PAS

Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody
Cases
Author(s): CAROL S. BRUCH
Source: Family Law Quarterly, Vol. 35, No. 3 (Fall 2001), pp. 527-552
Published by: American Bar Association
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Parental Alienation Syndrome and
Parental Alienation: Getting It Wrong
in Child Custody Cases*
CAROL S. BRUCH**
I. Introduction
As American courts and legislatures continue their enthusiastic ven
tures into family law reform, they make frequent use of theories and
research from the social sciences. This essay focuses on developments
in child custody law stemming from Parental Alienation Syndrome
(PAS), a theory propounded in 1985 that became widely used despite
its lack of scientific foundations. The discussion highlights theoretical
and practical problems with PAS, provides a similar discussion of more
recent proposals labeled Parental Alienation (PA), and concludes with
recommendations for lawyers and judges who must evaluate these and
similar developments.
II. PAS and Its Critics

A. The PAS Doctrine
Child psychiatrist Richard Gardner coined the term Parental Alien
ation Syndrome in 1985 to describe his clinical impressions of cases
* ? 2001 by Carol S. Bruch. This article incorporates, with permission, materials

first published in Carol S. Bruch, Parental Alienation Syndrome: Junk Science in Child
Custody Determinations, 3 European J. L. Reform 383 (2001).
** Research Professor of Law, University of California, Davis. For their generous
and skilled assistance, the author thanks reference librarians Margaret Durkin, Erin
Murphy, and Susan Llano of the UC Davis Law Library. She is also grateful to Tony
Tanke, Esq., Beth Tanke, Ph.D., and her colleagues, Professors Floyd F. Feeney and
Edward J. Imwinkelried, for helping her to refine her thinking. Errors or omissions are
her own.
527
528 Family Law Quarterly, Volume 35, Number 3, Fall 2001
he believed involved false allegations of child sexual abuse.1 The es

sence of PAS, in his view, is a child's campaign of denigration against
a parent that results from "programming ('brainwashing') of the child
by one parent to denigrate the other parent [and] self-created contri
butions by the child in support of the alienating parent's cam
paign. .. ."2 Dr. Gardner first stated that PAS was present in approxi
mately ninety percent of the children whose families were involved in
custody litigation but provided no research findings to substantiate his
assertions about the syndrome, its frequency, or its setting. In fact, his
initial estimates appear to have been dramatically overstated, particu
larly as to the frequency of false sexual abuse allegations,3 and his
revised estimates have been far more circumspect.4
In recent years, use of the term PAS has been extended dramatically
to include cases of all types in which a child refuses to visit the non
custodial parent, whether or not the child's objections entail abuse al
legations. Although Dr. Gardner sometimes states that his analysis does
not apply to cases of actual abuse,5 the focus of his attention is directed
1. Richard A. Gardner, Recent Trends in Divorce and Custody Litigation, Academy

F., vol. 29, no. 2, at 3 (American Academy of Psychoanalysis, 1985).
2. Richard A. Gardner, The Parental Alienation Syndrome xix (2d ed.
1998) [hereafter Gardner (2d ed.)], quoted in Introductory Comments on the PAS,
formerly available at http://www.rgardner.com/refs/ (hereafter: Gardner's website); the
current iteration has been lightly reworded and is found on Gardner's website (last
updated May 31, 2001 and last visited September 16,2001) under the title "Basic Facts
about the Parental Alienation Syndrome." Precise reading and careful comparisons
between sources are required when Gardner articulates his theories; often revised word
ing entails no change in substance.
3. As to frequency of cases involving sexual abuse, see the careful, comprehensive
reports of a major research effort, Nancy Thoennes & Patricia G. Tjaden, The Extent,
Nature, and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes, 14
Child Abuse & Neglect 151,160 (1990) ("Less than 2% of the approximately 9,000
families with custody and visitation disputes served by 8 domestic relations courts
included in th[is] study involved an allegation of sexual abuse.") (emphasis added).
See also Debra Whitcomb, U.S. Department of Justice, When the Victim is a
Child 7 (2d ed. 1992) ("As an alternative way of framing the magnitude of this
problem, sexual abuse allegations occurred in the range of approximately 2 to 1 per
1,000 divorce filings among the courts [in seven jurisdictions] that were studied")
(emphasis added). See also an analysis of Gardner's work by a University of Michigan
professor of social welfare, Kathleen Coulbourn Faller, The Parental Alienation Syn
drome?What Is It and What Data Support It? 3 Child Maltreatment 110-15
(1998).
4. Compare Richard Gardner, The Parental Alienation Syndrome 59
(1992) (90% figure) [hereafter Gardner (1992)] with Gardner (2d ed.), supra note
2, at xxix-xxxi (stating that no estimates for PAS can be made, but mentioning reports
of alignments [a different, much broader phenomenon] in up to 40% of high-conflict
custody disputes).
5. Indeed, the PAS definition on his website no longer mentions sex abuse allega
tions (perhaps in response to critiques challenging Gardner's assertions about the fre
quency with which unsubstantiated allegations of sexual abuse occur). See Gardner's
website; note 3 supra; notes 21 & 46-48 infra. Gardner also now acknowledges that
"some abusive neglectful parents are using the PAS explanation ... as a coverup and
Parental Alienation Syndrome and Parental Alienation 529
at discerning whether the beloved parent and child are lying, not
whether the target parent is untruthful or has behaved in a way that
might explain the child's aversion.6 His recommended treatment for
serious cases is to transfer custody of the child from the beloved cus
todial parent to the rejected parent for deprogramming. This may entail
institutional care for a transitional period, and all contact, even tele
phone calls, with the primary caregiver must be terminated for "at least
a few weeks." Only after reverse-brainwashing may the child slowly
be reintroduced to the earlier custodian through supervised visitation.7
B. The Setting in Which PAS Is Said to Occur

High conflict families are disproportionately represented, of course,
among the population of those contesting custody and visitation.8 These
cases commonly involve domestic violence, child abuse, and substance
abuse.9 Many parents are angry, and a broad range of visitation prob
diversionary maneuver." Publications and lectures that he promotes as assisting those

who need to distinguish true from false allegations of abuse or neglect are, however,
strongly reminiscent of his earlier, discredited Sex Abuse Legitimacy Scale (SALS)
work, described below. See Richard A. Gardner, Differentiating Between Parental
Alienation Syndrome and Bona Fide Abuse-Neglect, 27 Am. J. Fam. Therapy 97
(1998); notes 21 & 46-48 infra.
6. Two examples are his efforts to distinguish true from false allegations and his
blanket advice to judges that they should refrain from taking abuse allegations seri
ously, even when supported by a therapist who has seen the child. Compare, e.g.,
Richard A. Gardner, Legal and Psychotherapeutic Approaches to the Three Types of
Parental Alienation Syndrome Families?When Psychiatry and the Law Join Forces,
28(1) Ct. Rev. 14, 18 (Spring 1991) [hereafter Gardner, Ct. Rev.] ("The court's
therapist should have a thick skin and be able to tolerate the children's shrieks and
claims of maltreatment. ... To take the allegations of maltreatment seriously . . . may
result in .. . [lengthy or lifelong] alienation."), with the authorities discussed in notes
16, 21 & 46-48 infra and accompanying text (questioning his methodology and dis
cussing the incidence of false allegations).
7. Id. at 16-17 (where his language, although not the substance of his recommen
dations, has been softened somewhat).
8. Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child?Social
and Legal Dilemmas of Custody 132-61 (1992). Approximately 25% of families
experience substantial legal conflict; "in these families, the parents?the fathers in
particular?harbor especially high levels of hostility toward the former spouse." Id.
at 159.
9. Administrative Office of the Courts, Family Court Services Snapshot
Study Report 1?Overview of California Family Court Services Mediation
1991: Families, Cases and Client Feedback 8-12 (1992), at http://www.courtinfo.
ca.gov/courtadrnin/acK;/fam In California, me
diation is mandatory for all contested custody cases. In this statewide study of most
custody mediation sessions conducted by court personnel on a single day, serious issues
of child abuse, family violence and substance abuse were raised by the parties in 42%
of all mediating families, with an additional 24% raising one of these issues alone. In
a review of five federally funded demonstration projects to resolve child access and
visitation problems, researchers report, "Nearly half of the access denial cases at every
site involve allegations of the child's imperiled safety. Most allegations are made by
the residential parent, regardless of sex, against the nonresidential parent and the other
lems occur. Dr. Gardner's description of PAS may well remind parents,
therapists, lawyers, mediators, and judges of these frequently encoun
tered emotions, and this may help to explain why his audience has often
accepted PAS without question. The overwhelming absence of careful
analysis and attention to scientific rigor these professionals demon
strate, however, is deeply troubling. As the following discussion re
veals, this carelessness has permitted what is popularly termed junk
science (pseudo science) to influence custody cases in ways that are
likely to harm children.
C. The Flaws in PAS Theory

