The Viability of Parental Alienation at Trial

There has been much debate over the years about the inclusion of Parental Alienation Syndrome or Parental Alienation in the Diagnostic and Statistical Manual of Mental Diseases (DSM), which was most recently updated as the DSM-5-TR, effective October 1, 2024. As it stands, Parental Alienation Syndrome is not currently recognized as a mental health condition, however, there has been many efforts over the years to have it included in the DSM as such. In October 2008, a group of mental health professionals submitted a proposal to include parental alienation in the DSM . In 2010 a group of 70 mental health professionals submitted a much more elaborate proposal . As a part of the 2010 submission, a book was published which generated a great deal of comment and discussion, however, there was still no inclusion. 

As practitioners, we hear the words parental alienation almost daily whether it be in divorces or custody matters in family court. Unfortunately, what has become an over use of the term “parental alienation” has diluted its true definition and the consequences of an alienated child. Notwithstanding the general misunderstanding of parental alienation, it remains a constant problem with changing adherence by the courts. 

The deliberate interference with the visitation rights of one parent or with the relationship between the child and the other parent constitutes actions which are inconsistent with the best interests of the child. Jones v Leppert, 75 AD3d552, 904 NYS2d 503 (2d Dept 2010).

A custodial parent’s interference with a child’s relationship with the non-custodial parent is so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as the custodial parent. Carleo v. Pluchinotta 138 AD3d 833, 30 NYS3d 194 (2d Dept 2016). The court continued in Carleo, “In a similar vein, courts have held that where the evidence is established that a parent is unable to appreciate that his child would be best served by having a strong relationship with both parents, the award of custody to the other parent is in the best interests of the child.” 

Judge Dollinger in his 2018 trial decision in JF v DF 61 Misc3d 1226A (Sup Ct Monroe Co. 2018) provides the definition of Parental Alienation as the “Programming of the children by one parent into a campaign of denigration against the other. The second component is the child’s own contributions that dovetail and complement the contributions of the programing parent. It is this combination of both factors that define the term parental alienation.” When analyzed in this light parental alienation as a legal concept, requires:

1. that the alleged alienating conduct without any other legitimate justification be directed by the favored parent.

2. with the intention of damaging the reputation of the other parent in the children’s eyes or which disregards a substantial possibility of causing such.

3. Which proximity causes a diminished interest of the children in spending time with the non-favored parent.

4. In fact, results in the children refusing to spend time with the targeted parent either in person or via other forms of communication.

Of course, a parent who is claiming to be the victim of such alienation shall testify and such testimony shall include far more than just the child not wanting to visit; there must be consistent and frequent attempts to exercise parenting time which are generally rebuffed by the other parent. There would generally be a repulsive type of reaction by the child to the alienated parent where there is no basis for the type of reaction by the child, especially where the child can not detail a reason as to why. Most frequently these types of allegations are levied against the custodial parent by the non-custodial which will require detailed testimony, frequently involves forensics and psychologists and/or psychiatrists. 

As early as 2002, New York courts appear to have embraced the concept of parental alienation in custody/visitation cases but have not yet recognized the theory through expert opinion evidence. "Generally, the New York Courts, in the context of a custody/visitation case, rather than discussing the acceptability of 'PAS' as a theory, have discussed the issue in terms of whether the child has been programmed to disfavor the non-custodial parent, thus warranting a change in custody." Zafran v. Zafran, 191 Misc. 2d 60 (Nassau County, 2002). Demonstrably, although there is no recognization in the DSM as to Parental Alienation Syndrome, the courts do recognize parental alienation. 



The DSM-5-TR does recognize Parental Alienation Relationship Problem (PARP) where alienation is defined on the basis of the child and not what has specifically been done to the child, according to Dr. Jane Albertson-Kelly, PhD. Dr. Kelly has published several books on the topic including “Family Reunification in a Forensic Setting (2013) as well as a contribution to the Journal of Divorce and Remarriage, 53 (3), 178-193, “Differentiating Alienated from Non-Alienated Children: A Pilot Study”. 

There has been much study in regard to including Parental Alienation Syndrome in the DSM, and presumptively until that happens, such will fail at trial in the face of a Frye hearing. This does not eliminate the ability to move forward on the topic of parental alienation as well as the harmful effects to the alienated parent.