Author: Shawn Wygant

At PsychLaw.net we know that parental alienation (PA) is widely accepted by both mental health and legal professionals; however, a handful of authors in legal and social science publications deny the existence and/or reliability of PA as a meaningful construct. Accordingly, these few PA detractors claim that expert testimony about PA should not be admissible in North American courts, and they make specious arguments in support of this assertion. Like many deceptive arguments, absent a close reading with a complete understanding of the construct–PA, some are deceived. These blogs will examine the criteria for the admission of expert testimony, how PA meets these criteria and then outlines (and refutes) the misinformation about PA’s admissibility.

In this blog we will be discussing the legal criteria for admissibility of expert evidence. “The Importance of Voir Dire in High-Conflict Family Law Cases,” addresses in detail the standards for the admissibility of expert evidence in the U.S., so they will be addressed only briefly here.

         Generally speaking, all relevant evidence is admitted[1] unless:  [I]ts probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.[2]” Evidence is relevant if it: “(a) has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.[3]”

         The admission of expert evidence is governed by, in addition to those for relevance, further considerations because of the “wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation” that an expert enjoys.[4] It is important to note that this same “latitude” is not granted to ordinary witnesses, who must restrict their opinion testimony to those matters that the witness rationally perceived, and bear upon his or her testimony or a fact in issue.[5]

         To have expert evidence admitted, the proffering party must first present the expert either to the court in its case-in-chief or in a preliminary hearing (variously called a 104, 403, or 702 hearing or voir dire). In either situation, a similar order of examination will occur: (1) the proponent examines the witness in direct examination; (2) the opposing party examines the witness in cross-examination; and (3) the proponent follows up in re-direct examination.

         If the expert is examined in a preliminary hearing and fails to establish that the testimony is useful and reliable, the evidence is not admitted to the proceedings. On the other hand, if the expert is first examined while the proceedings are ongoing and then it is revealed the evidence is not useful or unreliable, while the evidence has technically been “admitted,” the court will give it little or no weight.

[1] Fed. R. Evid. 402.

[2] Fed. R. Evid. 403.

[3] Fed. R. Evid. 401.

[4] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).

[5] Fed. R. Evid. 701.

Psychologist researcher Hollida Wakefield and Lutheran Minister turned clinical psychologist, Ralph Underwager, taught that the “natural history” (origin, timing, and nature) of a child abuse allegation must be examined (Wakefield & Underwager, 1990 & 1991).  While they focused primarily on sexual abuse accusations, their strategy is applicable to other forms of alleged abuse as well.  They provided preliminary guidelines for the determination of true versus false accusations. They defined factors behind false allegations of sexual abuse, including the character of the accuser, the persons who aid and in many cases abet the accuser, and the use of leading or manipulative questioning.  Counsel and the defense team should be mindful of the list Wakefield and Underwager (1990 &1991) provided to differentiate between real and false allegations; they suggested the fact finder examine the:

• Origin of the disclosure;
• Timing of the allegations;
• Age of the child;
• Behavior of the accusing parent;
• Nature of the allegations;
• Characteristics of the child’s statement;
• Personality characteristics of the parties involved; and
• Behavior of the Professionals involved.  

For this reason counsel, staff researcher and the defense team expert must carefully analyze every statement made by Adrian, every statement attributed to Adrian by another, and specifically how the CPS and the CAC personnel arrived at their conclusions.  The CAC video-recorded “forensic” interviews must be analyzed, second by second, for indications of parental influences; interviewer bias; leading, suggestive, or repetitive questions; interviewer modifications of what was said; questions that suggested new content; questions that denigrated Richard; and so forth.  Each utterance must be coded as to when it was made, what specifically was said and to whom the statement was made.   Lacking a skilled researcher, this process can be replicated by any attorney near a university.  A little searching (try Craig’s List) will find a social sciences graduate student who is already plugged into numerous medical and behavioral science databases through their study.  They all need money and the good ones can break down the science jargon easily. The statements analysis should then be laid out in an Excel spreadsheet.  These coded lists should be cross-referenced as they will form the basis for cross-examination of the accuser and other witnesses over their inconsistencies, contradictions, and outright fabrications.  

