PROF. JOAN MEIER TALKS ABOUT THE MISUSE OF PARENTAL ALIENATION THEORY TO ATTACK DV VICTIMS IN CUSTODY MATTERS!

Testimony Regarding How Child Abuse Allegations are Ignored in Family Court and Parental Alienation Syndrome (PAS) is used as a Rationale to Award Custody of Children to an Abusive Parent

Joan Meier, JD

Professor of Law, George Washington University

Founder, DV LEAP

February 4, 2019

My name is Joan Meier, a law Professor at George Washington University and Founder of DV LEAP, an advocacy group for expert appellate litigation to reverse unjust trial court rulings and to protect the legal rights of women and children victimized by family violence. We would like to take this opportunity to testify and express our concern for current legislation being introduced to promote the use of Parental Alienation Syndrome as a tool to abuse domestic violence (DV) victims in family court.

Dr. Joan Meier

The Problem

“Protecting our children is one of the most important things that we can do for society. Unfortunately, some courtsare overlooking potential signs of abuse and are relying on scientifically unsound factors to make decisions that impact a child’s life.” Congressman Ted Poe

Despite numerous legislative and policy reforms designed to protect DV victims, many survivors and their children are denied legal protections in family court. Expert commentators assert that family courts are awarding unfettered access or custody to abusive fathers, and increasingly cutting children completely off from their protective mothers. This has been observed especially where mothers allege child sexual abuse. Studies show that an abuser will invoke the “alienation” defense, accusing the mother of trying to turn the children against him, rather than the court acknowledging that his abusive behavior has driven the children away. 

Studies also have identified a trend toward favoring fathers, in contrast to widespread assumptions that mothers are favored in custody litigation. The findings reveal a pattern of family court failures to consider evidence of intimate partner violence, disrespectful treatment of battered women, gender biased treatment of mothers, and granting of physical custody to perpetrators of intimate partner violence.  One study found that court preferences for joint custody and the “friendly parent” principle outweighed judicial consideration of abuse claims. More in-depth empirical research has examined the lack of expertise in domestic violence and child abuse—particularly child sexual abuse—among forensic custody evaluators, who are relied on heavily by the courts. 

IN CUSTODY CASES WHERE MOTHERS AND CHILDREN REPORT THE FATHER’S SEXUAL ABUSE OF THE CHILD, THE COURT SIDES WITH THE FATHER 81% OF THE TIME.

EVEN WHEN FAMILY COURTS ACKNOWLEDGE THAT A FATHER HAS BEEN VIOLENT TO THE MOTHER OR CHILD, THE COURT SIDES WITH THE FATHER 38% OF THE TIME.

A primary mechanism giving evaluators and courts a quasi- scientific rationale for rejecting or ignoring abuse allegations is the theory of “parental alienation (PA),” originally called “parental alienation syndrome (PAS),” and also called “child alienation,” or simply “alienation.” PAS is a construct invented and promoted by Richard Gardner to describe a “syndrome” whereby vengeful mothers employed child abuse allegations in litigation as a powerful weapon to punish ex-husbands and ensure custody to themselves. Gardner claimed that child sexual abuse allegations were rampant in custody litigation, and that the vast majority of such claims are false, designed by the mother to “alienate” the child from the father and drive him out of the child’s life. Gardner also characterized PAS as profoundly destructive to children’s mental health and as risking their relationships with their (purportedly falsely accused) fathers for life. Recommended remedies to PAS were often draconian, including a complete cutoff from the mother in order to “deprogram” the child. PAS quickly became widely incorporated into custody litigation when any abuse—not just child sexual abuse—was alleged. 

The Solution

On September 25, 2018, The U.S. House of Representatives passed H Con Res 72, a concurrent resolution urging state courts to determine family violence claims and risks to children before considering other ‘best interest’ factors. The resolution, backed by dozens of organizations advocating for protection of women and children*, encourages states to ensure courts rely only on admissible evidence and qualified experts, and adopt qualification standards for third-party appointees.  It also affirms that Congress is prepared to use its oversight authority to protect at-risk children. The resolution also asks for   strengthened evidence admissibility standards to help ensure only scientific facts or qualified expert testimony are used to prove or disprove child abuse allegations.

It urges Congress to:

• identify child safety as the first priority in custody and visitation adjudications, considering it before all other interest factors;
• allow only qualified scientific evidence and certified expert testimony to be introduced in cases involving child abuse claims; and
• mandate Congressional hearings around the practices of family courts when handling family violence allegations.

DV LEAP also partnered with the Dept. of Justice’s Office on Violence Against Women on a 2-year cooperative agreement to improve the family court system’s ability to protect children in custody cases involving domestic violence or child abuse. The agreement has concluded but great accomplishments and resources were achieved. In partnership with the Leadership Council on Child Abuse and Interpersonal Violence, we provided education on critical issues that often determine case outcomes, such as the misuse of flawed parental alienation theories and failure to consider evidence of abuse. One particularly powerful aspect of the Project’s work was the development of a unique database of cases that have “Turned Around.”  These are cases in which the initial custody order placed a child (or children) in dangerous contact with an abusive parent and a subsequent order protected the child. Analysis of these cases provided valuable understanding of how and why custody evaluations so frequently fail to identify or predict actual risk to children who are victims of family violence.

As as result of this Cooperative Agreement, DV LEAP and the Leadership Council produced a number of written tools and resource materials to assist professionals working in the family court system.  Links to each of the documents are provided below.

I. Resources on the misuse of Parental Alienation Syndrome/Parental Alienation

1. Critical Bibliography of articles on Parental Alienation Syndrome and Parental Alienation

2. Summary of Case Law Addressing Parental Alienation Syndrome and Parental Alienation

3. Fact Sheet on PAS Admissibility

4. Scientific and Professional Rejections of Parental Alienation Syndrome

II. Resources for attorneys and advocates representing protective parents

1. Guidelines on Best Practices for Litigating Custody and Abuse Cases in Order to Preserve Appeals to State Court and the Supreme Court

2. Preparing DV Survivors for a Custody Evaluation

3. Making the Record for Appeal

4. Pro Se Guidelines on How to Make the Record for Appeal (any jurisdiction)

5. Pro Se Guidelines on How to Make the Record for Appeal (WV annotations)

6. Tip Sheet for Litigants and Their Advocates for Custody Evaluations

III. Research Summaries

1. Research Indicating That the Majority of “High Conflict” Contested Custody Cases Have a History of Domestic Violence

2. Rates at Which Accused and Adjudicated Batterers Receive Sole or Joint Custody

3. Scientific and Professional Rejections of Parental Alienation Syndrome

4. False Allegations of Intimate Partner Violence and Child Abuse

IV. Other Resource Materials

Critiques and Case Reports of GALs’ Failures to Protect Children in Custody and Abuse Cases

Data on False Allegations in Custody Context.  https://drive.google.com/file/d/1ehdOb-hS0v0Ot_rIoK_wc6QYySRtLPV6/view

We respectfully suggest that any family court legislation involving custody, PAS, allegations of child abuse and  DV be thoroughly vetted by experts in the field of Domestic Violence.

Thank you for the opportunity to submit this written testimony. I can be reached with any questions at jmeier@law.gwu.edu. 

*The list of organizations that have been advocating for passage of H. Con. Res 72 includes Advocates for Child Empowerment & Safety (ACES); California Protective Parents Association (CPPA); Center for Judicial Excellence (CJE); City of Covina; Domestic Violence Legal Empowerment and Appeals Project (DV LEAP); ACTION OHIO Coalition For Battered Women; Azusa City Council; Battered Mothers’ Custody Conference; California Partnership to End Domestic Violence (CPEDV); Center for Child Protection and Family Support; Child Abuse Forensic Institute (CAFI); Child Abuse Solutions, Inc.; Child Justice; Child Protection Institute (CPI) at Liberty University; Child USA; Children’s Civil Rights Union (CCRU); Children’s Justice Fund; Coalition Against Domestic Violence – Lynchburg VA; Courageous Kids Network (CKN); Darkness to Light; Distinction in Family Courts (DFC); Families Against Court Travesties; Family Violence Appellate Project (FVAP); Futures Without Violence (FUTURES); Incest Survivors Speakers Bureau (ISSB); Joan of Arc Lawyers Foundation, Inc.; Justice for Children; Kids Are Human; Legislative Coalition to Prevent Child Abuse; Legal Momentum; Los Angeles County Sheriff’s Department; Lundy Bancroft; MassKids (Massachusetts Citizens for Children); Moms Fight Back; Mothers of Lost Children; National Coalition Against Domestic Violence (NCADV); National Coalition for Family Justice (NCFJ); National Domestic Violence Hotline; National Network to End Domestic Violence (NNEDV); National Organization for Men Against Sexism (NOMAS); National Organization for Women (NOW); National Partnership to End Interpersonal Violence (NPEIV); National Task Force to End Sexual and Domestic Violence; Peace Over Violence; Piqui’s Justice; Senator Ed Hernandez; SOAR for Justice; Stop Abuse Campaign; Support Network of Advocates for Protective Parents (SNAPP); Talk About Abuse to Liberate Kids (TAALK); The Hofheimer Family Law Firm; The Leadership Council on Child Abuse and Interpersonal Violence; The Nurtured Parent; and Wings for Justice.

