"This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively."
"Both Gardner (PAS's originator) and NAMBLA claim that adult-child sex is biologically natural, not inherently harmful to the child, and that any resultant harm is caused by social stigma rather than the sexual contact itself."
"While Gardner claimed that “repeat offenders must be removed from society,” he advocated that they only be imprisoned after treatment has failed, advocating that they not be imprisoned with “hardened criminals,” or be subjected to lengthy sentences. As a political advocate, Gardner lobbied to abolish mandated reporting of child abuse, to abolish immunity for reporters of child abuse, and for the creation of federally funded programs to assist individuals claiming to be falsely accused."
The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy Jennifer Hoult - Children's Legal Rights Journal, Vol. 26, No. 1, 2006 Abstract: Since 1985, in jurisdictions all over the United States, fathers have been awarded sole custody of their children based on claims that mothers alienated these children due to a pathological medical syndrome called Parental Alienation Syndrome ("PAS"). Given that some such cases have involved stark outcomes, including murder and suicide, PAS's admissibility in U.S. courts deserves scrutiny. This article presents the first comprehensive analysis of the science, law, and policy issues involved in PAS's evidentiary admissibility. As a novel scientific theory, PAS's admissibility is governed by a variety of evidentiary gatekeeping standards that seek to protect legal fora from the influence of pseudo-science. This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively. The article further analyzes PAS's admissibility under the standards defined in Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Kumho Tire Company v. Carmichael, and Rules 702 and 704(b) of the Federal Rules of Evidence, including analysis of PAS's scientific validity and reliability; concluding that PAS remains an ipse dixit and inadmissible under these standards. The article also analyzes the writings of PAS's originator, child psychiatrist Richard Gardner - including twenty-three peer-reviewed articles and fifty legal decisions he cited in support of his claim that PAS is scientifically valid and legally admissible - finding that these materials support neither PAS's existence, nor its legal admissibility. Finally, the article examines the policy issues raised by PAS's admissibility through an analysis of PAS's roots in Gardner's theory of human sexuality, a theory that views adult-child sexual contact as benign and beneficial to the reproduction of the species. http://ssrn.com/abstract=910267
paper available at : http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=642440
from the paper : 1. American Precedent Holds PAS Inadmissible - Because unreliable scientific claims pose a unique risk of undue influence and prejudice in the courtroom, the evidentiary admissibility of novel scientific material is governed by gate-keeping rules that are intended to ensure that such testimony meets adequate standards of reliability. As a novel scientific theory, PAS’s admissibility is governed by these gate-keeping rules. Gardner published the claim that fifty American decisions set precedent holding PAS admissible under the relevant evidentiary rules. A closer examination reveals this claim to be unfounded; current U.S. precedent holds PAS inadmissible. By July 19, 2005, sixty-four precedent bearing cases referenced PAS. Only two of these decisions, both originating in criminal courts in New York State, set precedent on the issue of PAS’s evidentiary admissibility; both held PAS inadmissible....
A. PAS Is Not a Medical Syndrome - A medical “syndrome” defines a “distinct” correlation between a set of symptoms and a particular pathology. Determining whether PAS is a valid medical syndrome requires an assessment of whether it is an existing pathology and whether its diagnostic criteria correlate accurately with that pathology....Both Gardner and NAMBLA claim that adult-child sex is biologically natural, not inherently harmful to the child, and that any resultant harm is caused by social stigma rather than the sexual contact itself. Gardner claimed the sole “determinant as to whether these experiences [i.e. a sexual encounter between an adult and a child] will be traumatic is the social attitude towards these encounters” and stated: [M]any societies have been unjustifiably punitive to those who exhibit these sexual paraphilic variations [e.g. pedophiles, rapists, etc.] and have not been giving proper respect to the genetic factors that may very well be operative. Such considerations may result in greater tolerance for those who exhibit these atypical sexual proclivities. My hope is that this theory will play a role (admittedly small) in bringing about greater sympathy and respect for individuals who exhibit these variations of sexual behavior. [Further,] they do play a role in species survival. While Gardner claimed that “repeat offenders must be removed from society,” he advocated that they only be imprisoned after treatment has failed, advocating that they not be imprisoned with “hardened criminals,” or be subjected to lengthy sentences. As a political advocate, Gardner lobbied to abolish mandated reporting of child abuse, to abolish immunity for reporters of child abuse, and for the creation of federally funded programs to assist individuals claiming to be falsely accused.
Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases Carol S. Bruch University of California, Davis 35 Family Law Quarterly 527 (2001) Abstract: As courts and legislatures continue their enthusiastic ventures into family law reform, they make frequent use of theories and research from the social sciences. This essay focuses on developments in child custody law stemming from "Parental Alienation Syndrome" (PAS), a theory propounded in 1985 by Richard Gardner, M.D. that became widely used despite its lack of scientific foundations. The discussion highlights theoretical and practical problems with PAS, provides a similar review of more recent proposals labeled "Parental Alienation" (PA), and concludes with recommendations for lawyers and judges who must evaluate these and similar developments. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=298110&rec=1&srcabs=910267
paper available at : http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=228611
from the paper:
C. The Flaws in PAS Theory - The deficiencies in PAS theory are multiple. Some have already been identified in social science literature and child custody judicial opinions; still others are now emerging. First, Gardner confounds a child’s developmentally related reaction to divorce and high parental conflict (including violence) with psychosis. In doing so, he fails to recognize parents’ and children’s angry, often inappropriate, and totally predictable behavior following separation. This error leads him to claim that PAS constitutes a frequent example of folie à deux or folie à trois, Shared Psychotic Disorders that the American Psychiatric Association and scholarly studies report occur only rarely. His assertion that these disorders occur primarily in young children is also contrary to the literature, probably also due to a misreading of typical developmental responses to divorce on the part of young children. Second, possibly as a consequence of these errors and his tail-of-the-elephant view, Gardner vastly overstates the frequency of cases in which children and custodial parents manufacture false allegations or collude to destroy the parent-child relationship. Taken together, these assertions have the practical effect of impugning all abuse allegations, allegations which Gardner asserts are usually false in the divorce context. Here, too, Gardner cites no evidence in support of his personal view, and the relevant literature reports the contrary—that such allegations are usually well founded. Third, in this fashion, PAS shifts attention away from the perhaps dangerous behavior of the parent seeking custody to that of the custodial parent. This person, who may be attempting to protect the child, is instead presumed to be lying and poisoning the child. Indeed, for Gardner, the concerned custodial parent’s steps to obtain professional assistance in diagnosing, treating, and protecting the child constitute evidence of false allegations. Worse yet, if therapists agree that danger exists, Gardner asserts that they are almost always man-hating women who have entered into a folie à trois with the complaining child and concerned parent. Indeed, he warns judges not to take abuse allegations seriously in the divorce court setting in high conflict cases (severe PAS cases). Neither Gardner nor those who accept his views acknowledge the logical difficulties when Gardner asserts that abuse allegations which are believed by therapists constitute evidence of PA by the protective parent. Fourth, Gardner believes that, particularly in serious cases, the relationship of an alienated child with the rejected parent will be irreparably damaged, probably ending for all time, unless immediate, drastic measures (custody transfer, isolation from the loved parent, and deprogramming) are taken. Here, too, reliable sources reveal that his theory is exaggerated, with all but unusual cases (for example, those appearing in violent families) resolving themselves as the children mature. Fifth, as these sources suggest, Gardner’s proposed remedy for extreme cases is unsupported and endangers children. In his admitted decision to err on the side of under-identifying abusers, Gardner appears to have overlooked the policy differences between criminal law and child custody law and also to have misunderstood the distinction between the burdens of proof in criminal and civil cases in the United States. To the extent that PAS results in placing children with a parent who is, in fact, abusive, the youngsters will be bereft of contact with the parent who might help them. Parent groups and investigative reporting describe, for example, numerous cases in which trial courts have transferred children’s custody to known or likely abusers and custodial parents have been denied contact with the children they have been trying to protect. In less extreme cases, too, children are likely to suffer from such a sudden dislocation in their home life and relationship with the parent they trust. Even therapists who accept PAS theory have advised against custody transfers to no avail in some reported cases in which it seems judges have implemented Gardner’s views on their own initiative....PAS as developed and purveyed by Richard Gardner has neither a logical nor a scientific basis. It is rejected by responsible social scientists and lacks solid grounding in psychological theory or research. PA, although more refined in its understanding of child-parent difficulties, entails intrusive, coercive, unsubstantiated remedies of its own. Lawyers, judges, and mental health professionals who deal with child custody issues should think carefully and respond judiciously when claims based on either theory are advanced.
