Custodians of Abuse
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in our family courts." Within the community of battered women and their advocates, she continues, "the family courts have gained a reputation as a place where women don’t find justice."
Not surprisingly, Massachusetts family-court judges disagree. They condemn the 106-page Wellesley report as skewed because it relies solely on testimony from women with complaints about custody decisions, not those satisfied with their rulings. "It is incomplete and flawed in its methodology," states Sean Dunphy, the chief justice of the Massachusetts family and probate courts. He maintains that the report’s approach, which frames the 40 women’s accounts in the context of human-rights violations, "may work well for systems in Third World countries, but not for a court in the United States." He and other judges argue that the women’s testimony would have been strengthened if it had been verified by a review of court transcripts and by interviews with lawyers in the cases. (In fact, the Wellesley report’s authors fact-checked 10 of the 40 stories with court records and other documentation. "In every one, we found the documents thoroughly supported the women’s statements," says Lundy Bancroft, a report author.)
Nevertheless, Dunphy finds the claim that the state’s family courts aren’t working to be a "broad-brushed statement." It concerns him, however, "that individuals would have such perceptions and beliefs." Jeremy Stahlin, associate justice at the Suffolk County Probate and Family Court, concedes that if the complaints outlined in the report were true, "then, yes, it’s a problem." But he also concludes: "I don’t think the court is predominantly favoring one side or the other in these custody cases, and I find that hard to accept as a premise."
Complaints about faulty methodology strike advocates as a convenient way to deflect attention from the issues laid out in the controversial reports. That so many women across the state reported strikingly similar accounts should, in and of itself, be cause for alarm, Bancroft says, noting, "It’s shocking that 40 women who don’t know each other would offer the same complaints about the family courts." He adds, "The family court’s current response to custody disputes, particularly those that involve child-abuse allegations, is repeatedly failing to protect children."
Losing custody to a child molester
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THE NOTORIOUS Fells Acres day-care and McMartin preschool child-sexual-abuse cases have left behind a terrible legacy: That same year, Karen Henderson of the Cleveland Plain Dealer reported on problems in her diocese and beyond. Yet it wasn’t until 2002, when the details of sexual abuse by scores of clergy within the Boston archdiocese were made public, that enough people believed the charges, victims could credibly demand their abusers be held accountable, and law-enforcement and court authorities would finally listen.
So it should come as no surprise that family-court officials often disbelieve charges of child sex abuse — even though few sex-abuse allegations ever turn out to be patently false. Kathleen Coulborn Faller, a professor of social work at the University of Michigan, in Ann Arbor, has done extensive research into child-sex-abuse allegations in custody cases and has found that 70 percent of these allegations were indeed true. Of the other 30 percent, she reports, very few involved parents maliciously conjuring up bogus charges — only 10 out of 215 cases fit that description. Even that number seems inflated, given that four of the 10 cases involved one father who Faller says "admitted that he had filed false child-abuse reports ... to obtain greater access to his daughter." Thus, the data, she says, "thoroughly debunks the myth that false allegations are rampant in custody disputes."
Even so, the myth persists. Combine that with gender bias — after all, most claims of abuse are made by women against their ex-husbands or former boyfriends — and you have situations in which mothers find it very difficult to get their claims taken seriously. Eileen King, director of the Washington, DC, office of Justice for Children, a national child-advocacy group, has worked on roughly 100 custody cases involving child-abuse allegations in many states over the past two years, and has seen how gender discrimination comes into play. If a mother who suspects molestation appears distraught in the courtroom (which seems only natural when dealing with the horror of hearing a child say, "Daddy puts his pee-pee in my pee-pee") she often gets slapped with the "hysterical" label. If she appears composed, the label is "cold and calculated." Mothers, King observes, "are often put into no-win situations."
Gender bias against mothers, combined with a culture resistant to believing fathers molest their children, has made for a potent mix, giving rise to a bogus mental disorder called "parental-alienation syndrome" (PAS) that is frequently employed by alleged sex abusers in their custody battles. Essentially, PAS involves brainwashing a child to allege molestation. The syndrome, according to the theory, afflicts mostly "vindictive mothers" who "program" their kids to fabricate claims so they’ll have an advantage in litigation. The brainchild of Richard Gardner, a psychiatrist affiliated with Columbia University (who believes that up to 90 percent of all child-sex-abuse allegations are false), PAS has been referenced in courtrooms in Massachusetts and across the country, even though it’s widely discredited by mainstream mental-health professionals.
