Ms.Magazine: How Family Courts Punish Abused Women

by R. Dianne Bartlow ·

“The dirtiest little secret in America” is that family courts, in deciding custody, often wreak devastation upon mothers and children.

So argue Mo Therese Hannah and Barry Goldstein, editors of the new anthology Domestic Violence, Abuse, and Child Custody, which brings to light what many familiar with the family court system have long known: Designed to dispense justice, the system has become instead “an instrument of oppression,” particularly in cases involving domestic violence.

To find a chilling example of what the editors mean, we need look no further than the recent murder of infant Wyatt Garcia,reported in the Daily Beast:

Wyatt Garcia was born in April 2009. Nine months later, he was shot and killed by his father, who then turned the gun on himself.

It might have turned out differently—if a family-court judge had listened to Wyatt’s mother.

Wyatt’s mother, Katie Tagle, had previously filed three motions in family court for an order of protection against the baby’s father, Stephen Garcia, alleging that he had physically assaulted her and harassed her and her family. Garcia was apparently jealous that she was dating again. In the last motion, Tagle charged that Garcia “had threatened to kill her and their baby.”

The San Bernardino County Superior Court Judge Robert Lemkau chose to believe Garcia’s denials over the evidence supplied by Tagle–which included emails, text messages, and voice messages, according to the Daily Beast. Tagle says she was treated like a “criminal” and “complaining woman.”

One goal of Hannah and Goldstein’s book is to convince judges, attorneys, and others who work in the court system that all forms of abusive behavior, whether physical, verbal, financial or legal, cause harm to women and children. On the legal side, men who abuse their female intimate partners have successfully used strategies such as false accusations, harassment, manipulation, and intimidation to win custody while often driving their victims into poverty. According to contributing author and lawyer Joan Zorza:

Abusive men not only harass their victims, many harass their partners’ lawyers and manipulate those in and connected with the court system who are supposed to insure that children are placed with their better parent in a safe, nurturing environment.

This makes it all the stranger that about half of the time batterers win custody in family courts. They are actually more likely to win custody than men who do not abuse their partners, according to Zorza. Over the past nine months, 75 children have been murdered by abusive fathers who used custody battles to get even with the mothers, according to the Daily Beast.

Yet Katie Tagle’s dismissive treatment by family courts is all-too-familiar. While there has been a growing awareness over the last 30 years of the harm domestic violence causes, courts are more and more ignoring women’s allegations of domestic violence and holding them responsible for their own abuse. This is largely due to courts’ reliance upon mental health experts who have inadequate training in intimate violence or child sexual abuse and who are easily manipulated by batterers.

Gender bias plays a large role in this backlash, according to the editors:

Compared to men, women are disbelieved more often, held to much higher standards, and judged far more punitively for failings such as drinking, use of drugs, adultery, or hostility to their partners. …Such behaviors are readily seen as grounds for giving the father custody.

Hannah and Goldstein hope to also expose two particularly harmful court practices that have evolved over the last several decades: Parental Alienation Syndrome (PAS), and “friendly parent” statutes. PAS provides a handy–and utterly without basis–refutation to incest and abuse claims by blaming mothers for any hostility that the children feel towards their fathers, maintaining that children love and respect their fathers unless a “poisonous” mother has convinced them otherwise. Even alleged incest and violence are not deemed reason enough for children to independently turn against their fathers.

Since PAS has been deemed by the American Psychological Association to have no scientific backing, at least 32 states have incorporated the milder sounding “friendly parent” concept into their custody laws. This gives custody to the parent who will encourage the child to have more contact and a better relationship with the other parent. Often mothers are hurt by the friendly parent concept, since they can be deemed “unfriendly” for saying anything against the father, including alleging abuse. Zorza says that, ironically enough:

The unfriendly behavior of noncustodial parents (usually the father), such as not paying child support, physically or verbally abusing the mother, or stalking her, is not considered as meeting the definition of unfriendly.

With such an approach, Zorza says, family violence is discounted, and abusers are empowered while battered women are disempowered. Ultimately, children are harmed.

Domestic Violence, Abuse, and Child Custody will be instructive for policymakers, those working in the family justice system, and members of the media–which the authors say has by-and-large failed to expose custody court scandals. But it is a must-read for any mother involved in a child custody battle, and especially for mothers trying get free from an abusive relationship.