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Conditions of abuse (Continued)

BY KRISTEN LOMBARDI

Additional reading

"A Little Girl’s Hell," a detailed account by Susan Goldsmith of Idelle Clarke’s custody battle, published in the now-defunct Los Angeles New Times. Available online at http://home.earthlink.net/~idelc.

Small Justice, Little Justice, Boston University film professor Garland Waller’s disturbing documentary about how the nation’s family courts fail to protect women and their children. Order it online at www.smalljustice.com or by calling (800) 553-8336.

"Girl, Interrupted," a blockbuster SF Weekly article by Bernice Yeung on the case of Alanna Krause, a 19-year-old who’s suing her child therapist, her guardian ad Litem, and her father for the childhood abuse that she endured after her father won custody of her. Read it online at www.sfweekly.com.

"Misdiagnosis," an insightful article by David S. Bernstein, published in CommonWealth magazine, on the lack of doctors trained to diagnosis child sexual abuse in Massachusetts. Find the story online at www.massinc.org.

United for Justice, a grassroots group of mothers who’ve lost custody of their children in the family courts and their supporters, with a Web site at www.unitedforjustice.org.

Justice for Children, a Houston-based child-advocacy organization that offers legal aid to abused children and promotes children’s rights, with a Web site at www.jfcadvocacy.org.

Leadership Council for Mental Health, Justice, and the Media, a Bala Cynwyd, Pennsylvania–based organization of mental-health, legal, and public-policy scholars dedicated to correcting the misuse of psychological science to further victimize abused and neglected children. View its Web site at www.leadershipcouncil.org.

"Family Court Report 2002," California NOW’s 134-page survey on the state of the family courts in California. Access the entire report online at the organization’s Web site, www.canow.org/fam.html.

"Battered Mothers Speak Out," a human-rights report on domestic violence and child custody in the Massachusetts family courts, by the Wellesley Centers for Women. Download it at the center’s Web site, www.wcwonline.org.

— KL

THE NOTORIOUS Fells Acres day-care and McMartin preschool child-sexual-abuse cases have left behind a terrible legacy: That same year, Karen Henderson of the Cleveland Plain Dealer reported on problems in her diocese and beyond. Yet it wasn’t until 2002, when the details of sexual abuse by scores of clergy within the Boston archdiocese were made public, that enough people believed the charges, victims could credibly demand their abusers be held accountable, and law-enforcement and court authorities would finally listen.

So it should come as no surprise that family-court officials often disbelieve charges of child sex abuse — even though few sex-abuse allegations ever turn out to be patently false. Kathleen Coulborn Faller, a professor of social work at the University of Michigan, in Ann Arbor, has done extensive research into child-sex-abuse allegations in custody cases and has found that 70 percent of these allegations were indeed true. Of the other 30 percent, she reports, very few involved parents maliciously conjuring up bogus charges — only 10 out of 215 cases fit that description. Even that number seems inflated, given that four of the 10 cases involved one father who Faller says "admitted that he had filed false child-abuse reports ... to obtain greater access to his daughter." Thus, the data, she says, "thoroughly debunks the myth that false allegations are rampant in custody disputes."

Even so, the myth persists. Combine that with gender bias — after all, most claims of abuse are made by women against their ex-husbands or former boyfriends — and you have situations in which mothers find it very difficult to get their claims taken seriously. Eileen King, director of the Washington, DC, office of Justice for Children, a national child-advocacy group, has worked on roughly 100 custody cases involving child-abuse allegations in many states over the past two years, and has seen how gender discrimination comes into play. If a mother who suspects molestation appears distraught in the courtroom (which seems only natural when dealing with the horror of hearing a child say, "Daddy puts his pee-pee in my pee-pee") she often gets slapped with the "hysterical" label. If she appears composed, the label is "cold and calculated." Mothers, King observes, "are often put into no-win situations."

