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SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION-SECOND DEPARTMENT

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ERIN V. (Anonymous), Docket Nos.: 2016-02286
2016-02287
Plaintiff-Appellant-Respondent,
Westchester County
-vs.- Index: No.: 10602/2007

ROBERT V. (Anonymous),

Defendant-Respondent,

-and-

GRANT V. (Anonymous),

Non-Party-Respondent-Appellant.
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BRIEF OF AMICI CURIAE


DOMESTIC VIOLENCE LEGAL EMPOWERMENT AND APPEALS PROJECT,
SANCTUARY FOR FAMILIES, NEW YORK LEGAL ASSISTANCE GROUP, AND
HER JUSTICE IN SUPPORT OF PLAINTIFF-APPELLANT-RESPONDENT

SIDLEY AUSTIN LLP

James D. Arden
Dana R. Angood
787 Seventh Avenue
New York, New York 10019
Telephone: +1 212 839-5300
Facsimile: +1 212 839-5599

Attorneys for Amici Curiae


TABLE OF CONTENTS

INTRODUCTION ............................................................................................................... 1

STATEMENT OF INTEREST .................................................................................. 3


ARGUMENT ...................................................................................................................... 4

I. DUE PROCESS PROTECTS A PARENT' S RIGHT TO CROSS-


EXAMINE A CUSTODY EVALUATOR WHOSE
RECOMMENDATIONS BEAR UPON A COURT'S FINAL CUSTODY
DETERMINATION ................................................................................................ 4
A. Custody Determinations Implicate Parents' Fundamental Rights In The
Care And Custody Of Their Children And Therefore Trigger Due
Process Protections ................................................................................ 4
B. New York Law Aligns With National Precedent That Custody
Determinations Based On A Custody Evaluation Require An
Evidentiary Hearing Where The Parties Have The Opportunity To
Cross-Examine The Evaluator ............................................................... 6
C. A Prior Opportunity To Cross-Examine A Forensic Evaluator Does
Not Satisfy Due Process Requirements As To A Materially Different
Later Report ..........................................................................................12
II. "PARENTAL ALIENATION" IS AN UNSCIENTIFIC LABEL THAT
IMPEDES COURTS' ABILITY TO PROTECT A CHILD'S BEST
INTERESTS WHEN USED TO DISMISS A CHILD'S NEGATIVE
FEELINGS TOWARD A PARENT WITHOUT FIRST ASSESSING
THEIR CAUSE .............................................................................................. 15
A. Parental Alienation Syndrome Has Been Thoroughly Discredited ...... 16

B. PAS And Alienation Theory Continue To Drive Custody Decisions ..


............................................................................................................. 18

C. "Parental Alienation" Is No More Scientific Than PAS When Used To


Attribute A Child's Fear Or Rejection Of One Parent To The Other
Parent. ..........................................................................................................20
D. The Trial Court Misused The Alienation Label In A Biased And
Invalid Manner .....................................................................................22
TABLE OF CONTENTS (cont'd)

E. The Opportunity To Cross-Examine A Custody Evaluator Is


Particularly Critical Where An Alienation Finding Against One Parent
Is The Primary Grounds For Granting Custody To The Other Parent. .
............................................................................................................. 26

CONCLUSION ............................................................................................................ 27

11
TABLE OF AUTHORITIES
Cases

Bahr v. Bahr,
72 Wis.2d 145 (1976) .'.................................................................................. 9, 11

Barros v. Barros,
309 Conn. 499 (2013) ............................................................................................. 9

D.M S. v. !D.S.,
No. 2014-CA-0364, 2015 WL 926777 (La. Ct. App. Mar. 4, 2015) .................. 18

Doe v. Doe,
120 Haw. 149 (Haw. Ct. App. 2009) ...................................................................... 9

Goldberg v. Kelly,
397 U.S. 254 (1970) ................................................................................................ 5

Hill v. Hill,
20 Neb. App. 528 (Neb. Ct. App. 2013) ................................................................ 9

In re C.B.,
983 A.2d 1012 (D.C. 2009) .....................................................................................9

In re Guardianship of MEO,
138 P.3d 1145 (Wyo. 2006) .................................................................................... 9

In re Jewish Child Care Ass 'n of New York,


5 N.Y.2d 222 (1959) ............................................................................................... 6

In re Michael A., .
552 A.2d 368 (R.I. 1989).........................................................................................9

Jackson v. Jackson,
961 P.2d 393 (Wyo. 1998) ................................................................................. 9

Jorgensen v. Jorgensen,
194 Neb. 271 (1975) ........................................................................................... 9

111
TABLE OF AUTHORITIES (cont'd)

Kelley v. Kelley,
175 P.3d 400 (Okla. 2007)......................................................................................9

Kesseler v. Kesseler,
10 N.Y.2d 445 (1962) ............................................................................................ 7

M A. v. A.I.,
No. FM-20-973-09, 2014 WL 7010813 (N.J. Super. Ct. App. Div., Dec. 15,
2014) .................................................................................................................. 18

Malone v. Malone,
591 P.2d 296 (Okla. 1979)............................................................................ 9, 11

Mathews v. Eldridge,
424 U.S. 319 (1976) ............................................................................................ 5

Matter of Lisa W. v. Seine W.,


9 Misc.3d 1125(A) (Fam. Ct. Kings Cty. Aug. 25, 2005) ...................... 7, 12, 27

Matter of McCullough v. Harris,


119 A.D.3d 992 (3d Dep't 2014) ........................................................................ 7

Matter of Peek v. Peek,


79 A.D.3d 753 (2d Dep't. 2010) ......................................................................... 6

May v. Anderson,
345 U.S. 528 (1953) ............................................................................................ 5

Milne v. Goldenberg,
51 A.3d 161 (N.J. Super. Ct. App. Div. 2012) ...................................................... 9

Morgan v. Getter,
441 S.W.3d 94 (Ky. 2014) ............................................................................ 9, 10

Nebraska ex rel. Amanda M v. Justin T.,


279 Neb. 273 (2010) ........................................................................................... 9

IV
TABLE OF AUTHORITIES (cont'd)

New York v. Shannon S.,


20 N.Y.3d 99 (2012) .............................................................................................. 18

Obey v. Degling,
37 N.Y.2d 768 (1975) ..............................................................................................6

People in Interest of A.M D.,


648 P.2d 625 (Colo. 1982)............................................................................ 9, 11

People v. Fortin,
706 N.Y.S.2d 611 (Crim. Ct. Nassau Cnty. 2000), aff'd, 289 A.D.2d 590 (2d
Dep't 2001) ....................................................................................................... 18

People v. Sullivan,
Nos. H023715, H025386, 2003 WL 1785921 (Cal. Ct. App. Apr. 3, 2003) ..... 18

Prince v. Massachusetts,
321 U.S. 158 (1944) ................................................................................................4

Provost v. Nevitt,
No. S-13837, 2011 WL 2175984 (Alaska Jun. 1, 2011) ....................................... 9

Puccinelli v. Puccinelli,
364 Mont. 235 (2012) .............................................................................. 9, 14-15

Quarne v. Quarne,
601 N.W.2d 256 (N.D. 1999) ....................................................................... 9, 11

S.L. v. J.R. ,
·27 N.Y.3d 558 (2016) ........................................ :....................................... passim

Shanika M v. Stephanie G.,


108 A.D.3d 717 (2d Dep't 2013) ........................................................................ 7

Swor v. Swor,
2 So.3d 790 (Fla. Dist. Ct. App. 2009) ..........................................................9

v
TABLE OF AUTHORITIES (cont'd)

Troxel v. Granville,
530 U.S. 57 (2000) ..................................................................................................5

Wendlandt v. Johnson,
365 Mont. 1 (2012)............................................................................................ 15

Zahl v. Zahl,
273 Neb. 1043 (2007) .............................................................................................9

Ziehm v. Ziehm,
433 A.2d 725 (Me. 1981) ................................................................................... 9

Rules and Regulations

22 NYCRR § 202.16(g) .......................................................................................... 6-7

22 NYCRR § 202..18 ................................................................................................... 10

Treatises

19B Carmody-Wait 2d § 118A:77 (2017) ......................................................... 10, 14

19B Carmody-Wait 2d §124:34 (2017) ...................................................................... 10

Other Authorities

13(2-3) J. of Child Custody (2016) ............................................................................ 19

Carol Bruch, Parental Alienation Syndrome and Parental Alienation: Getting it


Wrong in Child Custody Cases, 35 Fam. L. Q. 527 (2001) ................................ 17

Vl
TABLE OF AUTHORITIES (cont'd)

Daniel G. Saunders et al., Child Custody Evaluators' Beliefs About Domestic


Abuse Allegations: Their Relationship to Evaluator Demographics,
Background, Domestic Violence Knowledge and Custody-Visitation
Recommendations, Final Technical Report Submitted to Nat'l Inst. of Justice,
U.S. Dep't of Justice (Oct. 31, 2011) .................................................................. 25

Janet R. Johnston et al., Is it Alienating Parenting, Role Reversal, or Child Abuse?


A Study of Children's Rejection of a Parent in Child Custody Disputes, 5 J.
Emotional Abuse 191 (2005) ............................................................................... 21

Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome:


Science, Law, and Policy, 26(1) Children's Legal Rights J. (2006) ................... 18

Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of


Parental Alienation Syndrome, 39(3) Fam. Ct. Rev. 249 (2001) ........................ 21

Joan B. Kelly and Janet R. Johnston, Rejoinder to Gardner's "Commentary on


Kelly and Johnston's The Alienated Child: A Reformulation of Parental
Alienation Syndrome," 42(4) Fam. Ct. Rev. (2004) ............................................. 20

Joan Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on
Family Court Cases Involving Abuse and Alienation, 35 J. of Law & Inequality
(2017) (in press) .................................................................................................... 20

Joan S. Meier, A Historical Perspective on Parental Alienation Syndrome and


Parental Alienation, 6 J. Child Custody 232 (2009) ...........................................17

Joan S. Meier, Parental Alienation Syndrome and Parental Alienation: A


Research Review, National Research Center on Domestic Violence (Sept.
2013) .................................... :............................................................................. "! 7

Joan Zorza, Friendly Parent Provisions in Custody Determinations, 26(8)


Clearinghouse Rev. (1992) .................................................................................. 25

Joyanna Silberg et al., Crisis in Family Court: Lessons From Turned Around
Cases, Final Report to the Office of Violence Against Women, Dep't of Justice
(Sept. 30, 2013), http://www.protectiveparents.com/ crisis-fam-court-lessons-
tumed-around-cases. pdf ........................................................................................ 19

Vll
TABLE OF AUTHORITIES (cont'd)

Leslie M. Drozd & Nancy Williams Olesen, Is it Abuse, Alienation, and/or


Estrangement? A Decision Tree, 1 J. Child Custody 65 (2010) ....................... 26

Niko Trocme & Nicolas Bala, False Allegations of Abuse and Neglect When
Parents Separate, Child Abuse & Neglect 29, 1333-45 (2005)..........................17

Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation


Between Fabricated and Genuine Child Sex Abuse (1987) ................................ 16

Richard A. Gardner, The Parental Alienation Syndrome: A Guide for Mental


Health and Legal Professionals (1992) ............................................................. 16

Richard A. Gardner, True and False Accusations of Child Sex Abuse (1992) .........16

Richard Gardner, Differentiating Between Parental Alienation Syndrome and Bona


Fide Abuse-Neglect, 27 Am. J. Fam. Therapy 97 (Apr.-Jun. 1999) ................... 26

Robert Geffner, Editor's Note about the Special Section, 13(2-3) J. of Child
Custody (2016),
http://www.tandfonline.com/doi/full/10.1080/15379418.2016.1221270 .............. 19

William Bernet, Parental Alienation: Misinformation Versus Fact, Judge's J. (Jan.


2015) ...................................................................................................................... 20

Zoe Garvin, The Unintended Consequences of Rebuttable Presumptions on Child


Custody in Domestic Violence Cases, 50(1) Fam. Law Q. 19 (Spring 2016) ...25

viii
INTRODUCTION

The Domestic Violence Legal Empowerment and Appeals Project

("DVLEAP"), Sanctuary for Families ("Sanctuary"), New York Legal Assistance

Group ("NYLAG" ), and Her Justice (collectively, the "Proposed Amici")

respectfully submit this brief in support of the appeal by Plaintiff-Appellant-

Respondent E.V. ("Appellant" or "mother") from the Decisions and Orders of the

Supreme Court, Westchester County (John P. Colangelo, J.), dated February 29

and February 26, 2016, which (i) granted the application of Defendant-Respondent

R.V. ("Respondent" or "father") to change legal and physical custody of child

G.V. from the mother to the father, after receiving an "updated" forensic mental

health evaluation without a hearing; and (ii) denied the mother's motion for an

order rejecting the "updated" evaluation because it did not fulfill the mandate of

this Court's order and was admitted into evidence without any opportunity to

cross-examine the expert on the "updated" report. See A. 5-15; 21-30.

