2009: A Judicial Guide to Child Safety in Custody Cases
National Council of Juvenile and Family Court Judges Family Violence Department
C. [§3.3] A Word of Caution about Parental Alienation
Under relevant evidentiary standards, the court should not accept testimony regarding parental alienation syndrome, or “PAS.” The theory positing the existence of PAS has been discredited by the scientific community. In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert case. Daubert, in which the court re-examined the standard it had earlier articulated in the Frye case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. PAS does not pass this test. Any testimony that a party to a custody case suffers from the syndrome or “parental alienation” should therefore be ruled inadmissible and stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.
The discredited “diagnosis” of PAS (or an allegation of “parental alienation”), quite apart from its scientific invalidity, inappropriately asks the court to assume that the child’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 child’s responses by acting in violent, disrespectful, intimidating, humiliating, or discrediting ways toward the child or the other parent. The task for the court is to distinguish between situations in which the child is critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications) , and situations in which the child has his or her own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. Those grounds do not become less legitimate because the abused parent shares them, and seeks to advocate for the child by voicing his or her concerns.
Children are at risk when custody cases rely on a meritless theory of parental “alienation”
by R. Dianne Bartlow
The force behind these rulings are the innocuous-sounding “friendly parent” statutes on the books in at least 32 states, which mandate that courts, in deciding custody, consider how willing each parent is to facilitate a “close and continuing” relationship between the child and the other parent. This is one factor in determining what custody arrangements are “in the best interests of the child.”
“Friendly parent” statutes are a dressed-down form of a theory called Parental Alienation Syndrome. PAS theorizes that most accusations of child abuse (especially sexual abuse) made during a custody battle are actually fraudulent. Not only are the charges false, says the theory, but they are deliberately undertaken by one parent (in most cases, the mother) to “alienate” the child from the other parent (generally, the father).
Never mind that the American Psychological Association has said PAS has no valid merit, nor that PAS inventor Richard Gardner has also said that society “overreacts” to sexual abuse and that pedophilia is an honorable lifestyle choice. PAS lives on in “friendly parent” statutes and in the testimony of many court-appointed evaluators and mental-health professionals. Those who diagnose PAS often recommend that full custody go to the “alienated parent” (usually the biological father) and that unsupervised visitation with the “alienating parent” (usually the mother) be cut off.
Ultimately, these outmoded ideas maintain their grip because of a long-standing tradition of discrediting women’s concerns and believability in comparison to men’s, wrote Zorza in Domestic Violence, Abuse and Child Custody (Civic Research Institute, 2010). Their effect is to lend powerful leverage to abusers.
“Severely abusive fathers may deliberately escalate their abuse to force the woman to complain, flee, or bargain away valuable marital assets, alimony or child support. They then retaliate by filing for custody, knowing they will likely be able to deprive the mothers of the children,” writes Zorza. “Other abusive fathers use the “friendly parent” concept to force the mother to pay them child support and to deprive her of any visitation.”
The consequences can be dire. According to the Center for Judicial Excellence, a court advocacy organization, an estimated 75 children nationwide were murdered between June 2009 and April 2010 by abusive fathers who won custody battles.
Currently, about half of the states in the U.S. have laws requiring courts to consider domestic violence on an equal basis with factors such as “friendly parent” statutes when making custody determinations. But family courts have wide discretion in how heavily to weigh domestic violence. The National Council of Juvenile and Family Court Judges and the American Bar Association recommend that abuse be given more consideration than other factors in custody cases – and that courts withhold sole or joint custody from anyone with a history of domestic violence.
It’s high time for parents and the public to know what’s going on in these situations, says Barry Goldstein, co-editor of Domestic Violence, Abuse, and Child Custody: “I believe that if the public was aware of the frequency in which courts make fundamental mistakes and send children to live with abusers, the practice would quickly end because it would not be tolerated.”
R.Dianne Bartlow, PH.D., is associate professor of gender and women’s studies at California State University, Northridge.
So you have a child with a soon-to-be ex-girlfriend or ex-wife, and you are wondering what is going to happen to your children. The first thing you need to be aware of is this: The laws and family court system are not set up fairly towards fathers. The laws are set up to award custody to the parent who has had the most involvement so far raising the child, which means the parent who has worked the least – this is virtually always the mother. This usually guarantees that the mother will receive custody of the child, and since child support is mandatory, that you will be paying several hundred dollars in child support to her each month. Now does this make sense?
Hell no! Why should the parent who has had the most involvement in raising the child get custody of the child? But even more importantly, why should the other parent have to pay to support that child after splitting with its mother? (As the author says later, “A fairer system would be to eliminate child support and have the parent who is fortunate enough to be awarded custody have full responsibility for providing for the children when they are with that parent.” And if we had that fairer system, you could let your bitch of an ex have custody of the damned rugrats. But since we have our current unfair system, your only recourse is to get custody of the kids so that you can save some bucks. Um, and do what’s best for your precious offspring. Yeah, that’s the ticket!
If you believe that you are the better parent, you need to read this guide and find out everything you need to know in order to have the best chance at obtaining full custody. If you choose not to get full custody of your child, not only are you in for a lifetime of emotional headaches but a lot of child support – which you will find does not all get spent on your child.
But what if you don’t believe you are the better parent? Well, fight for full custody anyway, because otherwise you’ll be paying child support, and it will go toward such things as paying the mortgage for the house your child lives in — a house that your ex will also get to live in. And that’s not fair!!!
The amount of child support you will end up paying as your child grows up is enough to buy a nice house. Let’s say you split up with your ex, and you have two children together, ages 1 and 4. The court orders you to pay $500/mth per child, based on your $45,000/year income, until the children turn 21 (some states end child support when the child turns 18, and others require it through age 21 and beyond). By the time your children are grown, you will have paid $444,000 in child support. The main cost of raising a child is childcare; outside of childcare (which ends around age 12), do you really believe that $1,000 is being spent on your two children each month?
The USDA has estimated the costs of raising a child. In a single-parent home, with a pre-taxed income of $39,1000 per year, it would be $518 a month for the one-year-old, and $558 a month for the four-year-old (it gets progressively more expensive as the kids get older). So yeah, I can really believe that $1000 a month is being spent on your two hypothetical children.
As the author notes, now that your ex is single, she’ll have to work full-time to support herself and the kids, and since she’ll make less money than you, “how does that qualify her as a better parent than you?” (Not counting the fact that all the time she’s already spent raising the kids may have contributed to her having a better relationship with them. However, if she gets custody of the children, the courts will make you pay child support. And ”the main reason why the system is set up this way?”
The government would rather have you subsidize her than pay for her going on welfare. And the feminists have convinced the lawmakers and judges in society that women shouldn’t have to work to support their children if they don’t feel like it.
So, since she now works full-time, making her no better as a parent than you are, why should the feminists force you to subsidize her, so that she doesn’t have to work to support her children? If the damn goverment would just let her go on welfare, then things would be just fine. But NOOOO! It insists that you support your kids.
But why pay child support when it’s so much cheaper to just get custody of the kids — so, let’s learn “The Rules of Winning Child Custody.”
1. Get an Aggressive Lawyer
When you consider how much money you have to lose in child support over the years until your child turns 18 or 21, and the amount of emotional stress you will go through all of those years if your ex wins custody, and the fact that the court system is stacked against fathers, do you really think it’s wise to handle your case without the assistance of an attorney?
Sure, lawyers are expensive, but think of all the money you’ll save by not having to pay child support.
I hear you ask, “Doesn’t it actually cost money to raise kids, so that if I do get custody, I’ll still have to pay for their upkeep?”
Heck no! You can send them out to work as chimney sweeps, and actually make money on the deal!
2. Use The Court System To Wear Down Your Ex
Whether you are representing yourself or have hired an attorney, keep in mind the more work you create for your ex, the more you will wear down her resolve to fight you and keep full custody of the kids. If your ex’s main reason for retaining full custody of your children is to collect free child support from you, it will vanish fast once all of the child support is going to pay her attorney to fight you in court.
And if, because of your aggressive use of the court system, she is forced to use all her child support funds to pay lawyers, will your kids suffer? Who cares. The important thing is preventing your ex from benefiting from your dough. (The best interests of the children never really come up in this piece, oddly enough.)
3. Keep The Playing Field Uneven
If your ex does not have an attorney, consider yourself fortunate – this gives you a huge advantage. The less she knows about the legal system, the better chance you have that she will do something in the eyes of the court that will hurt her chances of getting custody. If she asks for your opinion on whether she needs an attorney, try to convince her that she does not need one and emphasize the cost to her.
In fact, tell her that lawyers charge a billion dollars an hour, so you certainly aren’t going to use one. Say that you don’t want to make this process adversarial, and that you don’t see why the two of you can’t work out a joint custody arrangement that will make things as easy as possible for the kids. … And if your ex believes you, then you and your lawyer (the most blood-thirsty one in the state) can use it as evidence that she’s mentally incompetent.
