The United Nations has numerous “special rapporteurs,” who are independent experts chosen by the Human Rights Council to look into a variety of concerning human rights issues and present their findings. There are more than two dozen human rights themes for which there’s a special rapporteur, covering everything from the rights of migrants to the right to food.

Given my profession, I make an effort to track what the special rapporteur on violence against women and girls is investigating. The current special rapporteur, Reem Alsalem of Jordan, produced an investigative report in June, concerning, in her words, a “colossal miscarriage of justice, happening against predominantly mothers and their children,” which has been largely invisible because the injustice is being administered in family law courts by official “justices” acting for the state.

What she found is important, for this is happening in many countries, including the United States.

A troubling trend

The injustice Alsalem found was in custody proceedings. While historically courts all over the world, even in the West, favored the father’s right to custody of children in a divorce (and still do in many nations), in the West, that default was reversed and then settled into a general trend toward joint custody. The current assumption is that maintaining contact with both parents is in the best interests of the children.

Arguably that is true, except in cases where domestic violence and/or sexual abuse have occurred. Such cases are not rare; for example, in the U.S., 1 in 15 children experience domestic violence each year. Children who have seen one parent battered by the other are four times more likely to experience direct abuse by the batterer as well. Half of all young children who are sexually abused are abused by a family member. Daughters of battered mothers are 6.5 times as likely to be sexually abused by their fathers.

While women are also perpetrators of child abuse, note that these crimes are strongly gendered: between 75% and 95% of those arrested for domestic violence are male; in familicide, 94% of the killers are male.

There are cases, then, where the best interest of the child may not be served by joint custody, or even by contact with a parent who has been abusive. That seems straightforward, doesn’t it?

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Alsalem found it is not straightforward at all. Her investigative report, with submissions from dozens of countries, found a “pattern of ignoring intimate partner violence against women in determining child custody cases (and) where mothers making such allegations have been penalized by law enforcement and/or the judiciary responsible for determining custody cases.”

How could it be possible that domestic violence is a less important matter in determining the best interests of the child? Alsalem explains:

“Protective mothers are placed in an invidious position, in which insisting on presenting evidence of domestic violence or child abuse may be seen as attempts to alienate children from the other parent, which could result in the loss of primary care or contact with their children.

“As soon as parents are judged as being ‘alienating,’ ‘implacable’ or ‘failing to listen,’ their actions or inaction can be prejudiced. As a result, allegations of domestic violence remain side-lined, (reducing) domestic violence to a minor conflict.”

She continues: “The consequences of biased custody decisions can be catastrophic, resulting in specific incidents when contact has been awarded to fathers with a violent history, in the death of children, and women and children being placed at gunpoint. In some cases, women have been imprisoned for violating custodial rights and protective restraining orders have been overturned.”

The empirics are damning: Alsalem points out that when parental alienation is accused, mothers are twice as likely to lose custody as fathers; when mothers are accused of alienation, they are stripped of custody 44% of the time. Furthermore, she notes that in one study, over half of mothers in custody battles were accused of parental alienation.

‘Junk’ science?

The concept of parental alienation, however, has a very sketchy history. Richard Gardner, a psychologist, developed the concept in the mid-1980s, and insisted that the more a child was resistant to a particular parent, the more this demonstrated that parental alienation by the other parent was happening. The idea that a child might have very good reason to stay away from a particular parent was ignored. Noteworthy is the fact that parental alienation as a syndrome is not recognized by the American Psychiatric Association, the American Medical Association or the World Health Organization, nor is it listed in the Diagnostic and Statistical Manual of Mental Disorders. Some have called it “junk science.”

Gardner’s legacy (he died by suicide in 2003) has been devastating. Imagine a case where the father of a child has indeed abused her. The mother attempts to raise the allegation in court with evidence. The very allegation is seen as proof of parental alienation, and sole custody is awarded to the father on that basis. Furthermore, the judge may order a “reunification camp,” and the children are taken away that very day by police officers, loaded onto a plane, and flown to a distant locale, under orders not to have any contact with their mother for months, perhaps over a year. The mother may even have to confess in writing to alienation as a condition of ever seeing her children again. If a mother is a citizen of another country, she may be forced to bring the child back to the abusive parent’s country and into the abuser’s custody under the Hague Abduction Convention.

Experts describe how Kafka-esque it all is, in an article in The Bristol (U.K.) Cable:

“Before separation, a non-abusive parent is expected to safeguard their child and could even be told they may lose the child if they fail to leave the abuser. After separation the same court and social care system may tell the victim that failure to facilitate contact could result in loss of the child.”

In one case, the newspaper reported, “When Tanya’s ex-partner tried to contact their child, in breach of a court order, Tanya was told by her own solicitor that should her child express fears about the father, Tanya’s response should be to dismiss those fears and instead tell the child the father is no threat. Anything else could be seen as evidence of alienation of the father.”

Not only are mothers cowed, but abused children themselves must fear that the courts will hand them over to their abuser if they tell the truth about the abuse they have suffered, and so they are effectively silenced and forced to acquiesce to the abuse.

Deadly consequences

Is this all far-fetched? Hardly. This happens even in Utah. And sometimes the consequences are deadly. In one case from 2022, former New York police officer Michael Valva was awarded full custody of his son despite the fact — or likely because of the fact — that the child’s mother provided evidence that Valva was a dangerous man. Valva accused the mother of parental alienation. Upon taking custody, Valva then abused the boy to death. The cases are innumerabletragic and horrifying.

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That is why it is imperative that Utah State Sen. Todd Weiler follow through on his promise to bring before the 2024 Utah Legislature a bill that would enshrine federally endorsed principles modeled on Pennsylvania’s Kayden’s Law to better ensure the best interests of Utah children.

Those principles include:

  • Custody hearings must explicitly take into account past and present abuse, and such allegations must be investigated by trained professionals.
  • Protection orders must also be taken into account.
  • A court may not remove custody from or prohibit contact with a parent “who is competent, protective and not physically or sexually abusive; and with whom the child is bonded or to whom the child is attached.”
  • Any reunification treatment that cuts off contact with such a parent may not be ordered by the court.
  • Judges, magistrates, guardians ad litem, attorneys and so forth must undertake at least 20 hours of professional training on the effects of domestic abuse and coercive control on children.

The best interests of the child must be safeguarded. The judicial process meant to ensure that outcome is failing our children. It’s time for legislators in Utah and across the country to step up to the plate and fix this; in the meantime, it’s incumbent on judges to respect these wise principles as if they were already state law.

Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.

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