Toward a child-centered approach to evaluating claims of alienation in high-conflict custody disputes.

• Author: Nichols, Allison M.

Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable "Parental Alienation Syndrome" ("PAS") developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile cases. In the midst of this highly adversarial process, children deserve independent representation to ensure that their interests remain front and center. Mandating the appointment of guardians ad litem in cases involving allegations of abuse or alienation will assist courts in conducting individualized, fact-specific investigations into such allegations to craft custody orders that serve the best interests of children.

TABLE OF CONTENTS INTRODUCTION I. THE EVIDENTIARY ADMISSIBILITY OF PAS TESTIMONY A. The "Syndrome" and Its Controversy B. The Daubert-Frye Divide: From General Acceptance to Reliability C. Inadmissible Under Either Standard 1. Not Generally Accepted Under Frye 2. Insufficiently Reliable Under Daubert II. REFOCUSING THE DISPUTE: THE ROLE OF THE GUARDIAN AD LITEM A. The Need for Independent Representation B. Proposed Statutory Framework C. Critiques and a Response III. GALs IN ACTION: SAMPLE SCENARIOS CONCLUSION INTRODUCTION

Sixty-five percent of divorces in the United States involve families with minor children, (1) affecting about one million children per year. (2) Most custody arrangements in these cases are settled privately or through mediation, but 10 percent proceed to litigation before family courts? Due to the adversarial nature of the court system and the intensely emotional nature of divorce, child custody battles can turn vicious, and some experts argue that divorce may be "the single most traumatic experience" of a child's life, with the potential to cause long-term psychological damage. (4) High-conflict custody cases are more likely to involve allegations of child abuse or domestic violence, (5) and even when that is not the case, children can be used as pawns in a struggle between warring parents. Popular culture is filled with stories of parents brainwashing their children in an attempt to manipulate the legal system for their own personal gain. In particular, the image of the scorned and vindictive mother, one who will do anything to prevent her children from seeing their father, has become an all-too-familiar archetype.

Child psychiatrist Richard Gardner coined the term "Parental Alienation Syndrome" ("PAS") in 1985 to describe the breakdown of a parent-child relationship during high-conflict custody disputes. (6) According to Gardner,

The parental alienation syndrome (PAS) is a childhood disorder that arises almost exclusively in the context of child-custody disputes. Its primary manifestation is the child's campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent's indoctrinations and the child's own contributions to the vilification of the target parent. (7) Gardner claims that this behavior deserves classification as a psychological syndrome due to a cluster of eight proposed symptoms, which he has identified through his clinical experience counseling parents and children during divorce and custody proceedings. (8) Gardner's conception of PAS attempts to explain the increased incidence of child sexual abuse allegations beginning in the 1980s. Gardner argues that a vindictive parent frequently uses intentionally false allegations of child abuse--particularly sexual abuse--as an "extremely effective weapon" to turn a child against the other parent and thereby gain sole custody. (9) This characterization of family dynamics during divorce has prompted harsh criticism from psychologists, legal scholars, and domestic violence survivors' and children's advocates alike, yet Gardner's theory has gained some traction (as well as significant attention) in family courts since its inception thirty years ago. (10)

The controversy surrounding allegations of parental alienation is multifaceted. On the one hand, various debunked mental health theories continue to exert inappropriate influence over the decisions of family courts. Yet the problem is certainly not confined to this issue, and once we look beyond admissibility concerns, there are few clear rules to guide family court judges in divining the best interests of a child who rejects a parent. Fortunately, judges do not have to issue orders while blindfolded; guardians ad litem serve a crucial function in fact-finding for the court, as well as providing independent representation for the child. Part I of this Note addresses the admissibility issue and concludes that testimony regarding PAS and related theories is inadmissible under the relevant evidentiary standards. Part II recommends that states adopt legislation requiring the appointment of guardians ad litem in all contested custody cases involving allegations of abuse, domestic violence, or alienation to assist courts in grappling with the complex legal and factual issues that these cases pose. Finally, Part III offers several examples of ways in which guardians ad litem can promote outcomes that serve the best interests of children.

1. THE EVIDENTIARY ADMISSIBILITY OF PAS TESTIMONY

   State law governs the admissibility of expert witness testimony in child custody cases, (11) but most states have adopted one of two rules set forth in cases interpreting the federal standards for admissibility. Nine states and the District of Columbia follow the Frye rule, while thirty-four states adhere to the more recent Daubert standard. (12) The remaining seven states use their own unique approaches. (13) Section I.A outlines the criticisms of PAS as a scientific theory. Section I.B traces the evolution of the Frye and Daubert standards for the admissibility of expert witness testimony. Section I.C applies each standard to PAS testimony and concludes that such evidence is inadmissible under either standard.

   1. The "Syndrome" and Its Controversy

      Since its inception nearly thirty years ago, the idea of a parental alienation "syndrome" as a diagnosable, pathological condition has provoked harsh reactions from critics for various reasons. Gardner based the theory of PAS in part on his belief that false allegations of child sexual abuse are rampant in high-conflict custody battles, (14) but many professionals believe that false abuse allegations in custody disputes are actually rare. (15) One frequently cited study examined 9,000 contested custody cases and identified only 2% involving allegations of sexual abuse, of which half were substantiated. (16) In other words, at most, only 1% of the custody cases involved false allegations of child sexual abuse, and it is unclear how many of these were intentionally false as opposed to false allegations made in good faith. Other studies have found that child sexual abuse claims were validated in a significant majority of cases. (17)

      Gardner's theory has also faced sharp criticism from women's advocates. On its face, the current formulation of PAS and its symptoms appears gender neutral, but Gardner originally claimed that custodial mothers were responsible for causing up to 90% of PAS cases. (18) As recently as 2002, Gardner wrote that alleging child sexual abuse "is probably one of the most powerful vengeance maneuvers ever utilized by a woman whose husband has left her." (19) In another work, he repeatedly characterized mothers as vindictive and irate, adding that "[some feminists] have jumped on the sex abuse bandwagon because it provides a predictable vehicle for venting hostility toward men." (20) Empirical research, however, refutes this characterization of vindictive mothers. (21) A 1998 Canadian study revealed that custodial parents (usually mothers) are in fact least likely to make intentionally false allegations of child abuse or neglect, while noncustodial parents and other relatives or acquaintances are responsible for the majority of intentionally false reports. (22)

      Moreover, domestic violence survivors' and children's advocates argue that Gardner's theory obscures legitimate sources of estrangement between parents and children, such as abuse, neglect, or even a child's sense of abandonment caused by divorce itself. In the words of one family law expert, "Gardner confounds a child's developmentally related reaction to divorce and high parental conflict (including violence) with psychosis." (23) These advocates fear that allowing "diagnoses" of PAS to influence the resolution of custody cases could result in courts placing children with their abusers. (24) Gardner and his supporters have maintained that a diagnosis of PAS is only appropriate in cases of false allegations of abuse; in other words, if there is abuse, there can be no PAS. (25) But given the point-counterpoint nature of custody cases--abuse allegation by one parent quickly countered by PAS allegation by the other--"application of 'parental alienation syndrome' ... in cases with abuse allegations[] seems intrinsically to deny the likelihood that some children appropriately want and need their exposure to [abusive parents] ... to be limited." (26)

      Perhaps in part due to the controversy surrounding PAS, some of the theory's supporters have shifted to using the term "Parental Alienation Disorder" ("PAD") to describe the same phenomenon. (27) The proposed diagnostic criteria for PAD are virtually identical to those outlined in Gardner's PAS framework. (28) Similarly, many cases, courts, and custody evaluators refer to...