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Helen Grieco
Rachel Allen
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Helen Grieco
Rachel Allen
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2006 © California National Organization for Women

Table of Contents
4 Preface by Phyllis Chesler

8 Introduction by Helen Grieco, Rachel Allen and Jennifer Friedlin

12 Domestic Violence, What’s that? One Woman’s case and her

fight for justice by Karen Anderson

20 Making a Mothers’ Movement by Lundy Bancroft

23 Turning a Personal Battle into a Political Crusade,

an Interview with Karen Hartley-Nagle

28 The Power of One in Alaska by Paige Hodson

35 A Judge’s Perspective, an Interview with Sol Gothard

39 Child Sexual Abuse and Child Custody Disputes

by Dr. Robert Geffner, et al.

46 Protective Mothers in Child Custody Disputes: A Study of Judicial

Abuse by Dr. Geraldine Butts Stahly

51 Toward Better Outcomes in Child Custody Disputes by Sharon Bass

63 Joint Custody - A Failed Proposition for Women, Children…

and Loving Fathers by Trish Wilson

68 Down the Rabbit Hole: Legal Strategy in Protective Parent Cases

by Kristin, Diane, and Charles Hofheimer

77 Consequences of Covering the Courts by Kristin Lombardi

81 The Making of ‘Small Justice: Little Justice in America’s Family

Courts’ by Garland Waller

85 What Breaking the Silence Means, an Interview with Filmmaker

Dominique Lasseur

89 The Protective Mothers’ Movement: An Activist’s Notes

by Dr. Mo Therese Hannah

94 afterword: activism is the answer by Helen Grieco

w w w. c a n o w. o r g .
 Preface
By Phyllis Chesler

I first started researching custody battles in fathers, were being custodially challenged for
1977. It was not a fashionably feminist thing to having careers or for moving away. Some fathers
do. At that time, most feminists viewed mother- really wanted custody. Most used the threat of a
hood as a forced and isolating experience—and custody battle as an economic bargaining chip.
they had a point. Some feminists misguidedly The threat was effective. It still is.
thought that women would be able to achieve
Back in the day, I interviewed hundreds
high-status careers if men were saddled with
of mothers, lawyers and mental health experts
child-rearing responsibilities—as if men could
both in North America and around the world. I
actually be forced to take on such tasks—and that
studied slave narratives and historical records. I
if women wanted equality in the workplace then
also did an original study in which I discovered
surely men were entitled to equality at home.
that “good enough” heterosexual mothers lost
Feminists confused maternal obligations with
custody 70 percent of the time and that lesbian
maternal rights. Women did not have maternal
mothers lost 82 percent of the time when they
rights—only obligation and most men did not
were challenged. And I documented certain
want to be obligated to the diaper-detail.
important trends for the first time. For example:
Although mothers still received no wages Violent husbands and incestuous fathers could
for their work at home and less than equal pay win custody; mothers who allege incest or who
for equal work outside the home; although most are being battered will not be protected but will,
fathers had yet to assume an equal share of home in fact, be custodially penalized as mentally ill and
and child care, divorced fathers began to campaign “alienating” parents.
for “equal rights” to sole custody; alimony and
Mainly, I found that most custody battles were
child support and for mandatory joint custody.
nightmarish ordeals which battered women and
The year 1979 was the year of Kramer children one more time. Most custodially em-
vs Kramer. After seven years of full-time “single” battled mothers were willing to bargain away all
mothering, Mrs. Kramer abandons her long-ab- economic rights and remain vulnerable to contin-
sent husband and young son. She returns eighteen ued verbal and physical abuse) in order to remain
months later, a well-dressed high-status executive, “in relationship” with their children. Despite some
who demands and receives courtroom custody. hard-working and well-intentioned lawyers, judges
and legislators, our legal and judicial system is hard
Mrs. Kramer’s victory was pure Hollywood
pressed to deliver true justice for anyone who is
fantasy. In reality, after years of absence, fathers,
not very wealthy.
not mothers, were returning to demand and win
visitation and custody. In reality, mothers, not While “good enough” fathering definitely

. Fa m i ly L aw: D i s o rd er in the Courts

exists it is different than “good enough” mother- Charles Schumer attended. Hand-picked moth-
ing. Most “good enough” fathers do not subject ers traveled from around the country to describe
their wives and children to harrowing custody their ordeals. It was a moving and well-covered
battles. I found that violent and exceptionally event—but it did not and could not really lead
misogynist fathers do so. Many such fathers are to any legislation. A gender-neutral presumption
authoritarian or they are “smother” fathers who of custody or a mandatory joint presumption of
wish to become their child’s Mommy, best buddy custody would hurt too many both traditional
or ward. (“Poor daddy needs me, I can’t leave stay-at-home and career mothers.
him.”) I described how some fathers brainwash
Then, together with Noreen Connell, then
children in divorce and custody battles in ways
President of NOW-NY State, we organized a
that many mothers simply cannot do. Mandatory
landmark Custody Speak-out, which was at-
joint custody as a panacea and as a hot button
tended by 500 people. Legislators, judges, lawyers,
issue was heating up as I wrote the book, as were
feminist activists and mental health professionals
issues such as mediation, equitable distribution,
all confirmed what the “good enough” Speak-
alimony or spousal support, and children’s rights.
out mothers said. Domestically violent and even
I addressed them all.
incestuous fathers can—and did—win custody;
While I wrote, I was also drawn into the very wealthy, absentee fathers and those with infer-
earliest high profile lesbian custody cases in Cali- tile second wives also can—and did win custody.
fornia, Colorado, and Illinois. The women and Women’s poverty, naiveté, and inability or refusal
their supporters were fiery feminists. The mothers to fight “dirty” all made the custody battle a hor-
were highly political. These cases drew enormous rendous ordeal. When women turned to men-
media coverage. In one instance, the judge would tal health professionals for support during such
not allow the mother’s supporters to sit in the prolonged battles, this was sometimes used to
courtroom. In another case, the media was barred. stigmatize them as mentally ill. The mothers who
The times were colorful, highly dramatic, and first spoke out (in NYC, then in Toronto) were
slightly crazy. incredibly brave and very moving. Demonstra-
tions took place outside the NY Speak-out. The
I published Mothers On Trial.The Battle for Chil-
New York Times covered the Speak-out twice.
dren and Custody early in 1986. It was both widely
praised and widely attacked by liberal and gender- The FBI also contacted me in 1986 to ques-
neutral feminists—and by Fathers Rights groups. I tion me about the whereabouts of a mother
was scorned as a “man-hater.” My statistics as well “gone missing” together with her sexually abused
as my motives were hotly challenged. daughters. Apparently, she disappeared after a
judge awarded her police-officer ex-husband cus-
In 1986, I put the book’s ideas into practice.
tody of his daughters. The FBI convened a Grand
First, I organized a Congressional press brief- Jury to question me—and had they not “captured
ing which now-Senators Barbara Boxer and the felon” I was ready to sit in jail rather than say

w w w. c a n o w. o r g .
 anything further. At the time, few mainstream the American Psychological Association. Drs.
feminists understood that my silence would have Lenore Walker, Geraldine Butts Stahly (one of
been a political act. the authors of this book), and I taught a one day
certificate training program about custody which
Indeed, some mothers had begun to run away.
was attended by experts from eleven states. We
They were almost always captured. Why did they
also presented a panel and speak-out that drew
run? Because when they alleged paternal child
250 APA members from 26 states. We talked to
sexual abuse custody was frequently flipped to the
other mental health professionals about what kind
fathers. In order to protect their children, mothers
of double standards to expect and how to handle
became “felons.” As the media began to glamor-
them.
ize the Underground Railway for mothers, more
feminists understood what was at stake—but Over the years, various grassroots attempts
many mothers also became more interested in were made by women and their male and female
appearing on television than in building a move- supporters, to support each other and to educate
ment for mother’s rights which would include civilians and legislators about what to expect.
challenging the judicial and legislative systems. Few groups lasted. Handbooks were created, but
mothers sometimes gave bad advice, like to by-
After Mothers on Trial came out, I continued to
pass expensive lawyers and represent themselves.
deliver lectures and do media interviews on the
The movement to protect mothers and children
subject. Desperate mothers also asked me to testify
in part has failed because the mothers got burned
in custody cases around the country. I did what I
out. The battle was always uphill and full-time
could. I often suggested that they have me work
and eventually women had to pay the bills. No
with local mental health professionals who had
foundations would seriously fund what would
connections to the sitting judges—a wiser course
amount to a mothers’ rights movement. At their
than bringing in a New York expert. Some of the
best, some groups publicly exposed the injustices,
mothers whom I interviewed became lawyers,
and supported individual women going through
paralegals and mental health professionals. Many
the court system. But, often, because they them-
specialized in family law. Some worked on educat-
selves were neither lawyers nor judges arguing
ing lawyers, judges and legislators or on supporting
the merits of the case, they were often seen as
other mothers in similar circumstance.
troublesome and difficult amateurs; there was
In 1988, I co-coordinated a press conference some truth to this perception.
in NYC in which mothers and children who had
In order to fully address the injustices well
lost each other in custody battles and through
documented in this collection of essays, the ap-
forced adoption spoke out. In 1989 I participated
proach must be multi-pronged. It must include
in a demonstration for Dr. Elizabeth Morgan in
fundraising; public education; lobbying; support
Washington D.C. In 1990, I participated in the
for individual mothers; the training of a cadre
first Task Force on Custody ever convened within
of anti-patriarchal professions, both women

. Fa m i ly L aw: D i s o rd er in the Courts

and men; persuading wealthy law firms to pro-
vide some pro bono services for cases in which
women are being battered and children molested
continuing to publish studies and books which
are accessible to ordinary women is also essential.

It is now almost thirty years since I began

my research into custody battles. Over the years
thousands of mothers have called and written
to me. They still do, asking for advice, referrals,
therapy and assistance. The need was and remains
enormous, the resources scant.

Now I can refer them to this very welcome

online book project. It may provide a lifeline to
individual mothers, children and their supporters,
and serve as a call to action. Let me congratulate
California NOW for doing this.

w w w. c a n o w. o r g .
 Introduction
By Helen Grieco, Rachel Allen
and Jennifer Friedlin

The National Organization for Women (NOW) is attention on the injustices women faced in family
the country’s largest and longest running women’s rights courts. In an effort for CA NOW to ascertain
organization. NOW is committed to fighting discrimi- how widespread the problems were, Grieco creat-
nation against women and girls, and ensuring their ed and posted a questionnaire on the CA NOW
equality in every aspect of society. NOW is structured website to collect information on individual
in chapters, and California NOW (CA NOW) is the cases. Rachel Allen joined CA NOW as public
largest chapter in the country, with 100,000 members relations director in 2001, and had worked on the
and donors. family law issue as president of the Marin County
NOW chapter for several years. In 2002, Allen
Imagine this: A mother endures years of
and Grieco (along with Sue DiPaolo and Elena
abuse at the hands of her husband. One day, her
Perez) analyzed the findings of the hundreds of
husband strikes the children or gets caught in
questionnaires submitted, and tried to answer the
the act of sexually abusing one of the kids, and
question of how and why so many women were
she decides she has got to break free. She files
being victimized by the courts. The end product
for custody, assuming she’s got an open and shut
was the “CA NOW Family Court Report, 2002,”
custody case. But the family court judge fails to
which presented findings from analysis of over
look at all the evidence and the professionals who
300 mothers’ cases. The report showed that per-
are supposed to evaluate the family ignore all the
fectly fit mothers were regularly losing custody
signposts of abuse. Eventually, the mother loses
of their children to less-than-fit fathers, and put
custody. In order to see her children, the mother
forth an explanation for why it was happening.
may have to pay for supervised visits or she may
lose all rights to her kids. No, you say, this can’t Analysis of the data rendered stunning sta-
be. Well, think again. tistics. We found that 76 percent of respondents’
cases involved allegations of some kind of abuse
In the 1990s, CA NOW started getting call
by the father and that in 69 percent of those cases
after call that fit this pattern. In fact, as then
the offender was given unsupervised contact or
president of CA NOW, Helen Grieco received
custody. Although conservative commentators
so many calls from desperate mothers that she
and right-wing fathers’ rights groups tried to dis-
formed a statewide task force to strategize how
credit the research by saying that the sample was
to best address the startling trend. Under Grieco’s
not representative of a larger problem, we knew
leadership, CA NOW proposed legislation, lob-
that the 300 cases we studied and their staggering
bied for statewide reform, called for investiga-
similarities exposed trends that were impossible
tions of court funding and worked to get public
to ignore.

. Fa m i ly L aw: D i s o rd er in the Courts

 This study and the calls we have continued to called for the overturning of the 19th amendment!
receive over the years from flabbergasted mothers They seek to abolish child support and to instate
have revealed that the courts are regularly ignor- automatic joint custody. Although fathers’ rights
ing evidence of child abuse and domestic violence advocates refer to “equality,” “equal access” and
when deciding contested custody cases. In ad- “shared parenting,” they are not fighting for joint
dition, we have documented a common pattern childcare responsibilities inside of marriage. In-
of gender bias, denial of due process, corruption, stead, the call from fathers’ rights groups for equal
fraud and reliance on unscientific labels to pathol- parenting turns up only after divorce, a transparent
ogize normal mothers. ploy to use rhetoric to reduce men’s financial obli-
gations to their children and their ex-wives and to
These women speak of judges who berate
maintain control over their families, even after the
them in court and dismiss crucial evidence;
marriage is legally dissolved.
attorneys who bail on them midway through
their case or who side with the father instead These groups have helped propagate bunk
of representing the interests of the children; and psychological syndromes like Parental Alienation
evaluators who decide they are unfit parents for a Syndrome (PAS), which is based on the un-
whole slew of often contradictory reasons. Evalu- founded “theory” that mothers regularly brainwash
ators have been known to support denying a their children to say that they have been abused by
woman custody because she: is “too close” to her their fathers. PAS is then used as a legal strategy to
children; breastfed her children for too long; did justify taking children from their mothers, while
not cooperate in giving unsupervised access to an subverting evidence of abuse by fathers. Fathers’
abusive father; works outside the home; doesn’t Rights groups claim that fathers are discriminated
work outside the home. We hear from mothers against in family courts, receiving custody of chil-
who walked into the court as the primary care- dren only a small percentage of the time. The truth
giver and protector of their children and walked is, however, that when fathers fight for custody,
out unable to even send the kids a birthday card they get it 50 to 70 percent of the time. Sadly, all
or talk to them on the phone. These mothers too often they get custody even when it is not in
often lose custody to men who have criminal re- the best interest of the child.
cords, histories of domestic violence and/or child
Meanwhile, the fathers’ rights movement has
abuse and substance abuse problems. Some of the
been gaining strength and legitimacy. Fatherhood
men have never even met their children.
groups are well funded, well organized and pub-
How can this happen? One of the roots of licly supported through conservative mouthpieces
the problem, we believe, stems from the activities in the media. In addition, the Bush Administration
and advocacy efforts of so-called Fathers’ Rights supports the so-called “responsible fatherhood”
groups. Connected to a larger right-wing ideology, agenda. Some organizations, such as the National
the movement for “fathers’ rights” rests on a belief Fatherhood Initiative receive millions of dollars
in unquestioned patriarchy – some have even from the federal government, much of which is

w w w. c a n o w. o r g .
 not accounted for in direct programming. Some crucial struggles to make law more gender free,
people suspect that a portion of the money may supportive of children and families, and economi-
even be used to litigate custody cases on behalf of cally just, must lead on.”
fathers. (For more about the history and activity of
One of the most amazing outcomes of this
the fathers’ rights movement, see the CA NOW
horrific situation is the steely determination of
Family Court Report at http://canow.org/fam-
the women who have been through the system to
law_report/famlawreport.php.)
change it. After losing their children, women from
Lest anyone reading this should draw the Delaware to Alaska have fought back in an ef-
conclusion that we are simply interested in bash- fort to change the system and to prevent the same
ing men, we are not. We are well aware that there thing from happening to other women. These
are many loving, caring fathers who are deeply women have written legislation, formed organiza-
concerned about doing right by their children. tions, started court watch programs, built websites,
We are also aware that these men rarely demand held conferences, organized demonstrations and
sole custody and the removal of the mother from protests and worked to get media exposure.
the child’s life. We have heard from many de-
A couple of years ago, after researching an ar-
cent men who are just as disturbed by the fam-
ticle about moms who turned their personal trag-
ily court’s treatment of women and children as
edies into political crusades, freelance journalist
we are. And, as you will see on the pages of this
Jennifer Friedlin suggested a project that would
book, some of these men have become our allies
highlight the work being done across the country
in the fight for justice in the legal system. The
to change the way custody decisions involving
problem we have been struggling with does not
allegations of abuse are made. This book is borne
have to do with these men; it has to do with the
of our mutual desire to underscore and applaud
abusive men who use the court system to contin-
the achievements of the mothers and the various
ue terrorizing their families. After all, what better
professionals who are working for justice.
way to further abuse a mother than by taking her
children from her? In this collection of essays, you will hear from
experts – from psychologists and legal experts to
As CA NOW took up this issue, we found
journalists and moms – who have been fighting
allies around the country who were just as con-
on the frontlines for mothers’ rights. Karen Ander-
cerned as we were. Although many media outlets
son turned her own personal struggle to protect
shied away from this complicated topic, media
her children from sexual abuse into a crusade on
stars like Dr. Phil were brave enough to speak
behalf of all mothers. Dr. Lundy Bancroft has been
out against what he called “America’s silent epi-
a fierce supporter of battered moms and now calls
demic.” Feminist icons like Gloria Steinem have
on these women to spearhead a mothers’ rights
weighed in, too, calling the crisis in the family
movement. Sharon Bass shares her insights on the
law courts an issue that “the women’s movement,
issue of court appointed evaluators and their far-
which provided leadership in past reforms and

10. Fa m i ly L aw: D i s o rd er in the Courts

reaching influence. Dr. Robert Geffner lends his We have found that lawyers and domestic
expertise on child sexual abuse and the ways it is violence agencies are always looking for more
treated in the family law arena. Retired judge Sol information that can help them serve their cli-
Gothard gives his perspective on the family courts ents, and we trust that this book will meet this
based on nearly fifty years of experience. Professor need. We believe that this book will also inspire
Mo Hannah explains her motivation for organiz- other women’s rights organizations to take up
ing the country’s leading conference on the issue this issue, and that it will give them the tools and
of battered women and custody. Karen Hartley- information they need to get started. Mostly, we
Nagle tells the story of her family law case and hope that this book will generate greater activism
how it inspired her to run for office on a family among people interested in righting the numer-
law platform. Paige Hodson turned her experience ous wrongs of the family court system.
in the courtroom into a battle for protective legis-
We know that this book is just one step in
lation – and won! The legal team of Kristen, Diane
the battle to reform the family court system.
and Charles Hofheimer offer advice to mothers
But CA NOW is committed to fighting for
on how to present their cases in court. Filmmaker
change until we win. Whether you are a parent,
Dominique Lasseur explains his motivation for
a psychologist, a lawyer, a judge, a journalist, an
making the groundbreaking film, “Breaking the
activist or a concerned citizen, we encourage
Silence.” Professor Garland Waller advises people on
you to get involved and to fight along side us as
ways to get media attention, and journalist Kristen
we work to ensure that our family court system
Lombardi explains the difficulties of reporting on
never again strips a fit parent of her parental
these issues. Professor Geraldine Stahly allowed
rights in favor of an abuser.
us to print her research on domestic violence and
custody, and blogger Trish Wilson makes a power-
ful argument against assumed joint custody.

This book will help explain how the courts

work and give any mother going through the
family court system some of the tools she will
need to protect herself and her children. And,
for mothers who may have lost their children,
we hope these essays will provide you links to
resources that may assist you in your effort to
regain custody of your kids. This book will not
replace good counsel and a strong support system,
but we hope it will provide you a greater under-
standing the issues, and that is may inspire you to
help join the movement for change.

w w w. c a n o w. o r g 11.
 Domestic Violence, What’s That?
One Woman’s Case and Her Fight
for Justice
By Karen Anderson

When I met my husband Don in 1985, I had I ended the relationship in 1993. The chil-
never heard the words ‘domestic violence’ and I dren of the marriage were two girls (ages 2 and
thought ‘red flags’ only flapped in the breeze at 4) and a boy, 7. When Don left, he said I wouldn’t
Bay Meadows. While I had heard the old adage, be able to make it without him and he promised
“If it sounds too good to be true, it probably is,” that he would see to it that I lost everything. It
I didn’t know that applied to people as well as was the only promise he ever kept.
advertising offers.
As is common, the abuse became more pro-
I was a single mom with 3 boys from a prior nounced at the time of separation, when Don
marriage that ended in a friendly divorce. Don realized he was losing control. He stalked me,
was extremely charming and convincing. He tried to run me off the road with the kids in the
knew how to say exactly what I wanted to hear. car, came to my home and picked fights with my
I was naive and believed him. It was a whirlwind sons, ripped out telephone and electrical lines,
romance, with 3 more children born into 8 years stole personal property, stole my mail, harassed
of what turned out to be a hellish marriage that me in public, verbally assaulted me in front of
was plagued with Don’s jealousy, obsessive con- the kids, etc. At the urging of a deputy sheriff, I
trol, and verbal and psychological abuse, including applied for a domestic violence restraining order,
threats of physical violence toward his step-chil- but the presiding judge ignored my petition.
dren. I feared for their safety and tried to “fix” the
In 1996, my daughters revealed that their
perpetrator with demands for counseling.
father was molesting them. One described a long
All the elements of domestic violence were history of vaginal and anal penetration, oral cop-
present in our home, but I didn’t know what ulation, and being shown child pornography as a
to call it or how to stop it. Marriage counsel- precursor to the assaults. The children’s disclosures
ing didn’t work. Counseling with his pastor only were supported by medical evidence of penetra-
increased my feeling of being trapped, as I was tion in one child, psychological reports, therapists’
consistently told that God would change my reports, a 12-year-old eyewitness to an incident
husband in “His time” if I would just be patient of molestation, and their brother’s disclosures
and have more faith. It was never suggested that about his father’s clandestine visits to his sisters’
there should be a higher value put on safety than bedrooms in the middle of the night.
on commitment.

12. Fa m i ly L aw: D i s o rd er in the Courts

 When Don became aware of the children’s of evidence that the children were molested by
allegations of sexual abuse he called the custody their father, and authorized the children to receive
evaluator (a psychologist appointed by the presid- benefits as crime victims. And several of the court
ing judge) who was known to enjoy a favored professionals associated with my case were disci-
position in the court system. This was the pivotal plined by State oversight agencies, fined, and/or
point in the litigation where the case was cor- fired for professional misconduct.
rupted. The evaluator responded to Don’s request
However, the biggest victory came when I
for help by soliciting the county-paid Family Law
got an unexpected phone call at work. It was
Facilitator to represent Don in family court and
from my son saying, “Mom, I’m home! I’m call-
use “parental alienation syndrome” (PAS) to attack
ing from your house. My stuff is all here. I’m
the children’s credibility.
finally home.” I was flooded with a feeling of eu-
Don’s attorney (the Family Law Facilitator) phoria, speechless, and breathless, I cried tears of
examined the evaluator on the witness stand. After joy. I knew he was home for good. Fed up with a
refusing to review the evidence of sexual abuse, system that refused to protect him, he packed up
he testified that the children and I were making and left his father’s house. When he returned to
up the abuse and this was a case of PAS “right my custody, he set out to rescue his sisters.
out of Richard Gardner’s textbooks.” He recom-
In an August 2005 hearing, a new court-ap-
mended that the children be put in their father’s
pointed custody investigator concluded a thor-
sole custody, so the judge switched custody, even
ough investigation of the case. In her report, the
though Don was under active criminal investiga-
investigator wrote: “There is compelling evidence
tion for felony child sexual abuse.
to support the conclusion that the children were
Since that horrible day when my children were molested by their Father,” and she criticized
put in the custody of their abusive father, I have court officials for “highly inappropriate alignment
fought relentlessly for justice and I have had some with the Father.” In making a recommendation,
successes. I suspected fraud in the court’s admin- she declared, “I would be negligent if I did not
istration of a federal child access grant that was ask that the Court give strong consideration to
designed to protect victims of family violence and placing the children in the sole custody of their
ensure that non-custodial parents had visitation Mother so that these children are protected…”
with their children. After I filed a complaint against Her recommendations were ignored. When the
the court for fraud, the court lost its $162,000 custody investigator gave sworn testimony in
child access grant. A new child protection law April 2006 that my daughters are being harmed
was passed because of my case and 2 others like in Don’s custody, the court still refused to transfer
it, Family Code §3027.5, created from the facts of custody back to me, even though Don is cur-
my case. The State Victims Compensation Board rently being criminally prosecuted by the district
conducted a new investigation of the allegations of attorney for violating custody orders.
molest, found that there is at least a preponderance

w w w. c a n o w. o r g 13.
 In my case, it seemed that the court rewarded pioneers in the field of child advocacy, and one
the law-breaking father for abusing his children we would turn into a household word in Califor-
and violating custody orders, and punished me, nia’s legislature and judiciary.
the law-abiding mother, with loss of my children
The turning point leading me into activism
for daring to ask for protection; a backlash pat-
came when I was invited to represent Califor-
tern of judicial vengeance routinely visited upon
nia protective moms at a press conference at the
protective mothers in family courts across the
Department of Justice’s Violence Against Women
nation.
Office in Washington, D.C. in May 1997. My
There are no words to describe the trauma of case had gained national attention because of the
losing children to their abuser, and being unable judge’s outrageous bias, marked by his vicious
to protect them as their minds, bodies, and souls courtroom demeanor, denigration of community
are assaulted. It causes pain that time cannot heal; members as “witch hunters” who clamored for the
pain that is so consuming, so deep, so intense, that protection of my children, and threats to finan-
feeling it literally takes my breath away. Waking cially sanction my attorneys and me $52,000 for
up each morning to the gut wrenching sense of “harassing” the court by bringing the children’s
loss is like facing the death of a loved one, every allegations of sexual abuse to the court’s attention.
day. Even when children finally come home and
When I arrived in Washington, I met 21
relationships are restored, the irretrievable years of
other women from around the country who had
childhood that were lost leave scars of grief that
lost custody of their children as a result of trying
cannot be ameliorated. How does one survive,
to protect them from abusive fathers. The press
cope, and make a meaningful life in the throes of
conference was a bittersweet union of wounded
such despair?
family court “war veterans,” each critically injured
Social injustice had never before touched by judicial malfeasance. There was a sad comfort
my life in a personal way. It had been more of a in knowing we were not alone.
concept extrapolated from books than a reality
Those of us present at the press conference
to me. Now I was staring it in the face. Through
networked, discussed legal and political strategies
attorney Seth Goldstein, several mothers who
and met with advocates, attorneys and other pro-
were facing the same roadblocks to protecting
fessionals who understood the root causes of the
their children found each other. Until I met these
backlash against protective parents. We exchanged
women, I thought my case was an isolated fluke. I
contact information and began working together
was shocked to hear other stories that were iden-
across the states, primarily by phone. Our contact
tical to my own, with only the names of the “bad
in the Department of Justice was Sarah Connell,
guys” changed. We met together in Fairfield, and
a bright young woman who had worked in the
began an organized effort in California to com-
domestic violence field. Sarah “got it.” She un-
bat the judicial attacks on “protective parents,”
derstood that abusive men were manipulating the
a largely unknown label coined years earlier by

