National Council of Juvenile and Family Court Judges. (2006). Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2nd edition). Reno, NV: NCJFCJ. (download PDF)

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Parental Alienation and the Daubert Standard: on Syndromes and Behaviors

In contested custody cases, children may indeed express fear of, be concerned about, have distaste for, or be angry at one of their parents. Unfortunately, an all too common practice in such cases is for evaluators to diagnose children who exhibit a very strong bond and alignment with one parent and, simultaneously, a strong rejection of the other parent, as suffering from "parental alienation syndrome" or "PAS".[52] Under relevant evidentiary standards, the court should not accept this testimony.

The theory positing the existence of "PAS" has been discredited by the scientific community.[53] 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 [54] case. Daubert, in which the Court re-examined the standard it had earlier articulated in the Frye [55] case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. "Parental Alienation Syndrome" 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/or stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.[56]

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 abusive 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. The task for the court is to distinguish between situations in which children are 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 children have their 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 children by voicing their concerns.

52 "Parental alienation syndrome" was introduced by Richard Gardner and was primarily associated with child sexual abuse allegations in the context of contested child custody cases. For more information, see Bruch, supra note 28.

53 According to the American Psychological Association, "... there are no data to support the phenomenon called parental alienation syndrome ..." AM. PSYCHOL. ASS'N., supra note 2, at 40.

54 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

55 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).

56 These are federal standards, but many states adhere to them at least generally and should still exclude any proffered evidence of "PAS".