Failure to Protect: The Crisis in America’s Family Courts

When a mother’s bitter custody battle ends with the death of
her child, something has gone terribly wrong with the system.
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.

Stephen Garcia, 25, a Pinon Hills, California contractor, had been
allowed unsupervised visits with his son only a few days earlier by San
Bernardino County Superior Judge Robert Lemkau, who was adjudicating a
bitter custody battle between Garcia and the boy’s mother, Katie Tagle.
The judge had refused to take seriously her repeated warnings of her
ex-boyfriend’s violent and abusive behavior.
Shortly after Wyatt was born, she left Garcia after he hit her so
hard during an argument about his video-game addiction that “he knocked
me out” Tagle said. After she moved home to her parents, her
ex-boyfriend began harassing her and her family when he learned she was
dating again, and he filed a motion for custody of little Wyatt. In turn
she filed three motions for an order of protection against Garcia,
which were ignored: in the last motion she charged that he had
threatened to kill her and their baby.
Judge Lemkau, however, chose to believe her former boyfriend’s
denials rather than the evidence she supplied of Garcia’s
threats―including e-mails, text messages and voice messages. Although no
extenuating circumstances were raised in court transcripts of the case, the judge simply
accused Tagle of lying, and ordered that she turn Wyatt over to his
father—with fatal results.Tagle, 23, believes the odds against her and Wyatt were stacked the
moment her case entered the emotional, chaotic world of the family court
system.
“I was treated like a criminal, like a complaining woman,” she says.
The story of baby Wyatt Garcia is, sadly, not unusual.
In the nine months between June 2009 and April 2010, 75 children have
been killed by fathers involved in volatile custody battles with their
former partners, according to the Center
for Judicial Excellence, a court advocacy organization which has
been tracking news articles of such deaths around the U.S. Based in San
Rafael, California, the Center focuses on strengthening court integrity
as well as improving public accountability of the judiciary.
Some recent examples from the dockets of Family Courts around the
country:

• Teigan Peters Brown (3 years old), shot to death by his father
  during a court-ordered visit. (Arizona June 2009)
  
• Bekm Bacon (8 months), killed by father, who then killed himself
  during overnight visitation. (Idaho Feb 2010)
  
• Janiyah Nicole Hale (1 year), father is charged with her death
  during an overnight visitation. He is a registered sex offender.
  (Alabama July 2009)
  