4. Harass Your Ex, Both In Person AND Via The Court System
When you talk to your ex, such as when you are arranging to exchange the children for your visitation, be sure to bring up issues with her raising your children that bother you. The more you point out ways she needs to change her behavior in order to be a better parent and maintain custody, the more you will bother her. You know your ex – will she eventually give in if you continue to bring up issues that bother her and continue to take her to court?
You know your ex — you can cause her to have a mental breakdown if you keep harping on what a bad mother she is, and how the courts are going to take away her kids!
5. Cause Your Kids to Bond with People in YOUR Camp, so the Judge Will Think Twice About Taking Them Away From their New Loving Relationships
What you can do: Get remarried first, then file for custody. If you have relatives nearby, pay them to baby sit so they become a big part of your child’s life.
You can dump the new wife and the paid relatives once you have custody.
6. Make it Look Like Your Kids’ Lives Suck!
If you have not yet split up physically, try to remain in the house with the children and have your ex move out. If you have left the home, start building a case as to why the child is not doing well living at the house, attending the nearby school, etc. Do research on the school or daycare the child is attending to obtain evidence of why that particular facility is bad for your child. Information on schools can be found on the state department of education websites, and information on daycares is generally also available from the state, usually from the department responsible for welfare.
Start building a case about why the house the kid has always lived in, and the school he’s always attended, are bad for him, even though you evidentially thought they were just fine when you were with his mother.
7. Make Your Ex Look Crazy
Collect any records you have on the mental instability of your ex or her family, including medical records, and any police reports or convictions of their physical violence. Have a tape recorder handy to tape her if she has angry outbursts.
And how do you collect medical records on your ex and her family? Well, use your imagination on that one.
And try to provoke her, so you can tape her angry outburts — it will not only help your case, it’s also good, sadistic fun!
8. Make the Mother of your Children Appear to be a Shiftless, Drunken, Drug-Crazed Slut
If there is no substantial change in circumstances, you will need to provide the court with a composite of reasons why your ex is unfit. For example, a strong case might provide evidence that your ex abuses alcohol, drugs, sleeps around and goes from boyfriend to boyfriend who use drugs in front of the children, cannot maintain a stable residence, leaves the children excessively in daycare, which is a substandard daycare, smokes in the house and in the car although the children are asthmatic, cannot maintain a steady job, and frequently withholds visitation from you.
This would be a “strong case,” hint, hint. Surely you’ve got reason to believe that your ex does most of the things on that list.
9. Take a Tip from Coppola’s The Conversation, and “Record All of Your Phone Conversations With Your Ex and Your Children”
Some states permit you to record phone conversations without the other party knowing. There is a list of all 50 states and their laws on recording phone calls located at http://www.rcfp.org/taping//. If you live in one of the states where it is legal, you should start automatically recording every conversation you have with your ex or your kids when they are at her house.
And, through selective editing, you can use these conversations to prove all kinds of stuff.
10. At Custody Evaluation Time, Get a HIRED-GUN Psychologist To Counter the Court’s Femi-Nazi Social Worker
When you file for a change of custody, the court will probably order a custody evaluation. These are assessments by a social worker that usually end up favoring the mother. The type of person that is attracted to this type of job are low income women with a chip on their shoulders; they are not going to be predisposed to making a determination that children should be with their fathers. [...] One way to combat these custody evaluations is to preempt them with a psychological evaluation of your own. Find a child psychologist who has a reputation for being favorable to fathers, and preferably also one on the court’s approved list of psychologists, if the court has one, and have him do a preliminary evaluation of your child.
Social workers are poor, man-hating lesbians – that’s the only reason they would think that a fine father like yourself shouldn’t have custody of your two adorable children, little, um, “Boy” and “Other Kid.”
11. Get Your Hired Psychologist to Ask Your Kids “Leading Questions” about How UNFIT their Mom Is.
You may want to give the psychologist leading questions to ask your child, such as whether your child would rather live with you, if mother abuses drugs, alcohol, or smoking in front of the child, if people close to the mother abuse or sexually touch the child, etc. – whatever bad things your child has indicated to you about living with your ex.
If your child has indicated that the worst thing about living with his mother is that she makes him do his homework, then have the shrink ask him if his mother is damaging his mental health by pushing him too hard. If he’s complained about how she withheld his allowance because he didn’t clean up his room, then suggest that the psychologist ask him if she is an obsessive control freak with a cleanliness obsession. And so on.
Anyway, those are just a few of tips on “How Fathers Can Win Custody.” And do your best to win custody, because otherwise you’ll have to pay child support, and that can really put a crimp in your lifestyle. Plus, your ex, whom you hate, will have control of that money. And that’s what winning custody is all about: spiting your ex.
Talk to mothers, divorce lawyers, and child advocates and you’ll hear tales of a family court system that’s badly broken.
Gina Kaysen Fernandes: To an outsider, Linda Marie Sacks had the perfect life. Her husband was rich, and they lived in a huge home in Daytona Beach, FL, where she spent her days shuttling her girls to school and various activities. Linda Marie describes herself as a “squeaky clean soccer mom” who “lived my life for my children.” Behind that façade, Linda Marie says she married a monster — a man who verbally and emotionally attacked her for years and sexually abused their two young daughters.
When she finally left him and tried to take her girls with her, she encountered a new monster — family court. Rather than protecting Linda Marie and her two young daughters from a sexual predator, a family court judge denied Linda Marie custody and put her daughters into the hands of their sexually abusive father.
Talk to mothers, divorce lawyers, and child advocates and you’ll hear tales of a family court system that’s badly broken. It’s one that routinely punishes women for coming forward with allegations of abuse by denying them custody of their children. Instead of protecting children from abusers and predators, the court often gives sole custody to the abusive parent, say child advocates. Mothers who tell judges their children are being molested or beaten are accused of lying and are punished for trying to intervene. Some are thrown in jail for trying to keep their kids from seeing an abusive parent. Women, many of whom have few financial resources at their disposal, are often at the mercy of a court system that is not designed to handle domestic violence.
Linda Marie first suspected something was wrong in 2002 when she received a shocking phone call from a school administrator. Her 7-year-old daughter was acting out sexually, with knowledge beyond her years. A short time later, the Sunday school teacher reported overhearing Linda Marie’s daughter saying, “I suck my dad’s penis.” She received more phone calls from school about her little girl using Barbie dolls to simulate oral sex with a boy in her class. “I was very concerned, these are alarming red flags,” said Linda Marie.
She consulted family therapists who also expressed alarm and concern, but failed to report these claims to an abuse hotline. In one of the therapy sessions, the oldest daughter drew a picture that depicted her father as an erect penis on legs. Linda Marie says she once walked in on her husband wiping her daughters’ vaginas in the bathroom before school, “because he told me he wanted them to be fresh.” When Linda Marie confronted her husband, he ignored and dismissed the allegations.
After 11 years of marriage, Linda Marie filed for divorce in 2004. Armed with detailed documentation, she believed the judge would grant her sole custody of her two daughters for their protection. “I was sheltered. I didn’t know I had stepped into a national crisis in the courts,” said Linda Marie, who spent tens of thousands of dollars in a legal battle that ended in the loss of her parental rights. Linda Marie has only seen her children during supervised visits for a total of 54 hours over the past two and a half years. “I’m one of the lucky moms,” she said, choking back tears. “Some bonds are severed forever. I’m thankful for my two hours a month.”
Some mothers like Lorraine Tipton of Oconto Falls, WI, have served jail time as the result of contentious custody arraignments. In November, a judge sentenced Lorraine to 30 days behind bars because she didn’t force her 11-year-old daughter to follow the court’s order to live every other week with her abusive father. “She’s terrified of going; she has night terrors and severe anxiety,” said Lorraine.
Her ex, Craig Hensberger, was arrested three times for domestic violence and once for child abuse. His criminal record also includes two DUI arrests, one of which happened while driving with his daughter. The court ordered Hensberger into rehab and demanded “absolute sobriety,” but his daughter claims he still drinks excessively when she visits.
Hensberger admitted in court that he still continues to drink, but the judge punished Lorraine instead for trying to protect her child. “My abuser is continuing his abuse of me and my daughter with the help of the court,” said Lorraine, who spent three days locked up until her daughter made the heart-wrenching decision to return to her father’s home so her mother could be released from jail. “He can’t get to me physically. The only way he knows how to hurt me is to take my child away.”
“What we are seeing amounts to a civil rights crisis,” says attorney and legal writer Michael Lesher, who co-authored the book From Madness To Mutiny: Why Mothers Are Running from the Family Courts — and What Can Be Done about It. Many judges and court-appointed guardians act above the law with apparent impunity, he argues.
“There’s no hearing, no evidence, no notice — they can take your child away from you,” Lesher tells momlogic. If a mother raises concerns or openly discusses child abuse in court, she typically ends up being the one under investigation. “Mom is guilty until proven innocent,” he says.
A family court judge with the Los Angeles Superior Court refused momlogic’s request for an interview to respond to these allegations.
Unlike criminal court, family court does not rely on criminal investigators to gather evidence in an alleged child abuse case. Instead, the court appoints family advocates known as “guardian ad litem,” or GAL, who are expected to investigate the abuse allegations and make their recommendation in the best interest of the child. GALs are sometimes licensed psychologists, social workers, or attorneys who are not necessarily trained in evaluating sexual abuse or domestic violence. They have the judge’s ear, and their opinions can alter a child’s future. There are no juries and there’s no mandate for legal representation. In fact, most women end up representing themselves because they can’t afford the attorney fees. Stephen Thurmond
Most moms don’t want to take the case to criminal court because they prefer to keep the matter private. Legal experts contend the evidence in sexual abuse cases isn’t typically strong enough to hold up in criminal court to overcome the threshold of “beyond a reasonable doubt.” While the bar is set much lower for proving evidence in family court, advocates argue Child Protective Services frequently doesn’t want to get involved. “If there’s a custody battle going on, CPS won’t touch it,” says Irene Weiser of the advocacy group StopFamilyViolence.org.
There’s no doubt fathers play a critical role in a child’s life, and in most cases, are equally loving and capable parents who deserve custody. However, studies find when a wife accuses her husband of abuse, more than half the time, she faces a counter-accusation of “parental alienation syndrome,” or PAS. Although PAS is not a medically recognized disorder, divorce attorneys often successfully argue that it emerges when a parent brainwashes a child into thinking the other parent is the enemy.
The psychiatrist Richard Gardner, who first coined the phrase “parental alienation syndrome” in 1987, has written more than one hundred articles on the subject, but has offered no scientific data to support his theory. While it’s not considered a certifiable medical condition, PAS is widely accepted in the legal community.
“Parental Alienation unequivocally, categorically exists, and it’s a form of child abuse,” says author and forensic consultant Dean Tong. While he believes more studies need to be done to validate PAS, “it does exist, anecdotally speaking,” he says. As an expert witness, Tong has been called a “fathers’ rights prostitute” for his work in court clashes. But he also testifies for mothers who are fighting to appeal unfavorable rulings. For Tong, it’s about using forensics to find the truth. “I’m not here to protect guys who are guilty,” he says.
In years past, mothers were typically considered the “protective parent” in custody decisions when courts relied on the “Tender Years Doctrine,” which states that children under the age of 13 should live with their mothers. Recently, several courts have ruled that doctrine violated the Equal Protection Clause in the 14th amendment, and replaced it with the “Best Interests of the Children” doctrine. It’s a huge victory for the increasingly powerful Fatherhood Movement that contends dads are systematically alienated from their children after a divorce.
Tong argues the current legal climate continues to put fathers on the receiving end of false allegations. “It’s handcuffs first, speak later,” said Tong, who experienced that firsthand. In 1985, Tong’s ex-wife falsely accused him of sexually abusing his 3-year-old daughter. He spent time in jail and went through “a year of hell” trying to prove his innocence. While Tong was eventually cleared of any wrongdoing, he never regained custody of his kids, and remained under supervised visitation for years. Tong became a self-taught expert on the subject of family rights and abuse accusations. He has written three books, including Elusive Innocence: Survival Guide for the Falsely Accused.
“There’s an assumption that maintaining a child’s relationship with the father is a good idea — even if the father is abusive,” says Stop Family Violence’s Weiser, who believes when the overburdened court system is unable to sort out a custody conflict, it relies on misogyny. She argues there are many judges, GALs, and evaluators who believe that women are inherently vindictive and will lie to get a leg up in a custody battle. “We see it over and over again in family court, where judges or professionals don’t believe the violence is occurring,” Weiser says.
“All we have is ‘he said, she said.’ Who’s telling the truth? That’s up to the judge,” says Tong, who believes the justice system isn’t working for either side. “The system is not doing a good job interviewing kids, we’re still in the dark ages there,” says Tong, who thinks there needs to be more formal education and training for the professionals, including judges who are hearing child custody cases.
According to the American Bar Association, child abuse allegations in custody disputes are rare — occurring in only six percent of cases. The majority of those accusations are substantiated. In terms of false allegations, fathers are more likely than mothers to intentionally lie (21 percent, compared to 1.3 percent). In fact, abusive parents are more likely to seek sole custody than nonviolent ones, and are successful about 70 percent of the time.
After three years of litigation, Linda Marie Sacks says she was no match for her ex-husband’s financial resources and powerful connections. “He was buying his way through the courtroom.” Despite 10 calls into the abuse hotline by licensed professionals, Linda Marie’s ex-husband still claimed she was making false allegations of abuse to alienate his children, and the judge believed him. Linda Marie was kicked out of her home and put on supervised visitation with her two daughters, who are now ages 10 and 12. “The judge legally kidnapped my daughters and won’t give them back,” she said.
In some extreme cases, a custody decision will be reversed, which is what happened to Joyce Murphy. The San Diego mother was charged with kidnapping after she took her daughter out of state, away from the girl’s father, because she believed he was a child molester. The father, Henry Parson, accused Joyce of parental alienation and she lost custody. “Despite my pleas for protection to the police and the DA and the family court representatives, and even psychologists, Mr. Parson was able to convince them and the community at large that he was the victim, and I was just an angry, embittered, divorced woman,” explained Joyce.
Six years later, Parson was caught in the act and pleaded guilty to six counts of child abuse, which included oral sex with a child, molestation, possessing child porn, and using a child to make porn. After Parson received a six-year prison sentence, Joyce told reporters that family court’s only good decision in her case was granting her full permanent custody of her daughter after her ex-husband was jailed.
Lorraine, the Wisconsin mom who was jailed for protecting her daughter, knows her daughter’s nightmare will continue for the rest of her childhood. “He’s never going to stop, it’s never going to end until she’s 18.” Linda Marie says she’s putting every penny towards her legal efforts to win back custody of her daughters. “I will never stop fighting for my girls. I know one day justice will prevail.”
Critics argue that not only is the family court system broken, it was never designed to deal with issues like child custody. The goal is to develop solutions that are in the best interest of the child. “Unfortunately when judges and guardians start thinking of themselves as super government, all sorts of abuses will occur,” says attorney and author Lesher.
Activists are working towards making reforms through legislation. “The heartbreaking challenge is that there’s not one quick fix,” says Stop Family Violence’s Weiser. “This is a war — it’s very ugly, it’s bloody, and very bitter,” concludes Tong.
Reseach Indicating that the Majority of Cases that go to Court as "High Conflict" Contested Custody Cases Have a History of Domestic Violence
RESEARCH INDICATING THAT THE MAJORITY OF CASES THAT GO TO COURT AS “HIGH CONFLICT” CONTESTED CUSTODY CASES HAVE A HISTORY OF DOMESTIC VIOLENCE
Compiled by Professor Joan S. Meier, Esq.
George Washington University Law School
I. Janet Johnston’s publications
Janet Johnston is best known as a researcher of high conflict divorce and parental alienation. Not a particular friend of domestic violence advocates or perspectives, she has been one of the first to note that domestic violence issues should be seen as the norm, not the exception, in custody litigation.
Janet R. Johnston et al, “Allegations and Substantiations of Abuse in Custody-Disputing Families,” Family Court Review, Vol. 43, No. 2, April 2005, 284-294, p. 284.
Janet R. Johnston, “High-Conflict Divorce,” The Future of Children, Vol. 4, No. 1, Spring 1994, 165-182, p. 167.
Johnston has noted that approximately 80% of divorce cases are settled, either up front, or as the case moves through the process. Studies have found that only approximately 20% of divorcing or separating families take the case to court. Only approximately 4-5% ultimately go to trial, with most cases settling at some point earlier in the process. (Citing large study by Maccoby and Mnookin, dividing the child: social and legal dilemmas of custody. Cambridge, MA: Harvard U. Press ).
Johnston cites another study done in California by Depner and colleagues, which found that, among custody litigants referred to mediation, “[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]“. Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon.” -Johnston (1994), supra, citing Depner et al., “Building a uniform statistical reporting system: A snapshot of California Family Court Services,” Family and Conciliation Courts Review (1992) 30: 185-206.
After surveying the research, Johnston concludes:
“Taken all together these studies suggest that, in divorces marked by ongoing disputes over the custody and care of children, both inside and outside the court, there is often a history of domestic violence in the family and a likelihood that the violence will continue after the separation.” – Id. (1994) at p. 169.
It has previously been observed, based on research which predates the domestic violence/parental alienation battles that are now a feature of the field, that “multiple allegations of abuse are a feature of those higher conflict families” whose cases become contested custody litigation. – Johnston (2005), supra (citing Maccoby and Mnookin (1992).
II. Peter Jaffe’s compilation of studies
Peter Jaffe is one of the world’s leading experts on children, domestic violence, and custody.
- Peter Jaffe, Michelle Zerwer, & Samantha Poisson, (2004),”ACCESS DENIED: The Barriers of Violence and Poverty for Abused Women and their Children After Separation,” p. 1.
In “Access Denied”, Jaffe states the following:
“Myth: Domestic violence is rarely a problem for divorcing couples involved in a child custody dispute.”
Fact: The majority of parents in “high-conflict divorces” involving child custody disputes report a history of domestic violence.”
