Endless Stupidity or Professional Self-Interest — There’s No Other Choice.
Is there some reason that anti-dv advocates just can’t get it? Is there some reason that researchers and activists keep recommending this idiocy? It’s a bad, bad, bad, bad, bad idea.Why:
(1) Supervised visitation cannot continue indefinitely, and controlling, violent, or child molesting parents aren’t going to change. So what is the point? (No. “Anger management” therapies don’t work.) It’s not a child custody solution for abusers. It’s not a solution for children who have 5, 10 or 18 years left in their childhoods. It’s a band-aid for 10 weeks, or 6 months, or whatever, and then the abusive parent will most likely go back to court, after behaving “safely” or “nicely” in the presence of supervisors, and get unsupervised visitation. The supervised visitation center will have made money, the parents will have lost money, the litigation will have remained open, the abusive parent will be even more angry and resentful, additional therapies and interventions will be recommended and tried (all as the abuse fades into the past and claimed irrelevancy), and overall, the entire situation will be even more miserable than it was before for the victims. [See comment by JG]
(2) If it is to be some kind of extended supervised visitation, then it also chains the victim family to the geographical area where the perpetrator is located in order to further what are usually non-beneficial visitation rights. The battered mother cannot relocate for job or family support, and while getting no real parenting help, and having to do it all, now also has an often inconvenient and intrusive visitation schedule to adhere to (not to mention what this does to the child’s life). The parent in supervised visitation isn’t “parenting”. Someone else is doing all the parenting. Maybe there’s a rationale for this kind of thing when the State removes someone’s children into foster care, and the parent is working out the parent’s substance abuse issues, but otherwise? Children don’t need visitation with violent or molesting parents. If they already have one safe caregiving parent, and the State is not involved, they simply don’t need this. And if we’re talking about a parent who is merely negligent but not violent or intentionally abusive, and it’s a custody issue between two parents of young children, well, then the competent parent can “supervise” in a more natural visitation setting in one or the other parent’s home or on outings until the children are old enough that the lack of judgment of the parent needing supervision isn’t an issue. That’s going to be way better as well for the children and their relationship with the supervised parent.
(3) Once supervised visitation professionals or institutions invest in facility and marketing to do this work, they become “stakeholders” whose most immediate concern will be the need to pay their bills and salaries, further their business interests, and expand. Doesn’t matter whether it’s a private business or a government budget. Doesn’t matter whether it’s a dv activist organization or a “nonpartisan charity”. Once the system and facility and employees with salaries are in place, it looks for continuing customers. There’s going to be a limit to the number of abusers, and perhaps some competition as well, so what will happen next is marketing, i.e. making a market, i.e. expanding the market. The cross-pollinating professionals they work with, the inter-disciplinary group associates and referral sources, such as custody evaluators and judges, will start sending them new kinds of business. Soon, supervised visitation gets recommended for all kinds of pretextual reasons. Such as “therapeutic visitation”, and “reunification counseling”, and “parenting training”, and as punishment for parents who badmouth each other, and for “evaluation” purposes (as if any parenting could possibly be evaluated in such an artificial setting.)
(4) Over the past two decades, supervised visitation centers have been established by abuser lobbies and parental alienation proponents, psych and interdisplinary trade promotion groups, and money-grubbing mental health professionals who can’t make a go of practice without glomming captive divorce court litigants — and who for some goddamn reason are always more clever than victim advocate groups. Once they have opened up their visitation centers, they commence doing what entrepreneurs will do: market their services, concoct new services and programs, network, and promote themselves (which in the case of these ill-advised ideas, also frequently includes getting — and justifying and maintaining — some amount of charitable or government funding.)
(5) It’s yet another big waste of the family’s money and children’s college funds via “therapeutic jurisprudence“. Because of the need to keep the facility going, and because of the lucrative therapeutic referral work, overwhelmingly, what has happened in recent years is that perfectly acceptable parents are being ordered into supervised visitation schedules for some of the most frivolous reasons. Especially those who can pay. And the whole idea just increases the load on the court system by keeping the matter alive and encouraging judges to put the decision-making off for another day. Cases under endless management, in endless float.
Note that I didn’t say that third-party supervised visitation was “never” appropriate. Supervised visitation may sometimes have its limited uses, but ONLY as a temporary arrangement. (I hesitate to admit this, because when it comes to therapeutic inverventionism in the court system, like potato chips, it seems that if you try to have just one…) One legitimate use of supervised visitation would be for times when truly serious abuse allegations have been levied against a parent, to last until a civil or criminal hearing can be held to render findings on the truth or falsity of the allegations (following which, if they’re true, there should be NO visitation).
Another limited use might be as a temporary arrangement during times when a parent is unable to exercise unsupervised visitation but reasonably is expected to be able to do so after a short transition or learning period, e.g. a young unwed father and an infant he needs to learn how to care for, or e.g. a parent who for some reason has not been in the picture and needs to transition into a relationship with a child, AND ALSO, in these latter examples when there is some very, very, VERY good reason the other parent in fact is not appropriate as the “supervisor”. (The to-be-supervised parent’s ego does not constitute a good reason, any more than it would in the de facto “supervision” of an intact family.)
So in limited situations, a child body guard or nanny parent’s helper type of supervisor might have its uses. But not where there is a violent or abusive parent. Certainly not in a case like this one. (Case worker in Palm Beach supervised visitation center talked on the telephone while father molested child.) And this one is even worse (Washington father hatchet-chopped his young sons before setting house on fire while useless superviser sat outside in her car.)
What happens if there is a shortage of visitation supervisors, or no supervised visitation centers? That’s easy. Parents who are not dangerous won’t have to suffer this nonsense. And parents who are dangerous won’t get visitation. As they shouldn’t in the first place. Supervised visitation is not for the benefit of abuse victims. It’s for the benefit of abusers, and for the benefit of therapeutic jurisprudenchers who make money off of the idea. Stop it. Stop it now.
– Troubling Admission of Supervised Visitation Records in Court
“Supervised visitation also is used as a first step toward a custody switch away from protective mothers to abusive fathers.”
“If his visitation goes well, that’s used as ‘evidence’ that he did nothing wrong in the first place, and that the accusations against him were the result of parental alienation by the mother. His unsupervised visitation is restored, following which further complaints by the mother and/or child result in the mother losing custody to the abuser, with and without the application of additional lucrative court-ordered ‘therapeutic interventions’.
“If the visitation doesn’t go well, then the difficulty with the visits is blamed on resistance and interference by the mother. This accomplishes two things: it creates an alibi for the professionals for their failed ‘reunification therapy’ or wrong recommendations in urging his continuing visitation and involvement, and it creates the same desired end-result of blaming the mother.
RETURN TO TEXT
|Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to the National Institute of Justice, U.S. Department of Justice (October 31, 2011). Principal Investigator: Daniel G. Saunders, Ph.D., Co-Investigators: Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. University of Michigan, School of Social Work, 1080 S. University Ave., Ann Arbor MI 48109-1106 USA. (“This project was supported by Grant No. 2007-WG-BX-0013 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.”)|
Protective mothers have been complaining about mistreatment by the custody court system, but have routinely been dismissed as “disgruntled litigants.” As recently as the beginning of the Battered Mothers Custody Conferences in 2004, there was little professional support for protective mothers. The mothers’ complaints have now been confirmed and supported by the domestic violence community, many women’s organizations, numerous governmental agencies, many in the academic community and a substantial body of research such as contained in our book DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.
Last summer at the NCADV Conference, Dr. Daniel Saunders of the University of Michigan and some of his colleagues presented their findings from a major Department of Justice study that confirms the findings in our book and other research that the present custody court practices for domestic violence cases are deeply flawed. The publication of these findings has taken longer than expected as Dr. Saunders and the Justice Department seek to carefully present the information in a clear and accurate manner, but they should soon be available on the Department of Justice web site. Many of us who seek to reform the broken custody court system are excited about this study because it should be difficult for the courts to dismiss or ignore because of where it comes from. Significantly, the findings are incompatible with a continued belief that the present practices are working for the benefit of the children the courts are supposed to protect.
Custody Courts Frequently Disbelieve Valid Abuse Complaints
Custody courts have a particularly poor record in responding to domestic violence cases. The research demonstrates that court professionals reject a high percentage of valid complaints by protective mothers. This problem has been confirmed in many ways. It is confirmed based on the frequency of mistaken outcomes. Although battered mothers make deliberately false allegations only one or two percent of the time, in contested custody cases the alleged abuser wins custody or joint custody over seventy percent of the time. Subsequent events regularly confirm courts’ mistakes. This occurs when men found safe by the court professionals are later convicted or otherwise found to have to have committed domestic violence, sexual abuse, murder or other similar crimes.
The revelations of the Courageous Kids Network further demonstrate the frequency in which courts fail to recognize valid complaints of abuse. Courageous Kids are young adults who have aged out of their custody orders and decided to speak out about the harm caused by these orders. The context is important in understanding their stories. These are cases in which the court disbelieved the mothers’ abuse allegations and gave the fathers complete control. The children have been threatened, coerced and punished if they continue to complain about their father’s abuse or seek a relationship with their mother. In other words the fathers have had tremendous assistance in silencing the children. Accordingly the children now speaking out represent a small minority of those mistreated by fathers the court believed were safe. The descriptions by the Courageous Kids demonstrate the fathers deliberately sought to hurt the mother and children based upon their belief system that the mother had no right to leave them. The children have had little or no contact with their mothers often for many years so we know the mothers could not be influencing the children’s decision to speak out about the fathers’ abuse. These are all too common examples of cases in which the court professionals failed to believe valid allegations of abuse.
The research not only demonstrates the fact that the custody courts get a large majority of domestic violence cases wrong, but also that the standard practices used by court professionals are deeply flawed and make it difficult for judges to recognize legitimate complaints about domestic violence and child abuse.
Court professionals routinely discredit allegations of abuse based upon factors that are not probative. At the same time these professionals do not understand the importance of looking to the abusers’ patterns of controlling and coercive behavior in order to recognize domestic violence. The court professionals often make the mistake of considering each incident and each allegation separately. Genuine domestic violence experts understand the importance of context in recognizing domestic violence, but the mental health and other professionals relied on by the courts do not understand the importance of context and thus make it more difficult to recognize valid allegations of abuse.
One of the big obstacles to recognizing valid abuse complaints is the common use of mental health and other professionals without expertise in domestic violence. The main purpose of considering domestic violence in custody cases is to protect the safety of children. Nevertheless the evaluators relied on by custody courts rarely know how to conduct a safety assessment or what behaviors have been associated with higher lethality and other dangers. The evaluators do not understand domestic violence dynamics and often are unfamiliar with the effects of domestic violence on children or other information based upon the specialized body of scientific research that could be used to better understand domestic violence issues and recognize truthful allegations of abuse.
The new Department of Justice study helps explain why the evaluators and other professionals relied on by custody courts routinely fails to recognize domestic violence. The study found that most evaluators and other professionals relied on by the courts do not have adequate domestic violence training and those with inadequate training are more likely to believe in the myth that women frequently make false allegations of abuse to gain an advantage in litigation. The professionals who believe this myth, in turn are more likely to make recommendations that harm children. In other words judges have little chance to protect the children under their control as long as they rely on these unqualified professionals and tend to believe their deeply flawed analysis.
Judges often become defensive when protective mothers or their attorneys request that any evaluator or other court professional be required to have domestic violence expertise in order to be appointed. We have repeatedly seen judges refuse to listen to domestic violence experts offered on behalf of protective mothers. The courts often focus on the need for a mental health degree even though the academic training for most mental health professionals included no or virtually no domestic violence instruction and the law does not require advance degrees to qualify as an expert (a common example is a mechanic without a high school degree who can testify as an expert in automotive repair based on experience and training).
In recent years most court systems have encouraged and usually required some domestic violence training for court professionals. This is a good thing but has often been implemented in ways that undermine the purpose. Many of the trainings include substantial misinformation such as the belief most contested custody cases are “high conflict” when the research establishes a large majority are really domestic violence cases. Some of the trainings even include Parental Alienation Syndrome (sometimes by another name because of its deserved notoriety) even though it was recently again rejected for inclusion in the DSM-V because there is no scientific basis for it. Many of the trainings fail to include domestic violence advocates or other genuine experts in domestic violence.
We have also seen some really good programs used to train court professionals, but I have heard many trainers complain that some of the judges, evaluators and lawyers pay little attention to the valuable information presented. In one Queens County, New York case I cross-examined an experienced evaluator who went to a really excellent domestic violence training in order to qualify as a parent coordinator. They provided numerous excellent research studies that could have helped him recognize domestic violence and protect children. During my cross-examination it became clear he never read the research and was unfamiliar with the current scientific research he needed to understand the case. When I pressed him about the training he described it as “not a life changing experience.” This was a man who needed a life changing experience because he failed to recognize the obvious history of abuse by the father, demanded the mother cooperate with her abuser and when she continued to try to protect herself and her son, the unqualified evaluator recommended custody for the abusive father. The judge failed to discredit the evaluator based on his failure to read or consider the current scientific research provided at the training.
We need much more and better trainings for court professionals, but there is also the danger that attending trainings can give judges and other professionals a false sense of confidence in their understanding of domestic violence. The findings by Dr. Saunders and his colleagues that most court professionals have inadequate training in domestic violence confirms our concern that in most cases the professionals relied on by the court are not qualified to participate in a domestic violence case without the assistance of a genuine expert. Even if the judge has received good training the court is likely to be influenced by unqualified evaluators and other court professionals.
The failure to possess adequate training in domestic violence means that it will be difficult for these professionals to recognize and respond effectively to domestic violence, but the widespread belief in the myth that women frequently make false allegations of abuse is a bias that strongly undermines the cases of protective mothers. These mistakes result in frequent findings denying the mother’s abuse allegations which is exactly what the other research has found. If a professional believes the myth they will expect to see false allegations and without training in how to recognize domestic violence they have little chance to get these cases right and protect the children. Even worse, courts having found against the mothers because of the deeply flawed practices and biases are severely punishing mothers and children because the mothers continue to believe their true allegations despite the disbelief of the unqualified court professionals.
A few months ago, in this forum, I wrote an article about the extreme decisions we often see in domestic violence cases. These are decisions in which the alleged abuser receives custody and the mother who was the primary attachment figure is limited to supervised or no visitation. The primary attachment figure is the parent who provided most of the child care during the first couple of years of the child’s life. When children are separated from their primary attachment figure they are significantly more likely to suffer depression, low self-esteem and to commit suicide when older. It can never be right to separate children from their primary attachment figure unless she is unsafe such as a drug addict, someone who beats the kids or otherwise poses a danger. In most of these cases the father allowed or even demanded the mother provide child care until she decided to leave him. It should be obvious that her decision to leave a man she found to be abusive does not make the mother unsafe. Unqualified court professionals frequently limit the mother’s contact with her children based upon some version of alienation or pathologizing the mother based on psychological tests that were not made for the populations seen in custody cases. We know the diagnosis is not safety related because the mother functions fine in all other aspects of her life except interacting with her abuser and the court professionals supporting him. These are not safety issues so these extreme decisions can never be beneficial to the children.
The reliance on court professionals with inadequate training and belief in the myth takes place in the context of many other common mistakes discussed in earlier research. The courts cannot protect mothers and children in domestic violence cases if they cannot recognize domestic violence when it is present. The frequent decisions that harm children are confirmed by later findings and information, the extensive research court professionals routinely fail to consider and the new Department of Justice study and they provide multiple confirmations of the present inability of custody courts to recognize domestic violence and child abuse when it exists.
Misuse of Mothers’ Anger and Emotion
Let’s look at this issue from the mother’s perspective and in the context of her experience. These are domestic violence cases. The father usually has a long history of controlling and coercive behaviors and the mother has finally gained the courage and resources to leave her abuser in order to protect her children. She is fearful because of the many threats he made of what he would do if she left and knowledge that the most dangerous time for a woman is after she has left. She is angry at the way he has mistreated her and often the children. She may be worried about her ability to support and protect her children because her partner has been telling her how useless she is throughout their relationship.
Even if the father’s physical abuse ends when he no longer has access to the mother (which makes unqualified court professionals believe he is now safe), he continues his domestic violence through litigation abuse and often other ways. The abusers often use any contact provided by the court to seek reconciliation and/or to harass and attack her verbally or psychologically. Many women expect the courts to protect her children because the evidence is so overwhelming and instead find the court pressuring her to cooperate with her abuser and punishing her if she tries to protect her children from a man they have found to be hostile and dangerous. In other words she has good reason to be angry and emotional and in fact this would be a normal reaction to her experiences.
The research contained in our book and elsewhere supports this understanding and analysis. We discussed the common mistake of custody courts that treat the mother’s actions as a litigant as if they were an indication of her behavior as a parent. Over forty states and many judicial districts have created court sponsored gender bias committees. These committees have found widespread bias particularly against women litigants. One of the common examples of gender bias was blaming women for the actions of their abusers. One of the typical examples of this bias is when courts blame mothers for their anger and emotion caused by the father’s mistreatment of them and their children. In many cases the abusers deliberately harass or pressure them shortly before a court appearance is scheduled in order to obtain an emotional reaction the court is likely to misunderstand. Abusers tend to be extremely manipulative and so after their abuse that the judge does not see, come to court calm and cooperative. Court professionals are often fooled by this act.
The new Department of Justice study confirms what we said in our book and other similar research. Dr. Saunders found that court professionals frequently treat mothers’ anger and emotion as far more important than it actually is in terms of the well being of children. These professionals may be uncomfortable with the mothers’ emotions particularly if she criticizes their response to the father’s abuse. Clearly these are difficult and unpleasant issues to confront. The misinformation treating contested custody as if it were “high conflict” when it is actually domestic violence contributes to the misunderstanding of the mothers’ anger and emotion. The professionals are focused on forcing the parties to cooperate even though this is not the best approach for children. When the parties have difficulty cooperating and certainly in domestic violence cases, parallel parenting is a more effective approach for children. The problem, as demonstrated by the Saunders’ study is that these professionals are focused on their beliefs and preferences rather than research about what works best for children. The custody courts did not get into the practice of looking to current scientific research and particularly the specialized body of research about domestic violence because there was no such research when the initial court practices were developed. We now have substantial research that would help inform court decisions and avoid the frequent mistakes but court professionals rarely look to this research to help them make better decisions. This is why we rarely see custody courts weigh the benefits and harms to children of a proposed resolution. The Department of Justice study establishes that these flawed practices lead to decisions that hurt children.
