By Miriam Raftery
Sunday, October 7, 2001
In custody disputes involving sexual abuse claims, closed-door family courts too often award custody to the alleged abuser, saying the mother is lying. Some mothers take children underground; others flee the country. First of a two-part series.
SAN DIEGO, Calif. (WOMENSENEWS)--Mary Lou French took her children into hiding in Costa Rica and later Panama because she feared they were being sexually abused. Tracked by fathers' rights groups and the FBI, she was arrested, becoming the first to face stiff mandatory sentencing for international parental kidnapping, a federal crime. Facing up to 12 years in jail if she pleaded guilty, French risked even longer imprisonment if she exercised her right to a trial and lost.
In a trembling voice, she told her story during a recent San Diego conference on family violence of her anguish after extradition. "There I was in prison, and my children were with the perpetrator--and no one was listening."
French is one of an impossible-to-tally number of women who flee the authority of the U.S. family court systems rather than give custody over to the fathers whom they accuse of sexually and physically abusing the children.
Another large number of mothers, again impossible to count, find themselves and their children caught in a tangle of legal procedures that result in their losing custody because they revealed their beliefs that their children's fathers had sexually or otherwise physically harmed their children. They too, in some cases, find themselves facing criminal charges.
These two subjects were the topics of the most powerful sessions at last month's Sixth International Conference on Family Violence: Working Together to End Abuse in San Diego.
Another speaker at the conference, Wendy Titelman, said she and her children were on a routine trip to Mississippi from their home in Georgia, when her children told her that their father was entering their beds at night and rubbing their privates.
A psychologist in Mississippi agreed. Stricken and desperate to protect her children, Titelman sought protective custody through a Mississippi court. Jurisdiction was shifted to Georgia, where she was charged with felony interstate custodial interference. Although later acquitted by a jury, in the process, she lost custody of her children to her ex-husband.
"The judicial system in family court is broken," Titelman said, during the San Diego conference.
"I haven't seen my children in a year," she added, her voice breaking. "The jury was so outraged that they stayed after court, crying with me." Six jurors wrote a letter protesting the custody award.
Titelman recently filed a malicious prosecution lawsuit against her ex-husband, his lawyers, the children's guardian and a detective, also seeking to bar these key participants from her case in the future.
The conference, co-hosted by the Family Violence and Sexual Assault Institute, Children's Institute International, and Alliant International University, drew over 1,300 social workers, psychologists, physicians, judges, attorneys, policy makers, counselors, therapists, crisis center staff, law enforcement officers and adult survivors of sexual abuse and custody wars--all to hear the latest research and strategies.
Violence within families and between partners often is handled by local family courts--courts whose size, professionalism and political independence vary dramatically. Moreover, sexual child abuse is a topic that is so fraught with emotion that many courts prefer to believe it does not happen rather than listen to the evidence that it does and has. The weaknesses of some family courts, which in most cases operate behind closed doors, are heightened when a judge must confront a custody dispute.
In the United States, most parents agree on custody and only 20 percent to 25 percent of custody cases are contested. It is these cases that consume vast amounts of judicial and other court resources, however, and remain the most vivid in the minds of most court officials.
In the largest study to date, of the more than 9,000 contested custody cases in 12 states that were reviewed, 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 contested custody cases reviewed) no abuse was believed to have occurred, and in 17 percent it was unclear whether abuse had occurred. Of the 33 percent where no abuse was believed occurred, in only 25 percent (8 percent of all allegations, 0.16 percent of all contested custody cases) was the good faith of the reporter questioned. Some allegations might have been good faith but unsubstantiated claims in which the truth could not be determined. Experts emphasize that good faith claims but erroneous claims do not mean the reporter, woman or man, was deliberately lying. Also, while most complainants are mothers, the totals also inlcude sexual abuse allegations made up by men about mothers' new husbands or boyfriends.
According to another study, the Gender Bias Study of the Supreme Court of Massachusetts in 1989, fathers are successful in obtaining sole or joint custody 40 percent to 70 percent of the time.
