In many cases across the country, family courts ignore evidence of sexual or physical abuse, putting kids in peril
(Credit: 100 Reporters)
Six years ago, in 2010, an appellate court in Tennessee affirmed a family court ruling that had awarded Darryl Sawyer primary custody of his six-and-a-half-year-old son, Daniel. (All the names of family members involved in custody cases mentioned in this article have been changed to protect the children’s privacy.)
The court ruled in favor of Sawyer despite evidence presented by his ex-wife that alleged he had sexually abused their child. Three years earlier, Daniel returned from a visit with his father with suspicious bruises on his bottom. His mother, Karen Gill, immediately took the three-year-old boy to his pediatrician. “Your instant reaction is that you don’t want it to be what it appears to be,” Gill said, choking back tears at the memory. “You really hope there’s another reason for why he has these marks on him.”
But the doctor, Victoria Rundus, confirmed Gill’s worst fears. Dr. Rundus reported to the Tennessee Department of Children’s Services that she found reddish blue bruises on the child’s buttocks that could only occur from an adult “holding his buttocks forcibly open.” Gill thus began a long, arduous battle – that continues to this day – to protect her son.
Gill expected resistance from her ex-husband, but was surprised and shocked to find herself facing an even more formidable obstacle to her son’s safety in family court.
By the time the case was heard by a Tennessee family court judge in 2008, the state’s Department of Children’s Services had already investigated and had determined that Sawyer “‘was indicated’ as the perpetrator of sexual abuse of [their son],” according to court records.
Nevertheless, the family court judge granted primary custody to Sawyer, warning Gill that if she wanted unrestricted visiting rights with her son, she had better quit talking with the boy about the alleged abuse by his father. What’s more, she had to stop taking her son to doctors to be examined for signs of abuse.
Why did the court give the boy to his father despite credible evidence of abuse? It turns out the family court relied heavily on the recommendations of William Bernet, a psychiatrist and court-appointed custody evaluator. He convinced the family court to ignore the medical report, stating that Sawyer was not a pedophile or child molester and should be awarded custody of Daniel.
Other factors played into the court’s decision as well. Gill had earlier tried to restrict Sawyer’s access to the boy based on allegations that the court deemed unfounded. Gill’s suspicions were aroused, she said, because Sawyer had told her of a family history of incest. She feared Sawyer, in turn, would abuse his own children. Other allegations included comments by her ex-husband that “Satan speaks to him,” physical and verbal abuse toward her and threats of suicide. None of this, the court said, could she prove.
Dr. Bernet declined to comment on the case.
Daniel’s case is not unique.
In family courts throughout the country, evidence that one of the parents is sexually or physically abusing a child is routinely rejected. Instead, perpetrators of abuse are often entrusted with unsupervised visits or joint or sole custody of the children they abuse, putting children in danger of serious, often life-threatening harm, according to children’s advocates.
Our two-year investigation – which includes interviews with more than 30 parents and survivors in California, Ohio, North Carolina, New York, Georgia, Texas, Tennessee, Maryland and New Jersey – uncovered stories of children consigned to suffer years of abuse in fear and silence while the parents who sought to protect them were driven to the brink financially and psychologically. These parents have become increasingly stigmatized by a family court system that not only discounts evidence of abuse but accepts dubious theories used to undermine the protective parents’ credibility.
“Protective parents are asking the authorities to step in and protect their children and they’re not,” said Kathleen Russell, executive director of the California-based Center for Judicial Excellence (CJE), a watchdog group that focuses on family courts.
In scores of cases, the consequences have been lethal. News reports alone, while not comprehensive, paint a startling picture. From 2008 to 2016, 58 children were killed by custodial parents after family courts around the country ignored abuse allegations by the protective parent, according to an analysis of news reports conducted by CJE. In all but six cases, protective parents were mothers who had warned family courts that their children were in danger from abusive fathers who later killed them.
“The authorities are blaming the protective parents and pathologizing them, and their kids are ending up dead,” said Russell.
How do family courts get away with these kinds of decisions?
“You can take the same amount of evidence to criminal court and a jury will convict beyond a reasonable doubt,” said attorney Richard Ducote, who represents protective parents trying to regain custody of their children. “And the appellate court will uphold the conviction and the sentence.”
