Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases

Family Law Quarterly

Volumn 35, Issue 3, 2001, Pages 527-552

  Bruch, Carol S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0035564340     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (115)

1. Richard A. Gardner, Recent Trends in Divorce and Custody Litigation, ACADEMY F., vol. 29, no. 2, at 3 (American Academy of Psychoanalysis, 1985).
2. RICHARD A. GARDNER, THE PARENTAL ALIENATION SYNDROME xix (2d ed. 1998) [hereafter GARDNER (2D ED.)], quoted in Introductory Comments on the PAS, formerly available at http://www.rgardner.com/refs/ (hereafter: Gardner's website); the current iteration has been lightly reworded and is found on Gardner's website (last updated May 31, 2001 and last visited September 16, 2001) under the title "Basic Facts about the Parental Alienation Syndrome." Precise reading and careful comparisons between sources are required when Gardner articulates his theories; often revised wording entails no change in substance.
3. As to frequency of cases involving sexual abuse, see the careful, comprehensive reports of a major research effort, Nancy Thoennes & Patricia G. Tjaden, The Extent, Nature, and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes, 14 CHILD ABUSE & NEGLECT 151, 160 (1990) ("Less than 2% of the approximately 9,000 families with custody and visitation disputes served by 8 domestic relations courts included in th[is] study involved an allegation of sexual abuse.") (emphasis added). See also DEBRA WHITCOMB, U.S. DEPARTMENT OF JUSTICE, WHEN THE VICTIM is A CHILD 7 (2d ed. 1992) ("As an alternative way of framing the magnitude of this problem, sexual abuse allegations occurred in the range of approximately 2 to 1 per 1,000 divorce filings among the courts [in seven jurisdictions] that were studied") (emphasis added). See also an analysis of Gardner's work by a University of Michigan professor of social welfare, Kathleen Coulbourn Faller, The Parental Alienation Syndrome - What Is It and What Data Support It? 3 CHILD MALTREATMENT 110-15 (1998).
4. As to frequency of cases involving sexual abuse, see the careful, comprehensive reports of a major research effort, Nancy Thoennes & Patricia G. Tjaden, The Extent, Nature, and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes, 14 CHILD ABUSE & NEGLECT 151, 160 (1990) ("Less than 2% of the approximately 9,000 families with custody and visitation disputes served by 8 domestic relations courts included in th[is] study involved an allegation of sexual abuse.") (emphasis added). See also DEBRA WHITCOMB, U.S. DEPARTMENT OF JUSTICE, WHEN THE VICTIM is A CHILD 7 (2d ed. 1992) ("As an alternative way of framing the magnitude of this problem, sexual abuse allegations occurred in the range of approximately 2 to 1 per 1,000 divorce filings among the courts [in seven jurisdictions] that were studied") (emphasis added). See also an analysis of Gardner's work by a University of Michigan professor of social welfare, Kathleen Coulbourn Faller, The Parental Alienation Syndrome - What Is It and What Data Support It? 3 CHILD MALTREATMENT 110-15 (1998).
5. As to frequency of cases involving sexual abuse, see the careful, comprehensive reports of a major research effort, Nancy Thoennes & Patricia G. Tjaden, The Extent, Nature, and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes, 14 CHILD ABUSE & NEGLECT 151, 160 (1990) ("Less than 2% of the approximately 9,000 families with custody and visitation disputes served by 8 domestic relations courts included in th[is] study involved an allegation of sexual abuse.") (emphasis added). See also DEBRA WHITCOMB, U.S. DEPARTMENT OF JUSTICE, WHEN THE VICTIM is A CHILD 7 (2d ed. 1992) ("As an alternative way of framing the magnitude of this problem, sexual abuse allegations occurred in the range of approximately 2 to 1 per 1,000 divorce filings among the courts [in seven jurisdictions] that were studied") (emphasis added). See also an analysis of Gardner's work by a University of Michigan professor of social welfare, Kathleen Coulbourn Faller, The Parental Alienation Syndrome - What Is It and What Data Support It? 3 CHILD MALTREATMENT 110-15 (1998).
6. Compare RICHARD GARDNER, THE PARENTAL ALIENATION SYNDROME 59 (1992) (90% figure) [hereafter GARDNER (1992)] with GARDNER (2D ED.), supra note 2, at xxix-xxxi (stating that no estimates for PAS can be made, but mentioning reports of alignments [a different, much broader phenomenon] in up to 40% of high-conflict custody disputes).
7. Indeed, the PAS definition on his website no longer mentions sex abuse allegations (perhaps in response to critiques challenging Gardner's assertions about the frequency with which unsubstantiated allegations of sexual abuse occur). See Gardner's website; note 3 supra; notes 21 & 46-48 infra. Gardner also now acknowledges that "some abusive neglectful parents are using the PAS explanation . . . as a coverup and diversionary maneuver." Publications and lectures that he promotes as assisting those who need to distinguish true from false allegations of abuse or neglect are, however, strongly reminiscent of his earlier, discredited Sex Abuse Legitimacy Scale (SALS) work, described below. See Richard A. Gardner, Differentiating Between Parental Alienation Syndrome and Bona Fide Abuse-Neglect, 27 AM. J. FAM. THERAPY 97 (1998); notes 21 & 46-48 infra.
8. Two examples are his efforts to distinguish true from false allegations and his blanket advice to judges that they should refrain from taking abuse allegations seriously, even when supported by a therapist who has seen the child. Compare, e.g., Richard A. Gardner, Legal and Psychotherapeutic Approaches to the Three Types of Parental Alienation Syndrome Families - When Psychiatry and the Law Join Forces, 28(1) CT. REV. 14, 18 (Spring 1991) [hereafter Gardner, CT. REV.] ("The court's therapist should have a thick skin and be able to tolerate the children's shrieks and claims of maltreatment. . . . To take the allegations of maltreatment seriously . . . may result in . . . [lengthy or lifelong] alienation."), with the authorities discussed in notes 16, 21 & 46-48 infra and accompanying text (questioning his methodology and discussing the incidence of false allegations).
9. Id. at 16-17 (where his language, although not the substance of his recommendations, has been softened somewhat).
10. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD - SOCIAL AND LEGAL DILEMMAS OF CUSTODY 132-61 (1992). Approximately 25% of families experience substantial legal conflict; "in these families, the parents - the fathers in particular - harbor especially high levels of hostility toward the former spouse." Id. at 159.
11. ADMINISTRATIVE OFFICE OF THE COURTS, FAMILY COURT SERVICES SNAPSHOT STUDY REPORT 1 - OVERVIEW OF CALIFORNIA FAMILY COURT SERVICES MEDIATION 1991: FAMILIES, CASES AND CLIENT FEEDBACK 8-12 (1992), at http://www.courtinfo. ca.gov/courtadmin/aoc/familycourtservices/usrs/report01/r01rpt.htm. In California, mediation is mandatory for all contested custody cases. In this statewide study of most custody mediation sessions conducted by court personnel on a single day, serious issues of child abuse, family violence and substance abuse were raised by the parties in 42% of all mediating families, with an additional 24% raising one of these issues alone. In a review of five federally funded demonstration projects to resolve child access and visitation problems, researchers report, "Nearly half of the access denial cases at every site involve allegations of the child's imperiled safety. Most allegations are made by the residential parent, regardless of sex, against the nonresidential parent and the other people in his/her household. Violent behavior is the only allegation that is consistently leveled with greater frequency against men." Jessica Pearson & Jean Anhalt, Enforcing Visitation Rights - Innovative Programs in Five State Courts May Provide Answers to This Difficult Problem, 33 (2) JUDGES' J. at 3, 40-41 (Spring 1994) (citing four additional studies which also indicate "that safety concerns feature prominently in many visitation disputes").
12. ADMINISTRATIVE OFFICE OF THE COURTS, FAMILY COURT SERVICES SNAPSHOT STUDY REPORT 1 - OVERVIEW OF CALIFORNIA FAMILY COURT SERVICES MEDIATION 1991: FAMILIES, CASES AND CLIENT FEEDBACK 8-12 (1992), at http://www.courtinfo. ca.gov/courtadmin/aoc/familycourtservices/usrs/report01/r01rpt.htm. In California, mediation is mandatory for all contested custody cases. In this statewide study of most custody mediation sessions conducted by court personnel on a single day, serious issues of child abuse, family violence and substance abuse were raised by the parties in 42% of all mediating families, with an additional 24% raising one of these issues alone. In a review of five federally funded demonstration projects to resolve child access and visitation problems, researchers report, "Nearly half of the access denial cases at every site involve allegations of the child's imperiled safety. Most allegations are made by the residential parent, regardless of sex, against the nonresidential parent and the other people in his/her household. Violent behavior is the only allegation that is consistently leveled with greater frequency against men." Jessica Pearson & Jean Anhalt, Enforcing Visitation Rights - Innovative Programs in Five State Courts May Provide Answers to This Difficult Problem, 33 (2) JUDGES' J. at 3, 40-41 (Spring 1994) (citing four additional studies which also indicate "that safety concerns feature prominently in many visitation disputes").
13. See JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP - How CHILDREN AND PARENTS COPE WITH DIVORCE 77-80 (1980) (special vulnerability of 9- to 12-year-olds to alignments, for whom this coping behavior at divorce wards off loneliness, sadness, and more serious depression), 99, 145-46, 233-34 (only a weak correlation between children's anger and parents' quarreling), 237, 253; JUDITH S. WALLERSTEIN, JULIE M. LEWIS & SANDRA BLAKESLEE, THE UNEXPECTED LEGACY OF DIVORCE - A 25 YEAR LANDMARK STUDY 115-17, 125 (2000) (alliances usually involve pre-adolescents or young adolescents in high-conflict cases or when "enmity overshadows good sense"); Janet R. Johnston, Children of Divorce Who Refuse Visitation, in NONRESIDENTIAL PARENTING 109-35, at 124 (Charlene E. Depner & James H. Bray eds., 1993) [hereafter Johnston, Children Who Refuse Visits].
14. See JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP - How CHILDREN AND PARENTS COPE WITH DIVORCE 77-80 (1980) (special vulnerability of 9- to 12-year-olds to alignments, for whom this coping behavior at divorce wards off loneliness, sadness, and more serious depression), 99, 145-46, 233- 34 (only a weak correlation between children's anger and parents' quarreling), 237, 253; JUDITH S. WALLERSTEIN, JULIE M. LEWIS & SANDRA BLAKESLEE, THE UNEXPECTED LEGACY OF DIVORCE - A 25 YEAR LANDMARK STUDY 115-17, 125 (2000) (alliances usually involve pre-adolescents or young adolescents in high-conflict cases or when "enmity overshadows good sense"); Janet R. Johnston, Children of Divorce Who Refuse Visitation, in NONRESIDENTIAL PARENTING 109-35, at 124 (Charlene E. Depner & James H. Bray eds., 1993) [hereafter Johnston, Children Who Refuse Visits].
15. See JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP - How CHILDREN AND PARENTS COPE WITH DIVORCE 77-80 (1980) (special vulnerability of 9- to 12-year-olds to alignments, for whom this coping behavior at divorce wards off loneliness, sadness, and more serious depression), 99, 145-46, 233- 34 (only a weak correlation between children's anger and parents' quarreling), 237, 253; JUDITH S. WALLERSTEIN, JULIE M. LEWIS & SANDRA BLAKESLEE, THE UNEXPECTED LEGACY OF DIVORCE - A 25 YEAR LANDMARK STUDY 115-17, 125 (2000) (alliances usually involve pre-adolescents or young adolescents in high-conflict cases or when "enmity overshadows good sense"); Janet R. Johnston, Children of Divorce Who Refuse Visitation, in NONRESIDENTIAL PARENTING 109-35, at 124 (Charlene E. Depner & James H. Bray eds., 1993) [hereafter Johnston, Children Who Refuse Visits].
16. See JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP - How CHILDREN AND PARENTS COPE WITH DIVORCE 77-80 (1980) (special vulnerability of 9- to 12-year-olds to alignments, for whom this coping behavior at divorce wards off loneliness, sadness, and more serious depression), 99, 145-46, 233- 34 (only a weak correlation between children's anger and parents' quarreling), 237, 253; JUDITH S. WALLERSTEIN, JULIE M. LEWIS & SANDRA BLAKESLEE, THE UNEXPECTED LEGACY OF DIVORCE - A 25 YEAR LANDMARK STUDY 115-17, 125 (2000) (alliances usually involve pre-adolescents or young adolescents in high-conflict cases or when "enmity overshadows good sense"); Janet R. Johnston, Children of Divorce Who Refuse Visitation, in NONRESIDENTIAL PARENTING 109-35, at 124 (Charlene E. Depner & James H. Bray eds., 1993) [hereafter Johnston, Children Who Refuse Visits].
17. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM IV § 297.3: Shared Psychotic Disorder (Folie à Deux) (4th ed. 1994) ("This disorder [in which a second or further person in a close relationship with a primary person comes to share delusional beliefs of the primary person, who already had a Psychotic Disorder, most commonly Schizophrenia,] is rare in clinical settings, although it has been argued that some cases go unrecognized"); Jorg M. Fegert, Parental Alienation oder Parental Accusation Syndrome? - Part 1, KIND-PRAX 1/2001, at 3 (hereafter: Fegert, Part 1); id. Part 2, at KIND-PRAX 2/2001, at 39, 41-42 (hereafter: Fegert, Part 2) (citing a literature search by the Würzburger Klinik of the period from 1877 through 1995 that produced only 69 case reports of children and youth that match the description of folie à deux); Jose M. Silveria & Mary V. Seeman, Shared Psychotic Disorder: A Critical Review of the Literature, 40 CANADIAN J. PSYCHIATRY 380, 390-91 (1995) (reporting a literature search covering 51 years, from 1942 through 1993, that produced 123 cases, of which only 75 met the tests for a shared psychotic disorder under DSM-IV; of these only 61 involved two people, of which 31.1% [19 cases] involved parents and children, with only 5 of these involving children 18 years old or younger). Silveria and Seeman note that whether published cases reports provide a representative sample or reflect frequency is unknown, but they, Fegert (supra note 11), and the DSM (supra this note) all describe the phenomenon as rare. See also WORLD HEALTH ORGANIZATION, INTERNATIONAL STATISTICAL CLASSIFICATION OF DISEASES AND RELATED HEALTH PROBLEMS [ICD- 10], Disorder F24: Induced Delusional Disorder (Folie à deux), at 331 (10th ed. 1992).
18. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM IV § 297.3: Shared Psychotic Disorder (Folie à Deux) (4th ed. 1994) ("This disorder [in which a second or further person in a close relationship with a primary person comes to share delusional beliefs of the primary person, who already had a Psychotic Disorder, most commonly Schizophrenia,] is rare in clinical settings, although it has been argued that some cases go unrecognized"); Jorg M. Fegert, Parental Alienation oder Parental Accusation Syndrome? - Part 1, KIND-PRAX 1/2001, at 3 (hereafter: Fegert, Part 1); id. Part 2, at KIND-PRAX 2/2001, at 39, 41-42 (hereafter: Fegert, Part 2) (citing a literature search by the Würzburger Klinik of the period from 1877 through 1995 that produced only 69 case reports of children and youth that match the description of folie à deux); Jose M. Silveria & Mary V. Seeman, Shared Psychotic Disorder: A Critical Review of the Literature, 40 CANADIAN J. PSYCHIATRY 380, 390-91 (1995) (reporting a literature search covering 51 years, from 1942 through 1993, that produced 123 cases, of which only 75 met the tests for a shared psychotic disorder under DSM-IV; of these only 61 involved two people, of which 31.1% [19 cases] involved parents and children, with only 5 of these involving children 18 years old or younger). Silveria and Seeman note that whether published cases reports provide a representative sample or reflect frequency is unknown, but they, Fegert (supra note 11), and the DSM (supra this note) all describe the phenomenon as rare. See also WORLD HEALTH ORGANIZATION, INTERNATIONAL STATISTICAL CLASSIFICATION OF DISEASES AND RELATED HEALTH PROBLEMS [ICD- 10], Disorder F24: Induced Delusional Disorder (Folie à deux), at 331 (10th ed. 1992).
19. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM IV § 297.3: Shared Psychotic Disorder (Folie à Deux) (4th ed. 1994) ("This disorder [in which a second or further person in a close relationship with a primary person comes to share delusional beliefs of the primary person, who already had a Psychotic Disorder, most commonly Schizophrenia,] is rare in clinical settings, although it has been argued that some cases go unrecognized"); Jorg M. Fegert, Parental Alienation oder Parental Accusation Syndrome? - Part 1, KIND-PRAX 1/2001, at 3 (hereafter: Fegert, Part 1); id. Part 2, at KIND-PRAX 2/2001, at 39, 41-42 (hereafter: Fegert, Part 2) (citing a literature search by the Würzburger Klinik of the period from 1877 through 1995 that produced only 69 case reports of children and youth that match the description of folie à deux); Jose M. Silveria & Mary V. Seeman, Shared Psychotic Disorder: A Critical Review of the Literature, 40 CANADIAN J. PSYCHIATRY 380, 390-91 (1995) (reporting a literature search covering 51 years, from 1942 through 1993, that produced 123 cases, of which only 75 met the tests for a shared psychotic disorder under DSM-IV; of these only 61 involved two people, of which 31.1% [19 cases] involved parents and children, with only 5 of these involving children 18 years old or younger). Silveria and Seeman note that whether published cases reports provide a representative sample or reflect frequency is unknown, but they, Fegert (supra note 11), and the DSM (supra this note) all describe the phenomenon as rare. See also WORLD HEALTH ORGANIZATION, INTERNATIONAL STATISTICAL CLASSIFICATION OF DISEASES AND RELATED HEALTH PROBLEMS [ICD- 10], Disorder F24: Induced Delusional Disorder (Folie à deux), at 331 (10th ed. 1992).
20. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM IV § 297.3: Shared Psychotic Disorder (Folie à Deux) (4th ed. 1994) ("This disorder [in which a second or further person in a close relationship with a primary person comes to share delusional beliefs of the primary person, who already had a Psychotic Disorder, most commonly Schizophrenia,] is rare in clinical settings, although it has been argued that some cases go unrecognized"); Jorg M. Fegert, Parental Alienation oder Parental Accusation Syndrome? - Part 1, KIND-PRAX 1/2001, at 3 (hereafter: Fegert, Part 1); id. Part 2, at KIND-PRAX 2/2001, at 39, 41-42 (hereafter: Fegert, Part 2) (citing a literature search by the Würzburger Klinik of the period from 1877 through 1995 that produced only 69 case reports of children and youth that match the description of folie à deux); Jose M. Silveria & Mary V. Seeman, Shared Psychotic Disorder: A Critical Review of the Literature, 40 CANADIAN J. PSYCHIATRY 380, 390-91 (1995) (reporting a literature search covering 51 years, from 1942 through 1993, that produced 123 cases, of which only 75 met the tests for a shared psychotic disorder under DSM-IV; of these only 61 involved two people, of which 31.1% [19 cases] involved parents and children, with only 5 of these involving children 18 years old or younger). Silveria and Seeman note that whether published cases reports provide a representative sample or reflect frequency is unknown, but they, Fegert (supra note 11), and the DSM (supra this note) all describe the phenomenon as rare. See also WORLD HEALTH ORGANIZATION, INTERNATIONAL STATISTICAL CLASSIFICATION OF DISEASES AND RELATED HEALTH PROBLEMS [ICD-10], Disorder F24: Induced Delusional Disorder (Folie à deux), at 331 (10th ed. 1992).
