By Victoria Graham
WEnews managing editor
Sunday, October 28, 2001
In custody disputes, women alleging their spouses or partners are abusing the child can find themselves viewed as vindictive harridans trying to poison a child against a loving parent. Worse yet, they may lose custody and even visitation rights.
(WOMENSENEWS)--During an unsettling divorce and painful custody dispute, a woman alleges that her young daughter has been sexually abused by her father. He denies charges. Frightened for her daughter's safety, she believes that family court will help her, that the truth will come to light.
Instead, the mother, who is required by law to report abuse, finds herself virtually in the dock--quizzed, examined, doubted--treated, she feels, as though she were a perjurer, as though her only objectives were to selfishly punish her daughter and ex-partner.
She is disbelieved by judges, lawyers, child protective services and experts, categorized as an angry, unbalanced woman trying to bring another innocent man down with malicious fabricated allegations.
At the same time, most agree that for a family court to award custody of a child to a parent who physically or sexually abuses that child is contrary to the entire mission of these courts.
However, too often, a family court judge, usually with little or no education in domestic violence or sexual abuse of children, sides with the man and says that evidence of sexual abuse was not substantiated and therefore that it did not occur. Instead, many in the legal system agree, the judge should rule only that no conclusion could be drawn.
Further, the judge, now irate at the thought a parent would mislead the court on such a serious matter, might very well award joint custody of the children to a father who may indeed be abusive. Worse yet, the judge might decide that the father should have full custody, the mother being too emotionally unbalanced--after all, she made a vicious and destructive allegation against the other parent--to care for the child.
Or, even more alarming, experts might detect evidence of sexual abuse--and still a judge punishes the woman, awarding custody to the man.
This scenario of mothers losing custody of children to fathers who they believe abuse them remains a persistent and deeply troubling accusation. Two women making these claims were featured in a recent international conference on family violence, and an award-winning documentary on the subject was just released. Moreover, the editors of Women's Enews regularly receive long letters from individuals whose cases differ in the specifics but follow this pattern. (Neither lawyers nor social service providers, the editors can do little other than read the letters and forward them to an organization that may be able to provide the author with additional information. However, this article reflects the editors' concern about the statements made in these letters.)
Allegations of family sexual abuse, especially sexual abuse of children, have become commonplace now, grist for a prurient public's mill. From all quarters, complaints are lodged. It's no surprise, then, that they find their way into family courts, where the enshrined motto is preserving the "best interests of the child."
The sexual abuse complaints that once would never have seen the light of day, dismissed as too private and unseemly, now take their rightful place alongside other concerns.
Yet in the welter of divorce and child custody cases, the number of contested cases involving child sexual abuse, is extremely small.
Despite their small number, these cases highlight the problem of women's credibility in the court system, reflecting their credibility problems in society at large.
For most of this country's history, the law classed women with children and the mentally impaired and forbade them to own property, enter into contracts or vote. Rape laws were a codified expression of mistrust of women. Children were their fathers', not their mothers' property, and awarding custody to mothers has only taken place in the past 100 years.
"Sociological and legal research documents that women have less credibility in courts across the board than men, and the situation in family court is no different," said Lynn Hecht Schafran, director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, a project of NOW Legal Defense and Education Fund. (Women's Enews is a project of NOW Legal Defense.)
Schafran said there are three main reasons for women's lack of credibility in the courts, reflecting their lack of credibility in society as a whole:
The third, the myths and misconceptions about women's lives, is the most pernicious, Schafran said.
These problems are compounded by the lack of education of family court judges, officers and other personnel about sexual assault, domestic violence, child abuse and child sexual abuse, Schafran added.
A newly appointed family court judge who previously specialized in land use might be asked to make decisions in areas of enormous consequence in the lives of women and children, areas in which he or she has had no education.
"It's like asking a dermatologist to perform heart surgery," Schafran said.
Further, a controversial theory called Parental Alienation Syndrome is sometimes used in child custody disputes to assail a parent's credibility. According to the theory, one parent, usually the custodial mother, systematically brainwashes the child to hate, fear or reject the other parent, programming the child to become alienated from that parent. If the theory is used successfully, advocates say, the father will be awarded custody and the mother will receive only very limited visitation.
Both parents, however, have been known to try to alienate a child from the other parent in a custody dispute--some may exaggerate, color the truth and be openly antagonistic. But most experts agree, out-and-out fabrications of child sexual abuse are extremely uncommon.
