Issue 42.1 - 3.23.22


58                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

GENDER BIAS IN CROSS-ALLEGATION 
DOMESTIC VIOLENCE-PARENTAL ALIENATION 
CUSTODY CASES: CAN STATES LEGISLATE THE 
FIX?  
 
NINA JAFFE-GEFFNER* 
 

Abstract 
 

“Parental Alienation Syndrome” (PAS), developed by Dr. Richard Gardner in 
1985, posits that a frequent dynamic in child custody disputes involves vengeful 
mothers falsely convincing their children that they have been sexually abused by 
their fathers. Although PAS is widely discredited and courts have ruled it 
inadmissible, new formulations of the theory, such as Parental Alienation (PA), 
continue to play a dominant role in custody proceedings. Proponents of PA assign 
the label to a broad range of custody cases in which children favor one parent and 
reject the other. However, despite the seemingly more gender-neutral framing of PA, 
empirical research shows that courts use PA to discredit mothers’ allegations of 
domestic violence and abuse and justify custody switches away from the mother. 
This Note analyzes the gender bias in family courts’ handling of custody cases 
involving cross-allegations of domestic violence and PA, and then proposes four 
legislative provisions aimed at reducing the effects of such bias in custody 
proceedings.  
  

INTRODUCTION 
 

Six-year-old Gabriella Collins; twenty-eight-month-old Kyra Franchetti; two-
year-old Jovani Liguro; three-year-old Autumn Coleman; and eight-year-old 
Thomas Valva.1 These are all names of children murdered by a parent in the past ten 

 
© 2021 Jaffe-Geffner. This is an open access article distributed under the terms of the Creative 
Commons Attribution License, which permits the user to copy, distribute, and transmit the work 
provided that the original author(s) and source are credited. 
 
* J.D. 2022, Columbia Law School; B.A. 2017, McGill University. My deepest gratitude to Dorchen 
Leidholdt for her supervision, advice, and support throughout the Note-writing process. I am deeply 
inspired by the advocacy of Dorchen and the entire team at Sanctuary for Families on behalf of survivors 
of domestic violence and related forms of gender violence, as well as the parents who have tragically 
lost a child during custody proceedings and work tirelessly to reform the family court system. Finally, 



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years due to a court’s award of custody and/or unsupervised visitation over the 
vehement objections of a mother who alleged domestic violence and abuse by the 
father.2 Unfortunately, these are not isolated tragedies. According to the Center for 
Judicial Excellence, 821 children were murdered by a parent involved in a separation 
or divorce between 2008 and 2021.3 The Center further identifies that for 111 of 
those children, across eighty-eight different cases, the family court was involved 
before the death of the child and ignored safety concerns.4 While these figures are 
staggering, they are perhaps less surprising given the estimate that over 58,000 U.S. 
children each year are court-ordered into the unsupervised care of a violent parent.5 
The inevitable question then presents itself: Why are so many family courts ordering 
children into the unprotected care of an abusive parent in the wake of their parents’ 
divorce?  

 
One reason is a pervasive family court culture that tends to discredit allegations 

of family violence while ascribing inherent primacy to shared parenting.6 A dynamic 
that has come to dominate family court proceedings involves allegations of domestic 

 
thank you to staff of the Columbia Journal of Gender and Law for their thoughtful edits and 
recommendations.  
 
1 Memorandum in Support of Legislation, NY Senate-Assembly Bill S08549, A10668 (N.Y. 2021), 
https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A10668&term=2019&Summary=Y&Acti
ons=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y&Memo=Y&Text=Y&LFIN=Y&Cha
mber%26nbspVideo%2FTranscript=Y [https://perma.cc/C89B-YRGW] (establishing procedure 
guidelines for custody agreements involving child abuse, family violence, and/or domestic violence).  
 
2 Id.  
 
3 US Divorce Child Murder Data (2008-Present), CTR. FOR JUD. EXCELLENCE, 
https://centerforjudicialexcellence.org/cje-projects-initiatives/child-murder-data/ 
[https://perma.cc/JQ8K-7JZA].  
 
4 CHILDREN KILLED BY A PARENT IN THE U.S. WHEN DIVORCE, SEPARATION, CUSTODY, VISITATION, OR 
CHILD SUPPORT IS MENTIONED IN NEWS COVERAGE, CTR. FOR JUD. EXCELLENCE (2021), 
https://drive.google.com/file/d/13DFpBXOIorT5P5QutC0OohO2hJ6K8zrS/view 
[https://perma.cc/2VZU-JS3Y].  
 
5 See Press Release, How Many Children Are Court-Ordered Into Unsupervised Contact With an 
Abusive Parent After Divorce?, THE LEADERSHIP COUNCIL ON CHILD ABUSE & INTERPERSONAL 
VIOLENCE (Sept. 22, 2008), http://www.leadershipcouncil.org/1/med/PR3.html 
[https://perma.cc/SQU7-HPPR]. 
 
6 Joyanna Silberg & Stephanie Dallam, Abusers Gaining Custody in Family Courts: A Case Series of 
Over Turned Decisions, 16 J. CHILD CUSTODY 140, 145 (2019). 



60                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

violence or child abuse, generally made by the mother, met with cross-allegations of 
“parental alienation” (also known as “PA”) from the father.7 The theory of parental 
alienation—a variation of the “parental alienation syndrome” or “PAS” developed 
by psychiatrist Richard Gardner in 1985, discussed infra Section II.A—is frequently 
invoked by fathers accused of domestic violence who posit that the children’s mother 
is purposely alienating their children from him, and the ‘false’ claims of domestic 
violence are merely part of this campaign of denigration.8  

 
A national U.S. study published in 2020 examining over 4,000 child custody 

cases has revealed the deeply gender-biased manner in which cross-claims of 
domestic violence and parental alienation play out in family court, discussed infra 
Section III.A.9 The study shows that courts are rejecting mothers’ abuse allegations 
at high rates and imposing potentially dangerous custody orders.10 Emboldened by 
this data, lawmakers at the state and national level have begun introducing legislation 
to reform child custody laws. These initial efforts aim to prioritize child safety and 
counteract the gender bias permeating the family court system.11  

 
7 Joan S. Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Courts’ 
Treatment of Cases Involving Abuse and Alienation, 35 LAW & INEQUAL. 311, 317 (2017). See e.g., 
Kathryn Joyce, She Said Her Husband Hit Her. She Lost Custody of Their Kids: How Reporting 
Domestic Violence Works Against Women in Family Court, THE MARSHALL PROJECT (July 8, 2020), 
https://www.themarshallproject.org/2020/07/08/she-said-her-husband-hit-her-she-lost-custody-of-
their-kids [https://perma.cc/GXJ7-99QK] (describing the experience of Tara Coronado, a mother of 
four, who lost primary custody after accusing the children’s father of domestic violence and subsequent 
court ordered psychological evaluations, paid for by the father, labeled her with a range of diagnoses 
including “parental alienation”); Naomi Cahn, Why Women Lose Custody, FORBES (Jan. 26, 2020), 
https://www.forbes.com/sites/naomicahn/2020/01/26/why-women-lose-custody/?sh=56bf4fc24641 
[https://perma.cc/2VBL-DX8A] (describing experience of a woman losing custody of her children to 
their father after she reported that the father repeatedly abused her and their children and the father 
claimed parental alienation). 
 
8 Janet R. Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research 
and Social Policy Implications for the Alienated Child, 38 FAM. L.Q. 757, 759 (2005); Debra Stark et 
al., Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis 
and Reform Proposal, 26 MICH. J. GENDER & L. 1 (2019). 
 
9 Joan S. Meier, U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse 
Allegations: What Do the Data Show?, 42 J. SOC. WELFARE AND FAM. L. 92 (2020) [hereinafter Meier, 
U.S. Child Custody Outcomes]. 
 
10 Id. 
 
11 See, e.g., H.R. Con. Res. 72, 115th Cong. (2017); S.78, 2021–2022 Reg. Sess. (Pa. 2021). 



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The primary focus of this Note concerns gender bias in cases involving cross-
allegations of parental alienation and domestic violence,12 specifically, as opposed 
to child abuse. The reasons for focusing on domestic violence are twofold: First, 
there is a large amount of literature supporting the notion that the majority (or at least 
a significant percentage) of high-conflict custody cases involve domestic violence.13 
Second, as will be elaborated further, PAS was originally developed as a response to 
mothers’ allegations of child sexual abuse, and thus the extension of its use into the 
domestic violence context highlights the pervasiveness of gender bias within the 
court system. The aims of this Note are threefold: first, to analyze the factors that 
converged to produce a family court culture in which mothers’ claims of domestic 
violence are easily denigrated while fathers’ claims of parental alienation are 
elevated; second, to argue that in order to effectively counter gender bias in family 
court, states’ custody laws must be reformed; and third, to assess what specific 
reforms are necessary for effecting change in practice and not just on paper.14  

 
12 "Domestic violence” definitions vary between jurisdictions, with some states adopting broad 
domestic violence provisions that encompass any violence in the home, including against children. 
See Domestic Violence/Domestic Abuse Definitions and Relationships, NAT’L. CONF. OF STATE LEG., 
https://www.ncsl.org/research/human-services/domestic-violence-domestic-abuse-definitions-and-
relationships.aspx [https://perma.cc/P7NA-88S4]. For the purposes of this Note, the term “domestic 
violence” encompasses all relevant forms of physical and nonphysical abuse committed against a 
current or former spouse or partner, rather than child abuse. The reason for this distinction is that the 
empirical studies I reviewed, as well as a significant amount of the literature on the topic, invoke the 
term domestic violence as a category separate from child physical or sexual abuse. The term “intimate 
partner violence” encapsulates the meaning of domestic violence as it is intended in this Note. See 
Intimate Partner Violence, CENTERS FOR DISEASE CONTROL AND PREVENTION, 
https://www.cdc.gov/violenceprevention/intimatepartnerviolence/index.html [https://perma.cc/3UEY-
4LSP].   
 
13 See Joan S. Meier, Research Indicating That the Majority of Cases That Go to Court as “High 
Conflict” Contested Custody Cases Have A History Of Domestic Violence, THE LEADERSHIP COUNCIL 
(2005), http://www.leadershipcouncil.org/1/pas/Meier.html [https://perma.cc/BR8Y-ZWF4]. See also 
Joyce, supra note 7 (“One small 1992 study found that there was physical aggression between parents 
in 70 percent of high-conflict custody fights, and ‘severe’ violence (meaning battery or the threat or use 
of a weapon) in nearly half. Another study, published in 1997 by the National Center for State Courts 
and covering several cities, found documented evidence of domestic violence in 20 to 55 percent of 
contested custody cases. In one city where mediators screened for it, ‘much higher’ rates of abuse were 
revealed.”).  
 
14 This Note limits its focus to male-female relationships because this is the relationship structure 
examined in all of the empirical PA/PAS studies that I have found thus far. However, domestic violence 
remains pervasive in same-sex relationships. See Luca Rollè et al., When Intimate Partner Violence 
Meets Same Sex Couples: A Review of Same Sex Intimate Partner Violence, FRONT PSYCH., (2018). See 
also Nancy E. Murphy, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 
30 VAL. U. L. REV. 335, 339 (1995). Furthermore, allegations of PAS have arisen in same-sex custody 



62                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Part I examines the evolution of child custody standards and their intertwinement 
with societal views on sex and gender. Sections II.A and II.B detail the emergence 
of Gardner’s theory of PAS and its continued influence in family courts in the form 
of PA, despite rulings on PAS’s inadmissibility. Section II.C then establishes why 
any version of the theory, regardless of the label, is highly problematic in the context 
of custody cases involving domestic violence. Section III.A reviews the empirical 
literature that proves the application of parental alienation in custody cases is gender-
biased and frequently used to diminish claims of domestic violence, highlighting the 
groundbreaking significance of Professor Joan Meier’s15 2020 national study 
establishing that gender bias predominates such cases. Section III.B surveys and 
evaluates the effectiveness of the legislative efforts undertaken by states thus far to 
reform child custody laws. Finally, Part IV provides four concrete proposals for 
inclusion in future state legislation to effectively account for the dynamics of 
domestic violence and parental alienation in custody proceedings. The proposals 
directly respond to New York State’s legislative scheme, but have applicability to 
other states.  

 
I. Historical Treatment: Intersection of Sex/Gender and Custody in 

Family Courts 

 
A. Paternal Presumption, Tender Years, and the Best Interests of the 

Child Standard  
 

In the United States, the laws governing child custody decisions have largely 
reflected society’s changing views on sex and gender, resulting in alternating 
custodial presumptions and preferences between mothers and fathers. Eighteenth and 
nineteenth century custody laws automatically bestowed child custody upon fathers 
following divorce, embodying the prevalent belief that such custody was part of the 

 
cases. See e.g., Palazzolo v. Mire, 10 So. 3d 748, 771–772 (La. Ct. App. 2009) (assessing PAS testimony 
in a case where the adoptive mother sued the birth mother for custody and visitation of a child who was 
adopted during their same-sex relationship). As such, it would be meaningful for further empirical and 
social science research to analyze the impact of PA in domestic violence custody cases involving same-
sex relationships and non-traditional family structures.  
 
15 Joan Meier is a Professor of Clinical Law and Director of the National Family Violence Law Center 
at the George Washington University Law School, where she has served as a clinical law professor for 
thirty years. She is also the founder of the nonprofit DV LEAP, which provides pro bono appeals in 
domestic violence cases. See Joan S. Meier, GEO. WASH. U. L (2021), https://www.law.gwu.edu/joan-
s-meier [https://perma.cc/3NG8-L4ZA].  



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husband’s property rights.16 By the mid-twentieth century most states followed the 
“tender years” doctrine, which was premised on the notion that mothers possessed 
greater nurturing capabilities that made them the proper custodians of young children 
unless proven unfit.17 However, the changing social fabric of the 1960s and 1970s 
saw greater numbers of both women entering the workforce and men seeking larger 
roles in child caretaking, prompting legislatures to replace the tender years 
presumption with the “best interests of the child” standard.18  

 
The “best interests of the child” analysis represents the standard currently used 

in all fifty states to determine custody and visitation matters.19 In 1970, the National 
Conference of Commissioners on Uniform State Laws fleshed out the standard by 
adopting the Uniform Marriage and Divorce Act (UMDA), a gender-neutral five-
factor model for determining custody decisions upon divorce.20 While many states 
adopted at least some of the five UMDA factors, they often incorporated additional 
factors—either statutorily or judicially—causing the criteria for the “best interests of 
the child” standard to remain varied between jurisdictions.21 The move away from 
the tender years doctrine represented a rare overlap in goals between fathers’ rights 
and feminist movements, both of which advocated for the removal of the maternal 

 
16 Erin Bajackson, Best Interests of the Child - A Legislative Journey Still in Motion, 25 J. AM. ACAD. 
MATRIM. L. 311, 312–13 (2013); Zoe Garvin, The Unintended Consequences of Rebuttable 
Presumptions to Determine Child Custody in Domestic Violence Cases, 50 FAM. L.Q. 173, 175 (2016). 
 
17 Louann C. McGlynn, Parent and Child-Custody and Control of Child: Parental Alienation: Trash 
Talking the Non-Custodial Parent Is Not Okay Hendrickson v. Hendrickson, 2000 Nd 1, 603 N.W.2d 
896, 77 N.D. L. REV. 525, 531 (2001); Linda D. Elrod, Reforming the System to Protect Children in 
High Conflict Custody Cases, 28 WM. MITCHELL L. REV. 495, 505 (2001). 
 
18 McGlynn, supra note 17, at 531–32; Janet R. Johnston & Matthew J. Sullivan, Parental Alienation: 
In Search of Common Ground for a More Differentiated Theory, 58 FAM. CT. REV. 270, 274 (2020); 
Linda D. Elrod & Milfred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The 
Interests of Children in the Balance, 42 FAM. L.Q. 381, 391 (2008). 
 
19 Jaya L. Connors, Advocating for Child Clients in Custody Cases Involving Parental Alienation Issues, 
28 WIDENER COMMONWEALTH L. REV. 5, 8 (2019). See, e.g., N.Y. DOM. REL. LAW § 
240(1)(a) (McKinney 2015).  
 
20 See Elrod & Dale, supra note 18, at 393–94; Bajackson, supra note 16, at 315. The five factors consist 
of: 1) the wishes of the child's parents as to custody; 2) the child's wishes as to whom shall be his/her 
custodian; 3) the interaction and interrelationship of the child with the parent or parents, siblings, and 
anyone else who may significantly affect the child's best interests; 4) the child's adjustment to his/her 
home, school, and community; and 5) the mental and physical health of the individuals involved.  
 
21 Elrod & Dale, supra note 18, at 394; Bajackson, supra note 16, at 315. 



64                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

presumption from state legislation during the early 1970s.22 For this reason, the 
UMDA excludes any mention of the gender or sex of the custodian in determining 
the best interests of the child, and “[stands] for the proposition that gender had little 
legal relevance for the parent-child relationship.”23  

 
B. Joint Custody and Fathers’ Rights Groups  

 
In response to society’s evolving views on parenting relationships and gender 

and sex equality, “[l]egislatures made a public policy shift finding that it was in a 
child's best interest to maintain relationships with both parents after divorce,” which 
led to the concept of joint custody.24 Joint custody may involve joint legal custody, 
whereby both parents share decision-making authority, or joint physical custody, 
whereby the child spends time residing with both parents, and often it involves 
both.25 California spearheaded the joint custody charge in 1979 by enacting a 
provision establishing a presumption that joint custody is in the best interests of the 
child when asked for by both parents.26 By 2006, forty-six states had adopted some 
form of joint custody legislation.27   

 
 

22 Deborah Dinner, The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities, 102 
VA. L. REV. 79, 114–15 (2016). Dinner highlights the two groups’ differing reasoning, as “fathers’ rights 
activists argued that sex-based custody laws discriminated against men” whereas “feminist activists 
emphasized the ways in which they reflected and reinforced a gendered division of labor.”  
 