How did a system set up to protect families and children allow this
to happen?
An investigation by The Crime Report shows such tragedies
are the consequences of family court procedures that allow abusive
spouses to manipulate the system and leave at-risk children at the mercy
of prolonged, expensive court battles over custody. These battles end
all too often with a parent forced to share unsupervised custody with an
abusive spouse.
The problems have been complicated by systemic flaws in the nation’s
family courts that have gone unaddressed far too long.
A Broken System
Lawyers, judges, psychologists and representatives of women’s groups
interviewed by The Crime Report describe a broken family court
system that is already burdened with a heavy caseload and too few
judges—many of whom are forced to rotate between cases—and in which
serious criminal allegations of domestic or sexual abuse are routinely
ignored. The crushing financial costs of pursuing long custody battles
is an additional burden on indigent mothers, who get little or no legal
support. The odds are particularly stacked against children at risk when
the court battle revolves over “he said, she said” arguments.
The system has particularly failed parents―usually mothers―whose
efforts to protect their children collide with an approach to custody
issues that is based on narrow legal concepts of balance and fair
treatment rather than psychological or medical evidence. “Courts assume
mothers are orchestrating misinformation, instead of trying to protect
their children,” said Kathleen Russell, director of the Center for
Judicial Excellence.
The idea of family courts or dockets began with the best of
intentions. Established in the early nineteenth century, they were
designed to protect the equitable rights of both parents and children
and protect the family. Too often, however, that creates a built-in
conflict. Judges, as in the case of Katie Tagle, adopt a skeptical
attitude towards abuse charges, which most often come from the mother,
on the grounds that it is hard to distinguish fact from fiction in
arguments between quarreling parents.
“The problem is that family court is not set up to protect children,”
says Joyanna Silberg, PhD,Executive
Vice President of the Leadership Council. “It is set up with the intent
of equitable division for families. And this presents an overwhelming
paradigm: how can you equitably divide a child?”
And while the deaths of children are the public face of family court
tragedies, the daily reality is that thousands of parents are trapped in
prolonged court battles where they either lose their children to their
alleged abuser, or are forced to share unsupervised custody.
Advocacy groups interviewed for this story reported receiving between
450 and 1,000 requests for help in contested custody battles this year.
The National Network to
End Domestic Violence, a prominent national not-for-profit, says it
is the biggest problem they are now facing. And the Leadership
Council on Child Abuse & Interpersonal Violence, an independent
scientific organization, estimates that each year more than 58,000
children are ordered by family courts into unsupervised contact with
physically or sexually abusive parents following divorce in the United
States
Experts say abusers use the court system to exercise control over
their former partner’s lives, manipulating the players and risking the
safety and well being of the children’s lives the courts are sworn to
protect.
“Family courts are trained to look for cooperative behavior,” says
Rob (Roberta) Valente, general counsel for the National Network to End
Domestic Violence, which is based in Washington D.C. “When someone
raises an abuse allegation, the court sees it as uncooperative behavior.
The result, advocates say, is that the abuser is able to manipulate the
court, while a child’s safety and well-being is placed at risk. Many
judges are likely to view abuse complaints as a tactic to win custody
battles. What the courts have failed to take into account but research
has clearly shown time and time again, is that most of the cases that
make it to trial in family court are high-risk abuse cases.
Compounding the problem is that judges, attorneys and custody
evaluators have little or no training in detecting signs of abuse.
Just 20 per cent of the almost one million divorces and separations
registered every year in the U.S. actually land in court. Most are
settled in the pre-trial phase, according to Prof. Janet Johnston of San Jose State University,
in research studies written for the journal, The Family Court
Review.
But of the few who make it to a judge, over 75 percent of these cases
are victims of some form of domestic or sexual abuse, according to a
1995 paper by Prof. Peter Jaffe of the University of
Western Ontario, who studies children and violence in U.S. and Canadian
court systems.
He Said, She said
Today’s family courts have also been affected by the rise of the
Fathers Rights movement. During the 1950s, family courts almost
exclusively awarded custody to mothers. But complaints by fathers that
their rights were ignored in custody battles led to a shift in the 1970s
to awarding shared custody, on the grounds that it was in the best
interest of the child to maintain a relationship with both parents.
Nevertheless, only a small percentage of high-conflict cases require
judges to act as conciliators between parties locked in otherwise
endless litigation. The majority involve mothers and children that are
suffering from serious sexual or domestic abuse.
The National Father Resource Center disputes this,
claiming that its member organizations report that 80 percent of
mothers’ abuse allegations are false. Although Canadian
research from the University of Toronto studying false allegations
in U.S. and Canadian custody cases has found that between one and two
percent of mothers make false allegations, the fathers’ rights argument
has had a powerful impact. As shown by the Tagle case, courts don’t want
to hear the mothers’ allegations.
“Historically, allegations of abuse and incest are [met] with a great
deal of suspicion, and there is a tremendous resistance to hearing
these types of allegations,” said Eileen King, director of Justice for Children,
a national non-profit that works to protect children involved in
contested custody cases.Such resistance has already cost Deborah Hicks, 46, a former New York
City television editor, six years of pain. In 2003, she filed for sole
custody of her son, then three years old, when he came home from a visit
to his father with suspicious signs of sexual abuse. There was reason
to be worried. Her ex-partner had already been convicted of molesting a
two-year old boy in Florida for which he served eight years in prison,
and he was a registered sex offender in New York City. Despite her
ex-boyfriend’s record, the judges who heard the case (there have been
two), decided they had to give a fair hearing to his denials.
She has already spent almost $100,000 on the case, with no end in
sight. Nevertheless, she still shares custody with her ex, and says, “I
am not about to give up on my child.”
Even for those mothers who can afford it, the battle can take a
psychological toll. Even when the evidence of risk to their children
seems impossible to deny, the family court system that has proven
incapable of treating these high-conflict cases with the serious
attention and professionalism they require.
Moreover, courts are now often swayed by a concept called “parental
alienation syndrome” (PAS), coined by the late psychiatrist and
psychoanalyst Dr. Richard A. Gardner in the 1980s to describe situations
in which one parent is trying to turn the children against the parent
during a divorce process. Dr. Gardner, a former professor of child
psychiatry at the College of Physicians and Surgeons at Columbia
University, testified in more than 400 child custody cases about its
effect on children.
PAS has been seized by the Fathers Rights movement as a way to defend
husbands and other male partners from what they consider unjust
