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As
American courts and legislatures continue their enthusiastic
ventures into family law reform, they make frequent
use of theories and research from the social sciences.
This essay focuses on developments in child custody
law stemming from "Parental Alienation Syndrome"
(PAS), a theory propounded in 1985 that became widely
used despite its lack of scientific foundations. The
discussion highlights theoretical and practical problems
with PAS, provides a similar discussion of more recent
proposals concerning "Alienated Children"
(AC) and concludes with recommendations for lawyers
and judges who must evaluate these and similar developments.
Child psychiatrist Richard
Gardner coined the term Parental Alienation Syndrome
in 1985 to describe his clinical impressions of cases
he believed involved false allegations of child sexual
abuse. The essence of PAS, in his view, is a child's
campaign of denigration against a parent that results
from "programming ('brainwashing') of the child
by one parent to denigrate the other parent [and]
self-created contributions by the child in support
of the alienating parent's campaign . . . ."
Dr. Gardner first stated that PAS was present in approximately
90 percent of the children whose families were involved
in custody litigation but provided no research findings
to substantiate his assertions about the syndrome,
its frequency or its setting. In fact, his initial
estimates appear to have been dramatically overstated,
particularly as to the frequency of false sexual abuse
allegations, and his revised estimates have been far
more circumspect.
In recent years, use
of the term PAS has been extended dramatically to
include cases of all types in which a child refuses
to visit the non-custodial parent, whether or not
the child's objections entail abuse allegations. Although
Dr. Gardner sometimes states that his analysis does
not apply to cases of actual abuse, the focus of his
attention is directed at discerning whether the beloved
parent and child are lying, not whether the target
parent is untruthful or has behaved in a way that
might explain the child's aversion. His recommended
treatment for serious cases is to transfer custody
of the child from the beloved custodial parent to
the rejected parent for deprogramming. This may entail
institutional care for a transitional period, and
all contact, even telephone calls, with the primary
caregiver must be terminated for "at least a
few weeks." Only after reverse-brainwashing may
the child slowly be reintroduced to the earlier custodian
through supervised visitation.
High conflict families
are disproportionately represented, of course, among
the population of those contesting custody and visitation.
These cases commonly involve domestic violence, child
abuse and substance abuse. Many parents are angry,
and a broad range of visitation problems occur. Dr.
Gardner's description of PAS may well remind parents,
therapists, lawyers, mediators and judges of these
frequently encountered emotions, and this may help
to explain why his audience has often accepted PAS
without question. The overwhelming absence of careful
analysis and attention to scientific rigor these professionals
demonstrate, however, is deeply troubling. The carelessness
has permitted what is popularly termed junk science
(pseudo science) to influence custody cases in ways
that are likely to harm children.
The deficiencies in
PAS theory are multiple. First, Gardner confounds
a child's developmentally related reaction to divorce
and high parental conflict (including violence) with
psychosis. In doing so, he fails to recognize parents'
and children's angry, often inappropriate, and totally
predictable behavior following separation. This error
leads him to claim that PAS constitutes a frequent
example of folie a deux or folie a trois, shared psychotic
disorders that the American Psychiatric Association
and scholarly studies report occur only rarely. His
assertion that these disorders occur primarily in
young children is also contrary to the literature,
probably also due to a misreading of typical developmental
responses to divorce on the part of young children.
Second, Gardner vastly
overstates the frequency of cases in which children
and custodial parents manufacture false allegations
or collude to destroy the parent-child relationship.
Taken together, these assertions have the practical
effect of impugning all abuse allegations, allegations
which Gardner asserts are usually false in the divorce
context. Here, too, Gardner cites no evidence in support
of his personal view, and the relevant literature
reports the contrary‹that such allegations are
usually well founded.
Third, PAS shifts attention
away from the perhaps dangerous behavior of the parent
seeking custody to that of the custodial parent. This
person, who may be attempting to protect the child,
is instead presumed to be lying and poisoning the
child. Indeed, for Gardner, the concerned custodial
parent's steps to obtain professional assistance in
diagnosing, treating and protecting the child constitute
evidence of false allegations. Worse yet, if therapists
agree that danger exists, Gardner asserts that they
are almost always man-hating women who have entered
into a folie a trois with the complaining child and
concerned parent. Indeed, he warns judges not to take
abuse allegations seriously in the divorce court setting
in high conflict cases (severe PAS cases). Neither
Gardner nor those who accept his views acknowledge
the logical difficulties when Gardner asserts that
abuse allegations which are believed by therapists
constitute evidence of parental alienation by the
protective parent.
