The Evidentiary Admissibility of Parental

Alienation Syndrome: Science, Law, and Policy

∗
Jennifer Hoult, J.D.
I. Introduction
Abstract In jurisdictions throughout the United States,
Since 1985, in jurisdictions all over the United courts have severed maternal contact with chidren
States, fathers have been awarded sole custody of based on expert testimony diagnosing mothers
their children based on claims that mothers with a novel psychological syndrome called
alienated these children due to a pathological Parental Alienation Syndrome (“PAS”) that
medical syndrome called Parental Alienation purportedly results in the alienation of children
Syndrome (“PAS”). Given that some such cases from their fathers.1 Such cases have led to
have involved stark outcomes, including murder disturbing outcomes for women and children.2 A
and suicide, PAS’s admissibility in U.S. courts Maryland man shot and killed his ex-wife,
deserves scrutiny. blaming PAS.3 A Pennsylvania teenager hung
This article presents the first comprehensive himself after a court ordered him into PAS treat-
analysis of the science, law, and policy issues ment.4 A North Carolina court incarcerated a
involved in PAS’s evidentiary admissibility. As a teenager who refused to visit her father.5 A New
novel scientific theory, PAS’s admissibility is Jersey court ordered an eight-year-old to visit his
governed by a variety of evidentiary gatekeeping wife-battering father, ignoring the child’s fear.6 An
standards that seek to protect legal fora from the Indiana court, based on the testimony of an
influence of pseudo-science. This article analyzes expert who testified to this father’s fitness,
every precedent-bearing decision and law review granted sole custody to a father whose “emotional
article referencing PAS in the past twenty years, problems [were] so severe [that] he [was] totally
finding that precedent holds PAS inadmissible disabled and unable to work” (despite the fact
and the majority of legal scholarship views it that this expert never met the father and based his
negatively. The article further analyzes PAS’s testimony primarily upon notes made by another
admissibility under the standards defined in Frye therapist who also never met the father).7 A New
v. United States, Daubert v. Merrell Dow Pharma- York court granted a father sole custody and
ceuticals, Kumho Tire Company v. Carmichael, and suspended the mother’s contact with their two
Rules 702 and 704(b) of the Federal Rules of children despite that court’s recognition that the
Evidence, including analysis of PAS’s scientific decision would cause “foreseeable emotional upset
validity and reliability; concluding that PAS and possible trauma” to the children.8 In each
remains an ipse dixit and inadmissible under these instance, PAS played a central role despite the
standards. The article also analyzes the writings of syndrome’s dubious scientific basis and lack of
PAS’s originator, child psychiatrist Richard evidentiary legitimacy.
Gardner—including twenty-three peer-reviewed First described in 1985 by child psychiatrist
articles and fifty legal decisions he cited in support Richard Gardner, PAS has had widespread
of his claim that PAS is scientifically valid and influence in family and criminal courts. Given its
legally admissible—finding that these materials link to such stark outcomes, its evidentiary ad-
support neither PAS’s existence, nor its legal missibility deserves close examination. This article
admissibility. Finally, the article examines the provides the first comprehensive analysis of PAS’s
policy issues raised by PAS’s admissibility through evidentiary admissibility under the leading
an analysis of PAS’s roots in Gardner’s theory of standards for the evidentiary admission of novel
human sexuality, a theory that views adult-child psychological theories.
sexual contact as benign and beneficial to the Part I defines Parental Alienation (“PA”) and
reproduction of the species. presents Gardner’s definition of Parental Aliena-
The article concludes that science, law, and tion Syndrome (“PAS”).9
policy all support PAS’s present and future inad- Part II analyzes all precedent-setting Amer-
missibility. ican case law and law review coverage referencing
Children’s Legal Rights Journal
2 Jennifer Hoult

PAS since 1985, finding that, despite the discipline, character, and conduct. Such divergent
prominent role PAS has played in the outcome of opinions are often expressed as disparaging
many cases, precedent currently holds PAS inad- comments about the other parent. Negative
missible and the majority of legal scholarship parental comments can express parental frustra-
views PAS negatively.10 tion, anger, disagreement, or disappointment
Part III analyzes PAS’s admissibility under about others, including the other parent. All dis-
the leading evidentiary admissibility tests defined paraging comments, regardless of how significant
in Frye v. United States,11 Daubert v. Merrell Dow the subject,21 implicitly convey the message that a
Pharmaceuticals,12 Kumho Tire Company v. child should take the side of the speaker; thus
Carmichael,13 and Federal Rules of Evidence every negative comment by one parent about the
(“FRE”) 702 and 704(b).14 This Part includes an other parent can be characterized as an attempt to
analysis of PAS’s claims of scientific validity and encourage the child to think poorly of, or alienate
reliability, and an analysis of twenty-three peer- the child from, the other parent.22 Negative
review articles cited by Gardner. I conclude in this comments may involve claims that are objectively
Part that PAS is inadmissible under all the leading false wherein the criticism is undeserved, claims
evidentiary tests because it remains a mere ipse that are objectively true wherein the criticism is
dixit. warranted, or simply the divergent opinion of the
Part IV examines policy considerations for speaking parent. Both justifiable and unjustifiable
PAS’s admissibility.15 Examining PAS’s theoretical comments may result in alienation. When a
roots, I find that PAS is derived from a theory child’s alienation is a reasonable response to
that construes pedophilia and incest as benign, parental behavior or warranted criticism of such
non-abusive conduct, and that mirrors the behavior, or within the range of normal develop-
advocacy positions of pro-pedophilia activists. I ment, such alienation may be considered adaptive.
conclude that these facts render PAS’s admissi- The concern lies in cases wherein a child demon-
bility in legal fora against public policy. strates alienation that is neither part of normal
Concluding, I find that science, law, and development nor a reasonable response to paren-
policy support PAS’s present and future tal behavior. Of particular concern is the case
inadmissibility under relevant evidentiary law.16 wherein a child demonstrates alienation as a result
of unwarranted negative parental comments
II. Defining Parental Alienation
1. PAS: A Pathological Subset of
In a perfect world, a child has close and abiding
attachments to both parents.17 However, healthy Parental Alienation
children do not consistently express their love for PA occurs along a spectrum. PAS is alleged to be a
their parents and may not always be equally allied specific pathological subset of PA.23 Child psy-
with both parents.18 Parental Alienation (“PA”) chiatrist Dr. Richard Gardner first described PAS
describes a child who demonstrates strong dislike in 1985 in response to the dramatic increase in
or antipathy for one parent. While PA may seem reports of intra-familial child abuse that occurred
pathological by definition, it can be a healthy in the 1980s.24 Gardner identified PAS in the
adaptive response to unhealthy or violent parental context of his development of tools to distinguish
behavior. A child may become justifiably alienated true and false allegations of child sex abuse.25
from a parent who is unfaithful, violent, Since his work is the foundation of all subsequent
unreliable, abuses drugs or alcohol, or abandons PAS scholarship, it deserves close scrutiny.
the family. Similarly, PA may be a sign of normal Gardner defined PAS as a pathological
childhood development like toddler tantrums, medical syndrome26 manifested by a child’s unjus-
teenage rebellion,19 or the natural responses to tifiable “campaign of denigration against a parent”
divorce.20 that results from the “programming (brain-
PA can also result from parental influence. washing) parent’s indoctrinations and the child’s
Parents routinely present their children with own contributions to the vilification of the target
inconsistent communications that reflect the parent.”27 Under his definition, a PAS diagnosis
parents’ different values and opinions about

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Evidentiary Admissibility of Parental Alienation Syndrome 3

requires both unjustified parental programming PAS allegations usually arise in the subset of
and unjustified vilification by the child.28 divorce cases involving contested custody or intra-
Gardner claimed that PAS was a form of familial violence; cases that are characterized by
“child abuse” arising “almost exclusively in child- substantial bilateral spousal wrath and heated
custody disputes” during divorce.29 Gardner also cross-allegations of wrongdoing.44 While they may
claimed PAS is predominately instigated by represent as little as ten percent of a court’s
mothers and described PAS as a pathological “foli caseload, such cases may demand as much as
a deux” between the mother and the child.30 He ninety percent of the court’s time.45 They
claimed that PAS caused psychopathy in the routinely force American family and criminal
mother and child.31 Because PAS is characterized courts to mediate episodes of emotional
by the “exaggeration of minor weaknesses and “warfare,”46 requiring that judges make time con-
deficiencies,” the diagnosis is applicable “only suming and difficult determinations about
when the target parent has not exhibited anything custody and visitation. To resolve these cases,
close to the degree of alienating behavior that judges must evaluate complex evidentiary situa-
might warrant the campaign of vilification exhibit- tions that include parents who cannot get along
ed by the children.”32 The alienated parent is a and place their children in the midst of their
pure victim of this pathology,33 and thus the discord,47 parents with psychiatric illness,48 and
diagnosis is inapplicable when parents engage in cases of domestic, physical, and sexual abuse.49
mutual vilification. When child abuse is alleged, the court’s
Further, Gardner stated that “[w]hen true responsibility is awesome. If the abuse is real, the
parental abuse and/or neglect is present,” the court must protect the child from future harm.
child’s hostility “may be justified” and the PAS The court must determine whether any continued
diagnosis is thus inapplicable.34 When a child is contact between child and parent is advisable,
justifiably alienated from a parent, Gardner speci- because granting custody or visitation to an abu-
fied that PA, not PAS, is the applicable term.35 PA ser may expose the child to unfettered and
indicates a child’s disaffection towards a parent; it ongoing harm. If the allegations are false, the
is not a medical diagnosis36 and does not explain court must protect the parental rights of the
the cause of alienation.37 While some profes- accused and the parent-child relationship. The
sionals use the terms PA and PAS interchange- consequences of a faulty evidentiary determina-
ably, Gardner defined PAS as a unique and tion in either direction are daunting.50
pathological subset of PA. Furthermore, unlike
PA, a PAS diagnosis mandates specific legal 1. American Precedent Holds PAS
action.38 Inadmissible
Because unreliable scientific claims pose a unique
III. Legal Precedent and risk of undue influence and prejudice in the
Scholarship courtroom, the evidentiary admissibility of novel
scientific material is governed by gate-keeping
PAS testimony appears primarily in family court,
rules51 that are intended to ensure that such
and occasionally in criminal court. By July 19,
testimony meets adequate standards of relia-
2005, twenty years after Gardner first described
it, PAS was referenced in sixty-four precedent- bility.52 As a novel scientific theory, PAS’s
admissibility is governed by these gate-keeping
bearing cases originating in twenty-five states39
rules. Gardner published the claim that fifty
and in 112 law review articles.40 Given the rarity
American decisions set precedent holding PAS
of written decisions and appellate review of family
admissible under the relevant evidentiary rules.53
court decisions, these numbers indicate PAS’s
A closer examination reveals this claim to be
substantial influence in American courts.41
unfounded; current U.S. precedent holds PAS
Additionally, as the subject of both proposed
inadmissible.
legislation42 and continuing legal education, PAS
By July 19, 2005, sixty-four precedent
appears to have influence among legislators and
bearing cases referenced PAS.54 Only two of these
within the Bar.43
decisions, both originating in criminal courts in

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4 Jennifer Hoult

New York State, set precedent on the issue of evidence of either parental alienation or the
PAS’s evidentiary admissibility; both held PAS child’s involvement;69 eight decisions mentioned
inadmissible.55 PAS only in reference;70 one decision assessed
In 1997, People v. Loomis56 concerned a father whether the expert testified within the guidelines
charged with sexually abusing his children. The of his profession but did not contest the admissi-
defense sought to compel the witnesses to submit bility of PAS;71 and one decision did not mention
to psychiatric examinations by Gardner to deter- PAS at all.72
mine if the sexual abuse allegations were “fabrica- The four remaining decisions discussed the
tions” motivated by PAS.57 The court denied this admissibility of PAS,73 but none set precedent on
motion, noting that children’s susceptibility to this issue. While the lower court in In re Marriage
undue influence by a parent was common know- of Bates ruled that PAS had “gained general
ledge, and that PAS testimony was inadmissible acceptance in the field of psychology” and was
because it purported to determine an ultimate therefore admissible under the Frye test, that issue
issue of fact, impermissibly invading the province was not appealed and thus the appellate decision
of the trier of fact.58 set no precedent on the issue of PAS’s admissibil-
In 2001, People v. Fortin involved a man ity.74 In fact, the appellate court specifically
charged with sexually assaulting his wife’s 13-year- “[threw] out the words ‘parental alienation
old niece.59 The defense sought to admit PAS syndrome’” and focused on the “willingness and
testimony to support the claim that the child had ability of each parent to facilitate and encourage a
lied and fabricated the abuse allegations.60 At a close and continuing relationship between the pa-
hearing requested by the People to determine the rents and the child.”75 In Perlow v. Berg-Perlow, the
admissibility of PAS, Gardner was the only appellant-father claimed that PAS did not meet
witness for the defense. Applying Frye v. United the evidentiary standards required by Frye and
States,61 the trial court held PAS inadmissible, that the admission of expert testimony on PAS
finding it lacked general acceptance within the was an error.76 The appellate court held the issue
relevant professional community.62 The appellate waived for appellate review because the father had
court upheld this ruling63 and confirmed that the failed to raise it at trial.77 The father in In re
trial judge had been correct in considering Marriage of Rosenfeld contested the admissibility of
Gardner’s “significant financial interest in having PAS as an unreliable theory, but the appellate
his theory accepted.”64 court specifically chose not to address “the issue
Despite extant legal precedent, Gardner of whether [PAS] is a reliable theory.”78 The
claimed that PAS was admissible, publishing a list appellate court in Karen “PP” v. Clyde “QQ”
of fifty U.S. decisions under the heading, sidestepped a decision on PAS’s admissibility by
“Recognition of PAS in Courts of Law.”65 Other holding that the family court’s sua sponte reference
materials on this web site indicate that Gardner to “a book on parental alienation syndrome that
intended this list to represent decisions that set was neither entered into evidence nor referred to
precedent holding PAS admissible under the by any witness” was not grounds for reversal,
evidentiary tests defined in Frye and Daubert v. “especially in light of all the testimony elicited at
Merrell Dow Pharmaceuticals.66 However, none of the hearing.”79
these fifty decisions set precedent holding PAS Among his citations, Gardner highlighted
admissible. Forty-six of the fifty cited decisions Kilgore v. Boyd, claiming that Kilgore held that PAS
either set no precedent, or set precedent on issues “satisfied [the] Frye Test criteria for admissibility
other than PAS’s admissibility. Nearly half of the in a court of law” because it found PAS had
decisions, twenty-three, were unpublished67 and “gained enough acceptance in the scientific
set no precedent.68 The remaining twenty-seven community to be admissible in a court of law.”80
decisions fall into several categories: thirteen Gardner claimed that Kilgore “will clearly serve as
contained factual histories that did not satisfy a precedent and facilitate the admission of the
Gardner’s definition of PAS because they involved PAS in other cases—not only in Florida, but
sexual or physical abuse, domestic violence, elsewhere.” 81 In fact, Kilgore set no precedent. The
bilateral alienation by both parents, or a lack of cited Kilgore decisions were neither published nor

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Evidentiary Admissibility of Parental Alienation Syndrome 5

issued in written form, and the holdings were dren’s alienation onto mothers as a counter-claim
limited to affirmations and denials of the litigants’ to, and evidentiary shield against, allegations of
motions.82 abuse.104 They note PAS’s gender bias and the
Contrary to Gardner’s claim, none of the fifty bind it creates for battered women and mothers of
cited decisions set precedent holding PAS admis- abused children:105 If these women fail to report
sible. abuse, they may lose custody for failing to protect
their children, and if they report abuse, they may
2. Law Review Coverage of PAS lose custody due to claims that they are abusing
Is Predominately Negative the child by alienating them.106 Scholars also
indicate that practitioners diagnosing PAS may
Since PAS appears primarily in family court where
make incorrect diagnoses because PAS’s diag-
written decisions often are not issued and few
nostic criteria sanction incomplete investigation of
decisions are published, its appearance in
family dynamics. Scholars note that PAS’s claim
precedent-bearing decisions may underestimate its
to “diagnose” the truth of legal allegations is an
influence in American courts. Another measure of
improper invasion of the province of the fact-
its legal impact is the frequency with which PAS
finder.107
appears in legal scholarship. As of July, 19 2005,
113 law review articles referenced PAS.83 Few of
these articles focus solely on PAS, but such IV. PAS and Evidentiary
substantial referencing may indicate the extent of Admissibility Standards
PAS’s influence.84 Since the admissibility of novel psychological
In this literature, the reportage of PAS was theories is governed by the standards defined in
positive in thirty articles, neutral in fifteen Frye v. United States, Daubert v. Merrell Dow
articles, and negative in sixty-nine articles.85 Pharmaceuticals, Kumho Tire Co. v. Carmichael,108
Thirty articles expressed a favorable view of PAS: FRE 702 and 704(b) and variants thereof, I will
twenty-one cited Gardner’s work unquestion-
assess PAS’s admissibility under these standards.
ingly,86 eight authors essentially republished
Gardner’s claims,87 and one author alleged his ex- 1. Frye: General Acceptance
wife had abducted his daughter.88
PAS received neutral mention in fifteen The 1923 Frye “general acceptance” test remains
articles: two reports on legislative initiatives to the standard gate-keeping test for the evidentiary
compel judicial consideration of PAS in custody admissibility of new science in many state
cases,89 two book reviews,90 one PAS Continuing jurisdictions.109 The Frye court observed that the
Legal Education course advertisement,91 two case point in time “when a scientific principle or
comments,92 three editorial introductions,93 three discovery crosses the line between the experimen-
comments on the legal status of PAS,94 and two tal and demonstrable stages is difficult to define,”
passing references.95 and thus required that “the thing from which the
Sixty-nine articles described PAS negatively. deduction is made must be sufficiently established
The negative coverage focused on several areas of to have gained general acceptance in the particular
law: twenty-three on divorce,96 thirteen on child field in which it belongs.”110
sexual abuse,97 ten on domestic violence,98 eight All generally recognized psychiatric syn-
on expert testimony,99 seven on general family law dromes are compiled in the American Psychiatric
Association’s Diagnostic and Statistical Manual
issues,100 five on PAS as a defense strategy,101 and
(“DSM”). Inclusion in the DSM occurs after
two on parental child abduction.102
scientific testing has proven the existence of the
The majority of law review articles view PAS
syndrome and the reliability and replicability of
negatively. Scholars report that PAS has no
its diagnostic criteria.111 PAS is not included in the
empirical support103 and is inadmissible under
both Frye and Daubert. They describe PAS as a DSM.112
defense strategy for abusive fathers, facilitating PAS is also not recognized as a valid medical
these men’s projection of blame for their chil- syndrome by the American Medical Association,
the American Psychiatric Association, or the

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6 Jennifer Hoult

American Psychological Association (“APA”). The A. PAS Is Not a Medical Syndrome

1996 APA Presidential Task Force on Violence
A medical “syndrome” defines a “distinct”
and the Family (“APA Task Force”) specifically
correlation between a set of symptoms and a
noted that there is no data supporting PAS’s
particular pathology.121 Determining whether PAS
existence.113 Following the 2005 airing of a film
is a valid medical syndrome requires an assess-
about PAS on the Public Broadcasting Service, the
ment of whether it is an existing pathology and
APA issued a statement indicating that the
whether its diagnostic criteria correlate accurately
organization takes no official position on this
with that pathology.
“purported syndrome.”114 While Gardner claimed
PAS is admissible under Frye, PAS lacks any i. PAS’s Etiology Is Legal, Not Medical
indicia of general acceptance by major medical Gardner claimed that the cause of PAS was
institutions making it inadmissible under Frye. maternal programming stemming from laws that
threaten to take children from their mothers.122
2. Daubert & Kumho Tire: Reliability115 He claimed that PAS only existed in countries
In Daubert, the United States Supreme Court held that use an adversary legal system,123 and that
that FRE 702 superseded Frye in federal court. judges, lawyers, guardians ad litem (“GALs”),
Daubert defined an admissibility test whose children’s counsel, and therapists promulgate
“overarching subject is the scientific validity—and PAS.124 Gardner claimed that legal processes cause
thus the evidentiary relevance and reliability—of PAS and make mothers and children psycho-
the principles that underlie a proposed submis- pathic,125 and that adversary proceedings “intensi-
sion.”116 Defining “scientific knowledge,” Daubert fy psychopathology” generally.126 However, he
noted that “the word ‘knowledge’ connotes more provided no evidence that laws or litigation can or
than subjective belief or unsupported speculation” do cause medical pathology, and no evidence that
and specified that to qualify as knowledge “an women and children become psychopathic as a
inference or assertion must be derived by the result of adversarial litigation.127
scientific method.”117 The Court intended
Daubert’s test to be more flexible than the Frye
ii. PAS Is Diagnosed Based on Third-
test, allowing courts to consider several factors to Party Symptoms
determine admissibility.118 Relevant factors Medical pathology is properly diagnosed by
include whether the theory can be and has been observing symptoms of ill health in the sufferer,
tested, whether it has been the subject of yet Gardner’s Differential Diagnostic Criteria
publication and the scrutiny of the scientific (“DDC”) 128 for PAS diagnoses mothers based on
community through peer-review, and its known or examination of their children, and mandates treat-
potential error rate.119 While Daubert claimed to ment for children based on an examination of
discard Frye’s “general acceptance” standard, the their mothers.129 While PAS allegedly causes
decision includes “widespread acceptance” as a “enormous grief” in the rejected father,130 he re-
relevant factor, noting that “a known technique mains the one family member not diagnosed with
which has been able to attract only minimal PAS. Gardner provides no empirical evidence that
support within the community” may properly be women or children diagnosed with PAS display
viewed with skepticism.120 any symptoms of pathology.131
The relevant factors for determining whether iii. PAS Pathologizes Women’s Exercise
PAS is admissible under Daubert are PAS’s lack of
of Legal Rights
widespread acceptance discussed above under the
PAS’s diagnostic criteria for determining a child’s
Frye standard, an analysis of whether it is a valid
treatment focus on maternal legal actions,
medical syndrome, the error rate of its diagnostic
evaluating the mother for:
criteria, the results of inter-rater reliability testing,
and the nature of peer-review reportage. 1. presence of severe psychopathology
prior to [marital] separation,
2. frequency of programming thoughts,

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Evidentiary Admissibility of Parental Alienation Syndrome 7

3. frequency of programming verbaliza- are instructed to use threats of loss of primary

tions, custody139 and brain-washing techniques140 to
4. frequency of exclusionary maneuvers, force mothers to stop their alienating behaviors.
Only specialized “PAS therapists” may treat
5. frequency of complaints to police and
child protection services,
women and children diagnosed with PAS because
those who “consider it therapeutically contraindi-
6. litigiousness,
cated to pressure or coerce a patient” are not qua-
7. episodes of hysteria, lified.141
8. frequency of violation of court orders, While legal coercion can motivate people to
9. success in manipulating the legal system change chosen behavior, there is no evidence that
to enhance the programming, and it can cure medical disease.142 It is perhaps not
surprising that the scientific literature overwhel-
10. risk of intensification of programming if
mingly reports that PAS treatment fails, 143
granted primary custody.132
reporting only three instances of successful treat-
With the exception of the first criterion, there ment.144 Furthermore, it is unclear how such
is no evidence that any of these criteria indicate success can be measured. There is no evidence
pathology.133 Women are entitled to exercise their that legal coercion can create love or respect,145
legal rights, and as mothers they are expected to nor is there a way to distinguish genuine changes
protect their children from paternal abuse. Many of affection from charades feigned for survival.
divorced women hold and express negative Like prisoners of war and battered women, abused
opinions about their ex-husbands. Such expres- children whose survival depends on placating their
sions are protected under the First Amendment.134 abusers often feign submission or affection to
Many people, including successful litigators, survive. PAS treatment’s reliance on legal coercion
satisfy Gardner’s definition of “hysteria,” which indicates that PAS is chosen behavior, not
includes “intensification of symptoms in the con- pathology.146
text of lawsuits,” “emotional outbursts, dramatiza-
tion, attention-getting behavior, release of anger v. PAS Treatment Violates Medical and
with scapegoatism.”135 In effect, the DDC Legal Duties of Care
diagnose women with PAS primarily when they Medical professionals have a legal duty to act in
exercise their legal rights. Because the DDC do the best interest of their patients.147 While
not examine the father’s conduct, his psychiatric standard psychiatric practice provides a separate
history, violent conduct, and exercise of legal therapist for each family member, with each
rights are not construed as symptoms of path- therapist having duties of care to his individual
ology. client, PAS treatment requires that one PAS
therapist treat the entire family.148 Additionally,
iv. PAS Treatment Is Legal Coercion, Gardner instructs PAS therapists to act, not in
Not Medical Treatment privity with the interests of the mother or child,
Successful medical and mental health treatment but as state agents who promote the interests of
alleviates symptoms of ill health and allows the the father.149 He instructs therapists to violate
patient to live a normal, healthy life. In contrast, their patients’ confidentiality,150 to ignore and
Gardner states that successful PAS treatment deny children’s reports of abuse (violating
requires that mother and child refrain from mandated reporting laws), 151 and to threaten the
expressing neutral or negative views about the children into compliance with their abusers.152
father, forcing them to act with affirmative Additionally, while coercive medical treatments
affection toward him.136 To accomplish this goal, are used in emergencies for patients who pose
PAS treatment uses court-ordered threats of legal risks to themselves or others, there is no evidence
deprivations of custody, visitation, property, and that alienated children or women who express
liberty137 to coerce the mother and child into negative views of their ex-husbands pose such
behavioral compliance with rejected men’s de- risks. Using coercive treatment in non-emergency
mands for love and respect. “PAS therapist[s]”138 situations circumvents women and children’s legal

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8 Jennifer Hoult

rights to refuse treatment. Given these violations developmental reaction to divorce.158 Consequent-
of medical ethics and legal duties, PAS treatment ly, it appears that severity alone is not clear evi-
appears to constitute per se medical malpractice. dence of pathological alienation; substantial dura-
Gardner similarly instructs attorneys for tion is also required. Protracted duration that
children diagnosed with PAS to violate child amounts to permanence can only be observed over
abuse reporting laws; instead of instructing attor- a lengthy period of time. It is unclear what
neys to “align themselves” with their child-client’s duration indicates pathological alienation. Adoles-
interests, Gardner instructs attorneys to coerce cents may be alienated from their parents for
their clients into unwanted contact with the years,159 and some adults are estranged from their
rejected.153 Gardner claims that attorneys who act parents for decades. There is no evidence, how-
in their client’s interest contribute to the client’s ever, that either form of alienation is pathological.
pathology, thus he argues that attorneys in PAS Gardner did not indicate a means of distin-
cases must “unlearn” the principle of zealous guishing between adaptive and pathological
advocacy.154 These suggestions require that attor- alienation based on severity or duration. From his
neys violate the rules of professional conduct. writings, it appears that the factor distinguishing
adaptive from pathological alienation, PA from
B. PAS’s Error Rate Is Unacceptably High PAS, is the lack of a justifiable cause. When
Valid diagnostic criteria for unique medical alienation is a logical response to external stimuli,
syndromes distinguish the set of symptoms for the it is adaptive. Only when there is no logical cause
specified syndrome from other similar sets of for the alienation can it be termed pathological.
symptoms with a high degree of accuracy.155 To Only a thorough examination of possible causes
satisfy Daubert’s reliability requirement, the rate of can identify whether a child’s alienation is an
inaccurate diagnosis, or “error rate,” must be low. adaptive response to stimuli (justifiable alienation)
Because there are no published studies measuring or a pathology that causes alienation.160 The
PAS’s error rate, I will examine whether Gardner’s distinction between unjustifiable and justifiable
DDC can reliably diagnose PAS according to his alienation can thus be characterized as one of
definition. cause and effect.
By thus ignoring causes that may justify
i. PAS Tautologically Presumes alienation, the DDC cannot distinguish between
Pathology & Lack of Justification justified and unjustified alienation. The diagnostic
Gardner defined PAS as pathological and symptoms for the child include the child’s “ani-
unjustified alienation. Since PAS is allegedly a mosity,” “campaign of denigration (may or may
subset of PA, the DDC must accurately distin- not include a false sex-abuse accusation),” “lack of
guish between PA and PAS; between adaptive and ambivalence,” “absence of guilt,” “transitional
pathological alienation. Furthermore, according to difficulties at time of visitation,” and “behavior
Gardner’s definition, it must distinguish between during visitation.” 161 But each of these diagnostic
justified and unjustified alienation. criteria can be either a cause or contributor to
Under Gardner’s definition, adaptive aliena- unjust alienation, or a response to stimuli
tion and pathological alienation appear to be warranting justifiable alienation.
distinguished by symptoms relating to severity, While Gardner’s definition of PAS indicates
duration, and causation. However, these factors that it is inapplicable if there is justification for
may not clearly distinguish between PA and PAS. the child’s alienation,162 the DDC never assess the
The severity, or acuteness, of alienation at one “alienated” parent, even if there is documented
time cannot predict intransigence or relative evidence of domestic violence or child abuse.163
permanency of PA.156 During divorce, children Children are assessed for a “campaign of denigra-
often strongly align themselves with one parent, tion,” which includes “false sex-abuse allegations,”
depending on their developmental stage. These and alienating parents are assessed for “hysteria”
children may show intense PA that resolves which includes “assumption of danger when it
naturally over time.157 Their refusal to visit a does not exist.”164 By thus ignoring causes that
parent may not represent pathology, but a normal may justify alienation, the DDC provide no way

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Evidentiary Admissibility of Parental Alienation Syndrome 9

to distinguish between adaptive responses to 8. spread of the animosity to the extended

abuse and pathological causes of alienation. family and friends of the alienated pa-
Had Gardner intended the DDC to distin- rent,
guish between justified and unjustified alienation, 9. transitional difficulties at time of
he might have defined the diagnostic criteria along visitation,
the lines of the following: “animosity unjustified by 10. behavior during visitation,
the alienated parent’s conduct,” or “rationalizations
11. bonding with the alienator, and
for deprecation unsupported by reasonable causal
factors including abusive, neglectful, or otherwise 12. bonding with the alienated parent prior
harmful conduct by the alienated parent.” By omitting to the alienation,171
any inquiry into causation and justification, the PAS has nonetheless been diagnosed in cases
DDC tautologically presume their diagnostic lacking any evidence that the child is alienated.172
conclusion that alienation is pathological and By diagnosing PAS solely on the basis of the
unjustified. This explains why PAS has been child’s symptoms, the DDC tautologically pre-
diagnosed in cases involving sexual violence and sume pathology, parental contribution, and lack
physical abuse165 and in cases where both parents of justification, the very factors that Gardner
engage in mutual hostility and attempted claimed distinguish PAS from other forms of PA.
alienation,166 circumstances rendering a PAS Without any ability to reliably diagnose PAS
diagnosis inappropriate under Gardner’s defi- according to Gardner’s definition, the error rate
nition. for PAS diagnoses is unacceptably high under a
Daubert analysis.
ii. PAS Tautologically Presumes Parental
Programming iii. PAS’s Diagnostic Criteria Are
By definition, PAS requires contribution from both Ambiguous and Undefined 173
the child and the “alienating” parent.167 However, To uniquely correlate with a specific pathological
the DDC specify that a PAS diagnosis is made entity, diagnostic criteria must be unambiguous
solely based on evaluation of the child168 and thus, and well defined. However, the symptoms in the
the DDC cannot diagnose PAS according to DDC are ambiguous and undefined. Terms like
Gardner’s definition. “weak,” “frivolous,” and “absurd” require subjec-
Certainly, a child who exhibits no symptoms tive evaluation and cannot guarantee consistent or
of alienation is not alienated, regardless of the reliable diagnoses even in cases with starkly
conduct of the parent,169 and a parent’s depreca- opposing facts. The DDC deem both verified
tory comments do not necessarily create aliena- sexual abuse and a false allegation of sexual abuse
tion since children often ignore such comments.170 “frivolous” or “absurd” because it does not
While the DDC specify that the child be evalu- examine the conduct of the alleged abuser or
ated for the following symptoms: veracity of abuse allegations.
1. the campaign of denigration (may or The DDC do not define the durations that
may not include a false sex-abuse distinguish adaptive and pathological alienation.174
accusation), They include “frequency” as an undefined compo-
2. weak, frivolous, or absurd rationaliza-
nent of five of the ten diagnostic criteria for the
tions for the deprecation, parent.175 However, while frequency is a relevant
factor in many medical diagnoses, its specific
3. lack of ambivalence,
meaning varies by pathology; a single heart attack
4. the independent thinker phenomenon, is clearly diagnostic, but high cholesterol is only
5. reflexive support of the alienating relevant when it occurs for some duration of time.
parent in the parental conflict, Additionally, it is unclear how a clinician can
6. absence of guilt, measure “frequency of programming thoughts”
since this seems to measure whether and how
7. borrowed scenarios,
often the parent holds a particular thought. The
DDC do not require examinations of either the

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10 Jennifer Hoult

child or the parent over time, and thus cannot sign of pathology, the DDC do not specify the
assess whether symptoms observed at the time of cause or types of difficulties involved. They deem
examination are pathological or simply adaptive a child’s distress during a visit as pathological,
responses to an immediate stressor such as a regardless of whether the child is resisting visita-
pending divorce. Transient behavior resulting tion, has a wet diaper, or does not want to inter-
from the stress of divorce is no more representa- rupt an activity he is enjoying.179 Since the DDC
tive of pathology than children’s fears around do not specify that these “difficulties” demon-
Halloween are indicative of anxiety disorders.176 strate estrangement from the target parent,
The DDC infer the central diagnostic issue of pathology is found both when a child balks at
“programming” from ambiguous indicators in the visitation with the “alienated” parent, and when
child and the personal opinions of the “alienating” he does not want to leave the “alienated” parent
parent. They assess the child for symptoms like at the end of a visit. The DDC deem any sign of
“borrowed scenarios,” but do not distinguish distress during visitation pathological.180
between or define borrowing versus learning or The DDC’s use of ambiguous criteria means
personal opinion. They do not specify from whom that they can diagnose PAS in all of the following:
a “borrowed scenario” is borrowed: a teacher, cases of severe child abuse, cases of alienation
book, movie, another child, a corporation market- caused by psychiatric illness, cases lacking contri-
ing to children, a religious institution, a school, or bution by the “alienating” parent, cases in which
the other parent. The DDC do not distinguish a the “alienating” parent defends her legal rights
“borrowed scenario” from a view the child has and makes normative litigation choices, cases of
learned or adopted for himself or his personal adaptive or developmentally normal alienation,
opinion.177 Since all learned and personal beliefs and cases involving mutual parental denigra-
originate as “borrowed” beliefs, borrowing a belief tion.181 The only instances in which the DDC will
is not an unambiguous indicator of pathology. A not yield a PAS diagnosis are those in which the
child learns not to touch a hot stove because he child never shows any signs of alienation,
borrows the belief that it is dangerous. Without including adaptive alienation like toddler tant-
borrowing knowledge, children cannot learn. rums or teenage rebellion. Furthermore, since
Through learning, children develop into adults some abused and neglected children are com-
who think independently. However, the DDC pletely subjugated to their abusers, experiencing
deem “independent thinker phenomenon” a something like Stockholm Syndrome, a negative PAS
symptom of pathology.178 By pathologizing chil- diagnosis does not necessarily correlate with a lack
dren’s learning, independence, and opinions, the of abuse or neglect.
DDC conflate children’s healthy development and This analysis of the DDC indicates that their
independence as indicated by learning, knowledge, diagnostic error rate is unacceptably high. It is
opinions, and independent thought, with allegedly unclear what, if anything, the DDC can reliably
pathological views allegedly derived from parental diagnose. Given Gardner’s tautological and ambi-
programming. guous diagnostic criteria, as well as the fact that
The DDC diagnose the negative opinions his DDC cannot diagnose PAS according to his
divorced women hold of their ex-husbands as definition,182 it is not surprising that leading
pathological regardless of whether they are accu- scholars question whether PAS exists.183
rate. Thus, it deems pathological the negative
views ex-wives have of men who batter, rape, C. No Inter-Rater Reliability Tests Have
sexually abuse children, are unfaithful, or abuse Confirmed PAS’s Existence
drugs or alcohol. Without any evaluation of the Just as double-blind studies are the gold standard
husband, the DDC tautologically presume nega- for testing the efficacy of medications, inter-rater
tive opinions about him lack justification. reliability studies are considered the gold-standard
The DDC cannot even distinguish between a proof of the existence of a proposed medical syn-
child who is alienated from a parent, and a child drome. These studies assess whether a valid
who is deeply attached to that parent. Deeming pathology exists, whether there is an accurate
“transitional difficulties at the time of visitation” a correlation between diagnostic criteria and the