21. Silveria and Seeman, supra note 11, at 390, 392, report, "Age ranges were similar for both the secondaries (10 to 81 years) and the primaries (9 to 81 years)." There were also no differences in the average ages for primaries and secondaries. Instead, "the age distribution is more in keeping with the expected distribution of age of onset for other nonorganic psychotic disorders in general, which is relatively rare in the very young and the very old." Id.
22. "Resistance to visitation among young children, for example, is a developmentally expectable divorce-specific separation anxiety, which is made more intense by overt conflict between parents" and is unrelated to emotional disturbance of either parents or children. Johnston, Children Who Refuse Visits, supra note 10, at 118. For typical responses to chronically disputing parents at the developmental stages Johnston studied, see id. at 120: "temporary reactions (2- [to] 4-year-olds), shifting allegiances (4- [to] 7-year-olds), loyalty conflicts (7- [to] 10-year-olds), and alignments (9- [to] 12-year-olds)."
23. The reference is, of course, to the story of several blind men, each attempting to describe an elephant. One holds the tail, another the trunk, the third a tusk, and the fourth a leg. Because each describes only his own perceptions, no one provides an accurate description.
24. As Faller points out, Gardner does not attempt to explain why he believes that "perhaps 95% or more" of all allegations of child sexual abuse are true but "the vast majority of allegations in [divorce custody cases] are false." Faller, supra note 3, at 103-04.
25. As to the frequency of unsubstantiated abuse allegations, see the literature collected and analyzed in JOHN E.B. MYERS, A MOTHER'S NIGHTMARE - INCEST: A PRACTICAL LEGAL GUIDE FOR PARENTS AND PROFESSIONALS 133-35, 198-210 (1997); see also id. at 144-45 (innocent misperceptions of innocent behavior); Cheri L. Wood, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 LOY. L.A. L. REV. 1367, 1373-74, 1391-94 (1994).
26. As to the frequency of unsubstantiated abuse allegations, see the literature collected and analyzed in JOHN E.B. MYERS, A MOTHER'S NIGHTMARE - INCEST: A PRACTICAL LEGAL GUIDE FOR PARENTS AND PROFESSIONALS 133-35, 198-210 (1997); see also id. at 144-45 (innocent misperceptions of innocent behavior); Cheri L. Wood, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 LOY. L.A. L. REV. 1367, 1373-74, 1391-94 (1994).
27. Gardner once identified a public prosecutor in a criminal child sex-abuse prosecution, for example, as a mother's "hired gun." He accordingly rated the defendant less likely to be guilty than if the woman had not sought legal assistance. The prosecutor later pointed out the absurdity of Gardner's reasoning, saying, "If you believe your child has been sexually abused, shouldn't you be going to an attorney and seeking medical advice?" Rorie Sherman, A Controversial Psychiatrist and Influential Witness Leads the Backlash against Child Sex Abuse "Hysteria," 15 NAT'L L.J., August 16, 1993, at p. 1. The custodial parent, of course, is left in an untenable position under Gardner's approach. If he or she fails to act in the face of possible abuse, the custodial parent may be guilty of a failure to protect the child, passivity that may lead to a child dependency action or, even, to criminal charges.
28. Compare GARDNER (1992), supra note 4, at 146-47 (such folies à trois with therapists are "a widespread phenomenon") and Gardner, CT. REV., supra note 6, at 18, with Faller, supra note 3, at 102-03 (collecting and critiquing relevant passages from Gardner's work) and Fegert, Part 2, supra note 11, at 41 (reports of a folie à deux or trois are extremely rare). Further, Gardner asserts that when sexual abuse is alleged, these custodial parents and therapists may take personal sexual pleasure in visualizing the alleged activity between the noncustodial parent and the child. See Faller, supra note 3, at 103, 104, 110-11 (collecting quotations and providing research literature to the contrary); see also Gardner, CT. REV., supra note 6, at 16 (attributing allegations to mothers' sexual fantasies). A trial court judge who sat as a family court judge for one year after several years on the criminal law bench is reported as noting PAS in "most of the family law cases he heard" and as cautioning family law judges "to be aware that in addition to the child, professionals upon whom the court relies may also be 'brainwashed' by the alienating parent." Judge Nakahara on PAS and the Role of the Court in Family Law, PAS-NEWSLETTER, January 1999, at unnumbered 2- 3 (News for Subscribers), at http://www.vev.ch/en/pas/bw199901.htm (last visited April 8, 2001).
29. Compare GARDNER (1992), supra note 4, at 146-47 (such folies à trois with therapists are "a widespread phenomenon") and Gardner, CT. REV., supra note 6, at 18, with Faller, supra note 3, at 102-03 (collecting and critiquing relevant passages from Gardner's work) and Fegert, Part 2, supra note 11, at 41 (reports of a folie à deux or trois are extremely rare). Further, Gardner asserts that when sexual abuse is alleged, these custodial parents and therapists may take personal sexual pleasure in visualizing the alleged activity between the noncustodial parent and the child. See Faller, supra note 3, at 103, 104, 110-11 (collecting quotations and providing research literature to the contrary); see also Gardner, CT. REV., supra note 6, at 16 (attributing allegations to mothers' sexual fantasies). A trial court judge who sat as a family court judge for one year after several years on the criminal law bench is reported as noting PAS in "most of the family law cases he heard" and as cautioning family law judges "to be aware that in addition to the child, professionals upon whom the court relies may also be 'brainwashed' by the alienating parent." Judge Nakahara on PAS and the Role of the Court in Family Law, PAS-NEWSLETTER, January 1999, at unnumbered 2- 3 (News for Subscribers), at http://www.vev.ch/en/pas/bw199901.htm (last visited April 8, 2001).
30. Compare GARDNER (1992), supra note 4, at 146-47 (such folies à trois with therapists are "a widespread phenomenon") and Gardner, CT. REV., supra note 6, at 18, with Faller, supra note 3, at 102-03 (collecting and critiquing relevant passages from Gardner's work) and Fegert, Part 2, supra note 11, at 41 (reports of a folie à deux or trois are extremely rare). Further, Gardner asserts that when sexual abuse is alleged, these custodial parents and therapists may take personal sexual pleasure in visualizing the alleged activity between the noncustodial parent and the child. See Faller, supra note 3, at 103, 104, 110-11 (collecting quotations and providing research literature to the contrary); see also Gardner, CT. REV., supra note 6, at 16 (attributing allegations to mothers' sexual fantasies). A trial court judge who sat as a family court judge for one year after several years on the criminal law bench is reported as noting PAS in "most of the family law cases he heard" and as cautioning family law judges "to be aware that in addition to the child, professionals upon whom the court relies may also be 'brainwashed' by the alienating parent." Judge Nakahara on PAS and the Role of the Court in Family Law, PAS-NEWSLETTER, January 1999, at unnumbered 2-3 (News for Subscribers), at http://www.vev.ch/en/pas/bw199901.htm (last visited April 8, 2001).
31. See Richard A. Gardner, March 2000 Addendum (to GARDNER (2D ED.), supra note 2), at http://www.rgardner.com/refs/addendum2.html (last visited September 30, 2001).
32. In 1993 Professor Janet Johnston, a specialist in high-conflict custody disputes with advanced degrees in social work and sociology, gave initial findings from two studies of high-conflict disputes referred to her research projects by the courts. Refusals to visit appeared frequently, especially among a subset of older children who had been exposed to serious abuse or domestic violence. Almost one-third of the total sample of children were in alignments more than 2 to 3 years post-separation, with three-fourths of the 9- to 12-year olds involved in such behavior. Johnston concluded that "when conflicts are overt and involve the children, and when the disputes are intense and prolonged, the children are more likely to submit to this alignment mode of defending and coping" and predicted that "it is highly likely that children will move into alignments as they approach early adolescence, if the parental conflict is ongoing." She contrasted these findings to far more benign findings in a community study of 131 children of recently separated parents. Johnston, Children Who Refuse Visits, supra note 10, at 124. In that less-troubled population, 20% of the children were in alignments (most of them in the 9- to 12-year-old group), but every case resolved itself before the child reached 18, with most resolving within one or two years when the children regretted their earlier behavior. Telephone conversation with Dr. Judith Wallerstein (April 10, 2001). A further report by Johnston concerning children from all these groups (the two court-referred groups and the community study) will appear shortly. See Janet R. Johnston, Parental Alignments and Rejection: An Empirical Study of Alienation in Children of Divorce, _ (forthcoming).
