Custody Injustice Goes Way Beyond Britney

(WOMENSENEWS)–Divorce your husband? Say goodbye to your kids.

That’s the message family courts are sending to women in conflict-ridden families everywhere, including Britney Spears, who recently lost custody of her two children amid the usual torrent of stories about her failings and foibles.

More than just the latest casualty of the media who seem to glom onto “bad mother” stories with alarming zest, Spears is the latest casualty of a family court system which in the past 15 years has been skewed in favor of fathers in high-conflict cases, which often include accusations of abuse and bitter antagonism throughout court proceedings.

While I’m in no position to judge Spears and her individual case–despite the media’s portrayal of her as just a hair less offensive than Medea–publicly and privately funded testimony projects and numerous state and local studies show that when men file for custody against women, the majority of women lose their children. Even battered women.

In the United States in 2005, the nationwide marriage rate was just under 8 percent, resulting in 2 million marriages, and the divorce rate affecting them was pushing 4 percent, meaning 1 in 2 marriages end in divorce. About 10 percent of U.S. divorces involve custody litigation and affect about 100,000 children each year.

Whether moms or dads are winning custody is a difficult trend to track because family court data are sealed and no federal agency tracks what’s going on. Moreover, most custody decisions are reached by the parents and merely approved by the courts.

Women Losing Custody

But there is enough evidence to convince me that we have moved a long way from the 1950s and 1960s, when women would almost automatically win custody. Now I’d say the opposite is true.

Statewide testimony projects have been conducted–and continue to go forward–around the country. They involve researchers who interview both women and men after a divorce about the outcomes of their custody cases.

An example is the 2002 study produced by the Wellesley Center for Women, a research organization affiliated with Wellesley College in Massachusetts. After three years of in-depth interviews with 40 battered mothers who were unhappy with their custody and visitation orders, judges, guardians and probation officers, the researchers concluded that the courts exhibited a bias against women, particularly battered women.

Such findings tell me little has improved since 1989, when a study by the Judicial Court of the Commonwealth of Massachusetts described a family court system where the “interests of the father are given more weight than the interests of mothers and children.” Or since a 1990 Florida Supreme Court gender bias study that found “many men file proceedings to contest custody as a way of forcing an advantageous property settlement and, contrary to public perception, men are quite successful in obtaining residential custody of their children when they actually seek it.”

Battered Women Hit Again

In fact, things may be getting worse, especially for battered women.

A 1996 report by the Washington-based American Psychological Association noted that abusive men are more likely to file for custody to begin with, “and are just as likely (or even more likely) to be awarded custody as the mother.”

This egregious error often occurs because most state legislatures have enacted legislation requiring family courts to favor joint custody arrangements, and when this isn’t possible, to favor the parent who appears most “friendly” to a joint custody arrangement.

At least 31 states have statutes requiring courts to consider how “cooperative” the parent is when determining custody arrangements. “Friendly” parent preferences tend to favor abusers, who rarely object to the non-abusive parent’s access to the child. Protective parents, on the other hand, frequently seek to curtail a violent parent’s access to the child, making them seem “unfriendly” in they eyes of the court.

A 2003 Arizona Testimony project surveyed 57 battered women who had gone through a custody battle in family courts and found that joint or sole custody was awarded to the alleged batterers between 56 percent and 74 percent of the time.

The upper end of that estimate was echoed in 2004 in a study by the Williamsburg, Va., American Judges Association, which found battered woman losing contested custody cases 70 percent of the time. Most of these women make substantially less money than their former spouses and many of them have been involved in incidents of documented domestic violence.

Lower Awards for Reporting Abuse

Another 2004 study–this one funded by the National Institute of Justice–showed that women who inform custody mediators that they are victims of domestic violence often receive less favorable custody awards.

Also in 2004, researchers at the California State University in San Bernardino interviewed over 100 self-identified “protective” parents. They found that prior to divorce, 94 percent of the protective mothers surveyed say that they were the primary caretaker of their child and 87 percent had custody at the time of separation. However, as a result of reporting child abuse, only 27 percent were left with custody after court proceedings.

That’s insane. Talk about the wrong message. Am I to believe women are supposed to not report battery so they can keep their kids?

One reason for the tide turning in its current direction is a 1993 federal law intended to crack down on deadbeat dads. It fueled the formation of a highly organized, heavily funded fathers’ rights movement that exerts growing clout in a system where highly paid lawyers, law guardians and mental health professionals run constant interference between judges and their cases. Federal grants to these fatherhood organizations total $50 million a year.

“Just having the man ask is enough to impress some courts and grant him custody,” said Dr. Juliana Silberg, a Baltimore child psychologist and evaluator and co-author of a 2006 report on the risks children run during custody litigation. “There’s a trend among father rights lawyers to vilify the mother in court. It’s far easier to say ‘crazy mother’ than abusive man and everybody makes a buck.”

“There’s an absolute bias in the courts against the emotionality of women,” said Dr. Paul J. Fink, president of the Leadership Council, a nonprofit research group in Bala Cynwyd, Pa., that specializes in mental health issues. “At one point there was a bias towards the mother, then we went to joint custody and now we found we’re moving in the other direction. I’m outraged.”

So am I.

I feel bad for Britney Spears. But I feel even worse for the women who are losing custody and who are not famous and do not have the press paying much attention to them. They are victims of a system that has become skewed against women and, let’s not forget, their children.

Sandra Kobrin is a Los Angeles writer and columnist.

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