Who´s Protecting Whom? the Criminalization of Protective Parents
by Suzanne Rotando
There is a saying in the law, "hard cases make bad law," and this maxim appears to be borne out in the dismal failure of the legal system to protect women from abuse. The hardest cases involve physical, emotional, and/or sexual abuse. They often involve parental abduction, interstate custody law and even international custody law. The greatest nightmare case of all, however, occurs when these issues arise in the context of divorce, custody or visitation case; and the person living the nightmare is the child who no one will believe.
-- H. Joan Pennington, Esq., National Center for Protective Parents
The great myth of the decade is that as soon as a child says that a parent has sexually abused them, the accused parent is immediately dragged off to jail in handcuffs, and never sees the child again. In reality, if the child is five years or younger, the abuser will more likely never be found guilty. If found guilty, he will probably not go to jail. If charges arise during the custody dispute, the accused will most likely get full custody. In some cases, the mother will never be allowed to see the child again. Perhaps this is the proper place to ask, "Why would any parent `program' or `brainwash' a child to say that there were raped, even if they could?" They gain nothing and more likely than not, will lose their child, sometimes for good.
- The Hardest Case: Custody and Incest, National Center for Protective Parents
New and Improved Backlash: False Memory Syndrome Strikes Again
When most of us imagine divorce/custody cases that involve a child who is sexually abused by one of the parents, we see a pretty awful set of images. Until recently, it was widely believed in those cases, the mothers typically end up with the child, and the abuser, the father, is dragged off to jail. Over the past few years, with all the media attention on False Memories/Parental Alienation Syndrome, public opinion has been changing with respect to incest. What once appeared to be a clear-cut situation, has now become an area of great controversy and debate. The most tragic casualties of this debate over child abuse are the children themselves, who are currently being sexually abused and are not trusted or believed when they disclose because of the grave suspicion that has been cast upon all who dare to speak about the abuse.
But children are not the only ones to suffer. This backlash has also hit mothers who are trying to protect their children from abuse. Connie Chung recently interviewed Dr. Elizabeth Morgan, a mother who has become somewhat of a heroine for women around the world, who took her child into hiding to get away from her sexually abusive father. In the interview, despite the narrows of sexual abuse and the overwhelming evidence supporting that it was the father, Chung depicted the struggle for Dr. Morgan to keep her child safe as a "custody dispute." As a protective mother (who asked to remain anonymous for the safety of her child) said to me during the interview, "calling that `a custody dispute' is like referring to the Nicole Simpson (O.J.'s wife) case as a `domestic dispute'. It wasn't a quarrel or a disagreement, it was abuse that eventually led to her murder."
Although some mothers are still taken seriously when they introduce evidence of child sexual abuse into custody battles, increasing numbers of mothers are finding that courts disregard their allegations and indiscriminately favor the fathers without investigating for abuse, even in cases where overwhelming evidence exists to support the claims. In fact, studies are beginning to show that in cases involving sexual abuse, where the father fights to retain or receive custody, the courts favor fathers more than 60% of the time.(1) This means that if the mother enters evidence of abuse into divorce/custody battles, and the father contests, the courts are more likely than not going to grant him visitation, half-time, or full custody privileges without first determining that he is not abusing the child. In addition, the courts are playing right into the strategy most commonly used by defense attorneys: shift the focus onto the mother by labeling her hysterical, insane, or vindictive.
Although this may appear to be a recent trend, it's not. The courts have been severely criticized by children's rights advocates for years because of their propensity to favor the accused during child abuse hearings, especially during divorce proceedings. Typically, advocates for children have attributed this propensity to judges who take the law into their own hands and try to right what they perceive to be an inherent bias of the courts to favor the mother in custody disputes. Recently, others would claim that the bias towards fathers is a direct result of the False Memory Syndrome movement, whose messages seems to demand that we put victims or their advocates on trial, not the abuser. When this philosophy is mirrored by the actions of lawyers and judges, the mother finds that she is not only discredited in court, but punished for bringing up the abuse allegations, and the child is placed into the custody of the suspected abuser.
Sadly, it is common knowledge that the agencies responsible for monitoring, investigating, and terminating child abuse (CPS-Child Protective Services, Victim/Witness Programs) are inadequate. In the face of the unaccountability of social services, courts, schools, and religious organizations, parents are being faced with some incredibly limited and risky options when they discover that their children are being sexually abused. Mothers, who are driven by the single goal of keeping the child safe from violence, are stripped of their legal options when the services they turn to ignore or refuse them their request for help. The law demands they go through certain channels, but the channels repeatedly lead them to dead ends.
