NCPCA Update Newsletter Volume 16, Number 6, 2003

Friday, April 16, 2010

10:20 PM

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Update - Volume 16, Number 6, 2003

Parental Alienation Syndrome: What Professionals Need to Know

Part 1 of 2
By Erika Rivera Ragland1 & Hope Fields2
Introduction
The late Dr. Richard Gardner, a clinical professor of Psychiatry at Columbia University, coined Parental Alienation
Syndrome (PAS) in 1985, after noticing a “disorder” among patients within his private practice. The “disorder”
involves one parent alienating the child against the other parent typically in the context of a child -custody dispute.
Dr. Gardner defined PAS as follows:
[t]he parental alienation syndrome 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. When true
parental abuse and/or neglect is present, the child’s animosity may be justified and so the parental
alienation syndrome explanation for the child’s hostility is not applicable.3
Absent from this definition is specific reference to sexual abuse allegations, but these are often the “denigration”
to which Dr. Gardner referred in his definition. In this context, PAS becomes a litigation tool for the accused parent
to discredit the validity of the child’s sex abuse allegations by mounting an attack against the “inducing parent.”
Although PAS may be hailed as a “syndrome” (a group of symptoms that occur together and constitute a
recognizable abnormality), in fact it is the product of anecdotal evidence gathered from Dr. Gardner’s own
practice.4 The purpose of this article is to briefly discuss the major premises upon which PAS is based, and to
identify key weaknesses. Part 2 of this Update considers case law and strategies for meeting PAS defenses.
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.” 6 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 states7 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.8 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.9
2. PAS Presumes a Disadvantage to Women in Child Custody Determinations
Another underlying principle of PAS is that women more often than men resort to making false allegations of
abuse in disputed custody proceedings. The theory is that mothers encourage false accusations in order to obtain
financial or strategic advantage during custody determinations. 10 The reasoning behind this theory seems to be
that, in most jurisdictions, custody determination standards have changed from the “tender years” presumption—a
standard which favored women obtaining custody of young children —to the “best interests of the child.”11
This hypothesis ignores the fact that most sex offenders are indeed men.12 It also fails to account for the
possibility that the divorce process might liberate an abused child from the heavy burden associated with keeping
a secret like sexual abuse,13 or that post-divorce living conditions or circumstances might render a child
vulnerable to sexual abuse.14
Although the tender year’s presumption which favored women is largely gone, women are not disadvantaged
under the new standard. The “best interests” standard removes gender presumptions altogether from custody
determinations.15 It should be noted that some legal scholars suspect a gender bias within PAS theory itself.16
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.17
Moreover, PAS is not recognized by any professional associations,18 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.”19
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.20 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.

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 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.
Prosecutors and other child abuse professionals should educate themselves, their colleagues and clients when
confronting PAS in the legal realm. Part 2 of this newsletter will address the case law on this subject. For more in -
depth and comprehensive treatment of these issues, contact the National Center for Prosecution of Child Abuse.

