Abuse Allegations In Custody and Visitation Disputes: An annotated review of literature Achimovich, Lois. (2003). Parental Alienation Syndrome Revisited.
Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference convened by the Australian Institute of Criminology and held in Adelaide, 1-2 May 2003.
Following critiques of Richard Gardner's Parent Alienation Syndrome (PAS) by Faller, Berliner and Conte, Jenkins and others, this paper addresses recent attempts by academics to reach a kind of detente with these ideas, which have extraordinary influence in family courts around the world. The paper considers the work of Kelly, Johnston, Berns, Zirogiannis and others as well as recent publications by Gardner. It is contended that these efforts at reframing are not leading to better outcomes either in the quality of expert witness testimony or in the welfare of children. It is also contended that the changes to the Family Law Act in 1995-6 have encouraged inadvertently the use of the PAS diagnosis, thus engendering an increase in adversarial cases and a trend towards the neglect of issues of child development and attachment. The Act's emphasis on the child's right to contact has created a transference of this 'right' from the child to the parent, which has more than counterbalanced the Act's increased recognition of the effects of violence upon children. The paper concludes by arguing that we need more studies in this area, including longer and broader outcome studies regarding the effects on the child and the protective parent of forced contact and change of residence.
Amaya-Jackson, L., & Everson, M.D. (1996, July). Book Reviews: Protocols for the Sex-Abuse Evaluation. Journal of the American Academy of Child and Adolescent Psychiatry, 35 (7), 966-967.
Lisa Amaya-Jackson, M.D., Assistant Professor of Psychiatry and Medical Director of Child & Adolescent Trauma Treatment Services at Duke University, and Mark D. Everson, Ph.D., Clinical Associate Professor in Psychiatry and Director of the Program on Childhood Trauma & Maltreatment at University of North Carolina Hospitals, Chapel Hill, reviewed Gardner's book Protocols for the Sex-Abuse Evaluation for the Journal of the American Academy of Child and Adolescent Psychiatry.
EXCERPT: "Bias can be noted in the author's attempts to discredit a child's allegations by resorting to narrow, often oversimplified notions of how sexually abused children are supposed to behave." While Gardner discusses the importance of evaluators being neutral and objective, he conveys "a strong bias that the overwhelming majority of allegations, especially in custody-related cases, are false and that the assessment procedures the author advocates are slanted to arrive at such a conclusion."
Amaya-Jackson and Everson (1996) consider Gardner's system for detecting sexual abuse in children to be "seriously flawed." They conclude: "This book can perhaps best be described as a recipe for finding allegations of sexual abuse false, under the guise of clinical and scientific objectivity. One suspects that it will be a bestseller among defense attorneys."
Bancroft, L. R. (1998). Understanding the batterer in custody and visitation disputes. http://www.thelizlibrary.org/liz/understanding-the-batterer-in-visitation-and-custody-disputes.pdf
A batterer who files for custody will frequently win, as he has numerous advantages over his partner in custody litigation. These include, 1) his typical ability to afford better representation (often while simultaneously insisting that he has no money with which to pay child support), 2) his marked advantage over his victim in psychological testing, since she is the one who has been traumatized by the abuse, 3) his ability to manipulate custody evaluators to be sympathetic to him, and 4) his ability to manipulate and intimidate the children regarding their statements to the custody evaluator. (p. 5)
Because of the effects of trauma, the victim of battering will often seem hostile, disjointed, and agitated, while the abuser appears friendly, articulate, and calm. Evaluators are thus tempted to conclude that the victim is the source of the problems in the relationship. (p. 6)
Bancroft, L. R., & Silverman, J. G. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics. Thousand Oaks, CA: Sage.
Analysis of the characteristics of batterers, their impact on the whole family, and their impact in undermining the mother as parent. Includes a chapter on the batterer as incest perpetrator and a section which examines batterers' motivations for seeking custody or increased visitation, and the advantages they have over their partners in family court. The book includes also includes a brief section on batterers use of PAS to help them win custody.
See also: "The Connection Between Batterers and Child Sexual Abuse Perpetrators" (1997). Unpublished article, precursor to Chapter Four of The Batterer as Parent. "Understanding the Batterer In Custody and Visitation Disputes" (1998). Unpublished article, precursor to Chapter Five of The Batterer as Parent.
Bancroft, L. R., & Silverman, J. G. (2002). Assessing risk to children from batterers.
In P. Jaffe, L. Baker, & A. Cunningham (Eds.) Protecting Children from Domestic Violence: Strategies for Community Intervention. New York, NY: Guilford Press.
Bancroft, L. (Winter 2002). The batterer as a parent. Synergy [Newsletter of the National Council of Juvenile and Family Court Judges], 6(1), 6-8.
Bancroft, L. (2004). When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witnessing Abuse. New York, MY: G.P. Putnam.
(2008). When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts. Journal of Child Custody, 5(3/4), 228-255.
Available here ($) Abstract: The following study adds to research that examines child custody cases involving a history of interpersonal violence. This study contributes to past research by providing qualitative accounts of women's experiences with intimate partner violence prior to custody loss, institutional abuse at the hands of the family court, and abuse experienced after custody loss. Data come from a convenience sample of 16 noncustodial mothers from northeastern Ohio. Findings support past research, which finds corruption, denial of due process, and gender bias in the family court system. Policy recommendations are made and future research directions suggested.
Bemiller, Michelle. (2008). Non-custodial Mothers: Thematic Trends and Future Directions. Sociology Compass, 2, 910-924.
This article provides an overview of research completed on non-custodial mothers over the past two decades, with attention to the family and the role of the courts. After reviewing past research, the current state of the field is discussed, and future research directions are suggested.
Braun, Joan. (1999, Summer). Custody Order or Disordered Custody? Institute Against Family Violence British Columbia, Canada.
Problematically, raising allegations of child abuse can actually work against the one raising them. S.16(10) of the Divorce Act states that, in making custodial determinations, the courts are to consider the willingness of the custodial parent to facilitate contact with the other parent. This has been called the "friendly parent presumption". As a result, if a woman raises safety concerns, but is unable to prove her allegations, she risks having the court conclude that she is merely being vindictive in order to prevent her ex-partner from having contact with his child. On the other hand, if she does not raise legitimate concerns she is putting the child's safety at risk.
Brown, A. L. (2008). Criminal Rewards: The Impact of Parent Alienation Syndrome on Families. Affilia, 23, 388-396. (pdf)
Excerpt: Despite the overwhelming evidence against PAS, particularly its lack of recognition by any medical or psychological diagnostic body, the absence of consistent empirical and clinical evidence that PAS exists, or indications that the alienator's behavior is the actual cause of the child's behavior toward the target parent, it has been used by forensic psychologists, parent coordinators, and lawyers (Bruch, 2001; Dallam, 2008; First, Frances, & Pincus, 2002; Hoult, 2006). It is often recognized by judges in their depositions and used to determine visitation and custody, even when the child's fear and reluctance is a healthy and adaptive response to documented abuse.
Brown conducted hour-long interviews with three authorities on PAS attempting to answer the following questions: What is PAS? If PAS is junk science, then why does it continue to be used in the courts? What is the impact of PAS on families? What is the role of social workers and clinicians in addressing this issue? The authorities interviewed are: Lisa Dressner, LCSW, a founding member and co-director of Affinity Counseling Group, a community-based mental health agency in New Jersey; Amy Meckeler, a social justice advocate, an educator–administrator at Kean University, and a member of the Alliance for Racial and Social Justice, which, among several projects, houses a grassroots court monitoring action–research efforts in Middlesex County, New Jersey; and Ms. Thomas (a pseudonym), a mother and activist who is involved in a PAS case.
Bruch, Carol S. Parental (2001). Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases. Family Law Quarterly, 35, 527.
According to Bruch, the deficiencies in PAS theory are multiple. In addition to its lack of scientific support, Bruch notes the following problems:
First, Gardner confounds a child's developmentally related reaction to divorce and high parental conflict (including violence) with psychosis. In doing so, he fails to recognize parents' and children's angry, often inappropriate, and totally predictable behavior following separation.
Second, possibly as a consequence of these errors and his tail-of-the-elephant view, Gardner vastly overstates the frequency of cases in which children and custodial parents manufacture false allegations or collude to destroy the parent-child relationship.
Third, in this fashion, PAS shifts attention away from the perhaps dangerous behavior of the parent seeking custody to that of the custodial parent. This person, who may be attempting to protect the child, is instead presumed to be lying and poisoning the child. Indeed, for Gardner, the concerned custodial parent's steps to obtain professional assistance in diagnosing, treating, and protecting the child constitute evidence of false allegations.
Fourth, Gardner believes that, particularly in serious cases, the relationship of an alienated child with the rejected parent will be irreparably damaged, probably ending for all time, Fifth, as these sources suggest, Gardner 's proposed remedy for extreme cases is unsupported and endangers children.
Burkhart, M. A. R. (2002). Child Abuse Allegations in the Midst of Divorce and Custody Battles: Convenience, Coincidence or Conspiracy? NCPCA Update, 13(10), Alexandria, VA: American Prosecutors Research Institute.
Excerpt: "An allegation of child abuse arising out of a divorce or custody situation should be taken seriously and investigated thoroughly. It is wrong to assume that such an allegation is untrue or can't be proven. Although an allegation arising during a custody situation may create unique problems of proof, these children are no less deserving of protection."
California National Organization for Women Disorder in the Courts: Mothers and Their Allies Take on the Family Law System. (2004). Edited by Helen Grieco, Rachel Allen and Jennifer Friedlin. (more)
Electronic (download) publication featuring a collection of essays by experts addressing the critical issues mothers face in contentious custody and divorce cases.
With an introduction and afterword by the editors, the collection includes essays by: Phyllis Chesler, Karen Anderson; Dr. Lundy Bancroft; Sharon Bass; Dr. Robert Geffner; Judge (ret.) Sol Gothard; Dr. Mo Therese Hannah; Karen Hartley-Nagle; Paige Hodson; Kristen, Diane and Charles Hofheimer, Dominique Lasseur, Kristen Lombardi, Dr. Geraldine Butts Stahly, Garland Waller, and Trish Wilson.
The contributors offer advice, encouragement and personal experiences to other mothers and their allies facing cases of their own, or working to address the crisis for mothers and their children in the family law courts.
Caplan, P. J. (2004). What is it that being called "parental alienation syndrome"? In P. Caplan & L. Cosgrove (Eds.). Bias in psychiatric diagnosis, A project of the association for women in psychology (pp. 61-67). Northvale, NJ: Jason Aronson.
Asks important questions regarding the use of the term PAS: (1) Who decides to call it a mental illness? (2) How is it defined? (3) What information supports the claim that the entity: (a) exists? (b) is consistent with some reasonable definition of mental illness? (c) that the use of the label PAS is helpful or harmful?
Chenoweth, P. R. (1993, April 19). Don't blame the messenger in child sex abuse cases. New Jersey Law Journal, p. 17.
Priscilla Read Chenoweth, a New Jersey lawyer and senior case editor of the New Jersey Law Journal, notes that Gardner makes sweeping assertions that when a sexual abuse allegation arises in the context of custody disputes or day-care centers: "the problem is not the sexual abuse of children but `vengeful wives' and 'hysterical mothers'."
Excerpt: "Gardner's extravagant and conclusory language, and his obvious bias against women, should be enough to give any judge or lawyer pause before accepting his invitation to disbelieve and even punish the messenger" (p. 17).
Phyllis Chesler. (2011 ). Mothers on Trial: The Battle for Children and Custody (2nd. ed.). Lawence Hill Publishers.
This landmark book orginally published in 1986 was the first to break the false stereotype about mothers getting preferential treatment over fathers when it comes to custody. In this new edition, Chesler shows that, with few exceptions, the news has only gotten worse: when both the father and the mother want custody, the father usually gets it. This happens even when there is evidence to show that the father has been abusive.
Corwin, D., L. Berliner, G. Goodman, J. Goodwin & S. White. Child sexual abuse and custody disputes: No easy answers. Journal of Interpersonal Violence, 2(1), Mar. 1987, 91-105.
The authors argue that reliance on simplified approaches to the complex problem of alleged CSA in the context of child custody disputes is likely to result in misdiagnosis and a failure to protect children who are both sexually abused and caught in custody battles. The authors discuss the limits of clinical impression, the difference between unfounded or unsubstantiated and false accusations of abuse, and the high prevalence of actual CSA in the setting of marital dissolution.
Custody litigation and the child sexual abuse backfire syndrome. (1988, Winter). Jurisfemme, 8, 21.
Presenters at a 1987 legal continuing education seminar on sexual abuse allegations in child custody litigation, suggested that "unless there was irrefutable medical evidence of sexual abuse, the custodial parent should not raise the allegation" because they risk losing custody to the abuser.
Dallam, S. J. (1998). Dr. Richard Gardner: A review of his theories and opinions on atypical sexuality, pedophilia, and treatment issues. Treating Abuse Today, 8(1), 15-23.
While Gardner 's theories about PAS and mass sexual abuse hysteria have been widely criticized, his views on bona fide child sexual abuse and his treatment recommendations for working with incestuous families have largely been ignored. This article provides an in-depth exploration of Gardner 's views on pedophilia and his therapeutic approach to working with families in which a child has been molested by a parent.
