It is not up for debate: Family Court needs to be reimagined (just ask U.S. Congress, the UN, the California Judicial Council in 1996, & the U.S. Department of Justice)…and Kayden’s Law is the first step.
Revised: August 31, 2022
Folks can no longer pretend they don’t know our family court legal system presents a global crisis like they have been doing for over 20 years now (and maybe since the dawn of our civilization).
This article examines the findings from U.S. Congress, the Department of Justice, the California Judicial Council, the United Nations, and countless other researchers, along with the consistent underlying factors that cause the outcomes to be the same, regardless of the decade or the location of the courtroom.
The next time anyone, including attorneys, family, friends, judges, or lawmakers, says that advocates are not justified in their urgent action to protect our country’s children (or their own), remind them on Mar 9, 2022, U.S. “Congress finds the following” via Federally passed The Keeping Children Safe From Family Violence Act or “Kayden’s Law” in The Violence Against Women Act (aka VAWA) Reauthorization of 2022:
“A child’s risk of abuse increases after a perpetrator of intimate partner violence separates from a domestic partner, even when the perpetrator has not previously directly abused the child.”
“More than 75 percent of child sexual abuse is perpetrated by a family member or a person known to the child.”
“Judges presiding over custody cases involving allegations of child abuse, child sexual abuse, & domestic violence are rarely required to receive training on these subjects, and most States have not established standards for such training.”
“Many experts who testify against abuse allegations lack expertise in the relevant type of alleged abuse, relying instead on unsound and unproven theories.”
“Scientifically unsound theories that treat abuse allegations of mothers as likely false attempts to undermine fathers are frequently applied in family court to minimize or deny reports of abuse of parents and children.”
“Approximately 1 ⁄3 of parents alleged to have committed child abuse took primary custody from the protective parent reporting the abuse, placing children at ongoing risk.”
“With respect to cases in which an allegedly abusive parent claimed the mother ‘‘alienated’’ the child, courts believed only 1 in 51.”
“Empirical research indicates that courts regularly discount allegations of child physical and sexual abuse when those allegations are raised in child custody cases.”
“Child abuse is a major public health issue in the United States.”
“Total lifetime financial costs with just 1 year of confirmed cases of child maltreatment, including child physical abuse, sexual abuse, psychological abuse, and neglect, result in $124,000,000,000 in annual costs to the economy of the United States.”
Read all of Congress’ findings here (starting on page 2294).
Not coincidentally, The United Nations also found (and continues to find) “patterns across various jurisdictions of the world that ignore intimate partner violence against women in determining child custody cases. These patterns reveal underlying discriminatory gender bias and harmful gender stereotypes against women. Ignoring intimate partner violence against women in the determination of child custody can result in serious risks to the children and thus must be considered to ensure and grant their effective protection.”
The 2020 “Harm Report” out of the UK found, “a culture in the courts promoting contact between fathers and children “at all costs”, ahead of considerations of safety of the mother and children, and the minimization of abuse.” The report has found that the justice system is still failing domestic abuse survivors and their children.
Women’s Aid states that domestic abuse survivors and support workers told them that they have continued to be disbelieved, that children have continued to be forced into unsafe contact arrangements with abusive parents, and that perpetrators have continued to use child arrangement proceedings as a form of post-separation abuse.
Key findings in the “Harm Report” included:
- All of the survivors contributing to the report felt that their children’s thoughts, wishes or feelings had not been listened to or acted upon;
- An underlying culture of misogyny, mother-blaming and victim-blaming continues in the family courts;
- Women continue to be accused of “parental alienation” when they raise valid concerns around domestic abuse and child safety;
- Family court proceedings continue to be trauma-inducing, rather than trauma-aware.
“The current system, based on misogyny, victim-blaming, and a lack of understanding trauma is as tragic as it is unacceptable: we must show women and children that they will be listened to, believed and supported.” — Farah Nazeer, chief executive of Women’s Aid.
Now, let’s take a trip back to sunny California in the ’90s.
In March 1990, the Judicial Council issued its pathbreaking, comprehensive draft report on gender bias in the California court system, Achieving Equal Justice for Women and Men in the Courts. The draft report was the culmination of three years’ hard work by the Judicial Council Advisory Committee on Gender Bias in the Courts (“advisory committee”), which had been charged by former Chief Justice Malcolm M. Lucas with investigating and documenting instances of gender bias throughout the courts. The advisory committee in fact found significant and widespread gender bias in the California court system and offered 67 separate recommendations for change.