But family courts have a different focus, explained Ducote, who also worked as a special assistant district attorney statewide in Louisiana prosecuting termination of parental rights cases. In theory they are supposed to consider first the best interest of the child. But in practice, Ducote said, “They’re concerned with the reduction of conflict [within the family] and getting along, which is good unless there is someone you need to protect the child from.”
Court records are often sealed, a practice intended to protect the privacy of children. As this investigation shows, however, it’s a practice that can put children in greater danger by blocking outside oversight.
Moreover, the high cost of litigation throws up a formidable obstacle for most parents fighting to get their children out of harm’s way. There is little research on court costs, but a preliminary analysis of a national survey of 399 protective parents by Geraldine Stahly, emeritus professor of psychology at California State University, San Bernardino, showed that, for some 27 percent of these parents who ultimately declared bankruptcy, the costs were about $100,000.
No government agency tracks the number of children nationally that family courts turn over to their abusers, and existing academic research is largely regional. Advocates have tried to put a number on it by culling statistics from primary and academic sources. They estimate that at least 58,000 children a year end up in unsupervised visits with or in the custody of an abusive parent. A 2013 analysis in the Journal of Family Psychology cited studies that show that anywhere between 10 and 39 percent of abusers are awarded primary or shared custody of their children.
However difficult it may be to quantify, high-level government officials recognize the breadth of systemic failure. “It’s a terrible situation,” said Lynn Rosenthal, who served as the White House Advisor on Violence Against Women from 2009 to 2015. Before going to the White House, Rosenthal personally saw the extent of the problem while working with many state coalitions on child welfare and domestic violence. “We saw this all over the country,” she said.
How do abusers get custody? A big part of the answer lies in the very experts that courts turn to for help in evaluating the fitness and safety of parents.
In sounding the alarm over her suspected abuse by her ex-husband, Gill ran squarely into an unexpected obstacle. Bernet and his colleague, James Walker, stated in a joint report that they used a battery of tests to evaluate Sawyer. They claimed that Sawyer tested as “low risk” for sexual offenses and was not a pedophile. These tests included a sex offender risk test known as the Static-99, the Minnesota Sex Offender Screening Tool, the Sex Offender Risk Scale and the Abel Exam for Sexual Interest.
But according to Anna Salter, PhD, who has conducted research with sex offenders for two decades, using such tests in family court is meaningless. “They can’t be used to determine if someone is a child molester,” explained Salter, who is the author of “Predators: Pedophiles, Rapists and Other Sex Offenders” and a consultant with the Wisconsin Department of Corrections. Instead, she said, the tests were intended to evaluate people already convicted of child molesting to determine the likelihood of recidivism. The Abel exam, which tests for sexual interest in children, does not yield meaningful results, she said. “It is based on how long you look at the pictures of the children. There are now sites that tell you how to fake it – ‘just look away.’”
Beyond the tests, Bernet also wrote that Gill, not Sawyer, was causing harm to their son. “Since 2003, [Gill] possessed personality traits of parents who make false allegations of sexual abuse,” such as “strongly criticizing” Sawyer. Bernet also ascribed “narcissistic tendencies” to Gill, stating that she “appears to lack insight into the strong feelings and motivations that are driving her current behavior in casting [Sawyer] as a child abuser.”
Among his primary concerns, wrote Bernet, was that if Gill were allowed to continue questioning her son about his father’s actions, she would “induce [Daniel] to share her false beliefs.”
Bernet dismissed Daniel’s claim that his father had “put a stick in my butt,” writing that the child was, rather, making up a fantastical story under prompting by his mother. Similarly, he contended that an interview with Child Protective Services did not show Daniel was “capable of giving a simple, coherent description of a past event.” Of the bruises on the child’s buttocks, Bernet noted that Sawyer said he thought they were from water slides at the two water parks that he and Daniel had visited two days in a row. His acceptance of Sawyer’s explanation at face value appeared to ignore a physician’s description in court records of bruises “shaped like thumbprints” that were “inside [Daniel’s] buttocks.”
Child advocates say they regularly hear of custody battles similar to the Sawyer-Gill case in which an evaluator deflects the court’s focus on potential abuse by alleging that one parent is brainwashing the children to believe that they are being abused. This behavior is known as Parental Alienation Syndrome (PAS) by those who embrace it and deemed questionable science by organizations such as the National Council of Juvenile and Family Court Judges and the American Psychological Association.
