Demaj v. Sakaj

Filing 158

RULING: denying as moot, as "parental alienation" was not, and will not be, permitted under the August 29 Ruling 155 Motion in Limine. Signed by Judge Joan G. Margolis on 9/4/2012. (Rodko, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

---------------------------------------------X
:
ESHEREF DEMAJ,
:
Petitioner
:
:
V.
:
:
FRIDA SAKAJ,
:
Respondent
:
:
---------------------------------------------X

Civ. No. 3:09 CV 255 (JGM)

DATE: SEPTEMBER 4, 2012

RULING ON RESPONDENT'S MOTION IN LIMINE TO EXCLUDE
EVIDENCE RELATING TO "PARENTAL ALIENATION" (Dkt. #155)
The convoluted procedural history behind this highly acrimonious litigation is set forth
in considerable detail in this Magistrate Judge's electronic endorsement, filed August 22,
2012 (Dkt. #141) and Ruling on Petitioner's Letter, Dated 8/28/12, With Respect to Dr.
Benjamin Garber and On Respondent's Motion in Limine to Exclude Proposed Testimony of
Dr. Garber, filed August 29, 2012 ["August 29 Ruling"](Dkt. #152), familiarity with which is
presumed.
In this pending motion, Respondent moves to exclude any testimony or other
evidence relating to "parental alienation syndrome," in that "[d]isclosures by . . . Petitioner
as to the testimony expected from Dr. Benjamin Garber indicate that he will testify about the
concept of parental alienation syndrome." (Dkt. #155, at 1).

Respondent contends that

within the four paragraphs mentioned by the Magistrate Judge in the August 29 Ruling "is
the introduction [of] parental alienation syndrome." (Dkt. #155, Brief at 2).
Nothing in the August 29 Ruling has permitted, or will permit, Petitioner to introduce
any testimony regarding "parental alienation syndrome." The terminology does not appear,
at all, in Dr. Mantell's thirty-seven page expert report, dated March 22, 2010. "Parental

alienation" is discussed fleetingly in Dr. Garber's eighteen-page expert report, dated February
1, 2012, but not at all in the August 29 Ruling. The August 29 Ruling referred to only four
paragraphs in Dr. Garber's report that addressed potential coaching, or scripting, by
Respondents. (At 4).

Among those paragraphs was ¶ 5(e) of Section IV.B. on page 7,

which criticized Dr. Mantell for his “[f]ailure to evaluate competing hypotheses, e.g., that
[Respondent] had scripted or otherwise prompted the children to accuse their father of
abuse, as discussed below.” Within Section IV.F., on pages 16-17, entitled "Consideration
of Competing Hypotheses," Dr. Garber addressed in ¶ 1 the "possibility" that the children's
"presentations were prompted, scripted, or otherwise manipulated by others, including and
especially their mother[,]" addressed in ¶ 2 the issue of parental alienation, and addressed
in ¶ 3 the degree of alienation. (See Dkt. #151, at 2; Dkt. #155, Brief, at 2). However, the
August 29 Ruling did not include parental alienation in "the very tailored and limited issue"
of potential coaching by Respondent. (At 6-7).
In a role reversal, during his testimony on February 16, 2012, Respondent's counsel
attempted to question Dr. Mantell about parental alienation, to which Petitioner's counsel
objected:
Q. Could you tell us what parental alienation is and whether it's
relevant to this family?
MR. REGAN: Your Honor, I'm going to object to the question as being
in anticipation of testimony not yet in the record.
Your Honor will recall we had a lengthy and spirited telephone
conference last night on the subject of Dr. Mantell essentially seeking to
rehab his testimony before it's ever been subject to cross examination or to
any expert by [Petitioner].
The words parental alienation are missing from the report, which is
Exhibit A. Never do those words appear [in] Exhibit A. And it is inappropriate
at this time to ask Dr. Mantell to opine about issues which he did not address
2

in his report on which he has not been disclosed and at which at this point
there's nothing in the evidence to suggest that he needs to rehabilitate
himself in any way.
MS. WHITNEY: I think it would be helpful to the Court, your Honor,
to have his opinion of this concept.
MR. REGAN: I was simply going to say, your Honor. It might be
helpful for the Court if the Court had an expert designated to come and speak
on the issue of parental alienation. There very well may be one of those
coming tomorrow from our end of the table, your Honor.
However, [Respondent] has not designated an expert to speak on that
subject. [She] [h]ad the ability to do so, could have done so, [but she] did
not. So attempting to shoehorn testimony in through someone who is not
disclosed to talk about that subject is inappropriate.
MS. WHITNEY: Perhaps it would helpful, your Honor, if you asked Dr.
Mantell, if, in fact, he would be qualified to talk about this concept.
MR. REGAN: Your Honor, my response to that would be whether or
not he is in fact qualified to testify about [that subject] is not relevant. This
is the same issue we faced yesterday when we were discussing some exhibits
that were added in at the last minute and whether or not he'd be qualified to
talk about those things.
The point is we have not been put on notice that Dr. Mantell would
talk about these subjects. We have not had the opportunity to depose him on
the subject of parental alienation, what he did, what he did not do. He has
not been disclosed as an expert on parental alienation. So whether or not Dr.
Mantell believes he today is an expert on that is not relevant, and he has not
been disclosed. So, we'd object to any questions along those lines.
(Dkt. #153, at 74-76).
The Magistrate Judge then ruled as follows:
THE COURT: The witness had testified before as to the steps he takes
to make sure that one parent does not coach the children's responses, either
telling them to speak about a topic or avoiding a topic.
I'll allow the witness to testify as to whether he had an sense that the
children had been coached one way or the other by either parent and their
responses to them.
BY MS. WHITNEY:
3