The predominant message was “that those in the judicial system who deal with domestic violence need to be educated & the system needs alteration, so that the nightmare of domestic violence is abated & not aggravated, by resort to the judicial system.” (Achieving Equal Justice for Women and Men in the California Courts (Final Report) Judicial Council of California, Advisory Committee on Gender Bias in the Court, July 1996).
This report is currently on the CA.GOV website.
Now onto 2002. If you don’t feel like doing the math, that’s 20 years ago.
In response to “mothers throughout the state (California) who were being victimized by judges, lawyers, mediators, evaluators and attorneys for children in the Family Court system, and “the increasing communications from these individuals and groups who were reporting the lack of governmental response and initiate reform in the Family Court system, the California National Organization For Women, California National Organization For Women founded the Family Law Taskforce and called statewide for individually prepared case histories from litigants to study the problem for the purpose of ascertaining viable solutions.
“The goal of this report was to raise awareness about the procedures and processes used in the current family law courts to evaluate custody as it pertains to primary caretakers, the bulk of whom are women.”
Califonia NOW also references that “a great deal of work has already been done on this issue including a 1996 report from the Judicial Council of California’s Advisory Committee on Gender Bias in the Courts. The committee found “gender bias in the administration of family law in California” and recommended changes in the areas of child and spousal support, custody, division of assets, assignment of judges, training of family lawyers, and mediation. In addition to the findings of the Judicial Council’s committee, we reviewed academic research and social advocacy reports, as well as first-hand accounts reported in the media, as background research that substantiated our concerns.
The CA NOW Family Court Report includes evidence for the purpose of providing a holistic overview of the problems they believe are of serious concern,” including:
- The Family Court system in California presents profound obstacles for women seeking to protect their children from abuse.
- The struggle to move women and children from the status of men’s property to citizens in their own right continues today.
- Decent fathers did not take wrongful advantage of the court situation; it was the abusers who did.
- After significant research, CA NOW declares the present family court system in California to be crippled, incompetent, and corrupt.
- The bias in the system results in pathologizing, punishing, and discriminating against women.
- The present family law system in California exists to enrich attorneys and allied mental health and mental health professionals.
- This system allows mothers to be taken to court time after time, challenging what is in “the best interests of the child,” therefore subjecting them to a system that has no end for them or their children. In the most egregious cases, perfectly fit mothers who were the primary caretakers of their children lose custody to the fathers who are motivated by evading support obligations, and are often known abusers.
Read the California National Organization For Women, Family Court Report 2002 here.
Now, let’s talk about the Saunders Study, published in 2012.
This project was supported by Grant №2007-WG-BX-0013 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice. … However, they can’t say they don’t know about the findings; the DOJ funded the study. (… and the findings are also consistent with many other studies from around the U.S. and the globe).
In this study, led by Dr. Daniel Saunders of the University of Michigan, they were tasked with investigating how well court professionals, particularly evaluators, respond to domestic violence cases.
Dr. Saunders found that “…domestic violence is frequently undetected in custody cases or ignored as a significant factor in determinations of custody and visitation.”
Saunders’ study also found:
- Custody courts are using practices that inevitably result in the failure to protect children.
- Battered women are at higher risk of negative custody-visitation outcomes due to gender bias by courts, as documented by many federal, state, and local commissions that have studied such bias since the 1980s.
- Negative stereotypes about women seem to encourage judges to disbelieve women’s allegations about child abuse.
- A lack of understanding about domestic violence also leads judges to accuse victims of lying, blaming victims for the violence, and trivializing the violence.
- Gender bias is frequently uncovered in custody disputes (Rosen & Etlin, 1996) and often leads to mistrust of women — in particular to the belief that they make false allegations of child abuse and domestic violence. Dragiewicz (2010) provides a comprehensive summary of gender bias reports pertaining to custody decisions. In addition to the tendency to disbelieve or minimize women’s reports of abuse, or to disregard evidence for it, Dragiewicz also describes other problems uncovered during investigations. These include mothers being punished for reporting abuse, unfair financial settlements, and mothers being held to higher standards than fathers. In a study of appellate state court decisions, sole or joint custody was awarded to an alleged or adjudicated batterer in 36 of 38 cases, several of which involved severe battering and multiple convictions. However, two-thirds of these cases were reversed on appeal (Meier, 2003).
Saunder's study also found that Judges, child custody evaluators, and others involved in determining custody and visitation arrangements may simply be unaware of the factors that indicate actual or potential harm. For example, they may be unaware that:
- Regardless of whether children are the direct targets of physical abuse, exposure to domestic violence often leads to serious psychological trauma for many children (e.g., Edleson, 1999; Graham-Bermann & Edleson, 2002; Kitzmann, Gaylord, Holt, & Kenny, 2003; Wolfe, Crooks, Lee, McIntyre-Smith, & Jaffe, 2004);
- Many men who batter, more than fifty percent in one study, become abusive in a subsequent relationship (Woffordt, Mihalic, & Menard, 1994); therefore, separation does not necessarily end children’s exposure to violence;
- Stalking, harassment, and emotional abuse often continue and may increase after separation (e.g., Bachman & Saltzman, 1995; DeKeseredy & Schwartz, 2009; Leighton, 1989; Tjaden & Thoennes, 2000a); and the risk of homicide increases after separation (Saunders & Browne, 2000).
It also found that practitioners may also have serious misconceptions about custody cases and domestic abuse. For example:
- Practitioners may not understand why survivors stay in the relationship. A woman might stay in the relationship because she believes that it is the best way to protect her children — a decision that can be interpreted as a failure to protect her children. Failure to protect is a claim that can be used against her in custody disputes. On the other hand, if she flees suddenly with the children or wants to live far from her abuser, her actions are often interpreted negatively (see Saunders, 2007, for a review).
- Researchers have found women may stay for a variety of reasons related to concerns for the children: fear of financial loss; belief that the children need their father; fear that she will lose custody to a father who is a likely child abuser; fear that she and her children will be stalked, abused, and/or killed; and family pressure (Hardesty & Chung, 2006; Hardesty & Ganong; 2006; Radford & Hester, 2006).
In summary, the Saunders Study found that:
- Even if domestic violence is detected, it is often ignored as a factor important in determining custody and visitation arrangements.
- Survivors are placed in a no-win situation: If they do not report abuse, then protections for them and solid grounds for custody are not available; yet reporting the abuse may be viewed as raising false allegations in order to gain advantage in divorce proceedings (Dore, 2004). Research shows that parents who raise concerns about child sexual abuse can be severely sanctioned for doing so (Faller & DeVoe, 1995). The sanctions include loss of custody to the alleged offender, restricted visitation, and court orders not to report further abuse or take the child to a therapist (Faller & DeVoe, 1995; Neustein & Goetting, 1999; Neustein & Lesher, 2005; Voices of Women, 2008).
- The use of the label “parental-alienation” can also place battered women in a no-win situation.
- As noted in the gender bias reports, patriarchal attitudes seem to play a major role in the treatment of battered women. Clear evidence demonstrates connections between sexist beliefs (patriarchal norms) and blaming battered women for their abuse (Saunders et al., 1987). Such attitudes are likely related to minimizing abuse or doubting the veracity of abuse reports.
- Underlying the patriarchal beliefs and victim blaming are likely to be deeper, “core” beliefs (i.e. general, value-laden beliefs) about justice and equality.
And it also found this:
- An evaluation of the judges education program “Enhancing Judicial Skills in Domestic Violence Cases,” developed by the National Council of Juvenile and Family Court Judges and the Family Violence Prevention Fund, showed that judges overestimated their skills and competence prior to the training (Jaffe, 2010). Six months after training, the majority of judges saw specific behavior changes in the areas of victim safety, batterer accountability, and judicial leadership.
Read the full Saunders Study here.
Welcome to 2022 in the present time and space.
On January 28, 2022, the UN Women Commission on the Status of Women officially confirmed receipt of the Complaint, submitted by 100+ women (organized by One Mom’s Battle, Custody Peace, and Movement of Mothers) in the U.S. addressing human rights violations waged against women & children via our family court systems. Read the press release and complaint: here.