1 Staff Attorney, American Prosecutors Research Institute, National Center for Prosecution of Child Abuse.
2 Staff Attorney, American Prosecutors Research Institute, National Center for Prosecution of Child Abuse.
3 Richard A. Gardner, M.D., “Does the DSM-IV Have Equivalents for the Parental Alienation Syndrome (PAS) Diagnosis?”
American Journal of Family Therapy, 31(1):1-21; also available, http://w w w.rgardner.com/refs/ar12.html.
4 Richard A. Gardner, M.D., The Parental Alienation Syndrome, at 59 (1992) (noting in the introduction of this book that he
termed the disorder PAS after seeing children in his practice w hom he believed w ere “brainw ashed by one parent against
the other”).
5 Gardner, 1991, p. 4.
6 See Kathleen Coulborn Faller, The Parental Alienation Syndrome: What is it and What Data Support it? Child
Maltreatment, Vol. 3, No. 2, May 1998.
7 Thoennes & Tjaden, The Extent, Nature and Validity of Sexual Abuse Allegation in Custody/Visitation Disputes, Child
Abuse and Neglect 1990, 14:151-163.
8 Id.
9 Kathleen Coulborn Faller, David L. Corw in & Erna Olafson, Literature Review : Research on False Allegations of Sexual
Abuse in Divorce, APSAC Advisor 1993, 6(3), page 9.
10 Richard Gardner, M.D., The Parental Alienation Syndrome, p. 62, 1992.
11 Richard Gardner, M.D., The Parental Alienation Syndrome, p. 61-62, 1992.
12 Faller, Corw in & Olafson, supra note 9, at 10.
13 See Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter,
Family Law Quarterly, Vol. XXV, No. 2, Summer 1991, page 203 (quoting Sink, Studies of True and False Allegations: A
Critical Review , Sexual Abuse Allegations in Custody and Visitation Cases 37, 38 (American Bar Association) (E. Nicholson
ed. 1988)). For more information regarding the dynamics of sexual abuse, contact the National Center for Prosecution of
Child Abuse for materials regarding Dr. Roland Summit‟s “Child Sexual Abuse Accommodation Syndrome.”
14 Id. See also Robin Fretw ell Wilson, Children at Risk: The Sexual Exploitation of Female Children After Divorce, 86 Cornell
L. Rev. 251, 262-263 (2001).
15 See Ex Parte Devine, 398 So.2d 686 (Ala. 1981) (discussing the origin of the tender years presumption and its
constitutional infirmities; ultimately abandoning it in favor of the best interests of the child standard).
16 See, e.g., Cheri L. Wood, The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy. L.A. L. Rev. 1367,
1372-73 (1994); Kathleen Niggemyer, Comment, Conceiving the Law yer as Creative Problem Solver: Parental Alienation
Syndrome is Open Heart Surgery: It Needs More than a Band-Aid to Fix It, 34 Cal. W. L. Rev. 567, 576 (1998); Priscilla
Read Chenow eth, Don‟t Blame the Messenger in Child Sex Abuse Cases, N.J. L.J., April 19, 1993, at 17 (finding that
“Gardner‟s extravagant and conclusory language, and his obvious bias against w omen, should be enough to give any judge
or law yer pause before accepting his invitation to disbelieve and even punish the messenger [i.e., the parent reporting abuse
by the other parent].” See also Marie Laing, For the Sake of the Children: Preventing Reckless New Law s, 16 Can. J. Fam.
L. 229, 274 (1999) (concluding, “much of Gardner‟s w riting is strongly anti-w oman. He states that the claims of w omen w ho
refuse joint mediation due to violence are somew here „betw een fabrication and delusion‟”). For direct quotes from Dr.
Gardner, refer to his 1992 book, The Parental Alienation Syndrome, p. 122.
17 See Cheri L. Wood, supra, note 16.
18 Id.
19 Gardner (1991), page 26. He w rote, “Each time the accusers make an accusation, they are likely to be forming an internal
visual image of the sexual encounter. With each mental replay, the accusers gratify the desire to be engaging in the
activities that the perpetrators are involved in in the visual imagery.” See also Faller, supra note 6, at 104-105.
20 See Faller, supra note 6, at 111.

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NCPCA Update Newsletter Volume 16, Number 7, 2003
Friday, April 16, 2010
10:46 PM

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Update - Volume 16, Number 7, 2003