The deficiencies in PAS theory are multiple. Some have already been
identified in social science literature and child custody judicial opin
ions; still others are now emerging. First, Gardner confounds a child's
developmentally related reaction to divorce and high parental conflict
(including violence)10 with psychosis. In doing so, he fails to recognize
parents' and children's angry, often inappropriate, and totally predict
able behavior following separation. This error leads him to claim that
PAS constitutes a frequent example of folie a deux or folie a trois,
Shared Psychotic Disorders that the American Psychiatric Association
and scholarly studies report occur only rarely.11 His assertion that these
people in his/her household. Violent behavior is the only allegation that is consistently
leveled with greater frequency against men." Jessica Pearson & Jean Anhalt, Enforcing
Visitation Rights?Innovative Programs in Five State Courts May Provide Answers to
This Difficult Problem, 33 (2) Judges' J. at 3, 40-41 (Spring 1994) (citing four addi
tional studies which also indicate ' 'that safety concerns feature prominently in many
visitation disputes").
10. See Judith S. Wallerstein & Joan Berlin Kelly, Surviving the
Breakup?How Children and Parents Cope with Divorce 77-80 (1980) (special
vulnerability of 9- to 12-year-olds to alignments, for whom this coping behavior at
divorce wards off loneliness, sadness, and more serious depression), 99, 145-46, 233
34 (only a weak correlation between children's anger and parents' quarreling), 237,
253; Judith S. Wallerstein, Julie M. Lewis & Sandra Blakeslee, The Unex
pected Legacy of Divorce?A 25 Year Landmark Study 115-17, 125 (2000)
(alliances usually involve pre-adolescents or young adolescents in high-conflict cases
or when "enmity overshadows good sense"); Janet R. Johnston, Children of Divorce
Who Refuse Visitation, in Nonresidential Parenting 109-35, at 124 (Charlene E.
Depner & James H. Bray eds., 1993) [hereafter Johnston, Children Who Refuse Visits],
11. See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders: DSM IV ? 297.3: Shared Psychotic Disorder (Folie
a Deux) (4th ed. 1994) ("This disorder [in which a second or further person in a close
relationship with a primary person comes to share delusional beliefs of the primary
person, who already had a Psychotic Disorder, most commonly Schizophrenia,] is rare
in clinical settings, although it has been argued that some cases go unrecognized");
Jorg M. Fegert, Parental Alienation oder Parental Accusation Syndrome??Part 1,
Kind-Prax 1/2001, at 3 (hereafter: Fegert, Part 7); id. Part 2, at Kind-Prax 2/2001,
at 39, 41^42 (hereafter: Fegert, Part 2) (citing a literature search by the Wurzburger
Klinik of the period from 1877 through 1995 that produced only 69 case reports of
disorders occur primarily in young children is also contrary to the lit

erature,12 probably also due to a misreading of typical developmental
responses to divorce on the part of young children.13
Second, possibly as a consequence of these errors and his tail-of-the
elephant view,14 Gardner vastly overstates the frequency of cases in
which children and custodial parents manufacture false allegations or
collude to destroy the parent-child relationship. Taken together, these
assertions have the practical effect of impugning all abuse allegations,
allegations which Gardner asserts are usually false in the divorce con
text.15 Here, too, Gardner cites no evidence in support of his personal
view, and the relevant literature reports the contrary?that such alle
gations are usually well founded.16
children and youth that match the description of folie a deux); Jose M. Silveria & Mary
V. Seeman, Shared Psychotic Disorder: A Critical Review of the Literature, 40 Ca
nadian J. Psychiatry 380, 390-91 (1995) (reporting a literature search covering 51
years, from 1942 through 1993, that produced 123 cases, of which only 75 met the
tests for a shared psychotic disorder under DSM-IV; of these only 61 involved two
people, of which 31.1% [19 cases] involved parents and children, with only 5 of these
involving children 18 years old or younger). Silveria and Seeman note that whether
published cases reports provide a representative sample or reflect frequency is un
known, but they, Fegert {supra note 11), and the DSM {supra this note) all describe
the phenomenon as rare. See also World Health Organization, International
Statistical Classification of Diseases and Related Health Problems [ICD
10], Disorder F24: Induced Delusional Disorder (Folie a deux), at 331 (10th ed. 1992).
12. Silveria and Seeman, supra note 11, at 390, 392, report, "Age ranges were
similar for both the secondaries (10 to 81 years) and the primaries (9 to 81 years)."
There were also no differences in the average ages for primaries and secondaries.
Instead, "the age distribution is more in keeping with the expected distribution of age
of onset for other nonorganic psychotic disorders in general, which is relatively rare in
the very young and the very old." Id.
13. "Resistance to visitation among young children, for example, is a develop
mentally expectable divorce-specific separation anxiety, which is made more intense
by overt conflict between parents" and is unrelated to emotional disturbance of either
parents or children. Johnston, Children Who Refuse Visits, supra note 10, at 118. For
typical responses to chronically disputing parents at the developmental stages Johnston
studied, see id. at 120: "temporary reactions (2- [to] 4-year-olds), shifting allegiances
(4- [to] 7-year-olds), loyalty conflicts (7- [to] 10-year-olds), and alignments (9- [to]
12-year-olds)."
14. The reference is, of course, to the story of several blind men, each attempting
to describe an elephant. One holds the tail, another the trunk, the third a tusk, and the
fourth a leg. Because each describes only his own perceptions, no one provides an
accurate description.
15. As Faller points out, Gardner does not attempt to explain why he believes that
"perhaps 95% or more" of all allegations of child sexual abuse are true but "the vast
majority of allegations in [divorce custody cases] are false." Faller, supra note 3, at
103-04.
16. As to the frequency of unsubstantiated abuse allegations, see the literature col
lected and analyzed in John E.B. Myers, A Mother's Nightmare?Incest: A
Practical Legal Guide for Parents and Professionals 133-35,198-210 (1997);
see also id. at 144 45 (innocent misperceptions of innocent behavior); Cheri L. Wood,
The Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy. L.A. L.
Rev. 1367, 1373-74, 1391-94 (1994).
Third, in this fashion, PAS shifts attention away from the perhaps
dangerous behavior of the parent seeking custody to that of the custo
dial parent. This person, who may be attempting to protect the child,
is instead presumed to be lying and poisoning the child. Indeed, for
Gardner, the concerned custodial parent's steps to obtain professional
assistance in diagnosing, treating, and protecting the child constitute
evidence of false allegations.17 Worse yet, if therapists agree that danger
exists, Gardner asserts that they are almost always man-hating women
who have entered into a folie a trois with the complaining child and
concerned parent.18 Indeed, he warns judges not to take abuse allega
tions seriously in the divorce court setting in high conflict cases (severe
PAS cases). Neither Gardner nor those who accept his views acknowl
edge the logical difficulties when Gardner asserts that abuse allegations
which are believed by therapists constitute evidence of PA by the pro
tective parent.
Fourth, Gardner believes that, particularly in serious cases, the rela
tionship of an alienated child with the rejected parent will be irreparably
damaged, probably ending for all time,19 unless immediate, drastic mea
sures (custody transfer, isolation from the loved parent, and deprogram
17. Gardner once identified a public prosecutor in a criminal child sex-abuse pros
ecution, for example, as a mother's "hired gun." He accordingly rated the defendant
less likely to be guilty than if the woman had not sought legal assistance. The prosecutor
later pointed out the absurdity of Gardner's reasoning, saying, "If you believe your
child has been sexually abused, shouldn't you be going to an attorney and seeking
medical advice?" Rorie Sherman, A Controversial Psychiatrist and Influential Witness
Leads the Backlash against Child Sex Abuse "Hysteria," 15 Nat'l L.J., August 16,
1993, at p. 1. The custodial parent, of course, is left in an untenable position under
Gardner's approach. If he or she fails to act in the face of possible abuse, the custodial
parent may be guilty of a failure to protect the child, passivity that may lead to a child
dependency action or, even, to criminal charges.
18. Compare Gardner (1992), supra note 4, at 146-47 (such folies a trois with
therapists are "a widespread phenomenon") and Gardner, Ct. Rev., supra note 6, at
18, with Faller, supra note 3, at 102-03 (collecting and critiquing relevant passages
from Gardner's work) and Fegert, Part 2, supra note 11, at 41 (reports of a folie a
deux or trois are extremely rare). Further, Gardner asserts that when sexual abuse is
alleged, these custodial parents and therapists may take personal sexual pleasure in
visualizing the alleged activity between the noncustodial parent and the child. See
Faller, supra note 3, at 103, 104, 110-11 (collecting quotations and providing research
literature to the contrary); see also Gardner, Ct. Rev., supra note 6, at 16 (attributing
allegations to mothers' sexual fantasies). A trial court judge who sat as a family court
judge for one year after several years on the criminal law bench is reported as noting
PAS in "most of the family law cases he heard" and as cautioning family law judges
"to be aware that in addition to the child, professionals upon whom the court relies
may also be 'brainwashed' by the alienating parent." Judge Nakahara on PAS and the
Role of the Court in Family Law, PAS-Newsletter, January 1999, at unnumbered 2
3 (News for Subscribers), at http://www.vev.ch/en/pas/bwl99901.htm (last visited
April 8, 2001).
19. See Richard A. Gardner, March 2000 Addendum (to Gardner (2d ed.), supra
note 2), at http://www.rgardner.com/refs/addendum2.html (last visited September 30,
2001).
ming) are taken. Here, too, reliable sources reveal that his theory is ex
aggerated, with all but unusual cases (for example, those appearing in
violent families) resolving themselves as the children mature.20
Fifth, as these sources suggest, Gardner's proposed remedy for ex
treme cases is unsupported and endangers children.21 In his admitted
decision to err on the side of under-identifying abusers, Gardner ap
pears to have overlooked the policy differences between criminal law
and child custody law and also to have misunderstood the distinction
between the burdens of proof in criminal and civil cases in the United
States. To the extent that PAS results in placing children with a parent
who is, in fact, abusive, the youngsters will be bereft of contact with
the parent who might help them. Parent groups and investigative re
porting describe, for example, numerous cases in which trial courts
have transferred children's custody to known or likely abusers and cus
todial parents have been denied contact with the children they have
been trying to protect.22 In less extreme cases, too, children are likely
20. In 1993 Professor Janet Johnston, a specialist in high-conflict custody disputes

