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Can I Sue My Former Spouse for Intentional Infliction of Emotional Distress or Defamation?

Sep 7, 2022 | Written by: Diana N. Fredericks, Esq. |

The short answer is yes, possibly, depending on the timing of your claim and whether certain criteria are met.  In the recent unpublished opinion of J.S. v. L.M.S., the New Jersey Appellate Division addressed this interesting issue.

First, we have to define what constitutes intentional infliction of emotional distress (IIED), defamation and parental alienation.

IIED (Intentional Infliction of Emotional Distress):  the tort of intentional infliction of emotional distress (IIED) occurs when one acts abominably or outrageously with intent to cause another to suffer severe emotional distress, such as issuing the threat of future harm. The tort of intentional infliction of emotional distress has four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

Defamation: defamation is a statement that injures a third party's reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). State common law and statutory law governs defamation actions, and each state varies in their standards for defamation and potential damages. Defamation is a tricky area of law, as the lines between stating an opinion versus a fact can be vague, and defamation tests the limits of the first amendment freedoms of speech and press.  To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.

Parental Alienationparental alienation occurs when a child refuses to have a relationship with a parent due to manipulation, such as the conveying of exaggerated or false information, by the other parent.

In this case, defendant L.M.S., the former wife of plaintiff J.S., appealed a Law Division (civil, not family court) order denying her motion to dismiss the plaintiff's civil claims for damages premised on intentional infliction of emotional distress (IIED) and defamation. The IIED claim arose from the defendant's alleged alienation of the affection of the parties' children. The Appellate Division found that the plaintiff's (father/husband) allegations failed to state a viable claim under either cause of action and reversed.

In July 2017, the parties' then eight-year-old daughter, S.S., disclosed to her therapist that the plaintiff rubbed her vagina. The therapist reported S.S.'s disclosure to the Division of Child Protection and Permanency (DCPP). The agency, in conjunction with the Morris County Prosecutor's Office (MCPO), conducted a brief but thorough investigation during which the plaintiff, the daughter, S.S., and her two siblings were interviewed. The defendant denied that S.S. had ever disclosed any sexual abuse to her.  The plaintiff acknowledged that he had on one occasion rubbed Desitin on S.S.'s genital area because it was itchy, and that on a separate occasion, he instructed S.S. to apply the cream herself. S.S. confirmed to several evaluators that her father had rubbed cream on her vagina when she was in the shower and commented it was red. Concluding there was insufficient evidence to establish whether the acknowledged vaginal touching was sexual or caretaking in nature, the MCPO closed the matter and the DCPP made a final determination that sexual abuse was "not established."

The plaintiff's parenting time with S.S. was gradually restored with the assistance of therapists to address the family dysfunction.  By January 12, 2018, the plaintiff's parenting time was fully restored, with the exception of overnights. Overnight parenting resumed on March 16, 2018. Despite the full resolution of his parenting time issues, the plaintiff continued to file applications in the family matter based on the defendant's alleged alienation of the children's affection. In support of these applications, in May 2019, he certified to various grievances, gleaned from comments by the children, that the defendant denigrated him by referring to him as "Jeff" rather than "papa”; that she shared with the children that there was ongoing litigation concerning their religious upbringing; that the food the defendant gave them was "bad" and "full of chemicals" because she gave them vegetables from a can; that the plaintiff was responsible for 60% of child support because he earned more, and that his current wife was only with him for the money.

In the same certification, the plaintiff complained that, after a court-ordered mediation to address the children's religious upbringing, the defendant would not voluntarily agree to a second session to address other disputes, including whether the defendant should attend parenting classes, whether S.S. should resume therapy, and whether the defendant should accede to the request to adjust the parenting drop-off time. Under the heading "Alienation and Estrangement," the plaintiff stated that his son A.S. told him that the defendant "interrogated" him about a scratch on his arm and "exerted heavy pressure on him" to suggest the plaintiff was somehow responsible for the injury.

Unsatisfied with the results he was getting in the Union County family matter, the plaintiff filed a four-count complaint seeking damages against the defendant for intentional infliction of emotional distress (IIED), aiding the commission of a tort, conspiracy, and defamation. The crux of the IIED claim alleges:

As set forth in the various Certifications filed by J.S. in the Family [P]art against [d]efendant and incorporated herein, [d]efendant has engaged in a campaign that was and continues to be destructive to all three... of the parties' children, with a focus on S.S., namely [d]efendant's refusal to allow the children to all enjoy overnight parenting time together, objecting specifically that S.S. should not have overnight time with J.S. due to the false sexual abuse allegations....

The complaint, read indulgently, reiterates the same grievances that were presented to and resolved with finality by the Union County Family Part. In particular, the plaintiff complains that the defendant objected to the immediate resumption of overnight parenting despite his misguided belief that the "unfounded" disposition "proved" the touching allegation was utterly false.  The plaintiff asserted, "upon information and belief," that the defendant must have "coached" S.S.  He also asserted that he felt "denigrated" by the comments she made about him to the children. Although he enjoyed full parenting time, including overnights, since March 2018, he claimed to continue to suffer extreme emotional distress based on his fear that the defendant would make false allegations in the future.

The defendant filed a motion to dismiss pursuant to R. 4:6-2(e), which was denied by the trial court.  She then filed the appeal, resulting in the reversal of that decision by the trial court and this Appellate Division decision.

Specifically, the Appellate Division held, “Applying this standard to the allegations in plaintiff's complaint, we are satisfied plaintiff failed to state a prima facie case of intentional infliction of emotional distress. As our examination of plaintiff's allegations reveals, the vague inflammatory language in the complaint does not describe the type of conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community[.]"

“This case, however, does not present a scenario where the defendant "falsely and intentionally accuses the other parent of sexually abusing [S.S.]  No amount of discovery will alter the fundamental undeniable facts that (1) the defendant was not the person who reported J.S. to DCPP, and (2) S.S.'s allegation of vaginal touching by J.S. is true.”

The Appellate Division concluded the trial court judge erred in allowing the claim to survive where the plaintiff's claim of disclosure to members of the community was based on "information and belief."  Five years after the triggering event, the plaintiff was unable to identify with any specificity what the defendant said, nor could he identify a single third-party to whom anything was allegedly stated. Consequently, the Appellate Division concluded that the plaintiff filed his conclusory complaint intending to use discovery to find out if a claim existed. The judge erred in allowing the plaintiff's unfounded defamation claim to go forward to enable this impermissible fishing expedition.

Please remember this is an unpublished decision, but the law and decision as rendered is instructive if you are considering bringing this type of claim.  This case instructs on the relevant law and standards to be met to succeed in surviving a motion to dismiss; it does not guarantee success on the merits, which may be very difficult. 

Parental alienation is an extremely fact-sensitive and complicated area of law, as are tort claims relating to custody, parenting time, and divorce-type actions.  There may also be issues with the timing of such claims, and these are just a few of the many reasons it is important to seek out an attorney with experience in handling these complex family law issues.

Diana Fredericks, Esq.


Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.