In Richard’s case, counsel will prepare specific science content areas to deal with the alleged “Daddy hurt me” statement and its aftermath. Review of the natural history of the allegation shows that some time before little Adrian is said to have made the “Daddy hurt me” statement, Jane was away at a continuing education seminar and Adrian and Richard traveled to a hotel and theme park.  On the return trip to the family home, Richard was cut off in traffic by an elderly couple driving through a red light.  When he slammed on the brakes, Adrian’s improperly fastened seat belt gave way and the child collided with the rear passenger doorpost.  Her black eye and bruises took several hours to appear.  When they arrived home, Jane grabbed Adrian and left the home.  To educate the trier of fact about what Jane has been saying to Adrian and how the “Daddy hurt me” statement came about is counsel’s first science content area: parental influences on children’s memory.   When Jane took little Adrian to CPS, the investigator sent Jane and Adrian to the local CAC for a forensic interview.  With respect to the interview and the effects of the play therapy on Adrian, counsel’s second science content area is children’s suggestibility.  

Over the course of months since the alleged “Daddy hurt me” statement, the play therapist has carefully noted the many additional statements Adrian has made involving “Daddy” and “hurting” and “a long time.”  Jane’s counsel, the prosecutor and the play therapist all say that Adrian’s alleged “Daddy hurt me” statement is clearly a delayed disclosure.  This, then, is the third science content area counsel we at PsychLaw.net know must develop. 

Wakefield, H., & Underwager, R. (1990).  Personality characteristics of parents 

making false accusations of sexual abuse  in  custody   disputes. Issues in 

Child Abuse Accusations, 2(3), 121–136. 

Wakefield, H., & Underwager, R. (1991). Sexual abuse allegations in divorce and  

custody disputes, Behavioral Sciences and the Law, 9(4), 451-468.

After counsel’s researcher interviews Richard for many hours, Richard mentions as an aside that he is concerned about Jane because she was coping during the last months of the marriage by drinking more.  The researcher points out in the next defense team meeting that counsel must look into Jane’s drinking.  Counsel should ask the defense team expert to communicate with Richard’s therapist and explore Richard’s denial and whether Richard and Jane have been in a “negotiated maladjustment contract.”   This is a concept that grew out of marital therapy research.  It pre-dates the notion of “co-dependence” and holds that in return for behaviors that meet the compelling needs of both partners, one or both of them perform behaviors that are self-injurious, deviant, or maladaptive (Carson, 1969; Gehrke & Moxom, 1969).  Additionally, Richard’s therapist should be asked to deal with Richard’s lack of efficient thinking, inability to focus, anxiety, and multiplicity of storylines.  The goal of pushing Richard’s therapy is to confront his denial, prepare him for two – maybe three – trials and help him be more effective in developing a plan for Adrian.  As part of his recovery from this temporary disaster, Richard should be encouraged to go into “research mode.”  Counsel should encourage him to begin by studying the famous abuse cases of the ‘80’s and ‘90’s – McMartin, Kern County, Kelly Michaels, and Wenatchee. Richard should watch Sean Penn’s documentary Witch Hunt and learn how 

the manipulation of the children in the Kern County, California, case was done (Penn, 2008).

In the family case, Jane and her attorney are insisting upon the exclusive use of the marital home. Jane and Steven, one of the therapists at Richard’s clinic, have entered into an agreement to keep the clinic operating without Richard. Counsel’s investigator and researcher should be charged with looking into whether Jane and Steven might have a deeper relationship.  As the researcher works on the chronology with Richard and the defense team expert, they realize that because Richard was in school for the last four years and working part time, Richard was the one around Adrian the most. Jane left for work at 7:30 AM, and was not home until at least 4:30 PM – sometimes not until 7:30 or 8:00 PM.  This information should also go to Richard’s therapist, to aid in pushing on Richard’s denial.

Having been ordered to mandatory mediation, Jane and Richard file their narratives for the custody mediator. Jane’s narrative describes Jane as the primary caregiver for Adrian. Jane claims that she is the best candidate for the role of single parent for the child, and that she is more responsible. Jane accuses Richard of being a mama’s boy, dependent upon his parents to prop him up and extricate him from any messes.  To counter this expected gambit, counsel has been vigorously conducting discovery in the family case, and the private investigator has uncovered several disciplinary actions against Jane at the high school where she teaches. These disciplinary actions were for tardiness, for absenteeism, and suspicion of intoxication. Richard is shocked – he had no inkling of the depths of Jane’s problem.  Counsel’s private investigator finds that Jane’s relationship with Steven, the clinic therapist, has developed. Jane has begun attending support groups for “mistreated women” with Steven’s sister Janice, a militant advocate for abused women.  Jane complains to Janice about the “inconclusive” finding from Adrian’s pediatrician that in three years of caring for Adrian, she’s never seen indications of abuse.  Steven’s sister Janice refers Jane to a physician who is more oriented to their point of view.  This physician has developed a reputation in the state for finding indications of abuse in little girls and boys.  In the physical exam, Jane tells the physician that Adrian has often complained of being hurt by Daddy.  The physician examines Jane’s  photographs of Adrian’s facial injuries and repeatedly asks the child how many times Daddy has hurt her. One should remember what the philosopher Goethe taught: “We look for what we know. We find what we look for.”  In next week’s blog we will be concluding the discussion on this topic.

