Abusers gaining custody in family courts: A case series of over turned decisions

Abstract

This article presents findings and recommendations based on an in-depth examination of records from 27 custody cases from across the United States. The goal of this case series was to determine why family courts may place children with a parent that the child alleges abused them rather than with the nonoffending parent. We focused on “turned around cases” involving allegations of child abuse that were at first viewed as false and later judged to be valid. The average time a child spent in the court ordered custody of an abusive parent was 3.2 years. In all cases we uncovered the father was the abusive parent and the mother sought to protect their child. Results revealed that initially courts were highly suspicious of mothers' motives for being concerned with abuse. These mothers were often treated poorly and two-thirds of the mothers were pathologized by the court for advocating for the safety of their children. Judges who initially ordered children into custody or visitation with abusive parents relied mainly on reports by custody evaluators and guardians ad litem who mistakenly accused mothers of attempting to alienate their children from the father or having coached the child to falsely report abuse. As a result, 59% of perpetrators were given sole custody and the rest were given joint custody or unsupervised visitation. After failing to be protected in the first custody determination, 88% of children reported new incidents of abuse. The abuse often became increasingly severe and the children's mental and physical health frequently deteriorated. The main reason that cases turned around was because protective parents were able to present compelling evidence of the abuse and back the evidence up with reports by mental health professionals who had specific expertise in child abuse rather than merely custody assessment.

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Abusers gaining custody in family courts: A case
series of over turned decisions
Joyanna Silberg & Stephanie Dallam
To cite this article: Joyanna Silberg & Stephanie Dallam (2019) Abusers gaining custody in family
courts: A case series of over turned decisions, Journal of Child Custody, 16:2, 140-169, DOI:
10.1080/15379418.2019.1613204
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Abusers gaining custody in family courts: A case series
of over turned decisions
Joyanna Silberg and Stephanie Dallam
The Leadership Council on Child Abuse & Interpersonal Violence, Baltimore, MD, USA
ABSTRACT
This article presents findings and recommendations based on
an in-depth examination of records from 27 custody cases
from across the United States. The goal of this case series was
to determine why family courts may place children with a par-
ent that the child alleges abused them rather than with the
nonoffending parent. We focused on “turned around cases”
involving allegations of child abuse that were at first viewed
as false and later judged to be valid. The average time a child
spent in the court ordered custody of an abusive parent was
3.2 years. In all cases we uncovered the father was the abusive
parent and the mother sought to protect their child. Results
revealed that initially courts were highly suspicious of mothers’
motives for being concerned with abuse. These mothers were
often treated poorly and two-thirds of the mothers were path-
ologized by the court for advocating for the safety of their
children. Judges who initially ordered children into custody or
visitation with abusive parents relied mainly on reports by
custody evaluators and guardians ad litem who mistakenly
accused mothers of attempting to alienate their children from
the father or having coached the child to falsely report abuse.
As a result, 59% of perpetrators were given sole custody and
the rest were given joint custody or unsupervised visitation.
After failing to be protected in the first custody determination,
88% of children reported new incidents of abuse. The abuse
often became increasingly severe and the children’s mental
and physical health frequently deteriorated. The main reason
that cases turned around was because protective parents were
able to present compelling evidence of the abuse and back
the evidence up with reports by mental health professionals
who had specific expertise in child abuse rather than merely
custody assessment.
ARTICLE HISTORY
Received 21 November 2018
Revised 17 May 2019
Accepted 3 March 2019
KEYWORDS
Adolescents; alienation in
child custody cases; child
custody; children;
sexual abuse
Introduction
In most cases, conflicts around custody and access are resolved by the
parents outside of court. If the parents are unable to reach such an agree-
ment, the court must help to determine the decision-making authority and
CONTACT Joyanna Silberg joysilberg@me.com 6501 North St. Charles St., P.O. Box 6815, Baltimore, MD
21285-6815, USA.
ß2019 Taylor & Francis Group, LLC
JOURNAL OF CHILD CUSTODY
2019, VOL. 16, NO. 2, 140–169
https://doi.org/10.1080/15379418.2019.1613204

physical contact each parent will have with the child. Research suggests
that contested custody cases often represent a high prevalence of family
violence compared to the general population of divorcing adults (Bruch,
2001; Jaffe, Zerwer, & Poisson, 2004). Family violence may take the form
of physical, psychological, and/or sexual assault. However, research suggests
that family courts may fail to take allegations of abuse seriously, solely
based on the fact that they surfaced during a custody dispute (Thoennes &
Tjaden, 1990; Meier, 2013).
Problems in family court have increasingly come to the attention of the
media, with dramatic stories of homicide following judges’refusal to grant
protective orders (Borden, 2013; Morse, 2009), mothers losing custody to
abusers (Waller, 2001;2011), and children fleeing after placement with
their alleged abuser (Silva, 2012). Studies have found that family courts are
often highly suspicious of mother’s motives for being concerned with abuse
and mothers who raise concerns are often treated poorly and receive less
than favorable custody rulings (Faller & DeVoe, 1996; Kernic, Monary-
Ernsdorff, Koepsell, & Holt, 2005; Saccuzzo & Johnson, 2004). Faller and
DeVoe (1996) reported that women were often sanctioned for reporting
abuse. These sanctions included being jailed; losing custody to the alleged
offender, a relative, or foster care; limitation or loss of visitation; admoni-
tions not to report alleged abuse again to the court, Protective Services, or
the police; and prohibitions against taking the child to a physician or ther-
apist because of concerns regarding sexual abuse in the future.
The problem has also been analyzed by the Leadership Council on Child
Abuse and Interpersonal Violence (2008) using empirical data to estimate
that 58,000 children a year are placed in the custody of an abuser. In 2018,
Congress looked into this matter and passed House Resolution, 72, which
noted that in the preceding 10 years researchers have documented a min-
imum of 653 children murdered in the United States by a parent involved
in a divorce, separation, custody, visitation, or child support proceeding,
often after access was provided by family courts over the objections of a
protective parent (PP). Congress urged family courts to take actions to safe-
guard children during custody disputes. The Office on Violence Against
Women (OVW) housed within the Department of Justice sought research
to address the issue of perpetrators gaining custody. The current study was
funded as part of OVW’s attempt to better understand this critical issue.
A number of factors have been mentioned in the literature to explain
why children may be placed at risk by family courts. These factors include:
(a) lack of education in domestic violence and child abuse (Bow &
Quinnell, 2001; Gourley & Stolberg, 2000; Saunders, Faller, & Toman,
2011); (b) gender bias and pathologizing mothers reporting abuse (Rivera,
Zeoli & Sullivan, 2012; Saunders et al., 2011); (c) the inappropriate use and
JOURNAL OF CHILD CUSTODY 141