It is axiomatic that parents have a fundamental liberty interest in the custody

and care of their children, with attendant due process protections. Last year, in S.L.

v. J.R., 27 N.Y.3d 558 (2016), the Court of Appeals held that custody

determinations based on an expert evaluation require an evidentiary hearing in

which parents are afforded an opportunity to cross-examine the expert, rejecting

the notion that a hearing was not required so long as the court possessed "adequate
relevant information" to render a custody determination. Id. at 564. The S.L.

decision expressly held that a court could not rely on recommendations where the

evaluator's "opinions and credibility were untested by either party." Id.

Proposed Amici are concerned by any judicial consideration of a custody

evaluation report without allowing affected parents the opportunity to cross-

examine the evaluator regarding that report, which violates parents' constitutional

right to due process. Proposed Amici further seek to show how parental alienation

theories are often invoked in disputed custody cases in the same harmful manner as

their discredited predecessor, Parental Alienation Syndrome ("PAS"), diverting

attention away from behaviors of the "alienated" parent that might cause or

contribute to the child's rejection of that parent and instead focusing blame on the

"alienating" parent as the cause of that rejection.

Proposed Amici urge this Court to uphold, consistent with the S.L. decision,

parents' due process right to confront and cross-examine the author of a forensic

report that the court has relied on in making its final custody determination.

Proposed Amici further seek to deepen this Court's understanding of how parental

alienation theories can influence custody determinations in ways detrimental to

children.

2
STATEMENT OF INTEREST

DVLEAP, founded in 2003, provides a voice for justice by helping overturn

unjust trial court outcomes, advancing legal protections for victims and their

children through expert appellate advocacy, training lawyers, psychologists and

judges on best practices, and spearheading domestic violence litigation in the

United States Supreme Court. DVLEAP has co-authored amicus briefs in

numerous state courts and in the United States Supreme Court. DVLEAP is a

partnership of the George Washington University Law School and a network of

participating law firms.

Sanctuary is the largest nonprofit in New York dedicated to serving

domestic violence victims, sex-trafficking victims, and their children. Sanctuary's

family and matrimonial law projects routinely represent victims in child custody

proceedings in New York City and surrounding areas. Sanctuary also conducts

outreach to help communities respond to domestic violence issues, and trains

thousands of professionals every year.

NYLAG, founded in 1990, is a not-for-profit organization dedicated to


. .

providing free civil legal services to New York's low income families. The

Matrimonial & Family Law Unit of NYLAG provides legal consultation and

representation to domestic violence victims on a priority basis. In addition to

obtaining orders of protection, NYLAG represents victims in child protection,

3
custody, visitation, child and spousal support, and matrimonial matters. NYLAG

has a particular expertise in complex child custody matters, including relocation

and jurisdictional disputes.

Her Justice has been dedicated to making quality legal representation

accessible to low-income women in New York City since 1993. Her Justice's

mission is to make a real and lasting difference in the lives of low-income,

underserved, and abused women through legal services designed to foster equal

access to justice and an empowered approach to life. Her Justice provides legal

services to over 3,000 women every year in all five boroughs of New York City,

through staff attorneys and volunteer attorneys from New York City law firms.

Her Justice has extensive experience representing mothers in complex custody

cases in the New York City family courts.

ARGUMENT

I. DUE PROCESS PROTECTS A PARENT'S RIGHT TO CROSS-


EXAMINE A CUSTODY EVALUATOR WHOSE
RECOMMENDATIONS BEAR UPON A COURT' S FINAL
CUSTODY DETERMINATION.
A. Custody Determinations Implicate Parents' Fundamental Rights
In The Care And Custody Of Their Children And Therefore
Trigger Due Process Protections.
It is well-established that the right of parents to the care, custody, and

control over their children is a fundamental liberty interest guaranteed by the

Fourteenth Amendment. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944)

4
("It is cardinal with us that the custody, care and nurture of the child reside first in

the parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder."). This right is "perhaps the

oldest of the fundamental liberty interests" recognized by the Supreme Court.

Troxel v. Granville, 530 U.S. 57, 65 (2000).

The government may not infringe upon a person's fundamental liberty

interests without first affording that person procedural due process. Although the

degree of procedural protection required by the Constitution varies depending upon

factors such as the private interests at stake and the risk of error created by the

chosen procedure, in all cases due process requires-at a minimum-notice and

the opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970);

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ("[S]ome form of hearing is

required before an individual is finally deprived of a property [or liberty]

interest.").

Custody determinations implicate parents' fundamental liberty interests in

the care and custody of their children. See May v. Anderson, 345 U.S. 528, 533

(1953) (holding that by granting custody to the father, the state court cut off the

mother's "immediate right to the care, custody, management and companionship of

her minor children"). Accordingly, procedural due process requires that a final

5
custody decree may be issued only after an evidentiary hearing in which the parent

is afforded a meaningful opportunity to be heard.

B. New York Law Aligns With National Precedent That Custody


Determinations Based On A Custody Evaluation Require An
Evidentiary Hearing Where The Parties Have The Opportunity
To Cross-Examine The Evaluator.

New York has long recognized that the interest of parents in the custody and

care of their children is a constitutionally protected fundamental right. See, e.g., In

re Jewish Child Care Ass'n of New York, 5 N.Y.2d 222, 230 (1959) ("The

paramount parental right to raise one's own child, which we regard as

fundamental, is to be protected not only from direct and immediate incursion . . .

but also from indirect and less proximate subversion[.]"). Given the nature of the

rights at stake, it is well established under New York law that a final custody

determination may be made only after "a full and plenary hearing and inquiry"

during which the record is fully developed. Obey v. Degling, 37 N.Y.2d 768, 769-

70 (1975); see also Matter of Peek v. Peek, 79 A.D.3d 753, 754 (2d Dep't. 2010)

("[A]s a general rule, it is error to make an order respecting custody based upon

controverted allegations without the benefit of a full hearing.").

