Child abuse: when family courts get it wrong

States must reform a system that too often awards custody to the abusive parent.

Opinion

When a parent harms his or her own child, family courts are supposed to step in and safeguard the victim.

Can you imagine what a tragedy it would be if courts awarded custody to the wrong parent – the abuser?

Actually, according to one conservative estimate, more than 58,000 children per year are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States.

The fact that this type of scandal is taking place in the American justice system defies the imagination. Not since the Roman Catholic Church pedophile scandal has the US seen this level of institutional harm inflicted on innocent children.

Consider the case of Jonea Rogers, a hairstylist from Marin County, Calif. During her costly divorce, she sought help from numerous law enforcement, child protection, and family court authorities to protect her daughter from what medical evidence and reports by the child and her baby sitter suggested could be ongoing neglect or sexual abuse or both by the girl's father or grandfather.

None of the authorities she approached would effectively intervene to protect her daughter. So in 2000, Ms. Rogers eventually felt that she had no choice but to flee with her child to protect her.

More than three years later, this protective mother was caught and jailed for five months, while her daughter was immediately handed over to her alleged abusers. Rogers faced criminal charges for violating a court order by fleeing with her child. After considering the evidence in her case, a jury of her peers completely exonerated her of all wrongdoing.

The very same evidence that exonerated her in the criminal court had been called "frivolous" by the family court judge and disregarded. Despite her acquittal, Rogers was never granted custody of her daughter, who lives with her alleged abusers to this day. She is now forced to pay a fee to visit with her daughter a few times a month in a supervised visitation facility.

As we see in many cases across the country, even when physical or sexual abuse of children is alleged during a divorce, American family courts routinely award custody to the parent with an established record of domestic violence restraining orders, child abuse, neglect, alcoholism, addiction, dangerous mental illness, or a combination.

Meanwhile, the child's other parent, commonly referred to as the "protective parent," is typically demonized by court professionals as an "alienator" for bringing evidence of child abuse to the court's attention.

This happens because the reigning paradigm in family courts across the country is an unscientific, discredited theory known as "Parental Alienation Syndrome," or PAS.

PAS and its many derivatives suggest that the parent who asks the court to protect his or her child by limiting the alleged abuser's access to that child is "alienating" the child from the other parent.

The theory suggests that a parent "coaches" a son or daughter to fabricate false abuse allegations, and the court's attention immediately shifts away from investigating an alleged crime and instead focuses on the "uncooperative parent" who refuses to share custody of the child with the alleged abuser or molester.

PAS is tricky for the courts because parents in heated custody battles often badmouth each other and sometimes exaggerate claims of neglect, and children overhear their parents complaints about each other. Though rare, false allegations of abuse do occur. Research on child sexual abuse indicates that close to 98 percent of children who claim sexual abuse in the context of a high conflict divorce are telling the truth, yet family courts routinely proceed as if the opposite were true.

Protective parents not only lose custody of the children they are trying to protect, but they lose their life savings, too. Many cannot even afford a lawyer to represent their interests, but are saddled with hefty supervised visitation fees and often threatened with a loss of custody if they object to paying the bevy of court-appointed experts that the judge assigns to their case.

Fees quickly add up to tens or even hundreds of thousands of dollars. Many such parents go bankrupt, making court appeals impossible. The family law "machine" operates as Big Business, and a sophisticated cottage industry has sprung up that appears to be preying on desperate parents and children who are trying to escape family violence.

Four factors conspire against protective parents:

1. Family law judges are granted broad discretion in their decisionmaking;

2. Juries are nonexistent in most family law courtrooms;

3. Costly appeals are out of reach for most litigants; and

4. Children are not afforded a voice in these important proceedings that determine their future. As a result, nothing short of a major overhaul of the family court system will suffice.

Here in California, home to some of the most egregious cases, the Center for Judicial Excellence and its partner organizations in the Safe Child Coalition recently worked with State Sen. Mark Leno (D) of San Francisco to unanimously pass an audit request through the California legislature to address this growing problem.

The request asks the state auditor to investigate the procedures used by family courts to appoint, train, evaluate, and discipline the plethora of professionals they use in cases in Marin and Sacramento counties.

The legislature should also pass two sensible bills in 2010. Assemblyman Jim Beall (D) of San Jose has proposed a bill that would outlaw PAS in state family courts, and a bill by Assemblywoman Fiona Ma (D) of San Francisco would allow children to have a voice in family court proceedings.

Other states must open their eyes to this problem. Family courts are being manipulated in ways that tragically undermine their mission.

We must ensure access to justice for all who find themselves in our nation's family courts. There are at least 58,000 reasons to get serious about reform today.

Kathleen Russell is a cofounder and staff consultant to the Center for Judicial Excellence in Marin County, Calif.