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writing for godot

Injustice in Our Family Courts

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Sunday, 31 January 2021 14:15

On September 21 2019, ten-year-old Ty Tesoriero of Lone Tree, Colorado, died at the hands of his father, Anthony Tesoriero. Despite evidence of physical and mental abuse of Ty, Magistrate Rebecca Moss of the 18th district, Arapahoe County, gave Anthony 50/50 unsupervised parenting time. When the Department of Human Services recommended not to increase his father's parenting time, Magistrate Moss did so anyway. The final blow came when Judge Patricia Herron, granted his mother, Jing, substantially more time with Ty but allowed him to spend one last night with Anthony. It was on this night that Anthony murdered Ty and then killed himself. While we can't go back in time to undo this tragic event, we can address the family court system that turned a blind eye to the domestic violence and child abuse that he and his mother endured before his murder.

One might think an abuser being awarded custody is an exception in family court; however it is not. A presumption that shared parenting is in the best interest of the child is pervasive. Parental rights seem to trump what is in the best interest of the child and is evident in many cases where parents raise allegations of abuse. A study funded by the National Institute of Justice “found that only 35% of mothers who alleged domestic abuse got primary custody, compared to 42% of mothers who did not. Fathers who were accused of domestic violence were given primary custody in 10% of cases, fathers not accused of domestic violence got primary custody 9% of the time.” 

Abusers who gain custody win because of several advantages they might have over their victims such as the ability to afford superior counsel or their skill in manipulating custody evaluators and judges to favor them. In 1985, psychiatrist Richard Gardner created and propagated a now debunked theory called Parental Alienation Syndrome (PAS), also called parental alienation (PA) which continues to have credibility in our court rooms and is used by fathers as a defense when mothers allege abuse. In his book, True and False Accusations of Child Sex Abuse, Gardner stated that the removal of a child molester from the home "should only be seriously considered after all attempts at treatment of the pedophilia and rapprochement with the family have proven futile."

Although PA was removed from the World Health Organization's classification index and it is not listed in the Diagnostic and Statistical Manual of Mental Disorders it is often accepted as fact by judges who then give custody of children to abusive parents. A recent study published in the Journal of Social Welfare and Family by clinical law professor, Joan Meier, revealed that when protective mothers' allegations of child abuse and/or domestic violence are met with fathers' accusations of parental alienation syndrome, mothers are at risk of losing custody. Former director of the Minnesota Center Against Violence and Abuse and professor and director of research at the University of Minnesota School of Social Work, Jeffrey Edleson, explains, it “also diverts attention away from the behaviors of the abusive parent.”

In Colorado, child and family investigators (CFIs)  and parental responsibility evaluators (PREs) are appointed by the court to  investigate and make recommendations on behalf of the child.They do this through interviews with parents, children, witnesses and in-home visits. While the official goal of both roles are the same, there are several differences: a CFI can be an attorney or a mental health professional, while a PRE must be a mental health professional; PREs can conduct psychological testing while CFIs cannot; CFIs fees are capped at $2750 and PREs charges can rise substantially over $5000.

Shockingly, Colorado requires no minimum amount of education in the area of intimate partner violence for CFIs during their 40 hours of training. In 2019, CFI trainees received 1 hour and 45 minutes on the topic of IPV and the number of hours varies from year to year. Yet, in a research project consisting of self-administered anonymous surveys of child custody evaluators in Colorado, Yolanda Arredondo, Deputy Director of the Division of Child Welfare at Colorado Department of Human Services, found that 93% of the respondents had encountered cases with IPV. She found that prospective CFIs get their information on IPV through literature reviews, podcasts, online training, books or articles - none of which is standardized or with any oversight. One clinician told me during her initial CFI training, “At one point an attendee asked a judge about parental substance abuse and the judge replied that a parent may have done heroin an hour or so before visitation but it didn’t matter as long as he or she wasn’t high and wasn’t doing it in front of the child. I was floored.”

With no minimum or standardized education during initial training, CFIs are expected to handle complex issues related to domestic violence and child abuse, and it is up to them to admit to a judge or magistrate if they feel the issues in a a case are beyond the scope of their competency. In Ms. Arredondo’s survey, almost 75% of CFIs never returned a case back to the court. In fact, without standardized training are they able to recognize when something is outside of their skill set? Even if they are, since both CFIs and PREs are private contractors that often rely on these cases for their income, would they be willing to say to a judge they cannot adequately assess an IPV allegation? They may also be hesitant to risk negatively impacting their reputations.

