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

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

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:

[Second of Two Parts: Click here for Part 1]

The Expert’s Obligation

For better or worse there is an inherent conflict between the goals of lawyers and the goals of ethical experts: the legal system is adversarial, science is not. Attorneys need partisan experts to persuade the trier of fact, be it judge or jury. Lawyers, according to Champagne and his colleagues (FN13) "seemingly want articulate, partisan experts with integrity".

Sales and Shuman (FN14) argue that "to the extent that ethics governs all scientific and professional behavior – which it does – it is only appropriate that it become the first metric against which to judge the expert witnessing of scientists and professionals".

Sales and Shuman point out that the most obvious case of the applicability of the ethics code to expert witnessing is the obligation to be competent (FN15).

By becoming familiar with the applicable ethical standards governing the professional behavior of psychologists and psychiatrists a more reasoned judgement can be made about the admissibility of PAS in the courtroom. While we rely primarily on the ethical standards for psychologists (FN16) in the following discussion it should be apparent to the reader that these standards speak to expected ethical professional behavior of any designation when one agrees to appear as a mental health expert before the courts.

Section 1.06 Basis for Scientific and Professional Judgements calls for psychologists to "rely on scientifically and professionally derived knowledge when making scientific or professional judgements". Not having met the standards inherent in Daubert and in Frye renders PAS unable to pass muster under this brief, but indispensable, ethical dictum.

Rotgers and Barrett (Id) have made an effort to guide psychologists in their considerations concerning serving as an expert witness. They point out four standards of professional conduct that appear to be clearly applicable to psychologists’ expert testimony that are specifically reinforced by the Daubert decision. These include, in addition to Standard 1.06, the following:

  • Standard 2.02 "Competence and Appropriate Use of Assessments and Interventions" requires psychologists to select assessment instruments on the basis of research indicating the appropriateness of the instruments for the specific issue at hand and further enjoins psychologists from misusing those instruments.
  • Standard 2.04 "Use of Assessment in General and With Special Populations" requires familiarity with the psychometric properties and limitations of assessment instruments used in the practice of psychology.
  • Standard 2.05 "Interpreting Assessment Results" requires psychologists to directly state reservations they may have about the accuracy and limitations of their assessments.

As has been noted in the section above, PAS does not meet the courts’ threshold requirement to qualify as scientific. Clearly then, the offering of PAS to the courts as an explanatory construct, let alone a basis for making recommendation about the future of children’s lives, does not meet the minimal set of ethical standards incumbent on experts appearing before the court.

The Courts View

While there are a few ‘hold out’ jurisdictions which continue to preserve the notion of alienation of affection most states have abolished the cause of action for alienation of affection and consequently a cause of action for parental alienation has effectively been precluded. In their rejection of the construct of alienation of affection various courts have ruled in the following fashion:

The Minnesota Supreme Court, in Larson v. Dunn, 460 N.W. 2nd 39, 45-46 Minn. 1990, rejected an appellate court’s creation of the "Intentional interference with custody rights" noting that "children can be devastated by divorce" and that "the law should not provide a means of escalating intrafamily warfare" but that other remedies exist when a parent or other relative interferes with custody arrangements, and that "creating a tort of this nature is the job of the legislature, not the court".

Florida courts, for instance In the Interest of T.M.W., 553 So. 2nd 260, 262, Fla. Dist. Ct. App. 1989, have noted that there has been no claim of general professional acceptance of PAS as a tool for diagnostic evaluation, and in fact that there is no consensus by experts that such a syndrome even exists.

In Bartanus v. Lis (Bartanus v. Lis, 480 A.2nd 1178, 1181, Pa. Super. Ct. 1984) the court held that a cause of action for alienation of a child’s affection is not recognized in Pennsylvania. In so ruling the court quoted The Restatement (Second) of Torts para 699, "one who, without more, alienates from its parents the affections of a child, whether a minor of full age, is not liable to the child’s parents".