Since 1987, when Gardner first coined the phrase "parental-alienation syndrome," he has provided no scientific data to support it. Most of his 140 or so articles on the subject have not appeared in peer-reviewed medical journals, which require evaluation of articles by fellow professionals before publication. The American Psychiatric Association has not included PAS in its diagnostic manual of certifiable disorders. "It is a non-syndrome," explains Robert Geffner, a psychologist who has evaluated child-sex-abuse allegations in family-court litigation for 20 years and who established the Family Violence and Sexual Assault Institute, in San Diego. "PAS [is] no medical diagnosis whatsoever. You cannot confirm a syndrome simply by stating that it exists."
Nevertheless, Gardner’s PAS theory is widely accepted in a legal system seeking neat, convenient ways to get rid of time-consuming custody battles. A prolific writer, Gardner has self-published hundreds of books, audiotapes, and videotapes and has lugged them across the globe to train family-court judges, GALs, and psychologists on how to recognize PAS. "People believe him," Faller says. "The idea of an alienating parent has taken on a life of its own." His teachings have become so thoroughly integrated into the language of family law that mothers almost always face a variation on them in court: a mother who alleges abuse is crazy, for instance; or she coaches the kids; or she is crazy and coaches the kids. As King, of Justice for Children, explains, "No one has to cite ‘PAS’ anymore. They say the mother is ‘delusional,’ or that she is ‘destroying the relationship’ with the father. It’s the most common defense in these cases." Or, as Suffolk family judge Stahlin says, "It’s very common for one parent to say the other is ‘alienating’ or ‘coaching’ the child. Often, it’s the only explanation that the accused can come up with for why the child is saying what he’s saying." Indeed, Gardner’s influence has become so entrenched nowadays that the Massachusetts Citizens for Children, a statewide child-advocacy group based in Waltham, organized an October 2002 conference — attended by just six family-court judges, including Dunphy and Stahlin — meant to counteract the negative impact of PAS-like defenses.
For all too often, the language of PAS works. Kelly Fink, one of the 40 women who participated in the recent Wellesley report, knows firsthand the shame and humiliation of being labeled crazy and a brainwasher by family-court officials. The 39-year-old nurse and Natick resident comes across as a formidable personality — she’s smart, articulate, and persuasive. Yet her five-year custody battle at Middlesex Probate and Family Court — during which she criticized judges, GALs, and doctors for how they handled her allegations — ended last August when she lost custody of her school-aged daughter to the man whom she has repeatedly accused of child molestation. The experience has left Fink convinced that, in her words, "the family courts aren’t at all interested in protecting innocent children."
Fink’s custody battle dates back to summer 1997, when she filed to divorce her then-husband, Jonathan Meier, a 37-year-old engineer and Massachusetts resident. Their marriage, Fink says, was an unhappy, abusive relationship that deteriorated for good soon after the birth of the couple’s daughter, Melissa (not her real name). After a bitter divorce trial in January 1999, Fink was awarded full custody of Melissa. And due to allegations of emotional and physical abuse that Fink lodged against her ex-husband — including charges that he had bruised Melissa’s leg as a baby — Meier got only supervised visitation. Gradually, though, as he received positive marks from a supervisor who monitored visits, Meier was allowed to spend unsupervised time with his daughter.
It wasn’t long after the court loosened the stringent visitation provisions that Fink began to suspect Meier was abusing Melissa. In October 1999, Melissa, then two, returned from a visit with her father and, several days later, complained that, as Fink recalls, "her bottom hurt her." Fink took her daughter to a doctor, who diagnosed the little girl with bloody, superficial cuts and tears around the vulva. The doctor didn’t consider the injuries particularly revealing, though child-abuse experts like Children’s Hospital’s Newberger say such physical injuries on a toddler "exclude any benign or accidental cause." Yet something the girl said gave the doctor pause. During the genital examination, according to court records, the toddler told the doctor, "Don’t put your fingers inside."
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