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Shared Parenting
Myths That Place Children At Risk During Custody Litigation
Dallam. S. J., & Silberg, J. L. (Jan/Feb 2006). Myths that place children at risk during custody disputes.
Sexual Assault Report, 9(3), 33-47. (PDF)
The Leadership Council is a nonprofit scientific organization concerned about he welfare of children. We
have become increasingly concerned about the legal system's treatment of victims of family violence
during divorce and child custody proceedings. The LC has reviewed documentation from a number of
cases in which children were placed in the sole custody of a parent that the child alleges is physically or
sexually abusing them. Many of these children were prohibited from any contact or provided only limited
contact with the parent seeking to protect the child - despite the fact that this parent had never been found
to have harmed the child. In most cases the child's allegations were quite credible.
Some groups have opposed exposure of this problem claiming that the information is politically motivated
or constitutes "father-bashing." Our analysis indicates that the problem of abusers or batterers obtaining
custody is widespread and well documented by research. Presenting this information is not an attempt to
"bash" any particular group, but is offered simply to educate professionals about the extent of this serious
problem affecting child safety.
Societal acceptance of these myths assists perpetrators of family violence by giving them custody of their
victims and by encouraging public denial about the failure of the legal system to protect these children.
The Leadership Council prepared this analysis because we believe that society as a whole benefits when
the public has access to accurate information regarding child abuse and other forms of interpersonal
violence.
Introduction
Approximately one in two marriages in the United States end in divorce, affecting over a million children per
year. About 10% of these divorces involve custody litigation. At the same time, child abuse is a widespread
problem in our society and families with a history of violence often end in divorce. Concerns about safety
of the children are behind some of the most bitterly contested child custody cases.
Unfortunately custody litigation can become a vehicle whereby batterers and child abusers attempt to
extend or maintain their control and authority over their victims after the marriage dissolves. Although,
research has not found a higher incidence of false allegations of child abuse and domestic violence in the
context of custody/visitation disputes, officers of the court tend to be unreasonably suspicious of claims
raised during time. As a result, abused parents and their children may find themselves re-victimized by the
justice system after separation.
Determining which parent should have primary custody when parents cannot agree is not easy. Custody
evaluators often have little training in recognizing and responding to child abuse and domestic violence.
Accordingly, those familiar with current practices have found that too often custody decisions are based on
myth, misinterpretation of facts, and evaluator bias. The following are an overview of some of the
erroneous beliefs that contribute to the problem of children not being protected from abuse in family court.
Myth 1. Allegations of sexual abuse are common during custody disputes and the vast majority of
allegations are false, unfounded or unsubstantiated.
Many people believe abuse allegations are rampant in custody and divorce litigation where they are used
primary by mothers to gain a tactical advantage. When antagonistic parents are locked in legal disputes it
is reasonable to be concerned about their motives when abuse allegations are raised. However, research
has consistently shown that sexual abuse allegations are not common during custody litigation and when
thoroughly investigated are no more likely to be false than allegations raised when at other points in time.
This matter was investigated by the Denver-based Research Unit of the Association of Family and
Conciliation Courts which performed a 2-year study which explored the incidence and validity of sexual
abuse allegations in custody cases. Contrary to the popular myth that sexual allegations in custody cases
are relatively common, the study found that, in the 12 states participating in the study, only 6% of custody
cases involved allegations of sexual abuse. The belief that these allegations are typically false was also
challenged by the study findings. Half of the allegations were believed by the investigators to be true, and
in another 17% determination of the validity could not be made with any degree of certainty. The remaining
third of the cases were not believed to involve abuse. However, in most of the cases where abuse was not
substantiated, the allegations were believed to have been made in good faith and based on genuine
suspicions.
Similar results have been found by other researchers. An Australian study (Brown et al., 1997) found the
overall rate of false allegations during divorce to be about 9%, similar to the rate of false allegations at any
other time. Schuman (2000) reviewed research that found a range of 1-5% for rates of deliberately false
allegations, and 14-21% for mistaken allegations.
It is also important to note that when false allegations are raised, it is not always mothers accusing fathers.
Nicholas Bala and John Schuman, two Queen's University law professors, reviewed Canadian judges'
written decisions where allegations of either physical or sexual abuse were raised in the context of parental
separation. They examined 196 family law cases that were adjudicated between 1990 and 1998. The
results revealed that the judges felt that only a third of unproven cases of child abuse stemming from
custody battles involved someone deliberately lying in court. In these cases, the judges found that fathers
were more likely to fabricate the accusations than mothers. Of female-initiated allegations, just 1.3% were
deemed intentionally false by civil courts, compared with 21% when the man in the failed relationship
brought similar allegations.
In conclusion, the available evidence refutes the notion that sexual abuse allegations in the context of
custody and visitation cases are epidemic, and counters the notion that these cases are commonly
reported by a parent who is vindictive or seriously impaired. There is no evidence from the present
research to suggest that a significant number of parents are lodging fabricated reports to win custody
battles.
For more information see:
Bala, N. & Schuman, J. (2000). Allegations of sexual abuse when parents have separated. Canadian
Family Law Quarterly, 17, 191-241.
Brown, T., Frederico, M., Hewitt, L., & Sheehan, R. (1997). Problems and solutions in the management of
child abuse allegations in custody and access disputes in the family court. Family and Conciliation Courts
Review, 36 (4), 431-443.
Schuman,T. (2000). Allegations of sexual abuse. In P. Stahl (ed) Complex issues in child custody
evaluations (pp. 43-68). Sage.
Thoennes, N, & Tjaden, PG. (1990). The extent, nature, and validity of sexual abuse allegations in custody
and visitation disputes. Child Sexual Abuse & Neglect , 14(2), 151-63
Myth 2: A history of battering has nothing to do with child abuse.
Parents who have been abused by a spouse often fear for the safety of their children --especially after
separation when they are not present to mediate for the child. Some have suggested that this fear is
baseless by claiming there is no significant correlation between wife battering and various forms of child
abuse. Abundant research, however, fails to support this position finding that the power dynamics that lead
to domestic violence may also result in abuse of a child. As a report by the American Psychological
Association pointed out, fathers who batter their children's mothers can be expected to use abusive power
and control techniques to control the children too (APA, 1996).
To date, over 30 studies that have examined the co-occurrence of domestic violence and child abuse
found a large overlap. Overall, both forms of violence were found in 40% of families studied with the range
in the majority of studies varying from 30% to 60% of families (Appel & Holden, 1998, Edleson, 1999).
Perhaps the most convincing evidence comes from a nationally representative survey of 3,363 American
parents. Marital violence was found to be a statistically significant predictor of physical child abuse; the
greater the amount of violence against a spouse, the greater the probability of physical child abuse by the
physically aggressive spouse. This relationship is stronger for husbands than for wives. The probability of
child abuse by a violent husband increases from 5% with one act of marital violence to nearly 100% with
50 or more acts of marital violence. The predicted probability of child abuse by a violent wife increases
from 5% with one act of marital violence to 30% with 50 or more acts of marital violence.
Although less research has been done on overlap between domestic violence and child sexual abuse, the
available evidence indicates reason to be concerned. Pavesa (1988) performed a careful case-controlled
study of 34 families in which father-daughter incest occurred and compared these families with 68 control
families. Daughters of batterers were 6.5 times more likely than other girls to be victims of father-daughter
incest.
Evidence of an overlap between domestic violence and child sexual abuse has also been uncovered in
surveys of children. For instance, Roy (1988) interviewed 146 children aged 11 to 17 who had been
exposed to domestic violence. Almost of third of the girls (31%) either reported that they had been sexually
abused by their fathers and/or had documentation of sexual abuse in their case files. A survey of 313
college women , showed a similar trend. Nine percent of the women reported having witnessed some type
of physical conflict between their parents. Witnessing marital violence was associated with having
experienced childhood physical and/or sexual abuse (Feerick & Haugaard, 1999).
Still, a child doesn't have to be physically or sexually abused to be harmed by domestic violence. Research
on children’s exposure to domestic violence has consistently identified a range of negative outcomes for
these children (Kernic et al., 2003; Wolfe et al., 2003). In fact, children exposed to domestic violence may
show comparable levels of emotional and behavioral problems to children who were the direct victims of
physical or sexual abuse (Jaffe, Wolfe, & Wilson, 1990)
For more information see:
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family , Washington, D.C.: Author.
Appel, A. E. & G. W. Holden (1998). The Co-occurrence of Spouse and Physical Child Abuse: A Review
and Appraisal. Journal of Family Psychology, 12(4): 578-599.
Bancroft, L., & Silverman, J. (2003). The Batterer as Parent. Thousand Oaks, CA: Sage.
