Walker (2006) Extreme Consequence Parental Alienation Syndrome Richard Lohstroh

THE EXTREME CONSEQUENCE OF PARENTAL..., 27 Women’s Rts. L....
27 Women’s Rts. L. Rep. 153
Women’s Rights Law Reporter

Summer 2006
Articles
April J. Walkera1
Copyright (c) 2006 Women’s Rights Law Reporter, Rutgers, the State University of New Jersey; April J. Walker
THE EXTREME CONSEQUENCE OF PARENTAL ALIENATION

SYNDROME -- THE RICHARD LOHSTROH CASE OF A CHILD DRIVEN
TO KILL HIS FATHER -- WILL COURTS MOVE TOWARD ALLOWING
CHILDREN TO USE PARENTAL ALIENATION SYNDROME AS A
DEFENSE TO THE CRIME OF MURDER OF THEIR OWN PARENT?
I. INTRODUCTION
Nothing stirs up passions more for a child than high-conflict fighting between his or her parents. 1 Such fighting between
parents may range from long-term constant battling, involving abuse of one parent during the course of the marriage, to pre-
and post-separation divorce bickering. 2 These high-conflict events render all of the parties irrational, to some degree. 3
Associated with these situations is the tendency of one parent to brainwash the child with the intent of alienating the child
against the other parent.4 Additionally, witnessing the abuse of a parent, can cause the child to alienate the abusive parent. 5
This phenomenon is known as Parental *154 Alienation Syndrome (“PAS”).6 PAS may have serious and even deadly
implications, which many parents are unaware of at the time of their actions. 7 Increasingly, the news media has been
inundated with stories of children who have killed a parent as a result of experiencing the effects of PAS. 8 The term PAS is
mainly associated with divorce proceedings in which one parent requests a family court to prevent contact between the child
and the other parent.9 However, alienation may not be specifically encouraged by a parent or motivated by their divorce or
separation.10 On the contrary, alienation may also occur as a result of violence in the home perpetuated by one parent/abuser
against the other, causing the child to feel the need to defend the abused parent. 11 Moreover, some scholars have suggested
that PAS can be triggered by remarriage of one or both parents. 12 This leaves one to ask whether a child, driven to act out
against the constant fighting and bickering of his parents should be excused when he later attempts to bring them harm.

Much of this article is inspired by the highly controversial case of Dr. Richard Lohstroh, who was shot and killed by his ten-
year old son. The event unfolded outside the home of Dr. Lohstroh’s ex-wife in Katy, Texas when he came to pick up the ten-
year old and his seven-year old brother for their weekend visitation on August 29, 2004. 13 This case has captured national and
international attention.14 Many still wonder what will happen to Dr. Lohstroh’s child as he is dealt with in the criminal justice
system.

As stated above, PAS has been mostly used in divorce proceedings. 15 However, PAS may also become useful as a defense
when a child is charged with murder of the alienated parent. Children in these situations are, for the most part, insane at the
time of the killing as a result of the effects of PAS, and accordingly not guilty by reason of insanity (“NGBRI-PAS”). 16

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

Most insanity statutes require that an individual show that he suffered from a severe mental disease or defect at the time of
the offense and did not know his actions were wrong. 17 Because of the severe confusion and manipulation associated with
PAS, a child may not know that his actions are wrong at the time of the killing. 18 Notwithstanding, the current edition of the
Diagnostic and Statistical Manual of Mental Disorders (“DSM” or “DSM-IV”) does not recognize PAS as a mental illness. 19
Until PAS is properly recognized as an illness, it may be difficult to convince a jury that the individual suffered from a severe
mental disease at the time of the offense. Moreover, whether the disorder is recognized by the DSM or not, it seems that
children affected by PAS are not motivated by the type of murderous intent required to prove the crime of murder. Instead, it
appears that these children are driven to a breaking point that is influenced by the situational effects of the high-conflict
family dynamic.

*155 As such, this article will address the issue of whether these children should be allowed to plead NGBRI-PAS. This
article will also define PAS and analyze common features of current insanity statutes. The facts and circumstances of the
Lohstroh case will be examined to determine whether NGBRI-PAS may serve as a viable defense for the Lohstroh child.
Finally, this article will discuss the likelihood of courts recognizing NGBRI-PAS as a viable defense.

II. WHAT IS PARENTAL ALIENATION SYNDROME-DRIVEN MURDER OF A PARENT?
A. Symptoms
PAS is a phenomenon which creates a “singular relationship between a child and [a] parent” to the exclusion the other
parent.20 It is widely accepted that Dr. Richard A. Gardner first identified this condition as a syndrome in a 1985 article where
he defined PAS as “a disturbance in which children are obsessed with depreciation and criticism of a parent - denigration that
is unjustified and/or exaggerated.” 21 Gardner’s definition of PAS includes eight symptoms common in children who suffer
from moderate to severe PAS.22 Paul Lodge lays out these symptoms as followed:
1. The child is aligned with the alienating parent in a campaign of denigration against the target parent, with the
child making active contribution.

2. Rationalizations for deprecating the target parent are often weak, frivolous or absurd.

3. Animosity toward the rejected parent lacks the ambivalence normal to human relationships.

4. The child asserts that the decision to reject the target parent is his or her own decision, what Gardner calls, the
“independent thinker” phenomenon.

5. Reflexive support of the alienating parent in the parental conflict.

6. The child expresses guiltless disregard for the feelings of the target parent.

7. The presence of borrowed scenarios, i.e., the child’s statements reflect the themes and terminology of the alienating parent.

