NJ Family Legal Blog
Posted at 9:32 PM on December 3, 2008 by Sandra C. Fava
A COURT DETERMINES THAT A CAUSE OF ACTION FOR PARENTAL ALIENATION EXISTS
Relatives Are Not Protected By DCF or the State From Lawsuits
In a recent trial court opinion issued by the Superior Court in Hudson County,
Judge Gallipoli recognized that parents in NJ may have a right to collect
damages for intentional infliction of emotional distress when their
relationships with their children are poisoned by former spouses or even
grandparents who partake in alienating behaviors.

In a November 21, 2008 trial court decision, the court recognized the right of
one parent to sue another, as well as grandparents, for what is known as the
intentional infliction of emotional distress. In this particular case, the
father sued the mother and maternal grandparents because they had alleged that
the father sexually abused the children. The suit alleges that the ex-wife and
her parents began alienating the children from the father during the pre-divorce
separation in 2006. The defendants allegedly told the children, court-appointed
psychiatrists and law enforcement officials that the father was a sex addict and
had molested the children in the past, the suit says. It also says the children
are afraid to sleep at their father's home because they have been told they are
in danger of being sexually abused.


The wife and her parents denied the allegations and argued in motions to dismiss
the suit for failure to state a claim that the Heart Balm Act had eliminated the
cause of action of alienation of affection. They argued that the term
"alienating the children" is what the complaint calls the alleged wrong. Judge
Gallipoli found that this claim was not a disguised claim for alienation of
affections, which was banned in the state in 1935 by what is referred to as the
Heart Balm Act.

This is the first time that a NJ Court has recognized the ability to bring such
a claim. A prior suit was filed in the Morris County Superior Court but
dismissed by Judge Rand on the grounds that the suit was nothing more than a
disguised claim for alienation of affections. Noting Judge Rand's opinion in
his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation
of the decisional law in this state and found that a claim existed for these
types of behaviors. Since they are both trial court judges, Judge Rand's
opinion was not binding upon Judge Gallipoli. Judge Gallipoli noted that the
father would have to file an application in the family part seeking relief,
however his claims against the maternal grandparents would proceed in the law
division.

The real question remains as to how the Appellate Division and perhaps even the
state Supreme Court will view claims such as these.

EDITOR'S NOTE: It seems contrary to notions of judicial economy, mandatory
joiner and the entire controversy doctrine that the claims against the mother
and her parents would be handled in separate venues. In addition, while there is
precedent to bring tort actions related to a divorce in the family part, a party
may have a right to a jury on these issues and the cases are often severed and
sent back to the law division anyway.

The bigger question is how a court should handle these claims in a post-judgment
situation where there is not an ongoing matter and ultimate trial date pending.
While court's can order plenary hearings post-judgment, it seems that when these
issues arise post judgment, the better place for them may be in the law
division.

Also, the theory here that makes the claim viable is not that there has been an
alienation of affections, but that a person's intentional act has harmed
another, where the only possible remedy for same may be money. ERIC S.
SOLOTOFF

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Comments (1) Read through and enter the discussion with the form at the end
Irwin Ironstone - December 8, 2008 11:16 AM
It is about time. I went through a divorce and one of my two children are
alienated. This issue was raised before several judges in Essex county and also
in Hudson County.
My ex, is a professor at NYU, and got preferential treatment before Judge
Zampino, of Essex County, and also befor Judge Segluizzo of Hudson County when
the action was transfered.
There is no doubt that this type of behavior is encouraged by members of the
legal profession and sometimes the judiciary.
The suggested solution is to allow an action against both other than a complaint
to the committee on judicial conduct, or the bar ethics panel.
It is a good start to a long overdue problem. the issue of PAS (parental
alienation syndrome has been around for a while, but is not always recognized.

Several US supreme court justices have recognized that at least 1/2 of all
non-custodial parents are alienated from their children within three years. At
least one large study by Sanford Bravor that was government funded determined
that the single most important factor related to a non-custodial parent
maintaining a relationship with his/her children is the custodial parent!!


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