Effects of Bad Mouthing the Other Parent in Child Custody Issues
Impact of Bad-Mouthing the Other Parent
The issue of bad mouthing the other parent is a complex one and can have wide-ranging effects in child custody and support cases. In short, when one parent makes disparaging comments about the other side, especially in front of the child, it can affect how the Court looks at issues related to primary custody, parenting time and child support.
The phrase "bad mouthing" is often understood to mean either making derogatory remarks about the other party or with denigrating comments regarding a parent’s relationship, morals, health, financial situation, parenting skills, or other relevant issues.
The impact that this type of behavior has on the family court system in New Jersey can be far-reaching, as one can easily imagine. The cases discussing this type of behavior are enlightening, if somewhat scattered amongst the case law. In many cases, this type of issue often surfaces at the time of an application for enforcement of a Divorce Judgment or a modification of same.
In pertinent part, the consideration of this behavior is considered by the Courts upon an application for custody in the form of a change of circumstances. For example, in the case of Kinsella v. Kinsella, 150 N.J . 276 (1997), the Supreme Court noted that the denial of parenting time, without further inquiry into the circumstances surrounding same, is premised on fear of harm to the child, the court shall consider the following:
a. Whether there has been any level of past domestic violence;
b. Whether there is a verifiable history of drug, alcohol abuse, or gambling and/or gambling debts;
c. Whether there are any other potential harmful influences on the child’s emotional, psychological, or physical well-being;
d. Whether the parent has made any specific threats to harm the child, even though not acted upon; and
e. Whether the parent has attempted to alienate the child from the other parent.
For example, in the case of F.R. v. S.C., 2006 WL 2716857 (Chancery Div., 2006), the Court had to consider the impact of "bad mouthing" from the father about the mother, during the pendency of an ongoing post-judgment litigation related to custody issues. It was his contention that she drank too much. She denied those allegations unequivocally. While the Court found that the Mother was a "credible witness", the Court found that Father’s allegations were not made "to destroy Mother’s credibility, but to protect the child from Mother". As a result, this issue diminished in terms of child custody analysis, but certain placement limitations were still placed upon the claimant.
Legal Ramifications of Bad Mouthing the Other Parent
At the outset of any custody battle, the court should decide whether it will allow testimony and attorney arguments regarding the poor character of a parent who bad mouths the other parent to be received into evidence. In other words, will the judge allow testimony from the other spouse and witnesses as well as argument from their attorneys that the parent who engages in such activity is not fit and proper to have primary custody of the child. Although most courts will allow this testimony and argument to be received into evidence, there is a split in authority as to whether the conduct is relevant enough and material enough to be testified about as well as argued by both sides. Or alternatively, whether such testimony and argument is prejudicial and should only be allowed into evidence if the child involved has been adversely affected.
There is almost universal agreement by the case law and statutes that a parent is generally free to express their opinions as to the parenting abilities of the other spouse, but there are limits. Based on the facts of the particular case, a parent, when engaging in a custody battle, will likely have to know that at some point, they may have to support and establish the basis for their belief stemming from their own personal experiences and observations. A court may be willing to accept the parent’s testimony that they believe the other parent to be a substance abuser, or to have engaged in criminal conduct constituting a risk to the child’s health, safety or welfare. However, if the court finds the parent’s beliefs to be based on fundamental misperceptions of the other parent, or happening during a period when the relationship of the parent to the child was such as to deny the parent an opportunity to observe the relationship between the child and the other spouse (whether or not the child was subjected to physical or emotional harm by the other spouse), it may hold that that person’s personal observations are irrelevant, or inadequate to establish the validity of their belief. Courts have also held that a parent may not, when engaged in a custody battle, declare that the other spouse has engaged in domestic violence, rendering them a risk to the child, where that person has previously testified in court or entered into a settlement agreement as to the same issue to the contrary. In other words, the court will look to see if the other spouse has a credible argument, i.e. what is the basis for this testimony as to the abusive nature of the other spouse now, when previously, testimony and arguments to the contrary were offered and the court did not adopt a position that the character of the other spouse was such as to constitute a risk to the child.
Another basis for a court to limit the effect of a parent’s evidentiary assertions and assertions to the extent that they are deemed speculative, i.e. the anger that is exhibited by the child, although apparently unjustified, in continuation from earlier years to current years, or the effects thereof, cannot be estimated in a conversion of the role of a psychologist or psychiatrist to a court judge in order to support the parent’s contention that the child’s anger is actually the by-product of the negative views and statements of the other. Although the court may agree to rely upon the opinions of experts when the credibility of a parent’s belief regarding the other parent is firmly based on credible facts and experiences, the court will not allow a parent to offer expert opinions from the bench when the parent offers unfavorable as to the other spouse based on speculation. And lastly, given that many courts will allow such testimony and argument, many judges refuse to allow such arguments or statements from the parent offering such in effect to holding such statements out to be the facts without allowing the parent who is subjected to such testimony and argument an opportunity to present evidence to the contrary.