Experts say there is no existing data that can provide an accurate or current snapshot of the incidence of validity of child sexual abuse allegations in custody and visitation cases. In a large study of 9,000 contested custody cases in 12 states, fewer than 2 percent involved allegations of sexual molestation. Of that 2 percent, 50 percent were considered to be valid, in 33 percent (0.66 percent of all custody cases reviewed) no abuse was believed to have occurred, and in 17 percent it was unclear whether or not there had been abuse.
Of the 33 percent where no abuse was believed to have occurred, in one-quarter--or 0.16 percent of all contested custody cases--was the good faith of the reporting person--woman or man--questioned. Though most allegations are made by women, some also are made by men against their former wives' or partners' new boyfriends or husbands.
The limited and unclear terminology used to describe allegations represents another problem--often resulting in unfair conclusions that someone has lied about abuse. The terms "false," "fictitious," "nonvalid," "untrue," "unsubstantiated" and "unfounded" are used often imprecisely to cover a range of situations, primarily: insufficient evidence, mistaken but good-faith misperceptions, fishing expeditions and deliberate fabrications.
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Judge Joseph M. Lauria, administrative judge of the New York City family courts, discounts the premise that bad outcomes of child custody disputes is the result of women being seen as less credible, at least in New York City. He warns against generalizations and "painting with a broad brush."
"A family court judge must take allegations seriously, and each case must be decided on an individual basis, involving careful weighing of the information," he said.
However, the New York City court system took steps that many advocates say should be replicated in family courts across the nation.
In 1997, New York Chief Justice Judith S. Kaye announced that "sunshine is good for children" and opened the doors of the state's family courts to scrutiny and press coverage, resulting in more accountability, feedback and improvements, Lauria noted.
New York also is in the vanguard, he said, in requiring continuing education of judges and court personnel about issues such as domestic violence, sexual assault and child abuse.
Without this openness and education, says Ann M. Haralambie, an expert in child custody cases involving allegations of sexual abuse, many judges, court officials, child protective officers, custody evaluators and others have been unduly influenced by compelling accounts of men who have been unjustly accused of child sexual abuse by their wives or partners.
As a result, she said, a mother's allegations are subjected to an unreasonable degree of scrutiny. "We're back to where we were in 1962," she said, "when pediatricians thought physical child abuse was pretty rare. If you don't consider the possibility, you never diagnose it."
"Some people are so intent on proving the mother is wrong or lying because she is so angry. Everyone who evaluates must ask, 'What if it's true?' and evaluate that hypothesis. That's what we are not doing.
"If you come from a place assuming allegations are false and a ploy in custody cases, you are going to interpret things in a very skewed way," said Haralambie. She is the author of "Child Sexual Abuse in Civil Cases--A Guide to Custody and Tort Actions," published by the Section of Family Law of the American Bar Association.
Haralambie sketches out a typical case: A mother of a 4-year-old daughter says she is being touched by her father. The mother is stricken, outraged, determined to protect her child, takes her to child protective services, to law enforcement. Still the girl only tells her mother, not others.
If an evaluator does not entertain the possibility that the abuse could be real, then she will get irritated at the mother. Then the mother becomes understandably insulted--why wasn't she taken seriously--and frustrated. She goes to the next expert for more evaluations; she still doesn't get confirmation, though she's trying to work with the system.
"Finally, the mother who is trying to protect her child looks like a crazy person. Ultimately many such people are retaliated against for continuing to make reports on sexual abuse--they end up losing custody," Haralambie says.
Haralambie summarizes the situation faced by mothers in custody disputes who believe their partner is hurting their child.
"You're subject to criminal penalties if you don't report, but if you don't stop reporting, we take your kid away because you've been inflicting emotional abuse on the child with your accusations--it's an absolute nightmare."
And the mother's desperate behavior confirms those stereotypes of women being less credible, less serious, less stable than men.
Given that most studies indicate that fabricated allegations are extremely rare, some advocates argue that no woman who is a primary care giver should lose custody because of an unproven allegation of abuse.
"We've never known as much before as we know now about investigating cases of child sexual abuse, and yet when they are presented in the context of domestic relations cases, they are given short shrift," Haralambie said. "This is horrible public policy and a national scandal."
Image adapted from cover of "Divorce Poison," by Richard A. Warshak, Ph.D., to be published in January by Harper Collins: