Parental alienation has been characterized by the appellate courts as an act so—alien—to a child’s best interests as to render a parent presumptively unfit to have custody of the child. Given the ubiquity of claims of parental alienation in custody litigation, and the significance of findings of alienation on the outcome of custody decisions, it bears inquiring: what, in fact, is parental alienation? How does it affect a child’s best interests? And in what circumstances should it play a determinative role in a custody decision?
Last month, these authors presented an online CLE titled “Parental Alienation: A Primer”. In that CLE, we addressed Justice Richard Dollinger’s (Ret.) decision in J.F. v. D.F., 2018 NY Slip Op 51829(U) (Sup. Ct. Monroe Cty., 2018). J.F. stands out as arguably the most comprehensive effort in New York caselaw to drill down on these questions and explore the concept of parental alienation in depth.
In J.F., Justice Dollinger wrote that “The tort of intentional infliction of emotional distress
consists of four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress…Simple word substitution—‘parental alienation’ for ‘emotional distress’—creates an equivalence between this tort designed to protect an individual's emotional status and the family law concept to protect and preserve a parent's relationship with their children. If the substitution works, then parental alienation consists of four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe alienation of any parent from a child; (iii) a causal connection between the alienating conduct and the child's rejection of a parent; and (iv) severe parental alienation.”
We spoke with Judge Dollinger in an effort to solicit his view as to the state of the discourse on parental alienation and what remains for practitioners, courts, and interested parties to consider as we continue to explore the concept of parental alienation and the role it should play in custody matters. What followed was an illuminating discussion—a view from the bench—which we present in Q&A form below:
1. In J.F., you wrote that parental alienation is an “undefined concept” in New York family law. How is it that a concept which is at stake in so many contested custody disputes remains undefined?
Judge Dollinger: The concept is undefined because of the complex factors at play in intra-family squabbles that come to the courts. Trying to isolate and prioritize facts, when contested by fathers, mothers, and often children, and to then evaluate those facts in complicated family relationships that are aggravated by separation, defies easy definition.
2. There appears to be a trend toward viewing resist/refuse dynamics as being the product of a multitude of factors (e.g., age, developmental status of a child, each parent’s underlying behavior), in some cases operating in concert with each other. Can you distinguish between these disparate factors and isolate parental alienation as the cause of a child's refusal of a parent?
Judge Dollinger: Resist/refuse dynamics challenge any fact finder. The fact of the behavior—refusing to visit—is easily established. The reason why, however, evades easy analysis. A parent's behavior may be considered by some as inappropriate, but it may have been present throughout the family’s existence. Can a court draw a line between pre-separation boorish behavior by a parent and the same behavior post-separation and say that one constitutes "alienating" behavior when it was the norm in the family environment before separation? Similarly, a child's behavior—refusing to follow either parent's instructions—may be equally well-established at the time of the separation. Figuring out which is which, and what impact it has on a custody/primary residence determination post-separation, is almost impossible, especially when even experts cannot isolate the factors or their relative influence inside the family.
3. In J.F., you noted that the parental alienation doctrine has become a “basis for contentious parents to undercut parenting agreements.” Might the basis ever be legitimate?
Judge Dollinger: Parental alienation may undercut an agreement. But, the underlying conduct, as I said in J.F., must meet a high standard to materially impact a custody decision. In my experience, parents and their attorneys tend to weaponize "alienation" to create an adverse reaction to the other parent (often, in my experience, in a pre-trial conference with the judge, in hopes that doing so may set the tone for the trial to come). Parents frequently claim that the other spouse is "alienating" them when the underlying conduct is often just more of the backbiting and inconsiderate conduct that couples under family stress experience before, during and after they come to the courts.
4. What considerations come into play in situations when dueling claims of parental alienation and domestic violence are at play? Does one factor take priority and if so, why?
Judge Dollinger: Domestic violence takes priority. It can, and should, seriously impact, if not disqualify, the perpetrator as a custodial parent. An abused victim of violence can be trapped in a Catch-22: does the victim describe the violence to the children? How does either parent describe the violence if the children have observed it? But, if allegations of domestic violence are later found to be unjustified, the other spouse will often claim that the allegations were designed to alienate the children. A court would seem to be justified in reaching that same conclusion.
5. Under what circumstances do New York courts consider a child’s refusal to see a parent as justified? How do judges go about making that determination?
Judge Dollinger: Refusal to see a parent can be justified by egregious parental behavior, including harsh or consistent criticism of the child, continual disparagement of the other parent, etc. However, in my view, the most pertinent factor that spawns a refusal to visit is the non-residential parent's lack of interest in visiting with the child by, for example, declining visitation time as set forth in an agreement or refusing to attend the child's events and appointments. Then the child, and a judge, can more easily conclude that the child refusing to visit with a disinterested parent is justified. Simply: use it or lose it.
