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Parental Alienation Syndrome: Frye v Gardner in the Family Courts (Part 1 of 2)

Parental Alienation Syndrome: Frye v Gardner in the Family Courts (Part 1)

by Jerome H. Poliacoff, Ph.D., P.A., Cynthia L. Greene, Esq., and Laura Smith, Esq

By Jerome H. Poliacoff, Ph.D., P.A., Cynthia L. Greene, Esq., and Laura Smith, Esq E-mail:

Marriage and Divorce

In 1990 the marriage rate was just double the divorce rate (approximately 2.4 million marriages and 1.2 million divorces). Following the literally millions of divorces during the preceding decade approximately 35% of the minor children in the United States were affected by the divorce of their parents.

Despite the spousal conflicts leading to divorce, almost ninety per cent of divorcing parents are able to reach a mutual agreement regarding custody and visitation with little or no intervention from the Court. Because the other ten per cent of the divorcing parents cannot agree on custody and visitation issues initially, they are likely not to be able to agree on parenting issues in the future. Courts strive to help these families by creating flexible arrangements that will hopefully work as families grow and change.

Unfortunately the adversarial nature of the system that is supposed to provide relief serves only to become an alternate forum for the expression of conflict.

For instance, Sullivan (FN1) studied sixty-one divorcing families with children over a five year period. After five years many of the parents were still fighting and nearly one third of the children continued to be subject to intense bitterness between the parents.

Children become the prize to be won or lost in what often becomes an escalating conflict. And, the courts, often at a loss as to what determination to make for which children, turn to mental health experts for advice.

With increasing caseloads and limited time to assess a divorcing parent’s claim for designation as either residential or responsible parent the courts have responded to simplistic accusations which cast blame on one parent in order to make it easier for the other parent to prevail.

Notable among the allegations made by counsel in representing their client’s claim for "sole ownership" of the "prize" is that of "parental alienation syndrome". The popularity of such a claim has been enhanced by the prolific writing and public appearances of Richard Gardner, M.D. as originator of this "syndrome" (FN2).

In this article we will challenge both the scientific and legal legitimacy of this syndrome. After first defining "parental alienation syndrome" (PAS) we will review the criteria by which expert testimony may be accepted into evidence and explore the shortcomings of PAS under Frye and Daubert. We will then delineate the mental health expert’s ethical obligation when serving as an expert before the court as it relates to PAS. We will review the relevant case law as it pertains to the admissibility of PAS before the courts. Finally we will offer alternative areas for inquiry into the source of impaired parent child relationships occurring in the context of child custody litigation.


Termination of a spousal relationship without attendant damage to the parental relationship is a difficult task. When one parent refuses to allow the other parent to be involved in the child’s life, conflict ensues and a return to court becomes inevitable. Where one parent sabotages (intentionally or unintentionally) the other parent’s role in the child’s life or a child becomes estranged from a parent the term "parental alienation" is used.

The term has its historical roots in the common law tradition where the tort of alienation of affection was a cause of action against a third party adult who "steals" the affection of the plaintiff’s spouse.

More recently Richard Gardner coined the term "Parental Alienation Syndrome" to describe the situation in which, he asserts, a child is brainwashed solely by an alienating parent’s actions.

Wood (FN3) (1994) notes that in developing the PAS "the criteria Dr. Garner uses to determine whether PAS is present are essentially borrowed from and built upon his earlier – and now widely discredited – objective test for determining whether children were fabricating allegations of sexual abuse, the "Sex Abuse Legitimacy Scale" (SALS).

Gardner believes that PAS arises almost exclusively in the context of child custody disputes. Gardner further asserts that, while a child contributes to the development of the alienation process, the predominant source of alienation is one parent, generally the mother.

Unfortunately, again, too many courts and too many of the mental health professionals upon whom they rely have blithely accepted in toto Gardner’s theoretical writings without the critical examination requisite either under the law or the ethical standards of professional psychological practice.

Before accepting PAS as science in family litigation it behooves both the family practitioner and the court to have a clearer understanding of what is more hyperbole than substance.

Frye v. Daubert: A Consensus Nevertheless

Among the legal tools available to aid the court in determining the value and utility of expert testimony in deciding a particular case are the Federal Rules of Evidence and the Frye rule.

The Frye rule is derived from a 1923 Federal Court of Appeals (Frye v. United States, 293 F. 1013, 1014, D.C. Cir. 1923) decision which holds that for scientific evidence to be admissible in court it must be gathered using techniques that have gained general acceptance in their field.

