Wednesday, January 20, 2010

Custodians of Abuse

Custodians of Abuse

by Kristen Lombardi

IF YOU'RE A PARENT, it’s your worst nightmare: finding out that your child is being molested — by your spouse. If you seek a divorce as a result, or are already going through one when you make the discovery, you hope that family court will do the right thing: grant you sole legal and physical custody of your child. In fact, you can’t even imagine that there could be any other outcome in the custody judgment. But for many parents — in nearly every instance, mothers — just the opposite occurs: the alleged abusers don’t just get unsupervised visitation rights, they get full custody. How can this happen?

Easy, say family-law attorneys, child-abuse advocates, and child-law specialists. Family courts aren’t equipped to adjudicate criminal matters. They exist to settle divorces, wills, adoptions, guardianships, and other matters related to litigation between family members.

Three recent studies that looked at the outcomes of custody disputes involving child-abuse claims — one study surveyed California courts, one surveyed Massachusetts courts, and a third tracked 300 cases over a 10-year period in courts throughout the country — all came to the same conclusion: the nation’s family courts are failing to protect children from abuse.

"Family courts are not in a position to litigate the complexities of child sexual abuse," explains Seth Goldstein, a Napa, California–based attorney who represents men and women in custody disputes involving child-sex-abuse charges. Goldstein, who also founded the Child Abuse Forensic Institute, in Napa, says that most family courts are "overburdened" with cases and don’t have time for the lengthy trials and investigations that child-abuse allegations demand. "In many family courts," he says, "you often have only one sitting judge to hear hundreds of matters that have to do with many, many things, so the courts are compelled to move things along as quickly as possible. The system is just not conducive to [dealing with] child abuse."

Colorado attorney Alan Rosenfeld, who specializes in representing parents in custody disputes involving child-abuse allegations and has counseled approximately 1000 mothers trying to protect their children from abusive ex-husbands, is blunt: "If we ever sat down to design the worst possible system that protects the smallest number of children, it would look a lot like the family courts look today."

Nearly 25 experts in custody litigation involving child-abuse claims were interviewed for this article. All had the same three complaints about family court — regardless of which state’s court system they were familiar with:

Family courts do not rely on criminal investigators to examine child-abuse claims. They rely on family advocates called guardians ad litem (GALs), whose charge is to investigate allegations of abuse, abandonment, and neglect and to represent the best interests of the children in disputed custody cases. More often than not, they are licensed psychologists or social workers. Sometimes, they are attorneys. They may be highly trained in their own areas of expertise, but that doesn’t qualify them to evaluate physical evidence of abuse and to interview victims and alleged abusers. Yet in contested custody battles, they are frequently called upon to do just that. Their recommendations carry significant weight in judicial decisions that set the course of a child’s life.

Normal courtroom checks and balances don’t exist in family court. Unlike in criminal and civil court, there are no juries. And family courts do not mandate legal representation. Therefore, the only litigants with attorneys are those who can afford them. In this atmosphere, judges have extraordinary powers and can work with near-complete impunity. It is not uncommon, for example, for judges to hold hearings in which important rulings are made with only one party present (called ex parte hearings); such hearings can violate basic constitutional rights of due process.

Gender bias and traditional stereotypes of how women and men parent children continue to prevail in family court. As a result, while conventional wisdom has it that mothers almost always fare well in family court, statistics show otherwise. In 1996, the Williamsburg, Virginia–based American Judges Association released a report, "Domestic Violence and the Courtroom," in which it noted that wife batterers and child abusers convince family-court officials that their ex-wives are "unfit" or "undeserving" of sole custody in roughly 70 percent of contested custody battles. A 1989 Massachusetts study commissioned by the state’s Supreme Judicial Court (SJC) showed that gender bias often hampers the administration of justice for women in custody decisions. It’s true that mothers are almost always awarded full or joint custody of their children in divorce cases where custody isn’t disputed. Yet the study found that when there was a fight over the children, fathers won primary or joint custody more than 70 percent of the time — whether or not there was a history of spousal or child abuse. (See "Changes in Massachusetts Family Courts Since 1989," this page.) Although the study is 13 years old and a number of things have changed since it was first published, at least 23 states have conducted gender-bias studies since — and all have made similar findings.

AMERICA'S DARKEST SECRET

IT'S HARD TO say how many children are affected in these cases. Massachusetts family courts mediated approximately 9450 custody cases in 2001; multiply that by 50 and you get an extremely rough estimate of how many such cases are heard nationwide every year 472,500. Of these, it's impossible to say how many involve charges of child abuse. Massachusetts family courts, for instance, do not keep statistics on the types of custody cases litigated. To date, the most reliable and largest national study of the incidence of child sexual abuse in contested custody cases occurred in 1990, when the Association of Family and Conciliation Courts, in Denver, surveyed 9000 custody disputes in 12 family courts across the country. Fewer than two percent involved child-sex-abuse charges.

The number is small. But the implications for the children concerned are staggering. Take, for instance, Idelle Clarke’s 16-year-old daughter, who is now living with her father, a man twice found by Los Angeles child-protection workers to have sexually assaulted her.

