Parental Alienation (PA) as a Diagnosis, its Course and Treatment are Inadmissible
Using the word Diagnosis is somewhat like a lightning rod. Opponents will quickly point out that there is no diagnosis in the DSM-5 called Parental Alienation, as if all known diagnoses can be found in the DSM, and if it’s not in the DSM it doesn’t exist.
The U.S. Supreme Court decision in, Daubert v. Merrell Dow Pharmaceuticals, Inc., provided a non-exclusive criteria. The application of the Daubert decision to expert testimony relative to mental health issues is very much up for debate. For some, the Daubert decision ends psychological and psychiatric testimony because these fields are so subjective in nature and cannot meet the Daubert criteria. Others see little impact of Daubert on psychological testimony in criminal cases, including the admissibility of battered women syndrome evidence. In child custody cases, however, it is not clear whether courts are using Daubert criteria to evaluate expert testimony on the best interests of children issues.
The Dauber criteria are:
- Is the theory or technique at issue testable, and has it been tested?
- Has the theory or technique been subjected to peer review and publication?
- In the case of scientific techniques, what is the known or potential error rate, and are there standards controlling the technique’s operation? and
- Does the technique enjoy general acceptance within the scientific community?
The literature is now catching up on these criteria with regard to PA. PA is being tested much more frequently and comprehensively than ever before. There is an ever increasing library of peer review publications. As reported earlier the error rate of diagnosis and inter-rater reliability is being examined and reported.
Some might argue that there may be some difficulty in applying the Daubert decision as it applies its criteria of scientific admissibility to clinical testimony. General acceptance of the clinical evidence in the relevant scientific community is one of the Daubert factors. This criterion is a carry over from the previously accepted standard rendered in Frye v. United States for scientific testimony. Many courts, however, exempt psychological syndrome testimony from a Frye analysis. PA is widely recognized among mental health professionals, albeit controversial, therefore, the criterion “that a sizeable group of professionals find plausible, based on their specialized knowledge” appears satisfied. It already has in fact been recognized in 2001 in Hillsborough County, FL, in Kilgore v.Boyd. In the 13th Circuit Court of Hillsborough County, FL, ruled that, “PA had gained enough acceptance in the scientific community to satisfy the Frye test criteria for admissibility.” PA has been argued successfully in 22 states, 7 Canadian provinces, and in a number of countries internationally. In our application for the American Psychiatric Association to consider the diagnosis of Parental Alienation Disorder, professionals from over 30 countries were represented in the application.
Another index of the general acceptance of PA is the growing professional literature on PA in peer-review journals. Also, the American Psychological Association, in its Guidelines for Child Custody Evaluations in Divorce Proceedings includes Gardner’s works on this subject in “Pertinent Literature” at the end of the guidelines. This could be taken to imply APA recognition of PA as pertinent to child custody proceedings. Critics may say, “not so fast, what about the APA’s public statement?”
The APA’s public stance on Parental Alienation is:
“The American Psychological Association (APA) believes that all mental health practitioners as well as law enforcement officials and the courts must take any reports of domestic violence in divorce and child custody cases seriously. An APA 1996 Presidential Task Force on Violence and the Family noted the lack of data to support so-called “parental alienation syndrome”, and raised concern about the term’s use. However, we have no official position on the purported syndrome”.
It is noteworthy that the APA’s Task Force was 1996, 18 years ago. A lot of work has been done in those years, including an International Handbook on Parental Alienation Syndrome (2006) and Parental Alienation: The Handbook for Mental Health and Legal Professionals (2013). It is also noteworthy that the APA does not have any public affirmations regarding any other diagnosis. We are not aware of any public statements where the APA publicly declares “clinical depression, schizophrenia, obsessive compulsive disorder, etc. is officially recognized”. The American Psychiatric Association publishes the DSM-5 with its “recognized” disorders, not the American Psychological Association. In addition the implication of the APA’s statement is that somehow, using the terminology PA would lead someone to deny or negate the presence of domestic violence. This is clearly not the case and has been discussed beyond sufficiency. And, finally, the APA does not have an official position on this disorder or any other one.
Like Frye and Daubert, the Federal Rule of Evidence 702 allows the admission of expert scientific opinion only if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue…..” Under the rule, which has been adopted in identical or substantially similar form by the majority of states, the expert’s testimony must be “based on sufficient facts or data,” and is “the product of reliable principles and methods.”
The arguments presented above for PA meeting the Frye and Daubert equally apply to the FRE 702. There is sufficient evidence that PA meets the scientific and technical knowledge to assist courts in understanding the clinical issues in family law cases and especially in child custody cases.
