Fathers always lose custody in family court. Women make allegations of abuse and the innocent father hasn't a chance. Right? Wrong. This is a deeply embedded myth that is causing as much harm to children as our broken Child Protective Services system ever did.
The Arizona Coalition Against Domestic Violence just completed a two-year study of the experiences of battered women and children in Arizona state courts. In spite of documented evidence of violence against the women or children, sole or joint custody was ordered to these questionably deserving fathers in 74 percent of the cases in Maricopa County and in 56 percent of the cases in the rest of the state.
The findings are consistent with previous nationwide studies showing that fathers win custody in contested custody cases 70-90 percent of the time. A report in the Boston Phoenix reviewed information from 1,000 child custody cases. The most frequent pattern identified was "the penalization of mothers for bringing these allegations (of abuse) to the court's attention in the first place." Another study of 300 cases over 10 years in family courts nationwide found that mothers won in only 10 percent of the contested cases.
The study's findings upend deeply held beliefs. Income level, highly skewed towards fathers, seemed to have the most impact on the ultimate decision. A mother represented by an attorney was more likely to win custody, but in Maricopa County both parents were represented by an attorney in only 10 percent of family law cases. Having a custody evaluator, usually a psychologist who investigates both parties and makes recommendations based on the child's best interests, more likely resulted in the mother losing custody. The mother having an order of protection had no impact on the final custody decision. Often, courts simply ignored the documented existence of domestic violence.
By and large, the systems of control established in the relationship, including physical and sexual violence and child abuse, were maintained after separation. But now the abuser had the added ability to use the court system. A large number of judges reportedly said that since the parties were separated, domestic violence was not a concern. In fact, women are most in danger after they leave. Some judges said that 85 percent of all allegations of child sexual abuse are false. In fact, repeated studies have shown that such allegations are as likely to be false as any other criminal allegation, only 5 to 8 percent of the time. But because children are not believed, they are forced to return to the arms of an abusive father.
A large number of these fathers had weapons or used alcohol or drugs when with the children. The courts ignored well-known research and federal standards saying that mediation should not be used when there is domestic violence. Instead, 100 percent of these victims were ordered to go to mediation or a face-to-face meeting with their abuser. In a large number of cases, unsupervised visits were awarded to the abusive father or the supervisor was an untrained person such as a family member.
Children have started fighting back. In California, according to an article in SF Weekly, Alanna Krause was court ordered to live with her father who was sexually abusing her. When Krause turned 18 she sued her father, her custody evaluator and her guardian, the attorney appointed to promote her best interests as a child. Similar suits are being contemplated in Illinois and Arizona.
The goal of the Arizona study was to find trends in the family courts -- treatment of battered women and children. The similarity of the 57 stories, a large number for a qualitative study, illustrates the presence of human rights violations. For this group of battered mothers, state law was violated at virtually every turn. Constitutional issues such as due process, equal protection and the fundamental right of parenting were violated by arbitrary rules and actual practice. The fundamental precepts of international human rights law were violated. The children's right to a violence-free life and due process in the courts according to the United Nations Convention on the Rights of the Child were also ignored.
Battered women do not face a level playing field in the family court. Discrimination abounds and myths pervade the judicial process. The rights of the children are not upheld and the victims of violence receive neither protection nor justice. Though the issues of domestic violence and child abuse have been debated for decades, the victims continue to suffer because the system cannot or will not reform itself. Only pressure from an educated public will put meaning to the words "best interest of the child."
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Post is an attorney with Arizona Protective Parents Network.
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