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 11

pathological phenomenon, and whether the rate science, such a correlation is by no means assured
of misdiagnosis reflects an acceptably low error since rigorous scientific testing can disprove
rate.184 erroneous theories based on observation. Observa-
In 1985, Gardner described PAS as a theory tion can be misleading, inaccurate, and incom-
based on his personal opinions and personal plete. Just as the observations of five blind men
clinical observations. In 1993, he stated that PAS each touching a different part of the elephant led
was “an initial offering [that] cannot have pre- to incomplete and contradictory definitions of the
existing scientific validity.”185 While Gardner elephant, the observation of a child and parent
firmly believed that empirical evidence and inter- who hold negative views of the other parent may
rater reliability studies would one day prove PAS be an incomplete observational basis for the
to be a valid scientific and medical syndrome,186 scientific verification of PAS.193
his statements identified PAS as “subjective As scientifically verified entities, medical
[belief] and unsupported speculation,” and are syndromes are more than observed phenomena.
therefore inadmissible under Daubert.187 Designation as a medical syndrome results after
Twenty years after Gardner first described rigorous scientific testing verifies the existence of a
PAS, no inter-rater reliability or validity studies unique pathology, and the accuracy of its diag-
have been conducted on PAS.188 PAS proponent nostic criteria in distinguishing it from similar
Richard Warshak acknowledged this, stating that pathologies. While observed pathologies of
“the reliability of PAS cannot be supported by unknown etiology can be observed prior to
reference to the research literature” because no scientific verification, medical syndromes are only
“systematic research” has demonstrated accept- recognized after they have been scientifically
able reliability of the PAS diagnosis.189 Lacking verified.194 Designation as a medical syndrome, as
positive inter-rater reliability verification, PAS represented by inclusion in the Diagnostic and
remains an unproven hypothesis, amounting to Statistical Manual of Mental Disorders (“DSM”),
the “unsupported speculation” that is inadmissible represents a proxy for scientific verification.195
under Daubert.190 PAS is merely an ipse dixit. Thus, Warshak’s claim that “The DSM is not a
Because the DDC cannot diagnose PAS as test of whether a disorder exists” is misleading
Gardner defined it, they preclude positive inter- because it conflates the observation (existence) of
rater reliability testing. Using ambiguous criteria, childhood alienation with the scientific verifica-
failing to distinguish between healthy and tion and resulting recognition (existence) of a
pathological behavior, pathologizing non- medical syndrome.196
pathological behavior, and presuming two of Such faulty logic and conflations appear
PAS’s three definitional requirements, the DDC frequently in PAS scholarship. Both Gardner and
cannot logically satisfy the scientific rigor of such Warshak liken PAS to AIDS, claiming that AIDS
testing.191 Diagnoses based on the DDC are existed prior to its designation as a medical
logically and scientifically void because they do syndrome.197 But prior to scientific verification,
not correlate with any identifiable pathology. what “existed” was a terminal illness or group of
Furthermore, since the DDC are the only set of illnesses of unknown etiology that, through
diagnostic criteria for PAS, diagnoses of PAS that scientific verification, we have come to know and
are not based on the DDC are medically void. define as AIDS. Warshak claims that the obser-
Nonetheless, in 2001 Gardner claimed PAS was a vation of PA supports the existence of PAS as a
valid and existing medical syndrome despite his medical syndrome, proving that PAS is not a mere
earlier stipulation that PAS was merely a “theory.”198 But PAS is a subset of PA, and the
theory.192 Lacking any empirical support for this existence of the superset does not prove the
claim, he bolstered it by conflating the observa- existence of any of its subsets. Illogical reasoning
tion of a phenomenon with the process of that PAS exists simply because alienation is
scientific verification. observed is no substitute for scientific verifica-
Observation is the precursor to, not a tion.199 PAS is a theory that proposes an explana-
synonym, for scientific verification. While tion for an observed phenomenon. Lacking
observed phenomena may ultimately be verified as

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12 Jennifer Hoult

scientific verification, PAS remains a hypothesis, mandate, or charge, for each article they review. A
not science or medicine. sound mandate should ensure appropriate
scrutiny and result in a trustworthy assessment of
D. Peer-Review Has Not Demonstrated validity and reliability.207 However, as part of
PAS’s Reliability or Validity internal editorial processes, these mandates are
“Peer-review” refers to a process in which new not publicly available, thus there is no way to
scientific theories are rigorously reviewed for determine their validity or existence.
accuracy, validity, and reliability by peers within The practices of reviewer anonymity and
the relevant scientific community.200 Meaningful mandate secrecy protect the integrity of peer-
peer-review “evaluates the clarity of hypotheses, review from interference by authors and other
the validity of the research design, the quality of interested parties, but also create classic problems
the data collection procedures, the robustness of of lack of transparency.208 Reviewer anonymity
the methods employed, the appropriateness of the can hide incompetence, imbalance, and conflicts
methods for the hypotheses being tested, the of interest. Mandate secrecy hides inadequate or
extent to which the conclusions follow from the inappropriate mandates and makes it impossible
analysis, and the strengths and limitations of the to audit panel effectiveness.
overall product” and should “filter out biases and The result of this lack of transparency is that,
identify oversights, omissions, and inconsis- particularly in the era of desktop publishing and
tencies.”201 The process “improves both the the internet, anyone can publish a journal and
quality of scientific information and the public’s claim that it is peer-reviewed. There is no way to
confidence in the integrity of science.”202 Daubert directly challenge a claim of peer-review because
uses peer-review as a proxy for verification of a there is no external methodological standard
new theory’s reliability and validity. against which such claims can be audited. Recog-
nizing this problem, academics correlate journal
i. The Concept of Peer-Review Lacks a reputation with review quality, and look only to
Verifiable Standard reputable journals for reliable science. To deter-
Surprisingly, there is no verifiable methodological mine which journals are reputable, a small
definition for meaningful peer-review.203 The lack industry ranks peer-review journals.209 While
of such a verifiable standard is partly because recognition and high ranking within these meta-
meaningful review varies greatly depending on the reviews provide one measure of the likelihood of
field and project under review. For example, meaningful peer-review in a given journal, the
particle physics experiments and new psychologi- criteria used to determine the existence of peer-
cal diagnoses may require different review meth- review may rely on unfounded assumptions.
ods. Additionally, two traditions used to protect For example, the American Psychological
the integrity of the peer-review process cloak Association’s (“APA”) PsycInfo database requires
inquiries about the review process in secrecy. that included journals are peer-reviewed and
Meaningful peer-review requires balanced204 contain original submissions.210 To be included in
and competent reviewers. Appropriate reviewers this database, journals must: be peer-reviewed;
have relevant expertise, balanced viewpoints, have an identifiable sponsoring body, editor, and
independence, and lack any conflicts of interest.205 editorial board; contain original submissions;
Potential reviewers should be screened for adhere to a minimum publication schedule;
potential conflicts, such as any financial interest, contain all standard bibliographic elements;
recent advocacy, and recent status as a peer- identify an archive where paper copies will be
reviewer for the same publication.206 However, held; and have assigned ISSNs.211 The PsycInfo
perhaps in order to protect against interference staff designates a journal as “peer-reviewed” if the
with reviewers during the review process, well- “front matter” of the journal includes an
reputed publications use anonymous reviewers, instruction that authors must submit three or
thus there is no way to ensure the quality or even more copies of the article without identifying
the existence of the alleged review panel. Also, information to the editor for review.212 The
reviewers are theoretically given a specific PsycInfo staff “[takes] that as a confirmation that

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 13

the submitted articles will be reviewed by experts claims that a theory was peer-reviewed, rather
in the field in an anonymous, masked fashion.”213 than evaluating whether a review of meaningful
PsycInfo does not assess the existence, qualifica- quality was actually conducted.222 Peer-review
tions, bias, and balance of reviewers; the existence claims thus provide proponents of pseudo-science
and appropriateness of specific review mandates; a simple and insidious entrée into U.S. courts.
or the existence of an actual review. Additionally, The only way to assess the validity and
the database is not wholly composed of peer- reliability Daubert seeks is through a careful
reviewed journals and does not verify that all analysis of reviewed material. Such analysis must
articles are original submissions.214 Given these seek evidence that reviewers were competent and
limitations, it is unclear what meaning should be balanced, that they provided adequate and
drawn from inclusion in this database. The net appropriate scrutiny, and that the material
result of reviewer anonymity and mandate secrecy demonstrates requisite validity and reliability.
is that journals using substandard peer-review can Since peer-review essentially means “having
benefit from the unverifiable claim of peer-review adequate empirical support,” unsupported hy-
and thereby present unproven theories as science potheses should never qualify as peer-reviewed
in legal fora. material. Indicia of meaningful peer-review of a
The potential harm of substandard peer- new theory include empirical evidence, inter-rater
review is substantial. Both the legal and legislative reliability testing, and support from extant
branches of the government rely on peer-review as science.
a hallmark of scientific validity.215 The govern- Valid new science builds on extant science.
ment’s standards for peer-review are more defined Authors of valid new theories generally cite
that those publicly available from journals. To extensively to extant literature by other authors.
evaluate potential conflicts, the federal govern- By contrast, “author self-citation,” which refers to
ment requires transparency of reviewer identities the practice of an author citing his or her own
and reviewer mandates.216 These requirements past work in present publications, should be
create a means of auditing peer-review claims viewed with caution.223 Self-citation is appropriate
within the context of federal research and policy. and valuable in instances when the cites refer to
But some government assumptions, while in studies providing empirical support for a theo-
keeping with the goals of peer-review, may not retical claim. However, when an author self-cites
reflect journals’ practices. For example, the to earlier unsubstantiated claims in an effort to
government assumes that scientific journal editors support a similarly unproven hypothesis, it is only
use “reviewer comments to help determine a circular bolstering of unproven claims through
whether a draft scientific article is of sufficient reiteration.
quality, importance, and interest to a field of
iii. Gardner’s Cited Peer-Reviewed
study to justify publication,” 217 and prohibits
reviewers from making policy recommendations Articles Provide No Empirical Support
because “[s]uch considerations are the purview of for PAS
the government.”218 There is no evidence that all To support his claim that PAS was legally
peer-review journals use these practices. admissible, Gardner cited twenty-three peer-
reviewed articles about PAS.224 Eleven of these
ii. Daubert Uses Peer-Review as a Proxy articles appeared in peer-reviewed journals, eleven
for Reliability and Validity articles received no peer-review, and one article
Daubert rightly observed that the mere fact of appeared in a peer-reviewed journal, but was not
peer-review is not dispositive evidence of a about PAS. None of the cited articles cite any
theory’s validity or reliability.219 Nonetheless, inter-rater reliability testing or empirical support
Daubert listed peer-review as a relevant factor for for PAS’s existence. Instead, they are
determining evidentiary admissibility.220 Es- characterized by virtually complete reliance on
sentially, Daubert treats peer-review as a proxy for self-citation to Gardner’s self-published works,
meaningful scientific assessment of reliability and lacking citation to any empirical evidence, and
validity.221 Unfortunately, courts consider only containing extensive redundant and verbatim

Vol. 26 ♦ No. 1 ♦ Spring 2006

14 Jennifer Hoult

uncited republication of portions of Gardner’s Eleven of the cited articles appeared in three
earlier self-published works.225 By contrast, peer-reviewed journals: Journal of Divorce &
Gardner’s earlier scholarly work cited heavily to Remarriage, American Journal of Family Therapy, and
extant science.226 The cited articles simply and American Journal of Forensic Psychology. These
circularly republish Gardner’s unsupported claim journals are included in the American Psycho-
that PAS exists. If peer-review is a proxy for logical Association’s (“APA”) PsycInfo database.236
reliability and validity, the above factors suggest However, these articles contain extensive uncited
that the cited articles received no meaningful peer- republication, lack of citation to external sources,
review. circular reasoning and ill logic, and lack any
empirical support for Gardner’s claims.
a. Articles That Received
Of these eleven articles, one is not about
No Meaningful Peer-Review
PAS.237 In the other ten, Gardner republished
One article receiving no meaningful peer review
extensive, verbatim material without citation to
appeared in Issues in Child Abuse Accusations, co-
his earlier, primarily self-published, works. In
founded and self-published by its editors, Hollida
some cases he used identical titles for separately
Wakefield and her husband Ralph Underwager.227
published, but redundant, articles.238 Within the
This journal’s website does not mention peer-
articles, large sections of previously published text
review,228 and the journal is not recognized as
appear verbatim without citation.239 One article is
peer-reviewed through inclusion in the PsycInfo
an uncited copy of Gardner’s website-published
database or the Institute of Scientific Information
DDC chart,240 which appears in many of his
(“ISI”) rankings. The article is not an original
articles without citation.241 Other website-
work: Gardner’s footnote cites it as a reprint of a
published material also appears verbatim and
self-published addendum to one of his books.229
without citation in subsequent publications.242
Its only sources are author self-citations.
Self-published material claiming PAS is a medical
Nonetheless, Ms. Wakefield claims that Gardner’s
syndrome appears verbatim, uncited and without
article was peer-reviewed by two anonymous peer-
empirical support.243 Although most of his
reviewers.230
republication is not cited, Gardner did specify
While peer-review requires balanced view-
that one article had been previously published,
points,231 Ms. Wakefield stated in the journal’s
citing the original publication. 244 However, his
first volume that the journal has a specific point of
website appears to list these two publications as
view: that of its editors who reject any approach
distinct items.245 By extensively republishing
they deem “irrational or irresponsible.”232 They
verbatim text without citation, Gardner created
revealed their viewpoint in a 1993 interview in a
the illusion of a body of extant literature about
Dutch pedophilia journal.233 Therein, Mr.
PAS, when the amount of unique material in the
Underwager stated that “pedophilia is an accep-
articles is minimal, composed only of unsupported
table expression of God’s will for love and unity
claims. These articles lack any empirical support,
among human beings,” arguing that pedophiles
and their extensive uncited self-citation raise
should fight for decriminalization, likening this to
doubts about meaningful peer-review.
the struggle for civil rights, while Ms. Wakefield
Six articles, the most in any single journal
proposed a twenty-year longitudinal study of men
and nearly twenty-five percent of those cited as
in “loving” sexual relationships with twelve-year-
peer-reviewed, appeared in The American Journal of
old boys. 234 One noted forensic psychologist
Family Therapy.246 The journal’s website does not
described Underwager as “a hired gun who makes
mention peer-review.247 The journal’s “Instruc-
a living by deceiving judges about the state of
tions for Authors” direct authors to submit three
medical knowledge and thus assisting child
copies of their articles, but do not specify peer-
molesters to evade punishment.”235 The article’s
review.248 They also specify that the author must
prior self-publication, lack of citation to external
sign a statement that the article “has not been
authority or empirical support, and the editorial
published elsewhere.”249 The journal’s website
bias of the journal undermine the claim of
states that “The [ISI] Journal Citations Report for
meaningful peer-review.
2002 ranks The American Journal of Family

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 15

Therapy 74th out of 83 journals in Clinical Two articles appeared in the Journal of Divorce
Psychology (Social Science) and 26th out of 33 & Remarriage.262 The journal’s web page does not
journals in Family Studies, with an impact factor mention peer-review or any standards for peer-
of 0.259.”250 The ISI selects journals for inclusion review. 263 The directions for article submission
in its rankings based on the quality of their require neither a specified number of copies, nor
current publication and the value of their that submitted articles be unidentifiable, nor that
scientific contribution in their field.251 None of the the work be previously unpublished.264 The
other journals in which Gardner was published journal’s publisher claims that they publish
have been selected for ranking by ISI. This journal various journals, all of which are peer-reviewed,
is also included in the APA’s PsycInfo. but stipulates that specific peer-review standards
Five of the six articles published in The and processes are determined by each journal’s
American Journal of Family Therapy contain material editor, and that such standards may change when
republished from other uncited sources, including a new editor takes charge of the particular
redundant uncited material published in this same publication.265 One of the two cited articles in this
journal, an apparent violation of their own rule journal was not about PAS: it refers to PAS once
against publishing previously published works.252 in passing, citing Gardner’s self-published
Three of these articles represent almost verbatim material,266 and also contains uncited material
redundant and uncited text that Gardner had from an earlier published article.267 The second
previously published on his website.253 One of article is a slightly expanded version of an earlier
them echoes material in one of Gardner’s self- self-published addendum to one of Gardner’s
published books.254 The sixth article proposes books that he previously published both as a book
court-ordered brainwashing for children diagnosed addendum and as an article in another journal.268
with PAS.255 Since Gardner provides no empirical As with his other articles, extensive self-citation
evidence that such brainwashing is an accepted or and a lack of empirical support cast doubt on the
effective medical practice, the article appears to alleged peer-review.
advocate the court-ordered practice of experi- In sum, the twelve cited articles contain
mental medicine.256 In 2003, the editorial board of nothing more than self-cited republications of
this journal posthumously appointed Gardner as a Gardner’s original, unsupported hypotheses,
permanent honorary member of their editorial which are exactly the kind of “subjective beliefs
board.257 None of the articles contain any and unsupported speculation” that are inad-
empirical support for Gardner’s republished missible under Daubert.269 Through circular self-
hypotheses. citation and redundant republication, Gardner
Three of the cited articles appeared in the created the illusion of a body of scholarly work on
American Journal of Forensic Psychology.258 This PAS where none existed. Lacking both empirical
journal’s website states that manuscripts are support and inter-rater reliability testing, these
“submitted to peer-review upon receipt.”259 The articles provide no evidence for PAS’s reliability or
most striking feature of these articles is their validity. The peer-reviewers for these journals
apparent advocacy for practice that violates the published unsupported hypothesis as science,
rules of professional conduct. For example, demanding no empirical support for Gardner’s
Gardner specifies that guardians ad litem ought to hypotheses, without questioning extensive self-
be agents of the state, representing the interest of citation and uncited republication.
the alienated parent instead of the interest of the
b. Articles That Received No Peer-Review
child,260 a practice that appears to constitute per se
According to their editors and publishers, the
malpractice. While Gardner elsewhere claims that
remaining 11 cited articles were not peer-
PAS is widely accepted in U.S. courts, his
reviewed. Five such articles appeared in three
statement that no court has followed his treat-
journals: Academy Forum, 270 New Jersey Family
ment advice261 may more accurately reflect PAS’s
Lawyer, 271 and Court Review. 272 Two articles
status in legal practice. These articles contain no
appeared in the published proceedings from a PAS
empirical evidence supporting Gardner’s theory.
conference.273 One article is a chapter in a multi-

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16 Jennifer Hoult

volume psychiatry reference text whose contents Gardner largely insulated his work from peer
were solicited by invitation, and not peer- scrutiny by self-publishing, using his personal
reviewed.274 One article is a chapter in one of publishing company, and republishing his self-
Gardner’s non-peer-reviewed books that is published materials.291 When peers did evaluate
actually a German translation of another article his work, they discredited it.292
on Gardner’s list.275 One article is a verbatim copy Lacking both positive peer assessment of
of the DDC chart Gardner published on his PAS’s reliability and an affiliation serving as a
website in 2003, that was published on a website proxy for such reliability, Gardner bolstered his
that encourages readers to lobby for PAS’s bids for expert certification with ipse dixit claims
inclusion in the next DSM manual.276 Finally, one that PAS and his other theories were accepted
article Gardner cited as “in press” appears to be science.293 He claimed his protocols for dif-
unpublished as of this writing.277 ferentiating between true and false allegations of
The stark lack of scientific rigor and empirical child sexual abuse were “generally viewed as the
foundation in these articles raises the question of most comprehensive series of protocols yet
how Gardner convinced the publishers and editors published,”294 when they had been discredited
to publish his work. One possibility is the fact within the field.295 He claimed that he
that all the articles cite Gardner’s affiliation with “successfully testified” in Frye and Daubert
Columbia’s College of Physicians and Surgeons.278 hearings on PAS and his Sex Abuse Protocols,
Perhaps publishers and editors used this affiliation when both theories lack empirical support and no
as a proxy for Gardner’s scientific competence and precedent holds either admissible.296 An examina-
ethics. Curiously, the contact address Gardner tion of the documents Gardner cited for legal
provided to readers was not a Columbia office, but precedent, peer-review, and PAS’s existence
the address of his self-publishing company, reveals that none of the documents support his
Creative Therapeutics.279 claims.
Additionally, Gardner made contradictory
E. Reliability Cannot Be Inferred from audience-dependent claims about PAS’s scientific
Gardner’s Alleged Professional Affiliation status. Within Columbia, he asserted that PAS
Professional affiliation represents achievement, and his other theories were personal opinions
standing, and recognition in the relevant field and rather than research or established science.297
is thus relevant to expert certification and Outside Columbia, he claimed PAS was an actual
credibility.280 Gardner claimed that he was a full psychiatric syndrome, “not a theory, [but] a
professor at Columbia University’s College of fact.”298 The Columbia faculty was apparently
Physicians and Surgeons,281 and he is described as unaware that Gardner claimed PAS was valid
such in his cited peer-reviewed articles, in legal science, just as courts were unaware that Gardner
decisions,282 and in law reviews.283 While this title claimed PAS was merely personal opinion. It
may have led judges to believe that Gardner was a appears that these audience-dependent misrepre-
paid and tenured professor,284 bolstering his bid sentations helped Gardner retain his volunteer
for expert qualification in some 400 cases,285 status at Columbia while bolstering his lucrative
Gardner was neither paid, tenured, nor a full career as an expert witness.
professor at Columbia.286 His affiliation there, Loomis, a case in which a Gardner was the
from 1963 to 2003,287 was as an unpaid only expert witness, may reflect the extent of his
volunteer.288 success.299 Discussing the admissibility of PAS,
Appointment to a tenured professorship relies that court cited seventeen cases in support of the
on positive peer-evaluation of the candidate’s statement that PAS “has been admitted” in other
research and teaching.289 Hence, Daubert uses this courts.300 In fact, none of these cases set precedent
type of “impressive [credential]” as a proxy for holding PAS admissible, and several, including the
positive peer-evaluation of expert’s credibility.290 first two cases listed, are unpublished. Notably,
In juxtaposition, Gardner’s volunteer appoint- Gardner lists all but two of these cases on his
ment, lacking reliance on any peer assessment of website.301 Apparently, the Loomis attorneys,
his research, provided no such proxy. In fact,

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Evidentiary Admissibility of Parental Alienation Syndrome 17

clerks, and judge never read these cases before provide the peer support for the reliability and
citing them. validity that Daubert demands.309 PAS is thus
Ironically, it may be the very magnitude of inadmissible under Daubert and Kumho Tire.310
his misrepresentations that fueled Gardner’s
success in gaining expert certification and 3. FRE 702: Reliable and Permissible
presenting his hypothesis as scientific fact. It Expert Testimony
appears that attorneys and judges all over the U.S.
FRE 702 stipulates that if “scientific, technical, or
shirked their obligation to review the voluminous
other specialized knowledge will assist the trier of
documents he cited, perhaps credulously assuming
fact to understand the evidence or determine a
that no professional would engage in such
fact in issue,” expert testimony may be admis-
wholesale misrepresentation.302 By exploiting legal
sible.311 Because the role of the expert is to provide
professionals’ trust in authority figures, Gardner
material outside the fact-finder’s ken to assist the
embodied the very risk that worried the Court in
fact-finder in reliably assessing the evidence,312
Daubert, combining a false claim of tenured
matters of common knowledge are not the proper
professorship at an elite institution with a
province of expert testimony. One of the two
voluminous set of citations to foil evidentiary
precedent-bearing decisions that hold PAS
gate-keeping.303 Had attorneys revealed that
inadmissible stated that it is inappropriate expert
Gardner was an unpaid Columbia volunteer whose
testimony because it concerns the common
theories were self-published and scientifically
knowledge that some children are alienated and
discredited, it is likely judges would not have
that some parents place their children in the midst
certified him as an expert, and PAS would not
of marital conflicts.313
likely have entered U.S. courts.
While FRE 702 allows the qualification of an
F. Lacking Reliability, PAS Is Inadmissible expert by virtue of “knowledge, skill, experience,
training, or education,” and admits scientific
under Daubert & Kumho Tire
testimony that relies on sufficient facts and a
PAS cannot satisfy Daubert or Kumho Tire for reliable underlying principle,314 Gardner’s volun-
several reasons. As a hypothetical “proposed teer position at Columbia and PAS’s lack of
syndrome” without supporting empirical evidence, empirical support would be insufficient for both
PAS remains “unsupported speculation”304 rather expert certification and admissibility.
than “scientific knowledge.”305 By design, the FRE 702 limits experts’ testimony to their
DDC can neither diagnose PAS according to field of knowledge. Because PAS’s etiology and
Gardner’s definition, distinguish adaptive from treatment are legal, not medical, PAS is not a
pathological alienation, nor logically diagnose any permissible subject for medical expert testi-
definable pathological entity. Its design leads mony.315 While medical professionals may form
logically and inexorably to an extraordinarily high personal opinions about the cause of and
error rate. These factors reveal the lack of treatment outcomes for their patient’s injuries,316
scientific methodology and empirical evidence they may not attribute legal fault, weigh evidence
underlying PAS.306 Lacking scientific foundation, under evidentiary standards, or mandate legal
PAS cannot logically or scientifically qualify as a actions because such testimony usurps the roles of
medical syndrome. Inter-rater reliability testing jury and judge. The DDC impermissibly diagnose
cannot demonstrate its reliability because, by the falsity of child abuse allegations, ascribe legal
design, the DDC do not correlate with any fault,317 and mandate legal sanctions.318
pathology. Scholars question PAS’s existence as a
medical syndrome,307 and it is neither recognized 4. FRE 704(b): Expert Opinion on
by relevant professional organizations, nor
Ultimate Issues
included in the DSM, further indicating its lack of
support within its relevant scientific commu- FRE 704(b) prohibits expert testimony about an
nity.308 The peer-reviewed articles Gardner cited ultimate issue of fact relating to an element of the
present nothing beyond Gardner’s “subjective crime or an applicable defense, because this
beliefs and unsupported speculation,” failing to invades the province of the fact-finder.319 The

Vol. 26 ♦ No. 1 ♦ Spring 2006

18 Jennifer Hoult

Advisory Committee Notes on this rule note that who deflected claims of abuse with counter-claims
scientific experts have an aura of inviolability, and of maternal coaching.327 Abusive fathers remain
their testimony thus creates a unique risk of twice as likely as nonviolent fathers to seek sole
usurping the role of the fact-finder by “merely physical custody, and if they lose custody, they
[telling] the jury what result to reach.”320 When are likely to continue to threaten and harass
experts use psychological syndromes to diagnose mothers using legal actions.328 Battering fathers
fault or an underlying legal claim, such as child are “three times as likely to be in arrears in child
abuse or spousal battering, such testimony may be support and are more likely to engage in
particularly likely to have undue influence because protracted legal disputes over all aspects of the
the expert’s assessment of credibility is presented divorce.”329
as a scientific finding rather than a personal Gardner’s child sex abuse work responded to
opinion and, thus, may appear inviolable to the this emerging social consciousness and increased
judge or jury.321 Claiming to diagnose false abuse litigation over child sex abuse, which he deigned a
allegations, PAS clearly bears this risk. modern “hysteria.”330 He delineated the founda-
Rule 704(b) limits psychiatric experts to tion of PAS and his other tools, that purport to
“presenting and explaining their diagnoses,” and differentiate between true and false allegations of
bars their opinions on “ultimate issues” such as child sexual abuse, in his theory of human
whether a criminal defendant is legally insane.322 sexuality appearing in his self-published work,
Gardner stated that PAS is a form of child True and False Allegations of Child Sexual Abuse.331
abuse.323 The DDC diagnose legal fault and In this work, which cites no empirical
mandate legal responses. While Loomis was a state support, Gardner argued that all human sexual
court decision setting no precedent on admissi- paraphilias (deviant behaviors) are natural adap-
bility under Rule 704(b) of the FRE, that court tive mechanisms that foster human procreation,
held PAS inadmissible, observing that New York thereby enhancing the species’ survival. Thus,
practice does not permit an expert to testify to an pedophilia, sadism, rape, necrophilia, zoophilia
ultimate issue of fact, and noting that Gardner (sex with animals), coprophilia (sex with feces),
“[purported] to make such a determination by and other paraphilias served to enhance the
determining if a particular accusation has the survival of the human species by increasing
criteria of a truthful accusation or a false procreation.332 Construing men as sperm donors
accusation.”324 and females as sperm recipients, he claimed these
“atypical” sexual behaviors served to “[keep the
V. Policy Considerations: PAS’s male’s] juices flowing and increasing, thereby, the
likelihood of heterosexual involvement with a
Theoretical Roots
person who is more likely to conceive,” 333 and
As the analysis supra indicates, twenty years after characterized any situation where a female was a
Gardner first described PAS, it remains an ipse sperm recipient as fostering the survival of the
dixit. To understand the policy implications species.334 He asserted that human females are
involved in its admissibility requires an naturally “passive,” and that the role of rape or
examination of its theoretical roots. incest victim was a natural extension of this
The 1980s revealed a previously unimagined passivity,335 stating that “by merely a small
epidemic of child sexual abuse. Increased aware- extension of permissible attitudes,” women’s
ness of intra-familial abuse resulted in a concomi- sexual passivity leads them to become masochistic
tant increase in the frequency of incest allegations rape victims who “gain pleasure from being
arising during divorce, the majority of which were beaten, bound, and otherwise made to suffer,” as
found to be true.325 Burgeoning social and legal “the price they are willing to pay for gaining the
response to child abuse raised both the possibility gratification of receiving the sperm.”336 He claimed
of care and protection for abused children and the that incest was not harmful in itself, but, citing
spectre of legal accountability for crimes that had Shakespeare, claimed only “thinking makes it
previously been committed with impunity. The so.”337
majority of the accused perpetrators were men326

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Evidentiary Admissibility of Parental Alienation Syndrome 19

He claimed that sexual activities between which a man confessed to sexually abusing his two
adults and children were “part of the natural daughters and pled guilty to criminal charges.351
repertoire of human sexual activity,” 338 and that In fact, there is no evidence of an epidemic of
adult-child sex was a positive procreative practice false child abuse allegations, whether in intact or
because pedophilia sexually “[charges] up” the divorcing families. The APA Task Force reported
child, making the child “highly sexualized” and that “[c]ontrary to widespread beliefs, research
more likely to “crave” sexual experiences that will findings suggest that reports of child sexual abuse
result in increased procreation.339 Since his do not increase during divorce and actually occur
analysis focused on male paraphiliacs, Gardner in only about 2% to 3% of the cases,” noting that
thus claimed that homosexual sex increases the during custody disputes, less than ten percent of
species’ reproduction despite the fact that homo- cases involve child sexual abuse allegations,
sexuals generally do not engage in heterosexual further noting that these reports are “as likely to
(i.e. reproductive) sex.340 be confirmed as reports made at other times.”352
Gardner claimed that any harm caused by In keeping with studies indicating that approxi-
sexual paraphilias is not a result of the paraphilic mately twenty-five percent of American girls and
conduct itself but, instead, solely a result of ten percent of American boys are sexually abused,
extraneous social stigma, and argued that most in their own homes,353 Gardner claimed that
paraphiliacs deserved social respect and sym- “probably over [ninety-five percent]” of all sex
pathy.341 This explains his seemingly contradictory abuse allegations are valid.354 He acknowledged
statements that real abuse absolutely precludes that “intact” intra-familial settings are at “quite
PAS,342 that real abuse “may” justify alienation,343 high risk for sex abuse” but, nonetheless, main-
that PAS may exist in cases of real abuse,344 and tained that the majority of sex abuse allegations in
that PAS “may be even worse than other forms of “vicious custody dispute[s]” are false,355 premising
abuse,” including physical abuse, sexual abuse, PAS on the alleged “epidemic” of false child sex
and neglect.345 Gardner’s theory, holding male abuse allegations created by divorcing women.356
sexual violence to be reproductively beneficial to While Gardner vociferously denied that his
the species, does not construe sexual violence as work was sexist,357 he claimed that women project
abuse.346 This theoretical structure may explain “their own sexual inclinations” onto their divorced
PAS’s presumption that abuse allegations are husbands, fueling false sex abuse accusations and
always false. If incest is not abuse, then it can PAS, and are driven by the “‘hell hath no fury like
never be the basis for justified alienation, and a a woman scorned’ phenomenon;”358 that divorced
mother’s attempt to prevent a father’s sexual women seek female therapists who are themselves
contact with his children harms species’ “antagonistic toward men;”359 that professional
survival.347 Child Advocates are primarily “overzealous
women” who act “in the service of venting rage
1. Gardner Claimed That Pedophilia upon men;”360 and that “[f]ueling the program of
and Incest Are Not Child Abuse vilification is the proverbial ‘maternal instinct’…
Throughout the animal kingdom mothers will
The increase in reported incest during the 1980s
literally fight to the death to safeguard their
led to allegations of a hysterical epidemic of false
offspring and women today are still influenced by
child abuse allegations. Gardner claimed that
the same genetic programming.”361 Throughout his
“hundreds (and possibly thousands)” are currently
PAS publications, Gardner portrayed women as
incarcerated in the U.S. for sex crimes they did
paranoid, irrational, selfish, and psychopathic
not commit,348 without citing even one case to
liars,362 and men as the hapless, passive victims363
support this claim.349 The New Yorker ran an
of unjustified female rage.
article claiming that “thousands” of people had
Gardner’s attempt to distinguish between
been accused of child sex abuse based on false
true and false allegations of child sex abuse led to
memories,350 but when a leading psychiatrist asked
his creation of various tools including PAS and
how many of these “thousands of cases” the
the Sexual Abuse Legitimacy Scale (“SALS”).364 In
reporter had documented, he cited one case in
fact, SALS does not actually measure whether an

