Wednesday, January 20, 2010

The Evidentiary Admissibility of Parental Alienation

The Evidentiary Admissibility of Parental Alienation

by Jennifer Hoult

Science, Law, and Policy, 26

American Bar Association, Child. Legal Rts J. 1 (Spring, 2006).


Since1985, in jurisdictions all over the United States, fathers have beenawarded sole custody of their children based on claims that mothersalienated these children due to a pathological medical syndrome calledParental Alienation Syndrome ("PAS"). Given that some such cases haveinvolved stark outcomes, including murder and suicide, PAS'admissibility in U.S. courts deserves scrutiny.

This articlepresents the first comprehensive analysis of the science, law, andpolicy issues involved in PAS' evidentiary admissibility. As a novelscientific theory, PAS' admissibility is governed by a variety ofevidentiary gatekeeping standards that seek to protect legal fora fromthe influence of pseudo-science. This article analyzes everyprecedent-bearing decision and law review article referencing PAS inthe past twenty years, finding that precedent holds PAS inadmissibleand the majority of legal scholarship views it negatively.

The articlefurther analyzes PAS' admissibility under the standards defined in Fryev. United States, Daubert v. Merrell Dow Pharmaceuticals, Kumho TireCompany v. Carmichael, and Rules 702 and 704(b) of the Federal Rules ofEvidence, including analysis of PAS' scientific validity andreliability; concluding that PAS remains an ipse dixit and inadmissibleunder these standards. The article also analyzes the writings of PAS'originator, child psychiatrist Richard Gardner - including twenty-threepeer-reviewed articles and fifty legal decisions he cited in support ofhis claim that PAS is scientifically valid and legally admissible -finding that these materials support neither PAS' existence, nor itslegal admissibility. Finally, the article examines the policy issuesraised by PAS' admissibility through an analysis of PAS' roots inGardner's theory of human sexuality, a theory that views adult-childsexual contact as benign and beneficial to the reproduction of thespecies.

The article concludes that science, law, and policy all support PAS' present and future inadmissibility.

To read full article click here (pdf)

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