33. In 1993 Professor Janet Johnston, a specialist in high-conflict custody disputes with advanced degrees in social work and sociology, gave initial findings from two studies of high-conflict disputes referred to her research projects by the courts. Refusals to visit appeared frequently, especially among a subset of older children who had been exposed to serious abuse or domestic violence. Almost one-third of the total sample of children were in alignments more than 2 to 3 years post-separation, with three-fourths of the 9- to 12-year olds involved in such behavior. Johnston concluded that "when conflicts are overt and involve the children, and when the disputes are intense and prolonged, the children are more likely to submit to this alignment mode of defending and coping" and predicted that "it is highly likely that children will move into alignments as they approach early adolescence, if the parental conflict is ongoing." She contrasted these findings to far more benign findings in a community study of 131 children of recently separated parents. Johnston, Children Who Refuse Visits, supra note 10, at 124. In that less-troubled population, 20% of the children were in alignments (most of them in the 9- to 12-year-old group), but every case resolved itself before the child reached 18, with most resolving within one or two years when the children regretted their earlier behavior. Telephone conversation with Dr. Judith Wallerstein (April 10, 2001). A further report by Johnston concerning children from all these groups (the two court-referred groups and the community study) will appear shortly. See Janet R. Johnston, Parental Alignments and Rejection: An Empirical Study of Alienation in Children of Divorce, _ (forthcoming).
34. Gardner acknowledges that his SALS was weighted to find some perpetrators innocent who were in fact guilty. Sherman, supra note 17. Although Gardner now disavows responsibility for these applications of his work, he continues to recommend attention to the same factors his early work endorsed. See generally Faller, supra note 3 passim.
35. See, e.g., Gina Keating, Disputed Theory Used in Custody Cases: Children Often Victims in Parental Alienation Syndrome Strategy, PASADENA STAR-NEWS, April 23, 2000, at http://www.canow.org/NOWintheNews/familylaw_news_text.html (last visited April 8, 2001);
36. MOTHERS OF LOST CHILDREN, SAMPLE OF CALIFORNIA FAMILY LAW CASES: CHILDREN TAKEN AWAY FROM SAFE PARENTS, FORCED TO LIVE WITH ABUSIVE PARENTS(2000), available from Mothers of Lost Children, P.O. Box 1803, Davis, CA 95617;
37. KAREN WINNER, PLACING CHILDREN AT RISK: QUESTIONABLE PSYCHOLOGISTS AND THERAPISTS IN THE SACRAMENTO FAMILY COURT AND SURROUNDING COUNTIES (2000) (study commissioned by California Protective Parents Association).
38. See also Christine Lehmann, Controversial Syndrome Arises in Child-Custody Battles, PSYCHIATRIC NEWS, September 1, 2000, at unnumbered 2, at http://www. psych.org/pnews/00-09-01/controversial.html. Paul Fink, M.D., past president of the American Psychiatric Association agrees, stating, "I am very concerned about the influence Gardner and his pseudo-science is having on the courts . . . . Once the judge accepts PAS, it is easy to conclude that the abuse allegations are false, and the courts award custody to alleged or proven perpetrators. . . . Gardner . . . undermines the seriousness of sexual abuse allegations." Id. See generally MYERS, supra note 16, at 8, 135-38.
39. See Karen "PP" v. Clyde "QQ," 602 N.Y.S.2d 709 (App. Div. 1993) (the trial court's reference to a book on PAS that was neither entered into evidence nor referred to by any witness provided no ground for reversal of custody transfer to father and termination of mother's contact with daughter in case where trial court held mother's sex abuse allegation fabricated and child programmed; mother's challenge to termination of contact treated as moot because subsequent trial order permitted visitation; no mention by appellate court of expert testimony, if any). See also Karen B. v. Clyde M., 574 N.Y.S.2d 267 (Fam. Ct. 1991), the deeply troubling trial court opinion in the case.
40. See, e.g., Fegert, Part 2, supra note 11, at 40-42; Johnston, Children Who Refuse Visits, supra note 10, at 132-33.
41. See Krebsbach v. Gallagher, 181 A.D.2d 363 (N.Y. App. Div. 1992) (trial court's order transferring custody against recommendation of psychologist and Law Guardian reversed for lack of support in record).
42. See, e.g., Justice R. James Williams, Should Judges Close the Gate on PAS and PA? 39 FAM. CT. REV. 267, 267 (2001) (referring to "Dr. Richard Gardner, a psychiatrist at Columbia University"); Rola J. Yamini, Note: Repressed and Recovered Memories of Child Sexual Abuse, 47 HASTINGS L.J. 551, 557 n.58 (1996) (referring to "Dr. Richard Gardner, professor of psychiatry at Columbia University"); Joseph Berger, Recanting a Sex Abuse Charge; Family Needs to Heal, but Which Statement Is the Lie? N.Y. TIMES, July 10, 1998, at B1 (referring to "Dr. Richard A. Gardner, professor of child psychiatry at Columbia University Medical School"); Jon Meacham, Trials and Troubles in Happy Valley, NEWSWEEK (US EDITION), May 8, 1995, at 58 (referring to "Richard A. Gardner, a professor of child psychiatry at Columbia University medical school"). Gardner identifies himself by the courtesy academic title he holds from Columbia University (Clinical Professor of Medicine), a title that U.S. medical schools provide to doctors who permit students to observe their practice. Unlike the title Professor of Clinical Medicine, however, the title Gardner enjoys indicates neither full faculty membership nor research accomplishment. See People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct. 2000), reporting Gardner's testimony that his academic appointment is unpaid, and that "at present [Gardner's] therapeutic work actively takes approximately 1 to 2% of his time and the remainder of his time and income are accounted for by forensic analysis and testimony [that increasingly concerns PAS]." (Fortin was a criminal sex abuse case in which Dr. Gardner offered to testify concerning PAS and the credibility of the complaining witness. The court refused to permit his testimony because of a failure to establish general acceptance of PAS within the professional community.)
43. See, e.g., Justice R. James Williams, Should Judges Close the Gate on PAS and PA? 39 FAM. CT. REV. 267, 267 (2001) (referring to "Dr. Richard Gardner, a psychiatrist at Columbia University"); Rola J. Yamini, Note: Repressed and Recovered Memories of Child Sexual Abuse, 47 HASTINGS L.J. 551, 557 n.58 (1996) (referring to "Dr. Richard Gardner, professor of psychiatry at Columbia University"); Joseph Berger, Recanting a Sex Abuse Charge; Family Needs to Heal, but Which Statement Is the Lie? N.Y. TIMES, July 10, 1998, at B1 (referring to "Dr. Richard A. Gardner, professor of child psychiatry at Columbia University Medical School"); Jon Meacham, Trials and Troubles in Happy Valley, NEWSWEEK (US EDITION), May 8, 1995, at 58 (referring to "Richard A. Gardner, a professor of child psychiatry at Columbia University medical school"). Gardner identifies himself by the courtesy academic title he holds from Columbia University (Clinical Professor of Medicine), a title that U.S. medical schools provide to doctors who permit students to observe their practice. Unlike the title Professor of Clinical Medicine, however, the title Gardner enjoys indicates neither full faculty membership nor research accomplishment. See People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct. 2000), reporting Gardner's testimony that his academic appointment is unpaid, and that "at present [Gardner's] therapeutic work actively takes approximately 1 to 2% of his time and the remainder of his time and income are accounted for by forensic analysis and testimony [that increasingly concerns PAS]." (Fortin was a criminal sex abuse case in which Dr. Gardner offered to testify concerning PAS and the credibility of the complaining witness. The court refused to permit his testimony because of a failure to establish general acceptance of PAS within the professional community.)
44. See, e.g., Justice R. James Williams, Should Judges Close the Gate on PAS and PA? 39 FAM. CT. REV. 267, 267 (2001) (referring to "Dr. Richard Gardner, a psychiatrist at Columbia University"); Rola J. Yamini, Note: Repressed and Recovered Memories of Child Sexual Abuse, 47 HASTINGS L.J. 551, 557 n.58 (1996) (referring to "Dr. Richard Gardner, professor of psychiatry at Columbia University"); Joseph Berger, Recanting a Sex Abuse Charge; Family Needs to Heal, but Which Statement Is the Lie? N.Y. TIMES, July 10, 1998, at B1 (referring to "Dr. Richard A. Gardner, professor of child psychiatry at Columbia University Medical School"); Jon Meacham, Trials and Troubles in Happy Valley, NEWSWEEK (US EDITION), May 8, 1995, at 58 (referring to "Richard A. Gardner, a professor of child psychiatry at Columbia University medical school"). Gardner identifies himself by the courtesy academic title he holds from Columbia University (Clinical Professor of Medicine), a title that U.S. medical schools provide to doctors who permit students to observe their practice. Unlike the title Professor of Clinical Medicine, however, the title Gardner enjoys indicates neither full faculty membership nor research accomplishment. See People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct. 2000), reporting Gardner's testimony that his academic appointment is unpaid, and that "at present [Gardner's] therapeutic work actively takes approximately 1 to 2% of his time and the remainder of his time and income are accounted for by forensic analysis and testimony [that increasingly concerns PAS]." (Fortin was a criminal sex abuse case in which Dr. Gardner offered to testify concerning PAS and the credibility of the complaining witness. The court refused to permit his testimony because of a failure to establish general acceptance of PAS within the professional community.)
