Published on January 09, 2003 by Boston Phoenix
Custodians of Abuse
by Kristen Lombardi
IF YOU'RE A PARENT, it’s your worst nightmare: finding out that your child is being molested — by your spouse. If you seek a divorce as a result, or are already going through one when you make the discovery, you hope that family court will do the right thing: grant you sole legal and physical custody of your child. In fact, you can’t even imagine that there could be any other outcome in the custody judgment. But for many parents — in nearly every instance, mothers — just the opposite occurs: the alleged abusers don’t just get unsupervised visitation rights, they get full custody. How can this happen?
Easy, say family-law attorneys, child-abuse advocates, and child-law specialists. Family courts aren’t equipped to adjudicate criminal matters. They exist to settle divorces, wills, adoptions, guardianships, and other matters related to litigation between family members.
Three recent studies that looked at the outcomes of custody disputes involving child-abuse claims — one study surveyed California courts, one surveyed Massachusetts courts, and a third tracked 300 cases over a 10-year period in courts throughout the country — all came to the same conclusion: the nation’s family courts are failing to protect children from abuse.
"Family courts are not in a position to litigate the complexities of child sexual abuse," explains Seth Goldstein, a Napa, California–based attorney who represents men and women in custody disputes involving child-sex-abuse charges. Goldstein, who also founded the Child Abuse Forensic Institute, in Napa, says that most family courts are "overburdened" with cases and don’t have time for the lengthy trials and investigations that child-abuse allegations demand. "In many family courts," he says, "you often have only one sitting judge to hear hundreds of matters that have to do with many, many things, so the courts are compelled to move things along as quickly as possible. The system is just not conducive to [dealing with] child abuse."
Colorado attorney Alan Rosenfeld, who specializes in representing parents in custody disputes involving child-abuse allegations and has counseled approximately 1000 mothers trying to protect their children from abusive ex-husbands, is blunt: "If we ever sat down to design the worst possible system that protects the smallest number of children, it would look a lot like the family courts look today."
Nearly 25 experts in custody litigation involving child-abuse claims were interviewed for this article. All had the same three complaints about family court — regardless of which state’s court system they were familiar with:
Family courts do not rely on criminal investigators to examine child-abuse claims. They rely on family advocates called guardians ad litem (GALs), whose charge is to investigate allegations of abuse, abandonment, and neglect and to represent the best interests of the children in disputed custody cases. More often than not, they are licensed psychologists or social workers. Sometimes, they are attorneys. They may be highly trained in their own areas of expertise, but that doesn’t qualify them to evaluate physical evidence of abuse and to interview victims and alleged abusers. Yet in contested custody battles, they are frequently called upon to do just that. Their recommendations carry significant weight in judicial decisions that set the course of a child’s life.
Normal courtroom checks and balances don’t exist in family court. Unlike in criminal and civil court, there are no juries. And family courts do not mandate legal representation. Therefore, the only litigants with attorneys are those who can afford them. In this atmosphere, judges have extraordinary powers and can work with near-complete impunity. It is not uncommon, for example, for judges to hold hearings in which important rulings are made with only one party present (called ex parte hearings); such hearings can violate basic constitutional rights of due process.
Gender bias and traditional stereotypes of how women and men parent children continue to prevail in family court. As a result, while conventional wisdom has it that mothers almost always fare well in family court, statistics show otherwise. In 1996, the Williamsburg, Virginia–based American Judges Association released a report, "Domestic Violence and the Courtroom," in which it noted that wife batterers and child abusers convince family-court officials that their ex-wives are "unfit" or "undeserving" of sole custody in roughly 70 percent of contested custody battles. A 1989 Massachusetts study commissioned by the state’s Supreme Judicial Court (SJC) showed that gender bias often hampers the administration of justice for women in custody decisions. It’s true that mothers are almost always awarded full or joint custody of their children in divorce cases where custody isn’t disputed. Yet the study found that when there was a fight over the children, fathers won primary or joint custody more than 70 percent of the time — whether or not there was a history of spousal or child abuse. (See "Changes in Massachusetts Family Courts Since 1989," this page.) Although the study is 13 years old and a number of things have changed since it was first published, at least 23 states have conducted gender-bias studies since — and all have made similar findings.
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IT'S HARD TO say how many children are affected in these cases. Massachusetts family courts mediated approximately 9450 custody cases in 2001; multiply that by 50 and you get an extremely rough estimate of how many such cases are heard nationwide every year 472,500. Of these, it's impossible to say how many involve charges of child abuse. Massachusetts family courts, for instance, do not keep statistics on the types of custody cases litigated. To date, the most reliable and largest national study of the incidence of child sexual abuse in contested custody cases occurred in 1990, when the Association of Family and Conciliation Courts, in Denver, surveyed 9000 custody disputes in 12 family courts across the country. Fewer than two percent involved child-sex-abuse charges.
The number is small. But the implications for the children concerned are staggering. Take, for instance, Idelle Clarke’s 16-year-old daughter, who is now living with her father, a man twice found by Los Angeles child-protection workers to have sexually assaulted her.
"This is one of America’s darkest, most shameful secrets," says Clarke, a 54-year-old Southern California mother whose case has become something of a cause célèbre among the burgeoning community of women and advocates seeking reform of the nation’s family courts. (See "Five Steps Toward Family-Court Reform," page 3.) After a nine-year custody battle that began in Los Angeles County Family Courts in 1993 and ended in California Supreme Court last October, Clarke not only lost custody of her daughter, but cannot have any contact with the girl. No phone calls. No visits. Nothing. Family-court judges simply didn’t believe that the girl had been sexually assaulted by Clarke’s ex-husband, Ovando Cowles, even though two separate, exhaustive sex-abuse investigations by LA child-protection workers found that she had been. Instead, judges maintained that Clarke had brainwashed her daughter into making up bogus charges about her father. So now, even though her daughter lives just minutes away from Clarke's Sierra Madre home, she hasn't been able to see the girl in the two years since the initial family-court judgment, which prohibited Clarke from going within 100 yards of her daughter. "It’s a punishment greater than those given to serial rapists," says Clarke, who is now preparing to file a January 14 petition asking the United States Supreme Court to hear her case. Meanwhile, Clarke’s daughter doesn’t just live with the man who’s sexually abused her on at least two occasions. The teenager, who is developmentally delayed, lives with her abuser not understanding that the people who want to protect her, can’t. And that those who can protect her, won’t.
In the small world of contested custody cases in which child-abuse claims arise, Clarke's situation isn’t an exception. It's more the rule. Colorado attorney Rosenfeld has seen mothers lose custody of children who've contracted sexually transmitted diseases from their fathers or who've made graphic disclosures such as "Daddy took Mr. Cocky and I played with him and took a tissue and cleaned it up." Nevertheless, for years, parents who’ve lost their children to abusers have believed their cases were exceptions. Until Clarke went public with her story.
In 1999, the now-defunct Los Angeles New Times published a detailed account of the prolonged custody battle. (See "Additional Reading," page 4.) Since then, Clarke has fielded countless phone calls from women
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