What I Have Learned At The Courthouse

5 01 2010

After twenty years in family law courtrooms throughout the country, I confidently say that no woman, despite very abundant evidence that her child has been sexually molested by her ex-husband or that she has been repeatedly pummeled by the violent father of her child, can safely walk into any family court in the country and not face a grave risk of losing custody to the abuser for the sole reason that she dared to present the evidence to the judge and ask that the child be protected. Why is that? The fault does not lie with the “law’ except to the extent that judges are granted discretion under the law. No statute, codal provision, or court rule was ever designed for the purpose of hurting kids. If the law fails kids, the judges are failing kids.

There are several paradoxes that terribly frustrate those in these trenches. First, criminal courts-with the heavy burden of proof beyond a reasonable doubt-will convict people for crimes of abuse on the same evidence that family court judges deem to be no evidence at all. Second, normal reactions of mothers to abuse of themselves or their children are viewed by family court judges as evidence that the abuse never occurred. Third, mental health evaluations are considered more reliable and desirable “evidence” of whether or not an event occurred than eyewitnesses, physical evidence, or even admissions by the perpetrator. And fourth, the lack of eyewitnesses, physical evidence, or admissions is considered proof that the event did not happen, despite its rejection as meaningless when present.

We live in an era professing condemnation of child rape and wife beating. We spend countless advertising dollars seeking to persuade mothers to protect themselves and their children, and when they do not act quickly enough, they are found unfit for choosing the abuser over their own child.

Yet, let them heed our advice, let them go to the courthouse – often for the first time in their lives, to ask the judicial branch to honor its end of the social contract – and request simple physical safety, and they face destruction in the backfire of a system beating its chest to the hollow chant of the “child’s best interest.” The “child’s best interest.” a phrase so insidiously potent that appellate courts are loathe to question some trial judge’s irrational, unsubstantiated, gender-biased, self-contradictory, absurd, off-the-wall interpretation of it.

In 1993, when the Louisiana Supreme Court was assessing the constitutionality of Revised Statute 9:364, the Post Separation Family Violence Relief Act (which required the suspension of visitation upon a finding by a preponderance of evidence that a parent had sexually abused his or her child), one of the justices remarked during the oral argument, “I don’t get it. Just because you molest your child, you lose visitation? That’s very Draconian! What if it was just a little molestation?” How does one respond to that basic attitudinal, psychological, legal, common sense, judicial, and judgmental flaw? Can such be legislated away, when he was sitting there judging the legislature’s perfectly fine solution to this problem? That judge represents one facet of the courtroom chaos.

I recalled another judge in Spokane, Washington, who was deciding whether to allow a sexually abusive father unsupervised visitation after a couple of months of monitored contact with the child. His reason for doing so? “I’ve heard no evidence whatsoever that the man did anything untoward with the child during the supervised visits. He didn’t even say an obscene word to the child!” As if this were a valid test to determine if the abuse had occurred or would happen again. Surely, this judge thought that if the man could hold it together enough to keep his dirty hands away from the child while under the scrutiny of peering eyes, his vulgar mouth would certainly betray him. Maybe this simply reflects inadequate training or a defect in basic reasoning ability.

Then there was the bright, well-intentioned judge in New Orleans hearing the case of the nurse who, until then believing that she had a great marriage, twice unmistakably caught her husband in the middle of the night in their eighteen-month-old son’s bed fondling the child’s penis. When she moved for sole custody and no visitation with the father, the court, with every good intention, punted in the de rigueur family court style. He ordered psychological evaluations for all. One for Dad: Is he a child molester? One for Mom: Is she the type to fabricate? One for the son: Is he sexually abused? He opted for hocus-pocus while rejecting competent direct eyewitness testimony that would open and shut any other type of trial. There is no evaluation of Dad that would determine if he is an abuser, unless he admits as much in the process. There is no evaluation of Mom that would smoke out the fabricator, And there is no evacuation of the child, under this scenario, that would establish his victimization. But in due course, Mom would be frazzled and angry and anxious-all red flags in this Kafkaesque world. Dad would be calm and collected and shocked at the allegations. Applying the paradigm of the standard custody evaluation, Dad emerges as the better custodian in the “child’s best interest.” Thus, despite solid evidence of the truth, the court opts for a process that is designed to find just the opposite.

The handiest aspect of molesting children and beating women is that these crimes come with their own defense. The vindictive women made it up to get back at their men. In virtually every court allegation of these crimes, the defense is the same. In that regard, Richard Gardner’s foolish Parental Alienation Syndrome’ simply calls evidence that abuse did indeed occur evidence that the child was programmed by the ever-evil mother. And unfortunately for the victims, the abusers find willing accessories on the bench who will find those motivations lurking in the accusers despite a total lack of any evidence to support those notions. Criminal court juries

usually see through the bogus wall of desperation. Family court judges-the supposed gatekeepers of protection-instead typically help lay the bricks.

Since the adoption of no-fault divorce, the fact-finding role of family courts has atrophied. It is no longer necessary to determine the existence of any fact other than the passage of a certain number of months. What is and is not evidence of an occurrence is often foreign. And the seasoned family court lawyer is not typically a litigator, except to the extent necessary to attempt to uncover hidden cash for property settlements, alimony or child support. But let an abuser be caught, and he goes directly for the aggressive criminal lawyer whose cross-examination and obfuscation talents bewilder those advocates already uncomfortable in an intense factual adjudication.

Even after twenty years of this, my despair has recently waned-maybe only for the moment. The Louisiana Supreme Court, now absent the justice quoted above, is redeemed. On June 29, 1999, in the case of Folse v. Folse (No.98-1976 1999 WL 451026 a]) the court ruled that clear and convincing proof in a custody case of sexual abuse, sufficient to terminate the abusers visitation under the Post-Separation Family Violence Relief Act, R.S. 9:36 1-369, is established by the child’s specific complaints and demonstrations of sexual abuse to her mother and others, including her therapist, and the child’s age inappropriate knowledge of adult sexual behavior. In the most important pro-child, pro-truth decision to come from an appellate court during my career, the Louisiana Supreme Court has demonstrated that the legal system can rationally synthesize statutory evidence and clinical evidence to reach the correct result.