45. See, e.g., Justice R. James Williams, Should Judges Close the Gate on PAS and PA? 39 FAM. CT. REV. 267, 267 (2001) (referring to "Dr. Richard Gardner, a psychiatrist at Columbia University"); Rola J. Yamini, Note: Repressed and Recovered Memories of Child Sexual Abuse, 47 HASTINGS L.J. 551, 557 n.58 (1996) (referring to "Dr. Richard Gardner, professor of psychiatry at Columbia University"); Joseph Berger, Recanting a Sex Abuse Charge; Family Needs to Heal, but Which Statement Is the Lie? N.Y. TIMES, July 10, 1998, at B1 (referring to "Dr. Richard A. Gardner, professor of child psychiatry at Columbia University Medical School"); Jon Meacham, Trials and Troubles in Happy Valley, NEWSWEEK (US EDITION), May 8, 1995, at 58 (referring to "Richard A. Gardner, a professor of child psychiatry at Columbia University medical school"). Gardner identifies himself by the courtesy academic title he holds from Columbia University (Clinical Professor of Medicine), a title that U.S. medical schools provide to doctors who permit students to observe their practice. Unlike the title Professor of Clinical Medicine, however, the title Gardner enjoys indicates neither full faculty membership nor research accomplishment. See People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct. 2000), reporting Gardner's testimony that his academic appointment is unpaid, and that "at present [Gardner's] therapeutic work actively takes approximately 1 to 2% of his time and the remainder of his time and income are accounted for by forensic analysis and testimony [that increasingly concerns PAS]." (Fortin was a criminal sex abuse case in which Dr. Gardner offered to testify concerning PAS and the credibility of the complaining witness. The court refused to permit his testimony because of a failure to establish general acceptance of PAS within the professional community.)
46. Creative Therapeutics of Cresskill, N.J., is the publishing firm that Gardner established to publish his works. People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct. 2000) (reporting that Gardner's company had published and marketed all but one of his books since 1978).
47. Seeking to refute criticism about the absence of scientifically rigorous reports on PAS, Gardner recently published a report of cases from his own practice and consulting work in which he concluded that PAS was present; the case summaries concern 99 children. Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside With the Alienated Parent? A Follow-up Study, 19(3) AM. J. FORENSIC PSYCHOL. 61 (2001). The article is unsuccessful, however, because in it Gardner confounds criminal, family law, and personal injury cases; omits essential information (e.g., the children's ages and information on the nature of any abuse allegations); includes cases in which he had no direct contact with the child; and treats highly disparate factual and legal issues as equivalents. For example, Gardner tallies criminal and personal injury decisions (where courts were without power to adjust custody orders) as cases in which custody or visitation was not adjusted to account for PAS.
48. An April 2001 electronic search of the Research Libraries Information Network (RLIN), a database that includes the holdings of over 160 major reference libraries, revealed that only 9 of these libraries hold one or both editions of Gardner's book, THE PARENTAL ALIENATION SYNDROME.
49. See Gardner's website for a listing of his appearances. See generally Sherman, supra note 17.
50. See generally Williams, supra note 26, at 269 and n.21 (concerning the websites of fathers' groups).
51. See Gardner's website, supra note 2, for a listing of such appearances.
52. See, e.g., the publications and cases listed on his website. The website identifies negative publications as supporting PAS, claims that discussions of entirely distinct phenomena (such as alignments) are about PAS, claims that cases in which any reference to PAS is made constitute decisions that the syndrome is scientifically and legally accepted, and claims that articles in peer-reviewed law or mediation journals (which do not provide substantive review of his scientific claims) establish the scientific merit of PAS.
53. See Gardner, CT. REV., supra note 6.
54. Id. ("Richard A. Gardner, M.D., is clinical professor of child psychiatry at Columbia University, College of Physicians and Surgeons.")
55. Specifically, Sigmund Freud, Three Contributions to the Theory of Sex: II -Infantile Sexuality, in THE BASIC WRITING OF SIGMUND FREUD 592-93 (A.A. Brill ed., 1938), is cited to support Gardner's statement concerning cases in which sexual abuse is alleged: "I agree with Freud that children are 'polymorphous perverse,' and thereby provide [their] mothers with ample supply of material to serve as nuclei for [the mothers' projection of their own inclinations to pedophilia] onto the father." Additional dangerous hyperbole is typified by Gardner's statement that a child's hatred for one parent is "superficial" and his warning to judges that "tak[ing] the allegations of maltreatment seriously may help entrench the parental alienation syndrome and may result in years of, if not lifelong, alienation." Gardner, CT. REV., supra note 6. Compare the views of reputable scholars set forth in notes 15-18 supra.
56. Specifically, Sigmund Freud, Three Contributions to the Theory of Sex: II - Infantile Sexuality, in THE BASIC WRITING OF SIGMUND FREUD 592-93 (A.A. Brill ed., 1938), is cited to support Gardner's statement concerning cases in which sexual abuse is alleged: "I agree with Freud that children are 'polymorphous perverse,' and thereby provide [their] mothers with ample supply of material to serve as nuclei for [the mothers' projection of their own inclinations to pedophilia] onto the father." Additional dangerous hyperbole is typified by Gardner's statement that a child's hatred for one parent is "superficial" and his warning to judges that "tak[ing] the allegations of maltreatment seriously may help entrench the parental alienation syndrome and may result in years of, if not lifelong, alienation." Gardner, CT. REV., supra note 6. Compare the views of reputable scholars set forth in notes 15-18 supra.
57. A recent friend-of-the-court brief provides an example. See Amici Curiae Brief of Leslie Ellen Shear, et al., Montenegro v. Diaz, Supreme Court of California No. S090699 (2001). Written on behalf of mediators, therapists and California attorneys who have passed a specialist's examination in family law, the brief's arguments in favor of easier custody modification standards (including transfers in custody) include reliance on PAS. Id. at 26-30. Judges have also endorsed PAS. See, e.g., the remarks of Judge Aviva Bobb, Presiding Judge of the Los Angeles Superior Court Family Court, quoted in Keating, supra note 22: [Just because PAS is not supported by scientific evidence] does not mean that it does not exist. One parent is being successful in undermining the child's relationships with the other parent. That is so serious that the child will not be able to bond [sic] with the other parent. . . . And unless that parent stops that behavior, that parent should be monitored by a third party.
58. Even Gardner now concedes that this is a frequent pattern. Keating, supra note 22 (quoting Gardner: "Now that PAS is a widespread diagnosis, many abusers are claiming they are innocent victims of PAS").
59. Most of the cases listed as admitting PAS on Gardner's website fit into this category, and the list is therefore misleading. When PAS is mentioned by a party, an expert or a judge, but no challenge to admissibility or decision on point has occurred, no conclusion concerning admissibility can be drawn; the issue has simply been waived. See, e.g., In re Violetta B., 568 N.E.2d 1345 (Ill. Ct. App. 1991) (PAS mentioned by one witness, but not discussed and irrelevant to decision); Crews v. McKenna k/a Kuchta, 1998 Minn. App. LEXIS 793 (July 7, 1998) ("kernel of authenticity" to 11-year-old's fears, but "some" of child's behavior evidenced PAS); Truax v. Truax k/a Briley, 874 P.2d 10 (Nev. 1994); Loll v. Loll, 561 N.W.2d 625 (N.D. 1997) (state supreme court upheld the trial court's decision that alienation had not been shown; it noted but did not respond to the mother's objection that the son's therapist was "unaware that [the child] . . . was suffering from parental alienation syndrome").
60. In the United States, reliable expert testimony on scientific, technical or other specialized knowledge is generally permitted if it will assist the trier of fact understand the evidence or determine a fact that is in issue. The general-acceptance-in-a-particular-field test first articulated for the federal courts in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) became the test in most state courts as well. PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, 1 SCIENTIFIC EVIDENCE § 1-5 (3d ed. 1999). The U.S. Supreme Court ruled that the Federal Rules of Evidence (adopted in 1975) displaced the Frye test in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Most states have also replaced Frye with Daubert, the new test that considers many factors to determine scientific reliability. Id. §§ 1-7 to 1-8 (comparing the standards). See also id. § 9-5 (on opinion evidence).
61. See e.g., In the Interest of T.M.W., 553 So. 2d 260, 261 (Fla. Dist. Ct. App. 1989) (court's power to order psychological examination at issue, not merits of father's PAS argument or its relevance to adoption case); Bowles v. Bowles, No. 356104, 1997 Conn. Super. LEXIS 2721 (Conn. Super. Ct. Aug. 7, 1997) (court makes orders without regard to PAS theory); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994) (same). See also Pearson v. Pearson, 5 P.3d 239, 243 (Alaska 2000), where the father's PAS assertions were heard at trial and the mother apparently did not challenge admissibility on appeal. The state supreme court upheld the trial court's finding that no alienation was present.
62. See, e.g., In the Interest of T.M.W., 553 So. 2d 260, 261 n.3 (Fla. Dist. Ct. App. 1989); Hanson v. Spolnik, 685 N.E.2d 71, 84 n.10 (Ind. Ct. App. 1997). A powerful concurrence and dissent in Hanson by Judge Chezem details the deficiencies of PAS as a theory and as implemented in this case. The appellate court upheld the trial court's order of a custody transfer (with complete termination of the mother's contact with her 6-year-old daughter for two months) on the basis of testimony provided by a psychologist. The psychologist had not interviewed either parent or the child, but based his analysis instead on notes made by a therapist who, in turn, had never met the father. Judge Chezem's opinion points out that although the father was unable to work due to an emotional disability, neither psychologist had any way of knowing whether the mother's assertions about the father's behavior (she suspected sexual abuse) were true. By one year after the transfer order, the mother was being permitted a six-hour visit once every two weeks. See also Pearson v. Pearson, 5 P.3d 239, 243 (Alaska 2000), where the state supreme court volunteered that PAS (which both parties' experts accepted) is "not universally accepted."
63. See, e.g., Tungate v. Commonwealth, 901 S.W.2d 41 (Ky. 1995) (refusing Gardner's proposed testimony on "indicators for pedophilia" in criminal case because it went to ultimate issue of guilt or innocence and "lacked sufficient scientific basis for the opinions offered").
