Expert Opinions Are Not Necessarily Valid

http://www.divorcemag.com/IL/proforum/parental-alienation-syndrome.html

Excerpt: http://www.divorcemag.com/IL/proforum/parental-alienation-syndrome.html

Expert Opinions Are Not Necessarily Valid

In addition to having allegedly discovered PAS, Dr. Gardner also claims to be an expert regarding pedophilia and to have isolated certain factors with which he can determine whether an accused is, or is not, a pedophile. In Tungate v. Kentucky, 901 S.W.2d 41 Ky. 1995), Dr. Gardner claimed to have identified 24 indicators for pedophilia. His testimony in that case was being offered to show that the defendant was "unlikely to have engaged in the alleged acts of child sexual abuse based upon [Dr. Gardner's] 'indicators for pedophilia'". Id. at 42. The Kentucky Supreme Court noted numerous discrepancies in Dr. Gardner's proposed testimony, such as the following:

Dr. Gardner testified that there is no reliable profile of a pedophile, even though he had determined indicators which he believed identified pedophilic tendencies.

Dr. Gardner's indicators are "complex, sometimes contradictory, and can only be properly evaluated by a competent psychiatrist"; and:

Dr. Gardner was willing to testify that it was unlikely that the defendant was inclined to commit pedophilic acts, even though he admitted "that whether a person may have these indications or not, no one can conclusively determine whether or not someone has committed a particular pedophilic act, based solely on psychiatric evaluation."

Id. at 42-43. The court upheld the trial court's ruling that Dr. Gardner's testimony was inadmissible, citing with approval the trial court's finding that "the proffered testimony and conclusions lacked sufficient scientific basis for the opinions offered." Id. at 43.

An expert's opinion is only as valid as the reasons for the opinion. Hiscott v. Peters, 754 N.Ed.2d 839 (Ill.App.Ct. 2001). The trial court must analyze the adequacy of the foundation. Modelski v. Navistar International Transportation Corp, 707 N.E.2d 239, 244 (Ill.App.Ct. 1999) (expert's opinions based on guess, speculation or conjecture, inadmissible).

In NK v. MK, 851 N.Y.S.2d 71 (Sup. Ct. N.Y. 2007), it was stated, "This court does not believe that there is a generally accepted diagnostic determination or syndrome known as 'parental alienation syndrome'. Terminology such as inappropriate parental influence would be far more appropriate." (citing Hault article,supra).

On the other hand, in New York, parental alienation, defined as "extreme denigration by one parent of the other parent, or the indoctrination and brainwashing of the child to turn him against the parent", can be used as an affirmative defense to the custodial parent's attempt to establish a support order. F.S.-P v. A.H.R., 17 Misc.3d 390, 392 (N.Y. 2007)."

Tort Liability

Another issue is whether or not PAS, or parental alienation, should lead to tort liability. One court that allowed such a claim is Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985). Virginia law applied in an emotional distress suit when the wife hid the child and alienated him from the father. Wisconsin law is to the contrary. Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987) (cause of action not allowed; to do so could encourage claims for petty infractions). See also Larson v. Dunn, 460 N.W.2d 39 (Minnesota 1990) (intentional interference with custody rights tort not recognized; to do so would create new weapon in custody cases).

"The widespread acceptance of a specific cause of action for parental alienation seems unlikely to occur in the near future." Kathleen Niggemyer: "Parental Alienation Is Open Heart Surgery: It Needs More Than a Band-Aid to Fix It". California Western Law Review, Spring 1998. 34 Cal. W.L.Rev. 567, 576.

Jennifer Hault concludes, "As a legal matter, PAS's inadmissibility is appropriate given its lack of scientific validity and reliability... PAS's 20-year run in American courts is an embarrassing chapter in the history of evidentiary law. It reflects the wholesale failure of legal professionals entrusted with evidentiary gate-keeping intended to guard legal processes from the taint of pseudo-science." Hault, supra, page 22.

Although Dr. Gardner's 2003 death should help put an end to PAS testimony, matrimonial practitioners will continue to be compelled to address accusations of parental alienation.