Bancroft, L., & Silverman, J. (2002). Assessing risk to children from batterers. (http://www.lundybancroft.
com/pages/articles_sub/JAFFE.htm)
Edleson, J. L. (1999). The overlap between child maltreatment and woman battering. Violence Against
Women, 5(2), 134-154. (Pdf: http://www.vawnet.org/DomesticViolence/Research/VAWnetDocs/AR_overlap.
pdf )
Feerick, M. M., & Haugaard, J.L. (1999). Long-term Effects of Witnessing Marital Violence for Women: The
Contribution of Childhood Physical and Sexual Abuse. Journal of Family Violence, 14(4), 377-398.
Kernic, M. A ., Wolf, M. E ., Holt, V. L ., McKnight, B ., Huebner, C. E ., & Rivara, F. P. (2003). Behavioral
problems among children whose mothers are abused by an intimate partner. Abuse & Neglect, 27(11),
1231-46.
Jaffe, P. G.,Wolfe, D. A., & Wilson, S. K. (1990). Children of battered women. Newbury Park, CA: Sage
Publications.
Paveza, G. (1988). Risk factors in father-daughter child sexual abuse. Journal of Interpersonal Violence, 3
(3), 290-306.
Ross, S. M. (1996). Risk of physical abuse to children of spouse abusing parents. Child Abuse & Neglect,
20(7), 589-98.
Roy , M. (1988). Children in the crossfire: Violence in the home - how does it affect our children? Deerfield
Beach , FL : Health Communications.
Straus, M. A. (1983). Ordinary violence, child abuse, and wife beating: What do they have in common? In
D. Finkelhor, R. J. Gelles, G. T. Hotaling, & M. A. Straus (Eds.), The dark side of families: Current family
violence research (pp. 213-234). Newbury Park, CA: Sage.
Wolfe, D. W. Crooks, C. V., Lee, V., McIntyre-Smith, A., & Jaffe, P. G. (2003). The effects of exposure to
domestic violence on children: A meta-analysis and critique. Clinical Child and Family Psychology Review,
6, 171-187.
Myth 3: Custody transfers to abusive parents are rare.
Some have suggested that custody transfers to abusive parents are rare events. Most of us would like to
believe this. Unfortunately, empirical research examining this issue has repeatedly shown that men who
ask for custody of their children often get it, whether or not they have a history of violence.
Although women are more likely to get custody of their children, this is often because they are more likely
to ask for it. When men ask for custody, they often get it. According to a report by the American
Psychological Association, an abusive man is more likely than a nonviolent father to seek sole physical
custody of his children and may be just as likely (or even more likely) to be awarded custody as the mother
(APA, 1996). A report by the American Judges Foundation, reported that 70% of the time an abuser who
requests custody is able to convince the court to give it to him.
The majority of parents in "high-conflict divorces" involving child custody disputes report a history of
domestic violence and/or child abuse. For example, a review of one sample of parents referred for child
custody evaluations by the court found that domestic violence was raised in 75% of the cases (Jaffe &
Austin, 1995 as cited by Jaffe, Crooks, & Poisson, 2003). Another study found that between 70% and 75%
of parents who were referred by the family court for counseling because of failed mediation or continuing
disputes over the care of their children described marital histories that included physical aggression
(Johnston & Campbell, 1988).
However, raising allegations of abuse often hurts the abused or protective parent more than the alleged
abuser. An ongoing study funded by the National Institute of Justice study shows that women who inform
custody mediators that they are victims of domestic violence often receive less favorable custody awards
(Saccuzzo & Johnson, 2004). The investigators found that only 35% of mothers who alleged domestic
abuse got primary custody, compared to 42% of mothers who did not. Father who were accused of
domestic violence were given primary custody in 10% of cases, father not accused of domestic violence
got primary custody 9% of the time. Thus, disclosing domestic violence hurt the women who disclosed
being victimized; while alleged perpetrators suffered no ill effects - that is unless the mediator noted
evidence of violence when the mother did not allege domestic violence. When this occurred, mediators
recommended protected child exchanges twice as often. Thus women who were forthright with their
domestic violence allegations secured less protection for themselves and their children.
A recent study by the Harborview Injury Prevention & Research Center in Seattle confirms these results
(Kernic et al., 2005). The researchers analyzed documentation on more than 800 local couples with young
children who filed for divorce in 1998 and 1999, including 324 cases with a history of domestic violence.
They found that evidence of domestic violence did not appear to change how courts decided custody. In
other words, fathers who were violent were just as likely to receive custody when they asked for it as
fathers who were not violent. Only 17% of fathers with a known history of domestic violence were denied
child visitation and they were no more likely than other fathers to be required by the court to have a third
party supervise child visitations.
Concerns about how family courts are handling cases involving abuse were also raised by the findings of
Neustein and Goetting (1999). They examined judicial responses to protective parents' complaints of child
sexual abuse in 300 custody cases with extensive family court records. The investigators found that in only
10% of cases where allegations of child abuse were raised was primary custody given to the protective
parent with supervised contact with alleged abuser. Conversely, 20% of these cases resulted in a
predominantly negative outcome where the child was placed in the primary legal and physical custody of
the allegedly sexually abusive parent ( see, p. 108). In the rest of the cases, the judges awarded joint
custody with no provisions for supervised visitation with the alleged abuser.
To better understand the problems that protective parents face in the legal system, researchers at
California State University , San Bernardino , are performing an on-going national survey (Stahly et al.,
2004). To date, over 100 self-identified protective parents have completed the 101-item questionnaire.
The results are quite shocking. Prior to divorce, 94% of the protective mothers surveyed say that they
were the primary caretaker of their child and 87% had custody at the time of separation. However, as a
result of reporting child abuse, only 27% were left with custody after court proceedings. Most protective
parents lost custody in emergency ex parte proceedings (where they were neither notified nor present)
and where no court reporter was present.
The vast majority of these mothers (97%) reported that court personnel ignored or minimized reports of
abuse. They reported feeling that they were punished for trying to protect their children and 65% said they
were threatened with sanctions if the "talked publicly" about the case. In all, 45% of the mothers say they
were labeled as having Parental Alienation Syndrome (PAS).
The protective parents reported that the average cost of the court proceedings was over $80,000. Over a
quarter of the protective parents say they were forced to file bankruptcy as a result of filing for custody of
their children. Eighty-five percent of the protective parents surveyed believe that their children are still
being abused; however, 63% say they stopped reporting the abuse for fear that contact with their children
will be terminated. Eleven percent of the children were reported to have attempted suicide.
For more information see:
An annotated overview of research documenting protective parents losing custody to abusers can be
found at http://www.leadershipcouncil.org/1/pas/dv.html
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family, Washington , D.C.: Author.
American Judges Foundation, Domestic Violence and the Court House: Understanding the Problem.
Knowing the Victim, Forms of Emotional Battering Section, Threats to Harm or Take Away Children
Subsection http://aja.ncsc.dni.us/domviol/page5.html
Kernic, M. A., Monary-Ernsdorff, D. J., Koepsell, J. K., & Holt, V. L. (2005). Children in the crossfire: child
custody determinations among couples with a history of intimate partner violence. Violence Against
Women, 11(8), 991-1021.
Jaffe, P. Crooks, C. V., & Poisson, S. E. (2003). Common Misconceptions in Addressing Domestic Violence
in Child Custody Disputes. Juvenile and Family Court Journal, 54(4), 57-67.
Johnston, J. R. & Campbell, L. E. G. (1988). Impasses of divorce: The dynamics and resolution of family
conflict. New York: The Free Press.
Neustein, A., & Goetting, A. (1999). Judicial Responses to Protective Parents, Journal of Child Sexual
Abuse , 4, 103-122. http://www.haworthpressinc.com/store/SampleText/J070.pdf (page 109 of pdf)
Saccuzzo, D. P. & Johnson, N. E. (2004). Child Custody Mediation's Failure to Protect: Why Should the
Criminal Justice System Care? NIJ Journal, 251, Available from the National Institute of Justice. http://ncjrs.
org/pdffiles1/jr000251.pdf (page 21)
Stahly, G. B., Krajewski, L., Loya, B. Uppal, K., German, G., Farris, W., Hilson, N., & Valentine, J. (2004).
Protective mothers in child custody disputes: A study of judicial abuse. California State University, San
Bernardino .
Myth 4: Fit mothers do not lose custody.
Many people assume that the only way a mother would lose custody to an alleged batterer or child abuser
was if she were proven to be an unfit parent. Most people have difficulty believing that that a court would
take a child away from a mother who has heretofore been the child's primary caretaker if her only crime is
expressing concern about her own or her child's safety. Unfortunately, this is happening; the only real
question is why.
There is no single answer to this question. Instead, it appears that a number of factors are involved. First,
there is a widespread belief in our society that a person who both appears and acts normal could not
possibly be a violent batterer or child abuser. Offenders are well aware of our propensity for making
assumptions about private behavior from one's public presentation and they tend to use this knowledge of
our collective blindness to their advantage by appearing to be the perfect parent during court
appearances (Salter, 2003). Mothers concerned about the safety of their children, on the other hand,
often appear overly concerned and as if they are exaggerating the problem.
