Linda Marie Sacks January 2010 Article
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 faÃ§ade, 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.
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.
Gina Kaysen Fernandes: A Daytona Beach, Florida mother who lost custody of her two girls whom she believes are being sexually abused by their father was dealt a crushing legal blow in her the latest courtroom clash. Linda Marie Sacks recently shared her heartbreaking story with momlogic, describing how a judge punished her in family court for raising concerns about her children’s documented abuse.
After going public with her story, Linda Marie filed an appeal with Florida‘s Fifth District Court of Appeals in her third attempt to regain custody of her kids. The self-described "squeaky clean" mom has only been allowed to see her teen-aged daughters two hours a month during supervised visits. "After 3 years with only 64 hours of contact with my children… enough is enough, " said Linda Marie.
This week Volusia County Judge Shawn L. Briese canceled a scheduled hearing and refused to allow the testimony of a clinical psychologist who believes Linda Marie‘s two daughters are victims of child sexual abuse. Dr. Kathy Pearce intended to testify about case notes she recently reviewed from the children’s therapist’s file. "I had seen the summary of her [the therapist’s] files but I had never seen her actual notes," Pearce said. "There was much more there than I ever knew."
Linda Marie faced an uphill legal battle from the get-go. Her wealthy ex-husband hired aggressive attorneys to maneuver his way through the courts. He also paid out of pocket for his own psychologists who are essentially hired guns intended to repeat the father’s version of events on the stand. The evaluator claimed the father’s sexual behavior was within "normal limits". The teens’ father has admitted to inappropriate behavior such as wiping down the vaginas of his school-aged daughters.
Cashing in on child custody fights
Legal watchdog groups say the family courts are ripe for corruption. "The whole system is set up to churn fees," says Kathleen Russell of the Center for Judicial Excellence. In high conflict custody cases, a family court judge typically assigns "court appointees" to provide counseling and evaluations of the parents and their children. The cost of these sessions, which are paid by the parents, can add up quickly. "It’s a very lucrative industry," says Russell "these mental health professionals are making a handsome living."
What concerns Russell most is that there’s no regulation or oversight of this cottage industry. Many of the accused abusers will pay the evaluator directly which can lead to collusion. The court appointees also have legal immunity that prevents them from being sued for unethical behavior. "There’s no checks and balances and no questioning of authority," said Russell. The court-hired professionals have significant power when it comes to determining a child’s future. Judges generally defer to the appointee’s recommendations before making a custody ruling.
Linda Marie says the custody evaluator ordered to examine her case in 2004 never called the abuse hotline, despite having a legal obligation under the mandatory reporting laws.
The psychologist dismissed the girls’ abuse history and their father’s inappropriate behavior. However the therapist determined Linda Marie had a better psychological bond with the children and recommended the mother should be the primary parent.
Two years later, that same therapist reversed her decision and decided that Linda Marie‘s ex-husband should have sole custody of their kids. This change of heart happened coincidentally while an associate in her office was hired to evaluate the father. "Money can buy the outcome you want, with total disregard to the children’s welfare or safety," said Linda Marie.
While the family courts may initially have had good intentions by relying on mental health professionals, critics argue it’s only making the situation worse. "These are criminal matters," says Russell "They need to be investigated as crimes." She advises parents to avoid family court at all cost and try to mediate your divorce instead. If you end up in family court, Russell recommends you collect as much evidence as possible, report abusive behavior when it happens and document it with photos.
There’s no turning back for Linda Marie Sacks who intends to keep fighting as long as it takes to get her girls back. "I have my sights on the US Supreme Court if they do not give me my children back and a new judge." While Linda Marie‘s case may seem extreme, it’s not unique. "It’s happening to thousands of mothers stuck in family court trying to protect their children," says Russell. "It’s a bottomless pit."
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HOW DO WE KNOW CUSTODY COURTS ARE SENDING CHILDREN TO LIVE WITH ABUSERS? TEN WAYS TO KNOW THE CUSTODY COURT SYSTEM IS BROKEN
by Barry Goldstein
Mothers and domestic violence advocates have been complaining for many years about problems in the custody court system that have resulted in large numbers of children being sent to live with abusive fathers while safe, protective mothers are denied any meaningful relationship with their children. Courts have tended to dismiss the complaints by referring to the mothers as “disgruntled litigants.” As more concern about the problem has been expressed and more research performed, the mothers’ complaints have been confirmed.
Early in 2010, a new book co-edited by Dr. Maureen T. Hannah and Barry Goldstein, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY will be published and end any doubts that there is a pattern of mistakes made in the custody court system.
