From Failure to Protect: The Crisis in America's Family Courts

by Cara Tabachnick, Thursday, May 6, 2010

(Referring to custodial parents who killed their children).....

How did a system set up to protect families and children allow this to happen?

An investigation by The Crime Report shows such tragedies are the consequences of family court procedures that allow abusive spouses to manipulate the system and leave at-risk children at the mercy of prolonged, expensive court battles over custody. These battles end all too often with a parent forced to share unsupervised custody with an abusive spouse.

Lawyers, judges, psychologists and representatives of women’s groups interviewed by The Crime Report describe a broken family court system that is already burdened with a heavy caseload and too few judges—and in which serious criminal allegations of domestic or sexual abuse are routinely ignored. The crushing financial costs of pursuing long custody battles is an additional burden on indigent mothers, who get little or no legal support. The system has particularly failed parents―usually mothers―whose efforts to protect their children collide with an approach to custody issues that is based on narrow legal concepts of balance and fair treatment rather than psychological or medical evidence. “Courts assume mothers are orchestrating misinformation, instead of trying to protect their children,” said Kathleen Russell, director of the Center for Judicial Excellence.

“The problem is that family court is not set up to protect children,” says Joyanna Silberg, PhD,Executive Vice President of the Leadership Council.  And while the deaths of children are the public face of family court tragedies, the daily reality is that thousands of parents are trapped in prolonged court battles where they either lose their children to their alleged abuser, or are forced to share unsupervised custody.

Advocacy groups interviewed for this story reported receiving between 450 and 1,000 requests for help in contested custody battles this year. The National Network to End Domestic Violence, a prominent national not-for-profit, says it is the biggest problem they are now facing. And the Leadership Council on Child Abuse & Interpersonal Violence, an independent scientific organization, estimates that each year more than 58,000 children are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States.

“Family courts are trained to look for cooperative behavior,” says Rob (Roberta) Valente, general counsel for the National Network to End Domestic Violence, which is based in Washington D.C. “When someone raises an abuse allegation, the court sees it as uncooperative behavior. What the courts have failed to take into account but research has clearly shown time and time again, is that most of the cases that make it to trial in family court are high-risk abuse cases.

He Said, She said

Today’s family courts have also been affected by the rise of the Fathers Rights movement. The National Father Resource Center report(s) that 80 percent of mothers’ abuse allegations are false. Although Canadian research from the University of Toronto studying false allegations in U.S. and Canadian custody cases has found that between one and two percent of mothers make false allegations, the fathers’ rights argument has had a powerful impact.

Even for those mothers who can afford it, the battle can take a psychological toll.says psychologist Amy J. Baker.“If attorneys, child care evaluators, and judges were all doing their job, protective mothers wouldn’t have anything to fear.”

It may be ironic that efforts to give fathers more rights in custody cases have increased the odds against victimized mothers and children. “When the pendulum swung to shared custody somewhere in the midst of that (fathers) movement, the safety of children was compromised,” argues Helga Luest, founder of Witness Justice, a group that helps heal victims of violence.

A Complex Web
Custody evaluators can be assigned by the court or hired by one of the parties. The cost, which can run from $5,000 to $20,000. The custody system is beset by charges of cronyism―arising from evaluators’ employee relationship with the court―and incompetence. Advocates charge that evaluators are often poorly trained on how to handle or detect an abuser.

“Many child custody evaluators are not comprehensive (and ) their work is not buttressed by collateral evidence,” says psychologist Eugenia Patru. “Most (evaluators) are not educated enough and just in for the money,” she says.

In the saddest irony of all, attorneys have learned to caution their clients not to reveal abuse allegations in custody cases since research suggests that such allegations can work against mothers fighting for custody.

Moreover, when abuse allegations are raised, judges tend to suppress or not enter the abuse into evidence, making it harder to try these cases at the appellate level. “Family courts don’t adequately deal with abuse by refusing to hear the evidence,” charges Joan Meier, director of the Domestic Violence Legal Empowerment and Appeals Project.

“For the moment, abused mothers who are trying to protect their children through the overworked family court system have the cards stacked against them,” says Silberg of the Leadership Council.

Cara Tabachnick is news editor of The Crime Report. Additional reporting by John Jay Center on Media, Crime and Justice researcher Daonese Johnson-Colon