23 Id. at 115. 
 
24 Elrod, supra note 17, at 507.  
 
25 Jocelyn Elise Crowley, Fathers’ Rights Groups, Domestic Violence and Political 
Countermobilization, 88 SOC. FORCES 723, 728 (2009); Michele A. Adams, Framing Contests in Child 
Custody Disputes: Parental Alienation Syndrome, Child Abuse, Gender, and Fathers’ Rights, 40 FAM. 
L.Q. 315, 323 (2006). 
 
26 CAL. CIV. CODE § 4600.5 (West 1979). See CAL. FAM. CODE § 3080 (1994). Section 3080 continues 
former Civil Code Section 4600.5(a) without substantive change. See also Nancy K. Lemon, Joint 
Custody as a Statutory Presumption: California’s New Civil Code Sections 4600 and 4600.5, 11 
GOLDEN GATE U.L. REV. 485, 488–89, 501 (1981); Nancy Ellen Yaffe, Note, A Fathers’ Rights 
Perspective on Custody Law in California: Would You Believe It If I Told You That the Law Is Fair to 
Fathers?, 4 S. CAL. INTERDISC. L.J. 135, 139 (1994).  
 
27 Adams, supra note 25, at 323. See Clare Dalton, When Paradigms Collide: Protecting Battered 
Parents and Their Children in the Family Court System, 37 FAM. & CONCILIATION CTS REV. 273, 277 
(1999) (noting there are three primary forms of joint custody legislation: 1) joint custody is explicitly 
an option for judges to take into account; 2) joint custody is authorized when asked for by either party, 



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Advocates have continued to fight for joint custody laws across the country, 
typically for bills that include a presumption of joint physical custody that is 
rebuttable only by clear and convincing evidence that co-equal physical custody is 
not in the best interests of the child.28 Such bills go one step further than California’s 
statutory presumption, which is limited to instances of parental agreement. While 
facially this type of joint custody legislation appears gender neutral, since the 1970s 
its enactment has been one of the primary goals of fathers’ rights groups 
(“FRGs”)¾a subgroup of the more generalized men’s liberation movement 
originating in the mid-1960s.29 In the wake of escalating divorce rates, FRGs 
promoted joint custody legislation in response to what they saw as biased child 
support30 and custody awards.31 Certainly, there are legitimate arguments that joint 
custody fosters a continued relationship with both parents after a divorce from which 
many children benefit.32 However, research detailing the benefits of joint custody 

 
even if the other parent contests it; 3) joint custody is authorized only when condoned by both parents 
but the receptiveness of each parent to joint custody is a factor in determining which parent should be 
granted sole custody). 
 
28 Elizabeth S. Scott & Robert E. Emery, Gender Politics and Child Custody: The Puzzling Persistence 
of the Best-Interests Standard, 77 L. & CONTEMP. PROBS. 69, 77–78 (2014). 
 
29 FRGs initially sought this type of joint custody legislation in California, see Bajackson, supra note 
16, at 322–23, as well as in New York, where it also did not pass, see Lemon, supra note 26, at 489–
90; Yaffe, supra note 26, at 139; Scott & Emery, supra note 28, at 78 (noting prominent women’s 
organizations have adopted a strong stance against a statutory presumption favoring joint custody); 
Stark et al., supra note 8, at 117 (noting that fathers’ rights groups such as the National Parents 
Organization and Stop Abusive and Violent Environments have engaged in a nationwide push for 
statutory joint custody rebuttable presumptions, with no exception for when one of the parents has 
engaged in domestic violence). 
 
30 See Crowley, supra note 25, at 728–29; Dinner, supra note 22, at 112–13 (“Congressional 
amendments to the Social Security Act in 1975 created the Federal Child Support Enforcement 
Program, which supervised the collection of monies from fathers to reimburse states for welfare 
expenditures[.]”); Scott & Emery, supra note 28, at 77 (“The sustained effort to enact state laws favoring 
joint legal and physical custody has been at the heart of fathers’ legislative agenda from the beginning. 
. . . It also could reduce the burden of child support as fathers assumed a larger share of child-care 
responsibility[.]”).  
 
31 Dinner, supra note 22, at 88; Adams, supra note 25, at 322–23. 
 
32 Judith G. Greenberg, Domestic Violence and the Danger of Joint Custody Presumptions, 25 N. ILL. 
U. L. REV. 403, 406 (2005); Maritza Karmely, Presumption Law in Action: Why States Should Not Be 
Seduced into Adopting a Joint Custody Presumption, 30 NOTRE DAME J.L. ETHICS & PUB. POL’Y 321, 
329, 336, 353 (2016). Other arguments in favor of joint custody presumptions include that they increase 



66                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

focuses on situations where parents agree to shared parenting and are able to 
cooperate.33 Yet joint custody presumptions, or even statutory preferences, mostly 
impact litigated custody cases, which are by definition high conflict and most likely 
to involve domestic violence.34 In the context of domestic violence, shared parenting 
can be harmful to both children and the abused parent. Abusive intimate partners 
often use joint custody and the continued contact it entails to further abuse their 
former partner.35 As such, it is particularly concerning that even though a majority 
of state statutes do not contain an explicit presumption for joint custody, most of 
them “elevate shared parenting in other ways, including through ‘friendly parent’ 
preferences given to whichever parent is more willing to share custody.”36  

 
C. “Friendly Parent”  

 
As state legislatures and family courts endorsed shared parenting through joint 

custody, “friendly parent” provisions also emerged.37 Generally, “friendly parents” 
are cooperative and promote the child’s continued contact with the other parent, 
whereas “unfriendly parents” resist continued contact, make allegations, and are 

 
the predictability of custody decisions, eliminate perceived gender biases, and increase the likelihood 
that fathers will pay child support. Id. at 328–29. 
 
33 Karmely, supra note 32, at 361. 
 
34 Id. at 330 (noting a joint physical custody presumption will have the greatest impact on the 10% of 
custody cases involving parents who are unable to resolve their issues outside of court, and tend to be 
high-conflict); Greenberg, supra note 32, at 411 (noting research shows that approximately 75% of the 
contested custody cases that require judicial intervention are cases in which there is a history of 
domestic violence). 
 
35 See Greenberg, supra note 32, at 411–12. See also D. Lee Khachaturian, Domestic Violence and 
Shared Parental Responsibility: Dangerous Bedfellows, 44 WAYNE L. REV. 1745, 1748, 1763 (1999) 
(noting two prominent researchers on joint custody, Judith Wallerstein and Janet R. Johnston, 
concluded that “ongoing conflict between divorced parents has especially detrimental effects on the 
children and that children are particularly at risk when they have frequent and continuing access to both 
parents who are hostile and uncooperative with each other”).  
 
36 Joan S. Meier, Denial of Family Violence in Court: An Empirical Analysis and Path Forward For 
Family Law 32 (GWU Legal Studies Research Paper No. 2021-12, GWU Law School Public Law 
Research Paper No. 2021-12, 2021), https://ssrn.com/abstract=3805955 [https://perma.cc/LM2D-
BST8] [hereinafter Meier, Denial of Family Violence in Court]. See State Law Spreadsheet, 
https://drive.google.com/file/d/1eEMq_NtSBGrwR6Ofs5mlObsQuAUIfz3y/view?usp=sharing, 
(created by Joan Meier and on file with author) [hereinafter State Law Spreadsheet]. 
 
37 Dalton, supra note 27, at 277. 



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otherwise deemed “alienating.”38 Under this analysis, custody is more likely to be 
given to a “friendly parent.”39 Joint custody and “friendly parent” provisions are 
tightly intertwined. For instance, in states like California—where the statutory 
scheme limits joint custody to cases of parental agreement but also has a “friendly 
parent” provision—a parent who expresses disagreement with joint custody risks a 
court award of sole custody to the “friendly” parent who is willing to share.40   

 
As will be discussed infra Section II.C, the “friendly parent” framework is 

problematic in domestic violence cases because it has been used to penalize mothers 
who are deemed “unfriendly” upon expressing legitimate concerns about a father’s 
involvement with their child.41 Nevertheless, “friendly parent” provisions have seen 
a rise comparable to that of joint custody statutes, with the American Bar Association 
reporting that as of 2008, thirty-two states include “friendly parent” presumptions in 
their best interest analysis.42 As of March 2020, forty-two states have included 
“friendly parent” provisions as a factor in the analysis of the best interests of the 
child.43  

 
II. Gardner and Evolution of PAS to PA (Among Other Terms): Tension 

with Domestic Violence 
 

A. Parental Alienation Syndrome (PAS) 
 

1. History  
 

A problematic twist on the “friendly parent” preference emerged in the form of 
“parental alienation syndrome,” a theory technically formulated outside the men’s 

 
38 Margaret K. Dore, The “Friendly Parent” Concept: A Flawed Factor for Child Custody, 6 LOY. J. 
PUB. INT. L. 41, 44 (2004).  
 
39 Id.  
 
40 See Dalton, supra note 27, at 277. 
 
41 Garvin, supra note 16, at 187. 
 
42 Emmaline Campbell, Note, How Domestic Violence Batterers Use Custody Proceedings in Family 
Courts to Abuse Victims, and How Courts Can Put a Stop to It, 24 UCLA WOMEN’S L.J. 41, 46 (2017). 
 
43 Meier, Denial of Family Violence in Court, supra note 36, at 32 n.96; State Law Spreadsheet, supra 
note 36.  



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rights movement but nevertheless embraced by fathers’ rights groups.44 In 1985, the 
child psychiatrist Richard Gardner advanced the term “parental alienation 
syndrome” (PAS) to describe a phenomenon he allegedly observed in custody 
disputes involving children rejecting their noncustodial parent (generally the father) 
solely due to the hostile custodial parent (generally the mother) brainwashing the 
children to falsely believe they had been sexually abused by the noncustodial 
parent.45 According to Dr. Gardner, PAS only arises in the context of child custody 
disputes and its diagnosis rests upon eight “symptoms” that manifest in the child and 
preferred parent.46 These symptoms include the child’s campaign of denigration 
against the parent, weak or frivolous rationalizations for the denigration of the parent, 
and reflexive support for the alienating parent.47 Deeply concerning about PAS is 
that when “[r]eflecting on these eight steps with a gender perspective, . . . [c]ontrary 
to [what] PAS advocates argue, these eight steps may be characteristics of the 
behavior of a person who has been abused or experienced domestic violence.”48 

  

 
44 Dorchen Leidholdt & Lynn Beller, Domestic Violence and the Law: A New York State-Centric 
Overview and Update, N.Y. STATE BAR ASS’N J., May 2017, at 18; Dore, supra note 38, at 51–52 
(“Parental Alienation Syndrome contains three features of a friendly parent analysis. First, the alleged 
disorder is caused by one parent’s ‘indoctrination’ of the child against the other parent. As with 
a friendly parent analysis, one parent fails to support the child’s relationship with the other parent. 
Second, the outcomes can be the same. Where there is a problem with visitation, a solution is to transfer 
custody to the other parent. Third and perhaps most importantly, Parental Alienation Syndrome, like 
the friendly parent concept, presents a paradox. Richard Ducote states: ‘One irony of . . . “PAS” is that 
the increased existence of valid evidence of true sexual abuse leads Gardner and his devotees to more 
fervently diagnose “PAS.” Thus, “PAS” is the criminal defense attorney’s dream, since the greater the 
proof of the crime, the greater the proof of the defense.’”); Adams, supra note 25, at 323–24. 
 
45 Rita Berg, Parental Alienation Analysis, Domestic Violence, and Gender Bias in Minnesota Courts, 
29 LAW & INEQ. 5, 5 (2011); Allison M. Nichols, Note, Toward A Child-Centered Approach to 
Evaluating Claims of Alienation in High-Conflict Custody Disputes, 112 MICH. L. REV. 663, 664 
(2014); Connors, supra note 19, at 11. 
 
46 Kelly Schwartz, The Kids Are Not All Right: Using the Best Interest Standard to Prevent Parental 
Alienation and a Therapeutic Intervention Approach to Provide Relief, 56 B.C. L. REV. 803, 806 (2015). 
 
47 Id. at 806; Nichols, supra note 45, at 664.  
 
48 Maria Sol Bravo, PAS Application Despite of its Rejection Three Axes that Serve as the Basis for its 
Permanence 4 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3546223 
[https://perma.cc/38EN-3EQE].  



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Upon diagnosing a child with PAS, Dr. Gardner classified the syndrome in the 
child, as well as the “alienating” parent, into the mild, moderate, or severe category.49 
He recommended that when the “alienating” parent is in the “severe” category, 
custody should be changed to the other parent.50 The impetus for the newly emerged 
syndrome, according to Dr. Gardner, was the replacement of the tender years 
presumption with the “best interests of the child” analysis, combined with the state 
trend towards joint custody provisions.51 In response, Dr. Gardner asserted, mothers 
who were no longer “guaranteed” sole custody sought to maintain leverage in 
custody proceedings by indoctrinating their children with the false belief that their 
father had sexually abused them.52  

 
Therefore, although Dr. Gardner formulated PAS as facially gender neutral, he 

claimed mothers were the instigators of alienation in ninety percent of PAS cases.53 
Further revealing the gendered bases of PAS, Gardner wrote that a child sexual abuse 
allegation “is probably one of the most powerful vengeance maneuvers ever utilized 
by a woman whose husband has left her.”54 Despite Dr. Gardner’s later alterations to 
the disorder to reflect a more gender neutral view of the alienator, many of the 

 
49 Holly Smith, Note, Parental Alienation Syndrome: Fact or Fiction? The Problem with Its Use in 
Child Custody Cases, 11 U. MASS. L. REV. 64, 72 (2016). See also Dore, supra note 38, at 50–51.  
 
50 Dore, supra note 38, at 51. See Johnston, supra note 8, at 759 (“In severe cases of PAS, he 
recommends changing custody (i.e., placing the child with the ‘hated’ parent) as well as other punitive 
measures that have resulted, for instance, in the child's detention in juvenile hall, and/or the jailing and 
fining of the offending parent.”).  
 
51 Smith, supra note 49, at 68; Adams, supra note 25, at 325–26. 
 
52 Smith, supra note 49, at 68; Adams, supra note 25, at 325–26. 
 
53 Rita Smith & Pamela Coukos, Fairness and Accuracy in Evaluations of Domestic Violence and Child 
Abuse in Custody Determinations, 36 JUDGES J. 38, 41 (1997). 
 
54 Nichols, supra note 45, at 667. See Margo Lindauer, Damned If You Do, Damned If You Don’t: Why 
Multi-Court-Involved Battered Mothers Just Can’t Win, 20 AM. U. J. GENDER SOC. POL’Y & L. 797, 
808–09 (2012) (describing Gardner’s explanation of PAS as “a syndrome ‘whereby vengeful mothers’ 
use child abuse allegations to punish their ex-partners and in turn ensure that their exes do not receive 
custody”); Joan S. Meier, Parental Alienation Syndrome and Parental Alienation: A Research Review, 
NAT’L ONLINE RES. CTR. ON VIOLENCE AGAINST WOMEN 3 (2013), 
https://vawnet.org/sites/default/files/materials/files/2016-09/AR_PASUpdate.pdf 
[https://perma.cc/JLV6-2E3M] (describing Gardner’s assertion that women lie about child sexual abuse 
in custody cases because “hell hath no fury like a woman scorned”). 
 



70                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

theory’s supporters continue to cast the mother as the alienator.55 Although the 
introduction of PAS was not the first time a child’s rejection of a parent had been 
“tied to a pathological alignment between an angry parent and the child,”56 and 
despite its questionable validity,57 PAS has taken root in both family law and public 
discourse. As noted by law professor Carol Bruch, since Gardner’s invention of the 
term “PAS,” it has permeated the public sphere: “The media, parents, therapists, 
lawyers, mediators, and judges now often refer to PAS, many apparently assuming 
that it is a scientifically established and useful mental health diagnosis.”58 
 

2. Admissibility and the DSM-5 
 

As this Note will demonstrate, PAS should not be admissible in court because it 
lacks both scientific validity and general acceptance in the scientific community. 
Nevertheless, the reality is that the syndrome and its variations, discussed infra 
Section II.B, still frequently enter and play a prominent role in family court 
proceedings. 

 
While legal and mental health professionals acknowledge that some parents 

might attempt to alienate their children from the other parent, they generally do not 
recognize the specific construct of “parental alienation syndrome,” deeming it 
scientifically invalid.59 In child custody cases, state law oversees the admissibility of 
expert testimony, with most states having adopted the Daubert test, the Frye test, or 
a mix of both.60 While the Daubert regime examines a broader set of factors aimed 

 
55 Smith, supra note 49, at 77. 
 
56 See Joan S. Meier, A Historical Perspective on Parental Alienation Syndrome and Parental 
Alienation, 6 J. CHILD CUSTODY 232, 235 (2009) [hereinafter Meier, A Historical Perspective] (noting 
that divorce researchers Judith Wallerstein and Joan Kelly first identified an “‘unhealthy’ alignment” 
between an angry parent and an older child or adolescent, but this theory did not pervade family court 
culture at that time). See also Johnston, supra note 8, at 758–59; Barbara Jo Fidler & Nicholas 
Bala, Children Resisting Postseparation Contact with a Parent: Concepts, Controversies, and 
Conundrums, 48 FAM. CT. REV. 10, 12 (2010). 
 
57 Smith, supra note 49, at 69 (noting that Gardner’s development of PAS was based only on his personal 
observations from his psychiatric private practice). See also Lindauer, supra note 54, at 809. 
 
58 Adams, supra note 25, at 326. 
 
59 See Daniel G. Saunders & Kathleen Coulborn Faller, The Need to Carefully Screen for Family 
Violence When Parental Alienation Is Claimed, 46 MICH. FAM. L.J. 7, 7 (2016). 
 
