Abstract
Since 1985, in jurisdictions all over the United States, fathers have been awarded sole custody of their children based on claims that mothers alienated these children due to a pathological medical syndrome called Parental Alienation Syndrome (“PAS”). Given that some such cases have involved stark outcomes, including murder and suicide, PAS’s admissibility in U.S. courts deserves scrutiny.
This article presents the first comprehensive analysis of the science, law, and policy issues involved in PAS’s evidentiary admissibility. As a novel scientific theory, PAS’s admissibility is governed by a variety of evidentiary gatekeeping standards that seek to protect legal fora from the influence of pseudo-science. This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively. The article further analyzes PAS’s admissibility under the standards defined in Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Kumho Tire Company v. Carmichael, and Rules 702 and 704(b) of the Federal Rules of Evidence, including analysis of PAS’s scientific validity and reliability; concluding that PAS remains an ipse dixit and inadmissible under these standards. The article also analyzes the writings of PAS’s originator, child psychiatrist Richard Gardner—including twenty-three peer-reviewed articles and fifty legal decisions he cited in support of his claim that PAS is scientifically valid and legally admissible—finding that these materials support neither PAS’s existence, nor its legal admissibility. Finally, the article examines the policy issues raised by PAS’s admissibility through an analysis of PAS’s roots in Gardner’s theory of human sexuality, a theory that views adult-child sexual contact as benign and beneficial to thereproduction of the species.
The article concludes that science, law, and policy all support PAS’s present and future inadmissibility
I. Introduction
In jurisdictions throughout the United States, courts have severed maternal contact with chidren based on expert testimony diagnosing mothers with a novel psychological syndrome called Parental Alienation Syndrome (“PAS”) that purportedly results in the alienation of children from their fathers.1 Such cases have led to disturbing outcomes for women and children.2 A Maryland man shot and killed his ex-wife, blaming PAS.3 A Pennsylvania teenager hung himself after a court ordered him into PAS treatment.
4 A North Carolina court incarcerated a teenager who refused to visit her father.5 A New Jersey court ordered an eight-year-old to visit his wife-battering father, ignoring the child’s fear.6 An Indiana court, based on the testimony of an expert who testified to this father’s fitness, granted sole custody to a father whose “emotional problems [were] so severe [that] he [was] totally disabled and unable to work” (despite the fact that this expert never met the father and based his testimony primarily upon notes made by another therapist who also never met the father).7 A New York court granted a father sole custody and suspended the mother’s contact with their two children despite that court’s recognition that the decision would cause “foreseeable emotional upset and possible trauma” to the children.8 In each instance, PAS played a central role despite the syndrome’s dubious scientific basis and lack of evidentiary legitimacy.
First described in 1985 by child psychiatrist Richard Gardner, PAS has had widespread influence in family and criminal courts. Given its link to such stark outcomes, its evidentiary admissibility deserves close examination. This article provides the first comprehensive analysis of PAS’s evidentiary admissibility under the leading standards for the evidentiary admission of novel psychological theories.
Part I defines Parental Alienation (“PA”) and presents Gardner’s definition of Parental Alienation Syndrome (“PAS”).9
Part II analyzes all precedent-setting American case law and law review coverage referencing PAS since 1985, finding that, despite the prominent role PAS has played in the outcome of many cases, precedent currently holds PAS inadmissible and the majority of legal scholarship views PAS negatively.10
Part III analyzes PAS’s admissibility under the leading evidentiary admissibility tests defined in Frye v. United States,11 Daubert v. Merrell Dow Pharmaceuticals,12 Kumho Tire Company v. Carmichael,13 and Federal Rules of Evidence (“FRE”) 702 and 704(b).14 This Part includes an analysis of PAS’s claims of scientific validity and reliability, and an analysis of twenty-three peerreview articles cited by Gardner. I conclude in this Part that PAS is inadmissible under all the leading evidentiary tests because it remains a mere ipse dixit.
Part IV examines policy considerations for PAS’s admissibility.15 Examining PAS’s theoretical roots, I find that PAS is derived from a theory that construes pedophilia and incest as benign, non-abusive conduct, and that mirrors the advocacy positions of pro-pedophilia activists. I conclude that these facts render PAS’s admissibility in legal fora against public policy.
Concluding, I find that science, law, and policy support PAS’s present and future inadmissibility under relevant evidentiary law.16
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