Carson, R. (1969). Interaction concepts of personality. Chicago: Aldine. 

Gehrke, S. and Moxom, J. (1969) Diagnostic Classifications and Treatment  

Techniques in Marriage Counseling. Family Process, 1(2), 253-264. 

Penn, S. (Producer) (2008). Witch hunt. 

The second strategy is to build awareness in counsel’s office among members of the defense team of the process of parental alienation (PA).  

The defense team must organize all data to explicate PA. The diagnostic criteria include a campaign of denigration against the target parent by the child; frivolous rationalizations by the child for their criticism of the target parent; a lack of ambivalence in the child over their description and treatment of the target parent; a manifestation referred to as “the independent-thinker phenomenon” by the child where by she says her denigration is all her own idea; reflexive support by the child of the preferred parent against the target parent; an absence of guilt in the child over their exploitation and mistreatment of the target parent; a demonstration of borrowed scenarios from the alienating parent by the child; a notable spread of animosity toward the target parent’s extended family by the child.  These are all described in greater detail in Chapter One of this text. 

Fidler and Bala (2010a) reported that clinical observations, case reviews and qualitative as well as empirical studies indicated that alienated children may exhibit: 

• poor reality testing; 
• illogical cognitive operations; 
• simplistic and rigid information processing; 
• inaccurate or distorted interpersonal perceptions; 
• disturbed and compromised interpersonal functioning; 
• self-hatred; 
• low self esteem or inflated self-esteem or omnipotence; 
• pseudo-maturity; 
• gender-identity problems; 
• poor differentiation of self (enmeshment); 
• aggression and conduct disorders; 
• disregard for social norms and authority; 
• poor impulse control; 
• emotional constriction, passivity, or dependency; and 
• lack of remorse or guilt.  

All of these characteristics should be kept in mind and wherever possible, proofs and witness charts oriented to demonstrating their occurrence in Adrian.

Next, counsel must visit Richard in jail and get his signature on the retainer agreement. From past experience, counsel is aware that many clients cannot handle the pressures of cases like these (much less on all fronts, as Richard is facing).  Counsel must make sure that Richard does not cave to the pressure and begin “explaining” himself to willing listeners. Clearly Richard is desperate to explain the narrowly averted auto accident, the panicked stop, and the origin of Adrian’s black eye.  He is abject in his self-recrimination because Adrian’s seatbelt was not properly fastened.  Counsel must take the time to listen to Richard and to be compassionate, because his entire life is falling apart and this is not conducive to sane behavior.  Counsel must listen carefully to Richard’s recitation of Adrian’s colliding with the rear passenger door post but remind him that jail is not the place for conversation.  He must keep his mouth shut. He may not talk to anyone other than counsel because there may be prosecution “plants” in jail. Remind him that conversations are often recorded and of course there may be defendants in jail who will relate conversations in hopes of a deal in their own case.  Counsel must explain to Richard that the discovery available in the family law case in the form of interrogatories, requests for production of documents, examinations, and depositions will save his life.  The family case discovery must be utilized in this fashion and the criminal case won.  The criminal case must be counsel’s most important priority.  

Counsel should begin legal research with the excellent treatise, Right to Present a Defense. This is an ongoing web document continually updated by National Association of Criminal Defense Lawyers contributor Mark J. Mahoney (2009).  While it is aimed at criminal defense, the relevancy arguments concerning the right to tell one’s own story is of great value in custody or dependency cases as well. Counsel should be mindful that the court might not be aware of state and sister-state precedent on salient issues.  Counsel must think through relevant legal issues, prepare points and authorities to use if need be at trial and set one’s sights on diligently making a record for review. To aid in this endeavor, counsel should download and then conform to their state-specific precedent motions available from Thomson-Reuters WEST’s two volume Cross Examining Experts in the Behavioral Sciences (Campbell & Lorandos, 2001, updated annually). Special attention should be spent on Daubert or Frye challenges, taint motions asserting that a child’s memory is compromised (therefore she cannot testify from “personal knowledge”), and motions to defeat “outcry” (the always questionable hearsay testimony from adults who have allegedly heard a child’s complaints).  Again, these are available to counsel from PsychLaw.net, the NACDL and The Innocence Team in California.  After bond, counsel should demand a preliminary examination and file detailed motions for discovery in both the family and criminal cases. All of the immediate discovery battles, subpoenas, and depositions must be diligently fought in the family case, as most jurisdictions do not allow depositions in criminal cases.

