Posts tagged ‘Family Court’
By Josh Hoff
One spouse is angry, the other is scared. Both parties hire attorneys. One even brings in a mental health professional in an attempt to tip the scale in a child custody dispute.
Just how much influence do these mental health evaluations have in a child custody case? When the two parties in a trial become particularly adversarial, a mental health evaluator often enters the disagreement. While it is rare for a mental health evaluator to appear at the trial, an expert very well may prepare a written report for submission to the court. If the report is well-written, it is more likely to have an impact on the outcome of the case.
The truth is, the weight of a mental health evaluation in a child custody case varies tremendously, with the judge in each case making the final determination. Each judge does in fact know, however, that evaluators are often hired by one side or the other. Bias may enter the equation, and judges know as much.
In such cases, mental health evaluations are just one component in the much larger machinery of justice that has been set in motion. There are other components as well. The overall well-being of the child, for instance, is a factor. If a child shows all the signs of good health, the court may be more accommodating in its assessment the parents. The mental health of the child’s parents also needs to be considered. One parent may very well be depressed but able to function in the role of a parent, while the other parent may suffer from a far more debilitating mental health condition that hinders their ability to perform as a parent.
The May 2005 issue of Family Court Review addresses the debate surrounding the role of mental health evaluation in child custody cases. In an article by Timothy Tippins and Jeffrey Wittmann, the authors outline a model for what experts can justifiably present in a custody case – more specifically, the authors develop a four-level process that aims first and foremost to foster the best interest of the child.
According to their model, experts with sufficient training can offer family court judges admissible information at the first two levels – that is, level I, what the mental health evaluator observes, and level II, what the expert concludes about the psychological makeup of a parent, child, or family. At level III, Tippins and Wittmann encourage operating in accordance with the conclusions grounded in empirical research within the discipline of psychology. At Level IV, Tippins and Wittmann suggest that a recommended custody plan for the child would be inherently biased and, therefore, should not be admissible in court. The plan thus acknowledges a place for mental health evaluation in a case, while implying the importance of limiting its admissibility in court.
Typically, however, if the court deems a parent unable to comprehend the scope of their role as a parent, it will try to protect the child. Likewise, when the court does not trust a parent with a child, it might grant custody to the other parent and require supervised visitation. It is important to note, however, that broad brush strokes are not employed in arriving at the final decision. Rather, courts attempt to take into account the circumstances surrounding the case, enabling them to weigh psychological makeup on a case-by-case basis and adjudicate accordingly.
This tendency stems from the fact that there is no consensus about what constitutes mental illness, a term used to denote a problem that is fundamentally biological. In some instances, perceived mental illness is in fact simply a matter of living. For example, parents may be depressed but are still able to do what they need to do. But a personality disorder, schizophrenia, and a bipolar disorder may pose more serious risks to the well-being of a child. A bipolar parent, for example, needs to be treated, often with a combination of medication and psychotherapy. The way for any parent suffering mental illness to be seen in the most favorable light in court is to be proactive and get into treatment.
Ultimately, the court will consider whether parents are able to put aside their own needs to take care of their children. Furthermore, it is essential that a parent show the capacity to empathize. If so, more often than not, the impact of mental health evaluation will be just one of several factors contributing to the outcome of a child custody case.
By Jeffery M. Leving & Glenn Sacks
“I miss you daddy!”
“I miss you too, princess. Daddy loves his little girl.”
“I love you too, daddy”
“How’s my smart little kindergarten girl?”
“I want to see you, daddy, I want you to come over, couldn’t you come over soon? I want….”
The phone is wrenched away.
“This conversation is OVER!”
Dad hears the phone slammed down on the receiver. Almost.
“How DARE you talk to that man!”
The phone must have hit the receiver off center. The line is still open.
“How DARE you do that to me!”
The little girl begins to cry.
“I just wanted to talk to daddy.”
“How DARE you!”
“I miss daddy!”
A four year-old boy is jumping up and down with joy.
Dad gets out of the car.
“Daddy’s here! Daddy’s here!”
The boy is behind a locked screen door. He tries to open it.
“Daddy’s here! Mommy, look, daddy’s here!”
Dad knows he shouldn’t open the door. He waits for his ex-wife to open the door. She doesn’t do it.
“This is my visitation time,” Dad says, waving a court document.
Mom still won’t open the door.
The boy jumps up and down, saying “daddy, daddy.” He yanks on the screen door handle but still can’t get it open.
Dad looks at his little boy. He pauses, takes a deep breath, and walks back to his car.
The little boy doesn’t understand. Why won’t daddy come? Why is daddy walking away from him?
The little boy disappears inside the house.
Dad calls the police. When the officers arrive he shows them his court documents. The officers go inside to investigate. They come out a few minutes later.
“Your son says he doesn’t want to see you,” the officer says. “There’s nothing I can do. You’ll have to deal with it in the court. I can’t make him go with you if he doesn’t want to.”
Dad finally gets to see his kids three months later. The children spit on both him and their grandmother. Almost in unison they repeat “I don’t want to be here. I want to go home with mommy, I don’t want to be here. I want to go home with mommy, I don’t want to be here. I want to go home with mommy.”
After Jim L.’s wife divorced him and moved his daughters out of state, she sent the two girls fake or altered e-mails purporting to be Jim. Afterwards, Jim’s daughters refused to see him, explaining only “you know what you’ve done, you know what you said, you know what you wrote.”
Once when Jim flew to see his girls for his scheduled weekend visit, his ex-wife decided at the last minute to block the visit. Jim flew home on Sunday without having seen his girls. When he arrived at the airport back home he checked his messages and found a message from his ex-wife. On the recording his girls could be heard crying in the background. His ex-wife said:
“Jim, the girls are here at the restaurant waiting for you to come pick them up. You said you’d meet them here for breakfast and spend the day with them, and you didn’t show up. The girls are very upset. Jim, where are you?!?”
Bill, a divorced dad, is a retired fireman. When his kids were young he occasionally had to work unscheduled weekend shifts with little warning. If an unexpected schedule change meant he had to work the weekend of his visitation with his children, his ex-wife would have his kids pack for a weekend with dad anyway and sit on the curb outside their house to wait for him. Hours would pass waiting for dad to come, but when the kids would knock on the door and ask mom if dad was going to show up, all she’d say is “he’ll be here.”
In the LaMusga case decided by the California Supreme Court last year, Gary LaMusga’s son’s kindergarten teacher testified about the tactics LaMusga’s ex-wife, Susan Navarro, used to try to turn his children against him. The kindergarten teacher testified that Navarro asked her to keep track of the time Gary spent volunteering in his little son’s kindergarten classroom so it could be deducted from his visitation time with his son.
According to the teacher, the LaMusga boy told her “my dad lies in court…if you tell the judge…he could talk to you” and said that his mom had told him this. The teacher testified:
“I finally sat down with him and told him that it was OK for him to love his daddy. I basically gave him permission to love his father. And he seemed brightened by that…”
The teacher continued:
“The next day that Gary had seen the kids he came to me the following morning and said,’what did you say to him?…He was so happy. He just greeted me with open arms…we had one of the best evenings that we have had in a long time.’ And I just shared with Gary at that point that I had given his son permission to love his father….I’m not sure that he was aware that he could do that.”
In a highly publicized Houston, Texas case, a 10 year old boy shot his father in the back after his father came to pick him up at his ex-wife’s house. The mother, Deborah Geisler, had made numerous allegations of physical and sexual abuse against Dr. Rick Lohstroh, an emergency room physician. All of them had been found false or unfounded by investigating authorities. Geisler’s own mother and brother testified against her in court, and before his death Lohstroh taped Geisler threatening to report spurious child abuse charges against him.
Despite this, and despite the fact that the mother had been jailed numerous times for domestic violence, she nevertheless enjoyed shared custody of their two sons. Geisler allegedly gave the boy large doses of an age-inappropriate drug, and the boy may well have been drugged up when he used his mother’s handgun to kill his father. Geisler, a registered nurse, made no attempt to render aid to Lohstroh as he sat bleeding to death in his SUV in their front yard. The boy goes on trial for the murder in January.
All of these cases are examples of Parental Alienation Syndrome–the phenomenon of a parent (generally the mother/custodial parent) turning his or her children against the noncustodial parent after divorce or separation. PAS is the focus of the controversial new PBS documentary Breaking the Silence: Children’s Stories.