Vol. 26 ♦ No. 1 ♦ Spring 2006

20 Jennifer Hoult

allegation is true or false. Gardner designed it to activities that violate the law, nor do we advocate
grade some real cases of abuse as “false” by using a that anyone else should do so.”375 NAMBLA
“legal preponderance” standard.365 While Gardner provides publications and support to incarcerated
specified that SALS was not designed for use in sex offenders, construing them as “unjustly impris-
extra-familial child abuse cases,366 neither this oned” for allegedly “consensual, loving relation-
limiting statement nor SALS’ preponderance ships between younger and older people,” rather
standard are mentioned in the SALS diagnostic than incarcerated for violations of law and harm
definition. Thus, practitioners and legal profes- against children. 376
sionals might be unaware of its limitations. Like Both Gardner and NAMBLA claim that
PAS, SALS appears to have a high error rate. One adult-child sex is biologically natural, not inher-
author applied SALS to a case involving oral sex ently harmful to the child, and that any resultant
and attempted rape of a six-year-old, crimes that harm is caused by social stigma rather than the
were witnessed by a neighbor, and to which the sexual contact itself.377 Gardner claimed the sole
perpetrator confessed. SALS graded the claim as “determinant as to whether these experiences [i.e.
predictive of a false claim and indicated the child’s a sexual encounter between an adult and a child]
mother’s behavior was evidence that the “sex will be traumatic is the social attitude towards
abuse allegation is extremely likely to have been these encounters”378 and stated:
fabricated.”367 [M]any societies have been unjustifiably
Since Gardner’s child sex abuse assessment punitive to those who exhibit these sexual
tools purport to determine legal fault under the paraphilic variations [e.g. pedophiles,
guise of medical diagnosis, it is not surprising that rapists, etc.] and have not been giving
legal precedent holds them inadmissible. The proper respect to the genetic factors that
court in Page v. Zordan held that SALS “was not may very well be operative. Such con-
supported by any evidence concerning its recogni- siderations may result in greater tolerance
tion and acceptability within the scientific com- for those who exhibit these atypical sexual
munity,” and that its admission was one basis for proclivities. My hope is that this theory
reversible error.368 The Loomis decision, one of the will play a role (admittedly small) in
two cases that set precedent holding PAS inadmis- bringing about greater sympathy and
sible, cited Page noting that SALS had been found respect for individuals who exhibit these
to be “not generally accepted” and thus inadmis- variations of sexual behavior. [Further,]
379
sible under Frye.369 The court in Tungate v. they do play a role in species survival.
Commonwealth of Kentucky held inadmissible While Gardner claimed that “repeat offenders
Gardner’s twenty-four “indicators for pedophilia,” must be removed from society,” he advocated that
which purported to identify pedophiles, because they only be imprisoned after treatment has
the testimony impermissibly addressed the issue failed, advocating that they not be imprisoned
of guilt or innocence and the profile did not with “hardened criminals,” or be subjected to
satisfy either Frye or Daubert.370 lengthy sentences.380 As a political advocate,
Gardner lobbied to abolish mandated reporting of
2. Gardner’s Theory Mirrors Pro- child abuse, to abolish immunity for reporters of
Pedophilia Advocacy371 child abuse, and for the creation of federally
funded programs to assist individuals claiming to
Gardner’s views about adult-child sex parallel
be falsely accused.381 Like Gardner, NAMBLA
those of advocates for the legalization of adult-
claims that adult-child sex is normal, healthy, and
child sexual contact372 and pro-pedophilia
beneficial for children, and advocates for increased
advocacy groups like the North American Man
respect for pedophiles and the eradication of
Boy Love Association (“NAMBLA”).373 Founded
sanctions through the legalization of pedophilia.382
in 1978, NAMBLA describes itself as a “political,
While NAMBLA cites an article that claims that
civil rights, and educational organization” whose
adult-child sex is generally not harmful to boys,383
goal is to “end the extreme oppression of men and
the U.S. Congress condemned this article and
boys in mutually consensual relationships.”374 The
passed a resolution specifically recognizing the
organization claims it, “does not engage in any

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 21

harmfulness of adult-child sex after scholars is a political-legal tool designed and used to shield
reported the article’s methodological deficiencies child abusers from liability, and to promote their
and inaccuracies.384 Ignoring evidence that adult- unfettered access to their children through judicial
child sex harms the majority of male and female orders of sole paternal custody.
children affected, pro-pedophilia activists and In essence, PAS describes women and chil-
scholars argue that children are generally not dren offending as patriarchical norms395 by
harmed by sexual contact by adults and that not showing disrespect or refusing to show affirmative
allowing children to have sex with adults denies respect for men.396 It presumes all reports of male
children’s rights.385 violence are false, ignoring empirical evidence that
Despite his passionate advocacy, Gardner men inflict far more harm through violence than
claimed he did not condone or recommend adult- women,397 and mirrors patriarchic law, under
child sexual contact, maintaining he was “only which male violence towards women and children
describing the reality of the world.”386 He is legal. It punishes women who exercise their legal
maintained that he was “opposed to [NAMBLA’s] rights, mirroring women’s lack of legal rights
primary principles,” claiming that adult men under a patriarchical system. Gardner called PAS
having sex with boys are “exploiting them, cor- a form of child abuse worse than the child’s
rupting them, and contributing to the develop- death.398 Certainly, while a dead child cannot
ment of sexual psychopathology in them,” and withhold fealty from his father, a living child who
stating that pedophiles belong in prison.387 How- does so challenges and undermines his power as
ever, both Gardner and NAMBLA published the the patriarchic. Under a patriarchical system, a
view that adult-child sex is generally benign or child’s disrespect to his father is outrageous
beneficial. Both claim to abhor exploitative, because the child is the father’s “possession.”399
coercive sexual conduct,388 and neither defines While PAS allegedly harms children,400 the only
what constitutes child sexual abuse.389 PAS-caused harm Gardner documented is the
NAMBLA claims the distinguishing factor rejected male’s grief.401 Posing as a medical
between legal and illegal adult-child sex is the syndrome, PAS diagnoses as pathological women’s
consent of the child,390 ignoring the common law’s and children’s rejection of men. While such
recognition of the developmental limitations that behavior is not pathological, it does represent the
render children incapable of giving meaningful ultimate narcissistic insult to male authority.
consent. Gardner claimed that coercion of a Thus, PAS seeks to use coercive state action to
“weaker and/or younger” person, including pedo- force women’s and children’s compliance with
philia, is per se “exploitation of an innocent male demands for affirmative displays of
party.”391 He described NAMBLA’s view that if respect,402 and seeks to protect the unfettered
the child consents, pedophilia is “acceptable and access of intra-familial sex offenders to their
even desirable” as a “rationalization for deprav- victims through the award of sole paternal
ity.”392 Gardner indicated he did not believe a custody. Alarmingly, undaunted by PAS’s lack of
child could give consent, but he often describes scientific validity, and determining to use PAS in
adult sexual contact with children as a benign court, PAS proponents advise one another to
social norm that is not inherently harmful.393 circumvent evidentiary admissibility standards by
Simultaneously asserting that pedophilia and testifying about PAS without calling it by name.
403
incest are not inherently harmful, and that they Both PAS’s underlying theory and functional
are inherently harmful, Gardner claimed we are all use in court demonstrate that its admissibility
nascent pedophiles.394 Despite his few claims to violates public policy with regards to women’s and
the contrary, Gardner’s theoretical work is largely children’s legal rights and well being.
consistent in the view that adult-child sex is
benign or beneficial.
The fact that PAS is rooted in theory that can
fairly be described as “pro-pedophilia” raises
policy concerns for our legislature and judiciary.
PAS’s roots and functional use demonstrate that it

Vol. 26 ♦ No. 1 ♦ Spring 2006

22 Jennifer Hoult

VI. Conclusion: Science, Law, and APPENDIX A: CASES LISTED ON

Policy Support PAS’s GARDNER’S WEB SITE
Inadmissibility <http://www.rgardner.com/refs/pas_legalcites.html>
As a legal matter, PAS’s inadmissibility is
(last visited on Sept. 30, 2003)
appropriate given its lack of scientific validity and
reliability.404 As a policy matter, its inadmissibility
Published Cases
1. Pearson v. Pearson, 5 P.3d 239; 2000 Alas.
is appropriate given its structural roots in an
LEXIS 69 (Alaska 2000).
unsubstantiated patriarchical theory that advo-
2. Chambers v. Chambers, 2000 Ark App. LEXIS
cates for child sex offenders’ access to their 476 (Ark. Ct. App. June 21, 2000).
victims. The continued misrepresentation of 3. In re Marriage of Edlund, 66 Cal. App. 4th 1454;
PAS’s scientific and legal status by its proponents, 78 Cal. Rptr. 2d 671; 1998 Cal. App. LEXIS 827;
including proponents’ deliberate circumvention of 98 Cal. Daily Op. Service 7552; 98 Daily Journal
legal gate-keeping by testifying about PAS under DAR 10449 (Cal. Ct. App. 1998).
other names, should place legal professionals on 4. In re John W. v. Phillip W., 41 Cal. App. 4th 961;
alert for continued attempts to bring this 48 Cal. Rptr. 2d 899; 1996 Cal. App. LEXIS 17;
unsubstantiated hypothesis into American courts. 96 Cal. Daily Op. Service 205; 96 Daily Journal
PAS’s twenty-year run in American courts is DAR 283 (Cal. Ct. App. 1996).
an embarrassing chapter in the history of 5. Coursey v. Superior Court (Coursey), 194 Cal.
evidentiary law. It reflects the wholesale failure of App. 3d 147; 239 Cal. Rptr. 365; 1987 Cal. App.
legal professionals entrusted with evidentiary gate- LEXIS 2029 (Cal. Ct. App. 1987).
keeping intended to guard legal processes from the 6. Perlow v. Berg-Perlow, 816 So. 2d 210; 2002 Fla.
App. LEXIS 6179; 27 Fla. L. Weekly D 1108
taint of pseudo-science. Courts entrusted with
(Fla. Dist. Ct. App. 2002).
divorce, custody, and child abuse cases may have
7. Blosser v. Blosser, 707 So. 2d 778; 1998 Fla.
found PAS attractive because it claimed to reduce
App. LEXIS 79; 23 Fla. L. Weekly D 257 (Fla.
these complex, time-consuming, and wrenching Dist. Ct. App. 1998).
evidentiary investigations to medical diagnoses. 8. Tucker v. Greenberg, 674 So. 2d 807 (Fla. App. 5
The goals inherent in PAS’s origins and legal use Dist. 1996).
demonstrate the policy risk of unquestioningly 9. Schutz v. Schutz, 522 S.2d 874; 1988 Fla. App.
accepting simplistic answers to complex human LEXIS 411; 13 Fla. L. Weekly 387; 13 Fla. L.
problems. The unique dynamics of any given Weekly D 387 (Fla. Dist. Ct. App. 1988).
dysfunctional family are unlikely to yield to pat 10. In Re Marriage of Bates, 342 Ill. App. 3d 207;
diagnoses.405 Given that most PA is adaptive and 794 N.E.2d 868; 2003 Ill. App. LEXIS 879; 276
resolves naturally in time, our legislature and Ill. Dec. 618 (Ill. App. Ct. 2003) (unpublished in
courts must determine under what circumstances part).
legal intervention is an appropriate or efficacious 11. In re Marriage of Divelbiss, 308 Ill. App. 3d 198;
response to PA. The answers to this complex 719 N.E.2d 375; 1999 Ill. App. LEXIS 750; 241
question will likely be found in empirically proven Ill. Dec. 514 (Ill. App. Ct. Oct. 22, 1999) (partly
science in the fields of psychology and develop- unpublished).
12. In re Violetta B., 210 Ill. App. 3d 521; 568
mental biology, not in unsubstantiated hypotheses
N.E.2d 1345; 1991 Ill. App. LEXIS 312; 154 Ill.
grounded in theories that violate public policy.
Dec. 896 (Ill. App. Ct. 1991).
Two decades after Gardner first described 13. White v. White, 655 N.E.2d 523; 1995 Ind. App.
PAS, an analysis of the materials he cited in LEXIS 1087 (Ind. App. 1995).
support of PAS’s existence demonstrates that PAS 14. In re Marriage of Rosenfeld, 524 N.W.2d 212;
remains merely an ipse dixit. As a matter of science, 1994 Iowa App. LEXIS 104 (Iowa Ct. App.
law, and policy PAS is, and should remain, 1994).
inadmissible in American courts. 15. Truax v. Truax, 110 Nev. 437; 874 P.2d 10; 1994
Nev. LEXIS 60 (Nev. 1994).

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 23

16. In the matter of J.F. v. L.F., 181 Misc. 2d 722; 37. Wilkins v. Wilkins (cited as No. 90792 (La. Fam.
694 N.Y.S.2d 592; 1999 N.Y. Misc. LEXIS 357 Ct. Nov. 2, 2000)).414
(N.Y. Fam. Ct. 1999). 38. In the Matter of Amber Spencley, 2000 Mich App.
17. Karen B. v. Clyde M., 151 Misc. 2d 794; 574 LEXIS 1770 (Mich. Ct. App. April 7, 2000)
N.Y.S.2d 267; 1991 N.Y. Misc. LEXIS 463 (N.Y. (Gardner cites as Spencley v. Spencley).
Fam. Ct. 1991), affd. sub nom Karen “PP” v. 39. Lubkin v. Lubkin (cited as 92-M-46LD (N.H.
Clyde “QC”, 197 A.D.2d 753; 602 N.Y.S.2d 709; Dist. Ct. Sept. 5, 1996)).415
1993 N.Y. App. Div. LEXIS 9845 (N.Y. App. 40. Lemarie v. Oliphant (cited as No. FM-15-397-94
Div. 1993).406 (N.J. Ch. Dec. 11, 2002)).416
18. Krebsbach v. Gallagher, 181 A.D.2d 363; 587 41. Rosen v. Edwards, N.Y.L.J., Dec 11, 1990, at 27–
N.Y.S.2d 346; 1992 N.Y. App. Div. LEXIS 9832 28.417
(N.Y. App. Div. 1992). 42. Oliver V. v. Kelly V., Husband Is Entitled to
19. Karen B. v. Clyde M., 151 Misc. 2d 794; 574 Divorce Based on Cruel and Inhuman Treatment,
N.Y.S.2d 267; 1991 N.Y. Misc. LEXIS 463 (N.Y. N.Y.L.J., Nov. 27, 2000 at 25.
Fam. Ct. 1991) (this case was subsequently 43. Sidman v. Zager (cited as No. V-1467-8-9-94
revisted in Karen “PP” v. Clyde “QC”, 197 (N.Y.Fam.Ct.)).418
A.D.2d 753; 602 N.Y.S.2d 709; 1993 N.Y. App. 44. Popovice v. Popovice (cited as No. 1996-C-2009
Div. LEXIS 9845 (N.Y. App. Div. 1993)).407 (Pa. Ct. Com. Pl. Aug. 11, 1999)).419
20. Pathan v. Pathan, 2000 Ohio App. LEXIS 119 45. Waldrop v. Waldrop (cited as No. 138517 (Va.
(Ohio Ct. App. Jan. 21, 2000). Cir. Ct. April 26, 1999)).420
21. State v. Koelling, 1995 Ohio App. LEXIS 1056 46. Ange v. Chesapeake Dep’t of Human Services,
(Ohio Ct. App. Mar. 21, 1995). 1998 Va. App. LEXIS 59 (Va. Ct. App. Feb.3,
22. Conner v. Renz, 1995 Ohio App. LEXIS 176 1998).
(Ohio Ct. App. Jan. 19, 1995). 47. Rich v. Rich (cited as No. 91-3-00074-4 (Wa.
23. Sims v. Hornsby, 1992 Ohio App. LEXIS 4074 Super. Ct. June 11, 1993)).421
(Ohio Ct. App. Aug. 10, 1992). 48. Matter of A.R. ( S.E.), Rather Than Custody to
24. Toto v. Toto, 1992 Ohio App. LEXIS 157 (Ohio Father, Court Orders Family Therapy, N.Y.L.J.,
Ct. App. Jan. 16, 1992). Dec. 11, 1990 at 21.
25. Pisani v. Pisani, 1998 Ohio App. LEXIS 4421 49. Janell S. v. J.R.S., 571 N.W.2d 924 (Wis. Ct.
(Ohio Ct. App. 1998). App. 1997).
26. Ochs v. Martinez, 789 S.W.2d 949; 1990 Tex. 50. Fischer v. Fischer, 584 N.W.2d 233 (Wis. Ct.
App. LEXIS 1652 (Tex. App. 1990). App. 1998).
27. McCoy v. State, 886 P.2d 252 (Wyo. 1994).
APPENDIX B: PRECEDENT-
Unpublished Cases
28. Berry v. Berry, No. DR-96-761.01 (Ala. Cir. Ct.
BEARING CASES BY
Jan. 6, 2001)).408 JURISDICTION
29. Oosterhaus v. Short, No. 85DR1737-Div III
(Colo. Dist. Ct.)).409 Federal
30. Metza v. Metza, 1998 Conn.Super LEXIS 2727 1. Edwards v. Williams, 170 F.Supp.2d 727; 2001
(Conn. Super. Ct. Sept. 25, 1998).
U.S. Dist. LEXIS 18360 (E.D.Ky. 2001).
31. Case v. Richardson, 1996 Conn.Super. LEXIS
1836 (Conn. Super. Ct. July 16, 1996).
32. McDonald v. McDonald (cited as No. D-R90-
States
Alabama
11079 (Fla. Cir. Ct. Feb. 20, 2001)).410
2. K.B. v. Cleburne County Department of Human
33. Loten v. Ryan (cited as No. CD 93-6567 FA (Fla.
Resources, 897 So. 2d 379; 2004 Ala. Civ. App.
Cir. Ct. Dec. 11, 2000)).411
LEXIS 740, **9 (Ala. Civ. App. October 1,
34. Boyd v. Kilgore, 773 So. 2d 546 (Fla. Dist. Ct.
2004).
App. Nov. 15, 2000).
3. C.J.L. v. M.W.B., 2003 Ala. Civ. App. LEXIS 100
35. Blackshear v. Blackshear (cited as No. 95-08436
(Ala.Civ.App. Feb. 28, 2003) (to be reported);
(Fla. Dist.Ct.)).412
2003 WL 21488740 (Ala. Civ. App., June 27,
36. Tetzlaff v. Tetzlaff (cited as No. 97D-2127 (Ill.
2003).
Dom. Rel. Ct. Mar. 20, 2000)).413

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24 Jennifer Hoult

4. M.W.W. v. B.W., 900 So. 2d 1230; 2004 Ala. Civ. 19. In Re Marriage of Bates, 212 Ill. 2d 489; 819
App. LEXIS 700 (Ala. Civ. App. September 10, N.E.2d 714; 2004 Ill. LEXIS 1619; 289 Ill. Dec.
2004). 218 (Ill. October 28, 2004); 342 Ill. App. 3d 207;
Alaska 794 N.E.2d 868; 2003 Ill. App. LEXIS 879; 276
Ill. Dec. 618 (Ill. App. Ct. 2003) (partly
5. Pearson v. Pearson, 5 P.3d 239; 2000 Alas.
unpublished).
LEXIS 69 (Alaska 2000).
20. In re Marriage of Divelbiss, 308 Ill. App. 3d 198;
6. Plate v. Alaska, 925 P.2d 1057; 1996 Alas. App.
719 N.E.2d 375; 1999 Ill. App. LEXIS 750; 241
LEXIS 47 (Alaska Ct.App. 1996).
Ill. Dec. 514 (Ill.App.Ct. Oct. 22, 1999) (partly
Arkansas
unpublished).
7. Chambers v. Chambers, 2000 Ark App. LEXIS
Indiana
476 (Ark.Ct.App. June 21, 2000).
21. In re Paternity of V.A.M.C., 768 N.E.2d 990;
California
2002 Ind. App. LEXIS 808 (Ind. Ct. App. 2002)
8. In re Marriage of Condon, 62 Cal. App. 4th 533; (also cited as Moden v. Corr).
73 Cal. Rptr. 2d 33; 1998 Cal. App. LEXIS 231; 22. Hanson v. Spolnik, 685 N.E.2d 71; 1997 Ind.
98 Cal. Daily Op. Service 2108; 98 Daily Journal App. LEXIS 1205 (dissent) (Ind. App. 1997).
DAR 2924 (Cal.Ct.App. 1998). 23. Kirk v. Kirk, 759 N.E.2d 265; 2001 Ind. App.
9. Coursey v. Superior Court (Coursey), 194 Cal. LEXIS 2067 (Ind. App. 2001).
App. 3d 147; 239 Cal. Rptr. 365; 1987 Cal. App.
24. White v. White, 655 N.E.2d 523; 1995 Ind. App.
LEXIS 2029 (Cal.Ct.App. 1987).
LEXIS 1087 (Ind. App. 1995).
10. In re the Marriage Edlund, 66 Cal. App. 4th
Iowa
1454; 78 Cal. Rptr. 2d 671; 1998 Cal. App.
LEXIS 827; 98 Cal. Daily Op. Service 7552; 98 25. In re Marriage of Rosenfeld, 524 N.W.2d 212;
Daily Journal DAR 10449 (Cal.Ct.App. 1998). 1994 Iowa App. LEXIS 104 (Iowa Ct. App.
11. In re John W. v. Phillip W., 41 Cal. App. 4th 961; 1994).
48 Cal. Rptr. 2d 899; 1996 Cal. App. LEXIS 17; Louisiana
96 Cal. Daily Op. Service 205; 96 Daily Journal 26. Hollingswoth v. Semerad, 799 So. 2d 658; 2001
DAR 283 (Cal.Ct.App. 1996). La. App. LEXIS 2444 (La. Ct. App. 2001).
Connecticut
27. White v. Kimrey, 847 So. 2d 157; 2003 La. App.
12. Ruggiero v. Ruggiero, 76 Conn. App. 338; 819
LEXIS 1411 (La. Ct. App. 2003).
A.2d 864; 2003 Conn. App. LEXIS 181
Maryland
(Conn.App.Ct. 2003).
28. Barton v. Hirschberg, 137 Md. App. 1; 767 A.2d
Delaware
874, 2001 Md. App. LEXIS 27; (Md. Ct. Spec.
13. Ford v. Ford, 2000 Del. Fam. Ct. LEXIS 104
App. March 1, 2001).
(Del. Fam. Ct. Dec. 19, 2000).
Mississippi
Florida
29. Ellis v. Ellis, 840 So. 2d 806; 2003 Miss. App.
14. Blosser v. Blosser, 707 So. 2d 778; 1998 Fla.
LEXIS 195 (Miss. Ct. App. 2003).
App. LEXIS 79; 23 Fla. L. Weekly D 257
Missouri
(Fla.Dist.Ct.App. 1998).
30. Kuehne v. State, 107 S.W.3d 285; 2003 Mo. App.
15. In Interest of T.W.M.., 553 So. 2d 260; 1989 Fla.
LEXIS 258 (Mo. Ct. App. 2003).
App. LEXIS 6591; 14 Fla. L. Weekly 2733
New York
(Fla.Dist.Ct.App. 1989).
31. Karen B. v. Clyde M., 151 Misc. 2d 794; 574
16. Perlow v. Berg-Perlow, 816 So. 2d 210; 2002 Fla.
N.Y.S.2d 267; 1991 N.Y. Misc. LEXIS 463 (N.Y.
App. LEXIS 6179; 27 Fla. L. Weekly D 1108
Fam. Ct. 1991) affd. sub nom Karen “PP” v.
(Fla.Dist.Ct.App. 2002).
Clyde “QC”, 197 A.D.2d 753; 602 N.Y.S.2d 709;
17. Schutz v. Schutz, 522 S.2d 874; 1988 Fla. App. 1993 N.Y. App. Div. LEXIS 9845 (N.Y.App.Div.
LEXIS 411; 13 Fla. L. Weekly 387; 13 Fla. L. 1993).
Weekly D 387 (Fla.Dist.Ct.App.1988). 32. People v. Bimonte, 185 Misc. 2d 390; 712
Illinois N.Y.S.2d 829; 2000 N.Y. Misc. LEXIS 339 (N.Y.
2000).
18. In re Violetta B., 210 Ill. App. 3d 521; 568
N.E.2d 1345; 1991 Ill. App. LEXIS 312; 154 Ill.
Dec. 896 (Ill. App. Ct. 1991).

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 25

33. Smith v. Bombard, 294 A.D.2d 673; 741 51. Pisani v. Pisani, 1998 Ohio App. LEXIS 4421
N.Y.S.2d 336; 2002 N.Y. App. Div. LEXIS 4726 (Ohio Ct. App. 1998).
(N.Y. App. Div. 2002). 52. Sims v. Hornsby, 1992 Ohio App. LEXIS 4074
34. Dorothy A. DeMeyer v. Advantage Auto, 2005 (Ohio Ct. App. Aug. 10, 1992).
NY Slip Op 25252; 2005 N.Y. Misc. LEXIS 1288 53. Sinsky v. Matthews, 2001 Ohio App. LEXIS 3479
at *6, (N.Y. Sup. Ct. June 27, 2005). (Ohio Ct. App. Aug. 8, 2001); 2001 Ohio 1939;
35. In the matter of J.F. v. L.F., 181 Misc. 2d 722; 2001 Ohio App. LEXIS 5496; 2001 WL 1581569
694 N.Y.S.2d 592; 1999 N.Y. Misc. LEXIS 357 (Ohio Ct. App. Dec. 12, 2001).
(N.Y. Fam. Ct. 1999). 54. Toto v. Toto, 1992 Ohio App. LEXIS 157 (Ohio
36. People v. Fortin, 289 A.D.2d 590; 735 N.Y.S.2d Ct. App. Jan. 16, 1992)(also cited as Zigmont v.
819; 2001 N.Y. App. Div. LEXIS 13035 (N.Y. Toto).
App. Div. Dec. 31, 2001); 184 Misc. 2d 10; 706 55. In re Adoption of Wagner, 1999 Ohio App.
N.Y.S.2d 611; 2000 N.Y. Misc. LEXIS 88 (N.Y. LEXIS 3097 (Ohio Ct. App. June 30, 1999); 1999
Co. Ct. 2000). Ohio App. LEXIS 3117 (Ohio Ct. App. June 30,
37. Krebsbach v. Gallagher, 181 A.D.2d 363; 587 1999).
N.Y.S.2d 346; 1992 N.Y. App. Div. LEXIS 9832 Oklahoma
(N.Y. App. Div. 1992). 56. Kaiser v. Kaiser, 2001 OK 30; 23 P.3d 278; 2001
38. People v. Loomis, 172 Misc. 2d 265; 658 Okla. LEXIS 30; 72 O.B.A.J.1050 (Okla. 2001).
N.Y.S.2d 787; 1997 N.Y. Misc. LEXIS 141 (N.Y. Texas
Co. Ct. 1997). 57. Ochs v. Martinez, 789 S.W.2d 949; 1990 Tex.
39. Zafran v. Zafran, 191 Misc. 2d 60; 740 N.Y.S.2d App. LEXIS 1652 (Tex. App. 1990).
596; 2002 N.Y. Misc. LEXIS 221 (N.Y. 2002). Vermont
Nevada 58. Cabot v. Cabot, 166 Vt. 485; 697 A.2d 644; 1997
40. April Raburn Martin vs. James Lee Martin, 90 Vt. LEXIS 101 (dissent) (Vt. 1997).
P.3d 981; 2004 Nev. LEXIS 43; 120 Nev. Adv. West Virginia
Rep. 38, n5 **6 (Nev. 2004).
59. State ex rel. George B.W. v. Kaufman, 199 W.
41. Truax v. Truax, 110 Nev. 437; 874 P.2d 10; 1994
Va. 269; 483 S.E.2d 852; 1997 W. Va. LEXIS 25
Nev. LEXIS 60 (Nev. 1994).
(W.Va.1997).
North Dakota
Wisconsin
42. Loll v. Loll, 1997 ND 51; 561 N.W.2d 625; 1997
60. Finster v. Finster, 2003 WI App 201; 267 Wis. 2d
N.D. LEXIS 52 (N.D. 1997).
278; 670 N.W.2d 557; 2003 Wisc. App. LEXIS
43. In the Interest of T.T., 2004 ND 138; 681 N.W.2d
788 (Wis. Ct. App. 2003).
779, 784; 2004 N.D. LEXIS 237 (N.D. June 30,
61. In re Disciplinary Proceedings against David L.
2004).
Nichols, 2002 WI 60; 253 Wis. 2d 149; 645
Ohio
N.W.2d 270; 2002 Wisc. LEXIS 449 (Wis. June
44. Arthur v. Arthur, 130 Ohio App. 3d 398; 720
14, 2002).
N.E.2d 176; 1998 Ohio App. LEXIS 5109 (Ohio
62. Wiederholt v. Fischer, 169 Wis. 2d 524; 485
Ct. App. 1998).
N.W.2d 442; 1992 Wisc. App. LEXIS 473 (Wis.
45. Bates v. Bates, 2001 Ohio 8743; 2001 Ohio App.
Ct. App. 1992).
LEXIS 5428 (Ohio Ct. App. Dec. 7, 2001).
Wyoming
46. Conner v. Renz, 1995 Ohio App. LEXIS 176
63. Carlton v. Carlton, 997 P.2d 1028; 2000 Wyo.
(Ohio Ct.App. Jan. 19, 1995); 1994 Ohio App.
LEXIS 44 (Wyo. March 1, 2000).
LEXIS 6079 (Ohio Ct. App. Dec. 29, 1994).
47. Doerman v. Doerman, 2002 Ohio 3165; 2002 64. McCoy v. State, 886 P.2d 252; 1994 Wyo. LEXIS
Ohio App. LEXIS 3183 (Ohio June 24, 2002). 154 (Wyo. 1994).
48. In the Matter of S.G., 2003 Ohio 161; 2003 Ohio
App. LEXIS 109; 2003 WL 125122 (Ohio Ct. APPENDIX C: LAW REVIEW
App. Jan. 16, 2003).
49. State v. Koelling, 1995 Ohio App. LEXIS 1056 ARTICLES REFERENCING PAS422
(Ohio Ct. App. Mar. 21, 1995).
50. Pathan v. Pathan, 2000 Ohio App. LEXIS 119 1. Jane H. Aiken & Jane C. Murphy, Dealing with
(Ohio Ct. App. Jan. 21, 2000). Complex Evidence of Domestic Violence: A

Vol. 26 ♦ No. 1 ♦ Spring 2006

26 Jennifer Hoult

Primer for the Civil Bench, 39 CT. REV. 12 Parental Partnership, 39 SANTA CLARA L. REV.
(Summer 2002). 1091 (1999).
2. Barbara A. Atwood, Symposium: Hearing 15. Case Comment: North Dakota Supreme Ct. Rev.,
Children’s Voices: The Child’s Voice in Custody 77 N. DAK. L. REV. 589 (2001).
Litigation: An Empirical Survey and Suggestions 16. Kimberly B. Cheney, Feature: Joint Custody:
for Reform, 45 ARIZ. L. REV. 629 (Fall 2003). The Parents’ Best Interests Are In the Child’s
3. Dana Royce Baerger et al, A Methodology for Best Interests, 27 VER. B. J. & L. DIG. 33 (Dec.
Reviewing the Reliability and Relevance of Child 2001).
Custody Evaluations, 18 J. AM. ACAD. MATRI- 17. Steven Alan Childress, The “Soft Science” of
MONIAL LAW. 35 (2002). Discretion: A Reply to Ghosh’s “Search for
4. Elizabeth C. Barcena, J.D., LL.M., Kantaras v. Scientific Validity”, 8 DIGEST 31 (2000).
Kantaras: How a Victory for One Transsexual 18. Elizabeth P. Coughter & Ronald R. Tweel,
May Hinder the Sexual Minority Movement, 12 Family Law, 37 U. RICH. L. REV. 155 (Nov.
BUFF. WOMEN’S L.J. 101 (2003 / 2004). 2002).
5. Mary Becker, Access to Justice: The Social 19. Karen Czapanskiy, Symposium: Interdepen-
Responsibility of Lawyers: Access to Justice for dencies, Families, And Children, 39 SANTA
Battered Women, 12 WASH. U. J.L. & POL’Y 63 CLARA L. REV. 957 (1999).
(2003). 20. Clare Dalton, When Paradigms Collide: Pro-
6. Susan J. Becker, Child Sexual Abuse Allegations tecting Battered Parents and Their Children in
Against a Lesbian or Gay Parent in a Custody or the Family Court System, 37 FAM. & CONCIL.
Visitation Dispute: Battling the Overt and CTS. REV. 273 (July 1999).
Insidious Bias of Experts and Judges, 74 DENV. 21. Douglas Darnall, Parental Alienation: Not in the
U.L. REV. 75 (1996). Best Interest of the Children, 75 N. DAK. L. REV.
7. Alison Beyea & Frank D’Alessandro, Guardians 323 (1999).
Ad Litem in Divorce and Parental Rights and 22. Margaret K. Dore, The “Friendly Parent”
Responsibilities Cases Involving Low-Income Concept: A Flawed Factor for Child Custody, 6
Children, 18 MAINE BAR J. 90 (Spring 2002). LOY. J. PUB. INT. L. 41 (Fall, 2004).
8. J. Michael Bone & Michael R. Walsh, Family 23. Richard Ducote, Guardians Ad Litem in Private
Law: Parental Alienation Syndrome: How to Custody Litigation: The Case for Abolition, 3
Detect It and What to Do About It, 73 FLA. BAR J. LOY. J. PUB. INT. L. 106 (Spring 2002).
44 (March 1999). 24. Linda D. Elrod, A Minnesota Comparative
9. Books, 76 FLA. BAR J. 76 (July/August 2002). Family Law Symposium: Reforming the System to
10. Barry Bricklin & Gail Elliot, Qualifications of Protect Children in High Conflict Custody Cases,
and Techniques to Be Used by Judges, Attorneys, 28 WM. MITCHELL L. REV. 495 (2001).
and Mental Health Professionals Who Deal with 25. Kathleen Coulborn Faller, Child Maltreatment
Children in High Conflict Divorce Cases, 22 U. and Endangerment in the Context of Divorce, 22
ARK. LITTLE ROCK L. REV. 501 (Spring 2000). U. ARK. LITTLE ROCK L. REV. 429 (Spring
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Unmarried Fathers and the Courts: Fathers and 26. Veronica B. Dahir, James T. Richardson, Gerald
Child Abuse Allegations in the Context of P. Ginsburg, Sophia I. Gatowski, Shirley A.
Parental Separation and Divorce, 41 FAM. CT. Dobbin & Mara L. Merlino, Judicial Application
REV. 367 (July 2003). of Daubert to Psychological Syndrome and
12. Carol Bruch, Parental Alienation Syndrome and Profile Evidence: A Research Note, 11 PSYCH.
Parental Alienation: Getting It Wrong in Child PUB. POL. AND L. 62 (March, 2005).
Custody Cases, 35 FAM. L. QUARTERLY 527 27. Henry F. Fradella et al, The Impact of Daubert on
(2001). the Admissibility of Behavioral Science
13. June Carbone, Has the Gender Divide Become Testimony, 30 PEPP. L. REV. 403 (2003).
Unbridgeable? The Implications for Social 28. Rhonda Freeman, Parenting After Divorce: Using
Equality, 5 J. GENDER RACE & JUST. 31 (Fall Research to Inform Decision-Making About
2001). Children, 15 CAN. J. FAM. L. 79 (1998).
14. June Carbone, Symposium: The Missing Piece of 29. Renee Goldenberg & Nancy S. Palmer, Guardian
the Custody Puzzle: Creating a New Model of Ad Litem Programs: Where They Have Gone and

