Parental alienation
The theory of Parental Alientation Syndrom (“PAS”) was introduced in 1985, by Richard A. Gardner, M.D., in an article titled, Gardner, “Recent Trends in Divorce and Custody Litigation.” Academy Forum (a publication of the American Academy of Psychoanalysis), 29(2):3-7. Gardner later authored a book on the theory, which is presently in its second edition. In this book, titled, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (2d Ed. 1998), Gardner defines the parental alienation syndrome as follows:
The parental alienation syndrome (PAS) is a disorder that arises in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent. When true parental abuse and/or neglect is present the child’s animosity may be justified, and so the parental alienation syndrome explanation for the child’s hostility is not applicable.
Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals, xx (2d ed. 1998).
A mother’s repeated attempts to hinder the relationship between father and child justified awarding custody to the father. See Vernon v. Vernon, 800 N.E.2d 1085 (N.Y. 2003).
Under the best interests of the child standard, the Appellate Court in North Carolina has held that one parent’s interference with the other’s ability to develop a relationship with the child is adverse to the child’s welfare and not in the child’s best interests. See Hicks v. Alford, 576 S.E.2d 410 (N.C. Ct. App. 2003), where a court changed custody of a child from the mother to the father because the mother’s consistent and willful refusal to allow the father to exercise his visitation rights, coupled with her repeated physical and verbal abuse of the father in the child’s, presence was not in the best interest of the child.
Similarly, the Vermont Supreme Court places the child’s best interests a paramount when factoring PAS. The court’s guiding principal is “where the evidence discloses a continual and unmitigated course of conduct by a parent designed to poison the child’s relationship with the other parent, a change in custody from the offending parent may well be in the child’s long-term best interets. See Renaud v. Renaud, 721 A.2d 463 (Vt. 1998), in which a change of custody of the children from mother was not justified, even when the mother repeatedly sought expert guidance requiring investigations into the father’s alleged abuse of the children, because mother’s concern was reasonable and not motivated by an intent to alienate the children from their father.
As stated in Gardner’s above-cited definition of PAS, the syndrome’s “primary manifestation is the child’s campaign of denigration against a parent.” [Emphasis added.]
“Syndrome testimony requires the use of a psychological expert.” Note, “The Parental Alienation Syndrome: A Dangerous Aura of Reliability.” 27 Loy. L.A. L. Rev., 1367, 1400 (1994), citing Wallace, Note, “The Syndrome Syndrome: Problems Concerning the Admissibility of Expert Testimony on Psychological Profiles,” 37 U. Fla. L. Rev. 1035, 1043 (1985). Further, “Syndrome evidence may arouse a variety of personal biases or fears, thereby exacerbating the problems of uneven judicial discretion.” 27 Loy. L.A. L. Rev. at 1400 [footnotes omitted].
“A syndrome, by medical definition, is a cluster of symptoms, occurring together, that characterize a specific disease. The symptoms, although seemingly disparate, warrant being grouped together because of a common etiology or basic underlying cause. Furthermore, there is a consistency with regard to this cluster in that most (if not all) of the symptoms appear together.” Gardner at xxiv. “[T]he PAS is characterized by a cluster of symptoms that usually appear together in the child, especially in the moderate and severe types. These include:
1. A campaign of denigration;
2. Weak, absurd, or frivolous rationalization for the deprecation;
3. Lack of ambivalence;
4. The ‘independent-thinker’ phenomenon;
5. Reflexive support of the alienating parent in the parental conflict;
6. Absence of guilt over cruelty to and/or exploitation of the alienated parent;
7. The presence of borrowed scenarios;
8. Spread of the animosity to the friends and/or extended family of the alienated parent.”
Gardner at xxv.
“Typically, children who suffer with PAS will exhibit most (if not all) of these symptoms.” Gardner at xxv; 76-77.
The “syndrome” suggested by Dr. Gardner includes diagnostic criteria that and have not been recognized by established organizations such as the American Psychiatric Association or the American Psychological Association. Parental Alienation Syndrome, while appearing to have an aura of professional respectability, does not meet the standard for admissibility of expert testimony. There is no research establishing specific criteria to diagnose the syndrome and no data establishing incidence rates, the course of the syndrome over time, gender differences, or prognosis. See, e.g., Marc J. Ackerman & Andrew W. Kane, Psychological Experts in Divorce Actions 240 (3d Ed. 1998). Elizabeth M. Ellis, Ph.D., “Divorce Wars: Interventions with Families in Conflict,” 2000, American Psychological Association, page 209; Note, “The Parental Alienation Syndrome: A Dangerous Aura of Reliability,” 27 Loy. L.A. L. Rev., 1367 (1994); Bruch, “Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases,” 35 Fam. L. Quart. 527 (2001).
