By: Sydney Koehler

Debunking “parental alienation”

“Parental alienation syndrome” may sound like a medical diagnosis, but it is decidedly not—at least, not according to the scientific community.[1] Dr. Richard Gardner’s theory of “parental alienation” has been discredited by medical experts and human rights advocates as an empirically unfounded “pseudo-concept” that reifies negative stereotypes about victims of domestic abuse and retraumatizes children.[2] Nonetheless, the concept remains alive and well in the family courtroom and continues to inform outcomes in contested custody disputes.

Gardner’s theory of parental alienation syndrome is akin to the similarly controversial theory of “false memory syndrome”[3] in that both theories function to discredit allegations of domestic and sexual violence.[4] Just as individuals experiencing false memory syndrome are said to have fabricated “pseudomemories” of childhood abuse,[5] children experiencing parental alienation syndrome are said to have been “programmed” and “brainwash[ed]” by their trusted parent (usually their mother) into being hostile toward or alleging abuse by their “alienated” parent (usually their father).[6] The theory of parental alienation is frequently raised in child custody disputes as a means for an ‘alienated’ parent to rebut or negate accusations of domestic or child abuse against them and to receive a favorable custodial outcome.[7]

 

The impacts of “parental alienation” allegations on custody determinations

While lacking in scientific basis, the theory of parental alienation persists, and in fact is thriving, as a legal fiction. When raised in custodial disputes, allegations of parental alienation disrupt the court’s balancing of the “best interests” of the child[8]—while a parent alleging domestic or child abuse by a co-parent theoretically tilts the scales of the best interest analysis in their own favor, a parent whose allegations of abuse are met with cross-allegations of parental alienation may see the scales even out or even tilt in favor of the alleged abuser.[9] Parents faced with allegations of abuse may accuse a co-parent of parental alienation to discredit, de-emphasize, or divert attention away from the abuse allegations the co-parent or the child has levied against them.[10] Abusers thus weaponize parental alienation allegations to present themselves as the victimized “friendly parent”[11] while painting the child’s trusted parent as an abuser and manipulator.[12]

When faced with a choice between assigning custody to an allegedly abusive father or to an allegedly alienating mother,[13] family courts grant custody to the allegedly abusive father at an alarming rate.[14] A father’s mere allegation of parental alienation, even if not credited by the court, results in a custody shift to the father in 50% of cases.[15] Even further, when courts do credit alienation allegations, they shift custody to the ‘alienated’ parent in over 95% of cases—even when accusations of domestic or child abuse have been raised against the alienated parent in the same proceeding.[16] Allegations of parental alienation have such a strong impact on custody determinations that fathers who are accused of abuse, including child sexual abuse, and who crossclaim alienation against the child’s mother are actually more likely to win their custody case than fathers who are not accused of abuse at all.[17]

The injection of parental alienation considerations into custodial disputes has disrupted the traditional best interests analysis by creating a presumption that a continued relationship with both parents is always in a child’s best interest—even when allegations of child abuse are in play.[18] This judicial preference for assigning custody to the “friendly” parent, rather than the safe or trusted parent, leads courts to issue custodial orders that subject children to additional harm for the sake of reunification with an ‘alienated,’ and often abusive, parent.[19]

Courts endanger children when they credit parental alienation claims when making custodial determinations. Since 2008, 139 children in the U.S. have been murdered by an abusive parent in “preventable” cases attributable, at least in part, to a court decision to grant the abusive parent continued access to the child.[20] In many more cases, custody orders influenced by parental alienation considerations expose children to other risks such as continued physical or sexual abuse by the ‘alienated’ parent, the emotional trauma of being isolated from the trusted parent, or being forced to undergo court-ordered “reunification treatment” with their abuser.[21]

 