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 27

Where They Are Going, 69 FLA. BAR J. 83 (Dec. The 1980 Hague Convention on the Civil Aspects
1995). of International Child Abduction: Articles and
30. Robert J. Goodwin, Fifty Years of Frye in Remarks The Hague Child Abduction Conven-
Alabama: The Continuing Debate over Adopting tion: Diminishing Returns and Little to Celebrate
the Test Established in Daubert v. Merrell Dow for Americans, 33 N.Y.U. J. INT’L L. & POL. 125
Pharmaceuticals, Inc., 35 CUMB. L. REV. 231 (Fall 2000).
(2004 / 2005). 43. Janet R. Johnston, Building Multidisciplinary
31. Michael C. Gottlieb, Special Issue: Troxel v. Professional Partnerships with the Court on
Granville and Its Implications for Families and Behalf of High-Conflict Divorcing Families and
Practice: A Multidisciplinary Symposium: Intro- Their Children: Who Needs What Kind of Help?,
duction to the Special Issue, 41 FAM. CT. REV. 8 22 U. ARK. LITTLE ROCK L. REV. 453 (Spring
(Jan. 2003). 2000).
32. Paul C. Giannelli, Article: Ake v. Oklahoma: The 44. Janet R. Johnston & Joan B. Kelly, Guest
Right to Expert Assistance in a Post-Daubert, Editorial Notes, 39 FAM. CT. REV. 246 (July
Post-DNA World, 89 CORNELL L. REV. 1305 2001).
(September 2004). 45. Janet R. Johnston et al, Special Issue: Alienated
33. Lyn R. Greenberg et al, Issue Facing Family Children in Divorce: Therapeutic Work with
Courts: Effective Intervention with High-Conflict Alienated Children and Their Families, 39 FAM.
Families: How Judges Can Promote and CT. REV. 316 (July 2001).
Recognize Competent Treatment in Family Court, 46. Randy Frances Kandel, Just Ask the Kid!
4 J. CENTER CHILDREN & CTS. 49 (2003). Towards a Rule of Children’s Choice in Custody
34. Trish Oleksa Haas, Child Custody Determinations Determinations, 49 U. MIAMI L. REV. 299
in Michigan: Not in the Best Interests of Children (Winter 1994).
or Parents, 81 U. DET. MERCY L. REV. 333 47. Katheryn D. Katz, 2001-2002 Survey of New York
(Spring 2004). Law: Family Law, 53 SYRACUSE L. REV. 579
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Sexual Abuse, 4 VA. J. SOC. POL’Y & L. 479 48. Joan B. Kelly, Psychological and Legal Interven-
(Winter 1997). tions for Parents and Children in Custody and
36. Lieutenant Colonel Stephen R. Henley, Develop- Access Disputes: Current Research and Practice,
ments in Evidence III—The Final Chapter, 1998 10 VA. J. SOC. POL’Y & L. 129 (Fall 2002).
ARMY LAW. 1 (May 1998). 49. Joan B. Kelly & Janet R. Johnston, Special Issue:
37. Major Stephen R. Henley, Military Justice Sym- Alienated Children in Divorce: The Alienated
posium I: Postcards from the Edge: Privileges, Child: A Reformulation of Parental Alienation
Profiles, Polygraphs, and Other Developments in Syndrome, 39 FAM. CT. REV. 249 (July 2001).
the Military Rules of Evidence, 1997 ARMY LAW. 50. Dr. Ursula Kilkelly, Symposium: Families and
92 (April 1997). Children in International Law: Effective
38. Stephen P. Herman, ISSUE FORUM: Child Protection of Children’s Rights in Family Cases:
Custody Evaluations and the Need for Standards An International Approach, 12 TRANSNAT’L L. &
of Care and Peer-review, 1 J. CENTER CHILDREN CONTEMP. PROBS. 335 (Fall 2002).
& CTS. 139 (1999). 51. Charles P. Kindregan, Jr., Family Interests in
39. Barbara L. House, Comment: Considering the Competition: Relocation and Visitation, 36
Child’s Preference in Determining Custody: Is It SUFFOLK U. L. REV. 31 (2002).
Really in the Child’s Best Interest, 19 J. JUV. L. 52. Karl Kirkland, Ph.D., Advancing ADR in
176 (1998). Alabama: 1994–2004: Efficacy of Post-Divorce
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41. Wendy A. Jansen, Children and the Law: Allegations In Custody/Visitation Litigation, 18
Children and Divorce: How Little We Know and LAW & PSYCHOL. REV. 247 (Spring 1994).
How Far We Have to Go, 80 MI BAR JNL. 50 54. Douglas D. Knowlton & Tara Lea Muhlhauser.
(Sept. 2001). Mediation in the Presence of Domestic Violence:
42. Thomas A. Johnson, Symposium Issue Cele- Is It the Light at the End of the Tunnel or Is a
brating Twenty Years: The Past and Promise of

Vol. 26 ♦ No. 1 ♦ Spring 2006

28 Jennifer Hoult

Train on the Track?, 70 N. DAK. L. REV. 255 Assessing Mutual Partner-Abuse Claims in Child
(1994). Custody and Access Cases, 42 FAM. CT. REV.
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Assessing for Alienation and Access in Child 69. Daniel Oberdorfer, Larson v. Dunn: Toward a
Custody Cases: A Response to Lee and Olesen, Reasoned Response to Parental Kidnapping, 75
40 FAM. CT. REV. 232 (April 2002). MINN. L. REV. 1701 (June 1991).
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and San Antonio, 64 TEX. B. J. 1023 (Nov. 2001). Child Sexual Abuse Allegations During Custody
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Issue: Alienated Children in Divorce: Assessing 71. Daniel Pollack & Susan Mason, Parenting Plans
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CATHOLIC LAW. 153 (Summer / Fall 1999). Testimony, 62 MO. L. REV. 485 (Summer 1997).
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(Jan. 2004). national Law: The Hague Child Abduction
68. Linda C. Neilson, Special Issue: A Celebration of Convention and Children’s Rights, 12
Canadian Family Law and Dispute Resolution:

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 29

TRANSNAT’L L. & CONTEMP. PROBS. 393 (Fall 95. Ira Turkat, Parental Alienation Syndrome: A
2002). Review of Critical Issues, 18 J. AM. ACAD.
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“The Battered Mother’s Dilemma”, 27 W. ST. 98. Richard A. Warshak, Bringing Sense to Parental
U.L. REV. 29 (1999/2000). Alienation: A Look at the Disputes and the
86. Nat Stern & Karen Oehme, The Troubling Evidence, 37 FAM. L.Q. 273 (Summer 2003).
Admission of Supervised Visitation Records in 99. Janet Weinstein, And Never the Twain Shall
Custody Proceedings, 75 TEMPLE L. REV. 271 Meet: The Best Interests of Children and the
(Summer 2002). Adversary System, 52 U. MIAMI L. REV. 79 (Oct.
87. Jo-Anne M. Stoltz & Tara Ney, Child Alienation 1997).
in Divorce: Resistance to Visitation: Rethinking 100. Justice R. James Williams, Special Issue:
Parental and Child Alienation, 40 FAM. CT. REV. Alienated Children in Divorce: Should Judges
220 (April 2002). Close the Gate on PAS and PA?, 39 FAM. CT.
88. Matthew J. Sullivan, A Celebration of Canadian REV. 267 (July 2001).
Family Law and Dispute Resolution: Article: 101. Lewis Zirogiannis, Special Issue: Alienated
Ethical, Legal, and Professional Practice Issues Children in Divorce: Evidentiary Issues with
Involved in Acting as a Psychologist Parent Parental Alienation Syndrome, 39 FAM. CT. REV.
Coordinator in Child Custody Cases, 42 FAM. 334 (July, 2001).
CT. REV. 576 (July 2004).
89. Matthew J. Sullivan & Joan B. Kelly, Special
Issue: Alienated Children in Divorce: Legal and Student Articles
Psychological Management of Cases with an
Alienated Child, 39 FAM. CT. REV. 299 (July 1. Stephanie N. Barnes, Strengthening the Father-
2001). Child Relationship Through a Joint Custody
90. SYMPOSIUM: Collaborative Family Law the Presumption, 35 WILLAMETTE L. REV. 601
Big Picture, 4 Pepp. Disp. Resol. L.J. 401 (2004). (Summer 1999).
91. Symposium: Women, Children and Domestic 2. Jerry A. Behnke, Pawns or People? Protecting
Violence: Current Tensions and Emerging Issues, the Best Interests of Children in Interstate
27 FORDHAM URB. L.J. 565 (Feb. 2000). Custody Disputes, 28 Loy. L.A. L. Rev. 699
92. Jerry von Talge, Victimization Dynamics: The (Winter 1995).
Psycho-Social and Legal Implications of Family 3. Joy Lazo, True or False: Expert Testimony on
Violence Directed Toward Women and the Impact Repressed Memory, 28 LOY. L.A. L. REV. 1345
on Child Witnesses, 27 W. ST. U.L. REV. 111 (Summer 1995).
(1999/2000). 4. Louann C. McGlynn, Case Comment: Parent and
93. TJAGSA Practice Notes: Family Law Note: A Child—Custody and Control of Child: Parental
Quick Look at Parental Alienation Syndrome, Alienation: Trash Talking the Non-Custodial
2002 ARMY LAW. 53 (March 2002). Parent Is Not Okay Hendrickson v. Hendrickson,
94. Brett C. Trowbridge, The Admissibility of Expert 2000 ND 1, 603 N.W.2D 896, 77 N. DAK. L. REV.
Testimony in Washington on Post Traumatic 525 (2001).
Stress Disorder and Related Trauma Syndromes: 5. Kathleen Niggemyer, Conceiving the Lawyer as
Avoiding the Battle of the Experts by Restoring Creative Problem Solver: Comment: Parental
the Use of Objective Psychological Testimony in Alienation Is Open Heart Surgery: It Needs More
the Courtroom, 27 SEATTLE UNIV. L. R. 453 (Fall than a Band-Aid to Fix It, 34 CAL. W. L. REV.
2003). 567 (Spring 1998).
6. Heather J. Rhoades, Note and Comment:
Zamstein V. Marvasti: Is a Duty Owed to Alleged

Vol. 26 ♦ No. 1 ♦ Spring 2006

30 Jennifer Hoult

Child Sexual Abusers?, 30 CONN. L. REV. 1411 7. Richard Gardner, Recommendations for Dealing
(Summer 1998). with Parents Who Induce a Parental Alienation
7. Shannon Dean Sexton, A Custody System Free of Syndrome in Their Children, Jrnl. of Divorce &
Gender Preferences and Consistent with the Best Remarriage , 28 (3/4),1–23 1998).
Interests of the Child: Suggestions for a More 8. Richard Gardner, Differentiating Between the
Protective and Equitable Custody System, 88 KY. Parental Alienation Syndrome and Bona Fide
L.J. 761 (Spring 1999/Spring 2000). Abuse/Neglect, Am. Jrnl. of Fam. Therapy, 27(2),
8. Lisa S. Scheff , People v. Humphrey: Justice for 97–107 (1999).
Battered Women or a License to Kill?, 32 9. Richard Gardner, Family Therapy of the
U.S.F.L. REV. 225 (Fall 1997). Moderate Type of Parental Alienation Syndrome,
9. Priscilla Steward, Eighth Annual Philip D. Reed Am. Jrnl. of Fam. Therapy, 27(3), 195–212
Memorial Issue: Note: Access Rights: A (1999).
Necessary Corollary to Custody Rights Under 10. Richard Gardner, Guidelines for Assessing
The Hague Convention on the Civil Aspects of Parental Preference in Child-Custody Disputes,
International Child Abduction, 21 FORDHAM Jrnl. of Divorce & Remarriage, 30(1/2), 1–9
INT’L L.J. 308 (Nov. 1997). (1999) at <http://www.rgardner.com/refs/ar4.html>
10. Anita Vestal, Mediation and Parental Alienation (last visited May 25, 2004).
Syndrome: Considerations for an Intervention 11. Richard Gardner, The Parental Alienation
Model, 37 FAM. & CONCIL. CTS. REV. 487 (Oct. Syndrome: Sixteen Years Later, Acad. Forum,
1999). 45(1), 10–12 (2001).
11. Cheri L. Wood, Notes and Comments: The 12. Richard Gardner, Should Courts Order PAS
Parental Alienation Syndrome: A Dangerous Children to Visit/Reside with the Alienated
Aura of Reliability, 27 LOY. L.A. L. REV. 1367 Parent? A Follow-up Study, Am. Jrnl. of Forensic
(Spring 1994). Psychol. 19(3), 61–106 (2001).
13. Richard Gardner, Sollten Gerichte anordnen, daß
APPENDIX D: PEER-REVIEWED an PAS leindende Kinder den antfremdeten
Elternteil besuchen bzw. bei ihm wohnen?, DAS
ARTICLES LISTED ON ELTERLICHE ENTFREMDUNGSSYNDROM.
GARDNER’S WEB SITE ANREGUNGEN FÜR GERICHTLICHE SORGE- UND
UMGANGSREGELUNGEN, 23–95 (2002) at <http://
<http://www.rgardner.com/refs/pas_peerreviewarticles.
html> (last visited on Sept. 30, 2003) www.rgardner.com/refs/ar8_deutsche.html> (last
visited May 25, 2004).
14. Richard Gardner, The Empowerment of Children
1. Richard Gardner, Recent Trends in Divorce and
in the Development of the Parental Alienation
Custody Litigation, Acad. Forum, 29(2)3–7 (1985).
Syndrome, Am. Jrnl. of Forensic Psychol., 20(2),
2. Richard Gardner, Child Custody, BASIC HAND-
BOOK OF CHILD PSYCHIATRY, Vol. V, 637–46
5–29 (2002).
15. Richard Gardner, Parental Alienation Syndrome
(J.Noshpitz, ed. 1987).
vs. Parental Alienation: Which Diagnosis Should
3. Richard Gardner, Judges Interviewing Children in
Evaluators Use in Child-Custody Disputes?, Am.
Custody/Visitation Litigation, N.J. Fam. Law.,
Jrnl. of Fam. Therapy, 30, 93–115 (2002).
7(2), 26ff. (1987).
4. Richard Gardner, Legal and Psychotherapeutic 16. Richard Gardner, Denial of the Parental
Alienation Syndrome (PAS) Also Harms Women,
Approaches to the Three Types of Parental
Alienation Syndrome Families: When Psychiatry Am. Jrnl. of Fam. Therapy, 30(3), 191–202
(2002).
and the Law Join Forces, Ct. Rev., 28(l), 14–21
17. Richard Gardner, Does DSM-IV Have Equiva-
(1991).
5. Richard Gardner, The Detrimental Effects on lents for the Parental Alienation Syndrome (PAS)
Diagnosis?, Am. Jrnl. of Fam. Therapy, 31(1), 1–
Women of the Misguided Gender Egalitarianism
of Child-Custody Dispute Resolution Guidelines, 21 (2002).
18. Richard Gardner, The Judiciary’s Role in the
Acad. Forum. 38 (1/2), 10–13 (1994).
Etiology, Symptom Development, and Treatment
6. Richard Gardner, Recommendations for Dealing
of The Parental Alienation Syndrome (PAS), Am.
with Parents Who Induce a Parental Alienation
Jrnl. of Forensic Psychol., 21(1), 39–64 (2003).
Syndrome in Their Children, Issues in Child
Abuse Accusations, 8(3),174–78 (1997).

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 31

<http://www.rgardner.com/refs/ar11w.html> (last
visited May 25, 2004). 1
Mackenzie Carpenter & Ginny Kopas, Maverick
19. Richard Gardner, The Parental Alienation Expert Exerts Wide Influence on Custody Cases,
Syndrome: Past, Present, and Future, THE PITTSBURGH POST GAZETTE, May 31, 1998, available at
PARENTAL ALIENATION SYNDROME: AN INTER- <http://www.post-gazette.com/custody/ partthree.asp>.
2
DISCIPLINARY CHALLENGE FOR PROFESSIONALS Id.
3
INVOLVED IN DIVORCE, 89–125 (W. von Boch- Id.
4
Gallhau, U. Kodjoe, W Andritsky, and P. Id.
5
Koeppel, eds., 2003). Id.
6
20. Richard Gardner, How Denying and Discrediting Symposium, Women, Children and Domestic Violence:
the Parental Alienation Syndrome Harms Women, Current Tensions and Emerging Issues, 27 FORDHAM URB.
L.J. 565, 807 (Feb. 2000) (citing a New Jersey case
121–42 (W. von Boch-Gallhau, U. Kodjoe, W
involving wife-battering husband whose eight-year-old
Andritsky, & P. Koeppel, eds., 2003).
son refused visitation, expressing fear of the father, but
21. Richard Gardner, The Relationship Between the
the court-appointed psychologist diagnosed PAS, and
Parental Alienation Syndrome (PAS) and the
the judge forced visitation).
False Memory Syndrome (FMS) (in press) (2003). 7
Hanson v. Spolnik, 685 N.E.2d 71, 85 (Ind. App.
22. Richard Gardner, The Three Levels of Parental 1997) (dissent).
Alienation Syndrome Alienators (in press) (2003). 8
In re J.F., 694 N.Y.S.2d 592, 600 (N.Y. Fam. Ct.
23. Richard Gardner, The Parental Alienation 1999).
Syndrome and the Corruptive Power of Anger (in 9
See infra Part I (discussing the origin and charac-
press) (2004). teristics of PA and PAS).
10
See infra Part II (providing a comprehensive list and
Endnotes description of all precedent-setting cases and law review
articles that discuss PAS).
11
∗
Frye v. United States, 293 F. 1013, 1014 (D.C.
Law Guardian, Kings County, N.Y.; J.D., magna Cir. 1923).
cum laude, New York University School of Law, 2003; 12
Daubert v. Merrell Dow Pharm., 509 U.S. 579,
B.A., Barnard College, Computer Science & Religion, 593–94 (1993).
1986; B.M., Manhattan School of Music, Harp, 1982. 13
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147
The work on Part II. A was funded by a generous grant (1999) (holding that Daubert also applies to “technical”
to the author from the New York University School of and “other specialized” knowledge and thus novel
Law Furman Fund and sponsored by the Leadership psychological evidence is governed by Daubert).
Council on Interpersonal Violence and Child Abuse. I 14
See infra Part III (providing an overview of the
am grateful to Richard Chefetz, Stephanie Dallam, evidentiary law governing admissibility and finding
Irene Dorzback, Victoria Eastus, Lynne Henderson, that, under these standards, PAS is not admissible in
Wendy Murphy, Alan Scheflin, Joyanna Silberg, and court).
the Leadership Council’s Board for their support. 15
See infra Part IV (detailing PAS’s theoretical roots
Thanks to those who provided information and and arguing that PAS is antithetical to prevailing public
documents: Lauren Allerti, Carol Bruch, Paula Caplan, policy).
Ross Cheit, Stephanie Dallam, Thomas Daniel, 16
See infra Part V (finding that PAS has been
Dolores dela Fuente, Martha Deed, David Gleaves, properly held inadmissible and should continue to be
David Gray, Pat Judge, The Hon. Steve Leben, Danya excluded from the courtroom).
Ledford, Sejal Sanghvi, Nancy Spiegel, and Hollida 17
One PAS proponent states that “ [a]ny reasonable
Wakefield. My sincere thanks to the legal and medical and empathetic parent sincerely believes in the value of
professionals who reviewed the article prior to his or her children having a healthy relationship with
publication: Richard Chefetz, Ross Cheit, Stephanie both parents,” ignoring the negative effects of myriad
Dallam, Ronnie Dane, Ward Farnsworth, Paul Fink, parental behaviors including infidelity, abandonment,
Martin Guggenheim, Lynne Henderson, Ray alcohol and drug abuse, domestic violence, physical
Kimmelman, Wendy Murphy, Alan Scheflin, David abuse, sexual abuse, and emotional abuse. Douglas
Spiegel, and Joyanna Silberg. The author presented a Darnall, Parental Alienation: Not in the Best Interest of the
portion of this paper at the May 2004 Law and Society Children, 75 N. DAK. L. REV. 323, 323 (1999).
Conference. The views herein, and any mistakes, were 18
Joan B. Kelly & Janet R. Johnston, Special Issue,
and are solely those of the author. This article is Alienated Children in Divorce, The Alienated Child: A
dedicated to Darius G., an alienated child. Reformulation of Parental Alienation Syndrome, 39 FAM.

Vol. 26 ♦ No. 1 ♦ Spring 2006

32 Jennifer Hoult

CT. REV. 249, 251–54 (2001) (describing a spectrum of REV. 567, 580–82 (1998); Cheri L. Wood, The Parental
types of normal child-parent relationships). Alienation Syndrome: A Dangerous Aura of Reliability, 27
19
Gardner acknowledged that teenagers exhibit LOY. L.A. L. REV. 1386, 1387–89 (1994).
24
alienation. Richard Gardner, Does DSM-IV Have Richard Gardner, Recent Trends in Divorce and
Equivalents for the Parental Alienation Syndrome (PAS) Custody Litigation, ACAD. F. 3, 5 (1985) [hereinafter
Diagnosis?, 31 AM. J. FAM. THERAPY 1, 2 (2002) Gardner, Recent Trends].
25
[hereinafter Gardner, DSM-IV]. Nonetheless, he RICHARD A. GARDNER, TRUE AND FALSE
advocated that recalcitrant teens be placed in ACCUSATIONS OF CHILD SEX ABUSE xxxvii (1992)
psychiatric hospitals or detention centers. Richard [hereinafter GARDNER, TRUE AND FALSE].
26
Gardner, The Empowerment of Children in the Development Richard Gardner, Basic Facts About the Parental
of the Parental Alienation Syndrome, 20 AM. J. FORENSIC Alienation Syndrome, Definition of the Parental Alienation
PSYCHOL. 5, 19 (2002) [hereinafter Gardner, Empower- Syndrome (2006), <http://www.rgardner.com/refts/
ment of Children]. pas_intro.html> [hereinafter Gardner, Basic Facts].
20 27
Carol S. Bruch, Parental Alienation Syndrome and Id. Richard Warshak, stipulates that PAS is defined
Parental Alienation: Getting It Wrong in Child Custody by three elements: a campaign of rejection or denigration
Cases, 35 FAM. L.Q. 527, 530 (2001). of one parent where such rejection is unjustified and the
21
The subject of negative comments can range from rejection is partly a result of the “non-alienated” parent’s
issues like allowing sweets before dinner and routine influence. Richard Warshak, Current Controversies
tardiness, to intra-familial violence, adultery, abandon- Regarding Parental Alienation Syndrome, 19 AM. J.
ment, and substance abuse. The Clawar & Rivlin study FORENSIC PSYCHOL. 29, 29 (2001).
28
construes all disparaging remarks to be evidence of Richard Gardner, Child Custody, in 5 BASIC
programming, even if they are objectively true, thus HANDBOOK OF CHILD PSYCHIATRY 243–44 (J.D.
defining all parents as programmers. Richard A. Noshpitz ed., 1987) [hereinafter Gardner, Child
Warshak, Bringing Sense to Parental Alienation: A Look at Custody].
29
the Disputes and the Evidence, 37 Fam. L.Q. 273, 289 Richard Gardner, The Judiciary’s Role in the Etiology,
(Summer 2003) [hereinafter Warshak, Parental Symptom Development, and Treatment of the Parental
Alienation]. Alienation Syndrome (PAS), 21 AM. J. FORENSIC
22
The judiciary may hold a grave view of disparaging PSCYCHOL. 39, 39 (2003) [hereinafter Gardner,
parental remarks, making no distinction between war- Judiciary], available at <http://www.rgardner.com/
ranted and unwarranted criticism. One judge said: refs/ar11w.html>; Gardner, Basic Facts, supra note 29.
“Your children have come into this world because of Gardner claimed PAS was caused by changes in custody
the two of you . . . Every time you tell your child what law that increasingly favored joint custody over sole
an idiot his father is, or what a fool his mother is . . . maternal custody. He claimed that, as women faced the
you are telling the child that half of him is bad. This is risk of losing custody, they and their children
an unforgivable thing to do to a child. That is not love; developed a pathological mental illness called PAS.
it is possession. If you do that to your children, you will While Gardner initially defined PAS in gender-specific
destroy them as surely as if you had cut them into terms, defining mothers as alienators, and fathers as the
pieces, because that is what you are doing to their hapless victims of unjustified vilification, he later
emotions . . . Think more about your children and less claimed that either parent could be an alienator.
of yourselves, and make yours a selfless kind of love, Richard Gardner, Misinformation Versus Facts About the
not foolish or selfish, or they will suffer.” Linda D. Contribution of Richard A. Gardner, M.D. (2002),
Elrod, A Minnesota Comparative Family Law Symposium: <http://rgardner.com/refs/misconceptions_versus_facts.
Reforming the System to Protect Children in High Conflict html> [hereinafter Gardner, Misconceptions].
30
Custody Cases, 28 WM. MITCHELL L. REV. 495, 546 Richard Gardner, Recommendations for Dealing with
(2001) (citing Burke v. Burke, No. M2000-0111-COA- Parents Who Induce a Parental Alienation Syndrome in their
R3-CV, 2001 WL 921770, at *10 (Tenn. Ct. App. Aug. Children, 28 J. OF DIVORCE & REMARRIAGE (1998),
7, 2001) (quoting Judge Haas of Walker, Minn.)). available at <http://www.rgardner.com/refs/ar3.html>
23
PA is not illegal. Making it illegal would essentially [hereinafter Gardner, Recommendations]; Richard
resurrect the obsolete alienation of affection tort, replacing Gardner, Addendum II: Recommendations for Dealing with
parent and child for the two spouses as those who Parents Who Induce a Parental Alienation Syndrome in
affection would be legally protected. See Kathleen Their Children, 8 ISSUES IN CHILD ABUSE ACCUSATIONS
Niggemyer, Comment, Conceiving the Lawyer as Creative (1996), available at <http://www.ipt-forensics.com/
Problem Solver: Parental Alienation Is Open Heart Surgery: journal/volume8/j8_3_6.htm> [hereinafter Gardner,
It Needs More Than a Band-Aid to Fix It, 34 CAL. W. L. Recommendations II].

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 33

31 46
Richard A. Gardner, Denial of Parental Alienation In re Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.
Syndrome Also Harms Women, 30 AM. J. FAM. THERAPY App. 1994) (noting that children suffered while parents
191, 200 (2002) (“There is no question that follow-up engage in emotional “warfare”).
47
studies of these children will reveal significant Loll v. Loll, 561 N.W.2d 625, 629 (N.D. Ill. 1997)
psychopathological residua from these early experi- (observing the two spouses’ mutual efforts perpetuating
ences”) [hereinafter Gardner, Denial]; Richard Gardner, “unnecessary conflict”); Tucker v. Greenberg, 674 So.
Differentiating Between the Parental Alienation Syndrome 2d 807, 808 (Fla. Dist. Ct. App. 1996) (observing that
and Bona Fide Abuse/Neglect, 27 AM. J. FAM. THERAPY 97, mutual ill-will between the divorced parents rendered
103 (1999) (claiming women with PAS become visitation a “vexatious problem”); Rosenfeld, 524
psychopathic, but only in the sphere of life related to N.W.2d at 213 (observing that both parents have
parenting) [hereinafter Gardner, Differentiating]. “engaged in childish behavior,” attributed “outrageous
32
Gardner, Basic Facts, supra note 28. behavior” to each other, and “focused on building a
33
Gardner, Empowerment of Children, supra note 21, at case against the other”).
5. If the target parent contributes in any way to the 48
Case v. Richardson, No. FA 910446348S, 1986
child’s alienation it is only due to his passivity. Id. LEXIS 1836 (Conn. Super. Ct. July 16, 1996)
34
Id. (involving a welfare mother diagnosed with Munch-
35
Gardner, Basic Facts, supra note 28. hausen by Proxy Syndrome who accused the three
36
Elrod, supra note 25, at 510–11; Gardner, Miscon- fathers of her children with sexual abuse).
ceptions, supra note 31 (Gardner states that PAS is not 49
Finster v. Finster, No. 02-3060, 2003 LEXIS 788
in the DSM-IV). (Wisc. Ct. App. Aug. 26, 2003) (domestic violence);
37
Gardner, Basic Facts, supra note 28. Smith v. Smith, No. FA 010341470S, 2003 Conn.
38
Id. Mandated responses to PAS include Super. LEXIS 2039 (Conn. Super. Ct. July 15, 2003)
incarceration, denial of visitation, denial of alimony, (domestic violence); In re Condon, 73 Cal. Rptr. 2d 33,
and denial of custody. Richard Gardner, Differential 47 (Cal. Dist Ct. App. 1998) (domestic violence); In re
Management and Treatment of the Three Levels of Parental John W., 48 Cal. Rptr. 2d 899, 900 (Cal. Dist Ct. App.
Alienation Syndrome (PAS) Alienators for Each of the 1996) (child sex abuse); State v. Koelling, Nos.
Child’s Symptom Levels, Introductory Material: Parental 94APA06-866 and 94APA06-868, 1995 Ohio App.
Alienation Syndrome Diagnosis and Treatment Tables LEXIS 1056 (Ohio Ct. App. Mar. 21, 1995) (child sex
(2006), <http://www.rgardner.com/refs> [hereinafter abuse); Conner v. Renz, No. 93CA1585, 1995 Ohio
Gardner, Differential Management]. App. LEXIS 176 (Ohio Ct. App. Jan. 19, 1995) (child
39
See Appendix B, supra. sex abuse); McCoy v. State, 886 P.2d 252 (Wyo. 1994)
40
See Appendix C, supra. (child sex abuse).
41
See, e.g. People v. Sullivan, Nos. H023715, 50
In re Karen B., 574 N.Y.S.2d 267, 270 (N.Y. Fam.
H025386, 2003 WL 1785921, at *12 (Cal. Ct. App. Ct. 1991) (weighing the consequences of exposing the
Apr. 3, 2003) (noting an expert’s claim that he testified child to future abuse against the consequences of
about PAS in more than twenty cases, none of which denying a falsely accused parent a relationship with his
are reported). child).
42
See Elizabeth P. Coughter & Ronald R. Tweel, 51
Daubert v. Merrell Dow Pharm., 509 U.S. 579,
Family Law, 37 U. RICH. L. REV. 155, 156 (2002) 585 (1993).
(noting the defeat of two Virginia legislative initiatives 52
Id. at 589 (noting that, under the Federal Rules of
to force judges to consider PAS in custody cases: H.B. Evidence, prior to admission, “the trial judge must
417, Va. Gen. Assembly (Reg. Sess. 2002) and H.B. ensure that any and all scientific testimony or evidence
1132, Va. Gen. Assembly (Reg. Sess. 2002)). admitted is not only relevant, but reliable”).
43
See Last Chance Video: In Austin, Dallas, Houston, and 53
Gardner, Basic Facts, supra note 28.
San Antonio, 64 TEX. B. J. 1023, 1023 (2001) 54
See Appendix B, supra.
(advertising a Texas Continuing Legal Education course 55
People v. Fortin (Fortin II), 289 A.D.2d 590, 591
on PAS). (N.Y. App. Div. 2001); People v. Fortin (Fortin I), 706
44
Ron Neff & Kat Cooper, Progress in Parent N.Y.S.2d 611, 614 (N.Y. Co. Ct. 2000); People v.
Education: Parental Conflict Resolution: Six-, Twelve-, and Loomis, 658 N.Y.S.2d 787, 787 (N.Y. Co. Ct. 1997).
Fifteen-Month Follow-Ups of a High-Conflict Program, 42 56
Loomis, 658 N.Y.S.2d at 788.
FAM. CT. REV. 99, 99 (2004). 57
Id.
45
Id. 58
Id. at 788–89.
59
Fortin II, 289 A.D.2d at 591–92; Fortin I, 706
N.Y.S.2d at 612.

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34 Jennifer Hoult

60
Fortin I, 706 N.Y.S.2d at 612. v. Fischer, 584 N.W.2d 233 (Wis. 1998) (unpublished
61
Frye v. United States, 293 F. 1013 (D.C. Cir. and uncitable under local rules). Once again, I used the
1923). See infra Part III.A (discussing the admissibility citations he provided.
standard established by Frye). Gardner cited the following cases that were published
62
Fortin I, 706 N.Y.S.2d at 613–14. with written opinions: Metza v. Metza, No. FA
63
Fortin II, 289 A.D.2d at 591. 920298202S, 1998 Conn. Super LEXIS 2727 (Conn.
64
Id. Super. Ct. Sept. 25, 1998) (denying father’s motion for
65
Gardner, Basic Facts, supra note 28; Gardner, a change of custody, and reporting an expert’s claim of
Misconceptions, supra note 31. partial PAS, with contributions from both parents);
66
Gardner, Basic Facts, supra note 28; Gardner, Case v. Richardson, No. FA 910446348S, 1996 Conn.
Misconceptions, supra note 31. Gardner was familiar with Super. LEXIS 1836 (Conn. Super. Ct. July 16, 1996)
the concept of legal precedent, having spent 98–99% of (transferring custody to father in a case where mother
his professional practice conducting “forensic analysis was diagnosed with PAS and Munchausen by Proxy
and testimony.” Fortin II, 706 N.Y.S.2d at 612. Syndrome); In re Amber Spencley, No. 219801, 2000
Throughout the website, Gardner consistently used Mich. App. LEXIS 1770 (Mich. Ct. App. Apr. 7, 2000)
“court recognition” and “accepted by the court” as (Gardner cites this as Spencley v. Spencley) (claiming
synonyms for “precedent bearing.” Gardner, Basic Facts, mother waived issue of PAS admissibility by failing to
supra note 28; Gardner, Misconceptions, supra note 31. challenge it at trial, and that PAS was not used as a
67
I was unable to locate many of the decisions or theory, but to describe her behavior); Ange v. Chesapeake
cases Gardner cited. Where I could not locate cases Dep’t of Human Serv., No. 0676-97-1, 1998 Va. App.
based on his citation, I have used the citation LEXIS 59 (Va. Ct. App. Feb. 3, 1998) (affirming
information he provided. See supra Appendix A. placement of children with foster parents after
Gardner cited the following cases, but I could not find termination of paternal parental rights).
68
them: Berry v. Berry, No. DR-96-761.01 (Ala. Cir. Ct. While it is beyond the scope of this article to
2001); Oosterhaus v. Short, No. 85DR1737-Div III analyze the effect of increased access to unpublished,
(Colo. Dist. Ct.); Loten v. Ryan, No. CD 93-6567 FA unprecedential decisions, the influence of easy access to
(Fla. Cir. Ct. 2000); Boyd v. Kilgore, 773 So. 2d 546 such decisions on subsequent decisions and the creation
(Fla. Dist. Ct. App. 2000) (see discussion infra Part of precedent may be substantial. The proper use of
II.A); Tetzlaff v. Tetzlaff, No. 97D-2127 (Ill. Dom. Rel. unpublished decisions, whether for persuasion or
Ct. Mar. 20, 2000); Wilkins v. Wilkins, No. 90792 analogy, depends on local rules of practice. Even
(La. Fam. Ct. Nov. 2, 2000); Lubkin v. Lubkin, 92-M- lacking binding authority, their influence through
46LD (N.H. Dist. Ct. Sept. 5, 1996); Lemarie v. persuasion or analogy, cornerstones of common law
Oliphant, No. FM-15-397-94 (N.J. Ch. Dec. 11, 2002); practice and precedential evolution, may be significant.
Sidman v. Zager, No. V-1467-8-9-94 (N.Y. Fam. Ct.); While such decisions were once difficult to obtain,
Waldrop v. Waldrop, No. 138517 (Va. Cir. Ct. April LEXIS and WESTLAW’s publication of unreported
26, 1999); Rich v. Rich, No. 91-3-00074-4 (Wa. Super. decisions has facilitated access, perhaps resulting in a
Ct. June 11, 1993). blurring of the traditional bright line of precedent by
Gardner cited the following cases and articles that increasing the practical reliance on unreported
were not published or were published without a written decisions. This effect may be disproportionate in courts
opinion: McDonald v. McDonald, No. D-R90-11079 that are overburdened and under funded, like family
(Fla. Cir. Ct. 2001) (published without written courts and criminal courts. Reliance on these decisions
opinion); Blackshear v. Blackshear, No. 95-08436 (Fla. may be a time-saving device for an overburdened
Dist. Ct.) (reported decision without a written judiciary, resulting in unquestioning adoption of
opinion); Rosen v. Edwards, N.Y.L.J., Dec. 11, 1990, at arguments and analysis of uncertain quality. While the
27-28 (unpublished in any reporter); Oliver V. v. Kelly presentation of uncontested novel scientific testimony
V., Husband is Entitled to Divorce Based on Cruel and does not set a precedent of admissibility, its use in
Inhuman Treatment, N.Y.L.J., 25 (2000) (unpublished in unpublished decisions may thus foster further circum-
any reporter); Popovice v. Popovice, No. 1996-C-2009 vention of evidentiary admissibility standards. This
(Pa. Ct. Com. Pl. 1999) (unpublished decision without article does not provide analysis of all unpublished
a written opinion); Matter of A.R. (S.E.), Rather Than decisions involving PAS primarily due to the difficulties
Custody to Father, Court Orders Family Therapy, N.Y.L.J., in compiling a complete set of such cases. However, the
21 (1990) (unpublished in any reporter); Janell S. v. influence of unreported decisions on precedent and
J.R.S., 571 N.W.2d 924 (Wis. App. 1997) practice should not be overlooked.
(unpublished and uncitable under local rules); Fischer

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Evidentiary Admissibility of Parental Alienation Syndrome 35