Cottage Industry Supporting Abusive Fathers
We often hear complaints about corruption in the custody court system. This belief is supported by the many cases in which courts make findings that are far removed from a fair evaluation of the evidence and decisions that seem to be disconnected from the well being of the children involved. There are cases of outright corruption such as the Garson case in Brooklyn, New York, but more often, I believe courts create the appearance of corruption because of bias, ignorance and deeply flawed practices. One of my concerns with complaints about corruption is that it makes it harder for judges in the broken system to hear the complaints and create the reforms that are needed. An important contributing factor to the widespread belief in corruption is the cottage industry that has been created to support abusive fathers.
Most contested custody cases involve abusive fathers seeking custody as a tactic to pressure their victims to return or punish them for leaving. Domestic violence is all about control so these abusive fathers usually have controlled the family finances and have these resources to support their custody litigation. Some lawyers and mental health professionals have figured out that they can make a large income by supporting practices and approaches that support abusers. We often see them advertise as supporting “fathers’ rights.” In many cases we see fathers’ attorneys and GALs promoting the appointment of evaluators who support abusive fathers. It is particularly frustrating when judges refer to these professionals who regularly support abusers as “neutral professionals.”
Protective mothers often have no chance when these biased professionals are appointed regardless of how strong their cases may be. Many of the mothers have complained that the evaluators and GALs make misrepresentations to the court in order to justify findings in favor of the abusive fathers paying their fees. When such professionals lie to the court about the evidence or to justify fees they did not earn, the mothers are justified in complaints suggesting corruption.
Many of these biased professionals strongly support PAS despite a lack of scientific justification. Significantly, PAS is based upon the assumption that virtually every complaint by mothers about the father’s abuse is deliberately false. The Department of Justice study found a problem with inadequately trained professionals who believe the myth that women frequently make deliberately false allegations of abuse. The unqualified professionals supporting PAS are even worse assuming that virtually all such allegations are false. The courts have virtually no chance of making the right decision if they treat such biased professionals as having any credibility.
The Department of Justice study’s contribution to this issue is a finding that evaluators working for the court or the county made recommendations that worked better for children than those of evaluators in private practice. When Dr. Saunders described this finding at a workshop during the NCADV Conference I asked him if he thought the findings supported our concerns about the cottage industry that has developed to support abusive fathers. He agreed this was a good interpretation. Evaluators working for the court or county are not paid extra for each evaluation so they have no incentive to favor the wealthier parent.
Professionals often have fundamental conflicts of interest. Medical doctors who schedule tests or procedures will earn money from performing the services they recommend. Tests may be scheduled to shield the doctor from potential lawsuits rather than to benefit the patient. Lawyers who recommend going to trial, starting a lawsuit or making a motion will earn money when the client takes their advice. Similarly, mental health professionals benefit financially when patients accept recommendations for more services. The conflict of interest is largely unavoidable and the professionals are expected to have the integrity to act in their client’s best interests instead of their own. Unfortunately some of the evaluators and lawyers, particularly those supporting abusive fathers have not fulfilled this ethical obligation.
We have repeatedly seen problems in custody courts with mental health professionals and particularly ones sympathetic to abusive fathers making recommendations requiring protective mothers to use their unwanted and unneeded services. We see these biased professionals pathologizing mothers who have always taken good care of their children with diagnoses that are clearly wrong. This would include the frequent finding of rare conditions such as Munchausen Syndrome by Proxy, conditions like paranoia or delusional based on the mothers’ continued belief in the father’s abuse despite the failure of the court professionals to recognize his abuse and other emotional problems that magically seem to affect only her relationship with her abuser and the court. They seem oblivious to the fact that that she does fine in other parts of her life that under any unbiased circumstances would rule out the claimed diagnosis.
Some of these mistakes are clearly deliberate and qualify as corruption. Other cases may involve bias and ignorance and a lack of the needed qualifications as the Saunders’ study demonstrates. When the professionals who are part of the cottage industry engage in gender bias they usually do so without realizing it. Many actually believe in the theories and practices they use despite a lack of scientific basis. Some of this can be explained by confirmation bias where the professional focuses on information or accusations that support what the professional expects to find and ignores information that undermines their theories and assumptions. We see this kind of mistake frequently in domestic violence custody cases and the mental health professional is often unconscious that they are engaging in confirmation bias. In fact they are likely to become defensive and angry at the suggestion. The Department of Justice study demonstrates the harm of using professionals who are part of the cottage industry and the need for custody courts to screen court professionals to avoid relying on them. Even worse, courts often use these unqualified professionals to train other court professionals. This can only serve to spread misinformation which makes it harder for court officials to recognize the problems demonstrated by the Saunders’ study and other current scientific research.
The custody court system tends to look at each case and each issue or event in a case separately. This is based on a belief that just because a man slapped his wife on Monday does not mean he punched her on Friday. The court system uses stare decisis which means once a case or an issue has been decided the same parties cannot relitigate it. There are good reasons for these practices, but they work poorly in domestic violence cases because of the importance of context in understanding domestic violence. We often see cases where the court denies allegations of domestic violence and they may even have been right if there was insufficient evidence. Naturally the abuser continues his abusive behavior so more evidence becomes available, but many courts refuse to hear the new evidence or refuse to consider it in the context of the previous evidence because those issues were previously litigated. In doing this the court is denying itself the ability to recognize the pattern of the father’s abuse and protect the children. Domestic violence experts are confident that the custody court system is broken because we see the pattern of mistakes and harmful decisions, but the powers in the court system are offended at the criticism and cannot believe the problem because they refuse to look at the patterns.
The findings of the Department of Justice study, by itself, provides convincing documentation that the custody court system is getting a large majority of domestic violence custody cases wrong. It would be impossible for courts to get most cases right when most of the court professionals have inadequate domestic violence training, those with inadequate training tend to believe the myth that women frequently make false allegations, the courts are placing too much weight on mothers’ anger and emotion and the evaluators who earn additional money through appointment in custody cases are making decisions more harmful to children then those who do not have a financial incentive. This study was not made in a vacuum, but was produced in the context of a substantial and growing body of scientific research that establishes the custody courts are making bad decisions in contested custody cases that endanger children. The research also establishes that the standard practices used in the custody courts are deeply flawed and outdated.
I am hopeful that a study coming from the U. S. Department of Justice will be harder for the custody court system to ignore. They have a strong reputation and can only be considered neutral. Furthermore, the courts frequently seek grants and other funding from the Department of Justice. Protective mothers and their attorneys can cite this research and it should be harder for the courts to ignore. I can’t wait until it is published on the DOJ web site.
|Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to the National Institute of Justice, U.S. Department of Justice (October 31, 2011). Principal Investigator: Daniel G. Saunders, Ph.D., Co-Investigators: Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. University of Michigan, School of Social Work, 1080 S. University Ave., Ann Arbor MI 48109-1106 USA. (“This project was supported by Grant No. 2007-WG-BX-0013 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.”)|
The Office of Violence Against Women (OVW) is the part of the US Justice Department that provides grants for programs designed to reduce and prevent domestic violence. They recently sponsored a forum for their staff and other professionals in various parts of the government to learn about the crisis in the custody court system. They heard from seven protective mothers, one very inspiring Courageous Kid and over a dozen of the leading experts in the country. It was a wonderful discussion based upon current scientific research and actual experiences and everyone seems to get it that the courts are routinely making catastrophic mistakes in failing to protect children and domestic violence survivors. The purpose of the forum was to consider the problem, causes and solutions. It was so wonderful to take part in a reality based discussion about domestic violence custody issues and to do so with people who may have the ability to promote the needed changes. And yet the next day if any of us walked into a custody court, the research and the reality that were an unquestioned part of the discussion at OVW would be missing in the pretend world that is the present custody court system.
Similarly, in December, I had the privilege of participating in a review of grant proposals concerning gender, violence and health. The Canadian Institute of Health brought leading experts in the field together to consider which grant proposals would be most beneficial to fund. This was a high level discussion in which all of the participants were familiar with current scientific research so that we could have a reality based discussion. I found it particularly interesting that the Canadian government could attract knowledgeable experts for $200 a day at the same time the courts pay or require litigants to pay thousands of dollars for a few hours to “experts” completely unfamiliar with up-to-date research who instead provide opinions based on their personal belief system and prejudices.
Our custody courts are a very insular system in which information and ideas that contradict the misinformation routinely relied on by court professionals are unwelcome. Custody courts started relying on mental health professionals at a time when no research about domestic violence was available and many people assumed domestic violence was caused by mental illness, substances abuse and the behavior of the victims. We now know the original assumptions are wrong and mental health professionals rarely have much expertise in domestic violence or child sexual abuse. Nevertheless the courts are so used to relying on professionals with inadequate training that they routinely refuse to hear genuine experts or treat their testimony with tremendous skepticism. Experts, government agencies and academicians relied on to make major decisions in the real world are treated with disrespect by the court system. Repeatedly I have heard judges suggest that when the (inadequately trained) GAL, evaluator and child protective caseworker all agree, it is unreasonable to consider any other view.
Abusers often impose a pretend world on their victims by denying and minimizing their abuse. They often blame their partners by claiming her behavior forced him to abuse her. It is often unsafe for the woman to challenge this pretend existence. Genuine experts agree that dealing with reality is an important part of the healing process after survivors leave their abusers. This makes the common court practice of cooperating with abusers to focus on pretend issues so harmful to battered mothers and their children.
Many years ago I tried to help a teenage girl whose father was sexually abusing her. She finally found a therapist she could trust and the courage to share her secret. He called the child protective agency, but their response was to remove the girl from her home so the father’s life would not be disrupted. They put her in a home for girls that included those there for criminal behavior. While at this home, she was assaulted and robbed. The caseworker refused to permit her to continue working with her therapist just when she needed him most and pressured her to recant her allegations. The caseworker threatened to send her to an even worse facility and she was also concerned about the trouble her father would face. When she recanted her allegations she was sent back to her home and forced to engage in therapy based upon the false assumption her allegations of abuse were wrong. At a time when she needed therapy in response to years of abuse, she was forced to engage in therapy to determine why she made false allegations.
More recently, I worked on a New Jersey case in which a young child reported to her mother that her father and his mother had touched her in the vicinity of her privates. She did not know the words to be more precise. The father immediately denied the allegations and claimed the mother was making deliberate false allegations. The unqualified professionals focused only on whether the child was molested or the mother made false allegations and when they could not find enough evidence of abuse after a flawed investigation assumed the allegations were false. They brought charges against the mother and eventually gave the abusive father custody and the mother supervised visitation. When the court professionals later learned of the father’s history of domestic violence and hired a qualified expert who used current research to recommend custody be restored to the mother, the court professionals ignored the information that undermined their mistaken finding. The mother was forced into therapy in which she had to prove she no longer believed the true allegations if she wanted unsupervised visitation with her daughter. Having escaped the pretend world imposed by her abuser by leaving him, the mother faced another pretend world imposed by the court.
These kinds of mistakes are common in the broken custody court system. Often they are caused by court professionals who use the bogus Parental Alienation Syndrome (sometimes by other names) to give custody to the abuser and deny normal contact with the protective mother. Some courts impose reunification therapy on the children who are taught that their dislike of their father is not because of his history of abusing them and their mother but because of the lies she has told them. Again at a time when they need therapy to heal from their father’s abuse and the separation from their primary attachment figure, they must instead engage in therapy based on pretend alienation issues. These practices work well for the bank accounts of mental health professionals, but poorly for children.
Most court professionals have been trained to view contested custody cases as “high conflict” by which they mean the parents are angry at each other and act out in ways harmful to their children. Current research, however, establishes that most of these cases are actually domestic violence cases. Fathers with a long history of abuse seek custody as a way to gain access to their victim to pressure her to return or punish her for leaving. Court professionals unwittingly assist these tactics by pressuring the mother to interact and cooperate with her abuser instead of pressuring the father to stop his abuse. The normal fear, emotion and reluctance to cooperate with a man they see as dangerous is used to discredit and punish the mother. Using the “high conflict” lens makes it harder for court professionals to recognize the father’s abuse and to take it seriously.
Few court professionals have been taught about the dynamics of domestic violence or how to recognize it. We regularly see court professionals discredit domestic violence complaints for reasons that are not probative such as when women return to their abuser, withdraw protective orders or don’t have police or medical reports. The women do this for safety and other reasons, but if the professionals treat this kind of information as if it were proof of false allegations, they have no chance to recognize valid complaints. At the same time, these professionals are often only looking at incidents of physical abuse. Accordingly they fail to see the patterns of controlling and coercive behavior. They don’t pay attention to economic control, isolating behaviors, emotional abuse, monitoring their partner’s behavior or information about the abusers’ motivation. Once courts determine through these flawed practices that the domestic violence allegations are false, they generally refuse to consider additional evidence or events that support the allegations and severely retaliate against mothers who continue to believe their allegations. Significantly, when courts do recognize the father’s abuse, they rarely if ever penalize him for continuing to deny his abuse.
The pretend world created by the custody courts is supported by the popular myth that women frequently make false allegations of abuse to gain an advantage in the litigation. A new Department of Justice study led by Dan Saunders of the University of Michigan found that court professionals without adequate training in domestic violence are more likely to believe this myth and in turn make recommendations harmful to children. The myth greatly contributes to the frequent mistaken findings we see in custody courts where valid allegations of domestic violence are disbelieved. Widespread gender bias also contributes to the inaccurate decisions.
Custody courts do their worst job in responding to allegations of sexual abuse of children. Although a majority of allegations made by mothers are accurate, 85% of the cases result in custody for the alleged abuser. Even attorneys with little knowledge of domestic violence and child abuse routinely advise clients not to raise sexual abuse allegations, even with strong cases, because the courts are so reluctant to believe a father could commit such a heinous act. Sexual abuse against young children is particularly hard to prove because it is committed in private for obvious reasons and children often do not have the language to describe what their father did to them. Although many court professionals expect physical proof, most assaults do not leave physical evidence and when they do it may be gone by the time the child works up the courage to reveal the abuse. Older children often recant true allegations because the abuser has threatened to hurt them or their mother or because they don’t want someone they still love to get in trouble. Poor investigation methods by often inadequately trained professionals also impede proof of sexual abuse. When allegations are made by mothers the most likely circumstance is the allegations are true. The next most likely is that the accused did not abuse the child but engaged in boundary violations that made the child uncomfortable. Other common possibilities are that the allegations are false, but made in good faith or that the evidence is equivocal, but court professionals routinely focus on deliberately false allegations even though this is the least likely cause for the allegations. The result of these flawed practices is that courts often deny valid allegations of sexual abuse and conduct the rest of the case based upon the fiction that there is something wrong with the mother for trying to protect her child.
These common mistakes in domestic violence and child abuse cases lead to a pretend world promoted by the abuser and supported by the court in which the case is conducted based on the fiction that the mother’s allegations are false. Any attempt by the mother to provide additional information of the father’s abuse is treated as a lack of cooperation for which she is severely punished. Her only hope to have some minimal time with her children is to prove she no longer believes the true allegations she made. In other words she is back in a pretend world that she hoped to escape by leaving her abuser. Even worse, now he has complete control, supported by the court and she is not even near the children to try to protect them when he acts in a dangerous manner.
In the typical contested custody case the mother is the primary attachment figure for the child and complains about the father’s domestic violence and/or child abuse. The father counters with claims of alienation. The primary attachment figure is the parent or other caregiver who provides most of the child care during the first couple of years of a child’s life. When a child is separated from their primary attachment figure, the child is more likely to suffer depression, low self-esteem and to commit suicide when older. Accordingly it makes no sense to do this unless the primary attachment figure is unsafe such as if they were a drug addict or beat the child. At the same time children who witness domestic violence are more likely to engage in a variety of harmful behaviors when they are older and their normal development is impeded which can cause lifetime of harmful effects.
The worst custody decisions provide custody to the alleged abuser and supervised or no visitation to the safe, protective mother who is the primary attachment figure for the child. These decisions are virtually always wrong because they are based on punishing the mother for believing the father is dangerous and not on concerns for the well being of children. The findings are usually wrong because of the flawed practices, but the outcome would be wrong if the findings were correct because courts rarely weigh the harm they are causing with whatever benefit they seek to create. The harm of denying the child their primary attachment figure is far greater than any benefit the court believes it is providing. Significantly, we rarely see evaluation reports or court decisions that weigh the benefits and harm of a decision they are considering. This is the kind of result we see when courts fail to consider current scientific research in their decisions. Judges may believe the mental health professionals involved in the case provide this expertise, but the professionals relied on by the courts are rarely familiar with current scientific research and courts don’t disqualify or even discredit evaluators and other mental health professionals for being unfamiliar with current research.
Mothers partnered with abusive fathers are in an impossible situation. If they fail to protect their children from the dangerous abusers, they can lose custody for failure to protect. The mothers hear repeated messages that they should leave him, but when they do and try to protect their children, they are punished for interfering with the relationship between the children and the abusive father. The result is too many courtrooms in which courts recreate the pretend world the mother sought to escape.
In fairness to the custody courts, they were forced to develop practices to respond to domestic violence cases at a time when no research was available. Many other entities were slow to understand the best ways to respond to domestic violence. Police officers were trained for many years to separate the parties when called to a home and have the abuser walk around the block to calm down. Eventually they switched to a pro-arrest policy after research demonstrated this practice was ineffective. Domestic violence homicides were reduced as communities moved towards practices designed to hold the abuser accountable. Even domestic violence agencies have not always been as supportive of protective mothers as they deserved, but with the increase in Custody-Visitation Scandal Cases and increase in domestic violence homicides as a result of mothers staying with their abusers because of the dangers created by custody courts, the domestic violence community has made child custody an important priority. It has taken a while for academicians to realize the harm in common custody court practices. Initial research supported shared parenting, but more comprehensive research has demonstrated shared parenting is harmful to children even when there is no domestic violence, but too often it is used in domestic violence cases because court professionals have difficulty in recognizing domestic violence. Current scientific research confirms complaints by protective mothers that the custody courts are mistreating them and harming their children. Government agencies now seem to understand the custody courts are harming children. Their understanding is based upon the research now available. The problem is that child custody issues have historically and constitutionally been left to the states and their courts.
