THE PARENTAL ALIENATION SYNDROME:  A DANGEROUS AURA OF RELIABILITY

Cheri L. Wood [FNa]
Copyright  1994 Loyola of Los Angeles Law Review; Cheri L. Wood

Upon returning home from visitation with her father, a little girl named
Mandi told her mother, in explicit detail, how her father had sexually
molested her.  After various social service agency workers and
psychologists interviewed the child, the case went to court.  The judge
determined that since the four- year-old's story was not always
consistent, her mother must have "programmed" her to say such things about
her father.  Consequently, the court not only gave custody of the child to
the accused father, but also denied the child all contact with her mother.  
The court's leap of reasoning was based on a theory known as the Parental
Alienation Syndrome. [FN1]

I. Introduction

The Parental Alienation Syndrome (PAS) [FN2] theory states that when
children demonstrate ill, or even ambivalent, feelings toward their
fathers [FN3] or report during divorce proceedings that their fathers
abuse them, it is most often the mother's doing. [FN4] Depending on the
perceived severity of the syndrome's presence, the theory also states that
these children should be removed from the custody of their mothers. [FN5]
Because of PAS theory, children like Mandi face the possibility of not
only living with an abusive parent, but of having no one to tell.

Dr. Richard Gardner, the founder and purveyor of PAS, has also influenced
the legal system by his willingness to testify in civil and criminal cases
as to his theories about PAS and the invalidity of child sexual abuse
charges. [FN6] Dr. Gardner espouses these theories in his self-published
books, the most recent being The Parental Alienation Syndrome. [FN7]
Ironically, while PAS has been admitted in courts, it has not been
accepted by experts in the field:  psychologists, child abuse evidentiary
experts, or child advocates.

This Comment argues that evidence of PAS should not be admissible in
court. Notwithstanding the causation problems inherent in holding one
parent liable for the alienation of a child's affection from the other
parent after a divorce, PAS theory has not gained acceptance among experts
within the field. [FN8] Under the Frye v. United States [FN9] "general
acceptance" standard, this evidence would not be properly admitted; [FN10]
however, the United States Supreme Court has recently relaxed the standard
for admitting scientific testimony in the landmark Daubert v. Merrell Dow
Pharmaceuticals [FN11] decision.  This Comment analyzes the difficulties
in sorting out causation in an area recognized by psychologists to be
complex.  Further, it analyzes the implications of allowing a judge, in an
adversarial arena, the discretion to admit evidence that may sound
appealing but that in fact would not be accepted by experts in the
particular field.

This Comment first considers the Parental Alienation Syndrome theory,
[FN12] Mandi's case, [FN13] and other PAS cases [FN14] that have had
disturbing, notorious, and widely inconsistent outcomes.  Then, it
discusses the causation problem inherent in assigning blame for the
alienation solely to the mother by analyzing PAS in light of the nearly
extinct tort of alienation of affection. [FN15] Next, this Comment
explores the evidentiary problems with PAS through a discussion of the
Daubert opinion and the Frye standard. [FN16] This Comment examines the
admissibility of psychological theory and syndrome testimony in general
[FN17] and considers the admissibility of PAS testimony in light of
Daubert and Frye. [FN18] Further, this Comment recommends that evidence of
PAS be excluded because of its causation problems, its unreliability under
Daubert, and its lack of general acceptance under Frye. [FN19] Finally,
this Comment concludes that because admitting this evidence endangers
children, [FN20] PAS must first gain the acceptance of child advocates,
psychologists, and child abuse evidentiary experts--not family law
attorneys who have latched onto the theory hoping to use it as an
effective custody battle weapon or a defense to child abuse allegations.
[FN21]

II. The Parental Alienation Syndrome

A. The Theory

Dr. Richard Gardner developed the PAS theory [FN22] through his personal
observations of his own patients. [FN23] Dr. Gardner describes PAS as a
disturbance in which children are not merely systematically and
consciously "brainwashed" but are also subconsciously and unconsciously
"programmed" by one parent against the other. [FN24] Because Dr. Gardner
believes that this "combination" [FN25] effect is going on, he disfavors
the terms "brainwashing" and "programming" used in conjunction with his
theory; thus, he applies the term PAS. [FN26] However, Dr. Gardner uses
both terms synonymously throughout his books and other writings when
referring to the conscious effort of a parent [FN27] to alienate his or
her child from his or her spouse. [FN28] Dr. Gardner explains that "PAS is
a disorder of children, arising almost exclusively in child-custody
disputes, in which one parent (usually the mother) programs the child to
hate the other parent (usually the father)." [FN29]

Dr. Gardner asserts that PAS is a "relatively new disorder, [FN30] having
evolved primarily from recent changes in the criteria by which primary
custodial placement is decided." [FN31] The changes Dr. Gardner refers to
are the product of the shift to the best-interest-of-the-child presumption
[FN32] and the increased popularity of joint custodial arrangements.
[FN33] Prior to the adoption of this presumption in the 1970s, courts
embraced the tender-years presumption, which held that young children were
better off with their mothers. [FN34] In adopting the best-interest
approach, joint custody also became favored because designating one parent
as the custodian and one parent as the visitor was seen as
"inegalitarian." [FN35] According to Dr. Gardner, because these
developments have had the effect of making custodial arrangements
"unpredictable and precarious," [FN36] parents-- most often mothers
[FN37]--are "brainwashing their children in order to ensure 'victory' in
custody/visitation litigation." [FN38]

Notably, Dr. Gardner devotes over twenty-two pages in his book exclusively
to discussing the programming mother [FN39] and a mere nine pages to
discussing the programming father. [FN40] Throughout the remainder of the
book, Dr. Gardner refers to the programming parent in either the female
gender or as the mother outright. [FN41] Dr. Gardner says this is "for
simplicity of presentation." [FN42]

Why, according to Dr. Gardner, are women programming their children
against the children's fathers in nine out of ten cases [FN43] where PAS
is present? Dr. Gardner explains by quoting William Congreve:  "Heaven has
no rage, like love to hatred turned.  Nor hell a fury, like a woman
scorn'd." [FN44] Women separated from their husbands cannot retaliate
directly against them and therefore attempt to "wreak vengeance" [FN45]
through their children. [FN46] And why does this "thirst for vengeance"
phenomenon occur primarily in women against men? [FN47] Dr. Gardner's long
list of reasons includes the following:  (1) Men have more opportunity to
find new partners; (2) men are less frustrated; (3) men are less angry;
(4) women suffer more economic privation than men in divorce; (5) the
economic disparity suffered by women often results in men having a legal
advantage in being able to hire more competent lawyers; and (6) women
project their own real behaviors and fantasies on men. [FN48]

Reason number six--projection--merits a closer look because Dr. Gardner
links it to false allegations of sexual abuse which he says are a common
pattern in PAS cases. [FN49] Although many accusations are conscious and
deliberate--thus conforming to the "frustrated" and "angry"
characteristics identified by Dr. Gardner--projection is a subconscious
and unconscious operation. [FN50] Dr. Gardner says that "the mother's own
suppressed and repressed sexual fantasies are projected onto the child and
father.  By visualizing the father having a sexual experience with the
child, the mother is satisfying vicariously her own desires to be the
recipient of such overtures and activities." [FN51] Thus, Dr. Gardner says
that an accusation of sexual abuse considered to be unlikely "must be
viewed as a product of the mother's own mind--having no basis in
reality--and is therefore likely to have within it an element of
projection." [FN52]

Whether conscious and deliberate or from projection, false allegations of
sexual abuse also merit further discussion because Dr. Gardner maintains
that the frequency of false allegations of sexual abuse in custody
disputes are "quite high." [FN53] Contrary to his assertions--which have
caught on in the mass media-- child abuse and evidentiary experts have
shown that these situations represent but a small minority of cases.
[FN54] One such expert has responded directly to Dr. Gardner's assertion
that " 'the vast majority of children who profess sexual abuse are
fabricators,' " [FN55] by declaring:

There is no systematic evidence, however, that the number of allegations
arising during custody litigation has reached flood stage.  Nor is there
convincing evidence that a substantial portion of the allegations are
fabricated.  In fact, the research that exists points the other way.
Allegations of child sexual abuse occur in a small but increasing number
of custody cases.  Allegations occur in approximately two to four percent
of cases. [FN56]

The PAS theory has other problems as well.  The criteria Dr. Gardner uses
to determine whether PAS is present [FN57] are essentially borrowed from
and built upon his earlier--and now widely discredited [FN58]-- objective
test for determining whether children were fabricating allegations of
sexual abuse, the "Sex Abuse Legitimacy Scale" (SAL Scale). [FN59] Dr.
Gardner believes that PAS arises almost exclusively in the context of
child custody disputes, [FN60] and he also asserts that false allegations
of sexual abuse arise under these same circumstances. [FN61]

The only appellate court to rule on the admissibility of the SAL Scale
held it inadmissible because there was no showing that it had "some
reasonable degree of recognition and acceptability among the spectrum of
scientific or medical experts in the field." [FN62]

Two experts referring to the SAL Scale and PAS stated:

There are no studies which have determined if the scale can be coded
reliably.  Many of the criteria are poorly defined.  There have been no
scientific tests of the ability of the SAL Scale to discriminate among
cases. There is no evidence that the numerical scores have any real
meaning.  Indeed, to our knowledge, the entire scale and parent alienation
syndrome upon which it is based have never been subjected to any kind of
peer review or empirical test.  In sum, there is no demonstrated ability
of this scale to make valid predictions based on the identified criteria.
[FN63]

In a recent submission to a psychiatric journal, a multidisciplinary group
of experts noted that an "overwhelming majority of professionals" [FN64]
do not agree with Dr. Gardner's interviewing methods. [FN65] Moreover,
referring to PAS and the SAL Scale they assert that "the fact remains that
no validation criteria or criteria for discriminating between 'true' and
'false' cases have yet been empirically validated." [FN66]

Professor Jon Conte of the University of Chicago's School of Social
Service Administration, who also edits the Journal of Interpersonal
Violence, strenuously objects to " 'the fact that Dr. Gardner presumes to
go into court and help triers of fact with ideas that have not passed the
test of science and time.' " [FN67] Apparently, Professor Conte is now
famous among his colleagues for saying that Dr. Gardner's SAL Scale is "
'probably the most unscientific piece of garbage I've seen in the field in
all my time.' " [FN68] Even Dr. Gardner himself has withdrawn the SAL test
from the market, [FN69] but the heart of the discredited SAL Scale beats
on in his promotion of PAS theory. [FN70] Says one child advocate, " 'It's
placing a lot of kids in jeopardy.' " [FN71]

B. Mandi's Case

Mandi M. was born on September 7, 1986. [FN72] On August 15, 1990, when
Mandi was nearly four years old, her parents separated. [FN73] Just prior
to their separation, Mandi's mother and father had worked out a
comprehensive joint and split custodial arrangement whereby each would
have custody of Mandi for approximately one-half of every week. [FN74] In
September 1990 Mandi's mother filed a petition with the Family Court of
New York in Fulton County to modify that arrangement so that she would "
'retain all custody and visitation would be supervised, if at all' "
because Mandi had disclosed that her father had sexually abused her.
[FN75]

Following Mandi's disclosure to her mother that her father put his finger
in her "peer" and that her Daddy's "dinkie" got bigger and "stuff came
out," her mother called on a friend, Jan Carter. [FN76] Ms. Carter,
employed by Community Maternity Services, came to their home and spoke to
Mandi. [FN77] Based on Mandi's telling Ms. Carter that her Daddy put his
"peer" on her "peer" and that she told him to stop, and it hurt, and she
cried, Ms. Carter placed a call to the New York State Central Register for
Child Abuse and Maltreatment and reported the incident. [FN78] As a result
of this call, Sally Conkling, a caseworker with the Fulton County
Department of Social Services, conducted an investigation during which
Mandi told Ms. Conkling that Mandi's father had put his finger in her
vagina. [FN79]

Thereafter, Bette Malachowski of the Family Counseling Center interviewed
Mandi to determine whether the allegation of sexual abuse could be
validated. [FN80] Ms. Malachowski has a Master's degree in Psychology and
identified herself as a child sexual abuse therapist. [FN81] At that time
she stated that she had interviewed approximately two hundred children and
she had determined that fifty of the children's allegations were
fabricated. [FN82] According to Ms. Malachowski during her questioning
[FN83] of Mandi, when she asked whether Mandi was having "any kind of
touching troubles" or whether she was "making believe," Mandi stated she
was "making believe." [FN84] Ms. Malachowski also reported that Mandi
never used the word "dink" when describing the penis. [FN85] Ms.
Malachowski concluded that because Mandi's mother had a vested interest in
the outcome of the case--that is, she wanted full custody--and because Ms.
Malachowski had observed no outward signs of emotion when Mandi's mother
spoke, [FN86] there was no information that would indicate that Mandi had
been sexually abused by her father. [FN87] In addition, Mandi's
pediatrician, Lawrence Horowitz, D.O., performed a physical examination of
Mandi during the same time period as Ms. Malachowski's evaluation; the
physical examination revealed nothing. [FN88] The Department of Social
Services concluded that the allegations of sexual abuse were unfounded.
[FN89]

In February 1991 Mandi's mother once again contacted the Department of
Social Services stating that Mandi revealed to her that additional sexual
abuse had occurred. [FN90]

According to Loren Dybas, another Department of Social Services
caseworker, Mandi disclosed to her that the "secret touch made her
uncomfortable," that Mandi placed her hand on her Dad's "dinkie," and that
she touched Dad's "electric dinkie" to her Dad's "dinkie." [FN91] She said
that her underpants were on and her Dad's clothes were off. [FN92] She
also said during the same interview that when her Dad touched her with the
"electric dinkie" her panties were off. [FN93]

Dr. M. Frank Sack, Ph.D, interviewed Mandi in April 1991 and concluded
that Mandi's father sexually abused her. [FN94] Dr. Sack, like Ms.
Malachowski, has a Master's degree in Psychology; however, Dr. Sack also
possesses a Doctorate in Behavioral Science. [FN95] Though Dr. Sack did
not purport, like Ms. Malachowski, to be a "child sexual abuse therapist,"
he is a Master Expert Polygraphist who, at that time, had conducted
thousands of interviews with and without a polygraph device to determine
veracity; of those interviews, approximately one thousand were related to
sexual abuse. [FN96] Dr. Sack stated that Mandi told him that she played
"secret touch" with her father, and that while playing, her father put her
on a bed with her clothes off and touched her "peer" with his hands.
[FN97] Mandi also said that her father told her not to tell anybody what
had happened, and that when Mandi told her father to stop touching her he
said, "I'll do what I want." [FN98]

During this period of alleged abuse, Mandi's preschool teacher and a
certified social worker testified that they did not observe Mandi
expressing any fear of her father. [FN99]

In reviewing both of Mandi's parent's petitions for sole custody, the
Family Court of Fulton County, New York, found the following factors to be
significant:  Ms. Malachowski's conclusion that no abuse had taken place,
and her suspicion of the mother's motivation. [FN100] Relying on Dr.
Richard Gardner's Parental Alienation Syndrome theory, the court
determined that Mandi's allegations were consistent with those that Dr.
Gardner would describe as the type made by a fabricator. [FN101] Thus, the
court concluded that because Mandi's mother must have "programmed" her
daughter to accuse her father of sexually abusing her, she was not fit to
continue in the role of Mandi's parent. [FN102] Consequently, the court
placed Mandi in the custody of her father. [FN103] The court further
ordered that, because it had no assurance that Mandi's mother would not
continue to "brainwash" or "program" Mandi, Mandi's mother would be
allowed no visitation or contact with her daughter. [FN104]

The application of PAS to this case created an extremely disturbing
result.  The court invoked the PAS theory sua sponte as the basis for
determining that Mandi's mother probably programmed her daughter, that she
should therefore be denied all contact with Mandi, and that custody should
be awarded to Mandi's father. [FN105] Dr. Gardner's belief that we are
experiencing a "third great wave of hysteria in the United States" [FN106]
explains the extreme potential for injustice inherent in PAS cases.  "In
the interest of justice to the accused," [FN107] Dr. Gardner purports that
the criteria he uses to determine whether an allegation of sexual abuse is
fabricated should err on the side of finding innocent some men who are in
fact guilty of child molestation. [FN108]

C. Other PAS Cases

The disturbing result in Mandi's case is not unique with regard to PAS
cases.  Other courts have applied PAS, resulting in decisions that have
been newsworthy, constitutionally questionable, and at best inconsistent.

In a PAS case that made headlines, Dr. Gardner testified that a father,
Marc Friedlander, should receive custody of his two sons because his wife
Zitta was "brainwashing" the children against him. [FN109] During the
custody battle, Mr. Friedlander appeared in the parking lot of his wife's
place of work and shot her thirteen times with a semiautomatic weapon.
[FN110] At the murder trial, Dr. Gardner testified on behalf of Mr.
Friedlander, stating:  " 'I believe that after . . . mounting frustration
and suppressed fury, Mr. Friedlander became acutely psychotic and murdered
his wife.' " [FN111] The judge, however, upheld the jury's recommended
sentence of forty-two years in prison. [FN112] Marc Friedlander will be
eligible for parole in 1996. [FN113]

The introduction of PAS evidence raised First Amendment concerns in a case
that was heard by the Florida Supreme Court. [FN114] In Schutz v. Schutz,
[FN115] Dr. Michael Epstein, a psychologist testifying with regard to
visitation and support issues, stated that a mild form of PAS contributed
to the children's desire not to visit their father. [FN116] The trial
court ordered the mother "to do everything in her power to create in the
minds of the children a loving, caring feeling toward the father . . . and
to convince the children that it is the mother's desire that they see
their father and love their father." [FN117] The Florida Supreme Court
found that in making the order, the trial court had not abused its
discretion. [FN118] Further, the court held that any burden on the
mother's First Amendment rights was merely "incidental" [FN119] and must
be balanced against the state's parens patriae interest [FN120] in
assuring the well-being of the parties' minor children. [FN121] The court
said that there was no requirement that the mother express opinions that
she did not hold, as such an order would violate the First Amendment.
[FN122] Yet, according to the court, the order was consistent with Florida
law which requires that the custodial parent "encourage and nurture the
relationship between the child and the noncustodial parent." [FN123]

While Florida law may embrace the notion of a custodial parent's
affirmative obligation to encourage the child's relationship with the
noncustodial parent, in Schutz, the trial court did not order the mother
to encourage the children to make phone calls, write letters, and go on
visits. [FN124] Instead, the court ordered the mother to convince her
daughters she held an opinion that she clearly did not hold, [FN125] an
enlargement of the state law requirement that arguably rises to a
constitutional violation. [FN126] Moreover, in a practical sense, although
ordering a mother to encourage her daughters to go on visits is something
the mother could conceivably control, ordering her to convince her
daughters that it was her own desire that they see and love their father
is unreasonable.  At the time of the order the children were fifteen and
thirteen years old. [FN127] Practically speaking, even if the court had
the authority--as it assumed it did--to require the mother to convince her
daughters that it was her desire that they visit, it is doubtful whether
two teenagers are capable of being so convinced. [FN128]

Generally, courts have ruled inconsistently when applying PAS testimony.
[FN129] In one case, a psychologist testified on behalf of the father
[FN130] that the children were severely suffering from PAS caused by the
mother and, in fact, had one of the worst cases he had ever seen in doing
this kind of work. [FN131] Notwithstanding this testimony, the court held
that the children would remain with the mother. [FN132] Compare this
result, and the result in Schutz, with the notorious Steve and Cyndy
Garvey custody dispute. [FN133] In that case a psychiatrist testified that
the Garveys' teen- aged children, who said they did not want to see their
father, were suffering from PAS. [FN134] Cyndy Garvey served time in
prison for violating an order that gave Steve Garvey the right to visit
his daughters. [FN135] Compare also the result in Mandi's case. [FN136]
These inconsistent results demonstrate the problems with PAS theory.  
More particularly, these results underscore the problems with admitting
PAS testimony in court.

III. Causation Problems with PAS

In order to justify removal of a child from his or her mother's custody,
[FN137] or even to make a determination that a mother has alienated her
child from the father, the alienation must be attributed to the mother;
that is, the mother must be the cause of the alienation.  Blaming the
mother, however, fails to address several basic causation problems.  One
problem is that the various attributes of the custody dispute itself,
absent any alienating behavior of a mother alone, have multifarious
effects on the children involved. [FN138] Another problem arises from Dr.
Gardner's assumption that when an allegation of child sexual abuse first
arises during a dissolution proceeding, it is probably a false one.  When
such an allegation does arise, it is usually for reasons other than the
mother's--conscious or subconscious--deployment of the allegation as a
weapon. [FN139] This is particularly problematic because in reality sexual
abuse allegations, which Dr. Gardner feels are a common addition in PAS
situations, rarely arise in custody litigation. [FN140]

In fact, in spousal alienation of affection cases, courts have recognized
that causation probably cannot be sorted out. [FN141] There is a strong
similarity between PAS and spousal alienation.  Although the causes of
action and the parties differ, the causation analysis in parental
alienation and spousal alienation is essentially the same.

A. Comparing the Causation Requirement in the Alienation of Affection
Action

The alienation of affection cause of action was a creation of United
States courts derived from the early common-law action for abduction of
the wife. [FN142] In its earlier form, the mere removal of the wife gave
rise to the presumption that a causal connection existed between the
wife's abduction and the alienation of her affection because the wife was
the husband's property and thus she could not consent to her own removal.
[FN143]

In time, the removal requirement was eliminated in the alienation of
affection action; thus, in order to recover damages, the plaintiff was
required to show the causal connection between the defendant's acts and
the alienation. [FN144] Courts recognized that factors other than the
defendant's conduct could contribute to the alienation of a spouse's
affection. [FN145] Consequently, courts in different jurisdictions applied
various causation standards to actions for alienation of
affection--attesting to the difficulty in sorting out causation and basing
liability thereon. [FN146] At one end of the spectrum, a few jurisdictions
adopted a "contributory cause" standard whereby a defendant would be
liable if his or her conduct merely contributed to the alienation. [FN147]
This standard was particularly tough on the defendant because any wrongful
conduct on the defendant's part would render the defendant liable. [FN148]
The other end of the spectrum espoused the "sole cause" standard--the
plaintiff had to show that the defendant was the only cause of the
alienation--which made the burden of proof nearly impossible for the
plaintiff to meet. [FN149] The majority of jurisdictions applied the
"controlling cause" approach. [FN150] Controlling cause "means that the
causal effect of the defendant's conduct must have outweighed the combined
effect of all other causes, including the conduct of the plaintiff spouse
and the alienated spouse." [FN151] Leading to the abolition or restriction
of the alienation of affection cause of action in a majority of states was
the view that this standard was "simplistic and inadequate to help the
trier of fact sort out causation in an area where psychologists have
asserted that causation cannot be sorted out." [FN152] Thus, the potential
for abuse existed in that the trier of fact could hold a defendant
responsible "because his or her conduct had been 'wrongful' or morally
reprehensible." [FN153]

The same problem is inherent in parental alienation cases.  Where
causation is difficult--if not impossible--to sort out, the trier of fact
may erroneously assign responsibility for the alienated affections of a
child solely to the child's mother--leaving in its wake an unprotected
child like Mandi [FN154] or even an unprotected mother like Zitta
Friedlander. [FN155]

B. Children's Actions and Reactions in the Aftermath of Divorce

1. Psychological and social stressors

It is commonly known that children are distressed by their parents'
decision to divorce. [FN156] Depending on the age of the child, reactions
may vary widely. [FN157] For example, preschool-aged children may have
great difficulty in separating from the custodial parent, stemming from
their perception that the noncustodial parent has already disappeared.
[FN158] A young child's understanding of time and distance concepts is
limited. [FN159] Thus, these children are not truly able to comprehend
that they will return home on a certain day-- or that they will even
return home at all--from the noncustodial parent's new and unfamiliar
house. [FN160] This, rather than anything the child's mother is doing, may
cause the child to worry [FN161]--and perhaps wish not to go--and may
cause the child's apprehension.

Early school-aged children, ages five to eight, are likely to be filled
with feelings of loss, rejection, guilt, and loyalty conflicts. [FN162]
These children may see the divorce as a battle in which they themselves
must take sides; [FN163] this is distinct from a mother's behavior
fostering that perception in her children.

Children of later school age, ages nine to twelve, may become intensely
angry at their parents for breaking up the family. [FN164] The parent
perceived by the child as having caused the divorce may be the recipient
of the lion's share of that intense anger. [FN165] This might explain why
in the average divorce, children are apt to express their anger more
toward the father--the parent most likely to have moved out of the family
home. [FN166]

Finally, adolescents become anxious when faced with evidence of their
parents' vulnerabilities and may be uncomfortable with the notion that
their parents have sexual feelings. [FN167] Thus, if the father
establishes a new relationship sooner than the mother, [FN168] this can
alienate adolescents from their fathers. [FN169] In short, the
psychological stressors resulting from divorce demonstrate that children's
ill feelings toward either parent are often a natural part of the
dissolution process.  The list of explanations--which is illustrative
rather than exhaustive--that provides reasons for children having such
feelings furnishes some credible alternatives to the PAS theory that when
the children have ill feelings toward their fathers, their mother must be
the cause.

2. Legal-system stressor

In addition to the emotional problems commonly found in children after a
divorce, the adversarial nature of the legal process itself is harmful to
families in custody disputes. [FN170] One commentator observed that "the
adversarial viewpoint presumes a zero-sum game mentality according to
which one parent 'wins,' one parent 'loses,' and the child loses a parent
in the process." [FN171] When parents enter the legal process they often
do so without realizing that their personal lives will become public
record, that their decision-making power will be relegated to strangers,
and that the associated legal fees may leave them in financial as well as
emotional distress. [FN172] Moreover, "once the legal machinery has been
set in motion, it is extremely difficult to arrest." [FN173] Thus, even if
parents had second thoughts about resolving their disputes amicably,
having started the adversarial process, they may be unable to stop it.

Unfortunately, the conflicts between parents who dispute custody naturally
affect their relationships with their children--since child custody is the
very reason for the conflict. [FN174] "The contested child often becomes
an unwitting participant in the parental battle, as information gatherer,
messenger or witness for one parent." [FN175] Children subject to a
custody dispute also live in limbo:  The disputes may drag on for years
and can be reopened upon petition by either party. [FN176] This brings up
the prospect of moving, changing schools, and separating from friends.
[FN177] These and other stressors could easily cause a child to feel
alienated from either or both parents.

C. Sexual Abuse Allegations During Custody Disputes

First, it is clear that although Dr. Gardner believes that there have been
an abundance of sexual abuse allegations launched during custody disputes,
child abuse experts and researchers do not agree with him. [FN178] Dr.
Gardner asserts that we have recently witnessed "a rash of fabricated
sex-abuse allegations that serve as an extremely effective weapon in
custody disputes." [FN179] Further, he claims that "the frequency of false
accusations under these circumstances is quite high, especially because of
the vengeance and exclusionary benefits to be derived from such an
accusation." [FN180] Although the mass media has popularized Dr. Gardner's
assertions, experts believe that the occurrence of this type of false
allegation is rare. [FN181]

Regarding cases where allegations have first arisen during dissolution and
custody proceedings, experts have studied, documented, and articulated
numerous explanations. [FN182] While Dr. Gardner concludes that
allegations of sexual abuse are a "common" weapon of alienation in the
mother's arsenal during custody proceedings, [FN183] he overlooks the
reasons that have been identified by experts for the allegation appearing
during this time. [FN184] In explaining allegations of abuse in the
marital dissolution setting, experts have distinguished between why
children may first disclose during this time and why the abuse may first
occur during this time. [FN185]

1. Disclosures first made during dissolution proceedings

There are several reasons that abused children may be more likely to
disclose abuse by one parent and be believed by the other parent following
separation or divorce.  The abusing parent has less power to enforce
secrecy because the child has increased opportunity to disclose the abuse
in the absence of the offending parent. [FN186] Additionally, the
separation itself may create for the child the perception that he or she
now has the opportunity to disclose the abuse. [FN187] The child who had
been intimidated into silence may be more free to speak up after the
abuser has left. [FN188] The child who had feared that he or she would not
be believed may now sense that someone will indeed listen. [FN189]
Children, especially abused children, sometimes feel it is their
responsibility to keep the family together; [FN190] once the family
separates and the breakup relieves the child's feeling of responsibility,
the dynamic adjusts and the child is often able to confide in the
nonoffending parent. [FN191]

The timing of abuse disclosures may occur for other reasons as well.  For
example, the passive parent who refused to acknowledge the abuse before
separation may no longer have the need to "continue to selectively
perceive what had been going on." [FN192] Decreased dependency and
increased distrust between parents increases the willingness to suspect
child abuse by the other parent. [FN193]

2. Abuse that first occurs during dissolution proceedings

A possible reason that sexual abuse develops after parents separate is
that a parent may feel "lonely for emotional and sexual companionship" and
enter into an abusive relationship with the child. [FN194] The fact that
the child becomes more "vulnerable and accessible," [FN195] and that the
parent may be more likely to abuse substances [FN196] during this time,
increases the possibility of an abusive relationship developing after
separation.

Experts have identified other reasons that might motivate the abuser to
initiate a postseparation abusive relationship.  For example, it has been
noted:

The losses, stresses, and overall negative impact of separation and
divorce may precipitate regressive "acting out" by parents, including
child sexual abuse.  It is possible that the adult character traits and
behavior problems frequently associated with the sexual abuse of children
are more common in people whose marriages break up.  Included in this list
are narcissistic traits, paranoid ideation, antisocial tendencies,
impulsivity, sexual difficulties, and substance abuse. [FN197] Still
another motivator is anger:

The parent who becomes an abuser --whom Dr. Faller notes is most likely
the father [FN198]-- is often very angry at the spouse for destroying the
marriage and for other perceived or actual transgressions.  Direct
expression of that anger may be impossible or insufficient for
satisfactory retaliation.  The child then becomes the vehicle for that
expression or retaliation. [FN199]

In summary, Dr. Gardner's theory that the sexual abuse allegations
commonly made during a custody dispute are caused by the mother's desire
to win custody fails for two fundamental reasons:  (1) Allegations of
sexual abuse rarely arise during custody disputes; [FN200] and (2) if they
do, the theory fails to address the fact that the allegations may be
caused by a myriad of reasons other than the mother and her desire to win
custody. [FN201] To comprehend the potentially serious ramifications of
Dr. Gardner's broad and erroneous assertions, one only has to look at
Mandi's fate as an example of what children may face. [FN202]

IV. Evidentiary Problems with PAS

A.Frye 's "General Acceptance" Standard Jeopardized in State Courts:  The
Reliability of Scientific and Expert Testimony Is Endangered

1. The Supreme Court's new rule

A seventy-year-old legal standard has changed.  That standard restricted
the admission of expert testimony and scientific evidence to that which
was "sufficiently established to have gained general acceptance in the
particular field in which it belongs." [FN203] In announcing the "general
acceptance" test, the Court of Appeals for the District of Columbia in its
brief two-page Frye v. United States opinion cited no authority and did
not explain its reasoning. [FN204] The Frye test became the controlling
precedent in the majority of jurisdictions, dominating the admissibility
of scientific evidence. [FN205] Thus, only after a principle or discovery
had been accepted within its field did it receive judicial recognition.
[FN206] For example, in the case of Mandi, since PAS has not been accepted
within its field, [FN207] subjecting it to the Frye standard would have
rendered it inadmissible.

From its inception scholars and practitioners have debated the merits of
the Frye standard, giving rise to a burgeoning array of scholarship on its
proper scope and application. [FN208] Since 1975 the federal circuits have
split over whether the Federal Rules of Evidence supersede the Frye
standard. [FN209] Recently, the United States Supreme Court ended that
controversy, holding in a landmark decision that the Federal Rules of
Evidence supersede Frye's "general acceptance" test. [FN210]

The Court stated in Daubert v. Merrell Dow Pharmaceuticals, Inc.  [FN211]
that "neither Federal Rule 702 nor the Rules as a whole were intended to
incorporate a 'general acceptance' standard." [FN212] The Court also noted
that the drafting history of the Rules did not mention the Frye "general
acceptance" standard. [FN213] Moreover, according to the Court, adhering
to the " 'general acceptance' requirement would be at odds with the
'liberal thrust' of the Federal Rules and their 'general approach of
relaxing the traditional barriers to "opinion" testimony.' " [FN214]

Federal Rule of Evidence 702 states that "if scientific, technical, or
other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue . . . an expert . . . may
testify thereto." [FN215] This Rule, as construed by the Court in Daubert,
means that the federal district court judge is the gatekeeper in
determining whether scientific evidence should be admitted. [FN216] In
dissent Chief Justice Rehnquist and Justice Stevens expressed concern over
the majority's confidence in the ability of federal judges to determine
the validity of scientific evidence. [FN217] "Rule 702 confides to the
judge some gatekeeping responsibility . . . . But it imposes neither the
obligation nor the authority to become amateur scientists in order to
perform that role." [FN218]

The Daubert opinion controls only the federal courts, but it will
undoubtedly influence many state court decisions as well, since over
twenty states have modeled their own rules of evidence after the Federal
Rules. [FN219] Furthermore, numerous state courts have employed the Frye
standard for the past seventy years when considering the admissibility of
a vast array of evidence, from voiceprints [FN220] to bitemark comparisons
[FN221] to psychological theories. [FN222] Thus, the Daubert holding,
relaxing the traditional barriers to scientific and expert opinion
testimony, will now influence the admissibility of evidence in these as
well as a multitude of other areas--including PAS. [FN223]

2. The Supreme Court's reasoning

At issue in Daubert was whether the adoption of the Federal Rules of
Evidence superseded the Frye test. [FN224] The United States Supreme Court
held that it did. [FN225] The Supreme Court interpreted the legislatively
enacted Federal Rules of Evidence [FN226] as it would any statute, giving
them precedence over the common-law Frye test. [FN227] The Court
summarized its repudiation of Frye by saying that " Frye made 'general
acceptance' the exclusive test for admitting expert scientific testimony.  
That austere standard, absent from and incompatible with the Federal Rules
of Evidence, should not be applied in federal trials." [FN228]

