Michigan Law Review Volume 112 Issue 4 2014 Toward a Child-Centered Approach to Evaluating Claims of Alienation in High-Conflict Custody Disputes Allison M. Nichols University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Evidence Commons, Family Law Commons, Juvenile Law Commons, and the Litigation Commons Recommended Citation Allison M. Nichols, Toward a Child-Centered Approach to Evaluating Claims of Alienation in High-Conflict Custody Disputes, 112 MICH. L. REV. 663 (2014). Available at: https://repository.law.umich.edu/mlr/vol112/iss4/4 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NOTE Toward a Child-Centered Approach to Evaluating Claims of Alienation in High-Conflict Custody Disputes Allison M. Nichols* Theories of parental alienation abound in high-conflict custody cases. The im- age of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable “Parental Alienation Syndrome” (“PAS”) developed as an at- tempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admis- sibility. Nevertheless, PAS and related theories continue to influence the deci- sions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile cases. In the midst of this highly adversarial process, children deserve independent rep- resentation to ensure that their interests remain front and center. Mandating the appointment of guardians ad litem in cases involving allegations of abuse or alienation will assist courts in conducting individualized, fact-specific in- vestigations into such allegations to craft custody orders that serve the best interests of children. Table of Contents Introduction ..................................................... 664 I. The Evidentiary Admissibility of PAS Testimony .........666 A. The “Syndrome” and Its Controversy ......................666 B. The Daubert–Frye Divide: From General Acceptance to Reliability .........................669 C. Inadmissible Under Either Standard .......................671 1. Not Generally Accepted Under Frye ..................671 2. Insufficiently Reliable Under Daubert ................673 II. Refocusing the Dispute: The Role of the Guardian Ad Litem ........................................679 A. The Need for Independent Representation .................680 B. Proposed Statutory Framework ...........................682 C. Critiques and a Response.................................684 III. GALs in Action: Sample Scenarios ........................686 Conclusion ....................................................... 688 * J.D., May 2013, University of Michigan Law School. Many thanks to my editors, Becca Klein, Maggie Mettler, Stephen Mayer, and Robbie Manhas, and to the rest of the MLR Notes Office for their support. I am grateful to Professor Joshua Kay for his valuable feedback and mentorship, and to Professor Kathleen Coulborn Faller for inspiring my interest in this field. 663 664 Michigan Law Review [Vol. 112:663 Introduction Sixty-five percent of divorces in the United States involve families with minor children,1 affecting about one million children per year.2 Most cus- tody arrangements in these cases are settled privately or through mediation, but 10 percent proceed to litigation before family courts.3 Due to the adver- sarial nature of the court system and the intensely emotional nature of di- vorce, child custody battles can turn vicious, and some experts argue that divorce may be “the single most traumatic experience” of a child’s life, with the potential to cause long-term psychological damage.4 High-conflict cus- tody cases are more likely to involve allegations of child abuse or domestic violence,5 and even when that is not the case, children can be used as pawns in a struggle between warring parents. Popular culture is filled with stories of parents brainwashing their children in an attempt to manipulate the legal system for their own personal gain. In particular, the image of the scorned and vindictive mother, one who will do anything to prevent her children from seeing their father, has become an all-too-familiar archetype. Child psychiatrist Richard Gardner coined the term “Parental Alienation Syndrome” (“PAS”) in 1985 to describe the breakdown of a parent–child relationship during high-conflict custody disputes.6 According to Gardner, The parental alienation syndrome (PAS) 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 1. Kathleen Coulborn Faller, Essay, Child Maltreatment and Endangerment in the Con- text of Divorce, 22 U. Ark. Little Rock L. Rev. 429, 429 (2000). 2. George J. Cohen, Comm. on Psychosocial Aspects of Child & Family Health, Helping Children and Families Deal with Divorce and Separation, 110 Pediatrics 1019, 1019 (2002). 3. Stephanie J. Dallam & Joyanna L. Silberg, Myths That Place Children at Risk During Custody Disputes, 9 Sexual Assault Rep. 33, 33 (2006), available at http://www.leadership council.org/docs/Dallam&Silberg.pdf. 4. Faller, supra note 1, at 429. 5. See Dallam & Silberg, supra note 3. One panel of experts defines the concept of “high-conflict” custody disputes as follows: High-conflict custody cases are marked by a lack of trust between the parents, a high level of anger and a willingness to engage in repetitive litigation. High conflict cases can arise when parents, attorneys or mental health professionals become invested in the con- flict or when parents are in a dysfunctional relationship, have mental disorders, are en- gaged in criminal or quasi-criminal conduct, substance abuse or there are allegations of domestic violence, or child abuse or neglect. High-Conflict Custody Cases: Reforming the System for Children—Conference Report and Action Plan, 34 Fam. L.Q. 589, 590 (2001), quoted in Linda D. Elrod, Reforming the System to Protect Children in High Conflict Custody Cases, 28 Wm. Mitchell L. Rev. 495, 500 (2001). 6. Richard A. Gardner, Recent Trends in Divorce and Custody Litigation, Acad. F., Sum- mer 1985, at 3, 3. For a general critique of Gardner’s methods and views, see, for example, Joan S. Meier, A Historical Perspective on Parental Alienation Syndrome and Parental Alienation, 6 J. Child Custody 232, 237–38 (2009). February 2014] Toward a Child-Centered Approach 665 programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.7 Gardner claims that this behavior deserves classification as a psychologi- cal syndrome due to a cluster of eight proposed symptoms, which he has identified through his clinical experience counseling parents and children during divorce and custody proceedings.8 Gardner’s conception of PAS at- tempts to explain the increased incidence of child sexual abuse allegations beginning in the 1980s. Gardner argues that a vindictive parent frequently uses intentionally false allegations of child abuse—particularly sexual abuse—as an “extremely effective weapon” to turn a child against the other parent and thereby gain sole custody.9 This characterization of family dy- namics during divorce has prompted harsh criticism from psychologists, le- gal scholars, and domestic violence survivors’ and children’s advocates alike, yet Gardner’s theory has gained some traction (as well as significant atten- tion) in family courts since its inception thirty years ago.10 The controversy surrounding allegations of parental alienation is mul- tifaceted. On the one hand, various debunked mental health theories con- tinue to exert inappropriate influence over the decisions of family courts. Yet the problem is certainly not confined to this issue, and once we look beyond admissibility concerns, there are few clear rules to guide family court judges in divining the best interests of a child who rejects a parent. Fortunately, judges do not have to issue orders while blindfolded; guardians ad litem serve a crucial function in fact-finding for the court, as well as providing independent representation for the child. Part I of this Note addresses the admissibility issue and concludes that testimony regarding PAS and related theories is inadmissible under the relevant evidentiary standards. Part II rec- ommends that states adopt legislation requiring the appointment of guardi- ans ad litem in all contested custody cases involving allegations of abuse, domestic violence, or alienation to assist courts in grappling with the com- plex legal and factual issues that these cases pose. Finally, Part III offers 7. Richard A. Gardner, Parental Alienation Syndrome vs. Parental Alienation: Which Di- agnosis Should Evaluators Use in Child-Custody Disputes?, 30 Am. J. Fam. Therapy 93, 95 (2002) [hereinafter Gardner, PAS vs. Parental Alienation]; see also Richard A. Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals