Biased Family Court System Hurts Mothers
By Garland Waller
Wednesday, September 5, 2001
Behind closed doors of the family court system, thousands of women each year lose child custody to violent men who beat and abuse mothers and children. The writer says family courts are not family-friendly and betray the best interests of the child.
(WOMENSENEWS)--Studies show that in approximately 70 percent of challenged cases, battering parents have been able to convince authorities during custody battles that their victim is unfit or undeserving of sole custody, according to a recent report published by the American Judges Foundation.
That statement would have once shocked me, but no more. Nor am I surprised when I read that a family court judge has awarded custody of a 3-year-old girl to the father who has violently beaten her mother. I do not even lift an eyebrow when a 2-year-old boy, who comes home from unsupervised visitation with his dad, has a diaper filled with his own rectal blood and that same child is later turned over to his father on a full-time basis. And when a mother is thrown into jail, denied the right to ever see her children again, because she brought up the issue of child abuse in a family court, I'm sickened, but not shocked.
These injustices are commonplace today in the closed-door family court system. These courts often claim to operate in a manner consistent with the "best interests of the child." In practice this often means that a judge, often a male judge, biased and imperious, defines that phrase. These judges decide, time and time again, when a woman raises the allegation of sexual abuse in a custody dispute, that it is she who will lose her children forever.
I used to think that the family court system was basically fair. That was before my childhood friend, Diane Hofheimer, asked me to consider doing a documentary on the family courts. She had taught herself the law so that she could work with her attorney husband, Charlie Hofheimer, in their Virginia law practice.
Thousands of Mothers Lose Their Children to Abusive FathersRepresenting only women in divorce and custody cases, Diane and Charlie began my education with one grisly case. I thought it was a fluke, but I agreed to look at some of the legal documents. And so began my journey into the dark world of family courts.
What I learned was that thousands of women are losing custody of their children to men with histories of violence and sexual abuse. Sure, these cases are complicated, but it doesn't take a legal genius to figure out that it's not good for kids to watch daddy break mommy's jaw. Research shows a high correlation between domestic violence and child sexual abuse.
Garland Waller Says: We need a real overhaul, but let's start with some basics:
- Open the courtrooms to the public and make judges accountable for their rulings.
- Get rid of the "best interests of the child" as the standard for custody and replace it with a new concept called the "approximation standard." That means that the judge should try to approximate the same setup for the children that existed before the divorce. If mom was with the kids 70 percent of the time before the divorce, she would be with them 70 percent of the time after the divorce. In non-contested custody cases, the mother and father generally agree to this on their own.
- Most significantly, the allegation of child abuse in a custody battle must be considered a rebuttable presumption, that is, that the sworn testimony of a parent or child claiming abuse is presumed to be true unless and until the accused sufficiently challenges its veracity.
"We have created a system that purports to be a gatekeeper--keeping victims from victimizers--but the system is really the welcome mat for victimizers to have access to the victims," says Richard Ducote, a nationally recognized child advocate and attorney. He adds that there has been virtually no change in the process during the past two decades.
In fact, a pilot study in the early 1990s by the California Protective Parent Association and Mothers of Lost Children found that 91 percent of fathers who were identified by their children as perpetrators of sexual abuse received full or partial unsupervised custody of the children and that in 54 percent of cases the non-abusing mother was placed on supervised visitation.
One primary reason for what many consider a disastrous outcome, Ducote and other experts say, is the popularity of the theories of Dr. Richard Gardner, whose ideas are apparently more persuasive to judges than the testimony of battered women and victimized children.
Gardner's brainchild is Parental Alienation Syndrome. This is the name given for the practice of one parent saying disparaging things about the other parent in an attempt to alienate the child from the ex-spouse. This so-called syndrome is based on anecdotal evidence. Gardner's books on the subject are self-published, something that should give judges and experts pause, even though he does look good on paper.
He's a professor at Columbia Medical School and has been publishing papers for two decades. Fathers' rights groups love him.
Not addressed by Dr. Gardner and his adherents are what a mother should say to a child raped by her father. They merely discount all such allegations as examples of parental alienation syndrome, or some variation of it under a different name such as SAID (Sexual Allegations in Divorce) Syndrome, Malicious Mother Syndrome or some other fabricated condition.
These experts are certainly free to believe whatever they wish to, but much to the harm of thousands of children and their caring, protective parents, these ideas have been accepted by personnel in most of the family courts in the country: the judges, court-appointed lawyers charged with protecting the child's interests, and custody evaluators such as psychologists and social workers.
In essentially every case in which courts place children with abusers, despite substantial evidence of sexual abuse or domestic violence and no evidence of fabrication on the protecting parent's part, it is the parental alienation syndrome that is used by the judge, the evaluator or the child's lawyer to ignore and discount the abuse evidence and to wrongfully construe all of the child's symptoms as evidence of alienation.
Parental Alienation Syndrome Used to Wrongly Blame MothersMy colleague Hofheimer is convinced that the so-called syndrome is to psychology what voodoo is to surgery.
"What would a good mother do," I asked Dr. Gardner two years ago when interviewing him for the documentary, "if her child told her of sexual abuse by his or her father."
His answer: "What would she say? Don't you say that about your father. If you do, I'll beat you."
That's on tape and I have a signed release.
In researching my documentary, I have met many honest, caring and courageous mothers who, for speaking the truth, have been publicly called crazy, hysterical and delusional, and labeled with all kinds of pseudo-disorders for being strong and for fighting for the safety of their children.
Yet some of them have been nearly broken by the family court system, and the damage to their children is immeasurable. We must act now to begin reforming our family courts.
For more information:Diane Hofheimer and Charlie Hofheimer:
Divorced From Justice:
California Protective Parents Association:
Family Law Courts.com:
Stop Family Violence:
"Domestic Violence and the Courtroom: Understanding the Problem ... Knowing the Victim," American Judges Association and American Judges Foundation:
"Small Justice: Little Justice in America's Family Courts," award-winning documentary by Garland Waller:
Garland Waller is an assistant professor in the Television Department at Boston University's College of Communication. She has produced more than 10 award-winning documentaries.