8. Animosity is spread to the extended family and others associated with the hated parent. 23

It has been stated that the fully alienated child is one “who does not wish to have any contact [at all] with one parent and who
expresses only negative feelings for that parent and only positive feelings” toward the favored parent. 24 It is believed that
children who suffer from mild cases of PAS will not exhibit all eight symptoms, 25 but it is very likely that when a child
suffers from moderate to severe cases, he will present most, if not all, of the eight symptoms. 26 In this regard, Gardner
theorized that there are three subcategories of PAS - mild, moderate, and severe. 27

1. Mild PAS


Gardner suggests that situations exist where both the child and alienating parent fall within the mild category. 28 In the mild
category of PAS, the alienation of the target parent will likely end when the objective of the alienating has been achieved. 29
Gardner has further theorized that there are situations when the alienating parent falls within the severe category of PAS and
the child falls within the mild category *156 of PAS.30 In this situation, the target parent has a stronger bond with the child,
the target parent has access to the child at least fifty percent of the time, or the parents are still living in the home together
during the separation or divorce. 31 In this category, if the target parent’s involvement with the child is reduced, the chances
increase that the child may shift to a more severe form of PAS.32

2. Moderate PAS

A commonly held view is that the majority of PAS cases are categorized at the moderate level. 33 In this category of PAS, it is
believed that the alienator encourages the child to exhibit angry behavior toward the target parent or to be afraid of the target
parent.34 The child may exhibit all eight of the primary symptoms, each more progressive than in mild cases, but less
progressive than in severe cases. 35 In this situation, Gardner suggests that the child spend more time with the target parent and
experience living with the target parent. 36 In turn, the child will begin to feel reassured that the target parent is not evil or
dangerous as they may have been lead to believe.37

3. Severe PAS

In the severe category of PAS, the alienating parent usually possesses severe psychopathology, which affects even their
ability to parent.38 When severe PAS is present, the parent’s thinking may become rigid, which may limit the child’s ability to
mature.39 These children have been found to have “lower academic performance; increased chance of psychological
disturbance; lower self-esteem; cognitive deficiencies; higher impulse control problems; school adjustment problems; higher
fear and anxiety . . .; greater dependency . . .; and impaired sex-role identification.”40

Gardner has stated the following regarding the severe category of PAS:
[Children in the severe category] become so alienated that they are delusional with regard to their fears and/or
hatred of the victim parent. Accordingly, it may be impossible to place them in the home of the alienated
parent. They may jump out the windows or run into the streets, and thereby endanger themselves. Or, they may
be so hostile that they may make life intolerable for the target parent. Destruction of person and property,
attempts to poison the target parent, set fires and wreak havoc in the home of the alienated parent is sometimes
seen.41

The child in a severe PAS situation often has an obsessive hatred toward the target parent. 42 The bond between the alienating
parent and the child is viewed as unhealthy because the relationship is sometimes based on shared unfounded beliefs about
the target parent.43 Professionals in the field of psychiatric therapy have suggested that in cases of severe PAS, the primary
caretaker/custodial parent has an unstable personality and the child will exhibit an *157 obsessive hatred toward the target
parent.44 As explained later in this article, the Lohstroh boy suffered from severe PAS.

B. Causes of PAS
Gardner theorized that the increased degree and occurrence of PAS in recent years is directly related to the increase of child
custody litigation which in turn has been influenced by two significant changes in child custody determinations. 45 Gardner
believed that the first change was courts’ increasing agreement with fathers that the “tender years presumption” was sexist. 46
The “tender years presumption” insists that a mother is the preferable parent in a custody determination because she is
female.47 The second major shift in child custody determinations was the trend favoring the joint custody model. “Designating
one parent as the sole custodial parent and the other as visitor came to be appreciated as inegalitarian and ego-debasing for
the non-custodial parent.”48 Both of these changes encouraged fathers to initiate more litigation rather than passively accept
the fact that mothers would automatically be appointed custodians of the children. 49

Gardner asserts that PAS may be precipitated by brainwashing or programming of the child by one parent against the other
parent,50 however, PAS may also be self-created by the child. 51 Experts suggest that the “self-created” version of PAS may be

brought on by developmentally normal separation problems; deficits in the non-custodial parent’s skills; oppositional
behavior in the child; high-conflict divorce proceedings; other serious emotional or medical problems of one family member;
child abuse and neglect; inappropriate, unpredictable, or violent behavior by one parent; incidental causes, such as the child’s
dislike of a parent’s new roommate or lover; alienation by third parties; the child’s unassisted manipulation of one or both
parents; or fears for the absent parent’s welfare.52

C. Is PAS Recognized as a Disorder in the DSM?
Although Gardner has identified PAS as a bona fide form of disturbance, syndrome or condition, PAS is not identified as
such in the fourth edition of the DSM-IV. 53 The DSM is published by the American Psychiatric Association (“APA”) and it
provides information regarding the cause of a disorder, forecasts of the probable course of a disorder, and the possibility of
recovery.54 The DSM also provides information regarding research and treatment advances related to a particular disorder. 55

Although the DSM does not recognize PAS as a disorder/syndrome, Gardner believes that PAS is often misapplied as a
mental disorder and is therefore not recognized as a true syndrome. 56 In 2002, Gardner wrote a follow-up to his 1985
publication clarifying some of the issues raised in that publication, including addressing the reluctance of family court
lawyers to use the PAS diagnosis in custody litigation. 57 Gardner addressed the “applicability of current DSM substitute
diagnoses.”58 In defense against critics who point to the unrecognized status of PAS, Gardner noted “that PAS does not exist
because it is not listed in the DSM is like saying in 1980 that AIDS . . . did not exist because it was not then listed in standard
diagnostic medical textbooks.”59 Gardner has noted that it took Tourette’s Syndrome ninety-five years after its discovery
before it was included in the DSM. 60 He also points out that from 1991 to 1993 when APA committees conducted their
meetings to determine inclusion of additional disorders, there was not enough literature *158 on the subject of PAS to
warrant submission in DSM-IV, which was published in 1994.61