Gender bias against mothers, combined with a culture resistant to believing fathers molest their children, has made for a potent mix, giving rise to a bogus mental disorder called "parental-alienation syndrome" (PAS) that is frequently employed by alleged sex abusers in their custody battles. Essentially, PAS involves brainwashing a child to allege molestation. The syndrome, according to the theory, afflicts mostly "vindictive mothers" who "program" their kids to fabricate claims so they’ll have an advantage in litigation. The brainchild of Richard Gardner, a psychiatrist affiliated with Columbia University (who believes that up to 90 percent of all child-sex-abuse allegations are false), PAS has been referenced in courtrooms in Massachusetts and across the country, even though it’s widely discredited by mainstream mental-health professionals.

Since 1987, when Gardner first coined the phrase "parental-alienation syndrome," he has provided no scientific data to support it. Most of his 140 or so articles on the subject have not appeared in peer-reviewed medical journals, which require evaluation of articles by fellow professionals before publication. The American Psychiatric Association has not included PAS in its diagnostic manual of certifiable disorders. "It is a non-syndrome," explains Robert Geffner, a psychologist who has evaluated child-sex-abuse allegations in family-court litigation for 20 years and who established the Family Violence and Sexual Assault Institute, in San Diego. "PAS [is] no medical diagnosis whatsoever. You cannot confirm a syndrome simply by stating that it exists."

Nevertheless, Gardner’s PAS theory is widely accepted in a legal system seeking neat, convenient ways to get rid of time-consuming custody battles. A prolific writer, Gardner has self-published hundreds of books, audiotapes, and videotapes and has lugged them across the globe to train family-court judges, GALs, and psychologists on how to recognize PAS. "People believe him," Faller says. "The idea of an alienating parent has taken on a life of its own." His teachings have become so thoroughly integrated into the language of family law that mothers almost always face a variation on them in court: a mother who alleges abuse is crazy, for instance; or she coaches the kids; or she is crazy and coaches the kids. As King, of Justice for Children, explains, "No one has to cite ‘PAS’ anymore. They say the mother is ‘delusional,’ or that she is ‘destroying the relationship’ with the father. It’s the most common defense in these cases." Or, as Suffolk family judge Stahlin says, "It’s very common for one parent to say the other is ‘alienating’ or ‘coaching’ the child. Often, it’s the only explanation that the accused can come up with for why the child is saying what he’s saying." Indeed, Gardner’s influence has become so entrenched nowadays that the Massachusetts Citizens for Children, a statewide child-advocacy group based in Waltham, organized an October 2002 conference — attended by just six family-court judges, including Dunphy and Stahlin — meant to counteract the negative impact of PAS-like defenses.

For all too often, the language of PAS works. Kelly Fink, one of the 40 women who participated in the recent Wellesley report, knows firsthand the shame and humiliation of being labeled crazy and a brainwasher by family-court officials. The 39-year-old nurse and Natick resident comes across as a formidable personality — she’s smart, articulate, and persuasive. Yet her five-year custody battle at Middlesex Probate and Family Court — during which she criticized judges, GALs, and doctors for how they handled her allegations — ended last August when she lost custody of her school-aged daughter to the man whom she has repeatedly accused of child molestation. The experience has left Fink convinced that, in her words, "the family courts aren’t at all interested in protecting innocent children."

Fink’s custody battle dates back to summer 1997, when she filed to divorce her then-husband, Jonathan Meier, a 37-year-old engineer and Massachusetts resident. Their marriage, Fink says, was an unhappy, abusive relationship that deteriorated for good soon after the birth of the couple’s daughter, Melissa (not her real name). After a bitter divorce trial in January 1999, Fink was awarded full custody of Melissa. And due to allegations of emotional and physical abuse that Fink lodged against her ex-husband — including charges that he had bruised Melissa’s leg as a baby — Meier got only supervised visitation. Gradually, though, as he received positive marks from a supervisor who monitored visits, Meier was allowed to spend unsupervised time with his daughter.