Jaffe et al also lists the following studies (with the following descriptions) as supporting the position that most custody litigants have had a history of domestic violence:
- In a review of parents referred for child custody evaluations by the court, domestic violence was raised in 75% of the cases. – Jaffe, P.G. & Austin, G. (1995). The Impact of Witnessing Violence on Children in Custody and Visitation Disputes. Paper presented at the Fourth International Family Violence Research Conference, Durham NH (Rep. No. July 1995)
- Of 2,500 families entering mediation in CA, approximately three quarters of parents indicated that domestic violence had occurred during the relationship. -Hirst, 2002
- Between 70-75% of parents referred by the family court for counseling because of failed mediation or continuing disputes over the care of their children, physical aggression had taken place. – Johnston & Campbell, (1988), Impasses of Divorce: The dynamics and resolution of family conflict. New York, NY, US: The Free Press.
- Attempts to leave a violent partner with children, is one of the most significant factors associated with severe domestic violence and death. – Websdale, N. (1999). Understanding Domestic Homicide. Boston, MA: University Press.
- A majority of separating parents are able to develop a post-separation parenting plan for their children with minimal intervention of the family court system. However, in 20% of the cases greater intervention was required by lawyers, court-related personnel (such as mediators and evaluators) and judges. In the majority of these cases, which are commonly referred to as “high-conflict,” domestic violence is a significant issue. – Johnston, J. R. (1994). “High-conflict divorce.” Future of Children, 4, 165-182.
III. National Center for State Courts
Studies conducted by the National Center for State Courts (NCSC), looking solely at court records, have found documented evidence of domestic violence in 20-55% of contested custody cases.
The NCSC’s study, looking only at documented domestic violence in custody court records, found that 24% of court records contained some evidence of domestic violence in Louisville; 27% in Baltimore; and 55% of Las Vegas cases indicated domestic violence. – Susan Keilitz et al, Ðomestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers, prepared for the National Center for State Courts; State Justice Institute,” NCSC Publication Number R- 202, p. 5.
The same study found that a screening process (utilized by the mediation program) “revealed a much higher incidence of domestic violence than a review of court records alone would have indicated.” – Id . at 7.
IV. Custody Courts Regularly Fail to Note or Lack Information about history of Domestic Violence
Kernic et al., “Children in the Crossfire: Child Custody Determinations Among Couples With a History of Intimate Partner Violence,” Violence Against Women, Vol. 11, No. 8, August 2005, 991-1021, 1013,
Kernic et al. from the Harborview Injury Prevention & Research Center in Seattle, studied at divorce cases, including both those with a documented, substantiated, and/or alleged history of domestic violence, and those without. The study found that in 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files. – Id . at 1005.
Kernic et al. found that “the court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence.” – Id. at 1016.
Further, Kernic et al. found that fathers with a history of committing abuse were denied child visitation in only 17% of cases. Mothers in these cases were no more likely to obtain custody than mothers in non-abuse cases. This study found that mothers were “more likely” than fathers to be awarded sole custody, but does not identify what proportion of cases resulted in equal sharing of physical custody (which is available in Washington even when one parent is designated “primary”). – Id. at 1014-1015.
The Virginia Commission on Domestic Violence Prevention commissioned a study of these issues at University of Virginia in 1997-98. The study found that in custody cases where there was also a domestic abuse case in court, only 25% of the custody files referenced the existence of the domestic abuse case. – http://www.courts.state.va.us/fvp/history.html
Doreen Ludwig’s comments in response to Pennsylvania plan to increase funding of Counselors, Parenting Coordinators, etc. using HHS OSCE and TANF funds.
March 3, 2009 Presentation to Senate Judiciary Chairman in response to Proposed Changes to Child Custody Law. Doreen Ludwig, PO Box 13778 , Reading PA 19612 , #610-939=1354
I contacted Mr. Warner because I have documented a lack of due process in child custody, especially in cases involving abuse. Custody decisions are made not by Judges, but by Psychologists who call themselves evaluators. The custody evaluator does NOT adhere to law or Rules of Evidence. They do not investigate or verify false allegations. They often rely solely on hypothetical tests and do not question collateral witnesses such as the children’s school, doctors, family, friends, or police reports. They have no training or hands-on experience in abuse and control. They have a profit motive and they are giving custody to abusers to continue cases and award themselves perpetual counseling fees which tend to be higher than the market average.
NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION
THERE IS NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION THAT DOES NOT PROTECT VICTIMS OF ABUSE!!!! See Dr. Ring’s report stating “abuse was mutual.”
The Pennsylvania Supreme Court DENIES appeals, against the PA Constitution, in order to permit custody to be determined solely on the basis of the custody evaluation, even when it is proven to be written for one parent only. Likewise, Court Administration DENIES that custody evaluators are submitting fictitious reports. The Rules Committee refuses to hold evaluators to any standard.
The Pennsylvania Supreme Court Rules Committee has refused to write standards for custody evaluations. Reports are submitted as evidence WITHOUT cross-examination. Witnesses and exhibits that disagree with statements contained in the custody evaluation are DENIED or ignored. Reports are not held to the legal standard of Frye Hearings to determine their admissibility. Reports do not even address the Best Interests of the Children. Judges abdicate responsibility to the evaluator.
BIAS REPORT PROVES BREAKDOWN
The “FINAL REPORT OF THE PENNSYLVANIA SUPREME COURT COMMITTEE ON RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM, 1999-2003” proves a severe breakdown in protection from abuse in issues of family law. The Bias Report failed to adequately address domestic violence in custody, support and divorce.
The Bias Report failed to document results of contested custody including use of evaluations.
Page 474 – Custody - County Surveys – None of the counties responded to a survey question concerning the percentage of fathers who were awarded primary physical custody in contested custody actions, nor did any respond to the survey’s request for breakdowns by race and gender of the outcome of plaintiffs’ requests for physical custody for 2000–01.
Judges responsibility - It is the family court responsibility to facilitate fair, and equitable litigation. One party shall not maintain sole control of marital assets during pendency of custody litigation. Parity and equal access to the law is in the best interests of the children. An interim disbursement may be needed to obtain parity and equal access to the law. The Bias Report states “The courts rarely grant advance distributions of marital assets. Because most non-consensual divorce cases take more than two years for assets to be distributed, the court’s reluctance to enter interim awards places a burden on the economically dependent spouse and may inhibit his or her full access to the legal system. The spouse controlling the marital estate may also dissipate the assets, leaving no recourse for the dependent spouse.” “At public hearings throughout Pennsylvania, attorneys and litigants testified that the judicial system often provides little or no help to pro se litigants who are either initiating legal proceedings or responding to actions against them.[i]”
TRADE ASSOCIATIONS MAXIMIZE PROFIT
Since 1999, when the task force developed SB 74, Trade Associations have increased their influence within family court. Trade Association members include Judges, Court Administrators, lawyers and custody evaluators. Trade Associations facilitate networking between members, teaching Judges, administrators, lawyers and custody evaluators how to work together for maximum business profit potential.
Proposed 5332, 5334, 5335, 5339 and 5340 would help trade association, for-profit motivated, members increase business by court appointment and orders for fees. There are NO limits on fees and NO ethical requirements for practitioners, and NO system for review. In fact, the proposed 5340 protects unethical custody evaluators!!! See Dr. Ring charges.
There is already court approval of bankruptcy due to litigation. See Berks County Court Administrator letter. Proposed 5332, 5334, 5335, 5339 and 5340 will increase bankruptcy. There is no protection for equal access to funds for defense. Abusers are more likely to control finances. Legal aide and pro bono representation is NOT available for victims of abuse.
Abusers are more likely to seek custody and to take the abuse to court. See Working Paper, page 91-93, Exhibit K, “Research Indicating That The Majority Of Cases That Go To Court As “High Conflict” Contested Custody Cases Have A History Of Domestic Violence” compiled by Professor Joan S. Meier, Esq., George Washington University Law School .
Bias Report at Page 402 – While some courts are all too willing to challenge the domestic abuse survivor’s motivations for filing a PFA petition, they often fail to question the abuser’s motive for requesting substantial custody. Research indicates that custody disputes are more frequent when there is a history of domestic violence. Moreover, fathers who are batterers are twice as likely to seek sole custody of their children.62 Such requests for substantial custody may be a misuse of the legal system, motivated by the batterer’s continuing need to control and abuse the mother through harassment and retaliatory legal action. Fathers in such cases may use children as an excuse to have contact with the women they are otherwise prohibited from seeing. Yet, if mothers seek to protect themselves and their children by moving frequently or seeking to limit the father’s contact, the courts may view the mothers as unstable, uncooperative, and unwilling to share access to their children, all in contravention of Pennsylvania’s Custody Act.
Unfortunately for children, the trade association has found abuse and extended litigation good for business!!! The trade association is NOT motivated by The Best Interests of the Children. The members are motivated by self-interest of profit!
STATE RESPONSIBLE FOR PROTECTION
The trade association’s minimize abuse and control. They prefer to give victims equal accountability for the abuse, often dismissing abuse as high conflict or alienation.