"This is one of America’s darkest, most shameful secrets," says Clarke, a 54-year-old Southern California mother whose case has become something of a cause célèbre among the burgeoning community of women and advocates seeking reform of the nation’s family courts. (See "Five Steps Toward Family-Court Reform," page 3.) After a nine-year custody battle that began in Los Angeles County Family Courts in 1993 and ended in California Supreme Court last October, Clarke not only lost custody of her daughter, but cannot have any contact with the girl. No phone calls. No visits. Nothing. Family-court judges simply didn’t believe that the girl had been sexually assaulted by Clarke’s ex-husband, Ovando Cowles, even though two separate, exhaustive sex-abuse investigations by LA child-protection workers found that she had been. Instead, judges maintained that Clarke had brainwashed her daughter into making up bogus charges about her father. So now, even though her daughter lives just minutes away from Clarke's Sierra Madre home, she hasn't been able to see the girl in the two years since the initial family-court judgment, which prohibited Clarke from going within 100 yards of her daughter. "It’s a punishment greater than those given to serial rapists," says Clarke, who is now preparing to file a January 14 petition asking the United States Supreme Court to hear her case. Meanwhile, Clarke’s daughter doesn’t just live with the man who’s sexually abused her on at least two occasions. The teenager, who is developmentally delayed, lives with her abuser not understanding that the people who want to protect her, can’t. And that those who can protect her, won’t.

In the small world of contested custody cases in which child-abuse claims arise, Clarke's situation isn’t an exception. It's more the rule. Colorado attorney Rosenfeld has seen mothers lose custody of children who've contracted sexually transmitted diseases from their fathers or who've made graphic disclosures such as "Daddy took Mr. Cocky and I played with him and took a tissue and cleaned it up." Nevertheless, for years, parents who’ve lost their children to abusers have believed their cases were exceptions. Until Clarke went public with her story.

In 1999, the now-defunct Los Angeles New Times published a detailed account of the prolonged custody battle. (See "Additional Reading," page 4.) Since then, Clarke has fielded countless phone calls from women across the country who, like her, expected to find justice in the family courts, but found something quite different instead. "Rarely a day goes by where I don’t get a call from a mother," she says. The outpouring inspired her, along with four mothers from California, Alaska, Michigan, and New Jersey, to organize the grassroots group United for Justice, whose members include hundreds of women in 49 states caught in Kafkaesque nightmares in the nation’s family courts. Says Clarke, "Women are being routinely punished and abused if they bring up child-sexual-abuse allegations in the family courts." And it’s not just Clarke and other mothers who’ve lost custody of their children who make this claim.

New York area sociologist Amy Neustein, along with two co-authors, is writing a critique of the family-court system for Northeastern University Press. In 1988, she established the Help Us Regain the Children Legal Research Center, which tracks custody battles involving child-sexual-abuse claims. Over the past 14 years, she has compiled a database with nearly 1000 cases, and has identified a frequent and disturbing pattern: "the penalization of mothers for bringing these allegations to the court’s attention in the first place."

In a 1999 study on judicial responses to mothers' child-abuse complaints, Neustein and a colleague followed 300 cases through the family courts in places across the country for a 10-year period, from 1988 to 1998. Only 10 percent of the 300 cases resulted in what Neustein termed "a positive outcome" — meaning that the mother had won primary custody of her children and the alleged abuser had gotten supervised visits. In 70 percent of the cases, the mothers had to send their children on unsupervised visits and share custody with the alleged abusers. More than 20 percent of the cases led to what Neustein referred to as "a negative outcome" i.e., the mother lost visitation rights altogether. Too often, she concludes, "The system retaliates against mothers with such ferocity that they lose their rights."

Her research, which entails combing through court transcripts, depositions, sex-abuse evaluations, GAL reports, and judicial findings from the 1000 child-custody cases in her database, has exposed punitive measures commonly issued by judges against mothers who continue to charge child sexual abuse. Family-court judges, for example, hold women in contempt, throw them in jail, scale back their visitation privileges, and even forbid them to seek psychological care for their children. In some instances, judges have gone to the extreme of ordering women not to have any contact — no letters, no phone calls — with their children.

"What I have seen in the family courts goes beyond the maltreatment of any other afflicted class in the history of this country," Neustein maintains. She ticks off a shocking number of injustices committed against mothers. Family judges routinely refuse to hear evidence of child sexual abuse; fail to give mothers a chance to testify in court on critical matters concerning abuse; hand down judgments against mothers in ex parte hearings without giving them prior notice; and evade the rules that guide courtroom conduct. She says, "People would be flabbergasted by what I have found in the family courts.... It’s as if you’re looking into a world that’s completely outside the normal range of legal conduct."

DOCUMENTING THE ABUSE

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."

Losing custody to a child molester

[note: a portion of this article has been deleted]

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 andcoaches 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 thePhoenix 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, [name deleted], 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 notacknowledge abuse and protect children?"

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