IN THE SUPREME COURT OF OHIO
VICKI M. O’MALLEY
Appellant,
v.
PATRICK J. O’MALLEY
Appellee.
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Case No. ______________
On Appeal from the Cuyahoga County Court
of Appeals, Eighth Appellate District
Court of Appeals Case No. CA-12-098708
MEMORANDUM IN SUPPORT OF JURISDICTION OF AMICI CURIAE
ACTION OHIO COALITION FOR BATTERED WOMEN,
OHIO NOW EDUCATION AND LEGAL FUND,
PROFESSOR MIKE BRIGNER, JD, AND
DOMESTIC VIOLENCE LEGAL EMPOWERMENT AND APPEALS PROJECT
IN SUPPORT OF APPELLANT
January 10, 2014
Brian Schick
1516 Sunview Road
Lyndhurst, Ohio 44077
brilliantchic@operamail.com
Attorney for Appellant
Georgia E. Yanchar (#0071458)
CALFEE, HALTER & GRISWOLD LLP
The Calfee Building
1405 East Sixth Street
Cleveland, OH 44114
Margaret Metzinger
CLIMACO, WILCOX, THURMAN & DARAY,
L.L.C.
55 Public Square, Suite 1950
Cleveland, OH 44113
mmmetz@climacolaw.com
Attorney for Appellee
Steven Bernstein (pro hac vice pending)
GOODWIN PROCTER LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Adam Thurman
22021 Brookpark Road, Suite 110
Cleveland, OH 44126
adam@adamthurmanlaw.com
Attorney for Guardian ad Litem Sandra
McPherson
Hong-An Vu (pro hac vice pending)
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, CA 94111
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................. ii
THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
AND CONCERNS A MATTER OF GREAT PUBLIC OR GENERAL
INTEREST .........................................................................................................................1
STATEMENT OF THE CASE AND FACTS .............................................................................3
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW................................................5
Proposition of Law: Denial of a person, under the age of majority, the right to
counsel and to participate actively in trial proceedings to which they are a party, is
a violation of that person’s rights to equal protection and due process as
guaranteed by the Fourteenth Amendment to the U.S. Constitution, Section 2,
Article I, Ohio Constitution and Section 16, Article I, Ohio Constitution. .........................5
II.
THE USE OF ALIENATION LABELING IN CUSTODY LITIGATION TO
DENY A PARENT’S ABUSE HAS BEEN WIDELY REJECTED AS
SCIENTIFICALLY INVALID. ........................................................................................6
A.
PAS Has Been Scientifically Discredited and Found Inadmissible.............6
B.
“Parental Alienation” – Without the Syndrome – Is Also
Scientifically Invalid When Used to Defeat Abuse Claims .................................................8
III.
Parental Alienation Theory Permeated This Proceeding and Drove the Trial
Court’s Findings and Decision ........................................................................................10
IV.
The Trial Court’s Adoption of Parental Alienation Harmed the children ................14
CONCLUSION ............................................................................................................................17
V.
CERTIFICATE OF SERVICE ......................................................................................19
ii
THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND
CONCERNS A MATTER OF GREAT PUBLIC OR GENERAL INTEREST
Family courts in Ohio and around the country are increasingly being criticized for
depriving children in custody disputes of their right to be heard and to be safe, by misapplying
the controversial label of “parental alienation” (“PA”) or “parental alienation syndrome,”
(“PAS”) to presumptively discredit children’s reports of paternal abuse. Although the scientific
community has roundly rejected PAS as a viable theory and the National Council of Juvenile and
Family Court Judges has repeatedly cautioned against the misuse of PA to deny abuse allegations
in custody litigation, abusive parents continue to use, and courts continue to apply, alienation
labels to reject evidence of abuse and remove children from their mothers. Here, the trial court
abused its discretion by using the paternally-oriented theory of alienation to the profound
detriment of the parties’ children:

In the Domestic Relations matter,1 the court violated the Children’s2 Fourteenth
Amendment and Ohio Constitutional right to due process by refusing to allow the
Children their own counsel who would advocate for their wishes, as opposed to
the Guardian Ad Litem (“GAL”), who did not represent their wishes;

In the Juvenile matter, where the Children did have counsel, the court violated
their due process rights by denying their lawyer access to them during the legal
proceedings, thereby depriving them of their right to participate in the
proceedings;

The court shockingly treated as legally irrelevant Mr. O’Malley’s conviction for
The “Domestic Relations matter” refers to O’Malley v. O’Malley, 8th Dist. No. 98708, 2013
Ohio App. LEXIS 5451 (Nov. 27, 2013) and the “Juvenile matter” refers to O’Malley v.
