GENDER BIAS IN CROSS-ALLEGATION DOMESTIC VIOLENCE-PARENTAL ALIENATION CUSTODY CASES: CAN STATES LEGISLATE THE FIX?

• Author: Jaffe-Geffner, Nina

Abstract

"Parental Alienation Syndrome" (PAS), developed by Dr. Richard Gardner in 1985, posits that a frequent dynamic in child custody disputes involves vengeful mothers falsely convincing their children that they have been sexually abused by their fathers. Although PAS is widely discredited and courts have ruled it inadmissible, new formulations of the theory, such as Parental Alienation (PA), continue to play a dominant role in custody proceedings. Proponents of PA assign the label to a broad range of custody cases in which children favor one parent and reject the other. However, despite the seemingly more gender-neutral framing of PA, empirical research shows that courts use PA to discredit mothers' allegations of domestic violence and abuse and justify custody switches away from the mother. This Note analyzes the gender bias in family courts' handling of custody cases involving cross-allegations of domestic violence and PA, and then proposes four legislative provisions aimed at reducing the effects of such bias in custody proceedings.

INTRODUCTION

Six-year-old Gabriella Collins; twenty-eight-month-old Kyra Franchetti; two-year-old Jovani Liguro; three-year-old Autumn Coleman; and eight-year-old Thomas Valva. (1) These are all names of children murdered by a parent in the past ten years due to a court's award of custody and/or unsupervised visitation over the vehement objections of a mother who alleged domestic violence and abuse by the father. (2) Unfortunately, these are not isolated tragedies. According to the Center for Judicial Excellence, 821 children were murdered by a parent involved in a separation or divorce between 2008 and 2021. (3) The Center further identifies that for 111 of those children, across eighty-eight different cases, the family court was involved before the death of the child and ignored safety concerns. (4) While these figures are staggering, they are perhaps less surprising given the estimate that over 58,000 U.S. children each year are court-ordered into the unsupervised care of a violent parent. (5) The inevitable question then presents itself: Why are so many family courts ordering children into the unprotected care of an abusive parent in the wake of their parents' divorce?

One reason is a pervasive family court culture that tends to discredit allegations of family violence while ascribing inherent primacy to shared parenting. (6) A dynamic that has come to dominate family court proceedings involves allegations of domestic violence or child abuse, generally made by the mother, met with cross-allegations of "parental alienation" (also known as "PA") from the father. (7) The theory of parental alienation--a variation of the "parental alienation syndrome" or "PAS" developed by psychiatrist Richard Gardner in 1985, discussed infra Section II.A--is frequently invoked by fathers accused of domestic violence who posit that the children's mother is purposely alienating their children from him, and the 'false' claims of domestic violence are merely part of this campaign of denigration. (8)

A national U.S. study published in 2020 examining over 4,000 child custody cases has revealed the deeply gender-biased manner in which cross-claims of domestic violence and parental alienation play out in family court, discussed infra Section III.A. (9) The study shows that courts are rejecting mothers' abuse allegations at high rates and imposing potentially dangerous custody orders. (10) Emboldened by this data, lawmakers at the state and national level have begun introducing legislation to reform child custody laws. These initial efforts aim to prioritize child safety and counteract the gender bias permeating the family court system. (11)

The primary focus of this Note concerns gender bias in cases involving cross-allegations of parental alienation and domestic violence, (12) specifically, as opposed to child abuse. The reasons for focusing on domestic violence are twofold: First, there is a large amount of literature supporting the notion that the majority (or at least a significant percentage) of high-conflict custody cases involve domestic violence. (13) Second, as will be elaborated further, PAS was originally developed as a response to mothers' allegations of child sexual abuse, and thus the extension of its use into the domestic violence context highlights the pervasiveness of gender bias within the court system. The aims of this Note are threefold: first, to analyze the factors that converged to produce a family court culture in which mothers' claims of domestic violence are easily denigrated while fathers' claims of parental alienation are elevated; second, to argue that in order to effectively counter gender bias in family court, states' custody laws must be reformed; and third, to assess what specific reforms are necessary for effecting change in practice and not just on paper. (14)

Part I examines the evolution of child custody standards and their intertwinement with societal views on sex and gender. Sections II.A and II.B detail the emergence of Gardner's theory of PAS and its continued influence in family courts in the form of PA, despite rulings on PAS's inadmissibility. Section II.C then establishes why any version of the theory, regardless of the label, is highly problematic in the context of custody cases involving domestic violence. Section III.A reviews the empirical literature that proves the application of parental alienation in custody cases is gender-biased and frequently used to diminish claims of domestic violence, highlighting the groundbreaking significance of Professor Joan Meier's (15) 2020 national study establishing that gender bias predominates such cases. Section III.B surveys and evaluates the effectiveness of the legislative efforts undertaken by states thus far to reform child custody laws. Finally, Part IV provides four concrete proposals for inclusion in future state legislation to effectively account for the dynamics of domestic violence and parental alienation in custody proceedings. The proposals directly respond to New York State's legislative scheme, but have applicability to other states.

1. Historical Treatment: Intersection of Sex/Gender and Custody in Family Courts

   1. Paternal Presumption, Tender Years, and the Best Interests of the Child Standard

      In the United States, the laws governing child custody decisions have largely reflected society's changing views on sex and gender, resulting in alternating custodial presumptions and preferences between mothers and fathers. Eighteenth and nineteenth century custody laws automatically bestowed child custody upon fathers following divorce, embodying the prevalent belief that such custody was part of the husband's property rights. (16) By the mid-twentieth century most states followed the "tender years" doctrine, which was premised on the notion that mothers possessed greater nurturing capabilities that made them the proper custodians of young children unless proven unfit. (17) However, the changing social fabric of the 1960s and 1970s saw greater numbers of both women entering the workforce and men seeking larger roles in child caretaking, prompting legislatures to replace the tender years presumption with the "best interests of the child" standard. (18)

      The "best interests of the child" analysis represents the standard currently used in all fifty states to determine custody and visitation matters. (19) In 1970, the National Conference of Commissioners on Uniform State Laws fleshed out the standard by adopting the Uniform Marriage and Divorce Act (UMDA), a gender-neutral five-factor model for determining custody decisions upon divorce. (20) While many states adopted at least some of the five UMDA factors, they often incorporated additional factors--either statutorily or judicially--causing the criteria for the "best interests of the child" standard to remain varied between jurisdictions. (21) The move away from the tender years doctrine represented a rare overlap in goals between fathers' rights and feminist movements, both of which advocated for the removal of the maternal presumption from state legislation during the early 1970s. (22) For this reason, the UMDA excludes any mention of the gender or sex of the custodian in determining the best interests of the child, and "[stands] for the proposition that gender had little legal relevance for the parent-child relationship." (23)

   2. Joint Custody and Fathers' Rights Groups

      In response to society's evolving views on parenting relationships and gender and sex equality, "[legislatures made a public policy shift finding that it was in a child's best interest to maintain relationships with both parents after divorce," which led to the concept of joint custody. (24) Joint custody may involve joint legal custody, whereby both parents share decision-making authority, or joint physical custody, whereby the child spends time residing with both parents, and often it involves both. (25) California spearheaded the joint custody charge in 1979 by enacting a provision establishing a presumption that joint custody is in the best interests of the child when asked for by both parents. (26) By 2006, forty-six states had adopted some form of joint custody legislation. (27)

      Advocates have continued to fight for joint custody laws across the country, typically for bills that include a presumption of joint physical custody that is rebuttable only by clear and convincing evidence that co-equal physical custody is not in the best interests of the child. (28) Such bills go one step further than California's statutory presumption, which is limited to instances of parental agreement. While facially this type of joint custody legislation appears gender neutral, since the 1970s its enactment has been one of the primary goals of fathers' rights groups ("FRGs")--a subgroup of the more generalized men's liberation movement originating in the mid-1960s. (29) In the wake of...