Fourth, Gardner believes
that, particularly in serious cases, the relationship
of an alienated child with the rejected parent will
be irreparably damaged, probably ending for all time,
unless immediate, drastic measures (custody transfer,
isolation from the loved parent, and deprogramming)
are taken. Here, too, his theory is exaggerated, with
all but unusual cases (for example, those appearing
in violent families) resolving themselves as the children
mature.
Fifth, Gardner's proposed
remedy for extreme cases is unsupported and endangers
children. In his admitted decision to err on the side
of under identifying abusers, Gardner appears to have
overlooked the policy differences between criminal
law and child custody law and also to have misunderstood
the distinction between the burdens of proof in criminal
and civil cases in the United States. To the extent
that PAS results in placing children with a parent
who is, in fact, abusive, the youngsters will be bereft
of contact with the parent who might help them. Parent
groups and investigative reporting describe, for example,
numerous cases in which trial courts have transferred
children's custody to known or likely abusers and
custodial parents have been denied contact with the
children they have been trying to protect. In less
extreme cases, too, children are likely to suffer
from such a sudden dislocation in their home life
and relationship with the parent they trust. Even
therapists who accept PAS theory have advised against
custody transfers to no avail in some reported cases
in which it seems judges have implemented Gardner's
views on their own initiative.
In sum, children's reluctance
or refusal to visit noncustodial parents can probably
be better explained without resorting to Gardner's
theory. Studies that follow families over several
years, for example, report that visits may cease or
be resisted when a variety of reasons causes custodial
parents and children to be angry or uncomfortable
with the other parent. Often the noncustodial parent's
behavior and the child's developmental stage play
decisive roles. Alignments or alliances that are somewhat
reminiscent of Gardner's construct are much less frequent
than he suggests, and even in extreme cases, these
scholars agree that PAS theory calls for inappropriate
and harmful responses that intensify the problem.
How, then, did such
a seriously misconceived, overstated and harmful view
gain widespread acceptance? What would inspire judges
to order custody transfers against the uniform advice
of expert witnesses in a case? First, Gardner is broadly
(but mistakenly) believed to be a full professor at
a prestigious university. Because this aura of expertise
accompanies his work, few suspect that it is mostly
self-published, that it lacks scientific rigor, and
that his books on PAS are not even held by most university
and research libraries. Next, Gardner promotes his
writing and services as an expert through his own
website, receives referrals from the websites of fathers'
organizations, and provides packaged continuing education
courses for professionals. Finally, he often inaccurately
represents or suggests that PAS is consistent with
or endorsed by the accepted work of others.
In any event, over the
years since Gardner first announced his theory, the
term PAS has entered into public usage. The media,
parents, therapists, lawyers, mediators and judges
now often refer to PAS, many apparently assuming that
it is a scientifically established and useful mental
health diagnosis. Accordingly, in practice, whenever
child sexual abuse allegations or disrupted visitation
matters arise in the United States, one must now be
prepared to confront a claim asserting that PAS is
at work, not abuse or other difficulties.
An electronic search
for all reported U.S. cases between 1985 and February
2001 employing the term "parental alienation
syndrome" revealed numerous mental health professionals
in addition to Gardner who have testified that PAS
was present, although far fewer were willing to recommend
that custody be transferred and contact with the primary
custodian be terminated. The search produced 48 cases
from 20 states, including the highest courts in six
states. The degree to which PAS has been invoked by
expert witnesses, attorneys or judges in these cases
and the almost total absence of inquiries into its
scientific validity are profoundly disturbing. In
only a handful of cases did the trial or appellate
court specifically consider whether the supposed syndrome
was admissible under the accepted precedents that
test either acceptance in the scientific community
or acceptable scientific methodology, and in several
of these, the court determined that it did not need
to reach the admissibility question, often because
no alienation had been shown. On more than one occasion,
however, appellate courts nevertheless took the occasion
to alert trial courts to the fact that Gardner's work
is seriously disputed.1
In the few reported
cases in which Gardner's proffered testimony was challenged
or the validity of PAS was otherwise questioned, courts
usually exclude his testimony and reliance on PAS.