O’Malley, 8th Dist. Nos. 99334 & 99335, 2013 Ohio App. LEXIS 5450 (Nov. 27, 2013).
2
The “Children” refers to Patrick and Caitlin O’Malley.
1
possession of obscene photographs and text stories of sexual relations between
children and adults and animals3; and

The court disregarded the evidence of Mr. O’Malley’s child abuse, the Children’s
terror toward their father, and at least Patrick’s psychological trauma from
exposure to Mr. O’Malley.
The remarkable result of these errors was that Mr. O’Malley—a convicted felon federally
prosecuted for importation of obscenity and an accused abuser whose children undisputedly
feared being with him—received sole custody of the Children. By contrast, Ms. O’Malley, the
children’s sole past caretaker, who has no record of any kind of sexual deviance, criminal
behavior, or harm to children or anyone, has been deprived of all legal right to see her children
for over seven months, and has been permitted by their father to see them for only seventeen
hours over the last sixteen months.4 The Eighth Appellate District improvidently upheld the trial
court’s decision.
Amici are organizations with expertise in domestic violence, child abuse, and custody
litigation. 5 They and their client populations have an interest in protecting custody litigants’ and
children’s constitutional rights and preventing the misuse of alienation theory as a weapon to
silence children’s complaints of abuse in custody battles. Should the Court decline review, this
3
[mention about federal prosecutor?] can we mention the fed prosecutor’s strong petition or warning of his
dangerousness to children?
The trial order originally prohibited visitation for Ms. O’Malley and placed the decision on
when to permit Ms. O’Malley visitation with a therapist to be chosen by Mr. O’Malley. (See
T.D. 559, 80-81.) It appears that this delegation was unconstitutional [CITE cases in family law
textbooks – I will look] as well as operating as a functional termination of Ms. O’Malley’s
parental rights.
5
Action Ohio Coalition for Battered Women, Ohio Now Education and Legal fund, Professor
Mike Brigner, J.D. and Domestic Violence Legal Empowerment and Appeals Project
2
4
case – which has been widely reported - will give a green light to custody and juvenile courts to
ignore the rights of children to participate in matters that concern them, while silencing
substantial parental abuse concerns and placing children at risk.
STATEMENT OF THE CASE AND FACTS
Amici adopt Appellant’s statement of facts and statement of the case, and provide the
following summary of the key, undisputed facts:

The trial court found that Ms. O’Malley ha a very strong bond with the Children. (See
T.D. 559, 2.)

Ms. O’Malley has no convictions of any kind and no allegations of violence or abuse
towards the Children or anyone else have ever been asserted against her.

Mr. O’Malley has a felony conviction for obscenity for which he served over a year in
federal prison. This conviction was based on his possession of extensive obscene
materials demonstrating his interest in child molestation and bestiality. United States
Sentencing Memorandum at 3, United States v. O’Malley, No. 1:08 CR 23 (N.D. Ohio
2008).

The Children have told several medical professionals and testified about incidents of Mr.
O’Malley’s abusive behavior towards them and Ms. O’Malley that included
o Mr. O’Malley attempting to run over the children with his car (See T.D. 559, 7;
Chldn. Intv. Tr. Vol. II, 9:6-11-11:6)
o
Mr. O’Malley hitting [how old?] P. O’Malley and locking him in a bathroom (see
Chldn. Intv. Tr. Vol. I, 7:13-8:22; Chldn. Intv. Tr. Vol. II, 12:5-10);
o
Mr. O’Malley hitting P. O’Malley causing him to have a concussion (see T.D.
559, at 8, 31; Chldn. Intv. Tr. Vol. 1, 41:2-12; 26:25-27:6; 29:6-7);
o P. O’Malley returning homefrom a visit with his father with sore ribs and a
strained wrist, which he reported were caused by Mr. O’Malley using a martial
arts move against him. (T.D. 559, 7); and
3
o Mr. O’Malley [harming] [needs more concreteness or a quote] Ms. O’Malley
(T.D. 559, 38) (quoting letter from therapist submitted as evidence).

The Children’s reports of domestic abuse were validated by _____doctors and other
health professionals. (See, e.g., T.D. 559, 8 (trial court finding that a doctor had
diagnosed Patrick with a concussion after assault by his father)).

Patrick has been diagnosed by at least two experts and treated for posttraumatic stress
disorder relating to his experiences with father. (T.D. 559, 42 (quoting a report of Dr.
Kristine Rork, Ph.D.); id. at 53 (referring to testimony of Dr. Joyana Silberg).)

The Children have continually expressed their great fear of their father and anxiety about
having to spend time with him to several medical professionals and others. (E.g., T.D.
477, 13, 19-20, 28; T.D. 559, 36-37; T.D. 513: 11-22-12:21.)

In spite of her knowledge of the children’s allegations of abuse, the GAL “presumed”
that no abuse existed, and instead labeled the mother as “alienating,” based in part on the
Children’s misbehavior towards their father. (T.D. 559, 28.)

Mr. O’Malley communicated to the Children’s therapists and testified that the alleged
abuse did not exist and that the allegations of abuse were merely part of Ms. O’Malley’s
campaign to alienate him from the Children. (See e.g. T.D. 559, 14-20, 40.)
Adopting and endorsing Mr. O’Malley’s claim of “parental alienation,” the Court decided
to ignore Mr. O’Malley’s obscenity conviction as “not relevant” to the children’s best interests,
and disregarded the evidence of abuse proffered by Ms. O’Malley and the Children. The Court
simply treated the abuse allegations as concoctions by the mother and presumptively
brainwashed children to use against Mr. O’Malley. (E.g., T.D. 559, 2, 74-75). It did so in part
because the children behaved badly to their father and to various professionals who were
4
employed to ensure the children continued to have a relationship with their father. (See T.D.
559, 31, 35, 38.) This conclusory presumption that the children’s bad behavior was the product
of “alienation” rather than their own hostility to a father who terrorized them, resulted in the
complete silencing of the children’s voices and urgent requests regarding custody, while also
denying them the right to representation of counsel, even though the GAL’s position was the
precise opposite of those wishes.
The trial court then employed a remedy which has been labeled “draconian” and “a cure
worse than the disease” even by leading parental alienation scholars. This remedy - – granting
the hated parent custody while prohibiting all contact with the parent to whom the children are
bonded – intrinsically imposes a psychically traumatic loss on children, even apart from the
potential risks in their father’s custody. The trial court’s decision disregarding the Children’s
position and terror of their father, granting Mr. O’Malley sole custody, and terminating all legal
custodial rights of Mrs. O’Malley, abused its discretion and should be reversed.
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law: Denial of a person, under the age of majority, the right to
counsel and to participate actively in trial proceedings to which they are a party, is a
violation of that person’s rights to equal protection and due process as guaranteed
by the Fourteenth Amendment to the U.S. Constitution, Section 2, Article I, Ohio
Constitution and Section 16, Article I, Ohio Constitution.
In this case, parental alienation labeling was used to silence the children’s voices, wishes,
and reports of abuse and to subject them to the very parent of whom they were terrified. PAS is
scientifically invalid, unfounded, and has been found inadmissible. Parental alienation (“PA”),
while not a universally invalid concept, has been recognized to be invalid when it is used, as it
was here, to deny abuse. The trial court’s decision in this case was driven by parental alienation
labeling, which obscured the validity of the abuse reports, the children’s genuine terror, and led
the trial court to deny the Children counsel and the ability to actively participate in proceedings
5
that governed their lives. The outcome of the proceeding, on its face,defies logic – giving a felon
convicted of possession of obscenities involving children custody and depriving a mother with
no criminal record and a strong bond with her children of all contact with them. Amici urge this
Court to address this misuse of false pseudo-science which too easily subjects children to
continuing abuse.
I.
THE USE OF ALIENATION LABELING IN CUSTODY LITIGATION TO DENY
A PARENT’S ABUSE HAS BEEN WIDELY REJECTED AS SCIENTIFICALLY
INVALID.
A.
PAS Has Been Scientifically Discredited and Found Inadmissible.
PAS was developed in the early 1980s through the self-published articles of a psychiatrist
who specialized in treating divorcing families and who believed – without conducting any
studies and relying only on his interpretation of his personal clinical experience – that vengeful
mothers employed child abuse allegations as a weapon against ex-husbands to ensure custody to
themselves. See Richard A. Gardner, THE PARENTAL ALIENATION SYNDROME: A GUIDE FOR
MENTAL HEALTH AND LEGAL PROFESSIONALS (Cresskill, N.J.: Creative Therapeutics, 1992).
This theory presumed that children’s reports of child abuse are illegitimate and due solely to the
mother’s pernicious influence and desire to exclude the father from the children’s life. Jennifer
Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law and Policy,
26 Child. Legal Rts. J. 1-61, 9 (2006) (Gardner’s diagnostic criteria ‘‘tautologically presume
pathology, parental contribution, and lack of justification” for child’s hostility).
