PART I
Child custody and visitation decisions are among the most critical, complex decisions that a Family Court undertakes because of the grave implications for all parties.
At the foundation of these decisions the primary goal of access determinations is universally “to serve the best interests of the child”. The best interest standard is transcendent, not considered as one of many standards, but the standard to which virtually all factors speak (Troxel v. Granville, 530 U.S. 57, 65 (2000); Md. 551, 565 (2003)).
Closely intertwined with this principle are the rights of parents to direct and govern the care, custody, and control of their children. These rights are fundamental liberty rights protected by the 14th Amendment of the U.S. Constitution (Meyer v. Nebraska, 262 U.S. 390 (1923)). Implicit in this constitutional right is the understanding that the liberty rights of the parent exist without undue interference by the state. The State’s power to promote the best interests of the child is circumscribed by the parent’s right to raise the child as seen to be fit without undue interference (Janice M. v. Margaret K., 404 Md. 661, 671–80 (2008)).
Accordingly, the court may restrict “liberal visitation” only upon a showing of actual physical or emotional harm to children. The evidence of such harm has, in the past, been subject to strict review eliciting sound medical and psychiatric evidence, not unscientific, speculative hearsay separate and apart from the inclusion of the feelings and wishes of the child.
Yet, despite these clear legal standards, courts are and have been engaging in a troubling trend that appoints so-called experts. A mandate that violates principles of judicial authority based on the best interest of the child’s findings. Further, the expert testimony being significantly relied upon as credible science asserts an undeserved level of credibility within the court system, as the theories related to the concept of parental alienation, stemming from the Richard Gardner, M.D., debunked theories of child sexuality and the denial of the existence of sexual abuse are widely discredited by the medical and psychiatric community.
This concern leads directly into the governing evidentiary standard: the Frye/Reed Rule of Evidence 5-702 requirement for the admission of expert testimony (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).
The Frye/Reed Rule of Evidence has articulated a standard of evidence for determining admissibility of scientific evidence (Blackwell v. Wyeth, 408 Md. 575, 577 n.1 (2009)).
Under this framework, the first question asked is whether or not a particular expert opinion relies on a novel scientific technique or theory. If either or both theory and methodology are novel, the expert must establish the reliability of the practice before such an approach can be considered.
However, in direct contradiction to this standard, the concept of PAS has been accepted into the family court judicial system despite the facts related to multiple scientific studies designating the PAS theory as a bogus practice that is unreliable, harmful to children and parents, and has no recognizable scientific basis for application.
The Frye/Reed Rule has been incorporated into family court legal practice despite the facts and evidence lodged against the application of PAS and any and all versions by other names of this soft science methodology. PAS has been rejected for inclusion into the DSM Manual of Diagnostic and Statistical Mental Disorders because this theory, as applied, is deemed to be a highly questionable, dangerous diagnosis used only in the context of high-conflict custody litigation, not treatment. The basis of the theory lies exclusively with Richard Gardner, M.D.’s self-published book within his private practice.
The sum and substance of Gardner’s theory is that mothers program their children against the father. Children are programmed to hate the father (Richard A. Gardner, The Parental Alienation Syndrome, pp. 59–60).
When Gardner was asked why mothers are programming their children in this manner, Gardner quotes William Congreve and states:
“Heaven has no rage like love turned to hatred, nor hell fury like a woman scorned.”
From this foundation, the concept of parental alienation must be viewed from the perspective of seeing this spurious excuse for a psychiatric diagnosis as a concept of pop psychology nonsense, akin to other colorful cult theories like “Peter Pan syndrome” or the “Cinderella complex.” This concoction, passed as a clinical intervention/diagnosis, has no objective or quantifiable criteria to determine the validity or reliability of its assertions.
On the other hand, it has the identifiable case records of the bodies associated with child murders, suicides, psychiatric institutionalization, and countless stories of broken and battered spouses along with their children. These statistics are ignored by the courts and practitioners who are enriched by the glib, easy sell of a courtroom diatribe of twisted logic and omitted facts.
In this context, trial courts are charged with the responsibility of serious gatekeeping functions to differentiate serious science from “junk science” (Blackwell, 408 Md. at 592).
Yet what has emerged instead is a community that has weaponized a thoroughly discredited concept referred to as parental alienation. PA is a mantra, magically pronounced to begin an obsessive, fee-driven exploitation of parents seeking to protect children from abuse. (FN: Even when this specific term is not used because it has been rejected as a course of theory and investigation in many states, the specter of its presence continues in alternate form but same function.)
