By Bruce Shapiro
1. What is Parental Alienation Syndrome (“PAS”).
“Parental Alienation Syndrome” is theory introduced in 1985, by Richard A. Gardner, M.D., in an article titled, Gardner, “Recent Trends in Divorce and Custody Litigation.”1 Dr. Gardner later authored a book on the theory, titled, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (2d Ed. 1998), and defined 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.2
“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.”3 Dr. Gardner states that PAS is characterized by a cluster of symptoms that usually appear together in the child which 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.”4
2. Types of PAS
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.”5
In mild cases, there are only a few of the eight symptoms present.6 It must be noted that the factors relate to symptoms that a child is experiencing, not conduct by a parent. 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.”8
Gardner states that “severe” cases of PAS represent only a “a very small minority of PAS cases (approximately 5-10 percent in my experience).”9 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.10 No such transfers are indicated for alienating parents in the mild and moderate categories.11
3. Is the Parental Alienation Syndrome Recognized?
“Typically, children who suffer with PAS will exhibit most (if not all) of these symptoms.”12 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. PAS, 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.13 Moreover, PAS does not appear in the DSM-IV. Some courts have accepted PAS to some degree, but judicial acceptance is by no means universal.14
3. Is Evidence Of Parental Alienation Syndrome Admissible?
As with any other medical testimony, “Syndrome testimony requires the use of a psychological expert.”15 You cannot attempt to make a credible case of PAS without an expert witness.
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.16 Under the “general acceptance” standard of Frye v. United States,17 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.,18 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.19 PAS does not satisfy these standards. Evidence of PAS should be excluded “because of its causation problems, its unreliability under Daubert, and its lack of general acceptance under Frye.”20
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 do 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.
1 Academy Forum (a publication of the American Academy of Psychoanalysis), 29(2):3-7.
2 Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals, xx (2d ed. 1998).
3 Gardner at xxiv.
4 Gardner at xxv.
5 Gardner at 323-4; 119; 76.
6 Gardner at 120.
8 Gardner at 107.
9 Emphasis added.
10 Gardner at 355.
11 Gardner at 360.
12 Gardner at xxv; 76-77.
13 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).
14 See
15 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).
16 Bruch at 538, fn. 44; People v. Fortin, 706 N.Y.S.2d 611 (N.Y.Co.Ct. 2000); Weiderhold v. Fischer, 485 N.W.2d 442 (Wis. 1992); Renaud v. Renaud, 721 A.2d 463 (Vt. 1998).
17 293 F. 1013 (D.C.Cir. 1923).
18 509 U.S. 579, 113 S.Ct. 2786 (1993).
19 Greenberg, S. & Shuman, D. “Irreconcilable Conflict Between Therapeutic and Forensic roles,” Professional Psychology: Research and Practice, 1, 50-57 (1997).
20 See Note, “The Parental Alienation Syndrome: A Dangerous Aura of Reliability,” 27 Loy. L.A. L. Rev., 1367, 1369 (1994).