A Judicial Guide to Child Safety in Custody Cases - PAS
National Council of Juvenile and Family Court Judges- A Judicial Guide to
Child Safety in Custody Cases - 2008 - National Council of Juvenile and
Family Court Judges - University of Nevada • P.O. Box 8970 • Reno, NV 89507
1041 North Virginia Street • Third Floor • Reno, NV 89503 (775) 784-6012 •
FAX (775) 784-6628
C. [§3.3] A Word of Caution about Parental Alienation34
Under relevant evidentiary standards, the court should not accept testimony
regarding parental alienation syndrome, or “PAS.” The theory positing the
existence of PAS has been discredited by the scientific community.35 In
Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that
even expert testimony based in the “soft sciences” must meet the standard
set in the Daubert case.36 Daubert, in which the court re-examined the
standard it had earlier articulated in the Frye37 case, requires application
of
a multi-factor test, including peer review, publication, testability, rate
of error, and general acceptance. PAS does not pass this test. Any
testimony that a party to a custody case suffers from the syndrome or
“parental
alienation” should therefore be ruled inadmissible and stricken from the
evaluation report under both the standard established in Daubert and the
earlier
Frye standard.38 The discredited “diagnosis” of PAS (or an allegation of “
parental alienation”), quite apart
from its scientific invalidity, inappropriately asks the court to assume
that the child’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 abusive parent, who may have directly influenced the
child’s responses by acting in violent, disrespectful, intimidating,
humiliating, or discrediting ways toward the child or the other parent. The
task
for the court is to distinguish between situations in which the child is
critical of one parent because they have been inappropriately manipulated by
the other (taking care not to rely solely on subtle indications), and
situations in which the child has his or her own legitimate grounds for
criticism or fear of a parent, which will likely be the case when that parent
has
perpetrated domestic violence. Those grounds do not become less legitimate
because the abused parent shares them, and seeks to advocate for the child
by voicing his or her concerns.
34. This section, including the footnoted material was excerpted from
NAVIGATING GUIDE at 24-25.
35. According to the American Psychological Association, “ ... there are
no data to support the phenomenon called parental alienation syndrome ...”
AM. PSYCHOL.
ASS’N, VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN PSYCHOLOGICAL
ASSOCIATION PRESIDENTIAL TASK FORCE ON VIOLENCE AND THE FAMILY 40, 100 (1994)
(stating that
custody and visitation disputes appear to occur more often in cases in
which there is a history of domestic violence).
36. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
37. Frye V. U.S., 293 F. 1013 (D.C. Cir. 1923).
38. These are federal standards, but many states adhere to them at least
generally and should still exclude any proffered evidence of PAS.
