TBA Law Blog

Posted by: Marlene Moses & Beth Townsend on Apr 28, 2011

Journal Issue Date: May 2011

Journal Name: May 2011 - Vol. 47, No. 5

The Public Policy of Encouraging the Parent/Child Relationship

It should be a truism that in the absence of danger to a child, “[a] child’s interests are well-served by a custody and visitation arrangement that promotes the development of relationships with both the custodial and noncustodial parent.”[1] Tennessee’s standard Permanent

Parenting Plan form recites the following statutorily derived language immediately below the style of the case, essentially rendering the proviso part of the court order: “The mother and father will behave with each other and each child so as to provide a loving, stable, consistent and nurturing relationship with the child even though they are divorced. They will not speak badly of each other or the members of the family of the other parent. They will encourage each child to continue to love the other parent and be comfortable in both families.”[2]

A parent who acts contrary to the foregoing tenets, perhaps even alienating a child from the other parent and actively interfering with the child having a loving relationship with the other parent, risks losing custody.[3] In making a custody determination, the court is required to consider “the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.”[4]

Sometimes, particularly in the context of a bitter divorce or custody dispute, a parent (the so-called “alienating parent”) engages in certain behaviors that influence the child, either intentionally or unwittingly, to turn against the other parent (the so-called “alienated parent” or “target parent”). “Parental alienation” is a term commonly used to describe the negative impression and attitude children may develop about one parent by listening to the words or following the actions of the other parent. Often, the form of parental alienation most experienced is that of negative words of one parent about another, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent.[5] In extreme cases, the alienating parent might make false accusations of child abuse and sexual abuse against the other parent.[6]

Some other signs of parental alienation include: the destruction of mail or gifts from the alienated parent; the child expressing contempt for the alienated parent, often in the presence of the alienating parent; the child paraphrasing or parroting statements used by the alienating parent, with the words used often atypical of words likely to be used by a child; the child speaking about exaggerated or contrived abuse experienced at the hands of the alienated parent; and encouragement of the child to be with friends or otherwise preoccupied in preference to interacting with the alienated parent.[7]

The Controversial Corollary of ‘Parental Alienation Syndrome’

A corollary of parental alienation is “Parental Alienation Syndrome” (PAS), a term coined by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behavior of parents involved in child custody disputes and noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a disorder. He described the so-called disorder or syndrome as follows:

Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent.[8]

While a diagnosis of PAS is made based on the child’s symptoms, Dr. Gardner suggested that any change in custody should be based primarily on the symptom level of the alienating parent.[9] In severe cases such as those in which the child threatens to run away or commit suicide if forced to visit with the alienated parent, Dr. Gardner recommended that custody be transferred to the alienated parent but that the child be removed from the alienating parent’s home into a transition home before moving into the home of the targeted parent.[10]

Although many feel that the concept of PAS makes sense, it is not generally accepted as a syndrome, nor is it widely embraced by the mental health or legal communities. The theory is widely criticized for lacking scientific validity and reliability and has been criticized as “simplistic junk science” and an “unsophisticated, pseudoscientific theory” by some.[11] PAS is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), but Dr. Gardner and others, including Vanderbilt University psychiatrist William Bernet, have lobbied for its inclusion in the next revision of the DSM.[12] A survey of American custody evaluators published in 2007 found that half of the respondents disagreed with the inclusion of PAS in the DSM, while a third thought it should be.[13]

While PAS is widely criticized, the separate but related concept of parental alienation (described as the estrangement of a child from a parent) is a more readily accepted dynamic.[14] Since Dr. Gardner proposed PAS, other researchers have suggested focusing less on diagnosing a syndrome and more on the dynamics of the situation that have contributed to the alienation, which can consist of both parents playing a role rather than one evil alienating parent being entirely to blame.[15] “Rejected parents tend to lack warmth and empathy with the child, engage in rigid parenting and critical attitudes, and are passive, depressed, anxious and withdrawn — characteristics which may encourage rejection.”[16]

Especially controversial were Dr. Gardner’s views on the judicial system. He viewed judges’ disinclination to make decisions that involve significant change in the lives of the children (such as changing custody) as judicial facilitation of the development of PAS. He also faulted judges for their apparent unwillingness to impose sanctions on the alienating parent. Finally, Dr. Gardner felt that judges over-rely on ordering psychological therapy, which he viewed as a “cop-out” that shifts the responsibility into the hands of another person.[17]

Some members of the legal community feel that expert testimony regarding PAS should not be admissible in child custody hearings based on both science and law.[18] The U.S. National Council of Juvenile and Family Court Judges has recommended that PAS not be considered in child custody cases.[19] Regardless, the concept of PAS (and parental alienation, for that matter) is not absent from the case law, and testimony regarding these conditions is becoming more common.