with advanced degrees in social work and sociology, gave initial findings from two
studies of high-conflict disputes referred to her research projects by the courts. Refusals
to visit appeared frequently, especially among a subset of older children who had been
exposed to serious abuse or domestic violence. Almost one-third of the total sample of
children were in alignments more than 2 to 3 years post-separation, with three-fourths
of the 9- to 12-year olds involved in such behavior. Johnston concluded that "when
conflicts are overt and involve the children, and when the disputes are intense and
prolonged, the children are more likely to submit to this alignment mode of defending
and coping" and predicted that "it is highly likely that children will move into align
ments as they approach early adolescence, if the parental conflict is ongoing." She
contrasted these findings to far more benign findings in a community study of 131
children of recently separated parents. Johnston, Children Who Refuse Visits, supra
note 10, at 124. In that less-troubled population, 20% of the children were in alignments
(most of them in the 9- to 12-year-old group), but every case resolved itself before the
child reached 18, with most resolving within one or two years when the children re
gretted their earlier behavior. Telephone conversation with Dr. Judith Wallerstein (April
10, 2001). A further report by Johnston concerning children from all these groups (the
two court-referred groups and the community study) will appear shortly. See Janet R.
Johnston, Parental Alignments and Rejection: An Empirical Study of Alienation in
Children of Divorce,_(forthcoming).
21. Gardner acknowledges that his SALS was weighted to find some perpetrators
innocent who were in fact guilty. Sherman, supra note 17. Although Gardner now
disavows responsibility for these applications of his work, he continues to recommend
attention to the same factors his early work endorsed. See generally Faller, supra note
3 passim.
22. See, e.g., Gina Keating, Disputed Theory Used in Custody Cases: Children
Often Victims in Parental Alienation Syndrome Strategy, Pasadena Star-News, April
23, 2000, at http://www.canow.org/NOWintheNews/familylaw_news_text.html (last
visited April 8, 2001); Mothers of Lost Children, Sample of California Family
Law Cases: Children Taken Away from Safe Parents, Forced to Live With
Abusive Parents(2000), available from Mothers of Lost Children, P.O. Box 1803,
Davis, CA 95617; Karen Winner, Placing Children at Risk: Questionable Psy
chologists and Therapists in the Sacramento Family Court and Surround
ing Counties (2000) (study commissioned by California Protective Parents Associa
to suffer from such a sudden dislocation in their home life and rela
tionship with the parent they trust. Even therapists who accept PAS
theory have advised against custody transfers to no avail in some re
ported cases in which it seems judges have implemented Gardner's
views on their own initiative.23
In sum, children's reluctance or refusal to visit noncustodial parents
can probably be better explained without resorting to Gardner's theory.
Studies that followed families over several years, for example, report
that visits may cease or be resisted when a variety of reasons cause
custodial parents and children to be angry or uncomfortable with the
other parent. Often the noncustodial parent's behavior and the child's
developmental stage play decisive roles. Alignments or alliances that
are somewhat reminiscent of Gardner's construct are much less fre
quent than he suggests, and even in extreme cases, these scholars agree
that PAS theory calls for inappropriate and harmful responses that in
tensify the problem.24
III. The Merchandising of PAS in Child

Custody Cases
How, then, did such a seriously misconceived, overstated, and harm
ful view gain widespread acceptance? What would inspire judges to
order custody transfers against the uniform advice of expert witnesses
in a case?25 First, Gardner is broadly (but mistakenly) believed to be a
tion). See also Christine Lehmann, Controversial Syndrome Arises in Child-Custody

Battles, Psychiatric News, September 1, 2000, at unnumbered 2, at http://www.
psych.org/pnews/00-09-01/controversial.html. Paul Fink, M.D., past president of the
American Psychiatric Association agrees, stating, "I am very concerned about the
influence Gardner and his pseudo-science is having on the courts .... Once the judge
accepts PAS, it is easy to conclude that the abuse allegations are false, and the courts
award custody to alleged or proven perpetrators... . Gardner ... undermines the se
riousness of sexual abuse allegations." Id. See generally Myers, supra note 16, at 8,
\35?38
23. See Karen 'TP" v. Clyde "QQ," 602 N.Y.S.2d 709 (App. Div. 1993) (the trial
court's reference to a book on PAS that was neither entered into evidence nor referred
to by any witness provided no ground for reversal of custody transfer to father and
termination of mother's contact with daughter in case where trial court held mother's
sex abuse allegation fabricated and child programmed; mother's challenge to termi
nation of contact treated as moot because subsequent trial order permitted visitation;
no mention by appellate court of expert testimony, if any). See also Karen B. v. Clyde
M., 574 N.Y.S.2d 267 (Fam. Ct. 1991), the deeply troubling trial court opinion in
the case.
24. See, e.g., Fegert, Part 2, supra note 11, at 40-42; Johnston, Children Who
Refuse Visits, supra note 10, at 132-33.
25. See Krebsbach v. Gallagher, 181 A.D.2d 363 (N.Y. App. Div. 1992) (trial
court's order transferring custody against recommendation of psychologist and Law
Guardian reversed for lack of support in record).
full professor at a prestigious university.26 Because this aura of ex

pertise accompanies his work, few suspect that it is mostly self
published,27 that it lacks scientific rigor,28 and that his books on PAS
are not even held by most university and research libraries.29 Next,
Gardner promotes his writing and services as an expert through his own
website,30 receives referrals from the websites of fathers' organiza
tions,31 and provides packaged continuing education courses for pro
26. See, e.g., Justice R. James Williams, Should Judges Close the Gate on PAS and
PA? 39 Fam. Ct. Rev. 267, 267 (2001) (referring to "Dr. Richard Gardner, a psychi
atrist at Columbia University"); Rola J. Yamini, Note: Repressed and Recovered Mem
ories of Child Sexual Abuse, 47 Hastings L.J. 551, 557 n.58 (1996) (referring to "Dr.
Richard Gardner, professor of psychiatry at Columbia University"); Joseph Berger,
Recanting a Sex Abuse Charge; Family Needs to Heal, but Which Statement Is the Lie?
N.Y. Times, July 10, 1998, at Bl (referring to "Dr. Richard A. Gardner, professor of
child psychiatry at Columbia University Medical School"); Jon Meacham, Trials and
Troubles in Happy Valley, Newsweek (US Edition), May 8, 1995, at 58 (referring to
' 'Richard A. Gardner, a professor of child psychiatry at Columbia University medical
school"). Gardner identifies himself by the courtesy academic title he holds from Co
lumbia University (Clinical Professor of Medicine), a title that U.S. medical schools
provide to doctors who permit students to observe their practice. Unlike the title Pro
fessor of Clinical Medicine, however, the title Gardner enjoys indicates neither full
faculty membership nor research accomplishment. See People v. Fortin, 706 N.Y.S.2d
611, 612 (Crim. Ct. 2000), reporting Gardner's testimony that his academic appoint
ment is unpaid, and that "at present [Gardner's] therapeutic work actively takes ap
proximately 1 to 2% of his time and the remainder of his time and income are accounted
for by forensic analysis and testimony [that increasingly concerns PAS]."
{Fortin was a criminal sex abuse case in which Dr. Gardner offered to testify concerning
PAS and the credibility of the complaining witness. The court refused to permit his
testimony because of a failure to establish general acceptance of PAS within the pro
fessional community.)
27. Creative Therapeutics of Cresskill, N.J., is the publishing firm that Gardner
established to publish his works. People v. Fortin, 706 N.Y.S.2d 611, 612 (Crim. Ct.
2000) (reporting that Gardner's company had published and marketed all but one of
his books since 1978).
28. Seeking to refute criticism about the absence of scientifically rigorous reports
on PAS, Gardner recently published a report of cases from his own practice and con
sulting work in which he concluded that PAS was present; the case summaries concern
99 children. Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside
With the Alienated Parent? A Follow-up Study, 19(3) Am. J. Forensic Psychol. 61
(2001). The article is unsuccessful, however, because in it Gardner confounds criminal,
family law, and personal injury cases; omits essential information (e.g., the children's
ages and information on the nature of any abuse allegations); includes cases in which
he had no direct contact with the child; and treats highly disparate factual and legal
issues as equivalents. For example, Gardner tallies criminal and personal injury deci
sions (where courts were without power to adjust custody orders) as cases in which
custody or visitation was not adjusted to account for PAS.
29. An April 2001 electronic search of the Research Libraries Information Network
(RLIN), a database that includes the holdings of over 160 major reference libraries,
revealed that only 9 of these libraries hold one or both editions of Gardner's book, The
Parental Alienation Syndrome.
30. See Gardner's website for a listing of his appearances. See generally Sherman,
supra note 17.
31. See generally Williams, supra note 26, at 269 and n.21 (concerning the websites
of fathers' groups).
536 Family Law Quarterly Volume 35, Number 3, Fall 2001
fessionals. Finally, he often inaccurately represents or suggests that

PAS is consistent with or endorsed by the accepted work of others.33
An eight-page article in the journal of the American Judges Asso
ciation provides a typical example.34 Gardner is identified by his cour
tesy title alone,35 and the article provides only ten sources (nine of his
own writings and one piece by Sigmund Freud) to support his dramatic,
even hyperbolic, assertions.36
In any event, over the years since Gardner first announced his theory,
the term PAS has entered into public usage. The media, parents, ther
apists, lawyers, mediators, and judges now often refer to PAS, many
apparently assuming that it is a scientifically established and useful
mental health diagnosis.37 Accordingly, in practice, whenever child sex
ual abuse allegations or disrupted visitation patterns arise in the United
States, one must now be prepared to confront a claim asserting that
PAS is at work, not abuse or other difficulties.38
32. See Gardner's website, supra note 2, for a listing of such appearances.
33. See, e.g., the publications and cases listed on his website. The website identifies
negative publications as supporting PAS, claims that discussions of entirely distinct
phenomena (such as alignments) are about PAS, claims that cases in which any ref
erence to PAS is made constitute decisions that the syndrome is scientifically and
legally accepted, and claims that articles in peer-reviewed law or mediation journals
(which do not provide substantive review of his scientific claims) establish the scientific
merit of PAS.
34. See Gardner, Or. Rev., supra note 6.
35. Id. ("Richard A. Gardner, M.D., is clinical professor of child psychiatry at
Columbia University, College of Physicians and Surgeons.")
36. Specifically, Sigmund Freud, Three Contributions to the Theory of Sex: II?
Infantile Sexuality, in The Basic Writing of Sigmund Freud 592-93 (A.A. Brill
ed., 1938), is cited to support Gardner's statement concerning cases in which sexual
abuse is alleged: "I agree with Freud that children are 'polymorphous perverse,' and
thereby provide [their] mothers with ample supply of material to serve as nuclei for
[the mothers' projection of their own inclinations to pedophilia] onto the father." Ad
ditional dangerous hyperbole is typified by Gardner's statement that a child's hatred
for one parent is "superficial" and his warning to judges that "tak[ing] the allegations
of maltreatment seriously may help entrench the parental alienation syndrome and may
result in years of, if not lifelong, alienation." Gardner, Ct. Rev., supra note 6. Compare
the views of reputable scholars set forth in notes 15-18 supra.
37. A recent friend-of-the-court brief provides an example. See Amici Curiae Brief
of Leslie Ellen Shear, et al., Montenegro v. Diaz, Supreme Court of California No.
S090699 (2001). Written on behalf of mediators, therapists and California attorneys
who have passed a specialist's examination in family law, the briefs arguments in
favor of easier custody modification standards (including transfers in custody) include
reliance on PAS. Id. at 26-30. Judges have also endorsed PAS. See, e.g., the remarks
of Judge Aviva Bobb, Presiding Judge of the Los Angeles Superior Court Family Court,
quoted in Keating, supra note 22:
[Just because PAS is not supported by scientific evidence] does not mean that
it does not exist. One parent is being successful in undermining the child's
relationships with the other parent. That is so serious that the child will not be
able to bond [sic] with the other parent. . . . And unless that parent stops that
behavior, that parent should be monitored by a third party.
38. Even Gardner now concedes that this is a frequent pattern. Keating, supra note
An electronic search for all reported U.S. cases between 1985 and
February 2001 employing the term "parental alienation syndrome" re
vealed numerous mental health professionals in addition to Gardner
who have testified that PAS was present, although far fewer were will
ing to recommend that custody be transferred and contact with the
primary custodian be terminated. The search produced forty-eight cases
from twenty states, including the highest courts in six states. The degree
to which PAS has been invoked by expert witnesses, attorneys, or
judges in these cases and the almost total absence of inquiries into its
scientific validity is profoundly disturbing.39 In only a handful of cases
did the trial or appellate court specifically consider whether the sup
posed syndrome was admissible under the accepted precedents that test
either acceptance in the scientific community or acceptable scientific
methodology,40 and in several of these, the court determined that it did
not need to reach the admissibility question, often because no alienation
had been shown.41 On more than one occasion, however, appellate
22 (quoting Gardner: "Now that PAS is a widespread diagnosis, many abusers are
claiming they are innocent victims of PAS").
39. Most of the cases listed as admitting PAS on Gardner's website fit into this
category, and the list is therefore misleading. When PAS is mentioned by a party, an
expert or a judge, but no challenge to admissibility or decision on point has occurred,
no conclusion concerning admissibility can be drawn; the issue has simply been waived.
See, e.g., In re Violetta B., 568 N.E.2d 1345 (111. Ct. App. 1991) (PAS mentioned by
one witness, but not discussed and irrelevant to decision); Crews v. McKenna k/a
Kuchta, 1998 Minn. App. LEXIS 793 (July 7, 1998) ("kernel of authenticity" to 11
year-old's fears, but "some" of child's behavior evidenced PAS); Truax v. Truax k/a
Briley, 874 P.2d 10 (Nev. 1994); Loll v. Loll, 561 N.W.2d 625 (N.D. 1997) (state
supreme court upheld the trial court's decision that alienation had not been shown; it
noted but did not respond to the mother's objection that the son's therapist was "un
aware that [the child] ... was suffering from parental alienation syndrome").
40. In the United States, reliable expert testimony on scientific, technical or other
specialized knowledge is generally permitted if it will assist the trier of fact understand
the evidence or determine a fact that is in issue. The general-acceptance-in-a-particular
field test first articulated for the federal courts in Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923) became the test in most state courts as well. Paul C. Giannelli
& Edward J. Imwinkelried, 1 Scientific Evidence ? 1-5 (3d ed. 1999). The U.S.
Supreme Court ruled that the Federal Rules of Evidence (adopted in 1975) displaced
the Frye test in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Most states
have also replaced Frye with Daubert, the new test that considers many factors to
determine scientific reliability. Id. ?? 1-7 to 1-8 (comparing the standards). See also
id. ? 9-5 (on opinion evidence).
41. See e.g., In the Interest of T.M.W., 553 So. 2d 260, 261 (Ha. Dist. Ct. App.
1989) (court's power to order psychological examination at issue, not merits of father's
PAS argument or its relevance to adoption case); Bowles v. Bowles, No. 356104,1997
Conn. Super. LEXIS 2721 (Conn. Super. Ct. Aug. 7,1997) (court makes orders without
regard to PAS theory); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.
App. 1994) (same). See also Pearson v. Pearson, 5 P.3d 239, 243 (Alaska 2000), where
the father's PAS assertions were heard at trial and the mother apparently did not chal
lenge admissibility on appeal. The state supreme court upheld the trial court's finding
that no alienation was present.
courts nevertheless took the occasion to alert trial courts to the fact that
Gardner's work is seriously disputed.42
In the few reported cases in which Gardner's proffered testimony
was challenged or the validity of PAS was otherwise questioned, courts
usually exclude his testimony and reliance on PAS. These cases reveal
two areas of concern. First, courts are consistent in refusing to permit
Gardner to testify on the truth or falsity of witnesses, noting that this
question is reserved to the trier of fact.43 Second, most U.S. courts
considering the question agree that PAS has not been generally accepted
by professionals and does not meet the applicable test for scientific
reliability.44 These conclusions are echoed by a Canadian jurist in an
article discussing admissibility issues under both U.S. and Canadian
42. See, e.g., In the Interest of T.M.W., 553 So. 2d 260,261 n.3 (Fla. Dist. Ct. App.
1989); Hanson v. Spolnik, 685 N.E.2d 71, 84 n.10 (Ind. Ct. App. 1997). A powerful
concurrence and dissent in Hanson by Judge Chezem details the deficiencies of PAS
as a theory and as implemented in this case. The appellate court upheld the trial court's
order of a custody transfer (with complete termination of the mother's contact with her
6-year-old daughter for two months) on the basis of testimony provided by a psychol
ogist. The psychologist had not interviewed either parent or the child, but based his
analysis instead on notes made by a therapist who, in turn, had never met the father.
Judge Chezem's opinion points out that although the father was unable to work due to
an emotional disability, neither psychologist had any way of knowing whether the
mother's assertions about the father's behavior (she suspected sexual abuse) were true.
By one year after the transfer order, the mother was being permitted a six-hour visit
once every two weeks. See also Pearson v. Pearson, 5 P.3d 239, 243 (Alaska 2000),
where the state supreme court volunteered that PAS (which both parties' experts ac
cepted) is "not universally accepted."
43. See, e.g., Tungate v. Commonwealth, 901 S.W.2d 41 (Ky. 1995) (refusing Gard
ner's proposed testimony on "indicators for pedophilia" in criminal case because it
went to ultimate issue of guilt or innocence and "lacked sufficient scientific basis for
the opinions offered").
44. See, e.g., People v. Fortin, 706 N.Y.S.2d 611 (N.Y. Crim. Ct. 2000); Husband
Is Entitled to Divorce Based on Cruel and Inhuman Treatment: Oliver V. v. Kelly V.,
224 N.Y. L. J., Nov. 27, 2000, at 25 (noting that no testimony was offered to validate
PAS and therefore declining to make such a finding). The Fortin court refused to hear
Gardner's PAS testimony for the defendant in a criminal case, holding that the defen
dant "has not established general acceptance of Parental Alienation Syndrome within
the professional community which would provide a foundation for its admission at
trial." In support of its holding, the court cited a concurring opinion of Chief Judge
Kaye of the New York Court of Appeal and several articles, including Wood, supra
note 16. It also quoted Gardner's view that "the concept of scientific proof... is not
applicable in the field of psychology; especially with regard to issues being dealt with
in such areas as child custody disputes, and sex abuse allegations," citing Gardner's
own writings (on which he was cross-examined). See also Wiederholt v. Fischer, 485
N.W.2d 442 (Wis. Ct. App. 1992) (appellate court, although not discussing validity of
PAS, upheld trial court's refusal to transfer custody of "alienated" children to father
as his expert urged because only "limited research data" supported theory that removal
would provide cure, expert conceded cure was controversial and carried uncertain risks,
and testimony from parents and children supported trial court's finding that transfer
would not succeed and was unreasonable). But see Kilgore v. Boyd, Case no. 94-7573
(13th Jud. Cir., Fla. Nov. 22, 2000) (transcript of hearing permitting Gardner's PAS
testimony), at http://www.rgardner.com/pages/kg.excerpt.html.
law and by other prominent professionals. Dr. Paul J. Fink, a past

president of the American Psychiatric Association and president of
the Leadership Council on Mental Health, Justice, and the Media, for
example, has stated quite bluntly, "PAS as a scientific theory has been
excoriated by legitimate researchers across the nation. Judged solely
on his merits, Dr. Gardner should be a rather pathetic footnote or an
example of poor scientific standards."46
Following considerable scientific criticism, Gardner withdrew the
test he had constructed to determine whether sexual abuse had taken
place.47 Yet, as Faller's close examination reveals, this set of questions
was simply replaced by other publications with new titles that largely
replicate his earlier content and methodology 48
Despite the good work of most of the courts that have considered
the scientific probity of PAS, there is little to celebrate. The vast ma
45. Williams, supra note 26, at 275-78.