In 1993 the U.S. Supreme Court issued a decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2792-93,1993) (hereinafter Daubert) that provided a more clear cut, albeit sometimes ambiguous, set of guidelines for the admissibility of scientific expert testimony.

In setting forth the factors that should be considered when determining if a theory or technique qualifies as scientific knowledge that will assist the trier of fact the Court did not forgo Frye. The factors enumerated in Daubert are: (a) Is the theory or technique based on methodology that can or has been tested? (b) Has the theory or technique been the subject of peer review and publication? (c) What is the known or potential rate of error? (d) Does the technique enjoy general acceptance within the scientific community? (the old Frye rule!).

The court held that the Frye rule, including general acceptance as the primary determinant of admissibility of evidence based on scientific techniques, had been superceded by the revised Federal Rules of Evidence.

Rotgers and Barrett (FN4) cogently argue that the Daubert decision (and the Frye decision before it) has "important implications for…psychologists and other health care professionals….whose professions have taken on the mantle of science".

They point out that mental health practitioners (psychologists, psychiatrists), despite the doubtful scientific status of many theories and assessment techniques in the field, have held themselves out to the public (and to the courts) as utilizing scientifically valid theories and methods of practice and therefor should be held to the same standards by courts as other professions that have done the same.

What then are the courts’ standards?

In Daubert the Supreme Court sought to clarify the criteria for the determination of admissibility of expert testimony. According to Rule 702 of the Federal Rules of Evidence "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise".

That the evidence must be reliable is implied by the use in Rule 702 of the term "scientific knowledge". According to the Supreme Court the term "scientific knowledge" "implies a grounding in the methods and procedures of science". In a similar vein "the word ‘knowledge’ connotes more than subjective belief or unsupported speculation". In any case involving scientific evidence "evidentiary reliability will be based on scientific validity".

This approach allowed, in Daubert, sound science (based on sound scientific methodology) to prevail even though it was new science and not yet widely accepted among the scientific community from which it sprang.

Writing in the Journal of the American Medical Association Gold (FN5) and his colleagues warn that the implication for medical (or mental health) practitioners under Daubert , and Frye before it, is "first and foremost….that there is a difference between science and pseudoscience, and that it is the judge’s role to ensure that testimony offered as ‘scientific’ meets a minimum test of validity before it may be put to the jury".

How then does Gardner’s PAS meet the standard of scientific knowledge under the criteria set forth in either Frye or Daubert?

  1. Is the theory or technique based on methodology that can be or has been tested?
  2. There are many competing theories of human behavior on which mental health professionals have drawn in reaching diagnoses and treatment recommendations. There is also a large scientific literature that has addressed empirically testable predictions based on those theories.

    However, many theoretical constructs are presented by clinicians as expert testimony for which there is no scientific validation. Gardner’s PAS is one of these "syndrome" theories for which the scientific basis is non-existent.

    Rotgers and Barrett (Id.) note that "although it is possible to identify common behavior patterns among persons who are known to have suffered traumatic experiences of various types, syndrome theory, and often the testimony based on it, goes well beyond this possibility to state that "all" persons who suffer particular types of trauma show characteristic behaviors".

    These authors go on to cite Gardner’s PAS as the exemplar of "some practitioners (who) have been willing to engage in reverse logic and state that because an individual demonstrated a particular behavior pattern, trauma must have occurred". They go on to acknowledge that the fit between syndrome theories and particular legal questions is often good but, they point out, these theories have not been scientifically tested.

    Referring to the exhaustive and erudite critique of PAS by Wood (Id.) they note further that the lack of scientific testing "makes any conclusions or accounts of events that are based on syndrome theories problematic. Even if the data relied upon are gathered using scientifically valid methods, if the theoretical explanation underlying the data is faulty, the data may be presented in a fashion that misleads the trier of fact".

  3. Has the theory or technique been the subject of peer review and publication?
  4. Berliner and Conte (FN6) (1993) scathingly note "Indeed the entire scale (the SALS) and the Parental Alienation Syndrome on which it is based have never been subjected to any kind of peer review or empirical test".

    Less kind have been comments such as Conte’s (FN7) (Moss, D.C., 1988) when referring to the SALS "…is probably the most unscientific garbage I’ve seen in the field in all my time…to base social policy on something as flimsy as this is exceedingly dangerous".