These mistakes have caused thousands of cases to be mishandled and placed the lives and well being of battered women and their children in jeopardy. The book includes chapters by over 25 of the leading experts in the United States and Canada including
judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. Although these experts come from different disciplines and approached the issue from different directions, there is a remarkable consensus about the problem and the solution. The up-to-date research and information now available makes it clear that the present practices can no longer be justified and the custody court system must create the necessary reforms to protect the safety of children and protective mothers in domestic violence custody cases. This article will discuss ten reasons we know the custody court system is broken and must be reformed.
1. Mothers’ Complaints: The problem this article seeks to discuss are cases in which a mother who has been the primary caregiver and makes allegations of domestic violence and/or child abuse loses custody to the alleged abuser and receives supervised visitation or no contact with her children.
These cases have increased since federal laws designed to increase enforcement of child support orders were passed. Male supremacist groups have encouraged abusive fathers to seek custody as a way to avoid paying child support, to pressure his partner to stay or punish her for leaving. The courts and the often inadequately trained professionals they rely on, glad to see the involvement of fathers in children’s lives often fail to recognize the tactic and motivation. Courts tend to look at each case separately and so fail to see the patterns of mistakes in these cases.
Demonizing their victim is a common strategy employed by abusers so a court could believe there was something profoundly wrong with an individual mother to justify the extreme outcome. When experts look at the pattern of these cases it is evident that the unusual circumstances needed to justify a particular outcome cannot be as common as the results would suggest. Women and children make deliberately false allegations of abuse between one and two percent of the time, but the court decisions support the myth that such deliberate false allegations are common. Furthermore, domestic violence allegations are painful and embarrassing to make and require the victims to speak about uncomfortable issues and questions. Research demonstrates that allegations of domestic violence and child abuse make women less likely to obtain custody. We can’t know that an individual case was improperly decided without careful review of the case, but we know the frequency of outcomes that give custody to alleged abusers cannot possibly be based on objective facts.
2. Available Research: The modern movement against domestic violence is only about thirty years old and there was little research available when it started. We now have extensive research to demonstrate common mistakes courts and the often-unqualified professionals they rely on use in domestic violence custody cases. Studies show that while evaluators believe they are considering domestic violence in their investigation of the family, in fact most fail to do so. We have many studies proving widespread gender bias against women in the approaches used by the courts. Evaluators regularly use psychological testing that has little or no relevance to the issues before the court and is gender biased. Psychologists testifying before the courts rarely inform the judges that their results are based upon probabilities so that factors in the case that would reduce those probabilities can be considered. Most important to the present topic is research that considers the accuracy of the actual court decisions. Most custody cases (over 95%) are settled more or less amicably. The problem is with the minority of terrible cases that continue to trial and beyond. Courts often think of them as “high conflict” cases, but in reality these are mostly domestic violence cases. Research studies vary somewhat on the percentage of these cases that involve abusive fathers, but all agree the majority of such cases involve domestic violence. I believe the studies that found 90% of these contested custody cases are caused by abusive fathers because unqualified professionals frequently miss domestic violence. In any event, contested custody cases should be being decided overwhelmingly in favor of protective mothers because most of the fathers are abusive, but 70% of the cases result in custody or joint custody to the father. This does not tell us an individual case was wrongly decided, but does demonstrate that a large percentage of cases are being decided in a way that is harmful for the children.
3. Battered Mothers Testimony Project and Research: Several states including Massachusetts, Pennsylvania, California, Arizona and New York City have done studies based on questionnaires filled out by protective mothers. These surveys have demonstrated widespread problems in the custody court system, many common mistakes and outcomes that fail to protect battered women and their children. This is admittedly not scientific research as the participants are volunteers rather than randomly selected (much of the “research” cited by male supremacist groups comes from interviews with alleged abusers, but is often treated as if it were valid research). Sociologists, Sharon Araji and Rebecca L. Bosek went several steps further for their chapter in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. They performed a similar study in Alaska and then compared the results from the various states that interviewed protectivemothers. The authors found the responses similar across the several state surveys. They then compared the results of the surveys filled out by protective mothers to scientific research performed by a variety of researchers using accepted scientific methods. Significantly the findings from the protective mothers are strongly supported by the scientific research. In other words, the complaints by protective mothers that have been so often dismissed as coming from “disgruntled litigants” actually have substantial validity.