For these mothers and their children, obeying the law and keeping their child safe become mutually exclusive. To say they are denied access to fair treatment in the courts would be a vast understatement. They are threatened with contempt of court if they deny the father visitations but are given no reassurances that their concerns are being taken seriously by the very people who are perceived to be allies, even when there are many witnesses who are willing to participate in an investigation. As Anna Quindlen asks in her December, 1994 New York Times article, "The Good Mother," about Paula Oldham and protective mothers: "What is the proper affect for a woman whose toddler is being forced to have sex with her father?" And I would add, what is a mother expected to do when all of the services that are supposed to intervene and protect her child are turning a blind eye because the allegations are in the context of a divorce? Or when she is written off as an unreliable witness and an unfit parent because she brought up the abuse in court? What are her options when she knows the abuse will continue if there is no intervention by the state?
In a situation like this, she does what some women before her have been forced to do within a culture that is not set up to protect its most vulnerable - she takes her child into hiding and endures what most of us can only imagine in our worst nightmares. While in hiding, they have to give up their previous identities and create new ones out of thin air as they embark on a potentially endless trip leaving behind their family and friends, with the understanding that they can not be in contact with any of them again while they are in hiding, for fear of being traced.
Once they go underground, they instantly become fugitives of the law. If the mother is lucky enough to be informed, she may be able to hook up with a network of organizations and women across the county who transport, support and provide limited financial help to those who have taken on protective parent/child status. If not, they are on their own to try and make ends meet. If they are discovered while underground, most likely the mother will be thrown into jail for up to three years on kidnapping charges, and the child will place back into the hands of the abuser and stripped of all the support from the one person she could trust: her mother. By most standards, these protective mothers are modern day heroines and do what any of us would do if we were in their situation. Why, then, are they so misunderstood?
Why Doesn't She Tell the Judge?
The abused child and the parent who tries to protect the child from being sexually abused by the other parent are among the most alienated and tragic figures in contemporary US society today. Most people are very wary to venture an opinion on custody issues. This seems to be even more pronounced when sexual abuse allegations are introduced into the custody hearings. Despite studies that have shown that more than half of the allegations are found to be substantiated, and all but 2-4% were made in good faith, people tend to prefer to err on the side of "innocent until proven guilty," not "keep the child safe until it is investigated." Perhaps the cases involving child sexual abuse allegations/incest that make it into the media mirror those that get into the media about sexual abuse allegations/incest in general: simplistic, sensationalized stories revealing false allegations, or stories of abuse created by someone confused, tricked by a therapist, or just plain malicious. A well-balanced look at child abuse has been missing from most mainstream media. To understand some of the issues and complexities surrounding protective parents, it is useful to look at a typical scenario that has emerged from the many studies that have been conducted on sexual abuse allegations and custody.
A child discloses (in various ways) that she has been/is being abused to the non-molesting parent, which may or may not coincide with divorce and/or custody proceedings. The parent seeks a medical evaluation for the child which invariably turns up as a positive (medical findings of vaginal and/or anal scarring, recurring vaginal infections, and bruises are the most typical). Perhaps immediately, but more than likely not until an abundance of evidence emerges, the non-abusive parent begins to realize that it is the other parent, who is currently retaining some form of custody rights and overnight unsupervised visits with the child, that is actually sexually abusing the child. The non-abusive parent seeks out Child Protective Services (CPS) and waits for them to initiate an investigation into the sexual abuse.
Weeks even months pass with no investigation. Meanwhile, physicians and psychologists are finding more and more evidence of on-going sexual abuse. The non-abusing parent decides to seek out the advice of a lawyer, or two or four, all of whom tell her that if she brings up the sexual abuse charges, especially if it is in the context of a divorce proceeding, she will most likely lose custody of the child, possibly forever. The abuse continues, physicians tell the mother that symptoms continue to present themselves, the child becoming more and more shut down and introverted, and still no investigation.
Finally, out of desperation and fear for the child's safety, she feels she has no choice but to take a risk and raise the issue of abuse in court. If she is also in the process of divorce/custody proceedings, which is often the case because it is the first time the child feels safe enough to disclose the abuse, the stakes are raised considerably. Typically, the abusing parent's lawyer claims that the allegations are false and are simply the utterances of a vindictive woman trying to ruin the father's reputation and using the child as a way to get back at him. Over and over we see the perpetrator become the victim in the eyes of the court, and the judge buys it - even when there has been no investigation into the abuse allegations and evidence into the abuse allegations and evidence of abuse has been presented by five, ten, fifteen witnesses (including physicians, family members, babysitters, psychologists). The judge orders the mother to be examined by the psychiatrist.