In the context of a custody determination, the due process right to a full and

plenary hearing encompasses the right of a parent litigant to cross-examine the

source of an adverse custody evaluation report. Indeed, New York has codified

this right. See 22 NYCRR § 202.16(g)(2) ("In the discretion of the court, written

6
reports may be used to substitute for direct testimony at the trial, but the reports

shall be submitted by the expert under oath, and the expert shall be present and

available for cross-examination. ") (emphasis added). New York case law is

equally clear on this point. See, e.g., Kesseler v. Kesseler, 10 N.Y.2d 445, 452

(1962) (holding that a trial court cannot rely on independent expert reports unless

the parties have consented to the use of such reports or are afforded an opportunity

to cross-examine the expert and submit a rebuttal report); Matter of McCullough v.

Harris, 119 A.D.3d 992, 993 (3d I)ep't 2014) (holding that the trial court erred in

failing to allow the parties to "avail themselves of the usual attributes of a hearing,

including the opportunity . . . to conduct cross-examination"); Shanika M v.

Stephanie G., 108 A.D.3d 717, 719 (2d Dep't 2013) (remitting matter for reopened

hearing "at which any forensic evaluation report shall be admitted and the parties

shall have the opportunity to cross-examine the evaluator . . . "). Absent consent,

no forensic opinion evidence may be admitted in a custody proceeding unless each

parent is first granted the "right to review the reports, receive a full and fair

opportunity to expose inadequacies on cross-examination, and present material in

rebuttal." Matter of Lisa W. v. Seine W., 9 Misc.3d 1125(A), at *7 (Fam. Ct. Kings

Cty. Aug. 25, 2005).

Some New York courts for a time recognized a narrow exception to this

hearing requirement in cases where the court possessed "adequate relevant

7
information" to render a custody determination. The Court of Appeals recently

rejected that standard, holding that it did not adequately protect either the best

interest of the child or "a parent whose fundamental right-the right to control the

upbringing of a child-hangs in the balance." S.L. v. J.R., 27 N.Y.3d 558, 564

(2016) (internal citation and quotation marks omitted). In S.L., the trial court

issued its final custody determination without affording the mother the right to

challenge the forensic evaluator's adverse opinions through cross-examination. On

appeal, New York's highest court spoke directly to the issue at bar, expressly

holding that a court could not rely on the court-appointed forensic evaluator's

report where the evaluator's "opinions and credibility were untested by either

party." Id. Clearly, when an evaluator's recommendations have materially

changed in a subsequent report, the evaluator's new recommendations are

"untested"-and therefore inadmissible under S.L.-if the trial court withholds the

opportunity to cross-examine the evaluator on such new recommendations.

The decision in S.L. v. J.R. brought New York law fully in line with national

precedent holding that custody determinations based on a custody evaluation

require an evidentiary hearing in which parent litigants are afforded an opportunity

8
to cross-examine the source of the custody evaluation report. The case law is

abundant and consistent on this point. 1

For instance, in Barros v. Barros, 309 Conn. 499, 512 (2013), the

Connecticut Supreme Court clearly laid out the due process parameters where a

court relies on a custody evaluation in making a custody determination: "[I]f a

court bases its custody decision, even in part, on an independent report, the parties

. . . must be given the opportunity to examine the report and must be allowed the

opportunity to cross-examine the investigator and to produce outside witnesses to

establish any inaccuracies the report may contain" (citation and internal quotation

marks omitted). The Barros court found that due process was satisfied where the

existing procedures afforded defendant "a meaningful opportunity to be heard and

to contest any inaccuracies in the evaluator's findings before the trial court makes

its determination." Id. at 512-13.

1
See, e.g., Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014); Barros v. Barros, 309 Conn. 499,
512-13 (2013); Puccinelli v. Puccinelli, 364 Mont. 235, 241 (2012); Provost v. Nevitt, No. S-
13837, 2011 WL 2175984, at *2 (Alaska Jun. 1, 2011); Nebraska ex rel. Amanda M v. Justin T.,
279 Neb. 273, 281-82 (2010); In re CB., 983 A.2d 1012, 1022-23 (D.C. 2009); Zahl v. Zahl, 273
Neb. 1043, 1052 (2007); Kelley v. Kelley, 175 P.3d 400, 406 (Okla. 2007); In re Guardianship of
MEO, 138 P.3d 1145, 1156 (Wyo. 2006); Quarne v. Quarne, 601 N.W.2d 256, 257 (N.D. 1999);
Jackson v. Jackson, 961 P.2d 393, 396 (Wyo. 1998); In re Michael A., 552 A.2d 368, 370 (R.I.
1989); People in Interest of A.M D., 648 P.2d 625, 641 (Colo. 1982); Ziehm v. Ziehm, 433 A.2d
725, 728-29 (Me. 1981); Malone v. Malone, 591 P.2d 296, 297 (Okla. 1979); Bahr v. Bahr, 72
Wis.2d 145, 150 (1976); Jorgensen v. Jorgensen, 194 Neb. 271, 276 (1975); Hill v. Hill, 20 Neb.
App. 528, 536-38 (Neb. Ct. App. 2013); Milne v. Goldenberg, 51 A.3d 161, 171 (N.J. Super. Ct.
App. Div. 2012); Doe v. Doe, 120 Haw. 149, 168-70 (Haw. Ct. App. 2009); Swor v. Swor, 22
So.3d 790, 792-93 (Fla. Dist. Ct. App. 2009).

9
Likewise, in Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014), the Supreme

Court of Kentucky held that a mother's right to due process in a custody

proceeding included the right to cross-examine the child's guardian ad litem

(GAL)2 regarding his evidentiary report recommending a grant of custody to the

father. The court found that the trial court erred by accepting into evidence the

GAL's report but denying the mother's request to cross-examine the GAL. "By

disallowing cross-examination of the GAL," the trial court had "created a real and

substantial risk that [the mother]'s fundamental interests would be erroneously

impaired," as "[t]he GAL's findings and recommendations were almost all adverse

to [the mother]," and "[w]ithout the vital tool of cross-examination, [the mother]'s

ability to challenge the GAL's report was severely limited." Id. at 111-12. Noting

"the fundamental importance of cross-examination [as] an aspect of the right to be

heard," the court held that "without the opportunity to cross-examine the GAL

himself, [the mother] had no means of probing his assumptions and potential

biases, a probing that could well have affected the trial court's assessment of his

recommendations. " Id. at 112.

