---------------------------------------------------------------- :x:
ERIN V. (Anonymous), Docket Nos.: 2016-02286
2016-02287
Plaintiff-Appellant-Respondent,
Westchester County
-vs.- Index: No.: 10602/2007
ROBERT V. (Anonymous),
Defendant-Respondent,
-and-
GRANT V. (Anonymous),
Non-Party-Respondent-Appellant.
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James D. Arden
Dana R. Angood
787 Seventh Avenue
New York, New York 10019
Telephone: +1 212 839-5300
Facsimile: +1 212 839-5599
INTRODUCTION ............................................................................................................... 1
CONCLUSION ............................................................................................................ 27
11
TABLE OF AUTHORITIES
Cases
Bahr v. Bahr,
72 Wis.2d 145 (1976) .'.................................................................................. 9, 11
Barros v. Barros,
309 Conn. 499 (2013) ............................................................................................. 9
D.M S. v. !D.S.,
No. 2014-CA-0364, 2015 WL 926777 (La. Ct. App. Mar. 4, 2015) .................. 18
Doe v. Doe,
120 Haw. 149 (Haw. Ct. App. 2009) ...................................................................... 9
Goldberg v. Kelly,
397 U.S. 254 (1970) ................................................................................................ 5
Hill v. Hill,
20 Neb. App. 528 (Neb. Ct. App. 2013) ................................................................ 9
In re C.B.,
983 A.2d 1012 (D.C. 2009) .....................................................................................9
In re Guardianship of MEO,
138 P.3d 1145 (Wyo. 2006) .................................................................................... 9
In re Michael A., .
552 A.2d 368 (R.I. 1989).........................................................................................9
Jackson v. Jackson,
961 P.2d 393 (Wyo. 1998) ................................................................................. 9
Jorgensen v. Jorgensen,
194 Neb. 271 (1975) ........................................................................................... 9
111
TABLE OF AUTHORITIES (cont'd)
Kelley v. Kelley,
175 P.3d 400 (Okla. 2007)......................................................................................9
Kesseler v. Kesseler,
10 N.Y.2d 445 (1962) ............................................................................................ 7
M A. v. A.I.,
No. FM-20-973-09, 2014 WL 7010813 (N.J. Super. Ct. App. Div., Dec. 15,
2014) .................................................................................................................. 18
Malone v. Malone,
591 P.2d 296 (Okla. 1979)............................................................................ 9, 11
Mathews v. Eldridge,
424 U.S. 319 (1976) ............................................................................................ 5
May v. Anderson,
345 U.S. 528 (1953) ............................................................................................ 5
Milne v. Goldenberg,
51 A.3d 161 (N.J. Super. Ct. App. Div. 2012) ...................................................... 9
Morgan v. Getter,
441 S.W.3d 94 (Ky. 2014) ............................................................................ 9, 10
IV
TABLE OF AUTHORITIES (cont'd)
Obey v. Degling,
37 N.Y.2d 768 (1975) ..............................................................................................6
People v. Fortin,
706 N.Y.S.2d 611 (Crim. Ct. Nassau Cnty. 2000), aff'd, 289 A.D.2d 590 (2d
Dep't 2001) ....................................................................................................... 18
People v. Sullivan,
Nos. H023715, H025386, 2003 WL 1785921 (Cal. Ct. App. Apr. 3, 2003) ..... 18
Prince v. Massachusetts,
321 U.S. 158 (1944) ................................................................................................4
Provost v. Nevitt,
No. S-13837, 2011 WL 2175984 (Alaska Jun. 1, 2011) ....................................... 9
Puccinelli v. Puccinelli,
364 Mont. 235 (2012) .............................................................................. 9, 14-15
Quarne v. Quarne,
601 N.W.2d 256 (N.D. 1999) ....................................................................... 9, 11
S.L. v. J.R. ,
·27 N.Y.3d 558 (2016) ........................................ :....................................... passim
Swor v. Swor,
2 So.3d 790 (Fla. Dist. Ct. App. 2009) ..........................................................9
v
TABLE OF AUTHORITIES (cont'd)
Troxel v. Granville,
530 U.S. 57 (2000) ..................................................................................................5
Wendlandt v. Johnson,
365 Mont. 1 (2012)............................................................................................ 15
Zahl v. Zahl,
273 Neb. 1043 (2007) .............................................................................................9
Ziehm v. Ziehm,
433 A.2d 725 (Me. 1981) ................................................................................... 9
Treatises
Other Authorities
Vl
TABLE OF AUTHORITIES (cont'd)
Joan Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on
Family Court Cases Involving Abuse and Alienation, 35 J. of Law & Inequality
(2017) (in press) .................................................................................................... 20
Joyanna Silberg et al., Crisis in Family Court: Lessons From Turned Around
Cases, Final Report to the Office of Violence Against Women, Dep't of Justice
(Sept. 30, 2013), http://www.protectiveparents.com/ crisis-fam-court-lessons-
tumed-around-cases. pdf ........................................................................................ 19
Vll
TABLE OF AUTHORITIES (cont'd)
Niko Trocme & Nicolas Bala, False Allegations of Abuse and Neglect When
Parents Separate, Child Abuse & Neglect 29, 1333-45 (2005)..........................17
Richard A. Gardner, True and False Accusations of Child Sex Abuse (1992) .........16
Robert Geffner, Editor's Note about the Special Section, 13(2-3) J. of Child
Custody (2016),
http://www.tandfonline.com/doi/full/10.1080/15379418.2016.1221270 .............. 19
viii
INTRODUCTION
Respondent E.V. ("Appellant" or "mother") from the Decisions and Orders of the
and February 26, 2016, which (i) granted the application of Defendant-Respondent
G.V. from the mother to the father, after receiving an "updated" forensic mental
health evaluation without a hearing; and (ii) denied the mother's motion for an
order rejecting the "updated" evaluation because it did not fulfill the mandate of
this Court's order and was admitted into evidence without any opportunity to
and care of their children, with attendant due process protections. Last year, in S.L.
v. J.R., 27 N.Y.3d 558 (2016), the Court of Appeals held that custody
the notion that a hearing was not required so long as the court possessed "adequate
relevant information" to render a custody determination. Id. at 564. The S.L.
decision expressly held that a court could not rely on recommendations where the
examine the evaluator regarding that report, which violates parents' constitutional
right to due process. Proposed Amici further seek to show how parental alienation
theories are often invoked in disputed custody cases in the same harmful manner as
attention away from behaviors of the "alienated" parent that might cause or
contribute to the child's rejection of that parent and instead focusing blame on the
Proposed Amici urge this Court to uphold, consistent with the S.L. decision,
parents' due process right to confront and cross-examine the author of a forensic
report that the court has relied on in making its final custody determination.
Proposed Amici further seek to deepen this Court's understanding of how parental
children.
2
STATEMENT OF INTEREST
unjust trial court outcomes, advancing legal protections for victims and their
numerous state courts and in the United States Supreme Court. DVLEAP is a
family and matrimonial law projects routinely represent victims in child custody
proceedings in New York City and surrounding areas. Sanctuary also conducts
providing free civil legal services to New York's low income families. The
Matrimonial & Family Law Unit of NYLAG provides legal consultation and
3
custody, visitation, child and spousal support, and matrimonial matters. NYLAG
accessible to low-income women in New York City since 1993. Her Justice's
underserved, and abused women through legal services designed to foster equal
access to justice and an empowered approach to life. Her Justice provides legal
services to over 3,000 women every year in all five boroughs of New York City,
through staff attorneys and volunteer attorneys from New York City law firms.