60 Nichols, supra note 45, at 666; Smith, supra note 49, at 78. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     71 

 

 

at assessing the validity of the scientific testimony, the admissibility standard under 
the traditional Frye test asks whether the basis of the expert’s opinion is “generally 
accepted” in the relevant scientific community.61 PAS remains inadmissible 
regardless of which of these standards a state employs.62  

 
First, PAS is inadmissible under the Daubert standard because it fails to meet the 

requirements for validity on several grounds, including that: Gardner based his 
theory solely on personal observations of his own patients without any statistical 
analysis, the majority of his work was self-published or published in journals that 
lack peer-review, and finally, his findings have never been replicated.63 Second, PAS 
also fails to meet the Frye standard.64 In the 2000 case of People v. Fortin,65 a New 
York county court assessed the admissibility of PAS testimony under Frye for the 
first time.66 Although Dr. Gardner himself testified at the trial, the court found PAS 

 
61 See Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharm., Inc., 
509 U.S. 579, 580 (1993). See also Frye Standard, CORNELL LAW SCH. LEGAL INFO. INST., 
https://www.law.cornell.edu/wex/frye_standard [https://perma.cc/LHM9-J2YH]; Daubert Standard, 
CORNELL LAW SCH. LEGAL INFO. INST., https://www.law.cornell.edu/wex/Daubert 
[https://perma.cc/3GQY-D2XL] (“Under the Daubert standard, the factors that may be considered in 
determining whether the methodology is valid are: (1) whether the theory or technique in question can 
be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known 
or potential error rate; (4) the existence and maintenance of standards controlling its operation; and 
(5) whether it has attracted widespread acceptance within a relevant scientific community.”). 
 
62 Rana Fuller, How to Effectively Advocate for Battered Women When Systems Fail, 33 WM. MITCHELL 
L. REV. 939, 958 (2007); Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation 
Syndrome: Science, Law, and Policy, 26 CHILD. LEGAL RTS. J. 1, 1–2 (2006) (noting that “science, law, 
and policy all support PAS’s present and future inadmissibility”). 
 
63 See Smith, supra note 49, at 80–81 (explaining why two recent studies conducted in an attempt to 
validate the existence of PAS fail to satisfy the Daubert factor requiring support of empirical research 
to test the theory). See also Scott & Emery, supra note 28, at 98; Smith & Coukos, supra note 53, at 41; 
Nichols, supra note 45, at 674–76. 
 
64 Fuller, supra note 62, at 960. 
 
65 People v. Fortin is also significant as one of only two decisions to set precedent on the issue of PAS’s 
evidentiary admissibility, the other being the 1997 case of People v. Loomis. See Hoult, supra note 62, 
at 3–4. Both cases held PAS to be inadmissible, originated in New York State criminal court, and 
concerned the defense seeking to introduce PAS testimony in contexts where a man was accused of 
sexually abusing children. People v. Fortin, 706 N.Y.S.2d 611, 614 (N.Y. Co. Ct. 2000), aff’d, 735 
N.Y.S.2d 819 (N.Y. App. Div. 2d Dept. 2001); People v. Loomis, 658 N.Y.S.2d 787, 787–88 (N.Y. Co. 
Ct. 1997).  
 
66 People v. Fortin, 706 N.Y.S.2d 611, 614 (N.Y. Co. Ct. 2000). See Smith, supra note 49, at 79.  



72                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

to be inadmissible because the defendant had not demonstrated that the relevant 
professional community generally accepted PAS.67 Given that PAS fails to satisfy 
either the Daubert or Frye standards, it is unsurprising that every court that has 
actually ruled on the admissibility of PAS found it inadmissible because it is 
scientifically invalid.68  

 
Furthermore, the medical community generally does not recognize PAS as a 

valid disorder. Tellingly, the American Medical Association, the American 
Psychological Association, and the American Psychiatric Association (APA) all do 
not accept PAS, and the Diagnostic and Statistical Manual of Mental Disorders 
(DSM) excluded PAS from its most recent publication.69 The DSM, or the “bible of 
psychiatry”70 as it is known to some, functions as the authoritative guide to 
psychiatric diagnoses for mental health professionals in the United States and around 
the world.71 In the DSM-5, the most recent version of the guide, the APA refused to 
include PAS as a disorder.72 This rejection was significant because at the time of the 
previous version’s publication in 1994, PAS was a nascent theory lacking sufficient 

 
67 Schwartz, supra note 46, at 810. See also Smith, supra note 49, at 79–80 (noting that while testifying, 
“Dr. Gardner revealed that all but one of the forty three books he had written on parental alienation had 
been published through his own corporation.”).  
 
68 Brief for Domestic Violence Legal Empowerment and Appeals Project et al. as Amici Curiae 
Supporting Plaintiff-Appellant, at 6, Anonymous v. Anonymous & Anonymous (N.Y. 2019) 
[https://perma.cc/QKT7-Q3RJ] [hereinafter DV LEAP brief]. The Amicus Brief provides a list of 
published and unpublished decisions holding PAS to be inadmissible. See also, e.g., Snyder v. Cedar, 
No. NNHCV010454296, 2006 WL 539130, at *7–8 (Conn. Super. Ct. Feb. 16, 2006) (“The court finds 
that ‘parental alienation syndrome’ has no scientific validity at this time.”); NK v. MK, 851 N.Y.S.2d 
71 (N.Y. Sup. Ct. 2007) (“This court does not believe that there is a generally accepted diagnostic 
determination or syndrome known as ‘parental alienation syndrome.’”). Id. at 64. 
 
69 Smith, supra note 49, at 75-76; Hoult, supra note 62, at 5–6. 
 
70 Nichols, supra note 45, at 672. 
 
71 See DSM-5: Frequently Asked Questions, AM. PSYCHIATRIC ASS’N, 
https://www.psychiatry.org/psychiatrists/practice/dsm/feedback-and-questions/frequently-asked-
questions [https://perma.cc/ZVM3-ZQ86]. The APA explains the process that led to revision of the 
DSM, including the Task Force and Work Groups involved, and how decisions regarding changes were 
made. See also Smith, supra note 49, at 75. 
 
72 Smith, supra note 49, at 76–77 (explaining that although Dr. Gardner passed away in 2003, a group 
of mental health professionals submitted two proposals to the DSM-5 Task Force of the APA for the 
inclusion of PAS in the DSM-5; however, in a December 1, 2012 news release, the APA explicitly 
listed PAS as a disorder excluded from the DSM-5).  



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     73 

 

 

research to support its inclusion.73 Therefore, the exclusion of PAS from the 
subsequent version of the DSM released nearly twenty years later, despite a strong 
lobbying campaign for its inclusion, is a clear sign that PAS lacks general acceptance 
within the psychiatric community.74 

 
Affirming the inadmissibility of PAS, the National Council of Juvenile and 

Family Court Judges (NCJFCJ) explicitly stated in 2006 that PAS is “discredited” 
and any testimony pertaining to PAS should “be ruled inadmissible and/or stricken 
from the evaluations report[.]”75 Nevertheless, in the absence of objections or 
motions to exclude the testimony, some courts that follow the Frye or Daubert tests 
for the admissibility of scientific evidence have admitted evidence of PAS.76 
Furthermore, even when expert evidence about the syndrome is not admitted, 
allegations of PAS can gain enormous traction and greatly influence a custody 
decision.77 Therefore, PAS, and the concepts underlying it, remain a relevant concern 
in child custody proceedings in family courts 

 

 
73 Smith, supra note 49, at 96; Nichols, supra note 45, at 672–73. 
 
74 Myrna S. Raeder, Preserving Family Ties for Domestic Violence Survivors and Their Children by 
Invoking a Human Rights Approach to Avoid the Criminalization of Mothers Based on the Acts and 
Accusations of Their Batterers, 17 J. GENDER RACE & JUST. 105, 121 (2014); Smith, supra note 49, at 
96; Nichols, supra note 45, at 673; Barry Goldstein, Why the Official Rejection of PAS Matters, NAT’L 
ORG. FOR MEN AGAINST SEXISM (NOMAS) (Nov. 12, 2015), https://nomas.org/official-rejection-pas-
matters/ [https://perma.cc/GUJ2-GL37] (“Now that all this time has passed, and the proponents have 
had the opportunity to make whatever case they have, the rejection of PAS by the official professional 
organization that oversees mental health issues should be devastating to any attempt to continue relying 
on PAS.”). 
 
75 Fuller, supra note 62, at 957. 
 
76 Schwartz, supra note 46, at 809–10; Nichols, supra note 45, at 679. For a list of cases in which courts 
have questioned the admissibility of PAS or allowed its application while avoiding the admissibility 
question, see Meier, A Historical Perspective, supra note 56, at 240. 
 
77 See e.g., Meier, A Historical Perspective, supra note 56, at 240 (describing Licata v. Licata, 2003, 
where the evaluator found PAS because the mother opposed joint custody, was once overheard saying 
she did not want to attend the child’s event if the father would be present, and alleged domestic 
violence). See also, Wolf v. New Jersey, No. CV 17-2072, 2018 WL 1942522 (D.N.J. Apr. 23, 2018) 
(giving custody to a father who alleged PAS). 



74                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

B. Parental Alienation (PA)  
 

Although PAS has since been reformulated to sound more gender-neutral, courts 
and advocates continue to apply these reformulations in harmful ways during 
custody proceedings that involve domestic violence allegations.78 

 
Some researchers, courts, and custody evaluators, motivated in part to avoid the 

controversy and rulings of inadmissibility surrounding PAS, have adopted other 
terminology, including “Parental Alienation” (PA), the “alienated child,” “Parental 
Alienation Disorder” (PAD), or “parental gatekeeper” to describe the same 
phenomenon.79 Although PA does not have a “universal clinical or scientific 
definition,” it generally describes the notion “that a child’s fear or rejection of one 
parent (typically the non-custodial parent), stems from the malevolent influence of 
the preferred (typically custodial) parent.”80 PA proponents do not limit the theory’s 
focus to instances of false sexual abuse allegations, but rather apply it to a broader 
category of children who “resist or refuse to have contact with a parent.”81 
Researchers leading the charge to, at least theoretically, differentiate PA from PAS 
have done so in a number of ways,82 including the following: acknowledging that 
there are usually a variety of reasons for why a child may reject a parent, not solely 

 
78 See Meier & Dickson, supra note 7, at 316.  
 
79 Meier, A Historical Perspective, supra note 56, at 245 (noting Joan B. Kelly and Janet R. Johnston, 
as well as Leslie M. Drozd and Nancy Olesen, as leading researchers spearheading this trend); Nichols, 
supra note 45, at 668 (noting some of the theory’s supporters have shifted to using the term “Parental 
Alienation Disorder” (PAD), which includes a diagnostic criteria virtually identical to those outlined in 
Gardner’s PAS framework); Peter G. Jaffe, Dan Ashbourne, & Alfred A. Mamo, Early Identification 
and Prevention of Parent-Child Alienation: A Framework for Balancing Risks and Benefits of 
Intervention, 48 FAM. CT. REV. 136, 137 (2010) (“the concept of alienation has a rich history with 
varying redefinitions—from ‘pathological alignment’ (Wallerstein & Kelly, 1980) to PAS (Gardner, 
1992) to the ‘alienated child’ (Kelly & Johnston, 2001)”); Meier, Denial of Family Violence in Court, 
supra note 36, at 58 (“New terminology, such as ‘visitation refusal/resistance’ is sometimes used to 
indicate greater neutrality as to cause; though other new terms, such as ‘gatekeeping,’ continue to hold 
the custodial parent responsible for undermining the other parent’s relationship with a child.”).  
 
80 DV LEAP Brief, supra note 68, at 2–3.  
 
81 Johnston & Sullivan, supra note 18, at 275. 
 
82 DV LEAP Brief, supra note 68, at 6.  
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     75 

 

 

the influence of the favored parent as PAS posits;83 eliminating Gardner’s harsh 
remedy of changing custody to the rejected parent and instead calling for 
“individualized assessments of both the children and the parents’ parenting”;84 and 
describing PA as focusing on the acts of the alienating parent in contrast to PAS’s 
focus on the acts of the child that contribute to the denigration of the rejected parent.85  

 
Despite these attempts at establishing genuine conceptual differences between 

PA and PAS, many experts use the two terms synonymously.86 The theoretical 
underpinnings of PAS still largely influence PA, and clear-cut differences between 
the two often remain tenuous.87 The slight difference in names also has little effect, 
for as Professor Joan Meier explains, “the reality is that whatever some researchers 
may say about the differences between PAS and PA, in practice, PA is rarely 
understood to be different. Indeed, some proponents of alienation theory simply cite 
to both PAS and PA without distinction.”88  

 
 

83 Meier, U.S. Child Custody Outcomes, supra note 9, at 93; Lindauer, supra note 54, at 809; Silberg & 
Dallam, supra note 6, at 144 (noting that Leslie M. Drozd, Nancy Olesen, and Michael Saini propose a 
multi-hypotheses approach “to consider all potential factors implicating a child’s relationship with a 
rejected parent to avoid the simplified attribution of blame advocated by Gardner.”). See also 
Demosthenes Lorandos, Parental Alienation in U.S. Courts, 1985 to 2018, 58 FAM. CT. REV. 322, 324 
(2020).  
 
84 Meier, A Historical Perspective, supra note 56, at 246. See also Joan B. Kelly & Janet R. Johnston, 
The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39 FAM. CT. REV. 249, 251, 
254, 264 (2001).  
 
85 McGlynn, supra note 17, at 533; Fidler & Bala, supra note 56, at 12. Fidler and Bala note that 
researchers Amy Baker and Douglas Darnall likewise emphasis PA as focusing on the alienating 
parent’s behaviors in contrast to PAS and Gardner’s focus on the child’s reaction. 
 
86 Nichols, supra note 45, at 668.  
 
87 Lindauer, supra note 54, at 809. See also Meier, U.S. Child Custody Outcomes, supra note 9, at 93 
(“Despite the more refined discussions of parent rejection in some literature, however, these nuances 
rarely, if ever, appear in practice. When children reject contact, the concept of alienation is still regularly 
used to focus blame on the preferred parent, as did Gardner and PAS. Other causes of a child’s rejection 
of a parent, including direct abuse, witnessing their mother’s abuse, or other forms of bad parenting . . 
. are routinely ignored.”). 
 
88 Meier, A Historical Perspective, supra note 56, at 247. See also Silberg & Dallam, supra note 6, at 
144 (“For example, Bernet (2008) suggests that parental alienation is a ‘relational disorder’ rather than 
a syndrome; yet, it uses almost identical criteria as Gardner’s original conceptualization. Many newer 
formulations of parental alienation also rely on Gardner’s simplistic view of the preferred parent being 
primarily to blame. . . .”).  



76                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

The use of the term PA has also been one way for experts to overcome the 
inadmissibility of PAS, as some courts have permitted evidence of PA that strongly 
mirrors PAS so long as it is not framed clinically as a “syndrome.”89 While some 
courts have deemed PAS inadmissible, it appears neither family courts nor appellate 
courts have ruled on the admissibility of PA “despite multiple attempts by capable 
lawyers.”90 The difficulty in challenging courts’ allowance of PA to deny abuse 
claims is twofold: first, family courts generally accept looser evidentiary standards; 
and second, family courts tend to treat PA as a fact-based and gender-neutral 
theory.91 Regardless of whether it is truly distinct from PAS, it is clear PA holds great 
weight among family court personnel. Psychologist Richard A. Warshak notes that 
since the late 1990s, “the number of trial and appellate cases in which court-
appointed evaluators testified on parental alienation or in which courts determined 
that parental alienation was material, probative, and relevant to the case has grown 
considerably.”92  

 
Describing the parent-child relationship using these diagnostic and evaluative 

labels, whether it be PAS, PA, or PAD, as a replacement for observable behaviors 
and evidence in child custody cases has created what some researchers call “an 
ideology that replaces science.”93 This problem is especially acute in the context of 
custody cases involving a history of domestic violence, leading the NCJFCJ to advise 

 
89 Stephen J. Yanni, Note, Experts as Final Arbiters: State Law and Problematic Expert Testimony on 
Domestic Violence in Child Custody Cases, 116 COLUM. L. REV. 533, 563 (2016); Nichols, supra note 
45, at 680. 
 
90 Meier, Denial of Family Violence in Court, supra note 36, at 65; Meier & Dickson, supra note 7, at 
319. 
 
91 Meier & Dickson, supra note 7, at 319. 
 
92 Richard A. Warshak, When Evaluators Get It Wrong: False Positive IDs and Parental Alienation, 26 
PSYCHOL. PUB. POL’Y & L. 54, 54–55 (2020). See also Meier & Dickson, supra note 7, at 317. See, e.g., 
DV LEAP brief, supra note 68, at 1 (noting Amici’s support of a petition for review of an earlier 
decision to award full legal and primary physical custody of the parties’ child to the father both because 
of concern for the parties’ son and because the case is emblematic of how the theory of parental 
alienation (“PA” or “alienation theory”) is used in family courts in New York and nationwide); In re 
Marriage of J.H. & Y.A., No. A120227, 2009 WL 2106145, at *1 (Cal. Ct. App. July 17, 2009) (granting 
sole custody to father who alleged alienation against mother); Martin v. Martin, 952 N.W.2d 
530, appeal denied, 949 N.W.2d 716 (2020) (granting sole custody to father in custody case where 
mother alleged domestic violence and father alleged parental alienation). 
 
