Child Custody Disputes – Parental Alienation Syndrome

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Avoiding Liability Bulletin – May 2010

Therapists and counselors who have been involved with patients or clients embroiled in a child custody battle may be aware of the controversy surrounding parental alienation syndrome, and its use or attempted use by practitioners who may testify as expert witnesses, such as those who act as child custody evaluators. For those who may be unfamiliar with this topic, parental alienation syndrome involves a disturbance in a child whose primary manifestation is a child’s unjustified campaign of denigration against, or rejection of, one parent, due to the influence of the other parent combined with the child’s own contributions. According to Dr. Richard Gardner, M.D., the originator of the term, the “disorder” (not in DSM) arises almost exclusively in the context of child custody disputes. There is great controversy throughout the country surrounding this “syndrome,” both with respect to its reliability and admissibility into evidence, and with respect to the recommended treatment for the affected minor.

A bill has been introduced in the California Legislature that takes direct aim at such testimony. This bill provides, in part, that unproven, nonscientific theories, including but not limited to, alienation theories that assume that a child’s report of physical or sexual abuse by one parent is influenced or fabricated by the other parent, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The bill would prohibit the court from relying upon an unproven, unscientific theory and would prohibit the court from accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. The bill (Assembly Bill 612) also provides that nothing in its provisions shall limit the consideration of actual evidence, behaviors, statements, or conduct by either parent or by the child.

This bill is opposed by the Board of Behavioral Sciences, who licenses marriage and family therapists, clinical social workers, and soon, professional counselors. It is also opposed by the California Judges Association, the Family Law Section of the State Bar, and the California Association of Marriage and Family Therapists The bill’s sponsor is the California Protective Parents Association, a group formed in 1998 whose stated mission is to protect children from incest and family violence through research, education and advocacy. The primary objection to the bill is that it would remove the judge’s discretion in these contentious matters. If a child custody evaluator was of the opinion, based upon interviews and other information, that a child was coached to make false allegations of sexual or physical abuse, opponents of the bill believe that such testimony should be allowed. The general fear is that this bill would prevent or inhibit such testimony from being admitted into evidence.

Some mental health professionals believe that testimony about parental alienation syndrome may tend to oversimplify the causes of alienation and lead to confusion in the treatment of alienated children. They also believe that there is not an adequate scientific foundation for use of the word “syndrome.” Even though there is some recognition of the syndrome by the courts, many expert witnesses do not use the term when testifying. Instead, they may simply testify to their beliefs about whether or not the claims of abuse made by one parent constitute a fabrication, and then may testify about the bases for those beliefs. With respect to the issue of the treatment of a child who has been diagnosed with the disturbance or disorder of parental alienation syndrome, there exists considerable controversy regarding the appropriate custodial arrangement during the course of such treatment. The question often presented is whether it is appropriate to award primary custody to the alienated parent and severely restricted contact between the child and the parent who is believed to be the alienating parent.

I have only scratched the surface of this controversial topic. How do the courts in your state of practice handle testimony about parental alienation syndrome? Have there been similar legislative efforts to prohibit such testimony in your state?

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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