14. Fa m i ly L aw: D i s o rd er in the Courts

courts to use custody litigation as an extension Once established, CPPA began a massive
of marital abuse. As the Violence Against Women public education campaign to expose the failure
Office was increasingly inundated with calls from of family courts to protect victims of domestic
mothers with cases like mine, Sarah became a violence and child abuse. In the infancy of CPPA,
point person in connecting us. we obtained a toll free phone line, which was
posted on “The Leeza Show” after a mom ap-
Back home in California, I began working
peared on the show to tell her story. We were
with other mothers who were victims of the fam-
immediately bombarded with calls. Over 200
ily court system. One of the moms, Josie Cohen,
distraught mothers called from the East Coast
developed breast cancer during her fight to protect
to the West Coast desperately seeking help to
her son, Jackson, who repeatedly disclosed sexual
rescue their children who had been judicially
abuse but was not protected by the family court
kidnapped. Their anguish at losing their children
despite multiple substantiations of the abuse by
was gut wrenching. These were all-American
experts at U.C. Davis Medical Center. After several
soccer moms who were totally devoted to their
years of court battles, and well over a million dol-
children. Most of them had not only lost custody,
lars in litigation costs, Jackson was finally returned
but were denied any meaningful contact with
to the custody of his mother – just in time to
their children, if any. All of them had been finan-
watch her die. After his mother’s death, Jackson
cially ravaged by litigation costs. The vast majority
was taken, kicking and screaming, by the physical
of these women were treated like criminals and
force of police officers from his grandmother to
“sentenced” to supervised visitation, for no other
the custody of his father. To this day Jack remains
reason than asking the family court to protect
isolated from all of his maternal family and friends,
their children from an abusive father. The gender
and even from his paternal grandmother who also
bias was so blatant and extreme that it sometimes
tried to protect him from his father.
jumped off the paper in court transcripts. Court
We who comprised the core group of protec- officials, especially custody evaluators, denigrated
tive parents vowed to Josie on her deathbed that and demeaned these women with negative ste-
we would carry on the fight to save her son and reotypical labels and traits while virtually ignor-
change the system that failed us all. This was the ing all evidence of abuse and praising the abusers
catalyst for the formation of California Protective for their “interest” in their children.
Parents Association, a non-profit child advocacy
We were overwhelmed by the response
organization. We created a board of directors and
and our upstart organization had little to of-
obtained a 501 (c) (3) tax exemption. Connie Val-
fer other than information and sympathy. What
entine became president of the organization and I
these moms needed were pro bono attorneys
became the director. With a small grant from the
and miracles. We created a database of the callers
California Health Care Foundation, we were off
and helped to hook up moms geographically to
and running as an official organization.
support each other. We traveled up and down the

w w w. c a n o w. o r g 15.
 state visiting California moms, collecting their sion to protect children in family courts. On our
relevant court documents, going to court with journeys, we found others who were fighting the
them and offering whatever help we could. same battle, gathered supporters and forged friend-
ships too numerous to mention.
The next logical step was to call on the
experts in gender discrimination, so we attended In our database we kept lists of the good and
a conference by the National Organization of bad court officials, child protective workers, at-
Women. There, we cornered Helen Grieco, then torneys and mental health providers so that new
president of California NOW, and explained what callers could know what to expect and how to
was going on in the family courts. Having sur- prepare themselves. We created a family court
vived domestic abuse at the hands of her father, events questionnaire and did a pilot study of 13
Helen was a quick study. She listened attentively California counties. This study showed a consis-
and gave us her word that she would do some- tent pattern of gender bias, due process violations
thing to help. Two years later, Helen established and ethics abuses in protective parent cases.
the CA NOW Family Law Task Force to address
While documenting cases we discovered ram-
the problem of gender bias against women in
pant “judicial terrorism”; mothers across America
the family court system. CPPA was a founding
were routinely being threatened by courts not to
member of the task force. Helen’s leadership and
speak publicly about the judicial abuses they were
unwavering commitment to our “cause” has been
suffering. Claiming publicity about the case was
a Godsend to women all over America.
harmful to the children, judges would incremen-
CPPA’s outreach motto was “suit up and show tally reduce whistleblowers’ child access, leaving
up.” We attended every event and conference we the children with no source of emotional support.
could find about family violence and the law, with As public outreach educators, however, the judi-
a primary focus on child sexual abuse. We read ciary had no power to censor our free speech. So,
and studied. We took all the same training court we became the voice of the muted, and took our
evaluators were required to take, and more, and we cause to the California State Capitol.
found experts to mentor us in the law and politics.
We quickly realized that it would require
As we developed expertise in the field, we were
radical measures to penetrate the formidable
invited to present at family violence conferences
power structure of a well-established, state funded
and press conferences. We testified before boards
system. By “thinking outside the box” Connie
of supervisors, the state bar, and at a Congressional
and I came up with a novel approach for inform-
hearing. We co-sponsored annual conferences on
ing legislators about the protective parent issue.
child sexual abuse and traveled to help organize
Knowing that legislators are inundated on a daily
protective parent groups in other states. We con-
basis with mounds of paper, we decided to do
tacted every advocacy organization and govern-
something different.
mental agency involved to any degree in protective
parent cases to plead for cooperation in our mis- Operating under the auspices of a loosely

16. Fa m i ly L aw: D i s o rd er in the Courts

formed collaborative organization, Mothers of ents for making lawful allegations of child sexual
Lost Children, we arrived at the capitol wearing abuse in family court litigation. On it’s heals came
yellow t-shirts, each with a photo on the front of Family Code’s §3110 – §3118, which set stan-
a child who had been placed in the custody of an dards for qualifications, training, and requirements
abuser and the caption: “Captive: Held Hostage of professionals conducting custody evaluations.
in the Custody of Abuser.” On the back of the
News of our organization’s work spread, and
T-shirt was a photo of the judge who endangered
we became the unofficial leaders of the protective
the child with the caption: “Wanted, Judge (who-
parent movement on the West Coast. We partnered
ever) To Be Held Accountable.” The case number
with the California Alliance Against Domestic
was printed immediately below the photo of the
Violence and several other organizations to present
judge, to give the appearance of a mug shot. The
recommendations to the (resistant) Judicial Coun-
T-shirts proved to be exactly what we needed.
cil. Together with Geraldine Stahly (whose work
Everywhere we went people stopped to ask what
appears in this collection), a professor at Califor-
the t-shirts were all about. A legislative aid even
nia State, San Bernadino, I worked to develop a
chased us down the hall to ask if we had an extra
standardized questionnaire to be used in protec-
t-shirt he could pin on the wall of his office. Each
tive parent research. Connie worked with attorney
week we went to the capitol and passed out a
Meera Fox of Child Abuse Solutions to develop a
flyer describing a horrific case where a child was
curriculum and template that Fox is using to train
endangered by the family court and naming the
mediators and evaluators.
“professionals” responsible for the court’s failure
to protect. Surprisingly, we made very few en- Despite the resounding noise and over-
emies and lots of friends. whelming amount of forward movement we had
made, it seemed from the continuing calls we
The rest is history, so to speak. With the in-
were getting to be having little impact on the
valuable help of Syrus Devers, Sheila Kuehl, Deb-
outcome of individual court cases. Judges were
ra Ortiz and the Legislative Coalition to Prevent
simply ignoring the new laws or re-writing them
Child Abuse, Senate Bill 792 was introduced in
from the bench to suit their own agendas. And
1999. This bill spawned a myriad of new statutes
some evaluators were too confused, lazy, or defi-
and rules designed to protect abused children and
ant to comply with the new laws. State oversight
their non-offending parents in family court litiga-
boards, where the foxes guard the hen houses, are
tion. The laws outlined how child custody me-
critically lax in disciplining the professionals they
diation and evaluations are to be conducted and
regulate. CPS across the nation seemed to have
imposed training requirements for those conduct-
adopted a “don’t bother investigating incest if a
ing them. On January 1, 2000, the first legislative
disclosure occurs during litigation” rule. And the
fruits of our labors were enacted through Family
mother-blaming mentality was still thriving.
Code §3027.5, a law that prohibits courts from
removing or restricting custodial rights from par- When my son Jeff escaped from his father and

w w w. c a n o w. o r g 17.
 came back to live with me, his father refused to Mother’s Custody Conference in Albany New
sign a stipulation to legalize his change of custody. York, which was featured in the October 2005
So, while I was in San Diego at a conference, Jeff PBS documentary, “Breaking the Silence: Chil-
wrote a 7-page declaration to the court describ- dren’s Stories.”
ing the years of trauma and abuse he endured in
The remarkable strength and bravery of the
the custody of his father. At the end of his decla-
Courageous Kids in sharing their traumas and
ration, he wrote, “This is what I have been dying
triumphs in the litigation vortex that robbed them
to say for 7 years.” After reading these words, it
of their childhoods is an inspiration to all who are
occurred to me that the kids we advocated for
privileged to hear them.While battered and bruised
might benefit from the support of peers in similar
by the system, forced to grow up far too soon,
situations, and a forum to talk about their experi-
plagued by memories of fear, loneliness, and oppres-
ences. So we organized a place for them to meet
sion, these children decided to step up to the plate
together.
and advocate for other kids still trapped in the cus-
Sitting around a dining room table, the kids tody of abusers. May God bless these angels unaware
shared their stories with a candor that amazed me. for the amazing thing they have done.
They instantly bonded and the transformation of
So what lies ahead for California Protective
their spirits, from cautious shyness to committed
Parents Association and the Courageous Kids? The
camaraderie was phenomenal. They decided to
momentum of the family court reform move-
form The Courageous Kids Network (CKN.)
ment has taken flight, literally. Jeff and another
In April 2004, the kids publicly presented Courageous Kid flew to New York to present at
their stories at the 9th Annual Child Sexual a judicial conference for judges in the 9th judicial
Abuse Awareness Conference in Davis, Califor- district on May 16, 2006, marking what we believe
nia. A few months later, the kids were invited to is a historical day in America. To anyone’s knowl-
speak at the main plenary event of the 9th Inter- edge, the direct voices of the kids whose lives were
national Conference on Family Violence in San shattered by dysfunctional family courts had never
Diego. The kids gave victim impact statements been heard at a judicial conference.
that brought a crowd of 1,500 to tears. The re-
As for the ground level work of California
sounding applause went on for a very long time.
Protective Parents Association, our vision is to
Later in the day, the kids conducted a workshop
collaborate on the initiation of a federal criminal
where they told their stories in detail to a packed
investigation and financial audit of specific family
room of professionals stunned by the blatant
courts/programs, develop a court watch program
violations of their human rights. News of the
for family violence cases, provide quality legal
Courageous Kids’ testimonies spread throughout
representation for children in protective par-
family violence circles. Finally, the voices of the
ent cases to ensure the children’s physical safety,
children were being heard, and in January 2005,
and realize the creation of a non governmental
the Courageous Kids presented at the Battered

18. Fa m i ly L aw: D i s o rd er in the Courts

Crimes Against Children Citizen Oversight Panel
with the statutory authority to correct danger-
ous custody placements. We have some good laws.
But when they are not implemented the way
the legislature intended, we have bad decisions
in courtrooms. Therefore, our ultimate goal is to
abolish absolute judicial immunity through public
initiative law. We believe no one, especially those
paid with the citizens’ tax dollars, should be abso-
lutely immune from liability for violating the law
or negligently endangering a child. We will go
forward, with the help and support of our allies,
and the hopeful words of Martin Luther King:
“When people get caught up with that which is
right and they are willing to sacrifice for it, there
is no stopping short of victory.”

You can go to courtcrimes.com to read the

details of my case and view evidentiary documents.

w w w. c a n o w. o r g 19.
 Making a Mothers’ Movement
By Lundy Bancroft

There is no love deeper, more complete and father while the protective parent is usually the
more vulnerable than the love that caring par- mother. We don’t know that much about what
ents feel for their children. There is a bond so happens to protective fathers, since their cases are
strong that it can be hard to tell exactly where so much less common, but we know that protec-
the parent ends and the child begins, and the line tive mothers frequently encounter a system that is
is even harder to draw when our children are insensitive, ignorant about the dynamics of abuse,
very young. Mothers have an additional bond and biased against women, so that mothers some-
from having carried their children inside of their times find themselves being forbidden by the court
bodies and having given birth to them, and more from protecting their children from a violent, cruel
than half of mothers have experienced a deep- or sexually abusive father. And this outcome is a
ened attachment through breast-feeding their tragic one, for children and for their mothers.
babies. And mothers are, in the great majority of
Through the book that you are now reading,
cases, their children’s primary caretakers, espe-
we are hoping to communicate to you our caring
cially during their early years. All connections
and solidarity with the challenging road you have
between caring, non-abusive parents and their
ahead of you, as you fight to keep your children
children are so important as to be almost sacred,
safe in body and soul. We want to let you know
but there is usually a particular quality to the
how critically important we believe that project
mother-child bond. That life-giving and sustain-
to be, and how much your children need you to
ing connection deserves the full support and
stand up for their rights and their well-being.You
admiration of communities and nations.
deserve admiration, not criticism, for the coura-
And just as there is a special beauty and im- geous risks you are taking on their behalf, and for
portance to relationships between mothers and your determination that all of you should have
their children, there is a special and extraordinary the opportunity to live in freedom and kindness.
cruelty in the abusive man who attempts to break
Our society is currently giving mothers a
or weaken the mother-child bond, whether by
powerful and crazy-making mixed message. First,
turning children against their mother, by harming
it says to mothers, “If your children’s father is
the children physically, sexually or psychologically,
violent or abusive to you or to your children, you
or by attempting to take custody of the children
should leave him in order to keep your children
away from her.
from being exposed to his behavior.” But then, if
Children need protection from their abusive the mother does leave, the society many times ap-
parents. In the realm of custody litigation that pears to do an abrupt about-face, and say, “Now
involves abuse, the abusive parent tends to be the that you are spilt up from your abusive partner,

20. Fa m i ly L aw: D i s o rd er in the Courts

you must expose your children to him. Only now connecting them to healthy relatives, and teaching
you must send them alone with him, without you them to think critically and independently, so that
even being around any more to keep an eye on they become strong children who see through the
whether they are okay.” abuse and manipulation.

What do we want? Do we want mothers to There is no formula that works for everyone.
protect their children from abusers, or don’t we? What strategies will work best for you depends on
what your local court system is like, how much
The sad result of this double-bind is that many
support you are receiving from friends and rela-
mothers who take entirely appropriate steps to
tives, how much internal strength your children
protect their children from exposure to abuse are
have, and how much (or how little) damage the
being insulted by court personnel, harshly and
abuser has already succeeded in doing to your
unethically criticized and ridiculed in custody
relationships with your children. And each abuser
evaluations and psychological assessments, and
is different. Some, for example, can be placated if
required to send their children into unsupervised
they feel like they have won, and will gradually
contact or even custody with their abusive fathers.
drift off, while others will never be satisfied with
And sometimes these rulings are coming in the
anything less than completely alienating children
face of overwhelming evidence that the children
from their mother. Lawyers can advise you on
have both witnessed abuse and suffered it directly,
court strategy, therapists can share their insight into
evidence that would convince any reasonable and
children’s injuries and healing processes, but ulti-
unbiased person that the children were in urgent
mately you have to rely most on your own judg-
need of protection. Family courts across the US
ment, because you are the only expert on the full
and Canada appear to be guilty day in and day out
complexities of you specific situation.
of reckless endangerment of children.
As you make your way ahead, I hope you
Fortunately, there are also many women who
will put a high priority on taking good care of
do succeed in keeping their children safe post-
yourself. Seek out kind, supportive people who
separation. Some manage to persuade judges to
are good listeners. Nurture your friendships and
grant the mother appropriate right to keep her
family relationships. Try to step through the
children safe. Others lost in the early stages but
stress long enough each day to spend some time
do better later, as the abuser finally starts to show
showering your children with love if they are
his true colors over time. Some women find that
with you, and make sure to play with them, not
the succeed best by staying out of court, and using
just look after their needs. Notice what you have
other methods to protect their children, such as
already done well, as a parent and as an advocate
waiting for the abuser to lose interest and drop out,
for your children. Give yourself credit for your
or moving some distance away so that he will tire.
own strength, and celebrate the fact that your
Some women find that what works best is to focus
mind is getting free of the abuse, even if your
on involving their children in supportive services,
children are not free yet. Cry out your sorrows

w w w. c a n o w. o r g 21.
 when you need to, sob into a pillow behind a efforts is not necessarily separate from personal
closed door so you won’t upset your children, healing. Many women have found that when they
but do sob, because your heart needs the cleans- become active in the protective parents movement,
ing relief of those tears. And then build on your raising their voices loudly for the custody rights of
strengths and accomplishments to keep fighting. mothers who have been battered or whose chil-
dren have been sexually abused, their own healing
I wish the “justice system” dispensed justice,
leaps forward. Breaking down personal isolation
but where it comes to child custody litigation
sometimes goes hand in hand with breaking down
involving abusive fathers, outcomes are mixed at
political isolation. So this book will not only sug-
best. With adequate knowledge and planning, and
gest ways to carry on your own fight, but will offer
especially if you are among the fortunate mothers
you avenues to join forces with other women (and
who are able to obtain competent legal representa-
male allies) who are working for social justice, so
tion from a lawyer who understands what abusers
that protective mothers and their children can stop
are like as parents, you may be able to keep your
being torn apart.
children on the path to healing. If your case goes
poorly, there are still ways that you can help your I want to express my personal gratitude to
children feel your love and support surrounding you for your efforts to protect your children from
them, and give them the strength to survive their abuse, and to raise them into caring, kind, hu-
father’s destructiveness. But regardless of the out- mane values. The whole world benefits when you
come you experience personally, you might want fight for your children’s rights and their freedom.
to keep the following points in mind: Protective mothers are some of our society’s most
invisible and most important heroes.
1. The custody system in the US and Cana-
da is broken.You are not the only person
who has experienced unhealthy and bi-
ased responses, and you are not the crazy,
paranoid, vindictive person they may be
painting you as.

2. Other women need your help to change

that system, so that protective mothers
start receiving proper respects for their
rights and their children’s rights.

Depending on where your own case stands

currently, you may have trouble imagining any
involvements right now beyond your day-to-day
survival, and your efforts to keep your children
functioning. But involvement in social change

22. Fa m i ly L aw: D i s o rd er in the Courts

“Turning a Personal Battle into a
Political Crusade,” an Interview with
Karen Hartley-Nagle
Karen Hartley-Nagle has spent years fighting tion once every two weeks. I had hoped that after
her ex-husband for custody of her children. She I signed the agreement I would be able to find
invested tens of thousands of dollars in legal fees an attorney to help me regain primary custody
and years in and out of Delaware courtrooms, of my children. I must have gone to 50 attorneys
fighting to keep her kids. When all of her efforts in my state and in Pennsylvania, but they all told
failed, Hartley-Nagle boned up on the law and me that it would cost me at least $100,000. I was
kept on plugging. She even turned her tragedy so desperate I tried to gamble to get the money
into a bid for public office. for an attorney. Luckily, I broke even, but I do not
recommend this as a strategy.
When did you hit your lowest point?
In the first three custody battles, my ex-hus- While all this was going on, I was paying $125
band and I were given joint custody of our three for each supervised visit with my kids twice a
children and I had primary placement. Then, in month for one hour. I paid for this service for three
November 2002 my ex took me to court for months, but then I ran out of money and I could no
a fourth time. Up until that point I had spent longer afford to see my kids.There was a period of
$86,000 on lawyers’ fees and ten days before the one year when I didn’t see them. I was devastated. I
hearing my lawyers wanted another $40,000. felt I had no power to do anything about the situ-
I was totally broke and could not afford this. I ation. I thought my kids were gone forever. It was
asked for a continuance but it was denied. such an Alice in Wonderland scenario.

Right before the hearing, the guardian ad Once I realized I was on my own, I filed a
litem handed me a document and said, “If you handwritten motion to modify custody and I
don’t sign this, the kids are either going with your thought I could go into the court and tell the
ex or to foster care or I may recommend to the judge my story and he would return my kids. But
judge that you don’t see them at all.” I know now then all the judges in my county recused them-
that she did not have the legal authority to do selves and my case was sent to another county. It
this, but at the time I was scared and didn’t know took me a year and a half to finally get into court.
what to do, so I signed the document. I couldn’t stand the waiting and that’s when I said
the heck with it and I started to take action.
The document I signed gave my ex husband
primary placement and final decision-making au- What did you do?
thority. I was given supervised therapeutic visita- I wrote a 17-page letter about what had hap-
pened to me and sent about 200 copies to any-

w w w. c a n o w. o r g 23.
 one I thought would have had an interest in my case. By the time Mike finished investigating my
case. The letter was extremely long and I wasn’t case, they both believed me and backed me.
getting far. But writing and sending this letter
By nature, I am really shy and introverted, but
helped me to start speaking about my problem
Mike and Frank told me that I had to speak out.
and the issue in general and this taught me to be
I still feel ill when I do this. In 2004, they nomi-
more concise and clear. It was also therapeutic.
nated me to run for state senate. They said you’re
I also began sending information about my going to speak out and help kids and parents
case to state legislators along with studies that like you. Although I had never given a speech, I
supported what I was saying. This empowered me decided to run on the platform of changing the
to realize that I could do my own research and family court system. My democrat and repub-
find support for what I was saying. I complained lican opponents each spent $100,000 on their
to my legislators, saying that it was extortion for campaigns and I had $100 to spend. But I gained
the state to demand that mothers pay to see their confidence and learned how to work the media
kids without a hearing finding them unfit.You and create a buzz. For instance, when my cam-
can’t keep moms from seeing kids because they paign signs were stolen, I held a press conference
can’t afford to pay a therapist. about my signs being the most coveted signs in
the campaign. I lost, but I learned a great deal and
I also started figuring out what I would need
I also saw some positive changes.
to do to represent myself pro se. I started studying
the law, family law and case law. I started realiz- What changes have you seen?
ing how many of my rights were violated, and I
In addition to losing my kids, I had also been
thought this is just not right.
ordered to pay child support, which was ridicu-
I also discovered that I could not just go to lous because I didn’t have a job or resources. In
the judge, tell my story and expect a positive any case, when I failed to pay child support, the
outcome. I learned I needed to state the problem, state took my driver’s license away, which was
show evidence that backed what I was saying and crazy, because how are you supposed to get to a
then ask for the resolution I wanted that con- job if you don’t have a license! I lobbied our state
formed to Delaware’s state statutes. legislature and the law was changed. It no longer
permits the state to take away a person’s driver’s
What led to your run for office?
license for failing to pay child support. We also
Through my outreach efforts, I met the have a bill before the state legislature that would
person at the head of the Independent Party in strengthen the laws against child molesters.
March 2004. He introduced me to Frank Infante
Where do things in your case stand now?
and Michael Dore, who were then running for
governor and lieutenant governor, respectively. At my last hearing in 2004, I failed to regain
Frank assigned Mike to do the research into my custody of my kids. The judge excluded all the
evidence that had been admitted in the hearings

24. Fa m i ly L aw: D i s o rd er in the Courts

that took place before I was coerced into signing But three months ago I was told by my ex’s
the agreement that turned custody over to my ex. attorney, first through a therapist and then in
There was no mention of domestic violence. writing, that if I didn’t drop the Supreme Court
case, my ex wouldn’t allow me to see my kids.
I then appealed to the Supreme Court. Luck-
I refused to drop the case and he will not allow
ily, an attorney who had heard of me helped me
me to see my kids. He said he’s not going to until
to write my Supreme Court brief. The Supreme
the litigation is over. The only pending litiga-
Court agreed to hear the case. My case was re-
tion is the Supreme Court case in which I won
versed and remanded for a new hearing in Family
a reversal. So, here we have a situation where I’m
Court on the issue of coercion and duress.
complying with the order and my ex is trying to
My case is still before the Supreme Court coerce me into dropping my coercion case!
and I am now representing myself. I am asking
I put out a press release two days before my
them to find that the guardian ad litem, my ex
hearing, including all these details, and Chan-
spouse, his attorney and the mental health official
nel 47, a local television station, showed up. They
coerced me into signing the agreement that gave
reported the case on the evening news. What’s
my ex-husband sole custody. If the panel of three
interesting is, if the court is open, the media can
judges agrees that I was coerced into signing the
come in and they can’t be sued because they are
agreement, then I will be allowed to have pri-
reporting on testimony they have heard. It’s no
mary placement of my kids. If not, I don’t know
more “he said/she said.”
what will happen.
I don’t know if the coverage helped me, but it
You also petitioned to have your case heard
brought these important issues to the public’s at-
before an open court and won. How did
tention. In addition, two other people showed up
this happen?
who have their own cases pending, and I think
When my case went to Supreme Court, I being able to witness such a proceeding helped
made a motion to have the court opened. The them to understand how these procedures go.
judge agreed and I was extremely surprised. I Many protective parents wind up in court and
think he agreed to this because I ran for office on have no idea what to expect. Knowing what to
the open court issue. expect provides a measure of comfort.
What has been the result of having the case What is next on your activist agenda?
before an open court?
I started the Nagle Foundation, a not-for-
When I started running for office, people
profit, 501(c)(4) organization. The foundation’s
started to want to help me and I found a thera-
goal is to promote children’s rights and combat
pist who offered to do the visitations for free.
child abuse and domestic violence. We are plan-
This meant that after a year I was able to see
ning to do this by bringing experts together to
my kids again.
discuss these issues among themselves and with

w w w. c a n o w. o r g 25.
 the media, as well as lobbying activities, and pub- emotions in check: If you show all the anger you
lic education. feel inside or get upset, the judge may not be as
receptive to the information you need him/her
In addition, I also decided to run for Con-
to hear to present you case.
gress in 2006. I’ll be running as a “fusion” candi-
date, on both the Democratic and Independent Back up your case: I learned that you don’t
tickets, because I don’t want to be confined and make any statements you can’t support with
restrained from speaking about transparency and documents or witnesses, because the other at-
accountability in government, including the fam- torneys will hold you accountable and will make
ily court system. it appear as if you made up incidents that you
know to be facts. They may tell the judge that
What lessons would you like to pass along to
you don’t see reality. So I learned to present
other protective parents enmeshed in the family
only information that you can prove with docu-
court system?
mentation and records.
Don’t blame yourself:You need to know this
Reach out to other people: Contact activists
isn’t just happening to you. Bad things happen
and politicians who may be sympathetic to your
to good people.
case.You will be surprised at the people who may
Don’t be passive: At first I thought that if I respond to you.
was quiet and went along with whatever I was
Learn how to address politicians and the me-
asked to do this awful situation would get recti-
dia: If you want to alert media about something
fied. But I was wrong. At first it’s hard to act,
that is happening in your case, be very specific.
because your fear of retaliation. But keep at it.
Put out a press release for a public hearing about
The more you learn and the more you fight back,
a particular issue related to your case and make
the easier it gets.
it open to the public. Then the paper may post a
Know the law and your rights inside and out: notice about your hearing. That’s the way to get
My ex had been convicted of domestic violence your message out and to identify people with the
and he had been declared the perpetrator of do- same issue as you.
mestic violence. In Delaware there is a presump-
Once you have amassed a group of people,
tion against perpetrators getting primary place-
you can go to your local politicians and demon-
ment for custody, but neither the judge nor the
strate that it’s not just about you.
guardian ad litem followed the rule. I didn’t know
the law when I signed the document relinquish- Timing is everything: When you issue a press
ing custody of my kids. Had I known then what release, do it on a Monday or a Tuesday, typi-
I know now, things might have turned out very cally slow news days in many areas. Friday’s when
differently. people are anxious to get home for the weekend
I have found are not as effective.
When you go before a judge, keep your