Parental Alienation Syndrome: What Professionals

Need to Know
Part 2 of 2
By Hope Fields1 & Erika Rivera Ragland2
Introduction
Parental Alienation Syndrome (PAS) has created obstacles for child abuse
prosecutors. It is crucial for child abuse prosecutors to understand the
theory of PAS, and know how to best challenge its legitimacy in court. Part
1 of this article addressed the PAS theory and its inherent flaws.3 We now
turn to the courts’ approaches to PAS, and propose arguments and
methods to suppress this unreliable evidence.
Case Law Status
PAS has been received differently by criminal and civil courts. However,
defendants draw from both civil and criminal opinions in crafting arguments
for admitting PAS as scientific evidence in child abuse cases. Therefore, it
is important for prosecutors to be aware of both criminal and civil law when
preparing a suppression argument. PAS has been addressed in a few
criminal cases and approximately fifty civil cases in courts of record.
Criminal Case Law4
In 1995, the Ohio Court of Appeals allowed evidence of PAS in a sexual
abuse case.5 The defendant was convicted by the trial court of three counts
of rape and one of sexual battery, all against his own children. The trial
court allowed the defendant to present an expert who testified about PAS
and the potential effects it can have in alienating children involved in
custody battles. It is unclear from the court’s opinion whether the
prosecution ever objected to presentation of this evidence, or to what extent
the PAS evidence was used by the defense. The court did not discuss the
admissibility of PAS evidence in its decision.
New York courts have consistently refused to admit evidence of PAS in
criminal cases. In People v. Loomis6, the defendant, who faced charges of
sexual abuse, moved the court to have the victims and their mother
examined by Dr. Richard Gardner, the doctor who created and coined PAS,
to determine if allegations of abuse were fabricated. The court denied
defendant’s motion, holding that
New York practice does not allow experts to offer an opinion on the
ultimate issue of fact as to whether sexual abuse occurred. The
issue is strictly reserved to the trier of fact… The defendant’s expert
purports to make such a determination by determining if a particular
accusation has the criteria of a truthful or a false accusation.
In a later case, another New York court refused to admit PAS evidence.7
The court held that PAS failed to meet the Frye standard because
defendant failed to show that it was generally accepted in relevant scientific
communities.
California is the only other state to have discussed the admissibility of PAS
in a criminal context. In an unpublished opinion earlier this year, the

Unfiled Notes Page 3

California Court of Appeals held that the defendant, convicted of sexual
assault and lewd and lascivious acts on a child, had not been deprived of
his due process rights by the trial court’s refusal to allow his expert to testify
regarding PAS.8 Among the reasons for affirming the trial court’s decision
was the determination that an understanding of the PAS theory was not
beyond common experience and that PAS evidence is not scientific enough
to meet the Kelly-Frye evidentiary standard.
Civil Case Law
Evidence of Parental Alienation Syndrome is admitted more frequently in
civil cases than in criminal court. PAS evidence has been admitted in cases
involving custody determinations and is usually introduced in an attempt to
show that one parent, in denigrating the other parent in the presence of the
child, has caused that child to express distaste and/or hatred for that other
parent.9
States’ approaches to PAS evidence vary. A few states have allowed PAS
evidence to be admitted in civil custody cases.10 Other courts, when
confronted with PAS, have discussed it or allowed some evidence of it while
emphasizing that such discussion did not comprise an evaluation of the
legitimacy of PAS theory.11
Challenging PAS Evidence
Daub ert12 and Frye13 are the most prominent cases dealing with
admissibility of scientific evidence and expert testimony. While different