Counsel must immediately contact the Board of Social Work to let them know that Richard has representation.  Counsel must research and push “prior restraint” with the Social Work Board.  As Richard is innocent until proven guilty, the Social Work Board should not have the mandate to restrain Richard from working until after adjudication.  If they are reluctant to negotiate, counsel should file against the Social Work Board in Federal Court, as Richard’s license and ability to work is a property right.  If possible, counsel should negotiate that Richard at least be allowed to see adult patients in a supervised setting.  Counsel should use the defense team expert and her connections to help Richard find a clinic in which he can get back to work immediately. For a continuation of this topic please come back next week where we will further dive into this discussion. 

Campbell, T. W. & Lorandos, D. (2001) Cross Examining Experts in the 

Behavioral Sciences, Egan, Minnesota, West Group – Two Volumes – annual updates ~ April 2011 

Fidler, B. J. & Bala, N. (2010a). Children Resisting Post-Separation Contact with a Parent: Concepts, Controversies, and Conundrums. Family Court Review, 48(1), 10-47. 

Maloney, M. J. (2009). The right to present a defense. Retrieved from http://www.harringtonmahoney.com/documents/Rtpad2009 v1.pdf  

In this blog post we at PsychLaw.net will be discussing the role of attorneys in PA cases. It is easy to identify various levels of PA in mental health settings, in a variety of legal contexts, and in the everyday lives of neighbors, friends, and relatives.  Attorneys may have several roles in cases that involve PA, but the most common is serving as the lawyer for one of the parents.  Attorneys may also serve as a GAL for the child or as a “best interest” attorney representing the child.  Litigating cases involving PA requires a skill set and knowledge of legal procedures that go beyond those used in less complex family law scenarios.

When the attorney represents the target parent, it is essential to ask the client to carefully document past events.  Every moment in the child’s life prior to the onset of PA must be documented and potential exhibits and witnesses identified. Lorandos (2011) recommends a method by which a master chronology file and a master document are created, which ultimately includes every file, document, photograph, video, and witness statement or transcript.  The database includes a complete list of all witnesses with contact information and citations to relevant places in the master document and chronology file. Organization of this material is critical to help the judge understand what has happened and what can be done about it.

The attorney for the target parent must demonstrate how the behavior of the alienating parent contributed to the development of PA, and whether it is in the early stage of mild PA or in the more advanced stage of moderate or severe PA, when the campaign of denigration, emotional poisoning, and brainwashing have escalated (Sauber, 2006).   Sauber also instructs that the attorney should be mindful that the client will be anxious, angry and depressed.  It is the attorney’s challenge to carefully explain to the judge how this came about, assign appropriate responsibility, and to offer expert recommendations to ameliorate the condition.  After gaining the client’s trust, the attorney must advise the client with regard to appropriate behavior and management of his or her emotions.  The attorney must aid the client to be steady, truthful, and direct in testimony about being a victim but “at the same time present[ing] to the judge examples, facts, and detailed descriptions of the particulars that are taking place” (Sauber, 2006, p.13).  The attorney for the target parent also has the responsibility of carefully selecting an expert either by mutual agreement with opposing counsel or without it.  An expert who does not know the research will not qualify under the Frye, Daubert,or Canadian Mohan standards. 

An attorney always has the option of retaining a mental health consultant as a member of his litigation team.  A mental health consultant assists the attorney and the target parent in organizing files such as emails between the parties, proof that the false allegations are fabricated, preparing questions for the direct and cross-examination of various witnesses, pointing out the strengths and weaknesses of the case findings and opinions of the therapist and evaluators, screening collateral contacts, and other ways of helping the attorney represent the “unpopular”  position of the target parent (Bone and Sauber, 2012).

Lorandos, D. (2011). Saving Tonya Craft: An Integration of Science and Law.  Champion, 35 (24). 

Sauber, S. R. (2006). PAS as a Family Tragedy: Roles of Family Members, Professionals, and the Justice System. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations (pp. 12-32). Springfield, IL: Charles C Thomas Publisher. 