2
While GALs and forensic custody evaluators play different roles in New York, for the purposes
of a court's best interest analysis in child custody proceedings, their roles are similar: both are
appointed by the court to assist in assessing the child's best interests, both engage in fact-finding,
testify, and apprise the court of their findings, and both are neutral in relation to the parents. See
19B Carmody-Wait 2d §§ l 18A:77, 124:34 (2017); 22 NYCRR § 202.18.

10
Similarly, in Malone v. Malone, 591 P.2d 296, 297 (Okla. 1979), the

Supreme Court of Oklahoma held that the lower court violated a father's due

process rights by relying on an investigative report to modify custody without

receiving the report in open court and providing the opportunity for cross-

examination of the author.3 The Malone court held that due process requires that

parties must be afforded "every opportunity to test the credibility of the

investigator through cross-examination and confrontation, and to meet or answer

every adverse fact or inference included therein." Id. at 297-99; see also Quarne v.

Quarne, 601 N.W.2d 256, 257 (N.D. 1999) ("A trial court commits reversible error

when it relies on facts in an investigator's report for purposes of making a custody

decision without allowing the parties an opportunity to call and cross-examine the

investigator . . . ."); People in Interest of A.M D., 648 P.2d 625, 641 (Colo. 1982)

(evaluative reports may not be admitted into evidence unless "the persons who

wrote the reports or prepared the material contained therein are available for direct

or cross-examination" ); Bahr v. Bahr, 72 Wis.2d 145, 150 (1976) (warning against

accepting reports from social workers, psychiatrists and others without providing

3
While Malone involved an exparte, post-trial home study report, the court's ruling
encompassed all expert reports used to determine best interests: "Reports of experts are aids to
the court in contested custody matters. However . . . [i]f such reports are taken into
consideration by the trial court, they must be made available to counsel, and the preparers thereof
subject to cross-examination. " Id. at 298.

11
copies to both sides and "an opportunity to cross-examine the person making

them").

C. A Prior Opportunity To Cross-Examine A Forensic Evaluator


Does Not Satisfy Due Process Requirements As To A Materially
Different Later Report.
A parent litigant's previous opportunity to cross-examine a custody

evaluator cannot satisfy due process where a court considers subsequent,

contradictory recommendations that are not subject to cross-examination. The

right to cross-examine a custody evaluator is necessary to provide parents with "a

meaningful opportunity to be heard and to contest any inaccuracies in the

evaluator's findings before the trial court makes its determination." Barros, 309

Conn. at 512-13. It necessarily follows that when the conclusions and

recommendations set forth in an evaluator's updated report differ significantly

from those in a prior report, the opportunity to cross-examine the evaluator on the

earlier report alone cannot meet the requirements of due process, as the parent is

deprived of any opportunity to challenge inaccuracies in the second report. See,

e.g., Matter of Lisa W., 9 Misc. 3d at *7 (admissibility of expert reports is subject

to each parent's "right to review the reports, receive a full and fair opportunity to

expose inadequacies on cross-examination, and present material in rebuttal").

Here, while there was an opportunity during trial to cross-examine the

custody evaluator, Dr. Herman, regarding his initial custody report, appellant was

12
deprived of any opportunity to cross-examine Dr. Herman regarding the materially

different findings and recommendations set forth in his updated, subsequent report.

This updated report was admitted into evidence without affording appellant an

opportunity to confront and question Dr. Herman regarding the basis for his

reversal of opinion.

Dr. Herman's initial report, submitted on January 31, 2012, concluded that it

was in the child's best interest that appellant retain physical custody and found that

any alienating behavior on the part of appellant was unintentional. R. 766-69; 803;

892-94; 6471-73. During cross-examination, Dr; Herman acknowledged that he

did not identify any behavior from the child or appellant that clearly constituted

alienation. R. 890-91; 893-94; 896-97; 902-03. He further testified on cross-

examination that he did not attempt to explore or verify the child's expressed

concerns regarding the father's behavior as causes for resisting contact, nor did he

attempt to investigate appellant's concerns regarding the father's parenting and

treatment of the child. Most notably, Dr. Herman conceded that appellant's

concerns, if true, might indeed be appropriate. R. 935-38.

In its July 22, 2015 ruling, the Court ordered an updated custody evaluation

because it found the then three-and-a-half-year-old initial report insufficient given

the long lapse of time and "the pace of psychological development of the child

whose best interest is the primary concern." A. 6, 141 (citations omitted). Dr.

13
Herman submitted a second, updated report on December 14, 2015. A. 22. This

updated report reached a starkly different conclusion, finding that the mother had

"deftly alienated [child] from his father" and that the father should be awarded

primary physical and sole legal custody, including "final decision-making of all

aspects of [child]'s growth and development." A. 24, 27. Due process mandates

that appellant be provided an opportunity to question the basis for Dr. Herman's

complete reversal of opinion.

While it appears that New York courts have not squarely addressed this

situation, other jurisdictions leave no question regarding the requirements of due

process when a court relies on an investigative custody report providing new,

untested information. For example, in Puccinelli v. Puccinelli, 364 Mont. 235, 241

(2012), the Montana Supreme Court held that the trial court's reliance on a revised

GAL4 report recommending custody to the father that was received after the final

hearing-at which the GAL had supported the parties' agreement to share equal

custody-violated the mother's due process rights. Even though, unlike in the

instant case, the mother was given an opportunity to submit written objections to
. .

the revised report, the court held that such opportunity did not satisfy the mother's

4
While a GAL is not a neutral expert inthe same sense as a custody evaluator, since the GAL
owes a duty ofloyalty to the interests of his or her ward, both the GAL and traditional custody
evaluator roles in the context of disputed custody cases involve fact-finding and testimony
regarding child custody issues. See, e.g., 19B Carmody-Wait 2d § 118A:77 (2017).

14
due process right to confront and cross-examine the GAL regarding the new and

different conclusions contained in the GAL's post-hearing report:

Because the GAL ... radically revised her parenting recommendations


following the final hearing, [the mother] had no opportunity to cross-
examine her concerning her conclusions. While [the mother] did have the
opportunity to submit written objections or comments to the GAL reports,
such opportunity does not satisfy the due process right to confront and cross-
examine an adverse witness.