Also noteworthy, is that a “syndrome” is defined by the medical community as “a collection or grouping of disjunctive,
variable signs and symptoms whose frequency of occurrence together suggests the existence of a single pathologic process or
disorder that will explain them.”62 Furthermore, syndrome is defined as a “set of signs and symptoms that together indicate
the presence of a disease or abnormal condition.”63 Over the past twenty years, Gardner and others have agreed that an
individual suffering from PAS may display a combination of some or all of eight clearly defined symptoms. 64 In order to
qualify as a disorder in the DSM, the syndrome must be the subject of years of research and numerous publications in
scientific and medical journals.65 Since Gardner’s first pronouncement of PAS, there have been over 147 publications on the
subject and over 74 references in legal journals and case law publications. 66 In November 2000, a Florida Court determined
“that PAS has received such widespread acceptance in the scientific community that evidence of [its existence] warrants
admission in courts of law.” 67 In 2011 the DSM-V is scheduled to be published. 68 Dr. William Narrow, head of the APA’s
research and classification division, which determines whether disorders are formally recognized as legitimate mental
illnesses, states that as a result of the Lohstroh case, parents and others have inundated his office with e-mails urging the
APA to include PAS in the DSM.69

III. ARE CURRENT INSANITY PLEA MODELS POISED TO ALLOW A PLEA OF NOT GUILTY BY REASON
OF INSANITY AS A RESULT OF PAS?
Most states’ insanity defense statutes are designed from a combination of tests that have developed over time in national and
international legal systems. The M’Naghten test initiated the formalization of such tests. 70 The M’Naghten test was devised
by England’s House of Lords in response to the trial of Daniel M’Naghten. M’Naghten, facing murder charges for the death
of the secretary of Prime Minister Peel of the Tory Party, raised the defense of insanity. 71 The first part of the test provides a
safe harbor for the accused if there is “a defect of reason, from disease of the mind, as not to know the nature and quality of
the act he was doing.”72 The second part of the test protects the individual even if the individual knows the nature and quality
of the act, so long as he or she does not know that the act is wrong.” 73 The third part of the test provides that individuals with
“partial delusion[s]” should be placed “in the same situation as to responsibility as if the fact with respect to which the
delusion exists were real.”74

In its Model Penal Code, the American Law Institute (“ALI”) adopted a test, which provides that “insanity is a condition that
exists when, as a result of mental disease or defect, an individual lacks substantial capacity . . . to appreciate the criminality
[or wrongfulness] of his conduct.”75 This ALI test for diminished capacity provided an excuse for individuals who might not
“know” that the criminal act is wrong and are merely unable to “appreciate” that a criminal act is wrong. 76 The ALI test was
adopted by over half of the states.77 Some states identify this test as a “diminished capacity” *159 defense.78 This ALI test was
reconsidered by many states in response to the outrage as a result of the acquittal of John Hinkley, Jr. in 1982, 79 and later in
1984 the federal test for insanity was adopted.80 The federal test sets forth the following:
It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the
acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of his acts.81

Although the federal test, allowing a mere lack of “appreciation” rather than “knowing” that a criminal act is wrong to protect
the accused, carries less of a burden for the required state of mind as the M’Naghten test, it is more rigid than the ALI test in
that the former requires a “severe” mental disease or defect.

Presently, most jurisdictions follow some variation of the M’Naghten test and the federal test. Therefore, in most cases, the
individual will be held to provide proof that he did not know his actions were wrong and/or he may be required to prove that
he possessed a severe mental disease. This presents a problem because PAS has not been recognized by the DSM or the
criminal justice system as a severe mental disorder even though courts recognize PAS as a viable disorder. 82 As such, it may
be difficult for NGBRI-PAS to be accepted as a viable defense in criminal courts.

IV. APPLICATION OF NGBRI-PAS AS DEFENSE TO THE CRIME OF MURDER OF A PARENT IN RECENT

CASES
As stated above, PAS is recognized by family law courts across the United States and abroad. 83 Yet, there exists few, if any,
cases in which the defense of NGBRI-PAS has been applied to the case of a child who has killed a parent. It is believed that
incidents involving PAS are on the rise and will continue to increase in coming years. 84 Unfortunately, cases of fatal
outcomes resulting from PAS will also continue to increase at an exponential rate in the coming years. How will the criminal
justice system deal with minors who demonstrate symptoms of PAS?

A. The Lohstroh Case - Texas
1. Facts

On August 27, 2004, the life of Dr. Richard Lohstroh ended shortly after he arrived at the home of his ex-wife, Deborah
Geisler, to pick up his seven and ten-year old sons. 85 Police officials report that the ten-year old boy retrieved the gun, stepped
into the back seat of Dr. Lohstroh’s SUV and fired five shots through the back of the driver’s seat striking Dr. Lohstroh in the
back.86 The ten-year old slid out of the back seat and continued firing before going back inside Geisler’s home. 87 Some of the
subsequent shots struck Lohstroh’s vehicle as well as a neighbor’s vehicle parked nearby. 88 Geisler removed the gun from the
hands of the ten-year old and called 9-1-1.89 Although Geisler is a registered nurse, she did not provide any aid to Dr.
Lohstroh at the scene.90 It was previously planned that Dr. Lohstroh would pick up *160 the children at school that day rather
than retrieving the children from Geisler’s home. 91 However, Geisler informed Dr. Lohstroh that his children had not attended
school that day as a result of appointments with their psychiatrist and psychologist.92

This horrific chain of events all began when Lohstroh and Geisler met in San Antonio, Texas. 93 At the time, Lohstroh, a
native of the Pacific Northwest, worked as a lab technician and Geisler worked as a nurse. 94 The two maintained a long
distance relationship while Lohstroh attended Texas Tech Medical School and Geisler worked in Houston. 95 The two married
in June of 1989 during which time Lohstroh and Geisler had two sons. 96 According to Geisler, Lohstroh never wanted
children and she claims Lohstroh threatened to leave her when she became pregnant. 97 The marriage suffered a great deal of
contention.98 Throughout the marriage and even after the divorce, Geisler advanced many unfounded allegations against
Lohstroh.99 Transcripts reveal the following exchange between Lohstroh and Geisler:
Geisler: “I want to speak to my sons unless you want me to call the police and report child abuse.”


Lohstroh: “Call the police, call the police!”