4. Courageous Kids: If a court system wanted to determine the validity and value of psychological evaluations, it would look for research that examined how the recommendations and approaches used by the evaluators worked out in the lives
of the children. Without such research there is no way to determine if the time, money and results for evaluations are useful. In fact there is no such research and I would certainly recommend obtaining such research if evaluations were to continue to be used in child custody cases. The closest we have to such research is the Courageous Kids Network. The Courageous Kids are young adults who were forced to live with abusers by the decisions of the custody court. They are now old enough to have escaped their abusers and are speaking out about their experiences. The stories are painful to hear because they had to survive such awful abuse, but life affirming as they overcame the obstacles to support each other and help change the broken system. These heroes have spoken at judicial trainings, legislative hearings and domestic violence conferences. Their presentations are effective because it is all too easy to discredit protective mothers, but hard to discredit the children for whom the courts and the professionals are supposedly trying to help. Remember these children were forced to live with and be influenced by the abuser. In most cases they had to endure “therapy” designed to support the abuser and discredit the protective mother. There are many psychological, safety and other reasons to discourage such children from coming forward and speaking out. The fact so many Courageous Kids have spoken out demonstrates the courts are getting large numbers of cases tragically wrong.
5. Review of Bad Cases: The authors of the 25 chapters in the book have carefully reviewed hundreds if not thousands of these cases. In their book, FROM MADNESS TO MUTINY, Dr. Amy Neustein and Michael Lesher reviewed over 1000 cases. The Truth Commission listened to the testimony of 16 women and reviewed records from their cases. Many other experts have studied domestic violence cases where the alleged abuser received custody and the protective mother received little or no contact with her children. In these cases we have found widespread mistakes, bad practices, use of myths and stereotypes, the failure to use up-to-date research, gender bias and outcomes that place children at risk. The legal system works on the assumption that once a case is decided or facts determined that the findings are established and any further consideration should be based upon the assumption the court decided the case properly. This assumption will lead to misinformation and inaccurate research because there is strong evidence that most contested domestic violence custody cases and certainly those that result in custody to the alleged abuser are wrongly decided. We are particularly concerned with the growing court practice of retaliating against protective mothers and professionals trying to help them for exposing court mistakes in these cases. Frequently a mother’s refusal to believe an abuser is safe after the court fails to recognize his abuse is used to justify severe and extreme limitations on her access to her children without regard to the harm such rulings have on the children.
6. Parental Alienation Syndrome: PAS is a bogus theory created based on the personal biases of Dr. Richard Gardner. His books were self-published and never peer reviewed. It is used only in domestic violence custody cases to prevent or
shorten investigations of the father’s abuse. PAS assumes that if a child expresses negative feelings about the father or doesn’t want visitation, the only possible explanation is that the mother alienated the child and the solution is to force the child to live with the abuser and have at most supervised visitation with the protective mother who has been the primary attachment figure for the child. PAS is not recognized by any reputable professional organization and does not appear in DSM IV, which contains recognized diagnosis. Dr. Paul Fink, past president of the American Psychiatric Association wrote a chapter for the book in which he demonstrates the invalidity of PAS. Dr. Fink points out that Richard Gardner made numerous statements complaining that society takes child sexual abuse too seriously and that sex between adults and children can be appropriate. This explains why PAS is so often used to give custody to fathers who have sexually abused their children. Dr. Fink points out that psychologists are starting to lose their licenses for using PAS in evaluations. They are, in effect diagnosing something that does not exist. Thousands of the casesin which alleged abusers won custody was based upon the discredited PAS or PAS by a different name.
Any case in which “evidence” of PAS was allowed was likely wrongly decided.
7. Gender Bias: The Truth Commission recommended that rather than training professionals with general domestic violence information, all professionals should have training in Gender Bias, Recognizing Domestic Violence and the Effects of Domestic Violence on Children. This is because they found that many of the mistakes made in these cases were caused by a lack of understanding of these basic concepts. At least 40 states and many other districts and communities have created court-sponsored gender bias committees. They have found widespread gender bias and particularly in domestic violence custody cases. Among the
common problems were blaming victims for their abuser’s behavior, burdening women with higher standards of proof and giving fathers more credibility than mothers. Other research, including the chapter in the book by Molly Dragiewicz has made similar findings. In one New York case the court gave custody to an abuser and denied the protective mother any contact with the children after the evaluator used and the judge supported a certainty standard for the mother and probability standard for the father. Few litigants could win a case when faced with a certainty standard. At least 15-20 different judges were asked to review
this clear example of gender bias (the different standards were stated in the evaluator’s report and repeatedly challenged in the transcript), but every judge failed to correct this obvious error. Lynn Hecht Schafran wrote a brilliant article
“Evaluating the Evaluators” that illustrates the problem. The article describes a new psychologist asked to perform an evaluation on a young family. She went to the father’s apartment and found it a complete mess with no food in the refrigerator. She wrote the father lives in a typical bachelor apartment. She went to the mother’s apartment and found it to be somewhat messy, but not as bad as the father’s. She had food in the refrigerator, but not as much as preferable. The evaluator wrote the mother lives in a messy apartment with inadequate food. The evaluator had a supervisor because she was new and the supervisor asked if she saw what she had done. The evaluator could not believe she had engaged in gender bias and quickly corrected the report. The article is valuable because it demonstrates that professionals acting in good faith (including women) can easily engage in gender bias without realizing it because of the sexism and stereotypes so prevalent in our society. How can anyone reasonably believe the courts are
reaching fair decisions in domestic violence custody cases when gender bias is so common?
8. Failure to Recognize Domestic Violence: Many of the mistakes custody courts make have to do with failing to recognize domestic violence. In fairness some of the problem is caused because victims or their attorneys fail to present the necessary evidence. Unqualified professionals often discount allegations of abuse based upon information that represents a normal and reasonable response to his abuse. In the book, Judge Mike Brigner writes about training judges in domestic violence. They often ask him how to respond to all the cases where women are lying about domestic violence. When he asks what they mean, they cite cases where women go back to their abuser, withdraw petitions for a protective order, fail to file police complaints or don’t seek medical care. In reality there are safety and other explanations for women’s response to domestic violence and none of these examples should be used to assume her complaints are false. At the same time they use information of limited value to discount domestic violence, professionals fail to use helpful and relevant information to understand the pattern of domestic violence tactics. Too often the professionals are interested only in physical abuse. They fail to consider a variety of controlling and coercive tactics.
They don’t understand the significance of a woman’s fear of her partner. Domestic violence advocates are the only professionals that work full time on domestic violence issues. The advocates receive more training and have more knowledge of domestic violence then the professionals relied on by the courts. Domestic violence agencies have very limited resources so they are forced to screen clients before providing services. Accordingly when a woman is receiving services from a domestic violence agency, it is a strong indication that she is a battered woman, but many professionals fail to consider this information. Although seeking custody to pressure a mother to return or punish her for leaving is a common abuser tactic, few courts consider why a father with limited
involvement with the children prior to separation suddenly demands full custody. Similarly unqualified professionals often fail to consider evidence that a man believes his partner has no right to leave is a strong indication of his motivation in seeking custody. How can courts be expected to decide domestic violence custody cases appropriately if they don’t know what to look for when determining the validity of domestic violence allegations?
9. Effect of Domestic Violence on Children: Every state has passed laws designed to promote greater consideration of the effects of domestic violence on children. Some states require domestic violence to be considered in making custody and visitation decisions and others create a presumption against custody for abusers (although often the laws or the courts require a level of proof or create other restrictions that limit the effectiveness of these laws). Prior to these laws, when a protective mother asked to limit the father’s contact with the children because of domestic violence, the judge would ask some version of “Does he also abuse the child?” If the answer was no, the court treated the father as if he was just as appropriate for custody and visitation as the mother. The change in laws was based on overwhelming research that children witnessing domestic violence were harmed as much as children directly abused. The research found these children to be at substantially greater risk of a wide range of dysfunctional behaviors when they were older. In other words, domestic violence is a serious form of child abuse. We have found, however that courts frequently place greater reliance on other custody factors that have far less consequences to the safety and well being
of children. In fairness, the courts are not solely to blame as legislatures have passed laws like “friendly parent” factors and failed to make domestic violence and safety the primary factors in custody determination. There is no research that “alienating” statements or attitudes by one parent to the children has the kind of serious long-term harm of domestic violence and yet many of the cases reviewed focus far more attention on alleged alienation. When mothers respond normally to their partner’s abuse with fear or attempts to protect the children, courts frequently treat this as the most important issue in deciding custody. This is a common example of what was discussed in gender bias reports in that the mother is held responsible for her reaction to the father’s abuse instead of holding the father responsible for his abuse. This type of mistake is at the heart of the common mistakes made by custody courts and does not serve the best interests of the children. If children are having problems as a result of the father’s abuse, unqualified professionals often blame the divorce and separation instead of his abuse. They often recommend cooperation and interaction between abuser and victim that is the opposite of what is healthy for children, but often benefit the fathers’ cases. When children appear to be doing well, inadequately trained professionals mistakenly assume this means the abuse allegations are false. Some children respond to abuse by trying to be perfect and take on adult responsibilities. Many years later the harm of the father’s abuse comes out in debilitating ways. Similarly children will often behave well with abusers and act out with their mothers because they know she is the safe parent. This is often misunderstood and courts reach the false conclusion that the father is the better parent. As long as the courts fail to understand the long-term harm to children of placing them with abusers, the courts will continue to make decisions that ruin children’s lives.