It wasn’t long after the court loosened the stringent visitation provisions that Fink began to suspect Meier was abusing Melissa. In October 1999, Melissa, then two, returned from a visit with her father and, several days later, complained that, as Fink recalls, "her bottom hurt her." Fink took her daughter to a doctor, who diagnosed the little girl with bloody, superficial cuts and tears around the vulva. The doctor didn’t consider the injuries particularly revealing, though child-abuse experts like Children’s Hospital’s Newberger say such physical injuries on a toddler "exclude any benign or accidental cause." Yet something the girl said gave the doctor pause. During the genital examination, according to court records, the toddler told the doctor, "Don’t put your fingers inside."

Taken aback, the doctor asked Melissa if anyone else ever did such a thing.

Melissa, court records show, replied, "Dad did, I do."

Concerned, the doctor filed a report of suspected child abuse with the state DSS. When the agency receives these reports, known as "51-As," says DSS spokesperson Michael MacCormack, it "screens" them to see if they warrant investigation. In this case, the DSS called the GAL assigned to represent Melissa at the time. But the agency then screened out the doctor’s report according to department regulations — something that happens more often than you might think. In 2001, for example, DSS received 64,304 reports of suspected child abuse and neglect. Of those, it instantly threw out 21,828 because, MacCormack explains, "They did not meet our criteria." Either the child wasn’t in immediate danger, he says, or the alleged abuser wasn’t a primary caretaker. In the courtroom, the agency’s unwillingness to investigate child sexual abuse helped cement the idea that Fink’s allegations were nothing but "distortions" and possible "delusions." A court-ordered evaluation into the claims concluded that, according to documents, "There is no data ... to indicate that [the child] has been sexually abused by anyone." And so, the unsupervised visits were allowed to continue.

More than a year later, Fink voiced concerns about abuse again. This time, in April 2001, Melissa, who was now four years old, returned from a visit with her father appearing upset. When Fink asked what was wrong, her daughter told her that "her bottom hurt." The girl’s genitals, Fink says, looked red and raw. So Fink called the girl’s GAL, who reminded Fink about "problems with past allegations," as stated in court records. Fink did the only thing she could think to do: she brought her daughter to Children’s Hospital. Melissa’s diagnosis of a "perineal rash" does not specify abuse. But while the doctor was examining Melissa, court records (and an audiotape of the examination provided to the Phoenix) reveal she blurted out to her mother: "That’s where Daddy touches me."

Melissa’s comment set off a chain reaction. The hospital performed a rape-kit exam and filed a 51-A report with the DSS. The department, in turn, performed a two-month investigation, interviewing Melissa, her parents, and others. In the end, however, the department did not support a finding of sexual abuse — because, as court documents show, Melissa did not make "specific definitive disclosures" about being abused. It was one of 16,637 cases in 2001 where DSS did not substantiate suspected abuse or neglect. In accordance with agency guidelines, the DSS referred the case to the Middlesex County District Attorney’s Office, which opened a criminal investigation. State prosecutors discovered that Melissa’s rape-kit exam had yielded traces of DNA from "saliva" on swabs taken from the girl’s genital area. The presence of saliva doesn’t prove molestation; indeed, it could have come from Melissa’s own fingers. Court records show that prosecutors convened a November 2001 grand jury and issued a subpoena ordering Meier to provide a DNA sample, which he did in February 2002. But they’ve since told Fink that the DNA from the rape kit turned out to be too small for testing. In other words, it’s still not known whose DNA matches the rape-kit sample. The Middlesex DA, through its spokesperson Seth Horowitz, declined to comment on the specifics of the criminal investigation except to say that the office "had no positive forensic evidence" at this time.