As a report by the American Psychological Association pointed out:
If the court ignores the history of violence as the context for the mother's behavior in a custody evaluation,
she may appear hostile, uncooperative, or mentally unstable. For example, she may refuse to disclose her
address, or may resist unsupervised visitation, especially if she thinks her child is in danger. Psychological
evaluators who minimize the importance of violence against the mother, or pathologize her responses to it,
may accuse her of alienating the children from the father and may recommend giving the father custody in
spite of his history of violence. (APA, 1996)
A second reason that fit mothers lose custody to alleged abusers is that many officers of the court believe
that the only reason women raise abuse allegations during custody disputes is to gain a tactical
advantage. Research, however, fails to find such an advantage. In fact, women who raise abuse
allegations appear to receive less favorable rulings than those who do not (see e.g., Saccuzzo & Johnson,
2004). This may be because women who allege abuse may be seen as fabricating or exaggerating
incidents of violence as a way of manipulating the courts (Doyne et al., 1999). For this reason, some
lawyers advise women not to tell courts or mediators about child abuse or domestic abuse because, by
doing so, they risk losing custody to the alleged abuser ("Custody Litigation," 1988; Saccuzzo & Johnson,
2004).
A third factor contributing to the problem is statutory. Most state legislatures have enacted legislation
requiring family courts to favor joint custody arrangements, and when this isn't possible, to favor the parent
who appears most "friendly" to a joint custody arrangement. At least 31 states have statutes requiring
courts to consider how "cooperative" the parent is when determining custody arrangements (Gonzalez &
Reichmann, 2005).
The intent of "friendly parent" preferences is to guarantee that children go to the parent most likely to
facilitate the child's relationship with the other parent. Although this goal is laudable; in practice, the result
has been to penalize parents who raise concerns about child abuse or domestic violence (Dore, 2004).
Friendly parent preferences tend to favor abusers who rarely object to the nonabusive parent having
access to the child. Protective parents, on the other hand, frequently seek to curtail a violent parent's
access to the child. Moreover, the very act of raising concerns of abuse, suggests to the court that the
protective parent is inherently "unfriendly" and should therefore be denied custody ( Dore, 2004) . Some
professionals have found that the friendly parent concept is most often employed against the custodial or
primary parent, typically the mother (Zorza, 1992).
Some states have tried to rectify injustices resulting from friendly parent preferences by enacting
presumptions against custody to a perpetrator of domestic violence. Unfortunately, these presumptions
are not always followed, especially when "friendly parent" preferences continue to remain on the books.
For instance, Morrill et al. (2005) evaluated the effectiveness of statutes mandating a presumption against
custody to a perpetrator of domestic violence in 6 different states. The investigators examined 393 custody
and/or visitation orders where the father perpetrated domestic violence against the mother and surveyed
60 judges who entered those orders. They found that children failed to be protected in states with a
statutory presumption against custody to an abuser when the state also had a "friendly parent" provision in
their statutes with a presumption for joint custody.
A fourth reason that fit mothers may lose custody to an alleged abuser is due to lax standards that allow
junk science to influence custody decisions in family courts. Over the years a number of "syndromes" have
been developed that pathologize the responses of parents who seek to protect their child from an abusive
spouse. The most popular of these syndromes, "Parental Alienation Syndrome." is discussed in the next
section.
For more information see:
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family, Washington, D.C : Author.
Custody litigation and the child sexual abuse backfire syndrome. (1988, Winter). Jurisfemme, 8, 21.
Dore, M. K. (2004). The "Friendly Parent" Concept: A Flawed Factor for Child Custody, Loyola Journal of
Public Interest Law, 6, 41-56. http://www.margaretdore.com/images/DORE2.pdf
Doyne, S. E., Bowermaster, J. M., Meloy, J. R., Dutton, D., Jaffe, P., Temko, S., & Mones, P. (1999).
Custody disputes involving domestic violence: Making children's needs a priority. Juvenile and Family
Court Journal, 50 (2), 1-12.
Gonzalez, A. M., & Reichmann, L. M. (2005). Representing Children in Civil Cases Involving Domestic
Violence. Family Law Quarterly, 39 (1), 197-220.
Leadership Council. (n.d.). Eight Myths about Child Sexual Abuse. http://www.leadershipcouncil.
org/1/res/csa_myths.html
Morrill, A. C., Dai, J., Dunn, S., Sung, I. , & Smith, K. (2005). Child custody and visitation decisions when
the father has perpetrated violence against the mother. Violence Against Women, 11(8), 1076-1107.
Saccuzzo, D. P. & Johnson, N. E. (2004). Child Custody Mediation's Failure to Protect: Why Should the
Criminal Justice System Care? NIJ Journal, 251, Available from the National Institute of Justice. http://ncjrs.
org/pdffiles1/jr000251.pdf (page 21)
Johnson, N. E., Saccuzzo, D. P., & Koen, W. J. (2005). Child custody mediation in cases of domestic
violence: Empirical evidence of a failure to protect. Violence Against Women, 11 (8), 1022-1053
Salter, A. C. (2003). Predators: Pedophiles, rapists and other sex offenders: Who they are, how they
operate, and how we can protect ourselves and our children. New York: Basic Books.
Zorza, J. (1992). Friendly parent provisions in custody determinations. Clearinghouse Review, 26(8), p.
924.
Myth 5: Parental alienation syndrome is a common, well-documented phenomenon.
Those who buy into the myth that mothers frequently raise false allegations of abuse may attempt to
explain this phenomenon by relying on a legal theory called Parental Alienation Syndrome (PAS). Some
suggest that the theory is based on science, and that PAS is a well-documented phenomenon .
Although estrangement from one or both parents can occur in children during an acrimonious divorce,
Parental Alienation Syndrome (PAS) lacks a scientific foundation and has never been shown to be a valid
explanation of this process. In fact, Dr. Richard Gardner, the theory's creator, developed his theory while
working as a paid consultant to men charged with sexually abusing their children. Thus, the syndrome was
created as a defense theory to counter a child's allegation of sexual abuse (Dallam, 1999).
Gardner defines PAS as follows:
The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child custody
disputes. Its primary manifestation is the child's campaign of denigration against a parent, a campaign that
has no justification. It results from the combination of a programming (brainwashing) parent's
indoctrinations and the child's own contributions to the vilification of the target parent . .
Gardner defines PAS as a psychiatric disorder that arises in the course of child-custody disputes
adjudicated in the context of adversarial proceedings. Gardner's theory portrays the child's preferred or
protective parent (usually the mother under PAS) as an evil "alienator" who is virtually solely responsible
for turning a vulnerable child against their estranged parent (usually the father under PAS). The child is
thus viewed as mentally ill and the "alienating' protective parent (for example, a mother that raises
concerns about abuse) is viewed as the sole cause of the disorder. When this parent is judged to be in the
"severe" category, Dr. Gardner recommended sole custody to the other parent - the parent that the child
claims is abusing them. Thus, the main cure for this alleged mental illness is for the child to be placed in
greater contact with an alleged abuser while their contact with the protective parent is curtailed or halted
altogether.
It should be pointed out that Gardner never submitted his theory to testing and it has never been shown to
be a valid syndrome. Despite these shortcomings, PAS has gained traction in the courts as it fits well with
court's friendly parent preference. Moreover, some courts have accepted PAS because it apparently
appears to explain a well-recognized phenomenon within custody battles - the often acrimonious fight
between parents for their child's affection.
Unfortunately, Parental Alienation Syndrome, like the friendly parent concept it is based upon, presents
the court with a paradox that seems to undermine rational decision-making when considering the best
interests of children. With PAS theory, the concerned custodial parent's steps to obtain professional
assistance in diagnosing, treating, and protecting the child, constitute evidence of "alienation." Attorney
Richard Ducote (2002) noted:
"One irony of . . . 'PAS' is that the increased existence of valid evidence of true sexual abuse leads
Gardner and his devotees to more fervently diagnose 'PAS.' Thus, 'PAS' is the criminal defense attorney's
dream, since the greater the proof of the crime, the greater the proof of the defense."
In professional journals, PAS has been cited an example of bad science that has been presented to the
courts as credible forensic evidence. For instance, in an article published in Professional Psychology:
Research and Practice , Rotgers and Barrett (1996) cite PAS theory as a prime example of a nonscientific
theory that engages in "reverse logic." Moreover, PAS has been widely discredited in academic circles for
being biased against women and children, and flawed in its failure to take into account alternative
explanations for the behavior of the parties involved.
