The issue of parental alienation,11 juxtaposed with the issue of abuse allegations, has come to the fore in the gender war that has come to impact upon the custody arena in recent years:

“At one extreme of an ideological battle, PAS (ed. Parental Alienation Syndrome) proponents believe the primary cause is an embittered divorced spouse who systematically programs or brainwashes the child against an innocent rejected parent. At the other extreme, advocates for victims of domestic violence believe that too often these children and allied parent have suffered real abuse at the hands of the rejected parent, abuse that has been largely ignored, dismissed or greatly minimized by family courts.” 12


One of the problems in application of this factor that has been observed in practice has been the conflation of allegations that may be “unfounded” and false allegations brought in bad faith to advance one’s position in the custody litigation. That a report of abuse or neglect is classified as “unfounded” means simply that the underlying investigation of the allegation did not produce credible evidence to substantiate it. It does not necessarily mean that the allegation is untrue, and it does not necessarily mean that the report was made in bad faith.

The unfortunate failure in some instances to distinguish between reports or allegations made in good faith, albeit lacking substantiation, and maliciously proffered false claims designed to carry the day in a custody dispute has presented concerned parents and their attorneys with a true dilemma. A parent, legitimately concerned that some abuse or other inappropriate behavior has occurred, has had to think twice or even thrice before acting on that concern.

Attorneys advising those parents have had to say, in effect, “proceed at your own peril.” If the parent triggers an investigation and substantiating evidence cannot be found, it is almost certain that the other parent will claim that this was an attempt to alienate the child. On the other hand, if the concerned parent does not act, he or she may be leaving the child at risk and may even face a charge of neglect later for having done so. The new legislation aims to at least loosen the strictures of this catch-22.

The New Legislation

The following two sentences were recently added to Domestic Relations Law §240:

If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child.

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