Most courts in the United States deciding whether or not to admit evidence of PAS agree that it does not meet the applicable test for scientific reliability. Bruch at 538, fn. 44; See People v. Fortin, 706 N.Y.S.2d 611 (N.Y.Co.Ct. 2000), where it was held that the defendant failed in his burden of demonstrating that PAS was generally accepted in the relevant scientific communities; Weiderhold v. Fischer, 485 N.W.2d 442 (Wis. 1992). Under the “general acceptance” standard of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), evidence of parental alienation is not admissible. Further, an expert must demonstrate that his or her procedures are accepted generally in a given field. Under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), however, a court may question the reliability of procedures and whether studies are subject to peer-reviewed research and viewed in light of known “error rates.”
Daubert is part of a federal and state trend toward more scientific scrutiny of assertions made by mental health professionals in forensic contexts. Greenberg, S. & Shuman, D. “Irreconcilable Conflict Between Therapeutic and Forensic roles,” Professional Psychology: Research and Practice, 1, 50-57 (1997). Evidence of PAS should be excluded “because of its causation problems, its unreliability under Daubert, and its lack of general acceptance under Frye.” See Note, “The Parental Alienation Syndrome: A Dangerous Aura of Reliability,” 27 Loy. L.A. L. Rev., 1367, 1369 (1994).
Dr. Gardner states “that the sex-abuse accusation does not appear in the vast majority of PAS cases.” Gardner at xxvii. When it does, the research shows that most of the allegations are false. Note, “The Parental Alienation Syndrome: A Dangerous Aura of Reliability,” 27 Loy. L.A. L. Rev., 1367, 1392 (1994).
Dr. Gardner also notes that a child who has been alienated by a parent makes accusations which often “have a preposterous and even incredible element. In contrast, the child who has been genuinely abused/neglected usually has credible complaints because they are the results of actual observations and victimization.” Gardner at 280. This is because children who have been abused or neglected “need not resort to the use of frivolous or absurd reasons for their alienation. Typically, they can provide a long list of credible examples of abuse/neglect. They do not need frivolous or absurd rationalizations to justify their alienation from the estranged parent.” Gardner at 282.
Even if one were to assume that there was sufficient evidence or testimony to establish the existence of parental alienation syndrome, and that the theory is generally accepted in the psychological area, Gardner states that before one can make a decision regarding legal and therapeutic approaches to the PAS child, “it is important that a proper diagnostic evaluation be conducted in order to ascertain specifically in which category the child’s symptoms lie: mild, moderate, or severe. Each type warrants a very different approach. Failure to make this discrimination may result in grievous errors, with significant psychological trauma to all concerned parties.” Gardner at 323-4; 119; 76.
In mild cases, there are only a few of the eight symptoms present. Gardner at 120. It must be noted that the factors relate to symptoms that a child is experiencing, not conduct by a parent.
The syndrome refers “to a disturbance in which children are preoccupied with deprecation and criticism of a parent – denigration that is unjustified and/or exaggerated.” Gardner at 73. In many cases the elaborations expressed by the child are ludicrous, and even preposterous, “thereby providing the clue to their speciousness.” The child is obsessed with ‘hatred’ of a parent. Gardner at 77.
In moderate cases, all eight of the primary manifestations are likely to be present, and each is more advanced than one sees in the mild cases, but less pervasive than one sees in the severe type. Gardner at 121.
The severe form of alienation is described by Gardner as the child’s “hatred of the alienated parent often extends to include that parent’s complete extended family. Cousins, aunts, uncles, and grandparents—with whom the child previously may have had loving relationships—are now viewed as similarly obnoxious. . . . The child has no guilt over such rejection, nor does the alienator.” Gardner at 107.
An alienating parent is “paranoid and fanatical.” Gardner 202; 207. The children are also fanatical and become hysterical at the possibility of seeing the other parent. Gardner states that “severe” cases of PAS represent only a “a very small minority of PAS cases (approximately 5-10 percent in my experience).” [Emphasis added]. When a case has been properly diagnosed as “severe,” Gardner recommends that “physical custody” be changed from the mother to the father. Whether this remains permanent depends upon the behavior of the mother. Gardner at 355. No such transfers are indicated for alienating parents in the mild and moderate categories. Gardner at 360.
Besides the distinctions made by Gardner himself, regarding his theory, it is submitted that a parent is not “alienating” the other parent by communicating an allegation of abuse to the authorities. Allegations of abuse are required to be reported under NRS 432B.220. If the courts find that the reporting of such allegations does constitute alienation, then this would have a chilling effect on the making of any future reports of sexual and physical abuse and would defeat the statute’s intent of protecting children.
[This except is used with permission of the State Bar of Nevada from a December 2004, continuing legal education program, “Recent Child Custody Issues.”]
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