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Posted in: Motherhood & Custody, Gender, Psychology & Law

Published on Dec 23, 2013 by Phyllis Chesler

Written for Argument & Critique

Can 'Good Enough' Mothers Lose Custody of their Children to Violent and Abusive Men?


Biographical note

Dr Chesler is one of the major figures in the history of contemporary feminism. She wrote many of the classic feminist texts such as Women and Madness, About Men, With Child: A Diary of Motherhood, Mothers on Trial: The Battle for Children and Custody, and Woman's Inhumanity to Woman. More recently she released An American Bride in Kabul: A Memoir. Dr. Chesler is co-founder of the Association for Women in Psychology (1969), the National Women's Health Network (1974), and the International Committee for the original Jerusalem-based Women of the Wall (1989). In 2009, 2010, and 2011, Dr. Chesler published three pioneering academic studies on honor killings and an academic article about the Burqa, in Middle East Quarterly. Since 9/11, Dr. Chesler has focused on the rights of women, dissidents, and gays in the Islamic world; on anti-Semitism and the demonization of Israel; the psychology of terrorism; the nature of propaganda; and honor-related violence. She has testified for Muslim and ex-Muslim women who are seeking asylum or citizenship based on their credible belief that their families will honor kill them.

Abstract

Myths about the custody of children still abound. Most people still believe that the courts favour mothers over fathers, that fathers are discriminated against in the Family Courts because they are men- and that this is how it's always been. Specifically, the myth that custody decisions invariably favour women needed to be challenged. It is contradicted by the history that I transcribed over the last quarter of a century (Chesler, 1986). In this paper, I compare and contrast my earlier work on custody (Chesler, 1986) with the history since then (Chesler, 2011) and consider whether anything has changed in regard to the significance of gender in custody determinations. I find that the central thesis of my previous work, namely that 'good enough' mothers are losing custody of their children on a massive scale, still holds. More ominously though, they are frequently losing custody to violent and abusive men.

Introduction

This paper argues that although discrimination against men is evident in the family courts, there is an even greater custodial vulnerability of women. There is a significant body of literature on the role of caring and responsible fathers, about male longings for a child, and about a child's need for fathering, collated for example by The National Responsible Fatherhood Clearinghouse

(NRFC). I do not dispute these important insights. The purpose here is to document the significant social change over the last quarter century during which, women have significantly lost custody to men, many of whom are violent and abusive to women and children.

Research methods

My research on this topic has involved extensive interviewing with the affected parties and interests. For the first edition of Mothers on Trial: The Battle for Children and Custody, I interviewed sixty mothers and fifty-five fathers, all of whom had been involved in custody disputes in the family courts. Over eight years, commencing in 1977, I interviewed more than three hundred mothers, fathers, children, and custody experts in the United States and Canada, and in sixty-five countries around the world. On the basis of these interviews I conducted three original studies and six original surveys.

In 2009 and 2010, I focused on interviewing more than 50 mothers from 21 American states, from Canada, and from a number of European and Middle Eastern countries. I also reviewed hundreds of legal decisions which I obtained through LexisNexis. I found that the material provided by my interviewees was representative of the trends that emerged from perusal of the legal decisions. I purviewed the Gender Bias in the Courts reports. I also interviewed lawyers and judges. For background research on how opinions were being shaped by the mass media, I also surveyed media reports of custody battles during 1990-2010.

A brief history of custody

For more than 5,000 years, men (fathers) were legally entitled to sole custody of their children. Women (mothers) were obliged to bear, to rear, and economically support children. Mothers were never legally entitled to custody of their own children. During the nineteenth century pro- child crusaders gradually propounded the 'tender years doctrine' convincing the state that young children required maternal "tenderness" but only if their mothers were white, married and compliant with the dominant cultural morals. The children of African slaves and Native American Indians; the children of immigrant, impoverished, sick, or "immoral" parents, were all "untenderly" appropriated by slave owners and by the state, clapped into orphanages, workhouses, and reformatories or farmed out into apprenticeships for "their own good."

By the turn of the century, a custodially challenged American mother enjoyed an equal right to custody in only nine states and in the District of Columbia; and only if a state judge found her morally and economically worthy of motherhood. The maternal presumption was never interpreted as a maternal right. The maternal presumption has always been viewed as secondary to the child's "best interests" — as determined by a judge.

