There has been a lot of confusion between the terms “Parental Alienation Syndrome” (hereinafter “PAS”) and parental alienation. Nearly every state considers parental alienation a factor in determining child custody. Some states go even further and impose tort liability on the person who alienates a child from the other parent. Much has been written in the 1990s and earlier in this decade about PAS and its founder, the late Dr. Richard Gardner. PAS has many critics, both on a scientific and on a legal evidentiary level.
“The main problem is that PAS focuses almost exclusively on the alienating parent as the etiological agent of the child’s alienation. Gardner’s proposition as to the cause of PAS is rendered tautological by the following kind of circular reasoning: an alienated child (who is supposedly distinct from an abused child) has by definition a brainwashing parent; hence if a child is alienated, then a brainwashing parent exists and is the sole cause.” Janet R. Johnston: “Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child”. Family Law Quarterly, Volume 38, No. 4, Winter 2005, page 70, Family Law Section, American Bar Association.
“By July 19, 2005, 64 precedent-bearing cases referenced PAS. Only two of these decisions, both originating in criminal courts in New York State, set precedent on the issue of PAS’s evidentiary admissibility; both held PAS inadmissible.” Jennifer Hault: “The Evidentiary Admissibility of Parental Alienation Syndrome. Science, Law and Policy”. Children’s Legal Rights Journal, Volume 26, No. 1, Spring, 2006, pages 3-4.
In re Marriage of Bates
A case that illustrates the difference between parental alienation and PAS is the Supreme Court of Illinois decision of In re Marriage of Bates, 819 N.E.2d 714 (2004). In Bates, the former wife’s lawyer filed a motion to bar Dr. Gardner’s testimony on the grounds that it did not meet reliability requirements set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which was the standard in Illinois. A Frye hearing was held, and the trial court found that the principle of PAS was sufficiently established to have gained general acceptance in the particular field. Consequently, Dr. Gardner was allowed to testify. In that case, Dr. Gardner did not conduct clinical interviews with the mother or the child, but rendered hypothetical opinions based on his review of documents, reports, depositions, and information conveyed to him by the father. The trial court changed custody to the father based on conduct by the mother. The court said that it would “throw out the words ‘parental alienation syndrome’,” basing its findings on the statutory standard, which was the willingness and ability of each parent to facilitate and encourage a continuing relationship between the other parent and the child. 819 N.E.2d at 724.
This ruling was ultimately affirmed by the Supreme Court of Illinois. It found that the various testimonies supported the conclusion that the mother consistently failed to facilitate and encourage a close and continuous relationship between the child and the father. It was noted that the trial court expressly disclaimed any reliance on the PAS theory. Therefore, even though in its pre-trial ruling the trial court found PAS generally accepted in the relevant scientific community, the record clearly demonstrated that Dr. Gardner’s PAS testimony was not a basis for the trial court’s judgment. “Thus, we conclude that, whatever the merits of the PAS theory, the court’s ruling was not dependent on any finding that PAS was present in this case. We therefore need not review the trial court’s general acceptance determination and we express no opinion on the validity of that finding.” 819 N.E.2d at 731.
Courts in other jurisdictions have refused to admit evidence of PAS because it is not generally accepted in the relevant scientific community and is unreliable. In the case of People v. Fortin, 184 Misc.2d 10,14 (N.Y. Co. Ct. 2000), the County of Nassau County, NY, after conducting a Frye hearing, held that the defendant in that case had “not established general acceptance of Parental Alienation Syndrome within the professional community which would provide a foundation for its admission at trial”. The opinion discusses at great length Dr. Gardner’s failure to have PAS subject to legitimate peer review and also noted Dr. Gardner’s having made the following statements in his writings:
Psychodynamic psychiatry, to an even greater extent, psychoanalysis, is probably the most speculative of all the alleged scientific disciplines. In fact, it is reasonable to say that it is much more an art than a science. We spin off the most fantastic explanations for human behavior and often come to believe our own delusions.
Although the concept of scientific proof may be of importance in such fields as chemistry, physics, and biology, the concept is not as applicable in the field of psychology; especially with regard to issues being dealt with in such areas as child-custody disputes, and sex-abuse accusations. Id. at 12.
A separate county court in New York refused to allow Dr. Gardner to examine and interview a mother and her children for the purposes of determining whether the children’s claims of sexual abuse by their father were false and motivated by PAS.People v. Loomis, 172 Misc.2d 265 (N.Y. Co. Ct. 1997). The decision was based, in part, upon the fact that “New York practice does not allow experts to offer an opinion on the ultimate fact as to whether sexual abuse has occurred. The issue is strictly reserved to the trier of fact.” Id. at 268.
Other courts have also raised concerns about the underlying reliability of PAS evidence. The Wisconsin Court of Appeals addressed PAS in the context of reviewing a lower court’s refusal to transfer custody to the father in order to cure his children of PAS. Wiederholt v. Fischer, 169 Wis.2d 524 (1992). Upholding the lower court’s assessment that the psychological impact on the children of such a cure was risky and uncertain, the appellate court held that the lower court was not required to accept the opinion of the father’s expert, Dr. Wellen, who advocated that only a transfer of custody would cure the PAS. Id. at 533-534. As the court stated:
A court is not obliged to adopt uncontradicted testimony if there is other evidence in the case that renders it unreasonable. As summarized above, Wellens’ testimony indicated that the cure was controversial, there is limited research data, and there are uncertain risks. Furthermore, the testimony of both parents and the children was other evidence that the cure advocated by Wellens would not be successful and was unreasonable. Therefore, we cannot find error in the court’s refusal to accept Wellens’ opinion. Id.
