Denial of Family Violence in Court: An Empirical Analysis and Path Forward for Family Law

• Author: Joan S. Meier
• Position: Professor of Law, George Washington University Law School
• Pages: 835-898

Denial of Family Violence in Court: An Empirical

Analysis and Path Forward for Family Law

JOAN S. MEIER*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 836

I. THE ERASURE OF ABUSE IN FAMILY COURT . . . . . . . . . . . . . . . . . . . . . . . . 840

A. QUALITATIVE RESEARCH AND ANECDOTAL REPORTS. . . . . . . . . . . . . 842

1. Harm to Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845

B. QUANTITATIVE EVIDENCE—FAMILY COURT OUTCOMES STUDY

FINDINGS............................................... 847

1. Courts’ Skepticism Toward Mothers’ Abuse Claims . . . . 848

a. Outside Research on Women’s Perceived

Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849

2. Mothers’ Custody Losses . . . . . . . . . . . . . . . . . . . . . . . . 852

3. The Role of Neutral Professionals. . . . . . . . . . . . . . . . . . 853

a. Case Narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855

b. Study Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857

4. Summary of FCO Study Data . . . . . . . . . . . . . . . . . . . . . 859

II. THE MARGINALIZATION OF ABUSE IN FAMILY LAW AND

SCHOLARSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861

A. CUSTODY LAW EVOLUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861

B. MAINSTREAM FAMILY LAW SCHOLARSHIP . . . . . . . . . . . . . . . . . . . . . 865

1. Shared Parenting Idealism . . . . . . . . . . . . . . . . . . . . . . . 865

* Professor of Law, George Washington University Law School. © 2022, Joan S. Meier. I am

grateful to GW Law for the summer stipend in support of this Article and for multiple opportunities to

present pieces of this research. Deep thanks to Naomi Cahn, June Carbone, Clare Huntington, and

Michael Wald for their invaluable comments and feedback on this Article. I am grateful to the many

research assistants who worked on this Article, including Ellen Albritton, Jeanel Sunga, and Victoria

Yamarone. And I am deeply grateful to Sean Dickson, Chris O’Sullivan, and Leora Rosen, coauthors of

the Study, who worked on the Family Court Outcomes Study and continue to engage with ongoing

publications. This Article is in honor of the many protective parents who soldier through the family

courts while trying to keep their children safe and loved.

835

2. Other Scholarly Misconceptions About Abuse in Family

Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868

3. Cognitive Dissonance Within the Family Law Academy . . 870

III. WHY? THE PSYCHOLOGY OF DENIAL IN FAMILY LAW AND COURT. . . . . . 871

A. THE PHENOMENA OF INDIVIDUAL AND SOCIAL DENIAL . . . . . . . . . . . 872

B. DENIAL OF VIOLENCE AGAINST WOMEN AND CHILDREN . . . . . . . . . . 874

IV. HOW? THE MACHINERY OF DENIAL IN FAMILY COURT . . . . . . . . . . . . . . . 878

A. HISTORY OF PARENTAL ALIENATION THEORY . . . . . . . . . . . . . . . . . . 879

B. ALIENATION’S LACK OF SCIENTIFIC BASIS . . . . . . . . . . . . . . . . . . . . . 882

C. ALIENATION THEORY IN THE COURTS. . . . . . . . . . . . . . . . . . . . . . . . . 884

1. Qualitative Information . . . . . . . . . . . . . . . . . . . . . . . . . 884

2. Study Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886

V. WHAT IS TO BE DONE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888

A. CONSTRAINING RELIANCE ON ALIENATION AND LIKE THEORIES . . . . 890

B. LEGISLATING FOR INDETERMINACY . . . . . . . . . . . . . . . . . . . . . . . . . . 893

C. ANTICIPATED OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898

INTRODUCTION

He told me what could be worse is if he killed all of us, and then he said

actually worse than that, if he killed the children and not me so that I would

have to live without them.

– Amy Castillo

1

Letter from Amy Castillo to Chairman Vallario and Members of the House Judiciary Comm. (Feb.

25, 2010), https://www.washingtonpost.com/wp-srv/metro/pdf/HB_700_Testimony_Amy_Castillo.pdf

[https://perma.cc/2YH9-AW3P]. This Article contains several narratives illustrating real cases of family

abuse and domestic violence.

The court-appointed evaluator and Maryland family court judge who heard her

case did not believe Dr. Amy Castillo’s report of her husband’s words or did not

take them seriously. When Dr. Castillo refused to turn the children over for court-

1.

836 THE GEORGETOWN LAW JOURNAL [Vol. 110:835

ordered visitation with their father, she was held in contempt and jailed.

2

See Nicole Fuller & Arin Gencer, Court Records Document Separated Couple’s Tumultuous

Relationship, BALT. SUN (Apr. 1, 2008, 12:00 AM), https://www.baltimoresun.com/news/bs-xpm-2008-

04-01-0804010099-story.html.

Months

later, having learned her lesson, she let them go with their father and on March

29, 2008, he drowned Anthony (six), Austin (four), and Athena (two) in the bath-

tub, one at a time, in the hotel room he used for the visit.

3

See id. For additional examples of child murders facilitated in part by court-ordered access, see

Laurie Udesky, U.S. Divorce Child Murder Data, CTR. FOR JUD. EXCELLENCE, https://centerfor

judicialexcellence.org/cje-projects-initiatives/child-murder-data/ [https://perma.cc/VKV3-JMVX] (last

visited Feb. 14, 2022) (listing 111 “[p]reventable [h]omicides” in which courts were asked to restrict a

parent’s access but refused).

The court’s dismissive response to Dr. Castillo’s desperate warning was, sadly,

quite typical. Over the past several decades a critical mass of scholarship,

research, and social media has described the plight of mothers seeking to keep

their children safe from an abusive father in family courts that respond with rejec-

tion and hostility, often reversing custody to the alleged abuser.

4

In particular, the

literature has condemned courts’ use of the controversial concept of parental ali-

enation

5

to dismiss mothers’ abuse allegations. This qualitative literature has

been ignored or marginalized by leading mainstream family law scholars and

family court professionals. While the reasons for this marginalization are com-

plex and partially unintentional, this Article is a call to bring family violence in

from the margins of judicial, policy, and academic attention. That call is

grounded in new empirical data from the first-ever quantitative national analysis

of family court practices—data that empirically validate the reports and grievan-

ces of thousands of parents (mostly mothers) and children in the United States.

6

For documentation of the data, see SEAN DICKSON, FAMILY COURT OUTCOMES STUDY,

STATISTICAL OUTPUT (2021), https://mfr.osf.io/render?url=https://osf.io/sn3mf/?direct%26mode=render

%26action=download%26mode=render [https://perma.cc/C575-27AH].

It is no secret within the family law world that family courts idealize shared

parenting and prioritize it in custody determinations, but the degree to which the

shared parenting ideal undermines consideration of family violence has not been

widely recognized. Rather, family law, in both theory and practice, treats domes-

tic violence and child abuse as exceptions to the norm and such allegations as

often illegitimate despite longstanding empirical evidence suggesting abuse his-

tories are common in custody cases.

7

This theoretical and practical marginaliza-

tion of family violence in law fuels and reinforces custody courts’ denials of

abuse and disfavoring of mothers who report it. This critique has been amply

2.

3.

4. See infra Part I.

5. Parental alienation lacks a singular definition but is understood as toxic behavior by a parent to

undermine the children’s relationship with the other parent. It is often invoked when children resist

contact with a (usually noncustodial) parent. See infra Part IV.

6.

7. Regarding rates of abuse allegations in custody cases and nonlitigating families, see infra Part I.

Some might argue that because the Study’s data reflect only judicial decisions, the Study has limited

significance because only approximately 5% of filed custody cases are ultimately decided by a judge.

See ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL

DILEMMAS OF CUSTODY 150 tbl.7.5 (1992). For an explanation of why this Article—and this dataset—is

pertinent to most contested cases, including those that settle out of court, see infra note 197.

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