March 13, 2008

Showdown looming over controversial theory

Parental Alienation Syndrome is by far the most controversial theory in high-conflict child custody litigation. And the battle lines are drawn primarily by gender: PAS is apt to be the first line of defense when a husband is accused in a custody battle of sexually abusing his children. That is, provided he has the money to hire a high-powered attorney.

Under the theory, one parent - almost always the mother - is accused of turning the children against the other, and brainwashing them to believe they have been abused even when they have not been.

The purported syndrome stubbornly refuses to die despite the facts that:
  • it has not been empirically verified
  • it has been excluded from many courtrooms as not meeting minimal standards of evidence admissibility
  • its creator and chief proponent is long gone (having allegedly stabbed himself to death with a butcher knife)
But historic legislation in California is aimed at squelching PAS by setting guidelines for child custody evaluations that could reduce or eliminate its introduction in court.

The original version of the legislation, AB 612, specifically referenced Parental Alienation Syndrome. The new version, AB 2587, is watered down, speaking only to the need for evaluators to conform to "generally accepted" standards without specifically mentioning PAS.

Although the American Psychological Association has raised concern about use of the theory in court, child custody evaluators remain divided in their beliefs about its validity. But psychologists are not nearly as rancorous in their division as are activists in the so-called "father’s rights" or women's rights movements. A quick web search reveals dozens of sites dedicated to proselytizing pro or con.

In a balanced report this week, the San Bernardino Sun quotes Dr. Philip Stahl, a California evaluator and member of the state's Association of Family & Conciliation Courts, as saying that judges also bring their own preconceptions into the fray.

"Courts are ruling in favor of people unfairly accused of alienation, and they are ruling against people who have been alienated," Stahl is quoted as saying. "Problems described by advocates on both sides on the issue are happening."

Central to the problem is the lack of a magic truth detector that can distinguish true from false allegations of child abuse. After a while, even the children themselves may become confused about what really did, or did not, happen.

The syndrome was invented by Dr. Richard Gardner, who self-published his work and made a career out of testifying for fathers in child custody cases.

Despite the fact that judges are supposed to play a gatekeeper function and not allow in evidence without sufficient scientific support, in practice courts vary tremendously in how rigorously they scrutinize scientific evidence. According to one attorney, courts that have held special hearings on whether PAS meets the Frye evidentiary standard of being generally accepted in the scientific community have found that it does not. (For more on the issue of the legal admissibility of the PAS, see this scholarly article and this website.)

The mental health and medical fields are littered with dozens if not hundreds of "syndromes" with widely varying levels of empirical support, some invoked to make something sound more medical or scientific than it is. Many of these - including False Memory Syndrome, Child Abuse Accommodation Syndrome, Munchausen's Syndrome by Proxy, Adopted Child Syndrome, Chronic Fatigue Syndrome, Premenstrual Syndrome, Battered Women's Syndrome, and even Post-Abduction Syndrome - are typically frowned on within the scientific community.

Particularly problematic in child custody litigation is the unequal playing field in court, with the husband often possessing greater financial resources that allow him to hire better attorneys and more convincing experts than his wife. Given the strong resistance of the father's rights movement, it's highly unlikely that this watered-down proposal will even become law, much less that it will significantly change the tenor of high-conflict child custody litigation.

The San Bernardino Sun article is here. More information, pro and con, can be found here, here, here, and here - and a web search will garner much more where that came from.

Photo credit: worldwidewebdomination (Creative Commons license)