The Court explained that under the Federal Rules of Evidence the trial
judge must "ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable." [FN229] The Court noted that
the trial judge will have "gatekeeping responsibility" [FN230] but
acknowledged that the opinion does not specify how a trial judge should
manage this task. [FN231] Instead, the Court avoided answering this
question by asserting that it is "better for the trial judge to note the
nature and source of the duty." [FN232]

The Court stumbled through a discussion of what qualifies as "scientific
knowledge":  "In order to qualify as 'scientific knowledge,' an inference
or assertion must be derived by the scientific method.  Proposed testimony
must be supported by appropriate validation-- i.e., 'good grounds,' based
on what is known." [FN233] The Court declared that "the requirement that
an expert's testimony pertain to 'scientific knowledge' establishes a
standard of evidentiary reliability." [FN234] The Court acknowledged that
scientists typically distinguish between "validity" and "reliability" and
announced that "in a case involving scientific evidence, evidentiary
reliability will be based upon scientific validity." [FN235]

Thus, the trial judge must initially determine whether the expert is
proposing to testify to scientific knowledge that will assist the trier of
fact to understand or determine a fact in issue. [FN236] According to the
Court, this determination requires a preliminary assessment of (1) the
scientific validity underlying the reasoning or methodology of the
proffered testimony, and (2) whether that reasoning or methodology can be
properly applied to the material facts in a particular case. [FN237] The
Court acknowledged that " 'expert evidence can be both powerful and quite
misleading because of the difficulty in evaluating it,' " [FN238] but
remained "confident that federal judges possess the capacity to undertake
this review." [FN239] The Court reasoned, without explaining how a judge
is to manage it, that "the focus . . . must be solely on principles and
methodology, not on the conclusions that they generate." [FN240] The Court
summarized its holding in Daubert as follows:

"General acceptance" is not a necessary precondition to the admissibility
of scientific evidence but the Rules do assign to the trial judge the task
of ensuring that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand.  Pertinent evidence based on
scientifically valid principles will satisfy those demands. [FN241]

Chief Justice Rehnquist, concurring in part and dissenting in part, agreed
with the majority that Frye did not survive the enactment of the Federal
Rules of Evidence. [FN242] However, he noted that construing the Rules
generally, vaguely, or abstractly is a serious flaw, especially "in a case
such as this, where the ultimate legal question depends on an appreciation
of one or more bodies of knowledge not judicially noticeable, and subject
to different interpretations in the briefs of the parties and their
amici." [FN243] Cases such as this do not deal with mainstream judicial
considerations--that is, case law or statutory language
interpretations--rather, "they deal with definitions of scientific
knowledge, scientific method, scientific validity, and peer review--in
short, matters far afield from the expertise of judges." [FN244] The Chief
Justice warned that in deciding what expert materials are useful and
necessary, judges must "proceed with great caution in deciding more than
they have to, because their reach can so easily exceed their grasp."
[FN245] Chief Justice Rehnquist stated that he is "at a loss to know what
is meant when it is said that the scientific status of a theory depends on
its 'falsifiability,' and he suspects that other judges will be, too."
[FN246]

The Daubert majority and dissent both recognized that rather than settling
the "general acceptance" debate-- or even clarifying it--the opinion does
not define for the trial judge just how he or she is to make a
determination of a scientific principle's validity. [FN247]

B. The Evidentiary Problem Applied to Syndrome Testimony Generally

Although the law and psychology are uneasy bedfellows, they are sometimes
forced to sleep together. [FN248]

Syndrome testimony requires the use of a psychological expert. [FN249]
Rules of evidence, permitting broad judicial discretion, invite confusion
and the uneven use of that discretion when judges, who lack a
psychological background, must determine whether proffered psychological
evidence is reliable. [FN250] Additionally, syndrome evidence may arouse a
variety of personal biases or fears, [FN251] thereby exacerbating the
problems of uneven use of judicial discretion. [FN252]

The law has tended to mistrust psychological testimony for various
reasons.  [FN253] Psychological testimony involves the use of statistical
and probability data, [FN254] and "most attorneys and judges are not
scientists and statisticians." [FN255] Often, lawyers and judges consider
psychological studies and clinical findings to be at odds with the
subjective legal decision-making process and, perhaps for this reason, may
prefer not to rely upon the scientific community to set methods for
determining reliability of such evidence in deciding admissibility.
[FN256] Additionally, psychological testimony does not utilize machines or
formulas that result in calculated and tangible findings; [FN257]
therefore, it may be met with more distrust, subjectivity, and uneven use
of discretion. [FN258]

The reliability of psychological testimony has been analyzed by first
categorizing scientific evidence as either "soft" or "hard" science.
[FN259] The Frye test was originally formulated to deal with hard
scientific evidence, [FN260] and has been criticized even in that context.
[FN261] The criticism of the Frye screening device of hard scientific
evidence--which is also relevant to the admission of PAS evidence--is that
requiring general acceptance may deprive the court of relevant evidence.
[FN262] Yet, as noted earlier, judges, lacking scientific expertise in a
particular field, are left with no method for discerning what evidence is
reliable and thus relevant; [FN263] therefore, they have relatively
unfettered discretion to admit the evidence. [FN264]

In the context of soft science--that is, psychological or syndrome
testimony-- courts have applied the Frye test as well. [FN265] As in the
hard science context, its application has been criticized. [FN266]
Professor David McCord notes that psychological evidence is not "locked up
in some mysterious nonhuman device or process," [FN267] and is thus less
likely to elicit unquestioning acceptance by the trier of fact. [FN268] On
the other hand, Professor McCord appreciates that rejection of the Frye
test leaves the major concern behind Frye, reliability of evidence,
unaddressed. [FN269] Professor McCord concedes that, even with respect to
psychological evidence, some inquiry into reliability is necessary in
order for the probative value of the evidence to be determined. [FN270]
Additionally, the inquiry into reliability would be necessary in order to
balance the probative value against the prejudicial impact of the
evidence. [FN271]

In contrast with Professor McCord's view, one court noted that within the
realm of soft science, the risk of admitting untrustworthy evidence is
deemed unacceptably high because the trier of fact can be misled with an
"aura of certainty, glossed by a psychiatric diploma and the facade of
superior knowledge to overestimate its probative value and obscure its
merely conjectural nature." [FN272] Thus, Professor McCord's view that
psychological evidence is less likely to be unquestioningly accepted by
the trier of fact does not address the problem that the trier of fact may
be influenced as strongly by psychological testimony as by hard scientific
evidence.  Further, psychological testimony could be more influential in
court because of the variety of fears and biases that such evidence may
trigger in the evaluator. [FN273] To complicate the problem even more,
inconsistent outcomes would result from uneven use of judicial discretion
in admitting the evidence. [FN274] Professor McCord has, however, aptly
noted that "because the legal system is ill-equipped to deal with this
type of evidence, the law concerning its admissibility has become a
quagmire." [FN275]

C. The Evidentiary Problem Applied to PAS

The question whether to admit psychological testimony is more critical
than whether to admit hard scientific evidence:  Recall Mandi's fate in
Karen B. v. Clyde M. [FN276] Clearly, the decision to admit psychological
testimony in child custody cases carries with it serious ramifications.
[FN277] The Karen B. court, basing its decision on the PAS to not only
take Mandi away from her mother, but to limit all contact with her,
acknowledged that the consequences of this Court's decision to Mandi are
potentially enormous.  If she is placed with her mother, and the father .
. . in fact . . . has done her no harm, then a tremendous injustice
results.  If custody is placed with the father, and he has sexually abused
her, an equal injustice with a potential for future harm ensues. [FN278]

Moreover, because of the broad judicial discretion allowed in qualifying
experts [FN279] and determining witness demeanor, [FN280] and due to the
length of time it takes to get a case heard on appeal, [FN281] the
consequences of an erroneous admission become even more serious.  The
Supreme Court of New York, hearing the Karen B. case on appeal, [FN282]
refused to reverse the trial court and granted it great deference because
(1) it had the advantage of viewing the witnesses and hearing their
testimony first-hand; (2) it properly had discretion to weigh the
conflicting testimony; and (3) it did not commit reversible error by
referring to PAS in its opinion, even when the book regarding the PAS was
neither entered into evidence nor referred to by any witness. [FN283]
Thus, determining whether psychological evidence is reliable enough to be
used in child custody cases carries with it perhaps the most
significant--and potentially irreversible--burden with which a judge could
be faced:  responsibility for ensuring a child's safety.

1. The dangers of PAS under Daubert

Since the Federal Rules of Evidence under Daubert supersede the Frye
standard, " 'general acceptance' is not a necessary precondition to the
admissibility of scientific evidence." [FN284] According to the Supreme
Court, the Rules require the trial judge to ensure that the expert's
testimony is reliable, relevant, and based on scientifically valid
principles. [FN285] Absent Frye's general acceptance standard, the trial
judge must determine, with little--if any--true guidance from the Daubert
Court, what scientific, technical, or specialized knowledge is admissible.  
Thus, Daubert leaves unaddressed the very problem that Frye's general
acceptance standard was devised to solve:  establishing a method for
ensuring that scientific evidence--that which is not readily understood by
a judge--is reliable prior to its admission, in order that the testimony
not unduly prejudice the party against whom it is admitted.  Prior to
Daubert, commentators criticized the Frye standard [FN286] and predicted
its demise; [FN287] and some discussed how a trial judge, absent a general
acceptance standard, would determine whether the scientific evidence at
issue should be admitted. [FN288] Since the Daubert Court's opinion fails
to answer this question, or to suggest a particular method, these
discussions may provide an understanding of how judges will go about
assessing the reliability of evidence like PAS.

a. reliability and relevancy under the Rule

Federal Rule of Evidence 401 states that evidence is relevant when it has
"any tendency" to make a material fact more or less probable than it would
be absent the evidence.  This first step necessarily requires an
evaluation of the evidence's probative value. [FN289] The way in which the
probative value of scientific evidence is evaluated is fundamentally
problematic with respect to the relevancy approach. [FN290] Relevance
corresponds to the reliability of evidence; if the evidence is not
reliable it is not relevant. [FN291] Because the judge, in cases where
scientific evidence is at issue, cannot resort to logic and
experience--the tools upon which judges rely to evaluate the probabilities
upon which relevancy turns [FN292]--he or she must turn to science.
[FN293] The judge, who probably lacks a scientific background in the
particular area, will generally be forced to determine whether evidence is
reliable on the basis of an expert's testimony: [FN294] "The court is
dependent upon the expert's assertions.  Overstatements by experts about
the conclusions that can be drawn . . . are not uncommon." [FN295] Thus,
"unreliable evidence could be admitted because of the meager demands of
logical relevancy." [FN296] Even more disconcerting, "the trial judge is
given considerable leeway in determining the qualifications of experts,
and his or her decision will be reversed only for an abuse of discretion."
[FN297] Additionally, if the trial judge is not knowledgeable about a
certain technique or theory, he or she cannot appreciate the extent to
which the evidence may become misleading once it has been determined
admissible. [FN298]

In theory, once it is established that evidence has probative value, the
evidence is relevant and admissible under Federal Rule of Evidence 402' s
"all relevant evidence is admissible" standard, and is subject only to
Federal Rule of Evidence 403. [FN299] Evidence is excluded under Rule 403
when its "probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury."  
Assessing the probative value of scientific evidence and its potential for
prejudicial impact may result in reliance on one expert's testimony.
[FN300] This means that the trier of fact may rely on one expert's opinion
in deciding whether to admit PAS testimony--when in fact PAS has not been
accepted by experts in the field. [FN301] Rule 403's requirement that the
prejudicial impact substantially outweigh the probative value before
exclusion is mandated may complicate this problem. [FN302] "Moreover,
appellate courts will defer to the trial court's discretion when reviewing
this issue." [FN303] Thus, the trier of fact's discretion over the
admission of expert testimony is broad and virtually unchecked.

It bears mention that Rule 702's requirement that the scientific evidence
"will assist the trier of fact" merely replaces with a helpfulness
standard the "common law requirement that an expert may only testify where
the subject matter of the testimony otherwise would be incomprehensible to
the lay factfinder." [FN304] Rule 702 does not clarify any standard for
admitting scientific evidence. [FN305]

B. Ramifications

Under the Rules a judge who likely has little of the particular scientific
background at issue will (1) determine the probative value of the evidence
based upon an expert's testimony; (2) identify the reliability of the
evidence based upon an expert's testimony; and (3) balance the probative
value of the evidence against possible prejudicial impact. [FN306] As
mentioned earlier, although the Daubert case is controlling only in
federal courts, some twenty states have adopted the Federal Rules of
Evidence. [FN307] Thus, the relaxed standard is potentially an approach
state courts--the likely forum where PAS evidence would be admitted--will
use. [FN308] If a consensus of experts within the field would not
otherwise accept the expert testimony--in this case PAS-- but the judge
nonetheless admits it, the result may be the misuse of unreliable
evidence, which in turn could result in grave consequences for some.
[FN309] In cases where the alleged PAS is said to contain a false
allegation of sexual abuse, the implications of admitting this unreliable
testimony are even more severe.

"Defendants and advocates for accused parents virtually always attribute
the falseness of the charges to the fact that they arose in a custody
suit; in addition, they attribute the child's confirmation to fantasy or
to brainwashing by the mother.  There are at least a few problems with
these arguments." [FN310] One such problem is that the nature of PAS
testimony in civil cases is that in reality it may heighten and shift the
burden of proof. [FN311] "The inflammatory character of a charge of child
sexual abuse, as well as the fact that the parent's right to maintain a
relationship with his child is at stake, renders the actual standard of
proof to be more like that of a criminal case." [FN312] It has been
observed that if the accuser fails to meet her burden of proof, the
alleged abuser is presumed to be innocent of the civil charges.  Because
burdens of proof are . . . shifted, . . . a failure to prove . . .
operates . . . like a vindication of the charge.  Consequently, the court
relinquishes the father's rights to custody or visitation, and in so doing
fails to protect some children from further sexual abuse. [FN313]

2. The merits of Frye's general acceptance standard

Prior to Daubert and the Federal Rules of Evidence, the Frye standard
provided a guideline for judges, who generally lack the scientific
expertise required to assess the reliability of scientific evidence to be
admitted. [FN314] In the absence of Frye's general acceptance standard,
the trial judge is responsible for ensuring that the scientific evidence
sought to be admitted is reliable. [FN315] In order to determine
reliability, the trial judge must first determine whether the evidence is
scientifically valid. [FN316] To evaluate the validity of the scientific
evidence in the absence of a general acceptance standard, judicial
understanding of scientific evidence is required; heretofore, this was
left to experts in the particular field. [FN317] Moreover, the effect of
admitting scientific testimony into evidence may be powerful--and, if
admitted in error, powerfully misleading. [FN318]

Ruling on the validity and admissibility of psychological evidence can be
particularly misleading since it is so easy to presume one's understanding
of human nature. [FN319] It can also be powerfully misleading because "the
analysis of a particular syndrome may arouse personal biases or fears."
[FN320] It has been noted that syndromes frequently involve important
social or moral issues.  A judge assessing the reliability of . . .
syndrome evidence may be influenced, consciously or subconsciously, by . .
. traditional myths . . . . The admissibility . . . may turn, in part,
upon the judge's perception of the . . . public awareness of the issue. .
. .

Calculating the full effect of the judges' personal perceptions regarding
the substance is difficult. [FN321] In the context of PAS cases, the
judicial biases that may affect the decision to admit the evidence are
critical because the decision carries with it the most serious of
implications--keeping a child safe from further abuse.  In discussing
custody disputes that involve allegations of child sexual abuse, one
author, reviewing surveys, studies, and research has observed that when a
judge is confronted with a custody dispute involving allegations of child
sexual abuse, he or she has to make a difficult judgment. . . . By the
nature of the problem, absolute proof cannot be established.
 
The deeply embedded taboo against incest negatively affects the
unbelievability of an actual case. . . . It is particularly difficult to
believe if the alleged abuser is the child's parent.  Judges, too, are at
least somewhat reluctant to believe that a child has been sexually abused.

When the alleged abuser is a middle- or upper-class man and a respected
professional, other similarly situated people may identify with him and
feel defensive on his behalf. . . . The father conveys to the judge that
he cares deeply about his children's welfare and would never harm them.  
On the surface, it is indeed hard to believe that this man could do such a
terrible thing to his child.

Like everyone else, outside the courtroom the judge is exposed to the
overpublicized image of mothers maliciously raising fictitious
allegations. The thought arises that the allegations were raised in the
context of a custody dispute and therefore should be considered suspect.  
Finally, even a subconscious identification with the father would arouse
the judge's anger toward the mother for stooping so low to accuse him of
such an awful thing.

It is submitted that in many cases, a judicial bias operates against the
accusing mother and the child. [FN322] Thus, absent any clear standard, it
is easy to see how PAS testimony gets admitted.

Professor Paul Giannelli contends that whereas the Frye test serves many
purposes, [FN323] its principal justification "is that it establishes a
method for ensuring the reliability of scientific evidence." [FN324] In
United States v. Addison, [FN325] the court aptly stated that "the
requirement of general acceptance in the scientific community assures that
those most qualified to assess the general validity of a scientific method
will have the determinative voice." [FN326] Frye's method of ensuring
reliability takes the responsibility of determining the validity of a
scientific principle away from the trial judge, leaving that determination
to experts who know most about it; thus, the trier of fact does not even
hear scientific evidence that is not generally accepted. [FN327] When left
to the experts who know most about it-- child abuse experts, rather than
family law attorneys--PAS is not considered to be reliable evidence.
[FN328] One court observed the following:

A courtroom is not a research laboratory.  The fate of one party should
not hang on his ability to successfully rebut scientific evidence which
bears an "aura of special reliability and trustworthiness," although, in
reality the witness is testifying on the basis of an unproved hypothesis
in an isolated experiment which has yet to gain general acceptance in its
field. [FN329]

The Florida District Court of Appeal, in determining whether a trial
court's order complied with rules governing psychological examinations,
spoke to the issue of admitting PAS testimony. [FN330] Noting that the
issue was not "whether the father's alleged abandonment of the child could
be legally excused by the presence of PAS," [FN331] the court went to the
trouble to state that "no determination was made in the order or on the
record as to general professional acceptance of the 'parental alienation
syndrome' as a diagnostic tool. . . . We note the cautionary words of
other current commentators: . . . . Experts have not achieved consensus on
the existence of a psychological syndrome that can detect child sexual
abuse." [FN332] In other words, the court implied that even if the issue
was whether a parent's behavior was consistent with PAS, PAS would be
subject to the Frye standard and would probably not be admitted. [FN333]
Considering the outcome in some of the cases where PAS has been admitted,
the Frye standard may be the only barrier between PAS and the safety of
abused children.

Dr. Gardner himself best summed up whether PAS should be properly admitted
when he wrote:  "PAS is an initial offering and cannot have pre- existing
scientific validity." [FN334]

V. Recommendation

The court in In re T.M.W. [FN335] suggested that PAS evidence ought to
fall-- or perhaps be shoved--by the wayside much like the tort of spousal
alienation of affection. [FN336] The court noted that "the few
jurisdictions which preserve alienation of affection actions as to spouses
have recognized the view of psychologists that causation probably cannot
be sorted out, and require proof that the alleged alienating conduct 'is
so significant as to outweigh the combined effect of all other causes.' "
[FN337] Thus, the court suggested that the same rationale should be
applied to PAS. [FN338]

Since causation in PAS probably cannot be sorted out, holding one parent
more responsible than the other would require proving that the culpable
parent's conduct is the primary cause of PAS, to the exclusion of other
contributing factors.  The problems inherent in how any expert--including
Dr. Gardner or a judge--would go about sorting out causation are well
demonstrated by the Friedlander case. [FN339] Although Dr. Gardner
testified that Zitta Friedlander was the cause of her children's
alienation of affection from their father, consider the facts surrounding
Zitta's demise. [FN340] The personal instability that precipitated Mr.
Friedlander's firing thirteen shots into his wife's body is a fairly good
indication that something else may have caused or contributed to his
children's alienation from him. [FN341] In light of the Friedlander
example, can we really expect PAS to sort out complex issues of causation
in more subtle cases?  PAS should not be admissible on the issue of
causation alone.

Additionally, PAS testimony should not even pass muster under Daubert.  
Daubert allows the trier of fact to rule on admissibility based upon one
expert's opinion as to whether or not the evidence is reliable and thus
relevant, but also, "the trial judge . . . pursuant to Rule 104(a) . . .
must make a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid." [FN342] In assessing
the validity of the proffered evidence, the judge may consider whether the
theory has been tested, whether it has been subjected to peer review and
publication, and whether it has attracted widespread acceptance within a
relevant scientific community. [FN343] In the case of PAS, Dr. Gardner has
based his theory entirely upon his own observations of his own patients;
[FN344] it is for the most part self-published, which circumvents peer
review; [FN345] and it has attracted anything but widespread acceptance.
[FN346] However, the Daubert Court also stated that "the inquiry is a
flexible one," [FN347] and declared that cross-examination, presentation
of contrary evidence, and careful instruction on the burden of
proof--rather than wholesale exclusion under an uncompromising general
acceptance standard--is the appropriate means by which evidence based on
valid principles should be challenged. [FN348] The problem with this in
the context of a PAS case [FN349] is that the mere admission of PAS means
that the trier of fact will be influenced by self-serving testimony that
carries with it an "aura of special reliability and trustworthiness."
[FN350] This false aura of reliability coupled with the variety of biases
that such evidence may trigger in the evaluator renders the consideration
of PAS under the Daubert standard especially precarious. [FN351] Given the
problems recognized by the Daubert Court with regard to a judge
determining the reliability of scientific testimony, Daubert should be
reversed.  Absent reversal, Daubert should be construed narrowly and
limited to its facts.  In so doing, only evidence dealing with medical
science that is considered to be "hard" would fall under its rule.  Thus,
Daubert's relaxed rule would not apply to psychological or syndrome
testimony--testimony that carries with it the most potential for misuse
[FN352] and the most serious of consequences. [FN353]

To the extent that a court would still entertain admitting such
evidence,at a minimum PAS should be subjected to the Frye standard.
[FN354] Prior to Daubert, one court expressly did just that. [FN355] A
defendant criminally charged with sexually abusing his daughter brought a
motion before the court that she be examined by an expert to determine
whether PAS existed. [FN356] The court denied defendant's motion but
alternatively ruled that defendant could have a pretrial hearing to
determine the admissibility of PAS testimony under the Frye standard.
[FN357] The court stated that Frye naturally extends to psychological
theories. [FN358] Because PAS has failed to gain general acceptance among
experts [FN359] in the psychological field, [FN360] it should not be held
admissible.  Considering what has happened in some of the cases where PAS
has been admitted, justice would be served by its exclusion.

VI. Conclusion

PAS testimony should not be admitted in court because of the causation
[FN361] and evidentiary [FN362] problems with the theory.  Because of the
dangerous aura of reliability and trustworthiness extant in Dr. Gardner's
self- published theory, admission of PAS is inevitable and particularly
disconcerting. The deceptive aura of reliability is one of the problems
that Professor John Myers, a sexual abuse evidentiary expert, [FN364] has
with syndrome evidence generally.  He says that the "aura of scientific
respectability gives the evidence more value than it really deserves."
[FN365] PAS, he explains, is just " 'a fancy-sounding name for something
that everyone has known forever'--that some parents will use their
children as weapons in bitter custody fights." [FN366] There are no easy
answers to the difficult question of how or where to draw a line when the
effects of parents' actions toward their children during any spousal
dispute-- while always damaging--become emotionally abusive to the
children and thus require outside intervention.  It is clear, however,
that PAS is not one of the potential answers--at least not without an
overhaul by a community of experts in the field.  Nonetheless, because it
is inevitable that some family law attorneys will be offering PAS
testimony into evidence, [FN367] and on the surface this evidence will
seem reliable and thus relevant, judges and children's advocates should
take note of the problems with PAS theory.  Not only could an erroneous
decision based upon PAS testimony place a child with an abusive parent,
but it would leave the child with no one to tell.  In order to protect
children from abuse, the acceptance of PAS should not be by family law
attorneys, [FN368] but rather by child abuse experts.  All psychological
evidence upon which a child's safety will turn must be subjected to
meaningful peer review, [FN369] publication, [FN370] or empirical testing.
[FN371]

***************************************

FNa I would like to thank Virginia Weisz, Esq., Directing Attorney of the
Children's Rights Project at Public Counsel, Los Angeles, California, for
her encouragement, guidance, and suggestion that I write about PAS.  Big
thanks also go to Professor Lydia Nayo for her insightful comments, and
the editors and staff of the Loyola of Los Angeles Law Review for their
hard and valuable work.  Thank you Stephanie Fernandez for taking such
good care of your little sisters and supporting me while I worked on this
Comment.  Tom Rouse, you are the best friend, helpmate, and bluebooker a
woman could have.  This Comment is dedicated to you Kristen because on the
day you were born heaven was missing an angel, and to you Courtney because
on the day you were born the world became a better place.

FN1. This summary of facts is taken from Karen B. v. Clyde M., 574
N.Y.S.2d 267 (Fam. Ct. 1991), aff'd sub nom. Karen "PP" v. Clyde "QQ", 602
N.Y.S.2d 709 (App. Div. 1993).  See infra part II.B for a complete
statement of the case.  For a detailed discussion of the Parental
Alienation Syndrome, see infra part II.A.

FN2. See Richard A. Gardner, M.D. , The Parental Alienation Syndrome
(1992).

FN3. Most often, the parent Dr. Gardner refers to is the mother seeking to
alienate "her" child from "her" spouse.  See infra notes 27, 37, 39-52 and
accompanying text.  Therefore, solely for the purpose of explaining Dr.
Gardner's theory, this Author may refer to the alienating parent as the
mother.

FN4. See infra notes 27, 37, 39-52 and accompanying text.

FN5. Gardner , supra note 2, at 270 -73; see also Rorie Sherman, Gardner's
Law, Nat'l L.J. , Aug. 16, 1993, at 1, 46 (reporting that Dr. Gardner
believes children with severe PAS should be taken from brainwashing mother
until they can be deprogrammed).

FN6. Gardner , supra note 2, at 327-34; Sherman, supra note 5, at 45.

FN7. See Gardner , supra note 2.  In fact, Dr. Gardner has authored more
than 250 books and articles advising mental health professionals and the
legal community on child custody issues.  Sherman, supra note 5, at 45.  
In the reference section of The Parental Alienation Syndrome, Dr. Gardner
lists 18 such publications.  Gardner , supra note 2, at 336-37.  Thirty
books are listed prior to the table of contents under the heading "Other
Books by Richard A. Gardner."  Id. at vi.  Although this seems like an
impressive number of publications, Dr. Gardner's works are published by
Creative Therapeutics, his own private publishing company, which boasts a
56-page mail-order catalog and provides an 800 number for sales in the
United States and Canada.  Sherman, supra note 5, at 45; see Gardner ,
supra note 2.  The inherent problem with such self-published work is the
lack of peer review.  See infra notes 22, 23, 58, 369.

FN8. See infra part II.A.

FN9. 293 F. 1013 (D.C. Cir. 1923), superseded by Fed. R. Evid. 702,
construed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
(1993).

FN10. See infra part IV.C.2 (explaining that Frye standard ensures that
scientific principle or theory is first accepted by relevant scientific
community prior to its admission in court).

FN11. 113 S. Ct. 2786.

FN12. See infra part II.A.

FN13. See infra part II.B.

FN14. See infra part II.C.

FN15. See infra part III.

FN16. See infra part IV.A.

FN17. See infra part IV.B.

FN18. See infra part IV.C.

FN19. See infra part V.

FN20. See infra part II.

FN21. See infra part VI.

FN22. Dr. Gardner prefers that the Parental Alienation Syndrome be
referred to as a "disorder" rather than a theory.  See Gardner , supra
note 2, at 59; Richard A. Gardner, M.D., Dr. Gardner Responds, N.J. L.J. ,
Jan. 18, 1994, at 20; Richard A. Gardner, Dr. Gardner Defends Work on Sex
Abuse, Nat'l L.J. , Sept. 6, 1993, at 16 hereinafter Gardner, Defends.  
In fact Dr. Gardner contends that referring to the PAS as a "theory"
implies that PAS is just "a figment of his imagination."  See Richard A.
Gardner, M.D., Evaluate Child Sex Abuse in Context, N.J. L.J. , May 10,
1993, at 16 hereinafter Gardner, Evaluate.  However, Dr. Gardner's critics
have said and Dr. Gardner acknowledges that there is no research to
confirm the existence of PAS or his description of its causes, see infra
notes 23, 58 and accompanying text; infra text accompanying notes 63,
65-67, nor is PAS listed in the American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987)
(commonly referred to as the DSM-III-R--the third revised of four editions
first appearing in 1957).  Sherman, supra note 5, at 45.  Dr. Gardner,
however, expresses confidence that someday PAS will be included.  Id. The
DSM-III-R is the "official manual of mental disorders that contains a
glossary of descriptions of the diagnostic categories of mental
disorders." Reginald A. Hirsch, Expert Witnesses in Child Custody Cases,
29 Fam. L.Q. 207, 218 (1985) (referring to the DSM-III); see also Sherman,
supra note 5, at 45 (describing DSM-III as "mental health professionals'
guidebook of accepted diagnoses").

FN23. See Gardner , supra note 2, at 59.  Dr. Gardner's other works,
including the problematic Sex Abuse Legitimacy (SAL) Scale, see infra part
II.A, are similarly based solely upon his own observations of patients
from his private practice.  See infra note 58; infra text accompanying
note 63.  Critics have emphasized the difficulty in developing a general
theory, that is meant to be applied broadly, from such a narrow
perspective.  See infra notes 47, 54-56, 58.  See also, e.g., Roland
Summit, M.D., The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse
& Neglect 177, 180 (1983) ("A syndrome should not be viewed as a
procrustean bed which defines and dictates a narrow perception of
something as complex as child sexual abuse.").  In particular, the SAL
Scale has been directly criticized for its lack of objectivity.  See,
e.g., Lucy Berliner & Jon R. Conte, Sexual Abuse Evaluations:  Conceptual
and Empirical Obstacles, 17 Child Abuse & Neglect 111, 114 (1993).  "The
SAL Scale suffers many unique problems.  It is based entirely on the
author's personal observations of an unknown number of cases seen in a
specialized forensic practice.  Although reference is made by Dr. Gardner
to studies carried out 'between 1982 and 1987' ... these are unpublished,
not described, and are of unknown value."  Id. (citations omitted).  For a
more complete discussion of psychologists' criticisms of the SAL Scale,
see infra note 58.

FN24. Gardner , supra note 2, at 59-60.

FN25. Id. at 60.

FN26. Id.

FN27. According to Dr. Gardner, in 90% of the cases it is only the mother
who attempts to alienate the children from the father.  Id. at 62, 106;
see Gardner, Defends, supra note 22, at 16; supra notes 39-52 and
accompanying text.

FN28. Gardner , supra note 2, at 83; Gardner, Defends, supra note 22, at 16.

FN29. Gardner, Defends, supra note 22, at 16.

FN30. Note that PAS theory was a creation of Dr. Gardner's existing prior
to his book, The Parental Alienation Syndrome.  See supra note 7; infra
notes 55, 58, 69 and accompanying text.

FN31. Gardner , supra note 2, at 61.

FN32. The best-interest-of-the-child presumption simply means that custody
ought to be decided according to what is in the best interest of the
child. Jon Elster, Solomonic Judgments:  Against the Best Interest of the
Child, 54 U. Chi. L. Rev. 1, 10 (1987)  (discussing problems arising from
best-interest- of-the-child presumption and proposed solutions).  Another
commentator states that the best-interest-of-the-child standard gives
judges "acres of room to roam" in discussing the ramifications of judicial
discretion in custody decisions.  Carl E. Schneider, The Tension Between
Rules and Discretion in Family Law:  A Report and Reflection, 27 Fam. L.Q.
229, 229-32 (1993).

FN33. Gardner , supra note 2, at 61.

FN34. Id.; see also Hirsch, supra note 22, at 211 (stating that
tender-years presumption has been brushed aside for best-interest
standard).

FN35. Gardner , supra note 2, at 61.  Some courts have recognized that
although a joint custody arrangement may offer many benefits to families,
it cannot work without parental agreement.  See, e.g., Braiman v. Braiman,
378 N.E.2d 1019, 1021 (N.Y. 1978) (stating that imposing court-ordered
joint custody arrangement on embattled parents unable to manage common
problems can only enhance familial chaos).

FN36. Gardner , supra note 2, at 61.

FN37. Gardner , supra note 2, at 62 (stating that mother is alienating
parent in 90% of PAS cases); Gardner, Defends, supra note 22, at 16
(stating that alienating parent is usually mother).  While Dr. Gardner's
personal observation that 90% of the time the mother is the alientating
parent smacks of gender bias, there have been other indications of his
bias as well.  See Sherman, supra note 5, at 46.  For example, it was
reported that Dr. Gardner presented himself to Dr. Joyce Wallace, a
Manhattan physician noted for pioneering AIDS research, as a therapist who
would help her and her ex-husband get along better during a fairly routine
custody battle.  Id.  Later, Dr. Wallace determined that Dr. Gardner had
actually been hired by her ex-husband.  Id.  Dr. Gardner found Dr. Wallace
fit to raise her nine-year-old daughter, but nevertheless decided to
recommend a custody change.  Id.  According to Dr. Wallace, " 'Dr. Gardner
said it was about time men got custody, and I was going to be his landmark
case.' "  Id. (quoting Dr. Joyce Wallace).  Although the custody suit was
ultimately dismissed, Dr. Wallace sued Dr. Gardner and got a $25,000
settlement in 1988.  Id.  In response to the publication of the facts of
Dr. Wallace's suit, Dr. Gardner acknowledged that he has "seen in print
many misrepresentations made by former patients" but that confidentiality
precludes him from commenting.  Gardner, Defends, supra note 22, at 16.  
Though Dr. Gardner indicates that he "often consults with knowledgeable
attorneys to ensure that he is working 'within the system,' " id., he
might check with one to see whether the patient-litigant exception to the
psychotherapist-patient privilege applies in any of the jurisdictions
where cases like Dr. Wallace's were filed.  This exception allows
disclosure of those matters which the patient has chosen to reveal by
tendering them in litigation.  See, e.g., Cal. Evid. Code s 1016 (West
1966).  It is the patient who holds the privilege, not the
psychotherapist.  Id. s 1013; see also In re Lifschutz, 2 Cal. 3d 415,
430, 467 P.2d 557, 566, 85 Cal. Rptr. 829, 838 (1970) (indicating that
psychotherapist cannot claim privilege).  Moreover, the privilege only
extends to communications that the patient intended to be kept
confidential-- though the exception is to be construed narrowly--once
those issues are brought out in a lawsuit by the patient they are no
longer confidential.  Id. at 433, 467 P.2d at 569, 85 Cal. Rptr. at 841
(finding "no constitutional infirmity" in patient-litigant exception by
reasoning that "in cases in which the patient's own action initiates the
exposure, 'intrusion' into a patient's privacy remains essentially under
the patient's control").  By initiating a lawsuit, the patient has waived
the privilege--and because the patient is the holder of the privilege--the
confidential privilege cannot be asserted by the psychotherapist.  Id.
(stating that "in all fairness, a patient should not be permitted to
establish a claim while simultaneously foreclosing inquiry into relevant
matters").  For a discussion regarding the dangers of basing a theory on
one's own clinical observations, see supra note 23; infra note 369.