26. Fa m i ly L aw: D i s o rd er in the Courts

 Use radio talk shows to get your message out:
Radio talk shows are a great vehicle for getting
your message out. They are not censored.You can
call in and say, “This relates to something I am
dealing with….” But you better be ready with a
good sound bite.You need to know exactly what
you want to convey to the public and be able to
get your message across quickly and clearly. Of-
fer the problem and what you see as a potential
solution. The same is true when you approach a
journalist or a legislator.

w w w. c a n o w. o r g 27.
 The Power of One in Alaska
By Paige Hodson

“Never doubt that a small group of thoughtful, committed citizens

can change the world. Indeed, it’s the only thing that ever has.”
- Margaret Mead
During one of the last evenings of the Alaska My life experience had not always been this
Legislature’s 2004 session, I paced the halls of the rewarding.
state capitol. I had put in two years of hard work
I am many things – a mother of two children,
crafting a bill that would make it more difficult for
a court-appointed special advocate for abused and
domestic violence and child abuse perpetrators to
neglected children, a three-term PTA president,
obtain unsupervised visitation rights and custody
a small-business owner, a community volunteer,
of their children. After unanimous votes at every
a runner, a skier, a daughter and a sister. But I am
level of the legislative process, we were now hours
also a domestic violence survivor who worked
away from finding out whether Alaska House Bill
hard to make sure that the court would act in the
385 would get to the Senate floor for the final
best interests of me and my children and limit my
vote. Last-minute politics by a powerful senator
abusive ex-husband’s contact with them.
who purported to believe there was an epidemic
of false allegations of domestic violence had I met my ex-husband on a blind date. Initially,
thrown a wrench into what had previously been a he was very charming and attentive, but as the re-
smooth process for this important bill. lationship progressed his bad temper, impatience
and manipulative behaviors slowly emerged. After
At last, the behind-the-scenes wrangling
we were married, the charm disappeared and I
resolved and the bill was finally allowed onto the
found myself locked in a union with a man who
floor. At 12:43 a.m. on May 11, 2004, I sat in the
was verbally and emotionally abusive. About one
gallery and watched the tally board light up as
to two times a year, my ex would take the abuse
each of the state senators voted “Aye.” I wanted to
up a notch and push me or spit on me.
pump my fist in the air and shout, “Yes!” Instead,
I silently beamed, shed a tear of gratitude and Eight years ago, my husband, kids and I were
breathed a huge sigh of relief. HB 385 passed the on vacation in Hawaii. I had been granted 30
Senate with a vote of 18-0. The House voted in minutes of freedom to go for a jog. He said he was
concurrence on the same day and the bill became going to take the children downstairs and play in
effective as law on July 1, 2004. Finally, abused the pool. When I returned, I found our six-year-
women and children had more tools available to old daughter fully dressed, sitting on the couch
give them better access to safety. It was a wonder- reading. The baby was crawling around unattended,
ful victory for protective parents all over the state.

28. Fa m i ly L aw: D i s o rd er in the Courts

and my spouse was in the next room with the rified me most of all. My children were the prima-
door closed. My daughter told me her father had ry reason I had the strength and courage to leave.
put her in an hour time-out for refusing to swim
Although I believed my husband would say
after her inflatable toy boat had blown away (she
or do anything to prove me an unfit mother, I
couldn’t swim in deep water). Disappointed in his
thought at the time that he would not stand a
lack of appropriate parenting techniques, but cer-
chance of getting custody of the kids. After all, I
tainly not surprised, I just said, “Oh,” and turned
was doing the right thing. According to all the
my back to go to the kitchenette for some water.
brochures and public service announcements
My husband came out of the next room scream-
about domestic violence, women must get out of
ing and swearing at me. He grabbed my arm and
abusive relationships if they want to protect their
dragged me into the next room.
children from the violence and its long-term ef-
At that moment, I decided I had had enough. fects. Research studies have consistently shown
I had stayed with him because I believed that that children who witness violence suffer a wide
“children need their fathers” and “marriage is for- range of short and long-term emotional and
ever.” But I realized that my kids and I deserved behavioral problems. These children are at higher
a better, safer life. Upon returning to Anchor- risk for psychosomatic disorders, anxiety, sleep
age, he asked me if I was going to divorce him. disruption, excessive crying, problems in school,
I said, “Yes.” From that point on, I was subjected drug and alcohol abuse, sexual acting out, run-
to hours of verbal abuse. His main theme was, ning away and even suicide. Boys who experience
“If you leave, I’ll say or do anything to prove you abuse are more likely to inflict severe violence as
an unfit mother, and if I can’t, you will never see adults. And girls who witness abuse may tolerate
those kids again.” He told me he would tell the abuse as adults.
judge that I was an adulterer, a lesbian, promiscu-
As I quickly learned, however, there is a big
ous, abusive of our children and him, an alcoholic,
disconnect between what we hear and read in so-
suicidal and mentally ill. All these statements were
ciety and how the family court system conforms
complete fabrications, but the truth had never
to these messages. While the research seems to
stopped him before. He also told me that he had
indicate that the best thing for kids is to eliminate
“connections” through his Siberian hunting and
their exposure to violence and abuse, the family
guiding business and that they could help he and
court system often prevents protective parents,
the kids disappear.
particularly when they are the moms, from trying
The thought of my kids disappearing struck to do just that. And, many family judges, working
more fear in me than anything else I had faced on the presumption that joint custody or expo-
or knew I would face as I struggled to leave this sure to both parents is best, fail to account for the
11-year abusive marriage. Although I was afraid need to limit a child’s exposure to abusive behav-
of physical harm and financial devastation in my ior. In my experience, misogynistic attitudes also
choice to leave, his threats to take the children ter- greatly affect efforts to protect children. Upon

w w w. c a n o w. o r g 29.
 filing for divorce, I quickly became re-victimized indicating that he felt it had nothing to do with
by the system, which discounted my reports of the kids. The judge left the case open in a fashion,
abuse. Because of my concerns about joint legal saying that he was ordering us into individual and
and shared physical custody I was characterized co-parenting counseling and that he was strongly
as being “uncooperative,” “hostile,” “unfriendly,” considering my ex’s request for 50/50 custody. If
“alienating” and “mentally ill.” the arrangement wasn’t working, he wanted the
co-parenting counselor to tell him who they felt
My former spouse made good on a num-
was “at fault,” and implied that that person would
ber of his threats. He answered my petition for
then lose custody altogether.
divorce at first with a request for 50/50 legal and
physical custody of the children. It took nearly At the second trial a year later I won sole le-
two years just to get to trial. Up until the trial, we gal and primary physical custody. My ex got three
had a custody investigator on the case who had weekends out of every four and half of the sum-
put herself in the dual role as mediator. She con- mer. The judge was beginning to acknowledge
tinually pressured me to give my ex more time the deteriorating relationship between my ex and
with the kids, implying that if I didn’t she would my daughter and started to assign at least some
look harshly upon me in her final decision. At of the blame to my ex’s behavior rather than to
one point when my ex forced his way into my me. Finally, at the modification trial another year
home, she intimidated me and my attorney not to or so later, my ex’s visits were reduced to every
file for a restraining order. She regularly ignored other weekend, but he still gets half of the sum-
signs that my ex was abusing the kids. One time mer.
the baby came home with a black eye; on other
After three full custody trials, I was finally
occasions the baby would be returned home
awarded sole legal custody, but even this proved
badly dehydrated, unfed or with a diaper rash so
to be only a paper token given the judge’s deci-
bad he was raw and bleeding. When overnight
sion to maintain a liberal visitation schedule. The
visits began close to trial time, my eldest kicked
judge also assigned my former husband full au-
and screamed all the way to her dad’s.
thority over my daughter’s therapeutic treatment.
In the first custody trial my ex succeeded Three years later, my ex-husband has never taken
in getting joint legal custody and visitation for my daughter to therapy, mainly, I believe, because
forty percent of the time. He got this because the he does not want her to disclose the violence.
judge bought into his claims that I was alienat-
Although I successfully removed myself from
ing my children from him and the judge wanted
face-to-face contact with my former husband,
to give my ex as much time as possible to “ne-
he continues to exercise his power through his
gate” my influence on the children. The judge
treatment of the children. My daughter says the
acknowledged one incident of domestic violence
only way she copes with the visits is by “going to
that was witnessed by my mother, but basically
another place in her head” when the abuse be-
downplayed it as well as the rest of the abuse,

30. Fa m i ly L aw: D i s o rd er in the Courts

gins. My younger son tells me he tries to imagine “It’s a communication problem.”
he is not there or hides behind furniture to make
“It wasn’t abuse, it was a difference in parenting
himself as unnoticeable as possible. The children
styles.”
tell me about their father’s cruel behavior in the
home and yet there is nothing I can do to pre- “Everyone is nuts in custody cases.”
vent them from being exposed to it. “Mother Theresa doesn’t marry Jack the Ripper.”
As awful as this ordeal continues to be, one “They are in a toxic dance.”
of the best things to come from it was the energy
“It takes 2 to Tango.”
I was able to muster to fight back. The seeds of
my activism were born as I sat in that Anchorage “Boys will be boys.”
courtroom at my first trial. I could feel the anger
“Men’s parenting behaviors shouldn’t be
swell within me as the judge chastised me and
scrutinized.”
threatened to give full custody to my ex-husband
because I did not believe 50/50 shared physical “Lets give the ‘disadvantaged parent’ as much
custody was appropriate for a nursing infant and visitation time as possible to ‘cure’ the relationship.”
a seven-year-old who were witnesses of domestic “He seems so ‘nice.’”
violence and direct victims of their father’s abuses.
I also learned that many women stay in abusive
I vowed then and there that as soon as I was in a
relationships in Alaska because their abusers threat-
place of relative safety, both personal and legal, I
ened to take their children if they left. Attorneys
would fight back.
even told some victims of domestic violence that
Over the course of my time in the family they should not mention abuse for fear of angering
court system I grew to realize that my experience the court. Many women were told that they could
was not an isolated instance, but rather a reflec- not hope for anything better than 50/50 custody.
tion of a pervasive pattern in Alaska and across One mother told me, “If I stay, I can protect my
the country. Many of the things I heard court daughter 100 percent of the time. If I leave, I may
personnel say about domestic abuse further con- not be able to protect her even half the time.” And
vinced me of the need to change the system and so the mother stays.
people’s mindsets. I regularly heard people work-
These attitudes and misunderstandings about
ing in the Alaska Court System utter such idiotic
the destructiveness of giving abusers custody
statements as:
rights have affected Alaskan families across our
“I know he abused you, but what does that have to state and have resulted in a great deal of violence
do with his parenting? “ and several deaths. For example:
“It couldn’t have been that bad, she stayed, she • Abused mom in Kenai lost custody of
never called the police.” her children because the judge felt she

w w w. c a n o w. o r g 31.
 had emotionally harmed the children by • An Anchorage mom who was hospitalized
taking them to a shelter. She went to the because her ex beat her when she left him
shelter because her battering spouse had was forced to send her kindergartner off for
threatened to kill her and the children. unsupervised weeklong visits.This man also
had a criminal record for cocaine dealing,
• A mom in Skagway lost custody because
assault with a deadly weapon and arson.
she refused overnight visitation after her
The custody evaluator in that case told the
four-year-old daughter was given alcohol
mom that his abusive behavior had nothing
and was sexually molested by her father.
to do with his parenting.
The court refused to provide adequate
supervision even after the local child pro- After learning about all these other cases
tective service and the child’s psychologist and living through my own drama, I began my
independently verified the abuse charges. efforts as an activist. The first thing I did was to
look closely at the existing statutes. I learned that
• A mother in Fairbanks died from 56 stab
many of our statutes supported joint custody and
wounds during a visitation exchange. The
I found several areas in the statutes that worked
father had unsupervised overnight visi-
to disadvantage and penalize victims of domestic
tation with his five-year-old child who
violence and their children. For example, domes-
witnessed his mother’s death. During that
tic violence was just one factor in a laundry list of
custody trial, the judge admonished the
things the judges had to consider when deciding
mother to be flexible and “co-parent,” de-
custody cases; it carried no extra weight. Judges
spite having been beaten, raped and stalked.
regularly awarded temporary custody on an equal
• A Ketchikan father fed his toddler a basis with no consideration to the safety or best
lethal dose of sleeping aids shortly after interests of the child.
the supervision requirement was lifted.
According to the law, the “friendliest” par-
The guardian ad litem supervising the
ent was to be rewarded and the “unfriendly”
visits testified about how well the father
parent was in effect to be punished. As a result,
was doing and the judge followed those
many judges began viewing protective parents
recommendations. The father, however,
who brought claims of domestic violence as
had an active restraining order against him
“unfriendly.” In addition, a statutory preference
after attacking the mother and child and
for joint legal custody was being interpreted as
had also been convicted for possession of
a preference for shared physical custody – again
child pornography. The child was found
with little heed paid to basic safety or parenting
drowned and the father was charged with
issues. Evaluators based custody decisions on junk
31 new counts of possessing child porn.
science theories, outmoded pro-joint custody
He eventually pleaded guilty to 2nd de-
social policies and hearsay.
gree murder.

32. Fa m i ly L aw: D i s o rd er in the Courts

 After reading through the statutes, I called or disbelieved inappropriately.) Friendly
my friend and former family law attorney, Allen parent statutes encourage the judge to
Bailey, who had once promised to help me if I look only at which parent was more will-
ever decided to fight for changes in Alaska’s fam- ing to “share” the kids”, who was more
ily laws. Allen was a former municipal prosecutor “cooperative”. Battered moms and those
and he had been a staunch advocate for domestic trying to protect their kids can’t do that,
violence victims during his career. Together, we so they were penalized.
developed what we felt was the best custody stat-
• Institutes a rebuttable presumption that
ute acknowledging the effects of domestic vio-
batterers will not get custody of children.
lence on children. We drew primarily from Loui-
This raises the bar higher for perpetrators
siana and the Model Code of the Family Violence
of domestic violence by forcing them to
Project of the National Council of Juvenile and
prove why they should have any custody.
Family Court Judges. We looked at and correlated
Alaska’s child protection statutes, which identify Upon signing HB 385 into law last year, Gov-
children’s exposure to domestic violence as child ernor Frank Murkowski said: “No Alaskan should
abuse. And we fine tuned HB 385 as best we live with domestic violence, and decisions to seek
could to be responsive to the needs of our unique help should not be clouded by a fear of losing
and diverse Alaskan communities. custody of your child.... We now have a law that
will help protect Alaska’s children and ensure we
In particular, the bill:
do not punish a battered co-parent by awarding
• Elevates the weighting of domestic custody to the parent who has been the abuser.”
violence in the best interest of the child
Yet, while the new legislation is beginning
factors judges must consider
to work positively for abuse victims, I believe
• Makes consideration of domestic violence we need to do much more to ensure lasting and
a factor in temporary custody decisions. meaningful change. Personally, I would like to see
Prior to passage of the law, the statute the elimination of the use of custody evaluators
made no exception for DV or child abuse, as well as the “friendly parent” statues. I also think
etc. The judge had to award temporary the state should restrict the use of psychologists
50/50 temporary custody and require mandatory annual training for judges
in domestic violence and child abuse. The profes-
• Provides an exception for the “friendly
sionals working in the family court system have a
parent” provision where there is domestic
great deal of power and we must insist that these
violence/child abuse (the existing factor
people are properly trained so that they can act in
often resulted in the victim and/or pro-
the best interest of the children and their protec-
tective parent being penalized with lost
tive parents. With one stroke of a pen, a judge can
visitation time or lost custody when do-
guarantee that children grow up safe and secure
mestic violence was minimized, ignored

w w w. c a n o w. o r g 33.
 or they can banish children to a life full of con- For information regarding 2004 Alaska HB
flict, pain and continued suffering. 385 – Rebuttable Presumption Law:
http://www.legis.state.ak.us/PDF/23/Bills/
Today, I am continuing my efforts to explode
HB0385Z.PDF
all the myths about domestic violence in order to
http://www.akrepublicans.org/mcguire/23/spst/
ensure that victims of domestic abuse are heard,
mcgu_hb385.php
believed and supported. My group, Alaska Moms
for Custodial Justice now provides networking,
education and support for protective parents in
contested custody situations and advocates for
court reforms to better protect abuse victims in
custody litigation. In addition, I also created Cus-
tody Preparation for Moms (www.custodyprep-
formoms.org), an educational website designed
to assist domestic violence victims in custody
litigation.

Becoming a part of the effort to help make

positive changes in our family court system has
given me a great deal of confidence and satisfac-
tion. Recently, I was contacted through my web-
site by an east coast freelance reporter working
on an article about the plight of battered mothers
in the family court system. When she learned that
I was the co-author of the Alaska legislation, she
disclosed that she had recently moved from Alas-
ka, leaving her abuser behind. “I am sure I would
not have primary physical child of my son with-
out that legislation. Do you know I have blessed
the author of that legislation, without knowing
who created it, for many months? Thank you,
thank you, thank you.”

What could be better than that?

For further information:

Custody Preparation For Moms:
www.custodyprepformoms.org

34. Fa m i ly L aw: D i s o rd er in the Courts

From a Judge’s Perspective: An
Interview with Judge Sol Gothard
Judge Sol Gothard, JD, MSW, ACSW, has No, too many are not. Even though there are
nearly 50 years of experience working in the great efforts out there to inform judges and court
court system. He has a Masters in Social Work personnel about the issue of child sexual abuse
and a JD. His last position as a social worker was and how it is treated by our family courts, too
as assistant chief probation officer in the New many courts continue to further victimize young
Orleans Juvenile Court, while attending law victims of abuse and the parents who try to pro-
school at night. He practiced law for ten years, tect them. For instance, the National Council of
during which time he also was the attorney for Juvenile and Family Court Judges is an excellent
Child Protective Services (CPS) in Jefferson organization. They have a most informed faculty,
Parish, LA. In 1972 he was elected judge of the and they have done a lot of important work on
Juvenile Court for Jefferson Parish, LA, where he this subject; unfortunately, their messages have
became Chief Judge. In 1986, he was elected to failed to reach far too many family court judges,
the 5th Circuit Court of Appeal, State of Loui- who apparently have not attended the training
siana, where he became Senior Judge. He retired sessions that NCJFCJ provides. Too many courts
on September 1st, 2005. that deal with custody and visitation do not have
the understanding of the dynamics of the prob-
Judge Gothard estimates that during his 48-
lem, or of the depth of the problem.
year career as a social worker in a Juvenile Court,
attorney for CPS, Juvenile Court Judge and Appel- What do you think the main problems are?
late Court Judge, he has been involved with over One big problem is the treatment of abuse
2,000 cases that involved allegations of child sexual by the courts, especially when child sexual abuse
abuse. Recently, Gothard served on the faculty is alleged. The problem is that too many judges
of the National Council of Juvenile and Family and the so-called experts they rely on (psycholo-
Court Judges (NCJFCJ), training judges on how to gists, social workers, mediators, etc..) have no clue
address child sexual abuse in custody and divorce as to the extent of sex abuse and the dynamics it
cases. He continues to train judges, and was recent- creates in custody and divorce cases. They rely on
ly a keynote speaker at a judicial training session junk science like the absurd concept of Parental
in NY. He also continues to speak nationally at Alienation Syndrome (PAS), which has been put
conferences, where he is in high demand. out there as knowledge, even though there is
After reviewing family law cases and observ- nothing legitimate about it. The NCJFCJ is on
ing family law courts for so many years, do you record saying that this nonsense should be inad-
think they are functioning properly? missible in court proceedings. Lawyers who are
appointed as Guardians ad litem (GAL) all too

w w w. c a n o w. o r g 35.
 often have insufficient knowledge of the dynam- the father) and against the mother who has been
ics of child sexual abuse and rely, instead, on these accused of “alienating” (God, I hate that word)
absurd theories, often to the detriment of chil- the children against the father. The child, who
dren. Let me emphatically state that I am not pro- may very well have been victimized, has a court
mother against father or vice versa, I am in favor appointed attorney who is supposed to represent
of fair hearings that provide due process of law his/her best interest and is acting against his/her
and equal protection of law for all, but most es- best interest, often advocating that custody be
pecially, the children. We loose sight of this, and I removed from the complaining parent (again,
am irritated by the remarks of so-called “Fathers’ invariably the mother) that first reported the al-
Rights” groups. I am the father of five children, legation of child sexual abuse.
four sons and a daughter. I certainly know what it
What are the biggest mistakes judges make?
is to raise children, get them educated, and work
and hope that they will turn out ok, which, thank Some judges would rather believe that a
goodness, mine have. Four of them are married woman is crazy and lying, than that the men are
and have children: therefore, I am also a grandfa- abusive. I hate to use words like “sexism” or “rac-
ther. So, why would I want to be against fathers? ism” because many times we are waving a red flag;
What is there about a father’s role in raising chil- we are inciting people by appealing to their hearts
dren that I don’t understand? The evidence (my instead of their heads, and to emotions rather
children are a writer, a lawyer, two PhDs and an than clear thinking. However, I am forced to use
MD) shows that my wife of 48 years and I have the word sexism here, because of the long history
done ok by our children; so don’t attempt to label of this attitude toward women. There is an old
me as being “anti-fathers” or anti anything else, English saying, “a wife, a dog, a Sycamore tree, the
other than incompetence and/or injustice in the more you beat them the better you be.” Isn’t that
legal system when I see it. horrible? At the same time, the infamous quote
“rape is a charge so easily made, but not so easily
Many times fathers complain that court pro-
proven,“ also originated in England, accepted and
ceedings involving custody determinations have
fostered by Freud, and made its way into American
been biased against them. But, have you ever seen
law. Even Wigmore advocated this in his book on
a father complain that PAS was used to deprive
evidence, published in 1940 and continued to be
him of custody? This may have happened, but I
used as late as 1960 in the law schools of America!
have never seen it. This is about protecting chil-
Kinsey said incest happens in one in a million fam-
dren, and I implore judges to make every effort
ilies in Western cultures, which we now know to
to find out if children were abused before they
be nonsense. While I do not know the percentage
make the custody or visitation decision. Instead,
of incest, numerous studies have shown that some-
too often, the misinformed or uninformed pro-
where around 16 percent of boys and 25 percent
fessionals, and especially lawyers acting as GAL,
of girls will be victims of sexual abuse during their
will take the side of the accused parent (invariably
childhood. Sexual abuse (including incest) is com-

36. Fa m i ly L aw: D i s o rd er in the Courts

mitted by people of every race, class and religion; Relative to the myth that mothers are constantly
but, so many times we find that the perpetrator is making false accusations of child sexual abuse
affluent, better than average educated, often pillars against fathers, the most famous study on this
of the community, which the public and many was done by the National Association of Family
judges often refuse to believe. The women report- and Conciliation Courts in Denver, CO, which
ing suspected cases of child sexual abuse are, too studied 9,000 cases in various courts throughout
often, portrayed as “hysterical,” whereas the per- the nation involving custody disputes. They found
petrators referred to above are often sophisticated, that only seven mothers had deliberately coached
calm, manipulative and quite convincing. I have children to lie. This study has been peer reviewed
been involved in many such cases where evaluators in respected journals. I defy anyone to show me
were convinced that dad was lying and mom was 9,000 cases, whether they are contracts, worker’s
just hysterical, and they then influence the judge comp, corporate law, or any other type of lawsuit,
to make a wrong decision. where deliberate lying occurred only seven times
in 9,000 cases. It appears to me that there is less
Other problems are that the judges have ac-
lying here, than in any other area of contested
cepted some common myths about sexual abuse
cases!
that have been around for over the twenty years
in which I have been teaching about the subject. What are the biggest mistakes mothers make?
I document the evolution and prevalence of some Number one is you have to be as objective as
of these in my presentations; I show the headlines possible. I realize it is hard to be objective; your
of twenty years ago, which are the same myths child has experienced such a betrayal of trust. I
that, unfortunately, are still prevalent today. Some know it’s emotional, but fight it and try to be
of these myths are: the problem of child sexual strong and don’t antagonize the court.You can’t
abuse is grossly exaggerated; children lie, espe- prevail in court by yelling and screaming.You have
cially in custody cases; there is a child sex abuse to be calm to be effective. Be factual. Don’t in-
industry that therapists who work with victims sist that you are 100 percent right 100 percent of
are perpetuating because it is lucrative (if you the time. Concede the true facts of the case, even
want to talk about lucrative, you should see the if they are against you. Do not ever, ever lie or
amount of money made by some well-known exaggerate in court. If the other side is lying and
defense witnesses!); children are coached and exaggerating, do not be tempted to play the same
“brainwashed” to lie by mothers; PAS; fathers no game. With a good judge, who has a good staff and
longer get a fair shake in the courts (this is true a competent attorney representing you, the truth
much more of mothers than fathers); there is a should, hopefully, prevail.
“witch-hunt” against fathers, and other harm-
ful myths. These myths have been repeated, and What can be done to better serve children
some judges assume they are true, even though who have been abused?
they have been, in most situations, discredited.

w w w. c a n o w. o r g 37.
 The court must hear the child and then take
action on that knowledge.We need children to
experience court as a non-threatening atmosphere.
We have to have judges who are objective and
informed. Similarly, the NCJFCJ offers training and
seminars to judges and court evaluators to ensure
professionally sound and objective hearings.The
judge, first and foremost, needs to learn which
training sessions are legitimate, and one merely has
to look at the list of presenters to determine that.
There is so much knowledge out there about how
children are able to express themselves at different
ages, the reliability and unreliability of memory, and
other information that will enable a judge, with the
proper staff, to come to a proper conclusion, based
on true facts, and science, not on myths, junk sci-
ence, or gender bias.

