Category: Uncategorized

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 because each 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).

In this chapter, we at PsychLaw.net briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  See Chapter 2 for a more complete explanation of the evaluation process and Chapters 3, 4, and 5 for a discussion of the treatment of mild, moderate, and severe cases of PA. For additional information regarding reunification therapy, see Chapter 7.  Mental health and legal professionals also try to influence courts and legislatures in shaping social policy, which is discussed in Chapter 9.

Baker, A. J. L., Jaffee, P. G., Bernet, W., & Johnston, J. R. (2011).  Brief report on parental alienation survey. The Association of Family and Conciliation Courts eNEWS 30(2).  

Bernet W. (1983). The therapist’s role in child custody disputes. Journal of Child Psychiatry 22:180-183.  

Bernet, W. (2010). Parental alienation, DSM-5, and ICD-11. Springfield, IL: Charles C Thomas Publisher. 

Bruch, C. (2001). Parental alienation syndrome and parental alienation: Getting it wrong in child custody. Family Law Quarterly, 35, 527. 

Bone, J. M. & Sauber, S. R. (2012). The essential role of the mental health consultant in cases of parental alienation.  In A. J. L. Baker & S. R. Sauber (Eds.), Working with alienated children and families: A clinical guidebook.  New York: Routledge. 

Ellis, Elizabeth M. (2000). Divorce wars: Interventions with families in conflict. Washington, DC: American Psychological Association.

Faller, K. (1998). The parental alienation syndrome: What is it and what data support it? Child Maltreatment, 3(2), 100-15. 

Faller, K. (2000). Child maltreatment and endangerment in the context of divorce. University of Arkansas Little Rock Law Review, 22, 429-444. 

Faller, K., & DeVoe, E. (1995). Allegations of sexual abuse in divorce. Journal of Child Sexual Abuse, 4(4), 1-25. 

• 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.

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

Hoult, J. (2006).  The evidentiary admissibility of parental alienation syndrome: Science, law and policy.  Children’s Legal Rights Journal 26 (1): 1-61. 

Kirkland, K., & Kirkland, K. E. (2006). Risk Management and Aspirational Ethics for Parenting Coordinators. Journal of Child Custody, 3(2), 23-43. 

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

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

Sullivan, M. J. (2004). Ethical, Legal, and Professional Practice Issues Involved in Acting as a Psychologist Parent Coordinator in Child Custody Cases. Family Court Review, 42, 576-582. 

 

 

 

 

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).

1. [2] John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 Or. 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.

1. [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).

Here we at PsychLaw.net have looked at three more cases involving mother as the target parent.

1. v. J., 2010 – Ontario –

In this case, the parties were married in 1991. It was a first marriage for both. They had two boys C age 15 and M age 9 at the time of trial. Both parents agreed that C suffered from attention deficit hyperactivity disorder (ADHD) and obsessive compulsive disorder (OCD) and that M had a learning disability. Both parents remained in home where court testimony indicated the father sabotaged mother’s disciplining of the children; broke into mother’s room; called mother names; swore at and threatened mother; turned off power and cable; walked around in a towel and exposed himself.  Records also documented that the father spoke to his own mother about blowing up the house.  There was evidence of self-mutilation in the oldest child C (i.e. carving his initials into his skin). 

Court records indicated that the father had a personality disorder and was modeling unhealthy behaviors that had influenced the children.  Extended exposure to these behaviors in the father was seen as having long-term negative impact.  Court records document that the experts thought that tasking father with day-to-day parenting would stress him and could trigger an explosive reaction.

The court found that the father demonstrated many alienating behaviors.  He called mother names in front of the boys and they then mimicked him; and he undermined mother’s efforts to impose bedtimes and discipline.  Further, the court found that the father tried to paint himself as the victim in his voice mail messages and in his own diary entries.  The court determined that the father undermined the mother’s attempts to discipline C when he assaulted her and the father sabotaged mother’s summer access as well. He allowed C to evade schoolwork by permitting him to come to his house. He did not follow up with the schools to verify mother’s claims that C was simply avoiding work.  Result, custody to target parent mother. 

