Child Custody Litigation: Allegations of Child Sexual Abuse

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In his paper , Dr. Gardner described the syndrome as a psychological disturbance brought about by custody litigation. Richard Gardner: A review of his theories and opinions on atypical sexuality, pedophilia, and treatment issues. Treating Abuse Today , 8 1 , This has the effect of ensuring a parent who alleges domestic violence or abuse will be seen as an alienating parent.

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Parental Alienation. This Georgetown Law School topic guide was created for students conducting introductory research in the area of family law and provides links to resources in that field. A comprehensive, in-depth research guide for many topics found in New York Family Law. In doing so, the various assumptions that Gardner based this syndrome on are identified.

These assumptions are then tested against reality. Further, the paper investigates the use of PAS in courts, in relation to the evidentiary value that it has.

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  5. This is done with specific reference to two countries — USA and India the former since the theory was first developed there. Furthermore, the paper probes into the use of PAS by the Indian courts. This is done by looking at the Indian judgements where PAS has been used. | Child Custody Litigation | | Kathryn Kuehnie | Boeken

    The objective served here is for the author to appraise the use of PAS by the Indian courts. Further, the paper argues that PAS should have no evidentiary value in the courts of law, and that the use of such a theory by the courts is detrimental to the justice delivery system in India. What is Parental Alienation Syndrome? PAS is a term coined by Richard A. Gardner, first surfacing in the year The syndrome has been described as a psychological disturbance in which children are obsessed with unjustified denigration of a parent.

    I. Introduction

    This denigration may take the form of deprecation and criticism, often exaggerated. The syndrome, on the other hand, takes into its fold subconscious and non-conscious factors, over and above the conscious ones. It is important to note that while the angry parent may not intend to influence the child here, the child might still get influenced. In parental alienation, there exists a valid reason for the child to be alienated from the hated parent, whereas in PAS, the hatred is exaggerated and unjustified since the child does not have reasons for such hatred itself, but only replicates emotions shown by the loved parent.

    Through his paper, Gardner also mentioned how despite the express hatred towards a parent, there may still exist certain feelings of love and affection towards the same parent, though suppressed. Similarly, for the loved parent, the child may have certain feelings of disdain, that are unexpressed. Essentially, Gardner wants to convey that a child faced with PAS is greatly influenced by the loved parent in its behaviour and attitude towards the hated parent. Gardner also stated that the expression of hatred by a child suffering from PAS may be most extreme in the presence of both the parents.

    However, children suffering from PAS are prone to sudden outbursts of disdain in such situations.

    Child Custody Litigation: Allegations of Child Sexual Abuse

    There is no confused expression of their relationship with the hated parent, with the sole expression being one of disdain and hatred. It is important to note that these symptoms as characterised by Gardner, are mere hypotheses. Gardner even says that all the symptoms may not exist in a child suffering from PAS, and there can be varying levels of syndrome from case to case.

    In child custody battles, children suffering from this syndrome choose the loved parent, despite not knowing what the company of the other parent is like. They even dislike the idea of visitation by the alienated parent. He theorised PAS with an objective of reasoning the high instance of child sexual abuse allegations. He was of the opinion that these allegations are mostly levelled by mothers against the fathers. Thus, the accuser turns delusional. He also fails to consider that there might be some exaggeration, where some things might be true and some not. Gardner also elucidated upon the factors that led to PAS.

    Gardner makes a lot of assumptions while theorizing this syndrome. Gardner considers such knowledge and behaviour, which is considered by professionals to be a possible marker of sexual abuse, to be normally present in non-abused children. Third , Gardner says that all adults are afflicted with some sort of paedophilia.

    For some, their imagination and fantasies enable them to fabricate sexual abuse allegations more easily. At the same time, he accedes to the fact that similar accusations for places where children live together with adults orphanages, boarding schools, etc. All his assumptions are unsubstantiated, with no proper basis in support of PAS. Furthermore, Gardner does not provide any basis for the assertions that he makes about the characteristics of PAS.

    Further, he maintains that the instance of sexual abuse allegations in PAS is really high. He is of the belief that an enhanced sexual knowledge or sexual behaviour is not a result of sexual experience. However, there is no research finding which corroborates this belief. Studies show that over-sexualized behaviour and sexual knowledge is a consequence of sexual abuse most of the time. Critics of PAS have held the view that recognition to the syndrome delegitimizes legitimate sources of parental alienation, such as neglect, abandonment during divorce, emotional abuse etc. Since there is no clear evidence as to the existence of PAS, it is highly problematic for the courts to be entertaining this as a defence. The courts in such cases, might try to decide a case on the basis of something that might not even be a reality. This can leave children in custody disputes highly vulnerable, especially when the abuse allegations are true.

    Below, the author will give an overview of the standards for admitting scientific evidence in the US and India. With respect to India, the author seeks to understand the standards for admitting scientific evidence, which in turn, would help understand how and why PAS is used in Indian courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc. According to this standard, four factors need to be considered to test the reliability of scientific evidence - 1 whether the theory or technique can be and has been tested; 2 whether the theory or technique has been subjected to peer review and publication; 3 whether the known or potential rate of error is acceptable; and 4 whether the theory or technique has gained widespread acceptance.

    PAS fails to hold good for either of these standards. PAS is definitely not generally accepted, and there is a lot of controversy amongst mental health professionals over the issue of parental alienation. Moreover, PAS is yet to be properly tested using empirical analysis. Today however, there is considerable literature on the PAS, some papers even confirming the existence of the syndrome.

    So, PAS cannot be said to qualify this condition. Lastly, since the general acceptance criterion is not fulfilled, PAS fails to qualify the Daubert standard on all four counts.

    To many, this mother's story is beyond belief.

    Therefore, PAS should not be admissible in the courts of law. India lacks standards for the admissibility of scientific evidence.


    Section 45 of the Indian Evidence Act, deals with expert opinions. However, it lays down no criteria for admissibility of the expert testimony. In Malay Kumar Ganguly v Sukumar Mukherjee , [55] it was held by the Supreme Court that the expert testimony is of an advisory character.