Further, critics have noted that Gardner 's methods for determining the veracity of an abuse allegation are
seriously biased in favor of the alleged child molester. Lisa Amaya-Jackson, M.D., Assistant Professor of
Psychiatry and Medical Director of Child and Adolescent Trauma Treatment Services at Duke University,
and Mark D. Everson, Ph.D., Clinical Associate Professor in Psychiatry and Director of the Program on
Childhood Trauma & Maltreatment at University of North Carolina Hospitals, Chapel Hill, reviewed
Gardner's book Protocols for the Sex-Abuse Evaluation and found Gardner's system for detecting sexual
abuse in children to be "seriously flawed." They stated: "Bias can be noted in the author's attempts to
discredit a child's allegations by resorting to narrow, often oversimplified notions of how sexually abused
children are supposed to behave." They further note that while he discusses the importance of evaluators
being neutral and objective, Gardner conveys "a strong bias that the overwhelming majority of allegations,
especially in custody-related cases, are false and that the assessment procedures the author advocates
are slanted to arrive at such a conclusion." Amaya-Jackson and Everson (1996) conclude: "This book can
perhaps best be described as a recipe for finding allegations of sexual abuse false, under the guise of
clinical and scientific objectivity. One suspects that it will be a bestseller among defense attorneys."
A recent study (cited by Johnston & Kelly, 2004) assessed the multiple factors that could contribute to the
child's rejection of a parent. They concluded that just as important as alienating behaviors on the part of a
parent were the child's actual experiences of child abuse or lack of parental warmth in their interaction with
the rejected parent.
This is not to imply that abuse allegations are always accurate, or that parents do not attempt to
manipulate their children during adversarial custody litigation. However, family courts need to be educated
with a more scientific, sophisticated approach to the complexities of determining custody. The latest
research on children embroiled in custody conflicts supports looking at the multiple, interacting, and often
complex factors that affect a child's feelings about his or her parents. Conversely, simplistic theories such
as PAS theory are not sufficiently scientific to be able to make cause and effect determinations and can
place children in danger of being revictimized in family court.
For more information see:
Amaya-Jackson, L., & Everson, M.D. (1996). Book Reviews: Protocols for the Sex-Abuse Evaluation .
Journal of the American Academy of Child & Adolescent Psychiatry, 35(7), 966-967.
Dallam, S. J. (1999). Parental Alienation Syndrome: Is it scientific? In E. St. Charles & L. Crook (Eds.),
Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our
Children Our Children Charitable Foundation. http://www.leadershipcouncil.org/1/res/dallam/3.html
Dallam, S. J. (1998). Dr. Richard Gardner: A review of his theories and opinions on atypical sexuality,
pedophilia, and treatment issues. Treating Abuse Today, 8(1), 15-23. http://www.leadershipcouncil.
org/1/res/dallam/2.html
Dallam, S. J. (n.d.). Are Allegations of Sexual Abuse That Arise During Child Custody Disputes Less Likely
to Be Valid? An Annotated Review of the Research. http://www.leadershipcouncil.org/1/pas/ap.html
Ducote, R. (2002). Guardians Ad Litem in Private Custody Litigation: The Case for Abolition. Loyola
Journal of Public Interest Law, 3, 141.
Gardner, R. A. (2003). The Judiciary's Role in the Etiology, Symptom Development, and Treatment of the
Parental Alienation Syndrome (PAS), American Journal of Forensic Psychology . 21(1), http://www.
rgardner.com/refs/ar11w.html
Rotgers, F., & Barrett, D. (1996). Daubert v. Merrell Dow and expert testimony by clinical psychologists:
Implications and recommendations for practice. Professional Psychology: Research and Practice, 27(5),
467-74.
Johnston, J. R. & Kelly, J. B. (2004). Commentary on Walker, Brantley, and Rigsbee (2004) "A critical
analysis of parental alienation syndrome and its admissibility in the family court." Journal of Child Custody,
1(4), 77-89.
Myth 6: Children are more likely to be abused in the care of a woman than a man.
The myth that women are more violent toward children than men is currently being promoted by some
extremist groups. This claim is based, in part, on a statistical report by the U.S. Department Health and
Human Services (HHS) which breaks down the number of substantiated reports of child abuse and neglect
by gender. The HHS analysis shows that of children maltreated by their parents, 40.8% of child victims
were maltreated by their mothers acting alone; another 18.8% were maltreated by their fathers acting
alone; and 16.9% were abused by both their mother and father. Some seek to misuse this statistic to
suggest that children are more at risk in the care of mothers than fathers.
When looking at the HHS report, however, it is important to note that most of the instances of substantiated
maltreatment involved neglect of children under the age of three years. Because women tend to spend
many more hours in contact with small children than men in our society, it makes sense that overall a
young child is more likely to be maltreated by a woman rather than by a man.[1] However, this does not
suggest that a child is safer when in the care of a father than a mother.
A recent population-based case-control study reviewed 8 years of child-fatality-review data in Missouri .
The investigators found that females were perpetrators for just 26% of all inflicted fatal injuries on young
children (Schnitzer & Ewigman, 2005). The vast majority of perpetrators were male (71.2%). In most
instances, the perpetrator was the child's father (34.9%) or a boyfriend of the mother 24.2%. The child's
mother was the perpetrator in only 19.7% of fatalities (see Table 1).
TABLE 1. Inflicted Fatal Injuries on Young Children:
Gender of Perpetrator and Relationship to Deceased Child*
Gender and Relationship Percent Total
Males 71.2%
----Biological father 34.9%
----Boyfriend of mother 24.2%
----Other male relative 4.5%
----Male nonrelative 3.0%
----Stepfather 2.3%
----Male babysitter 1.5%
----Foster father 0.8%
Females 25.8%
----Biological mother 19.7
----Female babysitter 3.0
----Other female relative 1.5
----Girlfriend of father 0.8
----Female, nonrelative 0.8
Gender unknown 3%
----Babysitter or other nonrelative 3%
Total 100
*Adapted from Schnitzer & Ewigman, 2005, Table 3
Based on their research, Schnitzer and Ewigman (2005) concluded that children are safest when they live
in households with both biological parents or one biological parent and no other adults. Children appear to
be at are greatest risk when they live in households that include males who are not related to them.
Other recent studies reveal similar findings. For instance, Starling et al. (1995) identified perpetrators of
both fatal and nonfatal abusive head trauma over a 12-year period (1982-1994) at the Children's Hospital
of Denver . Male perpetrators outnumbered females over 2:1. In all, 68.5% of perpetrators were male, with
fathers, step-fathers, and mothers' boyfriends committing over 60% of the crimes (fathers accounted for
37% of the abusers, followed by boyfriends at 20.5%). Males were also tended to inflict more severe
injuries. Men were perpetrators in 74.2% of the cases of fatal abusive head trauma. The largest group of
female perpetrators were female babysitters would were responsive for 17.3% of cases. Mothers were
responsible for only 12.6% of abusive head trauma cases.
Courts should to be mindful of the ways that statistical data can be misused when assessing the safety of
living situations for children. In addition, it should be remembered that group data cannot tell us what living
situation is best for a child in a specific case. Currently, the best indicator that we have of a propensity
toward future violence is past behavior ( Crowley , 2005). Thus custody determinations require careful
examination of the evidence rather than rhetoric. Courts should pay special attention to the child's own
report of abuse or neglect, observations of a parent's interactions with his or her child, and past evidence
that a parent has been violent towards others in the household.
For more information see:
Crowley , B. (2003). The Assessment of Danger in Everyday Practice. Psychiatric Times, 20(6), http://www.
psychiatrictimes.com/p030674.html
Schnitzer, P. G., & Ewigman, B. G. (2005). Child Deaths Resulting From Inflicted Injuries: Household Risk
Factors and Perpetrator Characteristics. Pediatrics, 116(5), 687-693.
http://pediatrics.aappublications.org/cgi/content/full/116/5/e687#R33
Starling, S. P., Holden, J. R., & Jenny, C. (1995). Abusive head trauma: The relationship of perpetrators to
their victims. Pediatrics, 95, 259-262. [Abstract]
U.S. Department of Health and Human Services. (2005). Child Maltreatment 2003: Reports from the States
to the National Child Abuse and Neglect Data Systems - National statistics on child abuse and neglect. http:
//www.acf.hhs.gov/programs/cb/publications/cm03/index.htm
1. When we make judgments based on statistical data, we must place numbers in the context of their
denominator rather than simply comparing the raw data. In other words, for these statistics to be
meaningful, we must compare rates of maltreatment that have been adjusted based on hours of contact
with the child . As illustration, consider the following example. If we compared the murder rate of any small
town in American with the murder rate in any large city, we would get the impression that large cities are
very dangerous simply because many more people die. Only when murder rates are adjusted for the
number of people actually living in the community is it possible to determine which town is in fact the safest.
For example, if 20 people were murdered in the large town and 2 people were murdered in the small town,
some might suggest that small towns are much safer places to live. However, if we adjust the rates for the
actual population, we might find that the population of the large town is 100,000, while the population of
the small town is only 100. Thus, the actual murder rate for the large town would be 20 per 100,000, while
the murder rate in the small town would be 2000 per 100,000! In this case, the murder rate in the small
town would be 100 times higher than the larger one. For this reason, statistics of maltreatment by gender
of caretaker, must take into account the amount of time actually spent with the child.
To subscribe to the Sexual Assault Report contact:
Civic Research Institute • P.O. Box 585, Kingston, NJ 08528
Tel: 609-683-4450 • Fax: 609-683-7291; Email: order@civicresearchinstitute.com
Dallam. S. J., & Silberg, J. L. (Jan/Feb 2006). Myths that place children at risk during custody disputes.