Psychologists and other mental health professionals engaged in research have come to understand the harm of the standard practices in domestic violence custody cases. Most mental health professionals are not involved in the custody court system, but have failed to impose ethical standards on mental health professionals involved in questionable practices in the custody courts. The professional associations have permitted ethically challenged psychologists and other professionals to make recommendations unsupported by current scientific research, engage in biased practices that favor abusers and make diagnoses that are not found in the DSM IV because they don’t exist. Although ethical considerations would require the professionals to consult with experts on subjects in which they don’t have expertise, like domestic violence, the professionals in custody courts routinely fail to consult domestic violence experts, wrongly believing they have this expertise. This has led to frequent mistakes in domestic violence custody cases. These unqualified mental health professionals have played an important role in misleading custody courts and creating an illusion that there is a scientific basis for the mistaken practices commonly used in custody courts
by Barry Goldstein, NOMAS Child Custody Task Group
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.
- 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.
- 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.
- 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 protective mothers. 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.
- 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.
- 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.
- 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 cases in 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.
- 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?
- 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?
- 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.
- 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 firefighting 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.
This is Really Hard to Believe- Barry Nolan I am sitting in a room filled with women who were beaten, and violated in terrible ways. The room is not in Bosnia, or some far flung third-world hell-hole. I am in a function room in a hotel in Albany at the Battered Mothers Custody Conference.
Written by Barry Nolan
Thursday, 15 January 2009 09:14
This is really hard to believe. I am sitting in a room filled with women who were beaten, and violated in terrible ways. The room is not in Bosnia, or some far flung third-world hell-hole. I am in a function room in a hotel in Albany at the Battered Mothers Custody Conference. 
Many of the women around me are sobbing now, as a child tells her story. “My father beat me” she begins. Well, she is not a child now actually, but she is a child to me. She is a poised, attractive young woman named Jennifer Collins  who is a survivor of child abuse and of a Child and Family Court System that betrayed her and her brother, just as it betrays children across this country every day when it orders children to live full time with an abusive parent.
I know you do not believe me. And that makes me realize that this is the experience that these women who surround me have all had. No one believes them. No one believes this can happen.  But it does. Sometimes this happens despite voluminous evidence, eyewitnesses and medical records that the child has been beaten, even raped and sodomized by a parent seeking custody. Sometimes the courts do this even if the parent seeking custody has been convicted of, or admitted to domestic violence or sexual assault. I know you don’t believe me. But you would believe Jennifer if you were here.
It is a strange world in Child and Family court. For instance, even as much energy in the wider world goes into efforts to make certain that sex offenders have no access to children, that they can’t live near a school and walk near a playground, in this odd little corner of our judicial system, courts routinely order children to “reunite” with a sexual predator parent who hurt them. All in the name of “family re-unification”.
I know this sounds impossible. It is against all common sense. This is America after all. But come sit here with me, and listen to this woman/child tell her story. She has “aged out” of the system and is no longer under the thumb of a court that tells her she must be silent. There is a whole group of courageous kids  like Jennifer who are old enough now to tell their story to you, face to face. Jennifer’s story is a pip. And it is pretty typical.
Jennifer tells us about her mother Holly and her dad. He was a batterer who beat Holly. And he beat the children. Jennifer moves her story along quickly to the day when her older brother, then about 4, tried to intervene as dad was beating mom. Dad threw the son against the wall and fractured his skull. There is much more. But I will move the story along quickly to what happens when Holly finally decided to leave this man who beat her and the children. She fled that terrible house, only to find herself in house of mirrors. The Child and Family Court system.
It is almost as if none of the people who run the Child and Family Court system ever read about or learned a single thing from sad saga of the Catholic Church’s sexual abuse scandal. It’s like they never heard about how victims of physical or sexual abuse are often silenced by their own sense of shame. How their terrible stories can sometimes finally come pouring out in torrents. It may be years later, but it is no less true. This is not theory. This is fact. We have all watched these sad dramas on the 6 O’clock news.
But, uniquely in Child and Family Court, if allegations of physical or sexual abuse are raised during a divorce where custody is an issue, the allegations are used, not against the perpetrator, but against the victim. There is this invented thing, a bit of junk science called “Parental Alienation Syndrome”. It basically says that any time a woman raises the issue of physical or sexual abuse, of herself or the children in the midst of a custody dispute, she is just trying to make the man look bad and make the children hate him. She must be lying.
Look, I am not a fool. I know people lie. I know some women lie. I know people say awful things about each other in divorces. I have watched Jerry Springer just like you. But I have also watched “To Catch a Predator” and I know “respectable” people can do horrible things. So, do a thought experiment here. Pretend you are a woman who had finally left an abusive relationship, taking your children with you. If your controlling soon-to-be ex-husband sought to get full custody of the children as one last slap at you, what would you say? OK? Sure, that sounds fair? Fat chance.
The thing a real court would do when this happened is to consider all the evidence, and talk to all the witnesses. Witnesses like the children. They were after all, there when “it” happened. This is what a court would do if a stranger were accused of beating them. Or raping them. But this is not what the Child and Family Court system does.
Jennifer, the survivor, tells us of the day the representative of the court came to take her away from her mother and take her to live at her dad’s. How she clung desperately to her mother’s leg, until they pried her fingers loose, lifted her up, carried her away, and compelled her to live with the man who would beat her. Jennifer tells us how her mother, desperate beyond all measure, kidnapped the children, spirited them away to the Netherlands, where they became the first Americans to be granted asylum. How she lived in a refugee camp, with refugess from Somalia and Sierra Leone, people who had to learn how to use toilets and forks. How this was better than “home”. This was a step up. She was with her mom.
Jennifer lived in exile for 14 years. She finally “aged out”. The court has no jurisdiction now. And so Jennifer had the freedom to come home, to America, to this room where I sit, surrounded by women who are now weeping with joy and cheering for Jennifer’s mom for being so brave and for Jennifer for telling her story to this room full of people who know her story is true. Because the same thing happened to them. So they believe her.
I believe her, too.
 The Battered Mothers Custody Conference is a national public forum to address the many complex issues facing battered women and their advocates as they strive to protect themselves and their children in and out of family court during divorce, custody, and visitation disputes.
 Small Justice is a video that follows paralegal Diane Hofheimer and her attorney husband as they represent three women, all loving mothers, who have lost custody of their children to men with demonstrated histories of sexual abuse and domestic violence.
 The Courageous Kids Network is an organization dedicated to stopping the continuing assault on children’s human right to live free from abuse.
 American Children Underground blog chronicles the story of Jennifer Collins, who spent 14 years in hiding with her mother and brother after receiving asylum in the Netherlands.
from the October 14, 2009
States must reform a system that too often awards custody to the abusive parent.
San Rafael, Calif – When a parent harms his or her own child, family courts are supposed to step in and safeguard the victim.
Can you imagine what a tragedy it would be if courts awarded custody to the wrong parent – the abuser?
Actually, according to one conservative estimate, more than 58,000 children per year are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States.
The fact that this type of scandal is taking place in the American justice system defies the imagination. Not since the Roman Catholic Church pedophile scandal has the US seen this level of institutional harm inflicted on innocent children.
Consider the case of Jonea Rogers, a hairstylist from Marin County, Calif. During her costly divorce, she sought help from numerous law enforcement, child protection, and family court authorities to protect her daughter from what medical evidence and reports by the child and her baby sitter suggested could be ongoing neglect or sexual abuse or both by the girl’s father or grandfather.
None of the authorities she approached would effectively intervene to protect her daughter. So in 2000, Ms. Rogers eventually felt that she had no choice but to flee with her child to protect her.
More than three years later, this protective mother was caught and jailed for five months, while her daughter was immediately handed over to her alleged abusers. Rogers faced criminal charges for violating a court order by fleeing with her child. After considering the evidence in her case, a jury of her peers completely exonerated her of all wrongdoing.
The very same evidence that exonerated her in the criminal court had been called “frivolous” by the family court judge and disregarded. Despite her acquittal, Rogers was never granted custody of her daughter, who lives with her alleged abusers to this day. She is now forced to pay a fee to visit with her daughter a few times a month in a supervised visitation facility.
As we see in many cases across the country, even when physical or sexual abuseof children is alleged during a divorce, American family courts routinely award custody to the parent with an established record of domestic violence restraining orders, child abuse, neglect, alcoholism, addiction, dangerous mental illness, or a combination.
Meanwhile, the child’s other parent, commonly referred to as the “protective parent,” is typically demonized by court professionals as an “alienator” for bringing evidence of child abuse to the court’s attention.
This happens because the reigning paradigm in family courts across the country is an unscientific, discredited theory known as “Parental Alienation Syndrome,” orPAS.
PAS and its many derivatives suggest that the parent who asks the court to protect his or her child by limiting the alleged abuser’s access to that child is “alienating” the child from the other parent.
The theory suggests that a parent “coaches” a son or daughter to fabricate false abuse allegations, and the court’s attention immediately shifts away from investigating an alleged crime and instead focuses on the “uncooperative parent” who refuses to share custody of the child with the alleged abuser or molester.
PAS is tricky for the courts because parents in heated custody battles often badmouth each other and sometimes exaggerate claims of neglect, and children overhear their parents complaints about each other. Though rare, false allegations of abuse do occur. Research on child sexual abuse indicates that close to 98 percent of children who claim sexual abuse in the context of a high conflict divorce are telling the truth, yet family courts routinely proceed as if the opposite were true.
Protective parents not only lose custody of the children they are trying to protect, but they lose their life savings, too. Many cannot even afford a lawyer to represent their interests, but are saddled with hefty supervised visitation fees and often threatened with a loss of custody if they object to paying the bevy of court-appointed experts that the judge assigns to their case.
Fees quickly add up to tens or even hundreds of thousands of dollars. Many such parents go bankrupt, making court appeals impossible. The family law “machine” operates as Big Business, and a sophisticated cottage industry has sprung up that appears to be preying on desperate parents and children who are trying to escape family violence.
Four factors conspire against protective parents:
- 1. Family law judges are granted broad discretion in their decision making;
- 2. Juries are nonexistent in most family law courtrooms;
- 3. Costly appeals are out of reach for most litigants; and
- 4. Children are not afforded a voice in these important proceedings that determine their future. As a result, nothing short of a major overhaul of the family court system will suffice.
Here in California, home to some of the most egregious cases, the Center for Judicial Excellence and its partner organizations in the Safe Child Coalition recently worked with State Sen. Mark Leno (D) of San Francisco to unanimously pass an audit request through the California legislature to address this growing problem.
The request asks the state auditor to investigate the procedures used by family courts to appoint, train, evaluate, and discipline the plethora of professionals they use in cases in Marin and Sacramento counties.
The legislature should also pass two sensible bills in 2010. Assemblyman Jim Beall (D) of San Jose has proposed a bill that would outlaw PAS in state family courts, and a bill by Assemblywoman Fiona Ma (D) of San Francisco would allow children to have a voice in family court proceedings.
Other states must open their eyes to this problem. Family courts are being manipulated in ways that tragically undermine their mission.
We must ensure access to justice for all who find themselves in our nation’s family courts. There are at least 58,000 reasons to get serious about reform today.
Kathleen Russell is a cofounder and staff consultant to the Center for Judicial Excellence in Marin County, Calif.
Source The Christian Science Monitor.
The Sexual Paradox: Men, Women, and the Real Gender Gap. Why We Should Reconsider Gender Neutral Family Leave Policies
The Sexual Paradox: Men, Women, and the Real Gender Gap by Susan Pinker
Myth — "Equality under the law" means that men and women are the same in all ways.
Fact: — "Equality" under the law means that WHEN men and women are the same in all ways, the law will treat them that way, and that when they are not,
the law will not default to what is characteristic of "man" as the standard.
Thus, "equality under the law" means more than merely consideration of each person as an individual. It also means that that "consideration" will not be cast in terms of standards and rights that can attain only to non-gestating human beings. The law will not determine what is "reasonable" with reference solely to what would be "reasonable for a man;" the law will not determine what is "just" by reference solely to what could be "achievable by someone who cannot gestate;" and the law will not ignore reproductive differences between mothers and fathers where they do indeed exist and have effect.
Why We Should Reconsider Gender Neutral Family Leave Policies
"…One might expect that men married to female university professors would be more likely to have egalitarian views and share child care
equally, but this is another myth. Steven Rhoads, a professor of public policy at the University of Virginia, had similar assumptions. He ran a nationwide study and found that 75 percent of female faculty believed their husbands should take on equal amounts of child care, housework, and
paid work. Just over half of their husbands agreed. Yet the women spent much more time with their children than their husbands did, and in
universities where they were offered paid parental leave, 67 percent of the eligible women took advantage of it, only 12 percent of male faculty
took that time off, and when they did, they didn’t use the time the same way. ‘We heard stories of male academics who took paid post-birth leave in
order to advance their publishing agendas,’ wrote Rhoads, commenting that he’d heard of one school that changed its rules as a result. Upon
returning from her maternity leave, one female colleague recalled being asked by a male colleague how the leave had gone. She replied, ‘I used the
time well.’ Then the man said, ‘So you got a lot of work done.’ But that’s not what she meant.
"If more academic mothers use a leave to spend time with their baby and more new fathers use the time to publish, then a system based on men and
women being identical ends up punishing women. When these family-friendly policies are applied equally to both sexes, academic women experience more discrimination, not less. One unofficial study at an Ivy league college found that parental leave benefits available to both sexes had that
paradoxical effect: no woman who had taken a family leave in the previous fifteen years had subsequently received tenure. Most if not all of the
small number of men who had taken family leave did. This was never published or even tallied up as a real study, but it became commonly cited
during the tenure discussion, summarized as ‘a woman takes family leave and comes back with a backlog, a man takes family leave and comes back
with a book’… Realizing what was happening, a committee at the college tweaked the policy to allow additional leave for those who give birth
(obviously, fathers wouldn’t be eligible). This helped… [N]o one wanted to discuss the issue openly, allow the college to be named, or be
identified in any way. The topic was taboo…"
Mothers and Fathers are Different
"…given the choice, 60 to 80 percent of American and European women choose part-time work over full-time schedules or staying home full-time
— even if they had initially intended to work full-time and even if the decision will cost them in job security and earnings. ‘The vast majority of women who claim to be career-oriented discover that their priorities change after they have children.’ writes [British sociologist Catherine] Hakim. Eroding the idea of a united sisterhood, Hakim has amassed data from European and American census and national surveys that clearly show that women in modern societies are hardly homogeneous. Instead, they separate fairly cleanly into three groups. There are those who want to stay home full-time, whom she calls ‘home-centered’ (approximately 20 percent). There are those whose careers take precedence, whom she calls ‘work-centered’ (approximately 20 percent). These career-oriented women experience few disadvantages to being female; if they have the same credentials and put in the same hours, they achieve the same rewards as men.
"The majority, the remaining 60 percent, are women who try to combine children and career, drifting between various work schedules and
positions, looking for the perfect arrangement. There ‘adaptive’ women adjust their careers to accommodate their families’ needs and their own values, a trend as powerful in socially progressive Sweden and Norway as it is in the United States…
"Calling it ‘Preference Theory,’ Hakim nailed two realities. Not all women want the same thing. And when women have choices, only about 20 percent
will choose what men choose… exclusively career-oriented women are a minority, Hakim says…"
"If you had asked me before my first child was born to choose from Hakim’s three groups, I wouldn’t have hesitated before placing myself with career
oriented women. I didn’t expect to feel any differently after my baby was born than I did before — or much differently than her father would. But
my plans for a swift return were shot to hell when a wrinkly, underweight, and squalling baby appeared instead of the placid, pink-cheeked, robust infant I’d imagined cheerily handing off to a babysitter… Work demands seemed remote… I was shocked by my protective feelings. I needed to be
with her. I needed her to be healthy….
"In the early eighties I was not alone in thinking that men and women had nearly identical brains, but that we had been socialized to take on
different roles. If my husband, a doting father, could leave his scrawny newborn after two weeks at home and go to work for ten hours a day without
a backward glance or a blip in his concentration, the script dictated that this was because he had learned that his role was to be the provider. And
if I felt physical distress about tearing myself away from a six-week-old baby — notwithstanding the monotony and isolation of new motherhood — I
had internalized mine as a maternal caregiver. Never mind that my mother and both grandmothers worked outside the home, as well as in it. Many of
us thought that if only women could tame their outdated sentimentality, if only men were present and willing to offer their babies more bottles, then
our parental roles could be reversed… At the time we assumed that men and women were equals — not just in rights and opportunities, as they should be, but also in underlying psychology and behavior. Any differences, including physical differences, could be fixed via technology, policy, or force of will…
"This is the vanilla gender assumption: that female is just a variation of male. But more than two decades after my daughter was born, brain imaging
and neuroendocrinology have unveiled many of the biological networks underlying mothers’ specific longing for their infants and their drive to nurture them… "
"[Harvard professor Robert] Trivers’s theory suggests that competitive risk-taking is wired into males. Due to her own unique wiring, a female invests greatly in her future offspring, feeding them nurturing them, and raising them to maturity, all at significant cost to herself… once pregnant, that’s it. She’s committed. No matter how many one-night stands she has, a female will only have a given number of offspring during her lifetime — which she’s programmed to guard with her life — while a successful, competitive male striver can father… even a hundred…
"The math was demonstrated by Lucky Moulay Ismail the Bloodthirsty of Morocco (1646-1727), who fathered 888 children with multiple wives. Meanwhile, the female record holder, Madalena Carnauba of Brazil, married at 13 and gave birth to 32 children. The evolutionary anthropologist Sarah Hrdy points out that the context is missing. We don’t know how many children from each family survived, or how many of their rivals’ offspring were done in by Moulay’s more competitive wives. But the difference in output between Lucky and Madalena is still 856 children. More recent accounts… Rahman, who has fathered seventy-eight children and set a target of one hundred children by 2015… Jogi… who became the world’s oldest dad when he fathered his twenty-first child with his fourth wife…"According to Trivers, the parent who invests more in their offspring is the one who ultimately limits how many there are — namely mothers…"
Feminist Fear and Political Correctness
"[T]There’s a fear that if we recognize the existence of sex differences we’ll become part of a conservative backlash that will send women back to the kitchen. I’d argue that a more nuanced understanding of the average differences between men and women can lead to progress instead. In fact,
several problems arise from NOT acknowledging that sex differences exist. Workplaces and career schedules designed for a single, standard male approach to competition and success now discourage many women, notwithstanding their native smarts, their educational opportunities, and
their impressive accomplishments…
"Exhorting women to make ‘male’ choices is more pernicious than simply encouraging them to earn more. Educated women who forgo the highest paying or high-status jobs are usually aware of their options and have weighed the pros and cons. The finger-wagging about being influenced by the media,
not knowing the consequences of their actions, or giving license to employers to discriminate against women… follows in a long tradition of assuming that women don’t know their own minds… the prevailing message is that these women are either patsies or victims. The idea that women don’t know what they want, or don’t have the power, interest, or inclination to determine their own fate lends a feeling of deja vu to the debate about men, women, and work. Telling women that they’d prefer computer science to a degree in English or history if only they weren’t blindered by cultural norms, or that putting in fourteen-hour days when their children are toddlers is really what’s in their best interests, is a form of infantilization. It’s also a form of homogenization. The problem is not that some women choose to opt out, others to work part-time, or that other women prefer to keep working as long and as hard as they can. The problem is that only one choice is seen as the right one…"
Subheadings on the excerpts above are by thelizlibrary.org
The URL for this webpage is http://www.thelizlibrary.org/liz/sexual-paradox.html
WHY THIS IS IMPORTANT
This letter is to request that you take action to cut spending on pork barrel spending on certain TANF Title IV-D programs which represent $4 billion untraceable dollars that no one keeps track of. These funds meant for needy children were diverted and wasted by the US Department of Health and Human Services (HHS) to non needs based programs available to all fathers engaged in the family court litigation industry—no matter how wealthy they are. These parents now ask Congress to take a stand to hold ACF’s defective leadership and the programs destroying families accountable by demanding the following budget cuts:
1. TANF Contingency Fund authorized under 403(b) Social Security Act for payment to States and other non-federal entities under Titles I, IV-D, X, XI, and XIV “to remain available until expended.” (p. 474)
2. ID Code 75-1552-0-1-609, lines 0005 and 0009 [$990 million] (p. 473)
3. ID Code 75-1501-0-1-609 lines 0002, 0003 [Access and Visitation] [$1.7 billion] (p. 474)
4. Discretionary “Child Support Incentives” to States [$305 million] (p. 475)
5. ID Code 75–1512–0–1–506 “Healthy Families” [$1.7 billion] (p.476)
6. ID Code 75–1512–0–1–506 “Abstinence Education” [$1.7 billion] (p. 477)
7. Line 0129 “Faith Based Initiatives” [$1 million] (p.479)
Struggling parents want things like jobs, housing, education, childcare, and access to medical care to help them weather the current economic crisis. Instead, these hard working families are forced to invest $4 Billion in irresponsible, extortion based, Temporary Aid to Needy Families (TANF) programs that promote widespread Medicaid and child support fraud, protracted high conflict litigation, and bogus therapy programs.