How to Protect Against Parental Alienation
"Parental alienation" is a term that has gained traction in the legal and psychological fields as awareness of this behavior has increased. It occurs when one parent purposely engenders hatred and resentment in their child toward the other parent, usually in an effort to gain and maintain sole custody of that child. To accomplish this, the "alienator" may intentionally speak negatively about the other parent or make disparaging remarks in front of the child. They may purposely create situations where they rely on the other parent for something, then attempt to set the other parent up so that the child will think they are unreliable or untrustworthy. "Parental alienation can become such a severe form of abuse that it creates a psychological condition in children that has been labeled ‘Parental Alienation Syndrome’ (PAS)," wrote Amy J. L. Baker and William Bernet in United States Family Court Journal. Courts are increasingly ready to identify parental alienation when it occurs, and it can have a significant negative impact on the parenting agreement. If you find yourself dealing with the impact of parental alienation or are concerned that it may happen if you go through a divorce or separation, it’s important to seek the guidance and support of an experienced attorney. One of the most important things you can do to prevent alienation is to avoid participating in negative talk about the other parent. Don’t badmouth your spouse in front of the kids, and if your spouse does this, make a positive statement about them or simply stop the conversation before it gets too far. Do your best to keep the lines of communication open between you and the other parent. For example, if you have a legal reason for limiting the other parent’s time with the kids, let them know why you are doing this. Try to be as honest and fair as possible. If you fear that parental alienation will occur, see a mental health professional early on to help prepare for any issues. Documentation of any incidents or instances of alienation could also become important to have.
Proving or Refuting Bad Mouthing Allegations
"When it comes to bad mouthing, the question is how to prove or disprove that one parent is convincing the children that the other parent should not be loved, liked or otherwise adored. Collecting evidence in support of a claim that a parent has bad mouthed the other parent is usually a complicated procedure. As in any other part of litigation, a parent cannot threaten the children or trick them into revealing their perceptions of their parents’ interactions to a friend or relative of that parent. Attempts to do so will taint their revelations and make them inadmissible in court. Children are not witnesses but simply people who are capable of revealing their perceptions of reality. If they are led to believe that they should not love or like the other parent, their perceptions are not worth much. The first source of proof can be the parent who calls the office or on the other hand they may be the last resort. In most instances, the children should be interviewed by the psychological evaluator (for example , a mental health professional) and the resulting report will summarize their perceptions, intentionally or unintentionally ‘tainted’ by statements or actions made by either of their parents. Video recordings may be admissible in NJ Courts to reveal what was actually said, or better yet, if the other parent is present that day of the recorded video, it will usually work to exonerate the parent accused of bad mouthing the other. Observations of an objective third party such as a babysitter, family member, teacher, daycare employee or even a coach, may be of assistance. It is helpful when such person has known both parents for a substantial period of time to give a complete view of each parent’s involvement with the children. When working in the best interest of the children, they are the best sources of information. Proof of presumption is not proof. There are no presumptions that one parent is bad mouthing the other parent, the burden of proof is on the parent to prove the allegation."
Mediation and Counseling to Address Bad Mouthing
One of the most helpful things you can do when you are having problems with the other parent is to peacefully and quietly try to address them outside of court. Mediation and family counseling are among the most common ways to achieve this. When you are separated from the other parent, it is especially important for you to work together to support the well-being of your child/ren. That can be difficult, but it’s not impossible. By working with a neutral third-party like a counselor, mediator, or therapist, you can avoid future legal issues that stem from co-parenting disputes.
Family Counseling
Most reputable therapists understand how to help parents and children after separation. These sessions are not to be viewed as adversarial. They are intended to help you communicate with the other party, with your children, and to sometimes address a third party’s role in difficulties between you and another parent. Issues between you, the other party and your child can be resolved without the need for court intervention. These therapists are often licensed professionals with extensive experience and training. They can be invaluable in helping parents work through their differences and come to respectful agreements .
Mediation
Mediation is another valuable tool for divorcing parents. During mediation, both parents meet with a mediator (who may or may not be a lawyer) to attempt to resolve their differences. The mediator has no interest in the outcome. At the end of mediation, they prepare an agreement. They do not give parties legal advice, rather they allow them to discuss issues and give input as to what each would like to have happen with their child or their assets. The result can sometimes be a letter or document outlining their agreement. That letter or document is not binding on a judge and may have to be put into a divorce agreement if the parties are able to come to an overall agreement. In some instances, the mediators and/or the attorney draft the final agreement that would be filed with the Court. The mediator may utilize a co-parenting website between you and your spouse. If all goes well and everyone is honest, the agreement is enforceable give or take what a later judge may order. The cost for mediation is usually shared absent very specific circumstances, however, the faster you get it done the lower the cost. Mediators charge about $150-300/hour and the parties are sharing the bill and/or have a flat fee based on their issues.
+ There are no comments
Add yours