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Sources of confusion regarding the definition of PA

Posted on by Shawn Wygant

There are two sources of confusion regarding the definition of PA that we at PsychLaw.net have gathered.  The first is that various authors have used different terms and phrases for the phenomenon that we call “parental alienation.”  Second, various authors use the term “parental alienation” to identify different, but related, behaviors.

For example, some authors use “parental alienation” to name the indoctrination and brain-washing maneuvers of the alienating parent and “parental alienation syndrome” to name the resulting mental condition of the child.  Douglas Darnall (2010), for instance, wrote that a definition of PA is: 

A parent’s purposeful campaign of vilification characterized by anger, resistant and inconsistent compliance with court orders, conscious or unconscious denigration of the child’s other parent, and interference with the other parent/child relationship (pp. 5-6). 

Gardner (2006) made a different distinction between “parental alienation” and “parental alienation syndrome.”  He said that “parental alienation” referred to all types of impaired relationship between parent and child: 

[Parental alienation] can be caused by parental physical abuse, verbal abuse, emotional abuse, mental abuse, sexual abuse, abandonment, and neglect.… A child can also be programmed by one parent to be alienated from another.  That particular category of parental alienation is generally referred to as parental alienation syndrome. (p. 6)

Gardner (2002) also criticized the use of “parental alienation” in court testimony as a watered-down synonym for “parental alienation syndrome.” Garrity and Baris (1994) used “parental alienation” and “parental alienation syndrome” synonymously.  They wrote:

Parental alienation is very real. It occurs when one parent convinces the children that the other parent is not trustworthy, lovable, or caring – in short, not a good parent. This persuasion may be consciously malicious and intended to destroy the children’s relationship with the other parent. Or it may take a more insidious, even unconscious form arising from the personality issues as yet unresolved in the childhood of one parent (p. 66).

There are several psychosocial pathways to PA.  The most common is that the alienating parent indoctrinates the child to dislike and/or fear the target parent. Although PA most often arises in the context of a dispute between the parents over the child’s custody, it can arise during the course of other types of conflicts, such as a dispute between a parent and a grandparent.  Other family members – such as stepparents or grandparents – may contribute to the creation of PA.  On occasion, other individuals – such as therapists and child protection workers – may cause PA to occur by encouraging or supporting the child’s refusal to have contact with the alienated parent (Hellblom Sjögren, 2012).

PA almost always arises in the context of intense conflict between the target parent and somebody else.  In circumstances of persistent, passionate conflict, it is possible that a child may develop a mild level of PA even without active brain-washing by one of the parents.  That is, “parental alienation without indoctrination” can occur when the child gravitates to one parent and shuns the other parent in order to remove himself from the “war zone of parental battles” (Bernet, 1995, pp. 41-46).  However, a common characteristic of severe levels of PA is “intentionality.”  As Sauber repeatedly asserts, it is never “unintentional,” “accidental,” or “naïve” behavior by the alienating parent that leads to a full-blown case of severe PA (Sauber, 2006).

We agree with Kelly and Johnston (2001) that PA may be caused by an interaction of several psychosocial processes.  The target parent may contribute in some way to the child’s rejection.  For example, the target parent may lack an involved, warm style of nurturance.  He or she may have devoted insufficient time to parenting activities.  However, for the diagnosis of PA, the intensity and duration of the child’s refusal to have contact with the target parent is far out of proportion to the relatively minor weaknesses in that person’s parenting skills.

Since PA usually occurs in the context of high-conflict separation or divorce, it is important to have an understanding of the meaning of “high-conflict.”  That topic was extensively reviewed by Glenn Gilmour (2004) in a background paper, “High-conflict Separation and Divorce: Options for Consideration,” that he prepared for the Canadian Department of Justice.  Gilmour summarized:

In short, the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.  Children whose parents have separated or divorced where there is a high level of conflict between the parents display greater behavioural problems than children from low- or medium-conflict divorced families (p. 16).

Gilmour sought to arrive at a behavioral or operational definition of “high-conflict separation or divorce.”  He reviewed several articles and book chapters that identified external markers of high conflict, including: a book by Johnston, Roseby, and Kuehnle, In the Name of the Child (now in its second edition, 2009); a book by Garrity and Baris, Caught in the Middle (1994); and a review by Ron Stewart, The Early Identification and Streaming of Cases of High-Conflict Separation and Divorce (2001).  The features of high-conflict separation and divorce listed in Text Box 1 are based on those references.

 

Bernet, W. (1995).Children of divorce: A practical guide for parents, attorneys, and therapists. New York: Vantage. 

 

This list is based on Garrity and Baris (1994), Gilmour (2004), Johnston, Roseby, and Kuehnle (2009), and Stewart(2001). 

Darnall, D. (2010). Beyond divorce casualties: Reunifying the alienated family. Taylor Trade Publishing. 

 

Gardner, R. A. (2002).  PAS vs. PA: Which diagnosis should evaluators use in child custody disputes?  Am. J. Family Therapy 30(2), 93-116. 

Gardner, R. A. (2006). Introduction. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The international handbook of parental alienation syndrome: Conceptual, clinical and legal considerations (pp. 5-11). Springfield, IL: Charles C Thomas Publisher. 

Garrity, C., & Baris, M. (1994). Caught in the Middle: Protecting the Children of High-Conflict Divorce. Toronto, ON: Maxwell Macmillan Canada, Inc. 

Gilmour, G. A. (2004). High-conflict Separation and Divorce: Options for Consideration. Ottawa: Department of Justice Canada (2004-FCY-1E). 

Hellblom Sjögren, L. (2012).  Barnet avskiljs från sina föräldar, omhändertas jml LVU och påverkas att ta avstånd från dem båda (The child is separated from its parents, taken into forced custody and is influenced to reject them both)(Swedish).  In: Barnets rätt till familjeliv: 25 svenska fallstudier av föräldraalienation (The Child’s Right to Family Life: 25 Swedish Case Studies of Parental Alienation), pages 339-376.  Lund, Sweden: Studentilleratur. 

Kelly, J. B., & Johnston, J. R. (2001). The Alienated Child: A Reformulation of Parental Alienation Syndrome. Family Court Review, 39, 249-266

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.

Sources of confusion regarding the definition of PA

Posted on by Shawn Wygant

There are two sources of confusion regarding the definition of PA that we at PsychLaw.net have gathered.  The first is that various authors have used different terms and phrases for the phenomenon that we call “parental alienation.”  Second, various authors use the term “parental alienation” to identify different, but related, behaviors.

For example, some authors use “parental alienation” to name the indoctrination and brain-washing maneuvers of the alienating parent and “parental alienation syndrome” to name the resulting mental condition of the child.  Douglas Darnall (2010), for instance, wrote that a definition of PA is: 

A parent’s purposeful campaign of vilification characterized by anger, resistant and inconsistent compliance with court orders, conscious or unconscious denigration of the child’s other parent, and interference with the other parent/child relationship (pp. 5-6). 

Gardner (2006) made a different distinction between “parental alienation” and “parental alienation syndrome.”  He said that “parental alienation” referred to all types of impaired relationship between parent and child: 

[Parental alienation] can be caused by parental physical abuse, verbal abuse, emotional abuse, mental abuse, sexual abuse, abandonment, and neglect.… A child can also be programmed by one parent to be alienated from another.  That particular category of parental alienation is generally referred to as parental alienation syndrome. (p. 6)

Gardner (2002) also criticized the use of “parental alienation” in court testimony as a watered-down synonym for “parental alienation syndrome.” Garrity and Baris (1994) used “parental alienation” and “parental alienation syndrome” synonymously.  They wrote:

Parental alienation is very real. It occurs when one parent convinces the children that the other parent is not trustworthy, lovable, or caring – in short, not a good parent. This persuasion may be consciously malicious and intended to destroy the children’s relationship with the other parent. Or it may take a more insidious, even unconscious form arising from the personality issues as yet unresolved in the childhood of one parent (p. 66).

There are several psychosocial pathways to PA.  The most common is that the alienating parent indoctrinates the child to dislike and/or fear the target parent. Although PA most often arises in the context of a dispute between the parents over the child’s custody, it can arise during the course of other types of conflicts, such as a dispute between a parent and a grandparent.  Other family members – such as stepparents or grandparents – may contribute to the creation of PA.  On occasion, other individuals – such as therapists and child protection workers – may cause PA to occur by encouraging or supporting the child’s refusal to have contact with the alienated parent (Hellblom Sjögren, 2012).

PA almost always arises in the context of intense conflict between the target parent and somebody else.  In circumstances of persistent, passionate conflict, it is possible that a child may develop a mild level of PA even without active brain-washing by one of the parents.  That is, “parental alienation without indoctrination” can occur when the child gravitates to one parent and shuns the other parent in order to remove himself from the “war zone of parental battles” (Bernet, 1995, pp. 41-46).  However, a common characteristic of severe levels of PA is “intentionality.”  As Sauber repeatedly asserts, it is never “unintentional,” “accidental,” or “naïve” behavior by the alienating parent that leads to a full-blown case of severe PA (Sauber, 2006).

We agree with Kelly and Johnston (2001) that PA may be caused by an interaction of several psychosocial processes.  The target parent may contribute in some way to the child’s rejection.  For example, the target parent may lack an involved, warm style of nurturance.  He or she may have devoted insufficient time to parenting activities.  However, for the diagnosis of PA, the intensity and duration of the child’s refusal to have contact with the target parent is far out of proportion to the relatively minor weaknesses in that person’s parenting skills.

Since PA usually occurs in the context of high-conflict separation or divorce, it is important to have an understanding of the meaning of “high-conflict.”  That topic was extensively reviewed by Glenn Gilmour (2004) in a background paper, “High-conflict Separation and Divorce: Options for Consideration,” that he prepared for the Canadian Department of Justice.  Gilmour summarized:

In short, the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.  Children whose parents have separated or divorced where there is a high level of conflict between the parents display greater behavioural problems than children from low- or medium-conflict divorced families (p. 16).

Gilmour sought to arrive at a behavioral or operational definition of “high-conflict separation or divorce.”  He reviewed several articles and book chapters that identified external markers of high conflict, including: a book by Johnston, Roseby, and Kuehnle, In the Name of the Child (now in its second edition, 2009); a book by Garrity and Baris, Caught in the Middle (1994); and a review by Ron Stewart, The Early Identification and Streaming of Cases of High-Conflict Separation and Divorce (2001).  The features of high-conflict separation and divorce listed in Text Box 1 are based on those references.

 

Bernet, W. (1995).Children of divorce: A practical guide for parents, attorneys, and therapists. New York: Vantage. 

 

This list is based on Garrity and Baris (1994), Gilmour (2004), Johnston, Roseby, and Kuehnle (2009), and Stewart(2001). 

Darnall, D. (2010). Beyond divorce casualties: Reunifying the alienated family. Taylor Trade Publishing. 

 

Gardner, R. A. (2002).  PAS vs. PA: Which diagnosis should evaluators use in child custody disputes?  Am. J. Family Therapy 30(2), 93-116. 

Gardner, R. A. (2006). Introduction. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The international handbook of parental alienation syndrome: Conceptual, clinical and legal considerations (pp. 5-11). Springfield, IL: Charles C Thomas Publisher. 

Garrity, C., & Baris, M. (1994). Caught in the Middle: Protecting the Children of High-Conflict Divorce. Toronto, ON: Maxwell Macmillan Canada, Inc. 

Gilmour, G. A. (2004). High-conflict Separation and Divorce: Options for Consideration. Ottawa: Department of Justice Canada (2004-FCY-1E). 

Hellblom Sjögren, L. (2012).  Barnet avskiljs från sina föräldar, omhändertas jml LVU och påverkas att ta avstånd från dem båda (The child is separated from its parents, taken into forced custody and is influenced to reject them both)(Swedish).  In: Barnets rätt till familjeliv: 25 svenska fallstudier av föräldraalienation (The Child’s Right to Family Life: 25 Swedish Case Studies of Parental Alienation), pages 339-376.  Lund, Sweden: Studentilleratur. 

Kelly, J. B., & Johnston, J. R. (2001). The Alienated Child: A Reformulation of Parental Alienation Syndrome. Family Court Review, 39, 249-266

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. 

PA: A serious mental condition

Posted on by Shawn Wygant

We at PsychLaw.net know that parental alienation (PA) is a serious mental condition that affects hundreds of thousands of children and families in the United States and comparable numbers in other countries.  Mental health professionals (MHPs), family law attorneys, and everyday citizens observe PA on a regular basis, even if they do not know that the phenomenon has a name, where it comes from, or what to do about it.  PA is not new. PA has been observed for many decades and has been described and discussed in the scientific literature of MHPs, in legal literature and precedents, and in popular literature – although the condition has been called a variety of names other than “parental alienation.”  

PA is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies himself or herself strongly with an alienating parent and rejects a relationship with the target parent without legitimate justification.

Several features of the definition should be noted. PA can be conceptualized as a mental condition of the child (e.g., the child has a false belief that the rejected or “target” parent is evil, dangerous, or not worthy of love) or an aberration in the relationship between the child and the rejected, target parent (e.g., absence of communication and camaraderie between child and parent, even though they previously enjoyed a loving, nurturing relationship).  We refer to “separation or divorce” because PA often occurs prior to legal divorce and in families in which the parents were never married in the first place.  PA may occur in high-conflict marriages when the parents are still living in the same household.  It is essential to recognize that the child’s rejection of the target parent is without legitimate justification.  If a parent was abusive or severely neglectful, the child’s rejection of that parent is understandable or legitimate and does not constitute PA. It is best to follow the convention of most writers, who use “estrangement” to refer to warranted rejection of a parent and “alienation” to refer to unwarranted rejection. Finally, we realize that the target parent may not be a typically “perfect” mother or father and that the target parent may have contributed in some way to the child’s dislike of him or her.  However, the essential feature of PA is that the child’s rejection of the target parent is far out of proportion to anything that parent has done to justify the rejection.

In the last eight decades, various authors have described the phenomenon of PA, but have provided different names for it.  For example, Wilhelm Reich (1945) wrote that many divorced parents defend themselves against what he called “narcissistic” injury by fighting for custody of their children. He found that parents who experienced narcissistic injury often defamed each other and did so in front of the children.  Louise Despert (1953) said, “It is a sharp temptation for the parent who remains with the child to break down their love for the one who has gone” (p. 52).  Jack Westman and his colleagues (1970) wrote that a “pattern is found in which one parent and a child team up to provide an effect on the other parent. In these cases one parent appears to deliberately undermine the other through a child.”

Despert, J. L. (1953). Children of Divorce. New York: Doubleday. 

Reich, Wilhelm (1945, 2006). Charakteranalyse [Character Analysis] [German] (8th ed.).  Cologne, Germany: Kiepenheuer & Witsch. 

Westman, J. C., Cline, D. W., Swift, W. J., & Kramer, D. A. (1970). Role of Child Psychiatry in Divorce. Archives of General Psychiatry, 23(5), 416-420. 