interpretation of psychological testing (Bancroft & Silverman, 2002;
Erickson, 2005); and (d) the strong legal presumption in favor of joint cus-
tody and “friendly parent”provisions (Dore, 2004; Rivera et al., 2012).
Saunders et al. (2011) studied child custody and visitation decisions in
domestic violence cases and concluded that the most unsafe parenting
plans were derived by evaluators who had limited knowledge of domestic
violence and the dynamics of abuse. Bow and Quinnell (2001) found that
the vast majority of child custody evaluators had no graduate school or
internship/postdoctoral training in the child custody area. In a survey of
custody evaluators, Gourley and Stolberg (2000) found that about three-
quarters indicated that their primary child custody training method was
reading books and journal articles. Accordingly, evaluators regularly fail to
investigate allegations of abuse, dismissing them on the basis of their
impressions of the parties or the results of psychological testing (Bancroft
& Silverman, 2002). Rivera, Zeoli and Sullivan (2012) found that if an abu-
sive father acts calm, professional, or charming, the woman’s allegations
are less likely to be believed by the mediator—even if she has a restraining
order against him. Saunders et al. (2011) found that patriarchal beliefs
remain one of the strong influences in evaluators making recommendations
that imperil children’s safety.
Patriarchal beliefs go hand in hand with pathologizing mothers who raise
concerns about abuse. One of the main pathologies attributed to mothers
who raise abuse concerns is that of being an “alienator”(i.e., inducing par-
ental alienation in their children). The term “parent alienation”refers to a
concept created by psychiatrist Richard Gardner (2003), who maintained
that it was a widespread psychiatric syndrome in children. Gardner defined
Parental Alienation Syndrome (PAS) as follows:
The parental alienation syndrome (PAS) is a disorder that arises primarily in the
context of child custody disputes. Its primary manifestation is the child’s campaign
of denigration against a parent, a campaign that has no justification. It results from
the combination of a programming (brainwashing) parent’s indoctrinations and the
child’s own contributions to the vilification of the target parent. (p. 2)
Gardner’s work has been subjected to widespread criticism (see, e.g.,
Clemente & Padilla-Racero, 2016; Meier, 2013). It has been criticized for
being misogynistic (Laing, 1999; Milchman, 2017), relying on circular rea-
soning (Hoult, 2006), relying on vague and subjective criteria (Faller, 1998),
and because the assessment and treatment of PAS has never been subjected
to adequate empirical testing (O’Donohue, Benuto, & Bennett, 2016; Saini,
Johnston, Fidler, & Bala, 2016). The proposed syndrome was based on
Gardner’s clinical impressions of custody cases he believed involved false
allegations of child sexual abuse (Gardner, 1987). At the time, Gardner was
a frequent expert witness, most often on behalf of fathers accused of
142 J. SILBERG AND S. DALLAM

molesting their children (Sherman, 1993). Without citing any evidence,
Gardner (1987) claimed that PAS is responsible for most accusations of
child sexual abuse that are raised during custody disputes, and that “in cus-
tody litigation …the vast majority of children who profess sexual abuse
are fabricators”(p. 274). Contrary to Gardner’s assertions in this regard,
research shows deliberately false allegations are rare (U.S. Department of
Health & Human Services, 2010) with minimal or no increase in false
reporting during custody litigation (see Dallam & Silberg (2014) for a
review). Research further indicates, that the majority of false allegations of
maltreatment in the context of custody disputes derive from misinterpreta-
tions or misperceptions rather than calculated false allegations (Bala,
Mitnick, Trocme, & Houston, 2007; Thoennes & Tjaden, 1990).
The reality of domestic violence and child abuse were largely ignored in
Gardner’s early writings on his theory. Problems in a child’s relationship
with one parent were simply blamed on the other parent—usually the
mother (see Gardner, 1992). Negative programing by the favored parent is
assumed a priori as the main cause of the syndrome. PAS thus provides a
ready-made defense for parents accused of abuse and is frequently intro-
duced in custody cases in order to discredit allegations of family violence
or abuse (Bruch, 2001). Gardner’s recommended treatment for parental
alienation involves coercive and punitive treatments for both the mother
and the child with sole custody often being awarded to the alleged abuser
(Dallam & Silberg, 2016). These treatments have not been adequately
studied for efficacy (see Mercer (in press), this issue) and Johnston and
Kelly (2004) described them as “a license for tyranny”(p. 625).
Gardner’s theory of PAS has been difficult to overcome because he relied
on popular gender and cultural myths (see Dallam & Silberg, 2006, for a
review) and offered courts a simple approach for complex cases. Gardner
made no attempt to perform a behavioral or observational approach to his
assessment of the family. Instead, the alienating parent was painted by
Gardner as pathological and completely to blame for the child’s position.
The rejected “victim parent”in Gardner’s theory was considered totally
blameless (Gardner, 2003, p. 16). In actuality, when a child rejects a parent
there is a wide range of possible explanations including normal develop-
mental conflicts with a parent, separation anxiety with the preferred parent,
abuse or neglect, and so forth (e.g., Faller, 1998; Garber, 1996). Moreover,
research on the topic has found that rejected parents often have contrib-
uted to their situation. For example, in a survey of 292 young adults whose
parents had divorced when they were young, Huff (2015) found that partic-
ipants were not influenced to reject a parent due to manipulation by the
other parent; instead, they tended to align with the parent who exhibited
JOURNAL OF CHILD CUSTODY 143

the most caring behavior toward them and reject parents who were violent
or perceived as less caring.
Current proponents of parental alienation theory (e.g., Bernet, 2008;
Warshak, 2015), no longer attach the word “syndrome”when describing
parental alienation, yet, they have continued many of Gardner’s approaches
to evaluation and treatment. Consequently, many of the same criticisms of
Gardner’s original writings may be applicable (Houchin, Ranseen, Hash, &
Bartnicki, 2012; Meier, 2013). For example, Bernet (2008) suggests that par-
ental alienation is a “relational disorder”rather than a syndrome; yet, it
uses almost identical criteria as Gardner’s original conceptualization. Many
newer formulations of parental alienation also rely on Gardner’s simplistic
view of the preferred parent being primarily to blame for the child’s rejec-
tion of the other parent while paying minimal attention to the many other
factors that might influence a child’s relationship with their parent. A more
empirical approach has been offered by Drozd, Olesen, and Saini (2013).
They propose using a multiple hypotheses approach to consider all poten-
tial factors impacting a child’s relationship with a rejected parent to avoid
the simplified attribution of blame advocated by Gardner.
At the current time, definitions of parental alienation and methods of
operationalizing this concept differ among proponents to such an extent
that the body of literature on the phenomenon cannot be reliably synthe-
sized to assess its overall validity (Saini et al., 2016). As such, none of this
work has reached a point of scientific credibility; yet, family courts con-
tinue to rely on the alienation construct when making custody
determinations.
The routine use of psychological tests to help determine the best custody
arrangement for children has been noted as another factor that may favor
perpetrators over PPs (see Erickson, 2005). While this testing is done in an
attempt to increase the objectivity of the evaluator’s decisions, Tippens and
Wittman (2005) argued that these tests have little scientific validity in cus-
tody evaluations and evaluators typically extend their conclusions beyond
what the data they generate would merit. Even well-established psycho-
logical measures (e.g., measures of intelligence, personality, psychopath-
ology, and academic achievement) are problematic because they are poor
predictors of parenting capacity (Gottfried, Bathurst, & Gottfried, 2004)
and have limited relevance to the questions before the court (Emery, Otto
&O’Donohue, 2005). In addition, psychological tests like the Minnesota
Multiphasic Personality Inventory (MMPI) are not normed on women who
have suffered domestic violence and may produce misleading results in
traumatized women. For example, The MMPI may initially indicate a per-
sonality disorder that leads a custody evaluator to question her parental
144 J. SILBERG AND S. DALLAM

fitness, yet elevated scores often return to normal when a woman achieves
safety (Erickson, 2005).
Psychological assessment of an alleged perpetrator is particularly difficult
due to the high degree of denial among offenders, and the absence of a
typical test profile for offenders (Becker & Murphy, 1998). Similarly, there
is no psychological test that can determine whether or not a person has
abused a child (American Psychological Association Ad Hoc Committee on
Legal and Ethical Issues in the Treatment of Interpersonal Violence, 1997).
Nor is there any psychological test that can establish whether a mother’s
concern about abuse is factual (Bancroft & Silverman, 2003). These dis-
criminations depend on extensive knowledge of the dynamics of abuse and
domestic violence, which may not be part of custody evaluator expertise
(Saunders et al., 2011).
Another factor that can lead to unsafe custody placements is joint cus-
tody presumptions and “friendly parent”statutes, which are routinely
applied throughout the United States (Zorza, 1992). In a study of battered
women’s experience in family court, Rivera et al. (2012) found that family
courts prefer to award joint custody even when one partner has a history
of violence. This equal access arrangement provides an opportunity for the
batterer to continue to have frequent access to the other parent, which may
negatively impact the victim’s parenting while exposing children to further
violence (Bancroft & Silverman, 2002).
The friendly parent concept is codified in child custody statutes requiring
a court to consider as a main factor for custody which parent is more likely
to allow “frequent and continuing contact”with the child and the other
parent, or which parent is more likely to promote the child’s contact or
relationship with the other parent (Dore, 2004). Although the friendly par-
ent concept was developed to keep both parents in children’s lives, it can
prevent nonoffending parents from being able to protect themselves and
their children from violence at the hands of the other parent. The friendly
parent presumption has been particularly problematic in domestic violence
cases because a battered spouse might not be generous in sharing custody
with an intimidating ex-partner. The same is true in cases of child abuse.
Protective mothers often object vigorously to their children spending
unsupervised time with a violent or pedophilic father. An abusive father,
on the other hand, often has no objections to having the children seeing
their mother. Courts punish parents engaging in “unfriendly behavior”by
denying them custody or time with their children. Thus, the friendly parent
concept can favor abusers and punish PPs. Moreover, children’s needs may
be subordinated to penalties against the parent (Dore, 2004).
In conclusion, despite a robust literature about the failures of our
nation’s family courts to protect abused children, there is a paucity of
JOURNAL OF CHILD CUSTODY 145

literature that documents the various components of the decision-making
process that lead some custody evaluators and judges to place children with
parents alleged to have abused them. The purpose of this study was to
gather information from in-depth case analyses to identify what factors
lead judges to put children in harm’s way by granting violent parents
unprotected access to their children.
Method
To assess the factors involved in judicial decision making, custody cases
were identified involving mistaken judicial decisions that were reversed
when compelling evidence of abuse became apparent at a later time. We
employed an exploratory, multicase study design. Case study is an ideal
methodology when a holistic, in-depth investigation is needed (Feagin,
Orum, & Sjoberg, 1991). The multiple-case design permits the researcher to
make generalizations based on the observations of patterns or replications
among the cases (Yin, 2003). In addition, multiple data sources were used
allowing triangulation of data, which is a method recognized as enhancing
confidence in the ensuing findings (O’Donoghue & Punch, 2003).
Inclusion criteria
To evaluate the problem of abusive parents gaining custody, we needed to
locate cases in which we could determine that the abuse had actually
occurred and that the court failed to protect the child. Consequently, we
focused on what we termed “turned around”cases in which the court recog-
nized that it had made an error in awarding custody to an abuser and sought
to remedy the situation. To be included in the dataset each case had to meet
the following conditions: (a) the case was litigated within the United States;
(b) evidence of abuse by one of the parents (e.g., a child’s disclosure, protect-
ive service findings, and/or suspicious injuries while in the custody of the
alleged abuser) had to have been presented to the court prior to the first judi-
cial decision; (c) the child was originally court ordered into unsupervised cus-
tody or unprotected visitation with the alleged abuser; (d) later, based on
compelling evidence of abuse, the ruling was reversed, a new settlement was
reached, or there was a modification of custody or visitation such that the
child was no longer ordered into unsupervised contact with the alleged
abuser; and (e) the judges’decisions and/or other documents supporting the
rationale for the custody determination were available for both the initial cus-
tody decision and later modification.
146 J. SILBERG AND S. DALLAM

Case finding
We limited our search to the United States. We were not able to locate a
central repository with custody data that would allow us to pick random
cases, as our criteria were too specific to be included in any databases of
custody cases. As a result, relevant custody cases were identified using a
variety of methods. These included sending out a letter to professionals
who work with custody litigation involving abuse claims, letters to organi-
zations who advocate for PPs involved in custody litigation, and a review
of on-line and newspaper articles. The sample size was limited by the rigor
of our inclusion criteria. We identified 27 cases that met our inclusion cri-
teria and for which the necessary documentation was available. All cases
meeting our inclusion criteria for which we had collected the necessary
documentation were included in the dataset. The cases had all been adjudi-
cated between 2002 and 2012. It should be noted that since completing our
research, professionals have continued to refer cases to us. We have now
gathered over 50 cases, suggesting this phenomenon may be widespread.
Coding
We developed a coding sheet to extract relevant data from court records.
The instrument consisted of 108 items divided into three sections. The first
section documented basic information about the child and the family. The
second section documented information about the first court case in which
the child was not protected and the evidence presented at the time. The
third section documented information from a later court decision in which
the child was protected. In the second and third sections we coded the type
of hearing involved, the type of abuse allegations raised, sources of infor-
mation presented to the court, the court personnel and mental health pro-
fessionals involved, and the outcomes. We also included child symptoms
and perpetrator behaviors mentioned in court records.
Once cases were identified, the principal investigator obtained all avail-
able relevant documents for coding. These included judicial decisions and
opinions, transcripts of judicial decisions during hearings, motions that
included abuse evidence, depositions of mental health evaluators that
included abuse evidence, transcripts of professionals that presented evi-
dence of abuse, and social service reports documenting findings. We
termed the date of the judicial decision that placed the child with max-
imum access to the abuser “Time 1,”and termed the date of the later deci-
sion that led to the child being protected “Time 2.”An effort was made to
locate documents that contained the professionals’reasoning at both deci-
sion points. The second author and a research assistant did the coding.
Inter-rater reliability was established by having both researchers code the
JOURNAL OF CHILD CUSTODY 147

first four cases and any disagreements were resolved by consensus. The
fifth case was coded separately and answers were tabulated. The percentage
of agreement was 97.2%.
Results
Because this was an exploratory study with a small sample size, analyses
mainly took the form of comparisons using percentages and frequency
tables. The 27 cases were drawn from 13 different states representing all
regions of the United States. The cases included 11 (41%) boys and 16
(59%) girls. The mean age of the children when the family court first failed
to protect them was 6.5 years with a range of 3–15 years. The average time
a child spent in the court ordered custody of an abusive parent was
3.2 years (range: 4 months to 9.25 years). All of the PPs were female and all
of the abusers were male. (We have since identified four turned around
cases where the father was the PP and the mother the alleged abuser; there-
fore, although all the PPs in our sample were mothers, we recognize that
this is not always the case.) The majority (92%) of the parents had been
married. The families were predominantly (93%) from middle and upper
socioeconomic groups likely due to our solicitations of private lawyers. The
mothers were 81% Caucasian. The balance included one African American,
two Korean immigrant mothers, one East Indian immigrant, and one
Asian-American. The fathers were 93% Caucasian with one African-
American and one American Indian father in the sample.
Type of abuse reported to the court
In all of the cases analyzed, children disclosed abuse perpetrated by their
father. At Time 1, 78% of children disclosed more than one type of abuse
(Table 1). The most common types of abuse reported to the court were
sexual abuse (70%) and physical abuse (52%). Seven children (26%) dis-
closed both. In addition, almost 60% of the mothers reported experiencing
domestic violence as part of the marriage. At Time 1, 84% of the mothers
who reported domestic violence had applied for a protection order. Of
those who applied, the order was granted 94% of the time. In a number of
cases, the protective order was granted by one court and then vacated by
the family court judge hearing the custody case so the order was only in
Table 1. Abuse reported to court.
CSA n(%)
Physical
abuse n(%)
Emotional
abuse n(%) Neglect n(%)
Medical
neglect n(%)
DV against
PP n(%)
Time 1 19 (70.4) 14 (52) 11 (41) 2 (7.4) 3 (11.1) 16 (59.3)
Time 2 14 (54) 15 (58) 10 (38) 3 (12) 7 (27) 2 (8)
Note.N¼27. PP ¼protective parent.
148 J. SILBERG AND S. DALLAM