Child support agencies deliberately withhold and mismanage billions of paid collected support, which starves children onto TANF and causes parents to be falsely prosecuted for nonpayment.
Good parents are being exploited, bankrupted, and emotionally destroyed while their kids are needlessly placed on the welfare, Medicaid, and foster care system rolls. Billions of dollars of child support remains unaccounted for nationwide.
These frivolous programs spend without restraint and direct money to places HHS cannot identify (as noted by the OIG and GOA reports on the second page.) There is no oversight. DHHS’s position is that once the money goes to the states, they are not responsible for oversight. Fraud is rampant, yet the OIG does nothing to enforce the laws to protect families.
90% of the parents paying child support are fathers. Using child support enforcement programs as a vehicle, these extortion based programs force fathers to elect between criminal penalties and inciting “high conflict” family court litigation to create a “need” for their own publicly funded services. These irresponsible programs cash in on the “incentives” by placing children in unstable homes, and then starve the entire family onto some sort of public assistance. We can identify no legitimate purpose for these programs and request that Congress take the following actions:
(1) Revoke or reduce funding to Administration for Children and Families (ACF) child support incentives, Access and Visitation (AV) programs, and gender based funding to child support agencies.
(2) End collateral child support/custody funding mandates.
(3) Overhaul Office on Child Support Enforcement (OCSE) on the federal level to remove staff with conflicts of interest and bias.
(4) Audit OCSE to find out where our tax dollars are actually going, and then implement rigorous transparency, oversight, and accountability measures on programs.
The [unlawful] programs are supposed to be ADMINISTRATIVE, but they used quasi judicial power to create, amend, and enforce court orders without judicial authorization. The agency does not provide due process, nor do they have to show you their files. Judges have to look the other way because if they object, they will lose their HHS funding, and at the same time the judge has to accept responsibility for the agency’s badly managed and even crooked interference when litigants are hurt.
On the author’s family court case, the bills were inflated and no one would let me have receipts for services, without telling me or the judge, support orders were modified, documents falsified, and support enforcement would not let me see their files. Like hundreds of families I am aware of, this money was used to force my family into needless litigation which cost me tens of thousands of dollars.
In 2011, we ask why the Obama Administration inexcusably ignored the pleas of desperate hard working parents and doubled the budget for these pork barrel projects, starving them out of their home. It’s time to get serious about deficit reduction, and require the president to exercise fiscal restraint on programs which would target and extort families under the most trying circumstances.
SUPPORTING DOCUMENTATION: WHERE DOES CHILD SUPPORT GO?
Recovery Act: Thousands of Recovery Act Contract and Grant Recipients Owe Hundreds of Millions in Federal Taxes
This Government Accountability Office report recently came out which shows that these HHS grant recipients owe us struggling tax paying families hundreds of BILLIONS in taxes.
OIG STATE AUDIT REPORTS ON UNDISBURSIBLE ARREARS
The more federal dollars were receive the less States collected in support. States refuse to distribute child support to "families first," and are instead keeping the money for themselves-without accounting for it.
These reports can be found here:
The Office of the Inspector General found HUNDREDS OF MILLIONS of dollars in undisbursed child support which was never accounted for when it audited the child support services programs from only a hand full of counties in approximately 30 states. There are only incentives to COLLECT support and put families on TANF, and NONE to actually disburse it to the children it is intended to benefit. When undistributed arrears were discovered, the OIG ordered the States to give 66% to the federal OCSE office, and allowed the State to keep the remaining 34% for themselves. And so the states deliberately don’t tell parents they collected the money, then create "set up to fail" disbursement methods to retain the funds for the general fund:
• send checks to the wrong address,
• illegal liens on accounts
• create massive arrears, give dad the tax benefit, then garnish the tax benefit,
• put child support it in trust accounts during litigation-that lasts more than 3 years,
• retroactively abate arrears, then keep it for themselves without telling either parent.
When the OIG identified the embezzled funds, they did not help them find the children it was intended to benefit, the OIG instructed States to properly report…So the feds could have their 66%. This policy entirely lacks accountability or consequences for this fraud. Subsequent reports demonstrated that the problem has continued to worsen, and there are [still] no protocols and procedures in place to define, identify, and track these monies.
Healthy Marriage And Responsible Fatherhood Initiative: Further Progress Is Needed in Developing a Risk-Based Monitoring Approach to Help HHS Improve Program Oversight:
•$500 Million Unconditionally Given To Activists: Operating under a deadline that allowed HHS 7 months to award grants, HHS shortened its existing process to award Healthy Marriage and Responsible Fatherhood grants to public and private organizations. During this process, HHS did not fully examine grantees’ programs as described in their applications, including the activities they planned to offer, and this created challenges and setbacks for grantees later as they implemented their programs. –P. 2
•Failure to Implement Uniform Standards, Policies, and Procedures: HHS uses methods that include site visits and progress reports to monitor grantees, but it lacks mechanisms to identify and target grantees that are not in compliance with grant requirements or are not meeting performance goals, and it also lacks clear and consistent guidance for performing site monitoring visits. –P.2
•Embezzlement and Fraud Was Likely Vastly Under Estimated: Moreover, we did not survey organizations that received money from grant recipients to provide direct services, subawardees. Since making the initial awards, 4 organizations have relinquished their grants, 1 organization had its grant terminated, and 1 new grant was awarded. There are 6 organizations currently pending non-continuation of award funds.
GAO REPORT: Child Support Enforcement: Better Data and More Information on Undistributed Collections Are Needed
Medicare and Medicaid Fraud, Waste, and Abuse: Effective Implementation of Recent Laws and Agency Actions Could Help Reduce Improper Payments
Child Support Enforcement: Departures from Long-term Trends in Sources of Collections and Caseloads Reflect Recent Economic Conditions
In fiscal year 2009, the child support enforcement (CSE) program collected about $26 billion in child support payments from noncustodial parents on behalf of more than 17 million children. The CSE program is run by states and overseen by the Department of Health and Human Services (HHS). States receive federal performance incentive payments and a federal match on both state CSE funds…The Deficit Reduction Act of 2005 (DRA) eliminated this incentive match beginning in 2008, but the American Recovery and Reinvestment Act of 2009 temporarily reinstated it for 2 years….
In fiscal year 2009, the CSE program experienced several departures from past trends. For one, child support collections failed to increase nationwide for the first time in the history of the program in fiscal year 2009… Also in fiscal year 2009, the number of CSE cases currently receiving public assistance increased …Preliminary HHS data show that total CSE expenditures grew by 2.6 percent in fiscal year 2008 as many states increased their own funding to maintain CSE operations when the federal incentive match was eliminated…In contrast to fiscal year 2008, a different picture emerged in fiscal year 2009, when the incentive match was temporarily restored but total CSE expenditures fell slightly by 1.8 percent, which HHS officials told GAO was due to state budget constraints. Most states nationwide have not implemented "family first" policy options…because giving more child support collections to families means states retain less as reimbursement for public assistance costs.
Administrative Expenditures and Federal Matching Rates of Selected Support Programs
By Barry Goldstein
I can understand why the court system did not immediately seek to learn from and rely on domestic violence experts when domestic violence first became a public issue in the mid to late 1970s. There was no research available and few domestic violence advocates. A popular assumption and misconception was that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led some people, including court professionals to treat mental health professionals as if they were the experts in domestic violence.
I do not understand how courts still do not require the use of domestic violence experts in cases involving allegations or evidence of domestic violence. We now have a substantial body of specialized domestic violence research that establishes the courts are getting a very high percentage of domestic violence custody cases wrong and often spectacularly wrong because of the standard use of flawed practices. These mistaken practices cause even good judges to regularly make bad decisions. Although mothers involved in contested custody cases make deliberately false allegations only one or two percent of the time, fathers receive custody between 70 and 83% of the time. In other words a large majority of abusers who seek custody are successful.
The highest priority in deciding custody has to be the child’s safety as without safety nothing else matters. In a domestic violence case, this should require a safety or risk assessment. Instead, custody courts regularly order evaluations. Not only do these evaluations fail to conduct risk assessments but few evaluators even know what behaviors are associated with higher levels of lethality. We virtually never see an evaluation report in which these vital issues are even discussed and when evaluators are asked about abusive behaviors they are rarely aware of the risks demonstrated. Ignorant of fundamental safety issues, evaluators instead focus on less important issues.
Evaluators are generally trained in psychology of psychiatry, but not domestic violence. Even if they have received a few hours of training in domestic violence and have been willing to listen (many evaluators are hostile to this training), at most it gives them some general awareness of the subject, but not expertise. That is why evaluators rarely provide the courts with information about lethality assessments, domestic violence dynamics or current scientific research. It is why they don’t know what to look for to recognize domestic violence and often mistakenly assume the danger is diminished with the end of the relationship. Especially important is their failure to understand and explain to the courts the harm of domestic violence to children.
Caseworkers at child protective agencies are often social workers and usually have more special training about domestic violence than the psychologists who serve as evaluators. Many communities have developed practices in which child protective agencies and domestic violence agencies work together on domestic violence cases. They cross-train each other’s staffs and when a possible domestic violence case needs to be investigated the caseworkers will consult domestic violence advocates and sometimes take them to the home. This practice has been shown to benefit children because it gives caseworkers a better chance to recognize when the father has engaged in domestic violence tactics and therefore create arrangements that work best for children. This should be considered best practices.
Ethical practices for psychologists and psychiatrists require these professionals to consult with experts in areas they don’t have expertise in that impact cases they are working on. Unfortunately these ethical considerations are aspirational so the routine failure of evaluators to use these ethical practices does not result in disciplinary proceedings. They instead result in ruining children’s lives when evaluators fail to recognize domestic violence and protect children from very real dangers. THE BATTERER AS PARENT, which is one of the leading authorities on domestic violence and custody, makes a similar recommendation. Clearly a practice that works so well for caseworkers who generally have more training is even more important for evaluators to use.
Expertise in Safety Issues
Fundamental to the work of domestic violence advocates is the ability to engage in safety planning with their clients. In order to do this, they need to be able to assess the level of danger presented by the client’s abuser. We can never know that an abuser will not kill or seriously injure his partner. This is particularly true when she has left him because75% of men who kill their partners do so after she has left. There are, however, many behaviors domestic violence experts look closely at because they have been shown to demonstrate a significantly higher level of danger. Among the factors experts look for in assessing lethality are choking, strangling or grabbing her throat, hitting a woman while pregnant, rape or attempted rape, hurting pets, threatening suicide, homicide or kidnapping, substance abuse, mental illness, refusal to obey laws or court orders, availability of guns and a belief she has no right to leave.
With rare exceptions, evaluators and other court professionals do not have this fundamental information and do not apply it to the cases they are working on. When we review cases in which courts disbelieved the mothers’ allegations of domestic violence and gave custody to alleged abusers, the evaluators never discussed safety and lethality issues. It is possible, although rare, that a mother could make false claims that some of these safety factors apply to the case. In such cases the evaluator could explain the potential risk if the allegations were true and why the evaluator does not believe the accusation. Instead the evaluator and the court never discuss these vital issues because no one making the decision or helping the court make the decision have the knowledge or training to recognize these safety factors. In other words the unqualified professionals routinely make recommendations affecting the safety of children without ever understanding or considering the risk. Malpractice is the most, generous term I can think of to describe this dereliction of duty. Only a broken system can continue to rely on evaluators and other court professionals in domestic violence cases who have virtually no training or understanding of safety and lethality issues just because there is a long history of making this mistake.
Recognizing Domestic Violence
Domestic violence abusers present many unacceptable risks to children, but the courts cannot protect children if they are unable to recognize the abuser’s pattern of domestic violence tactics. Every year 58,000 children are forced into custody or unprotected visitation with dangerous abusers. Judges make these dangerous mistakes because they are relying on court professionals who do not know how to recognize domestic violence or minimize its significance. They often compound the harm to children by denying them normal access to their mothers by punishing mothers for making abuse allegations the courts assume are false because court professionals failed to understand the significance of the available evidence.
When we seek help with a medical problem, doctors often seek to rule out various possible causes in order to make a diagnosis. Domestic violence experts understand that context is important in recognizing domestic violence, but the psychologists and psychiatrists relied on by the courts are not experts in domestic violence and routinely seek to rule out allegations of domestic violence based upon out of context information that often is not probative.
We have often seen inadequately trained court professionals dismiss valid domestic violence allegations because the mother returned to her abuser, sought a protective order, but failed to follow-through, did not have medical or police records. All of these are common behaviors of battered women for safety and other valid reasons. Another common mistake is for court professionals to observe children interact with their father and when the children do not show fear the professional assumes the father cannot possibly be abusive. The children understand that the father would never hurt them in front of witnesses, particularly someone he is trying to impress. In fact they could be punished later if they showed fear. These are all very common situations so if evaluators or other unqualified court professionals discredit allegations based on non-probative information like this, many valid domestic violence complaints will be denied. This is exactly what is happening in our custody courts.
At the same time court professionals are mistakenly discrediting abuse allegations for the wrong reasons, they are missing important evidence that supports the complaints. Often this is because the professionals are only looking for evidence of physical abuse. When judges lament the difficulty of deciding a he-said-she-said case, they are really referencing their failure to recognize the significance of many pieces of evidence that would have made the case easy to understand. The failure of most court professionals to understand domestic violence dynamics is an important contributor to their inability to recognize valid allegations of abuse.
Domestic violence are tactics men use to maintain power and control over their partners. With a few exceptions, the abusers don’t abuse her in order to gain pleasure from her suffering. They also don’t abuse because they are out of control or she “pushed his buttons.” In many custody cases he “only” hit her once or twice because that was sufficient for his purpose. He can then use the same tone of voice, body language or other reference to his assault and she will be coerced to do what he wants. Unqualified professionals often take the fact he has not hit her in a long time to mean he is now safe. Most abuser tactics are neither physical nor illegal. They are behaviors designed to coerce, intimidate and control their victims. These include tactics to isolate her from friends and family, monitor her behavior, control the finances, and intimidate her such as by threats to go after custody if she leaves him. Emotional and psychological abuse are also part of his pattern of controlling behaviors.
Many court professionals have been misled to believe contested custody cases are “high conflict” cases. They understand this to mean the parties are angry with each other and act out in ways that hurt the children. The actual research demonstrates a large majority of contested cases are actually domestic violence cases. They can’t be settled because the father is willing to hurt the children in order to regain control. Mothers are unwilling to agree to arrangements that harm their children, but are often blamed for not cooperating. We repeatedly see fathers who had little involvement with the children during the relationship suddenly seeking custody when she leaves him as a tactic to force her to return or punish her for leaving. The most dangerous abusers are the ones who believe she has no right to leave. This is why 75% of men who kill their partners do so after she has left. These are the fathers we see in contested custody cases. This is why over the last few years we have documented at least two hundred children murdered by fathers involved in contested custody cases often with the unwitting assistance of the courts.
Too often court professionals are so delighted that a father wants to be involved with his children that the court professionals never look at his motivation. In the notorious Shockome case, the father openly admitted telling his wife that he brought her here from Russia so she has no right to leave. He said she would never get away from him. He told the court his motivation for seeking to take the children from their mother, but the judge and evaluator never considered this crucial evidence because they failed to understand its significance. Repeatedly we see cases in which the court removes children from their safe mothers who have been the children’s primary attachment figures and give custody to the fathers in the belief the father would be more likely to promote the mother’s relationship with the children. As soon as the father gains control he destroys that relationship. These mistakes are completely avoidable if court professionals consider the fathers’ motivation.
The Mistake of Minimizing Domestic Violence
While evaluators and other court professionals are generally aware that domestic violence is harmful to children, many place less importance on this issue than it deserves because they are unfamiliar with the research that demonstrates the extent of the harm to children. The problem is compounded because most of these professionals have repeatedly heard only the first half of an important sentence. They have heard children do better with both parents in their lives, but missed the rest of the sentence which is unless one of the parents is abusive.
Fathers who commit domestic violence are significantly more likely to also directly abuse the children. Even if he doesn’t, witnessing domestic violence interferes with children’s ability to reach their developmental milestones and makes them more likely to engage in a wide range of harmful behaviors that make it less likely for children to reach their potential. We often see court professionals pay more attention to the anger and emotion of the mother, “friendly parent” issues, superior income and resources and other similar issues that have not been shown to have long-term effects on children instead of the father’s history of abuse. This mistake is made because of the lack of domestic violence understanding on the part of many of the evaluators and other court professionals relied on by judges.
The Most Common “Mythtake” Custody Courts Make
The new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that evaluators and other court professionals with inadequate domestic violence training were more likely to believe the myth that mothers frequently make false allegations of abuse and as a result make recommendations that work poorly for children. Deliberate false allegations by mothers occurs only one or two percent of the time, but the myth which is encouraged by abuser rights groups and the professionals they support contribute to frequent mistakes by custody courts that dismiss valid complaints about domestic violence and child abuse. Many of the deeply flawed practices such as parental alienation, “friendly parent” and pathologizing mothers are based on this myth. The myth also encourages gender bias and confirmation bias. This is why experts who know the truth and have the training they need are able to make decisions that work best for children.
The Justice Department study also determined that recommendations by social workers and lawyers work better for children than ones by psychologists and psychiatrists. This conclusion goes against conventional wisdom and standard custody court assumptions that professionals with more formal education would be more qualified. The problem is that psychologists and psychiatrists were less likely to use a holistic approach (thus missing the context of domestic violence issues) and more often rely on psychological tests that were not made for the population usually seen in custody cases. These tests encourage the professionals to focus on issues far less important than domestic violence while contributing nothing towards recognizing domestic violence.
The study also found that evaluators tended to pay much too much attention to mothers’ anger and emotions in comparison to how this impacts their parenting ability. This tended to support the use of gender stereotypes and biases. Numerous court sponsored gender bias committees have found widespread gender bias including the frequent practice of blaming mothers for the actions of their abusers. This is exactly what happens when court professionals blame mothers for their anger and emotion instead of fathers for their continuing abuse that causes this anger and emotion.
Especially significant is the DOJ finding that evaluators working for the court or the county make recommendations that work better for children than those of evaluators in private practice. Protective mothers have long complained about a cottage industry of evaluators and GALs that favor abusive fathers. This research confirms the mothers’ complaints and undermines the common court assumption that evaluators and GALs are neutral. The study demonstrates those professionals paid for each case separately do an inferior job. Most contested custody cases are really domestic violence cases and abusive fathers use economic abuse and control as part of their pattern of abuse. This means they control the family finances so court professionals, like Richard Gardner have figured out the best way to make a large income is to support approaches that favor abusers. Thus we often see attorneys representing abusive fathers and GALs who tend to support fathers recommending “fathers’ rights” evaluators. This gives even good judges little chance to recognize the domestic violence in the case.
Ignorance Is Not Neutral: It Favors Abusers
We sometimes hear about a judge refusing to participate in domestic violence training or read current research on the grounds that such information would interfere with his neutrality. More frequently judges refuse to listen to testimony from a domestic violence expert because the judge has been on the bench for many years and so doesn’t need to learn more about domestic violence. Even more commonly we see judges and other court professionals treat domestic violence advocates as biased partisans because “they are always against domestic violence.”
This lack of critical thinking contributes to the widespread mishandling of domestic violence custody cases. Abuser rights groups often argue that when they come to court mothers and fathers should be treated the same. Judges often accept and support such statements because they superficially sound reasonable and never consider the unstated part of the statement “regardless of past parenting.” If courts are working for the best interests of the children, they need to consider that children usually need one parent more than the other. Their primary attachment figure, whether mother or father is far more important to their well- being than the other parent. A non-abusive parent is far more valuable to a child than an abusive one. And yet we often hear judges uncritically repeating the belief that the child needs both parents equally.
Many judges wrongly assume that the mental health professionals working in custody cases have the needed domestic violence expertise or that the couple of hours of required training often obtained by court professionals is sufficient. Many professionals and others do not look at domestic violence as a subject for which specialized training and knowledge is needed. Most people have had some experience with domestic violence as a victim, offender or knowing or working with someone who is. This does not tell them if their experience was typical or unusual and fails to provide context or an understanding of domestic violence dynamics or current scientific research.
The custody court system has been extremely defensive in refusing to adopt needed reforms in the face of multiple confirmations from many varied sources that the present practices are working poorly for the children overseen by custody courts. The Department of Justice study demonstrates the courts frequently use experts without adequate training in domestic violence and this results in the use of myths instead of current scientific research and outcomes that hurt children. In comparision, communities in which child protective agencies consult with domestic violence advocates the resulting arrangements benefit children.
The evaluators who testify in court cannot tell us how their practices and approaches to domestic violence have worked out for the children they have seen because they are making recommendations based on their personal beliefs and biases instead of current scientific research that they are often unfamiliar with. When the evaluators are challenged for their ignorance about this research, courts rarely use this to disqualify or discredit their recommendations.
The research that establishes that 98% of mothers’ domestic violence allegations are honest, but 70-83% of the time the alleged abuser wins custody does not tell us a specific case was wrongly decided, but does demonstrate a large majority of these cases are wrongly decided. Even worse are the sexual abuse cases in which 85% of the cases result in custody for the alleged offender. These cases are more difficult because the mothers usually did not witness the alleged sexual abuse. Some of the concerns could be caused by a child’s sexualized behavior or complaints that might be caused by boundary violations rather than molestation. Nevertheless, the outcomes establish that the courts often send children to live with sexual abusers and punish mothers for good faith reports. In many of these cases the mother was the primary attachment figure so should have received custody even if no sexual abuse occurred.
In many cases in which the custody court decided the father was safe he is later convicted of domestic violence, sexual abuse or kills the mother and/or children. We also see alleged abusers destroy the relationships between mothers and children once they gain control of the children which confirms their purpose in seeking custody was to punish the mother for leaving. The reports of the Courageous Kids who were children sent by custody courts to live with alleged abusers and now describing their experiences after aging out of the court order further confirms the frequency of courts giving custody to abusers.
A chapter written by sociologists Sharon Araji and Rebecca Bosek in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY provides multiple additional confirmations of the frequent mistakes in domestic violence custody cases. They interviewed protective mothers in Alaska and then compared the responses to similar studies in four other states. They found substantial complaints by the mothers of mistreatment by the courts and failure to protect their children. The complaints were supported by the results in the five studies and in a later study by Voices of Women that reviewed reports from mothers in New York City Family Court. These were not random samples and courts might argue the mothers were not objective. Drs. Araji and Bosek covered this potential concern by comparing the mothers’ complaints with other scientific research. The research confirmed what the mothers were saying. This is significant because it confirms the research that demonstrates mothers’ complaints are reliable and confirms the problems cited concerning the courts’ response to domestic violence cases are valid.
Domestic violence advocates constitute the only profession that works full time on domestic violence issues. The widespread mistake by many court professionals to treat them as if they are biased or partisan is based upon a lack of critical thinking. If courts needed to respond to a rash of arson fires, they would seek help from the experts which would be the firefighting community. The firefighters would be treated as the experts they are even if they had no advanced degrees or even a college degree. Through training and experience firefighters know best how to recognize arson, prevent and respond to arson. There are three important differences between arson and domestic violence crimes. One is that arson has always been a crime so there is no history of society tolerating or encouraging arson. If a landlord were particularly cruel or dishonest no one would say the arsonist was justified in burning down his building. The second is that most firefighters are men and in our still sexist society people pay more attention to what men say and treat it as having more value. Finally there are no arsonist’s rights groups that can lobby to minimize or justify their crimes.
There was a time when society had not reached a consensus about domestic violence, but those days are past. Every state has made a variety of domestic violence acts crimes and every state has ordered courts to take domestic violence seriously in custody cases based on research that establishes the harm to children. Domestic violence advocates understand the dynamics of intimate partner abuse and how to recognize the pattern of abuse. This is an area that the court professionals repeatedly miss because they don’t have the training and often don’t even realize they are missing crucial information. Advocates have no desire or reason to want false allegations to succeed and in fact this would make their job more difficult. Their goal is to keep victims safe and prevent domestic violence. This coincides with the laws and policies in every state. Statements and practices that minimize the role of domestic violence advocates or treat them as if they were partisan should be viewed not just as wrong, but a demonstration of gender bias.
Stare decisis is a fundamental legal principle created to prevent the need to relitigate the same issues over and over. We have every reason to respect this principle, but it has been misused in domestic violence cases. The assumption is that once a court makes a decision (after any appeals), we must assume the decision is correct. Unfortunately the assumption that the decisions were correct has discouraged court officials from investigating how their decisions have worked out. Judge Sol Gothard wrote, “If the court system had commissioned research to determine how the present practices are working, the result would be the information contained in Domestic Violence, Abuse and Child Custody. The research findings demonstrate court practices are outdated and their confidence misplaced.” In reality, these decisions are predictions that children would do better living with one parent than the other. It is appropriate for courts to study how these predictions have worked out just as it is proper to reconsider past decisions based on new research and information.
When allegations or evidence of domestic violence are part of a custody case, a court must consider current scientific research about domestic violence and learn from the knowledge and experience of domestic violence advocates or other experts. Hopefully it won’t be long until we are shaking our heads and wondering how it could have taken so long to appreciate what should be obvious. A custody court that refuses to listen to a domestic violence expert is demonstrating its bias and committing malpractice. The failure to consider domestic violence research and expertise should be grounds for reversal. The flawed and outdated practices that have ruined too many children’s lives have already been tolerated for far too long.
Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com
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Domestic Violence Safe Courts Act
Why Don’t We End Domestic Violence?
Throw the Book at Abusers: Using DOMESTIC VIOLENCE ABUSE …
EXTREME CUSTODY DECISIONS THAT RISK LIVES
Read an Excerpt From Phyllis Chesler’s Book — ‘Mothers On Trial’ By Phyllis Chesler –Battered Mothers Loose Custody To Abusers- FoxNews
“Battered women are losing custody to their batterers in record numbers.”
Editor’s note: Fox News Opinion presents the introduction and an excerpt from the completely revised second edition of Phyllis Chesler’s book "Mothers on Trial":
This is a book that cried out to be written. I first heard that cry in the mid-1970s and, after years of research, published the first edition of “Mothers on Trial: The Battle for Children and Custody” in 1986. At the time, the book created a firestorm and was widely, if controversially, received.
In the last twenty-five years, there have been some improvements, but matters have decidedly worsened. The book you are holding has been revised and updated and brought into the twenty-first century.
Myths about custody still abound. Most people still believe that the courts favor mothers over fathers—who are discriminated against because they are men—and that this is how it’s always been.
This is not true.
For more than five thousand years, men—fathers—were legally *entitled* to sole custody of their children. Women—mothers—were *obliged* to bear, rear, and economically support their children. No mother was ever legally entitled to custody of her own child.
During the nineteenth century, pro-child crusaders gradually convinced the state that young children required maternal “tenderness”—but only if their mothers were white, married, Christian, and moral. The children of American slaves, of Native American Indians, of immigrant, impoverished, sick, or “immoral” parents—all were untenderly appropriated by slave owners and by the state. They were clapped into orphanages, workhouses, and reformatories or farmed out into apprenticeships for “their own good.”
By the turn of the century, a custodially challenged American mother enjoyed an equal right to custody in only nine states and the District of Columbia—and only if a state judge found her morally and economically worthy of motherhood. Until the 1920s, no American mother was entitled to any child support. Since then, few have received any.
The maternal presumption was never interpreted as a maternal right. The maternal presumption has always been viewed as secondary to the child’s “best interests”—as determined by a judge. This “best interest” was always seen as synonymous with “paternal rights.”
The contemporary fathers’ rights (or fathers’ supremacist) movement, which has been wildly successful in instituting joint custody and false concepts such as “parental alienation syndrome,” is also a throwback to the darkest days of patriarchy. It is not the modern, feminist, progressive movement it claims to be. Individual men may indeed be good fathers, and, like good mothers, they too may encounter discrimination and injustice in the court system. What I am talking about here is an organized political, educational, and legal movement against motherhood that has turned the clock back.
This book is about what it means to be a “good enough” mother and about the trials such mothers endure when they are custodially challenged. This book is not about happy marriages or happy divorces—it is about marriages and divorces that erupt into wild and bitter custody battles.
By now, many books have been written about the role of caring and responsible fathers, about male longings for a child, and about a child’s need for fathering. This book clarifies the difference between how a “good enough” mother mothers and a “good enough” father fathers. It clarifies the difference between male custodial rights and female custodial obligations.
Since Mothers on Trial was first published in 1986, thousands of mothers have called or written. “I’m in your book,” they say. “It’s as if you knew my story personally.” “You showed me that it’s not just happening to me, that it’s not my fault.” And, “Can you help me save my children?”
In the first edition of Mothers on Trial, I challenged the myth that fit mothers always win custody—indeed, I found that when fathers fight, they win custody 70 percent of the time, whether or not they have been absent or violent. Since then, other studies, including ten state supreme court reports on gender bias in the courts, have appeared that support most of what I say. (The Massachusetts report actually confirms my statistic of 70 percent.)
Although the majority of custodial parents are usually mothers, this doesn’t mean that mothers have won their children in a battle. Rather, mothers often retain custody when fathers choose not to fight for it. Those fathers who fight tend to win custody, not because mothers are unfit or because fathers have been the primary caretakers of their children but because mothers are women and are held to a much higher standard of parenting.
Many judges also assume that the father who fights for custody is rare and therefore should be rewarded for loving his children, or they assume that something is wrong with the mother. What may be wrong with the mother is that she and her children are being systemically impoverished, psychologically and legally harassed, and physically battered by the very father who is fighting for custody.
Today more and more mothers, as well as the leadership of the shelter movement for battered women, have realized that battered women risk losing custody if they seek child support or attempt to limit visitation. Incredibly, mothers also risk losing custody if they accuse fathers or physically or sexually abusing them or their children—even or especially if these allegations are supported by experts.
An ideal father is expected to legally acknowledge and economically support his children. Fathers who do anything more for their children are often seen as “better” than mothers, who are, after all, supposed to do everything.
The ideal of fatherhood is sacred. As such, it protects each father from the consequences of his actions. The ideal of motherhood is sacred, too. It exposes all mothers as imperfect. No human mother can embody the maternal ideal perfectly enough.
Given so many double standards for fit mothering and fathering and so many anti-mother biases, I wanted to know: Could a “good enough” mother lose custody of a child to a relatively uninvolved or abusive father? How often could this happen?
I first interviewed sixty mothers who had been their children’s primary caregivers, were demographically similar to the majority of divorced white mothers in America, and had been custodially challenged in each geographical region of the United States and Canada.
On the basis of these interviews I was able to study how often “good enough” mothers can lose custody when their ex-husbands challenge them. I was able to study why “good enough” mothers lose custody battles and how having to battle for custody affects them.
On the basis of these interviews and on the basis of additional interviews with fifty-five custodially embattled fathers, I was able to study the kinds of husbands and fathers who battled for custody, their motives for battling, and how and why they won or lost.
I was also able to study the extent to which the custodially triumphant father encouraged or allowed the losing mother access to her children afterward.
To repeat: Seventy percent of my “good enough” mothers lost custody of their children.
Today the same experts who once tyrannized women with their advice about the importance of the mother-child bond appear, in the context of custody battles, ready to ignore it or refer to it, if it all, as of only temporary importance. They view the mother-child bond as expendable if it is less than ideal or another woman is available. Perfectly fit mothers are viewed as interchangeable with a paternal grandmother or a second wife.
In 1975 New York judge Guy Ribaudo awarded sole custody of two children to their father, Dr. Lee Salk. Their mother, Kersten Salk, was not accused of being an “unfit” mother. It was clear that Kersten, not Lee, had reared their children from birth “without aid of a governess” and that Lee would probably require the aid of a “third party” housekeeper-governess were he to gain sole custody. The judge used an “affirmative standard” to decide which parent was “better fit” to guide the “development of the children and their future.” Kersten Salk’s full-time housekeeping and mothering were discounted in favor of Lee Salk’s psychological expertise and “intellectually exciting” lifestyle. Lee was widely quoted as saying the following: “Fathers should have equal rights with mothers in custody cases and more and more fathers are getting custody…The decision in Salk v. Salk will touch every child in America in some way. It will also give more fathers the ‘incentive’ to seek custody of their children”
This case swept through public consciousness; it was an ominous warning, a reminder that children are only on loan to “good enough” mothers. They could be recalled by their more intellectually and economically solvent fathers.
Although mothers still received no wages for their work at home and far less than equal pay for equal work outside the home, and although most fathers had yet to assume an equal share of home and child care, divorced fathers began to campaign for equal rights to sole custody, alimony, and child support and for mandatory joint custody.
Fathers’ rights activists—both men and women—picketed my lectures, threatened lawsuits, and shouted at me on television. “Admit it. Ex-wives destroy men economically. They deprive fathers of visitation and brainwash the children against them.”
Fathers should have rights to alimony and child support. Joint custody should be mandatory. “We’ve already convinced legislators and lawyers, judges and social workers, psychiatrists and journalists to see it our way.”
Indeed, as we shall see, they have.
By 1991, more than forty states had shared-parenting statutes in which joint custody was either an option or preference, and most other states had recognized the concept of joint custody in case law.
The mothers began to find me. Would I testify on their behalf? Marta consulted me as a therapist. She said she was “depressed” and “wanted to kill herself.” Weeping, she told me, “For fifteen years my children were my whole life. I did everything for them myself. Six moths ago a judge gave my husband exclusive custody of our children. How could this nightmare ever happen? At first, I thought they’d come back to me on their own. But they haven’t. Why should they? I have a small one-bedroom apartment. Their father was allowed to keep our five-bedroom house. He gives them complete freedom and the use of their own credit cards. I work as a salesgirl for very little money. Is this a reason to go on living?”
Carol, a complete stranger, asked me for money. “My husband kidnapped our six-year-old son two months ago. It’s what they call ‘legal’ kidnapping. We’re only separated, not divorced. I need money to hire a detective to find them. I need money to hire a lawyer once they’re found. I only have six hundred dollars in the bank. And I’m four months pregnant.”
Rachel, also a stranger, mailed me a description of her custody battle. She entitled it “A Case of Matricide in an American Courtroom.” Rachel had a “nervous breakdown” after she lost her battle for child support, custody, and maternal visitation.
In 1977, when I myself was six months pregnant, I decided to study women and custody of children. The theme had claimed me.
Over the next eight years, I formally interviewed more than three hundred mothers, fathers, children, and custody experts in the United States and Canada and in sixty-five countries around the world. On the basis of these interviews, I conducted three original studies and six original surveys for the 1986 edition of this book. I wanted to understand why we take custodial mothers for granted but heroize custodial fathers, why we sympathize with noncustodial fathers but condemn noncustodial mothers, and why we grant noncustodial fathers the right to feel angry or sad but deny noncustodial mothers similar emotional “rights.” I also wanted to compare what noncustodial mothers and fathers actually do and contrast it with how they perceive themselves and are perceived.
Must custodially embattled mothers be viewed only as victims? Can such mothers also be viewed as philosophical and spiritual warriors and heroes? Gradually I came to view them as such. Under siege, “good enough” mothers remained connected to their children in nuturant and nonviolent ways. They resisted the temptation to use violent means to obtain custody of their children. This is one of the reasons they lost custody. But they never disconnected—not even from children whom they never saw again.
The 2011 Update
What’s changed since I first started researching and writing about custody battles?
Documented domestic violence does get factored in somewhat more than before. Where real assets exist, judges have the power to award more of them to mothers and children. Fewer mothers and fathers automatically lose custody or visitation because they are gay or because they have high-powered careers. However, certain injustices (crimes, really) that I first began tracking in the late 1970s have now gotten much worse. For example, battered women are losing custody to their batterers in record numbers.
Children are being successfully brainwashed by fathers, but many mothers are being falsely accused of brainwashing. Worse: Children who mandated reporters—physicians, nurses, or teachers—report as having been sexually abused by their fathers are usually given to those very fathers. The mothers of these children are almost always viewed as having “coached” or “alienated” the children and, on this basis alone, are seen as “unfit” mothers.
I understand that this sounds unbelievable. But it is still true. The mothers of raped children, who are also described as “protective” mothers, are seen as guilty of “parental alienation syndrome.” The fact that this concept, first pioneered by Dr. Richard Gardner and widely endorsed by fathers’ rights groups, has been dismissed as junk science does not seem to matter. Most guardians ad litem, parenting counselors, mediators, lawyers, mental health professionals, and judges still act as if this syndrome were real and mainly find mothers, not fathers, guilty in this regard. In 2010 the American Psychiatric Association was still fighting to include a new disorder in the Diagnostic and Statistical Manual of Mental Disorders: the parental alienation disorder, to replace the debunked parental alienation syndrome.
In 2009 and 2010 more than fifty mothers from twenty-one U.S. states and a number of foreign countries all shared their stories with me. Their cases took place between the late 1980s and 2010. Some cases are still ongoing.
In some instances, I spoke with the mothers in person or at length on the phone. Some mothers filled out questionnaires, but many also sent additional narratives and documentation. Some mothers sent me eloquent, beautifully written, full-length memoirs. Some write pithy but equally heartbreaking accounts of their marriages and custody battles.
Custody battles can take a very long time. They range from only several years to more than fifteen or twenty. They may have profound legal, economic, social, psychological, and even medical consequences for years afterward, perhaps forever.
Going through a custody battle is like going through a war. One does not emerge unscathed. Yes, one may learn important lessons, but one may also be left broken and incapable of trusting others, including our so-called justice system, ever again.
With a few exceptions, most of my 2010 mother-interviewees said that the system was “corrupt” and that lawyers and judges don’t care about “justice,” are “very biased,” or can be “bought and sold.” These mothers said that social workers, mental health professionals, guardians ad litem, and parent coordinators—especially if they were women—actively “disliked” and were” cruel and hostile” to them as women. (Perhaps they expected women to be more compassionate toward other women. In this, they were sadly mistaken.)
Also, many mothers found that female professionals were often completely taken in by charming, sociopathic men (“parasites,” “smother-fathers”), dangerously violent men, and men who sexually abused their children.
Perhaps the mothers who sent me their stories were married to uniquely terrible men who used the court system to make their lives a living hell; perhaps mothers who did not write to me had the good fortune to have been married to and divorced from far nicer men.
Good fathers definitely exist. Some fathers move heaven and earth to rescue their children from a genuinely mentally ill mother but do not try to alienate the children from her. If the mother has been the primary caretaker, some fathers give up custody, pay a decent amount of child support (and continue to do so), and work out a relationship with their children based on what’s good for both the children and their mother. These men exist. They do not launch custody battles from hell.
And good fathers are also discriminated against in a variety of ways in the courtroom. For example, mothers who are independently wealthy or who come from powerful families can and do custodially persecute good-enough fathers. That is the subject of another book. And, when fathers do assume primary-caretaker obligations, traditional judges may view them unfairly as “sissies” or “losers.” Liberal judges will award them custody in a heartbeat.
For this 2011 edition, I also reviewed hundreds of legal decision, which I obtained through LexisNexis and which all commenced and/or were resolved in the last quarter century. I interviewed lawyers and judges. I clipped articles about custody battles that appeared in the media from 1990 to 2010. Some were celebrity cases; others concerned high profile international kidnapping cases; some were about one spouse’s murder of the other during the course of a custody battle.
When I was researching the 1986 edition of Mothers on Trial, joint custody was a totally new idea. Now, as I’ve previously noted, “shared parenting” or joint custody (defined in a variety of ways) is the preferred norm. Joint custody is seen as fair, progressive, feminist, and in the child’s best interest—even though a number of recent studies have shown that under certain conditions joint custody may be harmful to the children involved. Other studies conclude that we cannot prove that a particular custodial arrangement is either helpful or harmful to children.
For example, according to a 1989 study, “a link was consistently found between frequency of visitation/transitions between parents and [child] maladjustment.” The study also found that “children shuffled more frequently between parents were more exposed to and involved in parental conflict and aggression and were more often perceived by both parents as being depressed, withdrawn, uncommunicative, and/or aggressive.”
A 2003 study found that “alternating custody”—for example, week on, week off—“was associated with ‘disorganized attachment’ in 60 percent of infants under 18 months. Older children and adults who had endured this arrangement as youngsters exhibited what the researcher described as ‘alarming levels of emotional insecurity and poor ability to regulate strong emotion.’”
Nevertheless, from the 1980s on, the entire national court system and its various helpers believed that joint custody was the preferred way to go.
As we shall see, joint custody research in the twenty-first century is a minefield of dangerous biases, conflicting conclusions, and outright lies.
The View from the Bench
While lawyers and judges are quick to say that joint custody should not apply where there is domestic violence and incest, they are often the ones who do not believe that domestic violence and incest exist all that much. And, although lawyers and judges also say that joint custody may not work in “high-conflict divorces,” that does not mean that they still don’t encourage or even order it.
From their point of view, if everyone walks away with something, there is less likelihood that their decision will be appealed or that the case will continue to stall. One judge said, “Maybe this will actually force these warring parties to grow up and learn to compromise for the sake of their children.”
Thus, the role of “parenting coordinator” and guardians ad litem has increased considerably. Many mothers view them as impoverishing agents because they are ordered to pay for their services.
Talk to some good judges—those who are hardworking, experienced, and not corrupt—and you will find that their concerns are far different from those who consume the mothers who appear before them. Judicial concerns are not those of the plaintiffs or defendants. What you will hear is about how important it is to move the cases along, how huge the backlog always is, and how impossible it is to spend too much time on any one case. Judges are annoyed, even contemptuous, when rich people can afford to pay for a long, drawn-out trial. They understand that the working poor have no such luxury, and, at both conscious and unconscious levels, the judges may resent this disparity and despair over the arrogance of the rich. One judge said, “Rich people fight over everything. Even if they don’t need it, they will prolong the case in order to ‘win.’ It can be a second boat, a third home, a million dollar piece of art over another. They are spoiled children and I only pity their real children.”
Talk to judges and listen to them speak, and you will realize that judges do not feel responsible for the perpetual logjams that frustrate, enrage, and impoverish mothers. In fact, judges feel that they too are victims of a system that does not pay them that well. They feel it does not allot resources for the necessary number of judges. The system is beyond bursting at the seams. In addition, the matrimonial bench is utterly devalued because it concerns “families,” “mothers,” and “children,” all of whom are not high on the priority totem pole.
Most judges are overworked and underpaid compared to what the lawyers who appear before them are paid. Judges are not given the proper time to really hear a case. They are forced into forcing plaintiffs and defendants to accept limited, far-from-perfect settlements, because that will close the case and get it off the judge’s roster. They opt for hard-and-fast compromises in the interest in moving a case along.
From the point of view of a “protective” mother whose child is being molested, there can be no compromise. Allowing a pedophile father or a domestically violent husband to have access to his former spouse or child endangers both mother and child. Such mothers protest. They will not play ball. Their relationship to their children is not a corporate-like entity. It is “all or nothing” as far as they are concerned. They resist for as long as their money holds out—and then they go pro se
Their resistance to compromise is viewed as proof of “narcissism” or “mental instability.” The mother who insists on not compromising is also viewed as annoying, difficult, impossible, unrealistic, and perhaps even dangerous to the smooth functioning of an already overburdened system.
Unless she has unlimited funds, it will cost her lawyer hundreds of thousands—maybe even millions—of dollars to fight for an uncompromised settlement. Some mothers fully expect their lawyers to do so, and when lawyers cannot, or refuse to do so, a mother will often turn on them and sue them for malpractice. “Protective” mothers view a lawyer who needs to make a living as a traitor and a sellout.
Mothers do not understand how to divide a baby in half or share parenting with an absent, neglectful, or abusive father. Judges do not see it as dividing the baby in half at all. One judge pointed on, very reasonably, that in order to keep the nonprimary caretaker involved in a nonembittered way, the judge must give him or her some things to do.
“But what if this father has never taken any responsibility and does not know what he is doing?” I asked.
“All the more reason to bring him in. It can’t be good for a child to have no contact with the nonprimary-caretaker parent.”
Please note the careful, automatically gender-neutral language that one might initially view as a feminist step forward. And it is—except that such language usually “disappears” the much harder work that mothers (primarily caretakers) have undertaken, the higher standards to which they are held, and the nonprimary caretaker’s failure to take primary-caretaking responsibility during the marriage, not just after the divorce.
The judge continued, “Why punish a child because their nonprimary-caretaker parent did not function as a caretaker in the past?
As the child grows, nonprimary-caretaker parents can offer the child different opportunities.”
The judge was right, and yet she was absolutely committed to the following myths: (1) sane, good parents are ultimately going to do whatever’s in their child’s best interests; (2) all divorcing and custody-battling parents are equally crazy and have to be forced into better behavior; (3) mothers routinely allege battering falsely; (4) mothers are crazier and more difficult to deal with than fathers; and (5) mothers, not fathers, tend to “alienate” the child from the other parent.
These are all myths.
Myth 1: Are divorcing parents really “reasonable grown-ups”? Many parents are far from ideal, even far from adequate. What is known as a “high-conflict” divorce does not involve parents who have their child’s best interests at heart. They are often more concerned with their own interests.
Myth 2: Sometimes a father is a charming sociopath. Just as we have no way of distinguishing rapists from non-rapists, we have no easy way to “spot” a pedophile, a parasite, or a wife beater. Sometimes a mother is genuinely sadistic, abusive, or bipolar. This is more quickly spotted, diagnosed, or even assumed by laypeople in the court system. Thus, if a mother has been losing sleep over the possibility of losing her children and/or is exhibiting the normal human response to being battered or terrorized at home, she may also be stigmatized by the belief that women are naturally “crazy” and “impossible.”
Myth 3: Most mothers do not allege battering falsely. Some, a minority, do.
Myth 4: Mothers are not necessarily “crazier” than fathers; some are. However, facing the end of a marriage, the probable poverty it may entail, plus a possible custody loss, is a far greater stressor for mothers than for fathers. It does make them highly nervous, vigilant, overly demanding, unrealistic, and prone to engaging in self-sabotaging tactics. Men tend to recouple more quickly; women don’t.
Many fathers, on the other hand, are more capable of treating a custody battle as just one more businesslike venture. This style is more compatible with what lawyers and judges need. Thus, even if the father is a secret drunk or drug addict, an embezzler, an active philanderer, and a whoremonger and/or treats his wife and children coldly, sadistically, and abusively, these facts will not necessarily come into play in a custody battle.
Myth 5: According to most research and statistical data and my own interviews, it is mainly fathers who brainwash and kidnap children, not mothers. Fathers falsely claim “parental alienation” when it is not true; yet they are believed. Mothers claim brainwashing when it is true, but they are not often believed.
I do not view matrimonial lawyers as the main or sole problem. True—some lawyers are grossly incompetent and fail their female clients in every way: by misadvising them, sleeping with them, and prolonging their cases unnecessarily for monetary reasons. But it is also true that many lawyers serve their female (and male) clients effectively, even nobly.
Lawyers do not cause men to impoverish, batter, or abuse their wives and children; lawyers themselves are often hobbled by a system of laws and by a courtroom pace that is glacial. One cannot blame lawyers because it is enormously expensive to wage a high-conflict divorce. Some women expect their lawyers to actually pay for their divorces and feel betrayed when lawyers will not or cannot do so. With some exceptions, our government will not and cannot subsidize the cost of high-conflict divorces for the parent, usually the mother, who is without resources in a country where money does buy one’s chance to obtain justice, however imperfect.
Custody cases are also very stressful and difficult for the judges involved, many of whom try very hard to do the right thing. The law is not able to cure sociopaths or psychopaths; sometimes compromising with the devil is, unbelievably, the only possible solution. A judge might only be able to “save” one child—not all three. A judge might be able to save a child from the probable horrors of state care by allowing custody to remain with one far-from-perfect parent.
Having said this, I would like to stress that both judges and lawyers, as well as the entire courtroom cast of characters (guardians ad litem, parenting coordinators, mental health experts, social workers, state agency employees, and the police) have acted in tragically anti-mother and anti-child ways. While feminist progress led to more women on the bench and to more female attorneys, many female professionals have shown very hard hearts toward the mothers whose fates are in their hands. So have their male counterparts.
For this 2011 edition of Mothers on Trial, I have given honorable discharges to six previous chapters, although I’ve preserved some of the material throughout the book. I’ve also added eight new chapters in addition to this introduction. The new chapters include “Court-Enabled Incest in the 1980s and 1990s,” “Court-Enabled Incest in the Twenty-First Century,” “Legal Torture from 1986 to 2010,” “Contemporary Legal Trends, Part I,” “Contemporary Legal Trends, Part II,” “What to Expect When You’re Expecting a Divorce: A Private Consultation with Divorce Lawyer Susan L. Bender,” and a section of resources.
Immediately after first publishing this book, I coordinated a Senate briefing in Washington, D.C., that was attended by some hand-selected custodially embattled mothers, as well as then Congress, now Senate members Barbara Boxer and Chuck Schumer. Together with the National Organization for Women of New York State, I also coordinated a national speak-out about women’s losing custody of children, which took place in New York City in the spring of 1986. Hundreds of mothers traveled from around the country to “speak out,” and many legislators, judges, and lawyers also participated in panels. I videotaped this event but, as yet, have not made these precious videos available to the public. I also appeared on network television programs together with “my mothers,” where we all said amazing things and were fairly well received. Women began organizing similar speak-outs elsewhere; I spoke at several in the United States and Canada the following year.
In 1984 a new nonprofit organization, ACES (the Association for Children for Enforcement of Support), was launched. It now has forty thousand members and one hundred sixty-five chapters in forty-five states.
In 1988 Monica Getz founded the New York-based National Coalition for Family Justice, which offers ongoing support groups for divorcing and custodially embattled mothers. Their mission statement reads in part as follows: “To identify problems and advocate for system changes in the divorce and family court systems in order to make them fair, user friendly, accountable, and affordable; to provide victims and children involved in domestic violence situations with crisis intervention, information, support, legal access, and advocacy.” They do not provide pro bono lawyers. But, in conjunction with the National Organization for Women in New York State, they have hosted important hearings and conferences.
In the mid- to late 1980s, “protective” and custodially embattled mothers also began running away from husbands who were sexually assaulting their child or children. Such mothers were almost all captured and jailed and lost custody of the children they were trying to protect.
By the early twenty-first century, custodially embattled mothers, including battered and “protective” mothers, had begun to form organizations that now meet annually and monthly. In 2003 Dr. Mo Therese Hannah began a new organization, an in 2010 Dr. Hannah coordinated and hosted the seventh national Battered Mothers Custody Conference. More than five hundred women travel from around the country each year to attend it. In 2010 they began a quilt project, Children Taken by the Family Courts, which is modeled after the AIDS quilt. They have asked mothers who have legally lost their children to provide a commemoration panel. Dr. Hannah has also published a book, Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues.
In addition, many mothers throughout the Western world have created listserv groups and websites in which they tell (and keep updating) their own outrageous and heartbreaking stories in the hope that this information might help other women. Some ex-wives have become divorce coaches. Some mothers (including those whose interviews are contained in this book) became matrimonial lawyers and mental health professionals dedicated to helping mothers and children. Some researchers have tried to document ongoing injustices in family court.
Yes, custodially battered mothers whose children are being sexually abused have organized more visibly than mothers who have “merely” been impoverished and legally tormented and who must also share custody of their children with men who hate them as ex-wives and do not respect them as mothers.
On Mother’s Day 2010, a peaceful, silent vigil was held at the White House. In the somber spirit of the U.S. suffragettes, American mothers—along with the Argentine Mothers of the Disappeared, Turkey’s Saturday Mothers, the German Rose Street Women, and the Liberian women who stopped a civil war—gathered at the White House to “ask our President to meet with us and to help stop the systemic removal and oppression of our children by family court.”
What Mothers Have to Say
What to Do When a Custody Battle Invades Your Life
“First, take a deep breath and calm down. Save your strength for the long haul. Find out what all your options are. Find a therapist for some immediate support.”
“Any mother involved in a custody struggle is the one who’s on trial. You’ll need people to hold your hand, to hold you, to take care of your kids, to cook a meal, to say ‘I care.’ You’ll need people to keep telling you that you’re sane and that you have rights. Find those people now.”
“Never leave home without taking your kids with you—not if you’re fighting over custody. Don’t leave your kids behind to take a weekend vacation. If you’ve just been beaten up and you’re on your way to the hospital, you’d better take your kids along.”
“You’ll need to be on permanent good behavior in order to fight this fight. Your husband or someone will always be breathing down your neck spying on you and trying to make your life miserable.”