Case Law

Although there are several Tennessee cases referencing parental alienation or some form thereof, there appear to be only two cases (both unreported) that reference PAS: Cone v. Cone and Costley v. Benjamin. Cone[20] is a 2010 Court of Appeals decision that referenced PAS only because it was the topic of an amicus brief filed by a child advocacy group asserting that the trial court improperly relied on PAS in its decision to change custody to the father. As it turned out, evidence of PAS was not in fact admitted, but rather PAS was only mentioned by the custody evaluator, Dr. William Bernet, in his testimony that PAS did not pertain to the case. Although PAS itself was not at issue, the court changed custody to the father based in large part on the fact that the mother had been unwilling to encourage a close and continuing relationship between the child and the father.

The other Tennessee case referencing PAS is Costley v. Benjamin, a 2005 Court of Appeals decision involving a father’s unrelenting efforts to gain custody of the parties’ daughter after the mother had already acquiesced to him having custody of their son.[21] The bitter litigation between the parents had a profound negative effect on both children. After the son moved in with the father, the son’s relationship with the mother deteriorated to the point that he stopped visiting with her. The daughter, too, began to align herself with her father. The trial court stated that the father had, “consciously or unconsciously, attempted to weaken the bond between [the daughter and the m]other.”[22] The daughter’s therapist opined that “the prolonged situation that [the daughter] is in and the contribution, either knowingly or unknowingly, her father … [has] created a very serious psychiatric problem …”[23] The therapist felt that the daughter’s behavior was motivated by the belief that “all of this will finally stop if I just go live with dad.”[24] The therapist was concerned that the father was actively alienating the daughter from her mother, and because of this, she did not believe it was in the child’s best interest for custody to change to the father.[25]

Much of the therapist’s testimony focused on the fact that her observations of the child and other family members showed indications of PAS, although she testified that she was not an expert on PAS and was unable to diagnose the child.[26] The father called another therapist as a rebuttal witness who challenged the use of PAS in the proceedings.[27] The court noted in a footnote that “we need not determine whether Parental Alienation Syndrome is recognized by the psychological community or establishes a reliable basis for expert testimony.”[28] The trial court declined to formally recognize PAS but stated, “I will say that Parental Alienation Syndrome, it does make total sense to me, total sense, and this is the most extreme of cases, but I’m not sure what you do if you find it.”[29]

Ultimately, the trial judge reasoned that if the child lived primarily with the father, she would probably lose contact with the mother, just as the parties’ son had. On the other hand, if she were ordered to stay with the mother, the father would not relent in his attempt to obtain primary residential placement, and the child would remain torn and conflicted. The trial court granted the father’s petition to modify the parenting plan by awarding him primary custody in order to “end the conflict.”[30]

The appellate court reversed the trial court because the father failed to demonstrate “a proper ground for modification of the prior parenting arrangement and because the proof shows that the mother is more inclined than the father to encourage the child’s relationship with the other parent.”[31]


Divorce can affect children profoundly by undermining their sense of stability and well-being.[32] Creating a situation where a child feels forced to choose sides only worsens the effects.[33]

While the use of testimony pertaining to PAS may be far from firmly entrenched in our legal system, Dr. Gardner’s findings are at the very least useful for making sense of the family dynamics in some of the most antagonistic custody proceedings. While the legal battle will end, the effect it can have on children caught in the middle will have long-lasting effects.


