By Pamela Burke
Tuesday, October 22, 2002
New statistics indicate California fathers with a history of child abuse, domestic violence or criminal behavior often have been granted visitation and sole custody of their children in contested cases.
LOS ANGELES (WOMENSENEWS)--Her 15-year-old daughter lives 10 minutes away in her Southern California neighborhood, but Idelle Clarke hasn't seen her since the teen's eighth-grade graduation two years ago.
If Clarke goes within 100 yards of her, she could be reported to the courts. She says she can't talk to her daughter, a special needs child, on the phone or send a letter.
Clarke is one of an increasing number of vocal mothers who the California National Organization for Women says has been victimized by the state's family court system. The group's controversial 134-page report, released in June, found the system to be "crippled, incompetent, and corrupt." They have recently incorporated statistical information and excerpts from a sample of reviewed cases into their findings and issued a second report in September.
Not professing to be unbiased or neutral, the most recent report is intended to contribute to the discussion of court reform and to propose strategies to reform the family law courts, the organization said.
The research began as a reaction to the increase in communications to California NOW from women claiming to be fit mothers who had lost custody of their children to the children's fathers. California NOW posted a 21-page questionnaire on the Internet in 2001. The study includes data gathered from 212 responses to the questionnaire; 80 case studies collected by telephone interviews; and analysis of the information to identify patterns of experiences.
In addition to general background questions, the questionnaire asked about domestic violence and child abuse as well as the way those issues had been dealt with in the courtroom, in mediation and evaluation.
The resulting report indicated that in 69 percent of the contested custody cases in which the mother alleged that child abuse occurred, the alleged offender was given unsupervised contact or custody of the child. Eighty-six percent of the respondents said they believed their children were in danger of further abuse from the father.
Clarke and her husband are typical in many ways of the cases collected by NOW. In a prolonged custody battle that began after Clarke's divorce in 1993, Los Angeles County's Department of Children and Family Services filed two petitions against Ovando Cowles, Clarke's ex-husband, accusing him of molesting his daughter. The girl, whose identity the mother asked be protected, had alleged that her father sexually abused her.
Cowles declined to be interviewed about the case for this article, saying only that his daughter was "doing fine." In court papers he denied there was any molestation and claimed Clarke coached their daughter to say it.
A family court judge dismissed the abuse charges in the first petition for lack of sufficient evidence. The settlement of the second in 1996 gave Clarke primary custody with Cowles receiving court-monitored visits.
In an about-face two years later, a superior court judge awarded temporary custody to Cowles. Thus the mother, daughter, father, children's services, family court and a flock of lawyers were locked in a now familiar, everyone loses, battle.
California NOW joined Judicial Watch, a monitoring project, and petitioned the judge to be considered friends of the court so they could present their arguments and additional information.
On July 31, the Los Angeles County Appellate Court rejected Clarke's appeal. Robin Yeamans, the attorney who represented California NOW, said a ruling supporting Clarke would have had a far-reaching beneficial impact.
It is difficult to provide a current or accurate accounting of the incidences of substantiated child sex abuse allegations in custody disputes. California courts mediate an average of 91,000 custody cases each year. The California Protective Parents Association has reported that preliminary research in 13 counties indicated that in over 90 percent of family law custody disputes in which child sexual abuse was alleged, the alleged perpetrator received full or partial unsupervised custody. The parent charging abuse received supervised visitation or no contact at all with the children in more than 50 percent of those cases.
The Association of Family and Conciliation Courts in Denver undertook one of the largest national studies of the incidence of sexual abuse in divorce cases. Out of about 9,000 contested cases in 12 domestic relations courts, fewer than 2 percent had allegations of sexual abuse. Fifty percent of those were considered 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 there had been abuse.
Since the California NOW release was published, hundreds of women have contacted the organization claiming to be fit mothers who had lost custody of their children.
"Our findings suggest that women who are victims of domestic violence, whose children make allegations of abuse against their fathers, are particularly at risk of losing custody of their children to the perpetrator," says Helen Grieco, California NOW's executive director.
Fathers' rights advocates, citing U.S. Census data showing that women are granted custody about 80 percent of the time, argue that courts rarely grant custody to fathers in contested cases.
Dianna Thompson, executive director of the American Coalition for Fathers and Children, insists the vast majority of divorces are initiated by women and cites a Stanford study of 1,000 divorced couples that found mothers were awarded sole custody four times as often as divorcing fathers in contested cases.
Murray Steinberg, chairman of the Virginia Children's Rights Council, says the report's findings demonstrate that California NOW's credibility is diminishing.
"They have no facts to back up their case," Steinberg says. "Part of the reason more dads are getting custody is that mothers are consenting to give children to their fathers."
Los Angeles Superior Court spokesman Allan Parachini says the court would like to see more precise data.
"The report had a lot of well-written rhetoric but we don't know what we should be responding to," he adds. "If California NOW has an issue with us, they should be more specific and we could address those concerns."
Several lawyers who have dealt with child custody issues involving sexual abuse and who did not participate in the study concur with NOW that the family court system may be severely flawed.
"Attorneys will tell women not to raise sexual abuse charges in custody hearings," says Tom Lyon, a professor at the University of Southern California Law School and a former dependency court attorney. "Judges will hold it against them as the basis for denying custody."
Alan Rosenfeld, a Denver attorney who has represented hundreds of women in their efforts to regain custody of their children, insists that the courthouse personnel are less and less able to competently respond to the charges.
"Judges who hear the cases, psychologists who evaluate them and lawyers who are under contract have been indoctrinated in a false belief system that these children do not get sexually abused," Rosenfeld says. "They don't believe mothers know with any certainty whether their children are telling the truth."
Clearly, Clarke and her allies believe that is what happened in her case. Recently declared a vexatious litigant, Clarke is barred from filing any further legal motions statewide unless she posts $25,000 each time. But she continues to press forward with Yeamans by her side. This month the California Supreme Court denied her Petition for Review.
"My daughter will always be my daughter," says Clarke. "Hopefully in some way this case will forge a path for other mothers and children. I always ask myself what if I was that age and no one was fighting for me?"
Pamela Burke is a television producer and freelance writer living in Los Angeles.
California National Organization for Women:
United for Justice . . .:
American Coalition for Fathers and Children: