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Good news, now we just need to achieve two things:
Lower the threshold so less serious allegations against the father still qualify for remedy. The actus reus needs to be defined according to the distress inflicted upon the children and the 'other' parent; that distress needs to measured ac cumulatively with success in denial of contact and its degree of protraction scoring more points. More than a certain set of points should place the perpetrator into criminal wrongdoing. A 'not guilty' verdict due to lack of 90% evidence or a swung jury should nonetheless attract a grading of guilt of over 50% if applicable so the family courts have a yardstick by which to measure their response.
The Heart Balm Act is inapplicable as it deals with a completely different scenario and wherever children are concerned greater attention should be paid to their protection; nuances to 80 year old laws should not presumed as a political tool to dismiss charges. Judge Rand was and is an ass for not separating the issues in the first instance, and the prosecution when before him in the previous case erred significantly by not using an expert witness schooled in parental alienation to enlighten the judge as to the differences between the Heart balm Act and the child alienation case.
NJ Court Determines That
A Cause of Action for Parental Alienation Exists 20th January 2010
In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress. In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children. The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says. It also says the children are afraid to sleep at their father’s home because they have been told they are in danger of being sexually abused.
The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term “alienating the children” is what the complaint calls the alleged wrong. Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.
This is the first time that a NJ Court has recognized the ability to bring such a claim. A prior suit was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections. Noting Judge Rand’s opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand’s interpretation of the decisional law in this state and found that a claim existed for these types of behaviors. Since they are both trial court judges, Judge Rand’s opinion was not binding upon Judge Gallipoli. Judge Gallipoli noted that the father would have to file an application in the family part seeking relief; however his claims against the maternal grandparents would proceed in the law division.
The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these.
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