https://wamu.org/story/19/08/19/fathers-are-favored-in-child-custody-battles-even-when-abuse-is-alleged/
Dominique Maria Bonessi
Jane’s life changed abruptly when her son suggested to her that her ex-husband had been sexually abusing him.
Tyrone Turner / WAMUThis story was updated Thursday, Aug. 22.
Jane, a mother of three, says she would do anything to protect her children.
“I put all of my energy into loving them and nurturing them and showing up for them and I pray every day that that’s enough,” she said.
Just five years ago, Jane was a stay-at-home mom living in Maryland. Her husband was the breadwinner. She says she had a pretty normal life.
But, in one moment, Jane says, her life took a turn for the worse when she witnessed her 4-year-old son acting inappropriately with his younger brother. When Jane asked her son about the strange behavior, he suggested that he was being sexually abused by his father.
“In the way a four-year-old would, he actually acted it out on me and described it as a game that he had to play with his dad, but didn’t want to,” Jane said through tears.
WAMU is not using Jane’s full name because she is still dealing with the fallout of litigation against her ex-husband.
Jane said she was in shock after speaking with her son. In child custody cases involving allegations of child abuse or domestic violence, the common misperception is that the mother is favored over the father. But new research shows fathers are favored over mothers in child custody battles, even when they’ve been accused of or found guilty of abuse. Maryland is one of the first states trying to use the empirical data to change family law involving custody cases like Jane’s.
“I also really didn’t want to believe it. I wanted to look for every other possible explanation,” she said.
When her former husband got home from work that day, they argued.
“I had no idea what to do,” Jane said. “I just fled with my kids to another state where my family lives.”
While out of state, Jane took her 4-year-old to a child advocacy center where he told a social worker that he had been abused by his father.
Back in Maryland a few months later, family court records show that the judge did not allow a letter from the out-of-state social worker describing the child’s abuse allegations to be accepted as evidence. A court-assigned child custody evaluator told the judge the details in the letter did not match the social worker’s notes. The evaluator also said that Jane was coaching her son into thinking he had been abused by his dad to alienate the father.
After a year-long legal battle that cost a total of $700,000 for both parents, the judge determined that the father could have full legal custody. The children would split days between their parents’ homes.
The outcome of Jane’s case is not unique. One in 51 children’s claims are substantiated in court when their mother claims sexual abuse and the father claims parental alienation, according to new research done by Professor Joan Meier at George Washington University Law School.
Parental alienation is not new to legal custody cases. Meier describes it as “the idea that one parent turns the child against the other parent in a variety of ways.”
Meier’s research shows that when a mother is accused of alienation, she is twice as likely to lose custody compared to when she is not. Among the cases in which parental alienation was credited by the court, Meier found no instance in which a mother’s claims of child abuse were also substantiated.
The study looked at more than 2,000 custody cases involving child abuse, domestic violence, and alienation nationwide. Meier’s research is expected to be published by the National Institute of Justice later.
Old Beliefs Die Hard
The cases Meier’s research found had a common pattern of children being placed with parents accused of or found guilty of abuse.
“That’s not a fantasy scenario. That’s something we see play out too often,” said Paul Griffin, the legal director at Child Justice, a legal aid society dedicated to protecting victims of child abuse and domestic violence.
Griffin says these outcomes happen because of a long-held belief among judges, attorneys, psychologists and others in the field that parental alienation is pervasive. When Griffin started representing mothers and children in the family courts in 2001, he says he was shocked by the amount of hearsay evidence in child custody cases that was allowed by judges.
“Lawyers were de facto testifying from the bar. They were making assertions to the judge in which they provided no evidence,” Griffin said. “And I was surprised. I was more than a little surprised.”
Parental alienation is based on the theory of Parental Alienation Syndrome that was advanced in the 1980s by psychiatrist Richard Gardner.
The American Psychiatric Association describes the syndrome as a child exhibiting ambivalence or hatred toward one parent after being driven to do so by their other parent.
Gardner, who died in 2003, claimed his research was not biased against women. He testified in 400 child custody cases. In some cases, he recommended that courts remove children from the homes of the alienating parents and place them in the custody of the parents accused of abuse.
There are many critics of Gardner’s work. The psychiatric association and American Medical Association never recognized his research.
But Griffin says courts found Gardner’s theory compelling.
“It was absolutely gospel for a lot of people for a long time,” Griffin said.
Retired Prince George’s County Judge Sherrie Krauser doesn’t believe she’s explicitly seen parental alienation.
“What I have seen are allegations that one parent was actively engaged in separating the affections of a child from the other parent,” Krauser said.
She says judges sometimes bring their own personal experiences into the courtroom.
“I think what you’re seeing is not necessarily a presumed bias but a reality based on our culture,” Krauser said.