10. Extreme Results: If a court were to give custody to a protective mother and limit the father to supervised visitation because of his domestic violence, it would be following the recommendations of up-to-date research. In other words there is a scientific basis for such an outcome. The researchers weigh the harm of restricting the children’s contact with their father and the harm the father is likely to cause with unrestricted visitation and the message sent to the children by awarding normal visitation with someone they know abused their mother. Instead what we are seeing is alleged abusers receiving custody and protective mothers having supervised or no visitation. Obviously, in these cases the courts are assuming the mother’s allegations of abuse are false. They justify the visitation restrictions by their concern the mother will continue to believe she was abused and say negative things about the father. Where is the research that the harm to the children of hearing such statements is greater than the harm of being denied a normal relationship with their mother? Even in intact families the children often hear negative comments about the other parent. In other words, these extreme court decisions are based upon the belief systems and biases of court professionals and not up-to-date research. Many children have been denied any contact with their mothers in these cases. Ironically fathers are often granted custody based on the belief they are the friendlier parent and will promote the relationship between the mother and children, but he proceeds to terminate all contact once he has control. Many courts that jumped all over mothers for requesting the court restrict the father’s access have done nothing in the face of the father preventing visitation or other contact between mother and children.
Rapists and even murderers frequently receive some supervised visitation and yet mothers who sought to protect their children from an abuser are completely cut off from their children. The extreme outcomes faced by protective mothers are unsupported by any research, but demonstrate serious flaws in the custody system.
Now That We Know the Custody Court System Is Broken
Now is not the time for blame or attacks. As the Schafran article demonstrates, it is all too easy for good and caring people to fail to understand and recognize gender bias and domestic violence. In the book, Judge Hornsby writes that in his 19th year on the bench he finally understood the proper way to handle requests for protective orders. The judge’s humility, integrity and openness should serve as a model to the legal community as it responds to the clear information and research that the present court practices are mistreating protective mothers and their children. I was recently at a domestic violence conference in Hawaii where a court official was asked a question implying serious problems in the court system. She responded by saying if someone didn’t like a decision they could appeal. To her credit she later acknowledged that many people don’t have the money for such an appeal. This official fell into the trap of responding defensively to criticism. The challenge for the custody court system is to be open to the up-to-date research even though it finds the courts have made widespread mistakes in its handling of domestic violence custody cases. The medical community faced a similar situation in responding to research that found avoidable mistakes were responsible for 100,000 deaths each year in our nation’s hospitals. For years, fear of lawsuits, discipline and damaged reputation caused the medical profession to ignore, deny and seek to place blame on others. Finally they realized this was a losing strategy. Doctors, nurses and hospitals have now come together to correct the problems with more openness and accountability. Lives have already been saved from implementation of this approach and the campaign to prevent such avoidable errors. Rather than harm the medical community’s reputation, this campaign has increased the respect for the medical community. I believe if the legal community makes a similar effort to apply the latest research and create a campaign to avoid the kinds of tragic mistakes that have ruined the lives of so many women and children, the campaign will improve the reputation of the legal system. The promotion of the safety of battered mothers and their children is not and should not be considered a partisan issue.
Every state and every court system has rules and laws against domestic violence.
Although some fringe male supremacist groups object to these laws, society has spoken and there is no longer any legitimate dispute about whether domestic violence should be tolerated. If a community had a rash of arson fires and the courts and legislature wanted to figure out how to respond they would seek the expertise of the experts. The experts are the fire fighting community because they know best how to recognize arson, prevent it and respond to arson. No one would ever accuse the firefighters of being partisan because they are always against arson. In responding to domestic violence the experts are the domestic violence community. They are the only profession working full time on domestic violence issues and know how to recognize domestic violence, the best ways to prevent it and the harm it causes. Too often the courts have failed to take advantage of this community resource because they viewed domestic violence advocates as partisans. The validity for this claim ended when society determined it would no longer tolerate domestic violence and passed laws to enforce this determination. The crimes of arson and domestic violence are treated differently because arson has always been a crime and domestic violence is a relatively new crime and most firefighters are men and most domestic violence advocates are women. In this still sexist society what women say is not treated with the respect and value that what men say is. The domestic violence community is an important and valuable resource that the court system can benefit from as it applies the up-to-date research to practices that are now discredited. The legal system must use this research to launch a re-evaluation of its response to domestic violence custody cases so that custody courts become a safe place for battered mothers and their children. We are ready to work with them to help accomplish society’s goal of ending domestic violence.