The History of PA

Posted on by Shawn Wygant

 The folks here at PsychLaw know how crucial the role of the court is in PA cases. While the behavioral sciences have been concerned with PA for the last seventy years, PA has been identified in legal proceedings for more than two hundred years.  Stephens (2009) documented cases of PA all the way back to the 18th century in England.  There has been much criticism for many years regarding the handling of PA cases in court – with the criticism ranging from the adversarial nature of law itself to the rules and policies of many courts to the behavior of individual judges.  Many mental health and legal writers have expressed concern regarding: absence of active case management, legal disputes that continue for months and years, litigation that unnecessarily escalates conflict, litigation that encourages the children to gravitate to one parent and shun the other parent, and repeated violations of orders go unpunished so parents make a mockery of the court’s authority. 

Several judges in the U.S. and Canada have been outspoken in their suggestions for how to reduce the trauma of PA.  For example, Judge Michele Lowrance (2010) of Chicago stresses the corrosive power of anger in these circumstances and works to redirect it.  Justice Donna Martinson (2010) of British Columbia argued that “several steps are necessary in order to maintain the focus on the best interests of the children and move the case to a resolution in a just, timely and affordable way” including: early identification of the high conflict cases; setting, right at the start, firm rules about the expected conduct of the parents toward the litigation, the children and each other; setting a time frame within which the case must be concluded; and setting a schedule within the time frame for all the steps that must be taken before a solution can be reached including any necessary psychological or other assessments.

In cases involving PA, case management is important.  Bala, Fidler, Goldberg, and Houston (2007) wrote:

It is important for judges to take control of alienation cases, to limit the possibility of manipulating the court process by the parents, and to ensure a firm and quick response to violations of court orders. These are cases for which judicial case management is especially appropriate.  

In cases involving PA, therapeutic jurisprudence may be very effective.  Sauber (2006) pointed out that the court has the power and the influence – even more than the psychologist, psychiatrist, mental health counselor, social worker, or family therapist – to moderate or alleviate PA.  Fidler and Bala (2010) wrote, “In many alienation cases, the education, coaching, and threats or encouragement of a judge can be a prime motivator for change. Many times in these circumstances, we see children adapt to firm court orders.”  

In cases involving PA it is important to set limits, which may require extreme measures.  That may take the form of contempt citations, imposed supervised contact, a reversal of custodial arrangements, and suspension of visitations with the indoctrinating parent.  Sauber (2006) wrote, “It takes ‘guts’ for a judge to order this reversal even if the evidence is compelling, knowing how much the children will ‘hate’ and protest living with the ‘despised’ parent” (p. 15).

In cases involving PA, environmental changes may be very effective in helping children overcome unreasonable negative attitudes.  Several authors describing their qualitative research using case studies have reported on the benefits of changing custody or enforced parenting time in severe alienation cases. For example, Clawar and Rivlin (1991) reported an improvement in children’s relationships with rejected parents in 90 percent of 400 cases where an increase in the child’s contact with the target parent was court ordered.  They wrote:

Children may say, “I hate her. I’ll never speak with her if you make me go see her,” “I’ll run away,” or “I’ll kill myself if he comes to see me.” However, in some cases, children were told to say these things by the programming and brainwashing parent…. It is not uncommon to see these threats disintegrate after court orders change (p. 144).

Today, there is general recognition that a reversal of custody may be warranted in severe cases (Drozd & Olesen, 2009; Johnston & Goldman, 2010; Johnston, Roseby, & Kuehnle, 2009; Warshak, 2010b).  

Bala, N., Fidler, B. J., Goldberg, D., & Houston, C. (2007). Alienated children and parental separation: Legal responses in Canada’s family courts. Queen’s Law Journal, 33, 79-138.

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. 

Drozd, L. M., & Olesen, N. W. (2009). When a child rejects a parent. Paper presented at the 46th Annual Conference of the Association of Family and Conciliation Courts

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. 

Johnston, J. R., & Goldman, J. R. (2010). Outcomes of Family Counseling Interventions with Children Who Resist Visitation: An Addendum to Friedlander and Walters. Family Court Review, 48, 112-115. 

Johnston, J. R., Roseby, V., & Kuehnle, K. (2009). In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (2nd ed.). New York, NY: Springer. 

Lowrance, M. (2010). The Good Karma Divorce. New York: Harper Collins. 

Martinson, D. J. (2010). One Case – One Specialized Judge: Why Courts Have an Obligation to Manage Alienation and Other High-Conflict cases. Family Court Review, 48(1), 180-189. 

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. 

Stephens, R. (2009).  A Historical Perspective on Parental Alienation and Child Custody Disputes: 1760-Present.  Unpublished manuscript. 

Warshak, R. A. (2010b). Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated          Children. Family Court Review, 48, 48-80. 

Child Custody Evaluation

Posted on by Shawn Wygant
          The major focus of a child custody evaluation is to assist a court in determining the Best Interests of the Child.  One of the challenges facing Family Courts is that the best interests of the child is defined differently across jurisdictions. This has led to a “lack of consensus as to its meaning” (Kelly, 1999, p. 377). According to Zermatten (2010) “no one knows for certain what are the best interests of a child, or a group of children” (p. 485). Kelly (1999) notes that “because the concept of best interests is rarely defined but heavily relied on, experts, attorneys, court personnel, and parents … create their own meanings” (p. 378).
           Kelly (1999) suggests that a child’s best interest should be defined as the “combination of factors a child needs in a custody and/or access arrangement that will sustain his or her adjustment and development” (p. 378). She further opines that “despite the changing family structure, whatever individual parental emotional and intellectual resources existed for the child should be sustained or maximized after separation” (Kelly, 1999, p. 378).
          Other researchers have stressed the importance of neutrality when evaluating parents and their children for issues concerning custody and access (See Handbook of Child Custody). Forensic evaluators are often reminded in the literature and relevant case law of the Constitutional dimensions surrounding family civil rights (Karst, 1980) and a family’s right to “integrity” and “privacy” (Bohl, 1994). Parents and children have a substantive due process right to maintain close and continuing relationships with each other after the dissolution of the family (Alsager v. Polk County, 1975; Santosky v. Kramer, 1982). These rights are held in common between the children and their parents (See Family Relationships).

Parental Alienation in U.S. Courts

Posted on by Shawn Wygant

A meme exists that parental alienation is not accepted by the U.S. judicial system. The fact is, parental alienation has a rich history in our court system and courts around the world. PsychLaw.net’s researchers know that two hundred fifteen years ago, the first recorded case resembling parental alienation (PA) was fought out in the courts of England.[1] In the last two centuries, English-speaking jurists have grappled with parents alienating, brainwashing, kidnapping, and manipulating their children in thousands of cases.[2] Child psychiatrist Richard Gardner published his first formulation of a parental alienation syndrome (PAS) in 1985.[3]  A prolific advocate for children, Gardner wrote 41 books and more than 200 professional journal articles and book chapters.[4]   When the American Psychological Association published Guidelines for Child Custody Evaluations in Divorce Proceedings in 1994, Gardner was cited more than any other single authority in the “Pertinent Literature” section.[5]  In the recent text published by the American Bar Association—Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions—33% of the citations in the bibliography have “parental alienation,” “parental alienation syndrome,” or “alienation” in their titles; in the same bibliography, Richard Gardner’s work is cited twenty-three times.[6] Since Gardner’s numerous contributions, there have been hundreds of peer-reviewed articles, chapters in scholarly books, presentations at professional meetings, and legal treatises on PA.[7]

But wait.  A meme[8] has developed that PA does not exist.  In contrast to the extensive scientific and legal literature regarding PA, there has been a number of published articles and book chapters criticizing the concept of PA and even denying the reality of PA.  On the one hand we find more than two hundred years of English language jurisprudence concerning alienation;[9] hundreds of published, peer-reviewed articles concerning alienation describing both qualitative and quantitative data;[10] scores of books by parents and legal and behavioral sciences professionals discussing the phenomenon; as well as chapters in scholarly books, lectures, and legal treatises on the subject.[11]  On the other hand, in the twenty-five years between 1994 and 2018, we find Notes, bar journal and law review articles, lectures, newspaper stories, and websites where law students, attorneys, law professors, and ex-lawyers write about PA and science.  In this twenty-five-year period we also find social workers, psychologists, and a nurse writing about PA and evidence law.[12]  How do we reconcile the extensive literature for and against the concept of PA?  One way to do that is to look at the legal opinions of thousands of courts regarding this topic.  What do the trial courts in the United States say about PA?  What do the three- to five-judge, appellate courts in the United States say about PA? Stay tuned, PsychLaw.net will be discuss what courts say in jurisdictions throughout the United States.

_________________________________________________________________

[1] King v. De Manneville, 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804). And see Shelley v. Westbrook, 37 Eng. Rep. 850 (Ch. 1817). Earl of Westmeath v. Countess of Westmeath, 162 Eng. Rep. 992 (1826). In re Barry, 42 F. 113 (S.D.N.Y. 1844). In re Burrus, 136 U.S. 586 (1890). For a fuller explication of the history, see Chapter 7, “Alienating Behaviors and the Law.”

[2]  See Chapter 1, “Introduction to Parental Alienation” (alienating), Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (American Bar Association 1991) and Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions 475-507 (2d ed. 2013)[hereinafter Clawar & Rivlin (2013)] (brainwashing). The International Handbook of Parental Alienation Syndrome 158, 169, 433-437 (Richard A. Gardner et al. eds. 2006) (kidnapping) American Professional Society on the Abuse of Children, Practice Guidelines on The Investigation and Determination of Suspected Psychological Maltreatment of Children and Adolescents (2017) (manipulating).

[3] Richard A. Gardner, Recent trends in divorce and custody litigation, 29 Academy F., Fall 1985, at 3-7. Richard A. Gardner, Paper presented for the Ninth Annual Herschfeld Lecture, The parental alienation syndrome (June 11, 1986). Richard A. Gardner, The parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse (1987).

[4]  See, e.g., The Gardner Library, Dr. Richard A. Warshak https://www.warshak.com/resources/gardner.html (last visited May 5, 2019).

[5] American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994).

[6]  Clawar & Rivlin (2013), supra note 2.

[7] Parental Alienation Database, Center for Knowledge Management Vanderbilt University Medical Center, https://www.mc.vanderbilt.edu/pasg (last visited May 21, 2019). [hereinafter PA Database] (Under the auspices of the nonprofit Parental Alienation Study Group, the Vanderbilt University Center for Knowledge Management has digitized a bibliography. “This database contains more than 1,000 books, book chapters, and articles published in mental health or legal professional journals. Most of these references pertain directly to parental alienation and parental alienation syndrome; some of the references pertain to a closely related topic such as divorce, child custody, parenting time, or sexual abuse.  Newspaper and magazine articles and unpublished presentations at professional meetings are not included, unless they are unusually important.”)

[8] See Chapter 1, “Introduction to Parental Alienation.” (“A meme is a concept, image, catchphrase, or piece of media which spreads from person to person via social networks, news sources, or professional journals.  Similar to a fad or craze, the meme takes on a life of its own.”). Also see Olivia Solon, Richard Dawkins on the internet’s hijacking of the word ‘meme,’ Wired UK (Thursday 20 June 2013), https://www.wired.co.uk/article/richard-dawkins-memes (last visited May 25, 2019) (“Richard Dawkins coined the word ‘meme’ in his 1976 bestseller The Selfish Gene. The word—which is ascribed to an idea, behaviour or style that spreads from person to person within a culture—has since been reappropriated by the internet ….”).

[9] See Chapter 7, “Alienating Behaviors and the Law.”

[10] See Chapter 5, “Parental Alienation and Empirical Research.”

[11] See PA Database, supra note 7.

[12]  See Chapter 8, “Admissibility of the Construct – Parental Alienation.”

Stopping the Spread of Misinformation: A Case Study

Posted on by Shawn Wygant

In our last blog, we talked about the importance of using voir dire to examine the reliability and validity of expert witness’ testimony. Here, PsychLaw.net  examines a specific case example, In re R.W.W., Montana, 2017, where Drs. Silberg and Geffner provide testimony that proliferates the spread of misinformation.

In re R.W.W., Montana, 2017:

In re R.W.W.[1] was instituted in 2014 when the court-appointed guardian ad litem (GAL) requested emergency relief from the Court due to Mother’s behavior.[2] The parents in In re R.W.W. divorced in 2011 and a shared parenting plan was entered for the parties’ child born in 2004.[3] Beginning in January 2014, the GAL “became concerned” because Mother was “applying significant pressure on R.W.W. to lie about his dad to law enforcement personnel, Child and Family Services …, and other third parties.”[4] This included taking the child to the:

Police Station and presented a story of [Father] and others plotting during a Thanksgiving celebration to kill [Mother], all in front of R.W.W. [Mother] presented the same story to CFS. Upon investigation, the story turned out to be false. Further, GAL …related that when she saw R.W.W. in January 2014, he was in extreme distress and presented in a fetal position, with his hood pulled over his eyes. When GAL … asked what was wrong, R.W.W. repeatedly said that he could not say and that his mom told him he would go to jail if he did. Eventually, R.W.W. recounted that [Mother] had made him lie about the incident.[5]

The GAL informed the court that this was the “worst case of attempted parental alienation” that the GAL had seen.[6] In response to the GAL’s opinion, Mother requested the GAL be removed, which the court did.  The court also appointed a professional to investigate and make a recommendation.[7] The investigator met with R.W.W. 10 times, and recommended the child spend two weeks with Father and one with Mother on a rotating basis until “some” of Mother’s parenting deficiencies were corrected.[8]  At an emergency hearing in January 2015, the investigator, who had conducted two further interviews with R.W.W., testified that Mother’s behavior had worsened, the child’s “stress level” had worsened, and he wanted to live with his father.[9] 

In response to this testimony, Mother “issued subpoenas” to the investigator’s licensing board, filed a disciplinary complaint against Father’s counsel,[10] and hired Dr. Silberg.  According to the record, allegations of abuse “mysteriously arose right when … Dr. Silberg came on the scene.”[11] Dr. Silberg testified that, in her opinion, this was a “classic case” of domestic abuse by Father against Mother.[12] The record reveals that the court “roundly dismissed the absurd contentions of abuse.”[13]

The court records document that in December 2015, at the hearing for a final parenting plan, the child’s counselor expressed concerns about Child’s suicidal ideas offering:

[W]hen R.W.W. has been at [Mother’s] home and then comes in for therapy, he is always agitated and has a sense of urgency and pressure to relate bad things about his father … insists that [the parenting coordinator] be told these bad things … has suicidal ideations … was concerned that his mother might not be able to live if he was taken away from her and … she does not get out of bed when he is gone.[14]

The child’s therapist testified that contrary to how the child is after being with his mother, “R.W.W. feels safe and relaxed with [Father] and … has a good relationship with his father.”[15] The parenting coordinator agreed, noting that while in Mother’s care, the child “was tired, his posture was defensive, and at times … would assume a fetal position …. In comparison, when … with his father, he appeared rested, laughing, and demonstrated a good sense of humor.”[16]

Apparently in response to this and other evidence that Mother’s parenting should be supervised, Mother hired Dr. Robert Geffner.[17] Father objected because it appeared Mother wanted to relitigate the abuse allegations Dr. Silberg described, which were “roundly dismissed” as “absurd.”[18] Nevertheless, the court allowed Dr. Geffner to testify for Mother “based on only a review of the records”[19] and only as to issues subsequent to the Court’s prior determinations.

