Professor of Law, George Washington University
The #MeToo movement may have shifted the balance of credibility on sexual abuse and harassment at work more toward victims and away from alleged perpetrators. But the same cannot be said regarding men’s violence and abuse at home: In fact, women’s reports of domestic violence are still widely rejected, especially in one critical setting: the family court.
When women, children or both report abuse by a father in a case concerning child custody or visitation, courts often refuse to believe them. Judges even sometimes “shoot the messenger” by removing custody from the mother and awarding it to the allegedly abusive father.
For instance, courts reject 81% of mothers’ allegations of child sexual abuse, 79% of their allegations of child physical abuse, and 57% of their allegations of partner abuse. Overall, 28% of mothers alleging a father is abusive lose custody to that father; this percentage rises to 50% when an allegedly abusive father accuses the mother of “parental alienation” (more on this below).
Family courts’ hostility – both in the U.S. and abroad – toward claims of paternal or spousal abuse has been widely reported by scholars and litigants. But it’s only recently that empirical data has been produced that validates the growing chorus of distress.
‘Dynamic of resistance’
I am a scholar of domestic violence and the law. Working with four other researchers, I conducted a federally funded study that reviewed all electronically published family court cases between parents in the U.S. between 2005 and 2014 related to custody or visitation that involved abuse or alienation claims.
Among the results from this analysis of thousands of cases: Courts rejected women’s claims of partner violence and child abuse by men, on average, roughly two-thirds of the time. They rejected mothers’ claims of child abuse by fathers approximately 80% of the time. And they reversed custody from mothers alleging abuse to the allegedly abusive fathers at rates ranging from 22% – for partner violence claims – to 56% when mothers alleged both sexual and physical child abuse.
The same dynamic of resistance to mothers’ abuse claims against fathers in custody cases has been documented across the globe.
Courts’ skepticism in these cases is due to many factors, but a key driving force is the concept of “parental alienation” or “parental alienation syndrome,” which was invented in the 1980s by a psychiatrist named Richard Gardner.
Gardner claimed that the vast majority of child sexual abuse claims in custody court were false. In addition to attributing false allegations to mothers’ vengeance against their ex-husbands, he theorized that mentally unbalanced mothers also convince themselves (falsely) that their children are being abused by their fathers.
Gardner’s “parental alienation syndrome” (“PAS”) was eventually discredited by courts and scholars. But the notion of parental alienation as the toxic influence of a primary parent that turns children against the other parent continues to profoundly influence family courts’ responses to women’s claims of abuse, especially child sexual abuse.
Thus, our study found, consistent with Gardner and parental alienation theory, that when a father accused of sexual abuse responded by accusing the mother of parental alienation, 50 out of 51 courts sided with the father and refused to believe the sexual abuse claim.
Our study also found that when allegedly abusive fathers respond to any type of abuse allegations by accusing mothers of alienation, mothers are roughly twice as likely to be disbelieved, and their rate of custody losses doubles to roughly 50%.
While Gardner’s syndrome theory has been repudiated as unscientific, parental alienation writ large continues to be treated by many family court professionals and judges as quasi-scientific, even though there is no credible scientific research to support the theory.
More specifically, there is no empirical research supporting the idea that, when one parent bad-mouths the other or takes other steps to undermine the other’s relationship with a child, the child actually turns against the “targeted” parent. In fact, research has found the opposite: that bad-mouthing can actually backfire, by turning the child against the bad-mouthing parent.
Nor is there any objective way to distinguish a child’s legitimate and justified estrangement due to the avoided parent’s own behaviors from an estrangement unjustifiably fueled by the other parent.
In short, there is no scientific or objective means of applying the alienation label. Rather, it is applied whenever an evaluator or court subjectively chooses not to believe a mother and/or a child’s abuse claims and chooses to instead believe the mother is malicious or sick and the child is not in reality.
Who gets protected?
Most people presume that family courts are protective of children and responsive to abuse concerns. This assumption persists in part because society underestimates abusers’ manipulations of the legal system, courts’ inclination to prioritize fathers’ rights and access above most other concerns, and the backlash against women who are seen as not wanting to share the kids.
The belief that it is fathers, not mothers, who can’t get a fair shake in custody cases is further fueled by fathers’ rights groups’ claims that courts are biased against fathers.
This common assertion helps fathers whose parenting may be poor or destructive cast themselves as victims while casting mothers who raise such concerns as perpetrators. And it encourages courts to view their prioritization of fathers’ rights as progressive and egalitarian.
Indeed, the scholarly literature surrounding custody court decision-making routinely emphasizes the importance of fathers and shared parenting. These articles often reiterate that fathering is critically important to children, without much attention to the specifics of individual parents’ past behaviors and impacts on their children. This pro-father sentiment translates into treating mothers as personae non gratae when they seek to restrict paternal access or claim a father is dangerous or harmful.
In fact, while family courts’ special valuation of fathering is difficult to prove empirically, our study did find that protective fathers are not penalized for accusing the mother of abuse, as are mothers who accuse fathers of abuse. The study also found that parental alienation claims benefit fathers more than mothers.
The harm to both children and their protective mothers from these family court practices is significant.
One study of what are called “turned-around” cases involved allegations of child abuse that were at first viewed as false and later judged to be valid. This study found that a majority of children in these cases were forced to live with their abusive fathers, that the vast majority reported new incidents of abuse and that children’s mental and physical health significantly deteriorated before a second court finally sent them back to their safe mothers.
Worst of all, family courts’ refusals to take seriously one parent’s claims that the other parent is dangerous have enabled over 100 child homicides.
Perhaps it is time for #MeTooHome.