ARGUMENT
Fourteenth Amendment. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944)
4
("It is cardinal with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder."). This right is "perhaps the
interests without first affording that person procedural due process. Although the
factors such as the private interests at stake and the risk of error created by the
the opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970);
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ("[S]ome form of hearing is
interest.").
the care and custody of their children. See May v. Anderson, 345 U.S. 528, 533
(1953) (holding that by granting custody to the father, the state court cut off the
her minor children"). Accordingly, procedural due process requires that a final
5
custody decree may be issued only after an evidentiary hearing in which the parent
New York has long recognized that the interest of parents in the custody and
re Jewish Child Care Ass'n of New York, 5 N.Y.2d 222, 230 (1959) ("The
but also from indirect and less proximate subversion[.]"). Given the nature of the
rights at stake, it is well established under New York law that a final custody
determination may be made only after "a full and plenary hearing and inquiry"
during which the record is fully developed. Obey v. Degling, 37 N.Y.2d 768, 769-
70 (1975); see also Matter of Peek v. Peek, 79 A.D.3d 753, 754 (2d Dep't. 2010)
("[A]s a general rule, it is error to make an order respecting custody based upon
In the context of a custody determination, the due process right to a full and
source of an adverse custody evaluation report. Indeed, New York has codified
this right. See 22 NYCRR § 202.16(g)(2) ("In the discretion of the court, written
6
reports may be used to substitute for direct testimony at the trial, but the reports
shall be submitted by the expert under oath, and the expert shall be present and
available for cross-examination. ") (emphasis added). New York case law is
equally clear on this point. See, e.g., Kesseler v. Kesseler, 10 N.Y.2d 445, 452
(1962) (holding that a trial court cannot rely on independent expert reports unless
the parties have consented to the use of such reports or are afforded an opportunity
Harris, 119 A.D.3d 992, 993 (3d I)ep't 2014) (holding that the trial court erred in
failing to allow the parties to "avail themselves of the usual attributes of a hearing,
Stephanie G., 108 A.D.3d 717, 719 (2d Dep't 2013) (remitting matter for reopened
hearing "at which any forensic evaluation report shall be admitted and the parties
shall have the opportunity to cross-examine the evaluator . . . "). Absent consent,
parent is first granted the "right to review the reports, receive a full and fair
rebuttal." Matter of Lisa W. v. Seine W., 9 Misc.3d 1125(A), at *7 (Fam. Ct. Kings
Some New York courts for a time recognized a narrow exception to this
7
information" to render a custody determination. The Court of Appeals recently
rejected that standard, holding that it did not adequately protect either the best
interest of the child or "a parent whose fundamental right-the right to control the
(2016) (internal citation and quotation marks omitted). In S.L., the trial court
issued its final custody determination without affording the mother the right to
appeal, New York's highest court spoke directly to the issue at bar, expressly
holding that a court could not rely on the court-appointed forensic evaluator's
report where the evaluator's "opinions and credibility were untested by either
"untested"-and therefore inadmissible under S.L.-if the trial court withholds the
The decision in S.L. v. J.R. brought New York law fully in line with national
8
to cross-examine the source of the custody evaluation report. The case law is
For instance, in Barros v. Barros, 309 Conn. 499, 512 (2013), the
Connecticut Supreme Court clearly laid out the due process parameters where a
court bases its custody decision, even in part, on an independent report, the parties
. . . must be given the opportunity to examine the report and must be allowed the
establish any inaccuracies the report may contain" (citation and internal quotation
marks omitted). The Barros court found that due process was satisfied where the
to contest any inaccuracies in the evaluator's findings before the trial court makes
1
See, e.g., Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014); Barros v. Barros, 309 Conn. 499,
512-13 (2013); Puccinelli v. Puccinelli, 364 Mont. 235, 241 (2012); Provost v. Nevitt, No. S-
13837, 2011 WL 2175984, at *2 (Alaska Jun. 1, 2011); Nebraska ex rel. Amanda M v. Justin T.,
279 Neb. 273, 281-82 (2010); In re CB., 983 A.2d 1012, 1022-23 (D.C. 2009); Zahl v. Zahl, 273
Neb. 1043, 1052 (2007); Kelley v. Kelley, 175 P.3d 400, 406 (Okla. 2007); In re Guardianship of
MEO, 138 P.3d 1145, 1156 (Wyo. 2006); Quarne v. Quarne, 601 N.W.2d 256, 257 (N.D. 1999);
Jackson v. Jackson, 961 P.2d 393, 396 (Wyo. 1998); In re Michael A., 552 A.2d 368, 370 (R.I.