When examining Dr. Geffner, Father’s attorney referred to prior cases in which Dr. Geffner had attempted to provide expert testimony, including O’Rourke v. O’Rourke, supra, Clark v. Collin[20]s(in which the court found that Dr. Geffner’s affidavit lacked credibility), and Hawaii v. French[21] (where “the court likewise excluded Dr. Geffner’s testimony”).[22] In this case, Father was worried that Dr. Geffner would attempt, as he had in O’Rourke, to disparage the other psychiatrists or psychologists who were testifying as experts.[23]  Father’s attorney also confronted Dr. Geffner with two affidavits he executed in O’Rourke, in which he accused Mr. O’Rourke of abuse, when he had not spoken to him or any of the other witnesses.[24]

Then it got worse.  In cross-examination, Father’s attorney asked Dr. Geffner: “I believe you told me … that you have testified in over 300 cases and your opinion has never been excluded; is that correct?” Similar to Dr. Silberg’s testimony in D.T. v N.O.[25] Geffner answered that his testimony had not been excluded.ccxiv Father’s attorney then presented the Court with a copy of a Tennessee appellate opinion in which that court noted, “The court likewise excluded Dr. Geffner’s testimony in Hawaii v. French.”[26]

Father’s attorney also confronted Dr. Geffner with the opinion of the O’Rourke trial judge—that Dr. Geffner had “adopted Mother’s scorched earth tactics” and that his testimony was “… completely without merit and that he truly fits the definition of a ‘hired gun.”[27] In response, Dr. Geffner claimed that O’Rourke “was the last case that judge ever heard,” and “he was basically forced to resign.”[28] Dr. Geffner also testified that the expert on the other side of the O’Rourke case was being investigated by the FBI for recommending a change of custody to a  father who Dr. Geffner said was sexually abusing his child.[29]  Dr. Geffner then went on to spontaneously offer that that expert’s opinion was not backed by research and the American Psychiatric Association had “repudiated him.”[30]

Given these remarkable statements, the trial court investigated them and specifically found that, regarding the judge in O’Rourke: he remained on the bench for 8 more years, then started a law firm, then was appointed a Senior Judge, taught at a law school, was an approved mediator, and then served as a Special Judge for the Tennessee Court of Appeals.[31]   The trial judge also looked into the expert and found that he was never investigated by the FBI, and he was a “respected and distinguished professional.”[32] 

The court set out its findings of fact and conclusions of law in a detailed 43-page Order, and after describing Mother’s conduct as “toxic litigation tactics”[33] concluded that the child was “not emotionally safe” when with his mother, ordered that she have no contact for a period of time and then only 4 hours of supervised parenting time every other week.[34] A five judge panel of the Montana Supreme Court affirmed the Order.[35]

____________________________________________________________________________

[1] In re R.W.W., 2017 MT 174N, 400 P.3d 230 (styled by the parties and district court as Wolf v Wolf).

[2] Id. at ¶ 5, 400 P.3d 230.

[3] Id. at ¶ 3, 400 P.3d 230.

[4] Id. at ¶ 4, 400 P.3d 230.

[5] Id. at ¶ 4, 400 P.3d 230.

[6] Brief of Petitioner and Appellant, In re R.W.W., 2017 MT 174N, 2017 WL 1102240, at *5 (Mont. Mar. 13, 2017).[hereinafter Wolf Brief]

[7] In re R.W.W., 2017 MT 174N at ¶ 5, 400 P.3d 230.

[8] Id. at ¶ 6, 400 P.3d 230.

[9] Id. at ¶ 7, 400 P.3d 230

[10] Id. at ¶ 8, 400 P.3d 230.

[11] Transcript at 10, 30, 117, Wolf v. Wolf, No. DR-13-380CX (J Gallatin Co., Mont. June 3, 2016) [hereinafter Wolf Tr.]

[12] Wolf Brief, supra note 194, at 9. A voir dire prepared attorney may seek to inquire whether this behavior by Dr. Silberg may have violated the ethical principles and guidelines prohibiting bias, providing opinions about people who have not been properly assessed or examined and intentional misrepresentations. Ethical Principles & Standards, supra note 47, at 5.01. Specialty Guidelines, supra note 48, at 9.01, 9.03, 11.01.

[13] Wolf Tr., supra note 199, at 10, 30, 117. Findings of Fact and Conclusions of Law, Wolf v. Wolf, No. DR-13-380CX ¶¶ 90-102 (Gallatin Co., Mont. Apr. 24, 2015)[hereinafter Wolf Findings (4/24/15)]

[14] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230. See also Wolf Tr., supra note 199, at 143.

[15] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230.

[16] Id. at ¶ 11.

[17] Id. at ¶ 13. And see Findings of Fact, Wolf v. Wolf, No. DR-13-380CX ¶ 53 (Gallatin Co., Mont. July 20, 2016) [hereinafter Wolf Findings (7/20/16)]

[18] Id., at ¶¶ 57, 90-102. See also Wolf Tr., supra note 199, at 10, 30, 117.

[19] In re R.W.W., 2017 MT 174N at ¶ 13, 400 P.3d 230.

[20] Clark v. Collins, 956 F.2d 68, 72 (5th Circuit 1992).

[21] Hawaii v. French, 129 P.3d 581 (Hawaii 2006).

[22] O’Rourke v. O’Rourke, 2010 WL 4629035, at *7 (Tenn. Ct. App., April 5, 2013).

[23] Id.

[24] Id. at *6.

[25] Tr. (1/27/14), supra note 49, at 200-01. Tr. (1/28/14), supra note 67 at 239.

[26] Wolf Tr., supra note 199, at *28.

[27] O’Rourke, 2010 WL 4629035, at 7.

[28] Id.

[29] Wolf Tr., supra note 199, at 178.

[30] Id. at 180-181. Investigation indicates that the case Dr. Geffner was referring to is Cone v Cone, which was affirmed by the Court of Appeals of Tennessee. Cone v. Cone, No. M2008-02303-COA-R3-CV, 2010 WL 1730129 (Apr. 29, 2010). The expert being criticized was Professor William Bernet of Vanderbilt University, the co-editor of this text. Dr. Bernet has not been investigated by the FBI.  The father in that case was a doctoral level licensed health care practitioner with no indication when his state licensing board was queried that he had ever been sanctioned or suspended from practice.

[31] Wolf Tr., supra note 199, at 180. NOTE There is no document, report, letter, press release etc. published by the American Psychiatric Association repudiating Professor Bernet. The proposal referred to was Professor Bernet’s book. See William Bernet, Parental Alienation, DSM-5, and ICD-11 (2010).

[32] Wolf Findings (7/20/16), supra note 205, at ¶ 61.

[33] Id. at ¶ 62.

[34] In re R.W.W., 2017 MT 174N at ¶ 15, 400 P.3d 230.

[35] Id. at ¶ 24. See also Ethical Principles & Standards, supra note 47, at D, 5.01. Specialty Guidelines, supra note 48, at 11.01.

STATEMENT OF FACT VOIR DIRE 

Posted on by Shawn Wygant

Earlier, PsychLaw.net  discussed a data-of-the-discipline voir dire which was illustrated by drawing on the Colorado case of D.T. v. N.O.[1]  Here is an example of a voir dire based upon exploration of five statements of fact in In re R.W.W.[2] The attorney preparing the voir dire pursuant to her Sixth Amendment right to confront this witness would note that none of these five statements of fact were prefaced with “I’m just spit ballin’ here” or “I don’t know it for a fact, I just know it’s true.”[3] In preparing the voir dire, she would have on hand:

  • A transcript of Dr. Geffner’s In re R.W.W. testimony with specific pages marked:
  • Oath to tell “… the truth, and nothing but the truth, so help you God.”[4]
  • The five illustrative statements of fact in In re R.W.W.[5]
  • Appellate records for cases where Dr. Geffner’s opinions were excluded[6]
  • American Psychological Association – Policy in Context[7]
  • Ethical Principles of Psychologists and Code of Conduct of the APA, with notes marking sections pertaining to: bias[8]; accuracy, fairness, and avoidance of deception[9]; fraud, subterfuge, or intentional misrepresentation of fact; false, deceptive, or fraudulent statements; offering opinions when one has not done an examination[10]; and attacking other experts’ credentials, credibility, good faith.[11]
  • Specialty Guidelines for Forensic Psychology of the APA, with notes marking sections pertaining to: bias[12]; accuracy, fairness, and avoidance of deception[13]; offering opinions when one has not done an examination[14]attacking other experts’ credentials, credibility, good faith(
  • Black’s Law Dictionary and Webster’s Dictionary with notes marking definitions for words drawn directly from the APA Principles, Standards and Guidelines: Avoid  – Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert
  • The Montana Statute on Perjury (Mont. Code Ann. 45-7-201)highlighting: “A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath ….”[15]

The prepared attorney could proceed with the witness as follows:

1.Mark each as a demonstrative exhibit and establish the validity, evidentiary use of and/or admissibility of:

A. Mont. Code Ann. § 45-7-201 – Perjury

B. Appellate records for:

  • State v. Nicklasson, 967 S.W.2d 596 (1998)
  • Nicklasson Roper, 2005 WL 1005126 (unpublished)
  • State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
  • Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
  • State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)

C. American Psychological Association – Policy in Context[16]

D. Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA.[17]

E. Specialty Guidelines for Forensic Psychology (January 2013) of the APA.[18]

F. Transcript of Dr. Geffner’s sworn testimony in In re R.W.W.

G. The Parties briefs from In re R.W.W.[19]

H. Findings of Fact and Conclusions of Law by Honorable Brenda Gilbert, Judge of the Sixth District Court of Montana, in In re R.W.W.[20]

I. Black’s Law Dictionary definitions of

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

J. Webster’s Dictionary definitions of

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

2. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with Mont. Code Ann. § 45-7-201 “… false statement under oath ….”

A. My testimony has never been excluded.

  • State v. Nicklasson, 967 S.W.2d 596 (1998)
  • Nicklasson Roper, 2005 WL 1005126 (unpublished)
  • State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
  • Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
  • State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)

B. That was the last case the O’Rourke judge ever heard.

Findings of Fact and Conclusions of Law, in In re R.W.W.

C. That O’Rourke judge was basically forced to resign.

Findings of Fact and Conclusions of Law, in In re R.W.W.

D. The O’Rourke expert was being investigated by the FBI.

Findings of Fact and Conclusions of Law, in In re R.W.W.

E. The American Psychiatric Association repudiated O’Rourke expert

Findings of Fact and Conclusions of Law, in In re R.W.W.

3. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with the Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA:

Principle D – Justice

Principle C – Integrity

Standard 5.01 – Avoidance of False or Deceptive Statements

Standard 9.01(b) – Bases of Assessment and Persons Not Examined

4. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with Specialty Guidelines for Forensic Psychology (January 2013) of the APA:

Guideline 1.01 – Integrity

Guideline 1.02 – Impartiality and Fairness

Guideline 2.07 – Considering the Impact of Personal Beliefs and Experience

Guideline 11.01 – Accuracy, Fairness and Avoidance of Deception in Public Statements

Guideline 11.05 – Commenting Upon Other Professionals and Participants in Legal Proceedings

5. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with the dictionary definitions of the relevant terms from the APA Principles, Standards and Guidelines 

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

NOTE – Never ask for an explanation.  Always ask for agreement with the obvious conclusion, for example:

When you stated [insert statement of fact], you were attempting to avoid an honest and fair description of the facts.  Correct?

or

When you stated [insert statement of fact], you were attempting to mislead the court concerning [insert statement of fact].  Correct?

______________________________________________________________________

[1] See supra notes 55 through 71 and accompanying text regarding the voir dire performed in D.T. v. N.O., No. DR 13, (Gunnison County, Colo. Dist. Ct. 2014).

[2] In re R.W.W., 2017 MT 174N, 400 P.3d 230.

[3] Apologies to Bill Maher. See, e.g., Real Time with Bill Maher: I don’t know if for a fact… I just know it’s true (HBO television broadcast Mar. 30, 2019) http://www.real-time-with-bill-maher-blog.com/index/2019/3/30/i-dont-know-it-for-a-facti-just-know-its-true.

[4] See John H Duehr, Montana Judges Deskbook 136 (Montana rev. ed. 2010 (“You do solemnly swear (or affirm, as the case may be) that the evidence you will give in this issue (or matter), pending between ……. and ……., is the truth, and nothing but the truth, so help you God.”

[5] https://courts.mt.gov/Portals/189/lcourt/deskbook/2010_Deskbook.pdf

[6] Wolf Tr., supra note 199, at 28 (regarding testimony never excluded), at 178 (regarding the last case the O’Rourke judge ever heard), at 180 (regarding the O’Rourke expert being investigated by the FBI), at 181 at 180 (regarding the O’Rourke judge being forced to resign).

[7] See, e.g.: State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. 1998) (Trial court properly excluded Geffner’s testimony); Nicklasson v. Roper, No. 03-8001, 2005 WL 1005126, at *9 (W.D. Mo. Apr. 26, 2005) (Geffner’s opinion properly excluded); State v. French, 129 P.3d 581 (Table), 2006 WL 407712, at * 5 (Haw. Feb. 17, 2006) (Geffner precluded from testifying); Beam v. Beam, 310 P.3d 1047 (Table), 2010 WL 4609356, at *8 (Haw. Ct. App. Nov. 15, 2010) (Family court refused to allow Geffner’s testimony); State v. Jacobson, 418 P.3d 960, (Ariz. Ct. App. 2017) (Geffner’s opinion evidence rejected).

[8] Geoffrey M. Reed, Christopher J. McLaughlin & Russ Newman, American Psychological Association policy in context: The development and evaluation of guidelines for professional practice, 57 Am. Psychologist 1041-1047 (2002) (Describing the manner in which standards and guidelines such as the EPPCC and SGFP are developed and their intended application to all psychologists). NOTE: When dealing with psychologist witnesses, it is often necessary to have on hand the relevant state board of psychology statements that the board relies upon the standards and guidelines of the American Psychological Association and in some cases, additional rules promulgated by the specific board, in the evaluation of proper professional behavior by psychologists.

[9] See Ethical Principles & Standards, supra note 47, at D.

[10] See Ethical Principles & Standards, supra note 47, at C, 5.01.

[11] See Specialty Guidelines, supra note 48, at 9.01.

[12] See Ethical Principles & Standards, supra note 47, at C, 5.01.

[13] See Specialty Guidelines, supra note 48, at 1.01, 20.7.

[14] See Specialty Guidelines, supra note 48, at 1.01, 11.01.

[15] See Specialty Guidelines, supra note 48, at 9.03.

[16] mont. code ann. § 45-7-201 (2019) (“A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath….perjury shall be punished by imprisonment in the state prison for any term not to exceed 10 years or be punished by a fine of not more than $50,000, or both.”) See also Elements of Perjury, United States Department of Justice, Criminal Resource Manual § 1745 (“The first element of a perjury offense is that the defendant must be under oath during his testimony, declaration or certification.”) Id. at § 1746 (“The second essential element of a perjury offense is that the defendant must have made a false statement.”) Id. at § 1747 (“The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory.”) Id. at § 1748 (“The false statement must be material to the proceedings. A false statement is material if it has ‘a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.’”)

[17] Reed et al., supra note 231. Try to avoid chasing the psychologist around the courtroom to establish that the relevant principles, standards and guidelines are authoritative and must be followed. Instead, refer to code’s introduction: “The Ethical Standards set forth enforceable rules for conduct as psychologists.”  Ethical Principles & Standards, supra note 47, at Introduction and Applicability. Also refer to guidelines for forensic work: “These Guidelines apply in all matters in which psychologists provide expertise to judicial, administrative, and educational systems….” Specialty Guidelines, supra note 48, at Introduction.

[18] All psychologists are required to follow. Ethical Principles & Standards, supra note 47, at Introduction and Applicability.

[19] All psychologists are required to follow. Specialty Guidelines, supra note 48, at Introduction.

[20] Wolf Brief, supra note 194; Wolf Reply Brief, supra note 222.

The Spread of Misinformation

Posted on by Shawn Wygant

In this continuation from PsychLaw.net’s earlier blog regarding the spread of misinformation, PsychLaw.net describes the damaging effect of testimony such as Silberg’s and why that testimony was not admissible in court.

K.M. v. S.M.M., New Jersey, 2011

In the New Jersey high-conflict case of K.M. v. S.M.M.,[1] a conscientious trial judge spent approximately 70 days over four years during 2006–2009 in hearings and issued numerous oral rulings and three separate comprehensive written opinions to detail an alienating mother’s manipulation and false allegations. [2]

Beginning in 2005 while the parties were separated, Mother obtained a temporary restraining order prohibiting Father from contacting her or the parties’ children, aged 3½ and 6.  As a result, the oldest was evaluated by a crisis mental health evaluator, and the evaluator recommended Father’s parenting time be restored.  Later, in 2006, when she answered Father’s complaint for divorce, Mother responded with allegations that Father had sexually abused the two children. These latest allegations were discredited, as the oldest child showed no signs of sexual abuse when she was evaluated just months before. In response to the investigation by the Department of Youth and Family Services (DYFS), however, the court directed that Mother’s parenting time with her children be supervised and also ordered the children see a therapist.

Undeterred, Mother’s allegations continued. Numerous law enforcement, DYFS, and mental health professionals became involved over the four years of this tragic story, with the professional child abuse specialists unanimously finding no signs of sexual abuse. One expert, while interviewing Mother and asking if she could “accept the possibility that any of the information” of sexual abuse was false, noted that “[Mother] proceeded to ‘faint’ in the therapist’s office. She lay down on the floor and did not get up or respond until the therapist announced to her that he was going to call 911.”[3] With another evaluator, Mother insisted Father had been diagnosed with an Axis II disorder, and when confronted with the fact that he had not, Mother was upset and refused to accept the fact.

Other expert evaluators interviewed Oldest Child and found her statements to be unreliable “because of her lack of sadness or anxiety when reporting the incidents.”[4] An experienced evaluator also noted that “neither child avoided physical contact with [Father] and were comfortable being close to him physically.”[5] Still other well-trained and experienced evaluators found the oldest to be “very prepped,” and were struck by the incongruity of Oldest Child’s “ease, comfortable demeanor in discussing very disturbing topics.”[6]

With evidence of Mother’s manipulation and false allegations mounting, Mother retained Dr. Silberg.[7] Father moved for an order in limine to exclude Dr. Silberg and her testimony. A 7-day N.J.R.E. 104 hearing was conducted with the testimony and evidence recorded in what the appellate court described as “painstaking detail.”

Father presented the testimony of an expert who opined that Dr. Silberg’s interview of the child and the report she issued “violated the mandated procedures adopted by their profession.”[8] The expert went on to testify that Dr. Silberg failed to consider the full gamut of source materials, and that “the sources Dr. Silberg utilized, the short interview with mother, the fifty-minute interview with [Child] and the behavioral checklist mother prepared were insufficient sources for a forensic interview leading to a scientifically reliable conclusion.”[9] As the attorney’s examination of Father’s expert revealed and the Court found, Dr. Silberg in her testimony may have violated APA ethical code and guidelines that require knowledge of the area and use of established science, as well as those that prohibit bias.[10]

After extensive voir dire, the trial court noted inter alia:

(1)  Before interviewing the child, Dr. Silberg spoke with Mother’s attorney, “who informed her of the ‘urgency’ in . . . issuing a report because father was seeking parenting time and [the] report was being used in support of mother’s opposition.”

(2) Prior to the interview with the child, Dr. Silberg spoke with Mother “for about twenty minutes about [Mother’s] sexual problems with father and that mother had told her it was consistent with what he did to the children.”

(3) Dr. Silberg had a “symptom checklist” that corroborated abuse, but it was the Mother, not the child, that responded to it.

(4) And, the only recording, audio, shut off many times during Dr. Silberg’s evaluation of the child.[11]

In entering his order excluding Dr. Silberg and her opinions, the trial judge noted:

The court finds Dr. Silberg’s conduct in doing an “urgency” interview was a deliberate attempt in haste to present [an] “opinion” to the court which had no scientific basis and clearly was not founded on the “totality of the circumstances” known to or should have been known to Dr. Silberg as mandated by the professional guidelines and requisite findings made by the New Jersey Courts …. Dr. Silberg by her interview tested no plausible “rival” hypothesis under the “totality of the circumstances” in this case.[12]

The court ultimately awarded sole custody to Father as well as attorney and expert fees of nearly two million dollars.

In the case M. v. S., Maryland, 2018, PsychLaw.net  shows how Silberg’s reports concerning PA affected this case.

In M. v. S.,[13] Mother and Father had one child “J.” born in January 2010 and their divorce was finalized in December 2011. Under the terms of the 2011 decree, Mother was awarded sole physical custody of J., both parties shared legal custody, and Father was to be allowed visitation. Following their separation, Mother began to make allegations that Father had assaulted her and abused J. None of these allegations was substantiated by law enforcement or social services.[14] However, as protective orders had issued with many of these new allegations, Father was denied visitation with J. repeatedly and for extended periods of time.[15] During the time that Father did not see him, J. had become uncontrollable, was aggressive to others, and had been expelled from his preschool for behavioral reasons[16]. By January 2015, the circuit court had had enough and issued an order finding Mother in “willful contempt” for her “failure to permit” Father access to his child.[17]

Then, Mother sought out Dr. Silberg for therapy for J. and in July 2015, Dr. Silberg first requested Father not visit the child “for a couple of weeks,”[18] which turned into five months.[19] Then in contrast to a report from a court-ordered psychological evaluator, Dr. Silberg issued a report concluding that J. suffered from posttraumatic stress disorder (PTSD).[20] The court ordered another evaluation from an experienced psychologist who concluded that J. suffered from disruptive behavior disorder but saw no evidence of abuse or anything that would have suggested abuse.[21]

The judge appointed a best interest attorney (BIA) for J. and in October of 2015 a custody evaluation was ordered.  As part of the evaluation, a meeting that included the BIA, Father, Mother, the evaluator, and the child was scheduled in December 2015.[22] Mother defied the Court’s specific order to drop J. off at the front of the courthouse, parked “some distance away,” and when the evaluator and the child’s BIA found them, 5-year-old J. ran away.[23] Instead of going after the child, Mother telephoned Dr. Silberg “while recording the incident on her cell phone.”[24] A deputy sheriff finally caught the child who “started screaming” and punching the deputy, and told his mother upon his return that he “wouldn’t let them trick me.”[25]

As a result of Mother’s remarkable conduct, Father and the BIA filed a joint motion for emergency hearing alleging: “J.’s best interest had been ignored, that Dr. Silberg had breached applicable standards of care and should be replaced as J.’s therapist.”[26] The next day the judge entered an order regarding Christmas visitation.[27] Mother ignored parts of it, but finally delivered the child to Father in the evening, and over the next two days, Father was never alone with J. as there were always other family members present or they were in public.[28]

A subsequent second court-ordered visit, for New Year’s Day 2016, was missed because Mother reported that 6-year-old J. had been yelling and screaming so violently that he was taken to the hospital. During that hospitalization, Dr. Silberg filed a report with Child Protective Services (CPS), alleging that Father had abused J. during the Christmas visit when Father was never alone with J.  Like all of Mother’s previous allegations, CPS thoroughly investigated this latest complaint, and as the judge wrote, the allegations were simply “ruled out.”[29] Days after the child’s hospitalization, the Court placed J. in the temporary legal and physical custody of his paternal uncle and aunt, and in their care J. displayed a marked improvement in behavior.[30]

The court then conducted a nine-day trial ending in May 2016. She went through reams of documents and heard from numerous witnesses.[31] Several witnesses described Mother’s emotional outbursts, melt-downs, and psychiatric illness.[32] According to the record, a psychiatrist who was ordered to evaluate the parties hypothesized that Mother’s emotional behavior and distortion of other people’s motives could trigger some of J.’s anger and emotional turmoil.[33]

During her testimony, Dr. Silberg opined that the child suffered from PTSD as a result of father’s physical and sexual abuse.[34] The court was concerned with Dr. Silberg’s refusal to accept alternative explanations for J.’s issues and expressed concern that Dr. Silberg seemed “unpersuaded” by the fact that J.’s “behavioral difficulties, acting out, disclosures of abuse, meltdowns, needs for psychiatric intervention, et cetera, had all but disappeared since J. was placed with his aunt and uncle.”[35] The judge noted that this seemed to have no impact on Dr. Silberg, who was completely credulous even for the most ridiculous statements the child made, “such as the dog unlocking the closet door.”[36]

The court also described Dr. Silberg as clearly biased, not credible, and with compromised professional boundaries.[37] Perhaps most striking, the judge characterized as a “most glaring example” of untruthful statements Dr. Silberg’s description of the scene when the child ran away at the courthouse, where Dr. Silberg described, contrary to other evidence, that Mother was “very appropriate in her talking to J. in encouraging him to please go to the appointment.”[38] The court countered: “This is clearly not what happened. I saw the video.”[39]

A skilled attorney preparing a voir dire could use the judge’s description of Dr. Silberg’s conduct to inquire into violations of the APA guidelines and its ethical code by letting bias affect her work, being untruthful and not using established science in presenting her professional opinion.[40] Indeed, after observing Dr. Silberg’s conduct, Judge Kramer wrote:

“The court finds Dr. Silberg’s testimony was not credible. She appears to have compromised her professional boundaries …. She gave advice to Mother that was personal and had no relevance to J.’s treatment …. There were statements in her report that were untrue and clearly biased toward Mother.”[41]

On the day the trial ended, Judge Kramer issued an order that Father would have sole legal and physical custody of J. and that Mother would be entitled to supervised visitation, which could only occur during therapy sessions with J.’s treating therapist, no more than once every two weeks.[42]

_______________________________________________________________________________________________________________

[1] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534, supra note 76 (N.J. Super. Ct. App. Jul. 28, 2011).

[2] Id.

[3] Id. at * 8.

[4] Id. at *9.

[5] Id.

[6] Id. at * 10.

[7] Id.

[8] Id. at *24-25.

[9] Id.

[10] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[11] K.M., 2011 WL 3176534, at * 22.

[12] Id. at * 23. For specific ethical rules an examining attorney could argue that Dr. Silberg may have violated see Ethical Principles & Standards, supra note 47, at D, 2.03, 2.04, 5.01, 9.01. Specialty Guidelines, supra note 48, at 2.02, 9.03, 11.01.

[13] Marks v. Schenk, No. 13-C-10-85215, 2018 WL 775420, at *1 (Md. Ct. App. Feb. 5, 2018).

[14] Id. (“Ever since [entry of the custody decree] Ms. [] had made numerous allegations that Mr. [] had abused J. and had assaulted her. None of those allegations had ever been substantiated. As a result of those repeated allegations, protective orders were granted, and Mr. [] was denied visitation with their son repeatedly and over extended time periods.”)

[15] Id.

[16] Id.

[17] Id. at *2.

[18] Id.

[19] Id.

[20] Id.

[21] Id. Note that after this experienced psychologist earned her doctorate with an emphasis on young children, she completed an internship and a two-and-a-half-year postdoctoral fellowship at the John Hopkins University School of Medicine – Department of Pediatrics and the prestigious Kennedy Krieger Institute – Department of Behavioral Psychology.  She went on to become a staff psychologist, then Director of Clinical Services for the Behavior Management Clinic at Kennedy Krieger. During her tenure at the Institute, she provided direct clinical supervision and ongoing training of graduate level externs, doctoral level interns and postdoctoral fellows.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id. at *7 n. 11.

[30] Id. at *3.

[31] Id. at *7 n. 11.

[32] Id. at *8-9 (“Mother … herself had been diagnosed with PTSD, has apparently suffered from that since she was a teenager …. A number of witnesses … testified about witnessing Mother having emotional outbursts or meltdowns in the past.”)

[33] Id. at *9.

[34] Id. at *7-8.

[35] Id. at *8.

[36] Id. at *8-9.

[37] Id. at * 9.

[38] Id.

[39] Id.

[40] Ethical Principles & Standards, supra note 47, at D, 2.04, 5.01.

[41] Marks, 2018 WL 775420, at *9.

[42] Id. at *6-7. The record is clear that the court heard from and trusted the opinions of many professionals in the case: Ms. Elizabeth Benitz, the visitation supervisor; Reagan Kinnear, Ph.D., the clinical psychologist from the Kennedy Krieger Institute; Doris Meredith, a social worker from the Howard County Department of Social Services and Douglas W. Heinrichs, M.D., the psychiatrist who evaluated the parties.

The Spread of Misinformation Regarding Parental Alienation: A Case Study of Dr. Robert Geffner and Dr. Joyanna Silberg

Posted on by Shawn Wygant

At  PsychLaw.net,  we are aware that there are very many people who are misinformed and who spread this misinformation throughout the psychiatric and legal communities. The recently published book, Parental Alienation — Science and Law, provides many examples of misinformation regarding PA, which have typically been published in journal articles and books intended for mental health and legal professionals.  The chapter authors have identified the misinformation and refuted it through the use of scientific studies and peer reviewed professional literature.  Here, we provide examples of misinformation that have been presented in legal settings, especially by psychologists.  There are numerous examples of psychologists failing to comply with the APA’s standards and guidance.  We use Robert Geffner, Ph.D., and Joyanna Silberg, Ph.D., as examples of psychologists who have presented questionable testimony in legal settings.  On the bright side, there are experienced attorneys and judges who have been able to recognize problems in time to exclude unreliable, unhelpful, or unqualified testimony. While some of this unwanted “expertise” is captured in voir dire, other problems can be discovered during cross-examination or by a savvy trial court.

TESTIMONY BY ROBERT GEFFNER, PH.D.

Dr. Geffner has a Diplomate in Clinical Neuropsychology, is Board Certified in Couple & Family Psychology, and is an editor of a handful of peer-reviewed journals. An outspoken PA denier, Dr. Geffner has published several articles challenging the validity of PA.[1] Were education and experience the only criteria for admitting expert testimony, Dr. Geffner would appear to be well-qualified to provide an opinion in PA cases. Through proper examination and voir dire, however, several instances where Dr. Geffner attempted to proffer problematic unreliable testimony were identified, and his proposed testimony discredited.  Here are illustrations for attorneys developing voir dire questions.

