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The anecdotes in this story are from interviews with women who have encountered the family court system, though names have been changed and specific details have been omitted to protect their identities.

 

“Run,” her friends told her.

“It’s better to beg forgiveness than ask permission.”

But Tara’s pro bono lawyer gave her very different advice.

“If you run, the judge could take it as a personal slight. He’ll likely give your ex full custody.”

She went on to tell Tara horror stories of past clients in a similar situation. Women running from their violent exes, trying to protect their children.

One story in particular stuck out.

This lawyer’s client had been isolated by her abuser up North, away from her friends, family and social network in the South. The relationship wasn’t good, but when baby came along things got worse.

When it got to be too much, she did exactly what Tara’s friends had told her to do. She ran back to the people who cared about her. She assumed that living in another state, in another jurisdiction, would protect her from any legal battles with her ex. That she’d finally be out of his reach.

But this wasn’t the case. She was forced by the courts to bring the baby — who she was still breastfeeding — back for a custody trial. The older, male judge was enraged that she had tried to evade his authority. Despite video evidence of the abuse, he gave the father primary custody. If the mother wanted to be in her child’s life at all, she’d have to stay local. She couldn’t resume residency with her friends and family back in the South across state lines.

This, according to Tara’s lawyer, was how family court worked more often than not. While there were one or two local judges who had a full understanding of domestic violence and how to ethically handle the dynamics these cases presented, most did not. Qualifications like that were not required. These were elected positions, and hardly anyone was elected on their propensity to protect women and children.

While the judge assigned to Tara’s case was not the worst, he was not the best, either. The act of running had the potential to make things worse. She’s still carefully navigating the circumstances, aware that her situation is unacceptable, but hindered by the system that threatens to harm her rather than protect her.

How America’s family courts perpetuate violence against women

Tara’s circumstance is not exceptional. Unfortunately, it’s more of the norm. While it might surprise you to hear that America’s family courts further violence against women rather than protecting them and their children, understanding why and how this happens may make you more sensitive to understanding why women don’t always just ‘run.’

In many circumstances, it’s because they can’t.

A history of PAS results in America’s family courts placing children in harm’s way

Richard Garner, someone who put himself forth as a psychologist, launched the concept of Parental Alienation Syndrome (PAS) in the 1980s. Despite not being scientifically proven, it was accepted and embraced by the vast majority of judges in America’s family court systems.

PAS says that when there’s a highly-contested custody battle (which abusers tend to engage in,) one of the parents tries to alienate the other parent by feeding the child ‘lies’. The child then repeats those lies, painting the ‘alienated’ parent as an abuser.

PAS is largely considered to be a disproven, harmful theory by those who work in mental health. In fact, despite several attempts, it never even made it into the DSM. But it still plays a large role in the minds of family court judges.

To this day, you’ll hear a lot of rhetoric around how terribly fathers are treated in the family court system, but that rhetoric doesn’t bear out when we look at the numbers. In the 2019 paper, Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, GW Law scholars found the following results:

• Women’s claims of abuse are believed by the courts only 41% of the time. That’s less than half.
• Even when courts do believe the mother, 13% of the time the courts still remove custody from the protective mother and give it to the abusive father.
• When a mother alleges multiple types of abuse, it actually increases the odds that the father will get custody. This happens in 50% of cases where the mother claims multiple types of abuse.
• The numbers get worse when a father cross-claims alienation. In 64% of cases when alienation is claimed and the mother has alleged multiple types of abuse, the courts side with the father, removing custody from the mother. If the courts go further and credit the alienation claim, that number jumps up to an incredible 100% of removal of maternal custody. Remember, PAS is not a real thing.
• When fathers attempt to use PAS in court across any type of scenario (even those where abuse was not a part of the equation), the courts take custody away from the mother 44% of the time. When the gender roles are reversed and women attempt to claim alienation in court, the father only loses custody 28% of the time.

Shared custody is preferential to safety in America’s family court system

Shared parenting is the model that’s viewed as largely preferable in America’s family court systems.

This is extremely problematic, as shared parenting opens up the ability for an abusive parent to maintain and often accelerate coercive control. The Center for Judicial Excellence recommends reducing the emphasis on shared parenting in cases of domestic violence in its 2023 report, specifically because this emphasis contributes to preventable child murders.

This same report notes that more often than not, multiple types of abuse co-occur. Intimate partner violence (IPV), for example, is often occurring alongside child abuse by the same abuser.

When we think back to the custody outcomes for mothers claiming multiple types of abuse from the GW Law study, this is more than problematic.

Protective mothers are likely to claim multiple types of abuse if they’re being fully transparent about the situation at hand, and when they do so, they’re more likely to lose custody of their children.

Related: What You Need to Know About Child Support and Welfare

Economic abuse is magnified when protective mothers can’t flee

Let’s go back to the story that stopped Tara in her tracks. The mother who, because she had given birth and wanted to stay with and protect her child, no longer had the freedom to live where she chose of her own accord.

Economic abuse occurs in 94% to 99% of all domestic violence cases. When protective mothers are forced to regularly interact or subject their children to interactions with an abusive parent, the economic abuse is likely to continue, as well. Physical distance would help, but it’s not permitted.

This also puts the protective mother in a type of geographic cell she can’t leave. If she has a career opportunity, an educational opportunity or any other type of opportunity that could improve her financial standing but would require relocation, she’s unlikely to be able to pursue it. That’s because in order to take her child with her she’d need to either:

• Get permission from the abusive parent outside of court, which is unlikely to happen.
• Pursue permission from the court to take the child with her as she pursues opportunity, which is unlikely to happen with courts’ preference for shared parenting arrangements and propensity to dismiss abuse claims.

The latter is often not a viable option particularly because protective mothers often don’t have the financial resources to fight abusive fathers in court.

While you can find pro bono legal services in some areas of the country, it’s not a legal right in family court like it is in criminal court. And when pro bono lawyers are available, their case load often means you won’t get as much attention as you would if you had the funds to hire legal representation on your own.

How can America change?

This piece does not aim to pose solutions for individual protective mothers. You need to get individualized, local help from domestic violence organizations who can provide you with further resources. The burden to change America is not on you. You’re already dealing with enough.

But for the rest of society, how can we fix our systems? It’s no easy task, but there are ways citizens can engage to potentially make things better.

Changing the discourse

Did those numbers showing the bias against women in family court surprise you?

Talk about it.

A lot of our cultural norms are informed by the conversations we have everyday. The more we are able to challenge false rhetoric through constructive communication, the more likely both public opinion and public policy are to change.

Be mindful with your vote

Just because someone has your preferred political party next to their name on a ballot doesn’t mean they’ll be a good family court judge. Research who is running, what their experience is with domestic violence and their overall attitudes towards women. The more trauma-informed people we have sitting in the judge’s seat in family courts, the better outcomes we might expect.

If you happen to see a ballot measure that would require more domestic violence training for judges and magistrates, support it after researching it. You can also ask around to see if there are any state or local organizations working to get such a requirement passed, lending your support to the effort.

 

Domestic Violence Awareness Month 2024