1989); People in Interest of A.M D., 648 P.2d 625, 641 (Colo. 1982); Ziehm v. Ziehm, 433 A.2d
725, 728-29 (Me. 1981); Malone v. Malone, 591 P.2d 296, 297 (Okla. 1979); Bahr v. Bahr, 72
Wis.2d 145, 150 (1976); Jorgensen v. Jorgensen, 194 Neb. 271, 276 (1975); Hill v. Hill, 20 Neb.
App. 528, 536-38 (Neb. Ct. App. 2013); Milne v. Goldenberg, 51 A.3d 161, 171 (N.J. Super. Ct.
App. Div. 2012); Doe v. Doe, 120 Haw. 149, 168-70 (Haw. Ct. App. 2009); Swor v. Swor, 22
So.3d 790, 792-93 (Fla. Dist. Ct. App. 2009).
9
Likewise, in Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014), the Supreme
father. The court found that the trial court erred by accepting into evidence the
GAL's report but denying the mother's request to cross-examine the GAL. "By
disallowing cross-examination of the GAL," the trial court had "created a real and
impaired," as "[t]he GAL's findings and recommendations were almost all adverse
to [the mother]," and "[w]ithout the vital tool of cross-examination, [the mother]'s
ability to challenge the GAL's report was severely limited." Id. at 111-12. Noting
heard," the court held that "without the opportunity to cross-examine the GAL
himself, [the mother] had no means of probing his assumptions and potential
biases, a probing that could well have affected the trial court's assessment of his
2
While GALs and forensic custody evaluators play different roles in New York, for the purposes
of a court's best interest analysis in child custody proceedings, their roles are similar: both are
appointed by the court to assist in assessing the child's best interests, both engage in fact-finding,
testify, and apprise the court of their findings, and both are neutral in relation to the parents. See
19B Carmody-Wait 2d §§ l 18A:77, 124:34 (2017); 22 NYCRR § 202.18.
10
Similarly, in Malone v. Malone, 591 P.2d 296, 297 (Okla. 1979), the
Supreme Court of Oklahoma held that the lower court violated a father's due
receiving the report in open court and providing the opportunity for cross-
examination of the author.3 The Malone court held that due process requires that
every adverse fact or inference included therein." Id. at 297-99; see also Quarne v.
Quarne, 601 N.W.2d 256, 257 (N.D. 1999) ("A trial court commits reversible error
decision without allowing the parties an opportunity to call and cross-examine the
investigator . . . ."); People in Interest of A.M D., 648 P.2d 625, 641 (Colo. 1982)
(evaluative reports may not be admitted into evidence unless "the persons who
wrote the reports or prepared the material contained therein are available for direct
accepting reports from social workers, psychiatrists and others without providing
3
While Malone involved an exparte, post-trial home study report, the court's ruling
encompassed all expert reports used to determine best interests: "Reports of experts are aids to
the court in contested custody matters. However . . . [i]f such reports are taken into
consideration by the trial court, they must be made available to counsel, and the preparers thereof
subject to cross-examination. " Id. at 298.
11
copies to both sides and "an opportunity to cross-examine the person making
them").
evaluator's findings before the trial court makes its determination." Barros, 309
from those in a prior report, the opportunity to cross-examine the evaluator on the
earlier report alone cannot meet the requirements of due process, as the parent is
to each parent's "right to review the reports, receive a full and fair opportunity to
custody evaluator, Dr. Herman, regarding his initial custody report, appellant was
12
deprived of any opportunity to cross-examine Dr. Herman regarding the materially
different findings and recommendations set forth in his updated, subsequent report.
This updated report was admitted into evidence without affording appellant an
opportunity to confront and question Dr. Herman regarding the basis for his
reversal of opinion.