Dallam, S. J. (1999). Parental Alienation Syndrome: Is it scientific? In E. St. Charles & L. Crook (Eds.), Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our Children Our Children Charitable Foundation.
This article examines the scientific support for PAS along with its underlying assumptions and logic. This theory's relevance to child abuse allegations that arise during child custody disputes is also explored.
Dallam, S. J., & Silberg, J. L. (Jan/Feb 2006). Myths that place children at risk during custody disputes. Sexual Assault Report, 9(3), 33-47. Dalton, Clare. (1999).
When Paradigms Collide: Protecting
Battered Parents and Their Children in the Family
Court System 37 FAMILY & CONCILIATION COURTS REVIEW 273.
Susan Carbon, and Nancy Olesen. (2003). High Conflict Divorce, Violence, and Abuse: Implications for Custody and Visitation Decisions. Juvenile and Family Court Journal, [VOL 54, NO 4]. 11-34.
Judges making custody determinations are faced with the difficult challenge of distinguishing between a divorce with "high conflict" and a domestic violence case with ongoing abuse. This article summarizes the legal, philosophical, and historical understandings of the "high conflict" family and its potential impact on children. It will also provide practical judicial guidelines for making the important distinction between high conflict and domestic violence and subsequently crafting appropriate and safe child custody awards.
Clare Dalton, LLM, Leslie Drozd, PhD, and Judge Frances Wong. (2004). Navigating Custody & Visitation Evaluations in Cases With Domestic Violence: A Judge's Guide.
National Council of Juvenile and Family Court Judges (NCJFCJ). (PDF)
This Guide is designed to serve as a practical tool for judges on how to determine whether a custody evaluation is needed, how to select the right person for the evaluation, and how to interpret and act on professional child custody evaluations when domestic violence is involved in family law cases.
Margaret K. Dore, The “Friendly Parent Concept: Anything But Friendly, Washington State Bar Association, Family Law Section Newsletter, Fall 2001.
EXCERPT: The friendly parent concept puts children at increased risk of abuse, violence and neglect at the hands of a parent. This is because a parent who raises these concerns can be perceived as "unfriendly" to justify a change in custody, i.e., to the abusive, violent or neglectful parent. With such high stakes, parents with these concerns may choose to forgo disclosing them.... The friendly parent concept thus has a chilling effect regarding matters that put children at risk. It obstructs the protection of children.
Dore, Margaret K. (2004). The "Friendly Parent" Concept: A Flawed Factor for Child Custody, Loyola Journal of Public Interest Law, 6, 41-56. (PDF)
EXCERPT: On close examination, the friendly parent concept presents a paradox.
This is because in a child custody dispute, the parents are in litigation
against each other. The purpose of this litigation is to take custody away
from the other parent, which by definition does not foster the other parent’s
relationship with the child. The friendly parent concept, however, requires
parents to make the opposite showing, that they will “most likely foster . . .
the other parent’s relationship with the child.” With this inherent contradiction, the results of a friendly parent
analysis are unpredictable and at times, bizarre. The friendly parent
concept also encourages litigation and conflict between parents; it renders
parents unable to protect themselves and their children from abuse,
violence, and neglect at the hands of the other parent. Because of these
problems, this article argues that the friendly parent concept should be
eliminated from child custody practice, and that existing friendly parent
statutory provisions should be repealed or judicially overturned.
Margaret K. Dore, "Court-Appointed Parenting Evaluators and Guardians ad Litem: Practical Realities and an Argument for Abolition," Divorce Litigation, Vol. 18, No. 4, April 2006.
This article documents how parenting evaluators and GALs act as a "filter" between the court and the evidence. This can lead to poor decisionmaking in custody cases.
Doyne, S. E., Bowermaster, J. M., Meloy, J. R., Dutton, D., Jaffe, P., Temko, S., & Mones, P. (1999). Custody disputes involving domestic violence: Making children's needs a priority. Juvenile and Family Court Journal, 50(2), 1-12.
Noting that domestic violence is a widespread phenomenon, the central thesis in this article is that the justice system needs to better recognize the special needs of children exposed to domestic violence. Even in cases where there are no observable injuries, children's adjustment and development can be jeopardized seriously by witnessing one parent abusing another parent. Being raised in a climate of fear, having poor models of conflict resolution, and observing abuse of power in intimate relationships can have long-term detrimental consequences for children and adolescents.
EXCERPTS: In reality, however, contested custody cases often represent a high level of violence compared to the general population of divorcing adults" (p. 5). "Paradoxically, women may not be believed when violence is reported because they are seen to be exaggerating incidents of violence as a way of manipulating the courts" (p. 5).
"Many battered spouses are advised to promote relationships and set aside past conflicts with ex-spouses who may be a danger to them and their children. If they do not comply, they may be deemed `unfriendly or unfit parents' and they can lose custody to abusive parents" (p. 5).
Ducote, R., & D. M. Harrison. (1988). Aggressive advocacy for parents protecting children in child sexual abuse cases. In E. Bruce Nicholson and Josephine Bulkley (Eds.), Sexual abuse allegations in custody and visitation cases: A resource book for judges and court personnel. Washington, DC: American Bar Association.
Discusses errors sometimes made by judges charged with fact finding and dispositional tasks in child custody/visitation hearings. These errors can condemn children to continued sexual abuse, destroying the child's trust in the ability of the protecting parent and the "system" to protect them.
The "backfire syndrome" refers to cases where in-spite more than adequate evidence of the sexual abuse, the system turns on the innocent parent, denounces him or her as "paranoid," or "the real abuser."
The protective parent is found in contempt for not cooperating in family therapy, not encouraging the child to relate to the abuser, or for impeding visitation. The protective parent is punished by fine or incarceration and the child's custody may be granted to the abuser, or unsupervised visitation may be increased. There are a number of erroneous strategies and assumptions made by the bench and bar which result in bad decisions.
Erroneous assumptions include:
- Doing a lot family law work qualifies an attorney to handle sexual abuse cases.
- Allegations that arise in the context of a divorce, custody or visitation dispute are probably false.
- Allegations of child sexual abuse must be true, and all that needs to be done is to suspend visitation.
- Expert witnesses in child sexual abuse are all the same (one cancels out the other on the opposing side) or is an expert because he or she claims to be one.
- Secrecy will protect the child's best interests.
- Sterotypic attitudes about how a mother or father whose child has been sexually molested is supposed to act toward the molester.
- The child's attorney's position is the best because he or she has only the child's interest at heart.
Ducote, Richard. Guardians ad Litem in Private Custody Litigation: The Case for Abolition, Loyola Journal of Public Interest, Vol. 3, Spring 2002, p. 146.
This article examines the purported historical justification for the use of Guardians Ad Litem (GALs), the plethora of criticism nationwide concerning their involvement, their poorly defined role, their particular failures in cases of child abuse and domestic violence, their unaccountability, their unjustified cost, and alternatives to their use.
EXCERPT: One of the great paradoxes in the nation’s family courts is the role of the guardian ad litem in custody cases
involving domestic violence and child abuse. On one hand, the appointment of a GAL in an ordinary situation where
the child is not subject to potential harm from such dangers at worse can simply raise the expenses of the parents, increase the arbitrariness already inherent in deciding the amorphous best interest issues, and compromise due process. However, in domestic violence and abuse cases, where courts are even more eager to appoint GALs,
children are frequently ending up in the custody of the abusers and separated from their protecting parents. This tragedy does not happen in spite of the GALs, but rather because of the GALs.
Ehrenberg, Marion F., & Michael F. Elterman. (1995). Evaluating allegations of sexual abuse in the context of divorce, child custody, and access disputes. In Tara Ney (Ed.), True and False Allegations of Child Sexual Abuse: Assessment and Case Management. NY: Brunner/Mazel, pp. 209-30.
This chapter focuses on the evaluation of CSA allegations that occur in custody/access disputes. Historical and legal issues relevant to this problem are summarized, and research about the extent, nature, and validity of sexual abuse allegations in divorce is reviewed. Research finds suggest that improbable allegations are equally or more likely to occur during custody disputes than in cases where custody is not an issue.
The authors present a range of divorce-related family dynamics as possible contexts for sexual abuse allegations: (1) abuse leading to divorce, (2) abuse revealed during divorce, (3) abuse precipitated by divorce, and (4) custody/access disputes.
The authors then summarize the knowledge and skills needed to complete an evaluation, and review relevant professional and ethical issues. A clinical-research approach to evaluation is recommended and described. The clinician is encouraged to carefully evaluate the specific circumstances of the sexual abuse allegation, including when, how, and by whom the allegation was made.
Strategies are presented for differentiating sexual abuse from divorce trauma, and characteristics of accusing and accused parents and aspects of their relationships with their children in probable and improbable cases are reviewed. The evaluation of sexual abuse allegations arising during divorce is a complex and challenging process with a great deal at stake for the children and families involved. The authors conclude the chapter with 10 specific recommendations relevant to practitioners involved in these evaluations.
Emery, R. E. (2005). Parental alienation syndrome: Proponents bear the
burden of proof. Family Court Review, 43, 8–13.
Notes that it is blatantly misleading to call parental alienation
a scientifically based ‘‘syndrome.’’
Emery, R. E., Otto, R. K., & O'Donohue, W. T. (2007). Custody Evaluations: Limited Science and a Flawed System. Psychological Science in the Public Interest, 6(1), 1-29.
Excerpt: Theoretically, the law guides and controls child custody evaluations, but the prevailing custody standard (the ''best interests of the child'' test) is a vague rule that directs judges to make decisions unique to individual cases according to what will be in children's future (and undefined) best interests. Furthermore, state statutes typically offer only vague guidelines as to how judges (and evaluators) are to assess parents and the merits of their cases, and how they should ultimately decide what custody arrangements will be in a child's best interests. In this vacuum, custody evaluators typically administer to parents and children an array of tests and assess them through less formal means including interviews and observation. Sadly, we find that (a) tests specifically developed to assess questions relevant to custody are completely inadequate on scientific grounds; (b) the claims of some anointed experts about their favorite constructs (e.g., ''parent alienation syndrome'') are equally hollow when subjected to scientific scrutiny; (c) evaluators should question the use even of well-established psychological measures (e.g., measures of intelligence, personality, psychopathology, and academic achievement) because of their often limited relevance to the questions before the court; and (d) little empirical data exist regarding other important and controversial issues (e.g., whether evaluators should solicit children's wishes about custody; whether infants and toddlers are harmed or helped by overnight visits), suggesting a need for further scientific investigation.
Our analysis of the flawed system, together with our desire
to sharply limit custody disputes and custody evaluations,
leads us to propose three reforms. First, we urge
continued efforts to encourage parents to reach custody
agreements on their own—in divorce mediation, through
collaborative law, in good-faith attorney negotiations, in
therapy, and in other forums. Some such efforts have been
demonstrated to improve parent–parent and parent–child
relationships long after divorce, and they embrace the
philosophical position that, in the absence of abuse or neglect,
parents themselves should determine their children’s
best interests after separation, just as they do in marriage.
Second, we urge state legislatures to move toward adopting
more clear and determinative custody rules, a step that
would greatly clarify the terms of the marriage contract,
limit the need for custody evaluations, and sharply narrow
the scope of the evaluation process.We find particular merit
in the proposed ‘‘approximation rule’’ (recently embraced
by the American Law Institute), in which postdivorce
parenting arrangements would approximate parenting involvement
in marriage. Third and finally, we recommend
that custody evaluators follow the law and only offer
opinions for which there is an adequate scientific basis.
Related to this, we urge professional bodies to enact more
specific standards of practice on this and related issues.
Erickson, Nancy S. (2007, February). Confusion on the Role of Law Guardians. The Matrimonial Commission's Report and the Need for Change. NEW YORK
FAMILY LAW MONTHLY vol. 8 (no. 6), 1-2.
Erickson notes: "An adult can fire his/her attorney, but the child may be trapped in a
relationship with a law guardian who does not represent the child, and the
child’s voice may never be heard." ...."I have been involved in cases where I had reason to believe that the law guardian was not doing his/her job or was actively
attempting to gain judicial approval for a course of action that would be harmful to the law guardian’s client. In some
cases, the law guardian communicated with the child so infrequently that it would have been impossible for the law guardian
to be familiar enough with the case to be able to represent the child at all. For example, in one case I am familiar with, a
child told his therapist that he would kill himself if he continued to be forced to visit — even under supervision — with the
father who had sexually abused him and had threatened to kill his mother. The boy’s law guardian had spoken with him only once and took no action even to seek out the facts, much less to protect the child. In fact, he worked closely with the attorney for the father to make sure that no unfavorable orders were issued against the father."
The articles concludes with the following recommendations: "There needs to be some mechanism
for the child to report to the court that
the law guardian is not representing
the child properly. Additionally, there
may need to be an ombudsperson for
a parent to go to if the child is unable
or unwilling to report to the court
about a law guardian’s failings."
Erickson, Nancy S. (2005, Spring). Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What Does Psychological Research Tell Us? Family Law Quarterly, vol 39, no. 1, p. 87-108.
Erickson notes: The effects of domestic violence on survivors, who are primarily women, may be severe. Battered women's advocates often note that, in custody cases, the batterer often "looks better" to the court than the victim does because he is confident and calm, whereas she is still suffering the effects of his abuse and therefore may appear hysterical, weepy, anger, or otherwise not "together." When a custody evaluation is conducted by a psychologist, the revised version of the Minnesota Multiphasic Personality Inventory (MMPI-2) is often used as part of the evaluation process. The MMPI-2, like other traditional psychological tests, was not designed to be used in custody evaluations and arguably should not be used for such purpose except "when specific problems or issues that these tests were designed to measure appear salient in the case."
If it used, Erickson notes that "great care must be taken" as "a misinterpretation could result in placing custody of a child with a batterer, which could put the child at severe risk."
Erickson reviews research on the use of MMPI evaluations with battered women and found that: "When tested while domestic violence is ongoing or has just ended, battered women typically exhibit MMPI/MMPI-2 elevations on several clinical scales. However, MMPI/MMPI-2 scores tend to normalize after the abuse ends, as time passes. Additionally, the frequency and severity of the abuse appears to be correlated with the MMPI/MMPI-2 elevations, suggesting that the elevations are caused by the abuse."
Erickson concludes that the psychological stress that battered women suffer may result in MMPI scores that do not accurately evaluate their ability to parent.
Fahn, Meredith S. (1991). Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, Family Law Quarterly 193.
Problems specific to the fact-finding of child sexual abuse alleged between divorcing or divorced parents are discussed. Fahn argues that the legal system's mechanisms for protecting children from intrafamilial sexual abuse are inadequate. Contrary to the popular assumption that accusers have nothing to lose by raising false allegations, a mother who fails to meet a stringent standard of proof faces the risk of losing custody. There is often a judicial bias against the accusing mother and child. The courts may characterize the mother as overprotective, vindictive, or uncooperative and therefore, transfer custody to the father.
Discusses the difficulties of substantiating abuse allegations and emphasizes that the term "unsubstantiated" does not mean "false." The media has popularized an image of the mother in a custody dispute who raises allegations of child abuse in order to hurt the father rather then to protect the child. Children's allegations of sexual abuse are often met with skepticism and disbelief. Advocates for accused parents virtually always describe the charges as false because they arose in a custody suit. The child's confirmation of the abuse is attributed to fantasy or to brainwashing by the mother.
Fahn outlines reasons why legitimate allegations sometimes arise in the context of a custody dispute. The article concludes by recommending certain changes, beginning with an increased awareness and a more uniform updating of the legal process, in order to improve the legal system's ability to protect child victims.
Faller, K. C. (1991). Possible explanations for child sexual abuse allegations in divorce. American Journal of Orthopsychiatry, 61(1), 86-91.
This study explores a range of dynamics leading to allegations of sexual abuse in divorce. A classification system is proposed based on a review of the literature, discussions with other mental health professionals, and a careful examination of a clinical research sample of 136 cases referred for diagnosis and treatment. The four identified dynamics resulting in allegations of sexual abuse during or after the dissolution of a marriage are as follows:
- The mother finds about the sexual abuse and decides to divorce her husband;
- Long-standing sexual abuse is only revealed during the marital breakup;
- Sexual abuse is precipitated by the marital dissolution;
- The allegation is false.
The largest proportion of cases were those in which the marital dissolution precipitated the sexual abuse, followed by those in which divorce triggered disclosure. The data suggests that 15% to 25% of allegations were false. It is concluded that mental health professionals should maintain an open mind and an appreciation of the range of circumstances and dynamics that might lead to a report of abuse during divorce.
Faller, K. C. (1998). The parental alienation syndrome: What is it and what data support it? Child Maltreatment, 3(2), 100-115. (PDF)
This article describes proposed characteristics and dynamics of PAS, and the methods used to document its presence. Research data related to various tenets of the syndrome are then reviewed.
Dr. Faller notes that "The parental alienation syndrome is a nondiagnostic syndrome. It is only useful for mental health professionals in explaining the symptom presentation if they know from other information that an abuse allegation is a deliberately made, false accusation. The syndrome cannot be used to decide whether the child has been sexually abused. As a consequence, it is of little probative value to courts in making decisions about the presence or absence of sexual abuse .... An additional problem with the parental alienation syndrome is that virtually every symptom described by Gardner as evidence of its presence, and consequent false charges against the accused parent, is open to opposing interpretations" (p. 111).
After reviewing the relevant research Faller concludes: "No data are provided by Gardner to support the existence of the syndrome and its proposed dynamics. In fact, the research and clinical writing of other professionals leads to a conclusion that some of its tenets are wrong and that other tenets represent a minority view" (p. 112).
Faller, K. C., & DeVoe, E. (1995). Allegations of sexual abuse in divorce, Journal of Child Sexual Abuse, 4(4), 1-25.
Faller & DeVoe examined 214 allegations of sexual abuse in divorce cases that were evaluated by a multidisciplinary team at a university-based clinic.
72.6% were determined likely,
Of the 20% of cases that were judged to be false or possibly false cases, only approximately a quarter (n = 10) were determined to have been consciously made. The remainder were classified as misinterpretations.Faller and DeVoe found that 40 concerned parents experienced negative sanctions associated with raising the issue of sexual abuse. These sanctions included being jailed, losing custody to the alleged offender, a relative, or foster case, limitation or loss of visitation, admonitions not to report alleged abuse again to the court, Protective Services or the police, and prohibitions against taking the child to a physician or therapist because of concerns about sexual abuse in the future. NONE of the parents experiencing these sanctions were ones who were judged to have made calculated false allegations. In fact, sanctioned cases tended to score higher on a composite scale of likelihood of sexual abuse, and were more likely to have medical evidence than cases without sanctions.
Andrea Farney & Roberta L. Valente. (2003). Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court Practice, Juvenile and Family Court Journal, [VOL 54, NO 4], 35-55.
This article reviews the development of family and domestic violence law. It compares and contrasts the core precepts of family and domestic violence jurisprudence. The challenge facing judges and lawyers is how to integrate the "friendly parent" assumptions of family law with the separation and safety assumptions that undergird domestic violence law.
Garber, B. (1996, March). Alternatives to parental alienation: Acknowledging the broader scope of children's emotional difficulties during parental separation and divorce. New Hampshire Bar Journal, 51-54.
Garber, B. D. (2004). Parental Alienation in Light of Attachment Theory: Consideration of the Broader Implications for Child Development, Clinical Practice, and Forensic Process. Journal of Child Custody, 1(4), 49-76.
Abstract: Few ideas have captured the attention and charged the emotions of the public, of mental health and legal professionals as thoroughly as the concept of parental alienation and Gardner's (1987) Parental Alienation Syndrome. For all of this controversy, the alienation concept stands outside developmental theory and without firm empirical support. The present paper explores alienation and its conceptual counterpart, alignment, as the necessary and natural tools of child-caregiver attachment (Ainsworth & Wittig, 1969; Bowlby, 1969) and of family system cohesion. This conceptual foundation offers developmentalists, clinicians, and family law professionals alike a common language and valuable instruments with which to understand those relatively infrequent but highly charged circumstances in which these tools are used as weapons, particularly in the context of contested custody litigation. The need to establish baseline measures, child-centered interventions, and legal remedies anchored in the attachment model is discussed.
Garrity, C., & Baris, M. A. (1995, Winter). Custody and Visitation: Is It Safe? How to Protect a Child From an Abusive Parent. Family Advocate, 17(3), 40, 42-45, 88.
Chicago, IL: American Bar Association, Section of Family Law
This article offers guidelines for protecting a child in a postdivorce family from an abusive parent. The characteristics of the severely and moderately severe conflicted family are described. Postdivorce environments that place the emotional and physical well-being of children at risk are identified, including the presence of physical and sexual abuse, alcohol or substance abuse, domestic violence, and psychopathology in one or both parents.
Factors that must be assessed in planning for custody and visitation in high-risk postdivorce situations are presented, including determining the capacity of the parents for providing for their children's safety.
Phases of visitation for impaired parents are described, including supervised therapeutic visitation. If no progress is made toward remediation during this period of supervised therapeutic visitation, visitation may be terminated permanently or temporarily. If only partial remediation is expected, therapeutic visitation can be replaced with short blocks of visitation supervised by nonprofessionals and expanded as remediation progresses. If full remediation is expected, unsupervised visitation will be attempted for a short period of time accompanied by briefing and debriefing sessions. This period is followed by increasing unsupervised visitation periods along with weekly contact with a family therapist. As progress continues, a normalized developmentally appropriate visitation schedule may be implemented.
Geffner, Robert, Conradi, L., Geis, K., & Aranda, M. B. (2009). Conducting Child Custody Evaluations in the Context of Family Violence Allegations: Practical Techniques and Suggestions for Ethical Practice. Journal of Child Custody. 6(3), 189–218.
Abstract: A review of the literature (i.e., Austin, 2001) and the daily practice of conducting child custody evaluations has revealed that there is an inadequacy assessing and incorporating family violence issues, including both partner and child abuse, into the context of a child custody evaluation when such allegations occur. The National Council of Juvenile and Family Court Judges has published attempts to address the lack of adequate assessments in family violence cases (e.g., Dalton , Drozd, & Wong, 2006), however more needs to be done. The current article discusses the existing approaches in conducting child custody evaluations when family violence is alleged and provides suggestions and practical techniques for adequately considering these issues in an evaluation. The various assessment and interview techniques that can be utilized in these complex custody evaluations are presented. The techniques discussed should aid child custody evaluators, attorneys, and judges in dealing with these complex cases, such that proper techniques can be followed to arrive at appropriate recommendations. If an evaluator conducts a child custody evaluation in a case where there are allegations of family violence but does not have specific training or expertise in this area, ethical concerns and questions arise.
Alison Gerencser. (1995). Family Mediation: Screening for domestic violence. Florida State University Law Review
Part I of the Article discusses the importance of screening for domestic violence before referring any divorce case for mediation. Author notes that Legislatures must require screening by participants at every level, and an exemption from mediation when participants find domestic abuse. Legislatures also must require that all participants, especially family mediators, be trained to recognize signs of domestic violence and abuse.
Part II of this Article provides an overview of the mediation process.
Part III proposes that all legislatures mandating family mediation allow exemption from mediation when participant screeners determine that, because of the level of domestic abuse, mediation is inappropriate.
Part IV argues that legislatures also must mandate that all participants screen for domestic violence. To implement the required screening, participants must receive training about domestic violence.
Part V concludes by discussing the multi-tiered screening process and the roles of the various participants in screening for domestic abuse.
Goldstein, S. L., & Tyler, R. P. (1998, Fall). Sexual Abuse Allegations in Custody Visitation Cases: Difficult Decisions in Divisive Divorces. APSAC (American Professional Society on the Abuse of Children) Advisor, 11(3), 15-18.
This article examines the difficulty in investigating sexual abuse allegations in divorce custody cases. These cases are difficult to investigate because of the lack of evidence, possible biases and the bitterness between the parties. The problems are compounded by shrinking budgets and staff in many investigative agencies. Questions are listed that should be paid close attention to when credibility issues arise, including: to whom did the child first disclose?; why is the child telling now?; what evidence is available to confirm what the child is saying?
Three types of sexual abuse allegations are identified: (1) those in which there is a sincere, legitimate and valid report made which is true because the abuse actually occurred; (2) those in which there is a sincere, legitimate, and valid report made which is a misinterpretation or those in which a direct and correct report of some behavior or statements made by the child, but there was no abuse; and (3) those where there is a deliberately malicious false allegation made. Four investigative concerns are summarized, and recommendations for interviewing are made.
Martindale, D. A., & Eidman, M. H. (2007). Assessing Allegations of Domestic Violence.
Journal of Child Custody, 4(1/2),
Critically reviews the family court response to domestic violence cases, highlighting evidence that most partner abuse consists of coercive control rather than physical assault alone.
The article discusses a variety of factors evaluators may consider using when developing an evaluation protocol to assess allegations of domestic violence within the context of child custody disputes.
Haralambie, A. M. (1999). Child Sexual Abuse in Civil Cases: A Guide to Custody and Tort Actions. American Bar Association.
(Available through Amazon, the ABA, or the NACC )
Ann Haralambie is a certified family law specialist in private practice in Tucson , Arizona, and a former president of the National Association of Counsel for Children (NACC) and charter life member of the American Professional Society on the Abuse of Children. Her book provides a comprehensive guide to dealing with sexual abuse in intrafamilial and other non-stranger situations. It details the civil legal interventions and strategies that may be employed in such cases while emphasizing the ultimate goal of protecting and assisting the child. Includes appendices on standards, diagnosis, and treatment, plus a table of authorities.
Haralambie, A. M., & Haralambie, A. N. (1999, Fall). Representing the Protective Parent in Sexual Abuse Custody Cases. APSAC (American Professional Society on the Abuse of Children) Advisor, 12(3), 10-14.
This article provides guidance to lawyers representing the protective parent in sexual abuse custody cases. It outlines the steps lawyers should take, beginning with assessing the strength of the abuse allegation. Lawyers need to assess the factual basis of the claim and to make a good faith attempt to determine the truth. The lawyer should refer parents who believe their children are being abused to the most qualified experts available. The client's willingness to accept expert advice is essential and will benefit the client during the process.
Part of the lawyer's investigation is to reconstruct as accurately as possible the process of how the allegations came to light, including to whom the child spoke, and who observed or heard things that might corroborate the allegations. If the allegations do not appear to be true, then the lawyer must determine whether they were deliberately fabricated or merely good faith misinterpretations.
The article recommends having a lawyer appointed to represent the child as early as possible in the proceedings. The article discusses inconclusive or insufficient evidence, allegations of parental coaching, educating the judge, dealing with the client's emotions, and dealing with dropped child protection and criminal cases.
Heim, S., Grieco, H., Di Paola, S., & Allen, R. (2002). Family Court Report. Sacramento, CA: California National Organization for Women.
(download the entire report-PDF format)
EXCERPT: After significant research, CA NOW declares the present family court system in California to be
crippled, incompetent, and corrupt. The bias in the system results in pathologizing, punishing, and
discriminating against women. The system leaves decisions, which should be made on facts in a
courtroom, to extra-judicial public and private personnel. The system precludes the parties, particularly
the mother, from her rights to due process, including a trial, long cause hearing, or adjudication,
to which she is entitled, much less an appeal of these decisions. Mothers are coerced
into stipulations through the rubber-stamping of definitive evaluations and reports, which become
the court’s ruling. The present family law system in California exists to enrich attorneys and allied mental health and mental health professionals. This system allows mothers to be taken to court
time after time, challenging what is in “the best interests of the child,” therefore subjecting them
to a system that has no end for them or their children. In the most egregious cases, perfectly fit
mothers who were the primary caretakers of their children lose custody to the fathers who are
motivated by evading support obligations, and are often known abusers.
Hoult, Jennifer . (Spring 2006). The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy, Children's Legal Rights Journal, 26(1) pp. 1-61. (download PDF)
Abstract: Since 1985, in jurisdictions all over the United States, fathers have been awarded sole custody of their children based on claims that mothers alienated these children due to a pathological medical syndrome called Parental Alienation Syndrome ("PAS"). Given that some such cases have involved stark outcomes, including murder and suicide, PAS' admissibility in U.S. courts deserves scrutiny. This article presents the first comprehensive analysis of the science, law, and policy issues involved in PAS' evidentiary admissibility. As a novel scientific theory, PAS' admissibility is governed by a variety of evidentiary gatekeeping standards that seek to protect legal fora from the influence of pseudo-science. This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively. The article further analyzes PAS' admissibility under the standards defined in Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Kumho Tire Company v. Carmichael, and Rules 702 and 704(b) of the Federal Rules of Evidence, including analysis of PAS' scientific validity and reliability; concluding that PAS remains an ipse dixit and inadmissible under these standards. The article also analyzes the writings of PAS' originator, child psychiatrist Richard Gardner - including twenty-three peer-reviewed articles and fifty legal decisions he cited in support of his claim that PAS is scientifically valid and legally admissible - finding that these materials support neither PAS' existence, nor its legal admissibility. Finally, the article examines the policy issues raised by PAS' admissibility through an analysis of PAS' roots in Gardner 's theory of human sexuality, a theory that views adult-child sexual contact as benign and beneficial to the reproduction of the species. The article concludes that science, law, and policy all support PAS inadmissability.
(Note: The Children's Legal Rights Journal is published by the American Bar Association, Center on Children and the Law, and Loyola University Chicago School of Law)
Peter Jaffe, Nancy K. D. Lemon, & Samantha E. Poisson. (2003). Child Custody and Domestic Violence: A Call for Safety and Accountability, Thousand Oaks, CA:
This book outlines the essential differences between custody disputes with and without allegations and findings of domestic violence, and the different analysis and distinct interventions by judges, policymakers, and mental health professionals necessary in domestic violence cases. The book addresses difficult issues such as parent alienation syndrome, false allegations, and mutual abuse. It also reviews recent legislation and guidelines in custody disputes involving domestic violence in four countries: the United States, Canada, New Zealand, and Australia, and outlines significant judicial decisions in custody disputes, highlighting the inconsistency and unpredictability of the decisions and their impact on the desired outcome.
Jaffe, Peter G., Crooks, C.V., & Bala, N. (2009). A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes. Journal of Child Custody. 6(3), 169-188.
Abstract: The dominant philosophy in family court emphasizes cooperative solutions between separating parents who are encouraged to put their conflicts behind them. For the majority of separating families, this collaborative approach will best serve their children. However, cases involving domestic violence require a paradigm shift, with a greater focus on making a parenting plan that protects victims and children, and less emphasis on speedy, cooperative outcomes. This paper presents a framework for addressing domestic violence through a tiered assessment strategy and an accompanying intervention framework depicted by off-ramps from a freeway (as an analogy in this case to the substantial momentum towards collaborative settlements). These off-ramps for domestic violence and high-conflict cases do not suggest a one-size-fits-all solution within these categories; rather, they mark a departure point from which a wide range of solutions may be considered. Policy and practice implications of this paradigm shift are highlighted.
Jaffe, Peter G., Crooks, C. V., & Poisson, S. E. (2003). Common Misconceptions in
Addressing Domestic Violence in
Child Custody Disputes. Juvenile and Family Court Journal, 54(4), 57-67.
Domestic violence has been recognized as an important factor to consider in determining the best interests of children in custody and visitation disputes. However, there remain many misconceptions about the extent and impact of domestic violence in child custody proceedings. This article outlines 7 misconceptions with respect to domestic violence and child custody that represent barriers to safety and accountability in these cases. Each of these misconceptions is juxtaposed with the perspectives of 62 women victims and 95 children exposed to domestic violence who had to navigate the justice system after separation from an abuser.
Johnston, Janet. (2001). Rethinking parental alienation and redesigning parent-child access services for children who resist or refuse visitation. Paper presented at the International Conference on Supervised Visitation, Munich,
Germany July 9-10, 2001.
Notes that alienating behavior by a parent is
neither a sufficient nor a necessary condition for a child to become alienated.
Johnston, J. (2003). Parental alignments and rejection: An empirical study of alienation in children of divorce. Journal of the American Academy of Psychiatry and the Law, 31, 158-170. (pdf)
Johnston J. R., Lee, S., Olesen, N. W., & Walters, M. G. (2005). Allegations and substantiations of abuse in custody-disputing families. Family Court Review, 43, 283-294.
Johnston, J., Walters, M., & Olesen, N. (2005). Is it alienating parenting, role reversal, or child abuse? A study of children's rejection of a parent in child custody disputes. Journal of Emotional Abuse, 4(4), 191-218.
Jones, David P.H., & Ann Seig. (1988). Child sexual abuse allegations in custody or visitation disputes: A report of 20 cases. In E. B. Nicholson & J. Bulkley (Eds.), Sexual Abuse Allegations in Custody and Visitation Cases: A Resource Book For Judges and Court Personnel. Washington, DC: American Bar Association. pp. 22-36.
Reports the characteristics of 20 consecutive cases evaluated at the C. Henry Kempe Center where both sexual allegations and a parental custody dispute coexisted. Included were all cases which met these criteria between 1983 and 1985. The researchers found that four (20%) of the cases appeared fictitious. 70% were found to be reliable, arguing strongly against the practice of dismissing CSA allegations in custody disputes contexts as being false. In the other 10% of the cases, the researchers were uncertain
Keating, Sharon S. (1988). Children in Incestuous Relationships: The Forgotten Victims, 34 Loyola Law Review 111.
Discusses the many injustices that children who have been the victims of incest suffer in our present court system. The courts are returning children to parents who are accused of molesting them, in spite of significant physical and psychological evidence that the abuse occurred.
This article discusses how courts work and how they have little patience with a parent who will not compromise. "If a parent believes the child's story that the abuse happened, reports the abuse to the proper authorities, feels anger toward the perpetrator, that parent is considered by the court to be unreasonable." However, these responses would be considered normal if the perpetrator were not a family member. Backlash groups have painted pictures of modern day witchhunts and McCarthy-type hearings, attempting to shift the focus from abused children to innocent fathers who are being persecuted by vindictive wives. Recent studies have shown that there is no evidence to support the idea the incidence of false accusations is higher in divorce-custody cases. Even when allegations are proved to the court's satisfaction, the judge may order supervised visitation. Court-ordered visitation between a rape victim and a rapist in any other context would be a judicial outrage. However, in incest cases this is considered
Kernic, M.A., Monary-Ernsdorff, D. J., Koepsell, J. K., & Holt, V. L. (2005). Children in the crossfire: Child custody determinations among couples with a history of intimate partner violence. Violence Against Women, 11(8), 991-1021.
This retrospective cohort study examined the effects of a history of interpersonal violence (IPV) on child custody and visitation outcomes. The investigators analyzed documentation on more than 800 local couples with young children who filed for divorce in 1998 and 1999. These included 324 cases with a history of domestic violence and 532 cases without such a history. The researchers estimate that at least 11.4% of Seattle divorce cases involving couples with dependent children involve a substantiated history of male-perpetrated domestic violence. The findings reveal a lack of identification of IPV even among cases with a documented, substantiated history, and a lack of strong protections being ordered even among cases in which a history of substantiated IPV is known to exist.
- In 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files.
- The court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence."
- Mothers in cases with a violent partner were no more likely to obtain custody than mothers in non-abuse cases. Fathers with a history of committing abuse were denied child visitation in only 17% of cases.
Kleinman, T. G. (2002, August 5). Understanding the Impact of Violence on Children Integrating the public policy to protect children with the custody statute is not a simple affair. New Jersey Law Journal, 169(6), 471.
Argues that courts should employ a child-centered, protective strategy in child-custody cases involving allegations of child maltreatment and domestic violence, and such a strategy must be grounded in a complete understanding of the impact of violence on children.
Kleinman, T. G. (2003, April 7). DYFS Is Misdirected and Misunderstood. New Jersey Law Journal. 172(1), 1-3.
While DYFS must consider the safety of children, its primary mandate is reunification and preservation of the family. As a result children's best interests are often ignored.
Kleinman, T. G. (2004). Child Protection and Child Custody: Domestic Violence, Abuse, and Other Issues of Child Protection. Journal of Child Custody, 1(1), 115-126. (pdf)
Although the safety of the child or parent from the physical abuse of the
other parent, history of domestic violence (if any), and parental fitness are often
among the factors that must be considered by trial courts in making a custody
determination, the paramount concern for safety of the child is
conspicuously absent and may even appear to be overwritten in custody and visitation decisions. A child's need for safety should trump any and all other considerations in family law. Child-service agencies cannot be expected to both promote reunification and child protection simultaneously.
The author asserts that legislatures need to change the laws such that it is clear to the court that children come first and that safety is paramount. Although visitation between child and parent is considered to be a fundamental right, this right can and should be abrogated when initial evidence shows that such contact poses a risk of danger to the emotional or physical health and safety of the child. A new and specially trained court dealing only with issues of family violence and abuse may need to be considered.
Kleinman, T. G. (2004). Strategies and Pretrial Hearings for Child Protection. Journal of Child Custody, 1 (2), 105-112. (pdf)
In order to provide maximum protection to abused children, the protective parent or counsel must avail themselves of all of the tools at their disposal from the very start of litigation in custody and/or visitation disputes involving family violence. This column sets forth examples of pretrial motions, hearings, and other strategies. These are used to provide the court with detailed information about the abuse that has happened and the impact that the courts decisions will have upon the children involved.
Kuehl, S. (1999, August 16). Letter by Sheila Kuela, Chair of the Assembly Judiciary Committee, California State Legislature.
In a letter to the presiding judge of the Los Angeles Superior Court, Assembly member Sheila Kuela, asks the court "to take affirmative steps to erase the influence of Dr. Gardner on the Los Angeles Court System." According to Kuehl, "Judges need to be made aware that arguments based on his theories are invalid, and recommendations by therapists based on his work are extremely suspect ..."
The text of this letter can be found at: http://www.home.earthlink.net/~idelc/presidingp1.htm
LaViolette, Alyce. (2009). Assessing Intimate Partner Violence: A Context Sensitive Aggression Scale. Journal of Child Custody. 6(3), 219-231.
Abstract: In the late 1970s and early 1980s, researchers began exploring the differences in men who physically abused their female intimate partners. Since that time, there has been an emergence of research on that topic which has led to the development of batterer typologies. These men were identified around the issues of behavioral characteristics, traits, emotional responses, and experiences. Shelter advocates, for the most part, have presented a relatively one-dimensional view of abusive men based on their experiences with battered women and their children. This author proposes a continuum of aggressive acts with the intention of creating a context that could aid in assessment and intervention when intimate partner violence (IPV) is an issue. The continuum contains acts of aggression that may occur without a context or pattern of abuse.
Lemon, N. K. D. (2000). Custody and Visitation Trends in the United States in Domestic Violence Cases. Journal of Aggression, Maltreatment & Trauma, 3(1), 329-343.
This article addresses custody and visitation trends in domestic violence cases in the United States and concludes that the way domestic violence issues are treated in custody and visitation cases is often problematic, and the author calls for specific reforms.
