Documenting court abuses

NOT LONG AFTER Clarke’s story was published, the California National Organization for Women (NOW) drafted a friend-of-the-court brief urging California appellate judges to review Clarke’s case, as did the Washington, DC–based legal-watchdog group Judicial Watch. (Her case has attracted an impressive list of notables from the mental-health and legal fields. Among the dozens who submitted letters this year urging the California Supreme Court to review the custody dispute were University of Southern California law professor Susan Estrich, National NOW president Kim Gandy, and former American Psychiatric Association president Paul Fink.) After NOW’s brief was reported in the press, the organization, like Clarke, began receiving e-mails and phone calls from women nationwide describing similar problems. The vast majority of these women, says Rachel Allan of California NOW, had lost custody to husbands or boyfriends believed to be sexually abusing their children. In response to the stories, the group launched a three-year effort to examine the problems women face in California’s family courts. In 2001, the organization posted a 21-page questionnaire on its Web page. Feedback was overwhelming, Allan says; the group received detailed responses from women in every region in the country, including Massachusetts. "Women had expected to find a family-friendly venue [in family court] to make arrangements on divorce and custody," she explains, "but they found something quite different."

Last June, after surveying 300 California mothers who had participated in the questionnaire and conducting follow-up interviews, NOW released a 134-page report on the state of the family courts in California. Not intended as a neutral analysis, the document portrays a system that’s "crippled, incompetent, and corrupt" and riddled with abuses against women. Women reported being openly insulted and called "sexist names" by judges, GALs, and court evaluators. Some complained that judges silenced them during hearings while allowing their estranged partners to speak. Others complained that judges refused to let them call their own expert witnesses who’d analyzed forensic evidence in their cases or even to let women testify in custody disputes that would affect their own children. Evaluators and GALs often sided with the fathers and their attorneys, especially when spousal or child abuse arose.

The NOW report found that the most serious problems occurred in custody litigation involving allegations of domestic violence; in 76 percent of the cases surveyed, the fathers were accused of having physically or sexually abused their children. In 50 percent of these cases, the abuse was substantiated with police reports. In 30 percent, court-issued restraining orders had been directed against the fathers. Yet when mothers raised allegations of child abuse in disputes, fathers won sole or joint custody 69 percent of the time. Family-court judges did not permit evidence of the father’s child abuse to be heard in 73 percent of these cases, even though blocking such evidence from court proceedings violates due-process rights. Allan and her colleagues repeatedly found that judges had disregarded compelling evidence of child sexual abuse. Some judges deemed such material irrelevant because of earlier rulings or similar technicalities. Others flouted the rules altogether. "I’ve been in a family court where the judge openly proclaimed, ‘I don’t care what the law says. This is my courtroom,’" Allan says. "In so many cases, judges just ignored the evidence of abuse and the word of children themselves."

Massachusetts hasn’t escaped these problems. Last November, the Wellesley Centers for Women, at Wellesley College, issued a sharp critique of the Massachusetts family-court system as part of a three-year research effort known as the Battered Women’s Testimony Project (BWTP). The November 25 report, "Battered Mothers Speak Out," stems from interviews with 40 women from across the state — all of whom had suffered physical, emotional, or psychological abuse during their marriages — and 45 victims’ advocates, judges, and other courtroom personnel. The study found that officials who work at nearly every family court in the Commonwealth regularly commit what the report described as "human-rights violations" against battered mothers. Women complained about a host of offenses: how court personnel labeled them hysterical and unreasonable; treated them with scorn, condescension, and disrespect; failed to give them a chance to be heard in court; and denied them access to sensitive investigations and documents pertinent to their custody disputes.

Fifteen of the 40 women interviewed said their ex-partners retained sole or joint custody of the children — even though all 15 men reportedly abused both their ex-wives and their children. Eighteen complained that judges or family-service officers granted or recommended that abusive fathers get unsupervised visitation with their children. When it came to allegations of spousal or child abuse, 38 women said judges, family-service officers, and GALs had ignored or minimized their claims. Nine of the 40 women said judges and GALs failed to investigate allegations of physical and sexual abuse. And six of the 40 women said that judges and GALs refused to take into account documented evidence of child abuse when deciding their custody disputes. The Wellesley report concluded that family courts across Massachusetts are systematically failing to protect battered women and their children from further harm. As Carrie Cuthbert, one of the report’s five authors and co-director of the Wellesley Centers’ Women’s Rights Network, explains, "Not only is the safety and well-being of mothers and children at stake, but so is battered mothers’ trust in our family courts." Within the community of battered women and their advocates, she continues, "the family courts have gained a reputation as a place where women don’t find justice."

Not surprisingly, Massachusetts family-court judges disagree. They condemn the 106-page Wellesley report as skewed because it relies solely on testimony from women with complaints about custody decisions, not those satisfied with their rulings. "It is incomplete and flawed in its methodology," states Sean Dunphy, the chief justice of the Massachusetts family and probate courts. He maintains that the report’s approach, which frames the 40 women’s accounts in the context of human-rights violations, "may work well for systems in Third World countries, but not for a court in the United States." He and other judges argue that the women’s testimony would have been strengthened if it had been verified by a review of court transcripts and by interviews with lawyers in the cases. (In fact, the Wellesley report’s authors fact-checked 10 of the 40 stories with court records and other documentation. "In every one, we found the documents thoroughly supported the women’s statements," says Lundy Bancroft, a report author.)

Nevertheless, Dunphy finds the claim that the state’s family courts aren’t working to be a "broad-brushed statement." It concerns him, however, "that individuals would have such perceptions and beliefs." Jeremy Stahlin, associate justice at the Suffolk County Probate and Family Court, concedes that if the complaints outlined in the report were true, "then, yes, it’s a problem." But he also concludes: "I don’t think the court is predominantly favoring one side or the other in these custody cases, and I find that hard to accept as a premise."

Complaints about faulty methodology strike advocates as a convenient way to deflect attention from the issues laid out in the controversial reports. That so many women across the state reported strikingly similar accounts should, in and of itself, be cause for alarm, Bancroft says, noting, "It’s shocking that 40 women who don’t know each other would offer the same complaints about the family courts." He adds, "The family court’s current response to custody disputes, particularly those that involve child-abuse allegations, is repeatedly failing to protect children."