Barry Goldstein is the author of SCARED TO LEAVE AFRAID TO STAY. He has been an instructor and supervisor in a NY Model Batterer Program for 10 years. He was an attorney representing victims of domestic violence for 30 years. He now provides
workshops, judicial and other trainings regarding domestic violence particularly related to custody issues. He also serves as a consultant and expert witness. His new book,
DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, co edited with Dr. Maureen T. Hannah will be published early in 2010. For more information, visit his web site at Barrygoldstein.net
Posted by Administrator on 04/29/2010 · Leave a Comment
Tune in live at 4pm Eastern, Thursday, April 29 for the broadcast of “Sherman’s Law” on News Talk AM1490WGCH. Host Mickey Sherman welcomes Susan Murphy-Milano to discuss her groundbreaking book, “Time’s Up: A Guide on How to Leave an Abusive and Stalking Relationship.”
Former public defender and prosecutor, Mickey Sherman is a criminal defense lawyer who has represented clients in a very wide range of criminal cases. His innovative courtroom and trial techniques have been the subject of feature articles in the New York Times, National Law Journal, The American Lawyer, Time Magazine, Vanity Fair and other publications.
His cases have been featured on Dateline, 48 Hours, Court TV, America’s Most Wanted, Law & Order and pretty much everything else except the Food Network. Mickey has been portrayed on Law & Order, two TV movies and he is a recurring character in three of James Patterson’s books, most recently “The 6th Target” a #1 on the NYT Best Seller list. He plays himself in the recent Barry Levinson film, “Man of the Year,” starring Robin Williams.
Susan Murphy-Milano is a specialist in family violence and works nationally with domestic violence programs, law enforcement and prosecutors providing technical and consulting services in “high risk” domestic violence and stalking related cases. Her principal objective is to intervene before a victim is seriously injured or killed.
Author of “Defending Our Lives” published by Doubleday, and “Moving Out Moving On: When a Relationship Goes Wrong,” Susan is the host of The Susan Murphy Milano Show and is also a contributor to “Time’s Up!” and“Women In Crime Ink” online. With co-stars, Dennis Griffin and Vito Colucci, Susan will be participating in the new television show, “Crime Wire” which will examine cases in which the investigations have left questions unanswered and possible criminal activity unexposed.
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Politics is for the present, but an equation is for eternity.
If one were to summarise all abuse case outcomes, it would be factual to establish that child abuse is only recognised as criminal when it has not been perpetrated by the state or its actors.
In both the child protection and the family court system, cases where the government is responsible for the abuse go unchallenged by the public and independent organisations. This is because both laws surrounding children restrict publication. The argument for restriction is that it “protects” the names of the children involved. In ABCs Law Report titled “Restrictions on media coverage of child protection and family court matters“, journalists raised cases where the child abuse was not being addressed. The story with the cases and a variety of commentary provided an evidential backdrop on the reasons why suppressing deaths and abuse of children is not being protective. It highlighted how the government had misused children’s rights as a means to a political end.
The inquiry into family law was purely based on politics as most of thesubmissions were from men’s groups. All of these groups requested laws aligned entirely with their own interests. When groups against child abuse began to appear regularly in the Australian media spotlight, men’s groups responded with political blackmail:
I know that separated groups, fathers’ groups in particular, shared parenting groups can conjure up over a million votes and that’s something that I think the Government will take into account. – Michael Green
No doubt, that men’s groups have influenced the general population to believe that men are far more disadvantaged than children and women, that their rights must be taken into consideration above all others. This is reflected in the survey findings on community attitudes on violence against women. Some members of society even believe that it is ok to rape. It should not be a reason for politicians to see it as an opportunity to lower the rape law bar so that they can appease the growing population of rapists. There needs to be a point where popularity is not the drive for our leaders.
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Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts
Why "Therapeutic Jurisprudence" Must Be — and Will Be — Eliminated From Our Family Courts: standards and practices in child custody evaluations
Why "Therapeutic Jurisprudence" Must Be — and Will Be — Eliminated From Our Family Courts
standards and practices in child custody evaluations
One of the problems with the rise of therapeutic jurisprudence and the placement of non-legal systems into the courts is the subtle denigration of long-established precepts of lawyer independence and due process. One of the multiple ways this happens in the family courts is through the common development of multidisciplinary collegial relationships and business referral.