Kayden’s Law

In March of 2022, the federal government amended the Violence Against Women Act (VAWA) to include the Keeping Children Safe from Violence Act (“Kayden’s Law”) which financially incentivizes states to enact legislation inhibiting courts’ consideration of parental alienation and reunification concerns when issuing custody orders.[22] The amendment is named after Kayden Mancuso, a seven-year-old who was murdered by her father in 2018 after he was granted unsupervised custody by a Pennsylvania family court despite Kayden’s mother having raised allegations of past abuse and violence during custody proceedings.[23]

Kayden’s Law offers increased grants under VAWA to states that pass legislation prohibiting court orders that remove a child from a trusted parent, or restrict a child’s contact with a trusted parent, “solely in order to improve a deficient relationship with the other parent.”[24] The amendment also addresses the adverse impacts of “reunification treatment” programs on children, prohibiting courts from ordering such interventions unless they meet requirements for safety and therapeutic value and are not “predicated on cutting off a child from a [trusted] parent.”[25] Since Kayden’s Law was passed in 2022, California[26] and Colorado[27] have enacted legislation to comply with its requirements and similar legislation is pending in Maryland,[28] New York,[29] Illinois,[30] and Pennsylvania.[31]

Importantly, Kayden’s Law offers a federal acknowledgement of the harm that results when courts prioritize considerations of parental alienation and reunification over children’s safety. Yet the amendment also represents a missed opportunity to take a hardline stance by prohibiting all considerations of parental alienation claims in custody disputes. According to the National Council of Juvenile and Family Court Judges, testimony about parental alienation should never be admissible in court because parental alienation syndrome is a “discredited ‘diagnosis’” that fails the multi-factor Daubert test for expert testimony, and allegations of parental alienation “inappropriately” modify the best interests analysis.[32]  Still, Kayden’s Law does not use the words “parental alienation” and makes only tangential references to the negative impacts of alienation claims on custodial “best interests” analyses.[33] The amendment prohibits the issuance of custody orders based “solely” on reunification or “improv[ing] a deficient relationship,” implying parental alienation remains a viable factor, though not a dispositive one, courts can consider in making custody determinations.[34] The California and Colorado enactments of Kayden’s Law are similarly vague.[35]

While imperfect, Kayden’s Law takes a vital step toward ensuring courts issue safety-focused, trauma-informed custodial determinations. State legislatures should enact their own versions of Kayden’s Law to meet this purpose. Even further, state legislatures should enact more vigorous versions of the act that explicitly foreclose judicial consideration of parental alienation allegations within custodial best interests analyses. Until then, the “pseudo-concept” of parental alienation will continue to be weaponized by abusers in custody matters “as a tool to continue their abuse and coercion and to undermine and discredit . . . allegations of domestic violence.”[36]

 

** Sydney Koehler is a staff member of JLI Vol. 42.

[1] Rep. on Custody, Violence Against Women and Violence Against Children of the Hum. Rts. Council on Its Fifty-Third Session, U.N. Doc. A/HRC/53/36, at 3 (2023) [hereinafter U.N. Report] (“[Parental alienation syndrome] has been dismissed by medical, psychiatric and psychological associations, and in 2020 it was removed from the International Classification of Diseases by the World Health Organization.”). Statement on Parental Alienation Syndrome, AM. PSYCH. ASS’N, https://www.apa.org/news/press/releases/2008/01/pas-syndrome (last visited Feb. 28, 2024) (noting a lack of data supporting parental alienation syndrome but declining to take an “official position” on the topic).

[2] U.N. Report at 6 (“Allegations of domestic violence are sidelined and delegitimized through invoking parental alienation.”).

[3] Richard A. Gardner, The Relationship Between the Parental Alienation Syndrome (PAS) and the False Memory Syndrome (FMS), 32 Am. J. Fam. Therapy 79 (2004).

[4] See generally U.N. Report.

[5] False memory syndrome, Encyclopedia Britannica, https://www.britannica.com/science/false-memory-syndrome. See also Gardner, supra note 3, at 83–84.

