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Student Project: Parental Alienation Syndrome: Primary Sources

This guide addresses the advent and prominence of Parental Alienation, as it exists in New York Family Law matters.

McKinney's Consolidated

Albany State House

Legislative History

Long before PA became a household word in the courts, a common-law tort existed to remedy actions that involved affairs of the heart.  Commonly known as a “heart-balm”  cause of action, alienation of affection was reserved for a spouse who lost the affection of his wife due to the actions of another.  In England, as in the early United States, such a tort was reserved for men, since women were considered property.  An Act was passed in the United States, in the late nineteenth century, that accorded women the same property rights as men and therefore, the right to remedy for the loss of her husband’s affections. That was the beginning of the courts’ attempts to come to terms with women’s rights. 

In response to a rise in the separation of families, the judiciary attempted to apply the alienation of affections action as it involves children.  In the 1970s, the standard for custody changed from the "tender-years presumption" to the "best interest" standard.  1985, PAS was presented by Gardner as a “souped-up” version of PA.  The abolishment of the tender-years presumption meant that it was no longer assumed in custody cases that the mother is naturally the best caretaker for the children.  Additionally, the joint-custody paradigm gave mothers primary custody, with significant visitation time afforded to fathers.   Even though the courts are inclined to rule PAS inadmissible, pursuant to controlling standards, the principles surrounding PAS have seeped their way into the court system. 

 

 

Supreme Court Cases

Notable Cases

Appellate Briefs