46. Gina Keating, Critics Say Family Court System Often Amounts to Justice
for Sale, Pasadena Star-News, April 24, 2000, at http://www.canow.org/NOW
intheNewsZfamilylaw_news_text.html (last visited 8 April 2001). A similarly outspo
ken assessment by a well-regarded scholar appears in the American Bar Association's
Journal; referring to Gardner's withdrawn Sex Abuse Legitimacy Scale (SALS, the
basis for Gardner's PAS theory), Professor Jon R. Conte of the University of Wash
ington Social Welfare Doctoral Faculty remarked, SALS is "[p]robably the most un
scientific piece of garbage I've seen in the field in all my time. To base social policy
on something as flimsy as this is exceedingly dangerous." Debra Cassens Moss, Abuse
Scale, 74 A.B.A. J., Dec. 1, 1998, at 26. Gardner's views on pedophilia and what he
calls a wave of hysteria concerning child abuse allegations have been received with
equally harsh appraisals elsewhere. See, e.g., Jerome H. Poliacoff & Cynthia L. Greene,
Parental Alienation Syndrome: Frye v. Gardner in the Family Courts, at http://
www.gate.net/~liz/liz/poliacoff.htm (a revised version of an article by the same name
that originally appeared in the Family Law Section, Florida Bar Association,
Commentator, vol. 25, no.4, June 1999).
47. See, e.g., Lucy Berliner & Jon R. Conte, Sexual Abuse Evaluations: Conceptual
and Empirical Obstacles, 17 Child Abuse & Neglect 111, 114 (1993):
[The Sexual Abuse Legitimacy Scale (SALS)] is based entirely on the author's
personal observations of an unknown number of cases seen in a specialized
forensic practice. Although reference is made to studies [by Gardner] these are
unpublished, not described, and are of unknown value. . .. Indeed, to our knowl
edge, the entire scale and parent[al] alienation syndrome upon which it is based
have never been subjected to any kind of peer review or empirical test. In sum,
there is no demonstrated ability of this scale to make valid predictions based on
the identified criteria.
In addition, Faller notes that Gardner's work makes reference to none of the works on
false allegations of sexual abuse in divorce that predate his publications. Faller, supra
note 3, at 106-08 (analyzing Gardner's work in light of the relevant literature and
finding it wanting).
48. As Faller puts it, Gardner has repudiated the numbers produced by his scale,
but not the factors. Although the SALS is no longer listed as a separate publication by
Gardner's press, Creative Therapeutics, Faller examines Gardner's more recent Pro
tocols and concludes that "virtually all SALS factors are included in the Protocols,
and the parental alienation syndrome figures prominently in the Protocols as a signal
that the allegation of sexual abuse is false." Faller, supra note 3, at 105-06.
jority of the cases mentioning PAS reveal that one or more of the ex
perts evaluated the case in light of PAS, and there is nothing to suggest
that anyone?expert, attorney or judge?thought to question whether
the theory is well founded or leads to sound recommendations or or
ders.49 A similar lack of rigor is now also seen in foreign sources.50
In practice, PAS has provided litigational advantages to noncustodial
parents with sufficient resources to hire attorneys and experts.51 It is
possible that many attorneys and mental health professionals have sim
ply seized on a new revenue source?a way to "do something for the
father when he hires me," as one practitioner puts it. For those who
focus on children's well-being, it hardly matters whether PAS is one
49. See, e.g., Metza v. Metza, 1998 Conn. Super. LEXIS 2727 (Conn. Super. Ct.
1998) (mother's disparaging remarks ''can lead to the Parental Alienation Syndrome");
Blosser v. Blosser, 707 So. 2d 778, 780 (Fla. Dist. Ct. App. 1998) (parties stipulated
to admission of psychologist's report that included conclusion that "child did not
exhibit any parental alienation syndrome"); In re Marriage of Condon, 73 Cal. Rptr.
2d 33, 39 n.9 (Ct. App. 1998) (mentioning but not discussing father's "declaration and
supporting materials [from a psychologist] regarding 'Parental Alienation Syn
drome' "; however, suggest skepticism); In re John W., 48 Cal. Rptr. 2d 899, 902 (Ct.
App. 1996) (father given custody without discussing expert's reasoning that mother's
good faith belief that father had molested child was produced by subtle, unconscious
PAS); White v. White, 655 N.E.2d 523 (Ind. Ct. App. 1995) (mother sought to intro
duce evidence to rebut father's factual assertions but did not question PAS theory). But
see Wiederholt v. Fischer, 485 N.W.2d 442 (Wis. Ct. App. 1992) (appellate court
upheld trial court's refusal to transfer custody of "alienated" children to father as his
expert urged, in part because transfer carried uncertain risks, and testimony from the
parents and children supported trial court's finding that transfer was unreasonable);
Bowles v. Bowles, 1997 Conn. Super. LEXIS 2721 (Conn. Super. Ct. 1997) (court
refuses to order custody transfer to father because ' 'it would be unrealistic and counter
productive"). Cases that Gardner's website lists as examples of PAS's admissibility,
however, whether domestic or foreign, rarely address the scientific sufficiency question.
See infra note 50 and accompanying text.
50. See, e.g., Johnson v. Johnson, No. AD6182, Appeal No. SA1 of 1997, Family
Court of Australia (Full Court) (July 7, 1997), at http://www.austlii.edu.au/au/cases/
cth/family_ct/ (trial court erred in not allowing father to recall expert witness in order
to put questions on PAS; no discussion of PAS' scientific sufficience; mother's counsel
conceded relevance of PAS but argued unsuccessfully that questions had already been
put under another label); Elsholz v. Germany, 8 Eur. Ct. H.R. 2000, at para. 53
(deciding that the German courts' refusal to order an independent psychological report
on the child's wishes and the absence of a hearing before the Regional Court constituted
an insufficient involvement of the applicant in the decision-making process, thereby
violating the applicant's rights under Articles 8 and 6 ? 1 of the Convention for the
Protection of Human Rights and Fundamental Freedoms). PAS appears only in the
father's arguments, not in the Court's findings or reasoning. See id. paras. 33-35, 43
53, 62-66.
51. As a general matter, custodial households are at a financial disadvantage in the
United States, and custodial parents are less likely than noncustodial parents to be
represented in custody litigation. Myers, supra note 16, at 8, vividly describes the
costs to the custodial parent and the tactical advantages to the noncustodial parent of
pretrial discovery to "keep ... [the protective parent and counsel] off balance and
distract them from the important work of getting ready for court."
more example of a "street myth" that has been too willingly embraced
by the media and those involved in child custody litigation, or whether
attorneys and mental health professionals truly do not know how to
evaluate new psychological theories.52 This latter possibility may, how
ever, explain why an annual essay prize from the American Bar As
sociation's Section on Alternate Dispute Resolution went to a remark
ably non-evaluative, hence inadequate, piece on PAS,53 and why
articles on PAS that seriously misstate the research literature have ap
peared even in refereed journals.54
IV. Improved Science but More Bad Policy

Faced with such widespread misinformation and the harm that it may
be causing in custody cases, leading scholars are now attempting to
refine the area. In addition to their written works, some are now re
sponding to Gardner on his own turf by presenting papers at profes
sional meetings and continuing education courses for judges, attorneys
and mental health professionals. In Northern California, which has been
the site of much of the research now being erroneously cited by pro
ponents of PAS, several professionals who have been lecturing broadly
on the topic of alienation recently published a collection of related
articles.55
52. Similar analytical sloppiness has accompanied other recent fads in American
custody law?theories favoring joint physical custody over the objections of a parent,
opposing relocation of custodial households, enforcing frequent visitation in high
conflict (even physically abusive) cases, and permitting dispositional recommendations
from mediators to courts. In each of these areas, a great many troubling trial court
decisions had been entered before leading scholars and practitioners pointed out their
flawed reasoning. For a critical assessment of one such more recent innovation see the
textual discussion below of so-called special masters.
53. See Anita Vestal, Mediation and Parental Alienation Syndrome: Considerations
for an Intervention Model, 37 Fam. & Conciliation Courts Rev. 487 (1999).
54. See, e.g., Deirdre Conway Rand, The Spectrum of Parental Alienation Syn
drome, Am. J. Forensic Psychol., vol. 15, 1997, no. 3, at 23 (Part I) and No. 4, at
39 (Part II), which is replete with inaccurate characterizations of the findings and views
of many scholars, including those of Judith Wallerstein, Janet Johnston and Dorothy
Huntington. Rand frequently cites works as dealing with PAS although they discuss
distinct matters that Rand and others confound with PAS in ways similar to Gardner,
as discussed in this article. Accord, telephone conversation with Dr. Judith Wallerstein,
April 10, 2001.
55. In May 2001, for example, a national conference on Conflict Resolution, Chil
dren and the Courts included both a half-day institute titled "The ABC's of High
Conflict Families and Alienated Children" and a panel devoted to "Restoring Rela
tionships Between Alienated Children and their Parents." AFCC 38th Annual Confer
ence, May 9-12, 2001. The July 2001 issue of Family Court Review contains a sym
posium on PA. As described by the editors, the purpose is ' 'to review the psychological
and legal difficulties with Parental Alienation Syndrome . . . and to develop a more
complex and useful understanding of situations in which children strongly and unex
pectedly reject a parent during or after divorce." Janet R. Johnston & Joan B. Kelly,
These professionals distinguish themselves sharply from Gardner

