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Student Project: Parental Alienation Syndrome: Admissibility

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

Admissibility Generally

To date, PAS is widely unaccepted by the medical field, including the American Medical Association, the American Psychiatric Association, and psychological associations.  In fact, PAS has been effectively discredited in criminal cases, as inadmissible pursuant to the Federal Rules of Evidence and in failing to pass the Frye or Daubert criteria. 

Federal Rules of Evidence:  Rule 702 – Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case

The Daubert Standard

In order to qualify as admissible evidence under Daubert, “scientific methodology" must be used to formulate a hypothesis and then confirm or exclude the same through a series of experiments.  The Daubert Court delineated factors to be used in determining whether the Daubert criteria could be satisfied, as follows:

1) Whether the theory or technique employed by the expert is generally accepted in the scientific community; 2) Whether it has been subjected to peer review and publication; 3) Whether it can be and has been tested; 4) Whether the known or potential rate of error is acceptable; and 5) Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony.

Acceptance in the Medical/Psychology Field

To date, PAS has not been accepted as a disorder by any medical association or psychological society.  In 2008, a group of psychiatrists submitted PAS for inclusion in the DSM-5 (Diagnostic and Statistical Manual of Mental Disoders - 5th Edition).  Inclusion of PAS in the DSM-5 would have effectively given Gardner’s theory credibility as a verified syndrome.  What it also would have done is open a floodgate of litigation on behalf of fathers who believe women’s rights have culminated into a war of the sexes in custody battles.  Ultimately, PAS was not included in the latest version of the DSM because scientific methods failed to properly support its conclusions.  Proponents of PAS also tried to include a modified version of PAS, called PAD, or Parental Alienation Disorder, which also failed.  Hoping to circumvent the controversy surrounding PAS, supporters thought if they removed the word "syndrome" from the title, it might find its way into the books and justifiably be considered for paid medical evaluation.  More importantly, courts would then have had to consider its admissibility as accepted science.  Neither PAS, PA, nor PAD was admitted to the DSM in 2014, debunking Gardner’s assertions that PAS had not made it into the DSM because there was insufficient existing literature on the subject in 1993/1994.

The Frye Standard

Frye requires that in order to admit expert testimony based on scientific principles or procedures, it must have gained general acceptance in its field (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).  Most states have adopted Daubert, or some form thereof, as the standard for admissibility of evidence.  New York remains a Frye state; therefore, expert testimony regarding PAS is inadmissible due to its failure to meet the applied standard of Frye.  In People v. Fortin, Dr. Gardner was called by the defense to testify at a Frye hearing, regarding PAS (People v. Fortin, 706 N.Y.S.2d 611, 614 (N.Y. Co. Ct. 2000)), aff'd, 735 N.Y.S.2d 819 (N.Y. App. Div. 2001)).  Based on Dr. Gardner’s testimony in that case, the Fortin Court determined that PAS was not admissible as it is not generally accepted within the professional community (Id. at 614). Even in a Daubert court, PAS does not pass muster and would not be accepted.