Should parents be allowed to sue their ex-spouses for turning their children against them?
A judge in Morris County said no in a case he decided in August. But last month, a Hudson County judge ruled the opposite way, state law does not bar a parent from making a parental alienation claim in civil court.
The two cases are now headed to an appeals court, which will decide an issue that's being closely monitored by family law attorneys who are split over the issue.
"What do you do when a child is being programmed to hate the other parent?" Woodbridge attorney John Paone Jr. asked. "I believe you can't get justice in these alienation cases in the family court."
Attorney Cary Cheifetz, treasurer of the New Jersey chapter of the American Academy of Matrimonial Lawyers, disagrees.
Such lawsuits "would cause more damage than good to society, families and children," he said. "The proper remedy is to fix the issue and undo the alienation by restoring the relationship." If such litigation were allowed, he said, children would have to give depositions and testify in front of a jury.
In the Morris County case, Superior Court Judge David Rand dismissed a complaint by retired multimillionaire developer Moses Segal against his former Canadian common-law wife, saying "New Jersey law simply does not allow recovery for the causes of action Segal asserts."
Rand cited the 1935 Heart Balm Act that abolished alienation of affection as grounds for a lawsuit.
Ruling in another case, Superior Court Judge Maurice Gallipoli, sitting in Jersey City, disagreed. Gallipoli found the alienation claim barred by the Heart Balm Act pertained only to the marital relationship, not the children, and that a parent's claim of emotional distress resulting from being alienated from his children can be pursued in civil court.
"The Heart Balm Act doesn't prohibit what we're trying to do here," said Attorney Steven Resnick, who represents both Segal and Hoboken resident Vincent Smith, the father in the Gallipoli decision. "We want a jury to decide this."
In the Hudson County case, Vincent Smith sued his ex-wife, Rose Marie Smith, and her parents, accusing them of lying to his two daughters and making allegations of sexual misconduct and molestation.
Gallipoli allowed Smith's lawsuit against his in-laws to proceed but dismissed the case against the ex-wife, saying Smith would first have to take his fight against her to Family Court. But the Family Court judge could allow Smith to seek monetary damages for his emotional distress claim in civil court, Gallipoli ruled.
"The big win is that the claim itself can go forward. Right now, we have a live case against the grandparents," Resnick said.
The grandparents attorney, Marc Raso, said he believes the Heart Balm Act was intended to bar such claims.
"The plaintiff is trying to shift the focus away from the best interests of the children and focus on compensating a parent with money damages," Raso said.
On Monday, Raso filed a motion asking an appeals court to rule on his case alongside the Segal case, which already is on appeal. He said Smith's allegations against his clients "are without any merit whatsoever."
Denise Luckenbach, Rose Marie Smith's attorney, is not appealing since Gallipoli dismissed the claim against the mother.
Resnick is using Gallipoli's ruling to resurrect another parental alienation case in Essex County. Based on Rand's ruling, an Essex County judge dismissed Michael Besen's complaint that alleged his estranged wife, Sandra, caused him emotional distress by badmouthing him to the children and damaging their relationships.
"It's about time this nonsense comes to an end," Resnick said.
Dale Console, president-elect of the New Jersey chapter of the American Academy of Matrimonial Lawyers, said such litigation sides with Resnick.
"If you are intentionally alienating, and go out of your way to turn the child against the other parent, maybe you are responsible for damages," Console said. She pointed out such a claim would be very difficult to prove.
When Segal filed his lawsuit in Morris County against Cynthia Lynch in 2007, it was seen as a first in New Jersey. Segal claimed Lynch cut him off from their two children and told lies to turn them against him -- including telling them that Segal had hired a hitman to kill her, according to family court records.
After Lynch left Toronto with the children in June 2006, Segal hired a private investigator who tracked them to Long Hill Township.
Rand wrote that even if the Heart Balm Act didn't govern, he still would have dismissed Segal's civil case because he failed to show Lynch's actions rose to the level of intentional or negligent infliction of emotional distress.
"If Segal has become emotionally estranged from (the children) it is, to a large degree, the result of his own actions and not because Lynch 'intentionally and maliciously' poisoned their relationship," Rand wrote, noting that Moses had moved away from the children before Lynch relocated.
Courts to decide if ex-spouses may sue for turning children against parents - Breaking News From New Jersey - NJ.com
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