In re Adoption of Joshua S., California, 2005 [2]

The California case of In re Adoption of Joshua S. involved the adoption of an artificially inseminated child by the same-sex partner of the mother. Approximately 13 months after their second child was born but before his adoption was completed, the parties’ relationship eroded to the point that the partner left the family residence.[3] During proceedings by the partner to enforce an adoption agreement entered while the two were still a couple, Mother alleged the agreement was the result of “fraud or duress,” and she later obtained a “domestic violence restraining order” against her former partner.[4]

The trial court ultimately concluded that it was in the child’s best interests that the adoption go forward[5]. In doing so, it rejected the testimony of Mother’s expert on domestic violence, Dr. Geffner, which it found to be “interesting in the abstract but not applicable to the best interest determination … [as] there is no evidence that these boys are being exposed to any continuing domestic violence.”[6]

“No evidence” of the domestic violence alleged by Mother is an important phrase in this opinion. It appears she hired Dr. Geffner to bolster her claim.[7] While it is not clear if the complete lack of evidence—“no evidence”—was adduced by a prepared cross-examiner, Dr. Geffner’s testimony would have been exposed by an adequate voir dire.  Did they inquire into Dr. Geffner’s methods, including whether he had examined the people involved or simply relied on a record review?[8] Did the attorney then contrast his method and preparation with the clear finding of “no evidence?” In any event, the trial court’s rejection of Dr. Geffner’s opinion was affirmed by the three-judge panel of the California Fourth District Court of Appeal.[9]

Dr. Joyanna Silberg is a psychologist, Senior Consultant for Child and Adolescent Trauma with the Sheppard Pratt Health System, and Executive Vice-President of the Leadership Council on Child Abuse & Interpersonal Violence. She has written and edited books on child abuse and trauma and is a PA denier who frequently speaks and presents on the topic. Like Dr. Geffner, on paper it would appear that Dr. Silberg is qualified to provide an opinion on PA. However (also like Dr. Geffner), savvy trial courts and litigators have revealed on numerous occasions that her knowledge or her methods or her familiarity with and reliance on the actual facts of the case were insufficient to enable her to provide reliable expert testimony. Here are some cases in which Silberg testified that demonstrate this that we at  PsychLaw.net have found.

Volodarsky v. Tarachanskaya, Maryland, 2006

In Volodarsky v. Tarachanskaya, a mother waged a years-long campaign of unsubstantiated allegations and alienation from the moment of the child’s birth.[10] Mother’s various claims included that the child would return from Father’s care smelling of smoke, hungry, and bruised, and that Father physically and sexually abused the child.  And with each new allegation, Mother unilaterally suspended visitation. As each allegation was returned unsubstantiated by investigating social workers, Mother continued to withhold visitation, and eventually the court ordered a psychiatric evaluation of both parents. Mother was revealed to have “little insight into her part in the current situation …, sees all of the difficulties as related to [Father],” and had no compunction against using the courts to interfere with his visitation.[11]

Mother hired Dr. Silberg, who seemed to confirm Mother’s allegations, perhaps to rehabilitate Mother’s position. Dr. Silberg testified to clear “evidence” that Father was abusing the child, and testified that “it is simply impossible to explain the level of symptoms that [Child] is suffering from …. [T]he child is seriously at risk of abuse,” and that the child’s statements were “so vivid and accurate that only real experience could produce these reports.”[12] After that testimony was presented, the cross-examiner could argue that Dr. Silberg may have violated the APA guidelines and ethical codes related to dishonesty, giving professional opinions about people they haven’t met, and bias.[13]

Father countered Dr. Silberg’s testimony with that of two experts. Shockingly, one expert testified that the child only reported abuse when Dr. Silberg, whom the child identified as “mommy’s friend,” was mentioned. In Volodarsky, the court found that Father was not sexually abusing the child.[14]

L.S. v. C.T., South Dakota, 2009

In the South Dakota case of L.S. v. C.T.,[15] Mother and Father separated when Child was just three months old. Child resided primarily with Mother in another state, and Mother began making allegations of sexual abuse by Father when Child was age two. Investigations were conducted by law enforcement and child protective services in both states, with all determining the allegations were unfounded. Just over a year later, Mother made new allegations of sexual abuse.  There were no other indications of abuse, and the second CPS investigation was returned “unsubstantiated.”[16]

Nine months later, Mother made a third allegation of sexual abuse, and this last was tried over three days, during which 16 witnesses testified. Mother testified that Child reported to her that Father fondled and “poked” at Child’s genitalia and that, when Child returned from visitation with Father, she would “demonstrate how she tried to resist the abuse by holding her legs together.”[17] On the other hand, a senior investigator who looked into these latest allegations of abuse testified that he had concluded after his interview with the child, whose statements varied and contradicted one another, “that there is a high probability that she has been led.”[18] 

This opinion was mirrored by another investigator, who had concluded that Mother was trying to “sabotage”[19] the parent–child relationship. The experienced investigator also testified Mother traveled to various law enforcement, child protection agencies, child advocacy centers, and medical personnel in South Dakota and Nebraska to find someone who would identify child abuse.[20]

The child also displayed other symptoms of alienation, including that she “could not indicate one good quality about her father.”[21] As this evidence of manipulation and alienation piled up, Mother hired Dr. Silberg who met with the child once, the day before testimony.[22] Dr. Silberg testified that per the “testing” used, Child’s scores were “literally off the charts”[23] in comparison to other children who had been sexually abused, and that Child was a “severely traumatized child with an inordinate number of symptoms of both trauma and sexual preoccupation.”[24] Dr. Silberg further opined that “it would be dangerous even for supervised reunification because the child presumes that the abuse must have been okay if nobody is saying anything to them about it.”[25]

It is likely that Dr. Silberg’s testimony would have been excluded if a proper voir dire had occurred.  For example, the prepared cross examiner could endeavor to show that Dr. Silberg may have violated the professional guidelines and ethical codes that require knowledge, using established science in the area of work, and prohibiting distorting evidence and intentionally misstating facts and bias.[26] Luckily, an experienced forensic examiner fully countered Dr. Silberg’s L.S. v. C.T. testimony. The trial court refused to sustain Mother’s latest allegations and ruled against the protective order Mother was requesting.[27]

________________________________________________________________________

[1] See e.g. A.H. Sandoval & Robert Geffner, PAS/PAD versus negative parental influence or toxic denigration, Am. Prof. Soc. of the Abuse of Child. Advisor (Special Issue) (2019 accepted for publication).

[2] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809 (4th Dist. Cal. App. Nov. 3, 2005).

[3] Id. at *2.

[4] Id.

[5] Id. at *16.

[6] Id.

[7] If true, this would potentially violate ethical principles and standards that prohibit bias, intentional misstatement of facts and distorting evidence in a report. Ethical Principles & Standards, supra note 47 and Specialty Guidelines, supra note 48, at 1.01, 9.01 and 11.01.

[8] The reader is reminded that psychologists should not provide opinions of the psychological characteristics of people they haven’t met, and also that when a record review is solely relied on, the psychologist must explain this and its limitations. Ethical Principles & Standards, supra note 47, at 9.01. However, psychologists may conduct a record review, for which “an individual examination is not warranted or necessary,” but they must “explain this and the sources of information on which they based their conclusions or recommendations.” Id. Moreover, “forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.” Specialty Guidelines, supra note 48, at 9.03.

[9] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809, at *17 (4th Dist. Cal. App. Nov. 3, 2005).

[10] Tarachanskaya v. Volodarsky, 897 A.2d 884 (Md. Ct. Spec. App. 2006), rev’d on other grounds, 916 A.2d 991 (Md. 2007).

[11] Tarachanskaya, 897 A.2d at 889; Volodarsky v. Tarachanskaya, 916 A.2d 991, 993, 994(Md. 2007)

[12] Tarachanskaya, 897 A.2d at 891.

[13] Ethical Principles & Standards, supra note 47, at C, 5.01, 9.01.

[14] Tarachanskaya, 897 A.2d at 892-894; Volodarsky, 916 A.2d at 1001. Note that in addition to the potential ethical violations for which Dr. Silberg could have been examined previously identified, she also could have been questioned about her duty to minimize foreseeable harm. Ethical Principles & Standards, supra note 47, at 3.04.

[15] L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[16] Id. at ¶ 6, 760 N.W.2d at 147.

[17] Id. at ¶ 9, 760 N.W.2d at 148.

[18] Id.

[19] Id. at ¶ 7, 760 N.W.2d at 147.

[20] Id. at ¶ 20, 760 N.W.2d at 150.

[21] Id. at ¶ 30 n. 8, 760 N.W.2d at 153.

[22] Id. ¶ 13, 760 N.W.2d at 148.

[23] Id. ¶ 13, 760 N.W.2d at 148-49. Note, the record is unclear but Dr. Silberg may have been describing Mother’s responses to Friedrich’s Child Sexual Behavior Inventory, which is not intended to make the diagnosis of CSA by itself.  The CSBI is a questionnaire, listing 36 behaviors, which are thought to be associated with sexualization.  It asks a parent to “Please circle the number that tells how often your child has shown the following behaviors recently or in the last 6 months.” Each behavior may be rated as: “never”; “once monthly”; “1–3 times monthly” or “at least once weekly.” William N. Friederich et al., Child Sexual Behavior Inventory: Normative and Clinical Comparisons, 4 Psychol. Assessment  303-311 (1992). In high-conflict families, use of the CSBI with one of two polarized parents is subject to serious concerns about validity and reliability. For a discussion of the various types of validity and reliability, see Demosthenes Lorandos & Terence W. Campbell, Benchbook in the Behavioral Sciences:  Psychiatry – Psychology – Social Work 359, 373 (2005).

[24] L.S., at ¶ 13; 760 N.W.2d at 149.

[25] Id.

[26] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[27] L.S., at ¶ 33, 760 N.W.2d at 155. See also Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 5.01. Specialty Guidelines, supra note 48, at 11.01.

Successful Expert Voir Dire Using the Three-Step Process

Posted on by Shawn Wygant

PsychLaw.net expounds the use of a three-step process to voir dire a proffered expert in proceedings involving PA. The following is taken from the 2014 Colorado custody case, D.T. v. N.O.  Although the court refused to enforce its evidentiary rules, a voir dire was conducted, which revealed the expert was unqualified and the proposed opinion was unreliable.

1.Test the proffered expert’s knowledge of relevant literature. 

In D.T. v. N.O., Father’s legal team began its voir dire by cross-examining the proffered expert’s knowledge of the data of the discipline by inquiring into the expert’s knowledge of the most well-known researchers and publications on the subject of PA, including:

(1)  the Family and Children’s Evaluation Team in Colorado and their published research examining 600 cases between 1975 and 1995[1]

(2)  the Family and Children’s Evaluation Team follow-up study published in the peer reviewed American Journal of Forensic Psychology describing additional information about the evaluation team’s PA findings[2]

(3)  the American Bar Association study, Children Held Hostage (1991)[3]

(4)  the recent revision of the classic Children Held Hostage (2013)[4]

(5)  the peer reviewed follow-up study child psychiatrist Richard Gardner conducted regarding his early work on the concept of PA[5]

(6)  the recent book, Parental Alienation: The Handbook for Mental Health and Legal Professionals (2013)[6], and

(7)  Dunne and Hedrick’s early work on PA published in the peer-reviewed Journal of Divorce and Remarriage.[7]

The expert, who was literally sitting in Colorado where some of this seminal research had been done, had no knowledge of any of these. Moreover, the expert was unable to support her opinion that PA was merely a concept designed to help abusive men take children away from protective mothers and the witness had no knowledge of texts written by women who had been victimized by fathers who manipulated children away from them, including:

(8)  books by Jill Egizii[8], Barbara Dircksen[9], Jennifer McBride[10], and television personality Pamela Richardson[11].

Similarly,

(9)  The expert could not defend her claim that judges did not support the concept of one parent alienating a child from another.

She also was unaware of

(10)  Judge Michelle Lowrance’s work-book with Leland Grove, Illinois, Alderman Jill Egizii[12]

(11)  Toxic Divorce: A Workbook for Alienated Parents by Canadian psychologist Kathleen Reay[13]

(12)  the first International Conference of Parental Alienation held in Frankfurt, Germany, in October 2002[14]

(13)  the 47th annual conference of the Association of Family and Conciliation Courts (held in Denver, Colorado), Traversing the Trail of Alienation[15]

(14)  the 500 U.S. and Canadian cases from 1985 through the date of the examination where PA was essential to the outcome[16]

(15)  the peer-reviewed research of scientist Joan Kelly on the scientific basis of the educational program called Family Bridges even though that was what the Father in the case was asking for.[17]

We at PsychLaw.net believe that this lack of knowledge should have been sufficient to disqualify this proposed expert.

  1. Reveal the proffered expert’s inadequacies from prior court appearances.

In D.T. v N.O., the father’s team then examined earlier court appearances that the expert had attempted, and how the expert was described in court opinions.  Before doing so, the cross-examiner elicited from the proffered expert that she had “maybe once” been excluded from a proceeding, but the witness dissembled that she couldn’t “recall.”  Then the witness identified two cases in which she described the reasons for her exclusion as unrelated to her qualifications or credibility[18]. She also directly testified: “Every other time … my methodology has been accepted.”[19] Voir dire revealed that this was not accurate.

On voir dire, Father’s team showed that the expert had been excluded in a Maryland case where the child had referred to the expert as “mommy’s friend,” and the court had found that the expert was actually a trigger for the child to make allegations. The Maryland court was also concerned that despite the fact that the expert relied solely on Mother and documents for her “research,” the expert opined that the child was abused and the father was the abuser.[20] Not only did this demonstrate bias, but this conduct also suggested violations of several other ethical principles and guidelines.[21]

When confronted with a New Jersey case in which expert was excluded[22], the expert said it was only because: (1) the tape recorder she used would turn off periodically and (2) the trial judge threatened to put her in jail if she gave thorough answers.[23] On voir dire it was revealed that the court entered “painstaking” findings that included that this expert had engaged in “a deliberate attempt to circumvent the scientific requirements” and was not an “open, neutral and objective” forensic psychologist.[24] During voir dire, the examining attorney inquired whether the expert’s opinion seemed to run afoul of ethical duties of accuracy and honesty in both cases.  Voir dire further inquired into whether the expert may also have violated the APA’s proscription against giving opinions in areas where the expert had insufficient information and knowledge.

Other cases by this expert were also brought up in o, which together established a pattern of providing opinions far beyond the scope of the information reviewed—which was precisely what the father’s team attempted to show in D.T. v. N.O.[25] Between the pattern of providing ill-informed opinions and the expert’s lack of candor in the present case, the expert should have been excluded.

3.Test the proffered expert’s knowledge of the facts of the present case.

The expert, who was supposed to be providing an opinion on the Family Bridges educational program for reconciling alienated children and their target parents, could not identify any foundation, treatise, peer-reviewed article, book chapter, or appellate report to support her opinion concerning the program.[26] This lack of knowledge of the precise program at issue rendered the expert’s opinion unhelpful, and should have been enough to exclude them.