    Stephanie Dallam (FN8) examined Gardner’s counter-claim that his work has been published in peer-reviewed journals, a list of which is provided at Gardner’s website.

    She reports that two publications were chapters in books, two other articles were published in a newsletter of the American Academy of Psychoanalysis, and the two remaining articles were published in legal journals – none of these six being peer reviewed journals!

    This author’s exploration of Gardner’s website reveals that he cites thirty (30) cases in which PAS has been introduced as evidence before a family court.

    A more thorough investigation reveals that one case (In the Interest of T.M.W., 553 So. 2nd 260, 262, Fla. Dist. Ct. App., 1988) is cited three times! and in fact PAS was not accepted as scientifically valid!

  5. What is the known or potential rate of error?

The known or potential rate of error refers to the psychometric properties of a test or assessment methodology. In developing a predictive measuring tool one is concerned with both the reliability and validity of the instrument or theory.

As defined in classical test theory reliability consists of the extent to which an obtained score (or value or assertion) corresponds to the "true" (or real world) score. Is what is measured being measured accurately (reliably)? Are the results consistent when the same case is examined by different evaluators? The "true" score is an abstraction that can never be known for sure, the obtained score is a statistical measurement of the combination of this unknowable score and some error variance.

The manner in which an estimate of a score’s reliability is derived (parallel form, split half, test-retest, and internal consistency methods), that is, whether it yields scores on which one can rely as providing a true picture of the property being measured, have crucial implications for forensic testimony.

Validity, as classically defined, consists of the extent to which it is known what a test measures.

A test is considered to have face validity if its items have some clear and obvious relationship to the purpose of the test (if for example the test is a measure of depression we would expect to see items like "Are you feeling depressed?" as indicative of it having face validity).

A more important measure would be criterion related validity. This is a measure that consists of the relationship between a test or test score and some other measured (or known) variable.

Substantial correlation between test findings and current status, behavior or condition demonstrates concurrent validity. Substantial correlation between test findings and future events, conditions or behaviors provide evidence of their predictive validity. Finally construct validity consists of the extent to which observed relationships between test findings and present or future events, conditions or behaviors can be conceptualized in terms of a sound theoretical rationale that accounts for both the test findings and the extra-test behaviors or states.

Commenting on the poor test construction of the SALS Berliner and Conte (Id.) commented that "there are no studies which have determined if the Scale can be coded reliably. Many of the criteria a re poorly defined. There have been no scientific tests of the ability of the SALS to discriminate among cases".

In assessing the SALS criteria for reliability Campbell (FN9) (1997) notes that the SALS criteria are "vague and ill defined" and that as a result they invite a wide range of subjective opinion and therefor "Gardner’s criteria cannot support expert testimony in legal proceedings".

Deed (FN10) applied Gardner’s SALS (Sex Abuse Legitimacy Scale), from which PAS theory is derived, to confirmed cases of sexual abuse and found that the SALS produced inaccurate assessments.

Gardner (FN11) himself, in summing up whether PAS should be properly admitted in court, admitted that "PAS is an initial offering and cannot have pre-existing scientific validity".

(d) Does the technique enjoy general acceptance within the scientific community? (the old Frye rule!).

Gianelli (FN12) asserts that the principal justification for the Frye test is that "it establishes a method for ensuring the reliability of scientific evidence". This serves to take the responsibility of determining the validity of a scientific principle away from the trial judge and leaving the determination to experts who know most about it.

In the case of PAS Gardner has based his theory entirely upon the observation of his own patients. It is for the most part self-published which circumvents peer review, and has not attracted wide acceptance in the scientific community.

In refusing to admit PAS into evidence a Florida court (In the Interest of T.M.W., 553 So. 2nd 260, 262 Fla. Dist. Ct. App., 1988) noted that "no determination was made in the order or on the record as to general professional acceptance of the ‘parental alienation syndrome’ as a diagnostic tool".

The Court went on to caution that "when considering the theory of expert testimony…it is vitally important to avoid the confusion engendered by reference to syndromes…At the present time experts have not achieved consensus on the existence of a psychological syndrome…use of the word syndrome leads only to confusion, and to unwarranted and unworkable comparisons to battered child syndrome".

[End of Part 1; Click here for Part 2]

Continue to the next article in the Parental Alienation Syndrome: Frye v Gardner in the Family Courts series