64. See, e.g., People v. Fortin, 706 N.Y.S.2d 611 (N.Y. Crim. Ct. 2000); Husband Is Entitled to Divorce Based on Cruel and Inhuman Treatment: Oliver V. v. Kelly V., 224 N.Y. L. J., Nov. 27, 2000, at 25 (noting that no testimony was offered to validate PAS and therefore declining to make such a finding). The Fortin court refused to hear Gardner's PAS testimony for the defendant in a criminal case, holding that the defendant "has not established general acceptance of Parental Alienation Syndrome within the professional community which would provide a foundation for its admission at trial." In support of its holding, the court cited a concurring opinion of Chief Judge Kaye of the New York Court of Appeal and several articles, including Wood, supra note 16. It also quoted Gardner's view that "the concept of scientific proof . . . is not applicable in the field of psychology; especially with regard to issues being dealt with in such areas as child custody disputes, and sex abuse allegations," citing Gardner's own writings (on which he was cross-examined). See also Wiederholt v. Fischer, 485 N.W.2d 442 (Wis. Ct. App. 1992) (appellate court, although not discussing validity of PAS, upheld trial court's refusal to transfer custody of "alienated" children to father as his expert urged because only "limited research data" supported theory that removal would provide cure, expert conceded cure was controversial and carried uncertain risks, and testimony from parents and children supported trial court's finding that transfer would not succeed and was unreasonable). But see Kilgore v. Boyd, Case no. 94-7573 (13th Jud. Cir., Fla. Nov. 22, 2000) (transcript of hearing permitting Gardner's PAS testimony), at http://www.rgardner.com/pages/kg.excerpt.html.
65. See, e.g., People v. Fortin, 706 N.Y.S.2d 611 (N.Y. Crim. Ct. 2000); Husband Is Entitled to Divorce Based on Cruel and Inhuman Treatment: Oliver V. v. Kelly V., 224 N.Y. L. J., Nov. 27, 2000, at 25 (noting that no testimony was offered to validate PAS and therefore declining to make such a finding). The Fortin court refused to hear Gardner's PAS testimony for the defendant in a criminal case, holding that the defendant "has not established general acceptance of Parental Alienation Syndrome within the professional community which would provide a foundation for its admission at trial." In support of its holding, the court cited a concurring opinion of Chief Judge Kaye of the New York Court of Appeal and several articles, including Wood, supra note 16. It also quoted Gardner's view that "the concept of scientific proof . . . is not applicable in the field of psychology; especially with regard to issues being dealt with in such areas as child custody disputes, and sex abuse allegations," citing Gardner's own writings (on which he was cross-examined). See also Wiederholt v. Fischer, 485 N.W.2d 442 (Wis. Ct. App. 1992) (appellate court, although not discussing validity of PAS, upheld trial court's refusal to transfer custody of "alienated" children to father as his expert urged because only "limited research data" supported theory that removal would provide cure, expert conceded cure was controversial and carried uncertain risks, and testimony from parents and children supported trial court's finding that transfer would not succeed and was unreasonable). But see Kilgore v. Boyd, Case no. 94-7573 (13th Jud. Cir., Fla. Nov. 22, 2000) (transcript of hearing permitting Gardner's PAS testimony), at http://www.rgardner.com/pages/kg.excerpt.html.
66. Williams, supra note 26, at 275-78.
67. Gina Keating, Critics Say Family Court System Often Amounts to Justice for Sale, PASADENA STAR-NEWS, April 24, 2000, at http://www.canow.org/NOW intheNews/familylaw_news_text.html (last visited 8 April 2001). A similarly outspoken assessment by a well-regarded scholar appears in the American Bar Association's Journal; referring to Gardner's withdrawn Sex Abuse Legitimacy Scale (SALS, the basis for Gardner's PAS theory), Professor Jon R. Conte of the University of Washington Social Welfare Doctoral Faculty remarked, SALS is "[p]robably the most unscientific piece of garbage I've seen in the field in all my time. To base social policy on something as flimsy as this is exceedingly dangerous." Debra Cassens Moss, Abuse Scale, 74 A.B.A. J., Dec. 1, 1998, at 26. Gardner's views on pedophilia and what he calls a wave of hysteria concerning child abuse allegations have been received with equally harsh appraisals elsewhere. See, e.g., Jerome H. Poliacoff & Cynthia L. Greene, Parental Alienation Syndrome: Frye v. Gardner in the Family Courts, at http:// www.gate.net/-liz/liz/poliacoff.htm (a revised version of an article by the same name that originally appeared in the FAMILY LAW SECTION, FLORIDA BAR ASSOCIATION, COMMENTATOR, vol. 25, no.4, June 1999).
68. Gina Keating, Critics Say Family Court System Often Amounts to Justice for Sale, PASADENA STAR-NEWS, April 24, 2000, at http://www.canow.org/NOW intheNews/familylaw_news_text.html (last visited 8 April 2001). A similarly outspoken assessment by a well-regarded scholar appears in the American Bar Association's Journal; referring to Gardner's withdrawn Sex Abuse Legitimacy Scale (SALS, the basis for Gardner's PAS theory), Professor Jon R. Conte of the University of Washington Social Welfare Doctoral Faculty remarked, SALS is "[p]robably the most unscientific piece of garbage I've seen in the field in all my time. To base social policy on something as flimsy as this is exceedingly dangerous." Debra Cassens Moss, Abuse Scale, 74 A.B.A. J., Dec. 1, 1998, at 26. Gardner's views on pedophilia and what he calls a wave of hysteria concerning child abuse allegations have been received with equally harsh appraisals elsewhere. See, e.g., Jerome H. Poliacoff & Cynthia L. Greene, Parental Alienation Syndrome: Frye v. Gardner in the Family Courts, at http:// www.gate.net/-liz/liz/poliacoff.htm (a revised version of an article by the same name that originally appeared in the FAMILY LAW SECTION, FLORIDA BAR ASSOCIATION, COMMENTATOR, vol. 25, no.4, June 1999).
69. See, e.g., Lucy Berliner & Jon R. Conte, Sexual Abuse Evaluations: Conceptual and Empirical Obstacles, 17 CHILD ABUSE & NEGLECT 111, 114 (1993): [The Sexual Abuse Legitimacy Scale (SALS)] is based entirely on the
70. As Faller puts it, Gardner has repudiated the numbers produced by his scale, but not the factors. Although the SALS is no longer listed as a separate publication by Gardner's press, Creative Therapeutics, Faller examines Gardner's more recent Protocols and concludes that "virtually all SALS factors are included in the Protocols, and the parental alienation syndrome figures prominently in the Protocols as a signal that the allegation of sexual abuse is false." Faller, supra note 3, at 105-06.
71. See, e.g., Metza v. Metza, 1998 Conn. Super. LEXIS 2727 (Conn. Super. Ct. 1998) (mother's disparaging remarks "can lead to the Parental Alienation Syndrome"); Blosser v. Blosser, 707 So. 2d 778, 780 (Fla. Dist. Ct. App. 1998) (parties stipulated to admission of psychologist's report that included conclusion that "child did not exhibit any parental alienation syndrome"); In re Marriage of Condon, 73 Cal. Rptr. 2d 33, 39 n.9 (Ct. App. 1998) (mentioning but not discussing father's "declaration and supporting materials [from a psychologist] regarding 'Parental Alienation Syndrome'"; however, suggest skepticism); In re John W., 48 Cal. Rptr. 2d 899, 902 (Ct. App. 1996) (father given custody without discussing expert's reasoning that mother's good faith belief that father had molested child was produced by subtle, unconscious PAS); White v. White, 655 N.E.2d 523 (Ind. Ct. App. 1995) (mother sought to introduce evidence to rebut father's factual assertions but did not question PAS theory). But see Wiederholt v. Fischer, 485 N.W.2d 442 (Wis. Ct. App. 1992) (appellate court upheld trial court's refusal to transfer custody of "alienated" children to father as his expert urged, in part because transfer carried uncertain risks, and testimony from the parents and children supported trial court's finding that transfer was unreasonable); Bowles v. Bowles, 1997 Conn. Super. LEXIS 2721 (Conn. Super. Ct. 1997) (court refuses to order custody transfer to father because "it would be unrealistic and counter-productive"). Cases that Gardner's website lists as examples of PAS's admissibility, however, whether domestic or foreign, rarely address the scientific sufficiency question. See infra note 50 and accompanying text.
72. See, e.g., Johnson v. Johnson, No. AD6182, Appeal No. SA1 of 1997, Family Court of Australia (Full Court) (July 7, 1997), at http://www.austlii.edu.au/au/cases/ cth/family_ct/ (trial court erred in not allowing father to recall expert witness in order to put questions on PAS; no discussion of PAS' scientific sufficience; mother's counsel conceded relevance of PAS but argued unsuccessfully that questions had already been put under another label); Elsholz v. Germany, 8 EUR. CT. H.R. 2000, at para. 53 (deciding that the German courts' refusal to order an independent psychological report on the child's wishes and the absence of a hearing before the Regional Court constituted an insufficient involvement of the applicant in the decision-making process, thereby violating the applicant's rights under Articles 8 and 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms). PAS appears only in the father's arguments, not in the Court's findings or reasoning. See id. paras. 33-35, 43-53, 62-66.
73. As a general matter, custodial households are at a financial disadvantage in the United States, and custodial parents are less likely than noncustodial parents to be represented in custody litigation. MYERS, supra note 16, at 8, vividly describes the costs to the custodial parent and the tactical advantages to the noncustodial parent of pretrial discovery to "keep . . . [the protective parent and counsel] off balance and distract them from the important work of getting ready for court."
