Even though the National Council of Juvenile and Family Court Judges have warned judges against accepting claims of "parental alienation syndrome" or "parental alienation" (pg.12 of 2009 guide), the appeals court upheld the trial court's finding. (This includes attempts at calling it something else too). Here is a section of the dissenting opinion, which in the view of the scientific community and professional organizations should have been the concurring opinion:
I respectfully decline to join in the opinion of the majority, however, to the extent that it validates the trial court's reliance on “Parental Alienation Syndrome” (PAS) evidence. Admittedly, the trial judge never specifically used the term PAS. It is clear from the language in his findings, however, that the trial court relied heavily on the testimony offered by Dr. Lawlor regarding this “syndrome” and all but used the exact term “PAS” when stating its findings of fact and conclusions of law. I recognize the concept of “parental alienation” and understand that it is not uncommon for parents, during a dissolution proceeding, to make disparaging comments about their respective spouses in the presence of their children. However, I am troubled by, and seriously question the existence of a parental alienation “syndrome”.
PAS is a relatively new theory created by Dr. Richard A. Gardner, M.D., and is explained in his self-published book, The Parental Alienation Syndrome (1992). This theory, developed solely through Gardner's personal observations of his own patients in private practice, is defined by Gardner as a situation where children are not merely systematically and consciously “brainwashed”, but are also subconsciously and unsubconsciously “programmed” by one parent against the other parent. Gardner, The Parental Alienation Syndrome p. 59-60. Gardner further asserts, “PAS is a disorder of children, arising almost exclusively in child-custody disputes, in which one parent (usually the mother) programs the child to hate the other parent (usually the father).” Richard A. Gardner, Dr. Gardner Defends Work on Sex Abuse, Nat'l L.J., Sept. 6, 1993, at 16. Moreover, Dr. Gardner professes that in 90% of the cases it is only the mother who attempts to alienate the children from the father. Gardner, The Parental Alienation Syndrome at 62, 106. When questioned as to why women are programming their children against their fathers in nine out of ten cases where PAS is present, Dr. Gardner explains by quoting William Congreve: “Heaven has no rage, like love turned to hatred. Nor hell a fury, like a woman scorn'd.” Id. at 62, 122. This gender-biased generalization is ludicrous and an affront to all reasonable women and men. This is unacceptable.
The record indicates that Dr. Lawlor, a clinical psychologist and attorney, testified as an expert witness in this case. His testimony, elicited primarily through a series of one-sided hypotheticals, was replete with PAS language suggesting that Marianne was causing PAS to occur in M.S., but was not yet a “full blown syndrome.” (R. 1917). For example, Dr. Lawlor's responses on direct examination included language such as, “[Marianne is] systematically trying to convey through a denigration of father that he's evil, that uh he's dangerous, and that the child uh shouldn't be involved with [Edward].” (R. 1887). Dr. Lawlor also stated during his direct examination that he thought it was, “․ extremely detrimental to be in custody of a parent who's engaging in a pattern of alienation against the other parent” and that the research on parental alienation shows that the “․ prognosis [for the child] is poor once uh an alienation situation uh has developed. Uh the success rate is almost zero and the failure rate is almost a hundred percent in cases like that once they get going.” (R. 1880). Furthermore, Dr. Lawlor admitted under oath that he is familiar with Dr. Gardner's syndrome called “Parental Alienation Syndrome” and described it as “․ a situation where you have a systematic uh attempt at denigration of the parent with with attempts at isolation of the child from the parent.” (R. 1910)
Dr. Lawlor's “PAS language” is rephrased and woven throughout the trial court's findings, as can be seen in his specific finding number eight which includes statements such as:
8. The Court Specifically finds that since the joint custody agreement in this case, Marianne, beyond a reasonable doubt, has engaged in a concerted bad faith effort to destroy any relationship the minor child, [M.S.], has with Edward. It is not necessary to include the litany of vicious and false allegations made by Marianne against Edward ․ Marianne ․ made numerous trips to social workers and counselors alleging unsubstantiated allegations of Edward's conduct, his psychiatric condition, and a general vicious broadside on Edward's character. Marianne met willing accomplices with her visits to social workers and counselors and continued to allege to the counselors false and vicious rumors. Marianne established no basis in fact or believable testimony that would support her baseless claims ․ Marianne's false and disgusting behavior based on false allegations were beyond a doubt designed to destroy any relationship Edward has with Margaret. (R. 1344-45).
There are also several other significant problems with PAS including “causation”, “scientific reliability” and “admissibility” as scientific evidence 10 . Dr. Garner's PAS syndrome has no apparent objective criteria to determine its validity or its reliability. Moreover, PAS has not been subjected to peer review and has not gained general acceptance by scientists in the relevant scientific communities. Thus, it is my opinion that Dr. Garner's PAS “disorder” is a disturbing, inflammatory, unscientific and unsubstantiated theory which has no place in our courtrooms. As the court in United States v. Brown, 557 F.2d 541 (6th Cir.1977) so eloquently stated, “A courtroom is not a research laboratory. The fate of [a party] should not hang on his ability to successfully rebut scientific evidence which bears an ‘aura of special reliability and trustworthiness,’ although, in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain general acceptance in its field.” Id. at 556. The PAS syndrome described by Dr. Garner is analogous to “cult” theories like the “Peter Pan Syndrome” or the “Cinderella Complex”, and is more suitable in a pop psychology venue rather than in a court of law.
Finally, the record reveals that Edward has emotional problems so severe that he is totally disabled and unable to work. Moreover, Dr. Lawlor, who never interviewed Marianne, Edward, or M.S., apparently formed his opinions based on notes from Dr. Crane, a therapist who also had never met Edward. Thus, Dr. Lawlor and the therapist would be unable to determine the extent to which Marianne's allegations regarding Edward's conduct might be true. Further, the lack of clinical research to substantiate the theory of PAS, along with the lack of evidence as to Edward's emotional health and the slender threads of evidence which supported the hypotheticals posed to Dr. Lawlor, make the apparent recognition of PAS very troubling. This case poses a threat not only to the well-being of this small child, but also to any child with less than perfect parents who are divorcing.CHEZEM, J., dissents in result, with opinion