The conflict arises because most lawyers represent different clients taking different sides in different cases (sometimes the wife, sometimes the husband, sometimes the "good guy", sometimes the "bad guy", etc.). If a lawyer coming into a case runs up against an expert he has a referral or employment relationship with in other cases, and that expert takes an adverse position to the lawyer’s client in the new case, the lawyer will have a very difficult time adequately representing his client. Appropriate representation may require the lawyer to strenuously object to an expert’s testimony — or even the expert himself. But if the lawyer needs the good will and cooperation of the expert in connection with the lawyer’s other clients’ pending cases, he cannot do that because he may put those other cases at risk.
Lawyers in these positions will be tempted to rationalize to themselves, as well as maintain the posture in the community at large, that the expert’s opinions, even when they are adverse to his client, are scientifically valid — even when they may not be, even if they are deeply flawed or completely bogus. These lawyers may rationalize to themselves that the validity of the science is not their responsibility because, after all, lawyers are not "scientists".
The lawyer who naively or purposefully steps down the path of multidisciplinary practice, regularly exchanging referrals and engaging in other close associations with nonlawyer case participants (a practice that is encouraged by mixed-discipline organizations such as the AFCC under the Orwellian assumption that this somehow fosters justice and works to "improve" the courts) in fact has sold his professional soul to the devil — literally.
The lawyer and these other participants in the system have different roles. When lawyers directly hire paralegals, experts, and others to assist them, there is not as much of a problem, even when these individuals are independent contractors. First, their work is covered by attorney work product unless and until they testify. Second, because they were hired by the lawyer, they are subject to the same conflict of interest rules as the lawyer is, as far as their involvement in other cases and with other people. That is not the case with "independent" experts, however. Custody evaluators and guardians ad litem who render opinions "for the court", so-called "court-appointed experts", are a very different matter.
The conflict of interest problems are inherent in the nature of the association. They exist even when there is no explicit association or referral relationship. They are not the same as having a professional relationship with another lawyer who regularly may be on the opposing side of a case, because unlike the lawyer colleague, these individuals are case participants — witnesses or even parties. They are not akin to neutral judges or magistrates, the bailiffs or other courthouse personnel. None of these truly neutral courthouse persons advocates for a position in a case, testifies as a witness, or participates as a party proper (as do some GALs).
The routine broad involvement of these expert witnesses must be recognized by the legal profession as the egregious misjudgment it is, as well as fostering ethical violations that must be addressed by state bar ethics rules.
Ironically, the problem is worse for lawyers who are not ideologues, because these lawyers are more likely to advocate for different client perspectives. The legal community, even in urban areas, is limited and often close-knit. Lawyers in the same area of practice regularly encounter each other in different cases. The pool of forensic experts and GALs tends to be even smaller. The repeated association time and again of these specialists in cases means that at any time and from time to time any given one of them may show up on the "wrong side" of a lawyer’s case — and simultaneously also be on the "right side" of other of the lawyer’s cases, whether as hired expert or court-appointed expert. This creates many of the same dilemmas that ordinary client conflict-of-interest issues do.
Contrary to the rationalizing rhetoric, court-appointed evaluators and opining GALs are not neutral participants in the system. Even if they initially are hired under that rubric, once their reports are rendered, and their opinions formed and ready to be given, they have become advocates for one or the other side or issue. Thus, at a point, they are, just as any party would be, pointedly in favor of certain outcomes, and adverse to others.
What does the lawyer do when an expert the lawyer is relying on in one case takes a similar position that lacks scientific merit against another of the same lawyer’s clients in another case. Because the expert and the lawyer have been, are currently, or will be in cahoots in other cases, the lawyer is placed into a conflict, unable zealously to discredit the expert when that is necessary to protect his client. Bar ethics rules must address this. (The experts themselves have the same temptation to manipulate their opinions to please those lawyers with whom they have ongoing relationships and receive referrals — contributing to yet more corruption of the system.)
Court appointed witnesses and parties in other people’s private civil cases are interlopers in the justice system and must be excised. The very integrity of the justice system is at stake. To the extent well-meaning individuals did not fathom the repercussions, and were swayed by sweet-sounding ideas that simply do not work well in practice, and bought into the rhetoric originating in the psychology trade promotion organizations, it’s time for a regroup and an honest reappraisal.
Lawyers are advocates. If an expert’s position supports the lawyer’s client, the lawyer is going to accept that opinion and put it forward in the interests of his client’s case. But when the lawyer encounters the very same scientifically meritless position by the same expert in a case in which that does not favor the lawyer’s client, what does the lawyer do?