Dr. Herman's initial report, submitted on January 31, 2012, concluded that it
was in the child's best interest that appellant retain physical custody and found that
any alienating behavior on the part of appellant was unintentional. R. 766-69; 803;
did not identify any behavior from the child or appellant that clearly constituted
examination that he did not attempt to explore or verify the child's expressed
concerns regarding the father's behavior as causes for resisting contact, nor did he
treatment of the child. Most notably, Dr. Herman conceded that appellant's
In its July 22, 2015 ruling, the Court ordered an updated custody evaluation
the long lapse of time and "the pace of psychological development of the child
whose best interest is the primary concern." A. 6, 141 (citations omitted). Dr.
13
Herman submitted a second, updated report on December 14, 2015. A. 22. This
updated report reached a starkly different conclusion, finding that the mother had
"deftly alienated [child] from his father" and that the father should be awarded
primary physical and sole legal custody, including "final decision-making of all
aspects of [child]'s growth and development." A. 24, 27. Due process mandates
that appellant be provided an opportunity to question the basis for Dr. Herman's
While it appears that New York courts have not squarely addressed this
untested information. For example, in Puccinelli v. Puccinelli, 364 Mont. 235, 241
(2012), the Montana Supreme Court held that the trial court's reliance on a revised
GAL4 report recommending custody to the father that was received after the final
hearing-at which the GAL had supported the parties' agreement to share equal
custody-violated the mother's due process rights. Even though, unlike in the
instant case, the mother was given an opportunity to submit written objections to
. .
the revised report, the court held that such opportunity did not satisfy the mother's
4
While a GAL is not a neutral expert inthe same sense as a custody evaluator, since the GAL
owes a duty ofloyalty to the interests of his or her ward, both the GAL and traditional custody
evaluator roles in the context of disputed custody cases involve fact-finding and testimony
regarding child custody issues. See, e.g., 19B Carmody-Wait 2d § 118A:77 (2017).
14
due process right to confront and cross-examine the GAL regarding the new and
Id.; see also Wendlandt v. Johnson, 365 Mont. 1, 6 (2012) (holding that father must
be afforded a hearing on GAL's report and provided the opportunity for cross-
In this case, the custody evaluator and the trial court painted appellant as a
conniving, vindictive mother bent on harming a father's relationship with his son.
They based this characterization around the label of "alienation." However, courts
authorities. In this case, the court used the "alienation" label to justify harsh,
mental health care assistance to help to address the child's fear of his father.
15
A. Parental Alienation Syndrome Has Been Thoroughly
Discredited.
Parental Alienation Syndrome (or "PAS") was invented in the 1980s by Dr.
Richard Gardner. Based solely on his own experience, Gardner described PAS as
of the father's abuse.6 Gardner also suggested that some mothers' purported
high numbers of painful and disturbing child abuse reports in family court, the
theory took hold. Many courts and court-appointed evaluators embraced Gardner's
underlying assumptions that most abuse claims in custody cases are fabricated by
5
See Richard A. Gardner, The Parental Alienation Syndrome: A Guide for Mental Health and
Legal Professionals (1992).
6
See Richard A. Gardner, True and False Accusations of Child Sex Abuse, 162, 193 (1992).
7
Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation Between
Fabricated and Genuine Child Sex Abuse 109 (1987).
16
PAS in custody actions has expanded beyond the child sexual abuse context
of its kind, leading researchers analyzed the 1998 Canadian Incidence Study of
Reported Child Abuse and Neglect. They found that only 12% of child abuse or
neglect allegations made in the context of litigation over child access were
intentionally false. Notably, the primary source (43%) of these intentionally false
reports was noncustodial parents (typically fathers ). Only 14% of knowingly false
For these reasons and others, both scientific and professional authorities have
roundly rejected PAS. 10 Indeed, leading researchers concur that "the scientific
status of PAS is, to be blunt, nil," and the former president of the American
8
Carol Bruch, Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in
Child Custody Cases, 35 Fam. L. Q. 527, 535-36 (2001); Joan S. Meier, Parental Alienation
Syndrome and Parental Alienation: A Research Review, National Research Center on Domestic
Violence, at 1-3 (Sept. 2013).