“These women tell a common story, and their experiences reveal systemic problems in the family courts across the states of the United States including:
- Courts’ reckless dismissal and doubt of child physical and sexual abuse claims brought by protective mothers;
- Abusive fathers seeking joint or full custody as a means of revenge, punishment and continued control over domestic violence victims after previously sharing no parenting responsibilities and demonstrating no interest in doing so;
- Courts’ reckless dismissal and doubt of child physical and sexual abuse claims brought by protective mothers;
- Systemic discouragement of protective mothers from bringing legitimate child abuse or domestic violence reports to the courts’ attention;
- Protective mothers and domestic violence victims being told that bringing domestic violence and/or child abuse concerns to the attention of the judge will hurt their case and being expressly discouraged from doing so by their attorneys;
- Abusive fathers’ use of excessive filings and vexatious litigation to harass and control domestic violence victims, to financially strangle them and to gain leverage to avoid child support;
- Cross-claims of parental alienation being lodged against protective mothers asserting child abuse claims as a weapon to cast doubt on their credibility;
- An abuser’s history of domestic violence being discounted and not considered for child custody considerations;
- Battered and abused women being forced to cooperate and regularly interact with their abusers and courts’ punishment of any women who appears resistant to cooperating in “shared parenting” ideals with her and/or her child’s abuser;
- Children being placed in custody and/or unsupervised visitation settings with fathers with documented incidents of domestic violence against the mother or child abuse against the child;
Read the full complaint to the United Nations.
Do we think it is a coincidence that the outcomes are the same in family courtrooms across the U.S. & globe? — Countless research (and common sense) say no.
Let’s talk about some of the well-acknowledged, conditions that are causing the same harmful and catastrophic outcomes in our family courtrooms throughout the globe, as outlined by Grant Wyeth in The Facilitating System of the Family Court.
“Globally there are a number of common traits that family courts are exhibiting. — These three structural issues are leading to brutal and sometimes fatal outcomes for women and their children.”
“The first is the economic incentives around the family court system. This is what I’ve [Grant Wyeth] previously described as a “repugnant market” — when a market forms around servicing the demand for something that is unethical or amoral. In the family court’s case, the demand comes from abusive men not wanting to face consequences for their behavior and wishing to maintain their household authority. These are powerful desires which men will pay a lot of money to protect. Lawyers, psychiatrists and professional witnesses all see facilitating this desire as a lucrative opportunity. The concept of “parental alienation” has become the best tool to service this demand.”
“There is no power for these actors within the system if the reason why children are reluctant to engage with their fathers is obvious [which it is in most cases]. If anyone can tell you it is because these children are afraid of their fathers then the services of these professionals are redundant. ― The debunked abuse distraction tactic of “parental alientation” adds the complexity they need. It is important for their careers to bring a layer of complexity into the situation. ― Resulting in catastrophic outcomes and ongoing abuse of women and children.”
“The other socio-political calculation that these courts are making is that the state is worried about what these men will do if it doesn’t submit itself to at least some of their demands. There is a belief that male violence is an inevitable aspect of human existence; men lust for power and control and they use violence as a tool of their power and this is never going to change. The state’s assessment is that it needs to minimize this violence by not risking aggravating men.”
“All three of these components are working either separately or in conjunction with one another in order to consistently produce appalling outcomes from family courts globally. This is why mothers and children frequently feel that they are in no-win situations because the abuse at home is mirrored and compounded by the abuse of the system.”
Continue reading: The Facilitating System of the Family Court by Grant Wyeth (November 2021)
On March 17, 2022, the UN Special Rapporteur on violence against women, Ms. Reem Alsalem, convened a panel on the use of the pseudo theory of parental alienation in child custody cases as a sidelight to the 66th session of the Commission on the Status of Women. The international panel, which consisted of global experts, emphasized how discriminatory biases against women fail to protect children from abusive fathers and expose both women and their children to further violence. Panelists, including a representative from the National Family Violence Law Center at GW (who drafted the “The Keeping Children Safe From Family Violence Act, aka “Kayden’s Law” in VAWA with Pennsylvania Congressman) Director Joan S. Meier, who argued for coordinated and systematic work to promote a gender-sensitive approach to custody proceedings, centered on the best interest of the child. Watch the full panel discussion here.
It’s time to change the conditions within the family court systems globally so that justice and the safety, well-being, and appropriate protection of women and children are the natural outcomes.
Thankfully, in 2022, the United States Congress passed “The Keeping Children Safe From Family Violence Act” or “Kayden’s Law” in the Violence Against Women Act Reauthorization.
“The Keeping Children Safe From Family Violence Act” incentivizes U.S. states to ensure that their child custody laws adequately protect at-risk children by:
1. Restricting expert testimony to only those who are appropriately qualified to provide it.
Evidence from court-appointed or outside professionals regarding alleged abuse may be admitted only when the professional possesses demonstrated expertise and experience in working with victims of domestic violence or child abuse, including child sexual abuse.
2. Limiting the use of reunification camps and therapies which cannot be proven to be safe and effective.
No “reunification treatment” may be ordered by the court without scientifically valid and generally accepted proof of the safety, effectiveness and therapeutic value of the particular treatment.
3. Providing evidence-based ongoing training to judges and court personnel on family violence subject matter, including:
(i) child sexual abuse;
(ii) physical abuse;
(iii) emotional abuse;
(iv) coercive control;
(v) implicit and explicit bias;
(vii) long and short-term impacts of domestic violence and child abuse on children; and
(viii) victim and perpetrator behaviors.
4. Requiring that family courts consider the existence of protection from abuse orders when making custody determinations.
The Federal Keeping Children Safe From Family Violence Act aka Kayden’s Law was passed and needs to be adopted in all 50 states (as it is written) — without delay.
We trust children throughout the U.S. (and the world) won’t have to wait much longer for commonsense protections they should have in the first place & that judges will welcome the opportunity to ensure the protection of children in their community.
Folks can no longer pretend they don’t know this is a global crisis like they have been doing for over 20 years now (and maybe since the dawn of our civilization).
If you still have any doubt in your mind about the current conditions in U.S. Family Courtrooms, please watch this brief video featuring Angelina Jolie at the VAWA Press Conference in 2022 where she stated:
“Standing here, at the center of our nation’s power, I can think only of everyone who’s been made to feel powerless by their abusers, by a system that fails to protect them. Parents whose children have been murdered by an abusive partner, women who suffer domestic violence yet are not believed, children who have suffered life-altering trauma and post-traumatic stress at the hands of people closest to them. Anyone who’s been in those situations will tell you just how far they feel from the power concentrated here in this building — the power to pass laws that might have prevented their pain the first place. —The way things stand, the ugly truth is that violence in homes is normalized in our country.”
“As survivors of abuse know all too well, victims of our failed systems are not allowed to be angry. You’re supposed to be calm, patient and ask nicely. But you try staying calm when it’s as if someone is holding your head under water and you’re drowning. Try to stay calm when you’re witnessing someone you love being harmed.” — Angelina Jolie, February 2022, VAWA Press Conference, Highlighting Kayden’s Law
We rest our case.
The National Safe Parents Organization is catalyzing Advocate Groups, legal professionals, experts, lawmakers, and concerned citizens to join forces to create a community to organize global advocacy efforts for evidence-based policies which put child safety and risks at the forefront of child custody decisions.
If you are a lawmaker interested in learning more about how you can bring this legislation to your state or are an advocate or concerned citizen planning to meet with your state legislators, please make sure you are connected to National Safe Parents. They can support your efforts and connect you with the experts who have a proven track record of helping to protect children.
Become an advocate for The Keeping Children Safe From Family Violence Act or Kayden’s Law in VAWA www.nationalsafeparents.org/take-action.html
- Achieving Equal Justice for Women and Men in the California Courts Final Report Judicial Council of California Advisory Committee on Gender Bias in the Courts, (July 1996)
- Saunder Study: Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody Visitation Recommendations (The following author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D., Richard M. Tolman, Ph.D.) (2012)
- California National Organization For Women, Family Court Report 2002
- Intimate partner violence against women is an essential factor in the determination of child custody, say women’s rights experts, United Nations (May 31, 2019)
- The Facilitating System of the Family Court by Grant Wyeth (November 2021)
- Over One Hundred Mothers denounce the United States of America before the United Nations, for Human Rights Violations: Press Release (August 2021)
- Over One Hundred Mothers denounce the United States of America before the United Nations, for Human Rights Violations, Full Complaint, (August 2021)
- Spain: UN experts denounce child custody decision that ignores evidence of sexual abuse (February 28, 2022)
- Child-centered and non-discriminatory custody cases: Against the pseudo theory of ‘parental alienation’, 66th session of the Commission on the Status of Women side event panel discussion (March 17, 2022)
- Family court still failing mothers and children [“Harm Report] says (July, 2022)
- The Keeping Children Safe From Family Violence Act or “Kayden’s Law” in The Violence Against Women Act (aka VAWA) Reauthorization of 2022