Discussions in the social science literature describe few options for children who suffer severe and unreasonable alienation from a parent and highlight the ineffectiveness of available remedies.  For example, Rand, Rand, and Kopetski (2005) reported the failure of traditional psychotherapy in their follow-up study of the 45 children from 25 families Kopetski had studied over 20 years starting in 1976.  A range of moderate to severe PAS characterized those cases. Alienation was interrupted by judicial action for 20 children from 12 families where there was enforced visitation or a change of custody. But for those in the treatment group where there were only orders for therapy and gradually increased access, alienation remained uninterrupted and in some cases became worse.

Qualitative case studies and experienced clinicians have found that traditional psychotherapy as the primary intervention simply does not work in severe and even in some moderate alienation cases (Clawar & Rivlin, 1991; Dunne & Hedrick, 1994; Gardner, 2001; Kopetski, 1998a, 1998b; Kopetski, Rand, & Rand, 2006; Lampel, 1996; Lowenstein, 2006; Lund, 1995; Rand, 1997b; Rand, Rand, & Kopetski, 2005). Fidler and Bala (2010) concluded that “all severe and some moderate cases of alienation … are likely to require a different and more intrusive approach if the relationship with the rejected parent is not to be abandoned and the alienation is to be successfully corrected.”

A reunification option, short of reversing custody, is for the court to order a prolonged period of residence with the target parent, such as during the summer or an extended vacation, coupled with counseling and temporarily restricted or suspended contact with the alienating parent. This arrangement, which in the long run provides less disruption and greater continuity of care, may in some cases be more appropriate than reversing custody permanently.  This period of prolonged residence affords the child and target parent the uninterrupted time and space needed to repair and rebuild their relationship, assuming that the alienating parent either relinquishes their malicious efforts or gives up trying to destroy the target parent’s relationship with the alienated child.

Warshak (2010b) and Warshak and Otis (2010) offered an alternative approach called Family Bridges, in which the target parent and the alienated child travel to a program site – a family home, hotel or vacation resort – for four consecutive days.  The alienated children and the target parent share their experiences with one another and re-examine their assumed, indoctrinated false beliefs to which the children have become accustomed.  In commenting on Family Bridges, Kelly (2010) wrote that the daily structure and other program components were guided by well-established evidence-based principles and incorporated multimedia learning, positive learning environment, focused lessons addressing relevant concepts, and learning materials providing assistance with integration of materials. She noted that the lessons and materials were drawn from universally accepted research in social, cognitive, and child developmental psychology, sociology, and social neuroscience. Another important feature of Family Bridges, wrote Kelly (2010), is the safe atmosphere created by the program leaders from the very beginning.  She saw this as an essential feature of the program that promotes more willing participation and active learning. See Chapter 5 for a more complete discussion of Family Bridges.

Clawar, S. S., & Rivlin, B. V. (1991). Children held hostage: Dealing with programmed and brainwashed children. Washington, DC: American Bar Association Section of Family Law. 

Dunne, J., & Hedrick, M. (1994). The parental alienation syndrome: An analysis of sixteen selected cases. Journal of Divorce and Remarriage, 21(3/4), 21-38. 

Fidler, B. J., & Bala, N. (2010). Children resisting post-separation contact with a parent: Concepts, controversies, and conundrums. Family Court Review, 48(1), 10-47. 

Gardner, R. A. (2001). Should courts order PAS children to visit/reside with the alienated parent? A follow-up study. American Journal of Forensic Psychology, 19(3), 61-106. 

Rand, D. C., Rand, R., & Kopetski, L. (2005). The Spectrum of Parental Alienation Syndrome, Part III: The Kopetski Follow-up Study. American Journal of Forensic Psychology, 23(1), 15-43. 

Kelly, J. B. (2010). Commentary on “Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated Children” (Warshak 2010). Family Court Review, 48(1), 81-90. 

Kopetski, L. (1998a). Identifying Cases of Parent Alienation Syndrome, Part I. Colorado Lawyer, 27(2), 65-68. 

Kopetski, L. (1998b). Identifying Cases of Parent Alienation Syndrome, Part II. Colorado Lawyer, 27(3), 61-64. 

Kopetski, L. M., Rand, D. C., & Rand, R. (2006). Incidence, Gender, and False Allegations of Child Abuse: Data on 84 Parental Alienation Syndrome Cases. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations (pp. 65-70). Springfield, IL: Charles C Thomas 

Warshak, R. A. (2010a). Alienating Audiences from Innovation: The Perils of Polemics, Ideology, and Innuendo. Family Court Review, 48(1), 153-163. 

Warshak, R. A., & Otis, M. R. (2010). Helping Alienated Children with Family Bridges: Practice, Research, and the Pursuit of “Humbition”. Family Court Review, 48(1), 91-97. 