and PAS in several important respects.56 First, they directly criticize his
theory, its lack of scientific foundations, and its treatment recommen
dations. Next, they distinguish "alienation" from "estrangement" (al
though these terms have been synonymous in ordinary usage) and point
out that there are many possible reasons for objections to or interference
with visitation. They employ the term "estrangement" to refer to dif
ficulties in a noncustodial parent's relationship with a child that can be
traced to that parent's characteristics or behavior. "Alienation" in their
usage refers to difficulties stemming from the child's disproportionate,
persistent, and unreasonable negative feelings and beliefs toward a par
ent.57 By addressing the skewed rationales and conclusions promoted
by Gardner's work, they reopen a broad inquiry into causation and
recognize that many factors may be at work collectively.
Guest Editorial Notes, 39 Fam. Ct. Rev. 246, 246 (2001) [hereafter Johnston & Kelly,
Ed. Notes]. In their joint article for the issue, Johnston and Kelly argue for a new
formulation that would distinguish alienated children "from other children who also
resist contact with a parent after separation but for a variety of normal developmentally
expectable reasons (including realistic estrangement from violent, neglectful, or abusive
parents)." Id., summarizing Joan B. Kelly & Janet R. Johnston, The Alienated Child:
A Reformulation of Parental Alienation Syndrome, 39 Fam. Ct. Rev. 249 (2001) [here
after Kelly & Johnston, The Alienated Child].
56. The following summary is based largely on Kelly & Johnston, The Alienated
Child, supra note 55. Disagreement with Gardner concerning custody changes, how
ever, appears in a companion piece, Janet R. Johnston et al., Therapeutic Work With
Alienated Children and Their Families, 39 Fam. Ct. Rev. 316, 316 (2001):
The therapeutic approach to alienated children and their families described in
this article stands in marked contrast to others that are largely coercive and
punitive in nature (e.g., Gardner [2d ed., supra note 2] prescribed primarily court
sanctions in mild and moderate cases and change of custody in severe ones). It
draws on two decades of specialized knowledge and skill derived from more
humane methods of educating, mediating, and counseling ....
Johnston and her co-authors do, however, accept what they term ' 'judicious and co
ordinate use of legal constraints and case management together with these therapeutic
interventions," and adopt certain coercive recommendations from a companion piece
by Sullivan and Kelly. Id. at 316, 330-32, setting forth their own more moderate
approach, but relying in part on Matthew J. Sullivan & Joan B. Kelly, Legal and
Psychological Management of Cases With an Alienated Child, 39 Fam. Ct. Rev. 299
(2001).
57. The definition of alienated child used in the Family Court Review sympo
sium is:
one who expressed freely and persistently, unreasonable negative feelings and
beliefs (such as anger, hatred, rejection, and/or/fear) toward a parent that are
significantly disproportionate to the child's actual experience with that parent.
From this viewpoint, the pernicious behaviors of a "programming" parent are
no longer the starting point. Rather, the problem of the alienated child begins
with a primary focus on the child, his or her observable behaviors, and parent
child relationships.
Andrew Schepard, Editorial Notes, 39 Fam. Ct. Rev. 243, 243 (2001), citing Kelly &
Johnston, The Alienated Child, supra note 55, at 251. See generally Williams, supra
note 26, at 271-73 (discussing others' varying definitions of parental alienation).
Specifically disapproved is Gardner's recommendation that children,

even those who are supposedly engaged in a folie a deux with their
custodial parent, be removed immediately and cut off from all contact
with that parent pending reverse brain-washing or deprogramming. In
line with more general psychological theory, these children are to be
protected from the trauma of an abrupt termination of their primary
relationship. Therapy for the child and the custodial parent may be
recommended instead to loosen unhealthy aspects of their bond, sup
plemented by professional assistance in reestablishing the child's re
lationship with the noncustodial parent at an appropriate time and in a
manner that will not unduly frighten the child. These authors are careful
in their references to research literature and usually qualify their claims
appropriately. In addition, to varying degrees they provide helpful clini
cal insights for the use of therapists whose work includes families with
child-parent antipathies. To this extent, their insights, although not yet
scientifically proven, are an important step forward.
Unfortunately, however, these mental health specialists, like Gardner
before them, go far beyond their data as they craft recommendations
for extended, coercive, highly intrusive judicial interventions. They rec
ommend a court-appointed "special master" (that is, a lawyer or mental
health professional) to lead a team consisting potentially of therapists
for each family member, a co-parent counselor, and attorneys for the
parties and child. As articulated by Sullivan and Kelly, the special mas
ter assumes a quasi-judicial role "including child-specific decision
making, case management, further assessments . . . structural interven
tions that are legally binding, and immediate conflict resolution . . . ."58
Other important recommendations are that courts order parties to waive
significant rights to confidentiality (privileges),59 and that courts order
parents to share the potentially onerous costs equally.60
58. Sullivan & Kelly, supra note 56, at 314, Appendix. See also id. at 300, 308
(role of special masters regarding counseling for child), 309, 310 (sample order com
pelling parties to sign waivers of confidentiality and agree to share costs, and sample
order referring disputed custody issues to special master and prohibiting parents from
obtaining attorney-drafted "letters or filed motions" until after special master has held
meeting), 311 (referring to delegated authority to a team leader to "codify" decisions
as court orders), 315 ("If authorized by the court, the special master can take on ...
interventions that are legally binding ..."). Compare id. at 303, the authors' only
reference to a stipulation, one authorizing "a time-limited special master while an
evaluation is going on."
59. See id. at 310 (sample order compelling parties to sign waivers of confidenti
ality). The authors acknowledge in passing, without explanation, that their recommen
dation may come under legal or ethical scrutiny. Id.
60. References to expense appear, for example, in Johnston et al., supra, note 56,
at 330-31 and Sullivan & Kelly, supra note 56, at 300, 311 (concerning cases in which
a family's needs far exceed available resources), and 314 (listing a special master,
Some of these specific proposals are clearly contrary to current law.

California constitutional, statutory, and case law, for example, make
clear that the scheme Sullivan and Kelly propose (which apparently
would authorize a special master over one or both parents' objections)
constitutes an impermissible delegation of judicial authority.61 Simi
larly, their recommended court-ordered waivers ("limited confidenti
ality" in their terminology) would require that courts act contrary to
controlling legal mandates 62 Finally, although their proposal that par
ties share costs equally is not contrary to law, it is (for no apparent
reason) potentially punitive to the less affluent spouse.
child's therapist, parents' therapists, co-parent counselor, parents' attorneys, and child's
attorney or guardian ad litem as potential "collaborative team" members). Sullivan
and Kelly recommend orders splitting all uninsured costs equally between the parties
throughout their article.
61. Sullivan and Kelly may have confounded voluntary stipulations with court or
ders following litigation. Their use of language throughout, particularly in their sample
orders, incorrectly suggests that courts may order a person to agree to matters that the
law leaves to an individual's choice. See Ruisi v. Thieriot, 62 Cal. Rptr. 2d 766, 771
75 (Ct. App. 1997), which reversed the trial court's order (adopting the recommendation
of Dr. Margaret Lee) that a special master be appointed over the objection of one parent
and also reversed an order excusing the special master from requirements that the
proceedings be reported. Id. at 772. The appellate court held,
[T]he authority of the trial court to [designate a separate forum to resolve family
law disputes] is constrained by the basic [state] constitutional principle that ju
dicial power may not be delegated.
The trial court has no authority to assign matters to a referee or special master
for decision without explicit statutory authorization. An invalid reference con
stitutes jurisdictional error which cannot be waived.
When, as here, the parties do not consent to a reference, the authority of the
trial court to direct a special reference is limited to particular issues. The trial
court has no power to refer issues other than those explicitly specified by
statute.. ..
Id. at 772-73 (citations omitted). As the court also pointed out, the case did not involve
the appointment of a court commissioner. Id. at 772 n.9. Nor did it involve the court's
power, upon agreement by the parties, to order a reference to try "any or all of the
issues in an action or proceeding, whether or fact or of law." Id. at 773 n.13.
(Reversal was also granted in Ruisi v. Thieriot on a second issue as to which the trial
court accepted a recommendation from Dr. Lee, who had testified that it would harm
an 8-year-old boy's development to move anywhere at all with his mother, even to a
nearby county. The child lived with his mother and saw his father on weekends. On
remand, in light of In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), which artic
ulated a new standard for relocation cases, the mother and child were permitted to
relocate to the East Coast. See generally, Carol S. Bruch & Janet M. Bowermaster, The
Relocation of Children and Custodial Parents: Public Policy, Past and Present, 30
Fam. L.Q. 245 (1996).)
62. California evidence law, for example, requires that judges recognize privileges
such as patient therapist confidentiality on the motion of any party or, indeed, sua
sponte, unless a specific exception applies. Cal. Evid. Code ? 916. Sullivan and
Kelly's suggestions that courts order parties to waive such confidentiality asks, at least
in the California context in which they practice, that judges violate their statutory duties.
Despite ease law emphasizing the legal distinction between consen

