Denial of Family Violence in Court: An Empirical Analysis and Path Forward for Family Law
He told me what could be worse is if he killed all of us, and then he said actually worse than that, if he killed the children and not me so that I would have to live without them.
– Amy Castillo Footnote #1 content: Letter from Amy Castillo to Chairman Vallario and Members of the House Judiciary Comm. (Feb. 25, 2010), https://www.washingtonpost.com/wp-srv/metro/pdf/HB_700_Testimony_Amy_Castillo.pdf [https://perma.cc/2YH9-AW3P]. This Article contains several narratives illustrating real cases of family abuse and domestic violence.
The court-appointed evaluator and Maryland family court judge who heard her case did not believe Dr. Amy Castillo’s report of her husband’s words or did not take them seriously. When Dr. Castillo refused to turn the children over for court-ordered visitation with their father, she was held in contempt and jailed. Footnote #2 content: See Nicole Fuller & Arin Gencer, Court Records Document Separated Couple’s Tumultuous Relationship, BALT. SUN (Apr. 1, 2008, 12:00 AM), https://www.baltimoresun.com/news/bs-xpm-2008- 04-01-0804010099-story.html. Months later, having learned her lesson, she let them go with their father and on March 29, 2008, he drowned Anthony (six), Austin (four), and Athena (two) in the bath-tub, one at a time, in the hotel room he used for the visit. Footnote #3 content: See id. For additional examples of child murders facilitated in part by court-ordered access, see Laurie Udesky, U.S. Divorce Child Murder Data, CTR. FOR JUD. EXCELLENCE, https://centerfor judicialexcellence.org/cje-projects-initiatives/child-murder-data/ [https://perma.cc/VKV3-JMVX] (last visited Feb. 14, 2022) (listing 111 “[p]reventable [h]omicides” in which courts were asked to restrict a parent’s access but refused).
The court’s dismissive response to Dr. Castillo’s desperate warning was, sadly, quite typical. Over the past several decades a critical mass of scholarship, research, and social media has described the plight of mothers seeking to keep their children safe from an abusive father in family courts that respond with rejection and hostility, often reversing custody to the alleged abuser. Footnote #4 content: See infra Part I. In particular, the literature has condemned courts’ use of the controversial concept of parental alienation Footnote #5 content: Parental alienation lacks a singular definition but is understood as toxic behavior by a parent to undermine the children’s relationship with the other parent. It is often invoked when children resist contact with a (usually noncustodial) parent. See infra Part IV. to dismiss mothers’ abuse allegations. This qualitative literature has been ignored or marginalized by leading mainstream family law scholars and family court professionals. While the reasons for this marginalization are complex and partially unintentional, this Article is a call to bring family violence in from the margins of judicial, policy, and academic attention. That call is grounded in new empirical data from the first-ever quantitative national analysis of family court practices—data that empirically validate the reports and grievances of thousands of parents (mostly mothers) and children in the United States. Footnote #6 content: For documentation of the data, see SEAN DICKSON, FAMILY COURT OUTCOMES STUDY, STATISTICAL OUTPUT (2021), https://mfr.osf.io/render?url=https://osf.io/sn3mf/?direct%26mode=render %26action=download%26mode=render [https://perma.cc/C575-27AH].
It is no secret within the family law world that family courts idealize shared parenting and prioritize it in custody determinations, but the degree to which the shared parenting ideal undermines consideration of family violence has not been widely recognized. Rather, family law, in both theory and practice, treats domestic violence and child abuse as exceptions to the norm and such allegations as often illegitimate despite longstanding empirical evidence suggesting abuse histories are common in custody cases. Footnote #7 content: Regarding rates of abuse allegations in custody cases and nonlitigating families, see infra Part I. Some might argue that because the Study’s data reflect only judicial decisions, the Study has limited significance because only approximately 5% of filed custody cases are ultimately decided by a judge. See ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY 150 tbl.7.5 (1992). For an explanation of why this Article—and this dataset—is pertinent to most contested cases, including those that settle out of court, see infra note 197. This theoretical and practical marginalization of family violence in law fuels and reinforces custody courts’ denials of abuse and disfavoring of mothers who report it. This critique has been amply articulated in the domestic violence scholarship and literature but absent from mainstream family law scholarship.
This Article argues that domestic violence and child maltreatment (together termed “family violence”) need to be brought in from the margins of family law discourse to change the profession’s systemic denials of the risks many children face from an abusive parent. The argument is supported by new empirical evidence validating the critiques of the domestic violence field and emphasizing the cognitive dissonance between the field’s critiques of family courts and mainstream family law and scholarship.
This Article then turns to the question the data raise: Why are mothers’ claims of abuse so widely denied in court? In addition to recognized explanations such as courts’ emphasis on shared parenting, gender bias, and misconceptions about abuse, it suggests another less recognized contributor—unconscious psychological denial, also referred to as unconscious denial or psychological denial. Only unconscious denial can adequately explain the illogical and counterfactual court decisions sometimes issued even by respected judges.