FN38. Gardner , supra note 2, at 61-62.

FN39. See id. at 82-106.

FN40. See id. at 106-15.  Notably, unless referring to a specific
incident, Dr. Gardner uses the gender-neutral terms "parent" or "his
(her)" in the discussionregarding the "programming father."  See id. at
106-07.

FN41. Id. passim.

FN42. Id. at 62.  Interestingly, it is common and has been the historical
practice for authors to use masculine pronouns for simplicity, even though
this practice has been widely criticized by linguists, feminists, and
others.  See, e.g., Carol Sanger, Feminism and Disciplinarity:  The Curl
of the Petals, 27 Loy. L.A. L. Rev. 225, 247 n.87 (1994) (labeling
practice "crucial mechanism for promoting conceptual invisibility of
women").

FN43. See Gardner , supra note 2, at 62, 106.

FN44. Id. at 122.

FN45. Id.

FN46. Id.  Contra infra notes 198-99 and accompanying text.

FN47. One author has not only noted that fathers brainwash their children
during divorce, but described how in the chapter of her book entitled
"Paternal Brainwashing."  Phyllis Chesler , Mothers On Trial:  The Battle
For Children and Custody 171-89 (1986).  Paternal brainwashing methods
include:  (1) using physical force or the mere threat of it; (2) using
economic seduction and manipulation; (3) paying attention to previously
paternally neglected children; (4) smothering with paternal neediness; (5)
devaluing the mother; (6) replacing the mother with mother competitors.  
Id. at 174-84.

FN48. Gardner , supra note 2, at 122-27.

FN49. Id. at 126.

FN50. Id.

FN51. Id.

FN52. Id. at 126-27.

FN53. Id. at 126.

FN54. Results from a two-year study funded by the National Center on Child
Abuse and Neglect showed that in over 9000 families with
custody-visitation disputes, less than 2% involved an abuse allegation.  
Nancy Thoennes & Patricia G. Tjaden, The Extent, Nature, and Validity of
Sexual Abuse Allegations in Custody/Visitation Disputes, 14 Child Abuse &
Neglect 151, 152-53 (1990). Belying Dr. Gardner's notion that allegations
of sexual abuse in custody disputes are typically brought by the mother
against the father, the study showed that mothers accused the father in
less than half (48%) of the already small percentage of cases.  Id. at
154.  In the remaining cases the accused persons were third parties such
as the mother's new partner, stepfathers, or others.  Id.; see also Lucy
Berliner, The Child Witness:  The Progress and Emerging Limitations, 40 U.
Miami L. Rev. 167, 177 (1985) (stating that media's publicizing of
mother's brainwashing children lacks authoritative support); Berliner &
Conte, supra note 23, at 112 ("Even in clinical series which involve
complex, disputed custody or visitation cases, a substantial percentage of
cases are considered to involve actual abuse." (emphasis added)); Jon R.
Conte, Has This Child Been Sexually Abused?:  Dilemmas for the Mental
Health Professional Who Seeks the Answer, 19 Crim. Just. & Behav. 54, 62
(1992) ( "As of the writing of this article, I am aware of not a single
empirical study that has documented that in fact false cases of sexual
abuse are more likely to arise in divorce/custody cases."); Meredith
Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes:  
Getting to the Truth of the Matter, 25 Fam. L.Q. 193, 199 (1991) ("Experts
disagree as to the specific percentage of allegations that are fictitious,
but most acknowledge that this occurs rarely."); Kathleen Coulborn Faller,
Possible Explanations for Child Sexual Abuse Allegations in Divorce, 61
Am. J. Orthopsychiatry 86, 86 (1991) ( "Research indicates that false
allegations made in the context of divorce are ... by no means the
majority."); Erna Olafson et al., Modern History of Child Sexual Abuse
Awareness:  Cycles of Discovery and Suppression, 17 Child Abuse & Neglect
7, 18 (1993) ("Recent research indicates that fabrication is infrequent in
custody disputes."); Jessica Pearson, Ten Myths About Family Law, 27 Fam.
L.Q. 279, 293-94 (1993) (arguing that media accounts and small clinical
studies have fostered false perception that sexual abuse allegations in
contested custody cases are rampant); Susan Romer, Comment, Child Sexual
Abuse in Custody and Visitation Disputes:  Problems, Progress, and
Prospects, 20 Golden Gate U. L. Rev. 647, 648-51 (1990) (concluding that
valid studies confirm that deliberately false allegations in
custody-visitation disputes are rare)- Moreover, while a detailed
discussion is beyond the scope of this Comment, the fact remains that the
overwhelming majority of child sexual abuse in any context is not
disclosed, and if it is disclosed then the abuse is not reported.  See,
e.g., Summit, supra note 23, at 186-87 (noting that "most ongoing sexual
abuse is never disclosed" and that "of the minority of incest secrets that
are disclosed ... very few are subsequently reported to outside
agencies").

FN55. John E.B. Myers, Allegations of Child Sexual Abuse in Custody and
Visitation Litigation:  Recommendations for Improved Fact Finding and
Child Protection, 28 J. Fam. L. 1, 21 n.104 (1989-1990) (quoting Richard
A. Gardner , The Parental Alienation Syndrome and the Differentiation
Between Fabricated and Genuine Sexual Abuse 274 (1987)).

FN56. Id. at 21 (footnotes omitted).

FN57. Gardner , supra note 2, at 185-218.

FN58. See Berliner & Conte, supra note 23, at 114 (citing multiple
problems with SAL Scale and concluding that Scale lacks predictive value
to determine validity of child sexual abuse allegations); Conte, supra
note 54, at 68-69 (criticizing Gardner's evaluation procedure of viewing
child in presence of offender and noting that no data currently available
identifies method for discriminating between nonabusive child-adult dyads
and abusive child-adult dyads); Jon R. Conte et al., Evaluating Children's
Reports of Sexual Abuse: Results from a Survey of Professionals, 61 Am. J.
Orthopsychiatry 428, 434 (1991) (criticizing Gardner's suggestion that
"the child who is fabricating sexual abuse generally does not describe
fear of the perpetrator and is usually free from tension in the
perpetrator's presence," and pointing out that no criteria for
discriminating between "true" and "false" cases has been empirically
validated (quoting Gardner , supra note 55, at 115)); Jill Waterman &
Robert Lusk, Psychological Testing in Evaluation of Child Sexual Abuse, 17
Child Abuse & Neglect 145, 152-53 (1993) (citing SAL Scale as example of
test without research findings or empirical backing that is "useless in
validating child sexual abuse at best, and dangerous at worst").

FN59. See Gardner , supra note 55; Sherman, supra note 5, at 46.

FN60. Gardner , supra note 2, at 61.

FN61. Id. at 126.  Contra sources cited supra note 54-56 and accompanying
text.

FN62. Page v. Zordan, 564 So. 2d 500, 502 (Fla. Dist. Ct. App. 1990).

FN63. Berliner & Conte, supra note 23, at 114.

FN64. Conte et al., supra note 58, at 434.

FN65. Id.

FN66. Id.

FN67. Sherman, supra note 5, at 45 (alteration in original) (quoting
Professor Jon Conte).  Sherman aptly notes that Professor Conte's
statement is "an echo of the larger debate currently raging on 'junk
science.' "  Id.  This is precisely the debate discussed in this Comment
regarding the evidentiary problems with PAS.  See discussion infra part
IV.

FN68. Sherman, supra note 5, at 46 (quoting Professor Jon Conte); Debra
Cassens Moss, Abuse Scale, A.B.A. J. , Dec. 1, 1988, at 26, 26.

FN69. Gardner, Evaluate, supra note 22, at 16; Sherman, supra note 5, at
45. However, it appears that Dr. Gardner does not make this fact widely
known. Id. at 46.  Dr. Gardner states that he discontinued use of the
scale because of its "wide-spread misuse."  Gardner, Evaluate, supra note
22, at 16.  But cf. sources cited supra note 58; supra text accompanying
notes 63, 66 (stating that SAL Scale has no value due to its lack of
scientific basis or research).  In particular, Dr. Gardner claims that the
scale was withdrawn because of "the misuse of the assignment of numerical
values for each criterion that was often used to justify a bias in one
direction or another."  Gardner, Evaluate, supra note 22, at 16, 36.  
Yet, Dr. Gardner's own use of the scale has been questionable as well.  
While working as a prosecutor, Deputy District Attorney Christopher H.
Gardner--not related to Dr. Gardner--agreed to a defense request to have
Dr. Gardner evaluate all parties in a child sexual abuse case. Sherman,
supra note 5, at 46.  During the course of his evaluation, Dr. Gardner
responded to the SAL Scale question of whether the mother has sought a
"hired gun" or mental health professional by identifying the prosecutor as
the mother's "hired gun."  Id.  This characterization of the prosecutor
made it more likely to find a false allegation of abuse.  Id.  " 'If you
believe your child has been sexually abused, shouldn't you be going to an
attorney and seeking medical advice?' "  Id. (quoting Deputy District
Attorney Christopher H. Gardner).  Note also that Dr. Gardner's recent
publications do not directly refer to his previously self-touted SAL
Scale, yet the Scale is embodied within them.  See supra notes 7, 63 and
accompanying text; infra note 70 and accompanying text.

FN70. Not only does the PAS theory contain similar criteria to the SAL
Scale for identifying false allegations of sexual abuse--in fact, the
discredited scale is based on PAS, see Berliner & Conte, supra note 23, at
114 --but the SAL Scale still lurks within other works of Dr. Gardner.  
See Sherman, supra note 5, at 46 (revealing that though SAL Scale is
"dead," Dr. Gardner "subsumed" criteria in longer list in his book True
and False Accusations of Child Sex Abuse).  True and False Accusations of
Child Sex Abuse appears on the list of his self-published books under the
heading "Other Books by Richard A. Gardner" in The Parental Alienation
Syndrome.  Gardner , supra note 2, at vi. It is noteworthy that True and
False Accusations of Child Sex Abuse has been reported to contain criteria
not necessarily derived directly from the SAL Scale but which, according
to Dr. Gardner's experience, are indicators of false accusations of child
sexual abuse by women.  See Sherman, supra note 5, at 46.  The indicators
quoted include the following:  She is aggressive:  "Mothers who promulgate
false accusations are more likely to be self-assertive.  They are the ones
who are more likely to make a commotion over the alleged abuse .... She is
outgoing:  "Mothers of children who provide false accusations are more
likely to be outgoing, assertive and argumentative.  They are very
independent types who are less likely to have been constrained in their
speech or movements by a domineering husband.  She is impulsive:  
"Typically, they do not call first the child's father, the person who
might give them some information regarding whether or not the abuse took
place.  Rather, they quickly call a lawyer, child protection services, or
other external authority." Id. (alteration in original) (quoting Richard
A. Gardner , True and False Allegations of Child Sex Abuse (1992)).
According to one prominent child advocate, " 'no matter what a woman would
do, under Dr. Gardner's writings, she is going to do something wrong
unless she disbelieves her child.' "  Id. (quoting Joan Pennington,
founder of The National Center for Protective Parents in Civil Child Sex
Abuse Cases in Trenton, New Jersey).

FN71. Sherman, supra note 5, at 46 (quoting Ann Haralambie, President,
Arizona Council of Attorneys for Women).  Ms. Haralambie has also served
as President of the National Association of Counsel for Children.  See
Moss, supra note 68, at 26; Debra Cassens Moss, Do Kids Lie?, A.B.A. J. ,
Dec. 1, 1988, at 25, 25.

FN72. Karen B. v. Clyde M., 574 N.Y.S.2d 267, 268 (Fam. Ct. 1991), aff'd
sub nom. Karen "PP" v. Clyde "QQ", 602 N.Y.S.2d 709 (App. Div. 1993).

FN73. Id.

FN74. Id.

FN75. Id. (quoting Mandi's mother's petition).

FN76. Id.

FN77. Id.

FN78. Id.

FN79. Id.

FN80. Id.

FN81. Id.

FN82. Id. at 269.  Contrast Ms. Malachowski's finding that 25% of the
children she interviewed made false allegations with the statistics cited
supra notes 54-56.  See also Summit, supra note 23, at 190 ("Very few
children, no more than two or three per thousand, have ever been found to
exaggerate or to invent claims of sexual molestation.").

FN83. Mandi's interview with Ms. Malachowski suggests that the questions
were leading.  The following pertinent part of the dialogue between Mandi
and Ms. Malachowski is quoted from the court's published opinion:
Therapist:  Q.  "Mandi, did any kind of touching troubles happen with your
pepe, boobies or your butt?  Or, are you making believe?"
Mandi:  A.  "Making believe.  He didn't do it."
Therapist:  Q.  "He didn't do it?"
Mandi:  A.  "No."
Therapist:  Q.  "Who didn't do it?"
Mandi:  A.  "My father; I was just joking about it."
Therapist:  Q.  "You were just joking about it.  So Daddy really didn't do anything.  You were only making believe about it?"
Mandi:  A.  "Yes."
Therapist:  Q.  "How come you were only making believe about it?"
Mandi:  A.  "I was joking."
Therapist:  Q.  "How come you were just joking about it?"
Mandi:  A.  "I don't know."
Therapist:  Q.  " Did anybody tell you to make a joke about it?"
Mandi:  A.  "Yes."
Therapist:  Q.  "Who told you to make a joke about it?"
Mandi:  A.  "I don't know."
Therapist:  Q.  "You don't know.  Alright, I think then we are done talking, okay?  Is there anything else you want to talk about?"
Mandi:  A.  "No." Karen B. 574 N.Y.S.2d at 269 (emphasis added).

FN84. Id.  It appears, however, that children commonly retract sexual
abuse allegations in substantiated cases.  Summit, supra note 23, at 188.  
According to Dr. Summit, the conflict of loyalty, the fear of
consequences, and the victim's sense that he or she may bear the
responsibility for "the chaotic aftermath of disclosure" can "likely" lead
to such retractions.  Id. " Whatever a child says about sexual abuse, she
is likely to reverse it."  Id. A group of experts have written: Following
disclosure, powerful forces feelings of guilt and personal responsibility
combined with feelings of loss and grieving for the emotional warmth the
abuser provided--although at a price may work to convince the child to
change the facts or to recant altogether.  Such forces are particularly
strong in intrafamilial abuse cases, where the perpetrator, with or
without the cooperation of the nonabusing parent, seeks to persuade the
child to change or deny prior allegations.  There may be ample opportunity
to instill fear, guilt, and ambivalence. John E.B. Myers et al., Expert
Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 87 (1989)
(footnote omitted); see also id. at 87 n.370 (describing abused child's
feelings that elicit retraction).  " Unless there is special support for
the child and immediate intervention to force responsibility on the
father, the girl will follow the 'normal' course and retract her
complaint."  Summit, supra note 23, at 188.  "Because children face a
conflict over whether to tell when they are sexually abused by a family
member, they sometimes later retract their allegations."  Fahn, supra note
54, at 204.  In fact, the majority of courts allow expert testimony to
explain why children recant their allegations of sexual abuse.  Myers,
supra note 55, at 18.

FN85. Karen B., 574 N.Y.S.2d at 269.  The fact that Mandi did not refer to
the penis as a "dink" during her interview with Ms. Malachowski would not
be considered an inconsistency leading to a conclusion of fabrication by
experts. See, e.g., Myers, supra note 55, at 18-19; Myers et al., supra
note 84, at 88; Summit, supra note 23, at 186.  In fact, experts have
said: Children who disclose sexual abuse are sometimes inconsistent in
their descriptions of what happened.  Inconsistency occurs for many
reasons, three of which are particularly relevant to the present
discussion regarding credibility of the allegation.  First, when a child
is repeatedly abused for months or years, individual molestations blur
together.  If the child is asked to describe particular episodes, the
child may become confused, and such confusion may lead to inconsistent
versions of events.  Second, the ambivalence experienced by many victims
sometimes causes them to offer inconsistent accounts of abuse.  Such
inconsistency is found in children of all ages.  Third, with young
children, inconsistency in describing past events may be a product of
developmental immaturity.  Young children are particularly prone to
inconsistency regarding the peripheral details of events they have
experienced. Myers et al., supra note 84, at 88. According to Dr. Summit,
disclosures of sexual abuse in substantiated cases may be delayed,
conflicted, and unconvincing.  Summit, supra note 23, at 186.  Moreover,
according to Professor Myers, the majority of courts allow expert
testimony to explain why children's descriptions of abuse are sometimes
inconsistent.  Myers, supra note 55, at 18-19.