The filmmakers assert that PAS “has been used in countless cases by abusive fathers to gain custody of their children” by accusing the mothers of PAS. They claim PAS is “junk science,” and family law attorney Richard Ducote states that “All experts have disavowed” PAS.
The documentary airs this week on Public Broadcasting Service stations in dozens of major cities, including New York City, San Francisco, Seattle, Houston, San Antonio, Dallas/Ft. Worth, St. Louis, Baltimore, Denver, Boston, and Philadelphia.
Despite the film’s claims, research shows that parental alienation is a common facet of divorce or separation. For example, a longitudinal study conducted by Stanley S. Clawar and Brynne Valerie Rivlin and published by the American Bar Association in 2003 followed 700 “high conflict” divorce cases over a 12 year period. Clawar and Rivlin found that elements of PAS were present in the vast majority of the cases studied.
There are many factors which create PAS, including the “hell hath no fury” axiom as well as personality disorders such as Borderline Personality Disorder. However, the family court system encourages these types of behaviors. Judges are very hesitant to give joint custody if there is conflict between the ex-spouses. For this reason, many mothers create conflict because they know that conflict will sabotage joint custody. If the judge must award sole custody, it will generally be the mother who wins. Most post-divorce conflict is created by the person who stands to gain from it.
The most extreme examples of PAS are false allegations of sexual abuse. Canadian Senator Anne Cools, one of the few elected officials in North America knowledgeable about family law, calls this tactic “the heart of darkness.” The accusations are often used—very effectively—to deprive fathers of a meaningful role in their children’s lives after divorce or separation. Reginald Brass, president of My Child Says Daddy, a parenting organization which works with young African-American fathers in Los Angeles, says:
“We have many young fathers who are fighting in the courts to see their children or to get joint custody over a mother’s hostility or objections. If the man has a daughter, we always warn him that at some point the mother will probably accuse him of sexually molesting his daughter. We see it every day.”
When a father who has daughters does succeed in getting a desirable custody arrangement over the objections of a recalcitrant mother, it is common practice among family law attorneys to advise the father that a charge of sexual abuse may be coming. According to a study conducted by Douglas J. Besharov and Lisa A. Laumann and published in Social Science and Modern Society, the vast majority of accusations of child sexual abuse made during custody battles are false, unfounded or unsubstantiated.
Cools, a prominent feminist who led Canada’s battered women’s shelter movement during the 1970s, explains:
“There’s a plethora of cases where the mother falsely accuses the father of sexually abusing the child. The accusation is made in order to gain advantage in custody disputes. Governments are enormously reluctant to look at it. I’ve studied this extensively and I’ve placed on the Canadian Senate record 52 cases where there was a finding that the accusations were false, and there are countless more. Studies have shown that under these circumstances false accusations far outnumber truthful ones.
“It’s a terrible, terrible thing–for the fathers and for the children who’ve lost their fathers. Some of those men will never recover and they have spent every penny left to them to try to extricate themselves. And I’ve seen elderly parents who’ve spent every dime of their retirement to try to help their sons get out of these horrible situations.”
In a strange reversal, in Breaking the Silence the filmmakers claim that the real problem is that mothers are being punished for “revealing” that their husbands have molested their daughters. The documentary centers around Karen, who lost custody of her three children to her husband after a court-appointed evaluator found that she had falsely accused him of sexually abusing them. The filmmakers claim that the family law system “forbids” mothers from protecting their children.
Mothers like Karen are increasingly vocal and visible. Yet despite the film’s claims, in the few cases where a mother has lost custody for making allegations, the courts usually had good reason for acting as they did. The two most famous cases of mothers losing custody of their children after making an accusation of sexual abuse—those involving model Bridget Marks and sociologist Amy Neustein—are illustrative of the point.
Marks became a cause celebre and appeared on Dr. Phil, Larry King Live, PrimeTime Live, and The O’Reilly Factor after she briefly lost custody of her twin four year-old girls last year. While she has been treated as a hero and a victim by the mainstream media, every judge who heard her case—all five, both male and female–concluded that Marks had coached her girls to believe that they had been sexually molested by their father.
