Proponents Bear the Burden of Proof

• Date: 01 January 2005
• DOI: http://doi.org/10.1111/j.1744-1617.2005.00002.x
• Published date: 01 January 2005
• Author: Robert E. Emery

FAMILY COURT REVIEW, Vol. 43 No. 1, January 2005 8–13

© 2005 Association of Family and Conciliation Courts

Blackwell Publishing, Ltd.Oxford, UKFCREFamily Court Review1531-2445© 2004 Association of Family and Conciliation Courts431READER COMMENTARY

Emery / PARENTAL ALIENATION SYNDROMEFAMILY COURT REVIEW

PARENTAL ALIENATION SYNDROME:

Proponents Bear the Burden of Proof

Robert E. Emery

University of Virginia Abstract

Richard Gardner claimed to be able to diagnose parental alienation among contentious parents disputing custody, and

asserted that his “syndrome” is supported by scientific and legal authority. Despite influencing many custody proceed-

ings, Gardner’s ideas fail to meet even minimal scientific standards. The burden of proving any new hypothesis falls

on its proponents, and given the complete absence of objective replication, parental alienation syndrome (PAS) must

be viewed as nothing more than a hypothesis. The lack of clear guidance in the law allows concepts like PAS to gain

temporary credibility, as judges look to mental health professionals for help in making decisions under the vague best

interests standard.

Keywords:

divorce

;

custody

;

parental alienation

;

burden of proof

Richard Gardner’s response to Kelly and Johnston’s (2001) critique of so-called “parental

alienation syndrome” (PAS) provokes two strong reactions: sympathy and frustration. On

the one hand, I am sympathetic to authors who wish to write rejoinders to critiques of

their ideas, and I am particularly sympathetic since Gardner’s paper was submitted post-

humously. On the other hand, Gardner makes sweeping and misguided claims about PAS

and about science. As a scientist, I am outraged by the misunderstandings, errors in logic,

and sweeping assertions in his article. Gardner writes forcefully and with conviction,

and I worry that the unwary will be more persuaded by the tone than the substance of his

arguments. Rhetoric is a tool for pursuing truth in the courtroom. Rhetoric is not a tool of

truth in science.

1

If it were, scientific journals would be perpetually filled with arguments

about, for example, evolution versus creationism or the psychological parent versus the

alienating parent.

Differences between the methods of the scientific and the legal pursuit of truth are

fascinating, but the two systems share one essential commonality: both take strong stands

about the burden of proof. The burden of proof in the law is clearly articulated, although it

varies across different substantive topics and may be changed over time. For example, many

states shifted the burden of proof from the prosecution to the defense following John

Hinckley’s successful use of the insanity defense in his trial for shooting Ronald Reagan

(ABA, 1995). In science, the burden of proof is inviolable: scientists are free to offer any

hypothesis that catches their fancy, but in so doing, they assume the burden of proving

the truth of their hypotheses beyond a reasonable doubt. Until proven true, the scientific

community assumes the hypothesis is false.

2

According to the rules of science, Gardner is free to offer his hypothesis about

alienating parents. But his hypothesis should not be believed, especially in public forums

like the courtroom, until proven true by scientific research. As Gardner notes in his

article, only one study (his own) has even attempted a statistical analysis of PAS. Objective,

public replication by independent investigators is another basic rule of establishing

truth in science. By his own admission, there have been no independent, objective, or