Logan, T. K., Walker, R., Jordan, C. E., & Horvath, L. S. (2002). Child custody evaluations and domestic violence: Case comparisons. Violence & Victims, 17(6), 719-42.
This study is one of the first to examine characteristics of disputed custody cases and their custody evaluation reports differences between domestic violence and non-domestic violence cases. This study selected a 60% random sample of cases with custody evaluations in Fiscal Year 1998 and 1999 (n = 82 cases). Out of the 82 cases, 56% (n = 46) met criteria for classification into the domestic violence group and 44% (n = 36) did not. In general, results indicated that although there were some important differences in court records between cases with and without domestic violence, there were only minor differences between custody evaluation reported process and recommendations for the two groups.
Logan, T. K., Walker, R., Horvath, L. S., & Leukefeld, C. (2003). Divorce, Custody, and Spousal Violence: A Random Sample of Circuit Court Docket Records. Journal of Family Violence, 18(5), 269.
Abstract: The fastest growing marital status category in America is divorced, with the number of divorced individuals quadrupling between 1970 and 1996. The majority of children in divorced families live with a single parent and often lose contact with the noncustodial parent. A recent review of the literature suggests that many noncustodial fathers fail to keep contact with their children and become delinquent in child support payments because of their dissatisfaction with the custody arrangement. However, there has been little examination of how custody arrangements are typically determined or settled. In addition, divorces that involve spousal violence bring further complications to child custody, visitation, and child support decisions.
This study included a 20% random sample of court records for all divorces settled in one county judicial circuit court during 1998. The purpose of this study was to examine characteristics of divorcing adults as well as characteristics of child custody arrangements, visitation, and child support decisions. Contrary to popular belief, findings from this study indicate that divorce actions were almost always settled through agreement of the divorcing parties rather than by adjudication. About 38% of the couples had children in common and between 78 and 92% of cases were settled through agreement, which suggests that fathers are in fact agreeing to the custody arrangement, rather than being forced into it. About one in five records overall noted spousal violence, and there was no significant difference in settlement methods for couples with or without spousal violence. Cases with children and spousal violence were significantly more likely to have also mentioned substance use and postdecree activity. This study suggests a need for more focused attention on divorce cases with spousal violence to reduce postdecree court involvement and improve safety of children and adult victims, as well as further study into what causes noncustodial parents to lose contact with their children.
Lowenstein, Sharon R. (Winter 1991). Child Sexual Abuse in Custody and Visitation Litigation: Representation for the Benefit of Victims, 60 University of Missouri-Kansas City Law Review 228.
This article is written primarily for attorneys who wish to identify bona fide allegations of incest in custody and visitation cases, and represent non-offending parent and their children. The article outlines the principle issues in dispute and the major problems to be addressed.
Part I provides an introduction and overview of the subject.
Part II discusses the use of experts in CSA cases. Problems arise because of differences in professional backgrounds and conceptual differences within various disciplines. Experts tend to divide into two different "camps." One group fears that evaluators are too ready to stigmatize an innocent father by accepting an allegation that might be false. They tend to assume that any allegation of CSA raised during a child custody dispute is false. The other fears endangering a child by assuming that the allegation is false when it might be true.
Part III discusses the prevalence of child sexual and incestuous assault. It includes a statistical summary of the legal disposition of 96 child custody and visitation cases in which allegations of CSA were made. Mothers raised the incest allegation in 78% of the cases. In 45% of the cases in which custody or unsupervised visitation were the principal issue courts awarded children to alleged perpetrators without any restrictions or protections. At the same time, no father who raised a CSA allegation lost custody to a mother whose household contained an alleged perpetrator. It is concluded that mothers who raise the issue of CSA in the context of divorce at an extreme disadvantage. The fact that the mother raises an allegation during a divorce or custody dispute is considered evidence that the allegation is false. Nowhere in the literature are accusing fathers attacked as a suspect group merely because they introduce the allegation of CSA within the context of a custody dispute. Accusations made by fathers toward their former wife's new husband or boyfriend do not arouse the suspicion incurred when accusations are made by mothers.
Part IV offers a system for classifying CSA cases in a divorce context. It analyzes child sexual assault characteristics and questions specific to custody and visitation litigation.
Part V explores evidentiary issues in CSA cases and examines the legal difficulties encountered when attorneys must interface with professionals in the various disciplines involved with CSA cases. It discusses the child's statements, the child interview, the child witness, the child's right to testify, hearsay exceptions, corroboration, the use of anatomically correct dolls and medical evidence.
Part VI addresses jurisdictional and judicial matters including juvenile versus family court. It suggests strategies to consider and traps to avoid. Part VII concludes with suggestions and recommendations.
Maggio, C. F. (2001). A Review of Parental Alienation Syndrome Theory, Literature and Empirical Data.
Treating Abuse Today,
Dr. Richard A. Gardner developed the theory of Parental Alienation Syndrome to describe the behaviors of a parent who influences a child to turn against his or her other parent. Although there is no empirical support for the behaviors to be identified as a mental health disorder, Dr. Gardner recommends authoritarian deprogramming therapeutic methods to correct the misperceptions of the child and terminate the alienation process. He proposes that a judge oversee the therapeutic process and that decisions about treatment be made without the input of the child, a direct violation of court policies to promote the best interests of the child in custody disputes.
These theories have not been supported by the medical community and are not acknowledged in recent editions of the Diagnostic and Statistical Manual. Other empirical studies about the existence of parental alienation syndrome are flawed because of sampling procedures or methodological problems. Psychologists are urged to increase professional and public awareness about the misinformation published about parental alienation syndrome.
McDonald, M. (1998). The myth of epidemic false allegations of sexual abuse in divorce cases. Court Review, 12-19.
It is commonly believed that false allegations of sexual abuse in the context of divorce are epidemic, that most allegations made in the context of divorce are made by vindictive mothers and that these allegations are almost always false. These beliefs are not supported by scientific evidence.
(2003). Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law. Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference convened by the Australian Institute of Criminology and held in Adelaide, 1-2 May 2003.
This paper argues that as there is no publicly funded capacity in the Family Court of Australia to investigate allegations of child abuse by a parent, the conditions are created for the de facto operating presumption of the Parental Alienation Syndrome paradigm in the courts. This paradigm, at its simplest, insists that claims of serious child abuse are invented and that children's statements and manifestations of fear are the outcome of parental coaching. Without a publicly funded professional child protection investigative service available to inform the Family Court, the private adversarial system of family law commonly fails to substantiate allegations of child abuse, thereby systematically producing the outcome that child abuse allegations will be deemed to be false. Safety for children in family law proceedings who are subject to abuse depends on access to a national professional investigative service to inform the Court, and a redefinition of a child's best interests in the Family Law Act to give safety the highest value.
Meier, J. S. (2009). Parental Alienation Syndrome and Parental Alienation: Research Reviews. VAWnet: National Online Resource Center on Violence Against Women.
Reports that "alienation claims have become ubiquitous in custody cases where domestic violence or child abuse is alleged," often resulting in custody being awarded to the alleged abuser. Outlines policy changes that need to take place in order to prevent charges of alienation from being used to distract the court's attention from abusive behavior.
Meier, Joan S. (2009). A Historical Perspective on Parental Alienation Syndrome and Parental Alienation. Journal of Child Custody. 6(3), 232–257.
Abstract: Claims of parental alienation syndrome (PAS) and parental alienation (PA) have come to dominate custody litigation, especially where abuse is alleged. Although much psychological and legal literature has critiqued PAS, and leading researchers as well as most professional institutions have renounced the syndrome concept, alienation as a parental behavior or child's condition continues to be extensively investigated and credited in research and forensic contexts. This article reviews the history of PAS, both as posited by its inventor, Richard Gardner, and as used and applied in courts, suggesting that it not only lacks empirical basis or objective merit, but that it derives from its author ' s troubling beliefs about adult and child sexual interaction.
It then examines the more recent explorations of non-syndrome “alienation” as proffered by Janet Johnston and others, noting both its more balanced and grounded nature and its more modest remedial implications. However, the article concludes that PA is too closely tied to PAS to be an adequate improvement. It, too, is used crudely in courts to defeat abuse allegations, it continues to rely on speculations about mothers ' purported unconscious desires and their effects on children, and, more subtly than PAS, it minimizes abuse and its effects on mothers and children. At root, although even PA researchers have found it to be a real issue in only a small minority of contested custody cases, courts ' and evaluators' extensive focus on it in response to mothers'abuse allegations continues to privilege false or exaggerated alienation concerns over valid concerns about abuse.
Mertz, E., & Lonsway, K. A. (1998). The Power of Denial: Individual and Cultural Constructions of Child Sexual Abuse. Northwestern University Law Review, 92(4), 1415-1458.
This article outlines methods used by child molesters to deny and hide their behavior from therapists, lawyers, and judges. The strategies are explained from the individual context, as well as from the institutional and cultural perspective. Denials characteristically attack the source of the allegations, by claiming that the accuser is crazy, confused, mistaken, or vengeful; or by reframing the event, claiming that the incident was not as bad as claimed or citing other factors involved. Molesters also play games with language, quibbling over differences in words (e.g., touch and hurt). Legal professionals and therapists are advised to consider the language and the context of denials to assess the validity of the claims of innocence. Caution must be used in situations that may be influenced by the media and academics. Courts provide an opportunity to evaluate denials and provide a chance for the victim, or weaker party, to speak. The denial framework is applied to assessments of the credibility of abuse allegations in child custody cases.
Morrill, A. C., Dai, J., Dunn, S., Sung, I., & Smith, K. (2005). Child custody and visitation decisions when the father has perpetrated violence against the mother. Violence Against Women, 11(8), 1076-1107.
This research evaluated the effectiveness of statutes mandating a presumption against custody to a perpetrator of domestic violence (DV) and judicial education about DV. Across six states, the authors examined 393 custody and/or visitation orders where the father perpetrated DV against the mother and surveyed 60 judges who entered those orders. With the presumption, more orders gave legal and physical custody to the mother and imposed a structured schedule and restrictive conditions on fathers' visits, except where there was also a "friendly parent" provision and a presumption for joint custody. Thus it appears that a presumption against custody to a perpetrator of DV is effective only when part of a consistent statutory scheme.
Myers, John E. B. (1997). A Mother's Nightmare - Incest: A Practical Legal Guide for Parents and Professionals. Thousand Oaks, CA: Sage. Available from Amazon.
When parents - usually mothers - try to protect their children from sexual abuse, they can be devastated to find that support from the legal system is not always there. Suspecting their husbands or partners of the abuse, mothers may seek a divorce and custody or, if already divorced, request withdrawal of visitation rights. However, if unable to prove abuse, a mother can be labelled `hysterical' and her desperate efforts to secure her child's safety may jeopardize her case - and even result in the suspected perpetrator being granted custody of the child.
National Council of Juvenile and Family Court Judges. (2006). Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2nd edition). Reno, NV: NCJFCJ. (download PDF)
EXCERPT from page 19: "Children in contested custody cases may indeed express fear of, concern about, distaste for, or anger with one parent. And those feelings may sometimes have been fostered or encouraged by alienating behaviors on the part of the other parent. On the other hand, there are a variety of competing explanations that need to be explored-including the very real possibility that the children are responding to concerns based in their own experience with the parent from whom they feel estranged." Read whole excerpt
Neustein, A., & Lesher, M. (2005). From Madness to Mutiny: Why Mothers are Running from the Family Courts--and What Can be Done About It. Lebanon, NH: Northeastern University Press.
This scholarly book documents case after case where accusations of sexual abuse by a child resulted in forced contact with the alleged abuser, and sometimes complete termination of parental contact with a loving parent who seeks only to protect the child.
Neustein, Amy, & Lesher, Michael. (2009). Evaluating PAS: A Critique of Elizabeth Ellis's “A Stepwise Approach to Evaluating Children for PAS”. Journal of Child Custody. 6(3), 322-325.
Pagelow, M. D. (1993). Justice for victims of spouse abuse in divorce and child custody cases. Violence & Victims, 8(1), 69-83.
Unequal power positions and domination-subordination roles of battering husbands and battered wives during marriage contaminate the process of separation and divorce. These dynamics may continue long after the marriages cease. Risks of extreme violence, rape, and homicide are highest when victims seek freedom. Because both victims and abusers construct a veil of secrecy while married, even if abused wives disclose the violence during the separation process, there may be nothing to substantiate their claims. Restraining orders often fail to restrain obsessed husbands; other husbands may get revenge by using their children as pawns. Attitudes favoring fathers' rights and joint custody may help win unfair financial advantages, and/or continued control over victims after divorce. Mandatory mediation in some states may give abusers additional advantages. Although some of these problems are being addressed with mechanisms to ameliorate them, the need to recognize problems facing battered wives in divorce and custody contexts has not received adequate attention. The purpose of this article is to provide a review and commentary on these issues.
Palmer, S. E. , Brown, R. A , Rae-Grant, N. I. , & Loughlin, M. J. (1999). Responding to children's disclosure of familial abuse: What survivors tell us. Child Welfare, 78, 259-282.
This study is based on the reports of 384 adults who were abused physically, sexually, and/or emotionally in childhood by family members. It describes the survivors' attempts, as children, to get help by disclosing the abuse to someone who might intervene; those who did not disclose explain their reasons. The results indicate that disclosure usually did not bring an end to the abuse, and that little action was taken to control the perpetrator, even after disclosure took place. The responses received by the children to their disclosure are linked to their levels of self-esteem and family functioning as adults.
Positive adult outcomes were associated with:
- Having the abuse acknowledged by the nonoffending parent
- Having the abuser removed form the home
- Having the abuser convicted
Paquette, Catherine. (1991). Handling Sexual Abuse Allegations in Child Custody Cases. New England Law Review, 25, 1415.
Evaluating allegations of sexual abuse is one of the most challenging and difficult issues an attorney can face in a custody case. Sexual abuse allegations must be dealt with on a case by case basis as no one theory or method can explain or account for these cases. Paquette discusses myths of child sexual abuse including beliefs such as: all abuse leaves physical evidence, all abused children will some sign of psychological trauma, and children who are actually abused will not deny it later.
The author addresses issues related to child witnesses including: the credibility of a child witness, a child's competence to testify, and trauma to the child caused by testifying in court. Suggestions are made concerning handling these cases such as utilizing a professionally trained evaluator to interview the child, and the coordination of all professional and legal participants to ensure an effective prosecution with the least amount of trauma to the child. The support of the family and the safety of the child is of utmost importance. Concern about ruining a man's reputation should be outweighed by the harm of sending the child back to be abused.
Furthermore, judicial systems should avoid punishing the accusing parent in a custody proceeding by changing the custody when an allegation of sexual abuse is deemed "unfounded." Unfounded does not mean false or fabricated; it only means that there was not enough evidence to determine whether sexual abuse occurred.
Paradise, J. E ., Rostain, A. L. & Nathanson, M. (1988). Substantiation of sexual abuse charges when parents dispute custody or visitation. Pediatrics, 81(6), 835-9.
Recent news reports have implied that charges of CSA during divorce are often deliberately falsified. Because the media reports have primarily been antidotal, and because their implications could be harmful if they wrongfully biased practitioners who investigate allegations, CSA cases in a hospital-based consecutive series and one author's practice were reviewed. Abuse allegations made within the context custody or visitation dispute (39% of the sample) were compared with cases in which custody or visitation was not an issue. Cases involving custody problems were found to involve younger children (5.4 vs. 7.8 years). Sexual abuse allegations were substantiated less frequently when there was concomitant parental conflict (nonsignificant) but were nevertheless substantiated more than half of the time.
Poliacoff, J. H., Greene, C. L., & Smith, L. (1999). Parental Alienation Syndrome: Frye v. Gardner in the family courts. Family Law Commentator (Florida Bar), 25(4), 19-20, 30-33.
This article explores the shortcomings of PAS under Frye and Daubert and reviews relevant case law pertaining to the admissibility of PAS in court. Ethical dilemmas that mental health professionals face when serving as experts in these cases are explored and alternative areas for inquiry into the source of impaired parent child relationships occurring in the context of child custody litigation are offered.
Preidt, R. (2005, August 11). Custody Rulings Often Ignore History of Domestic Violence. Harborview Injury Prevention & Research Center (news release).
Even though most U.S. states require courts to consider any history of domestic violence when deliberating child custody cases, this type of abuse is often unknown to courts making these important custody decisions, a new study finds. The study was conducted by researchers at the Harborview Injury Prevention & Research Center in Seattle. They believe evidence of domestic violence is important in making custody decisions because children who have been exposed to their mothers' abuse by an intimate partner are also more likely to be victims of abuse themselves. These children are also more likely to suffer psychological problems, the researchers added.
Reporting in the August 2005 issue of the journal Violence Against Women, the Seattle team analyzed documentation on more than 800 local couples with young children who filed for divorce in 1998 and 1999. These included 324 cases with a history of domestic violence and 532 cases without such a history. Mothers in general were more likely than fathers to be awarded custody of children, but mothers who were victims of domestic abuse were no more likely than other mothers to receive custody, the study found. In addition, fathers with a history of committing domestic violence were no more likely than other fathers to be required by the court to have a third party supervise child visitations, the researchers report. Just 17% of fathers with a known history of domestic violence were denied child visitation. In 47.6% of divorce cases in which husbands displayed a history of partner abuse, no mention of this abuse was found in the divorce case files. The researchers estimate that at least 11.4% of Seattle divorce cases involving couples with dependent children involve a substantiated history of male-perpetrated domestic violence.
Quadrio, Carolyn. (2003). Parental Alienation Syndrome in Family Court Disputes. Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference convened by the Australian Institute of Criminology and held in Adelaide, 1-2 May 2003.
The Parental Alienation Syndrome is sometimes invoked in family law proceedings. It is said to explain false allegations made by one parent against another - usually the allegations refer to sexual abuse of a child and usually it is the mother who is said to be alienating the children from the father. This paper, by an author who has many years experience preparing family assessments for the Family Court, many of which involve allegations of sexual abuse, reviews the syndrome as defined by Gardner and its utility or otherwise in legal proceedings. The paper also reviews the issue of false allegations of sexual abuse, which have been shown by various studies to be uncommon, and the credibility of children making disclosures.
Ragland, E. R. & Fields, H. (2004). Parental Alienation Syndrome: What Professionals Need to Know. NCPCA Update, 16(6-7). Alexandria, VA: American Prosecutors Research Institute.
Part one: NCPCA Update Newsletter Volume 16, Number 6, 2003
Part two: NCPCA Update Newsletter Volume 16, Number 7, 2003
The purpose of these articles is to briefly discuss the major premises upon which PAS is based, and to identify key weaknesses. Part 2 of this Update considers case law and strategies for meeting PAS defenses.
Rosen, L. N., & Etlin, M. (1996). The Hostage Child: Sex Abuse Allegations in Custody Disputes. Bloomington, IN: Indiana University Press.
This book challenges the presumption that allegations of child sexual abuse that arise during custody disputes are usually fabricated. Five cases are described in which children were not protected from their abuser during custody disputes, despite the existence of medical evidence of sexual abuse. In these cases, the allegations were not believed, and the children were returned to the parent who abused them. Literature on the veracity of sexual abuse allegations is reviewed, specifically in the context of divorce. Evidence is presented that suggests the mental health community, as well as society, is denying the existence of sexual abuse and minimalizing the problem. The book highlights problems with the legal process and the current child protection system, including an anti-mother bias that frequently emerges in custody battles. The final chapter proposes a system that protects children from the risk of abuse based on medical evidence, including a Child at Risk Classification Office that would preside over child abuse cases and determine risk to the child. Alleged offenders would not be punished unless the evidence is found to be conclusive, but the child would be protected if any risk were found.
Leora Rosen and Joan Zorza. Child Custody and Visitation Determinations in Cases Involving Domestic Violence: What We Know and What We Need to Know. http://thehostagechild.com/research-updates.html
Although forty-nine states have laws that require judges to consider domestic violence when making custody determinations, battered women’s advocates maintain that many family courts are still gender biased, often discounting the seriousness of intimate partner violence and even punishing victims for raising legitimate safety concerns by awarding custody of minor children to the perpetrator.
To determine whether domestic violence is being given appropriate weight in making custody determinations the authors combined the results of four studies and looked at key issues such as custody awards to victims of domestic violence and supervised visitation for perpetrators. From the information available, Rosen and Zorza found that custody outcomes for victims of domestic violence are most favorable in states with a clear preference for maternal custody. Outcomes for victims appear to be less favorable in states with a joint custody preference even when there is a Presumption against awarding custody to a perpetrator of domestic violence.
EXCERPT: Legal custody awards to domestic violence victims ranged from 5% (California) to 61% (Washington). The range for physical custody was even greater – 7% to 91%. Washington State does not have a Presumption against awarding custody to a perpetrator of domestic violence, but manifested the highest rate of legal and physical custody awards to victims. In the case of legal custody, the difference between domestic violence and non-domestic violence cases was statistically significant (see Table 2). Among states with the Presumption, Delaware had the lowest rate of physical custody awards to mothers (24%) compared to Minnesota (80%) and Massachusetts (77%). This is interesting in light of the fact that Delaware has stronger joint custody statutes than the other two states with the Presumption. Florida had the highest rate of primary custody awards to victims (77%) while Kentucky and California had the highest rates of joint custody awards (16% and 17%). In the two states without the Presumption (and no conflicting provisions) physical custody awards to victims were much higher in Rhode Island (89%), a state with no joint custody statutes, than in Kentucky (29%) a state with a fairly high rating on joint custody statutes.
Rockey, Arlaine. (2003). Custody Cases: Protecting Children from Sexual Abuse.
article available at http://www.arlainerockey.com/
This article is written in plain language and explains the legal system for non-lawyers. It has been universally praised for giving practical legal advice to protective parents who are involved in complex custody cases and covers these issues: 1) Why aren't the children protected; 2) Navigating the Minefield; 3) Writing a chronological history and gathering evidence for your lawyer; 4) Documentation; 5) Doctors & Therapists; 6) How you Play the Game; 7) Combating Allegations of Parental Alienation (PAS); 8) Child Protective Services; 9) Domestic Violence; 10) The Guardian ad Litem; 11) The Custody Evaluation; 12) Hiring a Sexual Abuse Expert; 13) The Abuser's Testimony; 14) The Child's Testimony; 15) Other Witnesses at Trial; 16) Your Testimony; and 17) Living with the Outcome in your Case.
Ross, S. M. (1996). Risk of physical abuse to children of spouse abusing parents. Child Abuse & Neglect, 20(7), 589-98.
The purpose of this study is to estimate the gender-specific probability of a violent spouse also physically abusing his or her child within a representative sample. The study is based on a sample of 3,363 American parents interviewed for the 1985 National Family Violence Survey.
The study shows that marital violence is a statistically significant predictor of physical child abuse. The greater the amount of violence against a spouse, the greater the probability of physical child abuse by the physically aggressive spouse. This relationship is stronger for husbands than for wives.
The probability of child abuse by a violent husband increases from 5% with one act of marital violence to near certainty with 50 or more acts of marital violence. The predicted probability of child abuse by a violent wife increases from 5% with one act of marital violence to 30% with 50 or more acts of marital violence. Implications for divorce custody proceedings are discussed.
Saccuzzo, D. P., & Johnson, N. E. (2004). Child
custody mediation’s failure to protect: Why should the
criminal justice system care? National Institute of Justice Journal, 251, p. 21-23.
Available at http://ncjrs.org/pdffiles1/jr000251.pdf
The researchers looked at mediations in which the parties could not reach a mutual
agreement. They compared 200 mediations involving charges of DV with 200 non-DV
mediations. Attorneys who represented mothers at these
proceedings said that they often advised their
clients not to tell the mediator about domestic
abuse. After looking at the results of such
mediations, the researchers determined that the
attorneys’ advice may well be justified; women
who informed custody mediators that they were victims of domestic violence often received less favorable custody awards.
Salansky, C., Ericksen, J., & Henderson, A. (1999). Abused women and child custody: The ongoing exposure to abusive ex-partners. Journal of Advanced Nursing, 29, 416-26.
This research study using the qualitative methodology of phenomenology was conducted on abused women's experiences with custody and access and the ongoing exposure to abusive ex-partners. Six single mothers who had left abusive relationships and were at the time sharing custody of and/or access to their children with their abusive ex-partners participated in the study. Unstructured, non-directive interviews were conducted. Data analysis revealed that all of the women were living in great fear for their safety and that of their children. The ongoing danger and stress of living with the restrictions of the law took its toll on the women and ultimately affected their physical health and psychological well-being. The women described their experiences as having four components: (1) safety — living with ongoing danger; (2) stress — living with the restrictions of the law and the legal system; (3) coping — social support systems; and (4) to heal and move forward in life.
Saunders, D. G. (2007). Child custody and visitation decisions in domestic violence cases: Legal trends, research findings, and recommendations . Violence Against Women Online Resources. http://new.vawnet.org/Assoc_Files_VAWnet/AR_CustodyRevised.pdf
EXCERPT: It may be hard to believe that an abusive partner can ever make good on his threat to gain custody of the children from his victim. After all, he has a history of violent behavior and she almost never does. Unfortunately, a surprising number of battered women lose custody of their children (e.g., Saccuzzo & Johnson, 2004). This document describes how this can happen through uninformed and biased courts, court staff, evaluators, and attorneys and how the very act of protecting ones’ children can lead to their loss.
Karen Saywitz, Lorinda B. Camparo, and Anna Romanoffz. (2010). Interviewing Children in Custody Cases: Implications of Research and Policy for Practice. Behavioral Sciences and the Law, 28: 542–562.
Research on child interviewing has burgeoned over the past 25 years as expectations about children’s agency, competence, and participation in society have changed. This article identifies recent trends in research, policy, and theory with implications for the practice of interviewing children in cases of contested divorce and for the weight to be given the information children provide. A number of fields of relevant research are identified, including studies of families who have participated in the family law system, studies of child witnesses in the field, experimental studies of the effects of interview techniques on children’s memory and suggestibility, and ethnographic methods that elicit children’s views of their own experiences. A set of 10 principles for practice are delineated based on the best available science.