jurisdictions employ different admissibility standards, there are a number of
factors that can contribute relevant information to any admissibility
evaluation. First, evidence of a scientific theory is more likely to be admitted
in court if the techniques underlying that theory have been tested and if an
error rate has been determined. The theory of PAS does not employ any
assessable technique but rather, as stated in the Part 1 of this article, it is
based upon anecdotal evidence that was personally observed and reported
by Dr. Gardner. As a result, the accuracy of PAS theory has not been
rigorously studied and verified. Second, the reliability of scientific evidence
is more easily evaluated when it has been subject to peer review. As
previously indicated, Gardner published his own work and his writings were
not frequently subjected to scientific peer reviews.
Prosecutors should diligently question any case law or article that is cited
as supporting PAS theory. Some Web sites that discuss PAS refer to case
law as supporting the reliability of PAS theory, but the opinions in these
cited cases are often not adequately explained or they prove to be less
supportive of PAS theory than argued. Prosecutors reviewing literature that
is referenced as positive on PAS should scrutinize it carefully.14
Procedural Arguments
The strongest procedural argument against admission of PAS evidence vis
a vis expert testimony is that it invades the province of the jury. Most states
do not allow experts “to offer an opinion on the ultimate issue of fact as to
whether the sexual abuse has occurred.”15 In those states, prosecutors
should argue that allowing a PAS expert to testify that the allegations arose
out of a sour relationship between parents permits that expert to testify as
to the ultimate issue of the case.
Prosecutors in jurisdictions that have adopted the Federal Rules of
Evidence can argue for exclusion of PAS evidence under two rules. First,
under rule 104(a), a trial judge must make “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid.”16 PAS is not based on an easily articulable
methodology that can be assessed for scientific validity and, consequently,
prosecutors should argue that it fails even to pass the preliminary
assessment for validity.
Second, rule 403 states that evidence should be excluded when the
probative value is outweighed by the danger of unfair prejudice.17 There is
a possibility that the jury will see the court’s acceptance of defendant’s PAS
expert as a determination that the testimony presented by the expert
represents some scientific truth. Prosecutors should argue that it is within
the common experience of jurors to contemplate the possibility that the non-
accused parent planted ideas in the child’s head. Qualifying an expert to
testify about PAS creates the risk that the jury will place too much emphasis
and reliance on PAS evidence.
Sub stantive Arguments
A syndrome is a group of symptoms that appear to occur together.18
However, the cause of the symptoms is “often unknown or poorly
understood,” while the cause of a disease, by contrast, is usually known.19
It is possible for a syndrome to indicate a strong relationship between a
cause and a set of symptoms, but each syndrome falls in a different place
along the continuum of certainty. The continuum is a concept that explains
the strength and reliability of the supposed relationship.20
Some syndromes are nondiagnostic, which means that they do not point to
particular causes. PAS is a nondiagnostic syndrome.21 Thus, while an
expert can argue the legitimacy of the theories underlying PAS, the expert
is not able to point to a particular cause of the syndrome with certainty.
Even if courts reject arguments regarding unreliability, prosecutors should
remain acutely aware of how the evidence is being presented. If the expert
is offering an opinion regarding the cause of the “syndrome,” prosecutors
should object to the improper use of the evidence.
Quick Tips for Challenging PAS Evidence
There are many things that prosecutors can do to challenge PAS evidence
in child abuse cases:
• Challenge under Daubert/Frye. Argue that PAS evidence does not