"Custody evaluators, child protective service workers and judges all are to blame for this state of affairs," said Ann M. Haralambie, an Arizona lawyer and an expert in cases involving sexual abuse. She is the author of "Child Sexual Abuse in Civil Cases--A Guide to Custody and Tort Actions," published in 1999 by the family law section of the American Bar Association.
"The system is worse than it has ever been," she said. "Those claiming to have been falsely accused have come forward and have really impacted common knowledge and perception. Mothers are often seen as vindictive, and such a high degree of scrutiny is applied to the mother, that the evaluators give anything but an objective evaluation."
Many mothers, like French, unable to rely on the family court to protect their children, flee with their children. Some cross state lines; some flee to foreign countries. Some disappear into an active U.S. underground of protective mothers.
Some advocates and lawyers call these women heroes, but other experts say flight, disruption and years underground is devastating to a child's identity and development. Some veteran child custody lawyers never recommend flight.
French is now able to speak publicly, although her tale does not include a happy ending. Federal charges were dropped after the FBI disclosed a pediatrician's report indicating the children had been abused before going into hiding. French still faces charges filed by the state of Hawaii, however, and has only limited visitation with her children.
"Now, my bubbly, spirited little girls are depressed, angry and in despair," she told listeners at a conference session titled "Mothers and Children in Hiding." Though limited to just five hours weekly with her children and barred from telling them that she hopes to regain custody, she pledged, "I am spending every human effort to get them back."
"Mothers every day are put in a catch-22," said Toby Kleinman, an attorney who has consulted on cases involving protective mothers who took their children into hiding. "You are required to report it if you suspect sexual abuse, but if you report it and can't substantiate it, you risk losing your children."
Colorado's Alan Rosenfeld is another attorney who has represented protective mothers in custody cases and in criminal cases when mothers are charged with kidnapping to protect their children.
"For 15 years, mothers have been going into hiding in large scale due to failures of courts to protect children," Rosenfeld said at the conference.
"According to experts, 98 percent of the time there is no physical evidence when children are sexually abused. The courts can't deal with this," Rosenfeld added.
In fact, Rosenfeld argues that the family court system is causing "jurigenic harm" to women and children, using a term he coined to describe damage done by the judicial system.
"What does society expect a mother to do when she has good reason to believe her child is being sexually abused and there is no evidence?"
"I have an estimate from a prosecutor in San Bernardino, Calif., that 100,000 mothers go into hiding each year because they believe their children are being abused," Rosenfeld reported. Rosenfeld also surmised: "Those missing children on milk cartons? In my experience, 85 percent to 90 percent of them are mothers in hiding with their children. They do not wish to be found."
Some believe that many mothers go into hiding because of the inextricable link between domestic violence and custody disputes.
In 1986, the Justice Department released a survey with a finding that astonished experts on family violence.
"Of all crimes related to family violence, 70 percent of those reported happened to women after they left the relationship," says Geraldine Stahly, Ph.D., at California State University in San Bernardino. Moreover, she noted, "In cases involving domestic violence, a man is two times as likely to demand sole custody."
According to Joan Zorza, author of "Protecting the Children in Custody: Disputes When One Parent Abuses the Other," published in 1996, 5 percent of abusive fathers threaten to kill their children's mother during visitation and 25 percent of abusive fathers threaten to harm their children during visitation.
Batterers with money tend to be more successful at using the court system to continue abusing their ex-spouses than poor batterers, according to many attending the conference. In addition, custody litigation expenses are known to be funded by some fathers' rights groups.
One conference attendee described how her ex-husband drained her resources through what she views as legal harassment. Once, she recalled, she received a call at work requiring her immediate presence in court for an "emergency."
After canceling business appointments, resulting in lost income, she rushed to the courthouse. The "emergency" was that her ex-husband wanted his fishing pole back.
"He was taunting me with legal stalking," she said.
Rosenfeld urged protective mothers and their supporters to begin organized public protests of family court decisions.
"Judges will listen to discontent. If you hear of a case where a child is about to be turned over, not one, but 100 of you can gather around and say, 'Not this time.'"
Next Monday: Suggestions for Reform of Family Courts
Miriam E. Raftery is an award-winning free-lance journalist based in Southern California.
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