Illinois Matrimonial & Family Law

Parental Alienation

by Wes Cowell; updated 26 June 2016 -- suggest a correction

 

Parental Alienation Syndrome is recognized in Illinois  . . . sort of.  It's passed the Frye test, but only in a limited fashion; and it's been lambasted in more than a few cases.  You really  need to work with an attorney in this area.  Need advice?  Call, leave your info, or scheduleschedule a consult.

 

There's not a lot to say about Parental Alienation Syndrome (PAS) . . . and yet so much to say.

 

There's not a lot to say about PAS because, since the term was coined by Dr. Richard Gardner in 1985, it has never been recognized as a disorder by the medical and psychiatric communities and Gardner's research has been harshly criticized as lacking scientific rigor and validity.  If you try to present a theory of PAS in a custody case, you'll almost certainly fail because you won't be able to put together the psychiatric foundation, necessary -- you might as well try to prove the existence of the tooth fairy and unicorns.

 

Passing The Frye Test:  The "Frye test" is a test of legal admissibility of scientific information.  The test was laid out in 1923 in the federal case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) -- a case about the admissibility of polygraph (lie detector) tests.  The Frye test allows an expert's opinion about a "new or novel scientific methodology and principle" to be admitted into evidence only when that opinion is based on a scientific technique that is "generally accepted as reliable in the relevant scientific community."  In federal cases, the Frye test was superseded in the 1990s by the Federal Rules of Evidence, but some states (like Illinois) still adhere to the Frye test.  Illinois Rule of Evidence 702 (and the committee comment) states:

 

702.  TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Adopted September 27, 2010, eff. January 1, 2011.

 

Comment:  Rule 702 confirms that Illinois is a Frye state. The second sentence of the rule enunciates the core principles of the Frye test for admissibility of scientific evidence as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002).

 

In re:  Marriage of Bates:  In 2004 the Illinois Supreme Court decided In re:  Marriage of Bates, 212 Ill.2d 489, 289 Ill.Dec. 218, 819 N.E.2d 714 (Ill., 2004).  The father tried to make out a case of PAS.  He offered into evidence the opinions of expert witnesses -- including that of Dr. Richard Gardner, himself -- and 136 peer reviewed articles to demonstrate that the "new or novel" theory of PAS was, in fact, generally accepted as reliable in the psychiatric community.

 

The trial court found that "the principle of Parental Alienation Syndrome is sufficiently established to have gained general acceptance in the particular field."  The court, however, also said it would

 

throw out the words `parental alienation syndrome,' basing its findings instead on the standard set out in section 602(a)(8) of the Act (750 ILCS 5/602(a)(8) (West 2002), now 750 ILCS 5/602.5(c)(11)), namely, 'The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the parents and child.'

 

In re:  Marriage of Bates, 212 Ill.2d 489, 289 Ill.Dec. 218, 819 N.E.2d 714 (Ill., 2004).

 

In the appeal to the Illinois Supremes, the mother argued that Gardner's testimony failed to establish that PAS had gained general acceptance in the field of psychiatry.  Her brief called PAS "junk science."   The Supremes didn't address the issue, however, as the trial court "threw out the words PAS" and instead ruled just based on the custody factors (in 2016 the "factors determining custody" were renamed the "factors determining the child's best interests) per 750 ILCS 5/602.5(c).

 

For what it's worth, Gardner ignored the fact that the trial court threw out the words PAS, and instead touted the trial court's finding as proof that PAS was generally accepted by the scholarly community and passed the Frye test in Illinois.  Gardner exploited this confusion to sell books and garner speaking fees.  It didn't help his credibility.  He committed suicide before the Illinois Supreme Court demolished his claims.

 

I Know It When I See It:  There's so MUCH to say about PAS because we run into custody cases every day that can only be described as one parent brainwashing a child against the other parent.  If that doesn't describe "parental alienation," I don't know what does.  Perhaps all those psychiatrists can't agree on research protocols and definitions of symptoms and clusters of symptoms, but I know it when I see it.  The thing to do in these cases is to put together a meticulous explanation of all the examples of the offending parent's efforts to alienate the child from the target parent.  Work with an expert.  Explain the impact of the alienation.  Avoid the Frye fight and follow the lead of the judge in Bates:  present your case in terms of the factors determining the child's best interests laid out in 750 ILCS 5/602.5(c).