Financial Toll
Jane and other mothers in similar situations say they had no idea of the financial toll child custody litigation would take on them.
“I liquidated my retirement from when I worked. My parents used up all the cash on hand they had,” Jane said.
Jane says she was fortunate to have her family’s support.
“In any other situation, if someone was like, ‘You need to come up with $150,000 in the next couple of days or you’re going to lose access to your kids because we’re not going to represent you,’ that would be extortion,” Jane said. “That is extortion.”
In the end, Jane couldn’t appeal the court’s decision because she was out of money.
Seeking Solutions
Every year in the U.S., an estimated 58,000 children are placed in the custody of or with unsupervised contact with an abusive parent, according to the Leadership Council on Child Abuse and Interpersonal Violence, a nonprofit professional group that promotes the ethical application of psychological science.
Maryland is one of the first states to create a legislative panel to make recommendations to combat these family court outcomes.
“We’re coming up with the best recommendations of the best practices based on evidence,” said State Senator Susan Lee, a Montgomery County Democrat.
Lee proposed studying family court issues during the 2019 General Assembly session. State lawmakers are looking at Meier’s and other empirically-based research to help inform family court judges.
“We just want to come up with something that provides better tools to equip decision-makers to be more accurately informed, unbiased, and fully confident that they’re making these incredible complex and life-altering determinations on behalf of these children,” Lee said.
But lawmakers and advocates may disagree on how to have an impact on the courts. While some push for legislation, others say more training is needed for judges.
Krauser, the retired judge, says while new trial judges already go through intensive training for cases involving child abuse and domestic violence, legislation and more training are necessary.
“Historically, domestic violence was an issue that was not taken terribly seriously by the courts or the legislature years ago,” she said. “And through legislative change and training of judges, it is something that is taken quite seriously now.”
Krauser says when judges get a look at the research, like Meier’s, “that opens eyes.”
Last year, with bipartisan support, the House of Representatives unanimously passed a resolution expressing that courts should resolve allegations of abuse or domestic violence prior to determining child custody. The resolution would have also asked evidence submitted to the court meet admissibility standards and for court witnesses to be experts in their field. It died in the Senate without a hearing.
Meier explains why she believes these changes are needed.
“This stuff is already in the law,” Meier said. “They shouldn’t be relying on scientific theories that aren’t admissible. You shouldn’t be relying on experts that don’t have any expertise. You don’t need new statutes for that, but it might be that new statutes will help make that change.”
Judge Krauser says Maryland family court judges are held to high standards and typically judges with more experience are given cases involving child abuse and domestic violence.
“Now I can’t tell you what happens in every courtroom across the state or across the country,” Krauser said. “But, each judge has to be responsible for making their own decisions, and any information they get must be admissible in court.”
Meier says she is hoping to make her research accessible by providing a breakdown and educational resources for each state to inform advocates and policymakers.
“I’m hoping the courts will realize that they’ve been operating from misconceptions about kind of what’s fair and what’s true,” Meier said. “And this will help reset assumptions about reality.”
Solutions And Solace
Jane says her children, who split weeks between their parents’ homes, have been silenced.
“[My son is] scared of being hurt or separated from me,” Jane said. “I feel like I’ve been handicapped as a parent because I can’t ask normal questions.”
Jane says she’d like the group of Maryland lawmakers and experts to figure out how to better protect the well-being of children.
“How do we get rid of some of the road blocks and remove the barriers that make it so hard to protect our kids,” Jane said.
Proponents of the use of parental alienation in courtrooms say they would like psychologists and judges to see it as a mental illness. A 2013 article in the Journal of the American Academy of Psychiatry and Law also argues the use of parental alienation in court isn’t a common occurrence. Its authors write that judges are “conscientious, hard working, and concerned about the welfare of children” and are not “easily misled into placing a child with an abusive parent when there is valid evidence of that parent’s maltreatment of the child.”
But Griffin says he looks at these cases involving parental alienation and child abuse as public health issues which require best practices and data to fix.
“Custody evaluators are no better at determining the truth than anybody else. And they have the same biases,” Griffin said.
Today, Jane’s children are in therapy and she has created a safe space for them at home. But for now, all she says she can do is teach her children about how to avoid unwanted touching and how to communicate if they’ve been abused.
This story was corrected to reflect that when mothers are accused of alienation, they are twice as likely to lose custody than when they are not and to note that Joan Meier’s research will be published later in 2019, not in 2020. The story was also corrected to reflect that an estimated 58,000 children are placed in the custody, or with unsupervised contact with, an abusive parent. A clarification was made to address that the type of abuse claimed in court that is substantiated for one in 51 children when parental alienation is invoked by the father is child sexual abuse. The story was further clarified to note that there are no instances in which a court credited both parental alienation and child abuse
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