Neustein, who lost custody of her young daughter in a highly-publicized New York custody battle during the 1980s, is the co-author of the new book From Madness to Mutiny: Why Mothers Are Running from the Family Courts and What Can Be Done About It, and is perhaps the leading intellectual of this movement. Yet Neustein’s now adult daughter, Sherry Orbach, publicly refuted her mother’s claims earlier this year. In her article “Silent No Longer: The Other Side of Abuse Allegations” (Jewish Press, 5/27/2005), Orbach says that as a child her mother made her rehearse false allegations “for hours.” She writes:
“She would begin by telling me a sordid–and false–story about my father, such as a detailed account about how he had molested me or about how he had thrown me violently against a wall. She then instructed me to repeat the story word for word until she was satisfied with my rendition…my mother spun lie upon lie about my father and me…my father never sexually abused me…reporters and alleged victims’ advocates who supported my mother chose to retell her lies without adequately checking the facts.
“I…owe my existence as a normal young adult to the family judges…who helped me reunite with my father in the face of considerable opposition in the media.”
Mothers who use false allegations of sexual abuse are playing a game they often win and rarely lose. Cools says that of the cases of false accusations of sexual abuse she studied, “there were absolutely no consequences at all for the women who knowingly made the false accusations. Of the 52 cases in only one case–one—was the woman punished, and in that one she was only charged with mischief.”
In Breaking the Silence we are told that “All over America, battered mothers are losing custody of their children,” and that between 1/3 and 2/3rds of abused mothers lose custody.
In reality, mothers rarely lose custody of their children to anyone, ever. For example, a Stanford study of 1,000 divorced couples selected at random found that divorcing mothers were awarded sole custody four times as often as divorcing fathers in contested custody cases. An Ohio study published in Family Advocate found that fathers seeking sole custody obtain it in less than 10% of cases, and a Utah study conducted over 23 years found similar results. According to researcher Robert Seidenberg, a study of all divorce-custody decrees in Arlington County, Virginia over an 18 month period failed to find even one father who was given sole or even joint custody of his children unless the mother agreed to it.
In the study “Child custody arrangements: a study of two New Jersey counties” published in the Journal of Psychiatry & Law, New Jersey mental health experts researched hundreds of custody cases in two New Jersey counties, Bergen (one of the wealthiest) and Essex (one of the poorest). Rich man or poor man, for these New Jersey fathers it didn’t matter–in either county they won custody in only one out of every 20 cases.
Breaking the Silence makes many sensationalized claims about fathers winning custody, but provides little evidence for its claims. Misguided women’s advocates often claim that fathers usually win custody when they pursue it, and that the reason few fathers have custody is because few of them want it. Boston Globe columnist Cathy Young examined the research upon which these claims are based and concluded that they belong in the “Phony Statistics Hall of Fame.”
For example, feminist psychologist Phyllis Chesler claimed in her book Mothers on Trial that fathers win 70% of custody battles. However, this widely cited factoid was based on a biased, pre-selected sample of 60 women who had been referred by feminist lawyers or women’s aid groups because they had custody issues.
Other claims are based on the 1989 Gender Bias Study of the Massachusetts Supreme Judicial Court, which reported that when fathers seek custody, they win primary or joint physical custody 70 percent of the time. Yet this figure does not separate contested from uncontested custody bids, and showed that in bids for sole custody mothers were still far more successful than fathers. The study also notes that “women who lose custody often [have] mental, physical, or emotional handicaps”—in other words, when fathers win it’s usually only because the mother has obvious problems.
Family courts are sharply biased against fathers, to a degree that would not be acceptable to any other group in any other facet of society. One could fill volumes with outrageous court decisions wherein fathers and their love for their children are held to be of no value whatsoever.
One example is the noted California case De Brenes v Traub. In that case a divorced Northern California custodial mother has moved to new cities with her 13 year-old daughter twice since her divorce. In each instance, the girl’s father generously uprooted himself and moved to the new city to be with his daughter. Mom then remarried and sought to move a third time–to Costa Rica, her new husband’s native country.
The girl’s father, Eric Traub, contested the move, arguing that it would be harmful to his daughter because she does not want to go, and because the move would: remove her from the special school she attends because of her learning disability; force her to move to a country and an educational system where she does not speak the native language; and damage her bonds with her father by moving several thousand miles away.