38. Fa m i ly L aw: D i s o rd er in the Courts

Child Sexual Abuse and Child
Custody Disputes
By Robert Geffner, PH.D., ABPP, ABPN, Brenda Aranda, M.A. and Kari Geis, M.A.
Family Violence & Sexual Assault Institute, Institute on Violence, Abuse and Trauma, Alliant
International University, San Diego, CA

Introduction quite common during divorce and child custody

battles, and that the great majority of the allega-
Child sexual abuse (CSA) is a problem that
tions are false (Dallam & Silberg, 2006; Schuman,
has been recognized for many years in the United
1999). In reality, however, only about 6-12% of all
States. In 2003, an estimated 90,000 CSA cases
child custody cases have CSA allegations (Dal-
were reported to various agencies (National Asso-
lam & Silberg, 2006; Thoennes & Tjaden, 1990;
ciation of Counsel for Children, 2006). Research
Trocme, & Bala, 2005). In addition, CSA allega-
has consistently shown that approximately 1 in
tions are likely to be substantiated at approxi-
4-6 girls and 1 in 6-10 boys are sexually abused
mately the same rate during custody proceedings
before they reach 18 years of age (e.g., Portwood,
as they are in non-custody cases (i.e., in the range
2006; Wilcox, Richards, & O’Keeffe, 2004). In
of 30-45%) (e.g., Bala & Schuman, 2000; Faller &
addition, the dynamics of power and control that
DeVoe, 1995; Thoennes & Tjaden, 1990; Trocme
are often important aspects of CSA are very simi-
& Bala, 2005). Likewise, false accusations of CSA
lar to those which occur in domestic violence
are reported to be quite uncommon both dur-
cases. Disclosures of CSA and histories of domes-
ing custody proceedings and in other incidents
tic violence may lead the nonoffending parent
(Faller & DeVoe, 1995; Schuman, 2000; Trocme
or victim of spouse abuse to file for divorce and
& Bala, 2005). It should be noted that “substan-
request sole custody of the child(ren). A victim
tiation” refers to the likelihood that the case can
of spouse abuse or a nonoffending parent may
be prosecuted, and that actual evidence exists to
file for divorce due to other reasons without
support the allegation. Most cases are “unable to
realizing that CSA has also occurred. Once in a
be substantiated,” which means that there may
safe environment, away from direct contact with
not be sufficient evidence to actually prove that
the offending parent, a child may disclose sexual
abuse occurred; this does not mean that it did
abuse. As such, it is not surprising that CSA is
not occur, however. A “false allegation” refers to
sometimes alleged during child custody litigation.
someone (e.g., a parent, the child, etc.) intention-
Unfortunately, however, there are some ally making an allegation that s/he knows is not
common myths regarding CSA within custody true. Unfortunately due to the above mentioned
litigation. For example, two frequently mistaken myths, many CSA allegations are not investigated
beliefs are that child sexual abuse allegations are thoroughly in child custody cases since some

w w w. c a n o w. o r g 39.
 attorneys, judges, child protection workers, and of cases is not yet available. However, there are
child custody evaluators assume that the allega- numerous anecdotal reports of these situations in
tions are false in these types of cases, which then the United States and in Canada.
tends to hinder an objective investigation.
The myth of “Parental Alienation Syndrome”
The recent large study in Canada by Trocme So what are the main reasons for these cus-
and Bala (2005) also found that the rate of inten- tody transfers when they do occur? Legislators
tionally false allegations of CSA in custody cases favor joint custody in general in most states, but
was low (4-12%). However, they found some very when this is not feasible many statutes and rul-
interesting results when they looked more closely ings favor the parent who appears most amenable
at the data. For example, they found that is was to a joint custody agreement (Dallam & Silberg,
very unlikely that a false allegation of CSA was 2006). Thus, the “friendly parent” laws, as these
made by a child. When false allegations did occur, have often been called, whose objective was to
they were more likely to involve physical abuse assure that the children would go to the most
or neglect. In addition, false allegations in child flexible parent, were established. However, in an
custody cases were more likely to be made by abusing situation, often the parent who tends to
fathers or by neighbors than by mothers. be most open to joint custody is the offending
Moreover, it is often inaccurately believed parent even though this person may not have
that there is no relationship between domestic been very involved in the primary care taking of
violence (spouse abuse) and child abuse. The lit- the child(ren) prior to the divorce. Thus, these
erature has continuously demonstrated the oppo- laws have hurt non-offending parents when they
site (Appel & Holden, 1998; Busch & Robertson, support their child who has made such allegations
2000; Edleson, 1999). As stated above, offenders of being abused (Dallam & Silberg, 2006).
who batter their spouses are likely to use power And what has contributed to this phenom-
and control techniques to not only batter their enon? Partially to blame is an often claimed,
spouses, but also to abuse their children (Ameri- but unfounded “disorder:” Parental Alienation
can Psychological Association, 1996; Appel & Syndrome (PAS). PAS was defined by Richard
Holden, 1998; Edleson, 1999; Lemon, 2000). Gardner, as “a psychiatric disorder that arises
It is erroneously believed that custody trans- primarily in the context of child custody disputes.
fers of children to abusive parents are rare (Dal- Its primary manifestation is the child’s campaign
lam & Silberg, 2006). A phenomenon, however, of denigration against the parent, a campaign that
has emerged in the family court system in which has no justification. It results from the combina-
custody has indeed been transferred in both tem- tion of a programming (brainwashing) parent’s
porary as well as permanent bases to the person indoctrinations and the child’s own contributions
accused by a child of sexual abuse. Empirical to the vilification of the target parent” (Gardner
research on the actual prevalence of these types in Waller, 2001). Gardner coined PAS as if it was

40. Fa m i ly L aw: D i s o rd er in the Courts

some type of condition or disorder, which solely and transferring of custody has been the conclu-
arises during custody disputes, in which most sion and assumption of “PAS.” Many of these
often the mother, in an effort to spite the father mothers (it can also happen to fathers but most
and gain sole custody of the child, “brainwashes” of the cases seem to involve the mothers) display
the child and manufactures a false abuse story. anger, symptoms of post traumatic stress (PTSD),
Gardner’s ideas, however, have not been submit- anxiety, depression, paranoia, and/or suspicious-
ted to methodologically sound research test- ness (Neustein & Lesher, 2005). What is over-
ing, nor were his publications peer reviewed or looked, though, is that these symptoms are to be
accepted by experts in the child maltreatment or expected given the context of the situation. The
family violence professions. Furthermore, almost symptoms and behaviors of the mother are often
all of his publications were self-published. exacerbated in a self-fulfilling prophecy when the
abuse allegations are not believed, not thoroughly
Although PAS is an unfounded term with no
and objectively investigated, and the custody of
supporting research data, and includes internally
the child(ren) is threatened (Neustein & Lesher,
contradictory and confusing statements, many
2005). There are important distinctions among
attorneys, judges, and child custody evaluators in
abuse, alienation, estrangement, rejection, and
our judicial system have adopted PAS as though
alignment that are often overlooked in these cases
it were a validated syndrome. For this reason, its
(Drozd & Olesen, 2004; Kelly & Johnston, 2001).
usage has become quite frequent in child custody
cases where sexual abuse allegations or domestic It should be noted, however, that attempts at
violence have been alleged. The supposed syn- alienation behaviorally do indeed occur at times
drome, however, is not an actual diagnosis, nor in child custody cases. These are specific behav-
is it recognized in any mental health or medical iors on the part of a parent, or both parents, that
diagnostic code. In fact, it is a circular argument can be documented, and the effects can be deter-
that has most often been used against mothers mined by an objective and comprehensive evalu-
when allegations of abuse have surfaced that are ation. This is separate from the circular arguments
not believed by those in some authority position; and assumptions proposed by PAS advocates
in these situations, the child(ren) often reject or and evaluators that overlook or ignore the abuse
are estranged from the father, and align with the allegations and their context. If alienation has
mother, which is not surprising or abnormal if occurred in cases where there has been no abuse,
abuse has occurred. This rejection of an abusive then appropriate recommendations for interven-
parent by a child is then used as the “evidence” tions can be made to alleviate stress on the child
that PAS exists and is being perpetrated by the and parents.
mother. In many of these cases, there is no ob-
Types of Situations in Child Custody Cases
servable evidence of abnormal behaviors, psy-
chopathology, or programming by the mother, Child custody cases involving CSA allegations
and the only reason for removal of her children can vary depending on what type of circumstanc-

w w w. c a n o w. o r g 41.
 es are presented. One situation is when there is an A second scenario can occur when the
abusive relationship (involving domestic violence mother or the child discloses abuse during the
as well as CSA) and the mother files for divorce divorce proceedings. Judges, and even the at-
in order to leave the relationship and keep her torneys representing the mothers, can be very
children from additional abuse. In this instance, skeptical of allegations raised during these pro-
several issues can affect the child custody out- ceedings. This can be a particularly scary situation
come. One issue is whether any abuse has been for the mother, as family courts often stigmatize
reported prior to filing for the divorce. If there mothers as vindictive, malicious and spiteful
has been no abuse reported either by the children when they report or support their child’s abuse
or the spouse prior to the filing for divorce, the allegations during a divorce. As a result, mothers
family courts and evaluators may ignore or mini- should know that reports of child abuse, includ-
mize the alleged violence. In such a case, the fam- ing sexual abuse, may be taken less seriously by
ily court may view the woman as attempting to the judicial system and sometimes even by child
gain custody through falsely alleging child abuse. protection services personnel when they are
made during a custody dispute. In fact, due to
Indeed, there are cases in which certain
the backlash movements against CSA in recent
behaviors are misinterpreted, or where someone
years, a mother who reports CSA in the midst of
may have over-reacted, and thorough investiga-
a custody dispute is at risk for losing custody in
tions by trained evaluators can usually disclose
family court if she supports her child and pursues
these. However, if no previous abuse has been
reduced, supervised visitation and investigation of
reported or substantiated, the opposing attorney
the father. If she does not support or believe her
or accused parent may be more likely use the
child’s allegations, she is at risk for losing custody
ploy of PAS.
of her child by Child Protective Services for fail-
On the other hand, if there has been reported ure to protect her child. This is a serious dilemma
abuse, the courts may use this as evidentiary sup- without an easy answer.
port for abuse within the home. For this reason, it
The “PAS” label could additionally be attrib-
is always important to report any type of abuse at
uted to the mother if the child does not want to
the time it has occurred, or to have documentation
visit with the other parent. The opposing attor-
from neutral collateral sources who observed the
ney may say that the mother must be brainwash-
behaviors or effects.While courts can be inconsis-
ing the child by slandering the parent so much
tent in how they consider the history of violence
that the child does not want to visit with him.
between the parents in making custody decisions,
While this type of alienation (not PAS) or rejec-
the reported abuse could support the consistent
tion can occur, the child may actually not want
power dynamics present in domestic violence and
to visit with the parent because they are fearful
child abuse. It may also aid the mother’s case in that
of further abuse. Again, a thorough evaluation
it illustrates the abusiveness and dangerousness of the
by someone trained in domestic violence, child
spouse, and a pattern of behaviors.

42. Fa m i ly L aw: D i s o rd er in the Courts

abuse, and child custody is the key to these cases during the case), evidence regarding PAS
to determine the most likely causes for the vari- may not be admissible during the child
ous behaviors, and to make appropriate recom- custody case. Such a preemptive strike can
mendations. be very important in giving yourself the
best opportunities to a fair custody case
Recommendations for a Mother in These
and an objective and comprehensive eval-
Situations
uation of the evidence. It is also important
So what can a mother do when going to make sure the case focuses on the child,
through a child custody case and sexual abuse is the abuse allegations, and parenting issues,
alleged by their child? There are several recom- not on suggestions of PAS.
mendations a woman should think about. These
include: 2. Understand the issues yourself before
the custody case begins. While your law-
1. Always hire an attorney who is very yer needs to be proactive and represent you,
familiar with these types of cases, you may also need to be aware of the issues on
understands the dynamics of abuse, both sides of these cases. Knowledge can be
and knows how to litigate such cases. very powerful. It is vital that you understand
Even if you may be well versed in the the proceedings that are involved in a child
judicial system, it is not wise to represent custody case and with the issues of family
yourself in such a child custody case. An violence and family dynamics that are often
attorney trained in these areas will enable brought up during such cases (especially when
you to go on the offense, not solely react CSA is alleged).While it is not necessary for
on the defense. It is imperative that the you to become an expert in these issues, it is
attorney knows about issues surrounding important for you to understand what types
allegations of “PAS,” family violence and of things might be considered and examined
family dynamics. Such issues are crucial to during a custody case. Examples of relevant
a case involving CSA allegations, mak- books dealing with some of these issues are
ing it fundamental for the attorney to be at the end of this article. Becoming more
competent and trained in such subjects. knowledgeable will help you assist your lawyer
Additionally, having an attorney who is and yourself to the best of your abilities dur-
trained in CSA issues in child custody ing the custody case. It is important to also be
cases will allow you to be more proactive aware that too much knowledge may be used
in obtaining Frye or Daubert hearings against you by opposing attorneys and un-
to disallow suggestions of “PAS” as junk trained evaluators to bolster the allegations of
science. Therefore, if such evidence is re- alienation and programming and to label you
viewed in these hearings before the actual as being obsessive about the abuse allegations.
child custody case begins (or at anytime

w w w. c a n o w. o r g 43.
 3. Knowing the issues also involves determine whether the likelihood is that
knowing the “other side.” Learn what abuse occurred.
types of things the father’s attorney may
6. Finally, expect the unexpected. It
use in his search to obtain physical cus-
may seem as though there is no
tody for the father, even when CSA is al-
possible way that you could be
leged. For example, your attorney should
accused of PAS or that an abusive
search some of the father’s rights or PAS
father would attempt to gain
websites on the internet, to get an idea
physical custody of his children.
for what may be presented by the other
However, such things are not rare and
attorney during the custody case.You
the possibility needs to be anticipated so
want to have as few surprises as possible.
that you can prepare yourself for such a
This way you and your attorney can be
situation. Some suggest not pursuing the
more prepared to keep the focus on the
child abuse allegations if they occur in
child(ren), parenting abilities, observable
the midst of a divorce action due to the
behaviors, bonding and attachment, rather
potential negative consequences of losing
than on you as suffering from PAS.
custody completely as discussed above. It
4. It is important to maintain the focus is difficult to make a general statement
on the child(ren) and the allegations, about this, and each case must be decided
actual evidence and data, and the upon its own merits.
actual purpose of a child custody
References
evaluation (i.e., the best interests
American Psychological Association. (1996). Report of the APA Presidential
of the child and parenting abili-
Task Force on Violence and the Family, Washington, D. C.: Author.
ties/home environment). In many of
these cases, the focus is taken off of the Appel, A.E., & Holden, G.W. (1998). The co-occurrence of spouse and

allegations and the offending parent and physical child abuse: A. review and appraisal. Journal of Family Psychology, 12,

placed on the mother and her behavior in 578-599.

reaction to the allegations such that the Bala, N., & Schuman, J. (2000). Allegations of sexual abuse when parents
mother has to continually defend herself have separated. Canadian Family Law Quarterly, 17, 191-241.

in the courtroom.
Busch, R., & Robertson, N. (2000). Innovative approaches to child cus-

5. When abuse is alleged, either in the tody and domestic violence in New Zealand: The effects of law reform

form of CSA or spouse abuse, re- on the discourses of battering. Journal of Aggression, Maltreatment & Trauma,

3(1), 269-299.
port it when it happens. Do not do
the investigation or question the child. Dallam, S J., & Silberg, J. L. (2006). Myths that place children at risk during
You can file police reports and get custody disputes. Sexual Assault Report, 9 (3), 33-47.

medical or mental health evaluations as

Drozd, L., & Olesen, N. (2004). Is it abuse, alienation, and/or estrange-
objective documentation that may help
ment? A decision tree. Journal of Child Custody, 1(3), 65 - 106.

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Edleson, J.L. (1999). The overlap between child maltreatment and women Additional Bibliography
battering. Violence Against Women, 5, 134-154.
Bancroft, L. & Silverman, J. (2002). The batterer as parent: Addressing the
Faller, K., & DeVoe, E. (1995). Allegations of sexual abuse in divorce. Jour- impact of domestic violence on family dynamics. Thousand Oaks, CA: Sage
nal of Child Sexual Abuse, 4(4), 1-25. Publications.

Kelly, J.B., & Johnston, J. R. (2001). The alienated child: A reformulation of Breaking the silence: Children’s stories. (2005). PBS special television docu-
Parental Alienation Syndrome. Family Court Review, 39, 249-266. mentary. Dominique Lasseur, producer; Anne Crews, Mary Kay Founda-

tion,
Lemon, N.. (2000). Custody and visitation trends in the United States in

domestic violence cases. In R. Geffner, P. Jaffe & M. Sudermann (Eds.), Geffner, R., Igelman, R. & Zellner, J. (Eds.). (2003). The effects of intimate
Children exposed to domestic violence (pp. 269-300). Binghamton, NY: partner violence on children. Binghamton, NY: The Hawarth Press, Inc.
Haworth Maltreatment & Trauma Press.
Jaffe, P., Baker, L. & Cunningham, A. (Eds.). (2004). Protecting children from
National Association of Counsel for Children. (n.d.) Retrieved January 9, domestic violence: Strategies for community intervention. New York, NY: The
2006. from http://naccchildlaw.org/childrenlaw/childmaltreatment.html. Guilford Press.

Neustein, A., & Lesher, M. (2005). From madness to mutiny. Lebanon, NH: Jaffe, P., Lemon, N., & Poisson, S. (2003). Child custody and domestic violence:
Northeastern University Press. A call for safety and accountability. Thousand Oaks, CA: Sage Publications.

Portwood, S. (2006). What we know-and don’t know-about preventing Leadership Council on Child Abuse and Interpersonal Violence. (2006).
child maltreatment. Journal of Aggression, Maltreatment and Trauma, 12, 55-80. Child custody myths at web site: www.leadershipcouncil.org

Schuman, T. (1999). Allegations of sexual abuse. In P.M. Stahl (Ed.). Stahl, P. (1999). Complex issues in child custody evaluations. Thousand Oaks,
Complex issues in child custody evaluations (pp.43-68).Thousand Oaks, Ca: Sage. CA: Sage Publications.

Thoennes, N., & Tjaden, P.G. (1990). The extent, nature, and validity Whitfield, C., Silberg, J. & Fink, P. (Eds.). (2001). Misinformation concerning
of sexual abuse allegations in custody/visitation disputes. Child Abuse & child sexual abuse and adult survivors. Binghamton, NY: Haworth Maltreat-
Neglect 14, 152-163. ment & Trauma Press.

Trocme, N., & Bala, N. (2005). False allegations of abuse and neglect when

parents separate. Child Abuse and Neglect, 29, 1333-1345.

Waller, G. (Producer). (2001). Small justice: Little justice in America’s

family courts. [video]. Seattle, WA: Intermedia.

NOTE: All books and videos can be
purchased at a discount from:
Wilcox, D., Richards, F., & O’Keeffe, Z. (2004). Resilience and risk factors The Institute on Violence, Abuse and Trauma
associated with experiencing childhood sexual abuse. Child Abuse Review, (formerly, Family Violence & Sexual Assault Institute)
13, 338-352. San Diego, CA
(858) 623-2777 x 357 Fax: (858) 646-0761
email: [email protected]

or go the web site at www.ivatcenters.org

w w w. c a n o w. o r g 45.
 Protective Mothers in Child Custody
Disputes: A Study of Judicial Abuse
By Geraldine Butts Stahly, PH.D., Linda Krajewski, Bianca Loya, Linda Krajewski, Bianca
Loya, Kyra Dotter, Kimberly Evans, Wesley Farris, Felicia Frias, Grace German, Nancy Stueb-
ner, Kiranjeet Uppal, And Jenna Valentine
California State University, San Bernardino

Abstract 1999).There is evidence of an increase in the nega-

tive labeling of mothers who report child abuse or
This project is a pilot study of a national
domestic violence during custody disputes. Several
survey undertaken to examine the experiences
high profile cases have led to increased public atten-
of protective mothers. One hundred fifty-seven
tion, and fractious public debates have erupted be-
self-identified protective mothers, completed
tween groups supporting the alleged perpetrators of
a 101-item questionnaire describing aspects of
abuse as victims of malicious accusation on the one
their custody dispute. The pilot data includes
hand, and groups supporting the reporting parent as
demographic factors, economic impact, and a full
the victim of malicious psychiatric labeling on the
variety of protection issues, including the range
other (Dallam, 1998). For example, in spite of the
of allegations, the role of psychological expert ex-
lack of empirical support and peer review, Rich-
aminations, diagnosis and testimony, family court
ard Gardner’s (1985) theory of Parental Alienation
response and outcomes for children. Findings to
Syndrome (PAS) continues to influence judges,
date suggest that protective mothers are likely to
court appointed evaluators and mediators and other
be mothers who have been victims of domestic
court personnel with adverse consequences for the
violence, and are likely to be labeled “alienators.”
protection of children in custody disputes.There
Mothers were also likely to be advised by their
have been no studies to date on the extent of the
attorneys and other professionals not to report
overall phenomenon of protective mothers, the psy-
abuse of their child during custody proceedings.
chiatric labeling of protective behavior or the extent
Mothers who support their children’s allegations
to which protective behavior appears to be justified
of physical or sexual abuse were overwhelmingly
by the circumstances and evidence in custody cases.
denied custody and sometimes denied visitation
The current study was undertaken to study the
with their children.
experiences of protective mothers.
Introduction
Methods
Empirical studies have established an increase
The study utilized a 101-item self-report
in child abuse in families in which there is domes-
questionnaire which was distributed to a sample
tic violence, and an increase in custody challenges
of convenience that included individuals who
by fathers who have a history of battering (Stahly,

46. Fa m i ly L aw: D i s o rd er in the Courts

self-identified as protective mothers contacting evaluations, including the role of the allegation of
the California Protective Parents Association and parental alienation in custody case outcomes.
California NOW, as well as individuals visiting
One hundred fifty-seven completed surveys
the California NOW website. Questionnaires
from protective mothers were collected and en-
were available for completion through the web-
tered into SPSS. Descriptive statistics were run
site and were also distributed at conferences
on the data from this initial sample. A majority
regarding child abuse and domestic violence held
of the respondents were from California (89). A
in California. Data collected from the question-
total of 271 children were involved in the study
naires included demographics, legal history of the
(157 girls and 114 boys); 65 percent of the chil-
custody case, allegations of abuse, criminal con-
dren were age five or under.
duct, substance abuse and results of psychological

Results
Figure one. Reporters of Child Abuse

ALLEGATIONS OF CHILD ABUSE

100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Physical Abuse Sexual Abuse Verbal Emothional Neglect
Abuse

TYPES OF ABUSE REPORTED

*92% of the Protective Mothers made allegations of child abuse.

*56% of the allegations were supported by madical/physical evidence.
Mother Father Child
80% had some other corroborating evidence.
*75% reported fathers as the perpetrator.

w w w. c a n o w. o r g 47.
 Figure 2. Psychological Impact on Children

PSYCHOLOGICAL IMPACT ON CHILDREN

120
Depression
100
Anger/Rage (Overwhelming)

Sleep Disorders and Fears 80

Eating/Somatic Disorders
60
Learning Disability/ADHD

Suicide Attempt 40

20

SYMPTOMS (SEE LEGEND)

Note: One percent of the children were reported to have attempted suicide

Table one. Financial Impact of Custody Dispute

Number of attorneys involved 547

Average per case 4

*Total cost of custody cases

Average cost per family $90,506.77

88 percent of the protective mothers were subjected to

psychological evaluation by the court

Average cost of psychological evaluation $6,887.35

* 27 percent of the protective mothers were forced to file bankruptcy as a result of filing for custody of their children

48. Fa m i ly L aw: D i s o rd er in the Courts

Court Abuse
• 85 percent of the protective mothers were denied adequate presentation of information or witness.

• 69 percent lost custody in emergency court order.

• 65 percent were threatened with sanctions if they “talked publicly” about the case.

• 65 percent of the protective mothers were advised not to report abuse (Figure 3).

• 56 percent lost custody with no court reporter present.

• 60 percent lost custody in ex parte proceedings (64 percent of the protective mothers, at some
point, were not represented by an attorney when their ex spouse or partner was.)

• 54 percent of the protective mothers were not permitted to see the evaluation/
recommendation.