It does not take any "expert" to do a home study or investigate readily observable facts. The proof of that is how often the court-hired opiners are not specialists but lawyers and laypersons. The taint is especially egregious when there is a perception of need for psychological "experts", however, because, unlike other kinds of experts, the field of applied psychology is overrun with political machinations, nonsensical theories, half-baked ideas, and outright misrepresentat
ions. Too often it’s not close to "science" and it’s not technical knowledge either. Much of the time, it’s more akin to an expertise in astrology, or theology — high familiarity with complicated ideas and methods of calculating answers, and the body of literature that discusses all of this, but otherwise somewhere between unhelpful and misleading when it comes to ascertaining the facts.
Unlike lawyers in many other areas of practice, who may retain their clients for years, family lawyers typically need a steady stream of new one-shot clients. In addition, family lawyers also tend to work in smaller firms. So they value those who send them business. Too many family lawyers, perhaps without recognizing or acknowledging the subtle conflicts of interest that have caused their discomfort and unwillingness adequately to represent some of their clients in some of their cases, in fact have sacrificed these clients on the altar of maintaining their professional relationships, associations, and referral sources.
In such circumstances, some busy family lawyers will admit to feeling burnout, but they’ve rationalized their unwillingness to zealously advocate for their clients, as well as their discomfort, as perhaps stemming from the "high conflict" created by unreasonable clients, or the high emotional toll their cases are taking on them. Others retain their enthusiasm by becoming extremist ideologues and proponents of bad science, taking only cases in which they will not encounter these conflicts and suspending their judgment and integrity in the interests of churning cases and making money. For example, this is seen among lawyers who assert in case after case with different facts that their clients have been the victims of "parental alienation". (The father’s rights advocates also would lay this charge on the anti-abuse industry.) The lawyer resolves the cognitive dissonance by committing to propositions outside of law and outside of the lawyer’s academic expertise, and — maintaining a deliberate self-serving ignorance — carries these ideas into the media of the legal field. This conveniently furthers the propagation of the bad science, and it inappropriately encourages lawyers to adopt ideological positions of dubious merit.
Some lawyers caught in this vortex justify their lack of vigorous representation, and the coerced settlements they’ve foisted on some clients as really hailing from a motivation and concern for the best interests of children, or for taking a reasonable settlement position, or the high road, or as their commitment to helping people to just get along. They attempt to redefine their jobs, paternalistically, as dictators who must "control" their clients, not as agents for them. They may profess to themselves and each other and everyone else around a great affinity for mediation and therapy and collaborative resolution, and all manner of therapeutic jurisprudence in the interests of everyone, and similar specious posturing, encouraged in their self-delusion by a steady drip of MHP literature — and new referral retainers. This kind of thing is just not as pervasive in other areas of the law, no matter how heated the conflicts get, and it’s one substantial reason the public has such a generally dim view of the family courts and family lawyers. "Therapeutic jurisprudence" is a primary reason the family courts are seen as not working, unjust, and broken.
Given that clients are entitled to their choice of attorneys, and are entitled to independent, unconflicted agents at law who are committed to furthering their interests and goals (as the client, not the attorney, has defined them), one immediately viable solution is a rule of disqualification of any GAL or forensic expert who previously has been associated in any case with either of the lawyers in that case, and the striking and nullification of all testimony and reports of that expert, no matter at what stage of a case the lawyer is hired and may enter the case.
It also is time to substantially limit the use of forensic experts and GALs in family court altogether because for the most part, MHPs, including child custody evaluators and their related forensic offshoots, in fact are unneeded, unhelpful, and undesirable in the vast majority of child custody cases.
Elizabeth J. Kates, Esq.
Pompano Beach, Florida
Information on these webpages is from ongoing research being conducted by the National Network on Family Law Policy, and by numerous scholars, professionals, and others around the United States who are investigating the workings of our justice system. For more information, contact sarah.
Other articles of interest:
The March issue of the Florida Bar Journal contains an article bolstering the position that referral relationships are indeed business relationships. See Business Is Business: Recognizing Referral Relationships as Legitimate Business InterestsProtectable by Restrictive Covenants in Florida, by Charles A. Carlson and Amy E. Stoll
Therapeutic Jurisprudence: Embracing a Tainted Ideal, by Arthur G. Christean
Punishing Medical Experts for Unethical Testimony: A Step in the Right Direction or a Step too Far? by David B. Resnik, J.D., Ph.D.
Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice, by Margaret Hagen FREEdownload from Prof. Hagen’s website,