[6] Richard A. Gardner, Parental Alienation Syndrome vs. Parental Alienation: Which Diagnosis Should Evaluators Use in Child-Custody Disputes?, 30 Am. J. Fam. Therapy 93, 95 (2002).

[7] Joan S. Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation, 35 Law & Ineq. 311, 317–318 (2017) (“By re-framing a mother who seeks to protect her child from abuse as a pathological or vengeful liar who is severely ‘emotionally abusing’ her children by falsely teaching them to hate and fear their father, PA theory makes a self-described ‘protective parent’ persona non grata. The [parental alienation] label diverts courts’ attention away from the question of whether a father is abusive and replaces it with a focus on a supposedly lying or deluded mother or child.”).

[8] The factors courts may consider in evaluating a child’s “best interests” vary from state to state. For a general explanation of the “best interest” analysis, see Legal Information Institute, Best Interests of the Child, Cornell Law School, https://www.law.cornell.edu/wex/best_interests_of_the_child (last visited Feb. 28, 2024).

[9] See generally Meier & Dickson, supra note 7.

[10] Nat’l Council of Juv. and Fam. Ct. Judges, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide at 24 (State Justice Institute rev. ed. 2006) (indicating a family court should not entertain an allegation of parental alienation, which “inappropriately asks the court to assume that the children’s behaviors and attitudes toward the parent who claims to be ‘alienated’ have no grounding in reality”). See generally Rep. on Custody, Violence Against Women and Violence Against Children of the Hum. Rts. Council on Its Fifty-Third Session, U.N. Doc. A/HRC/53/36 (2023).

[11] “Friendly parent” provisions express judicial preference for a custodial parent that is likely to support the child’s continued relationship with the other parent. These provisions have been incorporated into the “best interests” custody analysis in many states: eighteen states currently include a “friendly parent” provision in their best interest factors with no exception for domestic violence, and an additional twenty-two states include “friendly parent” provisions that make an exception in cases of domestic violence. See Friendly Parent Provisions and Exceptions for Domestic Violence, Resource Center on Domestic Violence: Child Protection and Custody, https://rcdvcpc.org/state-custody-statutes-relevant-to-domestic-violence.html (last visited Feb. 28, 2024). See also Meier & Dickson, supra note 7, at 315 (“Court preferences for joint custody and the ‘friendly parent’ principle outweighed judicial consideration of abuse claims.”).

[12] Joan S. Meier, U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations: What Do the Data Show?, 42 J. Soc. Welfare & Fam. L. 92, 93 (2020) (noting that a parental alienation focus in family courts creates dangerous presumptions “that domestic violence professionals are too credulous, that many mothers’ abuse clams are actually false or exaggerated, and that abuse professionals do not grasp the reality and perniciousness of parental alienation”). See also Rep. on Custody, Violence Against Women and Violence Against Children of the Hum. Rts. Council on Its Fifty-Third Session, U.N. Doc. A/HRC/53/36 at 5 (2023) (“Mothers who oppose or seek to restrict contact or raise concerns are widely regarded by evaluators as obstructive or malicious, reflecting the pervasive pattern of blaming the mother.”).

[13] Allegations of parental alienation are most commonly made by fathers against mothers and are primarily employed in efforts to switch custody from mother to father. Allegations of parental alienation are also, notably, far more successful when made by fathers than by mothers: fathers whose parental alienation allegations are credited by the court are 4.3 times more likely than alleging mothers to receive favorable custody decisions. See Meier & Dickson, supra note 7, at 324.

[14] Meier, supra note 12, at 96–99 (noting that, in general, mothers lose custody to fathers in 26% of cases; but when fathers merely allege alienation, mothers lose in 50% of cases, and when the court credits fathers’ allegations of alienation, mothers lose in 73% of cases).

[15] Meier & Dickson, supra note 7, at 325.