93 Madelyn S. Milchman et al., Ideology and Rhetoric Replace Science and Reason in Some Parental 
Alienation Literature and Advocacy: A Critique, 58 FAM. CT. REV. 340, 340 (2020). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     77 

 

 

in a bench book that in such cases, “a careful fact-based inquiry, unlike applying the 
PAS label, is likely to yield testimony that is more accurate and relevant.”94 The 
NCJFCJ further notes that “it is often legitimate for the partner of an abusive parent 
to try to protect the children from exposure to abuse, or to try to secure his or her 
own safety from the abusive partner by limiting that partner’s contact with the 
children[,]” and as such the application of PAS/PA in domestic violence cases is 
wholly inappropriate.95 
 

C. Incompatibility Between Domestic Violence and PAS/PA, 
“Friendly Parent,” and Joint Custody 

 
Regardless of any potential merits of joint custody, “friendly parent,” and 

“alienation” discourse more generally, it becomes clear that all of these concepts are 
inherently problematic in the context of custody disputes involving domestic 
violence or child abuse.96 In the context of child custody disputes, fathers have often 
invoked PAS/PA as a defense to allegations of domestic violence and child sex 
abuse.97 As courts in the 1980s started to ascribe more weight to family violence as 
a factor in custody cases, fathers’ rights activists responded by elevating parental 
alienation.98 According to fathers’ rights groups, mothers routinely falsely allege 

 
94 Smith, supra note 49, at 83. 
 
95 Campbell, supra note 42, at 45. 
 
96 Although the focus of this Note is spouse or partner domestic violence, and PA has moved away from 
Gardner’s original focus on accusations of child sexual abuse, it is important to note there is a strong 
correlation between allegations of adult domestic violence and child abuse. See Jennifer Jack, Child 
Custody and Domestic Violence Allegations: New York’s Approach to Custody Proceedings Involving 
Intimate Partner Abuse, 5 ALB. GOV’T L. REV. 885, 896 (2012) (“[T]he majority of studies done 
regarding the connection between domestic violence and child abuse indicate that when domestic 
violence is present, child abuse is also likely to be present.”); Linda Quigley, The Intersection Between 
Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of 
Battered Mothers and Their Children, 13 WM & MARY J. WOMEN & L. 867, 869 (2007) (“[I]n a national 
survey of over 6,000 families, the researchers found that 50% of the men who frequently assaulted their 
wives also frequently abused their children.”); Stark et al., supra note 8, at 35 (“[T]here is a strong co-
occurrence of child abuse/neglect and domestic violence; it has been found that among approximately 
30 percent to 60 percent of families where domestic violence or child maltreatment has been identified, 
there is a significant likelihood that both forms of abuse occur.”). 
 
97 Johnston, supra note 8, at 760. 
 
98 Scott & Emery, supra note 28, at 88.  



78                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

domestic violence or child abuse,99 and it is false allegations and parental alienation 
that are the real danger. 100 However, studies indicate that in reality a relatively small 
percentage of mothers falsely allege domestic violence in custody cases where such 
allegations are made.101 Consequently, “application of the syndrome essentially 
reversed the allegations of abuse, implying that the abuse was, in effect, perpetrated 
by the custodial parent whose allegations alienated the child from the non-custodial 
parent.”102 It is for this reason that Paul J. Fink, then-president of the Leadership 
Council on Child Abuse and Interpersonal Violence, asserted that “PAS is partly if 
not wholly responsible for the many family court decisions in which battered mothers 
lose custody to abusive men.”103  

 
Nevertheless, fathers’ rights groups’ efforts to promote PAS/PA have been 

bolstered by their fusing of parental alienation with custody law’s clear preference 
for sustained child contact with both parents following a divorce, often advanced 
through “friendly parent” provisions.104 Yet the framework of “friendly parent,” like 
PAS/PA, operates in direct contravention of the dynamics of domestic violence. 
Through the lens of “friendly parent,” an abusive father who promotes shared 
parenting, thereby creating an avenue for continued contact and means of abusing 

 
99 Stark et al., supra note 8, at 55.  
 
100 Kelly Alison Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights 
Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 WM. & 
MARY J. WOMEN & L. 525, 532 (2015) (“FRGs train custody decision-makers to screen for PAS and 
mitigate its effects on children by modifying custody, and they attempt to reframe the issue of IPV by 
creating a presumption that mothers alleging IPV are lying and that their false allegations are evidence 
of PAS, an act of child abuse that should result in a change in custody in favor of the father.”). Id. at 
539. 
 
101 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, 114 (2012), 
https://www.ojp.gov/pdffiles1/nij/grants/238891.pdf [https://perma.cc/3ZZW-FBJR] (noting on 
average professionals as a whole estimated that thirty-five percent of fathers and eighteen percent of 
mothers make false allegations of domestic violence in custody cases involving domestic violence 
allegations). Saunders recommends that future research investigate and substantiate the actual rates of 
false allegations in domestic violence cases and expresses concern that custody evaluators and private 
attorneys estimate higher rates of false allegations than other professional sub-groups. 
 
102 Adams, supra note 25, at 316. 
 
103 Raeder, supra note 74, at 121.  
 
104 Scott & Emery, supra note 28, at 88–89.  



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     79 

 

 

his former partner, may be exalted as “friendly.”105 Meanwhile, a mother who 
legitimately seeks to shield herself and her child from her abusive partner is deemed 
uncooperative and “unfriendly,” harming her custody prospects.106 For these same 
reasons, according to psychologist Peter Jaffe, while shared parenting may be an 
ideal in cases where the parents voluntarily choose it, in cases involving domestic 
violence, a legal presumption of shared parenting will be harmful for the victimized 
adult and children.107  

 
As debates over the faults and merits of these various custody schemes wage on, 

rhetoric from alienation discourse continues to influence family court proceedings. 
Domestic violence organizations such as the Domestic Violence Legal 
Empowerment and Appeals Project (DV LEAP) report being “flooded with pleas for 
help from battered women litigating custody, reporting that court-appointed custody 
evaluators and judges do not credit their claims of abuse and instead seek to 
maximize fathers’ access to children.”108 Furthermore, this dynamic unfolds 
regardless of whether the term alienation or PAS is used.109 As mentioned previously, 
there “appears to be a trend toward reversal of custody from protective mothers to 
allegedly abusive fathers, which has been estimated to occur in up to 58,000 cases 
per year.”110 The urgency of the need to address the use of PAS/PA as a tool for 
obscuring genuine claims of domestic violence and abuse is highlighted by the 
theory’s penetration of family courts not only throughout the United States but across 
the world.111 

 
105 Dalton, supra note 27, at 277. 
 
106 Dalton, supra note 27, at 277; Daniel G. Saunders, State Laws Related to Family Judges’ and 
Custody Evaluators’ Recommendations in Cases of Intimate Partner Violence: Final Summary 
Overview, NAT’L INST. OF JUST. 2–3 (Dec. 30, 2016) [hereinafter Saunders, NIJ Study 2016].  
 
107 Peter Jaffe, A Presumption Against Shared Parenting for Family Court Litigants, 52 FAM. CT. REV. 
187, 188 (2014) (drawing upon Jaffe’s work with domestic violence victims, perpetrators, and children 
for over forty years in both family and criminal courts).  
 
108 Meier & Dickson, supra note 7, at 313.  
 
109 Meier, U.S. Child Custody Outcomes, supra note 9, at 93. 
 
110 Meier & Dickson, supra note 7, at 313. 
 
111 Jacqueline Campbell, Children Resisting Contact with a Parent Due to Abuse, Alienation, or Other 
Causes: Can a Proactive Role for Lawyers Contribute to Better Outcomes?, 58 FAM. CT. REV. 456, 459 
(2020) (noting how over 300 family law academics, family violence experts, and child development 
and child abuse experts and organizations from thirty-five countries endorsed a Collaborative Memo of 



80                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

III. Empirical Proof of Gender Bias and Legislative Reform Efforts  
 

Parts I and II of this Note established how the interrelated factors of joint 
custody, “friendly parent,” PAS, and PA work against mothers in custody cases 
involving domestic violence. Section III.A reviews the empirical literature 
establishing the gender-biased manner in which cross-allegations of domestic 
violence and parental alienation play out in family courts. Section III.B then reviews 
previous and current legislative efforts to better account for the harm of domestic 
violence in custody proceedings, and evaluates the strengths and weaknesses of the 
legislation.  
 

A. Parental Alienation and Gender Bias (Empirical Studies) 
 

Although domestic violence survivor advocates have long recognized the 
gender-biased manner in which courts treat competing claims of domestic violence 
and parental alienation, it is only recently that this bias was established empirically 
on a nationwide scale. In January 2020, Professor Joan Meier published the outcomes 
of an empirical study spanning ten years of U.S. cases involving abuse and alienation 
claims.112 This study confirms the results of several previous, smaller scale studies 
that had revealed gender bias in family courts’ handling of custody cases involving 
allegations of parental alienation, each of which will be discussed in turn. 

 
First, a 2011 study of eighteen custody cases involving parental alienation 

allegations in Minnesota courts led the author to conclude that these courts appeared 
to “exhibit anti-mother gender bias.”113 In each case, fathers used PAS to gain 
favorable custody judgments “while mothers ha[d] consistently been cast as 
alienating parents and deprived of custody of their children.”114 

 
Second, Meier and her co-author Sean Dickson published an initial empirical 

pilot study in 2017 examining 238 custody cases involving allegations of domestic 

 
Concern submitted to the World Health Organization on July 10, 2019, expressing concern that the 
parental alienation designation “is frequently employed to divert attention from domestic violence 
and abuse and other evidence relevant to the best interests of the child”). 
 
112 Meier, U.S. Child Custody Outcomes, supra note 9, at 92. 
 
113 See Berg, supra note 45, at 6.  
 
114 Id. 



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violence and/or child abuse and alienation.115 The results showed both that fathers 
were more likely to bring alienation claims than mothers and that fathers had 
significantly higher win rates than mothers who did so.116 Furthermore, a father’s 
likelihood of success was actually higher in a case where he was accused of abuse 
and cross-claimed against the mother for alienation than in a case without abuse 
claims.117 Further illustrating gender bias in the custody decisions, in cases where the 
court credited mothers’ allegations of abuse but also found the mother to be 
alienating, “credited alienation trumped abuse.”118  

 
Third, building on the aforementioned empirical endeavors, a study published in 

2019 examined twenty-seven custody cases across the United States.119 The study 
specifically focused on “turned around” cases in which a court initially refused to 
believe allegations of abuse against one parent and ordered the child into the custody 
of the abusive parent, and a second court then validated the abuse and reversed the 
custody decision.120 According to the study, in the initial decision, the court granted 
fifty-nine percent of perpetrators sole custody, with the remaining getting joint 
custody or unsupervised visitation.121 Explaining this phenomenon, the authors 
highlight the initial judges’ high levels of reliance on the reports of custody 
evaluators and guardians ad litem, the majority of whom discredited the abuse 
allegations by pathologizing the mothers advocating for the safety of their children 
as alienating parents.122  

 
115 Meier & Dickson, supra note 7, at 321. 
 
116 Id. at 323–24. 
 
117 See id. at 323–24, 328. 
 
118 See id. at 328–29 (“[W]hen the court believed the abuse and the father’s claim of alienation, the 
alienation trumped.”). 
 
119 Silberg & Dallam, supra note 6, at 140. 
 
120 In the study, all the protective parents were female and the abusers were male, with sixty percent of 
mothers reporting having experienced domestic violence and seventy-eight percent of children having 
disclosed more than one type of abuse. Children remained in the court ordered custody of an abusive 
parent for an average of 3.2 years. See id. at 148. 
 
121 See id. at 140, 150.  
 
122 In seventy-eight percent of cases, a primary reason the judge gave custody to the perpetrator was 
that the mother either was not viewed as credible or she was alleged to have some form of pathology 
that called her credibility into question. Id. at 150. Two-thirds of mothers were pathologized for 



82                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Finally, in January 2020, Meier published the first set of outcomes from her 
national empirical study spanning ten years of U.S. cases (4,388 custody cases) 
involving abuse (both partner violence and child abuse) and alienation claims.123 In 
assessing the impact of parental alienation allegations in child custody cases, the 
study concluded that courts were eight percent less likely to credit mothers’ domestic 
partner violence allegations when fathers cross-claimed alienation, a gap that 
increases to twenty-four percent when the domestic violence allegations are mixed 
with allegations of child abuse.124 According to Meier, “[t]he fact that the same 
dynamic does not appear when the genders are reversed, i.e., fathers do not see a 
statistically significant reduction in the crediting of their abuse claims when mothers 
cross-claim alienation, supports the complaint that alienation in abuse cases is indeed 
deeply gendered and, it appears, weaponized to deny mothers’ abuse claims against 
fathers.”125 

 
The study’s results also reveal an alarming relationship between alienation 

claims and the rate of mothers’ custody losses. While mothers lost custody in 
fourteen percent of cases in which the courts credited the allegations of domestic 
violence against the father and there was no cross-alienation claim, this figure 
increased to thirty-five percent for cases in which the mother alleged domestic 
violence and the father cross-claimed alienation.126 Albeit based on a small sample 
size, the court switched custody to the father in twenty-nine percent of cases in which 
the court credited both the alienation and domestic violence claims.127 Finally, when 

 
advocating for the safety of their children, with both custody evaluators and GALs tending to view 
mothers as fabricating the child abuse or incidents of violence in order to gain a tactical advantage. 
Accusations of PAS or PA by the evaluator compounded pathological labels. Factors working against 
the protective mother and in favor of the abuser included the evaluators’ bias against mothers reporting 
abuse and their lack of education in domestic violence and child abuse, as well as statutory legal 
presumptions in favor of joint custody and “friendly parent” provisions. Id. at 151–52, 157. 
 
123 Meier, U.S. Child Custody Outcomes, supra note 9, at 94. It should be noted that while the focus of 
this Note is on domestic violence and Meier’s study includes domestic violence as a variable, her study 
primarily focuses on the penalty associated with child abuse allegations, particularly child sexual abuse.  
 
124 Id. at 96–97 (noting courts credited mothers claims of domestic violence forty-five percent of the 
time without PA, but only thirty-seven percent of the time when fathers’ claimed alienation, with similar 
results holding for other categories of abuse). 
 
125 Id. at 100–01.  
 
126 Id. at 96, 98.  
 
127 Id. at 99. 



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mothers alleged domestic violence and the court credited fathers’ alienation claims, 
mothers lost custody sixty percent of the time.128 As a result, courts create the 
perverse incentive for mothers to not disclose information about a father’s abusive 
behavior or else face a substantial risk of losing custody.129  

 
Meier’s national study reveals a gender bias that diminishes the importance of 

domestic violence and elevates parental alienation claims by fathers. The 
significance of her findings is compounded by multiple international studies 
published in 2020 that highlight the same gendered dynamic in family courts around 
the world.130 For example, research in England and Wales,131 as well as Canada,132 

 
128 Id.  
 
129 For example, this bind was felt by Hera McLeod, a mother whose fifteen-month-old son was killed 
by her abusive ex-boyfriend on a court-ordered visit. See Samantha Schmidt, ‘A Gendered Trap’: When 
Mothers Allege Child Abuse by Fathers, the Mothers Often Lose Custody, Study Shows, WASH. POST 
(July 29, 2019), https://www.washingtonpost.com/local/social-issues/a-gendered-trap-when-mothers-
allege-child-abuse-by-fathers-the-mothers-often-lose-custody-study-shows/2019/07/28/8f811220-
af1d-11e9-bc5c-e73b603e7f38_story.html [https://perma.cc/L4NR-5JGD] (“‘I was terrified for my 
son, but I had to be careful about what I said in court . . . if I acted in any way like I didn’t want my son 
to have access [to his father],’ McLeod said.”). See also Joyce, supra note 7 (citing Margaret Basset, 
the previous deputy director of the University of Texas at Austin Institute on Domestic Violence & 
Sexual Assault, who describes the resulting fateful choice: “If I’m going to court and alleging that my 
partner is abusive, I’m probably going to lose custody of the children. Do I go to court and risk that, or 
do I play the game the way it’s set up?”). 
 
130 Meier, Denial of Family Violence in Court, supra note 36, at 68 (“Concern about parental alienation 
being used to deny mothers’ and children’s abuse allegations has reached international critical mass 
with the 2020 publication of a European journal’s Special Issue covering 8 different countries . . . .”). 
 
131 Adrienne Barnett, A Genealogy of Hostility: Parental Alienation in England and Wales, 42 J. SOC. 
WELFARE & FAM. L. 18, 18 (2020) (examining how parental alienation progressed in the context of 
private family law from 2000 to the end of March 2019 in England and Wales, “[t]he case law revealed 
a high incidence of domestic abuse perpetrated by parents (principally fathers) who were claiming that 
the resident parents (principally mothers) had alienated the children against them, which raises 
questions about the purpose of PA”). 
 
132 Elizabeth Sheehy & Susan B. Boyd, Penalizing Women’s Fear: Intimate Partner Violence and 
Parental Alienation in Canadian Child Custody Cases, 42 J. SOC. WELFARE & FAM. L. 80, 82, 88 (2020) 
(examining reported Canadian cases involving claims of PA and family violence from 2014–2018 
covering all Canadian territories and provinces except for Quebec. The authors found mothers were 
more than twice as likely to be accused of PA than fathers, and women declared alienators were more 
likely to suffer negative changes to their custody than alienator fathers. As for the ninety cases where 
both PA and intimate partner violence (IPV) were alleged, Sheehy and Boyd report that the allegation 
of IPV was discounted in thirty-one percent of cases, neutralized in twenty-three percent of cases, and 
deemed irrelevant to children’s best interests in forty percent of cases. These results led Sheehy and 



84                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

has revealed a similarly gender-biased treatment of cases involving claims of 
parental alienation and domestic violence. Indeed, a pattern has been documented 
across seven Commonwealth and European countries whereby family courts rely on 
parental alienation allegations to refute abuse allegations from mothers and children 
and to justify removal of the mother’s custody.133  

 
With national and international empirical data now supporting what advocates 

have witnessed for years, namely that allegations of parental alienation are obscuring 
domestic violence allegations in the courtroom, it is time for legislatures to fully 
tackle this issue. 