A District Court of Appeals in Florida also expressed concerns with respect to the reliability of PAS — although the admissibility of PAS testimony was not specifically ruled upon — when it determined that a lower court’s ruling compelling a psychological examination of a non-consenting child (by an expert who suspected PAS) was deficient. In the Interest of T.M.W., 553 So. 2d 260 (Fla. 1st DCA 1989). The court stated:
Dr. Krop described a condition known to mental-health professionals as the “parental alientation syndrome”, which he said may be present in this case. That Syndrome is the subject of at least one reported Florida case, Schultz v. State, 522 So. 2d 874 (Fla. 3d DCA 1988)… We note that the syndrome in question is not the subject of the Schultz opinion, but instead was the subject of a footnote therein which quotes a Florida Bar Journal article… Neither the order nor record in the present case… contains any further reference to authority with respect to the syndrome, other than Dr. Krop’s reliance on texts by a single author, Richard A. Gardner, M.D… No determination was made in the order or on the record as to general professional acceptance of the “parental alienation syndrome” as a diagnostic tool. In the same (unrelated) context as the above cited Gardner treatise, i.e., child sex abuse, we note the cautionary words of other current commentators [who state that] it is vitally important to avoid the confusion engendered by reference to syndromes… At the present time, experts have not achieved consensus on the existence of a psychological syndrome that can detect child abuse… Id. at 262-263 (citations omitted).
Expert Opinions Are Not Necessarily Valid
In addition to having allegedly discovered PAS, Dr. Gardner also claims to be an expert regarding pedophilia and to have isolated certain factors with which he can determine whether an accused is, or is not, a pedophile. In Tungate v. Kentucky, 901 S.W.2d 41 Ky. 1995), Dr. Gardner claimed to have identified 24 indicators for pedophilia. His testimony in that case was being offered to show that the defendant was “unlikely to have engaged in the alleged acts of child sexual abuse based upon [Dr. Gardner’s] ‘indicators for pedophilia'”. Id. at 42. The Kentucky Supreme Court noted numerous discrepancies in Dr. Gardner’s proposed testimony, such as the following:
Dr. Gardner testified that there is no reliable profile of a pedophile, even though he had determined indicators which he believed identified pedophilic tendencies.
Dr. Gardner’s indicators are “complex, sometimes contradictory, and can only be properly evaluated by a competent psychiatrist”; and:
Dr. Gardner was willing to testify that it was unlikely that the defendant was inclined to commit pedophilic acts, even though he admitted “that whether a person may have these indications or not, no one can conclusively determine whether or not someone has committed a particular pedophilic act, based solely on psychiatric evaluation.”
Id. at 42-43. The court upheld the trial court’s ruling that Dr. Gardner’s testimony was inadmissible, citing with approval the trial court’s finding that “the proffered testimony and conclusions lacked sufficient scientific basis for the opinions offered.”Id. at 43.
An expert’s opinion is only as valid as the reasons for the opinion. Hiscott v. Peters, 754 N.Ed.2d 839 (Ill.App.Ct. 2001). The trial court must analyze the adequacy of the foundation. Modelski v. Navistar International Transportation Corp, 707 N.E.2d 239, 244 (Ill.App.Ct. 1999) (expert’s opinions based on guess, speculation or conjecture, inadmissible).
In NK v. MK, 851 N.Y.S.2d 71 (Sup. Ct. N.Y. 2007), it was stated, “This court does not believe that there is a generally accepted diagnostic determination or syndrome known as ‘parental alienation syndrome’. Terminology such as inappropriate parental influence would be far more appropriate.” (citing Hault article, supra).
On the other hand, in New York, parental alienation, defined as “extreme denigration by one parent of the other parent, or the indoctrination and brainwashing of the child to turn him against the parent”, can be used as an affirmative defense to the custodial parent’s attempt to establish a support order. F.S.-P v. A.H.R., 17 Misc.3d 390, 392 (N.Y. 2007).”
Another issue is whether or not PAS, or parental alienation, should lead to tort liability. One court that allowed such a claim is Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985). Virginia law applied in an emotional distress suit when the wife hid the child and alienated him from the father. Wisconsin law is to the contrary. Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987) (cause of action not allowed; to do so could encourage claims for petty infractions). See also Larson v. Dunn, 460 N.W.2d 39 (Minnesota 1990) (intentional interference with custody rights tort not recognized; to do so would create new weapon in custody cases).
“The widespread acceptance of a specific cause of action for parental alienation seems unlikely to occur in the near future.” Kathleen Niggemyer: “Parental Alienation Is Open Heart Surgery: It Needs More Than a Band-Aid to Fix It”. California Western Law Review, Spring 1998. 34 Cal. W.L.Rev. 567, 576.
Jennifer Hault concludes, “As a legal matter, PAS’s inadmissibility is appropriate given its lack of scientific validity and reliability… PAS’s 20-year run in American courts is an embarrassing chapter in the history of evidentiary law. It reflects the wholesale failure of legal professionals entrusted with evidentiary gate-keeping intended to guard legal processes from the taint of pseudo-science.” Hault, supra, page 22.
Although Dr. Gardner’s 2003 death should help put an end to PAS testimony, matrimonial practitioners will continue to be compelled to address accusations of parental alienation.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.