As far back as 1996, a Presidential Task Force found a “lack of data to support” the diagnosis of Parental Alienation Syndrome. Citing this report, the American Psychological Association in 2008 declined to take a position on the “purported syndrome.”
Bernet, however, is among a faction of family court professionals trying to get PAS accepted as a recognized disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM), the bible of mental health practitioners. So far, he and other advocates of PAS have not prevailed. Bernet said in an interview that “the actual words are not in the DSM-V [the latest revised version], but the concept is,” pointing to what he describes as three new diagnoses that each have features of PAS.
Dr. Darrel Regier, vice chair of the DSM-V task force, said that the DSM acknowledges that alienation can figure into relationship dynamics. But “we were very careful not to include in there a diagnosis of PAS,” he said, adding that “the international community isn’t buying PAS as a diagnosis either.” With respect to how it’s used in family court to discredit abuse, he said, “If there’s evidence of abuse, then that’s what should drive the courts.”
The National Council of Juvenile and Family Court Judges cautions jurists in custody cases “not to accept testimony regarding parental alienation syndrome or PAS,” according to the guidebook Child Safety in Custody Evaluations. It adds, “The theory positing the existence of PAS has been discredited by the scientific community.”
Many courts, however, have paid little attention to these recommendations. “There’s this myth out there that there’s over reporting of abuse when in fact, statistically, there’s an underreporting of abuse,” said retired Kentucky Judge Jerry Bowles, a co-author of the guidebook.
Judge Bowles, who trains his fellow jurists in domestic and family violence matters, said that it’s common for courts to believe that mothers press for no contact with their ex-spouses for reasons other than safety. He ties this misconception to lack of training and understanding among jurists about violence in families.
A pilot study by Joan Meier, a professor of clinical law at George Washington University Law School, supports Bowles’ observations. In analyzing 240 published rulings in an electronic search for cases involving custody and alienation, she found that more often than not, accusations of abuse did not block access to children in family court settings. In some 36 cases where a mother accused the father of abusing their children, the court nevertheless ruled in the father’s favor 69 percent of the time. The tendency to discount the mother’s accusation was even more pronounced where sexual abuse was alleged: In the 32 such cases Meier identified, the father prevailed 81 percent of the time. She is now working on an expanded study examining the same issues – including intimate partner violence – in some 5,000 cases with a grant from the National Institute of Justice.
Bernet’s characterizations of Sawyer as the good guy and Gill as mentally disturbed are consistent with a troubling pattern that organizations fighting to reform the family courts see in these cases. They include the Center for Judicial Excellence, the Domestic Violence Legal Empowerment and Appeals Project and The Leadership Council on Child Abuse and Interpersonal Violence.
“The research shows that the family courts are a perfect place for abusers to get custody,” said former White House advisor Rosenthal. “They can manipulate the evaluator; they can manipulate the [court- appointed] guardian; they can manipulate the judge. They make themselves look good and they make her [the mother] look crazy.”
Cynthia Cheatham, a Nashville-based attorney who represented Gill in her appeals case and whose practice involves helping protective parents fight to regain custody, agreed.
“They have Mom, who looks like she just stuck her finger in a light socket, and the perpetrator, who may have stuck his finger in his kid’s vagina, who looks like a very normal guy.”
Some custody evaluators appear to go to great lengths in their effort to normalize perpetrators’ behaviors. Thomas Hanaway, PhD, also in Tennessee, wrote that a father who had already been substantiated as a perpetrator of sexual abuse by the state’s child protective services “appears to be very fond of his children and even if he were engaging in sexually inappropriate behavior with them, in my opinion, he would be doing it in a kind fashion.” (Emphasis added.) Hanaway did not respond to requests for interviews.
Alina Feldman, 16, of Dallas, Texas, wishes that disclosures of abuse she first made when she was four years old had been taken seriously by the court’s therapist and custody evaluator. Had they done so, it might have spared Alina what she describes as years of severe abuse and misery in her father’s care while separated from the mother she loved.
“He would hold a knife up to my neck and threaten to kill me,” Alina recalled. “He would take a knife and cut my arm. Sometimes he would choke me until I passed out. He would snap my wrists.”
Instead of taking her to a doctor, she said, her father would put her wrist in a brace until it healed. He would also twist her arms in different directions, she said. As she began puberty, he would sit on the toilet seat and watch her while she showered, she said. If she cried about missing her mother, she said, he punished her by withholding food.
Custody in crisis: How family courts nationwide put children in danger
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