  1. Pizzillo v. Pizzillo, 884 S.W.2d 749, 755 (Tenn. Ct. App. 1994).
  2. See also Tenn. Code Ann. §36-6-101(a)(3), which provides that “[e]xcept when the court finds it not to be in the best interests of the affected child, each order pertaining to the custody or possession of a child arising from an action for absolute divorce, divorce from bed and board or annulment shall grant to each parent the rights listed in subdivisions (a)(3)(A)(i)-(vi) during periods when the child is not in that parent’s possession or shall incorporate such rights by reference to a prior order.” Subdivision (a)(3)(A)(vi) is “the right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child”.
  3. Varley v. Varley, 934 S.W.2d 659 (Tenn. Ct. App. 1996).
  4. Tenn. Code Ann. §36-6-106(a)(10).
  5. David Heleniak, “Judges and the Development of Parental Alienation Syndrome,” April 27, 2007.
  6. Brown, T., and Renata A. (2007), Child Abuse and Family Law: Understanding the Issues Facing Human Service and Legal Professionals, Allen & Unwin, pp. 11-12.
  7. Signs of Parental Alienation Syndrome and How to Counteract Its Effects, Ludwig F. Lowenstein Ph.D., 2005.
  8. Gardner, R. A. (2001). “Parental Alienation Syndrome (PAS): Sixteen Years Later,” Academy Forum 45(1): 10-12; Gardner, Richard (2004). “Commentary on Kelly and Johnston’s ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome,’” Family Court Review 42(4): 611-21.
  9. Gardner, Richard A. (2006), “Introduction” in Sauber, S. Richard, Lorandos, Demosthenes, The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations, Charles C. Thomas, pp.5-11.
  10. Gardner, R. A. (2001), “Parental Alienation Syndrome (PAS): Sixteen Years Later”. Academy Forum 45(1): 10-12; Gardner, Richard (2004), “Commentary on Kelly and Johnston’s ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome,’” Family Court Review 42(4): 611-21.
  11. The Leadership Council on Child Abuse and Interpersonal Violence, 2005, http://www.leadershipcouncil.org/1/ pas/faq.htm
  12. Gardner, R.A. (2002), “Denial of the Parental Alienation Syndrome Also Harms Women,” American Journal of Family Therapy 30(3), 191-202.
  13. Baker, A.J.L. (2007). “Knowledge and Attitudes about the Parental Alienation Syndrome: A Survey of Custody Evaluators,” American Journal of Family Therapy 35(1), 1-19.
  14. Bernet, W. (2008), “Parental Alienation Disorder and DSM-V,” The American Journal of Family Therapy 36 (5), 349-366.
  15. Jaffe, P.G., Lemon N.K.D., and Poisson S.E. (2002), Child Custody & Domestic Violence, SAGE Publications, pp. 52-54; Johnston, J.R.; Kelly J.B. (2004), “Rejoinder to Gardner’s Commentary on Kelly and Johnston’s ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome,’” Family Court Review 42 (4), 622-628.
  16. Bala, N., Fidler B., and Goldberg D; Houston C. (2007), “Alienated Children and Parental Separation: Legal Responses from Canada’s Family Courts,” Queens Law Journal 33: 79–138.
  17. Gardner, R.A. (2001), “Should Courts Order PAS Children to Visit/Reside with the Alienated Parent? A Follow-up Study”; Gardner, R.A. (2002), “The Judiciary’s Role in the Etiology, Symptom Development and Treatment of the Parental Alienation Syndrome (PAS).”.
  18. Walker, L.E.A.; Brantley, K.L.; Rigsbee J.A. (2004), “A Critical Analysis of Parental Alienation Syndrome and Its Admissibility in the Family Court,” Journal of Child Custody 1(2): 47-74.
  19. Ottaman, A, and  Lee R. (2008), “Fathers’ rights movement,” in Edleson J.L., and Renzetti, C.M, Encyclopedia of Interpersonal Violence, SAGE Publications, pp. 252.
  20. Cone v. Cone, 2010 WL 1730129 (Tenn. Ct. App.).
  21. Costley v. Benjamin, 2005 WL 1950114 (Tenn. Ct. App.).
  22. Id. at *15.
  23. Id. at *12.
  24. Id.
  25. Id. at *13.
  26. Id.
  27. Id.
  28. Id. at FN21.
  29. Id. at *13.
  30. Id. at *4.
  31. Id. at *1.
  32. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn.Ct.App. 1996).
  33. Costley, supra at *19.

Marlene Eskind Moses MARLENE ESKIND MOSES is the principal and manager of Moses & Townsend PLLC, a family and divorce law firm in Nashville. She is the current president of the American Academy of Matrimonial Lawyers and the Tennessee Supreme Court Historical Society. She has held prior presidencies with the Tennessee Board of Law Examiners and the Lawyers Association for Women. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers and is the current vice president for the National Board of Legal Specialty Certification. The Tennessee Commission on Continuing Legal Education & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist.

Co-author BETH A. TOWNSEND is a partner at Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville, where she has practiced since 2001. She earned her law degree from Vanderbilt University and her undergraduate degree from Duke University.