case arose out of an order to continue joint legal custody where the parents had filed cross claims to modify joint custody to sole custody. At trial, a court appointed custody evaluator (a psychia- trist), testified that the 5-year-old boy suffered from PAS because he “positively idealized his mother” while “negatively idealizing his father.” The boy even said “My father is all bad.” The court ruled that the parents should continue to share joint legal custody with primary physi- cal custody to the mother. The mother appealed, arguing that the evaluator’s recommendation for joint custody was inconsistent with a finding of PAS; if the court really believed PAS occurred, then joint custody should cease. The mother did not challenge the diagnosis of PAS. In upholding the trial court’s decision, the appellate court did not examine the issue of PAS as a distinct phenomenon. The unreported case of E.V. vs. J.M.,


No. 264 September Term, 2003 arose from a Circuit Court decision to change custody from mother to father in re- sponse to father’s Petition for Contempt for mother’s prevention of court-or- dered visitation. The mother claimed the father had sexually abused the child, but the Department of Social Services (DSS) found the abuse claim unsub- stantiated. The facts lay out a strong case of deliberate parent alienation and the absence of sexual abuse. However, the case was decided on the grounds that the court erred in changing custody as (a)


punishment for mother’s contempt, (b) giving her no opportunity to purge and rectify her behavior of denying access to the father, (c) failing to give adequate notice that custody was at issue, and (d) failure to take testimony regarding best interests before changing custody. One of the mother’s arguments was that the court based the change of custody on the “junk science” of PAS when it rejected her claim that father had molested the child. The Court of Special Appeals was clear that its opinion did not establish the validity of PAS. The court stated, “because of our decision to reverse, we need not address the issue, but we do suggest that if this issue is raised in the hearing there should be evidence to sup- port its validity.” A second unreported case is Murr


v. Murr, Ct. Spec. App., No. 1622, Sept 2005 Term, Decided March 27, 2007. Appellant mother alleged that the trial court was mistaken in granting custody to father due to a finding of Parent Alienation Syndrome. At trial there was testimony regarding mother’s alienating behavior, but there was no testimony which mentioned the term PAS. In a footnote the appellate court stated,


Parental Alienation Syndrome is a condition created in a child by reason of conduct of a parent which brings about destruction of the bond between the child and the targeted parent. There is


said to be expanding recognition of the disorder by both legal and mental health professions and increasing recognition by the ju- diciary. RICHARD A. GARDNER, M.D., PARENTAL ALIENATION SYNDROME, Addendum (2d ed. 1999). A brief reference to Parental Alienation Syndrome is contained in Barton v. Hirschberg, 137 Md. App. 1, 31 (2001) {joint custody awarded despite custody evaluator’s PAS diagnosis}.


The authors find this footnote very


disturbing. It is a demonstration that in the custody arena, a concept that is at best controversial and at worst, discred- ited by the majority of the mental health community, can gain the veneer of the Frye “general acceptance” test by virtue of its frequent colloquial usage.14, 15 There is no precedent in any other


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state that validates PAS as a diagnos- able disorder. Gardner claimed there are 46 U.S. cases that set precedent for the admissibility of PAS. His claim was misguided at best. Half of the cases are unreported. The balance either do not have facts that meet Gardner’s own criteria, or mention PAS only in pass- ing without the decision resting on PAS. As of 2006, only two cases in the U.S. made actual rulings on admissibil- ity, both were criminal cases and both denied it. People v. Loomis, 172 Misc. 2d 265; 658 N.Y.S.2d 787 (1997); People v. Fortin, 289 A.D.2d 590; 735 N.Y.S.2d 819 (2001). However, in the American Academy of Matrimonial Attorneys Family Law Journal, there is a published article14


which discusses PAS as an es-


tablished, accepted diagnosis. On the other hand, the AAML Journal has con- tained papers with the opposite view16


. (Continued on page 24) 14


Navigating Custody And Visitation Evalu- ations In Cases With Domestic Violence: A Judge’s Guide. National Council of Juvenile and Family Court Judges. 2006


Parental Alienation Syndrome And Alien- ated Children- Getting It Wrong In Child Custody Cases. Bruch C. Child and Family Law Quarterly, Vol 14, No 4, 2002.


22 Trial Reporter Winter 2008


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