The Missouri Court of Appeals recognized a tort of alienation of affection of a minor or adult child (R.J. v. S.L.J., 801 S.W.2nd 608, 609, Mo. Ct. App. 1991) but in ruling opined that although the mother had a moral duty not to alienate the children’s affections with respect to the father, she did not have a legal duty.

Despite expert testimony by a psychologist who asserted that the situation in question was the" worst case of PAS he had ever seen" a Wisconsin Court of Appeals held that there was "limited research data" to support, as "a successful cure" for children suffering from PAS, the removal of such children from their mother’s custody in affirming the trial court’s refusal to transfer custody to the father (Weiderholt v. Fischer, 485 N.W. 2nd 442, 444, Wis. Ct. App. 1992).

The PAS criteria used by Gardner, as noted above, are essentially borrowed from and built upon his earlier (and now widely discredited) test for determining whether children were fabricating allegations of sexual abuse, the "Sexual Abuse Legitimacy Scale" (SAL Scale) (Id.)

The only appellate court to rule on the admissibility of the SAL Scale held it inadmissible because there was no showing that it had "some reasonable degree of recognition and acceptability among the spectrum of scientific or medical experts in the field" (Page v. Zordan, 564 So. 2nd 500, Fla. Dist. Ct. App. 1990).

Wood (Id.) very appropriately, comments that "although it might be argued that this court properly ignored the PAS testimony, the problem is that the court even admitted it at all. The mere admission of unreliable and untested testimony into evidence in the first place means that courts admitting evidence of this theory may rule on it differently, creating results that range from potentially very dangerous to inconsistent".

Finally, in her comprehensive review of PAS Wood was unable to find a single reported case where PAS testimony was introduced on behalf of the mother.

Assessing the Utility of PAS

Dallam (Id.) exhorts in her review of Gardner’s theories that "all psychological evidence upon which a child’s safety will turn must be subjected to empirical testing".

As we have hopefully made clear, straightforward observation, confirmed by a consensus of experts, reveals that rather than subjecting his theories to scientific review Gardner has published through his own press or in nonscientific journals. Because his theories are based on his clinical observations (not on scientific data) they should be understood in the context of his atypical views concerning parent child relations (For a greater explication on his theories concerning pedophila as a "part of the natural repertoire of human sexual activity" (Richard A. Gardner, M.D., True and False Allegations of Child Sex Abuse, 1992) or that child abuse allegations are "third greatest wave of hysteria" the nation has seen, following the Salem witch trials and the McCarthyite witch hunting for communists in the 1940’s the reader is referred again to the very excellent reviews by Dallam (Stephanie Dallam, The Evidence for Parental Alienation Syndrome: An Examination of Gardner’s Theories and Opinions, Treating Abuse Today, 1998) or Wood (Cherri L. Wood, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 1994).

It would be far better for the courts, in their deliberations as to parental fitness when making custody determinations, to utilize the work of Benjamin D. Garber (FN17). Garber has noted that PAS theory confuses cause and effect, whereas science has demonstrated that a cause can not necessarily be inferred from an effect (In the realm of statistics "correlation does not imply causation". It is often noted, with great fanfare in the press, that fashion hemlines or the winning league in the Super Bowl or the World Series correlate with either a rise or fall in the Dow Jones Industrial average – but that correlation does not imply causation!).

He cautions that it is very easy for a presumption of alienation "to take on a life of its own without proper consideration of the many alternative (and often more likely) causes of a child’s distress during parental separation and divorce".

That parental conflict and the custodial parent’s ability to function have profound impact on children’s adjustment to divorce has been recognized in legal opinions. For instance, In re: Marriage of Carney (Carney, 598 P. 2nd 37, Cal. 1979) the California Court recognized the child’s need for stability in its primary parenting relationship.

Johnston’s (FN18) research finds that where there is high conflict, or evidence of domestic violence, between the parents, children can deteriorate dramatically.

The ambivalence towards or rejection of one parent may be related to any number of factors (FN19) and not necessarily the psychopathology of one parent.