1. (I.M.M.) v. S. (D.J.), 2010 – British Columbia –

This case involved a serious and ongoing lack of cooperation and active parental alienation.  This lack of cooperation by the father was demonstrated by difficulties in planning for the scheduling of vacations and extra-curricular activities for the children during the school year and many other alienating and undercutting behaviors as well. 

 

Court assessor Brown had 30 years of experience according to the court and was a highly experienced, professional registered clinical counselor. Ms. Brown reported to the court that this couple could not work cooperatively together to parent the children and that the father would continue to behave so as to alienate his sons from their mother. Ms. Brown strongly recommended that the father participate in counseling to help him deal with his anger in relation to the mother. The court noted that assessor Brown saw aspects of the father’s behavior as both an active and an obsessive alienator.  She determined that he was strongly influencing his sons to his way of thinking by portraying himself as a “victim of their mother’s greed.”

The court determined it was clear on the evidence that the father manifested entrenched behaviors that were likely to seriously damage or even destroy the children’s relationship with the mother. The court determined that despite the various difficulties mother encountered in trying to parent with the father, she persisted in a calm and committed way, as she firmly believed it was in the children’s best interests for them to have a relationship with their father. In contrast, the father told the children that upon reaching the age of 12 years, they may choose which parent they wish to reside with and continue to undercut the mother. Further, the father refused to pay an outstanding order concerning his share of special expenses, and did not move with any dispatch to comply with the orders of the court regarding property division. The trial judge cited significant case precedent and vested custody in the target parent mother.

1. v. S., 2010 – Ontario –

This case found experts describing the consequences of parental alienation in stark terms. Court records document that Jacqueline Vanbetlehem, MSW, and Ted Horowitz (Ph.D. in social work) agreed that the children had been heavily influenced by the father to have unrealistic and unjustified negative feelings toward the mother. Despite the father’s repeated attempts to get the experts to agree that the children were justified or at least reasonable in rejecting the mother, both experts regarded the father’s active alienation as by far the more pressing problem. Both witnesses described the long-term serious effects of unresolved alienation in children when they become adults.  According to the two experts in this case, alienated children have significantly higher rates of mental and emotional problems, substance abuse or addiction and marriage or relationship breakdown than children who have a relationship with both their parents.  

The trial judge offered that it was interesting to hear the father’s submissions, which bore out what the mother and the two expert witnesses had said. Barely a minute into his testimony wrote the trial judge, the father veered sharply from addressing what arrangements would be in the best interests of the boys to talk extensively, about how the mother had betrayed him and the family by acting independently as soon as she began earning a significant income.  The father insisted that the mother began neglecting him and the children, abandoning them and forming a new relationship, all in the interest of money. His bitterness was palpable, wrote the court. He accused her of stealing the wealth of the family away from him, in terms similar to those the children repeated to the mother and the two expert witnesses. He also questioned the mother’s willingness and even her intellectual capacity to recognize the needs of the children and make any changes necessary to meet them.  After hearing all of the testimony and reviewing the reports of the experts, the court ruled that both children would reside with the target parent mother.  The father’s access to each of the children was suspended.

Matter of P., 1995 – Tennessee

In this case we at PsychLaw.net researched a child who was born out of wedlock during a time when the parties were living together. The father originally denied paternity but the child was ultimately legitimated, at the age of two, after results of blood tests. The conflicts and discord in the case were longstanding and, despite the efforts of many participants, showed very few, if any, signs of improvement. 

In 1991, the mother was undergoing physical, emotional, and financial difficulties. In light of these problems, she agreed that the father could have custody of their son and a consent order was entered.  Father’s refusal to enter counseling, his continued frustration of the mother’s visitation, and intimidation of the mother, CASA, and school personnel brought about a re-evaluation. Father then based his claim of better comparative fitness on the fact that mother was a lesbian and lived with her lesbian partner.  The trial judge believed that underlying father’s behavior was his hostility at mother’s admission that she was a lesbian. The issue was not formally raised until just before the trial and there was never any allegation of inappropriate conduct or behavior by mother or her partner.  On the contrary, the Center for Children in Crisis found mother’s partner to be the more mature of the adults in the boy’s life and the father of the mother’s two other children, testified that mother was a good mother, his children were well adjusted and that his relationship with his children was quite good.