effect briefly. In most cases (88%), the protection order was to protect the
safety of the mother. In 31% of cases it was to safeguard the child.
After being placed in the custody or unsupervised visitation with their
abuser at Time 1, 88% of children reported new incidents of abuse. Of
those experiencing new incidents of abuse, most (77%) experienced more
than one type. For many children, the abuse had escalated and was becom-
ing increasingly severe. Not surprisingly, the children’s mental and physical
health frequently deteriorated. In addition, medical neglect became a prom-
inent type of abuse reported at Time 2. A total of 27% of the children were
alleged to have experienced medical neglect. This often took the form of
the perpetrator failing to seek medical attention after having harmed the
child. For example, several of the children experienced broken bones for
which the perpetrator failed to seek medical treatment. It also took the
form of the perpetrator denying very distressed children access to therapy.
For example, in some cases the children were suicidal, yet the perpetrator
refused to allow them to see a therapist.
To whom children disclosed
At Time 1, all children disclosed their abuse to their PP, which in the cases
studied was their mother. Many children disclosed to other people as well,
especially to professionals who were evaluating the child. At Time 2, only
71% of children disclosed to the PP. This may be due to the fact that most
children were no longer in the custody of the PP and were restricted from
seeing her. In addition, in several cases the PP had been threatened by the
court not to report any further abuse or face losing all contact with their
child. This may have discouraged children from confiding in their mother
as they were threatened with never seeing her again if they did so.
Reports to child welfare agencies
At Time 1, 93% of suspected abuse was reported to Child Protective
Services (CPS). The abuse was unfounded or ruled out by CPS in 63% of
cases and founded in 22% of cases. One case was mixed, as some of the
abuse was founded while other alleged abuse was unfounded. However, the
investigations by child welfare agencies were largely irrelevant to the deci-
sions at Time 1; whether CPS founded the abuse or not, it was the custody
evaluators and guardian ad litem (GALs) whose opinions determined cus-
tody. At Time 2, only 73% of the abuse was reported to CPS, and only
20% of the allegations were judged to be founded. This was despite the fact
that children had gotten older, were providing clearer disclosures, and
objective evidence of the abuse was mounting. It appeared that once CPS
determined the abuse was unfounded or ruled out, they failed to adequately
JOURNAL OF CHILD CUSTODY 149

investigate subsequent reports. In addition, CPS often seemed biased
against finding abuse due to the fact that the allegations first surfaced dur-
ing custody litigation. Some CPS workers noted the custody evaluator’s
concern with “parental alienation”and opted not to assess the
abuse thoroughly.
Outcome at time 1
At Time 1, 59% of perpetrators were given sole custody and PPs were given
only limited contact with the abused child. Six PPs (22%) were allowed
only supervised contact with their children and two PPs (7%) lost all con-
tact. Seven PPs (26%) were given primary custody but the abuser was
allowed unsupervised visitation. In three cases (11%), the parents were
awarded joint custody.
Type of hearing in which custody or unsupervised access was awarded
to the perpetrator. The majority of perpetrators (52%) gained custody or
visitation at a hearing to modify custody. Another 18.5% gained custody or
visitation at a final custody hearing. Although a number of mothers first
lost custody in ex-parte hearings (hearings where they were not present),
we could not use these hearings for Time 1 because no evidence was heard.
Instead we coded Time 1 as the next hearing where evidence regarding
abuse was presented so that the judge’s reasoning in response to the evi-
dence could be examined.
Judge’s rationale for not protecting abused children at Time 1. In 78%
of cases, a primary reason the judge gave custody to the perpetrator was
the mother was not viewed as credible or alleged to have some form of
pathology that called her credibility into question (Table 2). In 67% of deci-
sions, the judge cited the opinion of a custody evaluator or GAL who did
not believe child was abused.
Table 2. Judge’s rationale for not protecting at Time 1.
N% of total
a
Pathology of the PP
a
18 67
Parental alienation 10 37
Mother and child viewed as enmeshed 2 7
Brainwashing or coaching 9 33
Obsessive 14
PP not credible but no pathology noted 3 11
Accepts opinion of professional or GAL who does not believe child was abused 18 67
Mental heath professional 12 44
GAL 830
Insufficient evidence of abuse 10 37
Recantation of child 1 4
Equality of problems on both sides 4 15
Perpetrator provides more stable home 4 15
Other (e.g., perpetrator more likely to comply with court orders, more “friendly”parent) 3 11
Note.PP¼protective parent; GAL ¼guardian ad litem.
a
In most cases judges offered more than one rationale.
150 J. SILBERG AND S. DALLAM

At Time 1, a mental health evaluation was performed on the child in
91% of the custody cases. Most evaluations were performed by therapists
(43%) or custody evaluators (38%); in 14% of cases reports were submitted
by both a therapist and custody evaluator. A total of 85% of mental health
professionals advising the judge either failed to believe the child and the
PP, or believed them and still recommended that the child be forced into
custody or unsupervised visitation with the perpetrator. When judges
received reports from professionals who differed on their view of the cred-
ibility of the child’s allegations, judges tended to accept the recommenda-
tions of a professional who did not believe the child, even when hearing
testimony from other professionals who had more expertise in the matter
or who had examined the child more contemporaneously to the abuse.
Judges presiding over child custody disputes often appointed a GAL for
minors. Although the role of the GAL is to protect the interests of children,
the involvement of GALs in the cases studied often contributed to children
not being believed or protected from abuse. In 73% of cases for which we
had data, the GAL sided with the perpetrator against the child. For
example, in one case that involved over 10 abuse reports, including allega-
tions of sexual abuse along with broken bones and human bite marks, the
GAL recommended that the father receive sole custody and the judge com-
plied. In another case in which a child disclosed abuse, the GAL referred
the child to an expert in parental alienation who then testified against the
child’s claims.
While state agencies mandated to investigate abuse were involved in 93%
of the cases at Time 1, CPS ruled out abuse 63% of the time. Although we
have strong evidence that all the children in our sample were actually
abused, CPS only founded abuse in 20% of cases. The fact that CPS had
confirmed the abuse did not necessarily lead to evaluators and GALs
accepting the determination. Instead, they tended to rely on their own
assessment of the situation.
Outcomes for mothers at Time 1. Two-thirds of the mothers in this
sample reported having experienced domestic violence at the hands of their
husband prior to separating. Of these women, 88% applied for and received
a protection order prior to the custody determination. However, the pres-
ence of domestic violence did not appear to influence the decision making
of the court.
Two-thirds (67%) of the mothers were pathologized for advocating for
the safety of their children. Pathologizing the mother often occurred in the
context of psychological testing results which were then echoed by the
other professionals involved. Many mothers were termed “narcissistic”
and “histrionic,”and behaviors such as taking notes on their children’s
behaviors were categorized as pathological or “obsessive.”The word
JOURNAL OF CHILD CUSTODY 151