During the proceedings, no effort is made to put the child in a neutral setting until the abuse is investigated. The child continues to have unsupervised visits with the abusing parent or is placed into full custody of the father until the mother is fully examined by a psychiatrist for pathology. Physicians' examinations of the child are suspended. The mother may now only be allowed supervised visits with the child, or her rights to custody may be suspended altogether. Perhaps now there is a tiny, symbolic investigation and guess what - the child won't talk to the CPS case worker. The mother's testimony is characterized as hysterical, the father is not charged, and the abuse is never formally acknowledged. What options are left for this child, for this mother? CPS fails them, the courts discount all the evidence, the child continues to be placed with the father in unsupervised situations, and it appears that it will go on and on......
When faced with this devastating set of circumstances, the mother has two choices: she can stay put knowing the abuse is continuing, and pray for a miracle - or she can pack a small bag of things, tell no one, and leave with her child on the only possible path to safety. The path is no vacation no joyride arranged just to make the father sweat. On the contrary, they must take on a new identity, cut off all ties with family and friends, keep a very low profile and live in fear of being tracked down as fugitives of the law. Fear of being tracked down and brought back into a hostile uninformed system: a system that will undoubtedly send one to jail for kidnapping, and the other back into the prison of living with an abusive parent.
When the Courts Say There's No Abuse
There is the case of the woman from Ohio who left five years ago when the courts believed her ex-husband when he said he would never hurt his child, that his wife was crazy - he was the same man she had to have restraining orders taken out on for over fifteen years. Ironically, she is one of the "success" stories simply because she hasn't been found, simply because her daughter has not had to fulfill the court's order for her to go live with her father. There is also Dr. Elizabeth Morgan who went to jail for two years for hiding her daughter. She and her daughter now live in exile in New Zealand. In the world of protective parents and child sexual abuse, success is relative and usually measured by one thing: escaping abuse.
However, most cases end in defeat for the child and mother. In fact, according to the National Center for Protective Parents, there are too may tragedies to keep count. There was the lawyer from NY who got into the car with her daughter, with the garage door shut and poisoned both of them to death because the courts found all abuse allegations against the father unfounded. And Paula Oldham, a woman from California, who worked at Wells Fargo Bank as a vice president before she went underground with the daughter. Paula was just released from jail two months ago, after almost ten months behind bars, and is currently paying for her own psychiatric evaluation as ordered by the courts to determine if she really believed her daughter was being abused, or if she left her job, her friends, her family, and everything else that was familiar, just to be spiteful of her ex-husband. Meanwhile, her daughter is with the alleged abuser, who has fully custody.
In Paula's case, her ex-husband hired a private investigator from Sacramento to find her daughter. He has also routinely intimidated witnesses who have testified on behalf of the child and threatened countless journalists with lawsuits for publishing articles on this case. The PI he hired, Charlotte Blaiser, used tactics that have served to remind me that it takes more than simply being a woman to be a feminist. Blaiser posed as a simpatico to the Protective Parent Movement. She gave money to women underground through an organization set up to help mothers-in-hiding to protect their kids. She befriended editors at Ms. magazine and after a year of pretending to be an ally to Paula and other mothers, she launched her attack. She claimed she was interested in helping Paula publish a book about her situation. Blaiser convinced other women to disclose Paula's whereabouts to her, under the pretense of concern and once she got the information, she betrayed them all and brought the FBI directly to Paula and her daughter.
Blaiser is not unlike people in the False Memory Syndrome Foundation who allow their biases to drive them to the point of fanaticism. She is on a personal crusade against protective parents and uses unsubstantiated statistics comparably only to those fabricated by Richard Ofshe (a FMS guru) - statistics created out of thin air, based on no research, and nearly 180 degrees different from the findings of the legitimate studies conducted on the sexual abuse. The "Blaisers" claim that only 1/100 allegations of child sexual abuse are true. Actual studies show something else entirely. In a study done by Association and Conciliation Courts Research in Denver, 72% of all allegations of child sexual abuse were found to be true. The researchers believed only 8 out of 169 (less than 5%) were part of a vindicative attack by an ex-spouse.
Paula's case is not unique. She is one of the many women who have tried to protect their children by going through the system, only to be met by an irrational responses, sexist accusations, and consistently unfair determinations by the courts. Some lawyers who work on behalf of protective parents name the lack of educational work done to inform judges as a major obstacle on attaining fair decisions in these cases. The topics they see as important range from information about the realities of child sexual abuse to accurate statistics to dispel myths of the mother as vindictive or unreliable. Until judges become educated on these issues, or until mothers don't have to rely on the courts for their children's safety, women will have little choice but to go underground as fugitives. These women will continue to choose justice over laws because they have to. At the very least, these children and women deserve the benefit of the doubt. Many would argue that they deserve a whole lot more than that, beginning with the fundamental right to live free of abuse. Anything short of that is criminal.