Sexual Assault Report, 9(3), 33-47. (PDF)
The Leadership Council is a nonprofit scientific organization concerned about he welfare of children. We
have become increasingly concerned about the legal system's treatment of victims of family violence
during divorce and child custody proceedings. The LC has reviewed documentation from a number of
cases in which children were placed in the sole custody of a parent that the child alleges is physically or
sexually abusing them. Many of these children were prohibited from any contact or provided only limited
contact with the parent seeking to protect the child - despite the fact that this parent had never been found
to have harmed the child. In most cases the child's allegations were quite credible.
Some groups have opposed exposure of this problem claiming that the information is politically motivated
or constitutes "father-bashing." Our analysis indicates that the problem of abusers or batterers obtaining
custody is widespread and well documented by research. Presenting this information is not an attempt to
"bash" any particular group, but is offered simply to educate professionals about the extent of this serious
problem affecting child safety.
Societal acceptance of these myths assists perpetrators of family violence by giving them custody of their
victims and by encouraging public denial about the failure of the legal system to protect these children.
The Leadership Council prepared this analysis because we believe that society as a whole benefits when
the public has access to accurate information regarding child abuse and other forms of interpersonal
violence.
Introduction
Approximately one in two marriages in the United States end in divorce, affecting over a million children per
year. About 10% of these divorces involve custody litigation. At the same time, child abuse is a widespread
problem in our society and families with a history of violence often end in divorce. Concerns about safety
of the children are behind some of the most bitterly contested child custody cases.
Unfortunately custody litigation can become a vehicle whereby batterers and child abusers attempt to
extend or maintain their control and authority over their victims after the marriage dissolves. Although,
research has not found a higher incidence of false allegations of child abuse and domestic violence in the
context of custody/visitation disputes, officers of the court tend to be unreasonably suspicious of claims
raised during time. As a result, abused parents and their children may find themselves re-victimized by the
justice system after separation.
Determining which parent should have primary custody when parents cannot agree is not easy. Custody
evaluators often have little training in recognizing and responding to child abuse and domestic violence.
Accordingly, those familiar with current practices have found that too often custody decisions are based on
myth, misinterpretation of facts, and evaluator bias. The following are an overview of some of the
erroneous beliefs that contribute to the problem of children not being protected from abuse in family court.
Myth 1. Allegations of sexual abuse are common during custody disputes and the vast majority of
allegations are false, unfounded or unsubstantiated.
Many people believe abuse allegations are rampant in custody and divorce litigation where they are used
primary by mothers to gain a tactical advantage. When antagonistic parents are locked in legal disputes it
is reasonable to be concerned about their motives when abuse allegations are raised. However, research
has consistently shown that sexual abuse allegations are not common during custody litigation and when
thoroughly investigated are no more likely to be false than allegations raised when at other points in time.
This matter was investigated by the Denver-based Research Unit of the Association of Family and
Conciliation Courts which performed a 2-year study which explored the incidence and validity of sexual
abuse allegations in custody cases. Contrary to the popular myth that sexual allegations in custody cases
are relatively common, the study found that, in the 12 states participating in the study, only 6% of custody
cases involved allegations of sexual abuse. The belief that these allegations are typically false was also
challenged by the study findings. Half of the allegations were believed by the investigators to be true, and
in another 17% determination of the validity could not be made with any degree of certainty. The remaining
third of the cases were not believed to involve abuse. However, in most of the cases where abuse was not
substantiated, the allegations were believed to have been made in good faith and based on genuine
suspicions.
Similar results have been found by other researchers. An Australian study (Brown et al., 1997) found the
overall rate of false allegations during divorce to be about 9%, similar to the rate of false allegations at any
other time. Schuman (2000) reviewed research that found a range of 1-5% for rates of deliberately false
allegations, and 14-21% for mistaken allegations.
It is also important to note that when false allegations are raised, it is not always mothers accusing fathers.
Nicholas Bala and John Schuman, two Queen's University law professors, reviewed Canadian judges'
written decisions where allegations of either physical or sexual abuse were raised in the context of parental
separation. They examined 196 family law cases that were adjudicated between 1990 and 1998. The
results revealed that the judges felt that only a third of unproven cases of child abuse stemming from
custody battles involved someone deliberately lying in court. In these cases, the judges found that fathers
were more likely to fabricate the accusations than mothers. Of female-initiated allegations, just 1.3% were
deemed intentionally false by civil courts, compared with 21% when the man in the failed relationship
brought similar allegations.
In conclusion, the available evidence refutes the notion that sexual abuse allegations in the context of
custody and visitation cases are epidemic, and counters the notion that these cases are commonly
reported by a parent who is vindictive or seriously impaired. There is no evidence from the present
research to suggest that a significant number of parents are lodging fabricated reports to win custody
battles.
For more information see:
Bala, N. & Schuman, J. (2000). Allegations of sexual abuse when parents have separated. Canadian
Family Law Quarterly, 17, 191-241.
Brown, T., Frederico, M., Hewitt, L., & Sheehan, R. (1997). Problems and solutions in the management of
child abuse allegations in custody and access disputes in the family court. Family and Conciliation Courts
Review, 36 (4), 431-443.
Schuman,T. (2000). Allegations of sexual abuse. In P. Stahl (ed) Complex issues in child custody
evaluations (pp. 43-68). Sage.
Thoennes, N, & Tjaden, PG. (1990). The extent, nature, and validity of sexual abuse allegations in custody
and visitation disputes. Child Sexual Abuse & Neglect , 14(2), 151-63
Myth 2: A history of battering has nothing to do with child abuse.
Parents who have been abused by a spouse often fear for the safety of their children --especially after
separation when they are not present to mediate for the child. Some have suggested that this fear is
baseless by claiming there is no significant correlation between wife battering and various forms of child
abuse. Abundant research, however, fails to support this position finding that the power dynamics that lead
to domestic violence may also result in abuse of a child. As a report by the American Psychological
Association pointed out, fathers who batter their children's mothers can be expected to use abusive power
and control techniques to control the children too (APA, 1996).
To date, over 30 studies that have examined the co-occurrence of domestic violence and child abuse
found a large overlap. Overall, both forms of violence were found in 40% of families studied with the range
in the majority of studies varying from 30% to 60% of families (Appel & Holden, 1998, Edleson, 1999).
Perhaps the most convincing evidence comes from a nationally representative survey of 3,363 American
parents. Marital violence was found to be a statistically significant predictor of physical child abuse; the
greater the amount of violence against a spouse, the greater the probability of physical child abuse by the
physically aggressive spouse. This relationship is stronger for husbands than for wives. The probability of
child abuse by a violent husband increases from 5% with one act of marital violence to nearly 100% with
50 or more acts of marital violence. The predicted probability of child abuse by a violent wife increases
from 5% with one act of marital violence to 30% with 50 or more acts of marital violence.
Although less research has been done on overlap between domestic violence and child sexual abuse, the
available evidence indicates reason to be concerned. Pavesa (1988) performed a careful case-controlled
study of 34 families in which father-daughter incest occurred and compared these families with 68 control
families. Daughters of batterers were 6.5 times more likely than other girls to be victims of father-daughter
incest.
Evidence of an overlap between domestic violence and child sexual abuse has also been uncovered in
surveys of children. For instance, Roy (1988) interviewed 146 children aged 11 to 17 who had been
exposed to domestic violence. Almost of third of the girls (31%) either reported that they had been sexually
abused by their fathers and/or had documentation of sexual abuse in their case files. A survey of 313
college women , showed a similar trend. Nine percent of the women reported having witnessed some type
of physical conflict between their parents. Witnessing marital violence was associated with having
experienced childhood physical and/or sexual abuse (Feerick & Haugaard, 1999).
Still, a child doesn't have to be physically or sexually abused to be harmed by domestic violence. Research
on children’s exposure to domestic violence has consistently identified a range of negative outcomes for
these children (Kernic et al., 2003; Wolfe et al., 2003). In fact, children exposed to domestic violence may
show comparable levels of emotional and behavioral problems to children who were the direct victims of
physical or sexual abuse (Jaffe, Wolfe, & Wilson, 1990)
For more information see:
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family , Washington, D.C.: Author.
Appel, A. E. & G. W. Holden (1998). The Co-occurrence of Spouse and Physical Child Abuse: A Review
and Appraisal. Journal of Family Psychology, 12(4): 578-599.
Bancroft, L., & Silverman, J. (2003). The Batterer as Parent. Thousand Oaks, CA: Sage.
Bancroft, L., & Silverman, J. (2002). Assessing risk to children from batterers. (http://www.lundybancroft.
com/pages/articles_sub/JAFFE.htm)
Edleson, J. L. (1999). The overlap between child maltreatment and woman battering. Violence Against
Women, 5(2), 134-154. (Pdf: http://www.vawnet.org/DomesticViolence/Research/VAWnetDocs/AR_overlap.
pdf )
Feerick, M. M., & Haugaard, J.L. (1999). Long-term Effects of Witnessing Marital Violence for Women: The
Contribution of Childhood Physical and Sexual Abuse. Journal of Family Violence, 14(4), 377-398.
Kernic, M. A ., Wolf, M. E ., Holt, V. L ., McKnight, B ., Huebner, C. E ., & Rivara, F. P. (2003). Behavioral
problems among children whose mothers are abused by an intimate partner. Abuse & Neglect, 27(11),
1231-46.
Jaffe, P. G.,Wolfe, D. A., & Wilson, S. K. (1990). Children of battered women. Newbury Park, CA: Sage
Publications.
Paveza, G. (1988). Risk factors in father-daughter child sexual abuse. Journal of Interpersonal Violence, 3
(3), 290-306.
Ross, S. M. (1996). Risk of physical abuse to children of spouse abusing parents. Child Abuse & Neglect,
20(7), 589-98.
Roy , M. (1988). Children in the crossfire: Violence in the home - how does it affect our children? Deerfield
Beach , FL : Health Communications.
Straus, M. A. (1983). Ordinary violence, child abuse, and wife beating: What do they have in common? In
D. Finkelhor, R. J. Gelles, G. T. Hotaling, & M. A. Straus (Eds.), The dark side of families: Current family
violence research (pp. 213-234). Newbury Park, CA: Sage.
Wolfe, D. W. Crooks, C. V., Lee, V., McIntyre-Smith, A., & Jaffe, P. G. (2003). The effects of exposure to
domestic violence on children: A meta-analysis and critique. Clinical Child and Family Psychology Review,
6, 171-187.
Myth 3: Custody transfers to abusive parents are rare.
Some have suggested that custody transfers to abusive parents are rare events. Most of us would like to
believe this. Unfortunately, empirical research examining this issue has repeatedly shown that men who
ask for custody of their children often get it, whether or not they have a history of violence.
Although women are more likely to get custody of their children, this is often because they are more likely
to ask for it. When men ask for custody, they often get it. According to a report by the American
Psychological Association, an abusive man is more likely than a nonviolent father to seek sole physical
custody of his children and may be just as likely (or even more likely) to be awarded custody as the mother
(APA, 1996). A report by the American Judges Foundation, reported that 70% of the time an abuser who
requests custody is able to convince the court to give it to him.
The majority of parents in "high-conflict divorces" involving child custody disputes report a history of
domestic violence and/or child abuse. For example, a review of one sample of parents referred for child
custody evaluations by the court found that domestic violence was raised in 75% of the cases (Jaffe &
Austin, 1995 as cited by Jaffe, Crooks, & Poisson, 2003). Another study found that between 70% and 75%
of parents who were referred by the family court for counseling because of failed mediation or continuing
disputes over the care of their children described marital histories that included physical aggression
(Johnston & Campbell, 1988).
However, raising allegations of abuse often hurts the abused or protective parent more than the alleged
abuser. An ongoing study funded by the National Institute of Justice study shows that women who inform
custody mediators that they are victims of domestic violence often receive less favorable custody awards
(Saccuzzo & Johnson, 2004). The investigators found that only 35% of mothers who alleged domestic
abuse got primary custody, compared to 42% of mothers who did not. Father who were accused of
domestic violence were given primary custody in 10% of cases, father not accused of domestic violence
got primary custody 9% of the time. Thus, disclosing domestic violence hurt the women who disclosed
being victimized; while alleged perpetrators suffered no ill effects - that is unless the mediator noted
evidence of violence when the mother did not allege domestic violence. When this occurred, mediators
recommended protected child exchanges twice as often. Thus women who were forthright with their
domestic violence allegations secured less protection for themselves and their children.
A recent study by the Harborview Injury Prevention & Research Center in Seattle confirms these results
(Kernic et al., 2005). The researchers analyzed documentation on more than 800 local couples with young
children who filed for divorce in 1998 and 1999, including 324 cases with a history of domestic violence.
They found that evidence of domestic violence did not appear to change how courts decided custody. In
other words, fathers who were violent were just as likely to receive custody when they asked for it as
fathers who were not violent. Only 17% of fathers with a known history of domestic violence were denied
child visitation and they were no more likely than other fathers to be required by the court to have a third
party supervise child visitations.
Concerns about how family courts are handling cases involving abuse were also raised by the findings of
Neustein and Goetting (1999). They examined judicial responses to protective parents' complaints of child
sexual abuse in 300 custody cases with extensive family court records. The investigators found that in only
10% of cases where allegations of child abuse were raised was primary custody given to the protective
parent with supervised contact with alleged abuser. Conversely, 20% of these cases resulted in a
predominantly negative outcome where the child was placed in the primary legal and physical custody of
the allegedly sexually abusive parent ( see, p. 108). In the rest of the cases, the judges awarded joint
custody with no provisions for supervised visitation with the alleged abuser.
To better understand the problems that protective parents face in the legal system, researchers at
California State University , San Bernardino , are performing an on-going national survey (Stahly et al.,
2004). To date, over 100 self-identified protective parents have completed the 101-item questionnaire.
The results are quite shocking. Prior to divorce, 94% of the protective mothers surveyed say that they
were the primary caretaker of their child and 87% had custody at the time of separation. However, as a
result of reporting child abuse, only 27% were left with custody after court proceedings. Most protective
parents lost custody in emergency ex parte proceedings (where they were neither notified nor present)
and where no court reporter was present.
The vast majority of these mothers (97%) reported that court personnel ignored or minimized reports of
abuse. They reported feeling that they were punished for trying to protect their children and 65% said they
were threatened with sanctions if the "talked publicly" about the case. In all, 45% of the mothers say they
were labeled as having Parental Alienation Syndrome (PAS).
The protective parents reported that the average cost of the court proceedings was over $80,000. Over a
quarter of the protective parents say they were forced to file bankruptcy as a result of filing for custody of
their children. Eighty-five percent of the protective parents surveyed believe that their children are still
being abused; however, 63% say they stopped reporting the abuse for fear that contact with their children
will be terminated. Eleven percent of the children were reported to have attempted suicide.
For more information see:
An annotated overview of research documenting protective parents losing custody to abusers can be
found at http://www.leadershipcouncil.org/1/pas/dv.html
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family, Washington , D.C.: Author.
American Judges Foundation, Domestic Violence and the Court House: Understanding the Problem.
Knowing the Victim, Forms of Emotional Battering Section, Threats to Harm or Take Away Children
Subsection http://aja.ncsc.dni.us/domviol/page5.html
Kernic, M. A., Monary-Ernsdorff, D. J., Koepsell, J. K., & Holt, V. L. (2005). Children in the crossfire: child
custody determinations among couples with a history of intimate partner violence. Violence Against
Women, 11(8), 991-1021.
Jaffe, P. Crooks, C. V., & Poisson, S. E. (2003). Common Misconceptions in Addressing Domestic Violence
in Child Custody Disputes. Juvenile and Family Court Journal, 54(4), 57-67.
Johnston, J. R. & Campbell, L. E. G. (1988). Impasses of divorce: The dynamics and resolution of family
conflict. New York: The Free Press.
Neustein, A., & Goetting, A. (1999). Judicial Responses to Protective Parents, Journal of Child Sexual
Abuse , 4, 103-122. http://www.haworthpressinc.com/store/SampleText/J070.pdf (page 109 of pdf)
Saccuzzo, D. P. & Johnson, N. E. (2004). Child Custody Mediation's Failure to Protect: Why Should the
Criminal Justice System Care? NIJ Journal, 251, Available from the National Institute of Justice. http://ncjrs.
org/pdffiles1/jr000251.pdf (page 21)
Stahly, G. B., Krajewski, L., Loya, B. Uppal, K., German, G., Farris, W., Hilson, N., & Valentine, J. (2004).
Protective mothers in child custody disputes: A study of judicial abuse. California State University, San
Bernardino .
Myth 4: Fit mothers do not lose custody.
Many people assume that the only way a mother would lose custody to an alleged batterer or child abuser
was if she were proven to be an unfit parent. Most people have difficulty believing that that a court would
take a child away from a mother who has heretofore been the child's primary caretaker if her only crime is
expressing concern about her own or her child's safety. Unfortunately, this is happening; the only real
question is why.
There is no single answer to this question. Instead, it appears that a number of factors are involved. First,
there is a widespread belief in our society that a person who both appears and acts normal could not
possibly be a violent batterer or child abuser. Offenders are well aware of our propensity for making
assumptions about private behavior from one's public presentation and they tend to use this knowledge of
our collective blindness to their advantage by appearing to be the perfect parent during court
appearances (Salter, 2003). Mothers concerned about the safety of their children, on the other hand,
often appear overly concerned and as if they are exaggerating the problem.
As a report by the American Psychological Association pointed out:
If the court ignores the history of violence as the context for the mother's behavior in a custody evaluation,
she may appear hostile, uncooperative, or mentally unstable. For example, she may refuse to disclose her
address, or may resist unsupervised visitation, especially if she thinks her child is in danger. Psychological
evaluators who minimize the importance of violence against the mother, or pathologize her responses to it,
may accuse her of alienating the children from the father and may recommend giving the father custody in
spite of his history of violence. (APA, 1996)
A second reason that fit mothers lose custody to alleged abusers is that many officers of the court believe
that the only reason women raise abuse allegations during custody disputes is to gain a tactical
advantage. Research, however, fails to find such an advantage. In fact, women who raise abuse
allegations appear to receive less favorable rulings than those who do not (see e.g., Saccuzzo & Johnson,
2004). This may be because women who allege abuse may be seen as fabricating or exaggerating
incidents of violence as a way of manipulating the courts (Doyne et al., 1999). For this reason, some
lawyers advise women not to tell courts or mediators about child abuse or domestic abuse because, by
doing so, they risk losing custody to the alleged abuser ("Custody Litigation," 1988; Saccuzzo & Johnson,
2004).
A third factor contributing to the problem is statutory. Most state legislatures have enacted legislation
requiring family courts to favor joint custody arrangements, and when this isn't possible, to favor the parent
who appears most "friendly" to a joint custody arrangement. At least 31 states have statutes requiring
courts to consider how "cooperative" the parent is when determining custody arrangements (Gonzalez &
Reichmann, 2005).
The intent of "friendly parent" preferences is to guarantee that children go to the parent most likely to
facilitate the child's relationship with the other parent. Although this goal is laudable; in practice, the result
has been to penalize parents who raise concerns about child abuse or domestic violence (Dore, 2004).
Friendly parent preferences tend to favor abusers who rarely object to the nonabusive parent having
access to the child. Protective parents, on the other hand, frequently seek to curtail a violent parent's
access to the child. Moreover, the very act of raising concerns of abuse, suggests to the court that the
protective parent is inherently "unfriendly" and should therefore be denied custody ( Dore, 2004) . Some
professionals have found that the friendly parent concept is most often employed against the custodial or
primary parent, typically the mother (Zorza, 1992).
Some states have tried to rectify injustices resulting from friendly parent preferences by enacting
presumptions against custody to a perpetrator of domestic violence. Unfortunately, these presumptions
are not always followed, especially when "friendly parent" preferences continue to remain on the books.
For instance, Morrill et al. (2005) evaluated the effectiveness of statutes mandating a presumption against
custody to a perpetrator of domestic violence in 6 different states. The investigators examined 393 custody
and/or visitation orders where the father perpetrated domestic violence against the mother and surveyed
60 judges who entered those orders. They found that children failed to be protected in states with a
statutory presumption against custody to an abuser when the state also had a "friendly parent" provision in
their statutes with a presumption for joint custody.
A fourth reason that fit mothers may lose custody to an alleged abuser is due to lax standards that allow
junk science to influence custody decisions in family courts. Over the years a number of "syndromes" have
been developed that pathologize the responses of parents who seek to protect their child from an abusive
spouse. The most popular of these syndromes, "Parental Alienation Syndrome." is discussed in the next
section.
For more information see:
American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and
the Family, Washington, D.C : Author.
Custody litigation and the child sexual abuse backfire syndrome. (1988, Winter). Jurisfemme, 8, 21.
Dore, M. K. (2004). The "Friendly Parent" Concept: A Flawed Factor for Child Custody, Loyola Journal of
Public Interest Law, 6, 41-56. http://www.margaretdore.com/images/DORE2.pdf
Doyne, S. E., Bowermaster, J. M., Meloy, J. R., Dutton, D., Jaffe, P., Temko, S., & Mones, P. (1999).
Custody disputes involving domestic violence: Making children's needs a priority. Juvenile and Family
Court Journal, 50 (2), 1-12.
Gonzalez, A. M., & Reichmann, L. M. (2005). Representing Children in Civil Cases Involving Domestic
Violence. Family Law Quarterly, 39 (1), 197-220.
Leadership Council. (n.d.). Eight Myths about Child Sexual Abuse. http://www.leadershipcouncil.
org/1/res/csa_myths.html
Morrill, A. C., Dai, J., Dunn, S., Sung, I. , & Smith, K. (2005). Child custody and visitation decisions when
the father has perpetrated violence against the mother. Violence Against Women, 11(8), 1076-1107.
Saccuzzo, D. P. & Johnson, N. E. (2004). Child Custody Mediation's Failure to Protect: Why Should the
Criminal Justice System Care? NIJ Journal, 251, Available from the National Institute of Justice. http://ncjrs.
org/pdffiles1/jr000251.pdf (page 21)
Johnson, N. E., Saccuzzo, D. P., & Koen, W. J. (2005). Child custody mediation in cases of domestic
violence: Empirical evidence of a failure to protect. Violence Against Women, 11 (8), 1022-1053
Salter, A. C. (2003). Predators: Pedophiles, rapists and other sex offenders: Who they are, how they
operate, and how we can protect ourselves and our children. New York: Basic Books.
Zorza, J. (1992). Friendly parent provisions in custody determinations. Clearinghouse Review, 26(8), p.
924.
Myth 5: Parental alienation syndrome is a common, well-documented phenomenon.
Those who buy into the myth that mothers frequently raise false allegations of abuse may attempt to
explain this phenomenon by relying on a legal theory called Parental Alienation Syndrome (PAS). Some
suggest that the theory is based on science, and that PAS is a well-documented phenomenon .
Although estrangement from one or both parents can occur in children during an acrimonious divorce,
Parental Alienation Syndrome (PAS) lacks a scientific foundation and has never been shown to be a valid
explanation of this process. In fact, Dr. Richard Gardner, the theory's creator, developed his theory while
working as a paid consultant to men charged with sexually abusing their children. Thus, the syndrome was
created as a defense theory to counter a child's allegation of sexual abuse (Dallam, 1999).
Gardner defines PAS as follows:
The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child custody
disputes. Its primary manifestation is the child's campaign of denigration against a parent, a campaign that
has no justification. It results from the combination of a programming (brainwashing) parent's
indoctrinations and the child's own contributions to the vilification of the target parent . .
Gardner defines PAS as a psychiatric disorder that arises in the course of child-custody disputes
adjudicated in the context of adversarial proceedings. Gardner's theory portrays the child's preferred or
protective parent (usually the mother under PAS) as an evil "alienator" who is virtually solely responsible
for turning a vulnerable child against their estranged parent (usually the father under PAS). The child is
thus viewed as mentally ill and the "alienating' protective parent (for example, a mother that raises
concerns about abuse) is viewed as the sole cause of the disorder. When this parent is judged to be in the
"severe" category, Dr. Gardner recommended sole custody to the other parent - the parent that the child
claims is abusing them. Thus, the main cure for this alleged mental illness is for the child to be placed in
greater contact with an alleged abuser while their contact with the protective parent is curtailed or halted
altogether.
It should be pointed out that Gardner never submitted his theory to testing and it has never been shown to
be a valid syndrome. Despite these shortcomings, PAS has gained traction in the courts as it fits well with
court's friendly parent preference. Moreover, some courts have accepted PAS because it apparently
appears to explain a well-recognized phenomenon within custody battles - the often acrimonious fight
between parents for their child's affection.
Unfortunately, Parental Alienation Syndrome, like the friendly parent concept it is based upon, presents
the court with a paradox that seems to undermine rational decision-making when considering the best
interests of children. With PAS theory, the concerned custodial parent's steps to obtain professional
assistance in diagnosing, treating, and protecting the child, constitute evidence of "alienation." Attorney
Richard Ducote (2002) noted:
"One irony of . . . 'PAS' is that the increased existence of valid evidence of true sexual abuse leads
Gardner and his devotees to more fervently diagnose 'PAS.' Thus, 'PAS' is the criminal defense attorney's
dream, since the greater the proof of the crime, the greater the proof of the defense."
In professional journals, PAS has been cited an example of bad science that has been presented to the
courts as credible forensic evidence. For instance, in an article published in Professional Psychology:
Research and Practice , Rotgers and Barrett (1996) cite PAS theory as a prime example of a nonscientific
theory that engages in "reverse logic." Moreover, PAS has been widely discredited in academic circles for
being biased against women and children, and flawed in its failure to take into account alternative
explanations for the behavior of the parties involved.
Further, critics have noted that Gardner 's methods for determining the veracity of an abuse allegation are
seriously biased in favor of the alleged child molester. Lisa Amaya-Jackson, M.D., Assistant Professor of
Psychiatry and Medical Director of Child and Adolescent Trauma Treatment Services at Duke University,
and Mark D. Everson, Ph.D., Clinical Associate Professor in Psychiatry and Director of the Program on
Childhood Trauma & Maltreatment at University of North Carolina Hospitals, Chapel Hill, reviewed
Gardner's book Protocols for the Sex-Abuse Evaluation and found Gardner's system for detecting sexual
abuse in children to be "seriously flawed." They stated: "Bias can be noted in the author's attempts to
discredit a child's allegations by resorting to narrow, often oversimplified notions of how sexually abused
children are supposed to behave." They further note that while he discusses the importance of evaluators
being neutral and objective, Gardner conveys "a strong bias that the overwhelming majority of allegations,
especially in custody-related cases, are false and that the assessment procedures the author advocates
are slanted to arrive at such a conclusion." Amaya-Jackson and Everson (1996) conclude: "This book can
perhaps best be described as a recipe for finding allegations of sexual abuse false, under the guise of
clinical and scientific objectivity. One suspects that it will be a bestseller among defense attorneys."