“enmeshment”was used to describe the close bond between the child and
PP and the PP’s strong advocacy for her child’s safety. Thus the normal
dependence an abused child might feel on a safe parent was misperceived
as a pathological trait. Without specific evidence of this behavior, many
mothers were accused of “coaching”the child, particularly mothers who
videotaped disclosures, or wrote down word for word what the children
disclosed. These pathological labels discredited the mother’s legitimate con-
cerns about the children and were compounded by accusations of PAS or
parental alienation which appeared to be the evaluator’s attempt to explain
why a mother would report abuse that the evaluator contended had not
happened. All of these various labels were used to call the mother’s cred-
ibility into question and blame her for their child’s disclosure of abuse.
A total of 59% of the mothers in our sample lost complete custody to
the perpetrator and some were given only supervised visitation. Several
mothers were threatened that if they reported abuse again they would lose
all visitation rights. One was ordered to pay her ex-husband’s considerable
legal expenses and was denied visitation with her child when she was
unable to come up with the money necessary to do so.
In addition to losing custody or having access to their children curtailed,
mothers were often punished for reporting abuse and courts often set up
systems to make it more difficult for them to protect their children. For
example, a report by a custody evaluator claimed that the fact that the
mother believed that her former husband abused her son was in itself a
form of child abuse. In several other cases mothers not only lost custody,
but were also threatened with the loss of all contact with their child if they
ever so much as spoke with their child about abuse again. In some cases,
mothers were ordered not to report any abuse to their state’s child protec-
tion agency. Instead, they were ordered to only report abuse to a special
master or parenting coordinator appointed by the court. Abuse reported to
these officers of the court was often not investigated or referred to CPS.
Outcome at Time 2
As previously noted, at Time 2 all children were protected from further
unsupervised contact with their abusive father. Most mothers (81%) were
awarded sole custody. In 11% of cases the mother was forced to share cus-
tody with the abuser but children were given the choice whether or not to
visit with him. In one case, the child was placed in the custody of a safe
family member and had unfettered access to the PP.
Type of hearing in which children were finally protected. Regaining
custody was difficult and costly for PPs usually taking a number of years.
One of the main ways PPs regained custody was through an appeal. Eight
152 J. SILBERG AND S. DALLAM

(30%) of the cases were appealed to a higher court where five decisions
(19%) from Time 1 were reversed. Some appeals, though successful, did
not change the child’s custody status as the case was remanded back to the
trial court. Three appeals were unsuccessful, yet the mothers eventually had
the children returned to them through other means. A total of 15% of chil-
dren were protected at a final custody hearing and another 15% of children
were protected at a hearing to modify custody. The remaining cases
involved a number of other types of hearings including status conferences,
protective orders, mediation agreements, or emergency motions.
Main reasons that children were protected at Time 2. The main reason
that cases were turned around was because PPs were able to present evidence
of the abuse and back the evidence up with reports by professionals who
were able to dispel the misinformation and myths promulgated at Time 1
(Table 3). As with Time 1, judges at Time 2 tended to rely on the judgment
of professionals when modifying custody determinations. A total of 78% of
custody cases included testimony by a professional. However, since the cus-
tody evaluations had been done at Time 1, the professionals testifying in
court were no longer custody evaluators and GALs. At Time 2, almost all
were therapists (89%), reporting children’s symptoms and disclosures as per-
mitted within each state’s laws, or professionals involved in specialized abuse
evaluations (11%). Over half (57%) of those who testified about the child
had specific expertise in abuse at Time 2 versus 10% at Time 1.
In 63% of decisions at Time 2, judges cited reports and testimony from
professionals who supported the child’s claims of abuse. In many cases,
the judge was persuaded by the convergence of evidence from a number
of different sources. For example, one judge was persuaded by a forensic
evaluation of the child which included the child’sdisclosureofsexual
abuse, medical evidence of sexual abuse, along with the testimony of a
neutral witness about the child’sbehavioratschool(Table 4).
In cases in which the PP won an appeal, it was often because the lower
court had violated the PP’s rights or disregarded important evidence of
Table 3. Main reasons why case turned around based at Time 2.
N%
Reports from professionals 17 63
Child’s mental health is deteriorating 8 30
Persuasiveness of child’s disclosure 6 22
Child’s continued refusal to visit 6 22
Appeal 519
Perpetrator arrested or about to be arrested 4 15
Rejection of PAS 3 11
Compelling medical evidence of abuse 3 11
GAL recommendation 3 11
Testimony of neutral witnesses 2 7
Perpetrator’s bad behavior in court 1 4
Other (e.g., settlement, mediation, emancipation of minor, relinquishment) 4 15
Note. GAL ¼guardian ad litem; PAS ¼Parental Alienation Syndrome.
JOURNAL OF CHILD CUSTODY 153

abuse. For example, in two appellate cases, ample evidence of abuse had
been presented by professionals; however, the judges questioned the chil-
dren alone in chambers and ignored other evidence. Both cases were
reversed because the judge relied on their own interview instead of the
ones done by trained professionals. In one of these in chamber interviews,
the young child made a partial recantation and the judge based her deci-
sion on this, rather than the medical and psychological evidence presented.
A particularly compelling reason that cases turned around was that the
perpetrator was arrested or was under threat of being arrested. This
occurred in 15% of cases. In three cases, the perpetrator lost custody due
to being arrested. In a fourth case, a perpetrator relinquished his rights to
prevent being arrested for sexually abusing his daughter.
The self-advocacy of older children was another important factor result-
ing in children finally being protected. For example, some children con-
tinually ran away, reported their abuse to CPS, or refused all attempts at
visitation and could not be coerced to participate in reunification therapy
with their abuser. Another boy was hospitalized for his extreme distress.
He did well in the hospital but calmly stated his intent to kill his father
whenever he was to be discharged back to his father—knowing this would
prevent his discharge. Other children reported their abuse to CPS or made
a special effort to find a safe person they could confide in about the abuse.
For example, a 12-year-old girl asked the court to allow her to switch from
a male therapist to a female one. The court-ordered male therapist had
ignored her complaints against her father for many years. Within two ses-
sions with her new female therapist, the girl revealed ongoing rape and tor-
ture by her father since the age of four. The new therapist’s report resulted
in a termination of the father’s rights (Table 4).
Role of specialized attorneys
Attorneys play an important role in custody litigation. We examined the
types of attorneys that PPs utilized at Time 1 and Time 2. Most (95%) PPs
hired private attorneys at Time 1. At Time 2, 59% had hired an attorney
who specialized in family cases involving allegations of violence. These data
suggest that having an attorney familiar with abuse and with presenting
Table 4. Mental health evaluations of children.
Time 1 % Time 2 (n¼23) %
Mental health evaluation performed 91 78
By therapist 44 89
Specialized abuse evaluation 15 11
Custody evaluation 41 0
Professional was a specialist in abuse 10 57
154 J. SILBERG AND S. DALLAM

evidence of abuse to family courts may be an important factor in helping
to turn these cases around.
Symptoms reported in children at Time 1 and Time 2
The children in the cases we analyzed tended to have multiple symptoms
of distress (Table 5). It should be noted that the symptoms were gleaned
from court records. Symptoms in these children were never systematically
investigated, measured, or reported during the custody case. As a result,
these likely represent an underestimation of the true rate of distress in
these children.
Symptoms of distress were often discounted at Time 1 and attributed to
the pathology of the mother or to the stress of the custody litigation. For
example, sexualized behavior was one of the most commonly reported
symptoms in children who disclosed sexual abuse. Despite the fact that sex-
ual behavior is highly correlated with sexual abuse (Everson & Faller,
2012), it tended to be dismissed by custody evaluators as either made up,
meaningless or a sign of stress related to the divorce. One custody evalu-
ator wrote the following in a case where the child disclosed sexual abuse,
was having bowel problems, and had been observed to be acting
out sexually:
The [child’s] therapist …could address any encopresis problems, sexual self-touching,
parental boundary issues, or other problems raised by (the mother). In my opinion,
these problems, to the extent they may exist, are more a result of the parental
separation than due to the conduct of (the father).
Although professionals frequently attributed children’s symptoms to the
stress of parental separation and custody litigation, symptoms did not
improve after custody was settled. In fact, depression in children doubled
and suicidality and self-harm increased almost threefold in the sample. So
while 13% of children were suicidal at Time 1, by Time 2, 33% of the chil-
dren were suicidal.
Table 5. Child symptoms mentioned in court records.
Child behaviors Time 1 (n¼23) n(%) Time 2 (n¼24) n(%)
Sexual behaviors 11 (46) 5 (21)
Depression 4 (17) 8 (33)
Anxiety 11 (46) 17 (71)
Self-harm 1 (4) 3 (13)
Suicidal 3 (13) 8 (33)
School problems 3 (13) 6 (25)
Anger 9 (38) 5 (21)
Regressive behaviors 10 (42) 8 (33)
Reluctance to visit perpetrator 14 (61) 17 (71)
Nightmares 9 (38) 9 (38)
Other (e.g., problems sleeping, running away, eating disorders) 9 (38) 10 (42)
JOURNAL OF CHILD CUSTODY 155