Q. Dr. Mantell, I think the question is whether the children had been coached
by either parent one way or the other.
THE COURT: Was it your impression that they had been
coached one way or the other?
A. My impression is yes the children reported to me that they had
been coached.
Q. And what did they report to you?
A. They reported to me that they had been coached by their father
not to tell the judge or to tell me that he had hit them.
Q. Do you remember which of the children said that?
A. Both children did.
Q. By both you mean both the girls?
A. Yes, both girls did. And there is an example of K.D. telling me that
her mother told her to tell me something, but that would not constitute, in my
judgment, an example of coaching. That was that K.D. made a report to her
mother about something that had happened with the father. And K.D. said
when she told her mother about it, her mother said to her to tell the doctor.
Q. Is that contained in your report?
A. Yes, that's in my report.
Q. Do you recall –
A. All of these are. These are, in fact, all examples of parental
influence in which a parent is telling the children to say something to the
doctor or not to say something to the doctor. In the case of the mother, it's
the mother directing the child to repeat a just given report to the doctor. In
the case of the father, it's the children, the girls reporting the father telling
them not to make such reports. And also, in [A.D.]'s case, with A.D.
reporting her father thanking her for saving him by not telling the doctor in
Italy that he had hit her on the head, but only to have said that he hit her on
her backside.
(Id. at 76-78).
Moreover, in the volumes of published decisions under ICARA and the Hague

4

Convention, there is not one published decision that relied to any degree on the "parental
alienation syndrome." In Karkkainen v. Kovalchuk, 445 F.2d 280, 288 (3d Cir. 2006), the
petitioner-mother argued on appeal that the district court had abused its discretion by
appointing an expert to evaluate the daughter's "level of maturity [who] lacked sufficient
experience in 'parental alienation syndrome.'" The petitioner-mother contended that her
daughter's desires to remain permanently in the United States were the result of the
respondent-father and his second wife having alienated the child from the petitioner,
including referring to her as the child's aunt. Id. The issue of parental alienation, however,
was irrelevant because the district court held that the United States was the child's habitual
residence. Id.
Similarly, in Haimdas v. Haimdas, 720 F. Supp. 183, 207, n.17 (E.D.N.Y.), aff'd on
other grounds, 401 Fed. Appx. 567 (2d Cir. 2010), the district court categorically rejected the
report and testimony of the petitioner-mother's expert regarding the children's maturity level
and "any other matter in controversy[,]" giving the report and testimony "no weight." The
district judge described the expert's opinions "regarding the potentially distorting effects of
the protracted custody battle, parental alienation and ping-pong lifestyle that A.H. and S.H.
have experienced, as well as their notable verbal abilities and overall intelligence, essentially
confirmed the obvious." Id. The district court observed, "Frankly, short of opining as to a
mental or emotional pathology, it is hard to fathom what a [child] psychologist in a Hague
Convention case could opine that is not already within the ken of an ordinary finder of fact."
Id.
Lastly, in Garcia v. Angarita, 440 F. Supp. 2d 1364,1368 (S.D. Fla. 2006), like here,
the court had ordered a psychological evaluation of the child, which report the petitioner-

5

father introduced into evidence.

In this report, the expert opined, in rejecting the

respondent-mother's defense of grave risk, that any psychological harm to their son would
be reduced by the close relationship the children with his paternal relatives, and the "support
system" that the petitioner-father had in Colombia. Id. at 1382. The Court observed that:
"Significantly, Respondent is in a position to greatly reduce this risk, if she so chooses, by
discontinuing the activities which [the expert] believes have resulted in a degree of parental
alienation toward Petitioner, and if Respondent returns with the children to Colombia." Id.
The issue of parental alienation was hardly the central focus of that trial.
Thus, under the clear language of the August 29 Ruling, the Magistrate Judge's
evidentiary ruling on February 16, 2012, and the published case law under ICARA and the
Hague Convention, the issue of "parental alienation syndrome" is not included within "the
very tailored and limited issue" on which Dr. Garber may testify. Once again, Dr. Garber's
testimony is limited "[s]pecifically, . . . [to] the opinions he expressed in his expert report
regarding Dr. Mantell's assessment" with respect to "coaching," and only "coaching."
(August 29 Ruling at 6-7).
Accordingly, Respondent's Motion In Limine to Exclude Evidence Relating to "Parental
Alienation," filed this morning (Dkt. #155) is denied as moot, as "parental alienation" was
not, and will not be, permitted, under the August 29 Ruling.
Dated at New Haven, Connecticut, this 4th day of September, 2012.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

6