PAS has been overwhelmingly rejected by the scientific community, which has found
that ‘‘the scientific status of PAS is, to be blunt, nil.” See Robert E. Emery et al., A Critical
Assessment Of Child Custody Evaluations: Limited Science And A Flawed System, 6 Psych. Sci.
Pub. Int. 1-29, July 2005, at p. 10. “PAS as a scientific theory has been excoriated by legitimate
6
researchers across the nation. Judged solely on his merits, Dr. Gardner should be a rather
pathetic footnote or an example of poor scientific standards.” Carol Bruch, Parental Alienation
Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527552 (2001) (quoting Paul Fink, past President of American Psychiatric Association) (citation
omitted). PAS’ Sexual Abuse Legitimacy Scale has been called “probably the most unscientific
piece of garbage I’ve seen in the field in all my time. To base social policy on something as
flimsy as this is exceedingly dangerous.” Id. at 539n.46 (quoting expert Professor Jon Conte)
(citation omitted).
Echoing the scientific consensus, a leading judicial body, the National Council of
Juvenile and Family Court Judges (NCJFCJ) has published Guidelines for family courts, which
states:
The theory positing the existence of ‘PAS’ has been discredited by the scientific
community . . . Any testimony that a party to a custody case suffers from the
syndrome or ‘parental alienation’ should therefore be ruled inadmissible ...
Clare Dalton et al., Nat’l Council of Juvenile & Fam. Ct. Judges & State Justice Inst.,
Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s
Guide, 24 (2004 rev. 2006). Numerous other legal experts have joined the chorus. The American
Prosecutors’ Research Institute states that:
[A]lthough PAS may be hailed as a ‘syndrome’ ... in fact it is the product of
anecdotal evidence gathered from Dr. Gardner’s own practice .... PAS is based
primarily upon two notions, neither of which has a foundation in empirical
research... PAS is an unproven theory that can threaten the integrity of the criminal
justice system and the safety of abused children.
Erika Ragland & Hope Field, Parental Alienation Syndrome: What Professionals Need to Know,
16:6 Nat’l Ctr. for Prosecution of Child Abuse (NCPCA) Update Newsletter, 2003, p. 1.
[could condense and just move to string cite if need to save space] It should be no
7
surprise, then, that the few appellate courts that have directly addressed the scientific validity and
admissibility of PAS have rejected it. Snyder v. Cedar, 2006 Conn. Super. LEXIS 520 (2006)
(PAS lacks “any scientific basis and has not been subjected to “credible scientific studies” and
“lacks any methodological underpinning” and is thus “incapable of helping the fact finder
determine a fact in dispute”); People v. Fortin, 706 N.Y.S.2d 611 (N.Y. Co. Ct. 2000) (rejecting
PAS defense to child sexual abuse prosecution after Frye hearing on admissibility on grounds it
is not generally accepted in the scientific community); NK v. MK, 17 Misc.3d 1123 (A), 2007
WL 3244980 (N.Y. Sup. 2007) (there is no “generally accepted diagnostic determination or
syndrome known as ‘parental alienation syndrome ... [courts must critically examine expert
opinions] especially where there are allegations of domestic violence which must be considered
in the context of a custody dispute”‘). This Court should do the same.
B.
“Parental Alienation” – Without the Syndrome – Is Also Scientifically
Invalid When Used to Defeat Abuse Claims
Amici acknowledge that the concept of alienating behavior by a parent who denigrates the
other parent to the children is real. But such behavior does not support the ideas associated with
PAS and “parental alienation” -- that derogatory talk by a parent can result in children’s false
abuse allegations, and pathological fear and hostility toward their father. On the contrary, the
research literature makes clear that, while many divorcing parents engage in such alienating
conduct, it has relatively little impact on children, and even less to do with abuse allegations.
First, the leading alienation researchers have found that, while alienating behaviors by
both parents are the norm at divorce, alienated children are quite rare. Janet R. Johnston & Joan
B. Kelly, Commentary on Walker, Brantley, and Rigsbee’s (2004) ‘A Critical Analysis of
Parental Alienation Syndrome and Its Admissibility in the Family Court,’ 1:4 J. of Child
Custody, 77-89, 81 (2004) (despite universally alienating behaviors by parents in study; only
8
20% of children were hostile to one parent and only 6% were “extremely negative”).
Second, and more importantly, the research has consistently found that children’s
“alienation” always stems at least in part from the disfavored parent’s own conduct, including
neglect, abuse, or lack of warm, involved parenting. Janet R. Johnston et al., Is It Alienating
Parenting, Role Reversal or Child Abuse? A Study of Children’s Rejection of a Parent in Child
Custody Disputes, 5 J. Child Custody, 191-218, 207-08 (2005). Thus, the research (as well as
common sense) compels the conclusion that, whether or not one parent engages in alienating
behavior, the mere label of alienation does not eliminate the necessity to assess what behaviors
by the disfavored parent have contributed to a child’s alienation.
Perhaps most importantly, there is no scientific basis for the idea that one parent’s
alienating or derogatory comments or conduct toward the other parent can cause children to
express fear, rage or distress toward the other parent. On the contrary, children’s fear, post
traumatic stress symptoms and regression are supportive of claims of abuse. Kathleen C. Faller,
MALTREATMENT IN EARLY CHILDHOOD: TOOLS FOR RESEARCH-BASED INTERVENTION (NY
1999); Sue Righthand et al., CHILD MALTREATMENT RISK ASSESSMENTS: AN EVALUATION
GUIDE (NY 2003). In short, the empirical data demonstrates that the dominant use of alienation
theory by evaluators - to refute abuse allegations and to ignore children’s expressions of distress
- is scientifically invalid and unsupportable.
Accordingly, leading mental health and legal professionals have concluded that parental
alienation is “an inappropriate psychological label” that is too often used to discredit women and
children alleging abuse in custody cases. Am. Psychological Ass’n., VIOLENCE AND THE
FAMILY: REPORT OF THE APA PRESIDENTIAL TASK FORCE ON VIOLENCE AND THE FAMILY 40,
100 ( 1996) (concluding that abusive fathers commonly use arguments of alienation to blame
9
mothers for why their children reasonably fear and hate them). Indeed, the NCJFCJ, in words
that could have been written for this case, warns:
In contested custody cases, children may indeed express fear of, be concerned about,
have distaste for, or be angry at one of their parents. Unfortunately, an all too
common practice in such cases is for evaluators to diagnose children who exhibit a
very strong bond and alignment with one parent and, simultaneously, a strong
rejection of the other parent, as suffering from ‘parental alienation syndrome’ or
‘PAS”‘ .... The discredited ‘diagnosis’ of ‘PAS’ (or allegation of ‘parental
alienation’), quite apart from its scientific invalidity, inappropriately asks the court to
assume that the children’s behaviors and attitudes toward the parent who claims to be
‘alienated’ have no grounding in reality. It also diverts attention away from the
behaviors of the abusive parent, who may have directly influenced the children’s
responses by acting in violent, disrespectful, intimidating, humiliating and/or
discrediting ways toward the children themselves, or the children’s other parent.
Dalton et al., supra at 24. The trial court here made precisely this mistake in relying on an
alienation label to disregard the children’s repeated and credible reports of abuse. The Eighth
Appellate district compounded the error and this Court’s attention is now required.
II.
PARENTAL ALIENATION THEORY PERMEATED THIS PROCEEDING AND
DROVE THE TRIAL COURT’S FINDINGS AND DECISION
Despite the scientific inaccuracy of PAS, the misuse of the related “parental alienation”
theory, and the advice of other judges to disregard these theories, the trial court permitted PAS
and “parental alienation” to affect its interpretation of the evidence and ultimately its custody
decision. The trial court found that Ms. O’Malley “started a deceptive campaign to recast father
in the eyes of his children” (T.D. 559, 74), bent “the children’s will to conform to her own
attitudes, feelings and beliefs and agenda.”6 (T.D.559, 2), and “alienat[ed] the children’s
The court below acknowledged that “the children have a very strong bond with Mother.” (T.D.
559, 2.). It then twisted this positive factor to support Mr. O’Malley’s alienation theory.
Contrary to the trial court’s interpretation, the Children’s alignment with Ms. O’Malley is not a
sign of alienation. Rather, where one parent is frightening, a closer, deeper bond with the
competent, safe parent is a natural response to the dynamic of fear and intimidation in the home.
Bancroft & Silverman, The Batterer as Parent 127 (1st ed. 2002).
10
6
affections from Father” (T.D. 559, 75). The court jumped to these conclusions without ever
directly considering [?]the children’s corroborated reports of violence and fear of their father.
Even leading scholars of PA have emphasized that when young children are severely
alienated from a parent, it is always due in part to the alienated parent’s own behavior. Johnston
et al., Is it Alienating Parenting, Role Reversal, or Child Abuse? A Study of Children’s Rejection
of a Parent in Child Custody Disputes, 5 J. Emotional Abuse 191, 206 (2005). In this case, Ms.
O’Malley presented evidence that the Children had been physically abused by Mr. O’Malley,
abuse that would reasonably result in their hostility towards their father. Indeed, several
physicians and psychologists who had interacted with the children close to the time of the
alleged abuse found their reports credible and not coached. (T.D. 559, 32 (Dr. Weinberger “did
not think the children exaggerated their problems”); id. at 35 (therapist at Women Safe shelter
did not think Ms. O’Malley was coaching the children about their negative experiences with their
father); id. (second therapist at Women Safe also found lack of coaching because the children
were “spontaneous and expressive”)).
Second, having jumped over the evidence of child abuse and child trauma, and thereby
silencing the Children’s voices in the litigation, the trial court violated the Children’s right to due
process by refusing to appoint them counsel separate from counsel for the GAL. Instead, the
Court found that the Children’s interests were sufficiently protected by the GAL, even though
her position regarding custody was in direct opposition to the Children’s express wishes. Amici
wish to emphasize that it is undisputed that the Children have (at the very least) significant fear
of their father and anxiety about spending time with him. (E.g., T.D. 559, 7, 33, 36-38; T.D. 477
13, 19-20, 28.) It is also undisputed that the children have accused their father of [physically
assaulting and terrorizing them] [abuse]. (See e.g., T.D. 559, 36-38; Chldn. Intv. Tr. vol I, 7:1311
8:22, 26:25-27, 29:6-8, 41:2-12); Chldn. Intv. Tr. vol II, 7:13-8:22, 12:5-10.) Yet the GAL
“work[ed] from the premise that domestic violence by Father against the children did not
happen” (T.D. 559, 28) to conclude that Mr. O’Malley should have sole custody of the Children
(see T.D. 559, 23). How the GAL could possibly be protecting the Children’s interests when she
assumed there was no abuse, and totally disregarded their fears, reports, and the medical
evidence and expert opinions about abuse, is incomprehensible.
7
The trial court’s decision
regarding representation was an abuse of discretion and should be reversed.8
Third, the trial court’s viewing the Children’s alleged misbehavior with their father and
reunification professionals through the lens of alienation theory led it to miss the obvious: that
the Children’s misconduct was likely an emotional acting out in reaction to their father’s own
aggression against them and the reunification professionals’ refusal to take their fears seriously.
All of the misconduct identified by the Court occurred after the Children claim to have had
abusive interactions with Mr. O’Malley. (See T.D. 559, 31, 35, 38 (allegations of abuse in 2008
and 2009); id. at 41, 59-63 (statements about misbehavior from reunification therapist and Mr.
O’Malley’s witnesses).) The court also failed to recognize that the Children’s misbehavior was
directed towards individuals and professionals working towards reunification of the Children
with their father, a result that they did not want and actively feared. (See id.) Such hostility
towards Mr. O’Malley and those perceived to be aligned with him is a natural reaction to the
This is not the first time that the GAL’s opinion has been harmful to the Children. The GAL
supported the Children visiting their father in prison (see T.D. 559, 29), which Dr. Wiggers, the
Children’s therapist from June-November 2009, found to be “[i]n [her] professional opinion”
“not be in Patrick’s best interest at this time.” (see T.D. 559, 38). [COULD CUT THIS]
7
8
In the Juvenile Matter, the trial court appointed the Children their own counsel, but, as stated in
Ms. O’Malleys jurisdictional brief, their counsel was unable to talk to them during the
proceedings and thus could not properly advocate for their position.
12
behavior of the alienated parent, not the product of brainwashing or coaching by their preferred
parent. Johnston et al, supra, at 206. [According to the accounts of other witnesses and
professionals not involved in reunification, the Children were generally well behaved. (See
T.D.559, 55-57, 76 (trial court acknowledging that the children had no behavior issues at home,
in school, and in the community).)]
Fourth, the trial court allowed alienation theory to distort the best interest factors, thus,
among other things, treating the “harm” of not having a relationship with Mr. O’Malley as the
trump which implicitly outweighed the risks presented by the corroborated evidence of his child
abuse and predilection for sexual arousal from child pornography, revealed by his conviction for
possession of obscene materials involving children with adults and animals.9 Amici posit that
given his history of violence and sexual crime, the potential harm from Mr. O’Malley’s
continued unsupervised access to the Children is recognizably greater than the speculative harm
of their lack of active involvement with him. See Meier, J. “The Misuse of Parental Alienation
Syndrome in Custody Suits,” VIOLENCE AGAINST WOMEN IN FAMILIES AND RELATIONSHIPS
(Evan Stark and Eve Buzawa, eds., 2009) at 157 (prognostications of long term harm to
“alienated” children are “merely speculative”) (citing to 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 (2005)).