Report of the American Psychological Association Presidential Task Force On Violence And The Family - ISSUES AND DILEMMAS IN FAMILY VIOLENCE Issue 5 WHEN PARENTS SEPARATE AFTER AN ABUSIVE RELATIONSHIP, SHOULDN'T FATHERS HAVE AS MUCH RIGHT AS MOTHERS TO BE GRANTED PHYSICAL CUSTODY OF AND VISITATION RIGHTS WITH THEIR CHILDREN? Tensions exist between children's need for contact with their father and their need to be protected from the physical, sexual and psychological abuse that is common in families where there has been other forms of violence such as woman abuse. Although most people believe that fathers should have equal access to their children after the termination of a relationship between the parents, the equal-access option is based on the assumption that the fathers will act in their children's best interests. However, that is a naive assumption in situations where family violence has occurred. Fathers who batter their children's mothers can be expected to use abusive power and control techniques to control the children, too. In many of these families, prior to separation, the men were not actively involved in the raising of their children. To gain control after the marital separation, the fathers fight for the right to be involved. Often children who have been exposed to violence in the family are frightened to confront their father's negative or abusive behavior, and mothers cannot protect them. Sometimes the father tries to alienate the child from the mother by using money and other enticements, negative comments, or restricted access to the telephone during visitation with him. Other times, fathers may threaten or actually kidnap the child to punish the mother for leaving, or to try to force her to return. Most people, including the battered woman herself, believe that when a woman leaves a violent man, she will remain the primary caretaker of their children. Family courts, however, may not consider the history of woman abuse relevant in awarding custody. Recent studies suggest that an abusive man is more likely than a nonviolent father to seek sole physical custody of his children and may be just as likely (or even more likely) to be awarded custody as the mother. Often fathers win physical custody because men generally have greater financial resources and can continue the court battles with more legal assistance over a longer period of time. Family courts frequently minimize the harmful impact of children's witnessing violence between their parents and sometimes are reluctant to believe mothers. http://web.archive.org/web/20000307233013/www.apa.org/pi/pii/familyvio/issue5.html
LOYOLA OF LOS ANGELES LAW REVIEW 29:1367-1415 (1994) THE PARENTAL ALIENATION SYNDROME: A DANGEROUS AURA OF RELIABILITY Cheri L. Wood - PAS testimony should not be admitted in court because of the causation and evidentiary problems with the theory. Because of the dangerous aura of reliability and trustworthiness extant in Dr. Gardner’s self- published theory, admission of PAS is inevitable and particularly disconcerting. http://fact.on.ca/Info/pas/wood94.htm
Dr. Richard Gardner: A Review of His Theories and Opinions on Atypical Sexuality, Pedophilia, and Treatment Issues by Stephanie J. Dallam, RN, MSN, FNP Reference: Dallam, S. J. (1998). Treating Abuse Today, 8(1), 15-23. http://www.leadershipcouncil.org/1/res/dallam/2.html
Parental Alienation Syndrome (PAS) is one such theory. This unsophisticated, pseudoscientific theory explains a child’s estrangement from one parent or allegations of abuse at the hands of one parent by blaming the other. The theory, developed by the late Richard A. Gardner, M.D., portrays the preferred parent (usually the mother under PAS) as an evil “alienator” who is virtually solely responsible for turning a vulnerable child against their estranged parent (usually the father under PAS)….there has been no consistent empirical or clinical evidence that PAS is a valid syndrome or that the so called “alienator’s” behavior is the actual cause of the alienated child’s behavior towards the target parent (Walker et al, 2005). In fact, the majority of mental health and legal experts who have studied the issue consider PAS theory to be both erroneous and dangerous to the children involved. http://www.leadershipcouncil.org/1/pas/faq.htm
The Parental Alienation Syndrome: Is It Scientific? by Stephanie J. Dallam, RN, MSN, FNP Dallam, S. J. (1999). In E. St. Charles & L. Crook (Eds.), Expose: The failure of family courts to protect children from abuse in custody disputes . Los Gatos , CA : Our Children Our Children Charitable Foundation. Gardner ’s theories are based on his assumption that sex between a child and an adult is not inherently harmful, and his belief that there is an epidemic of false sexual abuse allegations being made by vengeful wives during custody disputes. Gardner maintains these beliefs in spite of a wealth of clinical and experimental data which prove otherwise.http://www.leadershipcouncil.org/1/res/dallam/3.html
