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:
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:
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