Finally, this Article urges changes in both the theory and practice of family law. It proposes two new modifications to custody statutes designed to counteract the types of reasoning and practices that fuel denial of credible abuse claims, in particular, parental alienation theory. It also urges scholars and law professors to support the integration of the realities of family violence into family law scholarship and practice. As trainers and mentors of new family law professionals and significant contributors to shaping both the law and judicial practice, family law scholars have power to help turn the tide of destructive family court outcomes.
Part I below draws from a case narrative, extensive scholarship, and social media reports to depict family courts’ common rejections of mothers’ evidence of family violence. It then presents the author’s data from the first-ever national, empirical study of family court cases involving abuse and parental alienation claims (the “Study,” “Family Court Outcomes Study,” or “FCO Study”). Footnote #8 content: The majority of the data included herein have not previously been published. However, a final summary overview containing all findings to date was prepared for the funder. See Joan S. Meier, Sean Dickson, Chris O’Sullivan, Leora Rosen & Jeffrey Hayes, Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations (Geo. Wash. Univ. L. Sch., Working Paper No. 2019-56, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3448062 [https://perma.cc/D7C2-TQFL]. A portion of the Study’s findings related to alienation have been published in Joan S. Meier, U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations: What Do the Data Show?, 42 J. SOC. WELFARE & FAM. L. 92 (2020). The Study’s findings confirm that family courts reject mothers’ allegations of abuse by fathers at high rates and frequently remove mothers’ custody, thus validating the domestic violence critical narratives and scholarship.
Part II describes the marginalization of family violence within mainstream family law and leading family law scholarship. Both statutory frameworks and leading family law scholars idealize shared custody in ways that necessarily minimize and demote family violence concerns. Moreover, high-profile scholarship on child custody and family courts either neglect family violence altogether or reflect fundamental misconceptions about courts’ responses to women and children’s allegations of abuse.
Part III contrasts the widespread denial of family violence in family courts with the palpable shift toward greater societal recognition of men’s abuse of women employees catalyzed by the #MeToo movement. Other scholars have suggested a number of causes for courts’ and practitioners’ rejection of mothers’ abuse claims; this Article explores a less visible and potentially more fundamental cause—the phenomenon of psychological denial. Individual and societal denial of many humanly inflicted traumas, including not only violence against women and children but also political and war traumas, have been explicated in significant social science research. Footnote #9 content: See JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY 20–21, 28–32 (1997) (analogizing society’s early refusal to recognize and compassionately treat “shell shock” to society’s cyclical denial of the “war between the sexes”). Western society at large has recently begun to shed the denial of men’s sexual abuse in employment as a result of the #MeToo movement, although the implications of this new awareness remain highly contested even in the employment context. Footnote #10 content: See, e.g., Jane Mayer, The Case of Al Franken: A Close Look at the Accusation Against the Former Senator, NEW YORKER (July 22, 2019), https://www.newyorker.com/magazine/2019/07/29/the- case-of-al-franken (quoting lawyer Debra Katz as stating: “All offensive behavior should be addressed, but not all offensive behavior warrants the most severe sanction”). In the family courts, where—unlike non-legal settings —both the facts and consequences must be authoritatively decided, the cumulative forces favoring denial of family abuse still deter many courts from validating and acting on the implications of women and children’s abuse claims.
Part IV then elaborates on the “machinery” of courts’ denial, the widely accepted, quasi-scientific notion of parental alienation (PA). The PA concept invites courts to view mothers’ abuse allegations as a product, at best, of mothers’ pathology or excessive “gatekeeping” toward ex-partners they no longer love or trust and at worst, of mothers’ malice and vengeance. Without directly ruling out or confirming abuse, PA thinking deflects courts’ attention away from women’s and children’s abuse allegations and encourages courts to essentially shoot the messenger. Despite the known lack of scientific support for key tenets of PA theory, judicial trainings on it are ubiquitous, family court conferences feature it, an extensive literature extolls it, and it permeates family court litigation. And even where PA is not explicitly invoked, the ideology reinforces family court culture’s reification of shared parenting while promoting punitive responses toward women who impede this goal by alleging abuse. The use and power of PA to fuel the rejection of abuse claims is now empirically proven by the Study’s findings that fathers’ crossclaims of PA virtually double the rates at which courts deny mothers’ abuse claims and remove custody of their children.
Finally, Part V calls for a two-tiered legislative response and a new academic synthesis. First, laws governing custody should ensure that PA is cabined so it cannot be used to short-circuit abuse investigations and brush aside children’s reported experiences and feelings. While courts must remain free to reject the truth of any abuse allegations, PA is not a scientifically legitimate tool for that purpose, and it is framed and used in a manner that cements preexisting predilections toward disbelief of women and children’s claims of abuse. Second, the law needs to change courts’ zero-sum approach to abuse allegations, that is, the presumption that “if it is not proven true, then it is false.” Given that not all true abuse (particularly child sexual abuse) is easily proven, and given the human tendency toward avoidance of such painful realities, the law should recognize the need for—and require courts to employ—a nuanced response in situations of indeterminacy. Footnote #11 content: For explication of what a nuanced response would entail, see infra Part V. I am grateful to June Carbone for emphasizing this idea in our early discussions.
The Article closes with a plea to the family law academy to bring family violence in from the margins of scholarly research and theorizing to ensure that both scholars and students learn the realities of family court adjudications of cases involving abuse and are prepared for the battles ahead.
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