These cases reveal two areas of concern. First, courts
are consistent in refusing to permit Gardner to testify
on the truth or falsity of witnesses, noting that
this question is reserved to the trier of fact. Second,
most U.S. courts considering the question agree that
PAS has not been generally accepted by professionals
and does not meet the applicable test for scientific
reliability.2 These conclusions are echoed by other
prominent professionals. Dr. Paul J. Fink, a past
president of the American Psychiatric Association
and president of the Leadership Council on Mental
Health, Justice, and the Media, for example, has stated
quite bluntly, "PAS as a scientific theory has
been excoriated by legitimate researchers across the
nation. Judged solely on his merits, Dr. Gardner should
be a rather pathetic footnote or an example of poor
scientific standards."3
Despite the good work
of most of the courts that have considered the scientific
probity of PAS, there is little to celebrate. The
vast majority of the cases mentioning PAS reveal that
one or more of the experts evaluated the case in light
of PAS, and there is nothing to suggest that anyone‹expert,
attorney or judge‹thought to question whether
the theory is well founded or leads to sound recommendations
or orders. A similar lack of rigor is now also seen
in foreign sources.
In practice, PAS has
provided litigational advantages to noncustodial parents
with sufficient resources to hire attorneys and experts.4
It is possible that many attorneys and mental health
professionals have simply seized on a new revenue
source‹a way to "do something for the father
when he hires me," as one practitioner puts it.
For those who focus on children's well-being, it hardly
matters whether PAS is one more example of a "street
myth" that has been too willingly embraced by
the media and those involved in child custody litigation,
or whether attorneys and mental health professionals
truly do not know how to evaluate new psychological
theories.
Children whose parents
do not agree or cooperate concerning their care are
placed in the middle of loyalty conflicts that can
only stress and sometimes break them. We do not yet
know enough about how children develop loyalties and
antipathies or resolve them as they mature, whether
in intact or divided households. Until we do, caution
should guide therapists and courts. A growing body
of research documents the harsh and sometimes violent
world that a large percentage of children in high-conflict
custody disputes seeks to escape.
PAS as developed and
purveyed by Richard Gardner has neither a logical
nor a scientific basis. It is rejected by responsible
social scientists and lacks solid grounding in psychological
theory or research. AC, although more refined in its
understanding of child-parent difficulties, entails
intrusive, coercive, unsubstantiated remedies of its
own, as detailed in the article from which this piece
is abstracted. Lawyers, judges and mental health professionals
who deal with child custody issues should think carefully
and respond judiciously when claims based on either
theory are advanced.
More generally, far
greater interdisciplinary training and competence
in scientific methodology are needed. These should
be brought to bear whenever a new assertion is made
that, if accepted, will shape the interpretation or
application of family law principles (for example,
the concept of a child's best interest). Although
the use of expert testimony is often useful, decision-makers
need to do their homework rather than rely uncritically
on experts' views. This is particularly true in fields
such as psychology and psychiatry, where even experts
have a wide range of differing views and professionals,
whether by accident or design, sometimes offer opinions
beyond their expertise. Lawyers and judges are trained
to ask the hard questions, and that skill should be
employed here.
The first question is
whether scientific sufficiency has been indicated
by respected professional vetting, for example, inclusion
in the American Psychiatric Association's DSM-IV or
the World Health Organization's ICD-10. Where no such
imprimatur exists, one must ask whether approval has
been sought and denied or whether submission would
be premature. Insights that are too new, or for which
no established gold standard exists, may nonetheless
be valuable, but their probity and limitations should
be clearly understood. This can be accomplished by
inquiries into the sample (if any) on which the theory
is based, the methodology and assumptions affecting
the collection of data, how conclusions have been
drawn from the data, the likelihood that fair extrapolations
can be drawn, the degree to which assertions are internally
consistent and compatible with established knowledge,
and the balance of potential benefits and harms if
the insight later provides unsound.
