PARENTAL ALIENATION SYNDROME, PARENTAL ALIENATION, AND THE ALIENATED CHILD: THE EVOLUTION
With a focus on Florida law, this article gives a brief overview of the evolution of three theories that are commonly addressed in family court matters, to wit: Parental Alienation Syndrome, Parental Alienation, and The Alienated Child. An examination of the case law and scholarly articles on these theories indicates that while the debate continues among the experts, Parental Alienation Syndrome has largely been discredited, and more evenhanded and rational methods of dealing with alienating behavior, often a temporary issue emanating from both sides during dissolution proceedings, are emerging.
The so called “Parental Alienation Syndrome” (PAS) was originated by Richard Gardner, M.D. in his book, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sexual Abuse in 1992. In her 1994 article, Cherri L. Wood, noted that Gardner’s PAS criteria is borrowed and built upon his earlier, and subsequently discredited, objective test for determining when children were fabricating sexual abuse allegations. The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy. L.A.L. Rev. 1367, 1994. Gardner suggests that while a child contributes to the development of the alienation process, one parent, usually the mother, is a predominant source of alienation of the child from the father. The concept of “Parental Alienation” (PA) or, as it is also known, the “Alienated Child,” is discussed below.
In examining the use of these theories in family litigation, it is important to have an understanding of their admissibility in a court of law. The determination of admissibility of an expert’s testimony is governed under section 90.702, Florida Statutes, wherein Florida has codified the federal standard under Frye v. United States, 293 F.1013, 1014, (D.C. Cir. 1923). Frye holds that scientific evidence is only admissible if it was gathered under techniques that gained general acceptance in their field. At this time, Florida has not accepted as binding the U.S. Supreme Court guidelines for the admissibility of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2792-93, 1993) other than the fourth factor which emanates from Frye. Frye specifically stated as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable states is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. [Emphasis added].
In Hadden v. State, 690 So.2d 573, 576 (Fla. 1997), the Florida Supreme Court wrote, “This test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field.” The proponent of the evidence in question bears the burden of establishing the general acceptance of the underlying scientific principles and methodology. Murray v. State, 692 So.2d 157, 161 (Fla. 1997). On appeal, a court will examine a Frye determination de novo, examining (1) the expert testimony, (2) scientific and legal writing, and (3) judicial opinions. Berry v. CSX Transportation, Inc., 709 So.2d 552, 557 (Fla. 1998).
Ironically, given its scientific sounding name, PAS is not based upon scientific research, but upon Gardner’s own personal observations through work as an expert witness and his own belief that almost all child accusations of sexual abuse raised in custody disputes are false. See The Parental Alienation Syndrome: Is It Scientific?, Stephanie J. Dallam, RN, MSN, FNP, 1999. It is essential to understand that this basis for PAS, i.e. Gardner’s Sexual Abuse Legitimacy Scale (SALS) was rejected in Page v. Zordan, 564 So.2d 500 (Fla. 2d DCA 1990) as having been supported by no evidence of “reasonable degree of recognition and acceptability among the spectrum of scientific or medical experts who diagnose, test, and otherwise deal with the particular subject which is sought to be examined and diagnosed by the proffered test.” In spite of this criticism and that of his peers who argued that his theory was illogical, biased, and failed to acknowledge legitimate explanations for the observed behavior, Gardner never tested his theory or significantly revised it. See Dallam, supra. However, in 1991, Gardner did acknowledge in an addendum to his 1988 book, The Parental Alienation Syndrome, that where a child has been abused by a parent, a child’s hostility is warranted, and PAS does not apply. This admission showed the circular logic flaw in his theory- in order to determine if PAS applied, one would have to determine whether an abuse allegation was genuine, and Gardner’s scale had been debunked. Moreover, research has shown that psychiatrists perform no better than chance at detecting a liar. Eckman, P., O’Sullivan, M. (1991).Who Can Catch a Liar? American Psychologist, 46 (9), 913-20. This very concept has been expressed in the Third District in Spano v. Bruce, 816, So.2d 714 (Fla. 3rd DCA 2002) as follows:
These experts conduct interviews sometimes do tests and then are allowed to render opinions on an extraordinary range of subjects. They have been allowed to offer opinions on why a child nestles with its parent (no, it’s not necessarily love), whether someone is prone to domestic violence, who is telling the truth and who is “in denial.” Yet, no one seems to be able to muster any measure of the competence [**4} or the reliability of these opinions. On the one hand, it is certainly desirable to bring before the court as much evidence as possible to assist the trial court in making the best decision concerning the raising of children in families torn by divorce. On the other hand, rules of evidence exist for a reason, and the issue of competency of such a broad reach of expert testimony is not something that should be taken lightly – – particularly in such cases where there is frequently little other objective or disinterested evidence [*716] on which the court can rely. These psychological evaluations in many cases amount to no more than an exercise in human lie detection. (Emphasis added).
Another reason that Gardner’s theory is attacked within his professional community as being unscientific is that it is a “nondiagnostic” syndrome. While a syndrome is a group of signs and symptoms that define a specific abnormality (Merriam Webster’s Collegiate Dictionary), a nondiagnostic syndrome lists symptoms that are not directly related to a diagnosis, or provide no insight into cause. Myers, John E. B. (1993). Expert testimony describing psychological syndromes. Pacific Law Journal, 24, 1449-64. As a nondiagnostic syndrome, PAS symptoms should not be admissible to prove that those certain symptoms result from a particular causation.