 The record revealed that the alienating father here was unable to see how his behavior affected his son. He refused to address the child’s difficulties in school, lack of peer friendships; he demonstrated an unwillingness to follow court orders regarding visitations, counseling and continued to make negative commentary regarding the mother in a manner that caused the child to choose sides.  The reports of CASA and the guardian ad litem contained factual details of the father’s personality and behavioral disorder as diagnosed by Center for Children in Crisis. Father’s only affirmative response to these issues was an attempt to leave the jurisdiction of the court.  The record demonstrated that the mother made considerable progress in improving her physical and mental condition and regained the ability to care for her son. The court ruled that there were changed circumstances that warranted a revision in custody arrangements and the appellate court affirmed a change to target parent mother.

1. v. M., 2001 – Vermont

 

In this case, the Supreme Court of Vermont dealt with a cultural clash over parental alienation and religion.   In this case, father and mother had two daughters together.  At the time of their divorce in 1995, father and mother stipulated to joint parental rights and responsibilities for the girls. There was extensive cooperation on issues regarding the girls immediately following the divorce, including shared access to one another’s homes, the exchange and transport of the children’s belongings between the two homes, frequent and open communication between mother and father without limitation, joint parent-teacher meetings, and flexibility about time and contact with each parent. There was a significant change for the worse starting in the latter half of 1996.  By June 1999, mother moved to modify the parties’ original divorce decree, seeking both sole legal and sole physical rights and responsibilities for the children. The mother told the court that the changes included father prohibiting the girls from contacting her while they were in his care, prohibiting her from entering his home, and refusing to communicate with her except in writing. Mother testified to symptoms of anxiety in both girls including nightmares, stomach aches, and a constricted throat; the younger girl being very clingy and sucking her thumb.  The mother explained the changes as coincidental to the father’s deepening involvement with the Jehovah’s Witness religion. 

The father argued that the portion of the court’s order providing that he not bring the girls to any Jehovah’s Witness religious gatherings or attempt to raise the girls as Jehovah’s Witnesses was unconstitutional. The record and legal argument on this point was extensive.  The Vermont Supreme Court reasoned that their trial courts may take into account a parent’s religious practices when making a custodial determination if there is evidence that the practices have a direct and negative impact on a child’s physical or mental health. In this case, noted the court, the mother presented extensive evidence that the conflicting practices and rules in each household that stemmed from her and the father’s disparate religious beliefs were causing the children to experience extreme confusion and anxiety.

The trial court made specific findings regarding the negative effects on the children of mother’s and father’s differing sets of beliefs, including the children’s feelings of disloyalty, guilt, confusion, and anxiety. Thus, not only was evidence of harm presented, but the trial court made specific findings that the conflicting beliefs and practices in each household were having a palpable negative impact on the children, and would continue to do so.  The Vermont Supreme Court upheld the trial court’s prohibition.  Additionally, there was extensive evidence in the record of father attempting to alienate the girls from mother that independently supported the court’s disposition in the case. Father refused to communicate with her in person on repeated occasions in front of the children.  There was testimony about the father refusing to answer the door for her, refusing to roll down the car window while she attempted to talk to him at an exchange of the children, communicating to her through the stepmother while he stood by silently during exchanges, and hanging up the phone on her.  For the reasons cited, custody was awarded to the target parent mother. 

Matter of P., 1995 – Tennessee

In this case we at PsychLaw.net researched a child who was born out of wedlock during a time when the parties were living together. The father originally denied paternity but the child was ultimately legitimated, at the age of two, after results of blood tests. The conflicts and discord in the case were longstanding and, despite the efforts of many participants, showed very few, if any, signs of improvement. 

