Calif-legal.com: Expert Article - PARENTAL ALIENATION AND ENMESHMENT ISSUES IN CHILD CUSTODY CASES by Daniel J. Rybicki, Psy.D., DAPBS

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Thus, Poliacoff joins with Kelly and Johnston (2001) and Lee and Olesen (2001) in suggesting that the evaluator give consideration to these and other family features when the evaluator wishes to document possible parental alienation or related family dysfunction. When the data do not converge, or when key elements are missing from the profile, even Gardner (1998) will agree that parental alienation syndrome is not the best label to describe the observed family problems.
Some specific suggestions for weighing the various findings in suspected alienation cases is provided by Bricklin and Elliott (2000). They suggest that the evaluator may become alert to parental alienation or other forms of distortion by attending to any and all "red flags" that arise in the course of the custody investigation. In their handbook, these authors refer to a concept called NBOAI -- which stands for not-based-on-actual-interactions. These NBOAI signs will help the evaluator "to recognize situations in which a child is claiming to be true at a conscious level material which is likely not based on his or her actual interactions with the persons represented in the conscious position, but are more likely due to bribery, manipulation, intimidation, or a desire to save a parent seen as impaired." Examples of this would include responses which sound rehearsed; unasked-for-information too readily volunteered; responses given too quickly with hardly any pause between question and response; Bricklin BPS scores which are skewed to one championed parent; limited eye contact with the evaluator; and affect inconsistent with stated events. Defiant, cursing, silly behavior taken to extremes may be a signal of prompting and coaching, and less an indicator of one parent's lack of control. All of these examples should lead the evaluator to consider parental alienation or other forms of distorted information emanating from the assessment with the child or children.

The task of assessment is made somewhat easier when extensive information is collected from a variety of sources. The common child custody evaluation practices of using psychological testing, individual clinical interviews with each of the parents and each of the children, as well as individual observations of the parents with the children will provide merely a starting point for this evaluation. Bricklin and Elliott (2000) concur that there is a need for additional observations of the child or children in interactions with both parents present. Where possible, this type of observation may afford the evaluator a chance to witness how the child greets and interacts with both parents collectively, then compare this with how the child relates to the parent in a one-on-one observation period. Information observations and more structured observations (e.g., Rybicki, 1991) may assist the evaluator in collecting this respective behavioral data. This may be accomplished in part by having extended clinical sessions wherein one parent completes psychological testing while the other parent interacts with the children, followed by points of overlapping observations where the children spend time with each parent individually, and with both parents in some collective situation. Additional collateral information must be collected from a variety of sources, including careful review of various documents and records, as well as directly contacting various collateral sources such as friends, family, neighbors, teachers, therapists, and others who have additional information about the parents, children, and family history. Where possible, reviewing family home movies or video, as well as photographs and other records of family relations will assist the evaluator in gaining some insight into family dynamics. And, clearly, a home visit becomes almost mandatory in order to further observe family relations in the respective households. Developing an evaluation data collection system that is consistent with prevailing professional standards (e.g., American Psychological Association, 1994; Ackerman & Ackerman, 1997; Clark, 1997; Skafte, 1985; Stahl, 1994) is imperative in order to amass the requisite data for determining the level and degree of alienation and/or enmeshment factors which may be present in a given family system. Adhering to these standards closely, and clearly specifying in advance the nature and types of evaluation processes will also serve reduce liability concerns in this uniquely litigious area.

Legal Status of Parental Alienation Syndrome Testimony:

Recent years have witnessed considerable argument and debate over the legal status of the PAS (e.g., Kopetski, 1998a, 1998b; Palmer, 1988; Warshak, 2001). Gardner and his colleagues have been eager to attest to the fact that over 100 articles on PAS have appeared in peer-reviewed journals. The majority of these articles have been non-empirical case-study and clinical accounts, and most have been authored by Dr. Gardner himself. More recently there have been some additional empirical studies on PAS related concerns, and on this basis, there has been some emerging acceptance within at least a few jurisdictions of testimony on the basis of PAS (Kilgore v. Boyd, 13th Circuit Court, Hillsborough County, Fl., Case No. 94-7573, Nov. 22, 2000). At the same time, there has been serious challenge to the PAS concept, with authors such as Stephanie Dallam (1998b; 2000), Judge Williams (2001) and Lewis Zirogiannis (2001) criticizing PAS as unscientific and not suitable for admissibility.

Expert testimony regarding concepts such as parental alienation syndrome is subject to judicial review according to standards set forth in the Federal Rules of Evidence, and in several legal precedent setting cases (Frye v. United States, 293 F. 1013, D.C. Cir. 1923; Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 1993; Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 1999). Using these standards, authors such as Poliacoff (2000) join with Dallam, Williams, and Zirogiannis to contend that Gardner and others have failed to demonstrate that PAS meets these criteria for admissibility. They collectively argue that the theoretical concepts of parental alienation syndrome lack empirical validation, rely too heavily on reverse logic to demonstrate causality, and fail to meet expectations for peer review. At the opposite end of the spectrum, authors such as Bricklin and Elliott (2000) join with Gardner (2001a) to cite over one hundred articles on the PAS which have appeared in peer-reviewed journals. However, as noted above, many of these remain largely nonempirical clinical writings based on case studies. To date, there has been no suitable scientific validation of the PAS model as outlined by Gardner. Other elements of the reformulation models offered by Kelly and Johnston (2001) at least rest on some empirical data that would meet such criteria.