Figure 3. Mandated Reporters Who Advised Protective Mothers Not to Bring Allegations of Child Abuse to Court

MANDATED REPORTERS WHO ADVISED PROTECTIVE PARENTS NOT TO BRING

ALLEGATIONS OF CHILD ABUSE TO COURT

Attourney
Other
Mediator Attourney

Advocate

Court Personnel

Other Court Personnel

Advocate

Mediator

Outcomes for Protective Mothers & Children

• 97 percent believed they were discredited • 83 percent of the protective mothers were
for trying to protect their child the primary caretaker and 87 percent
• 97 percent believed that the court per- had custody at the time of separation; 31
sonnel ignored or minimized allegations percent were left with custody of their
of abuse children after court proceedings.

w w w. c a n o w. o r g 49.
 • 90 percent of the protective mothers re- ing charges against fathers appears evident by the
ported domestic violence finding that more than half of the mothers were
advised not to report abuse during their custody
• 88 percent of the protective mothers
cases, even by individuals who were mandated
believe that their children are still being
reporters of child abuse. Findings also indicate a
abused; 61 percent have stopped reporting
strong connection between domestic violence
the abuse for fear that contact with their
and child abuse, with a majority of the mothers
children will be terminated.
making reports of domestic violence. An over-
• 83 percent of the protective mothers no whelming number of mothers believe that their
longer believe that they can protect their children are still being abused, and most have
children stopped reporting, even though most of their
• 71 percent of the children continued children are still reporting abuse. Furthermore,
to report abuse mothers no longer believe that they can protect
their children, so that the system which was sup-
• 69 percent lost custody as a result of the
posed to help them protect their children — the
psychological evaluation
judges, attorneys, mediators, police and psycho-
• 53 percent continued to experience vio- logical evaluators — have not only let them
lence after separation down, but penalized them for trying to do so. A
significant consequence of reporting abuse is the
• 42 percent of the protective mothers were
finding that only a few of the mothers retained
labeled as having PAS (Parental Alienation
custody of their children as a result of the court
Syndrome); 29 percent were labeled as
proceeding. This preliminary study includes a
“alienators”
bias of the self-selection of reporters and may not
Discussion represent the general experiences of all mothers
Findings support the notion that mothers reporting abuse in custody proceedings. On-go-
who are labeled as “alienators” are at a high risk ing research is designed to obtain a less biased
of losing their children. Labeling the mother ap- sample, including a more geographic spread and a
pears to put a judicial emphasis on the mother’s solicitation of information from groups of fathers.
“issues” rather than a focus on the protection of References
the child. Courts appear to discriminate against
Available upon request
protective mothers, often removing custody in
ex parte proceedings, denying mothers both ac-
cess to evaluation reports and the opportunity to
rebut negative findings, and threatening sanctions
against mothers who “talk publicly” about their
case. Courts’ bias against mothers for support-

50. Fa m i ly L aw: D i s o rd er in the Courts

Toward Better Outcomes In Child
Custody Disputes
by Sharon D. Bass, LMFT

This chapter is dedicated to my boys Stephen, Gregory and Michael.

“Here is the deepest secret nobody knows (here is the root of the root
and the bud of the bud and the sky of the sky of a tree called life; which
grows higher than soul can hope or mind can hide) and this is the wonder
that’s keeping the stars apart I carry your heart (I carry it in my heart).”
– E.E. Cummings
The judiciary has long acknowledged that parents is a construct of our legislature. 1Litigated
citizens with disputes can do a far better job of custody disputes, by their very nature, preclude
settling their own differences than can any judge. court-ordered joint physical custody as a reason-
And so it is that most separating and divorcing able decision in the best interest of children. Court
parents do not resort to the courts to settle their orders that force children to endure joint physical
differences as it regards child custody and visita- custody or to spend a substantial percentage of
tion. Nevertheless, child custody and visitation their time going back and forth between house-
disputes are justiciable controversies and, as such, holds in the enforcement of a particular judge’s
citizens have a right to litigate these matters. If conception of frequent and continuing contact are
one parent demands to litigate, the other parent patently destructive and constitute capricious social
simply has no choice. engineering that does not reflect the natural state
of family affairs. The concept of court-ordered
True joint parenting time arrangements are
joint physical custody and court-ordered frequent
rare and by dint of basic logic and reasonable-
and continuing contact is an imagined good that
ness, benefit children only in circumstances were
misuses judicial authority to attempt to enforce a
parents have superb post-separation relationships,
dream of how life ought to be.
which is unusual, and who live almost next door
to one another, which is even more unusual—- This is of particular concern as judicial au-
and is why, absent strictly enforced co-parenting thority rests in interpreting and applying the law
court-ordered arrangements, true joint custody as it was intended to be interpreted and applied
essentially does not exist. by the legislature. The separation of powers is
fundamental to our system of government. The
In California, joint physical custody and the
requirement for judges to conform their deci-
concept of frequent, continuing contact with both
sions to a good faith application of law to the

w w w. c a n o w. o r g 51.
 facts of a case is undermined when legislators place when such orders should be exceedingly
craft family laws that include language giving rare and unusual. In cases were domestic violence
judges broad discretion in the application of those is at issue, continuing contact with perpetrators is
laws. The broad discretion to craft orders appli- extremely damaging to children. Custody of any
cable to a particular family, and the heretofore kind to perpetrators of domestic violence is an
entirely undefined “in the best interest of the unconscionable judicial act.
child” non-concept may sound warm and cud-
If it were true that children are harmed by
dly but in actual practice, judges enjoy essentially
infrequent and non-continuing contact with their
unfettered freedom to make what can be exceed-
fathers, given the fact that in California half of
ingly destructive decisions. Judges dance to the
all first marriages end in divorce (and with each
tune of many drummers, the least of which, it
subsequent marriage the divorce rate is even
sometimes appears, is fairness, reasonableness and
higher), as will be discussed below, the fact that
the best interest of children. As just one example,
most children do not have frequent, continu-
Judith Wallerstein, PhD, of the Center for the
ing contact with their fathers at any where near
Family in Transition, reported in her 1995 amica
the frequency typically mandated by family law
curiae brief to the California Supreme Court for
judges in litigated cases, would make it reason-
IN RE MARRIAGE OF BURGESS, that in
able for judges to impose their opinion of what is
1988 the California Senate Task Force on Fam-
alleged to be in the best interest of children on at
ily Equity (of which she was a member) recom-
least half of all families in California (because you
mended a provision that was enacted into law,
cannot get divorced, even out of court, without
amending California Family Code, Code Section
a judge reviewing and approving your written
2030 to make it “... clear that joint custody is not
settlement agreement and to the contrary of what
the preferred custodial arrangement.” She also
occurs in the courtroom, it appears judges could
states, “judges have sometimes applied a seem-
not care less about frequent and continuing con-
ingly irrebuttable presumption that frequent and
tact). To the contrary, we know that the greatest
continuing access to both parents lies at the core
suffering inflicted upon the children of separating
of the child’s best interest. Therefore, it is im-
and divorcing parents occurs at the hands of fam-
portant to state very clearly that the cumulative
ily law court judges.
body of social science research on custody does
not support this presumption.” The cumulative We know that in the vast majority of out-of-
body of research to date continues to not sup- court parenting agreements physical custody of
port the presumption that a child’s best interest children is delegated to the mother: that is to say
lies with frequent and continuing access to both that most children whose parents are separated
parents. Nevertheless, court mandated joint physi- or divorced spend most of their time under the
cal custody and orders requiring weekday as well care and control of their mothers. It has long been
as every other weekend visitation are common- known that the amount of parenting time actu-
ally exercised by fathers, in contrast to the amount

52. Fa m i ly L aw: D i s o rd er in the Courts

of time actually awarded, whether by agreement is hospitalized, or the mother obtains a note from
of the parties or by court order, decreases precipi- the doctor saying the child is too ill to be moved,
tously over time. In their review of the 1998 U.S. he or she can just as well be sick at Dad’s house
Census data, Emery, Otto and O’Donnell found as at Mom’s. When judicial parenting-time orders
that 40 percent of non-custodial fathers had had based on imagined dreams of how life ought to be
no contact with their children the previous year collide with real world considerations, the mother
and that contact by the other 60 percent of non- is often labeled an alienating parent or the parent
custodial fathers averaged 69 days per year. They least likely to allow ongoing, frequent contact with
concluded that “joint physical custody (about 100 the other parent.
over-nights per year) is not the norm.” These au-
Why is the allegation of interfering with
thors’ analysis underscores the validity of an earlier
a father’s contact with children (i.e., “parental
analysis by Seltzer which found that 30 percent
alienation” in all it’s guises) so frequently asserted
of fathers separated for two years or less saw their
and of such paramount importance in the court?
children only several times a year or less.2
Certainly, it would not be a good thing to do but
A working definition of “joint physical cus- why is it the focus of the most serious allegations
tody” as equal to 100 overnight’s per year repre- about women? Using the example of California
sents father-child visitation of less than every other law, the California Family Code states at Code
weekend and is apparently so rare and unusual that Section 3040, “the court shall consider, among
it is not accounted for in the data. 69 days per year other factors, which parent is more likely to allow
(the average time spent by 60 percent of non-cus- the child frequent and continuing contact with the
todial fathers), equates to 34.5 weekends per year. non-custodial parent... and shall not prefer a parent
If a child were to spend Christmas school vacation as custodian because of that parent’s sex.” When
and one month during the summer with a non- couples separate, in the vast majority of instances,
custodial father, 69 days per year would mean a the children reside with their mothers. If a judge
child would spend one or less weekend per month wants to make a change in custody to a father, he
at Dad’s house. These findings stand in stark con- or she must find a rationale, however superficial
trast to the demanding, sometimes convoluted and or contrived, to upset the status quo. In common
often generous parenting plans urged by fathers, lawyer parlance this is described as the judge want-
proposed by custody evaluators and court media- ing “something to hang his/her hat on.” California
tors and ordered by judges. It is the norm for judg- Family Code, Section 3040 provides the means to
es to require even toddlers and preschool children that end. Allegations of alienation or denial of con-
to spend week nights in addition to every other tact for any reason whatsoever, actual or potential,
weekend with their dads. It is also not unusual for provides a judge with the means to an end— a
a judge to admonish a mother that she may not rationale to “upset the status quo” and change cus-
cancel visitation in order to allow a sick child to tody to fathers as well as grounds to refuse to allow
remain at home in bed saying that unless the child children to move away with their mothers.

w w w. c a n o w. o r g 53.
 As a society, we have unspoken, rigidly tification for harm. Any label will suffice to fulfill
adhered to rules of conduct and gender role this condition from labeling a woman the ubiq-
constraints that are used by judges to rationalize uitous “narcissistic,” to claiming that even though
decisions that are patently destructive to the lives a mother cannot be found to be actually doing
of women and children. In the United States, anything to interfere with the children’s relation-
the paramount role of men and of institutions ship with their father she might “inadvertently
of authority such as the court (which are identi- or unconsciously” be doing something to influ-
fied in masculine, not feminine, terms), is that ence the children against their father and, even
of the protection of women and children. To be if she isn’t doing it now, she “might do it in the
considered a hero is the greatest honor that can future.” (And if you think the latter sounds too
be bestowed upon a man or person in authority. Kafkaesque even for family law court read the
Hero’s undertake actions that protect and ensure April 29, 2004, California Supreme Court deci-
the well-being and safety of women and children. sion in, IN RE MARRIAGE OF LAMUSGA ) .
Conversely, there is no easier way to become Finally, she’s not a real woman if she is considered
a really bad guy than by harming a woman or to be bad or evil. For example, parental alienation
child. Removing the custody of children from a syndrome, malicious mother, the alienated child,
mother is understood in our society as the very etc., are factitious “disorders” promulgated by cer-
worst thing that can be done to a woman. “Good tain custody evaluators, male litigants, and judges,
guys” or institutions of authority (in this case that for the specific purpose of damning mothers by
means judges, male and female, who represent the labeling then as malevolent beings. The underly-
court system) can only harm women that are not ing purpose of the “bad or evil” category as with
“real women.” For a woman to is considered not the others is to create a socially acceptable pretext
a “real woman” she must fall under one or more to harm a mother by making a change of custody
of the three following categories. First, she’s not to a father and making it extremely difficult or
really a woman if she ceases in some way to exist impossible for a mother to have future contact
as a real person or, in litigated custody disputes, with her children, as well as to rationalize numer-
ceases to have a voice that is heard. A judge who ous other takings.
denies a woman’s requests for adequate awards
These are the ground rules. Good guys and
of attorney fee and costs, forces her into in pro
good institutions are expected to protect and
per status or having to beggar help from ineffec-
defend “real” women and their children. The
tive counsel thereby effectively marginalizing and
loopholes described above define under what
silencing her. Unable to assert or protect her legal
circumstance it is justifiable to harm women and
rights, she functionally ceases to exist. Second, she
children. While unspoken, these concepts are
not a real woman if she is crazy— which explains
played out in almost every movie ever produced
the tremendous interest of trial and appeals court
because they represent our deepest values. These
judges in women’s alleged mental status as a jus-
rules also account, in part, for the entitlement

54. Fa m i ly L aw: D i s o rd er in the Courts

argument of perpetrators of domestic violence her children); demanding court orders restricting
who defend their violation of the basic code mothers from making decisions that are normally
of manhood by accusing their victims of being and naturally made by mothers (such as keeping
either crazy or bad. If she’s not a real woman, the children at home when they are ill) and demand-
twisted logic goes, it’s not a male role violation ing immediate changes of child custody if mothers
to hit her, lie to her, take her money, take her move away or take any actions of any kind de-
children and so on. signed to mitigate the damage being done to their
children or to respond to real world considerations.
Families in which domestic violence is an issue
represent a substantial percentage of all litigated We know that in families where domestic
child custody cases. This occurs for a number of violence is an issue, children who were not physi-
reasons not the least of which is that perpetrators cally abused prior to the breakup have a greater
and their attorneys understand that gender bias than 50 percent chance of being abused after the
against women is rampant in the court. Perpe- breakup. Inappropriate, callous or abusive treat-
trators of domestic violence, a group composed ment of children during visitation serves as a clear
predominately of men, channel the “overkill” that message to mothers that the abuser is in more
hallmarks private abuse into aggressive litigation control than ever and normal, natural attempts to
tactics designed to allow them to continue to intervene by the mothers are alleged to be actions
ride roughshod over their families. The emerging proving malicious interference with the father-
autotomy of victims (children included), whether child relationship.
or not the woman initiated the dissolution, is per-
Going into a family law courtroom is like
ceived as insufferable to batterers (and apparently
going into a bad neighborhood– one should not
to a number of family law court judges as well). As
go in there alone. Fairness starts with adequate
the ability to maintain power and control in other
attorney fee and costs awards. That opposing par-
areas erodes, batterers have the ability to exert
ties must be on a level playing field in the court
continuing control, and exact revenge, through
is basic to family law. Nevertheless, the denial of
custody litigation. The tactics of power consist of,
attorney fees and costs to women is widespread.
among other things, demanding sole physical cus-
Denials of requests of adequate awards of attorney
tody of children; demanding 50/50 parenting time
fees and costs provides the strongest disincentive
or disruptive visitation schedules (regardless of how
possible to an opposing party to settle disputes
little time they spent with their children before
by negotiation and maximizes the utilization of
the break-up); demanding visitation schedules be
the litigation process to take unfair advantage of
strictly enforced; alleging women are mentally ill
the financially weaker party. Women are often
and/or malicious; insisting children are lying about
required to represent themselves in pro per. The
what occurs during visits; alleging that children
family law bar is extremely sensitive of the nega-
are not being properly supervised at home (one
tive financial consequences to an attorney rep-
way of asserting she is doesn’t exist as a mother to
resenting a woman who is not able to indepen-

w w w. c a n o w. o r g 55.
 dently and fully fund family law litigation. Once too much authority by judges and that judges
a judge has shown his or her determination to simply accept without question the assertions,
deny sufficient fee and costs awards to a woman, assessments, and recommendations of evaluators
an attorney will become determined to with- and “rubber stamp” recommendations as court
draw or complete the case as quickly as possible, orders. In fact, the authority to decide mat-
using the least amount of time and effort. In an ters that come before a judge, including making
attempt to minimize his or her business financial physical and legal custody determinations, decid-
losses, many attorneys provide only minimal legal ing visitation days and hours, and all other mat-
services to their clients, often failing to undertake ters related to parenting rights and responsibilities,
the actions necessary to protect and assert their is constitutionally vested in the judiciary. A judge
client’s legal rights and initiating a downward cannot delegate the authority to any non-judicial
spiral of events that makes the case even less at- officer except by prior consent of the parties.3
tractive to subsequent attorneys. It is not uncom- Advance statements or indications by a judge that
mon that the advantage enjoyed by men in the he or she is referring a matter to an investigator
family law court is so extreme, so immense and and that the investigator’s recommendations will
so overwhelming that concepts of parity, fairness, become the orders of the court are improper and
due process of law and equal protection of the should be reported, in California cases, to the
law simply do not exist. Once this process has Commission on Judicial Performance.
begun to unfold in a case the judge can be fairly
Unquestionably, evaluators can write reports
said to have relinquished his or her role as a fair
containing statements that are inaccurate, false
and impartial arbiter of disputes and re-created
or misleading; operate out of biased attitudes or
his or her courtroom into an arena for bullying,
special interests; discuss litigants in a disrespectful
revenge and takings.
manner; use language that is demeaning; write
In cases in which family violence is an issue, poorly and communicate inaccurately; include
denial of fees and costs to the victim of the vio- inappropriate information; make erroneous as-
lence is manna from heaven to a perpetrator. The sumptions; go beyond what they were asked to
inequitable and unconscionable outcomes that do, and evidence varying degrees of incompe-
routinely occur in domestic violence family law tence or dishonesty. That the attention of fam-
court cases directly undermines the efforts of the ily law litigants becomes riveted on evaluators’
legislature, law enforcement, the criminal courts reports is completely understandable. The stakes
and the many groups and organizations dedicated are enormous. The assumption is that an “expert”
to putting an end to family violence. is automatically recognized by the court as know-
ing what’s best.
In California, our legislature has given
judges the authority to appoint evaluators to per- It is erroneous to assume that judges au-
form custody investigations. It is often believed tomatically give deference to experts’ reports,
that court-appointed custody evaluators are given including the reports submitted by evaluators

56. Fa m i ly L aw: D i s o rd er in the Courts

judges themselves select. Many family law court Judges whose primary assignment is to the
litigants are not aware that the family law code family law department of a court are required by
does not require judges to order child custody in- California Family Law Rule 1200 at subsection
vestigations or evaluations of any kind in order to (one) to have attended a basic education program
decide child custody disputes. The appointment on California family law and procedure designed
of a custody evaluator is permissive, not manda- primarily for judicial officers. Subsections (2) and
tory, in making custody and visitation decisions. (3) requires any judge hearing family law mat-
It is within the sole discretion of the judge to de- ters to attend continuing education in family law.
cide how much weight, if any, he or she chooses Judges should be routinely and openly asked if and
to give to the assessments and opinions expressed when they completed this mandatory education.
by an evaluator.
When ordering a custody evaluation, litigants
One does not have to be involved in very must require judges to spell out precisely, and place
many litigated custody cases to observe the process on paper in a court order, exactly what the issues
of the how evaluators and/or evaluation reports are to be addressed by the evaluator well before
are accepted or rejected by some judicial offi- any evaluator is contacted. Defining and limiting
cers who (as euphemistically stated by attorneys) the purpose and scope of an evaluation is extreme-
“know where he/she wants to go with the case.” ly important.
Some judges have repeatedly ordered evaluations,
Evaluation costs are usually apportion be-
changing evaluators until he or she came upon
tween the parties. I am aware of numerous in-
an evaluator who made the recommendations
stances where judges apportioned fees equally
the judge wanted made. There have been circum-
between the parties without any knowledge or
stances in which an evaluator recommended a
prior discussion of what those fees would be and
change in custody which the judge was all to eager
completely ignoring what was well known to be
to make and later, when the evaluator reported
the significant differences between the parents
the custody change was damaging to the child, the
financial abilities. This should not occur. No judge
judge summarily ignored the information. This
can properly decide a fees matter if he or she does
understanding is central to the understanding of
not have an accurate understanding of what the
what is occurring in any court case. Fairness lies
fees are. Furthermore, there is nothing at all wrong
solely with the judge. It is the judge who deter-
with negotiating fees with an evaluator or finding
mines the outcomes. It is the judge who writes the
another evaluator who charges less and asking the
orders. In actual practice, the phrase “best interest
court, if an evaluator has been specifically named
of the child” translates into nothing more than
by the court, to replace one with the other.
this is what the judge decided. Whatever the judge
decides, that’s touted as having determined what is In a San Francisco Superior Court custody case
in the best interest of the child. where there was a history of domestic violence, the
mother, who earned less than a tenth of what the

w w w. c a n o w. o r g 57.
 father earned, was filed in forma pauperis and was this mother’s nightmare, wouldn’t you know, was a
usually required to appear in the court in pro per. member of one of those yummy-sounding “fair-
She repeatedly begged the judge for attorney fees. ness” committees at the California Judicial Council.
The judge refused at every turn. As a tactic to exert
While a judge is empowered to make orders
continuing power and control over the mother, the
affecting the parties and their children, he or
father engaged in on-going and extensive financial
she does not have the authority to require any
abuse by routinely requested the appointment of
particular person to perform a custody evalua-
experts to the case – and the judge was always more
tion: any evaluator is completely free to refuse
then happy to oblige. Based on my knowledge of
any assignment.
the case, the judge never made any effort whatso-
ever to determine in advance what any cost would Stipulating to anything in regards to custody,
be and clearly made no effort whatsoever to fairly visitation, therapy or evaluations can be a very
apportion any costs based on the hugely differ- dangerous business. Judges are required to act
ing financial abilities of the parties.When the issue within their jurisdiction and craft court orders
of cost arose the father quite conveniently said no that comport with the law. While judges have
problem, your honor—just order each party to pay broad discretion in family law, their authority
half and he would be more than happy to advance is none the less limited by jurisdiction and law.
the full amount up front (ultimately advancing Agreeing to something that is beyond the juris-
well over six figures on the mother’s behalf) and diction of a judge or that the law does not allow,
the mother could just owe him. And so the judge can give the judge authority where he or she
did.The mother provided documentation to the previously had none. When asked to “stipulate”
court regarding the overwhelming debt that was to anything, it is important to ask why it is that
being generated by the judge’s orders and request- the judge, whose job it is make decisions, does
ing that the judge re-apportion the costs according not want to make this one. Being told that one
to the relative financial positions of the parties. Her should agree because if one doesn’t the judge
requests fell on deaf ears. Finally, the mother, hav- will just order it anyway is a manipulation. Be-
ing been court-ordered into overwhelming debt, ing told that if one does not voluntarily agree to
attempted to discharge the debt in bankruptcy.The something the judge wants “the judge won’t like
father vigorously opposed her in the bankruptcy it,” is a form of coercion. It is the job of a judge
court bragging in one declaration that he had spent to make decisions. If the judge believes he or she
even more than the full amount owed him by the has the authority to make a particular order, he
mother on attorney fees for the purpose of op- or she does not need anyone to stipulate to it. Let
posing the bankruptcy. Court ordered therapy for the judge do his or her job.
children and evaluation expenses are considered Acknowledging the “havoc” caused in liti-
child support under federal bankruptcy law and gants’ lives and the exceedingly destructive out-
are not dischargable debts.The judge that created comes based on judicial reliance on incompetent

58. Fa m i ly L aw: D i s o rd er in the Courts

evaluators, the California legislature has mandated O’Donohue, there is no scientific support for the
specific educational requirements for evaluators. indiscriminate use of psychological tests in custody
Litigants should not simply assume that an evalu- evaluations. They state:
ator has complied with the requirements. It is
“...difficult to explain and problem-
important to verify that an evaluator is currently
atic...are...evaluation practices includ-
qualified to perform evaluations as well to find
ing widespread use of well-established
out if he or she is in good standing with his or
measures with no clear relevance to the
her licensing board. It is also important to under-
custody context (e.g., measures of intel-
stand that the fact that a licensed mental health
ligence), attempts to measure constructs
professional has attended the required educa-
created to apply to child custody deci-
tion does not automatically ensure that he or she
sion making (e.g., “parental alienation
will perform his or her assignment competently,
syndrome”), efforts to identify “parent
knowledgeably or ethically.
of choice” (e.g., the Bricklin Perceptual
Reviewing resumes and interviewing evalua- Scales), and the use of measures that
tors is also important. There is a difference between a significant number of psychologists
scope of practice and scope of competence. Scope view with skepticism (e.g., the Ror-
of practice refers to the legal definition that frames schach Inkblot Technique).” 4
what a particular profession does and the limits
Other tests Emery, et. al. question are the use
placed on the functions persons in that profession
of the Achenbach Child Behavior Checklist; Ack-
may lawfully perform. Scope of competence, on
erman-Schoendorf Scales for Parent Evaluation
the other hand, refer to the limits placed on what
of Custody; Custody Quotient; Draw a Person;
a particular person in that profession may do based
Human Figure Drawings; MMPI/MMPI-2; Par-
on his or her education, training, and experience.
ent Awareness of Skills Survey; Parent Perception
Families who have special problems, e.g., domestic
of Child Profile; Perception of Relationships Test;
violence, substance abuse, parents or children with
Wechsler Abbreviated Scale of Intelligence, and
specific disabilities or medical conditions, etc., need
the Weschler Intelligence Scale for Children-IV.5
to assess whether, notwithstanding compliance
An internet search on the subject will turn up
with the educational prerequisites for court-ap-
an impressive array of allegedly better, differ-
pointed evaluators, an evaluator has the requisite
ent custody evaluation tests, all with no science
background that will allow him or her to compe-
supporting their validity, marketed in the name
tently address the issues.
of custody evaluation tools for use by court ap-
Many custody evaluators include psychological pointed experts.
testing of parents and children as part and parcel of
Litigants should ask, in advance of com-
the evaluation process. Psychological testing is used
mitting to an evaluation with a specific evalua-
very rarely in private practice and even in inpatient
tor, under what circumstances he or she utilizes
psychiatric settings. According to Emery, Otto, and

w w w. c a n o w. o r g 59.
 psychological testing for a parent or child in report on the sessions or the outcome or make an
performing a custody evaluation. If testing is used, assessment to the court are demands beyond the
evaluators should be required to provide a copy limits of a judge’s authority.
of the scientific studies underpinning the use
Finally, litigants can retain private therapists to
these tests in custody evaluations.
support them through the process to address the
The differences between a custody evaluation intense emotional issues that naturally arise and
and therapy are enormous. A custody evaluation to support problem solving. This can be especially
is a legal discovery procedure that is occurring useful if the therapist has experience working
in an adversarial context. Litigants can help to with litigants in the family law system and has an
ameliorate concerns having to do with honest understanding of the dynamics of litigation.
and fair reporting or accuracy in an evaluation by
All this having been said, what follows is the
tape recording the sessions.
most important point of all. While the judge is
Also, it is important to point out that court responsible for the outcome of his or her cases,
appointed evaluators have certain legal protec- we individually and collectively are directly
tions including, but not limited to, that court responsible for the fact that any particular per-
appointed evaluators cannot be sued for malprac- son is sitting as a judge in a court. The California
tice for what they do in a case. This is not to say, Constitution provides for the election of judges
however, that mental health professionals appoint- to our state courts at all levels. Judges of superior
ed by a judge are free to do whatever they please courts hold office for six year terms after being
and if there are concerns about the conduct of an elected at general elections held in the counties
evaluator, those concerns should be addressed in a to which they are assigned and each receives a
complaint to that professional’s licensing board. substantial income which comes out of the gen-
eral tax fund.
In California, judges are allowed by law to
order litigants into therapy for parent-child issues. Our state constitution intends for judges to
It is important that the judge identify specifically be elected officials and that citizens be fully aware
on the record the alleged problem for which the of the decisions individual judges are making and
therapy has been ordered and state the specific have regular opportunities to publically discuss
length of time for the therapy as is required, and debate individual judicial performance for
and limited by code. Litigants generally select the purpose of making responsible decisions
their own therapists and if a litigant is already about who it is exactly we want to choose to
in therapy, that therapist should suffice. Because settle our disputes. Our state constitution pro-
therapy is court ordered does not mean that the vides for the filling of judicial vacancies prior to
legal privilege of confidentiality therapy clients the expiration of terms by allowing the governor
enjoy as a matter of law evaporates. To attempt to appoint a temporary replacement. This privi-
to require the therapist to come into court and lege is effectively a perquisite for the governor

60. Fa m i ly L aw: D i s o rd er in the Courts

allowing him to engage in political pay backs taking place and scrutinizing our judges. That is
by gifting judgeships to friends and to friends of how the system was meant to work. That is how
friends, etc. the system does work. But the system only works
if we work it. The poor quality of our judiciary
As a way of circumventing the right of the
is the direct consequence of having abdicated of
community to elect our judges, the men and
our personal responsibility to identify, elect, and
women occupying judgeships (the vast major-
then monitor and report on those persons we
ity of whom were appointed rather than elected)
choose to decide our matters.
routinely choose to vacate their offices prior
to the end of their terms in order to allow the This is a fact worth repeating: the major-
governor the opportunity of appointing a tem- ity of California judges have served many terms
porary replacement. If the temporarily appointed in public office despite the fact that these judges’
judge is unchallenged at the end of the term for names have never appeared on any voter bal-
the vacancy he or she filled, he or she simply re- lot ever and despite the fact that they have never
mains in the judgeship. As he or she is considered received even one vote! Repeat judicial terms
to have been running “unopposed,” his or her ought to be reserved for only the best and bright-
name never appears on any election ballot. For all est which means that as a matter of course, most
intents and purposes, the community whose right candidates ought not to serve more than one
it is to discuss, consider and choose it’s judges is term. As citizens, “we the people” are responsible
entirely unaware that a judicial term has even to oversee and craft our government. We must
expired. Slick move. The result of all of this is that vote for our judicial officers and then hold them
we have judges we don’t know, the vast majority accountable for what they do in our name just
of whom where appointed for political pay back as we do all other public officials. Knowing who
purposes, who have made careers at tax payer’s our judges are, observing their behavior in and
expense out of what was intended to be a short- out of court, knowing what decisions they are
term opportunity for public service. making and whether they are conducting them-
selves ethically, and encouraging and supporting
There is no public official who can have a
attorneys to compete for judgeships is the most
greater personal effect on the lives of individuals
effective way to improve the quality of judicial
and families for good or for ill than a judge. Our
decision-making in family law cases.
country was founded on the principle that the
more power a public official has, the greater the
public scrutiny required. This is exactly why, in
every town in which there is an old court house,
that court house is located in the center of town
and each court room has a gallery. We are sup-
posed to be regularly seated in the galleries of
our courtrooms watching and discussing what is

w w w. c a n o w. o r g 61.
 Footnotes:

1. See California Family Code §3080, et. seq. See also California Fam-

ily Code § 3002, et. seq., especially § 3020, “Legislative finding and

declarations. The Legislature finds and declares that it is the public

policy of this state to assure minor children frequent and continu-

ing contact with both parents after the parents have separated or

dissolved their marriage, and to encourage parents to share in the

rights and responsibilities of child rearing in order to effect this

policy, except where the contact would not be in the best inter-

est of the child,” and, §3022 “Authority of court to make custody

order.”

2. Emery, R. E., Otto, R. K., O’Donohue, (2005). A Critical As-

sessment of Child Custody Evaluations: Limited Science and a

Flawed System. Psychological Science In The Public Interest, 6:1, 15.

3. Fewel v. Fewel (1943) 23 Cal.2d 431, 436 judicial decision mak-

ing “may not be delegated to investigators or other subordinate

officials or attachés of the court, or anyone else”. Also, unilater-

al ceding of authority by a judge has been found to be grounds

for discipline by the Commission on Judicial Performance and

the California Supreme Court.

4. Emery, et. al. at page 7.

5. Emery, et. al. at pages 5-9.

62. Fa m i ly L aw: D i s o rd er in the Courts

Joint Custody - A Failed Proposition
for Women, Children…and Loving
Fathers
By Trish Wilson

Fathers’ rights activists have been promot- A study by Maccoby and Mnookin found that,
ing presumptive joint physical custody for many when joint custody is ordered to resolve custody
years. Fathers’ Rights groups like Fathers and disputes, three years later the couples experienced
Families, and the American Coalition for Fathers more conflict and less cooperative parenting than
and Children, have mandatory joint physical couples for whom joint custody was the first
custody on the top of their agendas, and efforts choice of each parent. This proves that presumptive
have been made or are underway in every region joint physical custody alone does not improve the
of the country. Presumptive joint custody bills relationship between warring parents. Children are
studied or introduced in California, New York, caught in the middle of these skirmishes, and they
Nevada, Colorado and Maryland have failed. Pre- suffer for it.
sumptive 50/50 joint custody has been rejected
Forcing joint custody on parents, especially
in Australia, New Zealand, Canada (Ottawa and
when one parent does not want it, or feels it is
Ontario), and the U. K. Lord Falconer, the U. K.
not good for the children, does not inspire par-
constitutional affairs secretary, said: “There can-
ents to cooperate with each other when it comes
not and will not be an automatic presumption of
to parenting their children. As blogger Ophelia
50/50 contact. Children cannot be divided like
Payne said, “presumptive joint custody with the
the furniture or the CD collection.”
50/50 arrangement should never be applied
Fathers’ rights activists see presumptive 50/50 across the board. People do divorce for reasons
joint custody as a means of lowering their child other than incompatibility, and to hand children
support obligations. They also see it as a means of over to people who may very well be abusive or
meddling with parenting decisions by the pri- in some other way mentally unstable in the name
mary caregiving parent, who is most often the of legal consistency does everyone a disservice
mother, in order to stay in control. These groups but the unstable parent.”
disguise their agenda promoting presumptive
Presumptive 50/50 joint custody does not
joint physical custody by calling it “shared parent-
take the individual needs of children into ac-
ing.” There is nothing “shared” about presumptive
count, nor is it based on there being “shared par-
joint physical custody. “Physical custody” refers
enting” before the divorce. It caters to a minority
only to where the child lives. It does not refer to
of fathers who demand it. Ms. Payne has also
the act of parenting itself or the ability to parent.
written: “What children need is true consistency,

w w w. c a n o w. o r g 63.
 not legal consistency, and in a time of divorce primary or joint custody in more than 70 percent
‘consistency’ does not amount to being shuttled of contested cases.”
between homes just because one parent or the
Schafran noted that, “the various gender bias
other feels cheated by their ex. Someone has to
commissions found that at the trial court level, in
give, and it should never be the children.”
contested custody cases, fathers won more than
Custody should be determined on a case- half the time. This is especially significant in light
by-case basis. One particular form of custody, of the fact that not only do fathers win more
such as joint custody, should not be forced on often in court when they take these cases to trial,
parents when other forms of custody would be but also that an overwhelmingly higher percent-
more appropriate for them and especially for age of fathers gain primary custody — by any
their children. Joint custody is already an option means — than were ever the primary caregiver
for parents who choose to try it on their own. of their children during marriage. Statistically,
There does not need to be a presumption for it. this dashes the argument that ‘only the strongest
90 percent of parents settle without the need for cases are taken to trial,’ and in fact indicates an
court intervention in deciding what form of cus- extraordinary bias against mothers and the value
tody is best for them and for their children. Most of mothering and mothers’ work.”
parents do not choose joint custody because they
The children’s needs are often ignored when
recognize how hard it would be on their chil-
presumptive joint custody is applied. Researcher
dren. They also recognize that in most cases the
Dr. Judith Wallerstein has acknowledged that
mother had been the primary caregiver of the
joint custody asks a lot of children, even when
children, and they believe she should continue in
there is no abuse. It is harmful to children who
that capacity. That is why mothers most often get
cannot handle the restrictive schedule. Many of
sole custody. It is not due to bias against dads in
them cannot handle the shunting back and forth
court, like the fathers’ rights movement wants us
between homes very well. They also must keep
to believe. When dads make an issue of custody,
track of which home they are to be in on a given
they get some form of it more than half the time,
day, which is stressful for them. They lose track of
most often joint legal custody.
their friends and their extracurricular activities
Courts are not biased against fathers. Lynn suffer when parents pay too much attention to
Hecht Schafran found in “Gender Bias in Family when the children are supposed to be with them
Courts,” published by the American Bar Associa- rather than on what their children would like to
tion Family Advocate, that “despite the power- do with their own time.
ful stereotypes working against fathers, they are
In the cases where joint custody has worked,
significantly more successful than is commonly
the families had these qualities in common: the
believed. The Massachusetts [gender bias] task
parents had an amicable relationship, their divorce
force, for example, reported that fathers receive
was amicable with little or no conflict, they had

64. Fa m i ly L aw: D i s o rd er in the Courts

higher-than-average incomes, they had only one along.” What did fathers’ rights activists give to
child, neither parent (especially the father) had fathers with their push for their “rights?” More
remarried, they lived within close proximity of expensive litigation, expensive and mandatory
each other, they had flexible job schedules, the evaluations and classes, and no problems solved
child could handle the joint custody arrangement, because the court system is not designed (nor
the parents chose freely between themselves to should it ever be designed) to make sure parents
try joint custody and they chose to make it work. parent properly. Ironically, fathers’ rights lobby-
ing has harmed fathers much more than anything
Cases requiring a judge to decide custody are
they accuse feminists of having done.
over-represented by cases involving abuse, unfit
or uninvolved parents, power and control issues This set-up allows mandated custody and
and other issues. It is because of those kinds of psychological evaluations, parenting coordinators
cases and fathers’ rights lobbying for presumptive (who create parenting plans), guardians ad litem,
50/50 joint custody that divorce- and custody- and mediation to be ordered by the court, the ex-
related cottage industries have been introduced pense of which is entirely paid for by the litigants.
into the court system. Divorcing parents now It is mom who takes on the brunt of the burden
often have to pay for mediation, arbitration, because mothers traditionally earn less money than
psychological and custody evaluations, child legal men and childless women. Often mothers get un-
representatives (called different things in dif- fairly charged for evaluations and mediation, often
ferent states), model parenting plans and parent financially devastating her and leaving her with
education programs. That means making money less or no resources for representation. This leaves
from divorce and custody cases, and boy, is there many women fighting for their children pro se
money to be made! Fathers’ rights activists keep (without counsel), while being charged thousands
these divorce industry professionals in business by and thousands of dollars for court ordered “extras.”
insisting on paying them for custody evaluations, In some really bad cases, mom ends up paying to
psychological evaluations, and the like. have supervised visits with her child after dad suc-
cessfully batters her with excessive litigation and
U. S. fathers’ rights lobbying for “equal rights”
financial draining on extras.
and “children needing both parents” caught
the attention of the Association for Family and Contentious or “high conflict” cases are a mi-
Conciliation Courts. Members of AFCC include nority of all divorce cases, and they often involve
attorneys and especially psychologists who have parents who are unable or unwilling to put the
jumped on the divorce/custody bandwagon to best interests of their children first. A Florida Bar
make lots of money via mandatory mediation, Journal article by Ann White, Esq. reported that
custody evaluations, psychological evaluations, abusive fathers are much more likely than non-
appointments of guardians ad litem, and the rise abusive parents to contest custody, not pay child
of the use of parenting coordinators - all very support and kidnap their children. Those abusive
costly requirements designed to help parents “get and contentious dads will keep their ex’s in court

w w w. c a n o w. o r g 65.
 no matter what. High conflict cases are less than the pockets of parents. That money would
ten percent of all divorces. They include abusers, be better used on their children. Because
disinterested parents, ne’er do wells, control freaks, of these divorce-related cottage indus-
people with substance abuse problems, people with tries, people who make their money from
psychological problems and other issues. contested custody cases and divorces are
getting rich at the expense of parents and
Most parents manage to work out visitation
children going through a very painful
schedules on their own and they adapt to the
time in their lives.
changes that become necessary as a child grows
and matures. I’ve heard both good and bad rea- 2. Require that all guardians ad litem and
sons regarding why mom or dad either won’t let mediators be properly trained and moni-
the other parent have a scheduled visitation or see tored. Set up standards for guardians ad
the kids when they are scheduled to do so. While litem and mediators that must be met.
I hear fathers’ rights activists and supporters com- Currently there is no quality control, and
plain all the time about moms who won’t let dads little or no accountability.
have their visitation, I hear very little from them
3. Prevent the use of bogus “syndromes”
about the dads who have little to no interest in
such as Parental Alienation Syndrome
seeing their children. Those moms and kids have
from being used in the family court sys-
no ability to force dad to be a good parent or to
tem. Also prevent the use of “friendly par-
abide by his visitation.
ent” theory, which discriminates against
These problems with the family court are and denigrates primary caregiving parents,
not isolated to a few cases. While mothers are most of whom are mothers.
often financially and emotionally devastated by
4. Recognize that we live in a mobile
their family court experiences, it is the children
society, and that it is sometimes neces-
who pay the price. As a civil society, founded on
sary for a parent to relocate. Do not
principles of fairness and justice, we must address
discriminate against custodial parents who
these problems with major reform.
wish to move, while allowing non-custo-
Suggestions for Change: dial parents to move, even if their move
1. Do away with the “divorce industry.” completely disrupts visitation. A study
Prevent the use of custody evaluators, by Sanford Braver found that non-custo-
psychological evaluators, mandatory dial fathers are just as likely to relocate as
mediation, guardians ad litem, mandatory custodial mothers. Forbidding a custodial
parenting classes, and the use of parenting mother from relocating with her children
coordinators who create “parenting plans” violates her Constitutional right to live
for couples in the midst of a contested where she pleases and to improve the
custody battle. The divorce industry drains quality of her and her children’s lives.

66. Fa m i ly L aw: D i s o rd er in the Courts

5. Do away with presumptive joint physi-
cal custody. Parents should be looked at
on their own merits to determine which
form of custody is most appropriate for
them and their children. A cookie-cut-
ter approach to custody - which is what
presumptive joint physical custody is -
ignores established parenting patterns and
the best interests of the child.

6. The way parents “share” custody upon

divorce should reflect the way they have
“shared” parenting while married. Di-
vorcing parents are not equally situated
when they enter a courtroom. Courts
must recognize that one parent had taken
on sacrifices and losses inherent in taking
on the role of primary caregiver. Most
often, that parent is the mother. Do not
minimize or denigrate these sacrifices
by ordering “shared parenting,” which is
nothing more than a euphemism for joint
physical custody.

7. Award alimony in a way that divorcing

mothers are able to get back on their feet.

8. Remove the tie between child support and

physical custody/visitation. The California
Gender Bias Report has shown that non-
custodial fathers often seek the number of
overnights with their children that will get
them a lower child support order.

w w w. c a n o w. o r g 67.
 Down the Rabbit Hole: Legal Strategy
in Protective Parent Cases
By Kristen, Diane and Charles Hofheimer

A protective mother often enters the judicial ent story to the judge, and the judge will not
process like Alice down the rabbit hole: thrown magically know which story is the truth. In
into a universe where an entirely new and the courtroom, it is not about truth, it is about
counterintuitive set of rules apply. Her intuitive evidence. Do not get caught up each and every
responses and her expectation of justice make her time something happens in your case that is not
look raving mad, while the batterer appears to fair. Save your physical and emotional strength to
be the victim. Strategically, it is best if the pro- focus on your strategy.
tective mother can familiarize herself with the
Sometimes unfair can benefit you in the long
Wonderland rules of the courtroom and prepare
run. Most batterers are narcissistic. Given enough
herself to function in that universe, rather than
rope, they often hang themselves.
getting stuck on how backwards or unfair those
rules may be, at least until her case is concluded. Making things right in the system is a differ-
The following is a series of tips to assist protec- ent battle than protecting your children. Do not
tive mothers in navigating the world of the court try to fight both battles at the same time - protect
system, first addressing how to avoid the traps that your children first. Protecting your children is
your abusive former partner will set in order to more important than being right about anything.
try to make you look like the crazy or unstable Even if you do not agree with the rules, some-
person he wants others to believe you are, and times you have to play by them in order to win.
second addressing how you and your attorney Suffer fools if you must, and chalk it up on the
can best present your case so that the court can “puke meter.”
finally “get it.” 2. Be aware of the effects of Post-Traumatic
1. Avoiding the traps that make you look like Stress Disorder.
you are the unstable parent. Protective mothers often find themselves
Forget Fair: That’s right, forget fair. Swallow in the midst of custody litigation following
the pill early and wholly. None of what is hap- their own escape from ongoing abuse at
pening in your life is fair and the court will not the hands of the abusive parent. Because of
even the score. Never assume that the judge is this, the protective mother is often suffering
going to hear you tell your story and then stand from post-traumatic stress disorder (PTSD)
up for you.You can be sure that your children’s while she is dealing with attorneys, custody
father (and his attorney) will tell a very differ- evaluators and guardians ad litem as well as
when she is sitting in the courtroom. The very

68. Fa m i ly L aw: D i s o rd er in the Courts

fact that she is suffering from post-traumatic evaluating the reasonableness of her anger.
stress disorder can play right into the theory
In contrast to the post-traumatic protective
of the universe that the abusive parent wishes
parent, the batterer will always appear calm,
to promote.
friendly and helpful. The batterer will always
Because of PTSD, a protective mother is of- be in control of his words, his gestures and his
ten worn thin and frazzled. She may be physically, expressions.
emotionally and cognitively disorganized. She is
3. Get the “Stepford Wife” Makeover.
at the end of her rope and can appear to others to
be crazy, just as the batterer repeatedly says she is. Even though you shouldn’t have to, and even
Because the batterer is so persistent, the protec- while the world is falling down around you,
tive mother has often exhausted her usual allies, looking like what the judge thinks a mother
including her family and friends and has often should look like will help you tremendously.
been through a few attorneys before her case is This is the time to succumb to patriarchal
through. She has insufficient financial, emotional ideals of motherhood. Change the world
and sometimes legal support and appears to oth- later. This makeover not only includes your
ers to have few “believers.” wardrobe, but your mannerisms and the way
that you communicate with the judge and
A batterer has often conditioned his victim
other important people in your case.
to appear as if she is overreacting. The abuse, even
post-divorce litigation abuse, can be so subtle and The most superficial change that can affect
insidious that its messages and effects are seen and the outcome of your case is your wardrobe. At
felt only by the victim. They are inherent in the this point in your life, you may have to borrow
relationship. When the victim tries to point out clothes from your friends or visit a high-end con-
the abusive tactics to persons outside the rela- signment shop, but your clothing and appearance
tionship, she appears to be overreacting to very in court is very important to your case. Even if
minor and/or reasonable action on the part of money is not a problem and your closet is full of
the abuser. When the abuser then states that the designer business suits, you probably want to wear
protective parent is hysterical and overreacts to something a little more maternal than that. While
everything, he is believed. a business suit may convey that you are a success-
ful, contributing member of society, you want the
Because the protective parent has lost faith in judge picturing you at a PTA function or soccer
a system which has failed to protect her child and game, not a board meeting.
has allowed the batterer to have ongoing oppor-
tunities to further abuse her through litigation, A nice, tailored suit in something lighter
the protective parent often appears angry and and less lawyer-looking than black, navy or pin-
frustrated at the court system. The people at the stripe is always a good bet. A knee length skirt is
top of the very system which is the subject of more motherly than slacks.Yes, it is old fashioned,
her anger and frustration are now charged with but remember, in some states, female attorney

w w w. c a n o w. o r g 69.
 hopefuls are still not allowed to wear slacks while It is important to remember that the opposing
taking the bar exam. This is the climate in which attorney is not always a bad person.You may cer-
you are functioning. A soft-colored blouse or tainly disagree with her or him or correct her or
sweater and low heels complete the soccer-mom- him, but do not argue or make it a personal battle
going-to-junior-league-luncheon look. If you have with the attorney. She or he may not be personally
or can borrow a set of pearls (they can be fake a la invested in the case. Also, she or he may have fallen
Barbara Bush) and earrings, even better.Your hair for the batterer’s story, in which the batterer is
should look neat, but not severe. Even though it the victim. Remember, your ex is convincing. He
sounds silly and has nothing to do with the mer- managed to pull you in at one time.
its of your case, the judge will be watching you
4. Never make faces in court, i mean never.
throughout your case, and the way you look will
form a large part of the judge’s opinion of your I cannot overemphasize this.You will hear
credibility and ability to function as a mother. ridiculous things in court.You will be made out
to be a horrible person.Your ex will tell lies. His
Always be courteous and polite to every- witnesses will tell lies. It doesn’t matter. If your
one in the process. If someone needs to play bad face is contorted and your eyes are rolling while
cop, let that be your attorney. The clerk and the these lies are being said about you, it will make
bailiff are as important as the judge. Judges often the lies more convincing. If you keep a poker
ask their clerks and bailiffs about the behavior of face while the lies are being told, the lies will be
parties when the judge is not in the courtroom. far less credible. The judge sees you on the wit-
Likewise, if you behave badly in front of the sec- ness stand for a far shorter period of time than he
retary or receptionist of an evaluator or guardian watches your demeanor while the attorneys make
ad litem, you can be sure it will have an impact their arguments and the other witnesses testify.
on what kind of person that evaluator or guard- Many judges are convinced that they can see
ian thinks you are. I know one guardian ad litem what is “really going on” in a case by watching
who has a hidden camera in the reception area the faces, gestures and demeanor of the parties
of her office in order to see how parents behave while the case is going on.
with their children in the waiting area, when they
think no one is looking. Likewise, if the opposing party or someone
else is lying on the witness stand, do not say, “He’s
The guardian ad litem, custody evaluator and lying!” or begin gesticulating or scribbling notes
other professionals have immense power in your to your attorney wildly. For one thing, if you and
case. Do not argue with them, even if they are your attorney have prepared together sufficiently,
wrong. Put your best foot forward. If they do your attorney will already know that he is lying.
something wrong or make a mistake, tell your Your attorney needs to be listening to what is be-
attorney and let your attorney handle it. Re- ing said on the witness stand in order to effectively
member, you must always be the good cop, your cross-examine the witness. Furthermore, it makes
attorney can be the bad cop.