Even the connection between a mother and her children that the law allowed under the 'tender years' doctrine was soon to be undermined. In 1975, New York judge Guy Ribaudo awarded sole custody of two children to their father, Dr. Lee Salk. Their mother, Kersten Salk, was not accused of being an "unfit" mother. It was clear that Kersten, not Lee, had reared their children from birth "without the aid of a governess" and that Lee would probably require the aid of a "third party" housekeeper-governess were he to gain sole custody. The judge used an "affirmative standard" to decide which parent was "better fit" to guide the "development of the children and their future." Kersten Salk's full-time housekeeping and mothering were discounted in favor of Dr. Salk's psychological expertise and "intellectually exciting" life-style. Dr. Salk was widely quoted:

"Fathers should have equal rights with mothers in custody cases and more and more fathers are getting custody.... The decision in Salk v. Salk will touch every child in America in some way. It will also give more fathers the "incentive" to seek custody of their children." (Quoted in Moran, 1975).

This case swept through public consciousness: a reminder that children are only on loan to "good enough" mothers. They could be recalled by their more intellectually and economically solvent fathers. Although mothers still received no wages for their work at home and far less than equal pay for equal work outside the home; although most fathers had yet to assume an equal share of home and child care, divorced fathers began to campaign for equal rights to sole custody, alimony, and child support, and for mandatory joint custody. Fathers' Rights activists, both men and women, picketed my lectures, threatened lawsuits, and shouted at me on television.

Can good enough mothers lose custody to abusive fathers?

In Mothers on Trial: The Battle for Children and Custody I first challenged the myth that fit mothers always win custody — indeed, I found that when fathers fight they win custody 70 percent of the time, whether or not they have been absentee or violent fathers. Since then, other studies, including ten State Supreme Court reports on Gender Bias in the Courts, have appeared that support most of what I say and the Massachusetts report confirms my statistic of 70 percent (Maged & Frankel, 1990; Abrams & Greaney, 1989). My thesis in Mothers on Trial: The Battle for Children and Custody has been widely supported for example by the evidence of the American Judges Association (n.d.), Bemiller (2008) Hannah & Goldstein (2010), Neustein & Lesher (2005), Polikoff (1992), Stahly et al. (2004), Smart & Sevenhuijsen (1989), Winner (1996) and Neustein & Goetting (1999). Goldstein (2010) for The National Organisation for Men Against Sexism (NOMAS), claims that 90% of the cases referred to by the courts as 'high conflict cases' are cases involving abusive men. These cases, he argues, "should be being decided overwhelmingly in favor of protective mothers because most of the fathers are abusive, but 70% of the cases result in custody or joint custody to the father." Meier (2003:662) found that "of thirty eight cases in which mothers alleged abuse and sought to limit fathers' access to children, only two trial courts agreed with the mother; the remaining thirty-six courts awarded at least joint, and often sole, custody to the father." The appellate courts were however, more favourable to mothers.

Lest it be thought that women's allegations of Domestic Violence and child abuse are fabricated in the context of divorce litigation, a perusal of the evidence rapidly dispels that myth (Meier, 2003; American Psychological Association 1996; Thoennes & Tjaden, 1990; Flood, 2010). Domestic Violence and abuse are regularly minimized, denied or ignored by the court in custody disputes (McInnes, Briggs & Pragnell, 2012). It is clear that among many double standards, "Fathers often win custody even when they are parentally uninvolved or abusive; mothers lose it for any departure from an idealized stereotype of motherhood." (Chesler, 1991).

Although the majority of custodial parents are usually mothers, this doesn't mean that mothers have won their children in a battle. Rather, mothers often retain custody when fathers choose not to fight for it. Those fathers who fight tend to win custody, not because mothers are unfit or because fathers have been the primary caretakers of their children but because mothers are women and are also held to a much higher standard of parenting. Many judges also assume that the father who fights for custody is rare and should therefore be rewarded for loving his children or that something is wrong with the mother. What may be wrong with the mother is that she and her children are being systematically impoverished, psychologically and legally harassed, and physically battered by the very father who is fighting for custody.

Today more and more mothers, as well as the leadership of the shelter movement for battered women, have realized that battered women risk losing custody if they seek child support or if they attempt to limit visitation. Incredibly, mothers also risk losing custody if they accuse fathers of beating or sexually abusing them or their children — even or especially if these allegations are supported by experts (Chesler, 2011). Indeed as I observed earlier, "Mothers who allege paternal incest during a custody battle usually lose custody" (Chesler, 1997-8:3), a finding also confirmed by the 1000 cases studied by Neustein & Goetting (1999).

Today the same experts who once tyrannized women with their advice about the importance of the mother-child bond are, in the context of a custody battle, ready to ignore it or refer to it, if at all, as of only temporary importance. They view the mother-child bond as expendable if it is less than ideal or if another woman is available. Mothers are commodified; they are viewed as interchangeable with a paternal grandmother or a second wife.

Has anything changed in regards to gender and custody?

What has changed since I first started researching and writing about custody battles? Documented domestic violence does get factored in somewhat more than before. Where real assets exist, judges have the power to award more of them to mothers and children. Fewer mothers and fathers automatically lose custody or visitation because they are gay or because they have high-powered careers. However, a stronger pattern of evidence is emerging of battered women losing custody to their batterers. Children are being successfully brainwashed by fathers—but mothers are being accused of brainwashing. Worse: Children whom mandated reporters (a physician, a school nurse or teacher) report as having been sexually abused by their fathers, are usually given to those very fathers. As Goldstein (2010) has shown- Custody Courts are sending children to live with their abusers. The mothers of these children are viewed as having "coached" or "alienated" the children and, on this basis alone, are seen as "unfit" mothers.

The mothers of raped children, who are also described as "protective" mothers, are seen as guilty of "Parental Alienation Syndrome." The fact that this theory, first pioneered by Dr. Richard Gardner has been dismissed as "junk science," on multiple fronts for example by Wood (1994) Brown (2008) and Bruch (2001), does not seem to have brought about an end to the use of the theory. Many guardian ad litems, parenting counsellors, mediators, lawyers, mental health professionals, and judges still act as if this is a real syndrome and that mothers, not fathers, are mainly guilty in this regard. Yet use of Gardner's work has been linked to serious adverse consequences as for example in the suicide of sixteen-year old Nathan Grieco. (Morrison, 2009:49). Increasingly, the children themselves are now coming forward to tell their stories through organisations such as The Courageous Kids Network and Children Underground.

The picture now

A custody battle can take a very long time and may range from several years to as many as twenty. A custody battle may have profound legal, economic, social, psychological, and even medical consequences for years afterwards; perhaps forever. Going through a custody battle is like going through a war. One does not emerge unscathed. Yes, one may learn important lessons, but one may also be left broken, incapable of trusting others, including our so-called justice system, ever again.

With a few exceptions, most of my 2010 mother-interviewees said that the system was "corrupt;" that lawyers and judges don't care about "justice," are "very biased" or can be "bought and sold," a finding that is empirically supported by the Texas Courtwatch project (Ford, 2006) and by Bemiller (2008). These mothers said that social workers, mental health professionals, guardians ad litem, and parent co-ordinators, especially if they were women, actively "disliked" and were "cruel and hostile" to them as women. Perhaps they expected women to be more compassionate towards other women; in this, they were sadly mistaken. Also, many mothers found that female professionals were often completely taken in by charming, sociopathic men and by men who were dangerously violent and who sexually abused their children.

Good fathers definitely exist. Some fathers move heaven and earth to rescue their children from a genuinely mentally ill mother and do not try to alienate the children from her. If the mother has been the primary caretaker, some fathers give up custody, pay a decent amount of child support, continue to do so, and work out a relationship with their children based on what's good for both the children and their mother. These men exist. They do not launch custody battles from hell.

And, good fathers are also discriminated against in a variety of ways in the courtroom. For example, mothers who are independently wealthy or who come from powerful families can and do custodially persecute good enough fathers. That is the subject of another book. And, when fathers do assume primary caretaker obligations, traditional judges may view them, unfairly, as "sissies," or 'losers." Liberal judges will award them custody in a heartbeat.

When I was researching the 1986 edition of Mothers on Trial: The Battle for Children and Custody, joint custody was a totally new idea. Now, as I've previously noted, "shared parenting" or joint custody (defined in a variety of ways) is the preferred norm. Joint custody is seen as fair, progressive, feminist, and in the child's "best interest"—even though a number of recent studies have shown that under certain conditions joint custody may be harmful to the children involved (McIntosh, 2003; McIntosh et al., 2011).
According to Johnston, Kline & Tschann (1989), "a link was consistently found between frequency of visitation/transitions between parents and [child] maladjustment.' The study also found that "children shuffled more frequently between parents were more exposed to and involved in parental conflict and aggression and were more often perceived by both parents as being depressed, withdrawn, uncommunicative, and/or aggressive".

McIntosh (2003) found that "alternating custody," e.g. week-on/week-off, "was associated with "disorganized attachment" in 60 percent of infants under 18 months and McIntosh et al. (2011) found serious patterns of disturbance and distress among children subjected to regimens of shared parenting. Older children and adults who had endured this arrangement as youngsters exhibited "alarming levels of emotional insecurity and poor ability to regulate strong emotion." (McIntosh, 2003). Nevertheless, from the 1980s on, joint custody was being enthusiastically implemented. Perhaps what we actually need is a range of diverse patterns of postdivorce parenting to meet the specific needs of different children and different families (Kelly, 2006).

What has been done in relation to the problem?

As well as the production of a solid body of academic literature including Bancroft & Silverman (2002), Bemiller (2008), Grieco et al. (2004), Hannah & Goldstein (2010), Neustein & Lesher (2005), Polikoff (1992), Stahly et al. (2004), Smart & Sevenhuijsen (1989), Winner (1996) and Neustein & Goetting (1999) supporting the feminist interpretation, many things have not changed since Mothers on Trial: The Battle for Children and Custody was first published.

Throughout the 80's and 90's Gender Bias reports were published by the State Supreme Courts of Florida, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Rhode Island, and Washington State. The reports have been compiled by Dallam (2008) for The Leadership Council on Child Abuse & Interpersonal Violence. These reports explore the different ways in which men and women are discriminated against in terms of custody. However, the fact that fathers have been discriminated against does not change the overall picture of women's greater custodial vulnerability, nor the effect on children of losing a mother who has, in all probability, been their primary caretaker. As well as the impacts on mothers, the impacts on children are significant, particularly when breastfeeding is disrupted, increasing the risk of Sudden Infant Death (Vennemann et al., 2009) and resulting in lifelong health impacts (Horta et al., 2007).

Early in the 21st century, Garland Waller directed two important videos: Small Justice: Little Justice in America's Family Courts (2001) and Debating Richard Gardner (2006). She interviewed Gardner himself at length and provided a devastating critique of his theory of "parental alienation," a theory that has frequently been used to separate mothers and children.

In 2011, Garland Waller went on to direct a very important and prize-winning documentary about the case of Holly Collins. It is titled No Way Out But One. Collins was a battered mother whose battered and terrified children were given to their batterer in Minnesota. Eventually, Collins fled the country with her children and, on the basis of her legal documentation, was granted political asylum in Holland. No stronger case can be made for the failure to protect children in America than was made by this mother's flight and the Dutch decision which is portrayed by producers Garland Waller and Barry Nolan in a compelling and brilliant way.

In 1986, I co-organized the first-ever national speak-out on mothers losing custody of children. It was widely covered. I also organized a Congressional Press hearing on this subject. I debated many fathers' rights activists and also got involved in the Baby M. case and the Elizabeth Morgan case – both high-profile custody and kidnapping cases in the United States.

Existing organisations such as The National Organization for Women (NOW) in New York State, have worked to raise awareness and new organisations have been formed such as the National Coalition for Family Justice. The Battered Mother's/Child Custody Conference is now held annually and in 2010, they began a quilt project: Children Taken by the Family Courts, modelled after the AIDS quilt.

For example, in 2004, Renee Beeker launched The National Family Court Watch Project which has trained and sent volunteers into family court in California, Massachusetts, Michigan, New York, and Rhode Island between 2004-2009. Preliminary findings document a worrisome pattern of irrationality, contempt, prejudice, and a lack of even-handedness on the part of judges and lawyers. Beeker (in Askre-Edgehouse, & Beeker, 2013) has expressed the view that, "Family Court has become a dangerous place for women and children."

On Mother's Day, 2010, a peaceful silent vigil was held at the White House. In the somber spirit of the U.S. suffragettes, the Argentine Mothers of the Disappeared, the Turkish Saturday mothers, the German Rose Street Women, and most recently, the Liberian women who stopped a civil war, American mothers gathered at the White House to "ask our President to meet with us and to help stop the systematic removal and oppression of our children by family court."

Some mothers are still risking jail and an outlaw life in order to save their children from being beaten and raped. This began in the mid-1980's. Most mothers are caught and imprisoned; their children are given to their abusers. What is new is this: Mothers are also fighting back in new ways. They are forming support groups, going public in the media, launching websites which document their stories and having politicians raise their cases. American mothers are considering what kind of legislation will help them protect their children.

Conclusion

In conclusion, I reiterate the central thesis of my previous work (Chesler, 1986, 1991, 2011), namely that 'good enough' mothers are losing custody of their children, on a massive scale, frequently to violent and abusive men. The extent of gender bias against mothers in custody hearings is still under- acknowledged, however over the last quarter century, awareness of the problem has grown. Academic literature, campaigning and lobbying are increasingly raising awareness about the issues, but have not garnered sufficient resources to overcome the scale of the problem. An entire generation of children has now been raised in the history that the parents have described to me and that I have documented. That generation of children is now also starting to speak. Patriarchy did not respond to the mothers; will it hear the children?

References

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The Association for Children For Enforcement of Support, (ACES)
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Lawyers and Judges. New York, Regan Books.

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Legal References

Salk v. Salk, NY 393, 2nd 841, 1975.


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