_____________________________________________________________________

[1] Transcript of Hearing at 219-20, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 27, 2014) [hereinafter Tr. (1/27/14)]. Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 1, 27 Colo. Law. (2) 65-68 (1998). Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 2, 27 Colo. Law. (3) 61-64 (1998).

[2] Tr. (1/27/14), supra note 49, at 220. Deirdre Rand, Randy Rand & Leona Kopetski, The Spectrum of Parental Alienation Syndrome, 23 Am. J. of Forensic Psychol., no. 1, 2005, 15-43.

[3] Tr. (1/27/14), supra note 49, at 221, 229. Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (1991)

[4] Tr. (1/27/14), supra note 49, at 221. (After testifying “No, I am not” familiar with the 2013 revision, Silberg testified, “I would like to see it.”) Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions (2d ed. 2013).

[5] Even though the proposed witness Dr. Joyanna Silberg testified to being unfamiliar with this publication, Silberg expressly testified that Gardner “never did any research.” Tr. (1/27/14) at 221-22. Gardner was a highly-regarded researcher, and his publications are numerous. See Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside with the Alienated Parent? A Follow-Up Study, 19 Am. J. of Forensic Psychol., no. 3, 2001, 61-106. Dr. Gardner and his research in high-conflict cases was credited more than any other single author in the American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994). Gardner’s work on parental alienation was also cited more than any other single researcher in Clawar and Rivlin’s 2013 revision. Clawar & Rivlin, supra note 52.

[6] Tr. (1/27/14), supra note 49, at 222, 224.  Parental Alienation: The Handbook for Mental Health and Legal Professionals (Demosthenes Lorandos et al. eds., 2013).

[7] Tr. (1/27/14), supra note 49, at 229. John Dunne & Marsha Hedrick, The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases, 21 J. of Divorce and Remarriage 21-38 (1994)

[8] Tr. (1/27/14), supra note 49, at 233. Jill Egizii, The Look of Love (2010).

[9] Tr. (1/27/14), supra note 49, at 233-34. Barbara Dircksen, Parental Alienation is Abuse: One Mother’s Nightmare and Her Fight for Justice (2012).

[10] Tr. (1/27/14), supra note 49, at 234. Jennifer McBride, Childless Parent: “Snapshots” of Parental Alienation (2012).

[11] Tr. (1/27/14), supra note 49, at 234. Pamela Richardson, A Kidnapped Mind: A Mother’s Heartbreaking Memoir of Parental Alienation (2006).

[12] Tr. (1/27/14), supra note 49, at 234. Jill Egizii & Michele Lowrance, Parental Alienation 911 Work Book (2012).

[13] Tr. (1/27/14), supra note 49, at 235-36. Kathleen Reay, Toxic Divorce: A Handbook for Alienated Parents (2011).

[14] Tr. (1/27/14), supra note 49, at 236. Wilfrid von Boch-Galhau et al., The Parental Alienation Syndrome: An Interdisciplinary Challenge for Professionals Involved with Divorce (unpublished) (Frankfurt, Germany (Main) October 18-19, 2002).

[15] Traversing the Trail of Alienation: 47th Annual Conference, Denver, Colorado, Association of Family and Conciliation Courts http://www.afccnet.org/Portals/0/PublicDocuments/2010_january.pdf  (last visited Mar. 9, 2019).

[16] Tr. (1/27/14), supra note 49, at 247.

[17] Tr. (1/27/14), supra note 49, at 239. Joan B. Kelly, Commentary on “Family Bridges: Using insights from Social Science to Reconnect Parents and Alienated Children” (Warshak, 2010), 48 Fam. Ct. Rev. 81-90 (2010).

[18] Tr. (1/27/14), supra note 49, at 200-01.

[19] Transcript of Hearing at 34, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 28, 2014) [hereinafter Tr. (1/28/14)].

[20] Volodarsky v. Tarachanskaya, 916 A.2d 991, 997 (Md. 2007) (“Her disclosures to Ms. Dizard only came after [Silberg’s] name was introduced… whom Greta characterized as ‘mommy’s friend.’”). Note, too, that Dr. Silberg wrote in a book, that a psychologist or other mental health expert “cannot testify about people you have not met. . .” Joyanna L. Silberg, The Child Survivor: Healing Developmental Trauma and Dissociation 216 (New York, Routledge 2013). See also Ethical Principles & Standards, supra note 47, at 9.01. Specialty Guidelines, supra note 48, at 9.03.  Maryland Department of Health and Mental Hygiene Board of Examiners of Psychologists, Maryland Code of Ethics, Child Custody Evaluation 10.36.09.05(C) (2) [hereinafter COMAR Child Custody Evaluation Code] (identifying that psychologists should not “[r]ender an opinion concerning the psychological functioning or custodial fitness of a individual involved in the custody proceeding who has not been personally evaluated by the psychologist during the current child custody evaluation.”) (emphasis added).

[21] See Ethical Principles & Standards, supra note 47, at 9.01; Specialty Guidelines, supra note 48, at 9.03; COMAR Child Custody Evaluation Code, supra note 68.

[22] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534 (N.J. Super. Ct. App. Jul. 28, 2011).

[23] Tr. (1/28/14), supra note 67, at 34, 78-79.

[24] Id.  at 58, 63-64.

[25] Doe v. Roe, No. NNHFA094037658, 2012 WL 2899327 (Feb. 2, 2012); L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[26] Tr. (1/27/14), supra note 49, at 198.

Allegations of family violence in court: How parental alienation affects judicial outcomes.

Posted on by Shawn Wygant

What the study found…

We tested a set of findings reported by Meier (2019) related to the use of parental alienation (PA) as a legal defense in cases in which there are allegations of domestic violence and child abuse. A total of 967 appellate reports in which PA was found or alleged were sequentially selected from a legal database search. Nineteen research assistants blind to the study’s hypotheses coded the reports for the variables used to test six pre-registered hypotheses using a series of logistic and linear regression models.

We failed to find any support for the conclusions made by Meier (2019). Parents found (versus alleged) to alienate their children, regardless of their gender, had greater odds of losing parenting time, losing custody of their children, and losing their case. These findings held even when the accusing parent had been found to have been abusive. Losses or decreases in custody were not found when the (alleged) alienated parent was found to have been abusive. Results indicate that the majority of courts carefully weigh allegations of all forms of family violence in their determinations about the best interests of children.

These findings, along with several others, raise concerns that the methodological, analytical, and statistical problems we detail about Meier’s report (2019) make her conclusions untrustworthy. Discussion focuses on the importance of using open science practices for transparent and rigorous empirical testing of hypotheses and the dangers of misusing scientific findings to mislead influential professionals who affect the well-being of millions of families.

Harman, J. J., & Lorandos, D. (2020, November 19). Harman & Lorandos (2020). Preprint of Allegations of Family Violence in Court: How Parental Alienation Affects Judicial Outcomes. https://doi.apa.org/doiLanding?doi=10.1037%2Flaw0000301

How to Qualify an Expert Using the Ethical and Professional Standards of their Discipline

Posted on by Shawn Wygant

In order to show the court what the proposed expert witness actually knows, what the proposed expert has actually done, and whether or not the testimony comports with ethical and professional standards of the discipline, PsychLaw.net analyzes the expert’s testimony in light of what standards may be warranted. This is certainly true with a proffered psychological opinion, particularly in high-conflict custody cases. The APA has ethical standards and specialty guidelines for forensic psychologists that form an excellent basis for examining the scientific foundation of a proffered opinion.  The relevant sections of the APA’s Ethical Principles of Psychologists and Code of Conduct are:

Principle C: Integrity: “Psychologists seek to promote accuracy, honesty, and truthfulness.”

Principle D: Justice: “Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.”

Standard 2.01(f): Boundaries of Competence: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.”

Standard 2.03: Maintaining Competence: “Psychologists undertake ongoing efforts to develop and maintain their competence.”

Standard 2.04: Bases for Scientific and Professional Judgments: “Psychologists’ work is based upon established scientific and professional knowledge of the discipline.”

Standard 3.04: Avoiding Harm: “Psychologists take reasonable steps to avoid harming their clients/patients … and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.”

Standard 5.01: Avoidance of False or Deceptive Statements: “Psychologists do not make false, deceptive or fraudulent statements concerning … their training, experience, or competence, …  the scientific or clinical basis for, or results or degree of success of, their services.”

Standard 9.01: Bases of Assessments and Persons Not Examined: “Psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements and conclusions.” However psychologists may conduct a record review, for which “an individual examination is not warranted or necessary,” but they must “explain this and the sources of information on which they based their conclusions or recommendations.”[1]

Also, the APA has published Specialty Guidelines for Forensic Psychology.  For the purposes of this chapter, the relevant sections of the Specialty Guidelines are:

Guideline 1.01 Integrity: “Forensic practitioners strive for accuracy, honesty, and truthfulness in the science, teaching, and practice of forensic psychology and they strive to resist partisan pressures to provide services in any ways that might tend to be misleading or inaccurate.”

Guideline 1.02 Impartiality and fairness: “Avoid partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact.”

Guideline 2.02: Gaining and Maintaining Competence: “To maintain the requisite knowledge and skill, forensic practitioners keep abreast of developments in the fields of psychology and the law.”

Guideline 2.07 Considering the Impact of Personal Beliefs and Experience: “Biases may affect their ability to practice in a competent and impartial manner.”

Guideline 9.01 Use of Appropriate Methods: “Forensic practitioners strive to utilize appropriate methods and procedures in their work. When performing examinations, treatment, consultation, educational activities, or scholarly investigations, forensic practitioners seek to maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.”

Guideline 9.03 Opinions Regarding Persons Not Examined: “Forensic practitioners recognize their obligations to only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufficient information or data to form an adequate foundation for those opinions. … Forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.”

Guideline 11.01 Accuracy, Fairness, and Avoidance of Deception in Public Statements: “Forensic practitioners do not, by either commission or omission, participate in misrepresentation of their evidence, nor do they participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position.”

Guideline 11.05 Commenting Upon Other Professionals and Participants in Legal Proceedings: “In legal proceedings, forensic practitioners seek to represent their disagreements in a professional and respectful tone, and base them on a fair examination of the data, theories, standards, and opinions of the other expert party.”[2]

The codes, principles and guidelines in these two documents speak to many of the same concerns and overlap with respect to an expert’s knowledge of their data, integrity, cognizance of potential bias, and avoidance of fraud and deceit.  They should be used in tandem as psychologist experts must conform their behavior to all of these principles.

________________________________________________

[1] American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, (Jan. 2017) [hereinafter Ethical Principles & Standards].

[2] American Psychological Association, Specialty Guidelines for Forensic Psychology, (Jan. 2013) [hereinafter Specialty Guidelines].

Posted on by Shawn Wygant

The Three Stages of The Daubert Trilogy

PsychLaw.net  frequently discusses the use of the Daubert trilogy. We want our readers to have a clear understanding of how to apply the Daubert trilogy when cross examining experts. It is important in both the fields of science and law to have valid, relevant science discussed and applied to our cases. To understand better, the application of the Daubert trilogy can be broken down into three distinct stages.

Stage One – Background and Experience

The fact that an expert possesses a particular title or degree, while relevant, is not dispositive in qualifying the expert. Rather, there must be further inquiry as to whether the actual qualifications of the expert enable him or her to assist the trier of fact with regard to one or more controverted issue. For example, while a pediatrician may be qualified to provide medical diagnoses, generally, they may not necessarily have the expertise to provide an opinion as to whether a child has attention-deficit/hyperactivity disorder.

Stage Two – Application to Facts of Case

The cross-examiner must explore whether the proffered expert has an opinion that offers a reliable application to the facts of the case. This is determined in a two-tier fashion by applying the evidentiary rules FRE 702 and FRE 703.

The first hurdle of the second level of fit, endorsed by the Daubert court, is to determine if the opinion is helpful and “properly can be applied to the facts in issue.”[1] As the Advisory Committee for the FRE and several federal circuits have explained, this helpfulness concept is the “touchstone” of Rule 702.[2]

The second hurdle for this second level of fit, FRE 703’s “reasonable reliance,” allows that an expert opinion need not necessarily be based upon admissible evidence. It is sufficient for an expert’s opinion to rest on data “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”[3]

This fit does not need to be exact[4]. It is sufficient for the expert’s orientation, background, and methodology to fit the facts with reasonable scientific specificity and go beyond subjective belief or unsupported speculation.[5] In assessing the admissibility of expert testimony, the primary focus of courts is that the testimony fit the facts. When it does, it assists the trier of fact “to understand the evidence or to determine a fact in issue.”[6]

According to the Federal Rule Advisory Committee, the goal is to allow experts to function essentially the same way in court as they do out of court, which produces more realistic and useful expert testimony. The Advisory Committee reasoned that as physicians base their diagnoses on hearsay and other inadmissible facts (e.g., statements from other medical personnel, patients, relatives, hospital records, objective tests, etc.), it should be a good enough basis for an expert’s opinion at trial.[7]

Therefore, expert testimony may be derived from any one of the following three sources:

  1. The expert’s first-hand knowledge of the facts acquired before the hearing.
  2. Facts and data made known to the expert at the hearing.
  3. Facts and data obtained outside of court other than from personal observation.

This approach allows an expert to base their opinion on facts or data perceived by or made known to the expert before the hearing and is more expansive than under common law. However, this interpretation does not allow an expert to base their opinion on assumptions and data that are so contrary to the evidence in the record or on assumptions that are so untethered to the actual facts, that they amount to conjecture and speculation.[8] Consequently, a judge’s determination as to whether an expert is truly qualified for the circumstances of the particular case must take into account the fact that their opinion may be based on untrustworthy underpinnings.[9]

Stage Three – Scientific Methodology

The Court’s guidance in Daubert, later refined in 1999 in Kumho, regarding scientific or professional expertise is that the opinion must be grounded in the “same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[10] Thus, while a scientist must ground his opinion in the reasoning and methodology of science,[11] a professional from a less scientific discipline may still qualify as an expert from their “professional studies or personal experience” in that field.[12]

Courts are encouraged to consider the non-exclusive list of factors set out in Daubert in making this determination, including: (1) Can the theory or technique be tested? (2) Has the theory or technique been subjected to peer review and publication? and (3) What is the known or potential rate of error?[13] However, these are not “definitive” and may not necessarily apply to exclude a witness.[14] Ultimately, it is within the trial court’s discretion to decide which factors to consider and which to ignore.

Nonetheless, a failure of this third level of fit should exclude an expert, even if the expert’s background and knowledge of the discipline fit and was well oriented to the issues in controversy. Again, it is through voir dire that this inquiry is best conducted.

__________________________________________________________________________

[1] Daubert, 509 U.S. at 592-93.

[2] See, e.g., Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

[3] The reform accomplished by the second sentence of FRE 703 has two practical effects. First, it reduces the need for firsthand knowledge on the part of experts. Second, the fact that an expert may testify without firsthand knowledge, when coupled with the principle that the underlying basis need not be set out before opinion testimony is given, substantially reduces the need for hypothetical questions. According to the Advisory Committee, the focus of the reasonable reliance standard is the quality and sufficiency of outside information and the manner of, and reasons for, its use. This is the model in the case law prior to the federal Advisory Rule December 2000 change. This occasion of the “reasonable reliance” analysis is now located in FRE 702. However, many states still locate this analysis of reliance in 703. The reader must verify for the reader’s state practice.