Id.; see also Wendlandt v. Johnson, 365 Mont. 1, 6 (2012) (holding that father must

be afforded a hearing on GAL's report and provided the opportunity for cross-

examination where the report "contained additional findings, updated information

and new recommendations").

II. "PARENTAL ALIENATION" IS AN UNSCIENTIFIC LABEL THAT


IMPEDES COURTS' ABILITY TO PROTECT A CHILD'S BEST
INTERESTS WHEN USED TO DISMISS A CHILD'S NEGATIVE
FEELINGS TOWARD A PARENT WITHOUT FIRST ASSESSING
THEIR CAUSE.

In this case, the custody evaluator and the trial court painted appellant as a

conniving, vindictive mother bent on harming a father's relationship with his son.

They based this characterization around the label of "alienation." However, courts

. frequently use "alienation" identically to its predecessor, "Parental Alienation

Syndrome," which has been roundly debunked by scientific and professional

authorities. In this case, the court used the "alienation" label to justify harsh,

gender-biased mischaracterizations of the mother's efforts to seek professional

mental health care assistance to help to address the child's fear of his father.

15
A. Parental Alienation Syndrome Has Been Thoroughly
Discredited.

Parental Alienation Syndrome (or "PAS") was invented in the 1980s by Dr.

Richard Gardner. Based solely on his own experience, Gardner described PAS as

a "syndrome" whereby vengeful mothers (and largely only mothers) employed

child abuse allegations as a powerful weapon to punish ex-husbands and ensure

custody to themselves. 5 Gardner further demonized mothers who report child

abuse-particularly child sexual abuse-characterizing them as enlisting their

children in their "campaign of denigration" and "vilification" of the father, often

by "brainwash[ing]" or "program[ming]" the children into believing untrue claims

of the father's abuse.6 Gardner also suggested that some mothers' purported

vendettas were the product of pathology. 7

Perhaps in part because PAS provided a quasi-scientific explanation for the

high numbers of painful and disturbing child abuse reports in family court, the

theory took hold. Many courts and court-appointed evaluators embraced Gardner's

underlying assumptions that most abuse claims in custody cases are fabricated by

custodial mothers against innocent, noncustodial fathers. Indeed, the application of

5
See Richard A. Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and
Legal Professionals (1992).
6
See Richard A. Gardner, True and False Accusations of Child Sex Abuse, 162, 193 (1992).
7
Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation Between
Fabricated and Genuine Child Sex Abuse 109 (1987).

16
PAS in custody actions has expanded beyond the child sexual abuse context

Gardner originally focused on to encompass many mothers who express concerns

about a father's parenting. 8

There is no empirical evidence supporting the PAS theory and substantial

empirical evidence contradicting its underlying assumptions. In the largest study

of its kind, leading researchers analyzed the 1998 Canadian Incidence Study of

Reported Child Abuse and Neglect. They found that only 12% of child abuse or

neglect allegations made in the context of litigation over child access were

intentionally false. Notably, the primary source (43%) of these intentionally false

reports was noncustodial parents (typically fathers ). Only 14% of knowingly false

claims were made by custodial parents (typically mothers), and 2% by children.9

For these reasons and others, both scientific and professional authorities have

roundly rejected PAS. 10 Indeed, leading researchers concur that "the scientific

status of PAS is, to be blunt, nil," and the former president of the American

8
Carol Bruch, Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in
Child Custody Cases, 35 Fam. L. Q. 527, 535-36 (2001); Joan S. Meier, Parental Alienation
Syndrome and Parental Alienation: A Research Review, National Research Center on Domestic
Violence, at 1-3 (Sept. 2013).
9
Niko Trocme & Nicolas Bala, False Allegations of Abuse and Neglect When Parents Separate,
Child Abuse & Neglect 29, 1333-45 (2005).
10
See Joan S. Meier, A Historical Perspective on Parental Alienation Syndrome and Parental
Alienation, 6 J. Child Custody 232, 235-36 (2009) (citing multiple scientific, legal and
professional authorities rejecting scientific validity of PAS).

17
Psychiatric Association has characterized PAS as "junk science."11 It has thus

been repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of

Mental Disorders ("DSM").12

Not surprisingly, PAS has been deemed inadmissible as invalid science by

every appellate court in this country that has addressed the issue. See, e.g., People

v. Fortin, 706 N.Y.S.2d 611, 613-14 (Crim. Ct. Nassau Cnty. 2000), aff'd , 289

A.D.2d 590, 591 (2d Dep't 2Q01); M A. v. A.I , No. FM-20-973-09, 2014 WL

7010813, at *5 (N.J. Super. Ct. App. Div., Dec. 15, 2014), cert. denied , 112 A.3d

592 (2015); D.M S. v. lD.S., No. 2014-CA-0364, 2015 WL 926777, at *9 (La. Ct.

App. Mar. 4, 2015); People v. Sullivan, Nos. H023715, H025386, 2003 WL

1785921, at *13-*14 (Cal. Ct. App. Apr. 3, 2003). 13

B. PAS And Alienation Theory Continue To Drive Custody


Decisions.
Despite their lack of scientific validity, PAS and related alienation theories

continue to dominate custody litigation where a mother seeks to limit a father's

access to a child. The editors of the Journal of Child Custody recently devoted two

11
Id.
12
Published by the American Psychiatric Association, the DSM is the mental health profession's
most well-respected and widely used diagnostic manual. See, e.g., New York v. Shannon S., 20
N.Y.3d 99, 104 (2012) (describing the DSM as "an authoritative text widely used in the mental
health profession").
13
See also Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome:
Science, Law, and Policy, 26(1) Children's Legal Rights J. (2006).

18
full issues to PAS and the renamed "Parental Alienation Disorder" ("PAD") 14

because, despite consensus among professionals that PAS and PAD have been

thoroughly discredited, they are still being used regularly in custody litigations.

The editors stated:

It is hoped that the commentaries in this section help us get back to research
and actual theories rather than junk science that can negatively affect
traumatized children for years to come. It is also hoped the field can focus
on objective data and observable behaviors within an accepted theoretical
framework when making child custody recommendations and decisions
rather than on assumptions, confirmatory biases, and circular arguments
because those involved do not want to believe that a child has been
victimized or traumatized. 15

The harmful impact of the misuse of alienation theory is increasingly

documented in cases involving abuse. Stephanie Dallam, RN, PhD, and Joyanna

Silberg, PhD, collected and analyzed "turned-around cases," where the family

court initially rejected child abuse claims, but a subsequent court credited the

abuse, leading to reversal of the initial custody arrangement. The most frequent

error underlying the initial harmful orders was application of the "alienation" label

to mothers' attempts to protect their children. 16 Another pilot study empirically

14
13(2-3) J. of Child Custody (2016).
15
Robert Geffner, Editor's Note about the Special Section, 13(2-3) J. of Child Custody (2016),
http://www.tandfonline.com/doi/full/10.1080/15379418.2016.1221270.
16
Joyanna Silberg et al., Crisis in Family Court: Lessons From Turned Around Cases, Final
Report to the Office of Violence Against Women, Dep't of Justice (Sept. 30, 2013),
http://www.protectiveparents.com/crisis-fam-court-lessons-turned-around-cases.pdf.

19
analyzed custody cases involving alienation and abuse claims and found that where

fathers allege alienation against a mother alleging paternal abuse, courts remove

custody from the mothers 50-69% of the time. In every case where a father was

found to have committed child or adult abuse, if the mother was also considered to

be an alienator, the father won the case.17

C. "Parental Alienation" Is No More Scientific Than PAS When


Used To Attribute A Child's Fear Or Rejection Of One Parent To
The Other Parent.
While some forensic experts and researchers distinguish parental alienation

("PA" or "alienation") from PAS, conceding the latter is unscientific, 18 others

assert that PAS and PA are essentially the same thing. 19 In court, however, there is

less dispute-PA is often used identically to PAS to fault one parent for a child's

resistance to the other parent, rather than objectively considering the child's

experiences with the feared or disliked parent as the source of those feelings.

17
Joan Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Court
Cases Involving Abuse and Alienation, 35 J. of Law & Inequality (2017) (in press), at 18
("[W]hile fathers had an overall rate of win of 38% when abuse was substantiated, this win rate
is driven by findings of alienation."). As a result of these preliminary findings, the authors and a
team of colleagues received a grant from the National Institute of Justice to expand, deepen, and
strengthen the statistical inquiry. 2014-MU-CX-0859, at
https://www.nij.gov/funding/awards/Pages/2014.aspx#.
18
Joan B. Kelly and Janet R. Johnston, Rejoinder to Gardner's "Commentary on Kelly and
Johnston's The Alienated Child: A Reformulation of Parental Alienation Syndrome," 42(4) Fam.
Ct. Rev. 622-28 (2004).
19
William Bernet, Parental Alienation: Misinformation Versus Fact, Judge's J. (Jan. 2015), at
25 (describing the two concepts as "almost synonymous").

20
Recognizing the conflation of the two theories, a leading judicial

association, the National Association of Juvenile & Family Court Judges,

published the following guidelines for custody courts addressing alienation claims:

The discredited "diagnosis" of "PAS" (or allegation of ''parental


alienation "), quite apart from its scientific invalidity, inappropriately asks
the court to·assume that the children's behaviors and attitudes toward the
parent who claims to be "alienated" have no grounding in reality. It also
diverts attention away from the behaviors of the [disliked] parent, who may
have directly influenced the children's responses by acting in violent,
disrespectful, intimidating, humiliating and/or discrediting ways toward the
children themselves, or the children's other parent.20

On a theoretical level, PA proponents distinguish it from PAS on the

grounds that PA recognizes that a child who is alienated from a parent is virtually

always reacting to "multiple determinants," rather than the favored parent's sole

influence.21 Indeed, the existing credible alienation research has consistently

concluded that the dominant factor in children's alienation from a parent tends to

be that parent's own behaviors toward the child, such as child abuse, inadequate

parenting, and the child's own developmental or personality challenges.22 To the

extent that alienation is relevant in a custody case, then, it is only valid when all of

20
See Meier, supra note 8, at 5 (emphasis added).
21
Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of Parental
Alienation Syndrome, 39(3) Fam. Ct. Rev. 249, 251-52 (2001).
22
Id.; see also Janet R. Johnston et al., Is it Alienating Parenting, Role Reversal, or Child
Abuse? A Study of Children's Rejection of a Parent in Child Custody Disputes, 5 J. Emotional
Abuse 191, 206 (2005).

2
1
the "multiple determinants" of a child's hostility to a parent are considered-most

importantly, the disliked parent's own behaviors.

In this case, however, the court relied on the alienation construct in an

entirely one-sided assessment of each parent and failed to consider indications that

the father's parenting deficits were the true source of the child's fears.

D. The Trial Court Misused The Alienation Label In A Biased And


Invalid Manner.

The hostility toward mothers embedded in PAS theory is strikingly visible in

the trial court's 42-page opinion, which contains conspicuous indications of odium

toward the mother for what it viewed as her efforts to alienate the child from his

father. The court describes appellant as presenting a "clawing" presence (A. 119)

and characterizes her reaction to her child's diagnosis of post-traumatic stress

disorder as "exalt[ing]" (A. 114). The court portrays appellant as using custody as

a "weapon" against the father (A. 113) and states that she "regaled" other

professionals with "stories of [father's] purported untoward and abusive behavior .

. . that [she] did not actually believe," for "the evident purpose of poisoning the

psychological well" (A. 'I 16), all of which it concludes she did "to deprive [child

of] a meaningful relationship with his father" (A. 134-35). The court excoriated

appellant for her "cynical[]" reporting of what it termed the "'butt cream' story"

(A. 115), but disregarded emails detailing appellant's attempts to discuss her-and

the pediatrician's-concerns with the father, and disallowed her explanatory

2
2
testimony. See R. 1434; 1448-49; 1451; 2977-80; 3024-34; 3040-41; 3066-73;

3092; 6068-71; 3040-3041. The court also pointedly states that appellant's Family

Offense Petition against the father was dismissed (A. 101), but fails to

acknowledge that a Family Offense Petition on behalf of herself and the child was

granted and in place against the father for a full year, from April 2007 to April

2008 (R. 5927-29).

Consistent with alienation theory, not only is the mother demonized, but the

father's flaws are disregarded or whitewashed. In contrast to its copious, annotated

descriptions of the mother's harmful parenting deficits, the trial court's assessment

of the father is cursory, glowing, and devoid of record support. The court

describes the father's support for the child's relationship with his mother and

emphasizes his paramount concern for the child's well-being (A. 135) without

providing even one example. As such, the opinion lacks even a pretense of

meaningful inquiry into the basis of the mother's and child's concerns.