Faller, K. C. (1998). The parental alienation syndrome: What is it and what data support it? Child Maltreatment, 3(2), 100-115 “No data are provided by Gardner to support the existence of the syndrome and its proposed dynamics. In fact, the research and clinical writing of other professionals leads to a conclusion that some of its tenets are wrong and that other tenets represent a minority view” (p. 112). http://www.leadershipcouncil.org/docs/Faller1998.pdf
Parental Alienation Syndrome: What Professionals Need to Know Part 1 of 2 Update - Volume 16, Number 6, 2003 By Erika Rivera Ragland & Hope Fields PAS is based primarily upon two notions, neither of which has a foundation in empirical research. 1. PAS Presupposes a High Rate of False Accusations in Custody Cases The theory of PAS is based in part on the notion that, within custody disputes, there is a high incidence of false abuse allegations. Dr. Gardner theorized that allegations arising within the context of a custody dispute have a “high likelihood of being false,”5 and went so far as to state that he believed “the vast majority of allegations in this category [divorce cases with custody disputes] are false.” To the contrary, the available research suggests that false allegation rates are not significantly high. For example, a 1990 study by Thoennes and Tjaden evaluated 9,000 divorces in 12 states and found that sexual abuse allegations were made in less than 2 percent of the contested divorces involving child custody. Within this group, it appears false allegations occurred in approximately 5% to 8% of cases. This study is one of the most comprehensive and least subject to bias and sampling problems, since its sample is so large and representative of the population of those divorcing with custody and visitation disputes. 2. PAS Presumes a Disadvantage to Women in Child Custody Determinations….Other Weaknesses: Lack of Peer Review and Recognition by DSM-IV Dr. Gardner mostly self-published and thus did not generally subject his theory to the peer review process. Moreover, PAS is not recognized by any professional associations, including the American Psychiatric Association. PAS is also not included within the DSM-IV. It is also worth noting that Dr. Gardner often expressed disdain for child abuse professionals, labeling them “validators,” theorizing that greed and desire for increased business prompted some sexual abuse allegations, and speculating that parents and professionals alike made some false allegations because “all of us have some pedophilia within us.” Conclusion - At best, PAS is a nondiagnostic “syndrome” that only explains the behavior of the child and the mother when there is a known false allegation. It is a courtroom diagnosis befitting adversaries involved in legal sparring. It is not capable of lending itself to hard data or inclusion in the forthcoming DSM-V. In short, PAS is an untested theory that, unchallenged, can have far-reaching consequences for children seeking protection and legal vindication in courts of law. http://www.ndaa.org/publications/newsletters/update_volume_16_number_6_2003.html
Parental Alienation Syndrome: What Professionals Need to Know Update - Volume 16, Number 7, 2003 Part 2 of 2 By Hope Fields & Erika Rivera Ragland PAS is an unproven theory that can threaten the integrity of the criminal justice system and the safety of abused children. Prosecutors should educate themselves about PAS and be prepared to argue against its admission in court. In cases where PAS testimony is admitted, it is a prosecutor’s responsibility to educate the judge and jury about the shortfalls of this theory. As more criminal courts refuse to admit PAS evidence, more protection will be afforded to victims of sexual abuse in our court system. http://www.ndaa.org/publications/newsletters/update_volume_16_number_7_2003.html
Parental Alienation Syndrome: Frye V. Gardner in the Family Courts by Poliacoff, Ph.D., P.A., Greene, Esq., and Smith, Esq http://web.archive.org/web/20051124134133/http://www.gate.net/~liz/liz/poliacoff.htm
RICHARD A. GARDNER: IN HIS OWN WORDS “At the present time, the sexually abused child is generally considered to be the victim,” though the child may initiate sexual encounters by ’seducing’ the adult.” Gardner, Richard A., Child Custody Litigation (1986), p.93 http://web.archive.org/web/20061012010857/http://www.gate.net/~liz/liz/pedoph.htm
No comments:
Post a Comment