive' (Matter of Nehra v Uhlar, supra, at 248). The record herein reflects the fact that Dr. Reubins carefully considered and thoroughly answered the questions of stability and disruption in making his recommendation. Furthermore, under the circumstances of this case, where there was clear evidence of the manipulation of the children by the mother, stability should not have been an overriding factor in the court's decision (see, Matter of Sliwinski v Erie County Dept. of Social Servs. [Sliwinski], 195 AD2d 1056; Matter of Erck v Erck, 147 AD2d 921)." The reviewing court in Young also stated that the original parental settlement agreement should not remain in force when there is such a demonstration of parental alienation: "Within the context of our discussion of the role that stability plays in making a custody determination, we would note that while it is often said that the original agreement by the parties as to custody should be afforded priority, 'not as an absolute but as a weighty factor', such an agreement should not be to the exclusion of a careful weighing of the children's best interest (Eschbach v Eschbach, 56 NY2d, supra, at 171-172; also, Allen v Farrow, 197 AD2d 327, 333; Matter of Patsy M. C. v Lorna W. C., 165 AD2d 813, 814). In view of the other evidence in this case, the parties' original agreement concerning custody was not conclusive (see, Matter of Rozelle v Rozelle, 184 AD2d 973)."

Additional resources provided by the author

Please see my two other legal guides: New York cases on PAS, Part One 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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