Finally, and most disturbingly, the court drew on the most destructive tenets of PAS
The trial court’s finding that Mr. O’Malley’s conviction was not a conviction involving harm to
children relevant to the child’s best interest, is not reconcilable with objective common sense,
and is likely [clear error/abuse of discretion?]. (See T.D. 559, 78). Other courts have found that
possession of child pornography, by virtue of creating a market place for such material,
intrinsically causes harm to children. See e.g., United States v. Davis, 204 F.3d 1064 (11th Cir.
1999) (“the harm resulting from possession of child pornography occurs when one sustains a
market for such pictures”); United States v. Norris, 159 F.3d 926 (5th Cir. 1998).
13
9
when it took the extreme measure of forcing the Children to live with Mr. O’Malley, while
derpving tyhem of all contact with their mother, until they had [quote opinion?] [stopped
complaining about their father.] Even the leading parental alienation experts have criticized and
renounced the use of custody switches to “cure” PAS. See Meier, J. A Historical Perspective on
Parental Alienation Syndrome and Parental Alienation, 6 J. Child Custody 232, 246 (2009)
(citing to Johnston, 2005, supra, 757).
In sum, the trial court’s formulaic application of parental alienation theory, contrary to
the recommendations of the scientific community and leading legal bodies silenced the
children’s reports of harm and fear, and denied them [their right to??] access to the courts to be
heard. This ruling abused the court’s discretion and should be reversed.
III.
THE TRIAL COURT’S ADOPTION OF PARENTAL ALIENATION HARMED
THE CHILDREN
The trial court’ improper adoption of the theory of parental alienation, disregard of the
Children’s wishes, and its award of custody to Mr. O’Malley endangered the physical and mental
health of the Children. After the final custody order was issued, both children were taken to a
local hospital after threatening suicide on a 9-1-1 call. 10 Patrick stated to the 9-1-1 dispatcher,
“My name is (bleep) O’Malley. And if you make me go with my dad I’m going to kill myself.”
Upon arriving at the house, the police learned that the Children had locked themselves in a room
upstairs and were holding knives to their throats. The Children were removed and taken to
Rainbow Babies & Children’s Hospital where they were admitted for the next ten days. These
10
The Court may take judicial notice of these facts. The facts were reported by the news media
and based on 9-1-1 transcripts and police and hospital reports, and are not subject to reasonable
dispute. See Big-name Cleveland family embroiled in custody battle,
http://www.19actionnews.com/story/19665358/tonight-at-11-big-name-cleveland-familyembroiled-in-custody-battle (accessed Jan. 2, 2014).
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were desperate acts done by desperately terrified children.11
The psychic trauma expressed and revealed by the Children’s desperate acts in response
to the court’s order is indicative of precisely the kind of harm which has been documented by the
scientific community as causing lifelong severe harmful effects. The Adverse Childhood
Experiences (“ACES”) Study documents how severe psychic stress and chronic childhood
trauma releases hormones that can physically damage a child’s developing brain. See Stevens,
The Adverse Childhood Experiences Study – the Largest Public Health Study You Never Heard
Of, Part Three, The Huffington Post (Oct. 8, 2012, 9:33 AM),
http://www.huffingtonpost.com/jane-ellen-stevens/the-adverse-childhoodexp_7_b_1944199.html (accessed Jan 2, 2014) [hereinafter The ACEs Study]. The longterm
impact of this damage has been seen in the powerful relationship between ACEs – including
sexual and physical abuse, and witnessing domestic violence and other forms of household
dysfunction – and the risk of attempted suicide throughout life. See Dube et al., Childhood
Abuse, Household Dysfunction, and the Risk of Attempted Suicide Throughout the Life Span, 286
J. Am. Med. Ass’n 3089 (2001). The risk of attempting suicide increased from between 200%
and 500% if a child was exposed to emotional abuse, physical abuse, sexual abuse, or a battered
mother. See id. The same studies demonstrate that ACEs trigger “flight, fright or freeze”
hormones that become “toxic” when “turned on” for too long. The ACEs Study. This is
precisely what happens [WHAT?] when children are exposed to regular fear of physical and
emotional abuse at home. See id.
