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National Council of Juvenile and Family Court Judges. (2006). Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2nd edition). Reno, NV: NCJFCJ. (download PDF)

Excerpt from page 19

Parental Alienation and the Daubert Standard: on Syndromes and Behaviors

In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the "soft sciences" must meet the standard set in the Daubert 13 case. Daubert , in which the Court re-examined the standard it had earlier articulated in the Frye 14 case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance.

Richard Gardner's theory positing the existence of "parental alienation syndrome" or "PAS" has been discredited by the scientific community.15 Testimony that a party to a custody case suffers from the syndrome should therefore be ruled inadmissible both under the standard established in Daubert and the stricter Frye standard.

Children in contested custody cases may indeed express fear of, concern about, distaste for, or anger with one parent. And those feelings may sometimes have been fostered or encouraged by alienating behaviors on the part of the other parent. On the other hand, there are a variety of competing explanations that need to be explored-including the very real possibility that the children are responding to concerns based in their own experience with the parent from whom they feel estranged.

Cases known or suspected to involve domestic violence pose particular challenges, because:

  • abusive parents commonly blame their partners for turning their children against them, and rarely take responsibility for the impact of their own behavior on the children;16
  • it is often legitimate for the partner of an abusive parent to try to protect the children from exposure to abuse, or to try to secure his or her own safety from the abusive partner by limiting that partner's contact with the children. It may be hard to distinguish between appropriately protective behavior and behavior which is well intentioned but excessive and ultimately counter-productive;17
  • the undermining strategies employed by abusive partners commonly include invalidating their partners' parental authority and sabotaging their relationships with the children;18 and
  • children in an abusive household may feel safer identifying and allying with the abusive partner than with the one who suffers abuse.19

Custody evaluators should be advised to listen carefully to children's concerns about each of their parents, and follow up with a careful investigation as to whether those concerns are grounded in fact, what role each parent has played in shaping the children's perceptions of the other parent, and each parent's apparent motivation.

This careful fact-based inquiry, unlike applying the PAS label, will yield admissible and more accurate and valuable testimony.

13 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

14 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).

15 According to the American Psychological Association, “... there are no data to support the phenomenon called parental alienation syndrome ...” AM. PSYCHOL. ASSOC., VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION PRESIDENTIAL TASK FORCE ON VIOLENCE AND THE FAMILY at 40 (1996).

16 See BANCROFT & SILVERMAN, supra note 9, at 29-53.

17 See Drozd & Olesen, supra note 7.

18 See BANCROFT & SILVERMAN, supra note 9, at 57-64.

19 See Dalton et al., supra note 11.