In 1991, the mother was undergoing physical, emotional, and financial difficulties. In light of these problems, she agreed that the father could have custody of their son and a consent order was entered.  Father’s refusal to enter counseling, his continued frustration of the mother’s visitation, and intimidation of the mother, CASA, and school personnel brought about a re-evaluation. Father then based his claim of better comparative fitness on the fact that mother was a lesbian and lived with her lesbian partner.  The trial judge believed that underlying father’s behavior was his hostility at mother’s admission that she was a lesbian. The issue was not formally raised until just before the trial and there was never any allegation of inappropriate conduct or behavior by mother or her partner.  On the contrary, the Center for Children in Crisis found mother’s partner to be the more mature of the adults in the boy’s life and the father of the mother’s two other children, testified that mother was a good mother, his children were well adjusted and that his relationship with his children was quite good.

 The record revealed that the alienating father here was unable to see how his behavior affected his son. He refused to address the child’s difficulties in school, lack of peer friendships; he demonstrated an unwillingness to follow court orders regarding visitations, counseling and continued to make negative commentary regarding the mother in a manner that caused the child to choose sides.  The reports of CASA and the guardian ad litem contained factual details of the father’s personality and behavioral disorder as diagnosed by Center for Children in Crisis. Father’s only affirmative response to these issues was an attempt to leave the jurisdiction of the court.  The record demonstrated that the mother made considerable progress in improving her physical and mental condition and regained the ability to care for her son. The court ruled that there were changed circumstances that warranted a revision in custody arrangements and the appellate court affirmed a change to target parent mother.

1. v. M., 2001 – Vermont

 

In this case, the Supreme Court of Vermont dealt with a cultural clash over parental alienation and religion.   In this case, father and mother had two daughters together.  At the time of their divorce in 1995, father and mother stipulated to joint parental rights and responsibilities for the girls. There was extensive cooperation on issues regarding the girls immediately following the divorce, including shared access to one another’s homes, the exchange and transport of the children’s belongings between the two homes, frequent and open communication between mother and father without limitation, joint parent-teacher meetings, and flexibility about time and contact with each parent. There was a significant change for the worse starting in the latter half of 1996.  By June 1999, mother moved to modify the parties’ original divorce decree, seeking both sole legal and sole physical rights and responsibilities for the children. The mother told the court that the changes included father prohibiting the girls from contacting her while they were in his care, prohibiting her from entering his home, and refusing to communicate with her except in writing. Mother testified to symptoms of anxiety in both girls including nightmares, stomach aches, and a constricted throat; the younger girl being very clingy and sucking her thumb.  The mother explained the changes as coincidental to the father’s deepening involvement with the Jehovah’s Witness religion. 

The father argued that the portion of the court’s order providing that he not bring the girls to any Jehovah’s Witness religious gatherings or attempt to raise the girls as Jehovah’s Witnesses was unconstitutional. The record and legal argument on this point was extensive.  The Vermont Supreme Court reasoned that their trial courts may take into account a parent’s religious practices when making a custodial determination if there is evidence that the practices have a direct and negative impact on a child’s physical or mental health. In this case, noted the court, the mother presented extensive evidence that the conflicting practices and rules in each household that stemmed from her and the father’s disparate religious beliefs were causing the children to experience extreme confusion and anxiety.

The trial court made specific findings regarding the negative effects on the children of mother’s and father’s differing sets of beliefs, including the children’s feelings of disloyalty, guilt, confusion, and anxiety. Thus, not only was evidence of harm presented, but the trial court made specific findings that the conflicting beliefs and practices in each household were having a palpable negative impact on the children, and would continue to do so.  The Vermont Supreme Court upheld the trial court’s prohibition.  Additionally, there was extensive evidence in the record of father attempting to alienate the girls from mother that independently supported the court’s disposition in the case. Father refused to communicate with her in person on repeated occasions in front of the children.  There was testimony about the father refusing to answer the door for her, refusing to roll down the car window while she attempted to talk to him at an exchange of the children, communicating to her through the stepmother while he stood by silently during exchanges, and hanging up the phone on her.  For the reasons cited, custody was awarded to the target parent mother. 

In the next few blogs we at PsychLaw.net will share selected cases from the US where the target parent was the mother.