This unequal treatment sends a message that the mother is more responsible for getting help and is more “sick” for being in an abusive relationship than the actual person who committed the violence. As part of their mental abuse, many fathers will tell a woman that if she seeks help to escape the home, the system will turn against her, that she will be blamed for the break up of the family, that she will lose everything and that the abuser will get away with everything because he is in control – the system often perpetuates this belief and reinforces to women that they are powerless and will be punished, no matter what they do. Id. In re Sharline Nicholson, et al., 00-CV-2229 (JBW) (CLP), US Eastern District New York 3/1/2002
The “Nicholson” Opinion was written after abused mothers sued New York Children and Youth for failure to protect victims of abuse. The Honorable Justice Weinstein addresses Government’s responsibility to victims:
Responsibility for governmental protection of children rests primarily on the state or municipality. See, e.g. Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hast. L. J. 1, 19-26 (2001).
In a heterogeneous, non-theocratic and democratic society such as ours, there is enormous diversity in domestic relationships and in the degree that they are founded on mutual respect and love (the norm) or malevolence. Particularly if there is a sexual relationship between the adults, the emotional interaction may be intense, sometimes flaring into psychological or even physical abuse. The abuse may be endemic. It may be directed against the children as well as the mother. The children may be indirectly affected, as when they observe an abusive incident. Even when the abuse is not physical, it may be so fierce as to be the equivalent of a beating. The mother may lack the ability or resources to either protect herself or the children. Economic, emotional, moral or other ties may, as a practical matter, prevent the mother from separating from the abuser or seeking governmental protection against him. She may hope for eventual reconciliation – and sometimes it does occur.
Myriad subtle reasons may prevent her from separating from the abuser, protecting the children, or seeking assistance. In some households ethnic or social mores are relied upon to justify abuse as a “traditional right.” Ability to deal with tensions induced by self, a partner, children, economic and social factors varies enormously among those who become embroiled in domestic violence. In short, this case presents the most intricate and recondite relationships, the stuff of thousands of novels, poems, newspaper accounts, and legal proceedings.
Whatever the explanation, physical abuse of mothers and children, or the imminent threat of such ill treatment is not tolerated in our American society. Whether the mother, the family, or the immediate social group accepts cruelty as the norm or as permitted, it is a minimum assumption of our twenty-first century United States that it will not be tolerated. The Government has the obligation to stop it and prevent its recurrence whenever it can.
Second, battered women often suffer from behavioral and psychological problems that differentiate them quite sharply from non-battered women. Third, the behavior of social workers and health service providers was a direct, albeit inadvertent, contributor to women’s sense of being trapped in abusive relationships. Tr.1540. The most dangerous time for a woman and a child appears to be immediately after she leaves the batterer; his threats will usually make her aware of this. Ex. 106 at 16. The battered woman cannot change or stop the perpetrator’s violence by herself. If she does not have adequate support, resources, and protection, leaving him may simply make it worse for the children.” Id. at 19.
PSYCHOLOGISTS/EVALUATORS DON’T ACT IN THE BEST INTERESTS OF CHILDREN
An influential trade association is the Association of Family Conciliation Courts (AFCC). This group began in California and has developed to a National organization with extreme influence over family courts. This group does NOT advocate for victims of abuse. It does NOT advocate for safety of children. It advocates for Fathers Rights often by a presumption of shared custody even when the Father is abusive, ranging from physical abuse, verbal and psychological abuse to sexual abuse (looking, touching, to penetration). Because of the advocacy for abusers, AFCC disseminates legal strategies for abusers to obtain custody. Legal strategies that proliferate in family court include:
· Making false allegations of mental illness, drug abuse,
· Makings claims of alienation or unwillingness to foster a positive abuser/child relationship
Lawyers can obtain a custody evaluator who will write a report awarding custody to the abuser. Lawyers are coached to have pre-arranged agreement with Judges to let the custody evaluator run the case. See Dr. Bricklin’s “SEVERE PARENTAL ALIENATION AND SIMILAR ESTRANGEMENT PATTERNS: OUTPATIENT THERAPEUTIC PROTOCOLS” Exhibit J, page 82-90 of working paper, proving advocating pre-agreements for judicial orders to administer Threat Therapy to child abuse victims. These pre-agreements with Judges are common. All PACE custody evaluators are certified only after submitting a letter from a Judge. It should be noted that Dr. Barry Bricklin advocates for pedophiles and treatment of children by Threat Therapy. Dr. Bricklin’s wife is the President of the Pennsylvania Psychological Board. In Berks County the PACE evaluator is Dr. Timothy Ring. Charges against Dr. Ring and the transcript of 3/27/06 prove that Dr. Ring was used to award custody to Father, an abuser.
Even if a parent has a (mildly) “negative” style, a child who interacts with this parent has the opportunity to learn how to deal with it, increasing that child’s available coping and resource-styles throughout life.
Not only must a MHP deal with all of the diagnostic complexities already mentioned, but also with the fact that psychological life is transformational: it is a “work in continual progress.” A parent who was previously a poor psychological match for a particular child can therapeutically upgrade and transform his or her styles and become a good match for the child. A maturing child may come to see aspects of value in a given parent’s behavior that were initially not perceived by the child, or were perhaps not even in existence prior to the child’s changing his or her own patterns which then could induce change in the parent. All relationships are continuously interactive and potentially transformative for each member of any given family system.
Hence the best (and probably only) way to ascertain if an alienated or estranged child could profit from an ongoing relation with a “target” parent is to set up the special kind of therapeutic programthat has a chance of being successful in such cases and observing what happens. Once the program is in place one can carefully monitor the therapeutic process for positive and negative prognostic signs. We rarely mention these emergent signs (signs that usually do not yet exist at the outset of treatment) because some can be “faked” (while others cannot be faked). In other words, we rarely, at the outset, tell the main therapeutic participants all of the things we are paying attention to.
A therapeutic plan that can be successful in these cases is very different than traditional plans. For one thing, the Court must be actively involved in the process (specific details are listed later). For another, the child must rapidly see that he or she is NOT going to be the major (or even minor) decision-maker of importance as to who attends the therapeutic sessions or for how long. This “tail-wagging-the-dog” phenomenon in which a child gets to exercise control over parents will ultimately not only ensure that an out-patient reunification process fails, but is also ultimately harmful to the child as he or she grows up.
Conservative foundations investments paid off handsomely in 1996, as their grantees were deeply involved in drafting the new welfare legislation. Debate centered on correcting perceived defects in the nation’s welfare system, rather than designing a strategy to reduce child poverty or increase family income. Ending the features of the system that were perceived as encouraging dependency and family instability was stressed more than creating affirmative policies to improve the economic well-being of American’s low-income families. To the extent that enhanced well-being was considered, it was assumed to flow directly from reductions in dependency and non-marital births. The Republican’s Congressional victory in 1994, and the perceived endorsements of the GOP Contract with America – reinforced the conservative message.
They’re changing custody rights and domestic violence laws.
- Posted: Thursday, November 5, 2009 7:45am
- By Kathryn Joyce
At the end of October, National Domestic Violence Awareness Month, members of the men’s movement group RADAR (Respecting Accuracy in Domestic Abuse Reporting) gathered on the steps of Congress to lobby against what they say are the suppressed truths about domestic violence: that false allegations are rampant, that a feminist-run court system fraudulently separates innocent fathers from children, that battered women’s shelters are running a racket that funnels federal dollars to feminists, that domestic-violence laws give cover to cagey mail-order brides seeking Green Cards, and finally, that men are victims of an unrecognized epidemic of violence at the hands of abusive wives.
“It’s now reached the point,” reads a statement from RADAR, “that domestic violence laws represent the largest roll-back in Americans’ civil rights since the Jim Crow era!”
RADAR’s rhetoric may seem overblown, but lately the group and its many partners have been racking up very real accomplishments. In 2008, the organization claimed to have blocked passage of four federal domestic-violence bills, among them an expansion of the Violence Against Women Act (VAWA) to international scope and a grant to support lawyers in pro bono domestic-violence work. Members of this coalition have gotten themselves onto drafting committees for VAWA’s 2011 reauthorization. Local groups in West Virginia and California have also had important successes, criminalizing false claims of domestic violence in custody cases, and winning rulings that women-only shelters are discriminatory.
Groups like RADAR fall under the broader umbrella of the men’s rights movement, a loose coalition of anti-feminist groups. These men’s rights activists, or MRAs, have long been written off by domestic-violence advocates as a bombastic and fringe group of angry white men, and for good reason. Bernard Chapin, a popular men’s rights blogger, told me over e-mail that he will refer to me as “Feminist E,” since he never uses real names for feminists, who are wicked and who men “must verbally oppose … until our flesh oxidizes into dust.” In the United Kingdom, a father’s rights group scaled Buckingham Palace in superhero costumes. In Australia, they wore paramilitary uniforms and demonstrated outside the houses of female divorcees.
But lately they’ve become far more polished and savvy about advancing their views. In their early days of lobbying, “these guys would show up and have this looming body language that was very off-putting,” says Ben Atherton-Zeman, author of Voices of Men, a one-man play about domestic violence and sexual assault. “But that’s all changed. A lot of the leaders are still convicted batterers, but they’re well-organized, they speak in complete sentences, they sound much more reasonable: All we want is equal custody, for fathers not to be ignored.”