- Provide an age-appropriate, private environment with minimal distractions.
- Prepare children with age-appropriate explanations of the purpose of the interview, the child’s role, and the functions of the professionals.
- Create an objective, non-judgmental atmosphere where children’s perceptions are explored and respected. Demonstrate a willingness to hear all sides, without pressuring children.
- Make an effort to establish rapport through non-suggestive means.
- Promote a supportive, welcoming, non-threatening atmosphere.
- Match the demands of the interview to the child’s stage of development.
Use language children comprehend and concepts children understand.
- Establish conversational ground rules and shared expectations with practice narratives and instructions.
- Engage children in conversations on a wide range of topics germane to the decision-making process. Elicit information regarding both advantages and disadvantages of various options, rather than condensing the task to a question of where children prefer to live.
- Use general open-ended, non-leading questions that call for multi-word responses; whenever possible, invite children to elaborate in their own words.
- Finally, avoid suggestive techniques that mislead, introduce bias, reinforce
interviewer expectations, apply peer pressure, stereotype people, or invite children to
pretend or speculate.
Schudson, Charles B. Antagonistic parents in family courts: False allegations or false assumptions about true allegations of child sexual abuse? Journal of Child Sexual Abuse, 1(2), 1992, 113-6.
Judge Schudson examines whether there is any basis for viewing skeptically the allegation of one parent accusing the other parent of CSA during a divorce, custody or visitation dispute. Contrary to what many assume, most allegations of CSA are valid, and false allegations remain rare, even in family court. When antagonistic parents are locked in legal disputes it is reasonable to be concerned about their motives when allegations are made. However, an unsupported conclusion that the parents will falsely allege sexual abuse should not be reached. All allegations of CSA must be evaluated in a thorough and sensitive manner to separate the few false allegations from the many that are true.
Sherman, Rorie. (Aug. 16, 1993). Gardner's Law: A Controversial Psychiatrist and Influential Witness Leads the Backlash Against Child Sex Abuse 'Hysteria,' National Law Journal, 15, at 1, 45.
This article notes that forensic child psychiatrist Richard Gardner is one of the most prominent experts who is speaking out against what he considers to be child abuse hysteria. Most of Gardner's court testimony is devoted to defending men accused of child sexual abuse. Gardner's theories, most of which have never been tested empirically, are influencing court-appointed therapists around the country. Gardner has been certified to testify in at least 70 sex-abuse cases, both criminal and civil. He is an outspoken media commentator and has hired his own publicist to help him gain access to more media outlets.
Gardner calls child abuse allegations the "third-greatest wave of hysteria" that nation has seen, with the first two being the Salem witch trials and the McCarthy hearings. Many of his colleagues state that there is little scientific evidence to support his theories. They also note that his ideas are not filtered through the peer-review system before they reach the courts because he publishes them himself.
To help cure society of false allegations, Gardner suggests that courts should appoint therapists familiar with his theory of Parental Alienation Syndrome (PAS) to evaluate custody cases. This theory suggests that there is an epidemic of vindictive women accusing fathers of child sex abuse to gain leverage in child-custody disputes. The only way to deal with severe cases of PAS, according to Gardner , is to take the children away from their brainwashing mother until they can be deprogrammed.
Gardner claims that the vast majority of sex-abuse accusations made during custody disputes are false, in-spite of numerous research studies which show the opposite is true. There is no research that confirms that PAS even exists, yet Gardner recommends that children be removed from their mother's care based on it.
Critics state that Gardner almost always sides with a man against his wife, and even testified that a man who murdered his wife during a custody dispute should be found not guilty because his wife had driven him temporarily insane. Gardner also developed a psychological test called the Sex Abuse Legitimacy Scale (SALS) which is a checklist of criteria that Gardner claims will help determine whether child sex-abuse accusations are credible.
Since 1987, therapists nationwide started using this scale even though there was no research documenting that it was valid. Recently the SALS has been discredited by academics, rejected by one appellate court and withdrawn from the market by Dr. Gardner.
One researcher used Gardner 's SALS to evaluate confirmed cases of child sexual abuse and found that the scale produced inaccurate assessments. A lawyer commented that under the theories expounded by Gardner, no matter what a woman who discovers her child is being sexually abused does, she is going to do something wrong unless she disbelieves her child. If a mother goes to an attorney or a doctor for help, the SALS finds the child's allegations less credible. When asked to explain why all of the men who hire him to testify for them in sexual abuse cases are confirmed innocent by him, Gardner says that guilty men don't ask him to testify for them. Gardner states: "People who are falsely accused are more likely to come to me...Pedophiles recognize that I am not so easily fooled."
Silverman, J. G., Mesh, C. M., Cuthbert, C. V., Slote, K., & Bancroft, L. (2004). Child custody determinations in cases involving intimate partner violence: A human rights analysis. Am J Public Health, 94 (6), 951-957.
Intimate partner violence and child abuse are recognized both as public health concerns and as violations of human rights, but related government actions and inactions are rarely documented as human rights violations in the United States. Men who abuse female partners are also highly likely to abuse the children of these women. However, family courts are reported to often ignore risks posed by abusive men in awarding child custody and visitation. Battered women involved in child custody litigation in Massachusetts (n = 39) were interviewed. A recurring pattern of potential human rights violations by the state was documented, corresponding to rights guaranteed in multiple internationally accepted human rights covenants and treaties. The human rights framework is a powerful tool for demonstrating the need for legal, social, and political reform regarding public health concerns.
Sleek, S. (1998, February). Is psychologists' testimony going unheard? Some judges don't understand psychologists' research, while others discount their findings. APA Monitor, 29(2).
Legal experts say adjudicators are ignoring well-founded evidence while buying into feeble testimony: "For example, family-law judges have denied some divorced mothers custody of their children, based on a `diagnosis' of `parental alienation syndrome,' says Robert Geffner, PhD, a San Diego psychologist and expert on family-violence issues."
Smith, R., & Coukos, P. (1997, Fall). Fairness and Accuracy in Evaluations of Domestic Violence and Child Abuse in Custody Determinations. The Judges Journal, 1997, 38-56.
EXCERPT: . . .Although both common sense and the prevailing legal standard dictate careful consideration of evidence in domestic or family violence when determining custody, allegations of domestic violence and/or child sexual abuse made during a divorce or custody proceeding are not always taken seriously. These allegations often are wrongly perceived as false because they are asserted in a contentious environment and because of the widespread myth that parents fabricate domestic violence and child abuse allegations in order to gain an advantage in court. When combined with the misuse of psychological syndrome evidence, the perception that a parent has fabricated the allegations often results in unfair retribution against the reporting protective parent. (p. 39)
Stahly, G. B. (1990, April). Battered women's problems with child custody. In G. B. Stahly (Chair), New directions in domestic violence research. Symposium conducted at the annual meeting of the Western Psychological Association, Los Angeles.
[Cited in Liss, M. B., & Stahly, G .B. (1993). Domestic violence and child custody. In M. Hansen, & M. Harway (Eds.), Battering and family therapy: A feminist perspective (175-187). Thousand Oaks, CA: Sage.]
Sociologist Geraldine Stahly, PhD., surveyed battered women's shelters in order to gather information on extent of custodial problems encountered by women seeking shelter services. Of the more than 100,000 women reported on by the shelter staff, 34% reported the batterer threatened to kidnap their children; and 11% of batterers had actually kidnapped a child. In 23% of cases batterers had threatened legal custody action, and in 7% of the cases known to the shelter staff, such actions had already been filed. In 24% of the cases, the battering man used court-ordered visitation as an occasion to continue verbal and emotional abuse of the woman, and in 10% of the cases, physical violence continued. Shelter staff reported numerous cases in which courts granted unsupervised visitation in spite of evidence of physical abuse of the child (12,401 reported cases) and child sexual abuse (6,970 reported cases).
Stahly, G. B., Krajewski, L., Loya, B. Uppal, K., German, G., Farris, W., Hilson, N., & Valentine, J. (2004). Protective Mothers in Child Custody Disputes: A Study of Judicial Abuse. In Disorder in the Courts: Mothers and Their Allies Take on the Family Law System (a collection of essays), electronic download available at http://store.canow.org/products.php?prod_id=3
To better understand the problems that protective parents face in the legal system, researchers at California State University, San Bernardino, are performing an on-going national survey. To date, over 100 self-identified protective parents have completed the 101-item questionnaire.
The study found that prior to divorce, 94% of the protective mothers surveyed were the primary caretaker and 87% had custody at the time of separation. However, as a result of reporting child abuse, only 27% were left with custody after court proceedings. 97% of the mothers reported that court personnel ignored or minimized reports of abuse and that they were punished for trying to protect their children. 45% of the mothers say they were labeled as having Parental Alienation Syndrome (PAS).
Most protective parents lost custody in emergency ex parte proceedings (where they were not notified or present) and where no court reporter was present. 65% reported that they were threatened with sanctions if the "talked publicly" about the case. The average cost of the court proceedings was over $80,000 and over a quarter of the protective parents reported being forced to file bankruptcy as a result of filing for custody of their children. 87% of the protective parents believe that their children are still being abused; however, 63% have stopped reporting the abuse for fear that contact with their children will be terminated. Eleven percent of the children were reported to have attempted suicide.
Stark, Evan. (2009). Rethinking Custody Evaluation in Cases Involving Domestic Violence. Journal of Child Custody. 6(3), 287-321.
Abstract: This article was prompted by the publication of “Assessing Allegations of Domestic Violence,” by Gould, Martindale and Eidman (2007). It critically reviews the family court response to domestic violence cases, highlighting evidence that most partner abuse consists of coercive control rather than physical assault alone. After outlining what is known about the prevalence and dynamics of domestic violence in the custodial context, I summarize findings from studies of the family court response, contrast this response with public expectations and the response by other courts and institutions, and argue that the failure to provide protective remedies is systemic rather than the result of individual factors or a lack of information. Basic reforms are required in assessment, adjudication, and accountability in these cases if the family court is to retain its legitimacy as an arbiter of family matters in disputed cases.
Straton, Jack C. (1992). What is Fair for Children of Abusive Men?
Paper originally presented at What About the Kids? Custody and Visitation Decisions in Families with a History of Violence National Training Project of the Duluth Domestic Abuse Project - Thursday, October 8, 1992, Duluth, Minnesota
This paper criticizes the "best interests of the child" criterion as being so vague that it requires us to rely upon the opinions of adults as to what "best interest" means. And the norms behind these opinions are seldom acknowledged, and thus not refutable.Courts who apply this criterion have disregarded the severe effects of domestic violence on children, even to the extent of saying that killing a child's mother is not a sufficiently depraved act so as to deny a man custody. If it is possible for a custodial criterion to allow such twisted result to result from a jurists value system, that criterion itself is severely flawed. Argues that that a cessation of contact with the abuser is the only way to minimize demonstrable and foreseeable harm to children.
St. Charles , E. L., & Crook, L. (Eds.) (1999). Expose: The Failure of Family Courts to Protect Children from Abuse in Custody Disputes - A Resource Book for Lawmakers, Judges, Attorneys and Mental Health Professionals. Los Gatos, CA: Our Children Our Future.
This book is a collection of essays, academic thesis, research papers and newspaper articles contributed by professionals from the fields of law, mental health, sociology, journalism, medicine, civil rights, the media and child advocacy. Expose is being widely acclaimed as the first publication to put into perspective many of the factors that are influencing the tragic placement of children by the family court system. Expose is endorsed by over 70 organizations nationwide.
Sutherland, P. K., & Henderson, D. J. (1998). Expert Psychiatrists and Comments on Witness Credibility, Trial.
This article argue that policies that prohibit positive commentary on credibility or witness "bolstering," should also apply to negative commentary on witnesses' credibility in the form of pejorative and false diagnoses.
Sutherland, T.J. (2004). High-conflict divorce or stalking by way of family court? The empowerment of a wealthy abuser in family court litigation. Linda v. Lyle – A case study. Massachusetts Family Law Journal, 22(1&2) 4-16. http://www.mincava.umn.edu/reports/linda.asp
Virtually all coverage of high-conflict divorce assumes both parents are the source of the conflict. This article argues that some high-conflict divorces are actually the manifestation of stalking behaviors by wealthy domestic abusers. Provides a case analysis of Linda v. Lyle - Linda was married to Lyle for 22 years. He was a violent spousal and child abuser. Despite the fact that a volume of CPS reports had accumulated against Lyle, he obtained sole custody of their son. Linda was given visitation but Lyle frequently prevented her from seeing her child. To date, the case has litigated for approximately 6 years without respite. Lyle is quite wealthy and Linda, who was a homemaker, has been left homeless and is a pro per litigant facing two attorneys. The court blamed her for the protracted litigation because she attempted to reestablish a relationship with her child.
Thoennes, N. (1988, Summer). Child Sexual Abuse: Whom Should a Judge Believe? What Should a Judge Believe? The Judges' Journal, 27, 14-.
