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    July 01, 2015

    The Parental Alienation Controversy: Two Opposing Views

    By Judge Stephanie Domitrovich, PhD

    Controversy surrounds the admissibility of evidence of parental alienation in both civil and criminal court cases. The two articles that follow—“Parental Alienation Syndrome: 30 Years On and Still Junk Science” and “Parental Alienation: Misinformation versus Facts”—present diametrically opposed positions.

    Federal and state courts’ approaches to parental alienation evidence have varied within civil and criminal areas of the law. Trial judges, as gatekeepers under Federal Rule of Evidence 702 and similar state rules, must ensure scientific expert testimony is derived from valid “scientific knowledge” before it is admitted for the jury’s consideration, and judges are expected to examine each expert’s methodology for reliability and relevance. Under the Frye standard, parental alienation may or may not be generally accepted as a concept within the relevant scientific community of experts, such as psychiatrists and psychologists. Under the Daubert standard, in addition to general acceptability, trial judges consider other flexible factors on the validity of the scientific methodology or technique, such as empirical testing and whether hypotheses are falsifiable or refutable, known or potential error rates, existence and maintenance of scientific standards and controls, and whether scientific methodology has been subjected to peer review and publication.

    Authors critical of parental alienation emphasize the lack of empirical research. They argue that parental alienation is not included in the renowned authority for mental disorders, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”). Other authors argue that, although the words “parental alienation” do not appear in the DSM-5, an expert can diagnose a child affected by parental alienation within the “spirit of parental alienation” when using recognized disorders cited in the DSM-5, such as Parent-Child Relational Problems, Child Affected by Parental Relationship Distress, Child Psychological Abuse, Delusional Symptoms in Partner if Individual with Delusional Disorder, and Factitious Disorder Imposed on Another. The Pennsylvania Superior Court recently recognized parental alienation as a factor for trial judges to consider in awarding custody in high-conflict family court cases. In W.C.F. v. M.G.,1 it reversed a trial judge for not considering the importance of parental alienation evidence when evaluating and weighing statutory best interest factors for determining child custody. The intermediate appellate court panel of Judges Lazarus and Wecht discussed the importance of considering parental alienation:

    The [trial] court noted that Father was more likely to promote Child’s relationship with Mother than Mother would with Father, in fact stating, “Mother is not likely to encourage or permit frequent and continuing contact between Father and Child.” . . . Not only was parental alienation an issue, but the repeated attempts of Mother to allege abuse that were found not credible by the [trial] court, the influence of maternal grandmother, the refusal of Mother to cooperate with Father, all would outweigh retaining primary custody with Mother absent a compelling rationale evidenced by the trial court. While prudence dictates that this Court exercise its authority sparingly in a child custody case, we are not powerless to rectify a manifestly unreasonable custody order.2

    The Editorial Board of The Judges’ Journal has decided to present you with both views on parental alienation evidence. On the following pages, we offer you the works of reputable authorities to help you evaluate arguments for both positions.

    Trial judges must make these admissibility determinations in civil family court cases where custody must be decided based on the best interest of children and in criminal cases where child sexual abuse charges are alleged and must be proven beyond a reasonable doubt. Defendants’ “loss of liberty” may be at stake on the basis of this evidence. In criminal jury trials, state courts have ruled parental alienation evidence is not beyond the “ken” or common experience of the jury and, therefore, is not admissible. U.S. federal courts ruling under the Hague Convention on civil international child abduction cases have admitted evidence on parental alienation, as have other countries’ courts, such as the Brazilian federal court.

    Provocative admissibility issues surround parental alienation, whether as a concept or as a “syndrome” in both civil and criminal cases. After reading these articles, you will be able to make more well-informed decisions regarding parental alienation and its admissibility in federal and state courts. And the controversy continues . . . .

    Endnotes

    1. 2015 PA Super 102, 2015 Pa. Super. LEXIS 231 (2015).

    2. Id., 2015 Pa. Super. LEXIS 231, at *20–21.