Her daughter’s disclosures prompted Fink to ask Middlesex family court to issue a no-contact order against her ex-husband and to review the visitation set-up. She filed the motion on April 27, 2001. On July 12, 2001, Meier filed a counter-motion seeking full custody of Melissa. Meier did not return a phone call from the Phoenix seeking comment. Through his Newton attorney, Lisa Marino, he declined to comment on the case. Marino offered this statement: "My client understands the importance of abuse allegations and has always taken them seriously. However, in this case, the allegations are not true." In court records, Meier has repeatedly denied that he’s ever harmed his daughter. He has claimed that his ex-wife has made "false allegations" against him and has "physically and emotionally" harmed his daughter by subjecting her to repeated sex-abuse investigations that fail to yield any evidence.

In February 2002, Middlesex Probate and Family Court associate justice Beverly Weinger Boorstein presided over the couple’s second custody trial on the new appeals. During the three-day trial, as many as 14 witnesses were called to testify. Yet according to trial transcripts, the court heard far more testimony about the mother’s mental health and parental fitness than about physical evidence of child sexual abuse. At the end of trial, Fink says, Boorstein requested that she bring her daughter to court so the judge could meet her. When Fink showed up at the courthouse on February 27, 2002, she says, the judge offered her an ultimatum. "She said if I voluntarily gave up my no-contact order, she’d allow me to retain full custody," Fink recalls. "I told her I wouldn’t do that." Fink’s comments are echoed by her partner, Jason Morse, who accompanied Fink into the judge’s chambers that day. (Fink filed a February 28, 2002, complaint about Boorstein with the Commission on Judicial Conduct, whose investigation confirmed the events at the February 27 meeting yet absolved Boorstein of misconduct.) On March 5, 2002, Boorstein awarded joint physical custody to Fink and Meier. But five months later, she reversed her order and stripped Fink of custody. Fink, the judge ruled, could only see her daughter twice a week, under strict supervision. In the August 5, 2002, ruling — an exhaustive, 28-page summary of the case — Boorstein casts Fink, who suffers from post-traumatic-stress disorder, as a delusional woman whose sex-abuse allegations are false beliefs unsupported by the evidence. Boorstein declined to comment on the case for this article. In her ruling, she states that the "mother’s mental state and her resulting actions will destroy [Melissa’s] relationship with her father and continue to have a negative effect on [Melissa’s] emotional and mental development."

Fink, who’s appealing Boorstein’s decision, holds a different view: "I feel like she reversed custody just to punish me" for filing a complaint against her with the Commission on Judicial Conduct. Though Fink acknowledges that the judge’s findings deal a severe blow to her credibility, she attributes the punitive judgment to "an effort to psychologically slam me and debilitate me so that I will shut up." Fink — who attended a battered women’s testimonial at the State House in May 2002, at which dozens of mothers spoke out about problems in Massachusetts family courts — says her experience fits a shockingly similar pattern in custody cases involving child sexual abuse. As she describes it: "It’s [to] pathologize the moms and turn attention away from the kids."

A threat from the judge

PARENTAL-ALIENATION syndrome also popped up in Jean Johnson’s battle with her ex-husband for custody of their daughter. Johnson (who asked that her real name and other names associated with the case not be used for fear of retaliation by the judge who presided over her custody litigation) believes that recognition of the syndrome pervaded her three-year battle in Plymouth Probate and Family Court for custody of her daughter Julia. Unlike Fink, Johnson, a 40-year-old attorney and Plymouth resident, won custody of her child. But her ex-husband, a man who the Massachusetts DSS insists assaulted the couple’s six-year-old daughter, was awarded unsupervised visitation rights. And the March 2002 decision makes it clear that this arrangement will end if Johnson tries "to alienate the child from the Father" again. In other words, as she says, "I could lose my daughter at any time." Throughout these cases, Johnson adds, family-court personnel try to reason "around the abuse and turn it against you."

