Misreading family court practices

May 3, 2013

It’s hard to understand why family courts throughout the world continue to torment innocent children by forcing them to live with abusers. As just one example of this common scenario, consider this very sad story: Teenage Wedding Brings Runaway ‘Out of Hiding‘.

Despite the mounting evidence and the large numbers of families coming bravely out of hiding to tell their horrible family court stories, many in our culture continue to believe that parents will do anything in a custody dispute and that previously good parents will lie to keep the other parent from seeing their common child.

It appears that this fiction, which leads to extensive suffering for abused children and the protective parents trying to keep them safe, may be based in the way family courts were previously structured and in the fact that most people are simply not informed about the current law and the way it functions.

It used to be that family courts were based in an all or nothing approach. In the days of the movie “Kramer vs. Kramer” and earlier, custody was more clearly an all or none affair. In those days, one parent was generally chosen as the child’s caretaker, and that parent was more often the mother. The other parent would get very limited visitation. This type of approach led to “custody battles”, the kind of “knock down drag-out” fights in which one parent would try to blame the other for being the bad guy in the relationship and as a parent because losing one’s child depended on it.

At some point thereafter, studies were published and brought to light which showed that children needed their fathers and that children with an absent father are disadvantaged over those with an involved father. This, along with other social changes, such as an increase of women in the workforce and cultural increase in male participation in the home, led to a widespread revision of family court systems toward the direction of joint custody. The new standard in the average case became not sole custody to one parent with very limited visitation to the other, but instead children seeing both parents equally.

The implications of the legal term “custody” changed. Generally, joint physical and legal custody became the norm, and even where a judge ruled that one of the parents had sole legal or physical custody, visitation ordered could be so extensive that the arrangement would look physically like a joint custody type arrangement, since both parents would have their children with them an equal amount of time. The term custody became primarily a legal construct with limited practical usefulness (with a few exceptions, a notable one being sole physical custody giving a parent some advantage in attempts to move away with the child.)

The new way of doing things has many clear advantages. In a model family situation, the children end up with more involvement by both parents, the children get to know their father better, parents have a more equal role in their children’s lives, women have more free time to pursue their careers, and parents have no need to blame each other to win the right to “custody” of their child because they both have equal rights to see their children. In all, it leads to a more progressive evolved understanding of a family and serves as the embodiment of a positive modern policy to bring fathers closer into their children’s lives.

However, it is becoming apparent that it has failed in lacking a very important exception and in persisting in its refusal as a procedural and policy matter to implement it. It is this failure that has led to the suffering and continued abuse or thousands of children and their loving protective parents.

he failure occurs in cases involving abuse. Abusive and dangerous situations in the home are not uncommon. In fact, the numbers concerning the prevalence of severe domestic violence and physical and sexual abuse in the home are staggering. Often this abuse is hidden, victims forced by the abuser to keep quiet under threat of more severe harm.

Statistics show that if the victimized parent or the parent seeking to protect the victimized children seeks divorce, the abusive parent uses threats, further violence, emotional manipulation, and even the system to harm the children and the protective parent further.

It is a fact that generally, absent some serious extensive therapy, abusers will continue to seek to hurt their victims unless they find a way to latch on to new ones. The only rationale behind the abuser’s behavior is to subconsciously persist in hurting their innocent victims as the abuser him or herself was previously hurt.

The psychology of abuse and the family court reform are converging in a deeply unfortunate way for many families, such as the teenage boy in the story above.

As an example of what transpires, consider the hypothetical yet very common and very real situation in which the father of a family rules his home with violence. His family lives in fear of his anger, and he flies off the handle easily, attacking his wife and children with physically violent outbursts on a regular basis. After years of suffering and believing he would get better, fear of her own inadequacy, and emotionally hampered by her own history of childhood trauma, the mother finally finds a way to break free – likely with the help of supportive friends, relatives, or an organization.

She takes the kids at night probably bruised and in pain, realizing she can’t take another one of her husband’s horrific attacks, bravely sneaking away while her abuser sleeps. She files for divorce, trusting that the system will support her in protecting her children now that she is out in the open. Sadly, this is where the current family court model fails. The judge, required to order joint physical custody absent very strong proof that it would be detrimental to the children, views with strong suspicion the mother’s accusations that her husband was violent. He tells her that she needs proof, that her word and the children’s word is not sufficient, that she appears to be just making up negative accusations against the father to gain advantage in a custody dispute, that she is alienating the father from his children and needs to stop making negative comments about him or she will lose custody.

The mother persists arguing that the father can’t have these children with him alone overnight (likely not even being able to afford an attorney who can advise her to seek supervised visitation). She is doing what a good mother should – protecting her children from suffering and abuse. The judge warns her that this persistence is wrong, that the father should see his children, and that her behavior in talking about him negatively is harmful to her children, the family court term “alienation” having arisen from this very scenario. In her valiant attempts to protect her children and unadvised about the prejudices in the current court system, incredibly the mother often loses her own rights to see her children because in this system, “joint custody” is more important than protection from abuse. Even fathers with violent criminal records and protective orders keeping them from coming near the mother due to their proven past violence against her, have the right to have their children with them unsupervised overnight. Even allegations of sexual abuse are viewed through the same lens.

We need to stop holding on to the outdated relic of an idea that allegations of abuse made in a custody dispute should be viewed with extreme suspicion!

In the modern system, what motivation would a protective parent have to accuse the other parent of abuse if it were untrue? The other parent still gets to have his children regardless. The protective parent would only be harming him or herself by risking losing rights for being labeled an alienator.

Our system needs to take any allegation of abuse seriously, and, while advanced in its understanding that a child needs both parents, our system needs to advance much further in carving out strong protections for children who may be abused. Courts must always lean toward safety and protection. There have been far too many instances of family court judges who have viewed allegations of abuse with suspicion exposing children to extreme risk, sexual and physical abuse, and even death, as well as taking away their right to see their loving protective parent. This state of things is unjustifiable.

Read some of the cases here.

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