9
Niko Trocme & Nicolas Bala, False Allegations of Abuse and Neglect When Parents Separate,
Child Abuse & Neglect 29, 1333-45 (2005).
10
See Joan S. Meier, A Historical Perspective on Parental Alienation Syndrome and Parental
Alienation, 6 J. Child Custody 232, 235-36 (2009) (citing multiple scientific, legal and
professional authorities rejecting scientific validity of PAS).
17
Psychiatric Association has characterized PAS as "junk science."11 It has thus
been repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of
every appellate court in this country that has addressed the issue. See, e.g., People
v. Fortin, 706 N.Y.S.2d 611, 613-14 (Crim. Ct. Nassau Cnty. 2000), aff'd , 289
A.D.2d 590, 591 (2d Dep't 2Q01); M A. v. A.I , No. FM-20-973-09, 2014 WL
7010813, at *5 (N.J. Super. Ct. App. Div., Dec. 15, 2014), cert. denied , 112 A.3d
592 (2015); D.M S. v. lD.S., No. 2014-CA-0364, 2015 WL 926777, at *9 (La. Ct.
access to a child. The editors of the Journal of Child Custody recently devoted two
11
Id.
12
Published by the American Psychiatric Association, the DSM is the mental health profession's
most well-respected and widely used diagnostic manual. See, e.g., New York v. Shannon S., 20
N.Y.3d 99, 104 (2012) (describing the DSM as "an authoritative text widely used in the mental
health profession").
13
See also Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome:
Science, Law, and Policy, 26(1) Children's Legal Rights J. (2006).
18
full issues to PAS and the renamed "Parental Alienation Disorder" ("PAD") 14
because, despite consensus among professionals that PAS and PAD have been
thoroughly discredited, they are still being used regularly in custody litigations.
It is hoped that the commentaries in this section help us get back to research
and actual theories rather than junk science that can negatively affect
traumatized children for years to come. It is also hoped the field can focus
on objective data and observable behaviors within an accepted theoretical
framework when making child custody recommendations and decisions
rather than on assumptions, confirmatory biases, and circular arguments
because those involved do not want to believe that a child has been
victimized or traumatized. 15
documented in cases involving abuse. Stephanie Dallam, RN, PhD, and Joyanna
Silberg, PhD, collected and analyzed "turned-around cases," where the family
court initially rejected child abuse claims, but a subsequent court credited the
abuse, leading to reversal of the initial custody arrangement. The most frequent
error underlying the initial harmful orders was application of the "alienation" label
14
13(2-3) J. of Child Custody (2016).
15
Robert Geffner, Editor's Note about the Special Section, 13(2-3) J. of Child Custody (2016),
http://www.tandfonline.com/doi/full/10.1080/15379418.2016.1221270.
16
Joyanna Silberg et al., Crisis in Family Court: Lessons From Turned Around Cases, Final
Report to the Office of Violence Against Women, Dep't of Justice (Sept. 30, 2013),
http://www.protectiveparents.com/crisis-fam-court-lessons-turned-around-cases.pdf.
19
analyzed custody cases involving alienation and abuse claims and found that where
fathers allege alienation against a mother alleging paternal abuse, courts remove
custody from the mothers 50-69% of the time. In every case where a father was
found to have committed child or adult abuse, if the mother was also considered to
assert that PAS and PA are essentially the same thing. 19 In court, however, there is
less dispute-PA is often used identically to PAS to fault one parent for a child's
resistance to the other parent, rather than objectively considering the child's
experiences with the feared or disliked parent as the source of those feelings.