69
Truax v. Truax, 874 P.2d 10 (Nev. 1994); McCoy which held “child sexual abuse accommodation
v. State, 886 P.2d 252 (Wyo. 1994); Chambers v. syndrome” was admissible based on the expert
Chambers, No. CA99-688, 2000 Ark App. LEXIS 476, testimony of three clinical experts who described the
at *1 (Ark. Ct. App. June 21, 2000); Pathan v. Pathan, syndrome. Allison v. State, 346 S.E.2d 380, 385 (Ga.
No. 17729, 2000 Ohio App. LEXIS 119 (Ohio Ct. Ct. App. 1986). The court mentions Gardner’s
App. Jan. 21, 2000); Bates v. Bates, No. 2000-A-0058, precursor of PAS, the Sex Abuse Legitimacy Scale
2001 Ohio App. LEXIS 5428 (Dec. 7, 2001); In re John (“SALS”), as an example of material that is admissible
W., 48 Cal. Rptr. 2d 899, 900 (Cal. Ct. App. as expert testimony, but cited no cases supporting the
1996);White v. White, 655 N.E.2d 523, 526 (Ind. Ct. admissibility of SALS. Ochs refers to SALS only in
App. 1995); Conner v. Renz, No. 93 CA 1585, 1995 dicta, and to PAS only in a footnote.
Ohio App. LEXIS 176 (Ohio Ct. App. Jan. 19, 1995); Schutz v. Schutz references PAS only in a footnote
State v. Koelling, Nos. 94APA06 and 94APA06-868, citing another footnote. 522 S.2d 874, 875 n.3 (Fla.
1995 Ohio App. LEXIS 1056 (Ohio Ct. App. Mar. 21, Dist. Ct. App. 1988). The court’s supplied emphasis in
1995); Krebsbach v. Gallagher, 587 N.Y.S.2d 346, 349 this footnote highlights Gardner’s claim that, “The
(N.Y. App. Div. 1992); Sims v. Hornsby, No. CA 92- parent who expresses neutrality regarding visitation is
01-007, 1992 Ohio App. LEXIS 4074 (Ohio Ct. App. essentially communicating criticism of the non-
Aug. 10, 1992); Toto v. Toto, No. 62149,1992 Ohio custodial parent.” While Gardner claims that the
App. LEXIS 157 (Ohio Ct. App. Jan. 16, 1992) (cited decision set precedent on the admissibility of PAS,
by Gardner as Zigmont v. Toto); In re Violetta B., 568 Schutz did not involve PAS, a fact that was specifically
N.E.2d 1345, 1346 (Ill. App. Ct. 1991); In re Karen B., noticed by another court. In re T.W.M., 553 So. 2d
574 N.Y.S.2d 267, 268 (N.Y. Fam. Ct. 1991). 260, 262 (Fla. Dist. Ct. App. 1989) (noting that the
70
None of these decisions contested admissibility. T.W.M. expert claimed PAS was the subject of at least
In Pisani v. Pisani, custody was awarded to the father one reported Florida case, citing Schutz, but observing
and the appellant mother temporarily lost visitation that PAS was not the “subject” of Schutz, but rather the
due to her unspecified “behavior.” No. 74373, 1998 subject of “a footnote to a footnote” in a case in which
Ohio App. LEXIS 4421, at *11–*12 (Ohio Ct. App. Gardner’s texts were the only authority referenced with
1998). She was subsequently granted supervised respect to the syndrome).
visitation. Id. The court-appointed psychologist The court in Coursey v. Superior Court mentions that
diagnosed the children with PAS. Id. the teen-aged daughter’s therapist claimed that the
In Blosser v. Blosser, the only mention of PAS in the child suffered from PAS. 239 Cal. Rptr. 365, 366 (Cal.
appeal is in the final report by the psychologist who Ct. App. 1987). PAS is not addressed, alleged, or
interviewed the parties. She stated that the children contested in the appeal.
showed no signs of PAS “which is sometimes seen with In Pearson v. Pearson, the trial court heard testimony
children who are shunted between separated parents in from two experts, both of whom agreed PAS could
divorce situations.” 707 So. 2d at 780 (Fla. Dist. Ct. occur, but disagreed about whether it had occurred in
App. 1998). The report further states that the child the instant case. 5 P.3d 239, 243 (Alaska 2000). The
exhibited “loving, caring, affectionate relationships with appellate court noted that “[PAS] is not universally
Mother, Father, and her stepmother.” Id. accepted.” Id. The court found the mother’s expert
In re Marriage of Edlund involved a divorced father’s more credible, and found no evidence that she was
opposition to the mother’s petition to move to another attempting to alienate the children from their father.
state with their child. 78 Cal. Rptr. 2d 671, 674 (Cal. Id. Neither party contested the admissibility of PAS. Id.
Ct. App. 1998). PAS is mentioned only in a In In re J.F., two children were diagnosed by two
parenthetical reference to another case in which the expert witnesses as suffering from PAS, but the decision
divorced mother was permitted to move out of state does not rely on PAS, nor does it address the
with her children “despite” the father’s expert’s offer of admissibility of PAS. 694 N.Y.S.2d 592, 594 (N.Y.
testimony regarding PAS. Id. at 683 (referencing In re Fam. Ct. 1999). The court noted that PAS is a
Marriage of Condon, 73 Cal. Rptr. 2d 33, 44 (Cal. Ct. “controversial” theory, and that, in custody and
App. 1998). visitation cases, New York courts, “rather than
Ochs v. Martinez, discussed the admissibility of certain discussing the acceptability of PAS as a theory, have
types of expert testimony about “general characteristics discussed the issue in terms of whether the child has
of child victims,” contrasting these types of testimony been programmed to disfavor the noncustodial parent,
with “credibility testimony,” which is inadmissible. 789 thus warranting a change in custody.” Id. The decision
S.W.2d 949, 958 (Tex. Ct. App. 1990) (cited by thus focuses heavily on weighing the allegations of the
Gardner as Ochs et al v. Myers). The court cites Allison mother’s alleged interference with visitation, ultimately

Vol. 26 ♦ No. 1 ♦ Spring 2006

36 Jennifer Hoult

79
finding she “poisoned” the children against their father, Karen “PP” v. Clyde “QQ”, 602 N.Y.S.2d 709, 710
and awarding him sole custody. Id. at 599–600. (N.Y. App. Div. 1993), aff’g Karen B. v. Clyde M., 574
71
In re Marriage of Divelbiss, 719 N.E.2d 375, 379 N.Y.S.2d 267 (N.Y. Fam. Ct. 1991). For an excellent
(Ill. App. Ct. 1999). In Divelbiss, the court-appointed discussion of the problems that arise when judges fail to
psychologist found the child was suffering from PAS assess the scientific validity of evidence presented by
against her father. The child testified that she did not scientific experts, see Sarah H. Ramsey & Robert F.
want to live at her father’s house. Id. at 380. The Kelly, Social Science Knowledge in Family Law Cases:
mother unsuccessfully appealed, arguing that the expert Judicial Gate-Keeping in the Daubert Era, 59 U. MIAMI L.
had not testified within the guidelines of his profession. REV. 1 (2004).
80
Id. at 384. Richard A. Gardner, Basic Facts About the Parental
72
Tucker v. Greenberg, 674 So. 2d 807 (Fla. Dist. Ct. Alienation Syndrome: Recognition of PAS in Courts of Law,
App. 1996). Tucker involved allegations that mutual ill- <http://www.rgardner.com/refs/pas_intro.html> (last
will between the divorced parents rendered visitation a visited February 7, 2006) [hereinafter Gardner, PAS in
“vexatious problem.” Id. at 808. The father’s petition Courts].
81
for a modification of custody based on substantial Id.
82
changes in circumstances was granted by the trial court Kilgore v. Boyd, 798 So. 2d 735 (Fla. Dist. Ct.
and upheld by the appellate court. Id. at 808–09. The App. 2001) (denying Petitioner’s petition for writ of
appeal mentions expert testimony, but does not cite prohibition and emergency motion for stay, and
any experts or the nature of their testimony. Id. at 808. Respondent’s motion to strike and motion for attorney
The court specifically mentions conflicts in expert fees and costs), aff’g 783 So. 2d 257 (Fla. Dist. Ct. App.
testimony, and testimony that the children “would 2001) (denying Petitioner’s petition for writ of
suffer adverse effects from the parents’ behavior certiorari and motion for appellate attorneys’ fees and
regardless of residency.” Id. In upholding the trial costs, and Respondent’s motion to dismiss and motion
court’s modification, the appellate court noted that the for appellate attorneys’ fees and costs, and lifting stay
trial court could have corrected the wife’s behavior entered by the court Dec. 22, 2000); Kilgore v. Boyd,
through contempt proceedings instead of a change of 773 So. 2d 546 (Fla. Dist. Ct. App. 2000) (denying
custody, but refused to substitute their perception of Petitioner’s writ of prohibition).
83
the testimony and other evidence for that of the trial A LEXIS search conducted on January 26, 2006
court. Id. at 809. The decision does not mention PAS. searching for “parent! w/3 alien! w/3 syndrom!” in all
73
In re Marriage of Bates, 794 N.E.2d 868, 871 (Ill. U.S. Law Reviews and Journals yielded 118 articles.
84
App. Ct. 2003); Perlow v. Berg-Perlow, 816 So. 2d 210, In contrast, “battered woman syndrome,” a well-
215 (Fla. Dist. Ct. App. 2002); In re Marriage of documented syndrome, is referenced in 1320 law
Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. reviews and 1274 reported cases, “false memory
1994); Karen “PP” v. Clyde “QQ”, 602 N.Y.S.2d 709, syndrome,” another alleged psychological syndrome, is
710 (N.Y. App. Div. 1993). referenced in ninety-seven law reviews and forty-five
74
Bates, 794 N.E.2d at 870–71 (unpublished in part). reported cases, and “shaken baby syndrome” is
Gardner cites this case as: Bates v. Bates Case No. referenced in eighty-six law reviews and 809 reported
99D958 (18th Judicial Circuit, Dupage County, IL, cases. LEXIS searches 1/26/06 on “false w/3 memor!
Jan. 17, 2002). The appellate court mentioned the w/3 syndrom!”, “batter! w/3 wom! w/3 syndrom!”, and
determination of the admissibility of PAS in the “shak! w/3 bab! w/3 syndrom!” in all law reviews and all
background section of the decision, not in the state and federal courts.
85
published holdings. Id. at 871–74 (granting in part and Infra nn. 89–105.
86
denying in part petitioner’s motion to strike portions of Stephanie N. Barnes, Strengthening the Father-Child
respondent’s cross reply brief, denying respondent’s Relationship Through a Joint Custody Presumption, 35
motion to dismiss the appeal for lack of jurisdiction, WILLAMETTE L. REV. 601, 626 (1999) (claiming sole
affirming the award of custody to father, and affirming custody increases the risk of PAS); Alison Beyea &
the judgment declining to terminate unallocated Frank D’Alessandro, Guardians Ad Litem in Divorce and
support). Parental Rights and Responsibilities Cases Involving Low-
75
Id. at 871. Income Children, 17 MAINE B. J. 90 (2002) (citing PAS
76
Berg-Perlow, 816 So. 2d at 215. as a characteristic of high conflict disputes based on
77
Id. CARLA B. GARRITY & MITCHELL A. BARRIS, CAUGHT IN
78
Rosenfeld, 524 N.W.2d at 215 (affirming transfer of THE MIDDLE: PROTECTING THE CHILDREN OF HIGH
physical care to the children’s mother). CONFLICT DIVORCE 43 (1994); Barry Bricklin & Gail
Elliot, Qualifications of and Techniques to be Used by Judges,

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 37

Attorneys, and Mental Health Professionals Who Deal with 211 n.8 (1995) (citing Gardner’s work on PAS in a
Children in High Conflict Divorce Cases, 22 U. ARK. footnote on the difficulty of estimating the actual
LITTLE ROCK L. REV. 501, 516–18 (2000) (acknow- percent of false sexual abuse allegations); Louann C.
ledging the lack of empirical evidence for PAS, but McGlynn, Case Comment, Parent and Child—Custody
claiming it satisfies their undefined criteria for and Control of Child: Parental Alienation: Trash Talking
“scientific approach” and claiming that when an abused The Non-Custodial Parent is Not Okay Hendrickson v.
child makes negative comments about a parent, it is Hendrickson, 2000 ND 1, 603 N.W.2D 896, 77 N.
because “alienation ploys are usually lurking behind the DAK. L. REV. 525, 532–37 (2001) (applying PAS to a
scenes,” for example, “the child is actually upset about case where the father had essentially abandoned the
something trivial that happened recently, i.e., the children prior to the divorce); Cynthia A. McNeely,
parent would not allow the child to see a certain Comments, Lagging Behind the Times: Parenthood,
movie”); Kimberly B. Cheney, Feature, Joint Custody: Custody, and Gender Bias in the Family Court, 25 FLA. ST.
The Parents’ Best Interests are in the Child’s Best Interests, U. L. REV. 891, 894 n.15 (1998) (claiming that the
27 VER. B. J. & L. DIG. 33, 35 (2001) (citing Gardner effect of gender stereotypes on custody disputes harms
in support of the claim that mothers can lose custody if the father-child relationship and the child, citing
their anger rises to the level of actively alienating the Gardner’s identification of parental alienation
child; also describing mothers as more likely to be angry syndrome, defining PAS as one parent “brainwashing”
during divorce); Rhonda Freeman, Parenting After the child to reject the other parent); Daniel Oberdorfer,
Divorce: Using Research to Inform Decision-Making About Larson v. Dunn: Toward a Reasoned Response to Parental
Children, 15 CAN. J. FAM. L. 79, 104–06 (1998) (citing Kidnapping, 75 MINN. L. REV. 1701, 1707 n.42 (1991)
Gardner’s work and presuming its validity); Renee (citing Gardner for the proposition that, like parental
Goldenberg & Nancy S. Palmer, Guardian Ad Litem kidnapping, bitter divorces lead to PAS and are bad for
Programs: Where They Have Gone and Where They are children; and focusing on a case in which both domestic
Going, 69 FLA. B. J. 83, 87 (1995) (citing Gardner’s violence and child sex abuse were alleged and the father
work in regard to GAL duties); Stephen R. Henley, claimed the mother was a liar and was given custody);
Military Justice Symposium I, Postcards from the Edge: Daniel Pollack & Susan Mason, Parenting Plans and
Privileges, Profiles, Polygraphs, and Other Developments in Visitation: Mandatory Visitation: In the Best Interest of the
the Military Rules of Evidence, 1997 ARMY LAW. 92, 104 Child, 42 FAM. CT. REV. 74, 81–82 (2004) (citing
n.143 (1997) (citing Gardner’s PAS work claiming that Gardner to support proposition that in intact families it
the “vast majority” of children who voice sex abuse is ideal to maximize the participation of both parents in
allegations are “fabricators”); Barbara L. House, Com- a child’s life); Heather J. Rhoades, Note and Comment,
ment, Considering the Child’s Preference in Determining Zamstein v. Marvasti: Is a Duty Owed to Alleged Child
Custody: Is It Really in the Child’s Best Interest?, 19 J. JUV. Sexual Abusers?, 30 CONN. L. REV. 1411, 1411–12 n.3
L. 176, 181, 188–94 (1998) (accepting Gardner’s (1998) (citing John Myers in article claiming that there
claims about PAS, and using them as the basis for is a substantial problem of false child sex abuse reports
guidance to the judiciary); Wendy A. Jansen, Children made during divorce, but also stating the reporting rate
and the Law: Children and Divorce: How Little We Know is two to seven percent of divorce cases); Shannon
and How Far We Have to Go, 80 MICH. B. J. 50, 52–53 Dean Sexton, A Custody System Free of Gender Preferences
(2001) (juxtaposing the increase in child sex abuse and Consistent with the Best Interests of the Child:
allegations and an alleged increase in PAS cases in an Suggestions for a More Protective and Equitable Custody
argument for presumptive joint custody); Alan J. Klein, System, 88 KY. L.J. 761, 775 (1999–2000) (citing PAS
Forensic Issues in Sexual Abuse Allegations in as “[o]ne of the greatest dangers to a child of divorce”);
Custody/Visitation Litigation, 18 L. & PSYCHOL. REV. Priscilla Steward, Note, Access Rights: A Necessary
247, 250 (1994) (uncritically citing Gardner’s assertion Corollary to Custody Rights Under the Hague Convention on
that most claims of child abuse are unfounded); the Civil Aspects of International Child Abduction, 21
Douglas D. Knowlton & Tara Lea Muhlhauser. FORDHAM INT’L L.J. 308, 319 nn.67–69 (1997)
Mediation in the Presence of Domestic Violence: Is it the Light (designating PAS as an abducting parent speaking
at the End of the Tunnel or is a Train on the Track?, 70 N. negatively about the other); Anita Vestal, Mediation and
DAK. L. REV. 255, 257 (1994) (citing Gardner’s claim Parental Alienation Syndrome: Considerations for an
that false child abuse allegations and PAS are common Intervention Model, 37 FAM. & CONCILIATION CTS. REV.
results of high conflict divorces); Robert G. Marks, 487 (1999) (ABA prize-winning article accepting
Note, Should We Believe the People Who Believe the Gardner’s claims and concluding that mediation will
Children?: The Need for a New Sexual Abuse Tender Years not work in PAS cases).
Hearsay Exception Statute, 32 HARV. J. ON LEGIS. 207,

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38 Jennifer Hoult

87
J. Michael Bone & Michael R. Walsh, Family Law: custody dispute resolution book that includes a
Parental Alienation Syndrome: How to Detect It and What discussion of PAS).
to Do About It, 73 FLA. B. J. 44, 48 (1999); Douglas 91
Last Chance Video: In Austin, Dallas, Houston, and
Darnall, Parental Alienation: Not in the Best Interest of the San Antonio, 64 TEX. B. J. 1023, 1023 (2001)
Children, 75 N. DAK. L. REV. 323, 323–38 (1999) (advertising a Texas CLE course on PAS).
92
(reformulating PAS based on his book, focusing solely Case Comment, North Dakota Supreme Court Review,
on any interruption of the child’s relationship with the 77 N. DAK. L. REV. 589, 620 (2001) (noting PAS was
parent, and presuming that, regardless of domestic alleged in Hendrickson v. Hendrickson, 603 N.W.2d 896,
violence or real abuse, contact ought to be encouraged); 898 (N.D. 2000)); Recent Cases, 35 U. OF LOUISVILLE J.
Trish Oleksa Haas, Child Custody Determinations in OF FAM. L. 857, 871 (1996–1997) (briefing White v.
Michigan: Not in the Best Interests of Children or Parents, White, 655 N.E.2d 523 (Ind. Ct. App. 1995)).
93
81 U. DET. MERCY L. REV. 333, 338 (2004) (citing to Janet R. Johnston & Joan B. Kelly, Guest Editorial
Bone and Walsh that it is best for children to have Notes, 39 FAM. CT. REV. 246, 246 (2001) (introduction
close relationships with both their parents); Karl to special volume on “Alienated Children in Divorce,”
Kirkland, Advancing ADR in Alabama: 1994–2004: which claims to investigate both alienation based on
Efficacy of Post-Divorce Mediation and Evaluation Services, abuse, and alienation based on parental programming);
65 ALA. LAW. 187, 192–93 (2004) (citing only Andrew Schepard, Editorial Notes, 39 FAM. CT. REV.
Gardner’s self-published work in claiming that PAS is 243, 243 (2001) (highlighting the critical importance of
increasingly accepted); Ira Turkat, Parental Alienation an interdisciplinary and collaborative approach to
Syndrome: A Review of Critical Issues, 18 J. AM. ACAD. addressing controversial family law problems); Andrew
MATRIMONIAL LAW. 131, 132–50 (2002); Michael R. Schepard, Editorial Note, The Last Issue of the Twentieth
Walsh & J. Michael Bone, Family Law: Parental Century, 37 FAM. & CONCIL. CTS. REV. 419, 420
Alienation Syndrome: An Age-Old Custody Problem, 71 FLA. (1999) (citing Vestal article in editorial overview of
B. J. 93, 93–96 (1997); Richard A. Warshak, Social journal’s contents).
Science And Children’s Best Interests In Relocation Cases: 94
Veronica B. Dahir et al., Judicial Application of
Burgess Revisited, 34 FAM. L.Q. 83, 102–09 (2000); Daubert to Psychological Syndrome and Profile Evidence: A
Warshak, supra note 24, at 277–303. Research Note, 11 PSYCH. PUB. POL. & L. 62, 71 (2005)
88
Thomas A. Johnson, The Hague Child Abduction (finding that judges generally admit expert testimony,
Convention: Diminishing Returns and Little to Celebrate for citing the expert’s qualifications, the syndrome’s
Americans, 33 N.Y.U. J. INT’L L. & POL. 125, 136–37 general acceptance, and relevance of PAS to founda-
(2000). tional issues in the case as the factors they consider);
89
Coughter & Tweel, supra note 45, at 156 (noting Robert J. Goodwin, Fifty Years of Frye in Alabama: The
defeat of two Virginia legislative initiatives to force Continuing Debate Over Adopting the Test Established in
judges to consider PAS in custody cases, H.B. 417, Va. Daubert v. Merrell Dow Pharmaceuticals, Inc., 35
Gen. Assembly (Reg. Sess. 2002); H.B. 1132, Va. Gen. CUMB. L. REV. 231, 253 n.98 (2004–2005) (citing
Assembly (Reg. Sess. 2002)); Robert E. Shepherd, Jr., PAS’s admissibility under Frye as undetermined in the
Legal Dispute Resolution in Child Custody: Comments on context of C.J.L. v. M.W.B, 879 So. 2d 1169 (Ala. Civ.
Robert H. Mnookin’s “Resolving Child Custody Disputes” App. 2003)); Ramsey & Kelly, supra note 82, at 2–36
Conference Presentation I, 10 VA. J. SOC. POL’Y & L. 89, (discussing the practical problems of judges’ failure to
95 n.23 (2002) (citing HB 417, 2002 Gen. Assem. of assess the scientific validity of testimony by social
Va. (Va. 2002) which added factors, including parental science experts testifying under the gloss of scientific
alienation syndrome, to be considered by a court in knowledge).
making a custody decision). 95
Elizabeth C. Barcena, Kantaras v. Kantaras: How a
90
Book Review, 76 FLA. B. J. 76, 77 (2002) Victory for One Transsexual May Hinder the Sexual
(summarizing DEAN TONG, ELUSIVE INNOCENCE: A Minority Movement, 12 BUFF. WOMEN’S L.J. 101 (2003–
SURVIVAL GUIDE FOR THE FALSELY ACCUSED (2002), 2004); Symposium, Collaborative Family Law: The Big
which discusses PAS in the context of distinguishing Picture, 4 PEPP. DISP. RESOL. L.J. 401, 464 (2004).
96
between true and false child abuse and domestic Barbara A. Atwood, Symposium, Hearing Children’s
violence allegations); The Resource Page: Focus on Voices: The Child’s Voice in Custody Litigation: An
Domestic Violence: Books, 39 CT. REV. 50, 50 (2002) Empirical Survey and Suggestions for Reform, 45 ARIZ. L.
(describing PETER JAFFE, NANCY LEMON & SAMANTHA REV. 629, 630 n.3 (2003) (citing Barbara House article
POISSON, CHILD CUSTODY AND DOMESTIC VIOLENCE: A for proposition that judges must investigate causes of
CALL FOR SAFETY AND ACCOUNTABILITY (2002), a PAS); Jerry A. Behnke, Pawns or People? Protecting the
Best Interests of Children in Interstate Custody Disputes, 28

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 39

LOY. L.A. L. REV. 699, 739 n.317 (1995) (citing Cheri Determinations, 49 U. MIAMI L. REV. 299, 371 n.323
Wood’s article for the claim that judges’ discretion in (1994) (noting that parents may use claims of PAS to
best interest inquiries has sometimes harmed children); subvert the value of a child’s expressed custody choices,
Bruch, supra note 22, passim; June Carbone, Has the and advising courts against admitting such claims
Gender Divide Become Unbridgeable? The Implications for without a steep evidentiary showing); Joan B. Kelly,
Social Equality, 5 J. GENDER RACE & JUST. 31, 56–57 Psychological and Legal Interventions for Parents and
(2001) (analyzing changes in gender equity during Children in Custody and Access Disputes: Current Research
divorce, focusing on Mary Ann Mason, The Custody and Practice, 10 VA. J. SOC. POL’Y & L. 129, 154
Wars: Why Children are Losing the Legal Battle and What nn.145, 147 (2002) (self-citing to 39 FAM. CTS. REV.
We Can Do About It (1999), which notes that Gardner’s 249 at 251 in support of claim that children who are
theory has “won an audience” in describing the “pathologically alienated” may, unlike most children,
historical favoring of an abusive father’s rights over the want and enjoy the power of a judge’s attention during
best interests of the child, the strategy of abusive father a private interview in chambers, while most children
to claim that abuse allegations are false, and blaming will find such a situation psychologically “untenable”);
maternal “alienation” in order to gain custody); June Charles P. Kindregan, Jr., Family Interests in Competition:
Carbone, Symposium, The Missing Piece of the Custody Relocation and Visitation, 36 SUFFOLK U. L. REV. 31, 41
Puzzle: Creating a New Model of Parental Partnership, 39 n.46 (2002) (noting that post-divorce parental
SANTA CLARA L. REV. 1091, 1113 (1999) (noting that relocation does not generally involve hidden spiteful
joint custody laws grew out of fathers’ lobbying against motives or PAS); Anita K. Lampel, Child Alienation in
ex-wives they claimed sought sole custody as a Divorce: Assessing for Alienation and Access in Child Custody
manifestation of PAS, and that under most joint Cases: A Response to Lee and Olesen, 40 FAM. CT. REV.
custody arrangements, the mothers provide the vast 232, 232 (2002) (noting that children may be
majority of actual child care); Karen Czapanskiy, “alienated or realistically estranged,” citing Kelly’s
Symposium, Interdependencies, Families, and Children, 39 reformulation of PAS); S. Margaret Lee & Nancy W.
SANTA CLARA L. REV. 957, 1017 n.133 (1999) (noting Olesen, Special Issue, Alienated Children in Divorce:
that PAS can be used to enforce visitation rights even Assessing for Alienation in Child Custody and Access
when the father’s conduct vis a vis his children is Evaluations, 39 FAM. CT. REV. 282, 283 (2001) (noting
substandard); Elrod, supra note 25, at 511–12 that PAS creates oversimplified evaluations of family
(describing alienation as a symptom of serious familial dynamics); Ron Neff & Kat Cooper, Progress in Parent
problems, and noting that there is debate about Education: Parental Conflict Resolution: Six-, Twelve-, and
whether alienation is a syndrome); Daniel J. Hynan, Fifteen-Month Follow-Ups of a High-Conflict Program, 42
Parent-Child Observations in Custody Evaluations, 41 FAM. FAM. CT. REV. 99, 99–100 (2004) (citing controversy
CT. REV. 214, 215 (2003) (citing Kelly’s reformula- over Gardner’s designation of PAS as a “clinical
tion); Janet R. Johnston, Building Multidisciplinary syndrome”); Elizabeth S. Scott & Robert E. Scott,
Professional Partnerships with the Court on Behalf of High- Parents As Fiduciaries, 81 VA. L. REV. 2401, 2454 n.150
Conflict Divorcing Families and Their Children: Who Needs (1995) (citing Gardner and Cheri L. Wood regarding
What Kind of Help?, 22 U. ARK. LITTLE ROCK L. REV. judicial intervention aimed at supporting whichever
453, 462–63 (2000) (noting that therapists working parent will foster the child’s relationship with the other
only with one parent may arrive at differential parent); Jo-Anne M. Stoltz & Tara Ney, Child Alienation
diagnoses based on the claims of their clients, in Divorce: Resistance to Visitation: Rethinking Parental and
juxtaposing diagnosis of an abused child with PAS) Child Alienation, 40 FAM. CT. REV. 220, 220 (2002)
[hereinafter Johnston, Multidisciplinary Professional (analyzing a reformulation of Gardner’s PAS, which the
Partnerships]; Janet R. Johnston et al., Special Issue, authors describe as “simplistic”); Matthew J. Sullivan &
Alienated Children in Divorce: Therapeutic Work With Joan B. Kelly, Special Issue, Alienated Children in
Alienated Children and Their Families, 39 FAM. CT. REV. Divorce: Legal and Psychological Management of Cases With
316, 316 (2001) (describing Gardner’s treatment an Alienated Child, 39 FAM. CT. REV. 299, 312 (2001)
mandates as “coercive and punitive”); Kelly & (citing Gardner for proposition that some child
Johnston, supra note 20, at 249–51, 258 (noting alienation cases are unlikely to respond to
Gardner’s PAS is tautological, lacks empirical evidence, intervention); TJAGSA Practice Notes, Family Law
and cannot be considered a diagnostic syndrome, and Note, A QuickLook at Parental Alienation Syndrome, 2002
assuming that even in child abuse cases, “normal” ARMY LAW. 53, 53–54 (2002) (noting controversy
parents will not encourage the complete rejection of the about validity of PAS as well as frequent appearance in
abusive parent); Randy Frances Kandel, Just Ask the Kid! court); Janet Weinstein, And Never the Twain Shall Meet:
Towards a Rule of Children’s Choice in Custody The Best Interests of Children and the Adversary System, 52

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40 Jennifer Hoult

U. MIAMI L. REV. 79, 127 n.154 (1997) (calling Penfold, Questionable Beliefs About Child Sexual Abuse
Gardner’s PAS theory “controversial”); Lewis Allegations During Custody Disputes, 14 CAN. J. FAM. L.
Zirogiannis, Student Note: Special Issue, Alienated 11, 14 n.7, 21–22 & n.31 (1997) (citing Gardner’s
Children in Divorce: Evidentiary Issues With Parental claim that most abuse accusations arising during child
Alienation Syndrome, 39 FAM. CT. REV. 334, passim custody disputes are false and are the result of
(2001) (arguing that PAS is inadmissible under Daubert programming by vindictive and hostile mothers, and
because, as social-science evidence, rather than noting that Gardner’s theory has not been subjected to
technical evidence, it must satisfy empirical testing). “objective scientific study”); Paula D. Salinger, Review
97
Susan J. Becker, Child Sexual Abuse Allegations of Selected 2000 California Legislation, Family Law
Against a Lesbian or Gay Parent in a Custody or Visitation True or False Accusations?: Protecting Victims of Child
Dispute: Battling the Overt and Insidious Bias of Experts and Sexual Abuse During Custody Disputes, 32 MCGEORGE L.
Judges, 74 DENV. U. L. REV. 75, 145–46 (1996) (citing REV. 693, 701–02 (2001) (noting the lack of scientific
PAS as one of many syndromes purporting to diagnose acceptance of PAS as well as the use of PAS as a
the truth or falsity of abuse allegations, used by expert counter-allegation by fathers accused of child sex
witnesses to “diagnose” truthfulness); Thea Brown, abuse); Thomas E. Schacht, Prevention Strategies to
Special Issue: Separated and Unmarried Fathers and Protect Professionals and Families Involved in High-Conflict
the Courts, Fathers and Child Abuse Allegations in the Divorce, 22 U. ARK. LITTLE ROCK L. REV. 565, 573–74
Context of Parental Separation and Divorce, 41 FAM. CT. (2000) (citing Gardner’s claim that child sex abuse
REV. 367, 370–71 (2003) (PAS stereotype of falsely allegations during divorce are false, but noting that that
accused father is unsupported by research); Kathleen just because such allegations arise during divorce does
Coulborn Faller, Child Maltreatment and Endangerment in not mean they are false); Cheri L. Wood, Notes and
the Context of Divorce, 22 U. ARK. LITTLE ROCK L. REV. Comments, The Parental Alienation Syndrome: A
429, 431 (2000) (noting that health professionals have Dangerous Aura of Reliability, 27 LOY. L.A. L. REV. 1367,
taken Gardner’s claims at face value, despite the lack of 1411–13 (1994) (arguing that PAS is not admissible
empirical evidence for PAS); Lynne Henderson, Without under Frye or Daubert).
98
Narrative: Child Sexual Abuse, 4 VA. J. SOC. POL’Y & L. Jane H. Aiken & Jane C. Murphy, Dealing with
479, 513 n.134 (1997) (citing increased pressure to Complex Evidence of Domestic Violence: A Primer for the
disprove children who report sexual abuse, and Civil Bench, 39 CT. REV. 12, 16 (2002) (noting that
Gardner’s claim that those who falsely report suffer mothers who fail to report abuse may be deemed
from PAS); Joy Lazo, True or False: Expert Testimony on incompetent and that those who report it may be
Repressed Memory, 28 LOY. L.A. L. REV. 1345, 1350 labeled with PAS); Dana Royce Baerger et al., A
n.25, 1360 n.82 (1995) (citing Cheri Wood’s article in Methodology for Reviewing the Reliability and Relevance of
regards to PAS as a scientifically unfounded means of Child Custody Evaluations, 18 J. AM. ACAD. MATRI-
attacking child sex abuse claims); Theo S. Liebmann, MONIAL L. 35, 70–71 (2002) (noting the relationship
Confidentiality, Consultation, and the Child Client, 75 between alienation and domestic violence, and the
TEMPLE L. REV. 821, 834–35 (2002) (discussing a overreaching of therapists who make conclusions based
hypothetical case involving a sexually abusive father’s on insufficient information, i.e., without interviewing
counterclaim that the sex abuse allegations resulted the putative abuser); Mary Becker, Access to Justice,
from PAS, and citing Bruch on lack of acceptance of The Social Responsibility of Lawyers: Access to Justice for
PAS in the scientific community); John E. B. Myers, Battered Women, 12 WASH. U. J. L. & POL’Y 63, 65 n.3
New Era of Skepticism Regarding Children’s Credibility, 1 (2003) (noting that the mother may lose custody when
PSYCH. PUB. POL. & L. 387, 392 (1995) (citing children are alienated from the father because of his
Gardner’s claim that most children fabricate child sex violence, citing discussions and critiques of Gardner’s
abuse as an “inflammatory statement”… “at the margin theory); Clare Dalton, When Paradigms Collide: Protecting
of responsibility”); Merrilyn McDonald, The Myth of Battered Parents and Their Children in the Family Court
Epidemic False Allegations of Sexual Abuse in Divorce Cases, System, 37 FAM. & CONCIL. CTS. REV. 273, 285–87 &
35 CT. REV. 12, 18 n.40 (1998) (noting that both PAS n.53 (1999) (citing Gardner’s work on PAS as
and SALS are entirely self-published by Gardner and “pathologizing” the proposed phenomenon of PAS and
have not been subjected to peer scientific scrutiny); citing literature discussing a lack of evidence that PAS
Colleen McMahon, Due Process: Constitutional Rights and exists, in presenting the difficulties children face in
the Stigma of Sexual Abuse Allegations in Child Custody reporting violence in their homes and the insidious
Proceedings, 39 CATH. LAW. 153, 193 n.246 (1999) harm that occurs when a professional diagnoses PAS
(noting that PAS may have particular influence on instead of believing the credibility of the report of
expert testimony in child sex abuse cases); P. Susan violence); Merritt McKeon, The Impact of Domestic

