Child Custody Decision Reversed For Unaccepted Science
- December 23, 2014
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In the recent Appellate Division case, M.A. v. A.I., the Defendant, A.I., appealed from a 2011 Court Order, awarding, M.A., the Plaintiff sole legal and residential custody of the parties’ children so that the Plaintiff and the children could engage in a reunification program and denying reconsideration of a prior Order. In this case, the Defendant had not had authorized contact with his children in two years and the Appellate Division reversed and remanded for a quick determination regarding his parenting time because the Family Court relied upon scientific evidence that was not widely accepted in the social science community. The Plaintiff and Defendant were married in 1989. Their marriage bore two (2) children. In 2007, their marriage began to fall apart and both children became hostile toward their mother. After the Plaintiff filed for divorce the children refused to spend time with her. A therapist was enlisted to help the children deal with the situation, but to no avail. In 2009, the Plaintiff filed a Motion with the court to compel the parties and the children to continue to attend family therapy with a therapist, to establish a parenting schedule, and to appoint a guardian at litem (GAL) for the children. In 2011, the Family Court determined that it was within the best interests of the children if they were to have relationships with both parents. The court realized that the children’s relationship with the Plaintiff was in deep distress and needed instant help. The court ordered that the Plaintiff and her children participate in a family intervention program and sole legal and physical custody of the children was awarded to the Plaintiff on that date and during which the Defendant was to not have un-authorized contact with the children. In its findings, the court held that the Defendant engaged in behavior that amounted to alienation of the Plaintiff. In his appeal, the Defendant argued that the Family Court erred in awarding sole custody of the children to the Plaintiff and prohibiting him from having contact with them. The Appellate Court declined to address whether the Family Court was mistaken to award sole custody of the children to the Plaintiff. The record reflected that the determinations of the Family Court were made so that the family could secure the services of the family intervention program and the court viewed the ruling as an interim measure. However, the Appellate Division found that the Family Court erred in basing its decision in part on eight Parental Alienation Syndrome criteria that the judge drew upon from literature and testimony. Under N.J.R.E. 702, if scientific evidence will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert to testify on the specific issue is required and the science must be generally accepted in the scientific community. Dehanes v. Rothman, 158 N.J. 90, 100 (1999). At the time of the hearing, Parental Alienation Syndrome was not recognized by the DSM-IV and is not yet accepted as a scientifically accepted theory. Therefore, the court reversed and remanded the decision of the Family Court back for a parenting time and custody hearing to be conducted immediately. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.