74. Similar analytical sloppiness has accompanied other recent fads in American custody law - theories favoring joint physical custody over the objections of a parent, opposing relocation of custodial households, enforcing frequent visitation in high-conflict (even physically abusive) cases, and permitting dispositional recommendations from mediators to courts. In each of these areas, a great many troubling trial court decisions had been entered before leading scholars and practitioners pointed out their flawed reasoning. For a critical assessment of one such more recent innovation see the textual discussion below of so-called special masters.
75. See Anita Vestal, Mediation and Parental Alienation Syndrome: Considerations for an Intervention Model, 37 FAM. & CONCILIATION COURTS REV. 487 (1999).
76. See, e.g., Deirdre Conway Rand, The Spectrum of Parental Alienation Syndrome, AM. J. FORENSIC PSYCHOL., vol. 15, 1997, no. 3, at 23 (Part I) and No. 4, at 39 (Part II), which is replete with inaccurate characterizations of the findings and views of many scholars, including those of Judith Wallerstein, Janet Johnston and Dorothy Huntington. Rand frequently cites works as dealing with PAS although they discuss distinct matters that Rand and others confound with PAS in ways similar to Gardner, as discussed in this article. Accord, telephone conversation with Dr. Judith Wallerstein, April 10, 2001.
77. In May 2001, for example, a national conference on Conflict Resolution, Children and the Courts included both a half-day institute titled "The ABC's of High Conflict Families and Alienated Children" and a panel devoted to "Restoring Relationships Between Alienated Children and their Parents." AFCC 38th Annual Conference, May 9-12, 2001. The July 2001 issue of Family Court Review contains a symposium on PA. As described by the editors, the purpose is "to review the psychological and legal difficulties with Parental Alienation Syndrome . . . and to develop a more complex and useful understanding of situations in which children strongly and unexpectedly reject a parent during or after divorce." Janet R. Johnston & Joan B. Kelly, Guest Editorial Notes, 39 FAM. CT. REV. 246, 246 (2001) [hereafter Johnston & Kelly, Ed. Notes]. In their joint article for the issue, Johnston and Kelly argue for a new formulation that would distinguish alienated children "from other children who also resist contact with a parent after separation but for a variety of normal developmentally expectable reasons (including realistic estrangement from violent, neglectful, or abusive parents)." Id., summarizing Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39 FAM. CT. REV. 249 (2001) [hereafter Kelly & Johnston, The Alienated Child].
78. In May 2001, for example, a national conference on Conflict Resolution, Children and the Courts included both a half-day institute titled "The ABC's of High Conflict Families and Alienated Children" and a panel devoted to "Restoring Relationships Between Alienated Children and their Parents." AFCC 38th Annual Conference, May 9-12, 2001. The July 2001 issue of Family Court Review contains a symposium on PA. As described by the editors, the purpose is "to review the psychological and legal difficulties with Parental Alienation Syndrome . . . and to develop a more complex and useful understanding of situations in which children strongly and unexpectedly reject a parent during or after divorce." Janet R. Johnston & Joan B. Kelly, Guest Editorial Notes, 39 FAM. CT. REV. 246, 246 (2001) [hereafter Johnston & Kelly, Ed. Notes]. In their joint article for the issue, Johnston and Kelly argue for a new formulation that would distinguish alienated children "from other children who also resist contact with a parent after separation but for a variety of normal developmentally expectable reasons (including realistic estrangement from violent, neglectful, or abusive parents)." Id., summarizing Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39 FAM. CT. REV. 249 (2001) [hereafter Kelly & Johnston, The Alienated Child].
79. The following summary is based largely on Kelly & Johnston, The Alienated Child, supra note 55. Disagreement with Gardner concerning custody changes, however, appears in a companion piece, Janet R. Johnston et al., Therapeutic Work With Alienated Children and Their Families, 39 FAM. CT. REV. 316, 316 (2001): The therapeutic approach to alienated children and their families described in this article stands in marked contrast to others that are largely coercive and punitive in nature (e.g., Gardner [2d ed., supra note 2] prescribed primarily court sanctions in mild and moderate cases and change of custody in severe ones). It draws on two decades of specialized knowledge and skill derived from more humane methods of educating, mediating, and counseling . . . . Johnston and her co-authors do, however, accept what they term "judicious and coordinate use of legal constraints and case management together with these therapeutic interventions," and adopt certain coercive recommendations from a companion piece by Sullivan and Kelly. Id. at 316, 330-32, setting forth their own more moderate approach, but relying in part on Matthew J. Sullivan & Joan B. Kelly, Legal and Psychological Management of Cases With an Alienated Child, 39 FAM. CT. REV. 299 (2001).
80. The following summary is based largely on Kelly & Johnston, The Alienated Child, supra note 55. Disagreement with Gardner concerning custody changes, however, appears in a companion piece, Janet R. Johnston et al., Therapeutic Work With Alienated Children and Their Families, 39 FAM. CT. REV. 316, 316 (2001): The therapeutic approach to alienated children and their families described in this article stands in marked contrast to others that are largely coercive and punitive in nature (e.g., Gardner [2d ed., supra note 2] prescribed primarily court sanctions in mild and moderate cases and change of custody in severe ones). It draws on two decades of specialized knowledge and skill derived from more humane methods of educating, mediating, and counseling . . . . Johnston and her co-authors do, however, accept what they term "judicious and coordinate use of legal constraints and case management together with these therapeutic interventions," and adopt certain coercive recommendations from a companion piece by Sullivan and Kelly. Id. at 316, 330-32, setting forth their own more moderate approach, but relying in part on Matthew J. Sullivan & Joan B. Kelly, Legal and Psychological Management of Cases With an Alienated Child, 39 FAM. CT. REV. 299 (2001).
81. The following summary is based largely on Kelly & Johnston, The Alienated Child, supra note 55. Disagreement with Gardner concerning custody changes, however, appears in a companion piece, Janet R. Johnston et al., Therapeutic Work With Alienated Children and Their Families, 39 FAM. CT. REV. 316, 316 (2001): The therapeutic approach to alienated children and their families described in this article stands in marked contrast to others that are largely coercive and punitive in nature (e.g., Gardner [2d ed., supra note 2] prescribed primarily court sanctions in mild and moderate cases and change of custody in severe ones). It draws on two decades of specialized knowledge and skill derived from more humane methods of educating, mediating, and counseling . . . . Johnston and her co-authors do, however, accept what they term "judicious and coordinate use of legal constraints and case management together with these therapeutic interventions," and adopt certain coercive recommendations from a companion piece by Sullivan and Kelly. Id. at 316, 330-32, setting forth their own more moderate approach, but relying in part on Matthew J. Sullivan & Joan B. Kelly, Legal and Psychological Management of Cases With an Alienated Child, 39 FAM. CT. REV. 299 (2001).
82. The definition of alienated child used in the Family Court Review symposium is: one who expressed freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or/fear) toward a parent that are significantly disproportionate to the child's actual experience with that parent. From this viewpoint, the pernicious behaviors of a "programming" parent are no longer the starting point. Rather, the problem of the alienated child begins with a primary focus on the child, his or her observable behaviors, and parent-child relationships. Andrew Schepard, Editorial Notes, 39 FAM. CT. REV. 243, 243 (2001), citing Kelly & Johnston, The Alienated Child, supra note 55, at 251. See generally Williams, supra note 26, at 271-73 (discussing others' varying definitions of parental alienation).
83. The definition of alienated child used in the Family Court Review symposium is: one who expressed freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or/fear) toward a parent that are significantly disproportionate to the child's actual experience with that parent. From this viewpoint, the pernicious behaviors of a "programming" parent are no longer the starting point. Rather, the problem of the alienated child begins with a primary focus on the child, his or her observable behaviors, and parent- child relationships. Andrew Schepard, Editorial Notes, 39 FAM. CT. REV. 243, 243 (2001), citing Kelly & Johnston, The Alienated Child, supra note 55, at 251. See generally Williams, supra note 26, at 271-73 (discussing others' varying definitions of parental alienation).
84. Sullivan & Kelly, supra note 56, at 314, Appendix. See also id. at 300, 308 (role of special masters regarding counseling for child), 309, 310 (sample order compelling parties to sign waivers of confidentiality and agree to share costs, and sample order referring disputed custody issues to special master and prohibiting parents from obtaining attorney-drafted "letters or filed motions" until after special master has held meeting), 311 (referring to delegated authority to a team leader to "codify" decisions as court orders), 315 ("If authorized by the court, the special master can take on . . . interventions that are legally binding . . ."). Compare id. at 303, the authors' only reference to a stipulation, one authorizing "a time-limited special master while an evaluation is going on."
85. See id. at 310 (sample order compelling parties to sign waivers of confidentiality). The authors acknowledge in passing, without explanation, that their recommendation may come under legal or ethical scrutiny. Id.
86. References to expense appear, for example, in Johnston et al., supra, note 56, at 330-31 and Sullivan & Kelly, supra note 56, at 300, 311 (concerning cases in which a family's needs far exceed available resources), and 314 (listing a special master, child's therapist, parents' therapists, co-parent counselor, parents' attorneys, and child's attorney or guardian ad litem as potential "collaborative team" members). Sullivan and Kelly recommend orders splitting all uninsured costs equally between the parties throughout their article.