FN86. Karen B., 574 N.Y.S.2d at 269.  According to Professor Myers,
however it is important to guard against misinterpreting the behavior of
parents who make accusations of child sexual abuse.  Such parents are
under extraordinary, sometimes disabling, stress.... Desperate to protect
their children, such parents may act in ways that appear irrational... The
supercharged atmosphere surrounding allegations of child sexual abuse
sometimes breeds unusual and even bizarre behavior in parents.  The
professionals involved in such cases must step back and evaluate parental
action with an understanding of the pressure experienced by both parents.
Myers, supra note 55, at 38-39.

FN87. Karen B., 574 N.Y.S.2d at 269.

FN88. Id.  Physical or laboratory evidence of child sexual abuse is
commonly not found in the majority of cases.  Myers et al., supra note 84,
at 34-35, 37 & nn.120-22.  "One myth is that there is no sexual abuse if a
doctor finds no physical evidence of abuse.  The truth is that most young
children are molested by fondling ...."  Moss, supra note 71, at 25.  
"Often, there is no physical evidence of abuse."  Romer, supra note 54, at
667.

FN89. Karen B., 574 N.Y.S.2d at 269.  Often only extreme cases of child
abuse escape "unfounded" status by social service agencies.  See Fahn,
supra note 54.  Unfounded cases are sometimes referred to as
"unsubstantiated." Id. at 197 n.23- A common problem that has rendered
statistics concerning valid sexual abuse allegations less reliable is the
confusion of the terms "unsubstantiated" and "false allegations":  
researchers and others have sometimes treated unsubstantiated allegations
as false.  David L. Corwin et al., Child Sexual Abuse and Custody
Disputes:  No Easy Answers, 2 J. Interpersonal Violence 91, 94-101 (1987);
Fahn, supra note 54, at 200; Myers, supra note 55, at 23.  Experts have
noted that the two terms are distinct.  Corwin et al., supra, at 94 ("
Unsubstantiated is not the same as false."); Fahn, supra note 54, at 200
("It should be emphasized that unsubstantiated does not mean that the
allegations of abuse are untrue."); id. ("Distinctions should be made
between unsubstantiated allegations and affirmative findings that there
was no abuse."); Myers, supra note 54, at 23 ("There is an important
distinction between unsubstantiated reports and fabricated reports."); id.
("A fabricated report is a deliberate falsehood."). Unsubstantiated means
that the evidence was insufficient to affirmatively conclude that the
child was sexually abused.  Corwin et al., supra, at 94-95; Fahn, supra
note 54, at 197; Myers, supra note 55, at 23.  This may be a result of
many factors, which include the following:  (1) Sexual abuse disclosures
which are typically conflicted, delayed, and unconvincing refute the
accurate and consistent evidence required of a court case; (2) budget
constraints burden all aspects of the child-protection system; (3) heavy
caseloads delay investigations; (4) caseworkers' interpretations of
allegations and evaluations are subjective at best; and (5) high
caseworker turnover, low salaries, and lack of adequate training programs
plague effective case management.  See, e.g., Katherine L. Armstrong, How
to Avoid Burnout:  A Study of the Relationship Between Burnout and Worker,
Organizational and Management Characteristics in Eleven Abuse and Neglect
Projects, 3 Child Abuse & Neglect 145 (1979); Corwin et al., supra, at
94-95; Fahn, supra note 54, at 197-200; Myers, supra note 55, at 22-25;
Summit, supra note 23, at 186-88.

FN90. Karen B., 574 N.Y.S.2d at 270.

FN91. Id.

FN92. Id.

FN93. Id.

FN94. Id.

FN95. Id.

FN96. Id.  Recall, Ms. Malachowski had interviewed approximately two
hundred children.  See supra note 82 and accompanying text.

FN97. Karen B. , 574 N.Y.S.2d at 270.

FN98. Id.

FN99. Id.  It is commonly thought, and at first blush it would seem
logical, that a child who is abused would be fearful of the abuser.  
However, experts agree that this often is not the case, particularly when
the abuser is also the child's parent.  See Conte et al., supra note 58,
at 434. A child who has been sexually abused, perhaps over much of his or
her life, by an adult with whom the child has an otherwise positive
relationship may show no fear because fear has not been induced by the
experience or because the child has learned that abuse does not take place
while other adults ... are present. Id.  The notion that a child will show
anxiety or fear in the presence of the alleged offender "ignores the fact
that many children accommodate to abuse and learn over time to show no
manifestation (symptoms) of abuse.... The ongoing relationship with the
offender father ... may have many positive aspects." Conte, supra note 54,
at 68.  "That sexually abused children often display affection for the
parents who have abused them is acknowledged by many professionals working
with incestuous families."  Corwin et al., supra note 88, at 98.  "Even
though a child is harmed by sexual abuse, he may feel torn by loyalty
toward his abuser.  The child still desires affection from the parent
...."  Fahn, supra note 54, at 203.  "It is not uncommon for abused
children to want to live with and demonstrate affection toward the abusing
parent."  Myers et al., supra note 84, at 88.  "Children may be given
permission to avoid the attentions of strangers, but they are required to
be obedient and affectionate with any adult entrusted with their care."  
Summit, supra note 23, at 182.  "The only healthy option left for the
child is to learn to accept the situation and to survive.  There is no way
out, no place to run. The healthy, normal, emotionally resilient child
will learn to accommodate to the reality of continuing sexual abuse."  
Id. at 184.

FN100. Karen B., 574 N.Y.S.2d at 270.

FN101. Id. at 271-72 (citing Gardner , supra note 55, throughout this
portion of the opinion).  Remarkably, this book--which the court relied
on-- contains the PAS theory as well as the SAL Scale, which experts have
noted is extremely problematic.  See supra notes 58-71 and accompanying
text.  The court's citation to this book also substantiates that Dr.
Gardner's withdrawal of the Scale is not widely known, see supra note 69,
and that the criteria used in the Scale still exists in the PAS theory,
see supra notes 7, 63, 70 and accompanying text.

FN102. Karen B., 574 N.Y.S.2d at 272.

FN103. Id.

FN104. Id.

FN105. Id. at 271-72.

FN106. Gardner, Defends, supra note 22, at 16.  The first wave of hysteria
was the Salem witch trials and wave two was McCarthyism.  Id.  However,
Professor John Myers quips that the assertion that there is a " ' wave of
fabricated allegations,' " is "the allegation most likely to be false."  
Myers, supra note 55, at 25 (emphasis added).

FN107. Sherman, supra note 5, at 46.  Compare Karen B., 574 N.Y.S.2d at
272 (acknowledging potentially enormous consequences for child of
erroneous finding as compared to "tremendous injustice" to father;
awarding custody of child to accused father) with In re Nicole V., 510
N.Y.S.2d 567, 572 (App. Div.), aff'd, 518 N.E.2d 914 (N.Y. 1987)
(declaring that erroneous finding is more detrimental to child than
parent; approving finding of sexual abuse).

FN108. See Sherman, supra note 5, at 46.

FN109. Id.; see Patricia Davis, Jury Finds Friedlander Guilty in Wife's
Death, Wash. Post , May 10, 1989, at D5 hereinafter Davis, Friedlander
Guilty.  Zitta Friedlander did not, however, conform to Dr. Gardner's
model of the economically depressed and frustrated woman.  See supra text
accompanying note 47.  Instead, Zitta possessed a Doctorate in Physics and
was employed as a scientist making $70,000 per year.  Patricia Davis,
Trial of Husband Opens in Scientist's Slaying, Wash. Post , May 2, 1989,
at A8 hereinafter Davis, Trial Opens.

FN110. See Davis, Trial Opens, supra note 109, at A8; Thomas Heath,
Gaithersburg Physicist to Fight Extradition in Slaying of Wife, Wash. Post
, July 8, 1988, at D1; Physicist Sentenced to 42 Years in Wife's Slaying
in McClean, Wash. Post , July 22, 1989, at B5 hereinafter Physicist
Sentenced. Mr. Friedlander first attempted to fight extradition to
Virginia to stand trial for murder, then denied killing his wife, and even
sought a court order for doctors to administer truth serum in order to
prove his innocence.  See Heath, supra, at D1; Thomas Heath, Truth Serum
Requested, Wash. Post , Oct. 10, 1988, at C7.

FN111. Sherman, supra note 2, at 46 (quoting Dr. Gardner); see also Davis,
Friedlander Guilty, supra note 109, at D5 (reporting that defense
attempted to make jury understand Friedlander's "mental torture" over
deprivation of his children).

FN112. Scientist Sentenced for Murdering Wife, Wash. Times , July 24,
1989, at B2.  The jury deliberated for less than a day.  Hanna W. Rosin,
Where's the Hysteria?, Recorder , Jan. 6, 1993, available in LEXIS, Nexis
News Library, Recrdr File.

FN113. See Physicist Sentenced, supra note 110, at B5.

FN114. See Schutz v. Schutz, 581 So. 2d 1290 (Fla. 1991).

FN115. Id.

FN116. David L. Ferguson, Comment, Schutz v. Schutz :  More Than a Mere
"Incidental" Burden on First Amendment Rights, 16 Nova L. Rev. 937, 942
(1992).

FN117. Schutz, 581 So. 2d at 1292 (alteration in original) (emphasis
added) (quoting order of trial court).  The writings of Dr. Gardner
indicate that he would clearly support the order of the trial court.  For
example, in The Parental Alienation Syndrome he states that "the parent
who expresses neutrality ... is essentially communicating criticism of the
father.... Under the guise of neutrality, such a parent can engender and
foster alienation." Gardner , supra note 2, at 100.  Note that Dr. Gardner
characterizes the hypothetical "parent" expressing neutrality as the
mother, since the neutrality communicates criticism of the father.  These
inferences against the mother appear throughout the book.  See supra notes
27, 37, 39-52 and accompanying text.

FN118. Schutz, 581 So. 2d at 1293.

FN119. According to the court, "the burden is 'incidental' because the
state interests which are furthered by the order are 'unrelated to the
suppression of free expression.' "  Id. at 1292 n.2 (quoting United States
v. O'Brien, 391 U.S. 367, 377 (1968)).  For a complete discussion on the
Schutz court's misapplication of the O'Brien test and analysis, see
Ferguson, supra note 116, at 949.

FN120. " 'Parens patriae' refers ... to the role of the state as ...
guardian of persons under legal disability, such as juveniles ... in child
custody determinations, when acting on behalf of the state to protect the
interests of the child.  It is the principle that the state must care for
those who cannot take care of themselves ...."  Black's Law Dictionary
1114 (6th ed. 1990).  For a discussion regarding the problems with the
traditional concept of parens patriae, see Shannan L. Wilber, Independent
Counsel for Children, 27 Fam. L. Q. 349, 350 (1993) (explaining that
judges cannot simultaneously act as advocate for child and impartial
arbiter in case).

FN121. Schutz, 581 So. 2d at 1292-93.

FN122. Id. at 1292 (citing West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943) (declaring that state cannot "prescribe ...
matters of opinion or force citizens to confess by word or act their faith
therein")).

FN123. Id.

FN124. See id.

FN125. Id.; see Ferguson, supra note 116, at 938.

FN126. Ferguson, supra note 116, at 939.

FN127. Id. at 952.

FN128. Id.  Arguably, requiring the mother to convince her
daughters--rather than encourage them--goes beyond the affirmative
obligation seemingly envisioned by state law, and actually makes the
mother responsible for the daughters' state of mind, as opposed to their
conduct.  Other courts have recognized the problem in holding the mother
responsible even for the child's conduct.  See, e.g., Coursey v. Superior
Court, 194 Cal. App. 3d 147, 239 Cal. Rptr. 365 (1987) (reversing contempt
order against mother based on daughter's refusal to visit father since
mother herself could not comply with order by compelling teenage daughter
to visit her father).  In Coursey, a therapist testified that the daughter
was suffering from PAS.  Id. at 150, 239 Cal. Rptr. at 366.

FN129. Compare Coursey, 194 Cal. App. 3d 147, 239 Cal. Rptr. 365
(reversing contempt order previously entered against mother because mother
could not comply) with Schutz, 581 So. 2d 1290 (ordering mother to
convince her daughters that mother wanted daughters to see father).

FN130. Notably, this Author was unable to find a single reported case
where PAS testimony was introduced on behalf of the mother.

FN131. Weiderholt v. Fischer, 485 N.W.2d 442, 444 (Wis. Ct. App. 1992).

FN132. Id. at 444-45.  The court noted the "limited research data" that
supported, "as a successful cure" for children suffering from severe PAS,
the removal of such children from their mother's custody among its reasons
for affirming the trial court's refusal to transfer custody to the father.  
Id. Although it might be argued that this court properly ignored the PAS
testimony, the problem is that the court even admitted it at all.  The
mere admission of unreliable and untested testimony, see supra note 58;
supra text accompanying notes 63, 65-67, into evidence in the first place
means that other courts admitting evidence of this theory may rule on it
differently, creating results that range from potentially very dangerous,
see Karen B., 574 N.Y.S.2d 267, to inconsistent, see supra notes 128-29;
infra notes 133-36 and accompanying text.

FN133. See Rick Reilly, America's Sweetheart, Sports Illustrated , Nov.
27, 1989, at 93.

FN134. Id. at 94.  Apparently, after Steve Garvey reportedly had affairs
with three women, had gotten two women pregnant, and had married a fourth,
his daughters--aged 13 and 15--refused to visit him.  See id.

FN135. Id. at 103.

FN136. See supra part II.B.

FN137. Or, even ordering a mother into therapy as Dr. Gardner recommends
in cases of moderate PAS.  Gardner , supra note 2, at 233.  However, Dr.
Gardner points out that the court must order the mother to see the court's
therapist since the mother usually "chooses a woman as a therapist--
especially a woman who is herself antagonistic toward men."  Id.

FN138. See infra part III.A.  Of course, assigning responsibility for
alienating behavior mostly to the mother ignores that "paternal
brainwashing" during a custody dispute occurs as well.  See Chesler ,
supra note 47, at 171- 89; see also supra notes 198-99 and accompanying
text (indicating that angry fathers retaliate by using child).

FN139. See infra part III.B.

FN140. See supra notes 54-56 and accompanying text.

FN141. See infra part III.A.

FN142. Nelson v. Jacobsen, 669 P.2d 1207, 1224 (Utah 1983); David W.
Steffensen, Comment, Nelson v. Jacobsen :  A New Causation Standard for
Alienation of Affection Actions, 4 Utah L. Rev. 885, 886-87 (1984). "In
the early days of the common law, marriages were entered into for
economic, diplomatic or dynastic reasons and were ... bargains with
specific terms ...."  Nelson, 669 P.2d at 1223.  In that respect, having a
cause of action for the abduction of the wife recognized the husband's
damages for interference with his contractual rights.  Id. at 1224.

FN143. Nelson, 669 P.2d at 1124; Steffensen, supra note 142, at 886.

FN144. Steffensen, supra note 142, at 887 & n.14 (citations omitted).
"While the archaic notion of 'wife as chattel' may have served as the
historical foundation for this cause of action, its modern content bears
little resemblance to that notion.  The right to recover for alienation of
affection extends to both spouses equally."  Nelson, 669 P.2d at 1215.
"The modern action for alienation of affections has become an action for
interference with the mental and emotional attitude of one spouse toward
the other."  Id. at 1228.  Thus, the modern action's evolution away from
the notion of the interference with a husband's contractual interests--the
marriage--in his property--the wife--stemmed from society's changing views
over time with regard to the married woman's own rights, her ability to
sue, and the legal recognition of her active participation in the
relationship. Id. at 1225-28.

FN145. See, e.g., Nelson , 669 P.2d at 1218-19; Long v. Fisher, 499 P.2d
1063, 1066-67 (Kan. 1972); Steffensen, supra note 142, at 887-88.

FN146. Steffensen, supra note 142, at 888; see, e.g., Nelson, 669 P.2d at
1218-19.  In Nelson, the court "conceded the difficulty of proving
causation," id. at 1218, discussed the justification for its employment of
a controlling cause standard, id. at 1218-19, and noted that some courts
have raised the plaintiff's burden of proof in an effort to improve
fairness, id. at 1218.  The court also noted that two jurisdictions have
"redefined the element of causation to make it practically impossible for
a plaintiff to sustain the necessary burden of proof."  Id. at 1218 n.11
(citing Long, 499 P.2d at 1067, and Hunt v. Chang, 594 P.2d 118 (Haw.
1979)).  In Long, the court held that the plaintiff must establish that he
or she was not at fault in causing the other spouse's affection to stray,
and that the defendant willfully and maliciously influenced the wayward
spouse and was the procuring cause of the loss of affection which the
wayward spouse formerly held for the plaintiff.  Long, 449 P.2d at 1067.

FN147. Steffensen, supra note 142.  At least six states, Alabama,
Colorado, Florida, Georgia, Ohio, and Oklahoma, have at one time or
another adopted the contributory cause standard--although all of those
states have statutorily abolished or restricted the cause of action.  Id.
at 888 n.21, 891 n.50.

FN148. Id. at 888.