sual and nonconsensual orders, several authors in a recent symposium
(including one whose recommendation for a special master was over
turned in the controlling case law) endorse Sullivan and Kelly's rec
ommendations.63 It is, however, unlikely that California's appellate
courts would ignore the distinction between judicial coercion and vol
untary agreements. The failure of these leading forensic specialists to
address this issue leaves unclear whether they do not understand the
distinction, or whether it is simply unimportant to them. In either case,
the possibility that quasi-judicial decisions might be entered by those
who do not find such distinctions dispositive is troubling at best.
Even if they were lawful, the authors concede that their proposed
remedies are extremely costly.64 Further, they provide no reasonable
assurance that these recommendations will either serve the child's in
terests65 or even improve the situation that would exist without judicial
intervention.66 As Sullivan and Kelly acknowledge,
Contrary to what is often asserted by child custody experts and parental
alienation advocacy groups, there is little empirical research evidence to
support any specific intervention, such as changing custody, in the severe,
chronic cases. Furthermore, there is no empirical data that indicates whether
entrenched alienation and total permanent rejection of a biological parent
has long-term deleterious effects on children's psychological develop
ment. ... Similarly, there is clinical support but no empirical research dem
onstrating that by letting go of the relationship, the rejected parent and
child will at some later time reconcile and restore the relationship.67
As Johnston puts it, "The long-term outcomes [of therapeutic work

with alienated children and their families] are a matter of conjecture
and currently unknown."68
63. See, e.g., S. Margaret Lee & Nancy W. Olesen, Assessing for Alienation in
Child Custody and Access Evaluations, 39 Fam. Ct. Rev. 282, 295-96 (2001) (Dr.
Lee was the expert who recommended the appointment of a special master in Ruisi).
See also note 61 supra.
64. See, e.g., references to parties' abilities to pay in Johnston et al., supra note 56,
at 330-31; Sullivan & Kelly, supra note 56, at 300, 311 (concerning cases in which
the family's needs far exceed available resources), 314 (listing the special master,
child's therapist, parents' therapists, co-parent counselor, parents' attorneys, and child's
attorney or guardian ad litem as potential "collaborative team" members). Sullivan
and Kelly repeatedly recommend orders splitting all uninsured costs equally between
the parties; this recommendation is likely to cause serious hardship for the lower
earning parent, and it is puzzling that they do not account for that difficulty.
65. Sullivan & Kelly, supra note 56, at 309: "[S]anctions [of an uncooperative
parent] that involve the child or custody (sometimes as extreme as hospitalization or
incarceration) are rarely based on the best interests of the child."
66. See notes 68-77 infra and accompanying text.
67. Sullivan & Kelly, supra note 56, at 313-34.
68. Johnston et al., supra note 56, at 329.
As this discussion suggests, these authors share unexamined as

sumptions about the roles of courts and mental health professionals in
inter-parental child custody disputes.69 They employ a medical model,
one that assumes that all serious interpersonal difficulties can and
should be remedied by mental health interventions. As a consequence,
they ask courts to order parties who are neither abusive nor neglectful
to employ and cooperate with intrusive, costly teams of professionals,
even when there is no assurance that improvement will be achieved
before the family's resources are exhausted or that the results will be
appreciably better than what is likely to occur without intervention.
Their belief that such intervention is appropriate may spring in part
from the shift to the best-interests-of-the-child custody standard and
from enhanced roles for noncustodial parents. Each of these well
intended developments has brought with it increased litigiousness in
child custody cases and an expanded role for mediators and evaluators.
Parents who were once assumed or even presumed to be the proper
custodians for their children (and to be capable of making sound de
cisions for them) are now subject to close monitoring and to parenting
orders that require extensive cooperation and contact between a child's
parents. This, in turn, has extended custody mediation and evaluations
to increasingly less-troubled and less-affluent families. The incremental
nature of these changes, however, has masked the degree to which post
divorce or post-separation parenting is treated more intrusively than
parenting in other settings.
Although parental separation may, of course, cause or exacerbate
intra-familial difficulties, the degree to which these difficulties justify
public intervention is a question of policy and law. Some difficulties,
although extremely unfortunate, are appropriately left to families and
individuals to address as a private matter, if at all. When a parent dies,
for example, no current family law doctrine imposes grief counseling
on a minor child or surviving spouse absent behavior that provides an
independent basis for coercive intervention (such as those imposed by
laws regulating neglect, abuse, and criminal behavior). There is reason
to question whether a different response is justified when emotional
difficulties occur instead in the context of separation or divorce. The
69. The works reviewed here from the Family Court Review July 2001 symposium
and a recent friend-of-the court brief indicate that many mental health professionals
hope to do far more than counsel parties. They seek quasi-judicial roles that will au
thorize them to prescribe the details of life for many parents and children. Most trou
bling of all is that they wish to do so in a framework that lacks due process projections
such as a record, evidentiary privileges, and full access to the courts. See Amici Curiae
Brief, supra note 37.
presence of two parents with differing desires is relevant, of course, but

perhaps to a far lesser degree than current practice suggests.
Indeed, restraint of this sort is recommended for the custody context
in the report of a twenty-five-year follow-up to a pioneering study of
131 children of divorcing California families. The original work, Sur
viving the Breakup70 revealed differences in children's responses to
their parents' separation that reflected the children's developmental
stages. The authors, Drs. Judith Wallerstein and Joan Kelly, noted dis
tinctive, angry behavior by children aged nine to twelve, who often
placed blame on the parent they believed caused the divorce and formed
alignments with the parent they deemed innocent.71 Gardner's reliance
on this work demonstrates mistaken assumptions about the incidence,72
causes and consequences of such parent-child alignments, and Gardner
has hence made inappropriate recommendations concerning responses
to them. It appears that the proponents of PA may have overreacted as
well.
Most dramatically, Wallerstein reveals that these children's align
ments were transient, with every child later abandoning his or her harsh
position, mostly within one or two years and all before the age of
eighteen.73 She reports that the children remained with their primary
caregivers throughout, yet were profusely apologetic to the parents they
had previously treated so badly. This is dramatically different from
Gardner's untested prediction that, absent immediate and dramatic in
tervention, the disfavored parent may well be permanently cut out of
the child's life. As Wallerstein reports the chronology,
In these situations [which involved one-fifth of the children in the study],
the child is usually a preadolescent or young adolescent and the targeted
parent is the one who sought the divorce.... The child... seeks to restore
the family or help the sorrowful parent_The mischief wrought by
presumably well-bred children was astonishing....
70. Wallerstein & Kelly, supra note 10.

71. Id. at 74-75:
The single feeling that most clearly distinguished this group from the younger
children was a fully conscious, intense anger... . Approximately half of the
children ... were angry at their mothers, the other half at their fathers, and a
goodly number were angry at both. In the main children were angry at the parent
whom they blamed for the divorce.
72. Gardner has suggested that PAS may be present, albeit in varying severity, in
perhaps 40% to 90% of all contested custody cases. Note 4 supra and accompanying
text. Wallerstein and Kelly's 20% overall figure deals with alliances rather than PAS
and largely reflects the subset of 9- to 12-year olds in a sample of divorcing couples,
not all of whom were disputing custody. They note that the anger and alignments of
this age group distinguish it from other age ranges.
73. Telephone conversation with Dr. Judith Wallerstein, April 10, 2001.
In following these alliances over the years, I find that the vast majority
are short-lived and can even boomerang. Children ... soon become bored
or ashamed of their mischief. Not one alliance lasted through adolescence
and most crumbled within a year or two_[M]ost children find their
way back to age-appropriate activities as they enter adolescence_With
time they are likely to turn against the parent who encouraged them to
misbehave_74
In what seems a thinly veiled reference to those who advocate Gard

ner's PAS theory, she concludes,
There is great advantage in allowing natural maturation to take its

course and to avoid overzealous intervention to break these alliances,
which are usually strengthened by efforts to separate the allies. In this,
the alliance may be akin to a moderate case of flu that mobilizes the
immune system and generates antibodies. It is not a fulminant cancer
requiring radical surgery or limb amputation, especially by poorly trained
surgeons.75
Wallerstein's concern about overzealous intervention, although au

thored in the context of custody transfers, seems equally applicable to
the broad range of coercive interventions proposed only a year later by
Johnston, Kelly, Sullivan, and their co-authors.
Johnston's work is less easily reconciled. In writing about the ap
parently intractable cases she observed in her studies of high-conflict
custody disputes, she initially went further than Wallerstein in expressly
criticizing Gardner's recommendations:
It has been our experience that forcibly removing ... children from the
aligned parent and placing them in the custody of the rejected parent, as
recommended by Gardner (1987), is a misguided resolution; it is likely
to be not only ineffective but actually punitive and harmful because it
usually intensifies the problem.76
Indeed, Johnston questioned whether children should even be asked to

visit the rejected parent in such hostile circumstances. Noting that the
literature did not clarify the circumstances under which visitation bene
fits children, she concluded,
Despite the fact that mental health professionals are recommending and
courts are ordering visitation arrangements for thousands of children
daily, there is yet a meager knowledge base to justify their decisions.77
74. Wallerstein, Lewis & Blakeslee, supra note 10, at 115-16.