87. Sullivan and Kelly may have confounded voluntary stipulations with court orders following litigation. Their use of language throughout, particularly in their sample orders, incorrectly suggests that courts may order a person to agree to matters that the law leaves to an individual's choice. See Ruisi v. Thieriot, 62 Cal. Rptr. 2d 766, 771-75 (Ct. App. 1997), which reversed the trial court's order (adopting the recommendation of Dr. Margaret Lee) that a special master be appointed over the objection of one parent and also reversed an order excusing the special master from requirements that the proceedings be reported. Id. at 772. The appellate court held, [T]he authority of the trial court to [designate a separate forum to resolve family law disputes] is constrained by the basic [state] constitutional principle that judicial power may not be delegated. The trial court has no authority to assign matters to a referee or special master for decision without explicit statutory authorization. An invalid reference constitutes jurisdictional error which cannot be waived. . . . When, as here, the parties do not consent to a reference, the authority of the trial court to direct a special reference is limited to particular issues. The trial court has no power to refer issues other than those explicitly specified by statute. . . . Id. at 712-13 (citations omitted). As the court also pointed out, the case did not involve the appointment of a court commissioner. Id. at 772 n.9. Nor did it involve the court's power, upon agreement by the parties, to order a reference to try "any or all of the issues in an action or proceeding, whether or fact or of law." Id. at 773 n.13. (Reversal was also granted in Ruisi v. Thieriot on a second issue as to which the trial court accepted a recommendation from Dr. Lee, who had testified that it would harm an 8-year-old boy's development to move anywhere at all with his mother, even to a nearby county. The child lived with his mother and saw his father on weekends. On remand, in light of In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), which articulated a new standard for relocation cases, the mother and child were permitted to relocate to the East Coast. See generally, Carol S. Bruch & Janet M. Bowermaster, The Relocation of Children and Custodial Parents: Public Policy, Past and Present, 30 FAM. L.Q. 245 (1996).)
88. California evidence law, for example, requires that judges recognize privileges such as patient therapist confidentiality on the motion of any party or, indeed, sua sponte, unless a specific exception applies. CAL. EVID. CODE § 916. Sullivan and Kelly's suggestions that courts order parties to waive such confidentiality asks, at least in the California context in which they practice, that judges violate their statutory duties.
89. See, e.g., S. Margaret Lee & Nancy W. Olesen, Assessing for Alienation in Child Custody and Access Evaluations, 39 FAM. CT. REV. 282, 295-96 (2001) (Dr. Lee was the expert who recommended the appointment of a special master in Ruisi). See also note 61 supra.
90. See, e.g., references to parties' abilities to pay in Johnston et al., supra note 56, at 330-31; Sullivan & Kelly, supra note 56, at 300, 311 (concerning cases in which the family's needs far exceed available resources), 314 (listing the special master, child's therapist, parents' therapists, co-parent counselor, parents' attorneys, and child's attorney or guardian ad litem as potential "collaborative team" members). Sullivan and Kelly repeatedly recommend orders splitting all uninsured costs equally between the parties; this recommendation is likely to cause serious hardship for the lower-earning parent, and it is puzzling that they do not account for that difficulty.
91. Sullivan & Kelly, supra note 56, at 309: "[S]anctions [of an uncooperative parent] that involve the child or custody (sometimes as extreme as hospitalization or incarceration) are rarely based on the best interests of the child."
92. See notes 68-77 infra and accompanying text.
93. Sullivan & Kelly, supra note 56, at 313-34.
94. Johnston et al., supra note 56, at 329.
95. The works reviewed here from the Family Court Review July 2001 symposium and a recent friend-of-the court brief indicate that many mental health professionals hope to do far more than counsel parties. They seek quasi-judicial roles that will authorize them to prescribe the details of life for many parents and children. Most troubling of all is that they wish to do so in a framework that lacks due process projections such as a record, evidentiary privileges, and full access to the courts. See Amici Curiae Brief, supra note 37.
96. WALLERSTEIN & KELLY, supra note 10.
97. Id. at 74-75: The single feeling that most clearly distinguished this group from the younger children was a fully conscious, intense anger. . . . Approximately half of the children . . . were angry at their mothers, the other half at their fathers, and a goodly number were angry at both. In the main children were angry at the parent whom they blamed for the divorce.
98. Gardner has suggested that PAS may be present, albeit in varying severity, in perhaps 40% to 90% of all contested custody cases. Note 4 supra and accompanying text. Wallerstein and Kelly's 20% overall figure deals with alliances rather than PAS and largely reflects the subset of 9- to 12-year olds in a sample of divorcing couples, not all of whom were disputing custody. They note that the anger and alignments of this age group distinguish it from other age ranges.
99. Telephone conversation with Dr. Judith Wallerstein, April 10, 2001.
100. WALLERSTEIN, LEWIS & BLAKESLEE, supra note 10, at 115-16.
101. Id. at 116-17.
102. Johnston, Children Who Refuse Visits, supra note 10, at 132.
103. Id.
104. Kelly & Johnston, The Alienated Child, supra note 55, at 254.
105. JANET R. JOHNSTON, HIGH-CONFLICT AND VIOLENT PARENTS IN FAMILY COURT: FINDINGS ON CHILDREN'S ADJUSTMENT, AND PROPOSED GUIDELINES FOR THE RESOLUTION OF CUSTODY AND VISITATION DISPUTES, Access/Visitation: General Principles No. 2 & n.2, at http://www.courtinfo.ca.gov/programs/cfcc/resources/ publications%20folder/hcvpfcs.pdf.
106. See generally Carol S. Bruch, The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106 (1988); Carol S. Bruch, Taking Ourselves Seriously Enough to be Cautious: A Response to Hugh Mclsaac, 5 INT'L J.L.& FAM. 82 (1991); Bruch & Bowermaster, supra note 61, at 262-69.
107. See generally Carol S. Bruch, The Effects of Ideology and Mediation on Child Custody Law and Children's Well-Being in the United States, 2 INT'L J.L. & FAM. 106 (1988); Carol S. Bruch, Taking Ourselves Seriously Enough to be Cautious: A Response to Hugh Mclsaac, 5 INT'L J.L.& FAM. 82 (1991); Bruch & Bowermaster, supra note 61, at 262-69.
108. A case in point is Sullivan and Kelly's recommended order in high-conflict cases that would literally require children to pass through a no-man's land each time they leave or return from a visit. Sullivan and Kelly, who display helpful insight into the dynamics of alienation cases, are far less convincing when they suggest legal responses. See notes 58-69 supra and accompanying text.
109. Kelly and Johnston suggest, for example, that children who evidence PA may have already endured unbearable pressures. Kelly & Johnston, The Alienated Child, supra note 55, at 255.
110. The author of this article first learned of PAS from a psychologist who was called for assistance when an 8-year-old girl became suicidal while institutionalized. The child had been totally cut off from her mother by a court that followed the recommendation of a custody evaluator who applies Gardner's principles rigorously. This evaluator and his partner continue to apply Gardner's principles fully, even in the face of serious abuse concerns, although now referring to "a parental alienation matter" rather than PAS, according to investigative reporter Karen Winner, who was commissioned by a parents' organization to investigate family law practices in the Sacramento, California courts. See Winner, supra note 22. Psychologist Vivienne Roseby of the Judith Wallerstein Center for the Family in Transition in Corte Madera, California reports that she and her colleagues have confronted similar difficulties with PAS-inspired custody transfers, including a case in which a 12-year-old boy died when he hanged himself on the day his custody was to be transferred. Telephone conversation with Dr. Vivienne Roseby, May 6, 2001, in Davis, California.
111. AMERICAN PSYCHIATRIC ASSOCIATION, supra note 11.
112. WORLD HEALTH ORGANIZATION, supra note 11.
113. An outstanding example is the series of publications by Wallerstein and her colleagues over the course of what developed into a 25-year project. Initially designed as exploratory research to help define questions for later studies, the sample (which was neither randomly selected nor scientifically controlled) has nevertheless provided major advances in knowledge. Many of Wallerstein and Kelly's initial clinical insights (for example, that children respond to their parents' divorce differently according to their developmental stage) brought to light connections that had been uniformly overlooked, but seemed obvious once pointed out. Subsequent, controlled studies by others have borne out that insight, while other suggestions have required refinement or retrenchment in the years since (such as their early suggestion concerning joint physical custody). Compare, e.g., Carol S. Bruch, Parenting At and After Divorce: A Search for New Models, 79 MICH. L. REV. 708, 708-10 (1981) (discussing methodology) and 722-25 (questioning joint custody conclusion) with WALLERSTEIN, LEWIS & BLAKESLEE, supra note 10, at 212-19 (significantly narrowing and refining position on joint custody).
114. In its decision refusing to hear testimony from Gardner on PAS, the Fortin court indicated that it was being guided in part by a concurring opinion of Chief Judge Kaye of the New York Court of Appeal in a case examining the admissibility of DNA evidence. People v. Fortin, 706 N.Y.S.2d 611, 614 (N.Y. Crim. Ct. 2000). The cited language in Judge Kaye's opinion reads, "It is not for a court to take pioneering risks on promising new scientific techniques, because premature admission both prejudices litigants and short-circuits debate necessary to determination of the accuracy of a technique." People v. Wesley, 633 N.E.2d 451, 462 n.4 (N.Y. 1994). See also Chambers v. Chambers, No. CA99-688, 2000 Ark. App. LEXIS 476 (Ark. Ct. App. June 21, 2000): On de novo review, the appellate court affirmed the trial court's refusal to force visitation and be prepared to transfer custody, an order the father's expert witness said he fully expected the court would have to implement because the child would refuse to comply. The expert, an adolescent and child psychiatrist, testified that the steps he was recommending "will almost certainly be traumatic and painful [for the child]." The appellate court concluded that "even [the father's expert] swore that the result [the father] sought posed a substantial risk of damage to the child," and held that "[t]he chancellor correctly refused to inflict the threat of that harm."
115. JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 79 (1949).