Perpetrator behaviors at Time 1 and Time 2
We examined court records for behaviors in perpetrators that might have
provided support for claims by the mother and child that the father was
abusive (Table 6). The most common behaviors mentioned in court records
were problems with anger (63%) and engaging in projection (63%), which
took the form of the perpetrator blaming the PP for all their child’s prob-
lems. The following is a quote from a custody evaluator’s report at Time 1:
“Father can become angry and argumentative and justify it as someone
else’s inappropriate behavior …. Parenting is hindered by a pattern of self-
centeredness and narcissism that can be made worse by a tendency to deny
his contribution to problems.”Despite recognizing this behavior in the
father, the custody evaluator recommended the father receive custody.
The third most common behavior mentioned in court documents was
boundary violations by the perpetrator. This usually entailed the father
insisting on sleeping in the same bed as the child or bathing with the child.
Another common behavior was implausible rationalizations particularly
about their children’s symptoms of distress. In one case a boy would kneel
over with his bottom up and cry, “It’s going to hurt!”at school. The child
had reported being anally raped by his father. When the child’s unusual
behavior was brought to the father’s attention, he brushed it off saying that
this was how the child passed gas.
In 33% of cases, there was evidence that the father had substance abuse
problems. Sometimes these problems were severe with multiple drunken
driving arrests. There was evidence of the father possessing child sexual
abuse images (previously referred to as child pornography) in 21% of cases
at Time 1. Other behaviors included fabricating documents that were pre-
sented to the court to counter allegations of abuse, and falsely reporting
the mother to child welfare for child abuse.
Many of these behaviors remained constant or increased after the perpet-
rator gained sole custody or unsupervised access to the child. For example,
Table 6. Perpetrator behaviors mentioned in court records.
Time 1 n(%) Time 2 n(%)
Anger 15 (63) 17 (71)
Projection (blames PP for child’s problems) 15 (63) 16 (67)
Boundary Violations 11 (46) 7 (29)
Minimizing evidence or implausible rationalizations 10 (42) 12 (50)
Substance abuse 8 (33) 5 (21)
Child pornography 5 (21) 6 (25)
Failure to appropriately address child’s needs 4 (17) 11 (46)
Fabrication of documents 3 (13) 1 (4)
False report of PP to child welfare 3 (13) 1 (4)
Isolating 1 (4) 3 (13)
Daily functioning problems 1 (4) 3 (13)
Other (e.g., threats, controlling behaviors, false claims about
the mother, criminal behavior)
16 (67) 14 (58)
Note.N¼24; data missing from three cases. PP ¼protective parent.
156 J. SILBERG AND S. DALLAM

the perpetrator’s difficulties managing anger, his use of projection, and
minimizing of evidence and offering implausible rationalizations increased
slightly between Time 1 and Time 2.
The most notable behavior that increased was the perpetrator’s failure to
adequately address the child’s physical and/or emotional needs. Whereas
failure to address the child’s needs was mentioned in 17% of cases at
Time 1, it was noted in almost half (46%) of cases by Time 2. The most
common presentation of this behavior was the perpetrator failing to take
the child to a doctor after having physically hurt the child, or refusing to
take the child to see a therapist when the child was displaying symptoms of
severe distress. There was also an increase in isolating behaviors. For
example, after gaining custody, some perpetrators would attempt to isolate
the child from other people and controlled the child’s access to a phone–in
essence holding their victim hostage. Perpetrators also displayed numerous
other behaviors which were combined under “other.”These mainly took
the form of threats against the child and the mother, controlling behaviors,
and criminal behaviors not previously mentioned.
Discussion
Our research confirms numerous prior observations of the danger that fam-
ily courts can pose for abused children and PPs. The majority of the children
in our sample had been sexually and/or physically abused. Rather than pro-
tect them, the courts often ordered them into the sole custody of their per-
petrator, placing their physical and mental health at risk. We also confirmed
prior concerns noted in the literature regarding problems with custody evalu-
ations such as evaluators’bias against mothers reporting abuse, their lack of
education in domestic violence and child abuse, and the inappropriate use of
psychological testing and biased reporting of test results. Statutory legal pre-
sumptions in favor of joint custody and “friendly parent”provisions were
often a contributing factor. These presumptions worked in favor of abuse
perpetrators and against imperiled children as they stigmatized parents who
tried to protect their children from further abuse.
A primary finding of our finding is that the outcome of the custody
cases we analyzed had little to do with the quality of the evidence pre-
sented. Instead, outcomes were largely based on the custody evaluator’s
personal beliefs and biases. Poor custody evaluations that ignored previous
histories of domestic violence and/or child pornography and which mini-
mized overt signs of abuse were a major problem in our sample. Both
GALs and custody evaluators tended to be highly suspicious of abuse alle-
gations and biased in favor of the accused father. Of particular concern is
the fact that GALs, who are specifically appointed to safeguard the child’s
JOURNAL OF CHILD CUSTODY 157

welfare during the litigation process, sided with the alleged perpetrator over
the child in 73% of cases.
Unfortunately, the evaluators in the cases we analyzed appeared blind to
abuse in any form. They not only ignored claims of sexual and physical
abuse disclosed by the child, they also ignored the history of domestic vio-
lence that was often present in these cases. Two-thirds of the mothers in
this sample reported having experienced domestic violence at the hands of
their husband prior to separating and most had received a protection order.
While there is growing consensus that perpetrators of domestic violence
are more likely to be deficient, if not abusive, as parents (see Jaffe,
Johnston, Crooks, & Bala, 2008), the father’s history of interpersonal vio-
lence was not viewed as relevant to the mother’s concerns for her child’s
safety when formulating recommendations for custody. As such, our find-
ings replicate those of Davis, O’Sullivan, Susser, and Fields (2010) who
found that the facts of a case had less influence on the final custody and
visitation arrangements than the custody evaluator’s personal beliefs about
domestic violence and abuse allegations during custody disputes.
A second finding is that psychological tests tended to be interpreted in a
manner that justified the evaluator’s personal beliefs and were ignored
when they did not. We obtained reports regarding psychological testing in
just half of the cases we analyzed. At the time of our analysis, we did not
code these reports. After analysis, we did a qualitative examination of these
reports to better understand the role they played in erroneous decisions at
Time 1.
Overall, we found psychological reports at Time 1 were often biased
against mothers and in favor of fathers. Consistent with the finding of
Erickson (2005), several of the mothers who had been victims of domestic
violence were interpreted as having “histrionic”personality traits based on
MMPI results. Histrionic traits are associated with exaggerating symptoms,
making the mothers appear less credible to the evaluator. Common find-
ings in psychological reports on mothers included being “enmeshed”with
her child and “lacking in insight.”Rather than being derived from any test-
ing results, these conclusions appeared to be based on the fact that mothers
expressed concern for her child’s safety and disagreed with the evaluator’s
contention that the child had not been abused.
While evidence of alleged domestic violence, and even adjudicated
domestic violence was often noted in the psychological evaluations of
fathers, the significance of these was universally ignored at Time 1. In add-
ition, a number of fathers had deficiencies apparent in psychological testing
that should have raised concerns about their parenting skills. For example,
one custody evaluator found the father’s parenting to be “hindered by a
pattern of self-centeredness and narcissism”. In another case, the custody
158 J. SILBERG AND S. DALLAM