Unfiled Notes Page 4

 • Challenge under Daubert/Frye. Argue that PAS evidence does not
meet the evidentiary standard in your jurisdiction.
• Know statistics and studies. Statistics about false reporting are
available through the National Center for the Prosecution of Child
Abuse (NCPCA) or from the National Clearinghouse on Child Abuse
and Neglect Information at http://nccanch.acf.hhs.gov.
• Know psychological dynamics of child ab use. Arm yourself with
information about child abuse disclosures. Learn the psychological
process of disclosure, the significance in the timing of disclosures,
recantation, and proper procedures for conducting forensic
interviews.22
• Share information. Share your motions, briefs, and transcripts with
other prosecutors. Create central files in the office so other
prosecutors do not have to reinvent the wheel.
• Write the APA. Send a letter to the American Psychiatric
Association23 to discourage inclusion of PAS in the DSM-V.
• Prepare your experts. Meet with your experts before trial to prepare
them for the defense expert and what you anticipate his or her
testimony will be.
• Contact the National Center for Prosecution of Child Ab use
(NCPCA). Call or E-mail the NCPCA with questions about child
abuse or expert testimony.
Conclusion
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.

1 Staff Attorney, American Prosecutors Research Institute, National Center for

Prosecution of Child Abuse.
2 Staff Attorney, American Prosecutors Research Institute, National Center for
Prosecution of Child Abuse.
3 See Ragland, Erika and Fields, Hope, Parental Alienation Syndrome: What
Professionals Need to Know , Update, Vol. 16, No. 5, Nov. 2003.
4 The earliest criminal opinion that addressed PAS w as handed dow n in Wyoming
in 1994. In McCoy v. State, defendant w as convicted of sexual assault and taking
indecent liberties w ith a minor. During the trial, the state called an expert to testify
about PAS. The state‟s expert provided an overall explanation of PAS and
concluded that the allegations of sexual assault w ere not fabricated, based on his
sessions w ith the sexual abuse victim as w ell as the theory of PAS. The defendant
appealed, claiming ineffective assistance and arguing that his attorney should
have called his ow n PAS w itness. The court disagreed and affirmed the
convictions on all counts. This case is unusual in that the prosecutor, rather than
the defendant, introduced the PAS evidence. How ever, practitioners should be
aw are of this decision.
5 State v. Koelling, 1995 Ohio App. LEXIS 1056.
6 658 N.Y.S.2d 787 (1997).
7 People v. Fortin, 289 A.D.2d 590 (N.Y. App. Div. 2001).
8 People v. Sullivan, 2003 Cal. App. Unpub. LEXIS 3316.
9 In review ing civil case law dealing w ith PAS, it is important to recognize that
there exists a theory that is similar to, but distinguishable from, PAS. Parental
Alienation is a related theory that focuses on parental behavior that could lead to
some change in the child‟s relationship w ith the other parent. PAS is
distinguishable in that it focuses on the behavior of the child in denigrating the
other parent w ithout justification. Darnall, Douglas. Parental Alienation: Not In the
Best Interest of the Children. 75 N. Dak. L. Rev. 323 (1999).
10 See generally, Pearson v. Pearson, 5 P.3d 239 (Alaska 2000) (PAS evidence
admitted by trial court); Chambers v. Chambers, 2000 Ark. App. LEXIS 476; Kirk v.
Kirk, 759 N.E.2d 265 (Ind. Ct. App. 2001); In re Marriage of Rosenfeld, 524
N.W.2d 212 (Iow a Ct. App. 1994); White v. Kimrey, 2003 La. App. LEXIS 1411;
Barton v. Hirschberg, 137 Md. App. 1 (2001); In re S.G., 2003 Ohio 161; Cabot v.
Cabot, 166 Vt. 485 (1997); In re Marriage of Shen, 2002 Wash. App. LEXIS 1075;
Conde v. Krueger, 2003 Wisc. App. LEXIS 638.
11 See C.J.L. v. M.W.B., 2003 Ala. Civ. App. LEXIS 100 (w hile PAS admitted at
trial, appellate court indicated that it may have been inadmissible under Frye);
Perlow v. Berg-Perlow , 816 So. 2d 210 (Fla. Dist. Ct. App. 2002) (objection to
admission of PAS in low er court not preserved for appeal); In Interest of T.M.W.,
553 So. 2d 260 (Fla. Dist. Ct. App. 1989) (PAS discussed by court, but not
accepted as a diagnostic tool); Perez v. DeBates, 2003 Ill. App. LEXIS 879 (court
changed language describing behavior to avoid idea of PAS); Ellis v. Ellis, 840 So.
2d 806 (Miss. 2003)(PAS evidence admitted only w ith a limited definition); J.F. v.
L.F., 694 N.Y.S.2d 592 (1999)(court held that w hile NY family courts discuss PAS
in terms of w hether a child w as programmed to disfavor one parent, courts do not
discuss the acceptability of PAS as a theory).
12 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
13 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
14 Articles on PAS that have been published in peer review ed journals are listed
on the w ebsite of Creative Therapeutics, the publisher of many texts on PAS by
Dr. Gardner, at w ww.rgardner.com/refs/pas_peerreviewarticles.html.
15 See, e.g., People v. Loomis, 658 N.Y.S.2d 787, 789 (1997).
16 Daubert.
17 Fed. R. Evid. 403
18 Myers, John E. B. Evidence in Child Abuse and Neglect Cases, Third Edition,

Unfiled Notes Page 5

 18 Myers, John E. B. Evidence in Child Abuse and Neglect Cases, Third Edition,
Vol. 1. John Wiley & Sons, Inc. New York, 1997.
19 Id. at 542.
20 Id. at 544.
21 Id. at 548.
22 Inquire w ith the Center about Finding Words, an intensive, w eek-long training
for Multi-Disciplinary Teams addressing these and other issues related to
interacting w ith children in sex abuse cases. Finding Words is offered nationally
once per year, and periodically throughout the year in states that have developed
their ow n Finding Words course.
23 The American Psychiatric Association can be reached at 1000 Wilson
Boulevard, Suite 1825, Arlington, Virginia 22209-3901, or via e-mail at
apa@psych.org.

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