6. You noted in J.F. that other New York courts have expressed “equal skepticism over the scientific validity of parental alienation” and pointed out that it is not in the DSM-V. Do you share that skepticism? What would it take for parental alienation to become scientifically proven?
Judge Dollinger: Parental alienation involves a conglomeration of psychological intra-family interactions, most of which are difficult to corroborate because they occur inside the family, in conversations with the children or in hotly-contested exchanges between adults. I cannot envision how social science could isolate all the factors in these family settings and come up with some "scientifically proven" or "evidenced based" analysis that would withstand scrutiny in our courts. Count me skeptical.
7. What used to be characterized as “parental alienation” is increasingly being referred to as a “resist/refuse dynamic.” Some refer to “enmeshment” or “realistic estrangement.” Why are the labels we use changing, and does it matter to judges?
Judge Dollinger: I find the new terminologies such as "enmeshment/realistic estrangement/resist/refuse" interesting because it seems to move the legal focus away from the parent's conduct and instead focuses on the children's reactions. The latter is easy to prove: often, in my experience, a spouse would concede that "enmeshment" exists. A parent may challenge why it exists, but the court must weigh whether, even if a parent's conduct has contributed to enmeshment, it is in the child's best to unwind the "enmeshed" relationship, especially if it has persisted for a long time. A parent, sensing "enmeshment or realistic estrangement" with the other parent, should move quickly to get court review of the matter before the enmeshment is too entrenched to unwind.
8. In situations where both parents' behavior raises concern for the court, how does the court determine the weight to accord to the child's wishes, and to what extent does the court discount the child's position on the ground that the child may have been coached?
Judge Dollinger: I dread this question. In my experience, the second I announced that I was considering a Lincoln hearing (an 'in camera' hearing with the child) in a disputed custody matter to determine a child's perspective, I opened the floodgates to parental coaching of the parties’ younger (under age 12) children. The younger they were, the more coaching they got, and the more subtle and age appropriate rewards were involved for aligning with one parent or the other. As a consequence, I was very reluctant to even mention a Lincoln hearing in a contested custody case. I have no education in child psychology. I have no skill in deciphering "coaching." Some of my colleagues claim to be well-skilled in evaluating whether a child's testimony is "coached" or "real," but I have no idea how they acquired that skill. I could also never determine the appropriate penalty to a parent for "coaching." I, instead, relied on an attorney for the children, to meet with the children and advise the court of their preference.
9. What led you to use a four-prong test akin to the civil tort of intentional infliction of emotional distress to establish a burden of proof for parental alienation?
Judge Dollinger: I was trying to get away from the Potter Stewart view of parental alienation which leaves judges in an undefined quandary, which Stewart described (in the context of identifying obscenity) as "you will know it when you see it." I was trying to find a corollary in the intentional infliction doctrine, requiring "extreme conduct" —not just stupid, unkind or selfish behavior or words—designed intentionally and solely to harm the other parent in the eyes of the children—for which there is no other reasonable justification—and the conduct actually caused the harm to the child dissociating from the parent. The conduct is a form of intra-family tort: New York already has a body of law under the intentional infliction doctrine that describes the conduct, the causation and the harm. I just borrowed the concept to create a uniform objective tort standard for judges trying to determine when "alienation" occurs.
10. Does requiring a showing of “extreme and outrageous conduct” potentially provide a safe harbor for some degree of actual parental alienation?
Judge Dollinger: Yes, when you raise the standard for conduct to "extreme," then you allow other forms of conduct to occur without recourse. But those other forms of conduct are, in my experience, nearly impossible to corroborate and difficult to characterize as either "alienating" or "done in the best interests of the child," as some parents, accused of "alienation," have responded. The courts should only focus on "extreme, unjustified behavior, solely intended to damage a parent in the eyes of their children." Focusing families and the courts on that standard will prevent allegations of "alienation" from plunging families—and the courts—into the nightmare of extended litigation over minor slights, inconsiderate conduct, occasional harsh or demeaning language or minor violations of court orders. Of course, under the "death by a thousand cuts theory"—thank you Taylor Swift—if all the "minor behaviors" proliferate or repeatedly violate court orders, then they may meet the "extreme" standard and justify an alienation finding.
Justice Dollinger’s thoughtful, nuanced analysis in J.F. wrestled with these types of questions in a manner thoroughly in keeping with the overwhelming significance of the concept of alienation in custody litigation.
Nearly eight years after the J.F. decision, despite the searching inquiry into the concept of parental alienation set forth in the decision, and the dialogue that has since followed, many questions remain unanswered.
"Parental Alienation in Divorce: Judicial Insights," by Alan Feigenbaum, Judge Richard A. Dollinger*, and Deepti Shenoy*, was published in the New York Law Journal on April 23, 2026. Reprinted with permission.
*Richard A. Dollinger is a retired member of the Court of Claims and served as an acting Supreme Court Justice in the 7th Judicial District where he supervised matrimonial cases. Deepti Shenoy is senior counsel at Aronson Mayefsky and Sloan.