Johnson filed for divorce in fall of 1999. Within months of the filing, she says, her daughter seemed strange after visits with her father. One time, Julia, who was just three years old, asked her mother if she knew about the "woo-woo game" that she played with her father. When Johnson asked what the game entailed, her daughter explained that "you take off your clothes" and "Daddy sticks them up my bum," according to court records. Another time, Johnson walked into Julia’s bedroom to find the little girl standing before a mirror squeezing her nipples. Julia’s vagina and anus, Johnson noticed, looked swollen. Johnson took her daughter to a doctor, who chalked up the physical symptoms to stress. The doctor nevertheless filed a 51-A report with the state DSS, which didn’t make much of the sex-abuse allegations. After a 10-day investigation, during which Julia didn’t offer any incriminating details, the agency failed to substantiate abuse. Such a conclusion, explains DSS spokesperson Michael MacCormack, "means that we couldn’t find credible evidence to support allegations, such as a disclosure from the child." He then adds, "It may be more difficult than you’d expect to find credible evidence of child sexual abuse."

While the divorce and custody trial proceeded, however, the DSS was again pulled into the case. In April 2000, Julia’s therapist called the department to report that during a therapy session, the little girl had discussed the "woo-woo game" she had played with her father. This time, another 10-day investigation found Julia to be a telling witness. Her descriptions of the "woo-woo game," as well as the "beatle-bug game" and the "pajama game," are documented in court records as played when "taking off your clothes" and then "Daddy sticks them up my bum." As a result, the DSS concluded that Julia’s father was molesting her. Johnson’s ex-husband, a middle-aged scientist, has repeatedly denied the sex-abuse charges in court records.

By the time the couple’s divorce went to trial at Plymouth family court, in October 2001, the evidence against Johnson’s ex-husband seemed so credible that Johnson assumed that his attempt to gain custody "would go nowhere." The court, however, proved her wrong. According to court documents in the case, the Plymouth County judge issued a seemingly illogical ruling in March 2002 that shocks Johnson to this day. Not only did the judge downplay the DSS’s conclusions, but he assailed Julia’s therapist as "questionable." Thus the judge ruled that Johnson’s ex had not actually molested his daughter, and that Johnson had pushed the bogus charges "solely [in an] attempt to get back at the Father." The judge also warned that if Johnson "alienate[s]" Julia from her father, "a change in custody may be the only remaining action that can be taken by this Court to protect the child."

The decision has left Johnson, who’s filing an appeal, in disbelief. "I’m just devastated," she says. "I’ve been made to look like Mommy Dearest. I made up the allegations, and I harassed these professionals into investigating" the sex-abuse claims. She then offers, "All these social workers and therapists put their [professional] lives on the line just to make me happy? I don’t think so."

‘Which would you rather believe?’

ACCORDING TO a well-known 1994 national study of the incidence of child sexual abuse, one in five girls and one in 10 boys are molested before the age of 18 — and 70 percent of them are assaulted by their own fathers. These figures paint an ugly, uncomfortable picture. At the end of the day, it’s probably far easier for people — including judges, GALs, attorneys, and evaluators — to believe that spiteful women will fabricate child-sex-abuse allegations just to gain the upper hand in court.

"Which would you rather believe?" asks Elizabeth Clague, the Brockton attorney who is also representing Fink and Johnson in their appeals. When handling these custody disputes, she has heard family-court officers, judges, and her own colleagues dismiss sex-abuse charges as cases of "he said, she said." Clinging to this stalemate, Clague theorizes, makes their lives less painful, less complicated. "If you think all these women are sitting on their front stoops and conjuring up lies," she explains, "you can go home, flip on the television, and not have to worry about child sexual abuse."

As the studies by California NOW, Wellesley Centers for Women, and Neustein show, what happened to Clarke, Fitzpatrick, Fink, and Johnson occurs more often than you’d think. As Johnson notes, she simply assumed the courts would rule against someone the DSS had found to be a child molester. "I believed the family courts would listen to the facts and do the right thing because I had truth on my side," she says. "Who’d have thought that court [officials] would not acknowledge abuse and protect children?"

Kristen Lombardi can be reached at klombardi@phx.com

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Issue Date: January 9 - 16, 2003
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