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The Admissibility of Parental Alienation Syndrome by Kimberley J

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The Admissibility of Parental Alienation Syndrome by Kimberley J Vol. 32, 2019 Parental Alienation Syndrome 53 Under the Microscope: The Admissibility of Parental Alienation Syndrome by Kimberley J. Joyce* I. Introduction Call it the Theory of A-B-C: a controversial model of paren- tal alienation which has at its center a very specific causal rela- tionship between systematic programming by a “favored” parent (the “A”) and manifestations of that programming in a child’s behaviors (the “B”), with a judicially-imposed remedy (the “C”)1 of transferring custody from the “targeted” parent and isolating the child from the “favored” parent.2 The argument that paren- * Kimberley Joyce is a family law trial attorney in Wellesley, Massachu- setts, and is admitted to practice in Massachusetts state courts and before the U.S. District Court, the First Circuit Court of Appeals, and the U.S. Supreme Court. Ms. Joyce is a member of the Family Law sections of both the Massachu- setts and Boston Bar Associations and is Chair of the MBA’s Family Law Sec- tion Council. 1 The conceptual use of a Theory of A-B-C is drawn from psychologist Albert Ellis who developed a cognitive-behavioral theory that explains emo- tional disturbance (hence the metaphor) structured in an ABC format: “Typi- cally, the emotional and behavioral Consequence (C) is what an individual seeks assistance for and they often assume that the Activating event (A) which had preceded the (C) actually caused it.” Mark D. Terjesen, et al. Rational Emotive Behavior Therapy (REBT) with Children and Adolescents: Theory, Ap- plications, and Research, 20 NYS PSYCHOL. 13, 13 (2009). 2 Use of the terms such as “favored” and “targeted” throughout this arti- cle are drawn from arguments in favor of Parental Alienation Syndrome for purposes of convenience only and does not represent endorsement of any as- pect of these arguments. For a review of these terms and core fallacies, see Richard A. Warshak, Ten Parental Alienation Fallacies that Compromise Deci- sions in Court and in Therapy, 46 PROF. PSYCHOL.: RES. & PRAC. 235, 235 (2015) (“This article identifies 10 prevalent and strongly held assumptions and myths about parental alienation found in reports by therapists, custody evalu- ators, and child representatives (such as guardians ad litem), in case law, and in professional articles. Ideas were determined to be fallacies if they are contra- dicted by the weight of empirical research, by specific case outcomes, or by the 54 Journal of the American Academy of Matrimonial Lawyers tal alienation has a direct “cause and effect” [A-B-C] is a tactical weapon with a devastating impact in the world of child custody litigation. One serious consequence of this A-B-C model, as it is argued by proponents, is the ability to confuse lawyers and judges by claiming that this causation is a series of direct connec- tions easily explained as true by the observing “expert” without reference to any of the limits that scientists must ethically draw in social science research.3 What can be observed is that the selective use of alienation allegations by parents with the resources to hire these experts may increasingly clog court dockets and support a cottage indus- try of “experts” whose role is to take the facts of a chosen case and manipulate them, purposefully, to meet the theory’s criteria.4 It provides a means for a disgruntled parent to both avoid ac- countability for conduct which may explain the child’s reaction, author’s more than three decades of experience evaluating, treating, and con- sulting on cases with parental alienation claims. The following discussion per- tains to the pathological variant of parental alienation and not to situations in which a child’s rejection of a parent is proportional to the parent’s treatment of the child.”). 3 If the reader moves away from the PAS industry, social scientists in family research and child custody are much more modest about the limits of the research and the variables that may influence outcomes; though there is conten- tious debate about the efficacy of research applied to child custody. See Robert Bauserman, A Meta-Analysis of Parental Satisfaction, Adjustment, and Conflict in Joint Custody and Sole Custody Following Divorce, 53 J. DIVORCE & RE- MARRIAGE 464, 465 (2012) (“An even more critical problem is the impossibility of demonstrating causality with observational data, even when likely moderator or mediator variables are statistically controlled.”) (emphasis added); Carol S. Bruch, Sound Research or Wishful Thinking in Child Custody Cases-Lessons from Relocation Law, 40 FAM. L.Q. 281, 297 (2006) (“Many recent articles on the topic of child custody law in legal, interdisciplinary, and even scientific jour- nals contain serious misstatements of the research literature. Unfortunately, the judges, lawyers and legislators who are their intended audience often lack sta- tistical or scientific training and are unfamiliar with the scientific literature. They are, accordingly, ill-equipped to judge the quality of empirical studies or of review articles, which summarize and evaluate the work of others in the field. These difficulties may be exploited by those who ‘spin’ the literature.”). 