The challenge is to
bring professional skills and standards to the task:
an unbiased mind, healthy skepticism, rigorous thinking
and sound policy analysis. But just as the responsibility
is great, so too is the opportunity. As the noted
legal philosopher Jerome Frank put it,
Some wishes, of course,
no matter how hard we work on them, never come true.
But it is always open to us to substitute for neurotic
"wishful thinking" what Neurath happily
called "thinkful wishing." Let us thus use
the wish that the administration of justice may be
improved. If we do, we will. . . . admit that [trial
courts'] fact-finding frequently results in grave
injustices. We will then seek to discover in what
ways that job can be done better. I surmise that,
although such efforts will fall far short of perfection,
they will, by no means, go wholly unrewarded.
ENDNOTES
* Carol S. Bruch
** Professor Emerita and Research Professor of Law,
University of California, Davis. The author expresses
her gratitude to Leon Holmes, Esq., of Little Rock
for the skill with which he abridged this article
from the complete manuscript, which appears under
the title Parental Alienation Syndrome and Parental
Alienation: Getting it Wrong in Child Custody Cases
at 35 FAMILY LAW QUARTERLY 527 (2001).
1 See, e.g., In the
Interest of T.M.W., 553 So. 2d 260, 261 n.3 (Fla.
Dist. Ct. App. 1989); Hanson v. Spolnik, 685 N.E.2d
71, 84 n.10 (Ind. Ct. App. 1997). A powerful concurrence
and dissent in Hanson by Judge Chezem details
the deficiencies of PAS as a theory and as implemented
in this case. See also Pearson v. Pearson, 5 P.3d
239, 243 (Alaska 2000), where the state supreme court
volunteered that PAS (which both parties' experts
accepted) is "not universally accepted."
2 See, e.g., People
v. Fortin, 706 N.Y.S.2d 611 (N.Y. Crim. Ct. 2000);
Husband Is Entitled to Divorce Based on Cruel and
Inhuman Treatment: Oliver V. v. Kelly V., 224
N.Y.L.J., Nov. 27, 2000, at 25 (noting that no testimony
was offered to validate PAS and therefore declining
to make such a finding). See also Wiederholt v. Fischer,
485 N.W.2d 442 (Wis. Ct. App. 1992). But see Kilgore
v. Boyd, Case no. 94-7573 (13th Jud. Cir., Fla. Nov.
22, 2000) (transcript of hearing permitting Gardner's
PAS testimony), at http://www.rgardner.
com/pages/ kg.excerpt.html.
3 Gina Keating, Critics
Say Family Court System Often Amounts to Justice for
Sale, PASADENA STAR-NEWS, April 24, 2000. A similarly
outspoken assessment by a well-regarded scholar appears
in the American Bar Association's Journal; referring
to Gardner's withdrawn Sex Abuse Legitimacy Scale
(SALS, the basis for Gardner's PAS theory), Professor
Jon R. Conte of the University of Washington Social
Welfare Doctoral Faculty remarked, SALS is "[p]robably
the most unscientific piece of garbage I've seen in
the field in all my time. To base social policy on
something as flimsy as this is exceedingly dangerous."
Debra Cassens Moss, Abuse Scale, 74 A.B.A.
J., Dec. 1, 1998, at 26. Gardner's views on pedophilia
and what he calls a wave of hysteria concerning child
abuse allegations have been received with equally
harsh appraisals elsewhere. See, e.g., Jerome H. Poliacoff
& Cynthia L. Greene, Parental Alienation Syndrome:
Frye v. Gardner in the Family Courts, at http://www.gate.net/~liz/liz/poliacoff.htm
(a revised version of an article by the same name
that originally appears in the FAMILY LAW SECTION,
FLORIDA BAR ASSOCIATION, COMMENTATOR, vol. 25, no.4,
June 1999).
4 As a general matter,
custodial households are at a financial disadvantage
in the United States, and custodial parents are less
likely than noncustodial parents to be represented
in custody litigation. John E. B. Myers, A Mother's
Nightmare‹Incest: A Practical Legal Guide for
Parents and Professionals 8 (1997), vividly describes
the costs to the custodial parent and the tactical
advantages to the noncustodial parent of pretrial
discovery to "keep...[the protective parent and
counsel] off balance and distract them from the important
work of getting ready for court."
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