“I allowed things to get very bad before I started fighting back. I would never have waited so long if I knew what I know now: that for me not fighting was worse than fighting.”
“If you open up a power struggle with your husband, be prepared to learn how to win. Don’t go on believing that your husband won’t lie and manipulate to cheat you. He will. If he doesn’t, his lawyer will. In order to win on their turf you’ve got to be as rotten as they are. Being fair means you’re going to lose.”
“Keep a record of how often your ex-husband visits and whether he’s on time or late. Tape-record your phone conversations with him so you’ll remember everything. Record any threats he makes to you. Record what he does with the kids. Do they come back unfed, unwashed, late? Are they suddenly critical or distant from you? That could be a sign of brainwashing.”
“Organize your family photos into a ‘Mom and Kids’ showpiece album. Reconstruct a diary of what you did with and for your kids from your old calendars or appointment books. You’ll have to prove that you’re a good mother.”
“No matter what happens, no matter what they say, never let any social worker or lawyer or policeman make you doubt yourself or your self-worth.”
“Believe that you’re stronger than you think you are. Become very assertive about getting what you need from others, but depend only on yourself. You have the most to lose and the most to gain.”
“Once you’re married and a mother, it’s too late to think about how to win a custody battle. The time to think about whether and how you should become a mother is long before you’re pregnant and definitely before you marry.”
“Read the marriage contract. Talk to previously married or still married mothers who are living in poverty or who have lost custody of their children. Maybe it’s more realistic not to have children at all—or to have them through woman-controlled anonymous artificial insemination. But the state can still take your child away if you forge a check, work as a prostitute, use dope, sell dope, kill your violent husband in self-defense, or refuse to do whatever your state welfare worker wants you to do—if you’re economically depended on the state. If your own mother doesn’t like how you’re raising your child, she can call in the state against you. This happened to me. I won. But I never sleep easy.”
“Consider adopting a child as a single mother. I know a number of women lawyers who have chosen this route. And don’t marry or partner up. Not with a man, not with a woman.”
On Hiring a Lawyer
“Get a copy of your legal bill of rights. Refer to it when you’re talking to your lawyer. Interview more than one lawyer. Be prepared to leave a lawyer who doesn’t treat you well and to sue him or her for legal malpractice.”
“Once you’re involved in the court system, you must ask your lawyer’s advice about everything. You can’t start a new job or love affair without first weighing the legal consequences involved. You must assume that everything you do can and will be used against you.”
“Your lawyer isn’t God. He or she is your employee. Don’t let your lawyer pressure you into anything ‘temporarily’ that you wouldn’t want permanently.”
“Talk to other women who’ve been through custody battles. Find a lawyer who’s experience in custody battles, not just in matters of divorce.”
“Don’t let your lawyer convince you that joint custody is the ‘answer.’ It isn’t. My ex-husband wanted to be the one who’d live with our kids in the house or, failing that, he wanted the judge to order that the house be sold. Then, once the cash from the sale of the house ran out, and I really had to struggle economically, that’s when my ex stopped paying child support. He told the kids that ‘he didn’t have to pay because they lived with him half the time.’ The kids had a much higher standard of living with him than with me. Gradually, they began to live with him full time. Then he moved two thousand miles away to take a very well-paying job. I still have joint custody. I just can’t afford to take my ex back to court or to travel four thousand miles a week in order to exercise my joint custody decree.”
“It’s important to find a good woman lawyer. Treat her with more respect than women usually treat each other. Don’t expect her to be your friend. Expect her to treat you with respect and to use the law vigorously and creatively on your behalf.”
What to Tell Your Children
“In a custody battle, children challenge maternal authority right away. Don’t let them do this. Remind them that you’re still their mother, even if you’re fighting with their father.”
“If one parent is blatantly destructive to the children, it’s the job of the other parent to say so, loud and clear. I don’t believe that cover-ups are good for children.”
“If the state takes you away from your kids, tell them that you love them and always will. Tell them that you’ll always be their mother. Tell them you’ll be out looking for them as soon as you can. Tell them whatever happens, it’s not their fault.”
“I kept quiet for too long. I didn’t believe it was right to involve kids in private adult matters. But my kids needed to hear my point of view too. They needed to know that I loved them too and would fight for them. They also needed to know that I would keep loving them no matter what happened.”
“My children really want to leave me. I fought this for a long time. I should have let them go. They already had my love. They couldn’t have their father’s love if they lived with me.”
What Is a “Fit” Mother or Father? An “Unfit” Mother or Father? Who Decides?
What are our standards for parental fitness? Who determines such standards? Are they the same for both mothers and fathers and for all classes and races? Judith Arcana, in Every Mother’s Son, describes the “idealized mother [as] a woman who is boundlessly giving and endlessly available. She is truly present to her son. The idealized father is practically invisible; he is almost never available, rarely giving; his sparse favor and scarce presence to his son become miraculous and precious when they do appear. He is like the unknowable Judaeo-Christian father-god, who is the epitome of this idea.”
Mothers are expected to perform a series of visible and invisible tasks, all of which are never ending. Mothers are not allowed to fail any of these obligations. The ideal of motherhood is sacred; it exposes all mothers as imperfect.
Fathers are expected to perform a limited number of tasks. They are also allowed to fail some or all of these obligations. In addition, fathers who do anything for children are often experienced and perceived as “better” than mothers, who are supposed to do everything. The ideal of fatherhood is also sacred; it protects each father from the consequences of his actions.
Father-starved and father-wounded sons (and daughters) rarely remember, confront, or publicly expose their absent or abusive fathers. Arcana also notes that we mothers watch our young boys go from expecting to be cherished and nurtured by their fathers to the sullen and bitter understanding that dad will not come across. And then, so powerful is society’s sanction of that “ideal” paternal behavior, we see our sons come to an acceptance so complete that they will defend their fathers even against the criticism and anger they’ve expressed themselves. And all along, the boy will not—or cannot—confront his father. Young sons will not push their fathers the way they’ll push their mothers—they learn early that dad’s affection, such as it is, is tenuous and conditional. Most boys understand all this before they are 12 or 13 years old.
When a father fails his paternal obligations, we don’t necessarily view him as an example of all fathers, nor do we automatically hold other fathers “accountable” for one father’s failure. We may be horrified when a father abuses or kills his child, but we first view him as the exception among fathers.
Or we make excuses for him. He didn’t mean to hit, molest, rape, hurt, maim, or kill his child. He is a man. Men are violent and don’t know their own strength.
Or we blame his wife. Perhaps she “drove” him to it. How could any mother leave her child alone with such a man? Where was she when her child was being hit, molested, raped, hurt, maimed, or killed?
When a mother does irresponsibly abandon or savagely abuse her child, we are truly stunned and terrified. How could a mother of the human race “act like a man”? How could both biology and culture fail to ensure maternal pacifism under stress?
When one mother neglects or abuses her child, we tend to hold all mothers accountable for her failure. One mother’s “crime” forces all mothers to prove—to themselves and to everyone else—how unlike Medea they are and how like the Virgin Mary they are.
After reading several news accounts of maternal suicide and infanticide, I read about a mother who failed in her double suicide attempt. She succeeded in killing her child but failed to kill herself. Plunging headlong out the window, she “merely” broke every major bone in her body instead.
I wanted to visit her in her hospital bed. After many phone calls, I was made to understand that her own mother refused to see her and that her husband had vowed never to speak to her again. Women who knew her and her husband tried to dissuade me from seeing her. Women said, “Don’t make a heroine out of her. She’s a real sickie. You wouldn’t have liked her. None of us did. She’s broken her husband’s heart. He’s a wonderful man.” Others said, “Her husband was about to leave her. She knew that her son would follow his father, sooner rather than later. The bitch just couldn’t let go. Why didn’t she die instead of her son?”
Voices without mercy; voices determined that no one comfort her on her cross. This mother was viewed not as human, or even as psychiatrically ill, but as an evil monster, a “loathsome thing,” a “Medea.”
I am always amazed that Medea’s knife, unseen onstage, looms so much larger in our collective memories than Agamemnon’s knife, with which he kills his daughter, Iphigenia, or Laius’s mountaintop exposure of his new-born son, Oedipus. The infanticidal fathers apparently leave no bloody footprint, no haunting shadow.
Are contemporary mothers and fathers as abusive to their children as parents presumably once were in the past? Historians have described medieval European and colonial American children as essentially their family’s “servants.” A girl was her mother or stepmother’s domestic servant and her father’s companion and nurse; a boy was his father or stepfather’s agricultural servant. Both boys and girls were often apprenticed out at young ages. Their wages belonged to their fathers.
According to psychoanalyst Alice Miller, child rearing in the West was a form of “poisonous pedagogy.” Harsh parental punishment was defended for its being “for the child’s own good”:
A sophisticated repertory of arguments was developed to prove the necessity of corporal punishment for the child’s own good. In the eighteenth century, one still spoke of [children] as “faithful subjects” . . . child rearing manuals teach us that: “Adults are the masters (not the servants) of the dependent child; they determine in godlike fashion what is right and what is wrong; the child is held responsible for their anger; the parents must always be shielded; the child’s life-affirming feelings pose a threat to the autocratic adult; the child’s will must be ‘broken’ as soon as possible; all this must happen at a very early age, so the child ‘won’t notice’ and will therefore not be able to expose the adults.”
In Puritan New England, child rearing was synonymous with “breaking” a child’s (sinful) “will”:
Every child was thought to come into the world with inherent tendencies to “stubbornness, and stoutness of mind”: these must be “beaten down” at all costs. One aspect of such tendencies was the willful expression of anger which was, by Puritan reckoning, the most dangerous and damnable of human affects. Children must therefore be trained to compliance, to submission, to “peace.” To effect such training, drastic means were sometimes needed. Puritan parents were not inclined to spare the rod; but more important than physical coercion was the regular resort to shaming.
Mothers worked hard and had little “child-centered” time to spend alone with each child. Although mothers (or women) were exclusively responsible for birthing and rearing children, they were not considered “expert” in this area. “Students of child-rearing literature in England and America tell us that in the 16th and 17th centuries the father was depicted as the important figure in the rearing of children, as well as being the ultimate authority in familial matters. In fact, most of the manuals of these centuries directed advice to fathers.”
In the mid- to late eighteenth century, male experts began to address mothers directly. Formerly viewed as vain and without souls, mothers were now viewed as their children’s moral guardians.
Mothers of the middle class were encouraged to experience biological motherhood as the source of their greatest pride and joy. The influential Jean-Jacques Rousseau viewed motherhood as a personal religious calling:
The true mother, far from being a woman of the world, is as much a recluse in her home as the nun is in her cloister. . . . [A good mother] will not be willful, proud, energetic or self-centered. In no event should she become angry or show the slightest impatience . . . she must be taught, while still very young, to be vigilant and hard-working, accustomed at an early age to all sorts of constraints so that she costs [her husband] nothing and learns to submit all her caprices to the will of others. . . . She serves as liaison between [the children] and the father, she alone makes him love them.
Throughout the nineteenth century, male experts continued to urge women into motherhood as a religious calling. However, these experts insisted that “instinctive” (emotional, “soft”) maternality was harmful to children. They advised mothers to behave in more “manly” ways.
By the twentieth century, male experts told mothers to give up breast- feeding, to feed their infants only at rigid intervals, not to pick up their crying babies, and to toilet train them as soon as possible. Some male experts advised mothers to “bond” with their infants immediately at birth. According to these experts, if mothers didn’t “bond” with or didn’t “let go” of children perfectly enough, they doomed them to “neurosis.” According to psychiatrist Ann Dally, mothers were tyrannized into believing that it was “dangerous” to leave their children “even for an hour.”
We do not know how many women actually succumbed to the tyranny of the male experts. Enslaved or impoverished mothers did not have the time, the literacy, or the resources to act on scientific opinion; wealthy and royal mothers continued to delegate their maternal responsibilities. (Perhaps some royal and impoverished mothers felt guilty about this.) Middle-class mothers were in a position to be most easily tempted by expert promises.
The church fathers always assured mothers that they were important and irreplaceable. They also tried to convince men that it was anti-God and anti-church to divorce their wives or abandon their children.
The scientific fathers shared these churchly beliefs. However, they also promised mothers “control” over the outcome of their maternal labors and over children at home in lieu of “control” over armies, parliaments, churches, or banks.
What about fathers? Did they matter at all beyond their legal acknowledgment of sperm and economic support of families? Did it affect children badly, or at all, if fathers were absent, distant, or tyrannical? What is a “good” or a “good enough” father?
According to our state and church fathers, a “good” father is someone who legally acknowledges, economically supports, and teaches his children to obey the laws of state and church. The scientific fathers failed to consider the paternal role. When pressed, one twentieth-century expert said, “The first positive virtue of the father is to permit his wife to be a good mother. In the child’s eyes the father embodies the law, strength, the ideal, and the outside world, while the mother symbolizes the home and household. . . . The only thing one can usefully demand of the father is to be alive and stay alive during his children’s early years.”
Some scientific fathers went to great lengths to deny the existence of “bad” fathers. Psychoanalysts, for example, were actually more eloquent about the rivalrous impulses of sons than about the murderous deeds of fathers. Most psychoanalysts rarely paid attention to real-world “facts” or held real fathers responsible for anything they did—or failed to do.
Psychoanalysts and other, more popular child-development experts failed to acknowledge their own expert fathering as “responsible” for an increase in maternal guilt and for turning mother blaming into a “science.” For example, the phrase maternal deprivation terrorized countless mothers in the twentieth century. A woman who “maternally deprived” her child was a “bad” mother. Dr. John Bowlby first used this phrase in 1951 to describe what happened to children whose state father had institutionalized them.
Bowlby did not condemn the state father for “depriving” his institutionalized children, nor did he (or his popularizers) hold the state responsible for the crimes such children might commit in the future. The sins of the state fathers were used to control maternal behavior. The specter of “maternally deprived” children kept mothers guilty and sleepless. (State orphanage employees and members of Parliament slept quite soundly.)
Popular accounts of child abuse invariably focus on the “sensational” episode as opposed to the more entrenched forms of child abuse. A male homosexual child molester makes ready headline copy; his more numerous male heterosexual counterparts remain invisible.
A single school or a large church involved in the sexual abuse of children becomes a scandal; the high incidence of male heterosexual abuse of female children, including paternal incest, is denied or minimized.
What exactly is child abuse? Is physical child abuse increasing in America? Most incidents of physical child abuse are probably never reported. Nevertheless, the National Center on Child Abuse and Neglect reports a “dramatic increase” in child abuse.
Naomi Feigelson Chase found that, historically, “serious” child abuse was either underreported or atypical. Chase and Leontine Young attempt to distinguish between severe physical neglect—lack of adequate or regular feeding—and moderate neglect, which includes lack of cleanliness, lack of adequate clothing, and failure to provide medical care.
They also point out that physical neglect is not the same as physical abuse, which, in turn, may be either moderate or severe. According to Young, the prolonged physical and psychological abuse of children constitutes a category all its own, as does child murder: “Severe [physical] abuse is consistent beating that leaves visible results. Moderate abuse occurs when parents beat children under stress or when drunk. [Those in the] severe category are unable to be helped. The abusing parents’ hallmark is deliberate, calculated, consistent punishing without cause or purpose.”
In 1978 Dr. David Gil analyzed the thirteen thousand reported cases of physical child abuse in the United States. Of these, 3 percent were fatal; less than 5 percent “led to permanent damage”; 53 percent (6,890 cases) were not serious; 90 percent “were expected to leave no lasting physical effects.”
These studies of reported child abuse were almost always correlated with extreme poverty, severely “deprived” parental childhoods, mental illness, overburdened and isolated single motherhood, and unrelieved or profound stress.
In view of the high incidence of and extraordinary stress associated with single motherhood and the great amount of time mothers have to spend with children, it is significant that both Gil and Chase found no evidence that mothers “abuse” their children any more than fathers (or boyfriends) do. On the contrary. According to Chase, “a mother or stepmother was the abuser in 50 percent of the incidents and the father or stepfather in about 40 percent. Others were caretakers, siblings, or unrelated perpetrators. However, since almost a third of the homes were headed by females, fathers had a higher involvement rate than mothers. Two-thirds of the incidents in the homes where fathers or stepfathers were present were committed by the father or stepfathers; while in homes with mothers or stepmothers, the mothers and stepmothers were perpetrators in less than half the incidents that took place.”
Researchers studied pregnant mothers who were potentially “high-risk” physical child abusers. All these mothers were young, poor, unwed, and going through with unplanned and unwanted pregnancies. The study found that, as expected, one-quarter of the children was abused psychologically. The researchers explained this abuse in terms of the mothers: they had received no “maternal nurturance” in childhood. The psychologically abusive mothers “don’t know how to be nurturing. Instead of giving to the child, they look to the child to satisfy their own needs for nurturance and love, and the child cannot provide.”
This study actually shows that 75 percent of “high-risk” mothers do not psychologically or physically abuse their children and that “high-risk” mothers need emotional as well as economic support in order to mother properly. The study focuses on maternal, not on paternal, abuse.
Researchers have no control over how their work is viewed or used. This study (and others like it) are used to “indict” mothers in the public imagination, to incite middle-class or married mothers to paroxysms of time-consuming guilt, and to justify the state’s custodial or reproductive punishment of poor, unwed mothers.
Mothers do not physically or sexually abuse, abandon, or neglect their children as often as fathers do. Several statistically sophisticated studies have confirmed that it is mainly men—fathers, grandfathers, stepfathers, boyfriends, older brothers, uncles, and male strangers—who physically and sexually abuse both mothers and children.
How many fathers and adult men beat or rape mothers? No one really knows. Research suggests that anywhere from 15 to 50 percent of all mothers in America are physically battered and/or raped by their husbands or live-in boyfriends.
Some studies (and common sense) suggest that wife beaters also tend to abuse their children physically, sexually, and psychologically. The sons of wife beaters often become wife beaters; their daughters often become battered wives.
How many fathers sexually abuse their own genetic or legal children and grandchildren? No one really knows, though a number of first-person and clinical accounts about paternal incest have been published and publicized.
In the past, according to incest researchers, two to five million American women were paternally raped as children; one in every seven or one in every five American children was the victim of paternal incest or of male sexual abuse; 19 percent of all American women (one in six) and 9 percent of American men were sexually victimized as children. Other studies have shown that perhaps 20–25 percent of American girls were sexually abused in childhood and that 30–50 percent of their abusers were male members of their own family.