4 For articles in this Journal exploring what is often called “confirmation bias” in the literature, see Linda Nielsen, Shared Physical Custody: Does it Ben- efit Most Children, 28 J. AM. ACAD. MATRIM. LAW . 79 (2015); Dana E. Prescott & Diane A. Tennies, Bias Is a Reciprocal Relationship: Forensic Mental Health Professionals and Lawyers in the Family Court Bottle, 31 J. AM. ACAD. MA- TRIM. LAW . 427 (2018). Vol. 32, 2019 Parental Alienation Syndrome 55 and create an environment where a court may make a specific causal leap backwards from a child’s resistance to contact with- out any reliable foundation or connection for that leap, making it one of ideology rather than science. And it is now a cottage in- dustry for those with resources and motivation.5 This article will explore the author’s experiences and obser- vations in child custody litigation when parental alienation6 has been proffered by “experts” to establish a lack of parental fitness and change custody to the other parent. The purpose of this arti- cle is not to stand on any side in the debates surrounding aliena- tion theories. Rather, its purpose is to provide lawyers, judges, and mental health professionals with a framework for recogniz- ing, objecting to and preventing the misuse of science in the courtroom; to expose fallacious arguments disguised as science; to prevent hijacking of the legal process by experts; and to ensure that evidence admitted in complex child custody matters is relia- ble. In Part II, this article will touch upon the threshold require- ments for admissibility of expert testimony. In Part III, it will present an approach to impose those threshold requirements on an expert and, further, challenge the reliability of the testimony. It will go on in Part IV to shine a light through the shifting termi- nology used by experts and expose the theory’s easily identifiable structure so practitioners may recognize it for what it is and know the dangers that come from allowing it to slide past evidentiary challenge. Finally, in Part V this article will demonstrate that the theory lacks the required reliability for admissibility. 5 See Kendall Coffey, Inherent Judicial Authority and the Expert Disqual- ification Doctrine, 56 FLA. L. REV. 195, 195 (2004) (“With its explosion across America’s litigation landscape, expert witnessing has become a foundation for decision-making in virtually all significant cases. Described by some courts as a ‘cottage industry,’ it has also become more lucrative than the usual day job for many professionals. With litigants and their counsel shopping relentlessly for key specialists, and the experts themselves pursuing engagements aggressively, the growth of expert consultations has spawned a proliferation of allegations concerning conflicts of interest.”). 6 Read further to see that Parental Alienation Syndrome, the particular theory that is the subject of this article, comes packaged with different, less controversial – but misleading – labels. 56 Journal of the American Academy of Matrimonial Lawyers II. Foundations for Practitioners In complicated custody cases mired in the emotional and physical minutia of disintegrating families, it might be easy to overlook the basic and well-established legal requirement that a causal leap between A and B be supported by reliable scientific method and opinion.7 Expert testimony which provides the re- quired bridge for that gap is only admissible, in all federal and state courts, if it will assist the trier of fact by providing informa- tion that is beyond the common knowledge of the factfinder and meets legal standards for admissibility.8 These important foun- dational requirements have a long history in common law sys- tems and should be strictly maintained to ensure that decisions regarding children’s best interests avoid harmful speculation. Of particular concern, and rarely explored in the legal or social sci- ence literature related to parental alienation, these arguments are often about homogenous populations and lack the rigor of cultural competence from testing to evaluation.9 In child custody matters, observable parental behavior and reasonable inferences can form the basis of well-informed cus- tody determinations. Expert testimony is not necessary to have a trier of fact understand the common sense notion that inappro- 7 See, e.g., In re Detention of New, 992 N.E.2d 519 (Ill. App. Ct. 2013)(“a prerequisite for a diagnosis is scientific evidence that such a mental condition exists.”); Zafran v. Zafran, 740 N.Y.S. 2d 506 (2002). That expert testimony is regarding the “soft” or “social” does not grant a pass to cut this evidentiary corner. 8 See Mary McCurley, et al., Protecting Children from Incompetent Fo- rensic Evaluations and Expert Testimony, 19 J.
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