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Economy & Labor , Health , US

‘Women are routinely discredited’: How courts fail mothers and children who have survived abuse

by Jessica Klein August 16, 2021

What you need to know
  • Mothers who’ve survived abuse face biases in family court, particularly when they make claims of child physical and sexual abuse by their children’s other parent.
  • Abusive partners can use the courts to control and harass current and former partners by entrapping them in lengthy legal battles concerning their children, which drain finances and can cause psychological and emotional trauma.
  • Lawyers and survivors describe how the family court and child protective service systems, while not purposefully cruel, are not structured to protect some of the most vulnerable people who pass through them—namely survivors of domestic violence.

Marissa vividly remembers the day last September when her son’s counselor asked to speak with her at the end of his Zoom session. The counselor told Marissa to try to control her reaction to what she was about to hear.

Marissa stepped into the backyard of their home outside of Seattle, Washington, to speak to the counselor privately. At the time, Marissa’s nine-year old son Zachary attended regular counseling sessions as a result of Marissa’s ongoing legal battles with her ex-boyfriend, Carter. That day, Marissa heard the news she would spend the next several months going over again and again: Zachary had revealed to his counselor that Carter had “touched his private parts” in bed when the family had lived together.

The disclosure was deeply troubling on its own — in the months that followed, Zachary would disclose additional and increasingly severe incidents of abuse, including rape, by Carter to a King county child interview specialist and his counselor over multiple interviews and sessions, according to a case report filed by the local police department. (The Guardian is using pseudonyms for the families in this article to protect their privacy and safety.)

But the allegations of abuse also complicated an already contentious custody battle between Marissa and her ex – and for Marissa, illuminated the unexpected pitfalls that mothers face when accusing their partners of abuse in family court.

At the time of Zachary’s counselor’s call, Marissa was a medical school student supporting herself and her children on student loans. She was also receiving federal food benefits, Medicaid and state heating assistance. She’d been dealing with the court system since she and her ex separated in 2018, the same year she filed a police report alleging Carter physically assaulted her (he was found not guilty of domestic violence in court six months later). After filing the report, she hired an attorney to put together a plan for how she and Carter would share custody of Zachary’s then-three-year-old brother Eli, their biological son (Zacharyhas a different biological father).

Carter has repeatedly denied Zachary’s allegations through his lawyer and has been fighting for parental rights not only of Eli but also of Zachary, whose biological father is out of the picture. Carter is seeking to legally change Zachary’s birth certificate to list him as the father — a change known as “de facto” parentage of Zachary in court, which would grant Carter legal rights to act as Zachary’s father. Throughout their three-year legal battle, Carter has retained steady legal representation — unlike Marissa — and countered that Marissa has been “coaching” Zachary to report allegations of abuse by Carter. Later this year, a judge is scheduled to decide the role Marissa’s son’s alleged rapist will play in her children’s lives.

Assertive and a quick learner, Marissa is a ready advocate for herself and her family — a skill she’s used elsewhere in her personal life. She spoke out against the nursing home where her father and many other residents contracted Covid-19. She has the dogged determination that would lend itself to the lengthy legal battle against Carter that she says has drained her savings and forced her to learn how to become her own attorney when she could no longer afford to pay for one. (She says she did not trust an overworked court-appointed lawyer to have the bandwidth to catch up on the hundreds of pages of detail that make up her cases with her ex.)

However, the way Marissa has had to aggressively advocate for herself and her children in court — made more urgent by Zachary’s allegations — and the mistakes she’s made while learning how to represent herself have compounded the difficulties she faces in the family justice system. Her ex’s legal team has been able to paint her as “belligerent”, “unreasonable” and “intransigent” and therefore a less fit parent than Carter.

Marissa’s time in court also made clear that when women accuse former partners of abusing their children, they risk uphill legal battles. Navigating a criminal justice system that tends to favor those who have the most resources to make their case can become a nightmare, as women seeking justice from their alleged abusers learn how far they must go to be taken seriously.

Courts ‘helping abusive fathers keep custody’

Mothers who accuse their partners of abuse can be seen as the “less cooperative” parent in custody and visitation cases, say lawyers and domestic violence experts, because they’re not facilitating a relationship between father and child — a relationship the court sees as important for the child’s development. Opposing counsel can portray them as combative and intransigent, making their clients appear to be better custodial parents.

As a result, mothers often find themselves on the defensive, says Joan Meier, a clinical law professor and the director of the National Family Violence Law Center at the George Washington University Law School.Advertisement

“That’s like the ticket to death,” she says. “If you’re a mom and you raise [allegations of] child sexual abuse [by the father], the odds are you lose custody.”

In 2019, Meier looked at 200 cases in which mothers alleged child sexual abuse by fathers and found that courts sided with the mothers in just 15% of cases. In the same study, she found that, of 1,137 cases where mothers alleged domestic violence, courts credited the claims in just 517 cases. (In general, mothers tend to be custodial parents, usually as a result of out of court settlements, says Meier. Eighty per cent of mothers have primary custody of their children, compared with approximately 20% of fathers, according to 2015 census data.)

Accusing your partner of child abuse can be a lengthy, unpredictable process for mothers seeking justice in US family courts; historically, the process has pushed women to take drastic measures to protect their children from allegedly abusive guardians.

Women whose allegedly abusive husbands are granted custody sometimes go to extremes to get their children back and keep them safe. (Illustration: Anastasia Ivaschenko/The Guardian)

In 1987, Elizabeth Morgan sent her five-year-old daughter to live with her maternal grandparents in New Zealand after a family court granted unsupervised visits between the girl and her allegedly sexually abusive father. Morgan was jailed in Washington DC for two years when she refused to reveal her daughter’s whereabouts. A TV movie about the story aired in 1992.

Morgan’s story inspired Holly Collins when a Minnesota family court granted her allegedly abusive ex-husband custody of their children in the early 1990s and denied Holly’s requests for unsupervised visits, Collins told the Guardian. Collins coordinated an escape with her kids and flew to the Netherlands in 1994, where she and her children were granted asylum in 1997. About a decade later, Chere Lyn Tomayko became the first person granted asylum in Costa Rica on the grounds of domestic violence after her two daughters accused her ex-boyfriend of abuse. Tomayko initiated the move after a Texas court granted her ex-boyfriend joint custody of their shared daughter.

Wariness of child sexual abuse allegations also has roots in Child Protective Service workers’ training. According to Meier, CPS workers are taught to scrutinize child sexual abuse claims more closely when families are going through custody litigation, and to flag claims they believe are fishy. “In such cases, I call it taxpayer-funded child abuse,” says Meier, “because they are basically helping abusive fathers keep custody.”

“I’ve been accused by the judge that I’m doing all this because I like to fight,” Marissa says. So as not to jeopardize the ongoing court case, the Guardian did not contact the people on Marissa’s witness list for the upcoming trial, and instead verified accounts through court documents, including witness testimony, police reports, emails, photographs and attendance at a parentage case hearing.

Marissa has spent hours learning to represent herself in court in the midst of her rigorous medical school schedule. She has also had to pay thousands in fees to her ex’s attorney and court-appointed experts. His lawyer successfully argued, on several occasions, that filings Marissa made while representing herself created more work for their team.

“I’m losing everything,” Marissa says.

Crushed by legal fees

Legal experts say that when a partner is abusive, the realm of their control can often include the family’s finances — which can leave them better suited to pay for lawyers and endure longer legal battles. Most attorneys bill by the hour. Months or years of responding to lengthy court filings add up. Marissa estimates she has spent $150,000 on her defense, including on payment to join the nearby law library, parking fees and fees awarded to Carter’s counsel.

Stephanie, a mother of two teenagers, has been stuck in a costly, ongoing legal battle with her ex-husband, Luke, since she filed for divorce in 2014. Multiple police reports dating back to 2002 — first from Florida, then from their subsequent home in New Jersey — say that Luke threatened to murder Stephanie, fractured her arm, “grabbed her throat” and pushed her while she was pregnant with their first child. (The Guardian did not contact Luke for comment due to Stephanie’s concerns for her and her children’s safety but instead reviewed multiple police reports, emails, court documents and photos to corroborate Stephanie’s story. Both Stephanie and Luke are pseudonyms.)

Police have been called to Stephanie’s homes in Florida and New Jersey — by Stephanie and her children — close to 30 times over the past 19 years, according to those police reports, and Luke has been arrested six times. One 2014 police report mentions Stephanie’s youngest child, then seven years old, “punching” Luke to “get him away” from Stephanie. In May 2020, Stephanie’s chiropractor wrote in a letter provided to the court that Stephanie had visited his office 157 times in nearly four years and that he finds her injuries to be consistent with domestic violence.

Related coverage: How domestic abusers weaponize the courts

In 2020, Stephanie spent months filing motions in court and emailing New Jersey child protective services and police to try to protect herself and her children from her ex after he allegedly threw their 16-year-old son down the stairs and against a wall. As of April 2021, Luke is seeking “reunification therapy” with his son and also plans to seek increased custody should Stephanie not agree to his requests, per a letter to Stephanie from Luke’s lawyer.

But Stephanie says that the judge hearing her case did not consider the New Jersey child protective services report concerning her son’s allegations. Instead, she says, he urged her to “put aside [her] differences” with her ex and work things out for “the sake of [their] kids”. New Jersey’s child protective services department declined to comment on Stephanie’s specific case, but a representative told the Guardian that judges generally consider “recommendations or reports offered by” their staff in custody decisions.

Last year, Stephanie filed for a restraining order against Luke. She estimates she has spent nearly $200,000 in legal fees fighting him in court over the years.

“The biggest problem I have isn’t the fact that I have an abusive ex-husband,” says Stephanie. “It’s the fact that the courts have not only not done anything, but they’ve penalized me and … my children.”

Accusations of coaching

Peter Favaro is a court-appointed forensic evaluator who has been on the job for 37 years in Brooklyn, New York. His job is to conduct multiple interviews with parents and children, speak with teachers, doctors and other adults in children’s lives, and conduct psychological tests. An evaluator does not tell a judge whether a child has been abused, he says, but they can testify to “signs and symptoms”. Child sexual abuse allegations are particularly tricky, because there are often no physical signs of abuse, Favaro says.

Evaluating allegations as serious as child abuse takes time and careful deliberation, says Favaro. But he acknowledges that his work is also lucrative – his evaluations cost between $8,000 and $10,000, but he says other forensic evaluators can charge more than $100,000.

Favaro also sees the evaluations as an “income source” for lawyers, “because attorneys get paid money to attack experts in court”. In addition to lawyers and parental evaluators, guardians ad litem (GAL), who are appointed to represent the interests of children, stand to make money in high-volume court cases involving children like Marissa’s and Stephanie’s. In Stephanie’s case, the GAL first charged a $6,000 retainer when appointed to the case in late 2020, and later requested additional fees. As of last year, Carter had paid $14,000 to the appointed parenting evaluator.

Favaro has worked on “hundreds” of cases with child abuse allegations, he says, and can’t say how often children falsely allege abuse by relatives. He says he witnessed one scenario in which a mother “coached” a daughter to lie about sexual abuse by a male family member, later adding, “I’m not sure I would disagree that [false allegations] rarely happen … but my job is to take a neutral position.”

After Marissa’s son Zachary told his counselor in September that he’d been abused by Carter, child protective services began an investigation into his claims. In February 2021, CPS investigators determined Zachary’s allegations to be “founded” — meaning that an evaluator deemed the allegation to be more likely true than not. The Washington department of children, youth and families, which oversees these investigations in the state, does not decide whether to remove a child from a parent, though its reports may factor into decisions ultimately made by law enforcement or courts.

A month earlier, in January 2021, the King County prosecutor’s office had declined to press criminal sexual abuse charges against Carter. A representative from the prosecutor’s office told the Guardian that they declined to file charges because “from the information we received from police investigators, there was insufficient evidence to establish the suspect’s guilt beyond a reasonable doubt” — but that the police could resubmit the case should “additional information come to light”.

The Guardian reached out multiple times to Carter’s attorney for comment about the case and Zachary’s specific allegations. She referred us to hundreds of pages of publicly available court filings. In a filing from March 2021, Carter points to “the likelihood of [Marissa] coaching [Zachary]”, a concern the GAL appointed to Eli’s parentage case also mentions in another case filing. (The idea of mothers “coaching” children to report abuse by fathers comes up in many cases like Marissa’s, including in the above-mentioned case of Holly Collins, who was granted asylum in the Netherlands.) A police report showed Carter took four polygraph tests last year in which he denied Zachary’s allegations. The tests inquired about several different allegations made by Zachary, and all found Carter was “not attempting deception”.

Although the prosecutor’s office filed no criminal charges against Carter, the court overseeing Eli’s parentage case says it “requires additional information from CPS regarding their findings of sexual abuse by [Carter] of [Zachary]”. This information will probably be presented in Eli’s parentage trial, which is scheduled for September, and will help determine the role both parents will play in Eli’s life.

Eli is now six years old. Carter can have visits with him once during the week and on weekends, but is not allowed overnights. According to a court document from March, Zachary is not supposed to be present when Marissa and Carter meet to exchange Eli. The visits with Eli are supervised by several court-approved associates of Carter, including his mother.

Women are ‘routinely deemed hysterical’

The former Connecticut state senator Alex Kasser had hoped to give intimate partner violence survivors more resources in court with Senate Bill 77, which passed earlier this year. The bill expands the definition of domestic violence in family court to include “coercive control”, a strategic pattern of behavior used to oppress and control a partner, and sexual assault or related threats. The bill was inspired, in part, by Kasser’s own experience. In June, she resigned from the Connecticut senate due to her contentious divorce with her husband, whom she called “coercive” in a 2020 op ed.

Kasser’s definition of domestic violence also includes “threatening a victim to prevent them from reporting child abuse”, she says. Her bill would ensure judges consider child safety as the number one factor in custody decisions (currently in Connecticut, judges can choose how they weigh various factors, like the child’s “temperament”, “cultural background” and the “willingness” of each parent to facilitate a relationship between their child and the other parent).

“I think that there is confusion and disbelief about what the real outcomes are in family court,” says Kasser. “Generally, women are still not believed. They are routinely discredited. They are routinely deemed hysterical.”

Marissa relates to that. “I am a damn good mom,” she says. “It’s not always easy to stay grounded, and I don’t always feel grounded … but I’m not crazy.” She attributes “any mental health I’m struggling with right now” with the ongoing stress of facing her ex in court.

As of May, Marissa says she still hadn’t been able to find a pro bono attorney to take her case. “The amount of stuff opposing counsel does is too much for her,” Marissa wrote in a text to the Guardian about one potential pro bono attorney. “So I’m back to being on my own.”

This ongoing legal battle has drained her emotionally and psychologically while she cares for two young children as a single mother. “I want to move forward, and the case is just so much,” she says. “I’m trying to do what I think is best.”

Correction (10:07 a.m. Aug. 17, 2021): An earlier version of this story referenced 2015 census data that said courts award custody to mothers more than fathers. In fact, more mothers have custody than fathers as a result of out-of-court settlements, not court decisions.

This story was published in partnership with The Guardian and The Fuller Project.

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