Among the many alternative factors to PAS for an expert to consider are:

  • (1) developmentally normal separation problems,
  • (2) deficits in the non-custodial parent’s skills,
  • (3) oppositional behavior,
  • (4) high-conflict divorce proceedings,
  • (5) other serious emotional or medical problems of one family member,
  • (6) child abuse,
  • (7) inappropriate, unpredictable, or violent behavior by one parent,
  • (8) incidental causes, such as the child’s dislike of a parent’s new roommate or lover,
  • (9) alienation by third parties,
  • (10) the child’s unassisted manipulation of one or both parents, or
  • (11) fears for the absent parent’s welfare.

The value of an expert’s contribution to the courts’ deliberations regarding children’s welfare should be based on clinically sound reasoning formulated from empirically derived data that will serve the best interest of the child and not on unsubstantiated hyperbole.

Footnotes Shortened

FN1: Mathew J. Sullivan, Parental Alienation Processes in Post-Divorce Cases, Association of Family Conciliation Courts Newsletter, Summer 1997, at 4.

FN2: Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sexual Abuse, 1992.

FN3: Cherri L. Wood, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy. L. A. L. Rev. 1367, 1994..

FN4: Frederick Rotgers and Deirdre Barrett, Daubert v. Merrell Dow and Expert Testimony by Clinical Psychologists: Implications and Recommendations for Practice, Professional Psychology: Research and Practice, 1996, at 467-474.

FN5: J. A. Gold, M.J. Zaremski, E.R. Lev and D.H. Shefrin, Daubert v. Merrell Dow: The Supreme Court Tackles Scientific Evidence in the Courtroom, JAMA, 270, 2964.

FN6: L. Berliner and J.R. Conte, Sexual Abuse Evlauations: Conceptual and Empirical Obstacles, Journal of Child Abuse and Neglect, 1993, at 111-125.

FN7: See D.C. Moss, Abuse Scale: Point System for Abuse Claims, American Bar Association Journal, 1988 (December 1).

FN8: Stephanie Dallam, The Evidence for Parental Alienation Syndrome: An Examination of Gardner’s Theories and Opinions, Treating Abuse Today, 1998 (March/April), at 25-34.

FN9: T.W. Campbell, Indicators of Child Sexual Abuse and Their Unreliability, American Journal of Forensic Psychology, 1997, at 5-18.

FN10: R. Sherman, Gardner’s Law, The National Law Journal, 1993, August 16.

FN11: Richard A. Gardner, M.D., Evaluate Child Sex Abuse in Context, N. J.L.J., May 10, 1993 at 16.

FN12: Paul C. Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1205, 1980.

FN13: A. Champagne, D.W. Shuman and E. Whittaker, The use of expert witnesses in American courts, Judicature, 1991, 375.

FN14: Bruce D. Sales and Daniel W. Shuman, Reclaiming the integrity of science in expert witnessing, Ethics and Behavior, 1993, 223.

FN15: Principle A: Competence, and Section 7.02 Forensic Assessment (b) (c) of American Psychological Association, Ethical principles of psychologists and code of conduct, American Psychologist, 1992, 1597.

FN16: American Psychological Association, Ethical principles of psychologists and code of conduct, American Psychologist, V 47, 1597, (1992)

FN17: Benjamin D. Garber, Alternatives to Parental Alienation: Acknowledging the Broader Scope of Children’s Emotional Difficulties During Parental Separation and Divorce, New Hampshire Bar Journal, 1996, at 51-54.

FN18: Janet R. Johnson,

    • Ongoing post divorce conflict: Effects of joint custody and frequent access. Am. J. Orthopsychiatry, 1989, 576;
    • High conflict divorce. Future of children, 1994, 165-174;
    • Children’s adjustment in sole compared to joint custody families and principles for custody decision making, Fam. & Conciliation Cts. Rev., 1995, 415-419.

FN19: Garber, supra note 39 or K.H. Waldren and D.E. Joanis, Understanding and Collaboratively Treating Parental Alienation Syndrome, American Journal of Family Law, 1996, at 121-133.

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

Special thanks to Mark Michelson, Esq. whose ideas and suggestions set in motion this article; and, to Philip Boswell, PhD. for his astute editorial suggestions.

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