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 41

Violence on Child Custody Determination in California: Who L. REV. 1004, 1074–77 (1999) (discussing Gardner and
Will Understand?, 19 WHITTIER L. REV. 459, 477 Underwager’s work, noting that neither considers child
(1998) (noting that PAS is unaccepted in its field and sex abuse inherently harmful and that both are almost
used to give a “veneer of credibility” to reports ignoring exclusively concerned with false convictions rather than
domestic violence); Joan S. Meier, Symposium, Domestic child protection); Douglas R. Richmond, Regulating
Violence, Child Custody, and Child Protection: Under- Expert Testimony, 62 MO. L. REV. 485, 490–91 (1997)
standing Judicial Resistance and Imagining the Solutions, 11 (citing PAS as one form of psychological syndrome
AM. U. J. GENDER SOC. POL’Y & L. 657, 688 (2003) evidence contested under Daubert); Daniel P. Ryan,
(noting that PAS is a gender-biased tool used to give Expert Opinion Testimony and Scientific Evidence: Does
batterers custody, and that it is increasingly used in M.C.L. 600.2955 “Assist” the Trial Judge in Michigan Tort
court despite its lack of scientific merit); Evan Stark, A Cases?, 75 U. DET. MERCY L. REV. 263, 295 (1998)
Failure to Protect: Unraveling “The Battered Mother’s (citing PAS as the subject of expert testimony); Brett C.
Dilemma”, 27 W. ST. U. L. REV. 29, 58 (1999–2000) Trowbridge, The Admissibility of Expert Testimony in
(describing a case in which the court-appointed psy- Washington on Post Traumatic Stress Disorder and Related
chologist diagnosed the mother as causing PAS, Trauma Syndromes: Avoiding the Battle of the Experts by
resulting in a transfer of custody to the father, even Restoring the Use of Objective Psychological Testimony in the
though the alienation had been caused by the formerly Courtroom, 27 SEATTLE U. L. R. 453, 489–90, 522
battering father’s own “intimidating and coercive” (2003) (describing PAS as a defense strategy to attack
actions towards the mother and child); Nat Stern & abuse allegations, and arguing that only psychological
Karen Oehme, The Troubling Admission of Supervised syndromes that are in the DSM should be admitted in
Visitation Records in Custody Proceedings, 75 TEMPLE L. court and that all others subject to Frye); R. James
REV. 271, 285 n.105 (2002) (citing the use of Williams, Special Issue, Alienated Children in Divorce:
unscientific claims like PAS as one reason judges fail to Should Judges Close the Gate on PAS and PA?, 39 FAM.
credit or take seriously reports of domestic); CT. REV. 267 passim (2001) (noting that PAS does not
Symposium, Women, Children and Domestic Violence: meet admissibility standards of either American or
Current Tensions and Emerging Issues, 27 FORDHAM URB. Canadian law).
100
L.J. 565, 807 (2000) (citing a New Jersey case involving Michael C. Gottlieb, Special Issue, Troxel v.
wife-battering husband whose eight-year-old son Granville and its Implications for Families and Practice: A
refused visitation, expressing fear of the father, but the Multidisciplinary Symposium: Introduction to the Special
court-appointed psychologist’s diagnosed PAS, and the Issue, 41 FAM. CT. REV. 8, 9 (2003) (citing generally
judge forced visitation); Jerry von Talge, Victimization Kelly and Johnson’s article on PAS); Lyn R. Greenberg
Dynamics: The Psycho-Social and Legal Implications of et al., Issue Facing Family Courts, Effective Intervention
Family Violence Directed Toward Women and the Impact on with High-Conflict Families: How Judges Can Promote and
Child Witnesses, 27 W. ST. U. L. REV. 111, 158 (1999– Recognize Competent Treatment in Family Court, 4 J.
2000) (noting that PAS is unproven and not accepted CENTER CHILDREN & CTS. 49, 55 (2003) (citing an
by the psychological or psychiatric communities, and is article on PAS and noting that therapists may become
used to attack claims of domestic violence and child the unwitting representatives of one parent if they fail
sexual abuse). to investigate all sides of family dynamics); Margaret K.
99
Steven Alan Childress, The “Soft Science” of Dore, The “Friendly Parent” Concept: A Flawed Factor for
Discretion: A Reply to Ghosh’s “Search for Scientific Child Custody, 6 LOY. J. PUB. INT. L. 41, 56 (2004)
Validity”, 8 DIG. 31, 32 n.2 (2000) (citing PAS in a (arguing that the use of PAS in court is harmful to
footnote on various forms of contested and novel children’s interests); Katheryn D. Katz, 2001–2002
expert testimony); Henry F. Fradella et al., The Impact of Survey of New York Law: Family Law, 53 SYRACUSE L.
Daubert on the Admissibility of Behavioral Science REV. 579, 587 (2003) (noting that despite the lack of
Testimony, 30 PEPP. L. REV. 403, 405 n.12 (2003) scientific evidence for PAS, it is widely used in court);
(noting that Daubert’s application has been criticized, Niggemyer, supra note 26, at 576–77 (noting PAS’s
citing PAS as an example, but finding that overall lack of empirical support and acceptance); Peter Salem
Daubert is working); Stephen P. Herman, Issue Forum, & Ann L. Milne, The Association of Family and
Child Custody Evaluations and the Need for Standards of Conciliation Courts: Forty Years of Leadership and
Care and Peer-Review, 1 J. CENTER CHILD. & CTS. 139, Interdisciplinary Collaboration, 41 FAM. CT. REV. 147,
147 (1999) (noting that PAS is not scientifically based, 153 (2003) (describing Gardner’s PAS as “contro-
but appears frequently in courts, usurping the role of versial” in the context of Johnston and Kelly’s
the fact-finder); Thomas D. Lyon, The New Wave in reformulation); Matthew J. Sullivan, A Celebration Of
Children’s Suggestibility Research: A Critique, 84 CORNELL Canadian Family Law and Dispute Resolution, Article,

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42 Jennifer Hoult

Ethical, Legal, and Professional Practice Issues Involved in Salinger, supra note 99, at 702; Wood, supra note 99;
Acting as a Psychologist Parent Coordinator in Child Custody Dalton, supra note 99, at 285 n.53; McKeon, supra note
Cases, 42 FAM. CT. REV. 576, 576–81 (2004) (citing 99, at 477; Meier, supra note 100, at 688; von Talge,
Kelly’s reformulation of PAS). supra note 100, at 158; Katz, supra note 102, at 587;
101
Richard Ducote, Guardians Ad Litem in Private Niggemyer, supra note 25, at 576–77; Bruch, supra note
Custody Litigation: The Case for Abolition, 3 LOY. J. PUB. 21, 537–39, 550; Elrod, supra note 24, at 511 n.68;
INT. L. 106, 140–41 (2002) (describing PAS as Kelly & Johnston, supra note 101, at 489, 522;
essentially pro-pedophilia theory that provides a Zirogiannis, supra note 98; Herman, supra note 101, at
defense in the cases with the most evidence of abuse); 147; Trowbridge, supra note 101, at 489, 522;
Paul C. Giannelli, Ake v. Oklahoma, The Right to Expert Williams, supra note 101, at 276–77.
104
Assistance in a Post-Daubert, Post-DNA World, 89 Ducote, supra note 103, at 141; Henley, supra note
CORNELL L. REV. 1320, n.89 (2004) (citing Bruch 103, at 16 n.146; Liebmann, supra note 99, at 834–35;
regarding the use of syndrome evidence in criminal Salinger, supra note 99, at 701–02; Meier, supra note
prosecution); Stephen R. Henley, Developments in 100, at 688; Stark, supra note 100, at 58; Carbone,
Evidence III—The Final Chapter, 1998 ARMY LAW. 1, 16 supra note 98, at 56.
105
n.146 (1998) (citing PAS as one of many justification Aiken, supra note 99, at 16; Meier, supra note 99,
defenses available to defendants to avoid legal at 688; Bruch, supra note 22 passim; Carbone, supra
responsibility); Linda C. Neilson, Special Issue: A note 98, at 56.
Celebration of Canadian Family Law and Dispute 106
PRESIDENTIAL TASK FORCE ON VIOLENCE & THE
Resolution, Assessing Mutual Partner-Abuse Claims in FAMILY, AM. PSYCHOL. ASSOC., VIOLENCE AND THE
Child Custody and Access Cases, 42 FAM. CT. REV. 411, FAMILY 40 (1996) [hereinafter VIOLENCE AND THE
424–25 (2004) (noting that PAS is used by abusive FAMILY]; Aiken, supra note 100, at 16.
parents to divert attention from their violence); Lisa S. 107
Becker, supra note 99, at145; Faller, supra note 99,
Scheff, People v. Humphrey: Justice for Battered Women at 431; Baerger, supra note 100; Greenberg, supra note
or a License to Kill?, 32 U.S.F. L. REV. 225, 251 n.250 102, at 55; Johnston, supra note 98, at 463.
108
(1997) (citing authorization of PAS as an excuse Kumho Tire Co. v. Carmichael, 526 U.S. 137
defense). (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
102
Dr. Ursula Kilkelly, Symposium, Families and 579 (1993); Frye v.United States, 293 F. 1013 (D.C.
Children in International Law, Effective Protection of Cir. 1923).
Children’s Rights in Family Cases: An International 109
Daubert, 509 U.S. at 586 (citing Frye, 293 F. at
Approach, 12 TRANSNAT’L L. & CONTEMP. PROBS. 335, 1014).
110
345–46 n.69 (2002) (noting discussion in Britain over Frye, 293 F. at 1014.
court’s “apparent acceptance” of the existence of PAS; 111
Gardner, DSM-IV, supra note 21, at 5 (acknow-
also stating that the European Court does not enforce ledging that research must prove the reliability of new
the child’s participation under Article 12 of the United clinical entities prior to admission in the DSM);
Nations Convention on the Rights of the Child, but Richard Gardner, Parental Alienation Syndrome vs.
sees a violation of a father’s rights under Article 8 if Parental Alienation: Which Diagnosis Should Evaluators Use
evidence of both the child’s wishes and expert in Child-Custody Disputes?, 30 AM. J. OF FAM. THERAPY
testimony about those wishes is not presented, thus 93, 101–02 (2002) [hereinafter Gardner, PAS v. PA].
failing to fully recognize the independent rights of the This is not to say that DSM inclusion is a purely
child); Rhona Schuz, Families and Children in scientific matter. Due to the decision-making proce-
International Law: The Hague Child Abduction Convention dures at the American Psychiatric Association, politics
and Children’s Rights, 12 TRANSNAT’L L. & CONTEMP. may affect inclusion in the DSM. The inclusion of
PROBS. 393, 443–46 n.236 (2002) (noting that courts minority science may thus face higher hurdles to
generally subjugate the interests of the child to parental admission. In the past, political pressure has resulted in
rights under the Hague Child Abduction Convention, the DSM’s inclusion of behaviors that are not
but citing one Israeli PAS case wherein a parent’s rights pathological, such as homosexuality. I am not claiming
were outweighed by a child’s best interests in that the that the DSM is an inviolate source of sound science.
child was not returned to the non-abducting parent Instead, I am recognizing that it represents a standard
because the child threatened suicide if so returned, and of general acceptance within psychiatry.
noting that these facts triggered the “grave risk of 112
The Massachusetts Supreme Judicial Court treats
harm” exception). inclusion in the DSM as sufficient proof of general
103
Faller, supra note 99, at 431; Lazo, supra note 99, acceptance for evidentiary admissibility, holding that
at 1360 n.82; McDonald, supra note 99, at 18 n.40; syndromes that are not included in the DSM require

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 43

admissibility hearings. Commonwealth v. Frangipane, cases, countries with less vigilant response to child
433 Mass. 527, 538 (Ma. 2001). abuse may see fewer such counterclaims. Oberdorfer,
113
VIOLENCE AND THE FAMILY, supra note 108, at 40 supra note 88, at 1707, 1717–18 (citing Gardner for
(noting that despite the fact that there is no data the proposition that bitter divorces lead to PAS and are
supporting “the phenomenon called [PAS],” the term bad for children; discussing a case in which domestic
“is still used by some evaluators and courts to discount violence and child sex abuse were alleged and the father
children’s fears in hostile and psychologically abusive was awarded custody after claiming the mother was a
situations”). Gardner claimed that the APA had liar).
124
recognized PAS’s validity in 1994, by including Gardner, Judiciary, supra note 31, at 60 (claiming
references to several of his books in an official that lawyers who zealously advocate for their clients are
publication. Gardner, PAS v. PA, supra note 113, at “promulgating and entrenching the PAS”).
125
104. However, the APA’s 1996 statement supersedes Gardner, DSM-IV, supra note 21, at 2. Gardner
the 1994 publication. claims that women with PAS become psychopathic, but
114
The APA issued this statement following PBS’ only in the sphere of life related to parenting. Gardner,
2005 airing of Breaking the Silence: Children’s Stories. The Differentiating, supra note 33, at 103. Since
American Psychological Association (APA) believes that psychopathy, like other pathologies, is not diagnosed
all mental health practitioners as well as law based on differential behavior in different spheres of
enforcement officials and the courts must take any life, just as a measles’ rash does not appear and
reports of domestic violence in divorce and child disappear depending on where one is located, Gardner’s
custody cases seriously. An APA 1996 Presidential Task depiction of psychopathic behavior that occurs in
Force on Violence and the Family noted the lack of differential spheres of life indicates chosen behavior,
data to support so-called “parental alienation not pathology. Gardner, DSM-IV, supra note 21, at 4.
126
syndrome,” and raised concern about the term’s use. Gardner, DSM-IV, supra note 21, at 12.
127
However, we have no official position on the purported Gardner, Judiciary, supra note 31, at 61; Gardner,
syndrome. Press Release, Am. Psych. Assoc., Statement DSM-IV, supra note 21, at 12.
128
on Parental Alienation Syndrome (Oct. 28, 2005), Ignoring the DDC, Warshak cites to Gardner’s
available at <http://www.apa.org/releases/passyndrome. other work when discussing PAS’s diagnostic criteria.
html>. Warshak, supra note 30, passim.
115 129
For further analysis of PAS’s failure to satisfy Richard Gardner, Differential Diagnosis of the Three
Daubert, see Wood, supra note 25, at 1387–89. Levels of Parental Alienation Syndrome (PAS) Alienators,
116
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. <http://www.rgardner.com/refs/pastable.pdf> (last visited
579, 594–95, 598 (1993) (citing FED. R. EVID. 702, Feb. 6, 2006) [hereinafter Gardner, Differential
which states: “If scientific, technical, or other Diagnosis] (stating “whereas the diagnosis of PAS is
specialized knowledge will assist the trier of fact to based upon the level of symptoms in the child, the
understand the evidence or to determine a fact in issue, court’s decision for custodial transfer should be based
a witness qualified as an expert by knowledge, skill, primarily on the alienator’s symptom level and only
experience, training, or education, may testify thereto secondarily on the child’s level of PAS symptoms”)
in the form of an opinion or otherwise”). (emphasis in original).
117 130
Id. at 590. Gardner, Denial, supra note 33, at 201 (describing
118
Id. at 594. the grief of the rejected father documented in his study
119
Id. at 593–94. of “PAS children” based on interviews with the
120
Id. at 594 (citing United States v. Downing, 753 alienated parents).
131
F.2d 1224, 1238 (3d Cir. 1985)). Gardner, DSM-IV, supra note 21, at 12 (stating
121
CONCISE MEDICAL DICTIONARY 645 (Oxford Univ. only that psychopathology intensifies in general);
Press 6th ed. 2002). Gardner, Empowerment of Children, supra note 21, at 8
122
Richard A. Gardner, Judges Interviewing Children In (stating that PAS children are taught to be
Custody/Visitation Litigation, VII(2) N.J.Fam. Law., 26ff, psychopathic); Gardner, Differential Diagnosis, supra
9 (1987) [hereinafter Gardner, Judges]; Gardner, DSM- note 131 (referencing severe psychopathology prior to
IV, supra note 21, at 4, 6 (claiming the cause of PAS is the separation, but not during it).
132
parental programming, or, alternatively, the adversary Gardner, Differential Diagnosis, supra note 131
system); Barnes, supra note 89, at 622 (claiming sole (emphasis added).
133
custody increases the risk of PAS). Id. at n.1.
123 134
Gardner, Judiciary, supra note 31, at 61. Since PAS U.S. CONST. amend. I.
135
is used primarily as a counter-claim in child abuse Gardner, Differential Diagnosis, supra note 131.

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44 Jennifer Hoult

136
Schutz v. Schutz, 522 S.2d 874 (Fla. Dist. Ct. Gardner, Family Therapy of the Moderate Type of Parental
App. 1988) (citing Gardner’s claim that, “The parent Alienation Syndrome, 27(3) AM. J. FAM. THERAPY 195,
who expresses neutrality regarding visitation is 205–06 (1999) [hereinafter Gardner, Family Therapy]
essentially communicating criticism of the non- (claiming PAS children need brainwashing, comparing
custodial parent” in support of an order that the them to Moonies and POWs).
141
mother make affirmative, positive statements about her Gardner, Legal and Psychotherapeutic Approaches,
ex-husband); Gardner, Child Custody, supra note 30, at supra note 141, at 16, 21 (claiming “only the court has
642 (claiming that “The parent who expresses neu- the power to order these mothers to stop their
trality regarding visitation is basically communicating manipulations and maneuvering”); Gardner, Judiciary,
criticism of the non-custodial parent,” and that neutral- supra note 31, at 58.
142
ity can be used to “foster and support alienation”); Warshak, Parental Alienation, supra note 23, at 298
Gardner, Empowerment of Children, supra note 21, at 17– (citing various studies reporting that treatment is
18 (claiming that judicial orders are insufficient to ineffective, and one study reporting only three cases
prevent negative communications); Warshak, Parental wherein treatment resulted in the “elimination of
Alienation, supra note 23, at 294–97. PAS”).
137 143
Gardner, Recommendations, supra note 32, at 12 While Gardner mandates PAS therapy for mother
(claiming that there can be no cure for PAS without and child in the DDC, he claims elsewhere that therapy
legal sanctions and coercive therapy). Claiming that for the mother is a mockery, Richard Gardner, Legal and
both PAS and refusal to pay court-ordered alimony or Psychotherapeutic Approaches, supra note 141, at 17
child support are forms of child abuse, Gardner (likening therapy for the mother to a court order to
advocated legal coercion against mothers for PAS that force “a frigid wife to have an orgasm or an impotent
parallels legal sanctions against fathers who renege on husband to have an erection”). Gardner, Judiciary, supra
alimony and child support. Gardner, Recommendations, note 31 (acknowledging that courts have not followed
supra note 32, at 7–8. Both child abuse, a crime against his treatment mandates).
144
the state, and refusal to pay court-ordered alimony or Warshak, Parental Alienation, supra note 23, at
child-support, contempt of court, trigger legal 295–96 (citing various studies that report that treat-
sanctions. However, there is no evidence that PA or ment is ineffective, and one study that reported three
PAS constitute any other violation of law. Johnston, cases wherein treatment resulted in the “elimination of
supra note 98 (describing Gardner’s treatment PAS”).
145
mandates as “coercive and punitive”). One court recognized the harm it was inflicting on
138
Gardner, Differential Management, supra note 40. the children by forcing them into the unwanted sole
139
Richard Gardner, Legal and Psychotherapeutic custody of their father, yet still presumed that this
Approaches to the Three Types of Parental Alienation coercion would result in their loving the father. In re
Syndrome Families: When Psychiatry and the Law Join J.F., 694 N.Y.S.2d 592, 601 (N.Y. Fam. Ct. 1999).
146
Forces, 28 FAM CT. REV., 14, 21 (1991) [hereinafter In describing the shift of PAS from mothers to
Gardner, Legal and Psychotherapeutic Approaches]. fathers, Gardner claims fathers “have decided to use”
140
Gardner’s description of “transitional sites” for PAS techniques, another indication that PAS is not
children mimic incarceration conditions, using cult pathology, but chosen behavior. Gardner; Denial, supra
brainwashing techniques. Gardner, Recommendations, note 34, at 198. Gardner, PAS v. PA, supra note 113, at
supra note 32, at 15–21. Likening PAS to cult indoctri- 93–94 (stating that PAS is “designed” to strengthen a
nation, Gardner ignores the fact that custody cases legal position, and has this as its “goal”). Others have
rarely involve the systematic sensory deprivation noted that Gardner’s PAS describes legal non-
involved in cult indoctrination, namely protracted compliance. See Stoltz & Ney, supra note 99, at 224
deprivation of food, water, sleep, and contact with the (noting that Gardner presents PAS as a problem of legal
outside world. Gardner claims that forced hospitalized non-compliance, and thus the solution is the use of
brainwashing is legal under doctrines that allow forcible traditional legal methods of coercion). Gardner,
commitment; Gardner, DSM-IV, supra note 21, at 16 Judiciary, supra note 31 at 40 (stating that the “primary
(likening PAS to cult brainwashing). While forcible motive of the alienating parent for inducing the
commitment results only after due process safeguards campaign of denigration is to gain leverage in the court
are provided in a competence hearing, Gardner of law”); Gardner, DSM-IV, supra note 21 (claiming
advocates commitment for children without any due programming gives parents leverage in court).
147
process, and without any showing that PAS represents Gardner berates female therapists who “cham-
a threat to the child’s safety or the safety of others. pion” the mother’s cause without “[hearing the
Gardner, Judiciary, supra note 31, at 40; Richard father’s] side of the story,” ignoring the fact that, both

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Evidentiary Admissibility of Parental Alienation Syndrome 45

157
medically and legally, a therapist owes a duty of care to One study of divorced children found that all the
his patient, not to anyone else except under Tarasoff children’s observable alienation reversed naturally
situations. Tarasoff v. Regents of the Univ. of Cal., 551 within two years. Bruch, supra note 21, at 534.
158
P.2d 334, 340 (Cal. 1976) (finding a duty to third Kelly & Johnston, supra note 20, at 251 (noting
parties in a situation where a psychologist had sole that there are many reasons that a child refuses
information that his client threatened a third-party’s visitation, and few of these qualify as alienation).
159
life). See also Cynthia Bowman & Elizabeth Mertz, A Claims that PAS causes alienation of a few years’
Dangerous Direction: Legal Intervention in Sexual Abuse duration are not evidence of permanent harm or
Survivor Litigation, 109 HARV. L. REV. 549, passim pathology. Warshak, Parental Alienation, supra note 23,
(1996) (discussing policy considerations arising form at 273. Many people are estranged from family or
the creation of therapists’ duties of care to third friends for periods of years, without this indicating
parties). pathology or permanence.
148 160
Gardner, Empowerment of Children, supra note 21, at Baerger et al., supra note 100 (noting the
24 (noting the importance of the therapist having overreaching of therapists who make conclusions with
access to both parents); Gardner, Family Therapy, supra insufficient information, i.e. without interviewing the
note 142, at 195–96 (recommending the use of only putative abuser); Johnston, Multidisciplinary Professional
one therapist); Gardner, Legal and Psychotherapeutic Partnerships, supra note 98 (noting that therapists
Approaches, supra note 141, at 6. working only with one parent may arrive at an incorrect
149
Gardner, Legal and Psychotherapeutic Approaches, diagnosis, and juxtaposing diagnosis of PAS in an
supra note 141, at 6–7. abused child).
150 161
Gardner, Judiciary’s Role, supra note 31, at 57 Id.
162
(stating that PAS therapists “must be comfortable with Gardner, Basic Facts, supra note 28.
163
waiving traditional confidentiality,” and must use Thus, the DDC contradicts Gardner’s claim that
“authoritarian techniques[,] which are clearly at vari- “one cannot say who is the better parent unless one has
ance with traditional approaches”). had the opportunity to evaluate both.” Gardner, Child
151
Id.; Gardner, Family Therapy, supra note 142, at Custody, supra note 30, at 645. Despite this lack of
202 (instructing therapists to tell clients who report sex investigation into the health of the rejected parent,
abuse, “That didn’t happen!”). Gardner claims that by forcing the child to live with the
152
Gardner, Family Therapy, supra note 142, at 203 rejected father, the child will “at least be living with the
(describing a case where Gardner threatened a 6-year- healthier parent.” Gardner, Legal and Psychotherapeutic
old that her mother would be incarcerated until the Approaches, supra note 141.
164
child visited her father). Gardner, Differential Diagnosis, supra note 131.
153 165
Gardner, Judiciary, supra note 31, at 58. Gardner stipulated that, “[w]hen bona fide abuse
154
Gardner, Empowerment of Children, supra note 21, at does exist, then the child’s responding alienation is
12, 15 (noting GALs can be used to gain access to warranted and the PAS diagnosis is not applicable.”
documents from one parent for the alienated parent’s Gardner, Basic Facts, supra note 28. The following five
benefit, and claiming that children’s attorneys who cases cited by Gardner in support of PAS’s admissibility
zealously advocate for their clients “produce significant involved allegations of sexual violence, sometimes in
psychopathology” in those children); Gardner, Judiciary, conjunction with other factors that preclude a PAS
supra note 31, at 58 (specifying that GALs must “do diagnosis.
the opposite of what the client requests” and “unlearn” In re John W. was a “bitter child custody” case
the principle of zealous advocacy for their clients’ involving allegations of child molestation against the
interests). father and allegations of PAS against the mother. 48
155
Since symptoms may suggest several possible Cal. Rptr. 2d 899, 901 (Cal. Ct. App.). The mother
diagnoses (“differential diagnoses”), reliable diagnostic made five reports alleging child sexual abuse against the
criteria must have a low error rate and accurately father, none of which was substantiated. Id. at 901–02.
distinguish conditions that have similar symptoms. For After the fourth report, physical evidence in the form of
example, reliable diagnostic criteria distinguish between anal lesions was found. Id. at 902. However, the court-
skin rashes caused by measles, Lyme disease, poison appointed expert concluded no child abuse had
ivy, allergic reactions, and cancer. occurred, but diagnosed the allegations as a result of
156
Toddlers who want to live on a diet of chocolate PAS by the mother. Id. The juvenile court remarked
milk, or teenagers who want unfettered access to the that neither the child abuse, nor the PAS allegation was
car may exhibit PA towards the parent who denies their resolved. Id. The appellate court noted that “[p]edo-
wishes for what can feel like substantial period of time. philes have no business being around children,” and

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46 Jennifer Hoult

pointed to the necessity of expeditious findings in concluded that “the physical evidence showed repeated
molestation allegations. Id. at 909. But, contradicting sexual intercourse over a period of time and past sexual
the lower court observation that there had been no abuse.” Id. at 254. One defense expert opined that,
determination regarding the child abuse or the PAS, the while some of the physical findings were inconclusive as
appellate court nonetheless found that a determination to sexual abuse, the “condition of the [child’s] hymen
had been made. Id. at 908. Instead of making a deter- indicated repeated sexual intercourse.” Id. The father’s
mination on either the child abuse allegation or the defense strategy was to cast doubt on his identity as the
PAS allegation, the appellate court held that the two rapist by alleging the accusation “arose from anger at
issues must have been determined “as a practical her father” because of his filing for divorce. Id. Notably,
matter,” presuming that juvenile court hearing officers the father filed for divorce after learning of the
would not have returned the boy to either a child allegations. Id. At trial, the state’s expert testified that
molester or a parent who bribed the child to make false “parental coaching is called ‘parental alienation
abuse allegations. Id. at 907. syndrome’”. Id. at 257. However, the expert found no
Rather than address the alleged abuse or PAS, the evidence that the child’s charges were fabricated or the
appellate court framed the case as being about the result of coaching. Id. The defendant’s appeal argued
misuse of the juvenile dependency system, expressing a ineffective assistance of counsel based on defense
clear distaste for the affluent parents’ extensive use of counsel’s failure to secure an expert to counter the
taxpayer-funded attorneys and psychological counsel- state’s expert’s testimony regarding PAS. Id. The
ing. Id. at 908. Combined with the court’s opinion that appellate court noted that the defendant did not
divorce cases pose a “serious danger that abuse allega- provide any evidence that expert testimony was avail-
tions will be used as a weapon against a party,” the able to prove incorrect the state’s expert’s conclusion
court appears to have been motivated to make a per- that PAS was not involved. Id. at 257.
functory “determination” that the abuse and PAS issues Karen B. v. Clyde M. recognized the “potentially
had already been resolved in order to remand the case enormous” consequences of weighing the evidence of
to a court wherein the affluent parents would not bene- conflicting expert opinions regarding alleged sexual
fit from taxpayer-funded attorneys and psychologists. abuse and the concomitant “potential for future harm”
Id. By remanding the case to family court, rather than and injustice of potentially placing the child in the
juvenile dependency court, the appellate court closed custody of a sexually abusive father. 574 N.Y.S.2d 267,
the inquiry into the abuse issue by characterizing that 270 (N.Y. Fam. Ct. 1991), affd. sub nom. Karen “PP” v.
undecided issue as already determined. Id. at 907–09. Clyde “QQ”, 602 N.Y.S.2d 709 (N.Y. App. Div. 1993).
Despite the father’s indictment for “gross sexual However, despite several experts’ contradictory opin-
imposition and rape” of his two children, and his guilty ions regarding the veracity of the mother’s sexual abuse
plea to a misdemeanor, the court-appointed therapist in allegation, the lower court found the record “essentially
Conner v. Renz claimed the mother had induced PAS in devoid of credible evidence that the child had been
the children. No. 93-CA-1585 1995 Ohio App. LEXIS sexually abused” by her father, and concluded the
176, at *3 (Ohio Ct. App. Jan. 19, 1995) (described mother had “programmed” the child to make the abuse
this as “one of the more protracted and acrimonious allegations in order to obtain sole custody. Id. at 267–
proceedings that has ever been before this court”). 68. The court relied heavily on Gardner’s PAS theory,
The father in State v. Koelling successfully appealed citing his self-published work for a full page in the five-
his 1992 criminal conviction for rape and sexual page opinion, and apparently introducing this evidence
battery against his two daughters and son, but he was sua sponte. Id. at 271. Awarding sole custody to the
re-convicted at a second trial in 1994. Nos. 94APA06- father, the court denied the mother any contact with
866, 94APA06-868, 1995 Ohio App. LEXIS 1056, at the daughter until “no further danger is presented to
*1–46 (Ohio Ct. App. Mar. 21, 1995). Three children the child.” Id. at 272. Despite this “conflicting
testified in detail about the father’s sexual abuse. Id. at testimony,” the appellate court upheld the lower court
*8–13. A “political psychologist” testified about PAS, decision, and further set a precedent that a parent who
but the court found there was no evidence that the falsely alleges child sex abuse is presumed unfit. Karen
mother brainwashed her children into falsely alleging “PP”, 602 N.Y.S.2d at 754. The appellate court further
sexual abuse. Id. at *16, *37. held that the lower court’s reference to Gardner’s “book
McCoy v. State involved a father convicted for on parental alienation syndrome that was neither
repeatedly raping and sexually abusing his daughter. entered into evidence nor referred to by any witness”
886 P.2d 252 (Wyo. 1994). A “pediatrician and was not grounds for reversal, “especially in light of all
member of the hospital’s Child Advocacy and Protec- the testimony elicited at the hearing.” Id. By claiming
tion team” who examined the child at the age of 12 the reference to the PAS book was not part of the case

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Evidentiary Admissibility of Parental Alienation Syndrome 47

evidence, the court effectively sidestepped a decision on testifying expert similarly found there was no evidence
admissibility. of PAS. Id.
166
Based on a case whose experts reached conflicting Chambers v. Chambers affirmed the lower court’s
determinations about the sexual abuse allegations, decision permitting, but not compelling, visitation. The
Karen “PP” can hardly be called a case of clear “false court cited the fact that the child did not wish to see
allegations.” At best it represents a case of unfounded her father. The chancellor cited the mutuality of the
allegations. The court’s holding that “any parent what hostility and conflict between the parents. The court
would denigrate the other by casting false aspersions of cited the father’s recognition, through his expert, that
child sex abuse and involving the child to achieve his or compelled visits would be “traumatic and painful” for
her selfish purpose is not a fit parent” thus conflates the child, and posed a substantial risk of harm to the
real abuse that is unsubstantiated with false allegations child. Both parents were engaged in mutual, bilateral
of abuse. Oliver V. v. Kelly V., Husband Is Entitled to hostility, thus the case does not meet Gardner’s
Divorce Based on Cruel and Inhuman Treatment, N.Y.L.J., definition that one parent be the instigator of the
Nov. 27, 2000, at 25 (citing Karen B., 574 N.Y.S. 2d at alienation. Chambers, 2000 Ark. App. LEXIS 476, at *4.
267). Because of this lack of evidentiary differentiation, The Toto v. Toto court found no evidence that the
a parent who alleges real abuse that is not substantiated mother was alienating the children. Three Guardian ad
will be deemed unfit, and may lose custody for litems found that visitation problems were caused by
attempting to protect a child from real abuse. While the father, not the mother. PAS was diagnosed, but
abusive parents are presumptively unfit because they apparently the term was used to refer to the conflict
cause children potentially life-long medical and psych- between the parents, not brainwashing by one parent,
ological trauma, it is unclear that a false allegation of violating Gardner’s definition. Toto, 1992 Ohio App.
abuse causes similar harm. As a policy matter, this LEXIS 157, at *2.
precedent weighs child abuse and false allegations of In re Rosenfeld, 524 N.W.2d 212, 215 (Iowa App.
abuse equally, when the harm they cause is not at all 1994) (finding PAS in a case where the parents engaged
comparable. in mutual attempts to alienate the children);
Gardner’s definition of PAS expressly excludes Wiederholt v. Fischer, 169 Wis.2d 524, 485 N.W.2d
situations where physical abuse is involved. Since it 442, 443 (App. 1992) (diagnosing children as alienated
requires a lack of justification, mutual parental hostility due to behavior of both parents); Loll v. Loll, 561
and alienation attempts preclude its diagnosis. Cases N.W.2d 625, 629 (N.D. 1997) (noting mutual parental
where there is no evidence of a child’s alienation or alienation attempts); Hanson v. Spolnik, 685 N.E.2d
parental contribution similarly do not qualify as PAS. 71 (Ind. App. 1997) (finding mutual alienation but
The following cases cited by Gardner in support of basing custody transfer to father on PAS diagnosis by
PAS’s admissibility therefore cannot involve PAS. an expert who never met with the father); Pisani, 1998
In Bates v. Bates, the mother’s expert found PAS Ohio App. LEXIS 4421, at*1 (noting mother lost
caused by the father, while the father’s expert custody due to unspecified “behavior,” father was later
concluded there was no PAS, crediting allegations that diagnosed as causing PAS in the children, but he
the mother was physically abusive to the older boy. No. retained custody); Kirk v. Kirk, 759 N.E.2d 265, 270
2000-A-0058, 2001 Ohio App. LEXIS 5428, at *3–4 (Ind. App. 2001) (noting both parents suffer from
(Ohio App. Ct. Dec. 7, 2001). Affirming the court “serious character pathology”).
167
order to transfer physical custody of the children to the Gardner, Basic Facts, supra note 28. Warshak
mother, the court observed that the expert’s opinions similarly claims that the term PAS is “inapplicable” if
were at odds, “creating an evidential conflict best any of the three elements are absent. Warshak, Current
resolved by the trier of fact.” Id. at *1, *4. Controversies, supra note 29, at 29; Gardner, Recom-
In Truax v. Truax, the divorced father claimed an mendations II, supra note 32, at 4 (stating that PAS is
abuse of discretion by the trial court for discounting his diagnosed based on “the degree to which the indoctrinating
expert’s testimony on PAS, rather than the court- attempts have been successful”).
168
appointed special advocate’s (“CASA”) investigation of Gardner, Differential Diagnosis, supra note 131;
the children. 874 P.2d 10, 11 (Nev. 1994). The Gardner, Recommendations, supra note 32, at 22
appellate court noted that the CASA found violations (specifying that diagnosis is made based only on
of the court order, supported by physical evidence of “degree of [programming] ‘success’” observed in the
abuse in the form of a “severe bite mark” on one son. child).
169
Id. The bite mark was allegedly caused in the father’s Some professionals thus focus on the alienated
home by a daughter from another marriage. Id. A third child, rather than the alienating parent. Joan B. Kelly &
Janet R. Johnston, Special Issue: Alienated Children in

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48 Jennifer Hoult

Divorce: The Alienated Child: A Reformulation of Parental the child, finding no serious alienation by the mother
Alienation Syndrome, 39 FAM. CT. REV. 249 passim (July and no signs of alienation towards her father. Id. at *3.
2001). In Krebsbach v. Gallagher, the court-appointed
170
Gardner, Differential Diagnosis, supra note 32; psychiatrist found no evidence of PAS instigated by the
Warshak, Parental Alienation, supra note 23, at 289 mother. Krebsbach v. Gallagher, 587 N.Y.S.2d 346,
(claiming that a PAS diagnosis requires the parental 367 (N.Y. App. Div. 1992). He testified that the
contribution and that negative parental influence mother “did not mind sharing her children with the
cannot be inferred from a child’s alienation). Warshak father,” while, in contrast, the father was a
elsewhere cites Clawar and Rivlin’s definition of pro- “manipulative and controlling personality who [was]
gramming and brainwashing, which includes any not content unless he [got] his own way.” Id. at 367–
derogatory comment by one parent of the other, even if 68. This evidence suggested that the father, who alleged
the comment is objectively true. STANLEY CLAWAR & PAS caused by the mother, provoked many of the
BRYNNE RIVLIN, CHILDREN HELD HOSTAGE: DEALING visitation problems. Id. at 367.
WITH PROGRAMMED AND BRAINWASHED CHILDREN, 7–8 In Pathan v. Pathan, the mother’s counsel asked for
(ABA 1991) (cited in Warshak, Parental Alienation, Gardner to be appointed to assess the child for PAS
supra note 23, at 289). allegedly caused by the father. Gardner instead found
171
Gardner, Differential Diagnosis, supra note 32. PAS caused by the mother, and opined she was a child
172
The following cases cited by Gardner lacked abuser. Pathan v. Pathan, No. 17729, 2000 Ohio App.
evidence that the children were alienated: LEXIS 119 (Ohio Ct. App. Jan. 21, 2000). The basis
Blosser v. Blosser, 707 So. 2d 778, 780 (Fla. App. for this charge was the mother’s alleged placing the
1998) (finding no evidence that the child was daughter in the midst of her conflict with her ex-
alienated). husband. Id. at 23–24. The father testified to his good
At the age of four months, Violetta B. was placed relationship with his daughter. No evidence was
with a foster mother while her parents were awaiting presented to show the child’s involvement in the
trial on charges they murdered her four-year-old sister. alienation, thus Gardner ignored his own definition in
In re Violetta B., 568 N.E.2d 1345, 1346 (Ill. App. Ct. making the diagnosis. Id. at *4.
1991). In re Violetta B. involved an ultimately In White v. White, the trial court heard expert
unsuccessful petition by the child’s paternal grand- testimony alleging PAS instigated by the mother.
mother for custody. In re Violetta B., 568 N.E.2d at White v. White, 655 N.E.2d 523, 526 (Ind. Ct. App.
1359 The appeal was brought on the respondent minor 1995). The expert testified only about the mother’s
child’s behalf, arguing for continued custody by the alleged attempts to alienate the children from the
foster mother. Id. at 1346. The child’s expert testified father. Id. at 526. According to Gardner, this violates
that the child was, “experiencing parental alienation the requirement that the child contribute to the
syndrome.” Id. at 1350. The expert claimed the child alienation. Id. at 526.
was, “becoming depressed, combative and aggressive The following examples are not cited by Gardner:
when faced with visiting” the grandmother. Id. There Smith v. Smith, No. FA 0103414705 2003 Conn. Super.
was no evidence the child disliked or was alienated LEXIS 2039, at *20 (Ct. Superior. July 15, 2003)
from her grandmother. No evidence indicated that (unreported) (finding no evidence the child was
either adult was coaching or programming the child to alienated despite father’s claim of PAS); Kaiser v.
vilify the other adult. One expert specifically testified Kaiser, 23 P.3d 278, 281 (Okla. 2001) (claiming
that the foster mother was “very cooperative” regarding maternal alienation based solely on the mother’s
the child’s visits with her grandmother. Id. at 1351. request to relocate to a new state for employment and
Two experts explained the cause of the child’s distress finding no evidence of alienation despite father’s claim
being the trauma of potential separation from the only of PAS); Ruggiero v. Ruggiero, 819 A.2d 864, 867
parent she had ever known. Violetta B., 568 N.E.2d at (Conn. App. 2003) (diagnosing PAS but finding no
1347–48, 1350. evidence of alienation by the mother as alleged by the
In Sims v. Hornsby, the father’s expert diagnosed father).
PAS caused by the mother, describing PAS as a 173
Faller, supra note 99, at 100–15 (discussing the
phenomenon, “wherein one parent attempts to alienate structural and scientific flaws in PAS’s design).
174
a child from the other parent.” Sims v. Hornsby, No. Warshak specifies that the child’s denigration
CA92-01-007, 1992 Ohio App. LEXIS 4074, at *3 must rise to the level of a “campaign” rather than
(Ohio Ct. App. Aug. 10, 1992). The court-appointed “occasional episodes,” but neither he, nor the DDC,
expert examined the parents, their current spouses, and defines “campaign.” Warshak, Current Controversies,
supra note 29, at 29.