Geisler: “OK, I’ll do that.”100

Friendswood and Galveston, two Texas Police officers, made nearly 20 documented police visits to the Lohstroh home over
the course of their marriage since 1997 when Lohstroh was charged with assaulting Geisler. 101 The most notable of the police
visits occurred in Friendswood, Texas in 2001 when Geisler threatened to inject Lohstroh with insulin while he was
sleeping.102 Apparently, Geisler is a diabetic. 103 During the insulin confrontation, Lohstroh called 9-1-1. 104 The 9-1-1 dispatcher
reported that the caller was “concerned because his wife threatened to inject insulin into him while he was asleep. While
talking to caller, wife got on the extension phone and a verbal argument ensued.” 105 Police arrived at the house, arrested
Geisler and charged her with misdemeanor assault.106

Lohstroh and Geisler ended their marriage in January of 2002 and their separation and divorce proceedings were just as
contentious as their marriage. 107 During the pending divorce proceedings, Geisler filed two complaints against Lohstroh with
police departments accusing Lohstroh of molesting their two sons. 108 More specifically, Geisler accused Lohstroh “of holding
his nude son to his own nude body.” 109 Lohstroh was never charged and these allegations were never substantiated. 110 During
the divorce trial, Deborah Geisler’s mother testified that it was possible that Deborah Geisler was capable of turning the
children against their father. 111 The divorce was finalized in May of 2003. 112 However, the couple continued to fight and
constables were frequently alerted when Lohstroh would pick up the boys.113 After the divorce, Geisler remarried.114

“Lohstroh filed a complaint against [Geisler] with the Texas Board of Nurse Examiners . . . [in 2003 accusing] Geisler of
stealing his prescription pad [and] writing a prescription for the pain reliever Lortab for her current husband *161 by forging
Dr. Lohstroh’s signature.115 Neighbors have reported that numerous violent fights took place after the divorce and Geisler’s
new husband, Swanson was charged with assault as a result of a fight between he and Geisler six weeks prior to Lohstroh’s
death.116 It is also reported that the principal of the children’s school asked Geisler to refrain from making disparaging
remarks about Lohstroh to teachers.117

For four months during his estrangement from Geisler, Dr. Lohstroh lived with his colleague, Russell Miller, a University of
Texas Medical Branch (“UTMB”) emergency room physician. 118 Dr. Miller reports that he never saw anything to suggest that
Lohstroh molested his children.119 However, Dr. Miller did admit that Lohstroh had some “anger management issues because
he would from time to time get a little testy.”120

At the time of his death, Dr. Lohstroh was a forty-one-year old pulmonary medicine specialist, assistant professor, and
emergency room physician at the UTMB.121 Lohstroh’s mother, Joanne Greene and his stepfather, Richard Greene traveled
from their home in Columbia, South Carolina to attend Lohstroh’s funeral and to provide support for Lohstroh’s sons. 122 The
Greenes subsequently hired Lohstroh’s divorce attorney to represent them in their petition for custody of the two boys
requesting that Deborah Geisler not be allowed to see them. 123 In a sworn affidavit, Lohstroh’s mother stated that both
children were present when Geisler purchased the gun and watched as a “gun dealer demonstrated how to pull back the slide
and place the first bullet in the chamber.”124 The Greenes were concerned and felt that the fact that the ten-year old was able to
gain access to the gun meant that the boys’ safety would be jeopardized if they remained with Geisler. 125

The Greenes were granted temporary custody of the boys on September 8, 2004. 126 The ten-year old remains in the custody of
the Harris County Detention Center.127 When he is released, it will be into the custody of the Greenes. 128

Nevertheless, when the Greenes were granted temporary custody of both boys on September 8, 2004, the eight-year old and
Geisler could not be found.129 Geisler had allegedly hid to avoid service of the court order requiring her to surrender the eight-
year old boy to the Greenes. 130 On September 10, 2004, Harris County Constables found the eight-year old at Geisler’s
friend’s home, near Lohstroh’s home.131

Meanwhile, Kaye Dee Lutes, Lohstroh’s live-in girlfriend, filed a claim with the Galveston County Probate Court claiming
that she was an heir to Lohstroh’s estate because she was Lohstroh’s common law wife. 132 Dr. Miller reported that Lohstroh
referred to Lutes as “his girlfriend or a friend,” but Lohstroh never referred to Lutes as his wife. 133 Nonetheless, at probate,

Lutes was ordered to move out and the *162 Lohstroh estate was turned over to the Greenes. 134 Lutes’ lawyer has since
dropped the probate claim after learning that, while living with Lostroh, “Lutes filed claims for welfare in 2002.” 135

Geisler believes that Prozac was partly responsible for driving the ten-year old to kill Lohstroh. 136 The ten-year old “was
diagnosed with depression and anxiety.”137 Geisler reported that the ten-year old was prescribed Prozac for depression and
that he began on a ten-milligram dose, which increased over time. 138 Geisler reported that the week before Lohstroh’s death,
the ten-year old was placed on a once-a-week time-released 90-milligram dosage of Prozac. 139

Well what about the ten-year old? According to his attorney, he “had no history of offense conduct in the past.” 140 After all of
the constant fighting between his parents described above, in the end, the boy fit the profile of a child suffering from PAS.
The boy was charged with murder 141 and now remains in the custody of the Harris County Detention Center. 142 Interestingly,
the ten-year old boy’s attorney stated that the boy “was the victim of sexual and physical abuse,” 143 which if true, could
possibly thwart the boy’s chances of being able to assert a successful plea of NGBRI-PAS. 144 Under the strict model proposed
by Gardner, “[w]hen true parental abuse and/or neglect is present, the child’s animosity may be justified and so the parental
alienation syndrome explanation for the child’s hostility is not applicable.” 145

Aside from being brought on by brainwashing by one parent, there are additional causes for PAS, such as high-conflict
fighting between parents and PAS triggered by remarriage, both of which were present in the Lohstroh case. Nevertheless, it
is up to the judge to decide whether the ten-year old will remain in juvenile detention until he turns eighteen, at which time he
could then be tried as an adult. 146 This is consistent with Texas law, which states that a child convicted of murder would be
incarcerated in the custody of the Texas Youth Commission until the age of eighteen; and thereafter, transferred to the Texas
Department of Criminal Justice with a maximum sentence of 40 years. 147 The question still remains whether at the time of the
offense, the youngster would be able to assert PAS.