PAS itself was rejected as having scientific validity at In the Interest of T.M.W., 553 So.2d 260, 262 (Fla. 1 DCA 1988). Berliner and Conte wrote in 1993, “Indeed the entire scale (the SALS) and the Parental Alienation Syndrome on which it is based have never been subjected to any kind of peer review or empirical test.” L. Berliner and J.R. Conte, Sexual Abuse Evaluations: Conceptual and Empirical Obstacles, Journal of Child Abuse and Neglect, 1993, at 111-125. Evidence is abundant that PAS theory does not meet the requirements of admissibility. PAS is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-V) as a psychiatric disorder and is not recognized as a valid medical syndrome by the American Medical Association or the American Psychological Association. In fact, past president of the American Psychiatric Association and Temple University School of Medicine Professor of Psychiatry, Dr. Paul Fink has been quoted as saying, “This [PAS theory] is junk science.” Dr. Eli Newberger, Harvard University Assistant Professor of Pediatrics has stated, “This [parental alienation syndrome] is an atrocious theory with no science to back it up.” Talan, J. (2003) Richard Gardner and Parental Alienation Syndrome: In Death, Can He Survive? Psychiatrist Richard Gardner’s theory Used by Parents in Child Custody Battles Gained Prominence – – and Critics. Newsday, 07/01/03.
In fact, PAS has been rejected around the country as unsound. See for example In re T.T., 681 N.W. 2d 779 (N.D. 2004) (PAS is not recognized in the scientific community); CJL v. MWB, 879 So.2d 1169 (Ala. Civ. App. 2003) (PAS does not pass the Frye test for admissibility); In re J.C., 2007 W.L. 4239288 (Cal. App. 2 Dist. 2007) (Appellate court found father “externalized responsibility for problems of his own making” raising PAS as a red herring rather than “accepting responsibility for his daughter’s estrangement”); Cichanowicz v. Cichanowicz, 2008 WL 4292724 (Ohio App. 3 Dis. 2008) (PAS is unreliable); N.K. v. M.K., 17 Misc. 3d 1123 (A): 2007 WL 3244980 (N.Y. Sup. 2007) ( rejecting PAS); Hanson v. Spolnik, 685 NE 2d 71 (Ind. App. 1997) (rejecting PAS); People v. Fortin, 706 NYS 2d 611 (NY Crim. Ct. 2000) (rejecting PAS); Snyder v. Cedar, 2006 Conn. Super. LEXIS 520 (2009) (rejecting PAS).
As for Parental Alienation (PA) or the “Alienated Child,” these concepts have been defined by Johnston as a child who expresses, freely and persistently, unreasonable negative feelings and beliefs toward a parent that are significantly disproportionate to the child’s real life experience with that parent and who does so without a sense of guilt or conflict. Johnston, J.R. (2005). Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child. Family law Quarterly, 38, 757-775. A main difference between PAS and PA, however, is the belief that there are multiple determinants of a child’s rejection of a parent, with both parents, as well as the child’s individual vulnerabilities, contributing to the problem. Johnston, J.R. & Kelly, J.B. (2004). Commentary on Walker, Brantley, and Rigsbee’s (2004) A critical Analaysis of Parental Alienation Syndrome and Its Admissibility in the Family Court, 1(4), 77-89. Johnston and Kelly believe that important contributors were incidents of child abuse and/or lack of warm, involved parenting by the rejected parent. Id. PA renounces the draconian remedies pushed by Gardner such as “custody switching,” and rather seeks to change the goal to a healthy relationship with both parents rather than a forced reconciliation with the “hated” parent by what Johnston referred to as Gardner’s “license for tyranny.” In Johnston and Kelly’s study, they found that only 20% of children are actually alienated, and that of those, over 25% were appropriately hostile to the alienated parent due to that parent’s own behavior. Id.
Finally, Johnston and Kelly note that even with regard to PA, as opposed to PAS, there is very little empirical data to back up the clinical observations that these children have any significant emotional or psychological impairment, and that there is no long-term data on the adjustment of these children compared to “non-alienated” children. Id. Groundbreaking researcher Judith Wallerstein has found that even in cases of pathological alignment with one parent, the child’s hostility towards the other parent resolved within one to two years of the end of litigation. Wallerstein, J.S., Lewis, J.M. & Blakeslee, S. (2000). The Unexpected Legacy of Divorce: A 25 Year Landmark Study. New York: Hyperion Books. As is arguably the situation in this case and is acknowledged in the theory of PA, forensic psychologist, Kenneth Waldron, and family law attorney, David Joanis, have noted that a rejected parent may have substantial parenting weaknesses, be violent, insensitive to the child’s needs, have psychological and emotional problems, or have abandoned the child, making his or her own contributions to the alienation. Waldron, K.H., Joanis, D.E. (1996). Understanding and Collaboratively Treating Parental Alienation Syndrome. American Journal of Family Law, 10, 121-33.
Given the nearly universal rejection of PAS by any well-respected social scientist and newness of PA, it is questionable whether courts should be relying on so called “experts” in these theories in order to separate an alleged offender from a child. Notwithstanding the weaknesses of both theories with regard to issues of admissibility in a Court of law, it does seem that experts and the courts are beginning to realize that where alienating type behavior exists, efforts towards a balanced and healthy relationship with both parents through therapy should be the norm.