evaluator described the father as “antisocial, narcissistic and controlling”.
Despite credible allegations of abuse being present the custody evaluators
in these cases recommended the fathers receive custody.
When fathers had normal psychological test results, these were viewed as
evidence that he could not be an abuser. In one case, the judge ignored a
CPS finding of sexual abuse because the father’s psychological and psycho-
sexual testing didn’t show did not show deviant patterns. The father later
lost custody after his semen was found on his daughter’s pajamas.
In some cases, bias in favor of the father was evident in the language
used by the evaluators. In one case, the psychologist referred to the father
in a personally familiar fashion calling him by his first name throughout
the report while referring to the mother by her last name. A more subtle
indicator of biased language was found in a report where the evaluator
used different language to characterize the two parents’self-reports. For
example, one evaluator wrote: “Mrs. B. expressed she was afraid of Mr. B.
Mr. B. believes there is nothing to be afraid of.”Rather than using a word
like “said”or “expressed”to describe what Mr. B. reported, the evaluator
appears to accept the father’s denial of abuse at face value. The father went
on to threaten and stalk a number of court personnel suggesting the moth-
er’s fears of her former husband were well founded.
Overall, judges’decisions were heavily influenced by psychological
reports and judges often cited them when ordering the child into the cus-
tody of the child’s abuser. Judges may put far too much significance in cus-
tody evaluations, not realizing that much of what is portrayed in a
psychological report, particularly one by a poorly trained or biased evalu-
ator, may be a subjective opinion and not a data-based conclusion.
A third finding was that the pathologizing of mothers was a key factor
in the court’s erroneous findings at Time 1. Two-thirds (67%) of the moth-
ers were pathologized for advocating for the safety of their children. The
assault on mothers’credibility took a variety of forms including accusations
of enmeshment, coaching, and/or “alienation.”Both custody evaluators and
GALs tended to view mothers who alleged that their child was being
abused as fabricating or exaggerating incidents of violence as a way of
manipulating the courts to gain a tactical advantage. The child’s disclosures
of abuse were viewed as the result of the mother’s behaviors or attitudes,
whether conscious or unconscious. Thus, the assault on mothers’credibility
through these unvalidated pathologizing labels was a direct cause of the
continued abuse of the involved children. Similar to the findings reported
by Faller and DeVoe (1996), some mothers who raised reasonable concerns
about abuse were sanctioned for reporting abuse and threatened with the
loss of all contact with their children if they ever reported abuse again.
JOURNAL OF CHILD CUSTODY 159

A total of 37% of mothers were alleged to have induced PAS, Parental
Alienation Disorder (PAD), or parental alienation in their children. The
terminology or theory used to accuse mothers of “alienation”did not
change how the evaluators used the concept and the solutions offered were
similar. There was a simplistic focus on blaming the mother and the rec-
ommended solution was to separate the child from their mother and place
them with their father. In most cases, evaluators told the court that the
child would suffer permanent mental health damage unless the child’s rela-
tionship with the father was repaired. In six cases mothers were given only
sporadic supervised visitation (often after a period of no contact) and in
two other cases the mother was allowed no contact at all with their chil-
dren. These mothers had functioned as the child primary caregiver since
birth. From an attachment theory perspective (Bowlby, 1969), a child’s
sense of security is rooted in relationships with familiar caregivers. Decades
of psychological research have documented the harm experienced by chil-
dren forcibly separated from their parents (American Psychological
Association, 2018). For example, research has shown that the physical sep-
aration between a child and primary caregiver, particularly when unex-
pected, can lead to internalizing symptoms (e.g., depression, anxiety),
externalizing behaviors (e.g., withdrawal, aggression), along with social and
cognitive difficulties (Makariev & Shaver, 2010).
Our findings offer support to those who have noted that more recent the-
ories of parental alienation do not present a significant improvement over
Gardner’s original conceptualization of PAS (Houchin et al., 2012;Meier,
2013). For example, the various parental alienation theories utilized by pro-
fessionals evaluating the children in our dataset all included the logical error
of affirming the consequent (see Mercer (in press), this issue), as there had
been no documentation of the mothers attempting to brainwash their chil-
dren against the father. Similarly, no supporting evidence for maternal
coaching was presented in any of the cases we studied. Instead, it was merely
assumed. It should be noted that the literature suggests that concern over
false abuse allegations arising from maternal coaching is usually misplaced.
After reviewing the literature, Faller (2007) found a minimal amount of evi-
dence to support coaching as a significant factor in child’s disclosures of
abuse. Faller concluded that “children falsely claiming abuse or being
coached to state they have been abused, when they have not, should not be a
primary preoccupation of child abuse professionals”(p. 949).
A fourth finding was the negative long-term effects that pathologizing of
mothers on the relationship between the mother and child.
2
Not only were
mothers denied the ability to protect their children from further abuse,
they also usually lost custody. After being labeled as having some type of
mental pathology, this label stuck to mothers. In some cases, because the
160 J. SILBERG AND S. DALLAM

mothers had been labeled unfit parents due to their concerns about abuse,
the mothers were denied custody even after their concerns about abuse
were found to be valid. For example, in one case the father was arrested
for sexually assaulting his son. This placed the court in an awkward pos-
ition as a previous judge had given the father sole custody after ruling that
the mother was obsessed with abuse and had coached the child into mak-
ing false allegations against him. After the father’s arrest, custody was not
returned to the mother because of the prior ruling against her. Instead, the
mother’s sister was given custody. In another case, custody was awarded to
a father’s girlfriend after the father was deemed unsafe. Thus, once a court
had made a finding against the mother for coaching or alienation, some
mothers never regained custody even after their concerns about abuse had
been validated.
A fifth concern is that state agencies mandated to investigate abuse
were rarely helpful in protecting the children in the cases we analyzed.
CPS was involved in 93% of the cases. Although we have strong evidence
that all the children in our sample were actually abused, CPS agencies
erroneously unfounded or ruled out abuse 63% of the time. CPS workers
were quick to close cases without an investigation apparently taking their
cues from family court officials who believed that the abuse allegations
were false. Thus, CPS, a supposedly independent agency, would often
close a case without an investigation based on the fact that the family was
involved in custody litigation. At the same time, reports by CPS rarely
influenced decisions even when they determined that abuse was founded.
If custody evaluators and GALs disagreed with them, the child welfare
agency’sfindingswereignored.
A sixth concern was the blind eye that judges and evaluators turned to
evidence of fathers possessing child sexual abuse imagery. Possession of
child pornography is a serious criminal offense and raises fundamental
questions about the perpetrator’s fitness as a parent. Most offenders
arrested in the United States for possessing internet child pornography
have pictures and videos that depict preteen children experiencing severe
sexual abuse such as penetration by an adult (Wolak, Finkelhor, &
Mitchell, 2011). Research has shown that that many Internet offenders are
motivated by a sexual interest in children (Seto, Reeves, & Jung, 2010). In a
recent meta-analysis, Seto, Hanson, and Babchishin (2011) found that
more than half (55%) of offenders admitted to a history of contact sexual
offending. In addition, victim information submitted to National Center for
Missing & Exploited Children (n.d.) by law enforcement as of 2015 showed
that 15% of child pornography is produced by a parent or guardian. Yet,
inexplicably a father’s possession of child pornography tended to be
ignored by the family courts when making custody determinations.
JOURNAL OF CHILD CUSTODY 161