The absence of discussion of the father's parenting flaws cannot be

attributed to a lack of evidence. On the contrary, the record below reflects


. .

numerous indications that the father's treatment of the child had a harmful impact.

In a 2008 custody decision granting the mother physical custody and final

decision-making authority, a prior judge expressed serious concerns about the

father's parenting, noting that he "seemed to lack appropriate respect for or

2
3
understanding of the child's stages of emotional and social development, insisting

instead upon standards of behavior clearly beyond the developmental level of the

child." R. 6482. Dr. Herman, in his first report recommending that appellant

retain custody, described the father as "very angry" and in need of therapy to help

him relate to the child. R. 785; 936; 6472. This assessment echoes that of the first

forensic evaluator, appointed at the outset of the litigation, who recommended

primary custody to the mother and that the father receive counseling to deal with

his anger issues. R. 5747-49. The father acknowledged in testimony that the

child's former therapist, Dr. Lobel, who also found the father to be "angry,"

"hostile," and "not empathetic with the child," suggested that he participate in

therapy with the child.23 R. 936-37; 1784-85; 6469. Indeed, the trial court

ordered, on Dr. Herman's recommendation, that before the father spent additional

time with the child, both parties participate in parenting therapy. R. 637-47; 1111;

6472-73. Yet, the father has refused to pursue any form of therapy or anger

management counseling. R. 785; 3610-12; 3616-17; 6469. Both the mother's and

the child's attempts to bring their concerns about the father to the court's attention
. .

were denied or ignored. The trial court repeatedly sustained father's counsel's

23
Dr. Lobel explained that the basis for this.concern was the fact that the father's responses to
his repeated suggestions for ways to make the child more comfortable being with him "were not
reflective in my opinion of a deep level of empathy that would be typical between a parent and a
child." R. 2601-03.

2
4
objections to the mother's testimony about conduct that frightened the child,

including the father's abuse of the mother in the child's presence. R. 2788-97.

The court even refused to allow into evidence a list of the child 's specific concerns

about spending time with his father that the child's attorney prepared at the child's

behest. R. 2782-88; 3488-93.

Notably, despite these numerous red flags regarding the father's parenting,

the court's best interest analysis focused solely on the "friendly parent" factor-

"whether the parents respectively are each capable of fostering a fruitful and

meaningful relationship between their child and the other parent." A. 110. Family

violence experts have long voiced concerns over the "friendly parent" factor in

custody determinations where child safety is at issue, where it can function

identically to the "alienation" construct to punish a parent for raising concerns

about the other parent: "The friendly-parent standard works against survivors

because any concerns they voice about father-child contact . . . are usually

interpreted as a lack of cooperation."24 The trial court's opinion focused on this

24
Daniel G. Saunders et al., Child Custody Evaluators' Beliefs About Domestic Abuse
Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence
Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to Nat'l
Inst. of Justice, U.S. Dep't of Justice (Oct. 31, 2011), at 22. See also Joan Zorza, Friendly
Parent Provisions in Custody Determinations, 26(8) Clearinghouse Rev. (1992) (Friendly parent
provisions prioritize receptiveness to shared parenting without regard to parenting history or
impact, tend to be gender-biased, typically benefit uninvolved or abusive fathers, and punish
mothers who raise concerns about father's parenting.); Zoe Garvin, The Unintended
Consequences of Rebuttable Presumptions on Child Custody in Domestic Violence Cases, 50(1)

2
5
issue as an "important if not pivotal factor" for almost four pages. A. 110. It did

not meaningfully consider any other factor related to the child's best interest. A.

110-12; 133. The court's focus on alienation overshadowed any consideration of

the evidence indicating that the mother's and child's concerns about the father's

treatment of the child were valid.

E. The Opportunity To Cross-Examine A Custody Evaluator Is


Particularly Critical Where An Alienation Finding Against One
Parent Is The Primary Grounds For Granting Custody To The
Other Parent.
Even PAS proponents agree with current alienation research that alienation

claims are inapplicable where the child has suffered a parent's abuse or neglect.25

Alienation evaluators clearly consider an abused child's hostility toward the

abusive parent to fall outside of an alienation assessment.26 However, a child's

hostility toward a parent for abuse or other legitimate reasons may appear exactly

the same as that of an "alienated" child. In light of the persistent and dangerous

influence of PAS and its tendency to mask true abuse or parenting deficits, it is

critical that a parent has the opportunity to cross-examine a custody evaluator who

Fam. Law Q. 19 (Spring 2016) (Friendly parent provisions eviscerate protective presumptions
against custody to batterers because "concerns about . . . safety and/or contact between the child
and other parent are often interpreted as a lack of cooperation[.]").
25
Richard Gardner, Differentiating Between Parental Alienation Syndrome and Bona Fide
Abuse-Neglect, 27 Am. J. Fam. Therapy 97 (Apr.-Jun. 1999).
26
Leslie M. Drozd & Nancy Williams Olesen, Is it Abuse, Alienation, and/or Estrangement? A
Decision Tree, 1 J. Child Custody 65 (2010).

2
6
has relied on parental alienation theories in making a custody recommendation.

Only through cross-examination and the opportunity to challenge or rebut the

evaluator's recommendations can the court be assured that the recommendations

are not the product of the bias inherent in the alienation theory.27

CONCLUSION

For the reasons set forth above and in the briefs submitted by Plaintiff-

Appellant-Respondent, Proposed Amici respectfully request that the trial court's

orders be reversed.

Dated: New York, New York


March 22, 2017
SIDLEY AUSTIN LLP

By: _ James D. Arden


Dana R. Angood

787 Seventh Avenue


New York, New York 10019
Telephone: +1 212 839-5300
Facsimile: +1 212 839-5599

Attorneys for Amici Curiae

27
See Meier, supra note 8, at 8-9; see also Matter of Lisa W. v. Seine W., 9 Misc.3d 1125(A), at
*7 (Fam. Ct. Kings Cty. Aug. 25, 2005) (admissibility of expert reports and testimony is subject
to each parent's "right to review the reports, receive a full and fair opportunity to expose
inadequacies on cross-examination, and present material in rebuttal").

2
7