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Family Court Outcomes

Study –
Empirical Analysis of GW Law
School
Custody Cases involving
June 2018
Abuse and Alienation
PRESENTED BY JOAN MEIER
BACKGROUND: PRO-FATHER BIAS in
CUSTODY AND ABUSE LITIGATION
 OVERT

 IMPLICIT

 HOSTILITY
TOWARD and PATHOLOGIZING
OF MOTHERS ALLEGING ABUSE BY FATHERS
Mass. 2016 Judicial Opinion

 “Mother testified credibly that [son] has been having


bad dreams and [daughter] has been increasingly
touching herself inappropriately. “

 “Mother’s position that the children are not as happy


and playful as they used to be [now that they are
required to spend substantial time with their separated
father] is not grounded in reality…” [emphasis added]
Slaying Suspect's Wife Warned of Risk to Children, By Raymond
McCaffrey, Dan Morse and Daniel de Vise
Washington Post Staff Writers, Tuesday, April 1, 2008

“A review of the events that led to the slayings shows a


mother's determined but losing struggle in court to limit her
children's contact with their father, who has a history of
mental problems. Amy Castillo, 42, a pediatrician, once
said he had told her that "the worst thing he could do to
me would be to kill the children and not me." But
psychologists found little indication that Castillo was an
immediate threat to his children, and judges upheld his
right to visit them. . . “
Crisis in Family Court: Lessons From Turned Around Cases. Final
Report by Joyanna Silberg et al (2013), pursuant to Award
#2011-TA-AX-K006, from the Office of Violence Against
Women of the U.S. Department of Justice.

“Our research confirms numerous prior observations about


the danger that family courts pose for abused children and
protective parents. The majority of the children in our
sample had been sexually and/or physically abused.
Rather than protect them, the courts ordered them into
the custody of their perpetrator, placing their physical and
mental health at risk.”
Silberg et al, Award #2011-TA-AX-K006, Report for the
U.S. Department of Justice, cont’d

“Consistent with prior studies . . . Fifty-nine percent of the


mothers in our sample lost complete custody . . . a number
. . . were sanctioned for reporting abuse. . . . Courts were
highly suspicious of mother's motives for being concerned
with abuse. Two-thirds (66%) of the mothers were
pathologized for advocating for the safety of their children.
. . Custody evaluators and GALs frequently accused
mothers of attempting to alienate their children from the
father. . . .”
WHAT IS “PARENTAL ALIENATION”?

 Derived from junk science, “parental alienation


syndrome” – widely rejected

 Yet - without the term “syndrome,” “alienation”


continues to be widely accepted by family
courts, and routinely invoked by custody
evaluators, GALs, and fathers accused of abuse
WHAT IS PARENTAL ALIENATION, cont’d

 Embodies idea that when mothers report abuse


in custody litigation they are doing so merely to
“alienate” the children from their father
 Typically, if children resist seeing father, mother is
blamed (e.g., Angelina Jolie)
 Can be gender-neutral; but was invented – and
is regularly used – to re-frame mothers’ abuse
claims as themselves a form of emotional abuse
Typical Example: Arkansas 2006

Despite a known history of domestic violence, and some


complaints that the children had been man-handled by
their father:

Custody Evaluator: What is your biggest worry?


Child: “My biggest worry is my father killing me and
saying my mother did it”
Custody Evaluator: Boy’s negativity toward his father
is “unnatural … abnormal” – hence, indicates parental
alienation by the mother.
CRITIQUES ARE LEGION –
but ineffectual
The “alienator” label is seen as gender-neutral

quasi-scientific

and legitimately utilized by psychological “experts”


CHALLENGES OF COMBATING IN
COURT
 Appeals are difficult to win – custody is intensely fact-
based and discretionary
• Very rare to have adequate record
 Culture of family court supports belief that women
often lie and brainwash children against fathers;
alienation legitimizes this view
 Alienation is seen as a common sense notion
 Don’t know what they don’t know – about abuse
NEED FOR NATIONWIDE NEUTRAL DATA

After years of challenging the concept in litigation, trainings, and


scholarship, it has become clear we need national, objective data to
show (or refute) that

(i) courts are excessively reluctant to believe mothers’ abuse claims,


resulting in widespread losses of custody to likely abusers, and

(ii) alienation theory is used in a gender-biased manner to facilitate the


denial or minimization of abuse.*

*This phenomenon is global, and generating growing concern in Canada and the
UK.
Pilot study - Meier & Dickson, Mapping Gender: Shedding
Empirical Light on Family Courts’ Treatment of Cases Involving
Abuse and Alienation, 35 Law & Inequality 311 (2017)

Began with law students, circa 2012

Studied 240 electronically published opinions


with parental alienation claims:

Some confirmatory findings:


• Child sexual abuse claims => loss of custody
• Abuse claims (of any kind, but especially child abuse)
are infrequently credited
Full Study (NIJ Award to GWU, 2014)
 10 year period (2005-2015)

 Comprehensive search string netted over


15,000 cases (all electronic opinions)-
narrowed to 4338

 Included custody/abuse cases without


alienation claims, for comparison

 Over 100 codes (including sub-codes)!


MANY THANKS TO THE STUDY TEAM,
and especially

Sean Dickson, Consultant, who possesses the


statistical expertise I lack and the legal and
translational expertise to teach me
KEY FINDINGS
 Mothers’ reports of Fathers’ abuse in custody
litigation are credited less than half the time

 Courts are far less likely to credit child abuse claims


than partner violence (DV)

 When Fathers use the alienation defense, courts


credit abuse - especially child abuse - far less

 Child abuse allegations and alienation defenses put


Mothers at highest risk of losing custody
CREDITING OF ABUSE alleged by M
NON-ALIENATION (ABUSE) CASES
60%
55%

50%
45%

40%

30%
29%

20%
15%
13%
10%

0%
DV Child abuse Child sexual abuse Mixed DV&Child Mixed CA/CSA

Overall, courts credited 41% of abuse claims


CREDITING OF ABUSE
Non-alienation vs Alienation cases (F cross-claim)

60%

50%
45%
40% 55%
30% 29%
20% 37%
15%
10% 18%
4/22 13%
0% 31%
2% 1/51 Non-Alien. Cases
DV
Child abuse
Child sexual 6% 1/18 Alien. Cases
abuse Mixed DV&Child
Mixed CACSA

Overall, courts credited only 23% of abuse claims in


ALIENATION cases
Impact of Alienation Defense

Reduces likelihood of abuse being believed


by a factor of 2

Reduces likelihood of child abuse being


believed by a factor of almost 4 (3.9)
MOTHERS’ CUSTODY LOSSES*
*switch of primary custody from M to F
where abuse claimed

NO ALIENATION DEFENSE

50%

29% 28% 26% 26%


23%
19%
14% 7/37 12% 13%
0 0
DV CA CSA DVCH CACSA ANY ABUSE
All Abuse Abuse crd
MOTHERS’ CUSTODY LOSSES (2)
Non-alienation vs. Alienation Cases
70%

60% 59% 66%


(10/17) (8/12)
56%
50% 58%

40% 35%
50% 44%
30%
23% 29%
20% 28%

10% 26%
26%
0%
DV Alienation
CA
CSA
MIXED DV/CH Non-Alien
MIXED
CA/CSA ANY ABUSE
MOTHERS’ CUSTODY LOSSES (3)
ALIENATION CREDITED
All Abuse Abuse crd

100%
88%
(7/8) 79% (7/7)
73%
68% 69%
60% 57%

43%
(4/7)
(6/14)
29%
(2/7)

0 0 0
DV CA CSA DVCH CACSA ANY ABUSE NO ABUSE

Note: No CA or CSA credited when alienation credited


Power of Alienation Defense to
effect custody switch

When Fathers cross-claimed alienation, they


were almost 3 (2.9) times more likely to take
custody from mothers alleging
any kind of abuse
Power of alienation to effect a custody
switch even when abuse proven

M loses
Alienation Custody Abuse
credited 43% credited
(6/14)
FUTURE ANALYSES
Definite:
 Compare above analyses for reversed genders
 Impact of Guardians Ad Litem
 Impact of Custody Evaluators
 Impact of corroboration of abuse
Possible:
 Custody changes to and from joint custody
 Visitation outcomes
 Role of mental health labelling
Hopeful for advocacy:
 State-specific case and quant. analyses [after study
ends]