In this blog we at PsychLaw.net will discuss the different people who are involved in high conflict custody cases as well as situations involving PA. In high-conflict custody cases, attempting to aid the court in its determination of the best interests of the children can be a rewarding, frustrating, and/or thankless task.  Evaluators must be cognizant of the interacting dynamics: between the parents, between each parent and the children, between the children and their siblings, between the parents and the children’s network of social support (stepparents, grandparents, friends, parents of friends, school personnel, etc.), and between the parents and their communities. The use of multiple interviews among the interested parties as well as collateral interviews is essential.  Repeated interviews of the children with significant members of their social support network may be very important.  In high-conflict cases, the children’s sense of themselves and their histories – the stories they tell about themselves – must be carefully scrutinized.  Sauber and Worenklein (2012) have addressed the pertinent and unique issues involved in conducting a custody evaluation in alienation cases, particularly the need to dispel false allegations with credible evidence. 

Regarding rumors, evaluators must be careful to trace ideas, stories, and allegations back to their origins.  Rumors may have their origins in real or imagined happenings.  The evaluator considering them must be careful lest they be co-opted into serving an alienator’s purposes. MHPs who perpetuate false information without checking the facts may unwittingly contribute to, rather than alleviate, a family’s distress. In doing so, they become part of the problem (Greenberg, Gould, Gould-Saltman, & Stahl, 2003; Stahl, 2003).  

When PA has occurred, the relationship between the parents can be complex and perplexing.  Hobbs (2006) reminds us that alienators can be parents of either gender.  Also, that evaluators must remember:

[Allegations in the context of PA] comprise severe provocation to the recipient partner. Those allegations are intended to hurt the target parent and to manipulate key others to effect their removal from their children, and these allegations will precipitate anger in response. In fact, they may be expressly designed in order to precipitate an angry response so that the alienating parent can present that successfully provoked anger as further evidence against the target parent (p. 78). 

Psychological testing can be very helpful in child custody evaluation when PA is suspected.  Bricklin and Elliot (2006) have spent decades scrutinizing children’s sense of their relationships with others.  Their diligent work with their Perceptions of Relations Test (PORT) and Bricklin Perceptual Scales (BPS) provides a detailed and ever expanding database of children caught in high-conflict custody combat.  Objective psychological measures such as the ubiquitous MMPI-2 have immediate utility in high-conflict custody evaluations.  Siegel and Langford (1998) and Gordon, Stoffey, and Bottinelli (2008) have shown that alienating parents have MMPI-2 profiles that distinguish them from target parents and from parents in custody disputes that do not involve PA.

Perhaps the circumstance where children’s perceptions of relations, multiple interviews, and the use of psychological measures are put to the strictest test is in the evaluation of child sexual abuse allegations in the context of a child custody dispute.  One of the earliest reviews of sexual abuse allegations related to custody and visitation disputes was reported by Blush and Ross (1987).  Those authors tracked complaints and motions brought to the court by high-conflict parents and they learned to identify what issues provoked parental disputes between the parties and when those disputes originated.  They described the SAID (an acronym for “sexual allegations in divorce”) syndrome.  Blush and Ross directed evaluators to carefully assess the background and history of a couple before any allegations of sexual abuse developed, which may explainhow escalating exchanges between the disputing parents triggered the sexual abuse allegations. In a similar vein, Wakefield and Underwager (1991) suggest understanding the “natural history” of an allegation, paying close attention to the origin, nature, and timing of the allegation as essential in evaluating its validity and reliability. For a more complete discussion of this topic, see Chapter 6, “Sexual Abuse Allegations in the Context of Custody and Visitation Disputes.”

Blush, G. J., & Ross, K. L. (1987). Sexual allegations in divorce: The SAID syndrome. Conciliation Courts Review, 25(1), 1-11. 

Bricklin, B. & Elliot, G. (2006). Psychological test-assisted detection of parental alienation syndrome. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The international handbook of parental alienation syndrome: Conceptual, clinical and legal considerations, pp. 264-275. Springfield, IL: Charles C Thomas Publisher. 

Greenburg, L. R., Gould, J. W., Schnider, R. A., Gould-Saltman, D. J., & Martindale, D. A. (2003). Effective Intervention with High-Conflict Families: How Judges can Promote and Recognize Competent Treatment in Family Court. Journal of the Center for Families, Children and the Courts, 4, 49-65. 

Sauber, S. R., & Worenklein, A. (2012). Custody Evaluations in Alienation Cases. In A. J. L. Baker and S. R. Sauber (Eds.),Working With Alienated Children and Families: A Clinical Guidebook. NYC: Routledge. 