A recent study (cited by Johnston & Kelly, 2004) assessed the multiple factors that could contribute to the
child's rejection of a parent. They concluded that just as important as alienating behaviors on the part of a
parent were the child's actual experiences of child abuse or lack of parental warmth in their interaction with
the rejected parent.
This is not to imply that abuse allegations are always accurate, or that parents do not attempt to
manipulate their children during adversarial custody litigation. However, family courts need to be educated
with a more scientific, sophisticated approach to the complexities of determining custody. The latest
research on children embroiled in custody conflicts supports looking at the multiple, interacting, and often
complex factors that affect a child's feelings about his or her parents. Conversely, simplistic theories such
as PAS theory are not sufficiently scientific to be able to make cause and effect determinations and can
place children in danger of being revictimized in family court.
For more information see:
Amaya-Jackson, L., & Everson, M.D. (1996). Book Reviews: Protocols for the Sex-Abuse Evaluation .
Journal of the American Academy of Child & Adolescent Psychiatry, 35(7), 966-967.
Dallam, S. J. (1999). Parental Alienation Syndrome: Is it scientific? In E. St. Charles & L. Crook (Eds.),
Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our
Children Our Children Charitable Foundation. http://www.leadershipcouncil.org/1/res/dallam/3.html
Dallam, S. J. (1998). Dr. Richard Gardner: A review of his theories and opinions on atypical sexuality,
pedophilia, and treatment issues. Treating Abuse Today, 8(1), 15-23. http://www.leadershipcouncil.
org/1/res/dallam/2.html
Dallam, S. J. (n.d.). Are Allegations of Sexual Abuse That Arise During Child Custody Disputes Less Likely
to Be Valid? An Annotated Review of the Research. http://www.leadershipcouncil.org/1/pas/ap.html
Ducote, R. (2002). Guardians Ad Litem in Private Custody Litigation: The Case for Abolition. Loyola
Journal of Public Interest Law, 3, 141.
Gardner, R. A. (2003). The Judiciary's Role in the Etiology, Symptom Development, and Treatment of the
Parental Alienation Syndrome (PAS), American Journal of Forensic Psychology . 21(1), http://www.
rgardner.com/refs/ar11w.html
Rotgers, F., & Barrett, D. (1996). Daubert v. Merrell Dow and expert testimony by clinical psychologists:
Implications and recommendations for practice. Professional Psychology: Research and Practice, 27(5),
467-74.
Johnston, J. R. & Kelly, J. B. (2004). Commentary on Walker, Brantley, and Rigsbee (2004) "A critical
analysis of parental alienation syndrome and its admissibility in the family court." Journal of Child Custody,
1(4), 77-89.
Myth 6: Children are more likely to be abused in the care of a woman than a man.
The myth that women are more violent toward children than men is currently being promoted by some
extremist groups. This claim is based, in part, on a statistical report by the U.S. Department Health and
Human Services (HHS) which breaks down the number of substantiated reports of child abuse and neglect
by gender. The HHS analysis shows that of children maltreated by their parents, 40.8% of child victims
were maltreated by their mothers acting alone; another 18.8% were maltreated by their fathers acting
alone; and 16.9% were abused by both their mother and father. Some seek to misuse this statistic to
suggest that children are more at risk in the care of mothers than fathers.
When looking at the HHS report, however, it is important to note that most of the instances of substantiated
maltreatment involved neglect of children under the age of three years. Because women tend to spend
many more hours in contact with small children than men in our society, it makes sense that overall a
young child is more likely to be maltreated by a woman rather than by a man.[1] However, this does not
suggest that a child is safer when in the care of a father than a mother.
A recent population-based case-control study reviewed 8 years of child-fatality-review data in Missouri .
The investigators found that females were perpetrators for just 26% of all inflicted fatal injuries on young
children (Schnitzer & Ewigman, 2005). The vast majority of perpetrators were male (71.2%). In most
instances, the perpetrator was the child's father (34.9%) or a boyfriend of the mother 24.2%. The child's
mother was the perpetrator in only 19.7% of fatalities (see Table 1).
TABLE 1. Inflicted Fatal Injuries on Young Children:
Gender of Perpetrator and Relationship to Deceased Child*
Gender and Relationship Percent Total
Males 71.2%
----Biological father 34.9%
----Boyfriend of mother 24.2%
----Other male relative 4.5%
----Male nonrelative 3.0%
----Stepfather 2.3%
----Male babysitter 1.5%
----Foster father 0.8%
Females 25.8%
----Biological mother 19.7
----Female babysitter 3.0
----Other female relative 1.5
----Girlfriend of father 0.8
----Female, nonrelative 0.8
Gender unknown 3%
----Babysitter or other nonrelative 3%
Total 100
*Adapted from Schnitzer & Ewigman, 2005, Table 3
Based on their research, Schnitzer and Ewigman (2005) concluded that children are safest when they live
in households with both biological parents or one biological parent and no other adults. Children appear to
be at are greatest risk when they live in households that include males who are not related to them.
Other recent studies reveal similar findings. For instance, Starling et al. (1995) identified perpetrators of
both fatal and nonfatal abusive head trauma over a 12-year period (1982-1994) at the Children's Hospital
of Denver . Male perpetrators outnumbered females over 2:1. In all, 68.5% of perpetrators were male, with
fathers, step-fathers, and mothers' boyfriends committing over 60% of the crimes (fathers accounted for
37% of the abusers, followed by boyfriends at 20.5%). Males were also tended to inflict more severe
injuries. Men were perpetrators in 74.2% of the cases of fatal abusive head trauma. The largest group of
female perpetrators were female babysitters would were responsive for 17.3% of cases. Mothers were
responsible for only 12.6% of abusive head trauma cases.
Courts should to be mindful of the ways that statistical data can be misused when assessing the safety of
living situations for children. In addition, it should be remembered that group data cannot tell us what living
situation is best for a child in a specific case. Currently, the best indicator that we have of a propensity
toward future violence is past behavior ( Crowley , 2005). Thus custody determinations require careful
examination of the evidence rather than rhetoric. Courts should pay special attention to the child's own
report of abuse or neglect, observations of a parent's interactions with his or her child, and past evidence
that a parent has been violent towards others in the household.
For more information see:
Crowley , B. (2003). The Assessment of Danger in Everyday Practice. Psychiatric Times, 20(6), http://www.
psychiatrictimes.com/p030674.html
Schnitzer, P. G., & Ewigman, B. G. (2005). Child Deaths Resulting From Inflicted Injuries: Household Risk
Factors and Perpetrator Characteristics. Pediatrics, 116(5), 687-693.
http://pediatrics.aappublications.org/cgi/content/full/116/5/e687#R33
Starling, S. P., Holden, J. R., & Jenny, C. (1995). Abusive head trauma: The relationship of perpetrators to
their victims. Pediatrics, 95, 259-262. [Abstract]
U.S. Department of Health and Human Services. (2005). Child Maltreatment 2003: Reports from the States
to the National Child Abuse and Neglect Data Systems - National statistics on child abuse and neglect. http:
//www.acf.hhs.gov/programs/cb/publications/cm03/index.htm
1. When we make judgments based on statistical data, we must place numbers in the context of their
denominator rather than simply comparing the raw data. In other words, for these statistics to be
meaningful, we must compare rates of maltreatment that have been adjusted based on hours of contact
with the child . As illustration, consider the following example. If we compared the murder rate of any small
town in American with the murder rate in any large city, we would get the impression that large cities are
very dangerous simply because many more people die. Only when murder rates are adjusted for the
number of people actually living in the community is it possible to determine which town is in fact the safest.
For example, if 20 people were murdered in the large town and 2 people were murdered in the small town,
some might suggest that small towns are much safer places to live. However, if we adjust the rates for the
actual population, we might find that the population of the large town is 100,000, while the population of
the small town is only 100. Thus, the actual murder rate for the large town would be 20 per 100,000, while
the murder rate in the small town would be 2000 per 100,000! In this case, the murder rate in the small
town would be 100 times higher than the larger one. For this reason, statistics of maltreatment by gender
of caretaker, must take into account the amount of time actually spent with the child.
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LLC , the author of the information and any other legal publisher. Customers of BS Kids should not act upon this information without seeking professional counsel. The
opinions expressed in the material presented to BS Kids clientele is based on information found in legal publications. BS Kids LLC, 78 Canterberry Court, Hudson, NH
03051 781-756-1214.
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