The father, who is judged by all sides to be very involved in his daughter’s life and in her schooling in particular, has clearly demonstrated that he will not be able to see his daughter very often after the move. He must stay behind in part due to the “child support” he must pay to the woman who is taking his daughter away. Though stipulating a short delay, the trial court granted the mother’s request to move. The family law system was willing to throw away Eric Traub’s 13 years of fatherhood the moment the loving bond he and his daughter share became inconvenient for mom.
In Breaking the Silence the filmmakers emphasize the need to protect children from abuse, and say that children are “most often in danger from the father.” Yet according to studies from the US Department of Health and Human Services and others, the vast majority of child abuse, parental murder of children, child neglect, and child endangerment are committed by mothers, not fathers.
The filmmakers also ignore the large body of research, including data from the National Violence Against Women Survey in 1998, which shows that women also frequently abuse their husbands or male partners. While women’s violence against men is in general not as severe as vice versa, studies show that women often employ the element of surprise and weapons to balance the scales. Yet in the film “divorced dads” and “batterers” are practically synonymous. The film claims without any evidence that the vast majority of divorced dads who refuse to cede sole (or de facto sole) custody to their ex-wives are “abusive.”
Breaking the Silence is a direct assault on American fathers, and the minimal, hard won gains they have made in protecting their children’s right to have their fathers in their lives. Courts still reflexively side with mothers and remain reluctant to grant fathers joint custody. Many allow mothers to deny visitation, make false allegations, and drive fathers out of their children’s lives. Most of the alienating mothers mentioned above, including Bridget Marks, Susan Navarro, and Jim L.’s ex-wife, today enjoy full custody of the children they psychologically abused. According to the Children’s Rights Council, a Washington-based advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents.
As a society we pretend that broken families are all men’s fault, pay lip service to the importance of fathers, andlose our eyes while millions of children are separated from the fathers they love and need them. Because that’s what mom wants. Because it’s easier to blame everything on dad than it is to confront mom on her destructive behavior. Because trying to hold a divorcing mother accountable for her behavior is like trying to nail Jell-O to a wall. Because there’s a high political cost to be paid for crossing mothers and none to be paid for crossing fathers. Throwing objectivity, fairness and reason to the wind, PBS and Breaking the Silence don’t merely ignore or minimize this problem, but instead turn it on its head.
Jeffery M. Leving is one of America’s most prominent family law attorneys. He is the author of the book Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. His website is www.dadsrights.com.
Glenn Sacks’ columns on men’s and fathers’ issues have appeared in dozens of America’s largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.
By: Timothy E. Rogus, J.D.
Young Father Keeps Son Close to Him
Last year, I was retained by a client whose ex-wife was trying to move their 7-year-old son with her new fiancé from Illinois to Massachusetts. So the mother petitioned the court for the required order, saying that the benefits of removing the child far from dad outweighed the advantages of the child remaining in Illinois in the present custody arrangement.
As we began to aggressively prepare for the case, I was shocked to see how quickly the court had fast-tracked the hearing. We filed for a continuance, on the ground that more time was needed for proper discovery, but this motion was denied by the court. The week leading up to the trial was filled with countless hours of preparation. My client and I spent the entire pre-trial weekend in the office preparing and interviewing witnesses, reviewing exhibits and formulating strategy.
At trial, I strategically presented many witnesses and evidence, showing that my client was a very vital part of his son’s life. He was not just an unnecessary and disposable part of his son’s life, but was a full-time dad. Moreover, the father had a large extended family in Illinois who had always been a large part of the life of his young son.
After three days of trial, the trial judge, after careful deliberation, could not look past our evidence and our witnesses. It was clearly evident that my client was an extremely loving father and that he played a major role in the life of his son. The trial judge denied the mother permission to remove the child from Illinois. The mother has since married her fiancé and they have remained in Illinois where my client is still a very active and very happy father.
As someone who has spent more than 20 years as a domestic relations attorney, fighting in the trenches for fathers, I have seen how too often society has failed in their duty to protect the family unit and instead seeks out punitive measures against men.
Some would say there is an unwritten, “anti-male” bias that exists in many of today’s family law courts, especially in child custody cases. Too often in our current system husbands and fathers are viewed as biological necessities, but social accidents.
But even in the face of bias, fathers must never give up when it comes to protecting their children. So in an effort to help give fathers some hope, each edition we will spotlight a case in which a father has beaten the odds in family court and gained extended custody or related rights with his children.