[16] Id. at 330 (“When courts credited that a mother had committed alienation, fathers won almost every time, regardless of whether the mother reported abuse (95%) or not (96%). Fathers won every case in which mixed forms of abuse were alleged and the mother was found to be an alienator. When the m other alleged child sexual abuse alone, fathers won 95% of cases.”).

[17] Id. at 328 (“Fathers who were accused of abuse and who accused the mother of alienation won their cases 72% of the time; slightly more than when they were not accused of abuse (67%) . . . Child sexual abuse allegations increased fathers’ likelihood of winning to 81%.”).

[18] Rep. on Custody, Violence Against Women and Violence Against Children of the Hum. Rts. Council on Its Fifty-Third Session, U.N. Doc. A/HRC/53/36 at 18 (2023) (“The standard of the best interest of the child is violated by imposing contact between a child and one or both parents and by prioritizing it, even where there is evidence of domestic violence.”).

[19] Id. at 6–7 (“When custody decisions are made in favour of the parent who claims to be alienated without sufficiently considering the views of the child, the child’s resilience is undermined and the child continues to be exposed to lasting harm. It may also sever the stable and safe bond with the non-abusive primary caretaker.”).

[20] A total of 984 children have been murdered by a divorcing or separating parent in the U.S. since 2008, and of these murders, 70% were committed by fathers. US Child Homicide Data 2008-Present, Ctr. for Jud. Excellence, https://centerforjudicialexcellence.org/cje-projects-initiatives/child-murder-data/ (last visited Feb. 28, 2024).

[21] See Hannah Dreyfus, A Court Ordered Siblings to a Reunification Camp With Their Estranged Father. The Children Say It Was Abusive, ProPublica (May 18, 2023), https://www.propublica.org/article/family-reunification-camps-kids-allege-more-abuse.

[22] 34 U.S.C. § 10446(k). See California Protective Parents Association, President Biden Signs Kayden’s Law in VAWA, https://www.caprotectiveparents.org/federal-laws-to-state-laws (last visited Feb. 28, 2024).

[23] Julie Shaw, To Save Kids, A Push for ‘Kayden’s Law,’ Phila. Inquirer, Oct. 18, 2019, at B2.

[24] 34 U.S.C. § 10446(k)(3)(B)(i)–(ii).

[25] 34 U.S.C. § 10446(k)(3)(B)(iii)–(iv).

[26] Cal. Fam. Code § 3193.

[27] Colo. Rev. Stat. § 14-10-127.5.

[28] H.B. 561, 2022 Reg. Sess. (Md. 2022).

[29] S.B. S7425A, 2021–2022 Leg. Sess. (N.Y. 2021).

[30] H.B. 4343, 103rd Gen. Assemb. (Ill. 2024).

[31] S.B. 55, 2023–2024 Reg. Sess. (Pa. 2023).

[32] Nat’l Council of Juv. and Fam. Ct. Judges, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide at 24 (State Justice Institute rev. ed. 2006). See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593–94 (1993) (holding that, in determining the admissibility of expert witness testimony, trial judges should consider various non-dispositive factors relating to the principles and methodology employed by the expert, such as whether the expert’s theory or technique has been tested or subject to peer review and publication, the known or potential error rate of the theory or technique, and whether the theory or technique is generally accepted within the relevant scientific community).

[33] 34 U.S.C. § 10446(k)(3)(B)(i)–(ii).

[34] Id.

[35] The language of Colo. Rev. Stat. § 14-10-127.5 is copied verbatim from Kayden’s Law and therefore exhibits the same pitfalls. The California version, Piqui’s Law (Cal. Fam. Code § 3193), does markedly less to address court orders influenced by parental alienation claims, because the statute only imposes limitations on court-ordered “family reunification treatments.”).

[36] U.N. Report at 3, 18.

 

It might be helpful to add a brief explanation of the multi-factor Daubert test in footnote 32.