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Evidentiary Admissibility of Parental Alienation Syndrome 49

175
Gardner Differential Diagnosis, supra note 132 DDC such that it does not diagnose PAS in accordance
(stating “whereas the diagnosis of PAS is based upon the with his own definition.
183
level of symptoms in the child, the court’s decision for See e.g., Lucy Berliner & Job Conte, Sex Abuse
custodial transfer should be based primarily on the Evaluations: Conceptual and Empirical Observations, CHILD
alienator’s symptom level and only secondarily on the ABUSE & NEGLECT, 17m. 114 (1993); Scott Sleek, Is
child’s level of PAS symptoms”) (emphasis in original). Psychologists’ Testimony Going Unheard?, Am. Psychol.
176
Email correspondence, Richard Chefetz, M.D. Ass’n Monitor, Vol. 29, No. 2 (Feb. 1998).
184
(May 12, 2004). Warshak, Parental Alienation, supra note 23, at
177
Virtually any belief can be construed as either 281–82, 289. An illness’ etiology and means of effective
learned or “borrowed,” including a belief in God; the treatment need not be completely understood before a
fact that “2+2=4”; evolution; creationism; liking set of symptoms is recognized as defining a unique
chocolate milk; hating olives; choices of playmates, medical pathology. Warshak, Parental Alienation, supra
toys, or hobbies; political views, etc. note 23, at 281.
178 185
Gardner, Differential Diagnosis, supra note 131. Richard Gardner, Evaluate Child Sex Abuse in
179
A toddler might not want to stop playing with a Context, N.J.L.J. at 16 (May 10, 1993) [hereinafter
toy; a teenager might want to see the end of his favorite Gardner, Evaluate].
186
TV show. Gardner, Denial, supra note 33, at 195; Gardner,
180
Joan B. Kelly & Janet R. Johnston, Special Issue: DSM-IV, supra 21, at 4.
Alienated Children in Divorce: The Alienated Child: A 187
Daubert v. Merrell Dow Pharm., 509 U.S. 579,
Reformulation of Parental Alienation Syndrome, 39 Fam. 593–94 (1993).
188
Ct. Rev. 249, 251 (July 2001) (noting that there are Given Gardner’s conviction that PAS would be
many reasons that a child refuses visitation, and few of proven valid through inter-rater reliability testing, and
these qualify as alienation). his insistence that it represented sound science, it is
181
Gardner, Differential Diagnosis, supra note 131. unclear why he did not instigate any such studies on
182
Gardner, Basic Facts, supra note 28; Warshak, PAS in the nineteen years between his first reporting it
Current Controversies, supra note 29, at 29. In 2001, and his death.
189
Gardner maintained PAS was a valid medical Warshak, Current Controversies, supra note 29, at
“syndrome” defined by unjustifiable alienation caused 35–36. Warshak’s claim that one study of 700 children
by a brainwashing mother with contributions by the “provides some empirical support for the validity of
child. He stipulated that real abuse precludes a PAS PAS” is unfounded. Warshak, Parental Alienation, supra
diagnosis, and likened it to recognized medical note 23, at 285–86. (citing STANLEY CLAWAR &
conditions like Down’s Syndrome and AIDS. Gardner BRYNNE RIVLIN, CHILDREN HELD HOSTAGE: DEALING
Differential Diagnosis, supra note 132; Gardner, Basic WITH PROGRAMMED AND BRAINWASHED CHILDREN
Facts, supra note 28. In 2002, Gardner admitted that (ABA 1991)). Clawar and Rivlin’s work does not
real sex offenders use PAS as a means of deflecting support the existence of PAS because their definition of
attention and inquiry from their crimes. Gardner, alienation is inconsistent with Gardner’s definition
Misinformation, supra note 29, at 7; Gardner, Denial, PAS. Their definition includes any type of parental
supra note 33, at 195. Gardner claimed he was not to action that may create alienation in the child. It focuses
blame for the fact that some professionals misuse PAS solely on parental action, does not require the child’s
to “[exonerate] bona fide abusers by claiming that the participation, makes no distinction between justified
children’s animosity toward [the abuser] is a result of and unjustified alienation, and does not use Gardner’s
PAS indoctrinations by the other parent.” Gardner, DDC. CLAWAR & RIVLIN, at 7–10. The study groups
Misinformation, supra note 29, at 7. together any type of parental programming, including
On Jan. 13, 2003, shortly before his death, Gardner attempts of abusive parents to alienate the child against
revised his DDC. Id.; Gardner, Differential Diagnosis, non-abusive parents, and attempts of non-abusive
supra note 131. Given that he had directly addressed parents to protect children from real physical or sexual
criticism about PAS as a diagnostic tool, and its misuse abuse by abusive parents. Id. at 94, 161–62. Like
by sex offenders, he could have revised the DDC to Warshak and Gardner, Clawar and Rivlin use the term
make clear that real abuse precludes a PAS diagnosis “syndrome” to describe patterns of behavior that are
and that a diagnosing clinician must assess both not recognized as medical syndromes, including
parent’s conduct and rule out PAS if any reasonable “Denial of Existence Syndrome,” “The ‘Who, Me?’
causes of alienation existed. Involving no such Syndrome,” “Middle-Man Syndrome,” “Circumstantial
stipulations, it appears that Gardner chose to define the Syndrome,” “‘I Don’t Know What’s Wrong With Him’
Syndrome,” “The Ally Syndrome,” “The Morality

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50 Jennifer Hoult

196
Syndrome,” “Threat of Withdrawal of Love Syn- Warshak, Parental Alienation, supra note 23, at 290
drome,” “‘I’m The Only One Who Really Loves You’ (claiming Tourette’s Syndrome existed as a syndrome
Syndrome,” “You’re an Endangered Species’ Syn- prior to its DSM inclusion).
197
drome,” “Rewriting-Reality Syndrome,” and “Physical Gardner, Misinformation, supra note 29, at 4–5;
Survival Syndrome.” Id. at 15–36; see also Warshak, Warshak, Parental Alienation, supra note 23, at 288;
Parental Alienation, supra note 23, at 283. (citing “Red Warshak, Current Controversies, supra note 29, at 36; see
Wine Headache Syndrome,” to support the claim that also Warshak, Parental Alienation, supra note 23, at 283
PAS exists as a medical syndrome). Like Gardner and (citing another purported syndrome, “Red Wine
Warshak, Clawar and Rivlin claim that women are Headache Syndrome,” to support the claim that PAS
more likely than men to program or brainwash their exists as a medical syndrome).
198
children, but also note that men who program and Warshak cites a study of PA in support for PAS’s
brainwash children generally had a history of physical, existence. But since PAS is a subset of PA, observations
social, or psychological abuse against the children’s of PA do not prove PAS. Warshak, Parental Alienation,
mothers, and that they used programming/brain- supra note 23, at 285–86.
199
washing as a “new tool of abuse against the woman.” Gardner, Misinformation, supra note 29; Warshak,
CLAWAR & RIVLIN at 155–62. Parental Alienation, supra note 23, at 290; Warshak,
190
Daubert v. Merrell Dow Pharm., 509 U.S. 579, Current Controversies, supra note 29. Warshak argues
590 (1993). that PAS is a valid medical syndrome even if all
191
Two authors nonetheless claim PAS is valid children exposed to alienating behavior do not develop
science. Barry Bricklin & Gail Elliot, Qualifications of PAS, arguing that post-traumatic stress disorder
and Techniques to be Used by Judges, Attorneys, and Mental (“PTSD”) is not disqualified as a valid syndrome
Health Professionals Who Deal with Children in High simply because not all rape victims do not develop
Conflict Divorce Cases, 22 U. ARK. LITTLE ROCK L. REV. PTSD. Warshak, Current Controversies, supra note 29.
501, 516–18 (Spring 2000) (acknowledging the lack of However, PTSD does not diagnose rape. Thus Warshak
empirical evidence for PAS, but claiming it satisfies is simply saying PTSD does not diagnose something it
their undefined criteria for “scientific approach”). does not claim to diagnose. The issue is not whether
192
Gardner, Misinformation, supra note 29, at 2–3. PAS is not what it does not say it is, but whether it is
193
S. Margaret Lee & Nancy W. Olesen, Special Issue: what it says it is. PAS is defined by the symptoms of
Alienated Children in Divorce: Assessing for Alienation in the child and the “alienating” parent. Warshak
Child Custody and Access Evaluations, 39 FAM. CT. REV. elsewhere acknowledged his logical error, stating that
282, 283 (July 2001) (noting that PAS relies on “diagnoses carry no implication that everyone exposed
oversimplified evaluations of family dynamics). to the same stimulus develops the condition,” specifi-
194
Warshak, Parental Alienation, supra note 23, at 289 cally noting that not all rape victims develop PTSD.
(stating that the term “syndrome” is appropriate only Warshak, Parental Alienation, supra note 23, at 282.
once empirical testing on validity and reliability show Gardner stated that any claim that target parents
positive results). deserve alienation is the same as saying rape victims
195
Emerging scientific theories may later be proven deserve being raped. Gardner, Empowerment, supra note
invalid. Inclusion in the DSM expresses a point in the 21, at 10.
evolution of rigorous scientific inquiry at which there is 200
Proposed Bulletin on Peer-review and Information
general acceptance that a new theory has adequately Quality, 68 Fed. Reg. 54023, 54024 (proposed Sept.
proven its empirical existence and reliability. This 15, 2003) (citing “scientifically rigorous review and
parallels Frye’s recognition that general acceptance critique of a study’s methods, results, and findings by
occurs at some point in the evolution of scientific others in the field with requisite training and
inquiry. Frye v.United States, 293 F. 1013, 1014 (D.C. expertise”).
Cir. 1923) (“Just when a scientific principle or dis- 201
Revised Information Quality Bulletin on Peer-
covery crosses the line between the experimental and review, 69 Fed. Reg. 23230 (April 28, 2004) (citing
demonstrable stages is difficult to define. Somewhere in WILLIAM W. LOWRANCE, MODERN SCIENCE AND
this twilight zone the evidential force of the principle HUMAN VALUES, 85 (1985).
must be recognized, and while courts will go a long way 202
Id.
in admitting expert testimony deduced from a well- 203
Although the federal government sets minimum
recognized scientific principle or discovery, the thing standards for the peer-review processes used by federal
from which the deduction is made must be sufficiently agencies, these standards do not prescribe specified
established to have gained general acceptance in the methods. Id.
particular field in which it belongs”).

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Evidentiary Admissibility of Parental Alienation Syndrome 51

204
Proposed Bulletin on Peer-review and Information in a manner consistent with the highest standards of
Quality, 68 Fed. Reg. 54023, 54027 (proposed Sept. the profession . . . [and] may also consider the extent to
15, 2003) (noting that if an apparently biased reviewer which the recipient conducts a coherent, sustained
is appointed, then another reviewer with a contrary bias program of work informed by relevant research”).
216
must be appointed to ensure balance). There are clever <http://www.gao.gov/cgi-bin/getrpt?RCED-99-99>
ways to circumvent this requirement. For example, an (last visited May 25, 2004).
217
author wanting to preclude a particular individual with Revised Information Quality Bulletin on Peer-
opposing views from becoming an anonymous peer- review, 69 Fed. Reg. 23230 (April 28, 2004).
218
reviewer, need only acknowledge that individual in the Id. (citing Mark R. Powell, Science at EPA:
work to preclude his/her being invited to become part Information in the Regulatory Process, Resources for the
of the review committee. Future, 139 (1999)).
205 219
Revised Information Quality Bulletin on Peer- Daubert v. Merrell Dow Pharm., 509 U.S. 579,
review, 69 Fed. Reg. 23230 (April 28, 2004). 593 (1993).
206 220
Proposed Bulletin on Peer-review and Information Daubert, 590 U.S. at 594.
221
Quality, 68 Fed. Reg. 54023, 54024 (proposed Sept. Id.
222
15, 2003). Id.
207 223
Id. (noting that reviewers must be given “an Apoor Gami et al., Author self-citation in the diabetes
appropriately broad mandate,” “[framing] specific literature, 170 CAN. MED. ASS’N. J., 13 (June 22, 2004).
224
questions about information quality, assumptions, Gardner, <http://www.rgardner.com/refs> (last
hypotheses, methods, analytic results, and conclusions” visited April 21, 2004) (citing “[PAS] Peer-Reviewed
in the product under review). Articles: Crucial for Frye Test Hearings”); Gardner,
208
Id. <http: //www.rgardner.com/refs/pa s_ peerreviewa rticles.
209
See, e.g.,Thompson Scientific, www.isinet.com (last html> (last visited Sept. 30, 2003) (stating “[t]he
visited June 11, 2004); PsychInfo Literature Coverage, following articles of mine on the PAS have been pub-
<http://www.apa.org/psycinfo/about/covinfo.html> (last lished or accepted for publication in peer-review
visited June 11, 2004). journals”); see Appendix D, supra.
210 225
Id. Id.
211 226
Id. Contrast THE BASIC HANDBOOK OF CHILD
212
Email correspondence, Myra Holmes, PsycInfo, PSYCHIATRY, Vol. III, 431–33; Vol. IV, 263, 270, 283
Am. Psychol. Assn. (June 9, 2004) (on file with (Joseph Noshpitz, ed. 1979) (citing copious external
author). support for his scholarship) with Richard Gardner,
213
Id. Judges, supra note 124, at 26ff (claiming without
214
Email correspondence, Linda Beebe, Senior support that human evolution involved “preferential
Director, PsycInfo, Am. Psychol. Assn. (Aug. 12, 2004) selective survival of women who were highly motivated
(on file with author) (stating that the requirement for a child rearers on a genetic basis,” and “the average
journal being peer-reviewed was added in 2001, and woman today is more likely to be genetically
that inclusion in the database includes “an expectation programmed for child-rearing functions than the
that primary journals contain mostly original work”); average man”) and Richard Gardner, The Detrimental
PsychInfo Literature Coverage, <http://www.apa.org/ Effects on Women of the Misguided Gender Egalitarianism of
psycinfo/about/covinfo.html> (last visited June 11, Child-Custody Dispute Resolution Guidelines, ACAD.
2004) (stating that included journals “must contain FORUM, 38 (1/2), 10–13 (1994) (“Fueling the program
original submissions”). of vilification is the proverbial ‘maternal instinct’ . . .
215
Daubert, 509 U.S. at 594; <http://www.gao.gov/ Throughout the animal kingdom mothers will literally
cgi-bin/getrpt?RCED-99-99> (last visited May 25, fight to the death to safeguard their offspring and
2004); Rules & Regulations, 63 Fed. Reg. 57570 women today are still influenced by the same genetic
(Dep’t of Education Oct. 27, 1998) (citing the programming”) [hereinafter Gardner, Effects on Women]
227
importance of evaluating whether products are “well Gardner, Recommendations, supra note 32.
228
tested and based on sound research”; “the degree to <http://www.tc.umn.edu/~under006/issues.html>
which the recipient’s work approaches or attains (last visited May 25, 2004).
229
professional excellence . . . the extent to which . . . The Institute for Psychological Therapies, <http://
recipient utilizes processes, methods, and techniques www.ipt-forensics/journal/volume8/j8_3_6.htm> (last
appropriate to achieve the goals and objectives for the visited May 26, 2004).
program of work in the approved application . . .
applies appropriate processes, methods, and techniques

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52 Jennifer Hoult

230
Email correspondence, Hollida Wakefield, editor <http://www.childcustodycoach.com/pas.html> (last
of Institute for Psychological Theories Journal (Nov. visited June 9, 2004) [hereinafter Gardner, Three Levels]
14, 2003). with Gardner, Differential Diagnosis, supra note 131.
231 241
Proposed Bulletin on Peer-review and Information Gardner, Three Levels, supra note 242; Gardner,
Quality, 68 Fed. Reg. 54023, 54027 (proposed Sept. Differential Diagnosis, supra note 131; In only one of
15, 2003). these articles, the table is cited to his self-published
232
Hollida Wakefield, Editor’s Note, ISSUES IN CHILD books. Richard Gardner, Sollten Gerichte anordnen, daß an
ABUSE ACCUSATIONS Vol. 1, No. 1, i–ii (1989). PAS leindende Kinder den antfremdeten Elternteil besuchen
233
Interview: Hollida Wakefield and Ralph Underwager, bzw. bei ihm wohnen?, in DAS ELTERLICHE
Paidika: The Journal of Paedophilia, Vol.3, No.1, Issue ENTFREMDUNGSSYNDROM. ANREGUNGEN FÜR
9, 12 (Winter 1993). GERICHTLICHE SORGE- UND UMGANGSREGELUNGEN, 23,
234
Interview: Hollida Wakefield and Ralph Underwager, 42–45 (2002) available at <http://www.rgardner.com/
Paidika: The Journal of Paedophilia, Vol. 3, No. 1, refs/ar8_deutsche.html> (last visited May 25, 2004)
Issue 9, 12 (Winter 1993). Paidika’s editorial goal is to [hereinafter Gardner, Sollten Gerichte]; www.vwb-
demonstrate that pedophilia is a “legitimate and verlag.com/Katalog/m117.html (last visited June 9,
productive part of the totality of the human 2004); Gardner, Recommendations, supra note 32;
experience.” Id. Gardner, Family Therapy, supra note 142, at 196.
235 242
Underwager sued this psychologist, losing on Compare <http://www.rgardner.refs/pas_intro.html>,
summary judgment. In 1994, the Seventh Circuit supra note 29 (website—published material) with
upheld the grant of summary judgment, finding no Gardner, Judiciary, supra note 31, at 42 (language
evidence of “actual malice.” Underwager v. Salter, 22 appearing verbatim starting with “In association with
F.3d 730 (7th Cir. 1994), cert. denied, 115 S. Ct. 351 this burgeoning . . .”); Gardner, Denial, supra note 33,
(1994) (cited in Cynthia Bowman & Elizabeth Mertz, at 192 (language appearing verbatim, for example
A Dangerous Direction: Legal Intervention in Sexual Abuse section “The Parental Alienation Syndrom”), Gardner,
Survivor Litigation, 109 Harv. L. Rev. 551, 622 n.392 DSM-IV, supra note 21, at 1 (language appearing
(1996)). verbatim, for example section “The Parental Alienation
236
PsychInfo database available at <www.apa.org/ Syndrome”) and Gardner, PAS v. PA, supra note 113,
psychinfo/publishers/journals.html> (last visited Feb. at 94 (language appearing verbatim, for example section
20, 2006). “The Parental Alienation Syndrome”).
237 243
Richard Gardner, Guidelines for Assessing Parental Compare <http://www.rgardner.refs/pas_intro.html>
Preference in Child-Custody Disputes, Jrnl. of Divorce & with Gardner, DSM-IV, supra note 21, at 3–4 (begin-
Remarriage, 30(1/2), 1–9 (1999) available at <http:// ning with “Is PAS a True Syndrome”) and Gardner,
www.rgardner.com/refs/ar4.html> (last visited May 25, PAS v. PA, supra note 113, at 96 (beginning with “Is
2004) [hereinafter Gardner, Guidelines]. PAS a Syndrome”).
238 244
Compare Gardner, Denial, supra note 33 with Gardner, Sollten Gerichte, supra note 243 (citing
Richard Gardner, How Denying and Discrediting the original publication in Richard Gardner, Should Courts
Parental Alienation Syndrome Harms Women, THE Order PAS Children to Visit/Reside with the Alienated
PARENTAL ALIENATION SYNDROME: AN INTERDISCI- Parent? A Follow-up Study, AM. J. OF FORENSIC
PLINARY CHALLENGE FOR PROFESSIONALS INVOLVED IN PSYCHOL., Dec. 2001, at 61 [hereinafter Gardner,
DIVORCE, 121–42 (W. von Boch-Gallhau, U. Kodjoe, Courts].
245
W Andritsky, & P. Koeppel, eds., 2003) [hereinafter Gardner, Peerreviewarticles.html, supra note 242
Gardner, Denying and Discrediting]. Compare Gardner, (compare items listed as number 12 and 12(1)).
246
Recommendations, supra note 32, with Gardner, Richard Gardner, The Relationship Between the
Recommendations II, supra note 32. Parental Alienation Syndrome (PAS) and the False Memory
239
Compare, e.g.,the opening text in Gardner, PAS v. Syndrome (FMS), AM. J. OF FAM. THERAPY, Mar. – Apr.
PA, supra note 113, at 95 (stating “in association with 2004, at 79 [hereinafter Gardner, Relationship];
this burgeoning of child-custody litigation, we have Gardner, DSM-IV, supra note 21, at 1; Gardner, Denial,
witnessed a dramatic increase in the frequency of a supra note 33; Gardner, PAS v. PA, supra note 113, at
disorder rarely seen previously, a disorder that I refer to 93; Gardner, Family Therapy, supra note 142, at 195;
as the Parental Alienation Syndrom (‘PAS’s)”) with Gardner, Differentiating, supra note 33.
247
identical language in Gardner, Judiciary, supra note 34, Brunner-Routledge Title: American Journal of
at 39, and Gardner, Denial, supra note 33, at 192. Family Therapy, <http://www.tandf.co.uk/journals/
240
Compare Richard Gardner, The Three Levels of titles/01926187.asp> (last visited May 25, 2004).
248
Parental Alienation Syndrome Alienators (2003), Id.

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 53

249 265
Brunner-Routledge Title: Instructions for Authors, Telephone Interview, Zella Ondrey, Journal
<http://www.tandf.co.uk/journals/authors/uaftauth.asp> Production Manager, Hazelton/Haworth Press (May
(last visited June 10, 2004). In contrast, another 25, 2004). This publisher is currently publishing a non-
journal published by the same publisher, Advances in peer-reviewed book on PAS for which Gardner was an
Physics, specifies that articles are “independently peer- editor THE INTERNATIONAL HANDBOOK OF PARENTAL
reviewed,” that articles must not have been published ALIENATION SYNDROME: CONCEPTUAL, CLINICAL, AND
elsewhere, and if they were, the author will be “charged LEGAL CONSIDERATIONS (Richard Gardner, S. Sauber,
all costs” incurred by the publication, and the article & Demosthenes Lorandos, eds. 2004).
266
will not be published. Taylor and Francis, Instructions Peer Revew Articles, supra note 242; Gardner,
for Authors, <http://www.tandf.co.uk/journals/authors/ Guidelines, supra note 239.
267
tadpauth.asp> (last visited June 11, 2004). Compare, Gardner, Effects on Women, supra, note
250
<http://www.tandf.co.uk/journals/titles/01926187.asp> 244, at 10–13 and Gardner, Guidelines, supra note 239
(last visited June 14, 2004). By contrast, Advances in (each beginning at “The Stronger-Healthy-
Physics is “the number-one ranked journal in its field, Psychological . . .”).
268
with an Impact factor of 13.4.” <http://www.tandf. Compare, Gardner, Recommendations, supra note 32
co.uk/journals/authors/tadpauth.asp> (last visited June with Gardner, Recommendations II, supra note 34 (each
11, 2004). beginning at “Mild Cases of PAS”).
251 269
<www.isinet.com> (last visited June 11, 2004). Daubert v. Merrell Dow Pharm., 509 U.S. 579,
252
Gardner, Relationship, supra note 248; Gardner, 593–94 (1993).
270
DSM-IV, supra note 21; Gardner, PAS v. PA, supra note Richard Gardner, The Parental Alienation Syndrome:
113; Gardner, Denial, supra note 33; Gardner, Sixteen Years Later, 45 ACAD. F., 10 [hereinafter
Differentiating, supra note 33. Gardner, Sixteen Years Later]; Gardner, Effects on Women,
253
Compare <www.rgardner.refs/pas_intro.html> (last supra note 228, at 10–13; Richard Gardner, Recent
visited Sept. 30, 2003), Gardner, DSM-IV, supra note trends, supra note 26, at 3; Written correspondence,
21, at 2–6, Gardner, PAS v. PA, supra note 113, at 94– from Mariam Cohen, M.D. Psy. D., Editor (June 2,
98, and Gardner, Denial, supra note 33, at 195 (each 2004). The publisher’s website states that, “All
beginning section “The Parental Alienation manuscripts are subject to editing for style, clarity and
Syndrome”). length.” <http://aapsa.org/academy_forum.html> (last
254
Compare RICHARD GARDNER, THE PARENTAL visited May 25, 2004). Nonetheless, Warshak claims
ALIENATION SYNDROME (2d ed. Creative Therapeutics this publication is peer-reviewed. Warshak, Current
1998) with Gardner, Differentiating, supra note 33. Controversies, supra note 29, at 29.
255 271
Gardner, Family Therapy, supra note 142, at 206. Gardner, Judges, supra note 124, at 26; Telephone
256
Id. interview, Pat Judge, Editor, New Jersey Family Lawyer
257
Richard Warshak, Dedication to Richard A. Gardner, (June 14, 2004). Published by the Camden County
M.D., AM. J. OF FAM. THERAPY, 32, 77 (2004) [herein- Family Law Committee. Articles are edited only for
after Warshak, Dedication]. grammar and citation verification as in law review
258
Gardner, Judiciary, supra note 31, at 39; Gardner, journals; no scientific or panel review is involved.
272
Empowerment, supra note 36; Gardner, Courts, supra note Gardner, Legal and Psychotherapeutic Approaches,
246. supra note 141, at 14; Present Editor District Judge
259
American Journal of Forensic Psychology, <http:// Leben specified that this journal “is not ‘peer-reviewed’
www.forensicpsychology.org/journalpg.html> (last in the way that scientific or social-science journals are.”
visited May 25, 2004). Instead, published articles receive the kind of editorial
260
Gardner, Judiciary, supra note 31, at 58; see review that is applied by student editors to law review
Goldenberg & Nancy, supra note 89, at 7, n.11. publications. Judge Leben is “certain” that no psycholo-
261
Gardner, Judiciary, supra note 31. gists would have reviewed the work on behalf of Court
262
Gardner, Guidelines, supra, note 239; Gardner, Review prior to its 1991 publication, and further stated
Recommendations II, supra note 34. that, had he been editor, he would not have published
263
The Hawarth Press, Inc., <h t t p : / / w w w . “an article by Mr. Gardner, had [he] been the editor,
h a w o r t h p r e s s i n c . c o m / w e b / J D R> (last visited May 25, because of the lack of acceptance of his work in the
2004). psychological community.” Email correspondence, from
264
The Hawarth Press, Inc., Manuscript Submission District Court Judge Steve Leben (June 9, 2004);
Information, <http://www.hawarthpressinc.com/journals> American Judges Association, <http://aja.ncsc.dni.us>
(last visited May 25, 2004). (last visited May 25, 2004).

Vol. 26 ♦ No. 1 ♦ Spring 2006

54 Jennifer Hoult

273 280
Email correspondence, from Editor VWB-Verlag FED. R. EVID. 702 (stating that a witness may be
für Wissenschaft und Bildung (June 21, 2004) (stating qualified as an expert “by knowledge, skill, experience,
that these articles were not peer-reviewed). <www.pas- training, or education”).
281
konferenz.de/f/dok/Fly_neu.pdf> (last visited June 6, Gardner claimed that he was promoted to “the
2004). Gardner, Denying and Discrediting, supra note rank of full professor” at Columbia in 1983, at which
240; Richard Gardner, The Parental Alienation Syndrome: time he was required to “satisfy all the same
Past, Present, and Future, in THE PARENTAL ALIENATION requirements necessary for the promotion of full-time
SYNDROME: AN INTERDISCIPLINARY CHALLENGE FOR academicians.” Misperceptions versus Facts, <h t t p : //
PROFESSIONALS INVOLVED IN DIVORCE (W. von Boch- rgardner.com/refs/misperceptions_versus_facts.html> (last
Gallhau, U. Kodjoe, W Andritsky, and P. Koeppel, eds., visited April 21, 2004). According to Columbia, these
2003) [hereinafter Gardner Past, Present, and Future]; claims are untrue. Columbia University Bulletin, <http:
Das Povental Alienation Syndrom, <http://www.vwb- //www.cait.cpmc.columbia.edu:88/dept/ps/bulletin/bull004
verlag.com/Katalog/m202.html> (last visited June 22, 4.html> (last visited April 8, 2001).
282
2004) and <www.pas-konferenz.de> (last visited June See People v. Fortin, 706 N.Y.S.2d 611, 612(N.Y.
11, 2004). Co. Ct.) (2000); State v. Stowers, 690 N.E.2d 881, 885
274
Gardner, Child Custody, supra note 30, at 637–46; (Ohio 1998); Tungate v. Commonwealth, 901 S.W.2d
Warshak, Dedication, supra note 259, at 77 (referencing 41, 42 (Ky. 1995); Stephen L.H. v. Sherry L.H., 465
Gardner’s invitation to submit articles for this publica- S.E.2d 841, 846 (W. Va. 1995); State v. Redd, 642
tion). The original editor’s preface does not mention A.2d 829, 831 (Del. Super. Ct. 1993); Ochs v.
any peer-review, and states that “the editors certainly Martinez, 789 S.W.2d 949, 958.
283
do not [agree with all of the theories included].” One student described him as a “leading child
Richard Gardner, Preface, in BASIC HANDBOOK OF psychiatrist” solely based on his self-published biog-
CHILD PSYCHIATRY, Vol. I, xiii, at xiii (J.Noshpitz, ed. raphy. McGlynn, supra note 89, at 532–33, fn.79.
284
1979). Faculty Handbook, Instructional Titles, <http://
275
Email correspondence, from editor VWB-Verlag www.columbia.edu/cu/vpaa/fhb/c3/factitle/html> (last
für Wissenschaft und Bildung (June 21, 2004) (stating visited April 2, 2004).
285
the book was not peer-reviewed); Gardner, Sollten Qualifications of Richard A. Gardner, M.D. For
Gerichte, supra note 243 (citing original publication in Providing Court Testimony, <http://www.rgardner.
AM. JRNL. OF FORENSIC PSYCHOL. 19(3)(2001)); com/pages/cvqual.html> (last visited April 21, 2004).
286
Parental Alienation Syndrome, <www.vwb-verlag.com/ Columbia University Bulletin, <http://www.cait.
Katalog/m117.html> (last visited June 9, 2004). cpmc.columbia.edu:88/dept/ps/bulletin/bull0044.html>
276
Gardner, Three Levels, supra, note 242. I was unable (last visited April 8, 2001); Bruch, supra fn 22, at 534–
to locate this article elsewhere by searching the internet 535 (Fall 2001).
287
and the APA PyscInfo database on the title. <http:// Summary of Curriculum Vitae, <http://www.
www.apa.org/psycinfo/about/covinfo.html> (last visited rgardner.com/pages/cvsum.html> (last visited April 21,
June 11, 2004); compare Gardner, Three Levels, supra 2004).
288
note 242; Gardner, Differential Diagnosis, supra note Columbia gives volunteers the title of “Clinical
131 (DDC Chart). Professor.” Gardner was thus a Columbia Professor,
277
Richard Gardner, The Parental Alienation Syndrome albeit not a tenured or full Professor. Bruch supra fn 22,
and the Corruptive Power of Anger (in press) (2004) at 535, fn. 26; Columbia University Bulleting, <h t t p : / /
[hereinafter Gardner, Anger]. There is no record of this ww w . ca it. cpm c. col um bia .e d u: 88 / de pt / p s/ bull et in /
article on the Internet, in the APA PyscInfo, or on the b u l l 0 0 4 4 . h t m l> (last visited April 8, 2001). Clinical
Library of Congress website. PsychInfo, <http://www. Professors are unpaid volunteers who have one-year,
apa.org/psycinfo/about/covinfo.html> (last visited June renewable appointments. Clinical Professors are
11, 2004); Library of Congress, <http://www.loc.gov> appointed for their “bedside teaching” ability rather
(last visited June 15, 2004). than their research. Their contract renewals are based
278
E.g., Gardner, Recommendations, supra note 32; solely on a review of their “bedside teaching,” not
Gardner, Differentiating, supra note 33, at 97; Gardner, research or other qualifications. Telephone Interview
Denial, supra note 33, at 191. with Carolyn Merten, Director, Faculty Affairs,
279
E.g., Gardner, Recommendations, supra note 32; Columbia University College of Physicians and
Gardner, Differentiating, supra note 33, at 97; Gardner, Surgeons (Apr. 12, 2004). Clinical Professors “permit
Denial, supra note 33, at 191. students to observe their practice,” but “[u]nlike the
title [of] Professor of Clinical Medicine . . . [the title]
indicates neither full faculty membership nor research

