Tuesday, June 8, 2010

The Evidentiary Admissibility of Parental Alienation by American Bar Association's Children's Legal Rights Journal

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 been awarded sole custody of their children based on claims that mothers alienated these children due to a pathological medical syndrome called Parental Alienation Syndrome ("PAS"). Given that some such cases have involved stark outcomes, including murder and suicide, PAS' admissibility in U.S. courts deserves scrutiny.

This article presents the first comprehensive analysis of the science, law, and policy issues involved in PAS' evidentiary admissibility. As a novel scientific theory, PAS' admissibility is governed by a variety of evidentiary gate keeping standards that seek to protect legal for a from the influence of pseudo-science. This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively.

The article further 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 of Evidence, including analysis of PAS' scientific validity and reliability; concluding that PAS remains an ipse dixit and inadmissible under these standards. The article also analyzes the writings of PAS' originator, child psychiatrist Richard Gardner - including twenty-three peer-reviewed articles and fifty legal decisions he cited in support of his claim that PAS is scientifically valid and legally admissible -finding that these materials support neither PAS' existence, nor its legal admissibility. Finally, the article examines the policy issues raised by PAS' admissibility through an analysis of PAS' roots in Gardner's theory of human sexuality, a theory that views adult-child sexual contact as benign and beneficial to the reproduction of the species.

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

To read full article click here (pdf)

© 2006 American Bar Association's Children's Legal Rights Journal


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