Consistent with the emphasis on safety throughout these materials, we suggest that the judge, once the evaluator’s report is admitted into evidence, make an immediate determination whether the report identifies risks that should be promptly addressed, or whether disclosure of the report to the parties may create risks that should be promptly guarded against. The responses suggested on Card III are meant to be illustrative only; there may be additional steps available to you depending on the rules governing your court.
Determine Whether to Admit the Report into Evidence
Unless admissibility is stipulated by counsel for each party, the Court must subject both the evaluation report and the expert testimony derived from the evaluation to critical scrutiny, assessing carefully the validity and reliability of each before determining whether they are admissible as evidence.*1
Parental Alienation and the Daubert Standard: on Syndromes and Behaviors
In contested custody cases, children may indeed express fear of, be concerned about, have distaste for, or be angry at one of their parents. Unfortunately, an all too common practice in such cases is for evaluators to diagnose children who exhibit a very strong bond and alignment with one parent and, simultaneously, a strong rejection of the other parent, as suffering from “parental alienation syndrome” or “PAS”.*2 Under relevant evidentiary standards, the court should not accept this testimony.
The theory positing the existence of “PAS” has been discredited by the scientific community.*3 In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert*4 case. Daubert, in which the Court re-examined the standard it had earlier articulated in the Frye*5 case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. “Parental Alienation Syndrome” does not pass this test. Any testimony that a party to a custody case suffers from the syndrome or “parental alienation” should therefore be ruled inadmissible and/or stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.*6
The discredited “diagnosis” of “PAS” (or allegation of “parental alienation”), quite apart from its scientific invalidity, 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. It also diverts attention away from the behaviors of the abusive parent, who may have directly influenced the children’s responses by acting in violent, disrespectful, intimidating, humiliating and/or discrediting ways toward the children themselves, or the children’s other parent. The task for the court is to distinguish between situations in which children are critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications), and situations in which children have their own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. Those grounds do not become less legitimate because the abused parent shares them, and seeks to advocate for the children by voicing their concerns.
Cases known or suspected to involve domestic violence pose particular challenges because:
• It is appropriate for parents to try to protect themselves or their children from exposure to violence, even when it means limiting the other parent’s contact with the children;*7
• Abusive partners commonly sabotage their respective partner’s parental authority over, and relationship with, the children;*8
• Abusive parents rarely take responsibility for the consequences of their behaviors, but instead blame their partners for turning the children against them;*9 and
• Children in abusive households may feel safer identifying with the abusive and more powerful parent.*10
If the history of violence is ignored as the context for the abused parent’s behavior in a custody evaluation, she or he may appear antagonistic, unhelpful, or mentally unstable.*11 Evaluators may then wrongly determine that the parent is not fostering a positive relationship with the abusive parent and inappropriately suggest giving the abusive parent custody or unsupervised visitation in spite of the history of violence; this is especially true if the evaluator minimizes the impact on children of violence against a parent or pathologizes the abused parent’s responses to the violence.*12http://www.stopfamilyviolence.org/sites/documents/0000/0081/NCFCJ_guidebook_final_2006.pdf
Custody evaluators, therefore, should be advised to listen carefully to children’s concerns about each of their parents, and follow up with a careful investigation as to whether those concerns are grounded in fact, what role each parent has played in shaping the children’s perceptions of the other parent, and each parent’s apparent motivation. This careful factbased inquiry, unlike applying the “PAS” label, is likely to yield testimony that is more accurate and relevant.
Read the Report Critically
The checklist provided on Card III offers a recap of much of the material included on Cards I and II, offering you a final opportunity to assess how well the evaluation has been performed, and the extent to which you can feel comfortable relying on its conclusions.*13.))
One common flaw in reports prepared by custody evaluators that deserves special mention is “confirmatory bias.” It appears when the evaluator develops a hypothesis—forms an opinion about some issue in the case—early in his or her process, finds data to support it, confirms the hypothesis, and then stops testing it against new or different data that might undermine the hypothesis or effect a change of mind.
As the judge, you can test for the presence of this “confirmatory bias” by:
• looking at the extent to which the evaluator has made use of collateral sources and available documentation to corroborate important findings of fact on which his or her conclusions and recommendations are based;
• looking at whether the evaluator has made available to you all the relevant data gleaned in the course of the inquiry: both the data that support the evaluator’s conclusions and recommendations, and the data that might have led to competing conclusions or recommendations. If the report seems suspiciously one-sided, you might conclude that the evaluator has left out data that did not support his or her conclusions and recommendations;
• looking at whether the evaluator has identified areas where he or she has been unable to obtain information or to reconcile or choose between competing accounts; and
• looking at whether the evaluator appears to use myths or stereotypes regarding domestic violence, such as assuming that an angry mistrustful parent is most likely making a false allegation to gain leverage in the custody case or assuming that a child would not be happy to see the abusive parent at a supervised or unsupervised visitation.