75. Id. at 116-17.
76. Johnston, Children Who Refuse Visits, supra note 10, at 132.
77. Id.
In more recent publications, Johnston points out that "profound

alienation ... most often occurs in high-conflict custody disputes [and]
is an infrequent occurrence among the larger population of divorcing
children."78 She also recommends against frequent transitions between
parents if children show continued stress reactions to them.79 Her points
are well taken.80 Given these insights, however, it is puzzling that John
ston expressly endorses many coercive aspects of Sullivan and Kelly's
legal framework.81 Until she provides further clarification, Johnston's
apparent support for forced contact between the members of high
conflict families should be construed narrowly, given her many publi
cations questioning the wisdom of or need for such approaches.
The PAS debacle and the troubling recent PA recommendations make
clear that the time has come for deep thinking about realistic family
law goals. Children ought not to be asked to function under circum
stances that would challenge or overwhelm even the strongest adults.82
A child's chance for healthy development requires that parents, judges,
and mental health professionals face the realities of the child's situation.
This includes a realistic understanding of the limitations of dispute res
olution techniques, therapy, and legal compulsion in high-conflict cases.
Overly ambitious efforts with only small chances of success should be
shunned in favor of reducing the child's emotional burdens, respecting
the child's fears, and enhancing the child's emotional stability.
V. Recommendations and Conclusion

Children whose parents do not agree or cooperate concerning their
care are placed in the middle of loyalty conflicts that can only stress
78. Kelly & Johnston, The Alienated Child, supra note 55, at 254.
79. Janet R. Johnston, High-Conflict and Violent Parents in Family
Court: Findings on Children's Adjustment, and Proposed Guidelines for the
Resolution of Custody and Visitation Disputes, Access /Visitation: General
Principles No. 2 & n.2, at http://www.courtinfo.ca.gov/programs/cfcc/resources/
publications%20folder/hcvpfcs.pdf.
80. See generally Carol S. Bruch, The Effects of Ideology and Mediation on Child
Custody Law and Children's Weil-Being in the United States, 2 Int'l J.L. & Fam. 106
(1988); Carol S. Bruch, Taking Ourselves Seriously Enough to be Cautious: A Response
to Hugh Mclsaac, 5 Int'l J.L.& Fam. 82 (1991); Bruch & Bowermaster, supra note
61, at 262-69.
81. A case in point is Sullivan and Kelly's recommended order in high-conflict
cases that would literally require children to pass through a no-man's land each time
they leave or return from a visit. Sullivan and Kelly, who display helpful insight into
the dynamics of alienation cases, are far less convincing when they suggest legal re
sponses. See notes 58-69 supra and accompanying text.
82. Kelly and Johnston suggest, for example, that children who evidence PA may
have already endured unbearable pressures. Kelly & Johnston, The Alienated Child,
supra note 55, at 255.
and sometimes break them.83 We do not yet know enough about how
children develop loyalties and antipathies or resolve them as they ma
ture, whether in intact or divided households. Until we do, caution
should guide therapists and courts. A growing body of research docu
ments the harsh and sometimes violent world that a large percentage
of children in high-conflict custody disputes seeks to escape.
PAS as developed and purveyed by Richard Gardner has neither a
logical nor a scientific basis. It is rejected by responsible social scien
tists and lacks solid grounding in psychological theory or research. PA,
although more refined in its understanding of child-parent difficulties,
entails intrusive, coercive, unsubstantiated remedies of its own. Law
yers, judges, and mental health professionals who deal with child cus
tody issues should think carefully and respond judiciously when claims
based on either theory are advanced.
More generally, far greater interdisciplinary training and competence
in scientific methodology are needed. These should be brought to bear
whenever a new assertion is made that, if accepted, will shape the
interpretation or application of family law principles (for example, the
concept of a child's best interest). Although the use of expert testimony
is often useful, decision-makers need to do their homework rather than
rely uncritically on experts' views. This is particularly true in fields
such as psychology and psychiatry, where even experts have a wide
range of differing views and professionals, whether by accident or de
sign, sometimes offer opinions beyond their expertise. Lawyers and
judges are trained to ask the hard questions, and that skill should be
employed here.
The first question is whether scientific sufficiency has been indicated
by respected professional vetting, for example, inclusion in the Amer
ican Psychiatric Association's DSM-IV84 or the World Health Orga
83. The author of this article first learned of PAS from a psychologist who was
called for assistance when an 8-year-old girl became suicidal while institutionalized.
The child had been totally cut off from her mother by a court that followed the rec
ommendation of a custody evaluator who applies Gardner's principles rigorously. This
evaluator and his partner continue to apply Gardner's principles fully, even in the face
of serious abuse concerns, although now referring to "a parental alienation matter"
rather than PAS, according to investigative reporter Karen Winner, who was commis
sioned by a parents' organization to investigate family law practices in the Sacramento,
California courts. See Winner, supra note 22. Psychologist Vivienne Roseby of the
Judith Wallerstein Center for the Family in Transition in Corte Madera, California
reports that she and her colleagues have confronted similar difficulties with PAS
inspired custody transfers, including a case in which a 12-year-old boy died when he
hanged himself on the day his custody was to be transferred. Telephone conversation
with Dr. Vivienne Roseby, May 6, 2001, in Davis, California.
84. American Psychiatric Association, supra note 11.
nization's ICD-10. Where no such imprimatur exists, one must ask

whether approval has been sought and denied or whether submission
would be premature. Insights that are too new, or for which no estab
lished gold standard exists, may nonetheless be valuable,86 but their
probity and limitations should be clearly understood. This can be ac
complished by inquiries into the sample (if any) on which the theory
is based, the methodology and assumptions affecting the collection of
data, how conclusions have been drawn from the data, the likelihood
that fair extrapolations can be drawn, the degree to which assertions
are internally consistent and compatible with established knowledge,
and the balance of potential benefits and harms if the insight later
proves unsound.87
The challenge is to bring professional skills and standards to the task:
an unbiased mind, healthy skepticism, rigorous thinking, and sound
policy analysis. But just as the responsibility is great, so too is the
opportunity. As the noted legal philosopher Jerome Frank put it,
85. World Health Organization, supra note 11.

86. An outstanding example is the series of publications by Wallerstein and her
colleagues over the course of what developed into a 25-year project. Initially designed
as exploratory research to help define questions for later studies, the sample (which
was neither randomly selected nor scientifically controlled) has nevertheless provided
major advances in knowledge. Many of Wallerstein and Kelly's initial clinical insights
(for example, that children respond to their parents' divorce differently according to
their developmental stage) brought to light connections that had been uniformly over
looked, but seemed obvious once pointed out. Subsequent, controlled studies by others
have borne out that insight, while other suggestions have required refinement or re
trenchment in the years since (such as their early suggestion concerning joint physical
custody). Compare, e.g., Carol S. Bruch, Parenting At and After Divorce: A Search
for New Models, 79 Mich. L. Rev. 708, 708-10 (1981) (discussing methodology)
and 722-25 (questioning joint custody conclusion) with Wallerstein, Lewis &
Blakeslee, supra note 10, at 212-19 (significantly narrowing and refining position
on joint custody).
87. In its decision refusing to hear testimony from Gardner on PAS, the Fortin
court indicated that it was being guided in part by a concurring opinion of Chief Judge
Kaye of the New York Court of Appeal in a case examining the admissibility of DNA
evidence. People v. Fortin, 706 N.Y.S.2d 611, 614 (N.Y. Crim. Ct. 2000). The cited
language in Judge Kaye's opinion reads, "It is not for a court to take pioneering risks
on promising new scientific techniques, because premature admission both prejudices
litigants and short-circuits debate necessary to determination of the accuracy of a tech
nique." People v. Wesley, 633 N.E.2d 451, 462 n.4 (N.Y. 1994). See also Chambers
v. Chambers, No. CA99-688, 2000 Ark. App. LEXIS 476 (Ark. Ct. App. June 21,
2000): On de novo review, the appellate court affirmed the trial court's refusal to force
visitation and be prepared to transfer custody, an order the father's expert witness said
he fully expected the court would have to implement because the child would refuse
to comply. The expert, an adolescent and child psychiatrist, testified that the steps he
was recommending "will almost certainly be traumatic and painful [for the child]."
The appellate court concluded that "even [the father's expert] swore that the result [the
father] sought posed a substantial risk of damage to the child," and held that "[t]he
chancellor correctly refused to inflict the threat of that harm."
Some wishes, of course, no matter how hard we work on them, never

come true. But it is always open to us to substitute for neurotic "wishful
thinking" what Neurath happily called "thinkful wishing." Let us thus
use the wish that the administration of justice may be improved. If we
do, we will.... admit that [trial courts'] fact-finding frequently results
in grave injustices. We will then seek to discover in what ways that job
can be done better. I surmise that, although such efforts will fall far short
of perfection, they will, by no means, go wholly unrewarded.88
88. Jerome Frank, Courts on Trial: Myth and Reality in American Justice
79 (1949).

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Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody

II. PAS and Its Critics

* ? 2001 by Carol S. Bruch. This article incorporates, with permission, materials

he believed involved false allegations of child sexual abuse.1 The es

1. Richard A. Gardner, Recent Trends in Divorce and Custody Litigation, Academy

B. The Setting in Which PAS Is Said to Occur

diversionary maneuver." Publications and lectures that he promotes as assisting those

C. The Flaws in PAS Theory

disorders occur primarily in young children is also contrary to the lit

20. In 1993 Professor Janet Johnston, a specialist in high-conflict custody disputes

III. The Merchandising of PAS in Child

tion). See also Christine Lehmann, Controversial Syndrome Arises in Child-Custody

full professor at a prestigious university.26 Because this aura of ex

fessionals. Finally, he often inaccurately represents or suggests that

law and by other prominent professionals. Dr. Paul J. Fink, a past

45. Williams, supra note 26, at 275-78.

IV. Improved Science but More Bad Policy

These professionals distinguish themselves sharply from Gardner

Specifically disapproved is Gardner's recommendation that children,

Some of these specific proposals are clearly contrary to current law.

Despite ease law emphasizing the legal distinction between consen

As Johnston puts it, "The long-term outcomes [of therapeutic work

As this discussion suggests, these authors share unexamined as

presence of two parents with differing desires is relevant, of course, but

70. Wallerstein & Kelly, supra note 10.

In what seems a thinly veiled reference to those who advocate Gard

There is great advantage in allowing natural maturation to take its

Wallerstein's concern about overzealous intervention, although au

Indeed, Johnston questioned whether children should even be asked to

74. Wallerstein, Lewis & Blakeslee, supra note 10, at 115-16.

In more recent publications, Johnston points out that "profound

V. Recommendations and Conclusion

nization's ICD-10. Where no such imprimatur exists, one must ask

85. World Health Organization, supra note 11.

Some wishes, of course, no matter how hard we work on them, never

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