PAS in the Legal Arena

Legal Recognition of PAS

An increasing number of attorneys are publishing articles which recognize and seek to address the problem of parental alienation, variously using the term Parental Alienation Syndrome in the title, in the text or in the bibliography (30, 46, 47, 49, 50, 54, 55). California attorney Patrick Clancy posts his Points and Authorities for the Admissibility of PAS Testimony on his web site. An article by Wood opposes legal recognition of PAS (56). Family law judges have been producing a growing body of opinions which discuss PAS by name or include findings of parental alienation without giving it a special label (26, 46, 47, 54-57). A 1997 issue of The Judges' Journal included an article on managing visitation interference by Turkat (57), who has been referencing Gardner's work on PAS for several years. Judge Vernon Nakahara in Alameda County, California, spoke with author Deirdre Rand about his opinion that judges need to be made aware of Gardner's work on PAS. Judge Nakahara also shared his views on the role of the family law court in dealing with PAS and other high conflict cases.

A Florida attorney was the first to write about PAS after Gardner introduced the term in 1985. Palmer's article, published in 1988, described PAS as a strategy some parents were using to avoid their obligation to share parenting responsibility under Florida law (46). She discussed two legal cases, including Schutz v. Schutz in which the judge opined: 'The Court has no doubt that the cause of the blind, brainwashed, bigoted, belligerence of the children toward the father grew from the soil nurtured, watered and tilled by the mother. The Court is thoroughly convinced that the mother breached every duty she owed as the custodial parent to the noncustodial parent of instilling love, respect and feeling in the children for their father. Worse, she slowly dripped poison into the minds of these children, maybe even beyond the power of this Court to find the antidote' (46; pp. 361-362). Palmer foresaw the need for early evaluation and intervention in cases of PAS and those with that potential, in order to prevent the development of completed, intractable alienation. She recommended the use of judicial sanctions to hold alienating parents accountable and to provide incentives for changing their behavior.

In 1991, a Canadian law journal published an article by Goldwater which strongly supports legal recognition of PAS (47). According to Goldwater, Gardner's 1989 book on family evaluation in child custody (48) 'is certainly required reading for the family practitioner and should be considered the source document on the phenomenon of parental alienation syndrome...Indeed, there is a moral failure in smugly asserting that children have `rights' without taking into account their evident lack of autonomy and their material and psychological vulnerability to control and manipulation' (47; pp. 121-122). Although the title is in French, most of the text is in English. Canadian law and case citations are discussed.

In 1993, two articles were written by attorneys; one from New Hampshire (49) and one from South Carolina (30). These articles took a practical approach to the special difficulties PAS cases pose to family lawyers, mental health professionals and to the courts. Ward and Harvey are a psychologist and an attorney, respectively (49). Their article distinguishes between 'typical' divorce and 'alienation'. Alienation cases are distinguished by the nature and extent of a parent's willingness to involve the children.

According to Ward and Harvey, alienation family systems require their own specific interventions, a point Gardner continues to em phasize. They build on Gardner's concepts about PAS and synthesize them with Johnston's work on the divorce impasse and high conflict families.

Sanders discussed PAS along with bad-faith relocation and fabricated sex-abuse allegations (30). She referred to Parental Alienation Syndrome as a disorder named by Gardner. She thought that mental health professionals and family law judges were becoming increasingly aware of the harmful process of parental alienation, regardless of the terminology used. Support for this contention can be found by perusing the programs of family law conferences in recent years. Since at least 1994, conferences of the Association of Family and Conciliation Courts have featured presentations on parental alienation. Gardner's concepts regarding PAS are often referred to and his books on PAS are listed in the bibliographies of handouts (50-53). Gardner himself presents at major conferences, for example, the Children's Rights Council Conference in Washington, D.C., which is attended by mediators, psychologists, and attorneys, who receive continuing education credits. Continuing education credits were also available to professionals attending the 1997 conference of the American College of Forensic Psychology, which included a presentation on the similarities between PAS and cults, discussed above (44).

Practicing psychology and law in Wisconsin, Waldron and Joanis put forth the view that PAS was readily accepted not because it was a 'discovery' but because Gardner succeeded in conceptualizing and describing a familiar, complex, perplexing problem of divorce families which can have tragic consequences and is resistant to change (54). The article contains a number of case citations and a discussion of Karen v. Clyde. This case involved a mother who sought to have father's visitation supervised because of alleged sexual abuse. Opinions of the experts involved differed as to whether or not the alleged abuse occurred. According to Waldron and Harvey, this case is often inaccurately depicted as showing the 'dangers' of PAS. The court's opinion is often criticized for quoting Gardner's work at length (56), as if this was the sole basis for the court's findings. However, when Waldron and Joanis examined the text of the court's rulings, they found that the court's decisions were based on the evidence presented, not on Gardner's theories. Their article is distinguished for its use of the social influence model outlined by Clawar and Rivlin and its reference to their research.

In Florida, Walsh and Bone practice law and psychotherapy, respectively (55). Their article on PAS, published in June, 1997, appears to be the most recent paper on the subject by attorneys. According to these authors, courts in their state are not at all hesitant about making a decision regarding PAS where the challenging parent can present credible proof and evidence of incidents in which the other parent has been practicing alienation and visitation interference. Four Florida case citations are provided in support of this assertion. These authors highlight the need to assess and understand parental deceit and manipulation, referencing Turkat's work on child visitation interference (57). 'Make no mistake about it. Individuals with either PAS or a related malicious syndrome will and do lie! They are convincing witnesses, and their manipulative skills may influence others to follow suit' (55; p. 94).

One of the presentations (50) and three of the articles (49, 54, 55) mentioned above were co-authored by an attorney and a mental health professional. This may represent a trend of increasing collaboration between legal and mental health professionals who provide divorce related services. Recently, psychologist Sharon Montgomery from New Jersey discussed PAS during a panel presentation with two attorneys (58). California psychologist Anita Lampel (7, 8) began editing The Family LAP in 1996. The first two issues of this newsletter for attorneys and others interested in family law and psychology contained columns on children of divorce who are alienated or who have rejected one parent (59).

Wood argued against the admission of PAS testimony in the Loyola of Los Angeles Law Review (56). She was outraged over the outcome of a divorce/custody dispute in which Dr. Gardner testified. Father was awarded custody after the court found that mother's allegations of abuse against him were without merit. Wood attacked Gardner personally as well as arguing against his ideas. She warned that an erroneous decision based on PAS testimony could result in a child being placed with an abusive parent and leave the child with 'no one to tell'. Wood failed to point out that allowing a child to remain in the custody of a parent engaged in serious alienating behavior, if such is the case, puts the child at risk for significant psychological maltreatment.