LC News

By: Paul J. Fink, Judge Sol Gothard, and Tasha Amador

Published in November 1, 2005 in

Los Angeles Daily Journal

San Francisco Daily Journal

The Family Court Reform Coalition (FCRC), a national organization composed of many of the nation’s leading experts in the fields of child custody, child abuse, psychology, and domestic violence, would like to respond to the controversy surrounding the outstanding new PBS documentary Breaking the Silence: Children’s Stories.

This groundbreaking film explores the failure of many family courts to protect child abuse victims in custody cases involving domestic violence.

The national talk radio host, Glenn Sacks, has launched a nationwide protest campaign against the PBS film and has made numerous public statements strongly criticizing the documentary.

Sacks has stated that “PBS has declared war on fathers” and the film is “an assault on fatherhood. ” What is of concern is Sacks’ near-total focus on the portrayal of fathers in the film, and what he views as the questionable behavior of mothers in custody disputes.

What Sacks fails to recognize is that this issue is not about fathers or mothers.

This issue is about children, and about ensuring that abused children are protected in the family courts. That important and salient point somehow was lost in Sacks’ public statements, which reflect a multitude of accusations and concentrated diatribe against mothers and his concerns regarding the negative effects of “draconian” domestic violence policies on fathers in the documentary.

The Family Court Reform Coalition supports this compelling and powerful PBS film, as it brings to light a national scandal hidden in many family courts for the last 20 years. Many family courts are failing to protect children from their abusers, in custody cases involving domestic violence.

Over the last two decades, it has been reported that hundreds of children across the country have been placed in the custody of the parent they disclosed sexually and/or physically abused them. These abusive parents overwhelmingly have a history of domestic violence. Research indicates that at least 50% of contested custody cases involve domestic violence.

As accurately noted in the film, many domestic batterers are deliberately sexually and/or physically abusing their children as a means to traumatize the former abused partner, as they recognize hurting the children is the single most painful way to hurt the ex-partner.

These batterers then use the family court system as a continuing tool of abuse by filing for sole custody of the children in order to continue harming their families after the abused partner escapes the violent relationship.

Parents who leave abusive partners are often met with retaliatory lawsuits for child custody by batterers in family court, who seek to punish the partner for leaving by taking the children away.

Recent studies show that batterers are 4 to 6 times more likely to sexually abuse their children than non-violent parents. Multiple studies have established the high overlap between battering and incest perpetration.

In attacking the PBS documentary and its support for the abuse disclosures of children in family court custody cases, it is important to note that Family Court Reform Coalition disputes Sacks’ public statements of fact and his representations of research findings.

Sacks has made public statements claiming that “the vast majority of accusations of child sexual abuse made during custody battles are false.”

This is inaccurate. Multiple studies show that at least 50 percent of sexual abuse allegations raised during custody disputes are in fact “substantiated” or “founded.” McDonald; Thoennes & Tjaden; Jones & McGraw.

While false abuse allegations do occur in contested custody cases, the research indicates that they are uncommon. The largest study to date on the topic, by Thoennes & Tjaden of the Association of Family and Conciliation Courts, comprising 9,000 families with custody disputes, indicated that less than 2 percent of the cases even had allegations of sexual abuse – hardly an epidemic.

While some judges and family court officials believe that most abuse allegations made during divorce are false, the research on the topic shows that the actual rates of such “false allegations” are very low.

A cross section of studies showed that the rate of false allegations in a custody context was found to be quite low, between 1 percent to 7.6 percent. McDonald; Thoennes & Tjaden; Jones & McGraw.

In attempting to discredit the PBS film, Sacks grossly misrepresents the findings of a 1996 study published in Social Science and Modern Society by Douglas Besharov and Lisa Laumann.

Sacks inaccurately claims the study shows that “the vast majority of accusations of child sexual abuse made during custody battles are false, unfounded or unsubstantiated.”

Sacks’ statement implies that the study states that these are deliberate false allegations.

The study did not say such abuse allegations were “false”; what the study actually stated was that “Upon investigation, as many as 65 percent of the reports now being made are determined to be ‘unsubstantiated.'”

It must be understood, however, that “unsubstantiated” or “unfounded” is not necessarily the same as false.

The 1996 study cited by Sacks directly confirms this and states that “Moreover, an unfounded report does not necessarily mean that the child was not actually abused or neglected.”

