FACTS
(WOMENSENEWS)--Divorce your husband? Say goodbye to your kids.
That's the message family courts are sending to women in
conflict-ridden families everywhere, including Britney Spears, who
recently lost custody of her two children amid the usual torrent of
stories about her failings and foibles.
More than just the latest casualty of the media who seem to glom
onto "bad mother" stories with alarming zest, Spears is the latest
casualty of a family court system which in the past 15 years has been
skewed in favor of fathers in high-conflict cases, which often include
accusations of abuse and bitter antagonism throughout court proceedings.
While I'm in no position to judge Spears and her individual
case--despite the media's portrayal of her as just a hair less
offensive than Medea--publicly and privately funded testimony projects
and numerous state and local studies show that when men file for
custody against women, the majority of women lose their children. Even
battered women.
In the United States in 2005, the nationwide marriage rate was just
under 8 percent, resulting in 2 million marriages, and the divorce rate
affecting them was pushing 4 percent, meaning 1 in 2 marriages end in
divorce. About 10 percent of U.S. divorces involve custody litigation
and affect about 100,000 children each year.
Whether moms or dads are winning custody is a difficult trend to
track because family court data are sealed and no federal agency tracks
what's going on. Moreover, most custody decisions are reached by the
parents and merely approved by the courts.
Women Losing Custody
But there is enough evidence to convince me that we have moved a
long way from the 1950s and 1960s, when women would almost
automatically win custody. Now I'd say the opposite is true.
Statewide testimony projects have been conducted--and continue to go
forward--around the country. They involve researchers who interview
both women and men after a divorce about the outcomes of their custody
cases.
An example is the 2002 study produced by the Wellesley Center for
Women, a research organization affiliated with Wellesley College in
Massachusetts. After three years of in-depth interviews with 40
battered mothers who were unhappy with their custody and visitation
orders, judges, guardians and probation officers, the researchers
concluded that the courts exhibited a bias against women, particularly
battered women.
Such findings tell me little has improved since 1989, when a study
by the Judicial Court of the Commonwealth of Massachusetts described a
family court system where the "interests of the father are given more
weight than the interests of mothers and children." Or since a 1990
Florida Supreme Court gender bias study that found "many men file
proceedings to contest custody as a way of forcing an advantageous
property settlement and, contrary to public perception, men are quite
successful in obtaining residential custody of their children when they
actually seek it."
Battered Women Hit Again
In fact, things may be getting worse, especially for battered women.
A 1996 report by the Washington-based American Psychological
Association noted that abusive men are more likely to file for custody
to begin with, "and are just as likely (or even more likely) to be
awarded custody as the mother."
This egregious error often occurs because most state legislatures
have enacted legislation requiring family courts to favor joint custody
arrangements, and when this isn't possible, to favor the parent who
appears most "friendly" to a joint custody arrangement.
At least 31 states have statutes requiring courts to consider how
"cooperative" the parent is when determining custody arrangements.
"Friendly" parent preferences tend to favor abusers, who rarely object
to the non-abusive parent's access to the child. Protective parents, on
the other hand, frequently seek to curtail a violent parent's access to
the child, making them seem "unfriendly" in they eyes of the court.
A 2003 Arizona Testimony project surveyed 57 battered women who had
gone through a custody battle in family courts and found that joint or
sole custody was awarded to the alleged batterers between 56 percent
and 74 percent of the time.
The upper end of that estimate was echoed in 2004 in a study by the
Williamsburg, Va., American Judges Association, which found battered
woman losing contested custody cases 70 percent of the time. Most of
these women make substantially less money than their former spouses and
many of them have been involved in incidents of documented domestic
violence.
Lower Awards for Reporting Abuse
Another 2004 study--this one funded by the National Institute of
Justice--showed that women who inform custody mediators that they are
victims of domestic violence often receive less favorable custody
awards.
Also in 2004, researchers at the California State University in San
Bernardino interviewed over 100 self-identified "protective" parents.
They found that prior to divorce, 94 percent of the protective mothers
surveyed say that they were the primary caretaker of their child and 87
percent had custody at the time of separation. However, as a result of
reporting child abuse, only 27 percent were left with custody after
court proceedings.
That's insane. Talk about the wrong message. Am I to believe women
are supposed to not report battery so they can keep their kids?
One reason for the tide turning in its current direction is a 1993
federal law intended to crack down on deadbeat dads. It fueled the
formation of a highly organized, heavily funded fathers' rights
movement that exerts growing clout in a system where highly paid
lawyers, law guardians and mental health professionals run constant
interference between judges and their cases. Federal grants to these
fatherhood organizations total $50 million a year.
"Just having the man ask is enough to impress some courts and grant
him custody," said Dr. Juliana Silberg, a Baltimore child psychologist
and evaluator and co-author of a 2006 report on the risks children run
during custody litigation. "There's a trend among father rights lawyers
to vilify the mother in court. It's far easier to say 'crazy mother'
than abusive man and everybody makes a buck."
"There's an absolute bias in the courts against the emotionality of
women," said Dr. Paul J. Fink, president of the Leadership Council, a
nonprofit research group in Bala Cynwyd, Pa., that specializes in
mental health issues. "At one point there was a bias towards the
mother, then we went to joint custody and now we found we're moving in
the other direction. I'm outraged."
So am I.
I feel bad for Britney Spears. But I feel even worse for the women
who are losing custody and who are not famous and do not have the press
paying much attention to them. They are victims of a system that has
become skewed against women and, let's not forget, their children.
Sandra Kobrin is a Los Angeles writer and columnist.