FN149. Id. at 892.  Kansas and Hawaii espouse this view.  See, e.g., Long,
499 P.2d at 1067; Hunt v. Chang, 594 P.2d 118, 123-24 (Haw. 1979).

FN150. Steffensen, supra note 142, at 888.  For a list of jurisdictions
that employ or had employed the controlling cause standard, see W.R.
Habeeb, Annotation, Element of Causation in Alienation of Affection
Action, 19 A.L.R. 2d 471, 500-01 (1951).

FN151. Nelson, 669 P.2d at 1219.

FN152. Steffensen, supra note 142, at 891 (emphasis added); see In re
T.M.W., 553 So. 2d 260, 262 n.3 (Fla. Dist. Ct. App. 1989) (pointing out
that causation problem in alienation of affection actions extends to PAS).

FN153. Steffensen, supra note 142, at 891; see also id. at 888 (noting
difficulty in sorting out causation and making finding of liability).
Assigning blame to the mother could occur because the trier of fact
presumes that her actions were "wrongful" or "morally reprehensible" based
upon the character of the allegations.  See infra text accompanying notes
312, 322 (noting that nature of child sexual abuse allegations in custody
disputes may elicit judicial bias and improperly heighten burden of
proof).

FN154. See supra part II.B.

FN155. See supra part II.C.

FN156. See, e.g., Judith S. Wallerstein, Through a Child's Eyes, Fam.
Advoc. , Summer 1990, at 25; see also William Dahlberg, Children's
Perspectives in Highly Litigious Divorces, 21 Colo. Law. 1635, 1635-36
(1992) (discussing that child witnessing divorce suffers loss of
self-esteem, divided loyalties, self- destructive behavior, and distress);
Robert E. Lee, Parenting After the Smoke Clears, Fam. Advoc. , Summer
1990, at 18, 20 (listing children's reactions to parents' breakup as
including denial, anger, fear, mourning, and preoccupation with parental
reconciliation).

FN157. Wallerstein, supra note 156, at 26.

FN158. Id.  In 90% of all cases the primary custodial parent is the
mother. Monica J. Allen, Child-State Jurisdiction:  A Due Process
Invitation to Reconsider Some Basic Family Law Assumptions, 26 Fam. L.Q.
293, 293 n.2 (1992).  Considering that children resist separating from the
custodial parent, and that the primary custodial parent is most often the
mother, it follows that children are more likely to resist separating from
their mothers.

FN159. Wallerstein, supra note 156, at 26.

FN160. Id.

FN161. Id.

FN162. Id. at 27.

FN163. Id.

FN164. Id.

FN165. Id.

FN166. If the father is perceived by the children to have caused the
divorce-- and he may be the perceived cause particularly if he is the
noncustodial and disappearing parent, see id; see also supra note 158
(noting that in 90% of cases mother has primary custody)--he may also be
blamed by the children for some of the other consequences of divorce.  
For instance, the financial implications of divorce may result in the
children having to move, and the father may be blamed for this as well as
for all of the disruptions that a child experiences as a result of moving.  
The economic effects of divorce on families have been studied showing
"that on average, divorced women and their children experienced a 73
percent decrease in their standard of living after divorce while divorced
fathers experienced a 42 percent increase."  Allen, supra note 158, at 293
(referring to study by Lenore J. Weitzman discussed in her book, The
Divorce Revolution :  The Unexpected Social and Economic Consequences for
Women and Children in America (1985)).  "As a result, divorced mothers
often feel an extreme pressure to earn money and have significantly less
time to spend with their children."  Id.  "In addition, diminished
financial resources often compel a residential move which disrupts the
children's friendships, education and neighborhood life."  Id.  While the
mother's attitude about these factors may affect the children, it is
equally or more likely that these factors will affect the children
directly, absent the mother's own feelings about the situation.

FN167. Allen, supra note 158, at 293.

FN168. At least according to Dr. Gardner, fathers more often than mothers
have the opportunity to find new partners.  Gardner , supra note 2, at
122.

FN169. For an example of this effect, see supra notes, 133-35 and
accompanying text.

FN170. E.g., Richard Wolman & Keith Taylor, Psychological Effects of
Custody Disputes on Children, 9 Behavioral Sci. & L. 399, 406 (1991); see
also, e.g., Elster, supra note 32, at 1-2 (noting that most agonizing of
legal situations are custody disputes, that disputes feed on other
conflicts, generate uncertainty for child, and always result in loss of
regular family life); Stephen D. Sugarman, "Family Law for the Next
Century":  Background and Overview of the Conference, 27 Fam. L.Q. 175,
184-85 (1993) (arguing that distress suffered by many children of divorced
couples could be diminished by changes in legal system).

FN171. Wolman & Taylor, supra note 170, at 406.

FN172. Id.

FN173. Id.

FN174. See id. at 406-07.

FN175. Id. at 407.

FN176. Id.

FN177. Id.

FN178. See supra notes 54-56 and accompanying text.

FN179. Gardner , supra note 2, at xv.

FN180. Id. at 126.

FN181. See supra notes 54-56 and accompanying text.

FN182. See, e.g., Fahn, supra note 54, at 203-04 (listing numerous reasons
in article under heading "Reasons Why the Allegations Would Arise in the
Context of a Custody Dispute," which are explored in detail infra notes
186-202 and accompanying text); see also Faller, supra note 54, at 86
(exploring range of dynamics leading to allegations of sexual abuse in
context of divorce); Myers, supra note 55, at 24 ("The fact that
allegations of abuse arise for the first time when a family breaks up does
not mean the allegations are false.  Mental health professionals confirm
that many children first disclose or experience sexual abuse when their
parents divorce."); Summit, supra note 23, at 181-86 (providing numerous
reasons for delayed allegations of abuse as including secrecy,
helplessness, entrapment, and accommodation).

FN183. Gardner , supra note 2, at 126.

FN184. See supra part III.C.1-2.

FN185. See, e.g., Corwin et al., supra note 88, at 102.

FN186. Id.; Faller, supra note 53, at 88.

FN187. Fahn, supra note 54, at 203; Faller, supra note 54, at 88; see
Myers et al., supra note 84, at 87; Summit, supra note 23, at 182.

FN188. Fahn, supra note 54, at 203; Faller, supra note 54, at 88; see
Myers et al., supra note 84, at 87; Summit, supra note 23, at 182-83.

FN189. Fahn, supra note 54, at 203; see Corwin et al., supra note 88, at 102.

FN190. E.g., Fahn, supra note 54, at 203.

FN191. Id.

FN192. Id.; see also Faller, supra note 54, at 88 ("The mother may have
consciously or unconsciously avoided looking into possibly indicative
behavior during the marriage, but as the marriage dissolves she is able or
willing to consider the implications of that behavior.").

FN193. Corwin et al., supra note 88, at 102; see also Faller, supra note
54, at 88 ("The mother may have known about the sexual abuse during the
marriage, but been fearful of making it known or chosen to tolerate it
because the marriage had beneficial aspects.").

FN194. Fahn, supra note 54, at 203; see Corwin et al., supra note 88, at
102; see also Faller, supra note 54, at 88 ("The offending parent ... is
often bewildered and overwhelmed by the marital demise .... In this
vulnerable psychological state, the parent turns to the child for
emotional support, and ... the relationship becomes sexual.").

FN195. Fahn, supra note 54, at 203; see also Faller, supra note 54, at 88
("One of the consequences of divorce is the loss of family structure.  
Often, there is no longer another adult present to monitor a parent's
behavior during unsupervised visitation or custody.  Rules which regulate
where children and parents sleep, when they go to sleep, and with whom
they bathe may no longer exist.  Such a situation may lead to the
expression of sexual feelings toward children.").

FN196. Corwin et al., supra note 88, at 102.

FN197. Id. (citations omitted).

FN198. Faller, supra note 54, at 88.

FN199. Id.  Recall that Dr. Gardner's theory is that the majority of time
it is the angry woman who is retaliating against the ex-husband.  See
supra notes 37, 39-48 and accompanying text.  But see supra note 47.

FN200. See supra notes 54-56 and accompanying text.

FN201. See supra part III.B-C.

FN202. See supra part II.B.

FN203. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923),
superseded by Fed. R. Evid. 702, construed in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

FN204. See id. at 1013-14.

FN205. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence:
Frye v. United States , a Half-Century Later, 80 Colum. L. Rev. 1197, 1205
(1980); Edward J. Imwinkelried, The "Bases" of Expert Testimony:  The
Syllogistic Structure of Scientific Testimony, 67 N.C. L. Rev. 1, 6, 18
(1988); Frederick B. Lacey, Scientific Evidence, 26 Jurimetrics J. 254,
256- 57 (1986); Mark McCormick, Scientific Evidence:  Defining a New
Approach to Admissibility, 67 Iowa L. Rev. 879, 883 (1982); James E.
Starrs, Frye v. United States Restructured and Revitalized:  A Proposal to
Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 249 (1986).

FN206. Frye, 293 F. at 1014.  It has been noted that " Shepard's Federal
Citations lists over one thousand citations to Frye in state and federal
courts."  Edward R. Becker & Aviva Orenstein, The Federal Rules of
Evidence After Sixteen Years--The Effect of "Plain Meaning" Jurisprudence,
the Need for an Advisory Committee on the Rules of Evidence, and
Suggestions for Selective Revision of the Rules, 60 Geo. Wash. L. Rev.
857, 877 (1992) (citing Shepard's Federal Citations (7th ed. 1989 &
Supp.); Giannelli, supra note 205, at 1204 -08).

FN207. See supra part II.A; see also In re T.M.W., 553 So. 2d 260, 262 n.3
(Fla. Dist. Ct. App. 1989) (noting "cautionary words" of current
commentators regarding admission of Parental Alienation Syndrome testimony
that " 'experts have not achieved consensus on the existence of a
psychological syndrome that can detect child sexual abuse' " (quoting
Myers et al., supra note 84, at 69)); supra note 58; supra text
accompanying notes 63, 65-67 (discussing wide- spread rejection of Dr.
Gardner's theories by experts within field).

FN208. See, e.g., Becker & Orenstein, supra note 206; Giannelli, supra
note 205; Imwinkelreid, supra note 205; Lacey, supra note 205; Fredric I.
Lederer, Resolving the Frye Dilemma--A Reliability Approach, 26
Jurimetrics J. 240, 240 (1986); McCormick, supra note 205; Starrs, supra
note 205.

FN209. Giannelli, supra note 205, at 1228-29.  Three circuits have held
that the Frye standard did not survive the enactment of the Federal Rules
of Evidence.  See, e.g., United States v. Jakobetz, 955 F.2d 786, 794-97
(2d Cir.), cert. denied, 113 S. Ct. 104 (1992); DeLuca v. Merrell Dow
Pharmaceuticals, Inc., 911 F.2d 941, 955 (3d Cir. 1990); United States v.
Baller, 519 F.2d 463, 466 (4th Cir.), cert. denied, 423 U.S. 1019 (1975).
Six circuits have held that the Frye standard survived the Rules'
enactment. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 951
F.2d 1128, 1130 (9th Cir. 1991), vacated, 113 S. Ct. 2786, 2792-93 (1993);
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1115-16 (5th Cir.
1991), cert. denied, 112 S. Ct. 1280 (1992); United States v. Two Bulls,
918 F.2d 56, 60 & n.7 (8th Cir. 1990); United States v. Smith, 869 F.2d
348, 351 (7th Cir. 1989); United States v. Shorter, 809 F.2d 54, 59-61
(D.C. Cir.), cert. denied, 484 U.S. 817 (1987); United States v. Metzger,
778 F.2d 1195, 1203 (6th Cir. 1985), cert. denied, 477 U.S. 906 (1986).

FN210. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786,
2792- 93 (1993).

FN211. 113 S. Ct. 2786.

FN212. Id. at 2794.

FN213. Id.

FN214. Id. (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).

FN215. Fed. R. Evid. 702.

FN216. See Daubert, 113 S. Ct. at 2795-96.

FN217. Id. at 2799 (Rehnquist, C.J., dissenting) ("Definitions of
scientific knowledge, scientific method, scientific validity, and peer
review are matters far afield from the expertise of judges.").

FN218. Id. at 2800 (Rehnquist, C.J., dissenting).

FN219. Giannelli, supra note 205, at 1228 & n.241 (listing 22
jurisdictions that have adopted various forms of the Rules);  Lacey, supra
note 205, at 257 n.6 ("The Rules are now in effect in over twenty American
jurisdictions.... Frye may soon become a minority view.").

FN220. See People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240, 130 Cal. Rptr.
144 (1976) (circumscribing admission of voiceprint evidence until general
acceptance of technique in relevant scientific community is demonstrated).

FN221. See People v. Slone, 76 Cal. App. 3d 611, 625, 143 Cal. Rptr. 61,
69 (1978) ("The bite-mark-identification technique had gained general
acceptance in the scientific community of dentistry--the relevant
scientific community involved.").

FN222. Frye Hearing is Extended to Psychological Theories, N.Y. L.J. ,
Feb. 1, 1990, at 21 hereinafter Frye Hearing (summarizing New York court
decision granting motion for Frye hearing prior to admission of expert
testimony in area of new or recent psychological theories in addition to
scientific theories).

FN223. See infra part IV.C.

FN224. Daubert, 113 S. Ct. at 2793.

FN225. Id.

FN226. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926 (codified at
28 U.S.C. app. (1988)).

FN227. Daubert, 113 S. Ct. at 2793 (citing Beech Aircraft Corp. v. Rainey,
488 U.S. 153 (1988)). Previously, the Court considered the appropriateness
of applying the common law when interpreting the Rules of Evidence.  In
United States v. Abel, 469 U.S. 45 (1984), the Court noted that the Rules
occupy the field, but indicated that the common law could serve as an aid
to their application.  Id. at 51-52.  At issue in Abel was whether the
Federal Rules of Evidence permitted impeachment of a witness by showing
the witness's bias although the Rules expressly did not deal with
impeachment for bias. Id. at 49-52.  Rule 402 provides that "all relevant
evidence is admissible, except as otherwise provided by the Constitution
of the United States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory authority.  
Evidence which is not relevant is not admissible."  Relevant evidence is
that which has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence."  Fed. R. Evid. 401.  
Since a successful showing of a witness's bias would tend to make the
facts to which that witness testified less probable, the Court reasoned
that the common-law principle at issue in Abel was consistent with Rule
402's general requirement of admissibility.  Abel, 469 U.S. at 50-51.  
However, in Bourjaily v. United States, 483 U.S. 171 (1987), the Supreme
Court found that the Rules did not include the common-law requirement of
independent evidence of conspiracy.  Id. at 178-79.  Thus, the Court
departed from the common-law doctrine disallowing admissions of a
coconspirator's statements to prove the defendant's involvement in a
conspiracy, and held that a judge could consider the coconspirator's
statement itself in determining whether a conspiracy existed.  Id. at 180.

FN228. Daubert, 113 S. Ct. at 2794.

FN229. Id. at 2795 (emphasis added).

FN230. Id. at 2795 n.7.

FN231. Id.

FN232. Id.

FN233. Id. at 2795.

FN234. Id.

FN235. Id. at 2795 n.9.

FN236. Id. at 2796.

FN237. Id.

FN238. Id. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal
Rules of Evidence is Sound, 138 F.R.D. 631, 632 (1991)).

FN239. Id. at 2796.

FN240. Id. at 2797.

FN241. Id. at 2799.

FN242. Id. at 2799 (Rehnquist, C.J., concurring).

FN243. Id. (Rehnquist, C.J., dissenting).

FN244. Id. (Rehnquist, C.J., dissenting) (emphasis added).

FN245. Id. (Rehnquist, C.J., dissenting).

FN246. Id. at 2800 (Rehnquist, C.J., dissenting).

FN247. See supra notes 231, 244-46 and accompanying text.

FN248. David McCord, Syndromes, Profiles and Other Mental Exotica:  A New
Approach to the Admissibility of Nontraditional Psychological Evidence in
Criminal Cases, 66 Or. L. Rev. 19, 21 (1987) (footnotes omitted).

FN249. David Wallace, Note, The Syndrome Syndrome:  Problems Concerning
the Admissibility of Expert Testimony on Psychological Profiles, 37 U.
Fla. L. Rev. 1035, 1043 (1985); see Myers, supra note 55.  During the last
decade the introduction, or the attempted introduction, of syndrome
evidence has flourished in the courts.  See McCord, supra note 248, at 24.  
Examples of such syndrome testimony include rape trauma syndrome, battered
woman syndrome, pathological gambler's syndrome, Vietnam veterans'
syndrome, child abuse accommodation syndrome, and XYY chromosome syndrome.  
See id.; Summit, supra note 23; Susan Horan, Comment, The XYY Supermale
and the Criminal Justice System:  A Square Peg in a Round Hole, 25 Loy.
L.A. L. Rev. 1343 (1992).  Note that the battered woman syndrome was
originally referred to as "battered wife syndrome."  McCord, supra note
248, at 48 n.113.  The new designation is broader, recognizing that the
syndrome occurs in women who are battered by men to whom they are not
married.  Id.

FN250. Myers, supra note 55, at 6 n.7; Wallace, supra note 249, at 1043;
see also In re T.M.W., 553 So. 2d 260, 261 n.3 (Fla. Dist. Ct. App. 1989)
(noting that "best course is to avoid any mention of syndromes").

FN251. Wallace, supra note 249, at 1045; see infra text accompanying notes
321-22 (discussing bias that arises when judges evaluate syndrome evidence
generally and in custody disputes involving abuse allegations). 

FN252. See Wallace, supra note 249, at 1043.

FN253. McCord, supra note 248, at 21-27; Wallace, supra note 249, at 1043.

FN254. Wallace, supra note 249, at 1045.

FN255. McCord, supra note 248, at 25 n.15.

FN256. See id. at 25 & n.16.

FN257. Id. at 21 n.2, 83.

FN258. See id. at 21 n.2.

FN259. See, e.g., id. at 82-88.  "Hard" science refers to "scientific
evidence utilizing machines or other nonhuman indicators."  Id. at 83.
"Soft" science refers to evidence such as psychological evidence, that is,
evidence that requires subjective interpretation of results.  Id. at 83 &
n.304.  Evidence may be partially "hard" and partially "soft."  Id. at 83
n.304.  This would be true of the admission of polygraph results--the
issue litigated in Frye. Id.

FN260. Id. at 83.

FN261. Id.

FN262. Id. at 83-84.

FN263. See supra part IV.A.2.

FN264. See supra note 250 and accompanying text.

FN265. See, e.g., People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291, 203
Cal. Rptr. 450 (1984) (applying Frye test to rape trauma syndrome); People
v. Roscoe, 168 Cal. App. 3d 1093, 215 Cal. Rptr. 45 (1985) (applying Frye
test to child abuse accommodation syndrome); Ibn-Tamas v. United States,
407 A.2d 626 (D.C. 1979) (applying Frye test to battered woman syndrome).

FN266. See, e.g., McCord, supra note 248, at 84-85 (stating that Frye
standard should govern admissions of "soft" science for same reasons it
should not apply to "hard" science, and additional reason that "soft"
science is not as scientific as "hard" science; thus trier of fact can
more easily discern reliability with "soft" science than with "hard"
science).

FN267. Id. at 85.

FN268. Id. at 85-86.

FN269. Id. at 86.

FN270. Id.

FN271. See supra part III.B.

FN272. Evidence of "Acute Grief Syndrome" Cannot Be Used As Expert
Testimony, N.Y. L.J. , June 18, 1992, at 26, 27 (discussing New York court
decision where admissibility of psychological syndrome evidence was at
issue).

FN273. Wallace, supra note 249, at 1045; see also Fahn, supra note 48, at
205-07 (discussing judicial bias that arises in child sexual abuse cases
particularly those taking place during custody litigation).

FN274. See supra part III.C.

FN275. McCord, supra note 248, at 26.

FN276. 574 N.Y.S.2d 267 (Fam. Ct. 1991), aff'd sub nom. Karen "PP" v.
Clyde "QQ", 602 N.Y.S.2d 709 (App. Div. 1993); see supra part II.B.

FN277. See, e.g., supra part II.B.

FN278. Karen B., 574 N.Y.S.2d at 270.  Contra In re Nicole V., 510
N.Y.S.2d 567 (App. Div.), aff'd, 518 N.E.2d 914 (N.Y. 1987).  In Nicole
V., the court approved a finding of sexual abuse saying the worst result
of an erroneous finding against a parent will be the temporary loss of
custody for no more than 18 months, during which time supervised
visitation is possible.  However, the result of an erroneous fact-finding
in favor of a parent is to permit a helpless, abused child to remain in or
be returned to the custody of an abusive parent .... Such a result society
cannot tolerate. Id. at 572 (emphasis added).

FN279. See, e.g., United States v. Azure, 801 F.2d 336, 339-40 (8th Cir.
1986) ("The decision whether to permit expert testimony ordinarily lies
within the discretion of the trial court and will not be reversed absent
an abuse of discretion."); Alef v. Alta Bates Hosp., 5 Cal. App. 4th 208,
6 Cal. Rptr. 2d 900 (1992) (stating that judge's determination of whether
proffered expert opinion evidence is within witness's area of expertise
will be subject to abuse of discretion).  For a discussion regarding the
struggle between rules and a judge's discretion in family law, see
Schneider, supra note 32.

FN280. See infra note 283 and accompanying text.

FN281. See, e.g., Karen "PP", 602 N.Y.S.2d 709.  Note that the appeal was
decided on October 21, 1993, over two years after the trial court's
decision in July 1991.  The effect of a two-year wait to have a court's
decision reviewed is obvious--if a decision were erroneously made the
child would be in danger for this period of time.  Moreover, in order to
be reversed, many trial court decisions must rise to an abuse of
discretion; trial court decisions are granted great deference on review;
the likelihood of reversal is rare.  See, e.g., id. at 710.

FN282. Karen "PP", 602 N.Y.S.2d 709.

FN283. Id. at 110.

FN284. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2799
(1993).

FN285. See supra part IV.A.

FN286. See supra note 208 and accompanying text.

FN287. See, e.g., Giannelli, supra note 205, at 1231.

FN288. See Becker & Orenstein, supra note 206; Giannelli, supra note 205;
Lacey, supra note 205; Lederer, supra note 208.

FN289. Giannelli, supra note 205, at 1235; Lederer, supra note 208, at
242.

FN290. Giannelli, supra note 205, at 1237.

FN291. See id. at 1203-04, 1235.

FN292. Id. at 1235.

FN293. Id.

FN294. Id. at 1236.

FN295. Id. at 1238.

FN296. Lederer, supra note 208, at 242.

FN297. Giannelli, supra note 205, at 1236 n.299; see Coppolino v. State,
223 So. 2d 68, 70 (Fla. Dist. Ct. App. 1968), appeal dismissed, 234 So. 2d
120 (Fla. 1969), and cert. denied, 399 U.S. 927 (1970).

FN298. See Giannelli, supra note 205, at 1238.

FN299. Lederer, supra note 208, at 242; see Fed. R. Evid. 403 (excluding
evidence where probative value substantially outweighed by prejudicial
impact on jury).

FN300. See Giannelli, supra note 205, at 1237-38.

FN301. See supra part II.B.

FN302. Giannelli, supra note 205, at 1239.

FN303. Id.; see also Karen "PP", 602 N.Y.S.2d at 710 (noting trial court's
discretion to weigh evidence).

FN304. Becker & Orenstein, supra note 206, at 876.

FN305. Id. at 877.

FN306. See Giannelli, supra note 205, at 1235-39.

FN307. Id. at 1230 n.257.

FN308. See, e.g. , cases cited supra part II.B-C.

FN309. See Giannelli, supra note 205, at 1245; Lederer, supra note 208, at
242.  See the discussion of Mandi's case, supra part II.B.

FN310. Fahn, supra note 54, at 201-02 (footnotes omitted).

FN311. Id. at 200.

FN312. Id.  It has been noted that "the application of the criminal
standard of proof in a custody dispute" poses still another problem.  Id.
at 207.  Applying a heightened standard of proof would be an abuse of
discretion--an appealable error.  Id.  "But because there is no jury in a
custody dispute and, hence, no instructions to the fact finder pertaining
to the appropriate standard of proof, it would be difficult to show that
such impropriety was indeed operating."  Id.  See infra text accompanying
note 320.

FN313. Fahn, supra note 54, at 200.

FN314. See supra note 203 and accompanying text.

FN315. See supra note 206 and accompanying text.

FN316. See supra part IV.A; supra note 306.  But see infra text
accompanying note 334.

FN317. See supra note 206 and accompanying text; infra note 323.

FN318. See Starrs, supra note 205, at 250; see also supra note 238 and
accompanying text (warning that expert evidence is both powerful and
misleading because of difficulty in evaluating it).

FN319. See supra text accompanying notes 267-68.

FN320. Wallace, supra note 249, at 1045-46.

FN321. Id. at 1047-48 (footnotes omitted).

FN322. Fahn, supra note 54, at 205-06 (footnotes omitted).  For a
discussion about gender bias in the courts, see Karen Czapanskiy, Domestic
Violence, the Family, and the Lawyering Process:  Lessons from Studies on
Gender Bias in the Courts, 27 Fam. L.Q. 247 (1993).

FN323. Other supporting rationale for the Frye test as articulated by
Professor Giannelli include:  (1) the general acceptance standard
guarantees that experts would be critically examining the validity of a
scientific determination in a particular case; (2) Frye would ensure more
uniformity in decision; and (3) the Frye test eliminates court hearings on
the validity of novel scientific techniques and theories.  Giannelli,
supra note 205, at 1207.

FN324. Id.; see also Ibn-Tamas v. United States, 455 A.2d 893, 894 (D.C.
1983) (Gallagher, J., concurring) (stating that essential meaning of Frye
"is that where expert testimony ... is being proffered in evidence the
court should require a showing of substantial support from the appropriate
field of science"). To best indulge the issue addressed in this Comment,
the critique of the Daubert Court's reasoning is limited to discussing the
uncertainty or lack of any method for a trial judge's use in ensuring the
reliability of scientific evidence.  See supra part IV.A.  This is what
Professor Giannelli refers to as "the principal justification for the Frye
test."  Giannelli, supra note 205, at 1207.  Moreover, Professor Giannelli
points out that although the other rationales are important, they can be
satisfied under other standards.  Id. at 1207-08 & n.65.

FN325. 498 F.2d 741 (D.C. Cir. 1974).

FN326. Id. at 743-44.

FN327. People v. Barbara, 255 N.W.2d 171, 194 (Mich. 1977).

FN328. See supra part II.A.

FN329. United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977).

FN330. In re T.M.W., 553 So. 2d 260, 261 (Fla. Dist. Ct. App. 1989).

FN331. Id. at 262.

FN332. Id. at 262 n.3 (quoting Myers et al., supra note 84, at 69).

FN333. See id.

FN334. Gardner, Defends, supra note 22, at 16.

FN335. 553 So. 2d 260 (Fla. Dist. Ct. App. 1989).

FN336. Id. at 262 n.3; see supra part III.A.

FN337. Id. (quoting Steffensen, supra note 142, at 900).

FN338. Id.

FN339. See supra notes 109-13 and accompanying text.

FN340. See supra note 110 and accompanying text.

FN341. See supra note 110 and accompanying text.

FN342. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796
(1993).

FN343. Id. at 2796-97.

FN344. See supra note 23 and accompanying text; supra text accompanying
notes 63, 67.

FN345. Dr. Gardner's works have appeared from time to time in various
family law publications.  See, e.g., sources cited supra note 22.  
However, the point of peer review is that the work be evaluated by experts
within the particular field.  Therefore, meaningful publication and review
of Dr. Gardner's work would be by child abuse experts.  Recall, such
experts have already questioned Dr. Gardner's assumptions, see supra notes
54-56, and criticized his theories, see supra part II.A.

FN346. See, e.g., supra part II.A.

FN347. Daubert, 113 S. Ct. at 2790.

FN348. Id.

FN349. For a discussion of the problems with Daubert in the context of
medical malpractice evidence--arguably a more "hard" science than PAS--see
Katherine M. Atikian, Note, Nasty Medicine:  Daubert v. Merrell Dow
Pharmaceuticals, Inc., 27 Loy. L.A. L. Rev. XXXX (1994).

FN350. United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977); see
supra note 272 and accompanying text.

FN351. See supra notes 321-22 and accompanying text.

FN352. See supra notes 318-22, 329, 332 and accompanying text.

FN353. See supra part II.B-C.

FN354. The T.M.W. court, citing one expert, noted that it may be best to
exclude all syndrome testimony.  In re T.M.W., 553 So. 2d 260, 262 n.3
(Fla. Dist. Ct. App. 1989) (citing Myers et al., supra note 84).  In
certain circumstances, such as when a particular syndrome has gained
acceptance by experts within the particular field, or when the syndrome's
use in courts is limited to a specific purpose, judicial recognition of a
syndrome may be valuable.  For example, battered woman syndrome evidence
has often gone through the Frye test.  See Ibn-Tamas v. United States, 455
A.2d 893, 894 (1983) (Gallagher, J., concurring) (stating that battered
woman syndrome falls within Frye's standard).  Evidence of the battered
woman syndrome has been admitted in courts.  See, e.g., Rogers v. State,
616 So. 2d 1098, 1099 (Fla. Dist. Ct. App. 1993) (holding evidence of
battered woman's syndrome admissible because it "has now gained general
acceptance in the relevant scientific community, i.e., the psychological
community.").  Similarly, "in child sexual abuse litigation, the child
sexual abuse accommodation syndrome is useful to rehabilitate child
victims' impeached credibility."  Myers, supra note 55, at 14 n.73
(referring to work by Dr. Roland Summit, see Summit, supra note 23).

FN355. See Frye Hearing, supra note 222, at 21.

FN356. See id.

FN357. See id.

FN358. Id.

FN359. Nonetheless, numerous family law attorneys have "accepted" PAS.  
Two talks in a series of presentations hosted by the American Academy of
Matrimonial Lawyers during its annual meeting in Chicago, Illinois, were
"Parental Alienation Syndrome" and "Victims v. Pawns--Distinguishing True
from False Accusations in Child Sex Abuse Cases" by Dr. Richard Gardner.
Matrimonial Law Group to Meet Here, Chi. Daily L. Bull. , Oct. 27, 1992,
at 3. In fact, Dr. Gardner proclaims that a "vast majority of attorneys
would agree that such a disorder exists."  Gardner, Evaluate, supra note
22, at 16 (emphasis added).

FN360. See supra notes 23, 54-56, 58; supra text accompanying notes 63,
65-66.

FN361. See supra part III.

FN362. See supra part IV.

FN363. See supra part II.B-C.

FN364. John E.B. Myers is a Professor of Law at the McGeorge School of Law
in Sacramento, California, who has contributed written work in the area of
child sexual abuse evidence.  See, e.g., Myers, supra note 48; Myers et
al., supra note 84.

FN365. Susan Freinkel, Aggressive Counsel, Unpopular Cause, Recorder ,
July 23, 1992, (quoting Professor Myers), available in LEXIS, Nexis News
Library, Recrdr File.  The "aura of reliability" referred to is
deceptively enhanced when the book the court is relying on is
self-published.  See supra note 7.  Cf. Karen B. v. Clyde M., 574 N.Y.S.2d
261 (Fam. Ct. 1991).

FN366. Freinkel, supra note 365 (quoting Professor Myers); see also supra
text accompanying note 174 (noting that it is recognized that children are
aware of and may become involved in conflicts between their divorced or
divorcing parents).

FN367. A Cambridge, Massachusetts, lawyer said of Dr. Gardner, "He was our
critical evidence because ... it was clear when he began to testify that
he was an expert in the field."  Sherman, supra note 5, at 45.  For a
recent example of an article supporting admission of PAS evidence which,
notably, was coauthored by a family law attorney, see Peggie Ward & J.
Campbell Harvey, Family Wars:  The Alienation of Children, N.H. B.J. ,
Mar. 1993, at 30.

FN368. One commentator, while discussing the work of a well-known
researcher and author in the area of the effects of divorce on children,
asked appropriate questions which could be applied here:  "Is a little
learning a dangerous thing?  Should the legal profession be dabbling in
child psychology and social science, picking up a smattering of research
work here, the odd seminar there?"  Elizabeth Walsh, The Wallerstein
Experience, Fam. L. , Feb. 1991, at 49, 50.  She comments further that
when ideas relating to child psychology are "plausibly and eloquently"
expressed, there are "few lawyers in the audience ... sufficiently versed
in the subject to contradict when contradiction is necessary."  Id.
(emphasis added).

FN369. "Central to professional practice is periodic review of
professional work by other professionals which involves the essential
activity of having an external, objective second party analysis of one's
work."  Berliner & Conte, supra note 23, at 122.  "Mental health
professionals have long supported supervision, consultation, and external
review as core aspects of professionalism."  Conte, supra note 54, at 71.  
"Maintenance of objectivity in the evaluation process is a critical aspect
of practice."  Id. at 70.  Dr. Gardner's self-published works and his
untested, discredited, and widely opposed theories may be particularly
vulnerable to what Professor Conte explains as a primary reason that peer
review is essential to mental health professionals:  "It would not be
surprising to find that personal factors in the mental health
professional, including history, personality, life experiences, or
unresolved intraindividual or interpersonal issues do influence practice."  
Id. at 71. This point may be relevant in considering the discussion supra
note 37.

FN370. PAS surely should not be tested by publication in such
self-published works as are Dr. Gardner's, see supra note 2, nor by
publication in family law journals or other legal periodicals.  Rather,
acceptance should be tested by publication in the type of journal cited
supra notes 23, 54-55, 58.  This would ensure that acceptance is by the
relevant scientific community.  See Giannelli, supra note 205, at 1208
(explaining that acceptance requires two steps:  (1) identifying field in
which principle falls, and (2) determining whether principle has been
accepted by members in identified field); see also People v. Collins, 405
N.Y.S.2d 365, 368 (Sup. Ct. 1978) ("At the threshold of determining
whether the technique meets the test of acceptance in the scientific
community, is the question of defining that community.").

FN371. Empirical testing or studies and observations by others must occur
rather than be limited to one practitioner's clinical observations of his
own private practice patients. Gardner, supra note 2, at 59.  See supra
note 58 and accompanying text (noting expert's criticism of Dr. Gardner's
lack of empirical testing).

END OF DOCUMENT