In fact, the study states that “Few unfounded reports are made maliciously. Studies of sexual abuse reports, for example, suggest that, at most, from 4 to 10 percent of these reports are knowingly false. Likewise, few inappropriate or unfounded reports are deliberately false statements. Most involve an honest desire to protect children coupled with confusion about what conditions are reportable.”

The 1996 study cited by Sacks also provides reasons that true cases of abuse might be labeled “unfounded” or “unsubstantiated”: “Evidence of child maltreatment is hard to obtain and might not be uncovered when agencies lack the time and resources to complete a thorough investigation or when inaccurate information is given to the investigator.”

In addition, there are other legitimate reasons why true cases of child sexual abuse might be labeled “unsubstantiated,” including a lack of physical evidence, which often leads some judges to think the abuse allegation was “false” and the accused parent must be “innocent.”

However, studies show that even in cases with proven penetration, up to 95 percent of true cases of sexual abuse will have no physical evidence. Kellogg et al; Heger et al; Adams et al.

This is because children heal very quickly, and if they are not examined within 48 hours of the abuse, any genital injuries will often have already healed and there will be no detectable physical evidence to be found upon examination.

Also, most molestation/incest involves abuse that does not leave a physical trace, such as fondling or oral sex – thus, there will be no detectable physical evidence to be found in such cases. As a result, true sexual abuse cases are often labeled “unsubstantiated,” which again, is not the same as false.

Sacks has also provided distorted and inaccurate information regarding the controversial theory called “parental alienation syndrome.”

Parental Alienation Syndrome theory claims that exclusively in the context of a child custody dispute, parents will spontaneously develop a “mental illness” in which they seek to vilify the other parent, “brainwashing” the child into making false allegations of sexual abuse against the other parent.

The theory proposes that the proper “treatment” for this “mental disorder” is to increase the child’s time with the allegedly molesting parent to counteract the “alienating” behaviors of the accusing parent.

While the idea of “badmouthing” and negative feelings in divorce sounds familiar and plausible to most people, there is no research to show that such behavior can be equated with a “mental illness.”

Parental Alienation Syndrome has been used nationwide by batterers as a courtroom tactic to silence abused children by attempting to discredit their disclosures of abuse.

This theory is not recognized as valid by the American Psychological Association, the American Psychiatric Association, or the American Medical Association.

Parental Alienation Syndrome is not accepted as a psychiatric diagnosis, and has been rejected by the mainstream psychological community.

Parental Alienation Syndrome is junk science; there is no valid research or empirical data to support this unproven theory. While in 1980, Wallerstein and Kelly described children temporarily aligning with one parent after divorce, they state that such normal behavior dissipates over time.

No valid studies have ever been conducted to test or confirm the validity of PAS theory. A 2004 article in the American Journal of Family Therapy states that “The review of the literature does not show evidence of any previous inter-rater reliability studies for the purpose of testing PAS as a reliable syndrome and as suggested by Gardner” Rueda.

Sacks claims that PAS is a “well-documented phenomenon” that has been validated by a study of 700 divorce cases published by the American Bar Association.

In fact, the study cited by Sacks, published in 2003 (actually a reprint of a 1991 study) by Clawar and Rivlin, was a flawed study.

A 2004 article in the Journal of Child Custody , states that Clawar and Rivlin “fail to describe their methods and measures” for their study, showing a lack of sound scientific methodology. Garber.

The tactical use of Parental Alienation Syndrome theory by batterers in family court cases is greatly endangering children, by causing their disclosures of abuse to be discounted.

In the final analysis, we must consider the reality of the immeasurable damage done to children who are forced to live by court order with a molesting or abusive parent.

Anyone who cares about children should watch this important PBS documentary.

Countless children are undergoing unspeakable suffering in the custody of an abusive parent. Some family court systems which were designed to protect children have instead put them in danger, and something must be done about it – now.

Please contact the FCRC for more information or to learn when the PBS film will be aired in your state at: [email protected].

Dr. Paul J. Fink and Judge Sol Gothard are members of the Family Court Reform Coalition, and Tasha Amador is an executive board member of the group.

Fink is past president of the American Psychiatric Association and current president of the Leadership Council on Child Abuse and Interpersonal Violence.

Gothard is a retired 5 th Circuit Court of Appeals judge, a former chief judge for the Louisiana Jefferson Parish Juvenile Court and a former faculty member for the National Council of Juvenile and Family Court Judges.