2. Were Any of the PAS Symptoms or Triggering Circumstances Present in the Lohstroh Case?

It seems clear that the Lohstroh boy suffered from many of the PAS symptoms set forth by Gardner and one or more of the
Triggering Circumstances suggested by other experts in the field. 148 The following symptoms from the specific enumerations
of Gardner’s model set forth above are presented in the Lohstroh case:
• The child is aligned with the alienating parent in a campaign of denigration against the target parent, with the
child making active contribution.
• Animosity toward the rejected parent lacks the ambivalence normal to human relationships.
• The child asserts that the decision to reject the target parent is his or her own decision, what Gardner calls, the
“independent thinker” phenomenon.

*163 <box4> The child expresses guiltless disregard for the feelings of the target parent. 149

The joint custody model, set forth above, is present in this case. Gardner theorizes that this is one of the causes of the PAS
phenomenon.150 A few of the factors from the “self-created” garden variety of PAS were also present in the Lohstroh case
including the following:
• High-conflict divorce proceedings
• Other serious emotional or medical problems of one family member


• Incidental causes, such as the child’s dislike of a parent’s new roommate or lover. 151

The record clearly reveals that the Lohstroh divorce was very turbulent. 152 Geisler’s accusations of sexual abuse of the
children, the constant quarreling between the parents, and the police visits are just a few points that evidence this chaos. 153
Furthermore, it is clear that Geisler suffers from extreme emotional problems based on: her decision to take her sons with her
to purchase the gun;154 her inability to control herself during the above-described 9-1-1 calls; 155 and her decision to remarry
just one month after the divorce was finalized. 156 In addition, both parents decided to engage in relationships with significant
others, which could have contributed to the ten-year old boy’s troubles.

V. OTHER DEFENSE THEORIES AVAILABLE TO THE LOHSTROH BOY
There was much speculation whether Geisler should bear the responsibility for Lohstroh’s death. 157 If this were the case,
Geisler would have to be charged as an accessory in the killing. 158 Famed criminal attorney, Rusty Hardin stated that this
defense would not likely provide a favorable outcome since there must be a finding that Geisler had specific intent to kill
Lohstroh as opposed to “[m]ere negligence by badmouthing,” which alone, would be insufficient to support a finding that
Geisler had specific intent to kill Lohstroh.159

University of Houston Law Professor, Ellen Marrus, reported that whether the child was sexually abused and acted in self-
defense could also be an issue at trial. 160 However, it seems that if the child was abused, this would have come out in the
lengthy, well-researched divorce proceedings. Furthermore, all reports indicate that Lohstroh did not abuse the child.

Perhaps Prozac could have possibly served as a viable defense for the minor. Richard and Joanne Greene asserted that the
manufacturer of Prozac failed “to warn doctors and patients of the medication’s risks and potential side effects, especially in
young patients.”161 The Greenes contended that “there is a mountain of literature that shows the drug can cause mania and
ultimately violence” when the dosage is incorrectly matched to weight and body mass.162

Although Prozac is approved for use in children, most of these drugs were banned in Britain after they were linked to
occurrences of suicide and violence. 163 The FDA stopped short of banning these drugs and ordered manufacturers to revise
and strengthen the warning labels.164 Despite this, pharmaceutical companies argue that mental illness, and not the drug, leads
some patients to agitation and violence. 165 Victor Oderinde, a Clinical Assistant Professor of Psychiatry at the University of
Texas-Houston School of Medicine reports that “[w]hile Prozac can cause impulsive behavior in depressed children, it is
unlikely to trigger the kind of planning required for a ten-year old to get his mother’s gun, load it and shoot his father.” 166

One question left on the table, was how the boy was able to get the gun in the first place. 167 Geisler said she did “not know
how [her son] *164 got hold of the gun, which she kept locked and unloaded in her home.”168

VI. CONCLUSION: HOW LIKELY IS IT THAT PAS WILL EXCUSE THE LOHSTROH BOY FROM
RESPONSIBILITY?
Many believed that the Lohstroh boy was suffering from the effects of PAS at the time he shot and killed his father. 169 Dr.
Miller reported that Geisler turned the boys against Lohstroh. 170 Dr. Miller stated further that he was convinced that “[Geisler]
would coach the kids into hating their daddy.” 171 This tragedy may have been an unintended result of what many would
consider progress.172 Fifty years ago, courts were less concerned about the impact of divorce on children. 173 Courts commonly
awarded children to one parent, “and the other largely disappeared from their lives . . . .” 174 Although this was not the ideal
situation, “conflict was reduced.” 175 Veteran divorce lawyer, Donn Fullenweider stated that “[p]sychological research has
indicated that children do better if parents are working together,” and this has inspired the “movement toward joint
parenting . . . [which] works in most cases. 176 But “[w]hen there are problems . . . the court’s options are limited,” and the
situation could spiral uncontrollably to the point of the Lohstroh tragedy. 177

The Texas insanity defense statute includes a combination of the M’Naghten test and the federal test, in that the defendant
must show that he did not know his actions were wrong at the time of the offense and that he suffered a severe mental disease
at the time of the offense. 178 More specifically, the Texas Penal Code sets forth that “[i]t is an affirmative defense to
prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that
his conduct was wrong.”179 Notwithstanding the reality that PAS won’t be in DSM before the year 2010, the Lohstroh boy
may have had a chance of prevailing on the theory of NGBRI-PAS if PAS included in the DSM-V. Also, as stated above,
PAS is widely accepted in family courts and there has been a wealth of research on the subject. Nevertheless, many agree that
a lifetime in the Texas Criminal Justice System would not provide justice in light of the possibility that the ten-year old may
have been influenced or even brainwashed into killing his father.