17
Joan Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Court
Cases Involving Abuse and Alienation, 35 J. of Law & Inequality (2017) (in press), at 18
("[W]hile fathers had an overall rate of win of 38% when abuse was substantiated, this win rate
is driven by findings of alienation."). As a result of these preliminary findings, the authors and a
team of colleagues received a grant from the National Institute of Justice to expand, deepen, and
strengthen the statistical inquiry. 2014-MU-CX-0859, at
https://www.nij.gov/funding/awards/Pages/2014.aspx#.
18
Joan B. Kelly and Janet R. Johnston, Rejoinder to Gardner's "Commentary on Kelly and
Johnston's The Alienated Child: A Reformulation of Parental Alienation Syndrome," 42(4) Fam.
Ct. Rev. 622-28 (2004).
19
William Bernet, Parental Alienation: Misinformation Versus Fact, Judge's J. (Jan. 2015), at
25 (describing the two concepts as "almost synonymous").
20
Recognizing the conflation of the two theories, a leading judicial
published the following guidelines for custody courts addressing alienation claims:
grounds that PA recognizes that a child who is alienated from a parent is virtually
always reacting to "multiple determinants," rather than the favored parent's sole
concluded that the dominant factor in children's alienation from a parent tends to
be that parent's own behaviors toward the child, such as child abuse, inadequate
extent that alienation is relevant in a custody case, then, it is only valid when all of
20
See Meier, supra note 8, at 5 (emphasis added).
21
Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of Parental
Alienation Syndrome, 39(3) Fam. Ct. Rev. 249, 251-52 (2001).
22
Id.; see also Janet R. Johnston et al., Is it Alienating Parenting, Role Reversal, or Child
Abuse? A Study of Children's Rejection of a Parent in Child Custody Disputes, 5 J. Emotional
Abuse 191, 206 (2005).
2
1
the "multiple determinants" of a child's hostility to a parent are considered-most
entirely one-sided assessment of each parent and failed to consider indications that
the father's parenting deficits were the true source of the child's fears.
the trial court's 42-page opinion, which contains conspicuous indications of odium
toward the mother for what it viewed as her efforts to alienate the child from his
father. The court describes appellant as presenting a "clawing" presence (A. 119)
disorder as "exalt[ing]" (A. 114). The court portrays appellant as using custody as
a "weapon" against the father (A. 113) and states that she "regaled" other
. . that [she] did not actually believe," for "the evident purpose of poisoning the
psychological well" (A. 'I 16), all of which it concludes she did "to deprive [child
of] a meaningful relationship with his father" (A. 134-35). The court excoriated
appellant for her "cynical[]" reporting of what it termed the "'butt cream' story"
(A. 115), but disregarded emails detailing appellant's attempts to discuss her-and
2
2
testimony. See R. 1434; 1448-49; 1451; 2977-80; 3024-34; 3040-41; 3066-73;
3092; 6068-71; 3040-3041. The court also pointedly states that appellant's Family
Offense Petition against the father was dismissed (A. 101), but fails to
acknowledge that a Family Offense Petition on behalf of herself and the child was
granted and in place against the father for a full year, from April 2007 to April
Consistent with alienation theory, not only is the mother demonized, but the
descriptions of the mother's harmful parenting deficits, the trial court's assessment
of the father is cursory, glowing, and devoid of record support. The court
describes the father's support for the child's relationship with his mother and
emphasizes his paramount concern for the child's well-being (A. 135) without
providing even one example. As such, the opinion lacks even a pretense of
meaningful inquiry into the basis of the mother's and child's concerns.
numerous indications that the father's treatment of the child had a harmful impact.
In a 2008 custody decision granting the mother physical custody and final
2
3
understanding of the child's stages of emotional and social development, insisting
instead upon standards of behavior clearly beyond the developmental level of the
child." R. 6482. Dr. Herman, in his first report recommending that appellant
retain custody, described the father as "very angry" and in need of therapy to help
him relate to the child. R. 785; 936; 6472. This assessment echoes that of the first
primary custody to the mother and that the father receive counseling to deal with
his anger issues. R. 5747-49. The father acknowledged in testimony that the
child's former therapist, Dr. Lobel, who also found the father to be "angry,"
"hostile," and "not empathetic with the child," suggested that he participate in
therapy with the child.23 R. 936-37; 1784-85; 6469. Indeed, the trial court
ordered, on Dr. Herman's recommendation, that before the father spent additional
time with the child, both parties participate in parenting therapy. R. 637-47; 1111;
6472-73. Yet, the father has refused to pursue any form of therapy or anger
management counseling. R. 785; 3610-12; 3616-17; 6469. Both the mother's and
the child's attempts to bring their concerns about the father to the court's attention
. .
were denied or ignored. The trial court repeatedly sustained father's counsel's
23
Dr. Lobel explained that the basis for this.concern was the fact that the father's responses to
his repeated suggestions for ways to make the child more comfortable being with him "were not
reflective in my opinion of a deep level of empathy that would be typical between a parent and a
child." R. 2601-03.
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objections to the mother's testimony about conduct that frightened the child,
including the father's abuse of the mother in the child's presence. R. 2788-97.
The court even refused to allow into evidence a list of the child 's specific concerns
about spending time with his father that the child's attorney prepared at the child's
Notably, despite these numerous red flags regarding the father's parenting,
the court's best interest analysis focused solely on the "friendly parent" factor-
"whether the parents respectively are each capable of fostering a fruitful and
meaningful relationship between their child and the other parent." A. 110. Family
violence experts have long voiced concerns over the "friendly parent" factor in
about the other parent: "The friendly-parent standard works against survivors
because any concerns they voice about father-child contact . . . are usually
24
Daniel G. Saunders et al., Child Custody Evaluators' Beliefs About Domestic Abuse
Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence
Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to Nat'l
Inst. of Justice, U.S. Dep't of Justice (Oct. 31, 2011), at 22. See also Joan Zorza, Friendly
Parent Provisions in Custody Determinations, 26(8) Clearinghouse Rev. (1992) (Friendly parent
provisions prioritize receptiveness to shared parenting without regard to parenting history or
impact, tend to be gender-biased, typically benefit uninvolved or abusive fathers, and punish
mothers who raise concerns about father's parenting.); Zoe Garvin, The Unintended
Consequences of Rebuttable Presumptions on Child Custody in Domestic Violence Cases, 50(1)
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issue as an "important if not pivotal factor" for almost four pages. A. 110. It did
not meaningfully consider any other factor related to the child's best interest. A.
the evidence indicating that the mother's and child's concerns about the father's
claims are inapplicable where the child has suffered a parent's abuse or neglect.25
hostility toward a parent for abuse or other legitimate reasons may appear exactly
the same as that of an "alienated" child. In light of the persistent and dangerous
influence of PAS and its tendency to mask true abuse or parenting deficits, it is
critical that a parent has the opportunity to cross-examine a custody evaluator who
Fam. Law Q. 19 (Spring 2016) (Friendly parent provisions eviscerate protective presumptions
against custody to batterers because "concerns about . . . safety and/or contact between the child
and other parent are often interpreted as a lack of cooperation[.]").
25
Richard Gardner, Differentiating Between Parental Alienation Syndrome and Bona Fide
Abuse-Neglect, 27 Am. J. Fam. Therapy 97 (Apr.-Jun. 1999).
26
Leslie M. Drozd & Nancy Williams Olesen, Is it Abuse, Alienation, and/or Estrangement? A
Decision Tree, 1 J. Child Custody 65 (2010).
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has relied on parental alienation theories in making a custody recommendation.
are not the product of the bias inherent in the alienation theory.27
CONCLUSION
For the reasons set forth above and in the briefs submitted by Plaintiff-
orders be reversed.
27
See Meier, supra note 8, at 8-9; see also Matter of Lisa W. v. Seine W., 9 Misc.3d 1125(A), at
*7 (Fam. Ct. Kings Cty. Aug. 25, 2005) (admissibility of expert reports and testimony is subject
to each parent's "right to review the reports, receive a full and fair opportunity to expose
inadequacies on cross-examination, and present material in rebuttal").
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