One of the respectable new faces of the movement is Glenn Sacks, a fathers’ rights columnist and radio host with 50,000 e-mail followers, and a pragmatist in a world of angry dreamers. Sacks is a former feminist and abortion-clinic defender who disavows what he calls “the not-insubstantial lunatic fringe of the fathers’ rights movement.” He recently merged his successful media group with the shared-parenting organization Fathers and Families in a bid to build a mainstream fathers’ rights organ on par with the National Organization of Women. Many of Sacks’ arguments—for a court assumption of shared parenting in the case of divorce, or against child-support rigidity in the midst of recession—can sound reasonable.
But do any of their arguments hold up? Many of the men for whom Sacks advocates are involved in extreme cases, says Joanie Dawson, a writer and domestic-violence advocate who has covered the fathers’ rights movement. The great majority of custody cases, in which shared parenting is a legitimate option, are settled or resolved privately. But of the 15 percent that go to family court—the cases that fathers’ rights groups target—at least half include alleged domestic abuse.
Unsurprisingly, this argument is missing from MRA discussions of custody inequality and recruitment ads, which cast all men as potentially innocent victims “just one 911 call away” from losing everything they have earned and loved. These rallying calls, and the divorce attorneys hawking men’s rights expertise on MRA sites, promising to “teach her a lesson,” serve as what Dawson sees as a powerful draw for men in the midst of painful divorces.
While MRA groups continue to expand their base of embittered fathers and ex-husbands, they’ve cleaned up their image to court more powerful allies. RADAR board member Ron Grignal, the former president of Fathers for Virginia and a former state delegate candidate, organizes the group’s Washington lobbying activities. In 2008, RADAR partnered with Eagle Forum for a conference at the Heritage Foundation about the threat that VAWA poses to the family. Grignal argues that state interpretations of VAWA are so broad they could cast couples’ money disputes as domestic violence, enabling unwarranted restraining orders that then win women’s divorce cases for them. Politicians, Grignal says, are increasingly on board with men’s rights movement concerns.
“On domestic violence, I’ve had both state and federal legislators tell me they know that this process is out of control,” says Grignal. “They’re afraid if they support [reforms] they’ll be tagged as ‘for domestic violence.’ But I’ve had Democrats on Capitol Hill tell me they agree with everything I say. A member of the Congressional Black Caucus told me that his brother can’t see his kids, and his wife threatened to throw herself down the stairs to ruin his political career.”
Some domestic-violence protections do seem to have unintended effects, such as mandatory-arrest policies that compel police to take someone into custody in response to any domestic-violence call—a policy that has been criticized by RADAR as well as by some domestic-violence advocates, who say it imposes an absurd equivalence between largely nonviolent family spats or insubstantial female violence and serious abuse. But groups like RADAR are criticizing the law for the wrong reasons. In fact, the effect of mandatory arrest in conflating women’s low-level violence with battery, seems very close to RADAR’s campaign for viewing women as equal domestic abusers.
One potent idea advanced by MRAs is the claim that men are equal victims of domestic violence. Mark Rosenthal, president and co-founder of RADAR, makes a very personal argument for the phenomenon. Rosenthal, who doesn’t call himself an MRA, grew up with a mother who he says terrorized the entire family and hit her husband frequently. The true impact of the violence, he says, was more than physical and eclipsed his petite mother’s ability to inflict serious injuries. Rosenthal wants to see an appreciation for women’s nonphysical abuse incorporated into domestic-violence policy. “It’s not about size,” he told an audience at a law enforcement domestic-violence training. “It’s not exclusively about physical attacks. However, it is about a pathological need to control others, and women are as prone to this as men.”
RADAR and other MRA groups base their battered men arguments largely on the research of a small group of social scientists who claim that domestic violence between couples is equally divided, just unequally reported. Most notable are the studies conducted by sociologist Murray Straus of the University of New Hampshire, who has written extensively on female violence (and who Dawson saw distributing RADAR flyers at an APA conference). Straus’ research is starting to move public opinion. A Los Angeles conference this July dedicated to discussing male victims of domestic violence, “From Ideology to Inclusion 2009: New Directions in Domestic Violence Research and Intervention,” received positive mainstream press for its “inclusive” efforts.
While some men certainly are victims of female domestic violence, advocates say the number is closer to 3 percent to 4 percent, rather than the 45 percent to 50 percent RADAR claims. Jack Straton, a Portland State University professor and member of Oregon’s Attorney General’s Sexual Assault Task Force, argues that Straus critically fails to distinguish between the intent and effect of violence, equating “a woman pushing a man in self-defense to a man pushing a woman down the stairs,” or a single act of female violence with years of male abuse; that Straus only interviewed one partner, when couples’ accounts of violence commonly diverge; and that he excludes from his study post-separation violence, which accounts for more than 75 percent of spouse-on-spouse violence, 93 percent of which is committed by men.
All in all, advocates say that cherry-picked studies from researchers like Straus, touted by the MRAs, amount to what Edward Gondolf, director of research for the Mid-Atlantic Addiction Research and Training Institute, calls“bad science.” Statistics suggesting gender parity in abuse are taken out of necessary context, they say, ignoring distinctions between the equally divided “common couple violence” and the sort of escalated, continuing violence known as battery—which is 85 percent male-perpetrated—as well as the disparate injuries inflicted by men and women.
“The biggest concern, though, is not the wasted effort on a false issue,” writes Straton, but the encouragement given to batterers to consider themselves the victimized party. “Arming these men with warped statistics to fuel their already warped worldview is unethical, irresponsible, and quite simply lethal.”
In this, critics like Australian sociologist Michael Flood say that men’s rights movements reflect the tactics of domestic abusers themselves, minimizing existing violence, calling it mutual, and discrediting victims. MRA groups downplay national abuse rates, just as abusers downplay their personal battery; they wage campaigns dismissing most allegations as false, as abusers claim partners are lying about being hit; and they depict the violence as mutual—part of an epidemic of wife-on-husband abuse—as individual batterers rationalize their behavior by saying that the violence was reciprocal. Additionally, MRA groups’ predictions of future violence by fed-up men wronged by the family-law system seem an obvious additional correlation, with the threat of violence seemingly intended to intimidate a community, like a fearful spouse, into compliance.
MRA critics say the organizational recapitulation of abusive tactics should be no surprise, considering the wealth of movement leaders with records or accusations of violence, abuse, harassment, or failure to pay child support. Some advocates call MRA groups “the abuser’s lobby,” because of members like Jason Hutch, the Buckingham Palace fathers’ rights “Batman,” who has been estranged from three mothers of his children and was taken to court for threatening one of his ex-wives.
Contrary to RADAR’s claims, domestic-violence advocates say that not only do abuse accusations not automatically win custody cases for women; there are a rising number of custody decisions awarded to abusive fathers, as judges see wives eager to protect their children as less cooperative regarding custody. More than half the time, studies have found, wives’ accusations of domestic violence are met with counter-accusations from husbands of “Parental Alienation Syndrome”—a medically unrecognized diagnosis that suggests mothers have poisoned their children into making false accusations against their fathers.
In one recent case, Genia Shockome, a Russian immigrant, was fighting for custody of her two children with her ex-husband, whom she charged had beaten her so severely that she suffered post-traumatic stress disorder and who had told her she “had no right to leave” since he’d brought her to the United States. The judge in the case sided with her husband’s counter-claims of Parental Alienation Syndrome and awarded him full custody (and later sentenced Shockome to 30 days in jail while she was seven months pregnant). When her attorney, Barry Goldstein, co-author of the forthcoming book Domestic Violence, Abuse and Custody, criticized the judge in an online article, the judge retaliated with a complaint, and Goldstein was given a five-year suspension. Goldstein says the sanction represents a chilling pressure on attorneys, who may now fear penalties for criticizing a court’s gender bias that will interfere with their duties to their clients and that could result in women deciding not to leave abusers out of fear they won’t get a fair trial.
If cases such as Genia Shockome’s are the fodder of mainstream fathers’ rights advocates like Glenn Sacks—who ridiculed her claims and loss of custody as an uncredible “cause célèbre” for feminist family-law reformers—what Sacks calls the movement’s “lunatic fringe” is more vitriolic yet.
Within the ranks of the men’s rights movement, vigilante “resisters” are regularly nominated and lionized for acts of violence perceived to be in opposition to a feminist status quo. In a few quarters of the movement, this even included George Sodini, the Pittsburgh man who opened fire on a gym full of exercising women this August, killing three and leaving behind an online diatribe journaling his sense of rejection by millions of desirable women.
Sodini’s diary was republished widely, including on the website of a popular men’s rights blogger, “Angry Harry,” who added his assessment of the case. “MRAs should also take note of the fact that there are probably many millions of men across the western world who feel similar in many ways, and one can expect to see much more destruction emanating from them in the future,” he wrote. “One of the main reasons that I decided to post this diary on this website was because the western world must wake up to the fact that it cannot continue to treat men so appallingly and get away with it.” In a phone interview, Angry Harry said, “Of course there will be more Sodinis—there will be many more,” likening him to Marc Lépine, a Canadian man who killed or wounded 28, claiming feminists had ruined his life, or Nevada father Darren Mack, who murdered his estranged wife and attempted to kill the judge in their custody battle. (Also among this number is John Muhammad, the “D.C. Beltway Sniper,” whose involvement in a Washington father’s rights group and history of abuse is described in his ex-wife Mildred’s newly-released memoir, Scared Silent.) Perhaps, Angry Harry mused, that as the ranks of online MRAs grow, “the threat” of their violence “may be enough” to bring about the changes they desire.
Glenn Sacks dismissed Angry Harry as an “idiot” without real power in the movement, and yet he cautiously defends him. “I want to be careful in wording this,” he says, “but the cataclysmic things I’m seeing done to men, it’s always my fear that one of these guys is going to do something terrible. I don’t want to say that like I condone it or that it’s OK, but it’s just the reality.” The movement seems eager to supply more martyrs. After Sacks wrote about a San Diego father who shot himself on the city’s courthouse steps over late child-support payments, numerous men wrote Sacks, telling him, “They’re taking everything from me, and I want to go out in a big way, and if I do, will you write about me?”
I asked RADAR’s Mark Rosenthal about the ties between groups like RADAR—claiming, however cynically, to have egalitarian motives—and the blunt anti-feminist positions of men’s movement allies like Chapin or Angry Harry. “I’d like to suggest that what you’ve just done is interview Martin Luther King and Malcolm X,” he told me. “In any movement, there is going to be a reasonable voice and people who are so hurt, who are so injured by the injustices, that they can’t afford to step back and try to take their emotions under control. But no movement is going to get anywhere without extremists.”
Family Courts Excuse Male Misbehavior, But Blame Women
Most family and divorce (hereinafter, “family”) court judges insist that people going through custody and divorce cases are good people, but that they often behave very badly because they are so stressed out by the pressures of the separation and court dispute. 1 The reality, as Massachusetts has found, is that nothing could be further from the truth for the men who abuse their female intimate partners and children (called either “abusers” or “batterers”).
Massachusetts, which has since 1978 allowed its criminal court judges to issue restraining orders against abusers, and which now requires all judges–even the family ones, to consult offender probation records whenever a petition for protection in an abuse case is filed, keeps very careful records which it periodically analyses. It has found that almost 80% of the male abusers have criminal records,2 46% for violent offenses, and 39% have prior restraining orders entered against them and 15% for violating of those orders within the first 6 months. The men with prior orders are almost equally divided between those who have repeatedly abused one victim and those who have abusing multiple victims.3 Massachusetts also was the first state in the county to create a statewide registry for orders of protection, and it also enters orders of protection onto the defendants’ probation records, so that judges automatically become aware of the defendants’ prior record, even his juvenile one or cases which were later continued without any finding. This is not to say that all abusive men have records or are abnormal,4 or that no female partners of abusers ever have records. However, abusive men, although they tend to be considerably older, better educated and are more likely to be white than other criminals, and hence to have been given far more breaks in the criminal justice system, are simply not the stressed out good guys as the family courts assume. Men who abuse do so as a matter of choice, as a way to assert power and control over their female partners, punish them, to be sexually aroused, or less often because they enjoy causing pain.5
In contrast, although the family courts assign at least equal blame to the men’s victims, the victims are generally no different than other women, except for having been abused and suffering the effects of that abuse. Prior to being abused, battered women are no different from other women.6 It is the effects of the abuse makes them frightened and show other effects, often making them appear less credible as witnesses.7 Courts, police and prosecutors often refuse to help battered women and discourage them from pursuing cases, but then blame them for dropping their cases. In fact, battered women are no more likely to drop cases than are other victims of violent crimes who are being threatened by their abusers. What is different is that most violent criminals never reassault or even contact their victims, but the average battered woman is beaten up three times by her batterer during the pendency of a criminal domestic violence case.8 All victims threatened with further assault want to drop their cases; battered women are actually more willing than other threatened victims to pursue their cases.9
Batterers are believed in blaming victims.
Men who batter are not only adept at minimizing and denying their own abusive behaviors and their responsibility for it, they are also adept at blaming circumstances or their victims, thereby shifting responsibility and projecting their own behavior onto their victims.10 Yet while alcohol,11 poverty, and other circumstances may aggravate a situation, they do not cause violence, as most people in such circumstances do not abuse. Similarly, victims are not to blame for the violence. Unfortunately, abusive men have been very successful in convincing courts and juries that their own behavior is their female victims’ fault, or that their partners provoked them, or wanted the abuse, or that bad circumstances caused the abuse.
Mental health experts lack expertise in family violence.
Complicating the problem is that the courts often rely on mental health experts to evaluate the parties, yet overwhelmingly those experts have never received adequate training in domestic violence or child sexual abuse; indeed, their professional schools seldom teach the subjects and 40% of those working in mental health fields in the U.S. admit they have never received any training about intimate partner violence and even fewer received training about child sexual abuse.12 The content of what little training exists in schools in continuing education programs is often questionable or outright misleading, or so short (one hour is not that uncommon over the course of a career)13 that is clearly inadequate. Guardians ad litem, who are supposed to represent the children’s best interests to the court, generally lack training in any aspects of family violence or even child development.14 Only 10% of custody evaluators know enough about incest to not be dangerous in these cases.15 Without the training and sensitivity to abuse issues, few therapists and custody evaluators even screen for it or follow up when told about it. 16 When they do follow up, batterers are adept at manipulating mental health professionals, appearing very together and, if he admits the abuse, contrite and regretful, justifying his abuse or making it appear part of a substance abuse or depression problem or caused by his partner.17 All this convinces the professional that the abuse was an aberration that will be controlled in the future, although this is most unlikely.18 Mental health evaluators and guardians ad litem, having been trained in a system that blames mothers for most problems that people have,19 are particularly vulnerable to being persuaded by fathers who deny their abuse and blame their partners, with the result being that they discredit the mother’s accusations and fears, and recommend that custody to go to fathers, even when the men are abusive. The result is that domestic violence is seldom considered in the vast majority of child custody determinations,20 particularly when there are allegations of physical or sexual abuse against a child.21 This is an amazing omission, given that at least 47 states and the District of Columbia require courts to consider domestic violence when making child custody determinations. (The three states which do not are Connecticut, Mississippi and Utah.)22
Judges, like mental health professionals, make the gender biased and inaccurate assumption that most domestic violence or child abuse accusations made in custody cases are falsely made for tactical gain, so take these cases far less seriously than they should.23 In fact, incest allegations are only made in 2-3% of custody cases, and mothers make few false accusations either of domestic violence24 or of child sexual abuse.25 Although no psychological test can definitively prove that someone has battered or sexually abused someone,26 many family courts require women to conclusively prove the abuse–a virtually impossible burden–or they refuse to believe that any abuse happened.
Furthermore, because most assessment tools used in custody evaluations were never developed to take into account the effects of domestic violence on victims, the tools distort the results to incorrectly show that most frightened victims are paranoid or have other psychiatric disorders, such as major depression, paranoid schizophrenia, dependent personality disorder, or borderline personality disorder,27diagnoses that will hurt her in any custody fight.28 Without experts able to refute the faulty diagnoses (and few battered women have the money to pay for such experts, even if any are available who are willing to criticize their colleagues), battered women and mothers of children who have been abused risk being assessed as incompetent mothers, and so lose custody. Despite myths put out by fathers that mothers always win custody cases, fathers actually win custody in 70% of custody disputes,29 and this is true even though most men who abuse women and children are far more likely than other fathers to fight for custody and engage in prolonged litigation.30
Batterers do not only manipulate mental health professionals. When batterers feel that their authority is being threatened, they escalate their violent and terroristic tactics, often threatening to kill or seriously injure their victims,31 their families, children or loved ones,32 and even themselves.33 After separation they often carry out these threats, hurting their partners 14 times as often after separation as when they were together.34 Most of these men also rape their female partners, and these rapes are more brutal than stranger rapes, and 10% of the rapes occur in from of the children.35 Batterers retaliate in many other ways as well, often being extremely imaginative and unpredictable. They are notorious in fighting for custody,36 even though most of them never paid much attention to the children while then they were together with the children’s mother.37 Most batterers seek the children knowing that depriving the mother of custody is the best way to punish and hurt her.38 Batterers, who are notoriously poor at paying child support,39 also know that winning custody not only absolves them from having to pay child support, it may obligate the mothers to pay them child support, which they see as another way to hurt the women.
Batterers also retaliate by threatening their former partners and her children during visitation, or by shifting their abuse onto the children. It is quite common for batterers to begin abusing the child physically or sexually after the separation, or for such abuse to escalate, just as their violence tends to escalate after separation against their former partners.40 Many threaten to and actually abduct the children,41 and these abductions are as harmful to the children as when strangers kidnap them.42
Even when batterers have custody, they often refuse to make let the mothers to see their children. The same courts that are outraged when a mother fails to make the children available to the father seldom punish a father who denies visitation to the mother.
Some of these problems exist because of gender bias of individual judges, but other problems exist because the legislature has enacted laws that favor men. While most states (Washington State is the exception) encourage courts to consider in granting custody which parent will encourage a better relationship and frequent contact between the children and the other parent, courts consider only behaviors that mothers are more likely to do under this criteria, leaving out behaviors that men primarily do. Thus failing to pay spousal or child support, or failing when one could do so to legitimate the other parent’s immigration status are not seen as hurtful. Yet what could be more harmful to a relationship with the children than depriving the other parent of adequate support or even the right to remain in the U.S. Indeed, changing custody because a parent has not paid child support is illegal in most states, yet custody is changed all the time when mothers do not give father access to their children.
Another way that some men retaliate is by having their parents join in the fight for custody or visitation (of course, some grandparents, often the ones from whom their son learned to be abusive in the first place, do this spontaneously). Fortunately, this was made much harder by Troxel v. Granville43, the recent U.S. Supreme Court decision which struck down Washington State’s grandparent visitation statute that permitted visitation against the wishes of the parents. Both batterers and paternal grandparents and batterers also often file false or trumped up charges against their daughters-in-law or sons’ girlfriends to get them in trouble and discredit them, most often with child protection agencies, but also alleging welfare or immigration fraud or criminal activity, but also in court.44
Another reason that courts have not been quicker to catch on about men’s projecting their own behaviors onto their victims45 and vindictiveness against their former female partners is that while they speak very negatively about their former partners, they generally speak very positively about their current ones.46 This is typical of men, but few courts or mental health practitioners are aware of it, and are fooled into thinking the men must be objective, and thus what they say about their former partners must be accurate. Yet once the men break up with their current partners they will start publicly devaluing.
Some courts are wising up to men’s retaliatory tactics, because many involve abusing the courts. Many abusers learn that cross or counterclaims often cancel out their victims; prior claims, and that filing contempts shifts the focus to their victims.47 Most batterers know they can bring criminal and contempt charges at no expense to the abusers, but they take an enormous financial and emotional cost on their victims. The result is that many abusive men drag on the litigation and file spurious claims openly acknowledging they are trying to drive their victims onto welfare or into homelessness; half of all homeless women and children in the U.S. are homeless because of domestic violence.48 Occasionally it is only when the abuser accuses the judge or other court players of impropriety or attacks them or those helping their partners, such as shelter workers,49 that the court catches on to their tactics. Unfortunately, some judges (and other court players, including mental health experts) become too frightened50 or vicariously traumatized51 to act sufficiently to believe or act to protect battered women. However, most abusers are far too savvy to make such accusations, attacking only their former partners.
When courts blame victims and fail to hold abusers accountable, they reinforce abuser behavior, subvert justice, disempower the victims, teach children that abusive behavior is permissible and may even be rewarded, and reinforce the cycle of violence.
1. ABA Center on Children and the Law & State Justice Institute, A Judge’s Guide: Making Child-Centered Decisions in Custody Cases, 4 (Chicago, IL: ABA, 2001).
2. James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses, 89 (Boston, MA: Northeastern University Press, 1999).
3. Donald Cochran, Sandra Adams & Patrice O’Brien, From Chaps to Clarity in Understanding Domestic Violence, 3 Domestic Violence Report 65, 77-78 (1998). ).
4. American Psychological Association , Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family, 37 (Washington, DC: Author, 1996). [Hereinafter, APA.] ).
5. Evan Stark & Anne H. Flitcraft, Spouse Abuse. In Violence in America: A Public Health Approach, 123, 132-33 (Mark L. Rosenberg & Mary Ann Fenley, eds., New York: Oxford Press, 1991); Ola W. Barnett & Alyce D. LaViolette, It Could Happen to Anyone, 63 (Thousand Oaks, CA: Sage, 1993). ).
6. Stark & Flitcraft, supra note 6, at 140-44. ).
7. Id., at 134. ).
8. Joan Zorza, Battered Women Behave Like Other Threatened Victims, 1(6) Domestic Violence Report 5 (August/September 1996). ).
9. APA, supra note 4, at 37. ).
10. Id., at 81-82. ).
11. Barnett & LaViolette, supra note 5, at 77. ).
12. Felicia Cohn, Marla E. Salmon, & John D. Stobo, Confronting Chronic Neglect: The Education and Training of Health Professionals on Family Violence, 3-5 to 3-8 and 4-5 (Washington, DC: National Academy Press, 2001). ).
13. Id., entire book; APA, supra note 3, at 13. ).
14. APA, supra note 4, at 102. ).
15 . John E.B. Myers, A Mother’s Nightmare Incest: A Practical Guide for Parents and Professional, 104 (Thousand Oaks, CA: Sage, 1997). ).
16. Edward W. Gondolf & Ellen W. Fisher, Battered Women as Survivors, 133-34 (New York: MacMillan, 1998). ).
17. Id, at 132. ).
18. Id., at 81. ).
19. Barnett & LaViolette, supra note 5, at 9-10. ).
20 Joan Zorza, Domestic Violence Seldom Considered in Psychologists’ Custody Recommendations, 2 Domestic Violence Report, 65 and 68 (1997).
21. Myers, supra note 15. Mothers of abused children are themselves blamed for the abuse and traumatized by it and other’s reactions. See, e.g., Betty Joyce Carter, Who’s to Blame? Child Sexual Abuse and Non-Offending Mothers, 188 (Toronto, Ontario: University of Toronto Press, 1999). ).
22. Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Redefining Families, Reforming Custody Jurisdiction, and Refining Support Issues, 34 Family Law Quarterly 607, 652 Chart 2 (2001).).
23. A Typical Week of Restraining Orders in Massachusetts,1(4) Domestic Violence Report 3, 4 (April/May 1996). ).
24. APA, supra note 4, at 12. ).
26. Myers, supra note 15, at 46-48.
27. Edward W. Gondolf, Addressing Woman Battering in Mental Health Services, 81 (Thousand Oaks, CA: Sage, 1989). ).
28. Barnett & LaViolette, supra note 5, at 74; Gondolf, supra, note 16, at 81. ).
29. Ruth I. Abrams & John M. Greaney, Report of the Gender Bias Study of the Supreme Judicial Court [of Massachusetts], 62-63 (1989), also citing similar findings from California and the entire nation. ).
30. APA, supra note 4, at 40. ).
31. David Adams, Identifying, Assaultive Husbands in Court: You Be the Judge, 33 Boston Bar Jounal, 23-24 (July/August, 1989). ).
32. Id.; Barnett & LaViolette, supra note 5, at 50.
33. Donald Dutton & Susan K. Golant, The Batterers: A Psychological Profile, 49 (New York: BasicBooks, 1995). ).
34. Caroline Wolf Harlow, Female Victims of Violent Crime, 5, Dept. of Justice, Bureau of Statistics, NCJ-126826 (January 1991). ).
35. Ptacek, supra note 2, at 74; Lenore E. Walker, The Battered Woman Syndrome, 48 (New York: Springer Publishing Co., 1984); Jacquelyn Campbell, Community Nursing Department, Wayne State University College of Nursing, Nursing Assessment for Risk of Homicide with Battered Women (1986). ).
36. Barnett & LaViolette, supra, note 5, at 50; APA, supra note 4, at 100; Marsha .B. Liss & Geraldine Butts Stahly, Domestic Violence and Child Custody, in Battering and Family Therapy: A Feminist Perspective, 175, 179 & 181 (Marsali Hansen & Michèle Harway, eds., Thousand Oaks, CA: Sage, 1993) ).
37. Catherine Kirkwood, Leaving Abusive Partners, 54-55 (1993); Einat Peled & Duane Davis, Groupwork with Children of Battered Women: A Practitioners’ Manual, 8 (Thousand Oaks, CA: Sage, 1995). ).
38. Liss & Stahly, supra note 36, at 179. ).
39. Id., at 181; Mildred Daley Pagelow, Family Violence, 311 (1984). ).
40. Harlow, supra note 35. ).
41. Geoffrey L. Grief & Rebecca L. Hager, When Parents Kidnap 4 (1992). ).
42. Id., at 205-206. ).
43. 530 U.S. 57 (2000). ).
44. Zorza, supra note 21, at 68 & 75. ).
45. Dutton & Golant, supra note 34, at 105. ).
46. David Schuldenberg & Shan Guisinger, Divorced Fathers Describe Their Former Wives: Devaluation and Contrast, Women and Divorce/Men in Divorce: Gender Differences. In Separation, Divorce and Remarriage, 61-87 (Haworth Press, 1991). ).
47. Jeffrey L. Edleson & Richard M. Tolman, Intervention for Men Who Batter: An Ecological Approach, 31 & 34 (Thousand Oaks, CA: Sage, 1992). ).
48. Joan Zorza, Woman Battering: A Major Source of Homelessness, 25 Clearinghouse Review, 421 (!991). ).
49. Ptacek, supra note 2, at 63. ).
50. Id. ).
51. Joan Zorza, Why Courts Are Reluctant to Believe and Respond to Allegations of Incest. In The Sex Offender: Theoretical Advances, Treating Special Populations and Legal Developments, Vol. III, 33-8 (Barbara K. Schwartz, Ed., Kingston, NJ: Civic Research Institute, 1999).