Footnotes
a1
The author is an Associate Professor at Thurgood Marshall School of Law at Texas Southern University in Houston, Texas.
Professor Walker is also an associate judge with the City of Houston Municipal Court System. Thank you to Professor Larry
Weeden and Professor Docia Rudley for their support and encouragement.
1
See Jayne A. Major, Parents Who Have Successfully Fought Parental Alienation Syndrome 2 (Breakthrough Parenting Services,
Inc. 2002-2005), available at http://www.breakthroughparentingservices.org/article-pas.pdf.
2
See id.
3
See id. at 2, 6.
4
Reena Sommer, How to Cope with the Effects of Parental Alienation, Solutions4PAS,
http://www.solutions4pas.com/pas_consult.html (last visited Nov. 7, 2006). See also Richard A. Gardner, Recent Trends in
Divorce and Custody Litigation, 29 Academy Forum 3, 3-7 (1985), available at http:// www.fact.on.ca/Info/pas/gardnr85.htm (last
visited Nov. 7, 2006) [hereinafter Gardner, Recent Trends].
5
See generally Daniel J. Rybicki, Parental Alienation and Enmeshment Issues in Child Custody Cases, Expert Witness Testimony &
Forensic Psychology (forthcoming), available at http://www.fact.on.ca/Info/pas/rybick00.htm (last visited Nov. 7, 2006). See also
Richard A. Warshak, Remarriage as a Trigger of Parental Alienation Syndrome, 28 Am. J. Fam. Therapy 229 (2000); Gardner,
Recent Trends, supra note 4, at 6 (referencing a case in which one boy repeatedly observed his father beating his mother).
6
See Sommer, supra note 4.
7
See, e.g., Mike Zientek, 10-Year Old Accused of Shooting Father was ‘Very Angry,’ Aug. 31, 2004,
http://khou.com/topstories/stories/khou040830_mh_ fathershotcourt.ca4fb6fb.html [hereinafter Zientek, Very Angry].
8
See, e.g., Teen to Serve at Least 3 Years for Killing Father, The Times Union, Nov. 3, 2005, at A3 (describing events that took
place in January 2002, where 13-year-old Timothy Adams shot and killed his father, Angelo Adams, in Shelby, New York).
9
John Dunne & Marsha Hedrick, The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases, 21 J. Divorce &
Remarriage 21, 22 (1994) (noting that PAS has been raised as an issue in cases involving domestic violence, parental substance
abuse, and child sexual abuse).
10
See Rybicki, supra note 5; see also Warshak, supra note 5, at 230; Gardner, Recent Trends, supra note 4, at 6 (describing a case of
one boy who repeatedly observed his father beating his mother and described deep affection for this father and hatred for his
mother).

11
See Rybicki, supra note 5; Gardner, Recent Trends, supra note 4, at 6.
12
See Warshak, supra note 5.
13
Zientek, Very Angry, supra note 7.
14
See Psychiatric Disorder May Have Led Boy to Fatally Shoot Father, Canadian Children’s Rights Council Dec. 29, 2004, available
at http:// www.canadiancrc.com/articles/ABC13_PAS_10_year_old_shot_father_29DEC04.htm (last visited Nov. 7, 2006).
15
See Warshak, supra note 5.
16
“NGBRI-PAS” is a term used for the first time by the author of this article.
17
See, e.g., N.J. Stat. Ann. § 2C:4-1 (West 2006); 720 Ill. Comp. Stat. Ann. 5/6-2 (LexisNexis 2005).
18
See Sommer, supra note 4 (describing the systematic brainwashing and manipulation involved in PAS).
19
Richard A. Gardner, Does DSM-IV Have Equivalents for the Parental Alienation Syndrome (PAS) Diagnosis? 31 Am J. Fam.
Therapy 1, 4 (2003), available at http://www.fact.on.ca/Info/pas/gard02e.htm [hereinafter Gardner, DSM-IV].
20
Rybicki, supra note 5 (quoting Peggie Ward & J. Campbell Harvey, Family Wars: The Alienation of Children, 34 N.H. Bar J. 1, 1
(March 1993), available at http://www.fact.on.ca/Info/pas/ward02.pdf).
21
Gardner, Recent Trends, supra note 4, at 1.
22
Rybicki, supra note 5.
23
Paul Lodge, Alienation Revisited: Difficult Clients: Profiles and Programs, Third National Family Court Conference, Oct. 21,
1998, http:// www.fact.on.ca./Info/pas/lodge98.htm (numbering added to list in quotation). See also Gardner, Recent Trends, supra
note 4; Rybicki, supra note 5.
24
Rybicki, supra note 5, at 1 (citing Ward, supra note 20).
25
Gardner, DSM-IV, supra note 19, at 4.
26
Id.
27
Richard A. Gardner, Legal and Psychotherapeutic Approaches to the Three Types of Parental Alienation Syndrome Families:
When Psychiatry and the Law Join Forces, 28 Ct. Rev. 14, 14-21 (1991), available at http:// www.fact.on.ca/Info/pas/gardnr01.pdf