The implementation of the PAS process serves to subject children and parents to endless rounds of review—assessment by therapists approved by the supervising psychologist or guardian ad litem—all conditioned by an assessed right of association provided by the court-appointed clinical team. Such appointment serves to subvert and undermine judicial authority, as expert opinion not only provides information to be litigated, vetted, disputed, and adjudicated by the trier of fact, but instead morphs into the so-called expert assessment controlling and directing the parental custodian.
At its core, the “parental alienation syndrome” (PAS) theory presumes that a child’s fear of a parent arises from the malevolent influence of the “preferred” parent. This supposition relies on flawed assumptions:
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That the child fears and resists association with a parent as a result of manipulation and coercion
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That the child’s hostility and fear of the other parent can be caused by the “preferred” parent’s negative influence as per “programming”
These arbitrary assertions disregard, or entirely deny, the child’s experiences, assertions, medical and psychiatric evidence of abuse and injury, or even suicidal mental state. There is no scientific evidence to support this theory, and there is extensive, well-established scientific support for the dismissal of the concept of PAS, which arises from a thoroughly perverted and debauched theory of child development and emotional capacity for independent thought, feeling, and judgment.
From theory, the system moves into practice.
Demands for unspecified “residential treatment” are specified in court orders to direct and control the lives of healthy, well-functioning children if the children resist “reunification” with a parent accused of abuse.
Court directives that weaponize and implement the unscientific, debunked theories of Richard Gardner, M.D.’s concept of parental alienation result in children being forced into the isolation and control of the parent from whom they sought separation and safety. (see: The Dangerous Legacy of Richard Gardner: Parental Alienation Syndrome (PAS) and the Foundations of Reunification Therapy)
Forced intrusion and directive into the life of a family already under duress inflicts institutional trauma by threat and intimidation of all parties. The wholesale vindication of an unproven, broadly disputed concept, disseminated by marketing campaigns, promotes a framework associated with biologically impossible and deeply disturbing designations of children as sexually active predators and liars seeking engagement with adults. This depiction, imbibed by court actors and a growing cadre of newly minted “parental alienation experts,” reflects Gardner’s own assertions.
Court proceedings that engage evaluators relying on these unscientific, invalidated theories, neither peer-reviewed nor generally accepted (indeed, generally rejected) by the scientific community constitute reliance on “junk science.” These practices usurp the authority of the court both to determine credibility and to adjudicate custody.
The new generation of so-called parental alienation experts barely holds more credibility than those who engage in water witching with divining rods. Yet their fees may reach extraordinary levels, including tens of thousands of dollars for brief “reunification” interventions.
From here, the constitutional implications become unavoidable.
The proposal that courts delegate authority to non-judicial personnel to evaluate multiple areas of fitness, control therapeutic process and progression, and influence custody transfer violates multiple areas of due process and constitutional black-letter law.
The confrontation of these violations of professional scientific standards is routinely met with retaliation, false allegations of misconduct against those experts who challenge these practices, paired with the shaming and blaming of protective parents.
Following the money trail embedded within these protocols reveals further concern, including federal funding streams under Title IV-D and Title IV-E.
What results is a system in which those who confront these practices are met with resistance from court officialdom and aligned experts, even as these practices undermine reliance on the rule of law, case law, and scientifically reliable investigation.
And yet, the role of the family court remains clear: to take evidence, to decide the dispute, so that the child and other parties may move forward with their lives.
Instead, in cases where parental alienation drives ongoing “reunification therapy,” the process devolves into violations of fundamental rights, including the ability of parents to protect children and the right of children to receive that protection. At its most extreme, this raises questions regarding whether such practices constitute systemic exploitation under the guise of custody litigation.
The Courtroom as an Unregulated Experimental Laboratory
Let me begin by stating that a courtroom is not a research laboratory (United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977)). And yet, the courtroom has increasingly become the replacement environment for the utilization of untested parenting theories.
The reckless hearsay elevated in reverence now pits itself against reliably established scientific methods of research, treatment development, and implementation, entirely contradicting black-letter law grounded in the best interests of the child.
Current manipulation of fact and scientific method stands in direct opposition to established learning theory, child development theory, and psychotherapeutic principles, particularly those grounded in respect for client communication, veracity, and confidentiality.
The lives of individuals facing critical, life-threatening circumstances should not depend on their ability to rebut scientific assertions cloaked in an unwarranted halo of reliability, particularly when those assertions are unproven and widely disparaged.
As Big Daddy Pollitt stated in Cat on a Hot Tin Roof (1958):
“I smell the odor of mendacity in this room.”
And that is precisely the concern.