It is my impression that the majority of unfit mothers do not kill, torture, maim, rape, or abandon their children outright. The majority of unfit mothers seem physically to neglect and psychologically to abuse their children.
Mothers do spend more time with children than fathers do. Mothers also turn up in emergency rooms alone with battered children. The sight of a mother accompanying a child with a broken arm or a suspicious burn is sickening and impossible to forget.
We do not ask, “Why is she here alone?” or “Where is the child’s father or other adult member of his family?” We do not comment, “Maybe the father (or a man) actually beat this child, and she’s confessing in his place,” or “Perhaps the absence of a supportive husband ‘drove’ her to it.”
Still, it is my impression that when an unfit mother does physically abuse her child, she may do so less forcefully, less often, and less fatally than her paternal counterpart. (There are many exceptions among drug-addicted and mentally ill mothers.)
Physically neglectful or physically violent mothers are more closely and critically scrutinized than physically abusive fathers are. Such mothers have also often internalized certain maternal ideals. Whether they achieve or fail them, they are aware of, and often guilty about, their imperfect or failed maternal performance.
Clearly, children are equally endangered by equally physically violent parents whether they are mothers or fathers. However, women in general are more rigidly socialized into nonviolent maternal behavior under stress than men are.
Female socialization, the experience of pregnancy and childbirth, maternal practice, and the social “watchdogging” of mothers all tend to reinforce maternal physical nonviolence. Children tend to be physically safer with most mothers most of the time. Sara Ruddick observed that most mothers are (objectively) “powerless” women who find themselves embattled with weak creatures whose wills are unpredictable and resistant, whose bodies [they] could quite literally destroy, whose psyches are at [their] mercy. . . . I can think of no other situation in which someone with the resentments of social powerlessness, under enormous pressures of time and anger, faces a recalcitrant but helpless combatant with so much restraint [author’s italics]. It is also clear that physical and psychological violence is a temptation of maternal practice and a fairly common occurrence.
What is remarkable is that in a daily way mothers make so much peace instead of fighting, and then when peace fails, conduct so many battles without resorting to violence [author’s italics]. I don’t want to trumpet a virtue but to point to a fact: that non-violence is a constitutive principle of maternal thinking, and that mothers honor it not in the breach, but in their daily practice, despite objective temptations to violence.
Children are potentially more physically endangered by fathers, whose socialization as men has predisposed them to flight or physical violence under stress and has forced them into a fierce dependence upon obedience from wives and children. Fathers, as men, are not closely “watchdogged” within the house; in a father-idealizing and father-absent culture, they are romanticized by children. (This dynamic allows children to deny paternal violence against them or to blame themselves when it happens.)
Both nature and culture have prepared women to mother in physically nonviolent ways under very oppressive conditions. Some observers romanticize the female ability to do this; others lament it as a virtue by default. Most mothers are usually able to absorb frustration, humiliation, unemployment, poverty, celibacy, and extreme loneliness without abandoning, seriously abusing, or murdering their children. As such, mothers as a group are rearing their children as well as can be expected of the human race to date.
Does a child physically need his or her father or father figure during pregnancy or childbirth, during infancy, or at some point later in childhood? Common sense and personal experience confirm that men and women do not have the same physical relationship to children.
It is crucial to remember that many children grow up without any fathers or father figures. Studies suggest that such children are no different from children with fathers—if severe impoverishment is not confused with paternal absence. Perhaps few children are physically fathered whether they live with fathers or not.
It is also clear that fathers have an effect on children whether they are absent or present, that fathers may influence a child directly or indirectly, and that paternal influence can be “advantageous, disadvantageous, or neutral.”
A number of feminist theorists and researchers have written about the psychological importance of “fathering” and about men’s potential ability to “nurture.” Such researchers have tried to show that a “good “father is potentially as good as (or similar to) a “good mother.”
These studies have essentially shown that white, middle-class, well- educated fathers can, under experimental conditions, “bond” with infants and can perform many of the physical and emotional tasks of “maternal nurturance.”
However, studies also show that “good enough” fathers tend to spend radically less time with infants, toddlers, preadolescents, and teenagers than mothers do; that fathers tend to “play” with children rather than physically to “service” them; and that fathers tend to “mother” children for comparatively short periods of time.
In real life, some (married) fathers are indeed physically “nurturant” to their children. However, unlike most nurturant mothers, such fathers are unwilling or unable to “nurture” children all day, every day, for all the years of each child’s childhood.
Fathers do not get pregnant. They do not give birth to, breast-feed, or routinely take care of newborn infants. Traditional fathers and mothers do not view these tasks as men’s province.
Researchers have found that “good enough” fathers are not able or willing to do what “good enough” mothers must do physically in related areas in order to maintain family life. For example, past studies confirmed that American wives did 70 percent of the housework, whether they were employed outside the home or not.
In their study of American couples, Drs. Philip Blumstein and Pepper Schwartz found that married men had such an intense aversion to house- work that when wives insisted they do it, intense acrimony and a greater probability of divorce resulted.
Even if a “good enough” father is unemployed, he does much less house-work (and child care) than a wife who is a full-time employee outside the home. One of my interviewees said, “My ex-husband was once unemployed for about a year. I taught full time and rushed home at three, collected the kids, shopped, and cooked dinner. I was very tired by the time I put the kids to bed and finished the dishes. I begged him to cook dinner. He refused. After much battling he agreed to cook every Friday night. He finally cooked dinner about twice a month. We all had to praise him and eat everything. I had to clear the table and do the dishes. Everyone said I had to be very understanding because he wasn’t employed.”
Of course, a father may be able to earn more money or physically lift more weight than a mother can. Such (innate and cultural) abilities may have nothing to do with satisfying the daily physical needs of children directly or with satisfying these needs in a physically nonviolent way, especially at times of parental stress.
Is physical punishment always a form of child abuse? Is a slap the equivalent of a broken arm? Is physical abuse the most serious form of child abuse? Is a child who is made to feel “unloved” or “unworthy” more severely abused than a child who is physically punished?
What do we know about psychological mothering and fathering? “Good enough” fathers may be psychologically cold, cruel, demanding, rivalrous, ambivalent, smothering, and abusive toward their sons and psychologically seductive and incestuous toward their daughters. A “good enough” father may also be infinitely more psychologically patient, understanding, relaxed, and generous to his children (especially to a daughter) than a mother may be.
“Good enough” mothers may be psychologically cold, cruel, demanding, rivalrous, ambivalent, smothering, and abusive toward their daughters (and to a lesser extent toward their sons). They may also be either more positively— or negatively—“maternal” toward their children than a father may be.
Drs. Joseph Goldstein, Anna Freud, and Albert J. Solnit have noted that the “best” parent-child relationship is both “positive” and “negative”; that it “fluctuates” over time; that “wanted” children may be “excessively valued” to their detriment; and that “good” parents cannot guarantee ideal child development even when they are their child’s psychological parents—that is, present and active in daily and physically caring ways.
Most parents do not view the psychological abuse of children as an epidemic with “devastating” consequences. According to psychoanalyst Alice Miller, most parents unthinkingly “murder their children’s souls.” Parents suppress their children’s “vital spontaneity” by the “laying of traps, duplicity, subterfuge, manipulation, ‘scare’ tactics, withdrawal of love, isolation, distrust, by humiliating and disgracing the child, scorn, ridicule, and coercion even to the point of torture. The former practice of physically maiming, exploiting, and abusing children seems to have been gradually replaced in modern times by a form of mental cruelty that is masked by the honorific term child-rearing.”
Miller may or may not be right. However, she rarely distinguishes between paternal and maternal behavior. She merges what mothers and fathers do (and don’t do) into “parental” behavior. Also, Miller’s psychologically high standards, while admirable, are rarely applied to fathers—or to mothers of all classes and races.
Unless or until we (and the “experts”) are prepared emotionally to judge all parents by the same standard, several conclusions are in order about how most mothers and fathers behave today.
Mental health experts, like the rest of us, tend to blame mothers, not fathers, for any problems a child may have; to praise fathers, but not mothers, for the good they may do; and to have one set of expectations for mothers and another, lesser set for fathers. Experts also tend to pathologize mothers when they fall short of idealized expectations of motherhood.
Seattle attorney Martha O. Eller notes a disturbing trend: “We are very disheartened by social workers’ and psychologists’ willingness to ignore issues of domestic violence, over-emphasize the value of a working father and under-value the contributions of a full-time homemaker, and [their] general tendency to despise a woman for having boyfriends without carefully inquiring of the father along the same lines. The [child] guardians ad litem, including psychologists, tend to evaluate the mothers harshly, even more so than the judges.”
Some mental health professionals have encouraged fathers to consider co-parenting or joint custody as their right and encouraged mothers to consider co-parenting or joint custody as their obligation, both of which are “in the best interests of the child.” Unbelievably, mental health professionals tend to trust what a father tells them and to distrust almost everything a mother says. They routinely minimize male violence and routinely pathologize the normal female response to violence. For example, read the following evaluation from a Michigan case:
The mother presents as a tense, suspicious person rigidly fixated on her ex-husband’s so-called potential for child abuse. She and the maternal grandmother, an overly intrusive, controlling woman, have convinced this child to fear her father. While the father admits to engaging in mildly inappropriate fondling behavior with his young daughter and to an incident of “joyriding” with her, I believe these were isolated occurrences and would not occur if the father-daughter relationship was stabilized. The father’s continuing inability to pay child support should not be used to deprive him or his child of their relationship. I recommend visitation to the father and therapy for the mother to help her deal with her pathological dependence on her own mother.
Here is an evaluation from a New York case:
The mother claims that her son has been terrorized by his father during so-called drunken rages. She claims that the father allegedly threatened to kill the boy’s dog if his son didn’t obey him. The wife claims she has been battered and that her husband tried to control her every waking hour. I don’t see this. She is too self-confident, too bossy. This woman has her own business and earns more than the father does. The father has been in treatment for alcoholism and says he is now recovered. He lives with the paternal grandparents, who are prosperous. The boy needs to live with male role models, his father and grandfather, especially since his mother has a career and is obviously hostile to men.
It made no difference to either evaluator—one a man, the other a woman—that both fathers were verified as having been treated for mental illness and alcoholism, had been fired from jobs for “losing their tempers” and for repeated absences, and had often “disappeared” from home. That both mothers had been their children’s sole support, psychologically and economically, and had sought help from the police, hospitals, and, in one case, a shelter for battered women. None of this impressed the evaluators. Incredibly, these reports—and they are typical—found the mothers “guilty,” the fathers “innocent.”
How can one fight such an incredible catch-22?
At some level, the evaluators do believe that the fathers have done some- thing “wrong,” but they don’t want to penalize them for their actions. In fact, when allegations of paternal violence are believed, the father is then exonerated by virtue of having a mental illness. While male mental illness is seen as either temporary or amenable to “therapeutic” intervention, women are often seen as suffering from near-permanent mental illnesses. Judges have been reluctant to order a wife batterer or child abuser out of the house or into jail; based on such psychiatric evaluations, they have instead ordered violent fathers into therapy or mediation. Violent or mentally ill fathers rarely lose their rights to visitation or custody; mothers, however, do. The following paragraphs are from an Illinois case and a Rhode Island case, respectively:
I guess I had a post-partum depression. I was always so tired, but I couldn’t sleep. What if I fell asleep and my babies needed me? I was all they had. I might not have needed pills or a two-week stay in a hospital if my husband had helped or allowed me to hire someone for the twins. When I put myself into a mental hospital, my in-laws persuaded my husband to move in with them, start divorce proceedings, and take custody away from me. Twice, when I and my parents, who finally decided to help me, tried to see my babies, my in-laws physically threw us out. The third time they had us arrested. The police threatened us. The judge said I was too sick to be a mother.
My ex-husband is charming, well-dressed, well-spoken, and comes from a very powerful family. He first beat me two weeks after we were married. The beatings continued. When I was pregnant, he kicked me so hard between the legs that he broke my water. I gave birth prematurely. During that beating I grazed his arm with a fork. I also pressed charges. He said I’d gone too far and I’d have to be punished. On the basis of his version of what I did with the fork, the custody psychiatrist stated that I was the abusive spouse. The psychiatrist pre- scribed a minimum of three years of therapy to cure my violence. He recommended that I have limited, supervised visitation and that sole custody go to my ex-husband and his live-in housekeeper. The judge agreed. I haven’t seen my child in three years.
“Good enough” mothers behave (and are trained to behave) differently toward children from the way “good enough” fathers do. Most mothers give birth to children after successful pregnancies.
Most “birth” and adoptive mothers do not physically abandon or physically abuse their children once they have gotten involved in caring for them.
Some mothers do physically neglect their children. A small (and unknown) percentage of mothers sexually abuse, torture, and kill their children.
All other things being equal, the majority of mothers physically nurture and support their children adequately, continuously, and in nonviolent ways.
All mothers are psychologically imperfect. Some are also psychologically abusive.
Most fathers are trained to neglect their children physically. Many fathers physically abandon their children. As we have seen, perhaps one in seven fathers (and stepfathers) sexually abuses his daughters; perhaps 50 percent of fathers economically abandon their children.
All fathers are psychologically imperfect. How many are also psychologically abusive? Most? Some? Few?
In a woman- and mother-hating culture, it is emotionally difficult or psychologically forbidden to acknowledge female or maternal superiority even—or especially—in the areas of female “specialization.” In a man- and father-idealizing culture, it is emotionally difficult or psychologically forbidden to acknowledge male or paternal inferiority even—or especially—in the areas of male nonspecialization. These are two of the reasons we “forget” that a “good enough” mother is different from a “good enough” father.
As adults, we respond “indignantly” to news of an abused child. We experience child abuse as something extraordinary, not ordinary; as something that other parents, mainly mothers, do; not as something that our own parents, or fathers, once did to us; not as something that we as parents do to our children; and not as something that fathers allow to happen to large numbers of children in their name and without their protest.
As adults, we confuse images of maternal psychological imperfection with maternal psychological and physical unfitness. For example, the idea of a mother’s locking her child into a room arouses our rage and a deep sense of heartbreak. (Why? Were we all once left in rooms alone? If so, do we think that this constitutes “child abuse”? Does it?)
The idea of a mother’s verbally tormenting or refusing to speak to her child at all or the idea of a mother’s neglecting or beating her child provokes the greatest fury and terror in us. (Why? Did our mothers or fathers beat us? If not, why do we so empathetically identify with the image of an abused child? Are we by nature altruists?)
As children, none of us could escape or protest whatever minor or major abuse we suffered at maternal and paternal hands. Now, in one mighty adult voice, we vent our long-suppressed fury at the mother in the child-abuse headlines. She is utterly evil and can never be rehabilitated. (How can she be? She is a “stand-in” for so many mothers.) She is very powerful. This time she must not escape us.
Given male violence (or indifference), how can our own mothers accept or defend the way things are? (And they do, they do. . . .) How can our own mothers bear to hear our cries and do nothing? How can they leave us alone in the tiny rooms of our lives?
Given male violence and our fear of it, we scapegoat mothers instead. (They are trained to “take it” without killing or abandoning us.) Given male violence and our fear of it, we ask: How dare any mother refuse to become pregnant? How dare any mother have an abortion or abandon, abuse, or kill a child—because if she can, then there is no respite on earth, no one to bear the brunt of our imperfections, and no one to save us. We, the innocent, are damned.
Medea—not Jason, not Creon—is still the one we blame.
In summary, an ideal mother is very different from an ideal father. A real mother is also different from a real father. Traditionally, an ideal mother is expected to choose married motherhood for her future at a very young age. She is expected to become pregnant, give birth, psychologically “bond” with her children, and assume bottom-line responsibility for her children’s physical, emotional, and economic needs. She is also expected to behave in physically nonviolent and psychologically self-sacrificing ways.
Nevertheless, this female socialization into and practice of motherhood is devalued and taken for granted. We experience the same parental abuse as “worse” when a mother performs it. We condemn mothers more than fathers for failing the parental ideal, for performing parental work inadequately, for being psychologically imperfect, and for being physically abusive.
With such double standards and anti-mother biases, what kind of custodially challenged mother would automatically be viewed as a “good enough” mother? (A person might say, “There must be something wrong with her. Why else would her husband or the state challenge her?”)
Do judges, priests, politicians, psychiatrists, or social workers view unwed, imprisoned, or “career” mothers as maternally fit? Would they view their custodial victimization as unjust? Do white married mothers or white social workers view nonwhite or welfare mothers as maternally fit?
Most custodially challenged mothers blame themselves for being imperfect. What kind of custodially challenged mother would view herself, or be viewed by other challenged mothers, as a truly “good enough” mother?
I decided to study sixty custodially challenged, predominantly white mothers who had internalized the Western ideals of motherhood and were demographically similar to the majority of divorced white mothers in America. These sixty mothers were custodially challenged in every geographical region of the United States and Canada between 1960 and 1981. In addition, I interviewed fifty mothers who were black, brown, yellow, and red. Some, but not all, were part of this study. They are very much a part of this book.
In general, the sixty mothers I studied married as virgins—or they married the first man they slept with. They both married and gave birth at relatively young ages. They assumed the bottom-line domestic, emotional, and primary child-care responsibilities of traditional marriages. In general, these mothers stayed at home until their youngest children were of grade-school age. Both psychologically and physically they put “work” or a “career” second to motherhood.
During our interviews together, these mothers casually and matter-of-factly described performing at least twenty-five very specific maternal domestic and child-related chores—quite separate from domestic chores that are husband related.
As I noted in the introduction, I was exploring a worst-case scenario.
Could a “good enough” mother ever lose custody? Could she lose custody to a relatively uninvolved or abusive father? Could this happen more than once? Could this happen often?
In my book Women and Madness, I allowed each of my sixty interviewees to establish what would ultimately be a collective portrait of the mental health profession. I employed this approach with custodially challenged mothers.
However, I also interviewed fifty-five fathers who battled for, won, or gave up custody. These independent interviews confirmed many of my conclusions about the range of paternal custodial motives.
The study you are about to read is a study of “good enough” mothers. Unbidden and silent, the mother Medea accompanied me to each interview.
Reprinted with permission from "Mothers on Trial: The Battle for Children and Custody," Revised and Updated Second Edition by Phyllis Chesler. Text copyright 2011 Lawrence Hill Books, an imprint of Chicago Review Press. Published by Lawrence Hill Books, an imprint of Chicago Review Press (distributed by IPG). Available in stores and online.