Siegel, J., & Langford, J. (1998).MMPI-2 Validity Scales and Suspected Parental Alienation Syndrome.American Journal of Forensic Psychology, 16(4), 5-14.

Wakefield, H., & Underwager, R. (1991).Sexual Allegations in Divorce and Custody Disputes.Behavioral Sciences and the Law, 9, 451.

Estimates of the incidence and prevalence of PA in high conflict cases vary from study to study. For example, Janet Johnston and her colleagues reported the prevalence of alienation in several studies.  Johnston and Campbell (1988) said that alienation was seen in as many as 40% of high conflict cases.  Johnston (1993) reported that 7% of the children in one study and 27% of the children in a second study had “strong alignment” with one parent and rejection of the other parent.  In 2003, Johnston reported on an “alignment” study.  She defined alignment as the “child’s behavioral and verbal preference for one parent with varying degrees of overt or covert negativity toward the other parent.”  She found that 15% of children in a community sample of divorcing families and 21% in contested custody cases experienced either “some” or “much” alignment with one parent or the other. In 2005, Johnston, Walters, and Olesen reported rates of PA of about one-fifth of high conflict populations.

Clawar and Rivlin (1991) found that in about 80% of 700 counseling cases, there was some element of parental programming in an effort to implant false and negative ideas about the other parent with the intention of turning the child against that other parent. Their work focused on emotional issues, persistent programming, and brainwashing, which sometimes resulted in severe PA.  Leona Kopetski, Deirdre Rand, and Randy Rand (2006) identified PA in 20% of the 413 families they evaluated between 1976 and 1990.  Sandra Berns (2001) reported on a study of divorce judgments from 1995 to 2000 in Brisbane, Australia, where PA was found to be present in 29 percent of reviewed cases.

Hetherington and Kelly (2002), in discussing findings from the Virginia Longitudinal Study of Divorce and Remarriage, wrote:

As obviously destructive as conflict is to all involved in this dilemma, it was surprising to discover that six years after divorce, 20 to 25 percent of our couples were engaged in just such conflictual behavior; former spouses would make nasty comments about each other, seek to undermine each other’s relationship with the child, and fight openly in front of the child.  Aside from being damaging, constant put-downs of the other parent may backfire, producing resentment and a spirited defense of the criticized parent by the child.… Conflictual coparenting distresses children and undermines their well-being, and it makes parents unhappy, too (p. 138).

Amy Baker (2007b) reported research wherein she surveyed 106 MHPs who conducted custody evaluations.  The respondents reported that PAS occurred in as many as 55% of their cases.  An average rate over all respondents, whether skilled or unskilled in the differential diagnosis of PAS, was 11.2% (SD = 13).  Baker found that the evaluators who identified PAS more frequently were more familiar with the concept of PAS, were more likely to assess for PAS, were more likely to believe that one parent can turn a child against the other parent, and were more confident in their evaluations.  In 2009 Bow and colleagues (Bow, Gould,& Flens, 2009) reported on their survey of 448 mental health and legal professionals who were experienced with parental alienation.  They wrote, “When respondents were asked [in] what percentage of child custody cases was parental alienation an issue, the mean reported was 26%.” 

         The great disparity in these results reflects: varying definitions of “parental alienation,” different populations being studied, and different levels of experience in identifying PA.  We conclude that some degree of PA (that is, mild, moderate, or severe) occurs in approximately 20-30% of high-conflict separations and divorces.

“Contact refusal” refers to the behavior of a child who avoids spending time with one of his parents.  There are many reasons that children may not want to see a parent after separation or divorce. Most authors make a distinction between “estrangement” and “alienation.”  Estrangement refers to a child’s rejection of a parent that is justified “as a consequence of the rejected parent’s history of family violence, abuse and neglect” (Johnston, 2005).In contrast, alienation refers to a child’s rejection of a parent that is unjustified, i.e., “unreasonable negative feelings and beliefs…that are significantly disproportionate to the child’s actual experience with that parent” (Johnston, 2005).  With that distinction in mind, estrangement is not a diagnosable mental condition because it is normal behavior.  Alienation, on the other hand, is an abnormal mental condition because it consists of maladaptive behavior (refusal to see a loving parent) that is driven by a false or illogical belief (that the target parent is evil, dangerous, or not worthy of love).