 
B. Domestic Violence: Legislative Approaches  

 
Sections III.B.1 and III.B.2 review the two primary avenues through which 

domestic violence legislation has traditionally been approached, namely 
presumption statutes and factor statutes. Section III.B.3. then looks at current efforts 
to reform child custody legislation, specifically examining a national bill and 
legislation in two states. The strengths and shortcomings of these bills will be 
addressed and used to inform the legislative proposals presented in Part IV.  

 
1. Avenue One: Rebuttable Presumption Bills 

 
For decades, domestic violence survivor advocates have pushed for states to 

enact custody laws that appropriately account for the harm perpetrated by domestic 
violence and protect abused spouses and children. Some progress was achieved in 
1990 when Congress unanimously passed H.R. Congressional Resolution 172, a 
concurrent resolution denouncing abuse and imploring states to adopt statutes 
establishing a rebuttable presumption in domestic violence custody cases (domestic 
violence presumption).134 Many states heeded the call of this federal resolution and 

 
Boyd to claim that “[j]udges are more likely to focus on alienating behaviours than IPV when 
determining custody and access”).  
 
133 Meier, Denial of Family Violence in Court, supra note 36, at 11 n.24 (“[P]apers from Italy, Spain, 
UK, Canada, U.S., Australia, New Zealand and Wales detail consistent family court problems for 
abused women and harmful impact of parental alienation claims.”). 
 
134 Smith & Coukos, supra note 53, at 40; Yanni, supra note 89, at 534; Nancy K. D. Lemon, Statutes 
Creating Rebuttable Presumptions Against Custody to Batterers: How Effective Are They?, 28 WM. 
MITCHELL L. REV. 601, 606 (2001) [hereinafter Lemon, Statutes Creating Rebuttable Presumptions]; 
H.R.J. Res. 172, 101st Cong. (1994) (sponsored by Rep. Constance Morella and passed unanimously 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     85 

 

 

adopted a rebuttable presumption against granting custody to parents found to have 
perpetrated domestic violence.135 Other states adopted a model that designates 
domestic violence as a factor for judges to consider in custody proceedings.136  

 
Currently, approximately half of the states have statutes that create a rebuttable 

presumption against courts awarding sole or joint legal or physical custody to a 
parent who has engaged in domestic or family violence, as defined in each state’s 
specific statute.137 Domestic violence presumptions “shape the best-interests inquiry 
by prioritizing [evidence of] domestic violence over other relevant factors.”138 The 
presumption effectuates a burden-shift so that once the court finds that a parent 
committed domestic violence, the burden then falls on that parent to show that it is 
nevertheless in the child’s best interests that the parent be awarded custody rights.139  

 
States have not applied presumption statutes uniformly, with variations 

depending on: “1) how domestic violence is defined; 2) the severity and or frequency 
of the abuse necessary to trigger the presumption; 3) the evidentiary standard . . . 
required to trigger the presumption; and 4) the type of custody (sole or joint) to which 
the presumption applies.”140 For instance, some states will exercise the presumption 
upon finding a single occurrence of domestic violence, other states require proof of 
a history or pattern of abuse, while others invoke the presumption upon a showing 
of either a history of abuse or a single “serious” incident of abuse.141 Due to such 

 
on Oct. 25, 1990) (“It is the sense of Congress that, for purposes of determining child custody, credible 
evidence of physical abuse of a spouse should create a statutory presumption that it is detrimental to 
the child to be placed in the custody of the abusive spouse.”).  
 
135 Bajackson, supra note 16, at 332.  
 
136 Id.  
 
137 See Stark et. al., supra note 8, at 78–80. See also Yanni, supra note 89, at 542 (“Recognizing the 
dangers domestic violence poses to children, twenty-four states and the District of Columbia have 
implemented some form of rebuttable presumption against awarding custody to a party found to have 
perpetrated domestic violence[.]”); State Law Spreadsheet, supra note 36. 
 
138 Yanni, supra note 89, at 543.  
 
139 Id. 
 
140 Bajackson, supra note 16, at 333.  
 
141 Yanni, supra note 89, at 545, 559. For an example of a state in which there is a steep hurdle to 
trigger the domestic violence presumption, see Jack, supra note 96, at 909–10. In North Dakota, the 



86                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

variation among the states, such legislation does not guarantee that serious 
deliberation about the violence will occur in any given custody case.142 

 
2. Avenue Two: Factor Bills 

 
According to an American Bar Association 50 State Review, nearly every state’s 

custody laws now include domestic violence as a factor in their “best interests of the 
child” analysis.143 The strength of a factor statute may vary according to whether the 
statute mandates, encourages, or simply permits the judge to consider domestic 
violence in the custody decision.144 Eight states have statutes that give domestic 
violence special weight as a factor.145 Overall, the significant judicial discretion the 
factor test affords courts evaluating domestic violence in the custody decision has 
led domestic violence survivor advocates to often view it as a less potent 
protection.146 Nevertheless, even in states with domestic violence presumption 
statutes, advocates press for legislatures to adopt domestic violence as a statutory 
factor so that if the court finds the presumption inapplicable or rebutted, the “issue 
of domestic violence does not disappear from the custody decision.”147  

 

 
domestic violence presumption only takes effect if “there is credible evidence that the batterer caused 
‘serious bodily injury,’ used a dangerous weapon, or committed recent acts that rise to the level of a 
pattern of violence.” As Jack notes, although the law does not mandate a conviction of domestic 
violence, the specificity of the factors poses serious difficulties in the applicability of the law for 
victims. Furthermore, the law focuses on the extent of harm done to the domestic violence victim, 
rather than the actions of the intimate partner abuser, which are what put a child at risk. Id. at 10. N.D. 
CENT. CODE ANN. § 14-09-06.2(j) (West 2020). 
 
142 See Bajackson, supra note 16, at 333–34.  
 
143 Stark et al., supra note 8, at 78, 86–89. To see how Stark et al. details more fully the range in how 
rebuttable presumption provisions are treated in different states, see id. at 83-86. See also State Law 
Spreadsheet, supra note 36. 
  
144 Garvin, supra note 16, at 173–74; Lemon, Statutes Creating Rebuttable Presumptions, supra note 
134, at 605. 
 
145 Saunders, NIJ Study 2016, supra note 106, at 3.  
 
146 Bajackson, supra note 16, at 334.  
 
147 Lemon, Statutes Creating Rebuttable Presumptions, supra note 134, at 619. 



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3. Current Legislative Reform Efforts 
 

Presumption and factor bills have constituted the primary approaches to 
addressing domestic violence in custody legislation for the past few decades. 
However, recent tragedies involving children murdered by an abusive parent during 
a court-ordered visit have served as an impetus for Congress as well as the Maryland 
and Pennsylvania legislatures to renew their focus on reforming child custody 
statutes. This section will review the strengths, weaknesses, and gaps in these pieces 
of legislation in order to inform the legislative proposals put forth in Part IV. 

 
a. National Action: House Concurrent Resolution 72 

 
On a national level, the House passed a concurrent resolution on September 25, 

2018, aimed at providing more specific guidance to family courts addressing 
domestic violence and child abuse in custody cases.148 Along with more than fifty 
domestic violence survivor advocacy organizations, one of the primary advocates for 
the resolution was Jacqueline Franchetti, whose twenty-eight-month-old daughter 
Kyra Franchetti was killed by her father in a murder-suicide during a court-
sanctioned unsupervised visit in July 2016.149 Although Franchetti had warned the 
New York court that her ex-husband was emotionally abusive, dangerous, suicidal, 
and had been stalking her, “it was almost as though [she] was being viewed as 
difficult, not him.”150 The resolution, House Concurrent Resolution 72 (H. Con. Res. 
72), urges states to ensure that child safety is the first priority in family courts; that 
courts resolve domestic violence and child abuse allegations before addressing other 
best interest factors; and that courts rely only on admissible evidence and testimony 

 
148 Shira Schoenberg, Congress: State Courts Should Consider Domestic Violence in Custody Cases, 
MASSLIVE (Jan. 29, 2019), 
https://www.masslive.com/politics/2018/09/congress_state_courts_should_c.html 
[https://perma.cc/ST2M-KCBU]; H.R. Con. Res. 72, 115th Cong. (2017).  
 
149 About, KYRA FRANCHETTI FOUNDATION, https://kyrafranchetti.org/about/ [https://perma.cc/M2CZ-
HPAF]. 
 
150 This reaction by the New York court is in line with how a “friendly parent” factor interacts poorly 
with abuse claims. See Schoenberg, supra note 148; Kyra’s Story, KYRA FRANCHETTI FOUNDATION, 
https://kyrafranchetti.org/kyras-story/ [https://perma.cc/Q9QV-JN8Q]; Dennis Slattery, Long Island 
Mother Who Lost Daughter Lobbying for Court Reforms to Protect Kids from Abusive Parents, N.Y. 
DAILY NEWS (Oct. 24, 2019, 4:00 AM), https://www.nydailynews.com/news/politics/ny-long-island-
mother-franchetti-court-reform-custody-divorce-20191024-tjn2vsnqxvg5tjmv4btocv7mrm-story.html 
[https://perma.cc/7S9P-KMHV]. 



88                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

from qualified experts with expertise in the relevant types of abuse at issue.151 
Although a concurrent resolution is not binding law, it is nevertheless influential as 
it “expresses the opinion of the House of Representatives and the Senate about an 
important topic.”152  

 
Despite lacking the stature of federal law, the development of the resolution was 

not without controversy. Specifically, contention over the legitimacy of PAS arose 
over a line in a draft of the resolution presented to the House in the summer of 2017 
that referred to “scientifically unsound theories such as parental alienation 
syndrome.”153 Several members of the organization Parental Alienation Study Group 
(PASG) decided to fight the inclusion of this language in H. Con. Res. 72, and the 
group met with the original sponsor of the resolution, Representative Patrick 
Meehan, to recommend that the reference to “parental alienation syndrome” be 
eliminated.154 Ultimately, the House adopted H. Con. Res. 72 without specifying 
PAS.155 

 
Regardless, the resolution marked a milestone for advocates of abused mothers 

and children. Commenting on the passage of the bill, Professor Joan Meier, one of 
the resolution’s champions, stated: “It’s incredibly significant because it’s the first 
time the federal government has ever spoken explicitly, in an official capacity, about 
problems in family courts . . . Congress is extending itself to say we’re very 
concerned, children are dying.”156 Meier added that although state control of family 

 
151 H.R. Con. Res. 72.  
 
152 William Bernet, Parental Alienation and Misinformation Proliferation, 58 FAM. CT. REV. 293, 300 
(2020). 
 
153 Id.  
 
154 See id. (“Initially, the resolution was referred to the House Judiciary Committee for consideration, 
so several members of PASG sent personalized letters and packets of information to all members of the 
committee.”).  
 
155 Id. (commenting on these efforts, William Bernet wrote, “However, it is clear that detractors of PA 
are highly organized and were hoping for the U.S. Congress to endorse their way of thinking. If 
Congress enacted the resolution as originally proposed, attorneys and expert witnesses (i.e., PA 
detractors) would cite the Congressional resolution to argue that testimony regarding PA should be 
rejected and ignored. Also, PA detractors would likely use the flawed Congressional resolution as a 
rallying cry for state legislatures to enact laws consistent with the notion that PA theory is ‘scientifically 
unsound.’”).  
 
156 Schoenberg, supra note 148. 



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courts means that it will ultimately be up to individual state family courts to decide 
whether to adopt the recommendations in H. Con. Res. 72, “[t]he national picture is 
important to get states to take it seriously.”157  
 

b. State Action: Maryland Workgroup and Proposed 
Legislative Reform 

 
Indeed, the U.S. House of Representatives’ unanimous adoption of H. Con. Res. 

72 calls on states to improve family court practices to better protect children.158 
Maryland—which had recently seen four children murdered after unprotective 
family court orders—responded to this call by establishing a workgroup tasked with 
1) assessing how state courts process allegations of domestic violence and child 
abuse, and 2) analyzing scientific research concerning child-experienced trauma.159 
The workgroup, composed of Maryland lawmakers and experts, met fourteen times 
between June 2019 and July 2020, ultimately providing twenty-four 
recommendations to the state legislature in December 2020.160 Notably, the final 
report of recommendations explicitly states that Maryland formed the workgroup in 
response to H. Con. Res. 72.161 Also significant is the workgroup’s discussion of and 

 
157 Id.  
 
158 DV LEAP brief, supra note 68, at 22. 
 
159 William J. Ford, Maryland Lawmakers Briefed on Child Custody Report, WASH. INFORMER (Dec. 9, 
2020), https://www.washingtoninformer.com/maryland-lawmakers-briefed-on-child-custody-report/ 
[https://perma.cc/S9Z9-HM6W] (commenting on the group’s efforts, its chairman, Secretary of State 
John C. Wobensmith, noted, “You have placed Maryland on the forefront in dealing with this issue, 
which is a horrific problem across the nation . . . Attorneys, advocates and protected parents across the 
United States have been following the work group activity and are looking forward to our next steps.”); 
Governor Larry Hogan Establishes New Workgroup to Study Child Court Proceedings Involving Child 
Abuse or Domestic Violence Allegations, THE OFFICE OF GOVERNOR LARRY HOGAN, 
https://governor.maryland.gov/2019/06/26/governor-larry-hogan-establishes-new-workgroup-to-
study-child-custody-court-proceedings-involving-child-abuse-or-domestic-violence-allegations/ 
[https://perma.cc/5SA5-6FQW] (noting that the workgroup included several Maryland legislators, 
parents impacted by current family court practices, as well as domestic violence, child abuse, and 
recognized custody experts and organizations); Communication from Joan Meier, Dir., Nat’l Fam. 
Violence L. Ctr., George Washington Univ. L. Sch., to Nina Jaffe-Geffner, J.D. 2022, Columbia L. Sch. 
(Nov. 10, 2021) (on file with author).  
 
160 Ford, supra note 159. 
 
161 JENNIFER K. BOTTS, ET AL., WORKGROUP TO STUDY CHILD CUSTODY COURT PROCEEDINGS INVOLVING 
CHILD ABUSE OR DOMESTIC VIOLENCE ALLEGATIONS, FINAL REPORT (2020) [hereinafter Maryland WG 
Final Report], 



90                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

citation to Meier’s research and nationwide study highlighting “how parental 
alienation became ‘regularly’ used to discount mothers’ allegations of adult or child 
abuse.”162 The Maryland workgroup’s report is an example of how H. Con. Res. 72, 
coupled with Meier’s empirical research, has the potential to spark actual change in 
state-level child custody policy. 

 
While it remains to be seen whether any of the workgroup’s twenty-four 

recommendations will ultimately make it into legislation, several of the group’s most 
significant recommendations were presented during the 2021 Maryland legislative 
session. One such piece of legislation, S.B. 675, sought to adopt the workgroup’s 
recommended mandate that all judges, children’s lawyers, and custody evaluators 
participating in custody cases involving domestic violence or child abuse receive an 
initial training of at least sixty hours,163 followed by ten additional hours every two 
years, on topics pertaining to the dynamics and effects of domestic violence and 
abuse.164 S.B. 675 included the invalidity of PAS and the inappropriateness of the 

 
http://dls.maryland.gov/pubs/prod/NoPblTabMtg/CmsnChdAbuseDomViol/FinalReport_Workgroup_
to_Study_Child_Custody_Court_Proceedings_Involving_Child_Abuse_or_Domestic_Violence.pdf 
[https://perma.cc/RBN4-4FPV]; see also WORKGROUP ON CHILD CUSTODY COURT PROCEEDINGS 
INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE ALLEGATIONS, 
https://sos.maryland.gov/Pages/Governor-Custody-Workgroup.aspx [https://perma.cc/CCR8-EAU6].  
 
162 Ford, supra note 159; Maryland WG Final Report, supra note 161, at 9–15.  
 
163 Maryland Child Custody Committee Recommends Specialized Judges for Custody Cases Involving 
Child Abuse or Domestic Violence, CHILD WELFARE MONITOR (Oct. 14, 2020) [hereinafter CWM 
Specialized Judges], https://childwelfaremonitor.org/2020/10/14/maryland-child-custody-committee-
recommends-specialized-judges-for-custody-cases-involving-child-abuse-or-domestic-violence/ 
[https://perma.cc/5ZLU-FWYJ] (“The workgroup recommended that the judiciary, in consultation with 
domestic violence and [child] advocacy organizations, develop an ongoing training program for judges 
who preside over custody cases that involve child abuse or domestic violence.”). 
 
164 Although on March 24, 2021, S.B. 675 failed to make it out of the Maryland Senate Judicial 
Proceedings Committee, analysis of the bill remains relevant as it represents one of the most recent and 
ambitious state attempts at legislative child custody reform. See Open States (Mar. 24, 2021) 
https://openstates.org/md/bills/2021/SB675/ [https://perma.cc/C33W-3GFD]; S.B. 675, 432d Gen. 
Assemb., Reg. Sess. (Md. 2021) [hereinafter Maryland S.B. 675] 
http://mgaleg.maryland.gov/2021RS/bills/sb/sb0675f.pdf [https://perma.cc/8TDK-QEM6]; Child 
Custody – Cases Involving Child Abuse or Domestic Violence – Training for Judges and Child’s 
Counsel, MD. GEN. ASSEMB., https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/SB0675 
[https://perma.cc/HRK6-5PXU] [hereinafter Maryland S.B. 675 tracking]; Maryland WG Final Report, 
supra note 161, at xii.  



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     91 

 

 

use of PA in child custody cases in its list of training topics.165 This type of 
comprehensive training likely would educate relevant court personnel on the 
dynamics and harm of domestic violence as well as PAS/PA specifically, and 
therefore would likely reduce gender bias in custody cases involving domestic 
violence allegations and alienation theories.  

 
Yet while S.B. 675 would have made domestic violence and child abuse training 

mandatory, it did not go so far as to prohibit custody evaluators from presenting final 
custody recommendations to the court.166 The workgroup seemed to believe that 
mandatory training would sufficiently protect against faulty, and possibly dangerous, 
custody recommendations by evaluators as it posited that “fully-trained and 
specialized judges will be less likely to accept evaluations that are inadequate or 
performed by unqualified people.”167 However, as discussed infra Section IV.B.3, 
current psychological testing procedures do not actually enable custody evaluators 
to develop better-informed final custody recommendations. This shortcoming cannot 
be overcome with additional training and therefore will be addressed in the proposed 
legislation in Part IV. 

 
Two additional legislative proposals presented during the 2021 Maryland session 

that incorporated the workgroup’s recommendations merit attention. First, S.B. 775 
established a rebuttable presumption that it is not in a child’s best interests for a court 
to grant custody to a party who has committed abuse against certain individuals.168 
Second, S.B. 57 addressed the role of “friendly parent,” stating that “[i]f a case 
involves domestic violence or child abuse, the court shall exclude any factors . . . 

 
165 S.B. 675, 432d Gen. Assemb., Reg. Sess. (Md. 2021), at 3; Maryland S.B. 675 tracking, supra note 
164. 
 
166 Samantha J. Subin, Lawmakers, Experts Weigh Changes to Maryland’s Child Custody Court 
Process, MD. DAILY REC. (Aug. 26, 2020), https://sos.maryland.gov/Documents/Lawmakers-experts-
weigh-changes-to-Maryland-child%20custody-court-process.pdf [https://perma.cc/QH4S-64XV] (“‘If 
the custody evaluator is asked to make a final recommendation to the court, then that custody evaluator 
has to have the proper training to weigh in,’ said Dr. Jennifer Shaw, a founding partner of Gil Institute 
for Trauma Recovery and Education and a member of the work group.”). 
 
167 CWM Specialized Judges, supra note 163. 
 
168 S. 775, 432d Gen. Assemb., Reg. Sess. (Md. 2021) (withdrawn by sponsor) 
http://mgaleg.maryland.gov/2021RS/bills/sb/sb0775f.pdf [https://perma.cc/9Y9G-Y3D] [hereinafter 
Maryland S.B. 775]; Family Law – Child Custody and Visitation – Abuse, MD. GEN. ASSEMB., 
http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/SB0775?ys=2021RS 
[https://perma.cc/A3SZ-VRS9] [hereinafter Maryland S.B. 775 tracking]. 



92                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

that relate to the willingness of a party to facilitate contact with the child or the other 
party.”169 As discussed further infra Section IV.A.1, domestic violence presumption 
statutes like S.B. 775 have proven ineffective in states that also have “friendly 
parent” provisions. As such, the explicit exemption to “friendly parent” included in 
S.B. 57 is integral to effective child custody reform legislation.  

 
c. State Action: Pennsylvania Senate Bill 78 

 
Pennsylvania has also recently introduced legislation aimed at reforming child 

custody laws. Senate Bill 78, also known as Kayden’s Law, was unanimously voted 
out of the Senate Judiciary Committee in January 2021 and passed the state Senate 
in a 46-4 vote in June 2021.170 The bill is named after seven-year-old Kayden 
Mancuso, whose biological father bludgeoned her to death and then killed himself 
during a court-ordered unsupervised overnight visit, following a contentious 

 
169 S. 57, 442d Gen. Assemb., Reg. Sess., 4 (Md. 2021), 
https://legiscan.com/MD/text/SB57/id/2226246/Maryland-2021-SB57-Introduced.pdf 
[https://perma.cc/F2HU-WLQ8] [hereinafter, Maryland S.B. 57]; Family Law – Child Custody and 
Visitation, MD. GEN. ASSEMB., 
http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/SB0057?ys=2021RS 
[https://perma.cc/9YJD-R2SK] [hereinafter S.B. 57 tracking]; Maryland WG Final Report, supra note 
161, at 23.  
 
170 See S.B. 78 Gen. Assemb., Reg. Sess. (Pa. 2021) 
https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2021&
sessInd=0&billBody=S&billTyp=B&billNbr=0078&pn=0930 [https://perma.cc/QN6G-3XA7]; Jo 
Ciavaglia, Pennsylvania Senate Committee Approves Child Custody Bill Honoring Kayden Mancuso 
for Second Time, BUCKS CTY. COURIER TIMES (Jan. 26, 2021), 
https://www.buckscountycouriertimes.com/story/news/2021/01/26/pennsylvania-senate-child-
custody-family-court-kayden-mancuso-bucks-county/6679032002/ [https://perma.cc/58DX-A63M]; 
Chris Ullery, PA Senate Passes Kayden’s Law, Mandating Judges Put Child Safety First in Custody 
Judgments, BUCKS CTY. COURIER TIMES (June 25, 2021), 
https://www.buckscountycouriertimes.com/story/news/2021/06/24/kaydens-law-pennsylvania-state-
senate-passes-child-custody-reform-bill/7780153002/ [https://perma.cc/2B6F-PPD7].  



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     93 

 

 

yearlong custody battle.171 The father had a documented history of violent and erratic 
behavior.172  

 
S.B. 78’s provisions are far-reaching. They include a rebuttable presumption that 

upon finding by a preponderance of the evidence that a parent has abused the child 
or any household member, the court shall limit that parent to supervised visitation; 
an expansion of the types of criminal convictions a court must consider when hearing 
a custody dispute; and encouragement of further judicial training programs focusing 
on domestic violence and child abuse.173 S.B. 78 also states that a parent’s reasonable 
concern for a child’s health and welfare and subsequent efforts to protect the child 
shall not be considered attempts to turn the child against the other party—a likely 
reference to alienation theory.174 S.B. 78’s combination of provisions elevating the 
role of domestic violence and child abuse in the court’s custody determination while 
minimizing the fault that can be attributed to protective parents when a child is 
resistant to contact with the other parent presents arguable benefits to PA/PAS 
custody cases. However, S.B. 78 has also been the subject of significant criticism.  

 
The ACLU of Pennsylvania formally objects to S.B. 78, in particular 

condemning the statute’s presumption that a parent with any history of abuse, no 
matter how old, only be allowed supervised visitation.175 This expansive 

 
171 Ciavaglia, supra note 170; Kayden’s Law Clears Pennsylvania Senate Judiciary Committee, 
WELLSBORO GAZETTE (Jan. 26, 2021), https://www.tiogapublishing.com/news/state/kayden-s-law-
clears-pennsylvania-senate-judiciary-committee/article_8557972f-aff0-54d9-a550-
d70c9be794e6.html [https://perma.cc/KN9K-774P]; Julie Shaw, Vinny Vella, & Meghan Bobrowsky, 
Months Before Kayden Mancuso’s Death, Mom Reported Girl ‘Didn’t Feel Safe’ with Her Father,THE 
PHILA. INQUIRER (Aug. 7, 2018), https://www.inquirer.com/philly/news/crime/kayden-mancuso-jeff-
mancuso-murder-suicide-manayunk-girl-murder-suicide-langhorne-20180807.html 
[https://perma.cc/QM39-X9E4].  
 
172 Ciavaglia, supra note 170.  
 
173 See S.B. 78 Gen. Assemb., Reg. Sess. (Pa. 2021), at 1, 5–6, 11–12, 15–16; Ciavaglia, supra note 
170. 
 
174 See S.B. 78 Gen. Assemb., Reg. Sess. (Pa. 2021), at 9. 
 
175 See SB 78 Child Custody Proceedings (Kayden’s Law), ACLU-PA Position: Opposes, ACLU OF 
PA., https://www.aclupa.org/en/legislation/sb-78-child-custody-proceedings-kaydens-law 
[https://perma.cc/SMN8-CJQT] [hereinafter ACLU SB 78]; Memorandum from Elizabeth Randol, 
Legislative Dir., ACLU of Pennsylvania, to the Pa. Sen. on Opposition to SB 78 P.N. 73 (BAKER) 
(Feb. 22, 2021), https://www.aclupa.org/sites/default/files/field_documents/aclu-



94                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

presumption removes the requirement that a threat be ongoing, while simultaneously 
adding “simple assault” to the crimes list.176 While the ACLU acknowledges that the 
presumption is rebuttable, it emphasizes “the practical reality that many working 
class litigants will not be able to afford the extensive and costly litigation that will 
be needed to rebut the presumption, and that unrepresented pro se litigants lack the 
knowledge or skill to rebut legal presumptions.”177 Consequently, the ACLU argues 
that this combination of provisions will actually harm women, who are not 
uncommonly charged with simple assault in the context of self-defense in an abusive 
relationship.178 Further, the ACLU asserts that the proposed bill will 
disproportionately harm the children of Black and Brown women.179 In its 
Opposition Memorandum, the ACLU of Pennsylvania explains why S.B. 78 will 
have a racially and economically disproportionate adverse impact:  

 
It is critical to understand that mothers are the people most likely to 
be accused of and found responsible for child abuse and SB 78’s 
expanded provisions will likely lead to custodial mothers losing the 
right to custody and contact with their children because they are 
deemed “abusers.” Given the reality of the intense surveillance and 
punishment that poor, disproportionately Black and brown mothers 
experience via mandated reporting and the child abuse registry, 
there is a significant likelihood that SB 78 will trigger traumatic 
suspensions of contact between mothers and their children, with 
nearly impossible barriers to reestablish contact, [in part] because 
the presumption of supervised visitation has no expiration date. . .180 

 
pa_opposition_to_sb_78_pn_65_senate_2021-02-22.pdf [https://perma.cc/J2CG-WWCV] [hereinafter 
ACLU SB 78 Opposition Memo]. 
 
176 ACLU SB 78, supra note 175, at 4, 11; ACLU SB 78 Opposition Memo, supra note 175, at 1. 
 
177 Memorandum from Frank P. Cervone, Exec. Dir., Support Ctr. for Child Advocs., Kathleen 
Creamer, Managing Att’y, Fam. Advoc. Unit Cmty. Legal Servs., Terry Fromson, Managing Att’y, 
Women’s L. Project, & Elizabeth Randol, Legis. Dir., ACLU of Pennsylvania, to the Pennsylvania Gen. 
Assembly (June 21, 2021), 
https://www.aclupa.org/sites/default/files/field_documents/opposition_to_sb_78_a00994_2021-06-
21.pdf [https://perma.cc/WQ7Z-AHL3]. 
 
178 ACLU SB 78 Opposition Memo, supra note 175, at 1. 
 
179 Id. 
 
180 ACLU SB 78 Opposition Memo, supra note 175, at 1–2. For a full account of the ways in which the 
child welfare system discriminates against and punishes battered Black mothers, see Beth A. 



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As the ACLU of Pennsylvania’s critique makes clear, advocates seeking to create 
legislation that will truly protect domestic violence survivors must also adopt a social 
and racial lens.  
 

The reform efforts in Maryland and Pennsylvania exemplify some of the most 
recent attempts to modify state child custody laws to better protect children and adult 
victims of violence.181 It is clear they are part of an active discussion regarding the 
merits and drawbacks of various measures. This debate is ongoing, and additional 
states may soon endeavor to reform their own laws. Therefore, it is worthwhile for 
this Note to present four legislative proposals that it argues will combat gender bias 
in domestic violence-parental alienation custody cases.  

 
IV. Policy Proposals  

 
A. Proposals for Legislation: Examining New York State 

 
Building on the momentum of Congress and the Maryland and Pennsylvania 

state legislatures, this Note will provide recommendations for states yet to engage in 
such efforts. The proposals in Section IV.B specifically target the New York 
landscape but may be applicable to other states. There are several reasons why this 
Note focuses on New York for its legislative proposals.  

 

 
Mandel, The White Fist of the Child Welfare System: Racism, Patriarchy, and the Presumptive Removal 
of Children from Victims of Domestic Violence in Nicholson v. Williams, 73 U. CIN. L. REV. 1131, 1160 
(2005) (“The failure to consider the implications of race in ACS’s practice of punishing battered women 
and removing their children is akin to the general whitewashing of the domestic violence movement—
both operate to eclipse the unique experiences of women of color and to promote interventions that 
often further the oppression of battered Black women.”). See also Dorothy E. Roberts, Child Welfare 
and Civil Rights, 2003 U. ILL. L. REV. 171, 172 (2003). 
 
181 This Note analyzes the legislation proposed in Maryland and Pennsylvania as illustrative of state 
efforts, at the time of writing, to significantly reform child custody legislation. However, the state 
movement for legislative change in the child custody realm continues to evolve. For instance, in June 
2021, Colorado adopted HB21-1228, which mandates and funds domestic violence training for court 
personnel regularly involved in cases related to domestic matters. HB21-1228 requires such personnel 
to receive a total of twelve initial hours of training, as well as four hours of subsequent training every 
two years, on the topics of domestic violence (including coercive control), child abuse, and child sexual 
abuse and their traumatic effects on children, adults, and families. See Domestic Violence Training 
Court Personnel, H.R. 21-1228, 73d Gen. Assemb., 2021 Reg. Sess. (Co. 2021), 
https://leg.colorado.gov/bills/hb21-1228 [https://perma.cc/UTW6-GMPJ]. 



96                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

First, following the success of H. Con. Res. 72, Jacqueline Franchetti has turned 
her focus to legislation in New York State.182 Several New York Assembly members 
have introduced pieces of legislation that would address Franchetti’s concerns.183 
Franchetti’s advocacy website for Kyra expresses the hope that changes to the laws 
in New York, where the family courts failed Kyra, can become model legislation for 
the forty-nine other states and even other countries.184 It is evident that there is 

 
182 Marco Schaden, Franchetti Testifies for Family Court Reform, MANHASSET PRESS (Nov. 15, 2019), 
https://manhassetpress.com/franchetti-testifies-for-family-court-reform/ [https://perma.cc/5EUX-
8MHD] (“‘I’m focusing in my efforts now in New York State and making changes in New York State,’ 
she said. ‘Congressional resolutions are a message to the state, things are wrong, so see what you can 
do to make amends or fix them. Federal courts and federal legislation does not have jurisdiction over 
state courts. That’s why I’ve been approaching and talking to New York state legislators about making 
changes happen here.’”). 
 
183 For instance, during the 2021–2022 legislative session, Assemblyman Jeffrey Dinowitz (D-Bronx) 
put forward a bill that would establish standardized credentials and training requirements, developed 
by the New York State Coalition Against Domestic Violence, for forensic evaluators. Assemb. 
A02375, 2021–2022 Assemb., Reg. Sess. (N.Y. 2021), 
https://assembly.state.ny.us/leg/?default_fld=&bn=A02375&term=2021&Summary=Y&Actions=Y&
Text=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=YA02375 [https://perma.cc/29E7-
DKCJ]; Chris Bragg, Assembly Bill Seeks Training of Key Family Court Officials, TIMES UNION (Apr. 
21, 2021), https://www.timesunion.com/news/article/Assembly-bill-bolsters-training-of-key-Family-
16118314.php [https://perma.cc/3PNP-EP4A]. This proposed legislation is bolstered by the creation 
of a Blue-Ribbon Commission on Forensic Custody Evaluations, of which Franchetti is a member, 
announced by former New York Governor Andrew Cuomo in the summer of 2021. OFF. OF CHILD. & 
FAM. SERVS., New York Announces Membership of Blue-Ribbon Commission on Forensic Custody 
Evaluations (June 11, 2021), https://ocfs.ny.gov/main/news/article.php?idx=2247 
[https://perma.cc/7NX7-GDWR]. In January 2022, the Blue-Ribbon Commission voted 11-9 in favor 
of eliminating the role of forensic evaluators in Family Court proceedings and issued a report 
presenting several recommendations for reform if forensic custody evaluators continue to be used in 
the New York State court system.  Chris Bragg, State Panel Recommends Reforms to Key Family 
Court Role, TIMES UNION (Jan. 12, 2022), https://www.timesunion.com/state/article/State-panel-
recommends-reforms-to-key-Family-16770208.php [https://perma.cc/7DRV-9WVZ]. Legislation 
backed by Assemblywoman Helene Weinstein (D-Brooklyn) and Sen. Alessandra Biaggi (D-Bronx) 
would grant litigating parents access to the evaluations. S.B. S753, 2021-2022 Leg. Sess. (N.Y. 2021); 
Dennis Slattery, It’s Personal: Heartbroken Mom Who Knows Pain of Losing Child Fights for Family 
Court Overhauls, N.Y. DAILY NEWS (Feb. 9, 2020), https://www.nydailynews.com/news/politics/ny-
franchetti-kyra-fight-for-family-court-overhauls-review-20200208-xfaxwgb5efgkxnv7vntcf5bsca-
story.html [https://perma.cc/RGQ2-SYRT]. 
 
184 Kyra’s Law, KYRA FRANCHETTI FOUND., https://kyrafranchetti.org/ [https://perma.cc/2HMY-W4E7] 
(2021). As of October 2021, Kyra’s Champions, the charity founded by Franchetti in honor of Kyra, 
details three legislative proposals pending in New York aimed at ensuring child safety in the family 
court systems including a comprehensive reform bill entitled “Kyra’s Law.” See About Us, KYRA’S 
CHAMPIONS, https://www.kyraschampions.org/mission [https://perma.cc/BT9R-SAU3]; Kyra’s Law, 
KYRA’S CHAMPIONS, https://www.kyraschampions.org/kyras-law [https://perma.cc/53FW-UMK4]; 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     97 

 

 

momentum in New York to create comprehensive custody reform legislation, and as 
such, it makes sense to discuss New York-oriented proposals.  

