Court: Court of Civil Appeals of Alabama; February 27, 2003; Alabama; State Appellate Court
C.J.L. and M.W.B. divorced in 1999 in Georgia, sharing joint custody of their three children. Following the mother's relocation to Montgomery, Alabama, issues arose regarding the father's custodial rights, which were modified by a Georgia court. In March 2000, the mother filed a custody modification petition in Montgomery, but the father contested jurisdiction, leading to the dismissal of her petition. In May 2001, the father sought contempt charges against the mother for denial of visitation, while the mother countered with her own contempt petition and sought custody modification. Both parties filed for custody modifications. The trial court appointed a guardian ad litem and a psychologist, Dr. Karl Kirkland, for a custody evaluation. After trial, the court granted the father sole physical custody, prompting the mother to appeal. She claims the court erred in admitting Dr. Kirkland's testimony, arguing that parental alienation syndrome (PAS) lacks general acceptance in the psychological community, thus failing the Frye standard for scientific evidence. Additionally, she contends insufficient evidence existed to support claims of the children being "alienated" from their father and argues that the custody modification contradicted established law. Lastly, she asserts that the trial court inappropriately relied on the guardian ad litem's report submitted prior to trial.
In September 1997, the mother informed the father that their children, M.E.B. (four years old) and C.N.B. (under three), alleged sexual abuse by their paternal grandfather, T.D.B., witnessed by their grandmother, J.B. The father, stationed at Ft. Gordon, Georgia, urged the mother to seek medical evaluation for the children. They were examined by Dr. Janus Butcher on September 23, 1997, who found no physical evidence of abuse, a conclusion the mother disputed. Subsequently, she took the children to Dr. Sara O’Heron, who, after examinations on October 16, 1997, and March 31, 1998, opined that sexual abuse had occurred. This led to the paternal grandparents' arrest and indictment, but the charges were later dismissed by a second grand jury.
The father's support for his parents exacerbated tensions, contributing to the couple's bitter divorce. During this period, psychologists Dr. Greg Swanson and Dr. Joseph Frey evaluated the children and suggested they likely experienced sexual abuse. Dr. Frey, in a custody evaluation, criticized the mother’s behavior, stating her tendency to generalize the allegations to her husband and her excessive reliance on the children’s statements hindered appropriate conduct. He noted her desire to limit the children's contact with their father, recommending a shared custody arrangement, emphasizing that the father showed no signs of abuse and should be allowed to maintain a relationship with the children.
The father filed a contempt petition after the mother unilaterally denied him visitation with their children starting in April 2001. The mother initially restricted visitation with their son, D.C.B., who had returned from a visit with unusual behavior, expressing that he wanted his father dead and indicating distress related to disciplinary actions taken by the father. Upon noticing redness in the son’s anal area and complaints of pain, the mother took him to the emergency room, where he was referred to Dr. Penny White, a pediatrician specializing in child sexual abuse examinations. Dr. White reported that the physical examination results were normal, stating that such examinations often do not reveal abnormalities even in cases of abuse. The mother reported the allegations to the Department of Human Resources (DHR), which subsequently contacted the U.S. Army for an investigation. Special Agent Charles Thomas Ames, Jr. testified that the Army closed the case due to a lack of credible evidence, citing doubts expressed by a DHR representative and the mother's initial reluctance to provide a sworn statement. The investigation revealed no findings of abuse, and Dr. Terri Brewer, who interviewed the children, did not report any indications of criminal activity. Despite the absence of evidence, the mother maintained her belief that the son had been abused and continued to deny the father visitation until the court ordered that visitation resume in September 2001.
The children initially showed reluctance to visit their father due to fear, but the visitations ultimately proceeded without incident. The mother expressed her concerns by writing her phone number and “911” in one child's shoe, instructing them to stay close together for safety. During the first visitation over Labor Day weekend in 2001, Dr. Kirkland, the custody evaluator, spoke with the father by phone. Following the second visitation on September 30, 2001, both the father and children reported to Dr. Kirkland that the visits had been enjoyable. However, on September 20, 2001, the mother took the son to Dr. White after he reported to his preschool teacher an incident involving the father and an electric knife. Dr. White found no physical trauma during her examination, although the child displayed reluctance in recounting his experience.
Dr. Kirkland was appointed to conduct a custody evaluation, which included administering psychological tests to the mother, father, and the father's wife, L.B., along with interviews and therapeutic play with the children. The mother's psychological testing revealed an invalid profile on the MMPI-2, indicating she was trying to present herself positively. Dr. Kirkland described her as emotionally immature and self-centered, with difficulty acknowledging her role in the negative outcomes of the case. Despite deeming her a competent parent based on the parental stress inventory, he noted a significant exception: her inability to move beyond past accusations of child abuse. Dr. Kirkland expressed concern that the mother’s actions were undermining the children’s relationship with their father, suggesting her belief that the father was either dangerous or neglectful and that she would only feel secure if his parental rights were terminated.
The father's MMPI-2 assessment indicated a valid psychological profile, revealing traits of rigidity, cynicism, and perfectionism, yet Dr. Kirkland determined he could provide better structure and discipline for the children. Despite being disturbed by the mother's attempts to damage his relationship with the children, the father did not wish to eliminate her from their lives and could support her involvement if granted custody. Dr. Kirkland highlighted that the mother's behavior had alienated the children from their father. Initially, the children expressed fear of their father and reluctance to visit him, but after visitation resumed, they reported enjoying their time together and displayed comfort and affection upon returning. However, Dr. Kirkland observed discrepancies in the children's drawings that suggested ongoing alienation. For instance, the son drew an unflattering picture of the father, while M.E.B. depicted a violent scene involving her parents, which Dr. Kirkland deemed atypical for a child. Prior to visitation, both daughters expressed fear and anger towards their father, with M.E.B. claiming she felt unsafe and associating her father's actions with her attention deficit disorder. Dr. Kirkland's written evaluation recommended awarding the father sole physical custody and granting the mother supervised visitation, citing the mother's significant alienating behavior as persistent and severe.
The mother has engaged in detrimental behavior affecting her children's relationship with their father, leading the examiner, Dr. Kirkland, to recommend a custody reversal due to significant parental alienation. Dr. Kirkland discussed parental alienation syndrome (PAS), acknowledging its origin with Dr. Richard Gardner and noting extensive research by others like Joan Kelley and Judith Wallerstein on the long-term negative effects of such behaviors on children. He observed signs of alienation in the children through their drawings, which revealed distress not shown in their behavior with the father. Dr. Kirkland emphasized the importance of parents presenting each other positively and noted the mother's inability to mitigate her harmful actions. Although he considered alternative solutions, such as family therapy, he ultimately leaned towards a custody change after a second allegation of sexual abuse emerged.
In contrast, Dr. Greg Swanson, called by the mother, critiqued the validity of PAS within the scientific community, highlighting its absence from the DSM-IV and lack of peer-reviewed research on Gardner's work. He acknowledged that behaviors associated with PAS occur in post-divorce conflicts but argued against a custody change as a solution, questioning Dr. Kirkland's evaluation as potentially biased and hasty. Dr. Swanson did not present himself as a custody evaluator and refrained from recommending which parent should receive custody.
The mother contends that the trial court improperly admitted and relied on Dr. Kirkland’s custody evaluation and testimony regarding Parental Alienation Syndrome (PAS), arguing it does not meet the Frye test for admissibility due to a lack of general acceptance in the scientific community. She asserts that the trial court's reliance on Dr. Kirkland's recommendation, which she claims was based on a diagnosis of PAS, warrants reversal. However, Dr. Kirkland's report does not explicitly diagnose PAS but rather describes the mother's alienating behavior and notes the children's partial alienation from their father. Although the trial court referenced PAS, its findings primarily focused on the mother's demonstrated efforts to alienate the children from their father, which were supported by evidence. The trial court concluded that the mother’s actions were not in the children’s best interests. Expert Dr. Swanson acknowledged the concept of alienation in post-divorce scenarios but suggested that behaviors associated with PAS occur frequently in such cases. While the court might agree with the mother regarding the general acceptance of PAS in the scientific community, it deemed this determination unnecessary for the case at hand, as the evidence supported the trial court’s conclusions about the mother's behavior.
The trial court evaluated extensive evidence indicating the mother sought to sever contact between her children and their father, including expressing a desire to terminate his parental rights. The court referenced a precedent highlighting the potential for custodial parents to alienate children from non-custodial parents, as noted in Hagler v. Hagler. Dr. Kirkland's evaluation supported claims that the mother engaged in behaviors undermining the father-child relationship and expressed that her actions were detrimental to the children's well-being. Dr. Swanson acknowledged that alienating behaviors are recognized in psychiatric practice. The court distinguished this case from the Frye standard, asserting that the mother’s conduct warranted careful evaluation rather than automatic conclusions based on parental alienation syndrome (PAS). The mother's argument against the sufficiency of evidence for custody modification was countered by reports from the father, Dr. Kirkland, and the guardian ad litem that the children exhibited comfort and affection towards their father. The mother contended that this indicated no alienation and that her denial of visitation alone was inadequate for custody modification, referencing Vick v. Vick. She requested the reversal of the trial court’s decision based on these points.
Joint custody of the children was established under a Georgia judgment, which meant that the standard from Ex parte McLendon was not applicable. Instead, the father needed to demonstrate a change in circumstances justifying a modification to sole physical custody. The trial court determined that while some aspects had not changed, such as the mother's conduct, her prior assurances to the Georgia court about ceasing damaging behavior complicated her position. Evidence presented indicated that the children were experiencing alienation due to the mother's actions, supported by Dr. Kirkland's observations regarding the children's inconsistent attitudes towards their father.
The trial court noted that the father was more effective in promoting the mother’s role as a parent, despite her attempts to undermine his role. Although the court considered maintaining the current custody arrangement contingent on the mother fostering a positive relationship between the father and children, doubts about her sincerity led to a decision against it.
The mother contended that the custody modification was a punitive response to a visitation issue. However, the court found that the case extended beyond a mere visitation dispute, highlighting the mother's unfounded accusations against the father, her denial of contact, and her attempts to diminish his parental authority, all of which Dr. Kirkland deemed potentially abusive to the children.
The trial court noted specific troubling behaviors from the mother, such as instructing her children to stay close for protection during visits and making alarming comments despite no credible evidence of abuse by the father. Her actions, which also occurred in Georgia, raised concerns about her ability to facilitate a healthy relationship between the father and children. The Georgia court had previously expressed serious concerns regarding her willingness to allow meaningful contact with the father.
Dr. Kirkland's recommendation indicates that the mother's inability to provide adequate parental support has been established through two prolonged court battles in different states. The trial court agreed with this assessment, and its decision to modify custody is upheld as not clearly erroneous. The mother contends that the trial court wrongly relied on the guardian ad litem's report, expressing concerns about its findings being influenced by Dr. Kirkland's conclusions. Her counsel noted objections to the guardian ad litem's recommendations, emphasizing that they may have been swayed by the testimony presented. The mother also cites two legal articles arguing that the use of guardians ad litem in custody cases violates due process and should be abolished due to issues like hearsay and lack of cross-examination. However, Alabama law allows the use of guardians ad litem in custody disputes, and while a trial court may consider their recommendations, it is not obligated to follow them. The definition of a guardian ad litem includes the authority to make custody recommendations, and their role as an officer of the court permits them to advocate for their client's interests. The court declines to reevaluate the established use of guardians ad litem in custody proceedings.
Modification of custody was justified based on the evidence presented. While the mother argued against the admissibility of testimony concerning Parental Alienation Syndrome (PAS) under the Frye “general acceptance” test, the court found that this test was not applicable to Dr. Kirkland’s custody evaluation and testimony. Dr. Kirkland did not diagnose PAS; instead, his evaluation identified the mother's behaviors as alienating the children from their father, which warranted a custody change. The court concluded that the father demonstrated a change in circumstances that served the children's best interests, affirming the custody modification. The use of a guardian ad litem was deemed permissible under Alabama law, and thus the trial court's judgment was upheld. The ruling also clarified that the father’s time with his children, referred to as “visitation” for consistency, was actually joint custody. Additionally, while there were allegations of abuse against the paternal grandparents, the court did not find it necessary to evaluate these claims in relation to the custody decision, focusing instead on the mother’s alienating behavior.
