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." |