Assess the Recommendations
A final test of the evaluator’s expertise is whether his or her recommendations take into account the need to protect the physical and emotional safety of the abused parent and children involved in the case, and whether the recommendations offered make full use of the range of alternatives available in the case, such as:
• granting sole physical and legal custody to the abused parent; postponing visitation until the abused parent and the children have had an opportunity to establish their safety and heal from any trauma associated with violence or abuse;*14
• postponing visitation until the violent or abusive parent has successfully completed appropriate treatment, including a batterers intervention program. If your jurisdiction provides guidelines and certification for programs, use only sanctioned programs. Anger management, pastoral counseling, couples counseling,*15 and parenting programs are not appropriate forms of intervention in cases with domestic violence and can heighten danger for the abused parent and/or children. It is also important to understand that completing a batterers intervention program does not guarantee that the abusive parent will change his or her behavior;*16
• allowing relocation to a confidential address (or, if that has already occurred, making sure that the address is kept confidential from the violent or abusive parent);
• restraining the violent or abusive parent’s communication with or proximity to the other parent;
• restraining the violent or abusive parent’s communication with or proximity to the children, except in the context of authorized visitation;
• structuring visitation with specific levels of restriction as seems appropriate:
◆ visits in a formally structured supervised setting;
◆ visits informally supervised by appropriate family members—provided the court establishes clear guidelines to be followed during visitation related to the supervisor’s responsibilities and his or her authority during supervision, and provided both parents have consented to the choice of supervisor;
◆ denial of overnight visits;
◆ visits limited as to duration (with gradual increases in time allotted if safe to do so) and limited to a specific location or locations;
◆ restrictions on the presence of specific persons other than the parent while the parent is with the children;
◆ prohibition of the violent or abusive parent’s use of alcohol or drugs during or within a specified time period prior to visits;
◆ any other conditions that are deemed necessary to provide for the safety of the child, the abused parent, or other family or household members;
• easing visitation restrictions over time if the violent or abusive parent has remained in strict compliance with the court orders and/or treatment plans, provided that parent has shown observable and measurable improvements regarding domestic violence and parenting, and provided that safety concerns for both the children and the abused parent have realistically decreased;*17
• exchanging children through an intermediary, or in a protected setting; and/or
• securing each child’s passport and requiring a violent or abusive parent to post a bond to secure the return of children after a visit, or to secure any other
performance on which visitation is conditioned.*18
Finally, there will be occasional cases where the only way to serve the children’s best interests will be to deny the violent or abusive parent any future contact with the children because it seems that less restrictive alternatives will not secure their safety or that of the other parent.http://www.stopfamilyviolence.org/sites/documents/0000/0081/NCFCJ_guidebook_final_2006.pdf
*1:See e.g., Shuman, supra note 38, at 150, 160 (asking “How can the law be a critical consumer of mental health practitioner expertise if it ignores the scientific community’s critiques of proffered expert testimony and fails to apply discriminating threshold standards of admissibility of expert evidence derived from these tests?”; further arguing that qualifications alone do not provide any guarantees that expert opinions are based on reliable methods and procedures).
*2:“Parental alienation syndrome” was introduced by Richard Gardner and was primarily associated with child sexual abuse allegations in the context of contested child custody cases. For more information, see Bruch, supra note 28.
*3:According to the American Psychological Association, “... there are no data to support the phenomenon called parental alienation syndrome ...” AM. PSYCHOL. ASS’N., supra note 2, at 40.
*4:Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
*6:These are federal standards, but many states adhere to them at least generally and should still exclude any proffered evidence of “PAS”.
*7:See Drozd & Olesen, supra note 29.
*8:See BANCROFT & SILVERMAN, supra note 16, at 57-64.
*9:See id.at 29-53.
*10:See Dalton, Carbon & Olesen, supra note 37. 1
*13:See Shuman, supra note 38, at 19 (“relying on experts without testing the reliability of their methods and procedures cloaks experts’ value judgments under the veil of science and risks that their personal and professional characteristics bias the evaluation and the importance of information learned”, citing Robert Henley Woody, Behavioral Science Criteria in Child Custody Determinations, 3 J. FAM. & MARRIAGE COUNS. 11 (1977
*14:Jaffe, Crooks & Poisson, supra note 2, at 61 (finding in their study that time appeared to be a healing factor for children when it was associated with an end to the violence; stating that “the longer the children had gone without seeing their father, the greater the improvement in their overall adjustment”).
*15:See Aldarondo & Mederos, supra note 12, at 2-13 (stating that traditional couples counseling does not address well the issues of oppression, coercion, and violence in intimate relationships; and that there are no studies that have explored the safety of women when couples counseling is used in domestic violence cases).
*16:See “easing visitation restrictions” in this list, infra. Also, for more information about program effectiveness, see Etiony Aldarondo, Evaluating the Efficacy of Interventions with Men Who Batter, in PROGRAMS FOR MEN WHO BATTER (Etiony Aldarondo & Fernando Mederos eds., 2002), supra note 12, at 3-1; and see EDWARD GONDOLF, BATTERER INTERVENTION SYSTEMS: ISSUES, 26 OUTCOMES, AND RECOMMENDATIONS (2002).
*17:See Peter Jaffe, Claire Crooks & Hon. Frances Wong, Parenting Arrangements After Domestic Violence: Safety as a Priority in Judging Children’s Best Interests, 6 J. CTR. FOR FAM., CHILD. & CT. 95 (2005) (addressing the role of the family court and its courtrelated services in determining parental contact following allegations of domestic violence).
*18:This list draws heavily on the list of “appropriate measures” contained in § 2.11(2) in AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTIONS: ANALYSIS AND RECOMMENDATIONS (2002) and § 405 in MODEL CODE , supra note 18. See also, AM. PSYCHOL. ASS’N, supra note 2, at 99 (“In a matter of custody, preference should be given to the nonviolent parent whenever possible, and unsupervised visitation should not be granted to the perpetrator until an offender-specific treatment program is successfully completed, or the offender proves that he is no longer a threat to the physical and emotional safety of the child and the other parent. Visitation should be supervised by an appropriate neutral party who will advocate for the child.”).