[hereinafter Gardner, Legal Psychotherapeutic Approaches]. See also, Richard A. Gardner, Family Therapy of the Moderate Type
of Parental Alienation Syndrome, 27 Am. J. Fam. Therapy 195, 195-212 (1999).
28
Gardner, Legal Psychotherapeutic Approaches, supra note 27, at 9.
29
See id.
30
Richard A. Gardner, The Three Levels of Parental Alienation Syndrome Alienators: Differential Diagnosis and Management, 25
Am. J. of Forensic Psychiatry 1 (2004) [hereinafter Gardner, Three Levels], available at http:// www.rgardner.com/refs/ar21.html.
31
Id.
32
Id.
33
Mary Lund, A Therapist’s View of Parental Alienation Syndrome, 33 Fam. & Conciliation Cts Rev. 308, 311 (1995).
34
Id.
35
Richard A. Gardner, Recommendations for Dealing With Parents Who Induce Parental Alienation Syndrome in Their Children, 28
J. Divorce & Remarriage 1, 2 (1998).
36
See Gardner, Legal Psychotherapeutic Approaches, supra note 27, at 6.
37
Id.
38
Lund, supra note 33, at 311-12.
39
Id. at 312.
40
Kenneth H. Waldron & David E. Joanis, Understanding and Collaboratively Treating Parental Alienation Syndrome, 10 Am. J.
Fam. L. 121 (1996), available at http://www.fact.on.ca/Info/pas/waldron.pdf. See generally Elsa Ferri, Growing Up in a One-Parent
Family: A Long-Term Study of Child Development 120-31, 140-45 (NFER Publishing Co. Ltd. 1976) (finding children of one-
parent families exhibit behavioral problems at school and at home); E. Mavis Heatherington, Effects of Development in Adolescent
Daughters, 7 Dev. Psychol. 313 (1972) (finding that girls of divorced parents with absent fathers experience early heterosexual
behavior); Marybeth Shinn, Father Absence and Children’s Cognitive Development, 85 Psychol. Bull. 295 (1978) (finding that
preschool children of divorced parents experience greater levels of maladjustment); James D. Vess Jr., The Effects of Early
Parental Divorce on the Sex Role Development of College Students, 7 J. Divorce 83 (1983) (finding that college students of
divorced parents do not experience sex-role development disruption).
41
Gardner, Three Levels, supra note 30.
42
Deirdre Conway Rand, The Spectrum of Parental Alienation Syndrome (Part 1), 15 Am, J. Forensic Psychol. 23, 29 (1997),

available at http:// www.deltabravo.net/custody/rand01.htm.
43
See id. at 29-30.
44
Lund, supra note 33, at 312.
45
46
Id.
47
Id.
48
Id.
49
Id.
50
Id.
51
Gardner, DSM-IV, supra note 19, at 1-2.
52
Rybicki, supra note 5.
53
Gardner, DSM-IV, supra note 19, at 4. See also Andrew Tilghman, Boy Made into Cause by Group, Advocates Say Father’s Death
a Case of Alienation Syndrome, Houston Chronicle, Dec. 29, 2004, at B1.
54
See generally American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000).
55
Id.
56
57
Id.
58
Id. at 1.
59
Id. at 4.
60
Id. at 5.

61
Id. at 4.
62
Robert J. Cambell, Psychiatric Dictionary 716 (6th ed. 1989).
63
Oxford American Dictionary 695 (1980).
64
See generally Gardner, Recent Trends, supra note 4.
65
66
Richard A. Gardner, Commentary on Kelly and Johnston’s: The Alienated Child: A Reformulation of Parental Alienation
Syndrome, 42 Fam. Ct. Rev. 611, 617 (2001) [hereinafter Gardner, Commentary].
67
Tilghman, supra note 53.
68
See Diagnostic and Statistical Manual of Mental Disorders, http://
en.wikipedia.org/wiki/Diagnostic_and_Statistical_Manual_of_Mental_Disorders (last visited Nov. 7, 2006).
69
Tilghman, supra note 53.
70
M’Naghten Case, (1834) 8 Eng. Rep. 718, 722 (H.L.).
71
Id. at 719.
72
Id. at 722.
73
Id.
74
Id. at 723.
75
Model Penal Code § 4.01 (Proposed Official Draft 1962).
76
See 3 Michael L. Perlin, Mental Disability Law: Civil and Criminal § 15.08 at 304 (1989).
77
Id. at 302.
78
Christopher Slobogin, The Intergrationist Alternative to the Insanity Defense: Reflections on the Exculpatory Scope of Mental
Illness in the Wake of the Andrea Yates Trial, 30 Am. J. Crim. L. 315, 318 (2003).

79
Perlin, supra note 77, at 306.
80
18 U.S.C. § 17 (1994). See also Shannon v. United States, 512 U.S. 573, 577 (1994).
81
18 U.S.C. § 17(a).
82
Gardner, DSM-IV, supra note 19, at 4, 6.
83
Gardner, Commentary, supra note 66, at 617.
84
85
Jared Denniston, PAS May Be at Root of Lohstroh Case, Dads In Distress, Sept. 10, 2004,
http://www.dadsindistress.asn.aunews82.html.
86
Id. See also Mother, Brother of 10-Year-Old Shooting Suspect Still Missing, KHOU, Sept. 10, 2004, http://www.khou.com/cgi-
bin/bi/gold_ print.cgi [hereinafter Mother, Brother Missing].
87
Denniston, supra note 85. See also Mother, Brother Missing, supra note 86.
88
Girlfriend, Colleagues Defend Slain Doctor: Attorney Investigating Role of 10-year-old Boy’s Prozac Prescription, http://
www.click2houston.com/news/3694557/detail.html (last visited Nov. 7, 2006).
89
Denniston, supra note 85. See also Mother, Brother Missing, supra note 86.
90
Parental Alienation Syndrome Support and Information, http:// helpstoppas.com/ricks-story/ricks.html (last visited Nov. 5, 2006).
91
Id.
92
Id.
93
Bruce Nichols, Boy Killed His Father, But Why? - Family Was Torn Long Before 10-Year-Old Fired Fatal Shot in August, Dallas
Morning News, Nov. 1, 2004, at 1A.
94
Id.
95
Mother Says Threat to Husband was a Joke, KHOU, Sept. 2, 2004,
http://www.khou.com/news/local/crime/stories/khou040902_mh_ geisler.d93d00ec.html; Nichols, supra note 93.

96
Nichols, supra note 93.
97
Id.
98
Mike Zientek, Police Reports Show Wife of Dead Doctor Had Threatened Him, KHOU, Aug. 31, 2004, http://
www.khou.com/news/local/crime/stories/khou040831_mh_ lohstrohdivorce.d098636c.html [hereinafter Zientek, Police Reports].
99
Id.
100
Id.
101
Id.
102
Id.
103
Mother Says Threat to Husband Was a Joke, supra note 95.
104
Id.
105
Id.
106
Id.
107
108
Id.
109
Jason Whitely, Mother Claims Abuse, Prozac Drove 10-Year Old to Kill Father, KHOU, Aug. 31, 2004, http://
www.khou.com/topstories/storieskhou040831_cc_10yroldkillsfather.cf515097.htm.
110
111
Id.
112
Id.
113
Id.

114
Id.
115
Slain Doctor Accused Ex-Wife of Forging Prescription, KHOU, Sept. 30, 2004,
http://www.khou.com/news/local/crime/stories/khou040903_cc_ lohstrohprescription.
116
See Nichols, supra note 93.
117
Glenn Sacks, The Lohstroh Case: Alienating Mother Pushes 10-Year-Old Boy to Kill Father, His Side With Glen Sacks, Oct. 31,
2004, http:// hisside.com/10_31_04.htm.
118
Nichols supra note 93.
119
Id.
120
Id.
121
Mother Says Threat to Husband Was a Joke, supra note 95.
122
Mike Zientek, Parents of Doctor Allegedly Killed by Son, Speak Out, KHOU, Aug. 30, 2004,
http://www.khou.com/news/local/stories/khou040830_jt_ lohstrohparents.c946bc9e.html [hereinafter Zientek, Parents Speak Out].
123
Grandparents Seek Custody of Boy Who Allegedly Shot Dad, KHOU, Sept. 8, 2004,
http://www.khou.com/news/local/crime/stories/khou040908_we_ custodyhearing.f83be6c8.html.
124
Mother, Brother Missing, supra note 86.
125
Grandparents Get Temporary Custody of Lohstroh Children, KHOU, Sept. 9, 2004,
http://www.khou.com/news/local/crime/stories/khou040909_mh_ lohstrohcustody.fd65f59.html.
126
Id.
127
Boy Who Allegedly Shot Father to Remain in County’s Custody, KHOU, Dec. 17, 2004,
http://www.khou.com/news/local/houstonmetro/stories/khou041210_ jt_lohstroh.1b056cb6.html.
128
Judge Leaves Lohstroh Children in Custody of Grandparents, KHOU, Sept. 17, 2004
http://www.khou.com/news/local/galveston/stories/khou040917_mh_ lohstroh.1284eabe3.html.
129
Grandparents Get Temporary Custody of Lohstroh Children, supra note 127.

130
Mother, Brother Missing, supra note 86.
131
8-Year-Old Found at Home Near Dead Father’s House, KHOU, Sept. 12, 2004,
http://www.khou.com/news/local/crime/stories/khou040910_we_ boyfound.104356dbc.html.
132
Lohstroh’s Girlfriend Drops Legal Challenge, KHOU, Oct. 18, 2004,
http://www.khou.com/news/local/crime/stories/khou041018_mh_ lohstroh.f60a321.html.
133
134
Id.
135
Roma Khanna, Woman Drops Claim to Estate of Slain Doctor; She Had Said She was the Man’s Common-Law Wife, Houston
Chron., Oct. 18, 2004, at B7.
136
Whitely, supra note 111.
137
Girlfriend, Colleagues Defend Slain Doctor, supra note 88.
138
139
Id.
140
Mike Zientek, 10-Year-Old Accused of Shooting Dad to Remain in Custody, KHOU, Aug. 31, 2004, http://
www.khou.com/news/local/crime/stories/khou040830_ mhfathershotcourt/ca4fb6fb.html [hereinafter Zientek, 10-Year-Old
Accused of Shooting Dad].
141
Everett-Haynes, 10-Year-Old Boy Charged in Father’s Shooting Death, Sept. 30, 2004,
www.khou.com/news/local/crime/stories/khou040929_jt_ lohstroh.24a9568e.html.
142
Boy Who Allegedly Shot Father to Remain in County’s Custody, supra note 129.
143
Zientek, 10-Year-Old Accused of Shooting Dad, supra note 142.
144
See Gardner, Recent Trends, supra note 4, at 5.
145
146
See Boy Suspected of Fatally Shooting Father to remain Detained, Click 2 Houston,
http://www.click2houston.com/3690913/news/detail.html (last visited July 8, 2005).

147
Id.
148
Gardner, Recent Trends, supra note 4. See Lodge, supra note 23.
149
Lodge, supra note 23.
150
Gardner, Recent Trends, supra note 4, at 1, 7.
151
See Rybicki, supra note 5, at 9. See also Warshak, supra note 5, at 236; Gardner, Recent Trends, supra note 4, at 6 (pointing out a
case of one boy who repeatedly observed his father beating his mother).
152
See Zientek, Police Reports, supra note 100.
153
See Zientek, Very Angry, supra note 7.
154
See Zientek, Police Reports, supra note 100.
155
See Zientek, Parents Speak Out, supra note 124.
156
157
Id.
158
Id.
159
Id.
160
Id.
161
Everett-Haynes, supra note 143.
162
Id.
163
Id.
164
Id.
165
Id.

166
167
168
169
See Nichols, supra note 93.
170
Id.
171
Id.
172
Id.
173
Id.
174
Id.
175
176
Id.
177
Id.
178
See Tom Whatley, Reshaping the Insanity Defense, H.R. Rep. No. 99, at 12 (Tex. 1984).
179
Tex. Penal Code Ann. § 8.01 (Vernon 2003).
27 WRLR 153
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THE EXTREME CONSEQUENCE OF PARENTAL..., 27 Women’s Rts. L....

27 Women’s Rts. L. Rep. 153

Women’s Rights Law Reporter

THE EXTREME CONSEQUENCE OF PARENTAL ALIENATION

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II. WHAT IS PARENTAL ALIENATION SYNDROME-DRIVEN MURDER OF A PARENT?

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C. Is PAS Recognized as a Disorder in the DSM?

IV. APPLICATION OF NGBRI-PAS AS DEFENSE TO THE CRIME OF MURDER OF A PARENT IN RECENT

A. The Lohstroh Case - Texas

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• High-conflict divorce proceedings

• Other serious emotional or medical problems of one family member

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V. OTHER DEFENSE THEORIES AVAILABLE TO THE LOHSTROH BOY

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available at http:// www.deltabravo.net/custody/rand01.htm.

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