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 55

accomplishment.” Bruch supra fn 22, at 535, fn. 26. VIOLENCE AND THE FAMILY, supra note 108, at 12.
Full Professors are “scholars and teachers . . . who are Gardner’s checklist purports to distinguish true and
widely recognized for their distinction.” Faculty false abuse, and assumes that child abusers are mostly
Handbook, Instructional Titles, <http://www.columbia. psychopathic, unemployable, impulsive, and angry.
edu/cu/vpaa/fhb/c3/factitle.html> (last visited Apr. 2, Gardner, Differentiating, supra note 33. However,
2004). Since Clinical Professors are ineligible for studies of sex offenders show that they may not be
tenure, they are never “full professors.” Id. While full identified based on these factors. See, e.g., Neil
Professors teach students of varying levels, the Dean of Malamuth, Criminal and Noncriminal Sexual Aggressors:
the Faculty of Medicine at Columbia asserted that Integrating Psychopathy in a Hierarchical-Mediational
Gardner had never taught undergraduates, “nor would Confluence Model, in SEXUALLY COERCIVE BEHAVIOR:
he be asked to do so.” Letter from Herbert Pardes, Vice UNDERSTANDING AND MANAGEMENT, 33 (Robert
President for Health Sciences and Dean of the Faculty Prentky, Eric Janus, & Michael Seto, eds. 2003) at 33–
of Medicine, Columbia University Health Sciences 58 (discussing differences between incarcerated
Division, to Valerie Sobel (Nov. 23, 1999). offenders and those who are not criminally prosecuted);
289
Faculty Handbook, Appointment to Tenure, ANNA SALTER, PREDATORS, PEDOPHILES, RAPISTS, AND
<http://www.columbia.edu/cu/vpaa/fhb/c3/facten.html> OTHER SEX-OFFENDERS, passim (2003) (discussing types
(late visited April 2, 2004). of sex offenders and the difficulties in identifying
290
Daubert v. Merrell Dow Pharm., 509 U.S.579, them); Berliner & Conte, supra note 198.
296
583 (1993) (indicating an expert’s “impressive creden- Summary of Curriculum Vitae, <http://www.
tials” are a positive factor in assessing credibility). rgardner.com/pages/cvqual.html> (last visited April 21,
291
Prior to his suicide in May 2003, Gardner prac- 2004).
297
ticed child psychiatry and adult psychoanalysis. Stuart In response to complaints about Gardner’s work,
Lavietes, Richard Gardner, 72, Dies; Cast Doubt on Abuse Columbia convened a review committee which con-
Claims, N.Y. TIMES (June 9, 2003); Stephanie J. cluded that he “had been careful to qualify any
Dallam, Dr. Richard Gardner: A Review of His Theories conclusions as his own opinion and found no evidence
and Opinions on Atypical Sexuality, Pedophilia, and of fraudulent or unethical research.” Letter from
Treatment Issues, TREATING ABUSE TODAY, at 14 (1998). Herbert Pardes, Vice President for Health Sciences and
Initially ninety-five percent of his work was therapeutic, Dean of the Faculty of Medicine, Columbia University
but by 2000, ninety-eight to ninety-nine percent of his Health Sciences Division, to Valerie Sobel (Nov. 23,
professional work involved forensic analysis and 1999). As long as he did not falsely or “inappropriately
testimony. People v. Fortin, 706 N.Y.S.2d 611, 612 claim that [his views were] facts based on research,”
(2000). Gardner wrote more than 250 books and Gardner did not violate Columbia’s rules on academic
articles with a target audience of “mental health freedom. Id. The Dean of the Faculty of Medicine
professionals, the legal community, divorcing adults acknowledged that many Columbia faculty members
and their children.” Rorie Sherman, Gardner’s Law, disagreed with Gardner’s views, and that the Columbia
N.Y.L.J.. Aug. 16, 1993, at 1, 45–46. His works on faculty viewed Gardner’s theoretical work, not as
child sex abuse were self-published or republications of scholarly research, but as personal opinions they
self-published materials. List of Publications <http:// deemed “offensive to some people.” Id.
298
www.rgardner.com/pages/publist.html> (last visited <http://rgardner.com/ref s/ misperceptions_ vers us_
April 21, 2004). He published many of his works using f a c t s . h t m l> (last visited April 21, 2004). Gardner
his private publishing company, Creative Therapeutics, maintained that PAS had not been discredited by peer-
and maintained a website advertising his materials. review. Id.
299
Dallam, supra note 311, at 15; Richard A. Gardner’s People v. Loomis, 172 Misc.2d 265, 266 (N.Y.
website, <http://www.rgardner.com> (last visited Sept. Co. Ct. 1997).
300
30, 2003). Loomis, 172 Misc.2d at 267, n. 1.
292 301
Berliner & Conte, supra note 198, at 114. In re Marriage of Trainor, No. 91-2355 1996 WL
293
Richard Gardner, “Qualifications of Richard A. 312488 (Wash. Ct. App. June 10, 1996) (unreported
Gardner, M.D. for Providing Court Testimony,” decision affirming award of custody to the mother);
<http://www.rgardner.com/pages/cvqual.html> (last Wiederholt v. Fischer, 485 N.W.2d 442, 536 (Wis. Ct.
visited April 21, 2004). App. 1992) (affirming primary placement of children
294
Id. with the mother); see also Court Rulings Specifically
295
The APA Taskforce notes that use of such non- Recognizing the Parental Alienation Syndrome in the
standard checklists to evaluate child abuse allegations U.S. and Internationally, <http://www.rgardner.
may compromise children’s safety and development. com/refs/pas_legalcites.html>.

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56 Jennifer Hoult

302
Science, medicine, and law share an interest in 23, at 289. In fact, Mosteller specifically notes that new
learning and understanding the facts and phenomena science that claims to diagnose fault, requires
we call truth. Once a scientific or medical truth is particularly heightened scrutiny for admissibility.
understood, its description is consistent because truth Robert Mosteller, Syndromes and Politics In Criminal
looks the same from any angle. Gardner’s contradictory Trials and Evidence Law, 46 DUKE L.J. 461, 470–72
statements about PAS thus mark it is as propaganda (1996). Daubert makes no such distinction in its
rather than science. His attitude towards those who did standards for the admiting novel science.
311
not credit his claims has a political tenor. Gardner Fed. R. Evid. 702.
312
deprecates those who attorneys who dispute PAS’s Frye v. United States, 293 F. 1013, 1014; Fed. R.
existence describing them as “deceitful” and “merce- Evid. 704, 169 (2001).
313
naries.” Gardner, PAS v. PA, supra note 113, at 108. Frye, 293 F. at 1014; People v. Loomis, 172 Misc.
Warshak claims that those who oppose the use of PAS 2d 265 (1997) (“It is a matter of common under-
as a term either deny the existence of alienation caused standing and experience” that some parents use their
by a vindictive parent, believe such behavior does not influence to undermine the relationship of a child with
warrant a diagnosis, or believe that all alienation should the other parent by attempting to denigrate the opinion
be given the same descriptor. Warshak, Parental of the child towards the other parent). See also
Alienation, supra note 23, at 281. He ignores those who Weinstein, supra note 99, at 127 (noting that children
recognize that some alienation cases may involve a may feel pressured to take sides in divorce because
vituperative parent and that some forms of alienation parents who are unable to responsibly decide what is
may be pathological, but find PAS scientifically void. best for them place the burden of choice on their
Warshak likens those who refuse to acknowledge the children); People v. Sullivan, 2003 WL 1785921, at
real existence of PAS with those who refused to *13–14 (Cal. App. 6 Dist.) (2003).
314
acknowledge child sex abuse. Id. at 300. However, FED. R. EVID. 702(1), (2).
315
while there is no empirical evidence that PAS exists, Gardner, VIOLENCE AND THE FAMILY, supra note
there is substantial evidence that child sex abuse exists. 108, at 96; Daubert v. Merrell Dow Pharm., 509 U.S.
303
Judges and juries may inappropriately grant 597 (1993) (noting the differing goals of science, which
experts undue credibility due to the biased belief that presents an evolving search for knowledge and truth,
authority figures are reliable and trustworthy. See and law, which seeks finality in determinations about
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 595 past events, noting that this difference inevitably means
(1993); Dahir, supra note 97, at 73–74 (finding that that admissibility for potentially useful scientific
judges rely primarily on general acceptance and expert material may lag behind scientific discovery). Under
qualifications when admitting expert testimony). For an this standard, the admissibility of new science lags
excellent discussion of the problems that arise when behind scientific discovery, using the test of time to
judges fail to assess the scientific validity of evidence ensure reliability. The imperative for swift and final
presented by scientific experts, see Ramsey & Kelly, legal determinations means that some litigants will be
supra note 81. unable to prove allegations relying on novel science that
304
Daubert, 509 U.S. at 590; see also Warshak, has not yet achieved the standard required for
Parental Alienation, supra note 23, at 287–88. admissibility.
305 316
Daubert, 509 U.S. at 590. Berliner & Conte, supra note 198, at 121. An
306
See Warshak, Current Controversies, supra note 29. expert may testify about his opinion about the patient’s
307
See e.g. Berliner & Conte, supra note 198, at 121; treatment without mandating a specific legal outcome,
Scott Sleek, Is Psychologists’ Testimony Going Unheard?, opining that forcing a battered woman to live with the
AM. PSYCHOL. ASS’N MONITER, Feb. 1998 (citing man who appears responsible for harming her may
Robert Geffner, Ph.D). increase the risk of further injuries, or that forcing a
308
Daubert, 509 U.S. at 594 (citing United States v. refugee from a country immersed in civil war to return
Downing, 753 F.2d 1224, 1238 (3rd Cir. 1985). home might expose him to further trauma, just as
309
Daubert, 509 U.S. at 593–94. typing in an ergonomically incorrect posture may
310
Warshak cites Mosteller, claiming that PAS ought increase the risk of future repetitive-motion injury.
to be required to satisfy Daubert only when it is However, such experts cannot mandate legal outcomes
introduced as a test of whether certain conduct, like like refugee status, citizenship, custody, restraining
child sex abuse, has occurred, but not if it is admitted orders, sanctions, custody, or incarceration, even when
“to correct human misunderstandings of the apparently they are consistent with sound medical treatment. The
unusual and therefore suspicious reactions of a trial DSM thus does not mandate that courts deem
participant.” Warshak, Parental Alienation, supra note

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 57

everyone with Down’s or Asperger’s Syndrome non and claims that children’s programmed lies literally
compos mentis. become delusions. Gardner, Judiciary, supra note 31, at
317
See Becker, supra note 100, at 145 (noting that 53. Claims that children are so deluded that they
syndrome testimony purports to diagnose the truth or cannot tell the truth echoe claims that adult survivors
falsity of abuse allegations, thus invading the province of child sex abuse are similarly deluded. See Bowman &
of the fact-finder). Mertz, supra note 152, at 628–31.
318 328
See Misperceptions versus Facts, <http://www. Gardner, VIOLENCE AND THE FAMILY, supra note
rgardner . com /refs/misperceptions_versus_fa cts.html> 108, at 40.
329
(last visited April 21, 2004); Gardner, Differential Id. Gardner expresses outrage at the idea that a
Diagnosis, supra note 131. The DDC mandates that father might be obliged to pay child support without
mothers be legally deprived of liberty, property, and receiving the child’s love and respect in return.
custody. Criminal convicts can be legally deprived of Gardner, Recommendations, supra note 32. However,
liberty and property because their due process rights child support is not the purchase of a relationship, but
have been upheld. By usurping the roles of fact-finder a legal obligation to fiscally support children one has
and judge, the DDC circumvents due process, biologically created to protect the taxpayer fisc from
mandating criminal sanctions against divorced women being burdened by their upbringing. This duty is
under the guise of medical diagnosis and treatment. waived by the state in some situations, such as sperm
319
FED. R. EVID. 704(b). donation. Its policy rational is similar to forcing
320
FED. R. EVID. Advisory Committee’s Note on FRE polluters to pay clean-up costs. Procreation creates a
704, 170 (2001). human being who can burden society’s resources;
321
Child Sexual Abuse Accomodation Syndrome, therefore, it is the obligation of the creators to pay the
which cannot diagnose whether child abuse happened, costs of the child’s care.
330
is compared with Battered Child Syndrome, which GARDNER, TRUE AND FALSE, supra note 27, at
Mosteller points to the need for heightened scientific xxxvii.
331
reliability when a diagnosis is used to show that Id. at xxxiii.
332
criminal conduct has occurred. Mosteller, supra note Id. at 20–30.
333
330, at 470. Id. at 29. This argument is reminiscent of one pro-
322
FED. R. EVID. 704(b). pedophilia advocate’s claim that, “A boy is mature for
323
Gardner, Basic Facts, supra note 28. lust, for hedonistic sex, from his birth on; sex as an
324
People v. Loomis, 172 Misc. 2d 265, 268 (1997). expression of love becomes a possibility from about five
325
Bowman & Mertz, supra note 152, at 578 n.178 years of age.” Stephanie J. Dallam, Science or Propa-
(citing studies showing an increase in child sex abuse ganda? An Examination of Rind, Tromovich and Bauserman
allegations raised during divorce cases from five to ten (1998), in MISINFORMATION CONCERNING CHILD
percent in the early 1980s to thirty percent by 1987— SEXUAL ABUSE AND ADULT SURVIVORS 123 (Charles L.
versus a two percent rate of such reporting in the late Whitfield, Joyanna Silberg & Paul J. Fink eds, 2001)
1980s—and studies finding that between fifty and [hereinafter Dallam, Science or Propoganda?] (citing
eighty percent of incest allegations arising in divorce Edward Brongersma, LOVING BOYS: A MULTIDISCI-
were found to be true). PLINARY STUDY OF SEXUAL RELATIONS BETWEEN ADULT
326
Gardner, VIOLENCE AND THE FAMILY, supra note AND MINOR MALES, Vol. 1, 40 (1986)). Brongersma is
108, at 9 (noting that men perpetrate the majority of a Board member of the Dutch pro-pedophilia journal,
intra-familial violence against both their female spouses Paidika: The Journal for Paedophilia. Dallam, Science or
and their children). Propoganda?.
327 334
Gardner, VIOLENCE AND THE FAMILY, supra note GARDNER, TRUE AND FALSE, supra note 27, at 29.
108, at 40 (noting that when children reject battering Assuming that male sexual arousal and female exposure
fathers, it is common for the batterers and others to to sperm fosters procreation and species’ survival,
blame the mother for alienating the children). This Gardner omitted the fact that approximately thirty-four
defense strategy is similar to sex offenders’ attempts to percent of rapists report impotence, premature ejacula-
blame their victims for their violence. Both defense tion, or retarded ejaculation when they commit sexual
strategies rely heavily on sexist societal biases that assaults, while they report no such sexual dysfunction
assume women fabricate allegations of sexual violence. during consensual sex. A. NICHOLAS GROTH, MEN WHO
In a consent defense, the claim is that sex occurred but RAPE: THE PSYCHOLOGY OF THE OFFENDER, 88 (1979).
it was not a criminal act, while in incest cases, the claim For discussions of the normative effects of trauma, and
is that nothing at all happened. Gardner depicts the effect of the trauma of sexual abuse, see SANDRA L.
custody battles as “he said/she said” evidentiary battles BLOOM & MICHAEL REICHERT, BEARING WITNESS:

Vol. 26 ♦ No. 1 ♦ Spring 2006

58 Jennifer Hoult

VIOLENCE AND COLLECTIVE RESPONSIBILITY, 103–05 89, at 52 (juxtaposing the increase in child sex abuse
(1998); SANDRA BLOOM, CREATING SANCTUARY: allegations and an alleged increase in PAS cases in an
TOWARD THE EVOLUTION OF SANE SOCIETIES, passim argument for presumptive joint custody); Henley, supra
(1997); TRAUMATIC STRESS: THE EFFECTS OF OVER- note 89, at 104, n.143 (citing Gardner’s PAS work
WHELMING EXPERIENCE ON MIND, BODY, AND SOCIETY, claiming that the “vast majority” of children alleging
passim (Bessel A. van der Kolk, Alexander L. McFarlane, sex abuse allegations are “fabricators”); Klein, supra
& Lars Weisaeth eds., 1996); JUDITH LEWIS HERMAN, note 89, at 250 (uncritically citing Gardner’s claim that
TRAUMA AND RECOVERY 7–130 (1992); ANNA SALTER, most claims of child abuse are unfounded); Knowlton
TREATING CHILD SEX OFFENDERS AND Victims, passim & Muhlhauser, supra note 89, at 257 (citing Gardner’s
(1988); JUDITH LEWIS HERMAN, FATHER-DAUGHTER claim that false child abuse allegations and PAS are
INCEST 22–35 (1981). common results of high conflict divorces); Marks, supra
335
GARDNER, TRUE AND FALSE, supra note 27, at 26. note 89, at 209, n.8. (citing Gardner’s work on PAS in
336
Id. a footnote on the difficulty of estimating the actual
337
See Wakefield’s argument that pedophilia in the percent of false sexual abuse allegations).
350
U.S. can only be harmful because of the negative social Lawrence Wright, Remembering Satan, THE NEW
attitude towards pedophilia. Interview: Wakefield & YORKER, May 12, 1993, at 76.
351
Underwager, supra note 252, at 5. Judith Herman, Presuming to Know the Truth: Based
338
GARDNER, TRUE AND FALSE, supra note 27, at 24. on 3 Questionable Propositions, Journalists Treat Memories of
339
Id. Gardner ignored the susbstantial literature that Childhood Abuse as ‘Hysteria’, NEIMAN REPORTS, Spring
demonstrates that adult-child sex is harmful for the 1994, at 43.
352
majority of children. See, e.g., Dallam, Science or VIOLENCE AND THE FAMILY, supra note 108, at 12.
Propaganda?, supra note 335, at 114–16. Ignoring these rates of substantiation, Gardner claimed
340
GARDNER, TRUE AND FALSE, supra note 27, at 32–33. that Child Protective Service workers “overzealously”
341
Id. at 42. err on the side of finding allegations true in order to
342
Gardner, Basic Facts supra note 28 (“[w]hen bona promote a multimillion dollar industry. Gardner,
fide abuse does exist, then the child’s responding Empowerment, supra note 21, at 21.
353
alienation is warranted and the PAS diagnosis is not DOUGLAS W. PRYOR, UNSPEAKABLE ACTS: WHY
applicable”). MEN SEXUALLY ABUSE CHILDREN 2 (1996); VIOLENCE
343
Id (“When true parental abuse and/or neglect is AND THE FAMILY, supra note 108, at 12 (citing rates of
present, the child’s animosity may be justified”). child sex abuse at thirty-four percent for girls and ten to
344
Gardner, Recommendations II, supra note 34 (stating twenty percent of boys); Lois Timnick, The Times Poll;
that PAS in cases involving real abuse results in “far 22% in Survey Were Child Abuse Victims, L.A. TIMES
more deprecation than would be justified” based on the Aug. 25, 1985 (citing rates of child sex abuse at twenty-
bona fide abuse). seven percent for girls and sixteen percent for boys).
345 354
Gardner, DSM-IV, supra note 21, at 2. RICHARD A. GARDNER, SEX ABUSE HYSTERIA:
346
See, generally, Gardner, DSM-IV, supra note 20. SALEM WITCH TRIALS REVISITED 7, 140 (1991) [here-
347
Gardner claims that mothers will normally inafter GARDNER, HYSTERIA]
355
attempt to foster their child’s relationship with abusive GARDNER, TRUE AND FALSE, supra note 27, at xxv,
fathers and that false allegations are characterized by xxxviii; Gardner, Misinformation, supra note 29.
356
mothers who over-protectively attempt to sever the GARDNER, TRUE AND FALSE, supra note 27, at
child’s relationship with his abuser. Gardner, Differen- xxxiii.
357
tiating, supra note 33, at 102. He further claims that Gardner, Denial, supra note 33, at 197; Gardner,
children find police investigations into child sex abuse Misinformation, supra note 29.
358
allegations “ego-enhancing” and that when therapists Gardner, Legal, supra note 144.
359
tell children they are safe because their perpetrators are Id.
360
in prison, this acts, not to quell, but increase the child’s Gardner, Empowerment, supra note 36, at 16.
361
fear. Gardner, Empowerment, supra note 36, at 22, 25. Gardner, Detrimental, supra note 244, at 10–13.
348 362
GARDNER, TRUE AND FALSE, supra note 27, at See, e.g., id.; Gardner, Judges, supra note 124.
363
xxvii. See also Gardner, Judiciary, supra note 31, at 49– Gardner, Empowerment, supra note 36, at 9–10.
364
50 (claiming many fathers are in jail for years based on GARDNER, TRUE AND FALSE, supra note 27, at xxiv.
365
false allegations of abuse); Gardner, PAS v. PA, supra Sherman, supra note 311, at 46. The use of a
note 113, at 107. Gardner’s personal preponderance standard marks
349
Others then cited Gardner for the claim that there SALS as unscientific. Science is not measured based on
was an epidemic of false allegations. Jansen, supra note preponderance, but on truth.

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 59

366 384
Martha Deed, Clinical Conflicts in the Child Sex Bruce Rind, Philip Tromovitch & Robert
Abuse Arena, READINGS: A Journal of Reviews and Bauserman, The Validity and Appropriateness of Methods,
Commentary in Mental Health, 14 (1988). Analyses, and Conclusions in Rind et al. (1998): A Rebuttal
367
Id. of Victimological Critique from Ondersma et al. (2001) and
368
Page v. Zordan, 564 So. 2d 500, 502 (Fla. Dist. Dallam et al. (2001), 127(6) PSYCHOL. BULL. 734
Ct. App. 1990). Another 1990 case cited SALS in dicta (2001); Steven Ondersma, et al., Sex With Children Is
as an example of material that is admissible as expert Abuse: Comment on Rind, Tromovitch, and Bauserman
testimony but provided no support for this statement. (1998),127(6) PSYCHOL. BULL (2001); Stephanie
Ochs v. Martinez, 789 S.W.2d 949, 958 (Tex. App.) Dallam et al., The Effects of Child Sexual Abuse: Comment
(1990). on Rind, Tromovitch, and Bauserman (1998),127(6)
369
People v. Loomis, 172 Misc. 2d 265, 267 (citing PSYCHOL. BULL Psychological Bulletin, 715(2001);
Page v. Zorn, 564 S.O.2d 500 (Fla. App. Ca.) (1990)) <http://thomas.loc.gov/cgi– bin/query/z? c106:H.+Con.
(emphasis in original). +Res.+107>.
370 385
Tungate v. Com.of Kentucky, 901 S.W.2d 41, 42– See, e.g., SALTER, PREDATORS, supra, note 315 at
43 (Ky. 1995). 57–65 (discussing scholarly work minimizing child sex
371
By “pro-pedophilia,” I mean advocacy for abuse and its impact); LEVINE, supra note 394, at xxxi
lessening or eradicating legal accountability for child (arguing that adult-child sex is not inherently harmful);
sex abuse through legalization and social normalization, Rind, Meta-Analytic, supra note 405 (apparently
not encouraging people to become pedophiles. While describing and extrapolating from the author’s personal
Gardner and NAMBLA share pro-pedophilia advocacy experience); O’Keefe, supra note 394 (quoting Levine’s
stances, neither advocates that individuals become positive description of her personal childhood sexual
pedophiles. experience with an adult). Prior to the publication of
372
See, e.g., SALTER, PREDATORS, supra note 315, at their 1998 article, Rind and Bauserman had published
57–65 (discussing scholarly work minimizing child sex in a pro-pedophilia journal. Robert Bauserman, Man-
abuse and its impact); Mark O’Keefe, Controversial Boy Sexual Relationships in a Cross-Cultural Perspective,
Studies Push Change in Society’s View of Pedophilia 2002, PAIDIKA: THE JOURNAL OF PAEDOPHILIA 28 (1989);
Newhouse News Service, <http://www.newhouse. Bruce Rind, Book Review of First Do No Harm: The Sexual
com/archive/story1c032602.html> (last visited Aug. Abuse Industry, 3(12) PAIDIKA: THE JOURNAL OF
16, 2004) (quoting Levine’s positive description of her PAEDOPHILIA 79 (1995). Subsequent to the publication
personal childhood sexual experience with an adult); of the 1998 article, Rind and Bauserman gave the
JUDITH LEVINE, HARMFUL TO MINORS at xxxiii (2002) keynote address at a pro-pedophilia conference. E4
(arguing that adult-child sex is not inherently harmful). INT’L PEDOPHILE AND CHILD EMANCIPATION
373
Dallam, Science or Propaganda? supra, note 335, at NEWSLETTER (Ipce), Jan. 1999, available at <http://
122. www.ipce.info/newsletters/n1_e_4.html>.
374 386
NAMBLA, Who We Are, <http://www.nambla.org> GARDNER, TRUE AND FALSE, supra note 27, at 670.
387
(last visited Feb. 5, 2006). Gardner, Misinformation, supra note 29.
375 388
Id. GARDNER, TRUE AND FALSE, supra note 27, at 42–
376
Id. 43; NAMBLA, supra note 396. The distinction between
377
GARDNER, TRUE AND FALSE, supra note 27, at 670; acceptable and unacceptable adult-child sex posited by
NAMBLA, supra note 376. both Gardner and NAMBLA presumes that some forms
378
GARDNER, TRUE AND FALSE, supra note 27, at 670. of adult-child sex are benign if not beneficial. Both
379
Id. at 42 (emphasis added). ignore the substantial literature finding that sexual
380
GARDNER, HYSTERIA, supra note 356, at 119. contact by adults is overwhelmingly and profoundly
381
Richard A. Gardner, written testimony on harmful to both male and female children. Dallam,
Proposed Revision of the Child Abuse Prevention and Science or Propaganda?, supra note 335, at 114–16. Both
Treatment Act (CAPTA), H.R. 3588, <http://www. Gardner and NAMBLA claim that most adult-child sex
christianparty.net/cptagrdn.htm> (last visited Jan. 28, is benign while acknowledging that some is harmful.
2006). Neither definines the distinction between the two
382
NAMBLA, supra note 376. categories. Certainly, some victims of abuse emerge
383
Bruce Rind, Philip Tromovitch & Robert unscathed, just as some people walk away from car
Bauserman, A Meta-Analytic Examination of Assumed crashes or attempted murders unharmed. The fact that
Properties of Child Sexual Abuse Using College Samples, not all victims of crime are overtly harmed does not
124(1) PSYCHOL. BULL. 22 (1998) [hereinafter Rind, undermine the fact that most victims are severely
Meta-Analytic]. harmed. By creating the illusion of categories of

Vol. 26 ♦ No. 1 ♦ Spring 2006

60 Jennifer Hoult

harmful and benign adult-child sex, Gardner and Gardner claims that PAS is emotional abuse because it
NAMBLA create an appearance of reasonableness for “may . . . produce lifelong alienation from [the] father.”
political advocacy for adults who impose sexual contact Gardner, Effects on Women, supra note 228, at 10–13.
on children. In fact, there is only one category of adult- This claim presumes that pathology is implicit in any
child sex, and while responses vary, most children are child who lacks two parents, presumably including
seriously harmed by such contact. adoptees and children of single parents. The apparent
389
While his works are contradictory and unclear on basis of Gardner’s complaint is the loss of consortium
this point, Gardner seems to distinguish between non- for the father. He thus advocates that a child’s rejection
penetrative sexual acts and rape, deeming the former of his father eradicate the father’s obligation to provide
“inconsequential” and the latter “abusive.” Gardner, child support. Gardner, Legal and Psychotherapeutic, supra
Child Custody, supra note 30, at 643 (claiming a venge- note 144; Gardner, Judiciary, supra note 31, at 39–40
ful parent may “exaggerate a nonexistent or inconse- (claiming poisoning a child against a loving parent is
quential sexual contact and build up a case for sexual child abuse and that, by failing to protect children from
abuse”); GARDNER, HYSTERIA, supra note 356, at 115 PAS–inducing parents, the courts are complicit in child
(distinguishing “sexual fondling of children” from “rape abuse).
399
and other forms of physically destructive sexual Gardner, Family Therapy, supra note 142, at 200.
400
encounters”). See McNeely, supra note 88, at 894 n.15 (claiming
390
NAMBLA, supra note 376. that the effect of gender stereotypes on custody
391
GARDNER, TRUE AND FALSE, supra note 27, at 42. disputes harms the father-child relationship and the
392
Id. child).
393 401
GARDNER, TRUE AND FALSE, supra note 27, at 676 Gardner, Denial, supra note 33, at 201 (describing
(claiming the determinant of harm caused by adult- the grief of the rejected parents documented in his
child sex is the “social attitude towards these encoun- study of “PAS children” based on interviews with the
ters”); GARDNER, HYSTERIA, supra note 356, at 115 alienated parents).
402
(stating that “sexual fondling of children” is an ancient Gardner, Child Custody, supra note 30, at 642
and normative social tradition). (claiming that “[t]he parent who expresses neutrality
394
GARDNER, HYSTERIA, supra note 356, at 118 regarding visitation is basically communicating criticism
(stating that “there is a bit of pedophilia in every one of of the noncustodial parent,” and that neutrality can be
us. There is no question that an extremely common used to “foster and support alienation”); Schutz, 522
reaction to the accused pedophilic is: ‘There but for the So. 2d at 875 n.3 (citing the above claim in support of
grace of God go I.’”). an order that the mother make affirmative, positive
395
Courts may use punitive measures towards women statements about her ex-husband).
403
who violate patriarchical norms. Hanson v. Spolnik, Warshak, Parental Alienation, supra note 23, at
685 N.E.2d 71, 83 (Ind. Ct. App. 1997) (dissent) 290. Gardner similarly espoused the deliberate circum-
(noting that by granting sole physical and legal custody vention of legal admissibility standards. Gardner, DSM-
to the father, denying mother visitation for sixty days, IV, supra note 21, at 10 (advising practitioners to use
then allowing only two hours of weekly visitation, the alternate DSM diagnoses to circumvent admissibility
court had effectively and impermissibly denied the bars in order to present evidence of PAS); Gardner,
mother her parental rights). PAS v. PA, supra note 113, at 112 (describing practice
396
Gardner, Empowerment, supra note 36, at 27 of testifying about PAS without naming it as such).
(calling PAS children “uncivilized,” “psychopathic,” Expert testimony promoting PAS may involve routine
and disrespectful of authority). misrepresentation of fact. See, e.g., In Re Marriage of
397
LINDA G. MILLS, THE HEART OF INTIMATE ABUSE: Bates, 819 N.E.2d 714, 720 (Ill. 2004) (expert witness
NEW INTERVENTIONS IN CHILD WELFARE, CRIMINAL Christopher Barden testified that PAS is “generally
JUSTICE, AND HEALTH SETTINGS 12 (1998) (citing accepted in the relevant scientific community,” citing
studies by Littleton, Mahoney, and Walker showing peer-review publications submitted by Dr. Richard
that fifty percent of American women are victims of Gardner and other authors describing and authenti-
domestic violence). Twenty-five percent of girls and ten cating PAS despite the fact that PAS has never been
percent of boys are victims of child sex abuse, primarily “authenticated.” He stated that “the concept of PAS is
within their families. PRYOR, supra note 375, at 2 not novel, having been first referenced in 1994 by the
(extrapolating from various studies). American Psychological Association” omitting the fact
398
Gardner, Denial, supra note 33, at 201 (“I consider that the APA’s 1994 “reference” to PAS was merely an
losing a child because of PAS to be more painful and inclusion of Gardner’s self-published books on a list of
psychologically devastating than the death of a child”).

Children’s Legal Rights Journal

Evidentiary Admissibility of Parental Alienation Syndrome 61

publications and omitting the APA’s 1996 and 2005 and 1988 in one New York case, and no cases in New
statements about PAS). Hampshire in 1996.
404 416
Mosteller, supra note 330, at 501–02 (arguing that A LEXIS search on these party names between
“trash” syndrome evidence is inadmissible both due to January 1, 1980 and January 1, 2004 yields no
its lack of scientific support and its purpose in documents in any state or federal court.
417
diagnosing wrongdoing). A LEXIS search for “rosen w/s edward!” in N.Y.L.J.
405
Leo Tolstoy, Anna Karenina 3 (Constance Garnett between January 1, 1990 and January 1, 1992 yields no
Trans., Random House 1939) (1977) (“Happy families mention of this case. A LEXIS search on these party
are all alike; each unhappy family is unhappy in its own names between January 1, 1980 and January 1, 2004
way”). yields no so-named case in any state or federal court.
406 418
Although Karen B. v. Clyde M. and Karen “PP” v. A LEXIS search on these party names in all state
Clyde “QQ” are decisions in the same case, I have and federal courts between January 1, 1980 and
followed Gardner’s dual listing since both decisions January 1, 2004 yields no documents.
419
were reported. A LEXIS search on these party names in all state
407
Id. and federal courts between January 1, 1980 and
408
A LEXIS search on these party names in Alabama January 1, 2004 yields three unpublished decisions
between January 1, 2000 and January 1, 2002 yields without written opinions: Popovice v. Popovice, 766
one unpublished decision: Berry v. Berry, 822 So. 2d A.2d 897 (Pa. Super. Ct. 2000) (unpublished table
491 (Ala. Civ. App. 2000). dcision), Popovice v. Popovice, 754 A.2d 30 (Pa. Super.
409
A LEXIS search on these party names yields no Ct. 2000) (unpublished table decision), and Popovice
documents in any state or federal court between v. Popovice, 706 A.2d 1266 (Pa. Super. Ct. 1997)
January 1, 1980 and January 1, 2004. (unpublished table decision).
410 420
A LEXIS search on these party names in Florida A LEXIS search on these party names in all state
between January 1, 2000 and January 1, 2002 yields and federal courts between January 1, 1996 and
one published decision without a written opinion: January 1, 1999 yields no so-named case. A LEXIS
McDonald v. McDonald, 784 So. 2d 1119 (Fl. Dist. search on these party names in Virginia between
Ct. App. 2001) (mem. per curiam). January 1, 1980 and January 1, 2004 yields no so-
411
A LEXIS search on these party names yields no named case.
421
documents in any state or federal court between A LEXIS on these party names in Washington
January 1, 1995 and January 1, 2002. state between January 1, 1980 and January 1, 2004
412
A LEXIS search on these party names in Florida yields one table decision without written opinions and
between January 1, 1980 and January 1, 2004 yields one published decision with a written opinion (none in
one unpublished decision: Blackshear v. Blackshear, 1993): In re Marriage of Rich, 922 P.2d 97 (Wash.
693 So. 2d 35 (Fla. Dist. Ct. App. 1997) (per curiam) 1996) (unpublished table decision) and In re Marriage
(unpublished table decision). of Rich, 907 P.2d 1234 (Wash. Ct. App. 1996)
413
A LEXIS search on these party names in all state (reconsideration of visitation order for paternal
and federal jurisdictions between January 1, 1980 and grandparents making no reference to alienation or
January 1, 2004 yields two unpublished decisions: PAS).
422
Tetzlaff v. Tetzlaff, 763 N.E.2d 778 (Ill. 2001) As of March 12, 2004.
(unpublished table decision) and In re Marriage of
Tetzlaff, 800 N.E.2d 888 (Ill. App. Ct. 2001)
(unpublished table decision). Neither of these decisions
was issued in the court or on the date Gardner cites.
The search also yields one published opinion: In Re
Marriage of Tetzlaff, 711 N.E.2d 346 (Ill. App. Ct.
1999) (dismissal of appeal for attorney’s fees, making
no reference to alienation or PAS).
414
A LEXIS search on these party names yields no
documents in Louisiana between January 1, 1980 and
January 1, 2004.
415
A LEXIS search on these party names between
January 1, 1980 and January 1, 2004 yields five
published decisions without written opinions in 1985

Vol. 26 ♦ No. 1 ♦ Spring 2006