The differential diagnosis of contact refusal includes a child’s normal preferences for one parent over the other or one household over the other.  The differential diagnosis also includes mental disorders such as separation anxiety disorder or oppositional defiant disorder.  The child might properly refuse to visit a parent who has been abusive or very neglectful.  The child might be manifesting PA, which could have been brought about by the child’s removing himself from the battle scene by gravitating to one parent and shunning the other, by the accidental indoctrination of a naïve alienator, by the purposeful indoctrination of an active or obsessed alienator, or perhaps because of a shared psychotic disorder with the alienating parent.  (See Chapter 2, “The Psychosocial Assessment of Contact Refusal,” for a fuller discussion of this topic.)

Baker, A. J. L. (2007b). Knowledge and attitudes about the parental alienation syndrome: A survey of custody evaluators. American Journal of Family Therapy, 35(1), 1-19. 

Berns, S. S. (2001). Parents behaving badly: Parental alienation syndrome in the family court – Magic bullet or poisoned chalice. Australian Journal of Family Law, 15(3), 191-214. 

Clawar, S. S., & Rivlin, B. V. (1991). Children held hostage: Dealing with programmed and brainwashed children. Washington, DC: American Bar Association Section of Family Law. 

Hetherington, E. M., & Kelly, J. (2002). For Better or For Worse: Divorce Reconsidered. New York: W.W. Norton & Co. 

Johnston, J. R. (1993). Children of Divorce Who Refuse Visitation. In C. E. Depner & J. H. Bray (Eds.), Non-Residential Parenting: New Vistas in family Living (pp. 109-135). Newbury Park, CA: Sage Publishing. 

 Johnston, J. R., & Campbell, L. E. (1988).Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York, NY: The Free Press. 

Johnston, J. R. (2003). Parental Alignments and Rejection: An Empirical Study of Alienation in Children of Divorce. Journal of the American Academy of Psychiatry and the Law, 31(2), 158-170. 

Johnston, J. R., Walters, M. G., & Olesen, N. W. (2005). The Psychological Functioning of Alienated Children in Custody Disputing Families: An Exploratory Study. American Journal of Forensic Psychology, 23(3), 39-64. 

Kopetski, L. M., Rand, D. C., & Rand, R. (2006). Incidence, Gender, and False Allegations of Child Abuse: Data on 84 Parental Alienation Syndrome Cases. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations (pp. 65-70). Springfield, IL: Charles C Thomas Publisher. 

The most widely accepted criteria for the diagnosis of PAS that we at PsychLaw.net have found was originally published by Gardner (1985, 1992), who wrote that children with PAS manifested some or all of eight characteristic behaviors.  We have adapted Gardner’s eight criteria for the diagnosis of PA, as we use the term in this blog.  It is important to emphasize that the diagnosis of PA is based upon the level of symptoms in the child, not on the symptom level of the alienating parent.

         It should be noted that some children are more susceptible than others to the indoctrination promulgated by the alienating parent because of both external and internal factors.  That is, a child may be more vulnerable because of stressful external factors such as: the shared parenting arrangements; a new intimate partner of their parent; changes in the child’s residence, peers, and school system; and economic factors causing the child to adjust to a new home in a less expensive neighborhood and attending a new school.  Also, the intensity and duration of the child’s symptoms depend on internal factors such as the child’s temperament, which affects the child’s susceptibility to influence by others.  A child low in susceptibility may rebuff a parent’s attempt to “poison” the child against the other parent, whereas a highly susceptible child is likely to internalize and believe the false propaganda intentionally programmed by the alienating parent.  (See Chapter 7, “Reunification Planning and Therapy,” for a more detailed discussion of the child’s “vulnerability” due to external circumstances and the child’s “susceptibility” due to personality and temperamental factors, especially in regard to reunification.)

         Some researchers have studied the frequency with which the eight criteria occur in individual cases of PA or PAS.  For example, Baker and Darnall (2007) collected information from 68 parents whose children were severely alienated from them.  They used a questionnaire to determine how often the eight symptoms of PAS listed by Gardner had been observed by their subjects.  The authors found “general support for the presence of the eight symptoms of PAS.”  In this research, 88% of the target parents said that the alienated child “always” or “often” denigrated, rejected, or belittled them.  Also, 98% of the target parents said that the alienated child “completely” or “mostly” gave weak, frivolous, or absurd reasons for rejecting them.

Baker, A. J. L., & Darnall, D. (2007). A construct study of the eight symptoms of severe parental alienation syndrome: A survey of parental experiences. Journal of Divorce & Remarriage 47(1/2):55-75. 

Gardner, R. A. (1985). Recent trends in divorce and custody litigation. Academy Forum, 29(2), 3-7. 

Gardner, R. A. (1992). The parental alienation syndrome: A guide for mental health and legal professionals. Cresskill, NJ: Creative Therapeutics.