NANCY S. ERICKSON, J.D., DR. KARIN HUFFER, AND JANE DOE SPEAK ABOUT INVISIBLE DISABILITIES IN THE COURTROOM AND THE ADA AT THE BMCC 2015!

Nancy Erickson stated as follows:  In my work in litigation, I see that the fathers would abuse the mother who would then develop PTSD or some other form of mental illness.  The mother would then come across very badly in psychological tests and lose custody.  

These tests are not meant to figure out whether you are a good parent and they cannot really arrive at such conclusions, but they are misused for that purpose.  

PTSD is extremely common among battered women.  If you look at these percentages, there are studies indicating that among women in DV shelters 40-89% have PTSD.  PTSD is not what you would really call an illness.  It is an injury.  The best way to think about it and explain it to the court is that we are starting to learn about it.  Soldiers returning from combat have PTSD.  All of the research money is out there to treat PTSD, not for DV, but that which results from combat.  

There are similarities and also differences.  PTSD from DV is worse, because you have been traumatized by someone you thought was going to love, protect, and take care of you--not an enemy, but a person you trusted.  Thus, your trust in the whole world has gone.  So it is an injury.  

PTSD is defined in the DSM-5 as follows:

1.  You had to have had a trauma; 

2. you have to have the requisite numbers and kinds of symptoms, i.e. one or more--sort of like a restaurant menu in a Chinese restaurant:

A. intrusive thoughts--nightmares of the abuse, flashbacks or dissociative reactions, not a memory, an oh my God, I am back there again, distress at exposure to external or internal cues regarding what happen, physiological reactions to external or internal cues; 

B. avoidance, avoidance of thoughts and feelings of this event, avoidance of external reminders: people, places, activities, objects; 

C.  negative changes in cognition/mood, can't remember something that happened, change from before to afterwards, loss of trust, distorted thought like blaming yourself, anger, feelings of detachment or estrangement from others, memory problems, and persistent inability to experience positive emotions; 

D.  changes in arousal or reactivity such as exaggerated startle response, hypervigilance, problems with concentration, sleep disturbances, suicidal behavior or ideation.  

I sometimes like to give the Court the following analogy if they are considering taking a mother's children away from her based upon PTSD.  What if the abuser had taken a sledgehammer and crippled the mother for life because he destroyed her knees and now she can't walk.  Then he comes to court and says, your honor, she can't even walk how can she be a parent?  Yet he caused this problem!  

This is not something is biochemical; this is an injury caused by the perpetrator and will stop once the constant abuse is over.  Are these symptoms always at play?  No.  You have PTSD, but it isn't triggered all the time, only when in Court or facing the abuser, or having to see him in court.  In other words, PTSD is often episodic, which is covered under the ADA.  

Jane Doe mentioned requesting breaks, obtaining reduced price transcripts, pencil and paper to take notes on the stand, breaks, etc. as her accommodations under the ADA.  The ADA Amendments Act of 2008 has expanded and extended the civil rights of people with disabilities.  

Dr. Karin Huffer began her presentation taking note of Jane Doe's situation.  She has broken heart syndrome where the pressure of family court has caused her heart attacks.  

If you are in a situation like Jane Doe, says Dr. Karin Huffer, the first thing to note is:  1.  You are not crazy; 2.  You are not alone; 3. You have rights under the ADA.  

The ADA empowers us with a powerful federal tool so that victims of DV can stand up for themselves.  Family courts are a maze where you can end up being abused more because your abuser controls family court the same way he controlled the family.  

In this situation, the ADA can help you.  For instance, you can obtain accommodations under the ADA to undergo a deposition in writing in your own time rather than being put on the spot in an oral deposition.  

It is critical to have a person in your life to address the disability issues when you are in a court proceeding.  

When you request an ADA accommodation, you only have to provide a single diagnosis.    So don't feel you have to provide more than one.  A request for accommodation is administrative; it is confidential and does not belong under discussion in court.  

Federal Court also has to comply with the ADA as well even though they will deny that.  And this is why.  PTSD interferes with expressive speech and so without the ADA a litigant is unable to communicate effectively with the court.  

In addition,  Federal law supersedes state and local law.  

You don't file a motion with the judge.  You go to the clerk ex parte.  

People with invisible disabilities often need extra time; they need a stay, they need a break, etc.  People must have executive functionality--anything that takes it away is not lawful.  

It is my view that Family Courts have become a public health crisis and must be treated as such.  

Consider whether it makes sense to have a psychological evaluation which is intended to take your child from you if they find a disability vs. a disability asssessment in order to address the accommodations you need in order to function.    

One trick of the abuser is to litigate you to the point of bankruptcy.  We need to address this issue.  

Finally, we need to train ADA advocates to be in those courts.  If these advocates can get all over these courts like an anthill, they will not be able to do this any further.