 
Second, New York’s historical treatment of domestic violence in custody cases 

makes it a representative case study. Although in some respects New York has been 
a leader of domestic violence survivor advocacy, many New York courts have been 
hesitant to fully acknowledge the potential for abusers to take advantage of custody 
and visitation proceedings to further their abuse.185 For this reason, in 1996, the New 
York statute was amended to mandate that trial courts consider proof of domestic 
violence in custody cases.186 The statute was amended once more in 2009, providing 
the additional requirement that courts memorialize in their custody decisions how 
evidence of domestic violence factored into those decisions.187 The second 
amendment “suggests that even after the enactment of the 1996 law, the courts did 
not give proper weight to issues of domestic violence in these custody cases.”188 
While domestic violence is a statutory factor189 in New York’s analysis for best 
interests of the child, it does not go so far as to create a presumption against awarding 
custody to parents who perpetuated domestic violence, as approximately half of the 
states have done.190 In order for the court to consider domestic violence along with 

 
Establishing Supervised Visits Guidelines (A. 3314 / S. 1584), KYRA’S CHAMPIONS, 
https://www.kyraschampions.org/supervised-visits [https://perma.cc/7QQU-KJRV]; Training for 
Forensic Child Custody Evaluators (A2375-B/S6385A), KYRA’S CHAMPIONS, 
https://www.kyraschampions.org/forensic-evaluators [https://perma.cc/96UK-429Y]. 
  
185 Leidholdt & Beller, supra note 44, at 18. Leidholdt and Beller indicate examples of leadership 
include the establishment of the New York State Governor’s Task Force on Domestic Violence in 1983, 
spurring the creation of the New York State Office for the Prevention of Domestic Violence (OPDV) 
in 1992, the founding of The New York City Mayor’s Office to Combat Domestic Violence in 2001, 
and the formation of the first specialized felony domestic court in Brooklyn in 1996, predecessor to the 
seventy-five domestic violence courts now existing across the state and presiding over more than 32,000 
cases each year. Id. at 15.  
 
186 Id. 
 
187 Id. 
 
188 Jack, supra note 94, at 890.  
 
189 Alayne Katz, Junk Science v. Novel Scientific Evidence: Parental Alienation Syndrome, Getting It 
Wrong in Custody Cases, 24 PACE L. REV. 239, 240 (2003). 
 
190 Jack, supra note 96, at 903; Stark et. al., supra note 8, at 78–80. 



98                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

other relevant best interests factors, the domestic violence first must be proven by a 
preponderance of the evidence.191 

 
Third, New York’s treatment of the “friendly parent” factor and parental 

alienation highlight a need for legislation in the state that will protect against gender 
bias in custody cases. In New York, a parent’s willingness to foster the relationship 
between the non-custodial parent and the subject child, also known as the “friendly 
parent” doctrine, is a component of the multi-factor best interest analysis.192 More 
notably, a parent’s unwillingness to do so, whether it be called “unfriendly parent” 
or parental alienation, has such prominence in New York family courts that the 
“appellate courts in the second, third, and fourth judicial departments have found that 
a parent’s interference with the other parent's relationship with the child is a per se 
finding that the alienating parent is unfit to act as the custodial parent.”193  

 
Fourth, New York is ripe for change because it was the home state of Dr. Gardner 

and his "parental alienation syndrome.”194 Furthermore, the prevalence of PAS/PA 
in New York courts is at odds with admissibility rulings in the state: it was in New 
York that the aforementioned People v. Fortin court ruled that PAS failed to meet 
the Frye standard.195 

 

 
191 Jack, supra note 96, at 887–88. 
 
192 Katz, supra note 189, at 240; Connors, supra note 19, at 12–13. 
 
193 Connors, supra note 19, at 13; Katz, supra note 189, at 240 (“Since Eschbach v. Eschbach, case law 
has elevated the interference factor to a fitness factor, finding that interference with the non-custodial 
parent and child's relationship is so inconsistent with the best interests of a child, that it raises a strong 
probability that the custodial parent is unfit.”). See Jordan E. Trager, Parental Alienation-A Broader 
Perspective, N.Y. L.J. (ONLINE) (Apr. 9, 2019), 
https://www.law.com/newyorklawjournal/2019/04/09/parental-alienation-a-broader-perspective/ 
[https://perma.cc/EH42-6ZTR] (“It has long been held in the New York courts: ‘Parental alienation of 
a child from the other parent is an act so inconsistent with the best interests of a child as to, per se, raise 
a strong probability that the offending party is unfit to act as custodial parent.’ Doroski v. Ashton, 99 
A.D.3d 902 (2d Dept. 2012); Bennett v. Schultz, 110 A.D.3d 792 (2d Dept. 2013); Avdic v. Avdic, 125 
A.D.3d 1534 (4th Dept. 2015); Halioris v. Halioris, 126 A.D.3d 973 (2d Dept. 2015).”). See also Sanders 
v. Jaco, 48 N.Y.S.3d 729 (N.Y. App. Div. 2017); Gerber v. Gerber, 21 N.Y.S.3d 386 (N.Y. App. Div. 
2015).  
 
194 Katz, supra note 189, at 239. 
 
195 Id. at 239–40. 



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Fifth, and finally, the problematic acceptance of parental alienation in New York 
family courts is evidenced by a 2018 court decision, J.F. v. D.F., which analyzes at 
great length the concept of “parental alienation” in New York courts and its historical 
entrenchment in the state.196 The decision was so notable that it attracted a 
commentary from the renowned family law expert Timothy Tippins in the New York 
Law Journal197 as well as a subsequent article from Jordan E. Trager, another family 
law attorney, commenting on both the original court opinion and Tippins’ piece.198 
What is clear is that judges and practitioners alike recognize that the theory of 
parental alienation is embedded in New York courts, and there is an active discussion 
as to how it should be applied. As such, it appears to be a particularly relevant 
moment to discuss what type of legislation should be adopted to ensure allegations 
of parental alienation in New York family courts do not obscure genuine claims of 
domestic violence. Therefore, the following legislative proposals target New York 
both because such legislation will lend itself to applicability in other states and 
because there is a current movement to reform New York’s custody laws, making 
such recommendations immediately practicable.  
 

 
196 J.F. v. D.F., 112 N.Y.S.3d 438 (N.Y. Sup. Ct. 2018). In his lengthy discussion of “The Law of 
Parental Alienation in New York” Judge Dollinger writes, “this court acknowledges that the New York 
courts have accepted the notion of parental alienation as a factor in determining whether a change in 
circumstances exists.” After providing a detailed exploration of parental alienation and its sidling into 
New York family law, including references to behavioral science literature and case law, Judge 
Dollinger concludes that “a more demanding definition” of parental alienation is necessary. He presents 
a new four-factor test for determining parental alienation, modeled after the four elements in the tort 
for IIED, and substituting the word “parental alienation” for “emotional distress.” See id. at 4–9.  
 
197 Timothy M. Tippins, Parental Alienation: What a Concept!, N.Y. L.J. (ONLINE) (Jan. 11, 2019), 
https://www.law.com/newyorklawjournal/2019/01/11/parental-alienation-what-a-concept/ 
[https://perma.cc/9ENB-9836]. While praising what he calls Judge Dollinger’s “27,000-word 
exegesis,” Tippins himself argues the proposed definition for parental alienation, modeled after the tort 
of IIED, is “constrictive.” 
 
198 Trager, supra note 193. Trager goes one step further, proposing that in addition to the standard of 
law for proving parental alienation suggested by Judge Dollinger, New York courts should consider a 
second standard: “Where a child refuses to have a relationship with a non-custodial parent, a court 
should thoroughly explore the specific reasons why not. The absence of any reasonable explanation 
shall raise a strong probability of parental alienation on the part of the custodial parent.” 



100                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

B. Recommendations 
 

1. Explicit Domestic Violence Exemption to “Friendly Parent” 
 

One component of legislation that is necessary in New York, and indeed in any 
state that does not have it, is an explicit exemption to the “friendly parent” concept 
in cases involving domestic violence. The importance of a statutory exemption to the 
“friendly parent” standard is highlighted by the findings of Allison Morrill et al.’s 
study showing that in states with both “friendly parent”/joint custody provisions and 
domestic violence presumption statutes, the former provisions trumped the latter.199 
These findings were replicated in a study by Daniel Saunders involving eight laws 
and a sample of judges and evaluators: “‘friendly parent’ statutes seemed to carry 
more weight in determining custody outcomes for victims than the presumption that 
abusers should not have custody.”200 One policy implication Saunders draws from 
these findings is that states need to consider adding exemptions to the “friendly 
parent” standard for domestic violence survivors.201 

 
The recent legislative proposals from both Maryland and Pennsylvania include 

provisions for rebuttable domestic violence presumptions. As the Morrill et al. and 
Saunders studies show, domestic violence presumption statutes are largely 
ineffective in states with “friendly parent” provisions.202 Therefore, an explicit 
exemption to “friendly parent” in cases involving domestic violence, as included in 
Maryland’s S.B. 57, must be included in future New York custody legislation. 
Furthermore, an explicit exemption to the “friendly parent” standard does not 
implicate the racial inequity concerns levied against Pennsylvania’s Bill 78. Unlike 
a presumption bill, a statutory exemption to the “friendly parent” standard does not 
mandate any particular outcome in the custody proceedings, such as supervised 
visitation or a fee imposition. Rather, the exemption simply removes one factor that 
has adversely impacted victims of domestic violence in custody proceedings, namely 
“friendly parent,” from the judge’s calculus. 

 
199 Allison Morrill et al., Child Custody and Visitation Decisions When the Father Has Perpetrated 
Violence Against the Mother, 11 VIOLENCE AGAINST WOMEN 1076, 1092, 1101 (2005).  
 
200 Saunders, NIJ Study 2016, supra note 106, at 10, 12.  
 
201 Id. at 12.  
 
202 Some states have already recognized the importance of such a provision. See, e.g., Berg, supra note 
45, at 14. In Minnesota, the Minnesota Domestic Abuse Act (MDAA) explicitly establishes that the 
“friendly parent” provision is not a factor in cases where the court makes a finding of domestic violence.  



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The studies show that “batterers still win custody in states with the [friendly 
parent provision] unless a statute clarifies that it does not apply when there is 
[domestic violence].”203 Therefore, New York and any other state where “friendly 
parent” provisions exist, either judicially or statutorily, must explicitly ban the 
application of such provisions in cases of domestic violence. 

 
However, in order to trigger the exemption to “friendly parent” provisions, there 

must first be a finding of domestic violence by the court. Given the nature of 
domestic violence and abuse cases, concrete proof of domestic violence is frequently 
difficult to come by. There is often a lack of clarity regarding whether the domestic 
violence occurred and the extent of the abuse if it did. Comprehensive legislation 
must address these situations of ambiguity.  

 
2. Failure of Proof  
 

Failure of proof refers to situations where a court has not made a finding of 
domestic violence, but the domestic violence allegations have also not been 
disproven. It is essential for both courts and evaluators to distinguish unsubstantiated 
allegations from false allegations.204 In this vein, three legislative proposals are 
crucial: 1) as adopted from Meier, alienation theory (or any of its variations) should 
be prohibited as a reason to discount abuse allegations;205 2) the statute should 
explicitly state that parents cannot be penalized solely on the basis of an 
unsubstantiated abuse claim; and 3) if the domestic violence claim is not initially 
proven, parents should not be barred from presenting evidence of the domestic 
violence later in the court proceedings.  

 
These are all critical legislative reforms for addressing custody proceedings 

involving failure of proof that must be enacted in New York and elsewhere. While 
Gardner admitted that PAS should not apply to situations involving genuine abuse, 
Rita Berg noted that this exemption would be too narrow even if courts abided by it 
because “[h]is exemption does not cover mothers in domestic violence situations 

 
203 Campbell, supra note 42, at 46.  
 
204 Stark et al., supra note 8, at 33 (“An unsubstantiated allegation occurs when an accusing party cannot 
provide documentation of domestic violence as required by courts, and there is evidence to believe that 
the child has not been abused or mistreated. False allegations, on the other hand, include alleging 
domestic violence in order to gain an unfair advantage in a custody case or to alienate the other parent 
from the child/children.”). 
 
205 Meier, Denial of Family Violence in Court, supra note 36, at 67.  



102                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

who have difficulty proving the abuse in court, yet wish to protect their children from 
the abusive parent.”206 Berg’s 2011 empirical study of the Minnesota legal system 
found that courts imposed custody decisions adverse to the mother in all seven cases 
where domestic violence allegations were unsubstantiated.207 While the court 
substantiated the PA claims against the mother in the majority of these cases, its joint 
custody award even in those cases without a finding of PA suggests possible 
causation between the unconfirmed abuse allegations and the adverse custody 
rulings. 208 Berg therefore concludes that “[e]ven if the court is not using false abuse 
allegations as a symptom of PA, cases suggest that courts are at least using unproven 
abuse allegations as further reason to find against the mother.”209 

 
However, the particular dynamics of domestic violence often make it especially 

difficult for abused individuals to substantiate their abuse claims.210 Prior to 
separation, survivors of domestic violence are often hesitant to reveal the abuse even 
to relatives and friends.211 Likewise, survivors are unlikely to report the domestic 
violence to law enforcement or healthcare professionals, fearing potential negative 
ramifications from the report.212 Some individuals may be deterred from reporting 
violence by men in their community due to the abuse they believe these men suffer 
by police, while others may not report out of concern for their family’s reputation.213 
Additionally, some victims of gay or lesbian domestic violence may fear being 
“outed” if they report the abuse.”214 Even in the context of ongoing custody cases, 
family violence often remains hidden because professionals lack the proper 
interviewing skills or fail to raise the topic – and if asked, many survivors remain 

 
206 Berg, supra note 45, at 6.  
 
207 Id. at 23–24.  
 
208 Id. at 24.  
 
209 Id.  
 
210 Stark et al., supra note 8, at 33. 
 
211 Scott & Emery, supra note 28, at 85. 
 
212 Stark et al., supra note 8, at 33–34. 
 
213 Greenberg, supra note 32, at 416. 
 
214 Id. 



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fearful that disclosing the abuse will lead to retaliation from the abuser or adverse 
consequences in court.215 

 
For these reasons, “unless the perpetrator has inflicted severe injury requiring 

medical attention, or the victim, other family members, or neighbors have reported 
incidents to law-enforcement authorities,” the parent’s testimony will often be the 
main source of evidence advancing a domestic violence claim.216 However, domestic 
violence victims encounter many hurdles when trying to convince the court to 
believe their testimony, such as the “credibility discount” that the legal system often 
applies to female victims of domestic violence217 and the tendency of family courts 
to approach abuse allegations as criminal, therefore requiring extra proof.218 This 
tendency “generates an automatic protectiveness toward the rights of the ‘accused,’ 
and an intuitive (or explicit) demand for greater proof than the regular civil procedure 
preponderance standard.”219 

 
One potential objection to the three legislative proposals addressing failure of 

proof situations is that allegations of domestic violence that cannot be proven should 
not receive any weight in the custody determination. However, the three proposals 
do not punish the accused parent but rather afford protection in the custody 
proceeding to parents whose abuse allegations remain unsubstantiated. Legislation 
that accounts for custody proceedings involving the failure of proof is essential given 
the great difficulty in substantiating domestic violence claims before the courts.  

 
Given this reality, the American Professional Society on the Abuse of Children 

stated, “Professionals need to be mindful that failure to prove interpersonal violence 

 
215 Saunders & Faller, supra note 59, at 8. 
 
216 Scott & Emery, supra note 28, at 85. 
 
217 See Amelia Mindthoff et al., How Social Science Can Help Us Understand Why Family Courts May 
Discount Women’s Testimony in Intimate Partner Violence Cases, 53 FAM. L.Q. 243, 243–44 (2019) 
(noting Deborah Epstein and Lisa Goodman expanded the dialogue on “credibility discount” first 
coined by Deborah Tuerkheimer, by claiming that it applies not only in the criminal legal system but 
also to “the experiences of female victims of [intimate partner violence] in legal and social service 
settings”). Id. at 244. 
 
218 Meier, Denial of Family Violence in Court, supra note 36, at 72-73 (“While this may be technically 
correct in a criminal case, in a custody case, the issue is not guilt or innocence, but future child well-
being.”). Id. at 73. 
 
219 Id. at 73. 



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does not prove that violence has not occurred nor that the child has been 
indoctrinated by the non-accused parent.”220 The gravity of this warning is 
particularly acute when one takes into account the incredible influence of custody 
evaluators on the outcome of court custody decisions. 

 
3. Custody Evaluators  
 

Legislation in New York and elsewhere must create standardized requirements 
for custody evaluators that both more narrowly define evaluators’ roles in custody 
proceedings and establish mandated training on domestic violence.  

 
Three New York cases exemplify the problematic influence of evaluators. First, 

in Zakariah, following the evaluator’s “deprogramming” recommendation, the court 
switched custody from the mother to the father, who lived in a different state, and 
subsequently awarded the father full custody—an action arguably responsible for the 
child’s later hospitalization for an eating disorder.221 In Montoya v. Davis, the trial 
court followed the drastic recommendation of the same forensic evaluator to grant 
primary physical custody to the father and suspend parenting time between the 
mother and child for a six month “deprogram” period, pursuant to the evaluator’s 
assessment that the mother had severely alienated and brainwashed the child.222 The 
Montoya court switched custody, despite the fact that the child had ADHD and 
autism, had resided with his mother since he was three years old, and had only seen 
his father, who lived in another state, a handful of times in the past few years.223 The 
influence of the same forensic evaluator in both of these cases is especially troubling 
considering the appellate division’s reversal in Montoya v. Davis upon finding that 
the evaluator “abdicated her role as a neutral evaluator” and “her opinions and 
recommendations were afflicted by a pervasive and manifest bias against the 
mother.”224 Furthermore, the aforementioned New York case of J.F. v. D.F. presents 

 
220 Saunders & Faller, supra note 59, at 8. 
 
221 Zakariah SS. v. Tara TT., 39 N.Y.S.3d 278, 279–80 (2016). See also Connors, supra note 19, at 19. 
Connors notes that a period of “deprogramming” is the exact remedy Gardner suggested. Connors 
further reveals that the child in this case was later hospitalized for an eating disorder and put on a 
feeding tube; the child’s mother and her attorney suspect the disorder might have been caused by the 
“deprogramming.” Id. at 19 n.76.  
 
222 Montoya v. Davis, 66 N.Y.S.3d 350, 353 (2017). 
 
223 Montoya v. Davis, 66 N.Y.S.3d 350, 356 (2017). See also Connors, supra note 19, at 19–20. 
 
224 Montoya v. Davis, 66 N.Y.S.3d 350, 353, (2017). See also Connors, supra note 19, at 20. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     105 

 

 

an example of what psychologist Richard Warshak calls false positive 
identifications—the judge explicitly found that the evaluator concluded wrongly that 
parental alienation existed.225 The existence of “false positive identification” cases 
in New York is thus evidenced by J.F. v. D.F.,226 and further supports the need for a 
law improving the role of custody evaluators. 

 
Certainly, reform related to the role of custody evaluators in child custody 

proceedings extends beyond New York. With the introduction of the generally vague 
best-interests standard, courts have become more reliant on mental health and 
custody experts who judges seem to believe “have the skill to obtain private family 
information and assess its credibility, and the knowledge to evaluate and compare 
factors for determining best interests.”227 As a result, in many custody cases, mental 
health professionals’ recommendations significantly shape custody outcomes “either 
as the basis of the court order or as the impetus for parents’ agreement.”228 Indeed, 
many courts unreservedly accept the evaluator’s recommendation, executing 
experts’ custody recommendations up to ninety percent of the time.229 However, such 
reliance is misplaced: mental health professionals are not credibility assessment 
experts, and they do not possess the scientific knowledge necessary for “linking 
clinical observations or test data to qualitative proxies for best interests or in 
comparing incommensurable factors to make custody recommendations to the 
court.”230 

 
Due to the complexity of custody cases involving domestic violence, courts tend 

to place an even greater emphasis on experts’ opinions in these cases; however, the 
 

225 Warshak, supra note 92, at 54. Warshak’s article and J.F. v. D.F. focus on false positive 
identifications of parental alienation outside the context of cases involving abuse allegations. However, 
Warshak’s commentary and the case importantly show that in New York, and other states’ family law 
cases, there are evaluators inaccurately assessing parental alienation as a present factor. 
 
226 Id. (“A New York court noted that three experienced experts ‘concluded that the mother had 
alienated the children.’ But the court, rejecting the experts’ conclusions, opined, ‘There is not an iota 
of evidence that any one of three daughters are alienated from their father’ (J.F. v. D.F., 2018). Were 
the experts wrong? The judge?”). 
 
227 Scott & Emery, supra note 28, at 91; Yanni, supra note 89, at 549–50. 
 
228 Scott & Emery, supra note 28, at 91. 
 
229 Dana Royce Baerger et al., A Methodology for Reviewing the Reliability and Relevance of Child 
Custody Evaluations, 18 J. AM. ACAD. MATRIM. L. 35, 35 (2002); Yanni, supra note 89, at 550. 
 
230 Scott & Emery, supra note 28, at 92. 



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reality is that such experts often only have access to witness statements and evidence 
provided by the accusing parent and therefore lack any greater means for verifying 
the abuse.231 Such reliance by courts is also problematic given the majority of 
evaluators’ ignorance of the dynamics of domestic violence, coupled with an 
overemphasis on Gardner’s theory, which remains deep-rooted among custody 
evaluators. A study of 201 psychologists in thirty-nine states found that “not only 
was domestic violence not a major factor in making recommendations, but that 
nearly seventy percent of custody evaluators endorsed denying sole or joint custody 
to a parent who ‘alienates the child from the other parent by negatively interpreting 
the other parent’s behavior.”’232 These results show that custody evaluators view 
parental alienation as more significant than a history of domestic violence in forming 
their recommendations for custody. Many custody evaluators ignore evidence of 
domestic violence or minimize the harmful impact it has on children, despite an 
abundance of research pointing to the contrary.233 Potentially explaining this 
outcome, only thirteen states clearly require that custody evaluators, guardians ad 
litem, or child representatives receive training on domestic violence and/or child 
abuse.234  

 
Several significant recommendations have been made concerning how to reform 

the role of custody evaluators. These include prohibiting expert ultimate-issue 
opinions,235 requiring evaluators to summarize their data gathering procedures,236 
requiring evaluators to investigate the different possible reasons for a child’s 

 
231 Yanni, supra note 89, at 553–54. 
 
232 Bajackson, supra note 16, at 330 (noting a study funded by the Department of Justice in 2010 to 
examine expert treatment of domestic violence and court reliance on this expert testimony found that 
the facts of the case have less influence on the final custody and visitation arrangements than the custody 
evaluator’s understanding of domestic violence); Scott & Emery, supra note 28, at 97–98 (“According 
to one survey, experienced evaluators listed alienation as the second most important factor in child-
custody evaluations (following only a parent’s active alcoholism).”). 
 
233 See Lynn Hecht Schafran, Evaluating the Evaluators: Problems with “Outside Neutrals,” 20 
GPSOLO 16 (2003). 
 
234 Stark et al., supra note 8, at 70, 76, 118–19. 
 
235 Yanni, supra note 89, at 550–51. See also Timothy M. Tippins & Jeffrey P. Wittmann, Empirical 
and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial 
Vigilance, 43 FAM. CT. REV. 193, 193, 203, 214–17 (2005). 
 
236 Elrod, supra note 17, at 542. 



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preference for one parent,237 prioritizing an examination of the relationship with the 
non-custodial parent prior to separation,238 and prohibiting use of computerized 
interpretations of psychological testing in custody cases.239 Evaluators must also be 
required to attend trainings on domestic violence, and these trainings should, at least 
in part, be dedicated to the use of specialized detection and assessment tools, as well 
as the weeding out of various forms of gender bias. Such a requirement is necessary 
as research shows that even among custody evaluators who ask about domestic 
violence, many do not use specialized detection and assessment tools.240 Instead, 
many practitioners “rely on their own gut feelings or instincts to determine whether 
domestic violence has occurred and impose their own personal assumptions about 
domestic violence.”241 Furthermore, research indicates a significant correlation 
exists between sexist beliefs by judges and custody evaluators and the belief that 
abused women tend to falsely allege family violence as an alienating tactic.242 As 
such, in tandem with trainings for evaluators, there must also be mandated training 
for judges to counter gender bias. 

 
While this Note aligns itself with Maryland’s efforts to mandate domestic 

violence training for evaluators, attorneys, and judges, the Note goes one step further 
than Maryland S.B. 675 by arguing for the prohibition of ultimate-issue 

 
237 Warshak, supra note 92, at 54. 
 
238 Katz, supra note 189, at 242–43. According to Katz, a New York practitioner whose work focuses 
on custody cases that often involve children’s resistance to contact with one parent and allegations of 
PAS, “my anecdotal study and seventeen years of representing children shows that children’s pre-
separation relationships are the factor which is determinative of the child’s post-divorce relationship 
with each parent.” 
 
239 See Timothy M. Tippins, Psychological Testing: Controversy and Consensus, N.Y. L.J. (ONLINE) 
(July 18, 2018), https://www.law.com/newyorklawjournal/2018/07/18/psychological-testing-
controversy-and-consensus/?slreturn=20211025075209 [https://perma.cc/R8S9-9VGX] 
(noting the exacerbated risks associated with psychological testing when evaluators rely upon 
conclusions generated by a computer program that is based on an algorithm). 
 
240 Saunders & Faller, supra note 59, at 7. 
 
241 Gabrielle Davis, A Systematic Approach to Domestic Abuse-Informed Child Custody Decision 
Making in Family Law Cases, 53 FAM. CT. REV. 565, 567 (2015). 
 
242 Saunders & Faller, supra note 59, at 8 (“Of greatest concern, we found these beliefs to be linked to 
recommendations that child custody be awarded to perpetrators of domestic abuse.”); Mindthoff et 
al., supra note 217, at 248 (“[S]tudies exploring child custody cases with IPV allegations found that 
gendered beliefs of decision makers impact gendered differences in their recommendations.”). 



108                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

recommendations by evaluators. Timothy Tippins and psychologist Jeffrey Wittman 
mapped the reliability of different types of testimony offered by experts, and their 
findings, as described by author Stephen Yanni, purport that as “expert inferences 
deviate from scientifically grounded observations and conclusions and approach 
custody-specific recommendations—the ultimate issue—they become less 
reliable.”243 Therefore, although the “‘overwhelming majority of judges and 
attorneys believe that psychologists should directly address the ultimate issue before 
the court,’ the constraints of scientific knowledge and lack of uniform standards 
undermine the helpfulness and accuracy of outcome-specific opinions on the 
ultimate issue.”244 Consequently, evaluators should not provide final custody 
recommendations to the court, even if they have received domestic violence training. 
It is thus clear that for any legislation, in New York and across the country, there 
must be a provision reforming the role of custody evaluators in order to effectively 
address gender bias in custody cases.  

 
4. Attorneys for Children (AFCs) Substituting Judgment  
 

Finally, legislation in New York must explicitly state that in custody cases 
involving an Attorney for the Child (AFC),245 it is impermissible for the AFC to 
substitute judgment for the child based solely on the AFC’s view that one of the 
parents has engaged in parental alienation. According to Rule 7.2 prescribing the 
function of the AFC in New York, as long as “the child is capable of knowing, 
voluntary and considered judgment, the attorney for the child should be directed by 
the wishes of the child, even if the attorney for the child believes that what the child 

 
243 Yanni, supra note 89, at 550–51, 568. 
 
244 Yanni, supra note 89, at 550–51; Tippins, supra note 239 (acknowledging there is currently debate 
among professional psychologists as to whether any psychological testing should be used in custody 
evaluations; however, under the Frye test this debate in itself provides grounds for the exclusion of 
evaluations that incorporate test data). 
 
245 See ETHICS FOR ATTORNEYS FOR CHILDREN § 7.2 HON. GERALD J. WHALEN, PRESIDING JUST., N.Y. 
STATE SUP. CT. APP. DIV., FOURTH DEP’T, ATT’YS FOR CHILD. PROGRAM 2017), 
https://www.nycourts.gov/courts/ad4/afc/afc-ethics.pdf [https://perma.cc/426Q-YRNE] [hereinafter 
HON. WHALEN] (“[T]he role of the attorney for the child is to serve as a child’s lawyer. The attorney 
for the child has the responsibility to represent and advocate the child’s wishes and interests in the 
proceeding or action.”). See also CHILD WELFARE INFORMATION GATEWAY, REPRESENTATION OF 
CHILDREN IN ABUSE AND NEGLECT PROCEEDINGS 2 (2018), 
https://www.childwelfare.gov/pubPDFs/represent.pdf [https://perma.cc/J8A9-SBAW]. As of 
December 2017, sixteen states (including New York) require the appointment of an attorney for the 
child. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     109 

 

 

wants is not in the child’s best interests.”246 Nevertheless, a review of the case law 
reveals that, at least in the upstate regions of New York, AFCs repeatedly are “failing 
to adhere to the strictures of child representation in alienation cases as set forth in 
7.2.”247 

 
Jaya L. Connors, an Assistant Professor of Law and Director of the Family 

Violence Clinic at Albany Law School, highlights several upstate New York cases 
that exemplify the acuteness of this phenomenon.248 In one prototypical alienation 
case, Viscuso, the court discredited the mother’s allegations of domestic violence and 
concluded there was parental alienation.249 The Viscuso court then used the finding 
of parental alienation to justify the AFC’s substitution of judgment, thereby 
“effectively erod[ing] the child’s right to meaningful representation as directed by 
7.2.”250 Likewise, in Zakariah, the court discredited the mother’s allegations of 
physical abuse by the father, and then, citing to Viscuso, permitted the AFC to 
substitute judgment for the child based on the forensic evaluator’s determination that 
the mother was alienating the child from the father.251 Finally, in Rutland v. O’Brien, 
the AFC substituted judgment for a sixteen-year-old and twelve-year-old through a 
successful motion to temporarily suspend the mother’s parenting time despite the 
children’s wish to continue their weekly visitations.252 Although there was evidence 
that the mother criticized the father in front of the children and on social media, such 

 
246 22 N.Y. COMP. CODES R. & REGS. tit. 22 § 7.2. See HON. WHALEN, supra note 245. See also Connors, 
supra note 19, at 9–10. As Connors notes, the two exceptions to this rule are: 1) “if the attorney feels 
that the child client is not of capacity; and this generally refers to very young children or children with 
diminished capacity,” and 2) “if the attorney is convinced that following the child's wishes is likely to 
result in a substantial risk of imminent, serious harm to the child.” See also N.Y. FAM. CT. ACT § 241 
(McKinney 2012). 
 
247 Connors, supra note 19, at 15. 
 
248 Jaya L. Connors, ALB. L. FAC. DIRECTORY (2020), 
https://www.albanylaw.edu/faculty/directory/profiles?ind=Connors,%20Jaya [https://perma.cc/7P2C-
XVP3]; Connors, supra note 19, at 15–17. 
 
249 Viscuso v. Viscuso, 12 N.Y.S.3d 684, 687. See Connors, supra note 19, at 15–16 (noting that the 
court concluded there was inherently parental alienation, as alleged by the father, based on its finding 
of maternal parental interference coupled with the child’s desire to remain with the mother). 
 
250 Connors, supra note 19, at 16. 
 
251 Zakariah, 39 N.Y.S.3d at 279, 281. See Connors, supra note 19, at 16. 
 
252 Rutland v. O’Brien, 41 N.Y.S.3d 292, 292, 294 (2016). See Connors, supra note 19, at 16. 



110                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

behavior alone does not meet the threshold set by Rule 7.2 for the AFC to substitute 
judgment.253 

 
These three cases illustrate that some AFCs perpetuate claims of parental 

alienation rather than provide true representation to the child. Therefore, legislation 
in New York and other states that provide for AFCs must include a provision stating 
that parental alienation is not grounds for an AFC to substitute judgment for the child. 
While this is technically already the case in New York based on Rule 7.2, there is a 
need for it to be stated explicitly in the legislation so that AFCs and judges alike do 
not consider parental alienation to be an implied justification for substituting 
judgment.  

 
C. Legislative Proposals: Summary  

 
The four outlined proposals directly respond to New York’s legislative scheme 

and the ways in which parental alienation has entered New York family courts. First, 
the explicit “friendly parent” standard exemption in domestic violence cases would 
prohibit courts from punishing domestic violence survivors for not promoting their 
child’s contact with the other parent. Second, provisions on custody cases involving 
failure of proof of domestic violence and/or child abuse would prohibit courts from 
employing alienation theory to discount abuse allegations or otherwise hold 
unsubstantiated abuse allegations against the accuser. Third, mandated training on 
domestic violence and stricter standards for the testimony of child custody evaluators 
would help prevent improper views on domestic violence and parental alienation 
from impacting final custody decisions. Finally, the fourth proposal would explicitly 
prohibit the invocation of parental alienation as grounds for AFCs to substitute 
judgment for the child. Together, these four legislative proposals would make great 
strides in New York, and any other states where they are applicable, in diminishing 
the impact of gender bias in custody cases involving competing claims of domestic 
violence and parental alienation. 
 

CONCLUSION 
 

As Meier’s 2020 study shows, despite some claims that parental alienation is a 
gender-neutral theory, its impact across the country has been to discredit mothers 
who allege domestic violence and child abuse and to penalize them in custody 

 
253 Rutland v. O’Brien, 41 N.Y.S.3d 292, 292, 296 (2016). See Connors, supra note 19, at 16. 
 



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decisions.254 If a mother reveals abuse, the father is more likely to allege parental 
alienation, and thus the mother is more likely to lose custody. This places mothers in 
an impossible bind that puts at risk not only those mothers who are forced to have 
ongoing contact with their abusers, but also the children who must suffer the 
consequences of adverse custody decisions, especially when the mother loses 
custody to the abuser. In the worst of these outcomes, abusive parents have killed 
their children during court-ordered visits.  

 
Meier’s 2020 study coupled with H. Con. Res. 72 and the advocacy of parents 

such as Jacqueline Franchetti have encouraged states to enact new child custody 
legislation that protects abused mothers and children. However, it is crucial that 
legislators in these states receive input from practitioners so as to ensure that the 
impact of these new laws will be seen in practice and not just on paper. As 
exemplified by some of the domestic violence presumption laws, language that 
sounds promising initially may ultimately do little to change family courtroom 
dynamics. Since the four aforementioned proposals directly respond to the nuanced 
ways in which gender bias seeps into New York custody proceedings, this Note 
argues they will be successful in countering the gendered dynamics of cross-
allegation domestic violence-parental alienation cases in practice. However, even if 
future legislation proves effective, the pervasiveness of the biased treatment of 
mothers in such custody cases points to a deeper societal issue:  

 
One is left to wonder why North American professionals and courts 
have been so reluctant to acquire knowledge 
about domestic violence, yet so quick to embrace a mere theory 
dismissing such evidence. The incredible speed with which courts 
and professionals have accepted “alienated parent syndrome” 
theory—with assertions that most of the perpetrators are women 
may in and of itself indicate a continuing gender bias.255 
 

Therefore, while it is essential that states craft legislation aimed at providing 
institutional protections for mothers who allege abuse, the aforementioned dynamic 
points to a troubling system of beliefs existing in society, beyond the context of 
family court, which must be targeted directly.  

 
254 Meier, U.S. Child Custody Outcomes, supra note 9. 
 
255 Linda C. Neilson, Assessing Mutual Partner-Abuse Claims in Child Custody and Access Cases, 42 
FAM. CT. REV. 411, 425 (2004).