70. Fa m i ly L aw: D i s o rd er in the Courts

you look like the crazy person that the witness points with superfluous details can detract from
has just finished saying that you are. If someone is the evidence that will have the most profound
lying and you are not confident that your attorney impact on your outcome. Give facts and not con-
is aware of the lie, calmly and quietly write a note clusions. It is the province of the court to make
and pass it to your attorney discreetly. conclusions, your job is to present the facts in a
way which leads the judge to reach the correct
Remember, the judge does not have a crystal
conclusion. Finally, remember that the judge’s at-
ball revealing the truth to her or him. The out-
tention may drift. Give the important details, but
come of your case does not depend on the truth,
be focused and succinct.
but on the evidence that is presented in court.
Your presentation in court and your testimony When speaking with evaluators, guardians ad
are part of that evidence. litem and other potential witnesses, do not as-
sume that you can trust people just because they
5. Always tell the truth, but don’t spill your guts.
are supposed to be helping you or your children.
While it may be cathartic to open up the Talk to your attorney before speaking to anyone
floodgates and let it all come gushing out, litiga- about your case. Do not attempt to publicize
tion is not the appropriate forum for that ca- your case without first discussing it with your at-
tharsis.You need to speak in such a way that the torney. Remember that you are only guaranteed
evaluators, guardian ad litem and the judge are confidentiality when you are speaking to your
ready, willing and able to hear you. attorney outside the presence of anyone except
First and foremost, tell the truth. There may your attorney and her/his agents.You have no
be some parts of your story that do not cover you privilege of confidentiality with the guardian ad
in glory. We all have done a thing or to that we litem, your child’s therapist or an evaluator. Also,
would rather not have to talk about in a custody be aware that you may be being taped, there may
battle. Besides the fact that lying under oath is be a tracking device on your vehicle, your house
wrong and illegal, it is far better to appear to be a may be bugged and there may be spy software
credible human than a liar. The truth, with expla- on your computer. These are relatively common
nation, is always better than a lie or half-truth. tactics for abusers. Paradoxically, it is important
not to tell people other than your attorney if you
When you are testifying, organize your
think that you are being taped or spied upon, as it
thoughts before speaking. If you need a moment
will make you sound paranoid.You can be certain
to gather your thoughts before you begin, it is
that the abuser has told everyone involved in your
absolutely fine to take a moment to do so before
case that you are, in fact, paranoid.
you begin answering a question. When you are
on the witness stand, make sure you are answer- 6. Watch out for land mines.
ing the question that is being asked. Do not lose Your ex will set them and then point his
the forest for the trees. Not every detail needs to finger at you when you stumble into them. An
be presented in court, and diluting the important

w w w. c a n o w. o r g 71.
 example of this is the “friendly parent trap.” The actions. If you react calmly, from a position of
abusive parent makes an unreasonable request strength, the traps will fail.
designed to catch you being an uncooperative
7. Take back the power.
co-parent. If you currently have physical custody,
he will ask for visitation over some period in The traumatic bonding which occurs be-
which he knows that you have something special tween hostages and their keepers also occurs
planned with your child, or he will ask for some- between abusers and their intimate partners. The
thing that you know is not best for your child, abuser creates a dependence on him and becomes
like bringing your child back from visitation at larger than life and omnipotent in they eyes of his
an unreasonably late hour on a school night. If partner or former partner. He can elicit emotions
he currently has physical custody, he will ask you from his partner at will - empathy, anger, guilt
to forfeit an important visit or create a situation (even when the partner is the one who has been
where it becomes terribly inconvenient for you wronged) and feelings of powerlessness.
to exercise your visit. He anticipates that you will It is helpful to understand how the batterer
react with in an angry and uncooperative man- operates. He uses coercion, power and control.
ner, which he will use as an example in court of He has a sense of entitlement with, and owner-
how you create friction. How you react to these ship of, his partner/former partner and children.
set ups is extremely important, and should be He uses manipulations, set ups and mind games.
discussed with your attorney before you give any The abuser projects what he is and what he does
response, whatsoever, to the set up. If you are put onto the subjects of his abuse, and he actually sees
on the spot and asked for an immediate response, himself as the victim. He is a master of minimiza-
your response should be, calmly, “I need some tion of his own bad behaviors, denial and blame
time to think about whether or not that idea shifting. He will use “gaslighting,” a technique of
is what is best for our child(ren).” Discuss with manipulating his victim and her surroundings so
your attorney whether it is a point on which that she begins to think that maybe he is right,
you should give in (and show how exceedingly maybe she is crazy. The abuser will do anything
reasonable you are to his capricious demands), or to wear down his partner’s self worth. He knows
whether you should counter with a calm, “No, I that he can elicit an emotionally charged reaction
do not think it would be best for Junior to go to from her, and he depends upon this.You cannot,
poker night at Hooters with you this Wednesday and the court cannot, change this pattern of ma-
night, but he would love to go to the children’s nipulative behavior.Your awareness of it, coupled
museum after school on Wednesday, if you would with your awareness of your own reactions to the
like to take him.” When you decline the unrea- behavior, can change the cycle. Remember, his
sonable request, always make a reasonable counter scheme relies upon your reacting strongly and
offer, and do it in writing. His traps depend upon emotionally to his behavior.
your having a strong emotional reaction to his

72. Fa m i ly L aw: D i s o rd er in the Courts

8. Do the unexpected. 10. Help the Court to “get it.”
Not responding the way an abuser anticipates Most of the work in a trial is done before
takes away his power. If he pushes a hot button, you ever go to court.You must be proactive, talk
respond with logic and emotional indifference. to everyone involved after being advised by your
Go along with his ludicrous demand, or offer a attorney. Evaluators, guardians ad litem, social
reasonable alternative instead. He will become workers and therapists will have mostly formed
flustered. Practice being non-reactive. Rather an opinion before the hearing.You must be in-
than reacting, keep a fact log of the dates, times volved in the formation of these opinions.
and incidences of his immature and selfish behav-
Your conduct in the pre-trial phase is crucial.
iors. That way, rather than making you look crazy,
You are living in a microscope slide at this point
his actions make him look unstable. He wants to
in your life. Assume everything you do or say is
keep you in a constant state of crisis. Remember,
known or knowable to the abusive parent and his
what is most immediate is often not the same
attorney.
as what is most important. Stay focused on your
long-term strategy. Every action does not require Discovery is a tool that attorneys use to find
a response. out facts, along with the opposing party’s theory
of the case and trial strategy. Extensive discovery is
9. Abuser’s biggest weapons are also their
absolutely necessary in protective parent cases. Dig!
Achilles heels.
Dig! Dig! The truth is out there. Do not forget cell
A batterer’s inherent sense of entitlement and phone records, they can be very helpful. Plot every
omnipotence can lead to carelessness. If he feels fact that you find out on your timeline of events.
that he is above rules and court orders, give him Make the connections. The extensive quantity of
some rope, rather than exhausting yourself in an relevant facts in protective parent cases must be
effort to rein him in. He may just hang himself. organized and digested well before trial.
Also, he is so accustomed to being able to ma-
Also, you need to file appropriate pretrial mo-
nipulate your behavior that he will be lost if he is
tions. If the other side has disclosed in discovery that
unable to.
they intend to introduce evidence which may be
His calm, cool and collected demeanor - if inadmissible, pretrial motions can narrow the issues
you think about it, that is completely inconsistent and exclude evidence which should not be allowed.
with someone who is listening to evidence that Trials can be won or lost on pretrial motions.
his child is acting out, disclosing abuse, etc. If he
Remember that your judge does not have
were not the perpetrator, he would normally have
any background into your situation except for
some emotional reaction to hearing these things
the admissible evidence presented in court. The
and would want to find out if the child is being
judge may not ever even see your children and
abused. He would want there to be investigations
will never be as invested in them as you are. The
and he would be cooperating with authorities.
judge is seeing the battering parent for the first

w w w. c a n o w. o r g 73.
 time, and it will most likely not be apparent that If your child’s father has abused your child,
the batterer is abusive, remember how long he once the abuse comes before the court, the
was able to hide his true nature from you. Also, it abuser will likely file a petition for physical cus-
is difficult for a judge to wrap his mind around tody. He will then have turned the child abuse
the idea that a man would abuse, and especially case into a child custody case. This changes all
molest, his own child. Just because a judge does of the underlying assumptions, clouds the abuse
not get it, does not mean the judge is evil or disclosure in suspicion, dilutes the issue of abuse
corrupt. In order to make a determination that and changes the focus and treatment.You need to
someone is a child molester, the judge has to clarify every step of the way that the abuse is not
mentally go there, which can be very uncom- a custody issue. The disclosure of abuse preceded
fortable. It is far easier for the judge to choose a the abuser’s campaign for custody.
rational alternate hypothesis.You must be able to
One thing that will help you is if you are able
show that the alternate hypothesis being offered,
to fit individual facts, which seem unimportant
that you are a crazy, vindictive alienating parent is
when taken separately, into the larger context.
not a rational hypothesis. Do not give up on your
Educate the court. Expert witness testimony on
judge and begin seeing him as the enemy when
domestic violence and on child sexual abuse is
things are not going well, instead, figure out how
extremely important, in some cases crucialyou’re
to tell your story in a way that your judge will
your ex presents evidence that he “passed” a
really hear it.
psychosexual evaluation or a lie detector test, you
In order to make your story convincing, you may need an expert on rebuttal to explain why
must unravel the facts. The abusive parent will an incest perpetrator can “pass” such an evalua-
present a story that seems very simple and easy tion and/or lie detector test. Make each witness’
to swallow. The truth is far more difficult. Con- testimony fit together. Show that each of your
cise and accurate presentation of facts is crucial. actions was a reasonable reaction to the events
Timelines, charts, graphs, videos, and other forms as they took place. Show why your story makes
of demonstrative evidence which break down more sense than his, why your reactions to disclo-
cumbersome amounts of information into tan- sures of abuse make more sense than his reactions.
gible and easy-to-read exhibits can be better ways
When he is on the stand, try to poke holes in
of producing evidence than lengthy testimony
his story. Surprise him on cross-examination by
about facts that seem menial when taken individ-
questioning his demeanor and response, which will
ually. The truth is essential. If you did something
probably be very cold and placid, to hearing state-
that makes you appear less than perfect, explain
ments his child has made regarding being abused.
why you did what you did. Remember, you are
Nothing can be as simple and black-and-white as
presenting facts, not opinions. Let the judge form
his story will be. Find the holes. Dig, dig, dig in pre-
the correct opinion herself/himself, based upon
paring the case. Find the truth, then find the admis-
your presentation of the evidence.
sible evidence.

74. Fa m i ly L aw: D i s o rd er in the Courts

 When all is said and done, let your closing and soul in your case, it is your life and
argument be the lightbulb over your judge’s head. your child. You and your attorney meet
Highlight the very best evidence as to why your occasionally to make sure you are on the
version is the truth and his cannot be. same page with regards to your case. You
should plan your communication in advance,
11. Pick the Right Attorney:
or it may not happen as it should. Trial
You absolutely must have an attorney who lawyers spend most of their time outside of
“gets it,” who understands the dynamics of the office, and it can be difficult to get them
abusive relationships and does not second guess on the phone. Set a series of appointments
the gravity of your case.Your attorney must with your attorney well before your trial date.
comprehend what she/he is in for. Attorneys If you are having a difficult time reaching
often hate protective parent cases because they your attorney by phone, call the office
are always hard fought, they never seem to end and schedule a telephone appointment.
and the money almost always runs out before When you have questions, see if they can
the case is closed. Even if your attorney has the be answered by a paralegal. Also, faxes
biggest heart in the world, she/he has staff and and e-mail can be more effective means of
overhead expenses to pay, not to mention that communication than telephone calls, but do
she/he is probably in business so that she/he can not turn into the boy who cried wolf. If you
pay her/his own personal bills, and time working fax your attorney daily, your faxes will not
is time away from her/his own family. Make sure get the immediate attention that they receive
your attorney is up for the fight, and make sure if you only send them when there is an
your attorney is being paid.You have the right to important, time sensitive issue. If you feel that
expect your attorney to work and fight hard for your attorney may not be on the same page
you, and your attorney has the right to expect as you, get the kinks worked out well before
to be paid for her/his services. Also, you have to trial day.
have someone in your corner other than your
If you become dissatisfied with your attor-
attorney. A friend, family member or therapist
ney, do not fire him or her impulsively. Make a
to provide you emotional support is an absolute
consultation with one or more other reputable
necessity.Your attorney will burn out too early if
attorneys to get a second opinion. Often, there
you rely on your attorney as your main source of
are minor kinks in communication that can be
emotional support. Also, many really great attor-
resolved in a short meeting. If so, stay with your
neys are lousy at providing emotional support.
attorney. It will be far more expensive to bring a
12. Remember: It Takes Teamwork. new attorney up to speed, and your new attor-
You should acknowledge that your case ney may not become as invested in your case as
is more important to you than it is to your your original attorney. Also, many judges see it as
attorney. Even if your attorney has her heart a weakness in a party’s personality or case if that

w w w. c a n o w. o r g 75.
 person has switched attorneys. If, however, you
have lost faith in your attorney, hire a new attor-
ney in whom you do have faith.You need to trust
that your attorney is doing her best for you, and
you need to be able to work together as a team.
If you cannot afford an attorney, read and reread
these tips until you have fully absorbed them, and
do the best you can.

76. Fa m i ly L aw: D i s o rd er in the Courts

Some Consequences of Covering
the Courts
By Kristen Lombardi

There’s an old adage among investigative was, “Oh, no. Not that topic.” Not the topic that
reporters slapped with a libel lawsuit: Wear it has hounded me ever since I began digging into
proud, like a badge of honor. After all, the argu- it three years ago. I cringed at the thought of
ment goes, when you do your job right, you putting into words my experience covering the
expose what people have fought to keep silent. courts, and my subsequent transformation from
The threat of legal action, in short, comes with proud reporter to beaten defendant. But then, I
the territory. had a revelation. By writing about how the fam-
ily courts treat child-abuse allegations, I’d done
I’d heard that adage over and over again in De-
nothing more than any good reporter would do:
cember 2004, when a 12-person jury ruled that an
I’d acted as a check on a governmental institution
article I’d written on the family-court system had
set up to protect children. My story shows just
libeled a father whose ex-wife had accused him of
the kind of barriers any reporter can bump up
molesting his children.The jury not only ruled in
against when tackling the controversial issue.
favor of the father, but also awarded him $950,000
to boot. In January 2003, I wrote a 9,000-word article,
based on a three-month investigation, examining
Until now, I haven’t worn this verdict as
how the nation’s family courts handle custody
a badge of honor. On the contrary, it’s been a
cases involving allegations of child sex abuse.
crushing blow for me. True, I stand by my work
The story hit the streets on January 10, under
chronicling a custody battle involving child
the headline, “Children At Risk,” and fronted the
sexual-abuse allegations. (At its core, the case has
Boston Phoenix, where I’d been a staff writer for
hinged on a subhead that one of my former edi-
four years. (I am now a staff writer at the Village
tors penned.) Yet I’ve known the general public
Voice, in New York City.) The article document-
wouldn’t see libel as honorable. And I’ve feared
ed a national trend in the family courts – how
I let down my article’s sources – all the experts
parents, primarily mothers, lose custody of their
who laid out how the nation’s family courts fail
children to alleged abusers.
to protect children from abuse, all the mothers
whose custody battles illustrated the systemic On its face, the trend seems counter-intui-
problems there. tive. How could a court system set up to protect
the best interests of children hand them over to
So when California NOW asked me to
potential abusers, even in the face of compelling
participate in this book project last fall, I balked.
evidence? I’d first heard this claim from child-
The first thing that flashed through my mind

w w w. c a n o w. o r g 77.
 welfare advocates while covering the priest sex- tation, or the right to talk to their kids on the
abuse scandal in Boston in 2002. I didn’t believe phone. Some were thrown in jail for contempt.
it then. And I’d had a hard time believing that The penalties seemed so out of whack when
such injustices could be occurring to another set compared to the women’s actions – all they were
of victims. But my sources kept pressing me to doing was trying to save their children.
examine the issue.
The mothers did not come across as conniv-
“It’s a scandal bigger than the Catholic ing, vindictive conjurers of false claims, as their
Church,” one source said, pleading with me. ex-husbands invariably argued in court. Their
pain and despair – their hysteria at times – col-
I started digging. And the more I dug, the
ored their voices and manifested in their faces. I
more convinced I became that the family courts
was convinced they were being honest, up front.
were failing kids. I discovered three studies
At the very least, I surmised in interviews, they
concluding as much – the first on the California
believed their exes were abusing their kids – and
courts, the second on the Massachusetts courts,
they often had records to back up those beliefs.
and the third on 1,000 custody cases nationwide.
I read medical exams and therapy reports, child-
I interviewed up to 25 experts, from family-
abuse investigations and court decisions. I saw
law attorneys to child-abuse specialists. They all
evidence of abuse on paper that left me unnerved.
seemed to have the same complaints about family
court, regardless of which state’s court system The paper trail helped me push for my inves-
they were familiar with. First, the courts relied on tigation. Unlike many reporters who cover child
social workers or therapists not skilled at recog- sexual abuse, my editor had been just as commit-
nizing sexual abuse. Second, normal courtroom ted as I was at exposing the problems in family
checks and balances didn’t exist. Third, gender court. In October 2002, she’d attended an awards
bias against women still prevailed in court. That ceremony in my place, and met some of the folks
two dozen sources could offer up the same criti- who’d tipped me off to the issue. When she re-
cisms struck me as significant. It told me I was on turned, she told me, “I think there’s something
to something. It told me to keep digging. here. Look into it.”

My interviews with mothers caught up in I bumped into plenty of barriers along the way.
what proved to be nightmares in family courts The biggest challenge, by far, had to do with ob-
inspired me to press on. I spoke with women taining documents. I managed to find enough of a
who lost custody to men who were targets of paper trail to document certain sex-abuse claims,
child-abuse investigations. In some cases, the al- but I couldn’t get my hands on the vast majority
legations seemed to be substantiated by physical of the paper work. Medical exams, therapy reports,
evidence.Yet this mattered little to family courts. and child-welfare investigations were often sealed,
When mothers kept complaining about abuse, legally, a sign of the sensitivity of child molesta-
they endured fierce punishment. They lost visi- tion. I’d go to a courthouse to request a custody

78. Fa m i ly L aw: D i s o rd er in the Courts

case file, only to find half of it redacted. I’d go to a That father never did file a libel lawsuit
courthouse to witness a custody hearing, only to because of my story. But the threat turned into
find it closed to the public. Those who knew the reality anyway. As part of my article, I’d described
investigations – child-protection workers or guard- a custody battle involving a prosecutor in another
ians ad litem – were legally barred from discussing state. In May 2003, four months after my article
their findings. had appeared in print, he sued me, my editors,
and the Phoenix, alleging he was libeled by four
I necessarily turned to those sympathetic to
phrases – four sentence fragments – in the nine-
the mothers’ plight to try to obtain confidential
page piece.
documentation. I interviewed as many sources
as I could about the content. In an attempt to When I read his complaint, it seemed surreal.
see the sealed records for myself, I often had to I believed I’d accurately reported the details of his
promise I wouldn’t quote from them or, on oc- custody fight. How government authorities had
casion, even let on I had them in my possession. received allegations that he’d molested his children.
Sometimes, it worked, and sources gave me mate- How social workers had conducted an investiga-
rials off the record. Most of the time, it didn’t. tion into allegations that his oldest daughter was
abused, and that she had pegged him as her abuser.
Then came the threat of legal action, a major
How the family court had awarded him full cus-
impediment to any journalistic project. This hung
tody of his other children. How did he have a leg
over me from the moment I’d begun reporting
to stand on, I wondered, when what I reported
on the family courts. Child-abuse experts told
was substantially true?
me, half-jokingly, that I’d probably face a libel
lawsuit if I tried to expose how women were You might think the First Amendment
losing custody to alleged abusers. Other journal- protects a reporter from liability for report-
ists who’d taken on this topic had already been ing on how a government agency responded to
sued. Not only that, but experts said some fathers’ sex-abuse allegations.You might think the First
rights organizations were actually encouraging Amendment protects a reporter for covering an
allegedly abusive fathers to use the legal system to assistant state’s attorney whose wife had accused
shut down publicity about their custody cases. him of a crime. Certainly, I did. But, it turns out,
I was wrong.
As I reached out to accused fathers, I found
out for myself how real the threat could be. I Indeed, the trial turned out to be a Kafka-
remember the panic that swept over me when esque nightmare, much like the experiences of
a lawyer for one father said, in response to my the mothers in my piece. Nothing went our way.
request for an interview, “You’re traveling down a The federal district court ruled, remarkably, that
very dangerous path here.” this prosecutor was not a public official for the
purposes of libel law, thereby keeping the suit
To me, the implication was clear: Publish this
alive. The court refused to reconsider its ruling
article, and we’ll sue.

w w w. c a n o w. o r g 79.
 even after hearing the father’s lawyer argue what If I’ve taken away anything from my legal
seemed to me to be a contradictory theory at ordeal, it’s that we, as a society, still have a hard
trial: that the State fired him because, as an assis- time with incest. We don’t want to talk about it.
tant state’s attorney, his background was subject to We don’t want to think about it. We especially
heightened public scrutiny. don’t want to recognize that powerful and suc-
cessful men might engage in such activity. I’ve
Over four days, 12 jurors listened as witnesses
concluded from my libel suit that all it takes for
detailed the investigation I’d described in my
people to push the idea out of their minds is little
article – the medical exams, state reports, physi-
more than protestations of innocence. How else
cal injuries, and more. In fact, my attorney argued
can I explain why the jurors would weigh the
that the records available to me when I wrote the
accounts of abuse – in the children’s own words
piece were just the tip of the iceberg. He subpoe-
– yet return a verdict for the father? What else
naed the confidential investigation file and read
could it be but societal denial?
sections of the report to the jury – including the
daughter’s graphic allegations. The way to chip away at this denial is for
reporters to do what I did, of course: Cover a
In the end, the jury sided with the father, go-
matter of indisputable public concern. The public
ing so far as to award him nearly a million dol-
needs to know how the family courts respond to
lars. Today, we continue to fight the judgment on
allegations of child sex abuse, and push for re-
appeal, which is pending in Massachusetts. But
form. And for that to happen, reporters need to
things got worse in January, when a second father
wear the prospect of a lawsuit as a badge of cour-
filed a libel lawsuit five days before the statute-
age. Whether they will or not, is another story.
of-limitations would have expired. His custody
case, famous among family-court reformers na- Kristen Lombardi is a staff writer for the Vil-
tionwide, was summarized in a paragraph in my lage Voice. Her work in exposing the clergy sex-
article. His name was mentioned once. For that, abuse scandal has been recognized by the Colom-
he’s demanding $10 million. bia Journalism Review and the Poynter Institute.
In 2003, the California Protective Parents Associ-
Looking back, I see the toll these libel suits
ation bestowed her with its “Friend of the Child
have taken on me professionally. They have ef-
Award” for “outstanding journalism and coverage
fectively shut me up, kept me from covering the
of child sex abuse crimes and their cover up,” in
family courts. People contact me all the time
part for her 9,000-word article about the failure
based on my prior work, pitching me one horror
of family courts to protect children from abuse.
story after another born out of the system. I tell
them the same thing – my beat won’t allow me
to cover the courts. Truthfully, though, I haven’t
had much desire to tackle this topic again for fear
of another turn on the witness stand.

80. Fa m i ly L aw: D i s o rd er in the Courts

The Making of “Small Justice: Little
Justice in America’s Family Courts”
By Garland Waller

Diane Hofheimer, a paralegal and child advo- Eventually, I mustered up the courage and put
cate, handed me the VHS tape with a warning: The the tape in the VCR. As promised, the videotape
video would chill me to the bone. She told me it showed a towheaded girl, clinging to a banister,
showed a three-year-old girl clinging to a banis- screaming, in a haunting, horrifying cry, “Please,
ter, begging not to be sent to live with her father. Mommy, please don’t make me go to my daddy’s
As Diane explained, a family court judge had house.” It was a singular moment in space and
awarded custody of this little girl to her dad de- time for me; it was the moment that changed
spite evidence that he had sexually abused her. The my life. If, as Diane said, this child was not a lone
thought of this made my skin crawl and part of me exception but part of a trend that extended across
refused to believe that our court system would do America then this amounted to a national scandal
this to a child. that needed to be exposed.

So I did what many people in my situation I began to research custody and divorce cases
would do: I put the tape on top of my “to do” in which violence or abuse was a component. I
pile. And there it sat, staring me in the face, for six had always expected that parents going through
months. About once a week, Diane would call to a divorce would put the needs of their kids first.
check in and see if I had watched the tape and each But, as the research unfolded I began to see that
time I had to tell her, “No, not yet.” She was patient. violent men tended to be the ones who demand-
ed custody. And when they did, they had a good
A little background. Diane is a childhood
shot at receiving it.
friend. She and I grew up in the same Quaker
meeting in Virginia. She and her husband, Charlie During the course of my research, I read
Hofheimer, had created a law office in Virginia things like:
Beach,Va., that represented women in custody and “Fathers who battered the mother
divorce cases. Together they had learned that the are twice as likely to seek sole custody
courts often ignored evidence of sexual abuse and of their children as non-violent fathers.”
awarded custody to the abusive parent, typically – American Psychological Association’s
the father. Diane was alarmed that no one in the Presidential Task Force,Violence and
media was telling this story. And that was why she the Family. (2000)
had turned to me. She was hoping that I would
And:
use my skills as a TV producer to get the word out
about this issue. “Abusers/batterers who are crimi-

w w w. c a n o w. o r g 81.
 nally liable for their violence nonethe- She also introduced me to mothers who had lost
less are getting sole or joint custody in custody of their kids to abusers.
approximately 70 percent of challenged
To document the abuse of justice being per-
child custody cases.” – The American
petrated by the family courts, I decided to follow
Judges Foundation, Domestic Violence in
Diane and Charlie Hofheimer as they worked
the Courtroom: Understanding the Problem,
with three mothers who were losing or had lost
Knowing the Victim. (1996)
custody of their kids in family courts. I never
“Between 50-75 percent of the doubted these women or their stories because
men who batter their wives or female they were so open, so desperate for help, so de-
partners also abuse their children. “ termined to protect their children. But I could
– Lenore E.Walker et al, “Beyond the see how they could lose in court, not because
Juror’s Ken: Battered Women.” 7 Vermont there wasn’t evidence, but because they presented
Law Review 1, (1982) themselves poorly. They were overwrought and
angry, and their emotions often affected their
I was growing increasingly convinced about
composure.
the extent of this scandal and its potential as the
subject of a documentary. But despite my back- I can’t imagine any loving mother, frankly any
ground producing well-funded syndicated docu- loving father, acting differently. Sometimes, after
mentaries on such topics as the fear of nuclear a day of shooting, I would lie in bed at night, un-
war, rape, child abuse and drug addiction, I had a able to sleep because of what I had seen. I won-
feeling no network would back me on this proj- dered what I would do if the court ignored me
ect until I could show them the finished goods. and my efforts to protect my child. Would I run
So, I decided to make my first independent, low away with my child? How would I live? Where
budget documentary using $20,000 of my own on the planet could I go without being caught?
money and one of my graduate students at Bos- I saw the underbelly of American justice and I
ton University who generously agreed to work wondered what options these protective mothers
for free. had.

In 1998, I began shooting “Small Justice: In addition to the mothers, my crew and I
Little Justice in America’s Family Courts.” I spent also interviewed leading experts like attorney
months gathering information, and fully immers- Richard Ducote, Dr. Carolyn Newberger of
ing myself in this issue. Given the complexity Children’s Hospital in Boston and Karen Win-
of the family court system and the intricacies of ner, author of “Divorced from Justice,” one of the
abusive relationships, I was lucky that I had Diane few books on this issue. These interviews further
Hofheimer to guide me. Diane explained legal convinced me that the system was deeply flawed.
theories and the intricacies of the family court
Unfortunately, all of the dads involved in the
system and she gave me boxes of legal research.
cases I featured refused to speak with me, as did

82. Fa m i ly L aw: D i s o rd er in the Courts

their lawyers. But I did manage to get an interview “What’s wrong with the mother?”
with Dr. Richard Gardner, the man who devised “Give me something that is more clear cut.”
Parental Alienation Syndrome, the debunked “It’s her word against his.”
theory behind many of the most egregious deci- “He looks pretty normal to me.”
sions handed down by family court judges. “Guys don’t do this to their kids.”
“I thought all mothers got custody unless they
According to Dr. Gardner, alienating parents,
were, like, nuts.”
typically the mothers, use accusations of abuse in
“We can’t air that.We could get sued.”
order to alienate their children from their fathers.
“It looks like ‘He said-She said” to me.”
During my interview with Dr. Gardner, one of
“This is way too complicated to explain to folks.”
the last he gave before he committed suicide in
2003, I asked him what a mother should do if her It is probably hard for anyone involved in
child revealed that his or her father had abused this awful situation to understand why the media
them sexually. will not touch this issue. After all, these stories are
filled with injustice and human drama. Unfor-
Gardner said she would respond by saying, “I
tunately, television stations fear lawsuits and that
don’t believe you. I am going to beat you for saying
fear hinders their willingness to uncover impor-
that. Don’t ever talk that way about you father.’”
tant stories and stand up for what is right.
Although Gardner’s theory has been widely
Although the large broadcasters rejected
discredited by the psychological establishment,
“Small Justice”, the good news is that the docu-
the fact is that many members of the judicial sys-
mentary received some acclaim. It garnered the
tem have bought into PAS. Now, when a mother
award for “Best Social Documentary” at the NY
brings allegations of sexual abuse before the court
International 2001 and was honored with the
she is often accused of PAS. Unfortunately, many
Award for Media Excellence from the 8th Inter-
judges find PAS more credible than a hospital
national Conference on Family Violence, which
record of vaginal tearing or unexplained blood in
was presented in California at the International
the anus of a child.
Conference on Family and Domestic Violence. I
As I wrapped up production of “Small Jus- showed clips of “Small Justice” and spoke at two
tice” in 2001, I thought I would have no problem conferences hosted by the National Organization
selling the show. After all, I had uncovered a na- for Women. “Small Justice” was also shown at The
tional scandal and I had extensive testimony from Museum of Fine Arts in Boston and the Key West
three protective mothers and a litany of experts Indie Film Fest gave it an award.
from across the spectrum. I was wrong.
I like to believe that “Small Justice” contrib-
I took the show to all the news magazines uted to the growing interest in this area. Over the
at CBS, ABC and NBC, but no one wanted it. past couple of years, conferences like the Battered
HBO and CNN also said no. I heard these re- Mothers Custody Conference have been dedi-
sponses over and over again:

w w w. c a n o w. o r g 83.
 cated to the issue, books have been written and have to find something deep in your soul
recently Breaking the Silence: Children’s Stories aired to keep you calm.
on PBS. These are big accomplishments and each
• Do not give journalists too much infor-
one helps to call attention to the heartbreaking
mation. If you provide too much material,
injustices in the system.
they won’t read any of it.
There are still nights when I cannot sleep
• Explain what your ex-husband/abuser will
because I hear Suzi begging not to be sent to her
say about you. Don’t hide those things.
father’s house. Every day, I get at least one letter
from a terrified mother or worried grandfather, • Ask the reporter if they need any ad-
someone trying to protect a child from a family ditional information. Experts? Statistics?
court system that is at best woefully misguided Court documents?
and, at worst, dangerous. And so, I believe that • Write an outline of your story and keep it
those of us who are able to fight the system, must to one page. If you can break it down into
continue the uphill battle to get the courts and bullet points, even better.
the media to listen to a disturbing truth.
• Make sure you explain that you are not
If you have a story about a travesty in the family alone.You are one of numerous parents ex-
courts that you would like a newspaper or television periencing this problem in the court system.
station to cover, here are some tips you may wish to
• Direct the reporter to websites where
consider before approaching a reporter:
they can learn more.
• Approach a journalist whose beat includes
• Give them the names of experts, nation-
the court system and/or social issues.
ally and locally.
• Explain your story in a neat and orga-
• If a reporter does not immediately agree
nized fashion. Be concise.
to cover the story, do not get upset and
• Explain how your story ties in with an slam the phone down or storm away. Try
issue of social justice the news station or to nurture the relationship by e-mailing
newspaper has previously covered. the journalist with updates about your
• Give the journalist time to think and to court appearances and any unfair rulings.
ask questions.

• Provide statistics and documents (a page,

not two) that support your story.

• Stay calm. As the protective parent, you

may be upset, anxious and distraught. Jour-
nalists hate that as much as judges do.You

84. Fa m i ly L aw: D i s o rd er in the Courts

What Breaking the Silence Means
By Dominique Lasseur

Documentary film producer Dominique Las- month. She was a professional, intelligent woman,
seur set out to explore the failures of the family and I thought this can’t be happening. This is
court system in “Breaking the Silence: Children’s clearly a horrible story, but it has to be one case in
Stories.” But when public television broadcast a million. But looking further we found the same
the program in the fall of 2005, the father’s rights story everywhere, in Florida, New Orleans, Ohio,
movement was quick to react with scathing criti- California, etc.
cism and a deluge of viewer complaints.
I spoke with dozens of women who were
What compelled you to take on this issue? very candid about what they had endured. After
listening to one story after another, there was
We didn’t set out to produce a piece about
no way to ignore the extent of the problem. We
custody issues. We had planned to make a docu-
chose to feature the stories where there were ex-
mentary about the impact of domestic violence
tensive court proceedings so that we could verify
on children. We really wanted to show stories of
that what the women was telling us was what she
what was being done to help children who were
had testified in court as well. So there was a clear
raised in domestic violence environments. What
history of allegations of domestic violence and/or
we found was one story after another of protec-
child physical or psychological abuse.
tive mothers having their children taken away
from them and given in sole or partial custody to All the women we interviewed went to court
the very man who terrorized the mother and the believing the system was fair, not thinking for a mo-
children. It was so outrageous, that when we heard ment their kids could be taken from them. It seems
the first stories we thought they were aberrations, that we are now on this issue where we were 20-25
but then we found that this was in fact happening years ago on domestic violence. I would assume that
often and everywhere. We knew at that point that it was as difficult at that time to talk about domestic
this was the story to concentrate on. violence, as it is to talk about this particular issue
now. People don’t want to believe it.They don’t
When did you become convinced that there
want to know about it.To tell you the truth, many
was a systemic problem within the family
times in my interviews I said to the woman I was
court system?
interviewing, “It would be easier to believe that you
I met a woman in New Jersey and I spent an were fabricating all this because what you’re telling
afternoon listening to her story. She had been di- me is so horrendous. It feels like you’re telling me a
vorced for two to three years and had lost custody story about some remote country where there is no
of her kids. Her ex-husband was making her life notion of justice.” And the fact that it’s happening
a total prison by dragging her into court every here in America was unbelievable, is unbelievable.

w w w. c a n o w. o r g 85.
 In your opinion what is the underlying problem? Was it difficult to find a network to back
your show?
In my view, the problem is that while criminal
courts have made tremendous progress in dealing No, I can’t say it was hard. We’ve been pro-
with domestic violence, family courts are not as ducing programs for Public Television for more
informed about the dynamics of family violence. than 20 years. I’m glad and proud that they are
broadcasting our programs. We co-produced
Why hasn’t the family court system pro-
Breaking the Silence with Connecticut Public
gressed in the same way as the criminal court
Television and it was aired nationally by PBS.
system?
But the backlash has been pretty strong.
On the record family court judges say to
women, “You’re an intelligent, professional There’s been an organized campaign mostly
woman, so I don’t believe you’ve been abused.” by father’s rights groups to demand that PBS stop
You would not hear a judge in criminal court say distributing the program. They characterized the
that because people know that domestic violence program as an attack on fathers. This is akin to
is not just happening in inner city, poor neigh- saying because you’re doing a documentary on the
borhoods. That’s one example. The other example Holocaust you’re accusing all Germans. It makes
is people who are aware of the dynamic of do- no sense. But it has given them a forum and they
mestic violence know what an abuser looks like have jumped on it. Our point was not to deny
and behaves like, they know that someone who is that some men are victims of domestic violence.
professional looking can be behind closed doors We did not seek to portray all men as rabid violent
someone who has terrorized his wife and family. abusers. What we wanted to say is simple: children
In fact, you have doctors, attorneys, actors who should not be put in the custody of a parent who
all look fabulous to the community but who are is endangering them.
violent abusers. I think it comes down to a lack In reviewing the show, ombudsmen for both
of training, lack of accountability. the Corporation for Public Broadcasting
What is the long-term impact of this problem? and PBS criticized Breaking the Silence for
lacking balance. How do you respond?
As long as this situation continues we will
undo years of progress on domestic violence be- The CPB Ombudsman, Ken Bode, clearly
cause women are put in a Catch-22. If they don’t had some personal axe to grind. He did not
report child abuse or domestic violence, they stand bother to contact us before writing his “report”
the risk of losing their kids because they failed and simply regurgitated the fathers’ rights argu-
to protect them. But if they do disclose domestic ments. He went on to write two more “updates”
violence or sexual abuse then the kids are at risk without any indication that he was interested in
of being taken away because the mothers will be the fairness and balance he claimed our docu-
blamed for alienating them or fabricating charges. mentary was lacking. The PBS Ombudsman did
a more honest job even if we disagreed with his

86. Fa m i ly L aw: D i s o rd er in the Courts

conclusions. And unlike Ken Bode, he published are very strict guidelines for PBS underwrit-
letters he received from people who disagreed ers who are not to exercise any control over the
with his report. editorial content of the programs they support.
Mary Kay simply made it clear that these rules
PBS’s official statement on the film indicated
had been respected and that we the filmmak-
that, “The producers approached the topic with
ers had full editorial control. The work of the
the open mindedness and commitment to fair-
foundation and of Mary Kay Corporation on the
ness that we require of our journalists. Their
issue of domestic violence is remarkable and will
research was extensive and supports the conclu-
continue to affect positively the lives of thousand
sions drawn in the program. Funding from the
of women across the country.
Mary Kay Ash Charitable Foundation met PBS’s
underwriting guidelines; the Foundation had no It seems that the discussion about Breaking the
editorial influence on program content. However, Silence has turned into a debate over style rather
the program would have benefited from more in- than substance. Would you agree?
depth treatment of the complex issues surround-
If the documentary helps in any way to open
ing child custody and the role of family courts
a dialogue about how family courts are victimiz-
and most specifically the provocative topic of
ing the very families they are supposed to protect,
Parental Alienation Syndrome (PAS). Additionally,
then any debate will have been positive.
the documentary’s ‘first-person story telling ap-
proach’ did not allow the depth of the producers’ Has there been any positive outcome?
research to be as evident to the viewer as it could Yesterday, I was in Westchester County where
have been.” I showed an eight-minute excerpt of Breaking
Did you look for a father who had a similar the Silence to family court judges and personnel.
experience to some of the mothers featured Some were aware of the issues we presented and
in your show? others were surprised. But it was very positive to
see this information being used.
Yes, I spoke with a father’s organization and
it was clear that that they had a specific politi- You are not the first journalist to get into hot
cal agenda that they wanted to bring to this. The water after reporting on this topic. Kristen
women we interviewed were simply mothers Lombardi, another contributor to this book,
who were trying to protect their kids. was sued and lost after writing an expose in
the Boston Phoenix. Why do you think these
Your main source of funding for Breaking the
stories generate so much of a backlash?
Silence, the Mary Kay Ash Charitable Founda-
tion, has also distanced itself from the program. These are complex stories filled with pain and
Are you surprised by this? extreme passions. There are strong vested inter-
ests that want to keep the public from knowing
The Mary Kay Ash Charitable Foundation what is going on in family courts. I believe we’re
did not distance itself from the program. There

w w w. c a n o w. o r g 87.
 approaching a tipping point when people will de-
mand more accountability from our courts.

What advice do you give to other journalists

who want to cover this issue?
My only advice is, get your facts straight, get
good insurance and get a good attorney.

Are you planning to do a follow up to

Breaking the Silence?
While our next project will not be on do-
mestic violence, we are committed to do more
on this issue and to follow up on what we have
learned with Breaking the Silence.

88. Fa m i ly L aw: D i s o rd er in the Courts

The Protective Mothers Movement:
An Activist’s Notes
By Mo Hannah

“ Remember: resist; do not comply.”

– Andrea Dworkin, “Life and Death”
Burnout One thing that makes this atrocity especially
flagrant is that the enterprise of taking children
I recently served as the chairperson of the
away from fit mothers results in the cutting of
Battered Mothers Custody Conference (BMCC)
some big checks for a lot of people. Consequently,
– formally entitled, “Battered Women, Abused
a lot of people are invested in this problem not
Children, and Child Custody: A National Cri-
being solved. We are fighting gravity, so to speak,
sis.” I’ve done this conference every January for
which is among the reasons why fatigue and dis-
three years in a row. Writing this now, nearly two
couragement and disgust, i.e., burnout, is ubiqui-
months after the conference, I feel pretty much
tous among protective mother activists. Burnout is
the way I felt after the first conference and the
the cost of doing business, of acting on this issue.
second: massively burned out.
A few years ago, when a friend and I planned
Back in the day, I never would have admitted
the first Battered Mothers Custody Conference, I
to this frivolous thing called burnout. I consid-
didn’t expect it to be anything more than a single
ered it a lunatic-fringe disorder, about as real as
meeting of the minds. I figured that, if the moth-
the “syndrome evidence” used by forensic evalu-
ers’ custody advocates I’d met during and after
ators to vilify protective mothers. But that was
my own journey through custody hell had never
before this issue became, for me, a moral impera-
been together under the same roof to talk about
tive. When an issue becomes, for you, a moral
this issue, it was time they did so. I was happy to
imperative, it is bound to burn you out.
do it the first time, and I was happy when it was
These days, with so many injustices being over. I never expected it to become an annual
inflicted on so many people, work done on behalf event. I never wanted it to become an annual
of any human rights issue is intrinsically noble. event.
For me, however, the injustice inflicted on pro-
Three years later, I am paying, for the third
tective mothers is uniquely egregious – first, be-
year in a row, the price of neglecting my other
cause it came close to ripping my own life apart,
life as a psychologist, professor, and single mother
and second, because it is ripping apart the lives of
in order to work on the conference. As my part-
thousands of women all over the country.
ner, an anti-war activist since his youth, reminds

w w w. c a n o w. o r g 89.
 me, “Movements eat people up alive.” Especially This conference is, in certain ways, an anom-
this one, this barely nascent movement led by aly. It attracts professionals and litigants, people
people who, like me, are the walking wounded. working in the system, people working against
Besides taking up an enormous amount of time, it, people who have been harmed by it. Sitting
the work is re-traumatizing; the calls I get from side by side are state government officials and at-
mother after mother, telling the story of their torneys, domestic violence staff and their clients,
custody battle, reminds me so much of my own. NOW chapter leaders and soccer moms. The
largest contingent in our audience is comprised
I am, nonetheless, one of the lucky ones. I
of battered mothers, most of them there on
went through financial ruin and emotional trau-
scholarship after being bankrupted by legal fees
ma, but I managed, in the end, to keep my kids.
or impossibly high child support payments. Some
So many other mothers, women who are my
already have been to jail and back for “contempt
sisters, have not seen their kids in months, or even
of court,” for refusing to send their kids for visita-
in years. Whatever I’m feeling doesn’t come close
tion with a suspected sex-offender father, for dis-
to like the pain that burns inside those mothers
obeying an unjust court order, for failing to pay
who come to the conference because they have
the impossible amount of child support ordered
lost their children and have no where else to turn,
by the judge who gave custody of their kids to
nothing else to hang their hope on.
the abuser or for just speaking out too loudly
There are pivotal moments, the flashbulb against the madness.
memories, of each conference that linger, re-
This year’s conference featured over 40 of the
minding me of why I’m doing this. This year’s
best presenters in the country, the top experts in
winner is the comment made by producer Gar-
the field. With 225 people in attendance we had
land Waller: “Think how much further behind
our best turnout ever. The sessions were well-re-
this movement would be, if we didn’t have this
ceived, exciting, even, at times, profound. When
conference every year.”
people were leaving at the end of the weekend,
The Conference the ambiance was one of solidarity, of renewed
Despite its depressing focus, the conference energy and hope. We even ended up in the black;
gives me a good amount of personal satisfaction, this year, I was able to pay the conference bills
perhaps because its audience mirrors the complex- without dipping into my own bank account.
ity of my own pursuits as an academic, advocate In these past three years, we have come close
and activist. Held annually in Albany, New York’s to fulfilling the original objectives for having this
capitol, the conference draws in people from all conference:
over the country. An entire weekend is devoted to
a single issue: the phenomenon of mothers losing • To draw public and media attention to
custody of children whom they are trying to pro- the bias and injustices faced by battered
tect from unsafe contact with an abusive father. women and their children in their inter-

90. Fa m i ly L aw: D i s o rd er in the Courts

 actions with the family court system in the pieces of this puzzle – this counter-intuitive,
this nation; nonsensical phenomenon of taking children away
from good mothers. When all of the pieces are
• To enlighten court personnel, legislators,
viewed together, the picture that emerges can be
government agencies, and policy makers
summarized in simple terms: abuse, and the en-
about these realities and to press for change;
ablement of abuse, in an abusive culture. What the
• To educate professionals, including attor- protective mother issue is about is the abuse of
neys, domestic violence counselors, social women who are trying to raise their children in a
workers, legal advocates, and others who safe environment. It’s about the abuse of children,
work with battered women about the ways who become the spoils of a war launched by nar-
in which abusive dynamics manifest within cissistic, even violent men. It is about the abuse
the context of family court legal processes; of power, enabled by the free rein given to family
• To discuss and disseminate strategies for court agents, like law guardians (guardians ad
improving the outcomes of child custody litem), attorneys and judges. It is about the abuse
cases of battered mothers; of the credibility given to psychologists, who,
for profit, sign their name and lend their title to
• To facilitate communication and collabora-
specious theories and flawed practices. It is about
tion among experts, scholars, professionals,
violence against women.
advocates, and lay persons who work on be-
half of battered mothers and their children Those mothers who do what the billboards
say to do and leave the man who is abusing her
But no conference, or series of conferences,
discover that escape is simply not allowed.What
can dismantle an injustice that is as hidden, and
is permitted, however, is a shift of the abuse from
as massive, as this one, especially when the injus-
one forum to the next, from the family home to
tice is so lucrative for those who perpetrate it. We
the family courthouse.The family court, the Wild
certainly have not solved this problem. We have,
West of today’s legal system, with its cartoon-like
however, formed a movement. While far from
trials, Kafka-esque rulings and horror story endings,
being enough, this is far from being nothing; the
becomes little more than a weapons contractor that
protective mothers movement brings this prob-
manufactures, for profit, additional firepower for
lem to the fore. Naming an injustice brings vali-
the abuser’s arsenal.
dation to those who have been victimized: I am
confident that now, in comparison with several Those who are shocked to discover that the
years ago, fewer battered mothers feel all alone, family court not only enables abuse, but renders
fewer believe the lies that they are unfit and that it profitable are those who do not understand
they deserve what happened to them. the greater political structure within which the
family court system operates. The family court
The Battered Mothers Custody Confer-
simply does not work for battered mothers and
ence provides a backdrop for putting together
their children.

w w w. c a n o w. o r g 91.
 The Movement ing raped to tell their story to a society that didn’t
In obvious and important ways, the protective want to hear about it. Protective mothers who
mothers movement resembles many other move- have gone to the media with their cases, exercising
ments that have rallied for social change. The their constitutional right to free speech, have been
move to organize unions, the movements against retaliated against in the form of fines or jail or
war, apartheid, and nuclear proliferation, the both that are meted out by judges or other court
women’s suffrage, civil rights, anti-rape, feminist, agents. Remember the spying and wiretapping and
and gay/lesbian rights movements, among others, the FBI files kept on anti-war and other activists
share features in common with our own. And in working on progressive causes, one means used
fact, movements build upon one another: a pro- to suppress those who challenge the dominant
tective mothers movement would be impossible forces in our society? Know anyone who has been
if the domestic violence movement had not done billy-clubbed or arrested for protesting peace-
the work of establishing that domestic violence is fully? Another frustration we struggle with in our
harmful. movement is the failure of the mainstream media
to cover our stories. But the mainstream media,
The gravity that the protective mothers move- especially during the last few years, won’t publish
ment is working against is the same weight that anything that contradicts the cover story, especially
has confronted every other movement, especially when the story is what keeps the money flowing.
when the movement, like ours, is just being born.
We know that there are many people, such as The problems of our movement also are
family law attorneys, guardians at litem, forensic similar to those that affected earlier movements.
evaluators, supervised visitation centers and parent- This includes, especially, the fact that not nearly
ing coordinators who financially benefit from the enough people are morally outraged over this
suffering of protective mothers. There are many problem. Even fewer are outraged enough to
people, therefore, who would be loathe to see this join the movement against it. There is, therefore,
particular trough get cleaned up, much less disap- not enough energy behind the movement. This
pear. But consider what it took to get workers to applies, of course, to virtually every social jus-
organize, to risk their jobs and the wrath of the tice movement out there, since there are too few
goon squads to wrestle for equitable treatment and people trying to change the world for the better,
fair pay from bosses who had cared only about the period. However, this is especially problematic for
bottom line. We are aware, from the gender bias battered mothers, who already feel isolated and
studies conducted in over 40 states, that women alone over what has happened to them.
encounter sexist attitudes when they walk into a Clearly, too few women have been paying atten-
courtroom.Yet imagine the sexism that greeted tion to what has been happening to women in
the women who demanded voting rights from the family courts. Women seem to take this issue
their all-male government. Think of the courage seriously only when it is happening to their sister,
it took for the first women to speak out about be- or to their daughter, or to themselves. Since the

92. Fa m i ly L aw: D i s o rd er in the Courts

time I went through my custody battle, I have this form of abuse? Why aren’t we focusing on
thought to myself countless times that if women changing the behaviors of those who join in this
understood what was going on in the family battering of women, like those who wear black
courts, there would—or ought to be—rioting in robes and sit in courtrooms?”
the streets.
If we are ever going to be able to solve this
The few who have thrown themselves behind problem, we have to avoid wasting our time rein-
this problem are, with few exceptions, protective venting the wheel. Instead, we need to look at what
mothers. Unfortunately, protective mothers are other successful movements have done, and we
typically 1) raising their kids under court order and should then do the same.We need Rosa Park-like
sharing custody with an abusive ex-partner, or 2) actions done by protective mothers who are both
spending all of their resources on getting their kids organized and unified, and who would there be
back after losing them to an abuser. In either case, equipped to refuse, en masse, to hand kids over to
the mothers, along with their time, money, energy, abusers.We need to get out of our houses and onto
bodies, and souls, are spent. Keeping your kids, or the streets, to make our outrage loud and visible.
getting them back, becomes a full-time job. This
Another thing we cannot afford are
single reality eliminates from the action a good
negative thoughts; the internal divisions, factions,
number of protective mothers who would other-
backbiting, and badmouthing that the country-
wise be raising hell.
club set can afford have no place in the protec-
If we are ever going to be able to solve this tive mothers movement. We need, desperately
problem, it is not going to be through hiring bet- and above all, unity, an essential ingredient for all
ter lawyers. It is not going to be through teaching movements, so essential that I included the term
judges about domestic violence or convincing in the subtitle of this year’s conference: Unity—
law guardians that it’s not a good idea to take and Action!
children away from primary caretaking mothers.
If any issue is a human rights issue, this one
They already know all that. We’ve told them. It
is. To possess human rights means that you have
hasn’t worked.
the right to be a human being. Mothers have
Paraphrasing what has already been stated by the right to protect their children from danger.
a number of today’s domestic violence leaders: the Mothers have the right to be mothers.
battered women’s movement took a wrong turn
when it became more of a service delivery system
than a social change movement. I want to go a step
further by asking, “Why are we focusing on help-
ing battered women clean up the financial, social,
and psychological wreckage of custody battles
instead of stopping the batterer from engaging in

w w w. c a n o w. o r g 93.
 Afterword: Activism is the Answer
By Helen Grieco, Executive Director, CA NOW

After years of domestic violence my mother I will never forget the first time I had to
fled with her children to find peace and safety for tell an anguished mother that I didn’t think she
her and her children. Instead, she found poverty would retain custody of her child. I couldn’t
and a new terror: the family courts. imagine how she could go on. I don’t know if I
could, should that same fate befall my daughter
I remember standing in a family court when
and me. I can’t imagine how the child survives
I was 12 years old imploring a judge not to give
either. Indeed, some don’t.
my father custody or visitation, and demand he
pay his child support. The judge didn’t ask my Nonetheless, I have not lost faith. For me
opinion I just gave it. The next time we had activism is the only answer.
court-ordered visitation with my dad he became
This book has shown the many reasons why
violent again and I ran from him with my sister.
the family courts are inept and fail to protect
We tried to grab my brothers but my dad pulled
women and children from perpetrators of domes-
them back inside the house. I ran to the neigh-
tic violence and sexual abuse; it’s also shown how
bors to get help. My father kidnapped my broth-
important activism is in changing the system.
ers, leaving a note that said they’d be better off
dead than with my mother. He sent a book to As activists we must continue to expose
our house with a horrific cover titled, “I Had to the true agenda of the Fathers’ Rights move-
Kill Her.” After a hellish week, and my mother ment. We must eradicate the gender bias, denial
working round the clock, she found them. The of due process, incompetence, corruption and
officer that drove them back to our house told fraud that is rampant in our family courts.
my mother that my 5-year-old brother guided We must eliminate the use of false syndromes
him back to our house once he was back in our like the Parental Alienation Syndrome scam.
neighborhood. We have to change the power of extra-judi-
cial personnel, ban ex-parte communications
I will never forget what my mother and
and minimize the massive costs of family court
brothers endured. The courts did not protect
that bankrupt mothers, leaving them only one
my mother from my father’s abuse nor did they
challenging option: to represent themselves in
protect my siblings and me. Tragically, 40 years
pro per. There are so many things we need to
later the story is too often the same. A mother
change to make the courts a place of justice.
attempts to leave an abusive partner and turns
to the courts for help only to lose custody of For now this simple fact is true: a perfectly fit
the children she is trying to protect by that mother and primary caretaker can lose custody to
very court! a father who is an abuser. We have witnessed the

94. Fa m i ly L aw: D i s o rd er in the Courts

pattern enough to know it and to fear it. We’ve I look forward to the day when I no longer
seen too often the battle for custody has become am contacted by a woman who is crying, say-
the ultimate weapon in the arsenal used by a ing, “I can’t believe what’s happening. How can I
perpetrator against his victims. Let us never forget lose custody of my children to an abuser? Please,
that this is about power, money and control. It’s please help me.”
about continuing to abuse women and children,
If we all work together, change will come.
and lowering child support by taking custody.
Remember it took us 72 years to get to vote.
This is NOT what’s in the best interest of the
children of our society! Collectively we can work to help mothers
keep their children safe. Join the movement for
On behalf of CA NOW, Rachel Allen, Jenni-
change and mothers’ rights. Join NOW. Orga-
fer Friedlin and myself, I want to thank all of our
nize a court watch. Work with your legislators
contributors for their tireless work for justice and
to create good laws for your state, and fight bad
their invaluable contributions to this book.
ones. Collaborate with other mothers in your
I offer my deepest, utmost respect and area to work together for change and to give
buckets of love to all the mothers and children each other support. Don’t give up in your own
victimized by America’s family courts. Re- case: continue with courage. Remember in
member, you are not alone. Of course you feel November-vote your voice and choose candi-
unbearable fear and powerlessness and see the dates who care about the safety of mothers and
family court system as the enemy. Of course, their children.
you feel like you’ve been driven crazy. How
In the struggle until we win,
could anyone stay sane in the face of loosing
her child to an abuser? How could any child Helen Grieco
stay sane knowing the family courts would Executive Director, CA NOW
make you live with an abuser?

Activism saved me. Activism is the Answer.

Together we will reform the family courts so that
perfectly fit mothers cannot lose custody to an
abuser, so that no child is court-ordered to visit
or live with an abuser.

This book is filled with good advice. I hope it

helped you in some way. I also invite you to our
website http://canow.org/issues/family.php. We
continue to update our site to share new infor-
mation and solutions on the family court issue.

w w w. c a n o w. o r g 95.