This article provides an overview of the results of a 2-year study completed by the Denver-based Research Unit of the Association of Family and Conciliation Courts which explored the incidence and validity of sexual abuse allegations in custody cases. Though nation-wide reports of sexual abuse made to child protective service agencies have increased dramatically, those in custody disputes have not.
Contrary to the popular myth that sexual allegations in custody cases are relatively common, between 1985 and 1987 the study found that only 2 to 6% of custody cases in the 12 states participating in the study involved allegations of sexual abuse.
The categorization that these allegations are typically false was also challenged by the present study. Half of the allegations were believed by the investigators to be true, and in another 17% determination of the validity could not be made with any degree of certainty. The remaining third of the cases were not believed to involve abuse. However, in most of the cases which were not substantiated, the allegations were believed to have been made in good faith and based on genuine suspicions.
This study refutes the notion that sexual abuse allegations in the context of custody and visitation cases are now epidemic, as well as the idea that these cases are commonly motivated by a reporting parent who is vindictive or seriously impaired. There is no evidence from the present research to suggest that a significant number of parents are using fabricated reports to win custody battles.
Thoennes, N., & Pearson, J. (1988). Sexual Abuse Allegations in Domestic Relations Cases: The Research Perspective, 9 Children's Legal Rights Journal 16.
Presents findings from The Abuse Allegations Project conducted by the Research Unit of the Association of Family and Conciliation Courts (AFCC) and the National Legal Resource Center for Child Advocacy and Protection of the American Bar Association.
This article explores the following issues: the nature of the allegations, estimates on the incidence of such charges, issues facing court personnel in reporting the case, evaluations resulting from the report, the perceived veracity of the charges and methods of managing cases as they proceed in the CPS agency and the courts. It is noted that the validity of sexual abuse allegations heard in family court has increasingly become a source of contention. The project found that in general the incidence of substantiated reports of child abuse is high and that the incidence of false allegations in custody and visitation case is low.
Trocme, N., & Bala, N. (2005). False allegations of abuse and neglect when parents separate. Child Abuse & Neglect, 29(12), 1333. (PDF)
The 1998 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS-98) is the first national study to document the rate of intentionally false allegations of abuse and neglect investigated by child welfare services in Canada. This paper provides a detailed summary of the characteristics associated with intentionally false reports of child abuse and neglect within the context of parental separation.
Method: A multistage sampling design was used, first to select a representative sample of 51 child welfare service areas across Canada. Child maltreatment investigations conducted in the selected sites during the months of October-December 1998 were tracked, yielding a final sample of 7,672 child maltreatment investigations reported to child welfare authorities because of suspected child abuse or neglect.
Results: Consistent with other national studies of reported child maltreatment, CIS-98 data indicate that more than one-third of maltreatment investigations are unsubstantiated, but only 4% of all cases are considered to be intentionally fabricated. Within the subsample of cases wherein a custody or access dispute has occurred, the rate of intentionally false allegations is higher: 12%. Results of this analysis show that neglect is the most common form of intentionally fabricated maltreatment, while anonymous reporters and noncustodial parents (usually fathers) most frequently make intentionally false reports. Of the intentionally false allegations of maltreatment tracked by the CIS-98, custodial parents (usually mothers) and children were least likely to fabricate reports of abuse or neglect.
Conclusions: While the CIS-98 documents that the rate of intentionally false allegations is relatively low, these results raise important clinical and legal issues, which require further consideration.
The Voices of Women Organizing Project (VOW). (2008). Justice Denied: How Family Courts in NYC Endanger Battered Women and Children. Brooklyn, NY: Battered Women's Resource Center. (Executive Summary)
EXCERPT: 80% of women said their abuser threatened to take away their children and used the court to follow through with that threat. 10% of women said they stopped reporting abuse for fear of losing contact with their children.Mothers were told by their lawyer, the law guardian or the judge not to oppose visitation, even when they felt it was unsafe or when their children protested.
Nancy Ver Steegh. (2005). Differentiating Types of Domestic Violence: Implications for Child Custody. Louisiana Law Review, Vol. 65, p. 1379.
Full Text: http://ssrn.com/abstract=910270
Current statutes are not drawn with sufficient precision to adequately protect children. There are different types of domestic violence that require different types of interventions. Child custody courts could more effectively protect children through identification and consideration of the type of domestic violence experienced by the family. Three significant procedural and substantive law reforms are recommended.
First, courts should adopt Differentiated Case Management in order to identify cases involving domestic violence and to the extent possible, distinguish the type of violence experienced.
Second, child custody court procedures and services should vary depending on the needs of the individual family and type of violence experienced. Under the current one-size-fits-all approach, some families are referred to procedures and services that are unsafe for them while other families, who could benefit from those very procedures and services, are discouraged from using them.
Third, current domestic violence-related child custody statutes should be amended to include language that targets perpetrator patterns of coercive control.
Waldon, K. H., & Joanis, D. E. (1996). Understanding and collaboratively treating parental alienation syndrome. American Journal of Family Law, 10, 121-133.
EXCERPT: " Gardner's conceptualization of the problem and the dynamics underlying the problem proved at best incomplete, if not simplistic and erroneous. He portrays the alienating parent as virtually solely responsible for the dynamic, turning the vulnerable child against the innocent target parent. More extensive research on the topic has more clearly established the complex involvement and motives of all of the actors in this disastrous family drama. Each of the family members takes a role in the alienation process, which usually begins well before the divorce event. It should be kept in mind that not all instances in which a child is rejecting a parent following a parental separation reflect PAS. In some families, the child rejects a parent based on the child's actual experiences with that parent. There are very likely many children in intact families who wish to avoid or reject one of the parents based on that parent's behavior. A parental separation may simply raise such a wish to the public level." (p. 121).
Walker, L. E., Brantley, K. L., & Rigsbee, J. A. (2005). A Critical Analysis of Parental Alienation Syndrome and Its Admissibility in the Family Court. Journal of Child Custody, 1(2), 47-74. [download from Haworth $]
ABSTRACT: Over the past three decades, a syndrome, titled Parental Alienation Syndrome (PAS), has been proposed to explain behaviors by a child who refuses to spend time with a parent and actually denigrates that parent within the context of a child custody dispute. The association of certain negative behaviors by one parent (called the 'alienator') towards the other parent (called the 'target parent') are said to be the cause of the child's (called 'alienated child') behavior. Although some mental health professionals and child custody evaluators, attorneys, and judges have been quick to accept and admit PAS as evidence in these disputes, especially in those that have cross-complaints alleging family violence, there has been no consistent empirical or clinical evidence that PAS exists or that the alienator's behavior is the actual cause of the alienated child's behavior towards the target parent. It is argued here that the PAS construct itself is flawed and its use by custody evaluators to justify placement with the rejected parent may result in more serious damage to the child who is taken away from the parent to whom the child has bonded. These authors suggest that the PAS argument has been accepted by some courts that seem almost eager to punish the so-called alienating parent without regard for the immediate or long-term impact on the child. PAS has had difficulty meeting Daubert or Frye admissibility standards in criminal courts but few family courts have held hearings to determine its scientific integrity. This article attempts to help those working with custody issues understand how the PAS construct fails to meet scientific standards and should not be admissible in courts.
Weiner, Merle H. (2000). International Child Abduction and the Escape from Domestic Violence. Fordham Law Review
This article provides an in-depth exploration of the Hague Convention's application to parents who take their children across international borders to escape from domestic violence. Presently, the Convention offers too little hope for the domestic violence victim who flees with her children to escape domestic violence and then faces her batterer's petition for the children's return.
EXCERPT: ". . .a general perception existed when the Hague Convention was drafted that the abductors were men who had lost or feared losing custody to the children's mothers. To the extent that domestic violence was considered at all by policy makers, fathers were sometimes thought to abduct their children as a way of abusing the children's mothers. Against this backdrop, the Hague Convention's quick 'right of return' remedy and its limited defenses made perfect sense. However, the Hague Convention framework makes far less sense as a remedy for abductions by primary caretakers, often women, who take their children with them when they flee from domestic violence."
Wilson, R. F. (2001). Children at Risk: The Sexual Exploitation of Female Children After Divorce. Cornell Law Review, 86(2), 253-327.
After dispelling common misconceptions about the nature of sexual abuse, the author marshals overwhelming empirical evidence more than 70 social science studies showing a connection between family disruption and child sexual abuse of girls. This evidence shows that a female child, after her parents divorce, faces a significantly elevated risk of being sexually abused by either a parent, a parent's partner, or a person outside of the home.
The author argues that family law deals inadequately with this disturbing phenomenon because courts in custody proceedings generally neglect to address the increased statistical probability of sexual abuse after divorce. She then maps out three possible routes to prevention of sexual abuse by using custody determinations to increase parental awareness and encourage parents to take affirmative steps to mitigate the risk to their daughters.
The author recognizes that acting in anticipation of risks rather than after demonstrated conduct is not without controversy. She examines, therefore, whether tailoring prevention efforts to children at divorce will stigmatize single parents, discourage remarriage or encourage non-custodial parents to later fabricate charges of abuse.
Wilson concludes that integrating the increased risk of child sexual abuse in custody proceedings is ultimately a commonsense way to address a pervasive problem. More broadly, she contends that judicial decision-makers can intelligently address the challenges facing fractured families only if guided by substantial evidence of how these families function.
Wood, C. L. (1994). The parental alienation syndrome: A dangerous aura of reliability. Loyola of Los Angeles Law Review, 27, 1367-1415.
Attorney Cheri Wood suggests that although Gardner's self-published theories do not have any empirical grounding, they have been given a "dangerous and undeserved aura of reliability and trustworthiness" in the courtroom. Wood concludes that PAS should not be admissible in court for the following reasons: (1) because it has not gained acceptance among experts in the field, (2) because of difficulties in determining causation, and (3) because it endangers children.
Zirogiannis, L. (2001). Evidentiary issues with parental alienation syndrome. Family Court Review, 39(3), 334-343.Zorza, Joan. (2009). On Navigating Custody & Visitation Evaluations in Cases With Domestic Violence: A Judge's Guide. Journal of Child Custody. 6(3), 258–286.
Abstract: In 2006, the National Council of Juvenile and Family Court Judges issued a revised and improved edition of Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge's Guide, which now focuses on safety for victims and their children. This new edition explains the dynamics of domestic violence, that parental alienation syndrome and parental alienation have been discredited, and why psychological tests are largely useless and unreliable in domestic violence cases. The guide, however, is still too optimistic about the success of batterer programs. The guide is sometimes misleading and gender biased as it uses gender neutral language and because what men and women do differs and usually affects them differently.
Zorza, J., & Rosen, L. (2005). Editors Intro To Custody and Abuse Issue. Violence Against Women. 11(8), 983-990.
This issue reports the results of four studies--all funded by the National Institute of Justice--that, for the first time, present systematically collected empirical evidence on the custody crisis facing battered women in America. This introduction to the special issue of Violence Against Women notes that the question as to how many battered women lose custody of their children cannot be answered simply because the custody laws and practices governing normal custody arrangements vary from state to state, with the result that there are many different standards of comparison among the different jurisdictions. The studies in this issue include data collection having occurred in 9 of the 50 states. They suggest that battered women continue to be be disadvantaged
in custody disputes with their abusers.
Zorza, Joan. (2006). Child Custody Cases, Incest Allegations and Domestic Violence: Expert Insights and Practical Wisdom, 4 The ABA Commission on Domestic Violence Quarterly e-Newsletter. (download pdf)
EXCERPTS: The sad reality is that not enough therapists or custody evaluators are
knowledgeable about domestic violence or able to identify it even when clearly presented
to them. These same individuals probably are even less knowledgeable about child
molestation and incest, including how to diagnose it or how to properly treat it. One study has found that some form of child abuse occurs in 30-60% of families
where domestic violence is present, and that the occurrence rate is much higher when it is
the father abusing the mother. The same study reports that the incidence of child abuse
by a battering husband increases from 5% with one act of marital violence to nearly
100% with 50 incidents of marital violence. Other studies show that 44.5% to 73% of
incest perpetrators are known to be battering the children’s mother.
Zorza, Joan. (2007). The "Friendly Parent" Concept--Another Gender Biased Legacy from Richard Gardner, 12 Domestic Violence Report 65. (download pdf - republished with permission of Civic Research Institute)
Many people know that Richard Gardner created "Parental Alienation Syndrome" - an unscientific theory that has been used to deprive countless mother of custody of their children and to force children to live with an abusive parent. What has largely slipped through the cracks is the "friendly parent" concept (FPC) is related to PAS. Some version of the FPC has been enacted by 32 states in their custody laws. It gives custody preference to the parent who will better encourage a good relationship between the child and the other parent. The FPC is based on many of the same myths as PAS, and leads to many of the same punitive outcomes for children. According to this article:
"Although every state has made domestic violence ("DV") a factor that courts must consider in custody cases, and at least 24 have a presumption that batterers not be given custody, studies show that batterers still win custody in states with the FPC unless a statute clarifies that it does not apply when there is DV. The FPC is based on many of the same myths as PAS, namely that (1) DV is rare, not that serious, often mutual, raised by mothers for tactical gain, and ends following the divorce or custody case; and (2) incest is rare and raised by mothers for tactical gain" (p. 75).
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