[4] There are numerous examples of cases wherein the courts have found experts with sufficient case-specific expertise. See, e.g., Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 550 (2d Cir. 1989) (where a senior associate in corporate finance was found qualified to testify on value of defendant’s assets in light of experience in field of mergers and acquisitions); Dunn v. HOVIC, 1 F.3d 1362, 1368 (3d Cir. 1993), modified on other grounds, 13 F.3d 58 (3d Cir. 1993) (allowing an occupational medicine practitioner to testify as expert on asbestos in light of experience with other employers and his review of defendant’s corporate records); Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252, 1254 (5th Cir. 1990) (holding an expert in hyperbaric medicine was qualified to testify on the effects of nitrogen on plaintiff); U.S. v. Metzger, 778 F.2d 1195, 1203–1204 (6th Cir. 1985) (admitting testimony of a witness who conducted thin-layer chromatography to test for presence of chemical, and who had attended numerous courses and seminars dealing with explosives), cert. denied 477 U.S. 906 (1986); Williams v. Pro-Tec, Inc., 908 F.2d 345, 348 (8th Cir. 1990) (in a pre-Daubert case, a mechanical engineer’s self-acknowledged lack of medical expertise went to the ‘‘weight’’ of his opinion about an eye injury rather than to the admissibility of his opinion); Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (finding a mechanical engineer with special expertise in safety design of mechanical equipment was qualified as expert in products liability action); U.S. v. Hensel, 711 F.2d 1000, 1006 (11th Cir. 1983) (allowing a fire inspector was allowed to testify about the origins of a fire aboard a ship despite his alleged shortcomings in admiralty area).

[5] Daubert, 509 U.S. at 589-90; DaSilva v. American Brands, Inc., 845 F.2d 356, 360–36 (1st Cir. 1988) (in a pre-Daubert case, the appellate court rejected a defendant’s view that a mechanical engineer with 23 years of experience with machine design was not qualified as an expert because his design experience was not with the ‘‘specific machine’’ in question); Schmaltz., 878 F. Supp. at 1121 (where the court noted that the suggested scientific testimony must ‘‘fit’’ the issue about which the expert is testifying); Paoli, 35 F.3d at 742; Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81–82 (2d Cir. 1997) (where the district court erred in concluding that well-trained person who lacked specific expertise in airport terminal design or baggage claim systems was insufficiently qualified to testify); Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 781–783 (3d Cir. 1996) (determining that it was an abuse of discretion to exclude an expert’s testimony simply because the trial court did not deem witness to be the best qualified or to have the specialization that the court considered most appropriate. The appellate panel granted a new trial because the trial court disallowed the treating doctor’s testimony about decedent’s cancer because he was not a pathologist, oncologist, or expert in ‘‘definitive cancer diagnosis’’); Garrett v. Desa Industries, Inc., 705 F.2d 721, 725 (4th Cir. 1983) (allowing a mechanical engineer to testify on problems with stud drivers because of his education even though he has no specific experience with stud drivers); Weese v. Schukman, 98 F.3d 542, 549–550 (10th Cir. 1996) (allowing a physician to testify as an expert witness, even though he had no experience in treatment for carbon monoxide poisoning, because physician was qualified to testify about another method of treatment for carbon monoxide poisoning that he believed met standard of care).

[6] Remember, the court can always reach out to find another expert. See, e.g., Stagl, 117 F.3d at 81-82 (noting a court may consider the availability of other more qualified experts in deciding to exclude testimony on the grounds that the proposed expert is not sufficiently knowledgeable in the area).

 

[7] Fed. R. Evid. 703 advisory committee’s note to 1972 proposed rules. This is the model in the case law prior to the federal Advisory Rule December 2000 change. This occasion of the “reasonable reliance” analysis is now located in FRE 702. However, many states still locate this analysis of reliance in 703. The reader must verify for the reader’s state practice.

[8] In subsequent sections, the author provides illustrative cases where speculative, unreliable expert testimony was proffered and rejected.

[9] Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 505 F. Supp. 1313, 1325 (E.D. Pa. 1980), aff’d in part, rev’d in part, 723 F.2d 238 (3d Cir. 1983) (holding that the court must determine whether facts or data is of the type reasonably relied upon by experts in their respective fields), cert. granted in part, 471 U.S. 1002 (1985) rev’d on other grounds, 475 U.S. 574 (1986). See also Shatkin v. McDonnell Douglas Corp., 565 F. Supp. 93 (S.D.N.Y. 1983).

[10] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (‘‘the ‘‘focus.. . .must be solely on principles and methodology.’’).

[11] Daubert, 509 U.S. at 595.

[12] Kumho, 526 U.S. at 152.

[13] Daubert, 509 U.S. at 593-94.

[14] Kumho, 526 U.S. at 151.

How to Use Voir Dire in Family Law Cases

Posted on by Shawn Wygant

French for “to speak the truth,” voir dire is simply a process of preliminary courtroom questioning—be it of citizens to determine if they should and will sit on the jury or witnesses to see if they are competent to testify. Distinct from examinations conducted during a case-in-chief, which gets to the substance of the parties’ dispute, voir dire peers into whether people should be allowed to participate—either to give facts or determine them.

In family law cases, voir dire comes into play when the court must decide to admit or deny expert testimony. Particularly in high-conflict cases, determining issues related to custody, mental health, substance abuse, parental alienation (PA), and patterns of controlling behavior can all be greatly aided by the testimony of a qualified psychological expert. Voir dire is used to determine if this proposed expert testimony is supported by reliable research and methodology and based upon the facts of the case.

We at PsychLaw.net believe that it is critical that an unqualified or unreliable witness is identified before the purported expert is allowed to taint the proceedings.[1] This is because scientific testimony often carries an ‘‘aura of infallibility.’’ Summarizing the literature, one respected commentator writes that “[t]here is virtual unanimity among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature will have particularly persuasive effect.”[2]

Unfortunately, because many attorneys and judges are not sufficiently up to speed on psychological standards, sometimes unreliable testimony is accepted and used to create misinformation regarding PA. This type of testimony has been presented innumerable times in courtrooms across North America to paint innocent parents as monsters and monstrously manipulative parents as saints. Hence, the importance of voir dire. When promptly and properly done, voir dire will reveal any lack of qualifications or reliability, and (hopefully) lead to the expert’s exclusion.[3]

Whether it is referred to as voir dire, a Daubert[4] hearing, or something else, every jurisdiction across North America offers some type of process for evaluating the credibility of a proposed expert, as well as the reliability of their proposed testimony. To explicate voir dire, the author will use the American federal rules.  This will allow the reader to focus on the similarities across states and substitute local rules and case law where appropriate.

What is now known as a Daubert hearing grew out of jurisprudence around Federal Rule of Evidence (FRE) 104(a)[5] that addresses preliminary questions for the court regarding witness qualification and the admissibility of evidence. Daubert identified that, to provide testimony, an expert must have: (1) an opinion that will be helpful to the fact finder in making its determination; (2) a working knowledge of the data of the discipline; and (3) a reliable basis in the knowledge and experience of the subject matter.[6]

Perhaps the most frequently overlooked aspect of an expert’s proposed testimony is an examination of their research and methodology. Unfortunately, litigators and judges alike all too often stop their inquiry with an expert’s education and experience—particularly with scientific expertise. This is because of a “general lack of scientific literacy among … lawyers and judges,”[7] and “[b]ecoming scientifically literate should prove to be a continuing challenge to the law.”[8]

Nonetheless, the proffered expert should be challenged to show that their theory, technique, or concept is supported by objective, empirical data[9] before those data are admitted into evidence.[10] In addition to being grounded in an accepted body of learning or experience, the expert must also explain how the particular conclusion is so grounded in the facts of the case.[11]

Therefore, when scientific expert testimony is offered, the court must determine if it is based on:

(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue.[12]

The Daubert trilogy suggests engaging in a three-stage inquiry to see if the proposed testimony “fits” the evidentiary needs of the court in making its decision: (1) Does the proposed expert possess the kind of background and experience to fit the facts in controversy? (2) Does the proffered opinion provide a reliable application to the facts of the case? and (3) Does the expert employ a valid and reliable method in forming their opinion?[13]

_________________________________________________________________

[1] One of the real problems with waiting until trial is illustrated in these holdings: U.S. v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir. 1993) (The reviewing court ruled that the exclusion of testimony due to the danger of misleading the jury was not a ground for reversal because the opposing party had an opportunity to refute testimony during cross-examination). Singer Co. v. E. I. du Pont de Nemours & Co., 579 F.2d 433, 443 (8th Cir. 1978) (Where the trial court refused to strike expert testimony as unsupported speculation on the ground that it was for the jury to value the worth of the opinion with the assistance of vigorous cross-examination).

[2] John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 L. Rev. 349, 367 n. 81 (1992). See, also Neil Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, 52 Law & Contemp. Probs., Autumn 1989, at 166. Also see e.g., Commonwealth v. Garcia, 588 A.2d 951 (Pa. 1991), overruled on other grounds by Commonwealth v. Johnson, 690 A.2d 274 (Pa. 1997), overruling on other grounds recognized by Commonwealth v. Minerd, 753 A.2d 225, 232 (Pa. 2000) (instructing that ‘‘[j]urors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, ‘even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.”)

[3] Of course, this assumes that the judge understands his jurisdiction’s rules of evidence, which, unfortunately, is not always the case. See e.g. D.T. v. N.O., No. DR 13 (Gunnison County, CO Dist. Ct. 2014) and description of a “data of the discipline” voir dire, infra in this chapter in the subsection “A Three-Step Process to Voir Dire a Proffered Expert in Proceedings Involving Parental Alienation.”

[4] Invoking the pre-eminent American authority in this area, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[5] Fed. R. Evid. 104(a).

[6] Daubert, 509 U.S. at 589-92.

[7] See, e.g., John Thibaut & Laurens Walker, A Theory of Procedure, 66 Calif. L. Rev. 541 (1978) [hereinafter Thibaut (1978)] See also E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988). John Thibaut & Laurens Walker, Procedural Justice: A. Psychological Analysis (1975) [hereinafter Thibaut (1975)].

[8] David Faigman et al., Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799 (1994). Demosthenes Lorandos, Expert Evidence Post-Daubert: The Good, the Bad, and the Ugly, 43 Litigation, Mar. 2017, 7 (2017).

[9] Glaser v. Thompson Med. Co., 32 F.3d 969, 974-975 (6th Cir. 1994).

[10] See, e.g., Thibaut (1978), supra note 7; Lind et al., supra note 7; Thibaut (1975), supra note 7.

[11] See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“Whether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the ‘knowledge and experience’ of that particular field.”).

[12] Daubert., 509 U.S. at 592-93.

[13] See, e.g., Terence W. Campbell & Demosthenes Lorandos, 1 Cross Examining Experts in the Behavioral Sciences §§ 1:12, 1:28 (2001 & Supp. 2019). And see Schmaltz v. Norfolk & Western Ry. Co., 878 F. Supp. 1119,1121 (N.D. Ill. 1995) (where the court noted that the suggested scientific testimony must ‘‘fit’’ the issue about which the expert is testifying); In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994) (noting admissibility depends in part on the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case, i.e. the ‘‘fit’’ requirement), cert. denied, 513 U.S. 1190 (1995).

Posted on by Shawn Wygant

When Voir Dire Goes Wrong

As we know at  PsychLaw.net, many times whether from impatience or ignorance, trial judges cut off voir dire before a complete and thorough examination is conducted, often leading to the admission of unreliable, prejudicial evidence. In one such case, State v. Vidrine, the Louisiana Court of Appeal vacated and remanded a conviction of sexual battery of a juvenile after a trial court refused to allow the defendant to conduct a hearing to examine the reliability of an expert’s proposed opinion.

In Vidrine, the court had allowed the expert to be examined during a pre-trial hearing, but only as to her qualifications.  In finding the court had committed an abuse of discretion, the Louisiana appellate court noted the expert had testified as to “her background, training, and professional experience … [and] the nature of her testimony as an expert in previous cases,” but “did not state what methodology or reasoning she applied.” The Court of Appeals reversed the conviction. 

The reverse scenario occurs when the court inappropriately excludes expert testimony.  For example, in Harris v. State, while holding the Mississippi trial court’s decision to exclude defendant’s expert was ultimately harmless error, the Court of Appeals found:  

  Dr. Merrell testified he had three years of experience as an emergency-room physician and had treated between two hundred and three hundred patients. Additionally, Dr. Merrell testified that he was familiar with the common side effects of cocaine, benzodiazepines, and marijuana. Based on his medical training and experience, Dr. Merrell was qualified to testify regarding the common side effects of the drugs found in [the victim’s] system.

  Likewise, in U.S. v. Belyea, a trial judge’s rejection of an expert on false confessions with the simple conclusion that “jurors know people lie” and that a confession may be false was “something juries decide all the time, and I don’t need an expert to help them in that respect,” was reversed as the appellate court held the “approach is erroneous as a matter of law because it overlooks Daubert’s general requirement for a particularized determination in each case.” The appellate court continued:  

It appears to us that the expert in this case … would have addressed whether and how these particular factors correlate to false confessions. Belyea’s motion in limine states that [the expert] would testify that false confessions in fact occur, and that various techniques used by law enforcement agents, such as false accusations and false promises can influence a person’s decision to confess falsely…[and] that particular characteristics of the person interrogated, such as … anxiety problems, can affect the likelihood that a confession is false.

 Apparently no voir dire was conducted in the Oregon case, State v. Olsen. In Olsen, the trial court denied a defendant’s pre-trial motion to exclude the expert’s diagnosis, and allowed a physician who examined the alleged child victim to testify about his diagnosis of sexual abuse, which was “predicated [only] on what complainant’s mother told him as well as complainant’s statements during the interview.” The Court of Appeals reversed and remanded the case due to the lack of physical findings to corroborate the diagnosis. 

 

Competence: A requirement in practice

Posted on by Shawn Wygant

Relevant Ethical Codes  

At PsychLaw.net we emphasize that the National Association of Social Workers clearly prohibits social workers from practicing outside their area of competence.  In particular, Standard 1.04 (a), addressing “Competence,” states: 

“Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.”

 Similarly, the Code of Ethics of the American Association for Marriage and Family Therapy prohibits marriage and family therapists from practicing outside their area of competence.  In particular, Standard 3.6, addressing  “Professional Competence and Integrity,” states: 

“Marriage and family therapists do not diagnose, treat, or advise on problems outside the recognized boundaries of their competence.”

 Relatedly, the “Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry” clearly prohibit psychiatrists from practicing outside their area of competence.  In particular, Section 2.3 of these principles state: 

“A psychiatrist who regularly practices outside his/her area of professional competence should be considered unethical. Determination of professional competence should be made by peer review boards or other appropriate bodies.”