The Children’s response is not unusual where parental alienation has been used to disregard
allegations of abuse. Children have become suicidal, and some have died in response to an order
to live with the father they said abused them. See Bruch, supra 550 n. 8 (12 year-old boy hung
himself; 8 year-old girl became suicidal when institutionalized and cut off from her mother).
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11
In this case, the known facts about the Children’s feelings and PTSD make it an
unavoidable conclusion that they have suffered the kind of psychic traumatic stress (i.e., adverse
childhood experiences) which damages brain development and future well-being , by being
forced to live with the father who terrorizes them. . This will likely only increase over time so
long as they are forced to remain in his custody. Notably, several of the Children’s therapists
found that their contact with their father “significantly exacerbated PTSD symptoms . . . [and]
are interfering more with [Patrick’s] ability to perform everyday activities (e.g., sleep difficulties,
daytime fatigue, academic performance) and his overall function.” (T.D. 559, 42 (quoting
psychologist’s report recommending that “it is in Patrick’s best interest that visitation with Dad
be decreased or eliminated”).)
In addition to placing the Children with their father full-time, the court forbade the
children even from communicating with their mother, the parent upon whom they depended, for
an indeterminate length of time. The children then went seven months without seeing their
mother, and had only seventeen hours of supervised visits over a sixteen month period. Taking a
parent away from a child [as a form of punishment] is cruel and inevitably traumatic: the harm to
children when they are ripped away from a parent they love and forced into the custody of a
parent they fear or hate has been recognized by leading alienation experts Johnston et al. to be a
“cure worse than the disease.” Johnston, 2005, supra at 757. The trauma of being ripped from a
parent upon whom a child depends inflicts serious longlasting harm. McLaughlin et al.,
Childhood Adversities and First Onset of Psychiatric Disorders in a National Sample of US
Adolescents, 69 Archives Gen. Psychiatry 1151 (2012) (finding that separation from a parent
during childhood is linked to increases in behavioral and psychiatric disorders).
[could cut or shorten if necessary] Amici wish to emphasize the dangers to children when
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courts disregard evidence of physical and emotional abuse and improperly rely on parental
alienation to award custody: As long as abuse has not been ruled out, and children’s feelings
could be explained by actual experiences with the disliked parent, courts which use alienation as
the court did here, are inevitably taking significant chances with children’s safety. [CITE MY
DECISION TREE OR VAWNET ARTICLE?] Too often what may be perceived as alienation
may in fact reflect only a protective parent’s efforts to provide emotional support for distressed
children reporting distressing things, and to keep the children physically and emotionally safe.
See Hanke v. Hanke, 94 Md.App. 65, 72, 615 A.2d, 1205 (1992) (holding that a court’s primary
responsibility is to protect the minor child, and not to punish [the mother] by removing the child
from her custody to punish her non-cooperation with visitation). If children’s extreme hostility
and acting out against a parent become grounds for custody to that parent, as occurred with this
case, then the more abusive and hateful a parent is, the more likely that parent can get custody.
That is, a parent who causes his children to hate him and to act out their negative feelings, can
simply cry “alienation” and thereby win full custody. Whether or not that is what happened here,
the trial court’s analysis makes it all too possible. This Court should reverse the ruling and
instruct future courts that evidence of abuse and harm to children cannot simply be wiped away
by tacking an alienation label on the opposing party.
CONCLUSION
The Court should accept jurisdiction of this Appeal.
Respectfully submitted,
______________________________
Georgia E. Yanchar (#0071458)
CALFEE, HALTER & GRISWOLD LLP
17
The Calfee Building
1405 East Sixth Street
Cleveland, OH 44114
Steven Bernstein (pro hac vice pending)
GOODWIN PROCTER LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Hong-An Vu (pro hac vice pending)
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, CA 94111
Attorneys for Amici Curiae
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IV.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Amici Curiae was served
by electronic mail on this 10th day of January 2014 to the following:
Brian Schick
1516 Sunview Road
Lyndhurst, Ohio 44077
brilliantchic@operamail.com
Attorney for Appellant
Margaret Metzinger
Climaco, Wilcox, Thurman & Daray, L.L.C.
55 Public Square, Suite 1950
Cleveland, OH 44113
mmmetz@climacolaw.com
Attorney for Appellee
Adam Thurman
22021 Brookpark Road, Suite 110
Cleveland, OH 44126
adam@adamthurmanlaw.com
Attorney for Guardian ad Litem Sandra McPherson
______________________________
Georgia E. Yanchar (#0071458)
CALFEE, HALTER & GRISWOLD LLP
The Calfee Building
1405 East Sixth Street
Cleveland, OH 44114
Attorney for Amici Curiae
19