 

In re M.K.T., – Pennsylvania

 

This was a 1993 Parental Alienation by foster mother case.  It began in the 1980s when Pennsylvania’s office of Children and Youth Services (CYS) and foster mother Myrna Hagan became involved with the family.  It seems that father held an M.B.A. and worked as a computer consultant. Mother was employed as a secretary. In 1989, K., then age sixteen, ran away from home and refused to return when apprehended by the police.  The girl alleged that she feared her father because he routinely used excessive physical discipline on her and her siblings. CYS personnel interviewed the children in their home. All three children expressed fear of their father and requested that they be removed from their home. There seemed to be no serious complaints about the mother.  The children were placed in shelter care pending a hearing. Father admitted to a CYS caseworker that he had used physical discipline in the form of paddling and slapping across the face. Explaining quite clearly that the complaint of CYS and their “expert” were “shallow and picayune,” the appellate court chastised their lower court judge saying that a review of the record in this case compelled only one conclusion.  The appellate panel insisted that the conclusion was so clear that they were puzzled how either the trial court or CYS could maintain a contrary position. Concerning the mother’s right to parent her children, the appellate panel apologized: “Unfortunately, the trial court lost sight of the goal.”

 

In this difficult case at least six behavioral scientists were involved over the “shallow and picayune” CYS process.  One handpicked psychologist for CYS, Dr. Neil Rosenblum, and five neutral experts: Dr. Susan Nathan; Dr. Donald Hazlett; Dr. Kenneth Stanko; Dr. Robert Saul and Dr. Anna Marie Breaux. To perfect their shallow process, CYS had Rosenblum meet each of the children alone once and each child in an interactional session with foster mother Myrna Hagan.  Rosenblum never met the parents but testified on behalf of CYS.  Dr. Robert Saul also testified after meeting with the children and foster mother. Saul expressed that he had concerns about the foster mother’s strong views concerning the return of the children to their parents and feared what the foster mother might communicate to the children.  Dr. Saul also stated that the foster mother’s views about the parents very possibly would have a detrimental effect on the goal of reunifying the family, and, given that the children had become attached to Hagan, they would be influenced by her even more. Clearly, between Hagan and the mother, Hagan was winning their hearts.

 

While Dr. Kenneth Stanko admitted that the father’s methods of discipline were detrimental to the children’s upbringing, he was consistent and emphatic in his belief that the parents had worked very hard at changing their behavior and ridding themselves of inappropriate ways of parenting. He stated that they read many books, both those given by him and those they obtained themselves. They underlined relevant portions and sought him out with questions. Dr. Stanko testified that the parents put this information to use in their parenting of a child who had moved back home without incident. Dr. Stanko emphasized that Hagan’s attitude was a serious problem to the stated goal of reunification. He testified that to a reasonable degree of medical certainty, placement of the children with Hagan was not conducive to reunification of the family.

 

Dr. Anna Marie Breaux spent twenty-one and one-quarter hours in direct evaluation with the family. Dr. Breaux testified that the parents exhibited a great degree of motivation to get the family reunited. The crux of the problem, according to Breaux, was the children’s belief that they had to choose between their foster mother and their mother. Dr. Breaux stated that Hagan was competitive with the parents rather than being neutral to the relationship with their children. Dr. Breaux testified that the children were being done a disservice by continued placement with foster mother Hagan. Dr. Breaux opined that this foster mother had explicitly and implicitly taken actions leading to the children’s alienation from their parents.

 

The only evidence that supported the conclusion that visitation with the parents posed a threat to the children still held by CYS was the testimony of Dr. Rosenblum for CYS at the hearing, and it was not competent evidence according to the appellate panel reviewing the matter.  The appellate court determined that the other expert testimony in the case was significant, both in quantity and quality. The record demonstrates that for over three years, every psychologist or psychiatrist who treated this family said the same thing: the parents acknowledged their wrongdoing, worked very hard to rectify it, and proved themselves in their care of the child who returned, but they were prevented from reunification with the other children due solely to the efforts of the foster mother and her influence over them. The appellate court chastised their trial judge and ruled that the order terminating visitation with the parents was reversed. They demanded their trial court hold an expedited hearing to determine whether the children may be returned forthwith to their parents’ home.

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

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

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

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

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

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

 

 

 

 

 

 

[1] Fed. R. Evid. 402.

[2] Fed. R. Evid. 403.

[3] Fed. R. Evid. 401.

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

[5] Fed. R. Evid. 701.