 Cross Examining Non Psychologists Regarding Psychological Testing 

  1. Your profession’s ethical code clearly prohibits you from practicing outside your area of competence  Correct? 
  2. Your license [or certification] in this state does not define psychological testing as falling within your scope of practice  Correct? 
  3. And we have already established that you are not familiar with many fundamental concepts related to psychological testing  Correct? (referring to the cross examination questions found in Section B of this chapter). 
  4. Therefore, you are obligated to acknowledge that your reliance on psychological tests in this case amounts to your practicing outside your area of competence  Correct? 

  Examiner Influences 

At PsychLaw.net we emphasize that unlike most diagnostic procedures in medicine, the results of psychological testing can be substantially influenced by the psychologist who obtains them.  This is particularly so for the “subjective” psychological tests discussed in the next chapter, but it can apply to “objective” measures as well. For example, the expectations of psychologists can alter how they administer and score intelligence tests.iv  Examiners who think they are testing intellectually bright subjects assign them higher IQ scores in contrast to subjects they think are dull.v  Performance on the Rorschach technique varies considerably according to whether patients take it from their own therapist or another psychologist.vi    At PsychLaw.net we note that this research indicates that the data obtained from most psychological tests might be quite different if another psychologist did the testing. More about the Rorschach in Other posts. 

 Cross Examination Regarding Examiner Influences 

  1. The results of psychological tests can be influenced by the examiners who administer them  Correct? 
  2. Would it surprise you to know that examiners who mistakenly think they are testing intellectually bright subjects assign them artificially high IQ scores? 
  3. And would it surprise you to know that examiners who mistakenly think they are testing dull subjects assign them artificially low IQ scores?
  4. And results on the Rorschach test can be influenced by who administers the test  Correct? 
  5. Therefore, if another psychologist did the psychological testing in this case, the obtained scores could be different  Correct? 

What’s in a Name: Defining Parental Alienation

Posted on by Shawn Wygant

 We know at PsychLaw.net that parental alienation (PA) is a serious mental condition that affects hundreds of thousands of children and families in the United States and comparable numbers in other countries.  Mental health professionals (MHPs), family law attorneys, and everyday citizens observe PA on a regular basis, even if they do not know that the phenomenon has a name, where it comes from, or what to do about it.  PA is not new. PA has been observed for many decades and has been described and discussed in the scientific literature of MHPs, in legal literature and precedents, and in popular literature – although the condition has been called a variety of names other than “parental alienation.”   

 PA is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies himself or herself strongly with an alienating parent and rejects a relationship with the target parent without legitimate justification. 

 Several features of the definition should be noted. PA can be conceptualized as a mental condition of the child (e.g., the child has a false belief that the rejected or “target” parent is evil, dangerous, or not worthy of love) or an aberration in the relationship between the child and the rejected, target parent (e.g., absence of communication and camaraderie between child and parent, even though they previously enjoyed a loving, nurturing relationship).  We refer to “separation or divorce” because PA often occurs prior to legal divorce and in families in which the parents were never married in the first place.  PA may occur in high-conflict marriages when the parents are still living in the same household.  It is essential to recognize that the child’s rejection of the target parent is without legitimate justification.  If a parent was abusive or severely neglectful, the child’s rejection of that parent is understandable or legitimate and does not constitute PA. It is best to follow the convention of most writers, who use “estrangement” to refer to warranted rejection of a parent and “alienation” to refer to unwarranted rejection. Finally, we realize that the target parent may not be a typically “perfect” mother or father and that the target parent may have contributed in some way to the child’s dislike of him or her.  However, the essential feature of PA is that the child’s rejection of the target parent is far out of proportion to anything that parent has done to justify the rejection. 

 In the last eight decades, various authors have described the phenomenon of PA, but have provided different names for it.  For example, Wilhelm Reich (1945) wrote that many divorced parents defend themselves against what he called “narcissistic” injury by fighting for custody of their children. He found that parents who experienced narcissistic injury often defamed each other and did so in front of the children.  Louise Despert (1953) said, “It is a sharp temptation for the parent who remains with the child to break down their love for the one who has gone” (p. 52).  Jack Westman and his colleagues (1970) wrote that a “pattern is found in which one parent and a child team up to provide an effect on the other parent. … In these cases one parent appears to deliberately undermine the other through a child.” 

 Since the 1980s, many mental health and legal professionals in the U.S. and other countries have identified, described, discussed, and named the condition that we are calling “parental alienation.”  The proliferation of names has led to confusion and, at times, disagreement among professional colleagues.Here are some examples in chronological order. 

 Janet Johnston and her colleagues (Johnston, Campbell, & Mayes, 1985) reported the “distress and symptomatic behavior of 44 children … who were the subject of post-separation and divorce disputes over their custody and care.”  The authors described six primary responses of these children to their parents: “strong alliance,” “alignment,” “loyalty conflict,” “shifting allegiances,” “acceptance of both” with “avoidance of preferences,” and “rejection of both.”  Their definition of “strong alliance” was “a strong, consistent, overt (publicly stated) verbal and behavioral preference for one parent together with rejection and denigration of the other.  It is accompanied by affect that is clearly hostile, negative and unambivalent.”  They wrote, “The child consistently denigrated and rejected the other parent.  Often, this was accompanied by an adamant refusal to visit, communicate, or have anything to do with the rejected parent.”  

Child psychiatrist Richard Gardner (1985) introduced the concept of “parental alienation syndrome” (PAS): 

[Parental alienation syndrome refers] to a disturbance in which children are obsessed with deprecation and criticism of a parent – denigration that is unjustified and/or exaggerated. … The concept of the parental alienation syndrome includes the brainwashing component but is much more inclusive.  It includes not only conscious but subconscious and unconscious factors within the parent that contribute to the child’s alienation.  Furthermore (and this is extremely important), it includes factors that arise within the child – independent of the parental contributions – that contribute to the development of the syndrome. 

 Although Gardner never named the condition after himself, PAS has been called “Zespół Gardnera” or “Gardner Syndrome” in Poland. 

Wallerstein and Blakeslee (1989) ome,” referring to the Greek myth in which Medea avenged the betrayal of her husband, Jason, by killing their two children. 

 Stanley Clawar, a sociologist, and Brynne Rivlin, a social worker (1991), published their monumental study, which had been commissioned by the American Bar Association.  They used the terms “programming” and “brasuggested that some mothers could be “entangled with Medea-like rage.”  Thus, the “Medea syndrinwashing” to describe the attitudes and behavior that causes PA.  They said:  

 [One parent may] hinder the relationship of the child with the other parent due to jealousy, or draw the child closer to the communicating parent due to loneliness or a desire to obtain an ally.  These techniques may also be employed to control or distort information the child provides to a lawyer, judge, conciliator, relatives, friends, or others, as in abuse cases. (p. 15) 

 Wallerstein, Kelly, Blakeslee, Johnston, Gardner, Clawar, and Rivlin were writing about the same children and the same clinical phenomenon.  When Johnston wrote about the impact of polarizing parents in high conflict cases, she noted that “strong alignments are probably most closely related to the behavioral phenomena Gardner referred to as parental alienation syndrome” (1993).  Kelly and Johnston (2001) subsequently renamed the condition “the alienated child” to focus clinical attention on the child rather than on the activities of the parents.In 1994, Ira Turkat argued that custodial parents engage in a variety of direct and indirect behaviors designed to alienate children from the nonresidential parent. Turkat argued that the result was that the children became preoccupied with unjustified criticism and hatred of the nonresidential parent (Turkat, 1994).  He called the process “malicious parent syndrome” (Turkat, 1999). Warshak (2006) defined “pathological alienation” as:  

 a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person or persons with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations (p. 361).

 

For a list of references click here. 

 

 

 

Intervention Options for Alienated Children and Their Families

Posted on by Shawn Wygant

We at PsychLaw.net have found that 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. 

 Another approach to bringing the alienated child back into a relationship with the target parent that we at PsychLaw.net have looked into is the development of a comprehensive reunification plan.  Reunification therapy is generally a one-time opportunity, so it needs to be done correctly from start to finish.  Usually, the alienated child is resistant and must be “forced” to meet with the target parent.  Also, the alienating parent may publicly support the idea of reunification but will privately engage the child, and often alienation allies as well, to sabotage and undermine the therapeutic effort. Thus, the likelihood of success becomes minimal without good planning.  Frequently, it is helpful for the court to appoint an independent expert or an expert retained by the target parent to conduct a study and formulate a well-developed plan or blueprint for all the parties to follow.  The reunification planner may be a different MHP than the reunification therapist.   

 Most MHPs acknowledge that they have neither the training nor experience to work as a reunification specialist.  Generally, the reunification specialist is contacted by a “selection committee,” which may be comprised of the clients and/or their attorneys.  The selection committee should consider the competence of the prospective therapist, her level of experience, and her willingness to adhere to a well-developed reunification plan developed by an independent evaluator or at least participate in the formulation of an effective approach to reunification as the process unfolds.  (See Chapter 7 for a further discussion of reunification therapy.) 

 Systemic issues in family law create “points of slippage” when the judge is vulnerable to being misled, which is related to: the court’s bias toward the protection of children; the unmatched discretion and latitude of the family trial judge; and the fact that psychological matters are being decided by someone unlikely to be trained in psychology.  Also, attorney representation by its very nature consists of advocating by another non-psychology professional.  Alienation cases are confusing, highly conflictual, and replete with false allegations and questions of credibility.  It takes a skillful MHP to assist the attorney in a consultative role, much like an attorney may rely on a forensic accountant.  A mental health consultant should serve in a non-visible but active role both with the client and attorney, never testifying or blurring the roles of therapy and evaluation.   

 During the initial phase of the consultation, the MHP must determine whether the case involves PA or simply estrangement that resulted from abuse by the rejected parent.  If it is a case of estrangement, we recommend that the mental health consultant offer the client rehabilitative advice and then withdraw from the case.  On the other hand, if it is a case of PA, the mental health consultant as a team member assists in developing an effective strategy from the chronology of the case to the conflicting findings and opinions throughout the case, whether presented in court proceedings, depositions, or collateral contacts. The role of the consultant includes advising the attorney how to challenge therapists, evaluators, guardian’s ad litem (GALs), parenting coordinators, and other lay witnesses and experts involved in the case.  The mental health consultant’s role is confined to “consultation” rather than “collaboration,” the latter term meaning shared authority in making decisions (Bone and Sauber, 2012).

A Brief History of Parental Alienation

Posted on by Shawn Wygant

At PsychLaw.net,we understand that parental alienation has been discussed, debated, and critiqued in the scientific community for half a century. Between 1990 and 2010 there was considerable discussion and debate regarding PA and PAS in the mental health and legal professional literature.  Most of the disagreement related to PAS as it was conceptualized and defined by Richard Gardner, as well as Gardner’s recommendation that cases of severe alienation should be treated by transferring custody of the child from the alienating parent to the target parent.  For example, Gardner was criticized by Faller (1998, 2000), Faller and DeVoe (1995), Bruch (2001), and by Hoult (2006).  In 2001, Kelly and Johnston critiqued Gardner’s definition of PAS (which they felt focused too much on the role of the alienating parent) and proposed a reformulation of the phenomenon as “the alienated child” (which focuses more on the feelings and behavior of the child).  See Chapter 10, “The History of Parental Alienation from Early Days to Modern Times,” and Chapter 13, “Parental Alienation Initiatives around the World,” for a more complete discussion of the controversies regarding PA and PAS. 

 In 2000, Elizabeth Ellis published her text Divorce Wars: Interventions with Families in Conflict.  Ellis explained that by the year 2000, the concept of PA had “come to be accepted by clinicians working with families involved in post divorce conflict.” She went on to point out, “Definitions for PAS have been unclear, because clinicians still confuse a child’s symptoms with the parent’s behavior and the qualities of the relationship between the child and the alienating parent” (p. 227).  Ellis offered a brief review of folie à deux and suggested that it involved striking similarities to PAS.  In folie à deux, the primary individual who is dominant in the relationship gradually imposes his or her delusional system on the more passive, initially healthy second person (p. 218). 

In 2010, Joan Kelly pointed out that there was “broad consensus among the mental health and family law community that the risk of child alienation is increased in highly conflicted separations accompanied by protracted adversarial child custody disputes” (Kelly, 2010). She commented that while case analysis and research improved our understanding with respect to PA, there existed ample frustration about the “surprisingly little progress made by courts in successfully dealing with these cases in the past 30 years.” 

 While some MHPs and attorneys reject the concept of PAS as defined by Gardner, almost all mental health and legal professionals accept the general definition of PA used in this book.  That is, almost all mental health and legal professionals agree that some children – whose parents are engaged in a high-conflict separation or divorce – ally themselves strongly with one parent and reject a relationship with the other parent without legitimate justification.  In an informal poll of members of the Association of Family and Conciliation Courts, which occurred in 2010, 98% of the 300 respondents agreed with the statement, “Do you think that some children are manipulated by one parent to irrationally and unjustifiably reject the other parent?” (Baker, Jaffee, Bernet, & Johnston, 2011). 

Although the great majority of mental health and legal professionals agree that some children of divorced parents manifest PA – as we use the term – there has not been agreement on whether PA should be a formal diagnosis for use by MHPs.  The proposal that PA become an official diagnosis was published in Parental Alienation, DSM-5, and ICD-11 (Bernet, 2010).  See Chapter 15 of this book for an account of the development and submission of proposals that PA be included as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Diseases. 

MHPs sometimes find themselves involved in cases of PA involuntarily and perhaps unwittingly.  For example, a social worker might already be the therapist for a parent, who then divorces and becomes either the alienating or the target parent as the family sinks into an alienation scenario.  Or a school counselor might be working with an overly anxious child, who takes a turn for the worse when his parents divorce and he forms a strong alliance with one parent and rejects the other.  On the other hand, MHPs also become involved in PA cases in a voluntary, knowing manner.  A psychiatrist might agree to conduct a custody evaluation although she realizes that one of the parents has alleged that the child is manifesting PA.  Or, a psychologist might agree to help a child and his mother re-establish a healthy relationship after being alienated from each other for several years. 

 Many MHPs are reluctant to become more than superficially involved in these difficult cases becauseeach parent’s attorney will challenge them unless they support that parent’s position.  Advocacy for one parent leads opposing counsel to attempt to discredit them, disregard their evaluation, or present their work as inadequate in an effort to remove them from the case.  However, some MHPs make the opposite mistake of becoming overly involved in PA situations; for example, trying to be both the child’s therapist and the custody evaluator.  It is almost always risky and hazardous for a MHP to take on multiple roles.  It may constitute an ethical violation, which could be brought to the attention of the state licensing board.  Fidler & Bala (2010) explain that it is very difficult for one MHP to achieve desired objectives and meet the various, complex, and often competing needs of different family members.  Trouble and headaches will certainly be encountered when a MHP assumes dual roles of therapist and decision maker (Bernet, 1983; Bone & Sauber, 2012; Greenberg, Gould, Schnider, Gould-Saltman, & Martindale, 2003; Kirkland & Kirkland, 2006; Sullivan, 2004). 

At PsychLaw.net, we briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  Check out our website for a detailed discussion about the evaluation process, treatment of mild, moderate, and severe cases of PA, reunification therapy, and shaping social policy.