accusations, and it has received support from other psychologists, who
deny that it allows genuine child abuse to go unpunished. “If attorneys,
child care evaluators, and judges were all doing their job, protective
mothers wouldn’t have anything to fear,” says psychologist Amy J. Baker,
author of Adult Children of Parental Alienation Syndrome: Breaking
the Ties that Bind.
The concept has made little documented headway in the professional
and legal field, and the syndrome has been used very rarely in legal
precedent. PAS is not included in the most recent American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders,
although the association is currently weighing whether to include it in
the 2013 issue of the manual.
It may be ironic that efforts to give fathers more rights in custody
cases have increased the odds against victimized mothers and children,
“When the pendulum swung to shared custody somewhere in the midst of
that (fathers) movement, the safety of children was compromised,” argues
Helga Luest, founder of Witness Justice, a group that helps heal victims of
violence.
A Complex WebTears fill Amy Leichtenberg’s voice as she recounts the horrible
months before her two young boys, Duncan and Jack Connolly, ages 9 and
7, were killed by their father last March. “I felt like I did everything
right, I sat there, I didn’t speak out of turn,” she said of her
courtroom experience. After a 20-year abusive relationship with her
ex-husband Michael Connolly, she finally gathered the strength to leave
him. But he wouldn’t let her go. . Each time she moved her address, he
showed up at her house. She got numerous orders of protection; he
violated them repeatedly.
Every six or seven weeks, the couple was back in court, following a
motion filed by Connolly for one reason or another. Representing
himself, he would badger Leichtenberg on the stand. Yet despite his
behavior, the court allowed him unsupervised access to his young sons.
“The ball was dropped in so many places,” said Leichtenberg. “Court
was just one of them.”
That points to another problem. Once a family enters the family court
system, other forms of protection of women and children often fall by
the wayside. Typically, law enforcement agencies are reluctant to
investigate abuse charges if they learn that the parties are involved in
a custody battle, said Karen Borders, a former police officer and
victim of a contested abuse case, who now runs an forensic risk
assessment company called Borders McLaughlin. Orders of protection that are
filed in criminal court often don’t make its way over to the civil
system. Child protective services (CPS), which investigate allegations
of child abuse, usually close or suspend a case if the child is involved
in a custody battle, she said.
In the 450 high-risk custody evaluations her company investigated
over the past five years, almost 90 percent of the children were abused.
“One of the things you see very often is when there is a custody case
pending, child protection services, prosecutors and law enforcement
will not take the charges seriously or be willing to investigate because
they think it is about custody instead of a crime,” says Barry Goldstein,
author of Domestic Violence, Abuse and Child Custody: Legal
Strategies and Policy Issues.
Decision-making in these highly volatile cases are left to an army of
custody evaluators, guardians ad litem (volunteer lawyers who
are assigned by the court to represent the child), and other members of
the court who may not have experience in domestic violence issues.
Custody evaluators can be assigned by the court or hired by one of
the parties. The cost, which can run from $5,000 to $20,000, can be
picked up by the parent who hired the evaluator, or it can be split by
both parties. The custody system is beset by charges of cronyism―arising
from evaluators’ employee relationship with the court―and incompetence.
Advocates charge that evaluators are often poorly trained on how to
handle or detect an abuser.
There is scant research on decision-making by custody evaluators and
how they effect their cases. “Many child custody evaluators are not
comprehensive (and ) their work is not buttressed by collateral
evidence,” says psychologist Eugenia Patru, who has worked as a custody
examiner in Louisiana and Michigan for the past 30 years.
According to Patru, the difficulty of custody cases increases when
domestic violence is an issue. “Most (evaluators) are not educated
enough and just in for the money,” she says.
In the saddest irony of all, attorneys have learned to caution their
clients not to reveal abuse allegations in custody cases since research
suggests that such allegations can work against mothers fighting for
custody. A National Institute of Justice-funded study found that 35
percent of mothers who alleged abuse got primary custody, while mothers
who said nothing got custody 42 percent of the time.
Moreover, when abuse allegations are raised, judges tend to suppress
or not enter the abuse into evidence, making it harder to try these
cases at the appellate level. “Family courts don’t adequately deal with
abuse by refusing to hear the evidence,” charges Joan Meier, director of
the Domestic Violence
Legal Empowerment and Appeals Project, which provides legal
representation at the appellate level, trains trial lawyers and has
represented the domestic violence advocacy community in Supreme Court
briefs.
Meier, a professor at George Washington University Law School who has
been appealing contested custody cases for the past decade, says such
suppression of evidence makes it very hard to overturn bad case
precedent on appeal. Additionally, cases tend to be an intense financial
and time drain, with the average case running over $100,000 in costs
and lasting eight years.
Signs of a Shift?
“There are thousands of good decisions being made by judges each day
who err on the side of safety,” says Judge Janice Rosa, who sits on New
York Supreme Court in the 8th Judicial District and is chair of the
Family Violence Department Advisory Committee for National Council of
Juvenile and Family Court Judges.
Judge Rosa points to New York’s practice of appointing a separate
attorney for the children as a best practice in sorting out custody
cases. Another breakthrough idea has been integrated domestic violence
courts. There are approximately 40 such courts in New York State, which
has become the trendsetter in this area. These courts, which have civil
and criminal jurisdiction, could offer women and children a way to get
the protection they need.
In 2002, the Office
of Violence Against Women developed and implemented a four-year
demonstration initiative to examine promising practices in the field of
supervised visitation and safe exchanges called Safe Haven.
Grants were awarded to four demonstration sites: the Bay Area,
California; the City of Chicago, Illinois; the City of Kent, Washington;
and the State of Michigan for four years. Praxis
International, a nonprofit research and training organization that
works toward the elimination of violence in the lives of women and
children, and oversaw these projects still offers technical assistance
and advice for visitation centers.
Praxis International also partnered with The Battered Women’s Justice
Project starting a two-year research project to determine a best
model and legislation for Family Courts.
But the resources are not in place now for children and mothers who
need a way to safety now. One of the more promising projects The ABA
Child Custody and Adoption Pro Bono Project ended in August, 2008.
“For the moment, abused mothers who are trying to protect their
children through the overworked family court system have the cards
stacked against them,” says Silberg of the Leadership Council.
“I did everything right, and my children are in a cemetery now right
now,” said Leichtenberg, who founded “In Loving Memory” to in order to
lobby for changes in legislation relating to the response of family
court and law enforcement to abuse cases. “I have a lot of ‘what could
have, what should haves’ every day. But with my last breath, I will make
sure they did not die in vain.”