A seventh finding that emerged from our analysis was the importance of
the self-advocacy of older children in finally being protected. After being
denied access to a PP and disbelieved by family court personnel, older chil-
dren realized that no one was going to protect them. They were therefore
forced to attempt to protect themselves. The means they choose usually
involved running away or attempting to find someone who might be will-
ing to listen to them and help them.
An eighth and final finding was the devastating long-term effects that
erroneous family court decisions can have on vulnerable children. When
children’s disclosures of abuse were ignored by the courts, the abuse tended
to become more severe and the children became increasingly distressed and
despondent. The children in the cases we studied showed increased depres-
sion, anxiety, and suicidal ideation after being separated from their mothers
and placed in the custody of their alleged abuser. Almost a third of the
children threatened to commit suicide and one nearly succeeded–requiring
several weeks in intensive care after attempting to hang himself.
Dissociative symptoms, regressive behaviors, sexual acting out, school prob-
lems, and nightmares were also common in these children. Some children
ended up hospitalized and on psychiatric medications to manage their
extreme distress. Unfortunately, the children placed in psychiatric institu-
tions often failed to get appropriate care for their post-traumatic symptoms.
Hospital personnel tended to be influenced by the family court’s erroneous
findings that the child had not abused. As a result, they failed to properly
diagnosis and treat the child’s distress.
The profound effect of erroneous court decisions on these children’s
quality of life cannot be overemphasized. Although they were finally pro-
tected, the children spent an average of over three years in the custody of
their abuser. These children were robbed of our society’s promise of pro-
tection from maltreatment and it is likely that they will continue to suffer
from the long term effects that maltreatment can have on their physical
and emotional well-being.
In conclusion, the callous way these children were treated by the family
court system can be expected to compound the harm associated with abuse.
Professional responses to disclosures can have a significant impact on the
well-being of abuse victims. Unsupportive responses, such as those where
professionals minimize or disbelieve victims’allegations of abuse, can
intensify the victim’s distress. Such responses have been shown to hinder
recovery in rape victims (Ullman, 1996; Campbell, Ahrens, Sefl, Wasco, &
Barnes, 2001) and are related to greater post-traumatic symptom severity
(Ullman & Filipas, 2001). Reports in court records revealed that many chil-
dren experienced extreme demoralization and a sense of betrayal when
judges refused to believe them and ordered them into their abuser’s
162 J. SILBERG AND S. DALLAM

custody. This fundamental sense of betrayal may last a lifetime, as these
children can be expected to develop a sense of cynicism about the workings
of government and a lack of trust in authority figures who claim to have
their best interests at heart.
Limitations
The cases that came to our attention were limited by the fact that many
came from lawyers and litigants who responded to our solicitation and
thus may not be representative of the full range of cases in which children
have been placed in the custody or care of perpetrators. In addition, the
cases were limited to parents of greater financial means as litigating child
custody can be very expensive. As a result, our results are not necessarily
generalizable to custody cases as a whole. More representative studies with
a more diverse sample are needed that look at the outcomes to children
from different socioeconomic groups in custody cases involving allegations
of violence. In addition, our use of publicly available data to examine how
courts deal with abuse had clear limitations. In our analysis of judicial deci-
sions, there were multiple instances where judges referenced data that was
not available to us. Finally, future studies are needed that compare children
who are placed with safe parents versus those placed with their alleged per-
petrators. Interviews with the families, along with objective measures of the
post-traumatic effects experienced by the abused children, would have
helped us make more definitive findings concerning the magnitude of
harm that children experience as a result of erroneous judicial decisions.
Recommendations
Because of the difficulty in substantiating allegations of interpersonal vio-
lence in custody cases, we recommend a comprehensive family evaluation
by mental health professionals with expertise in interpersonal violence
when such allegations arise. The American Professional Society on the
Abuse of Children (2013) has recommended that evaluators conduct more
than a single interview with children, rely upon multiple methods of data
collection, and, when feasible, a team approach should be used to mitigate
individual bias. Even with such a careful investigation, finding insufficient
evidence for a definitive finding of abuse does not mean that “coaching”is
the most likely alternative. It is difficult to substantiate abuse particularly in
young children.
Based on our analysis we offer the following recommendations to improve
outcomes for children who have the misfortune to be both abused and
entangled in a custody dispute:
JOURNAL OF CHILD CUSTODY 163

1. Child safety should be the first priority of custody and parenting adjudi-
cations. Courts should resolve safety risks and claims of family violence
first, before assessing other best interest factors.
2. Children who disclose abuse should be referred for an evaluation by
mental health professionals who have specialized training in this area.
3. Evidence from court-affiliated professionals regarding child abuse allega-
tions in custody cases should be admitted only when the professional
possesses documented expertise and experience in the relevant types of
abuse, trauma, and the behaviors of both victims and perpetrators.
4. GALs, if appointed, should represent to the court the child’s perspective
and wishes rather than substituting their own judgment (see Ducote, 2002).
5. Agencies mandated to protect children should do independent investi-
gations and not be biased by the belief that “custody battles”should be
treated differently than other cases.
6. The friendly parent custodial preference should not to be applied in
cases where there are allegations of domestic violence or child abuse.
State codes should be modified to specify that the friendly parent provi-
sion does not apply in cases involving allegations of domestic violence
or child abuse.
7. All evidence admitted in custody and parenting adjudications should be
subject to evidentiary admissibility standards and courts must reject
pseudoscientific concepts that pathologize parents seeking to protect
children such as Parental Alienation Syndrome, and other simplistic
theories of parental alienation that rely on this unvalidated construct.
8. Institutions such as residential treatment centers or psychiatric hospitals
should act independently when children disclose abuse and not simply
accept a custody evaluator’s or GAL’s opinion. Any new mental health
deterioration in the child needs to be assessed rather than viewed
through the lens of a previous court decision, which could be faulty
or outdated.
9. Care should be taken to monitor the wellbeing of the child after any
decision that involves giving custody to a parent that the child claims
has abused them.
Notes
1. We submitted our research plan for IRB approval but were advised our research was
exempt because we relied on public records. In accord with good research practices,
we took precautions to ensure the anonymity of the parties involved in the cases
we analyzed.
2. Since completing this study, we have been made aware of four cases in which
mothers were the alleged abusers and the father was accused of parental alienation
after attempting to protect their children from further abuse. We have every reason to
164 J. SILBERG AND S. DALLAM

believe that the use of parental alienation to pathologize protective fathers harms their
relationships with their children as well.
Disclosure statement
No potential conflict of interest was reported by the authors.
Funding
This research was supported under award #2011-TA-AX-K006 for the DVLEAP-OVW
Custody and Abuse TA Project from the Office of Violence Against Women of the U.S.
Department of Justice. We would like to acknowledge the help of Elizabeth Samson in per-
forming the original research.
Notes on contributors
Joyanna Silberg, PhD, is a Senior Consultant on Child and Adolescent Trauma at
Sheppard Pratt Health System in Baltimore, and the President of The Leadership Council
on Child Abuse & Interpersonal Violence.
Stephanie Dallam, RN, PhD, is the lead researcher for the Leadership Council on Child
Abuse and Interpersonal Violence.
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