While the goal of examining parental conflict and how it relates to minor children is worthy, the outcomes from their reports have harmed countless numbers of children. When an abused parent speaks to an evaluator who doesn’t understand the impact of the trauma, the parent can come across as unorganized and unreasonably hysterical about the abuse. A mother who had a CFI on her case told me the CFI  “actually wrote in the recommendation that it was my fault that I was getting abused because I wasn’t being intimate with my ex.” Another mother reported her CFI asked her “if you knew he was so bad, why did you keep having more kids with him?” She also put in her report that the mother, who alleges her ex abuses her children, should not be taken seriously if she ever brings up sexual abuse allegations regarding her kids because she has childhood trauma.

Attorneys are aware of the biases and inequities in these reports as well.  A mother I spoke to told me, “I feel like she (the CFI) blew some things out of proportion against me. “ When she asked her lawyer about this, her counsel indicated the evaluator was trying to balance the report. The perception is that if the evaluator finds flaws in both parents, they are less likely to be sued.

If a parent has a complaint about a CFI violating a standard of practice, they can go to the Office of the State Court Administrator. However, there is conflicting information on who has “jurisdiction” over PREs -  the courts, the judge appointing the  evaluator or the Department of Regulatory Affairs (DORA).

In 2018,  The Colorado Office of Policy, Research and Regulatory Reform (COPRRR), part of the Office of the Executive Director at DORA found that new or additional state regulation of PREs is not necessary to protect consumers. However, in a Sunrise Review for DORA, the process that explores whether there is a need to regulate a currently unregulated profession or occupation, it was reported that at least four parents who had the same PRE evaluator connected because the evaluator included the names of children from another family in his report. One evaluator reported that a parent had a child at 14. This was not true for that particular parent. The judges missed or ignored the misinformation in the reports.

In Colorado and nationally, there are symposiums and conferences where judges, magistrates, PREs, CFIs and attorneys are presenting together - including those on the same case. One mother found a conference (CBA-CLE Annual Family Law Institute in Colorado) where the respondent/father, his attorney and the magistrate on the case were all presenting for the same seminar.  In another example, a woman saw opposing counsel on her son's case presenting with a judge, a mediator, and a PRE/psychologist. This presents strongly a potential conflict of interest. This raises an important question - can a judge who works with or fraternizes with an attorney or psychologist be impartial towards that person in Court?

The Association of Family and Conciliation Courts (AFCC), which is a network of professionals such as judges, lawyers, parenting coordinators, etc.. claims to provide education and support to “achieve the best possible outcome for children and families.”  According to Elizabeth Richards of the National Alliance for Family Court Justice  “AFCC founding official, Jessica Pearson, President of Center for Policy Research of Denver, Colorado, is a primary consultant to the Department of Health and Human Services - Administration for Children & Families (HHS-ACF) which includes the Office of Child Support Enforcement.  Pearson/AFCC have been using their influence for many years to create pro-father programs and protocols which are steered to the pro-father court professionals who train others in the anti-mother evaluation tactics such as PAS.  She has been a frequent speaker at the Children Right's Council and AFCC conferences and works closely with other fathers rights collaborators to promote PAS in government programs.”

The myth of parental alienation is reinforced by people in positions of power in Colorado within the family court system. According to The Leadership Council on Child Abuse & Interpersonal Violence  an estimated 58,000 children are placed with abusers yearly.  Dr. Joyanna Silberg, a consulting psychologist at Sheppard Pratt Health System and international expert on dissociation in children and adolescents has stated that the majority of children being placed with abusers is due to allegations of PAS.

The Colorado Psychological Association, of which many PREs and CFIs are members, advertised a book and workshop about parental alienation on their website in August 2020. The book, titled Parental Alienation and Factitious Disorder by Proxy Beyond DSM-5: Interrelated Multidimensional Diagnoses: Interrelated Multidimensional Diagnoses addresses parental alienation in detail.  The workshop’s description mentions having a “more nuanced methodology to understanding Parental Alienation, how to intervene, and suggestions for policy matters that need to be addressed. “

Family court reform can only be accomplished when the courts themselves admit there is a a problem with corruption and lack of accountability. Although Colorado courts claim to serve the best interests of the child, several factors such as perpetuating the fallacy of parental alienation and questionable actions by court evaluators and judges prevent this from happening in reality.

United States House Resolution 72 was passed in 2018 placing child safety as the first priority of custody and parenting adjudications, but it is meaningless unless states enact this as law. Unless states adopt it into legislation, the courts are not obligated to take it into consideration.

Intensive education on domestic violence should be required for all court personnel, yet Colorado does not have mandatory training on domestic violence for judges. Coercive control, child abuse, and why parental alienation is an erroneous theory should be included in this training, and made compulsory for any personnel involved in making decisions or recommendations for children within the family court. Many judges do not understand the impact that domestic violence has on children, even if the abusive acts are directed only at the adult partner.  “It is estimated that over 15.5 million children in the U.S. are exposed annually to adult intimate partner violence (IPV) at home, with young children making up the majority of exposed youth among families who seek police involvement for IPV.  These can include physical outcomes such as poor physical health and substance use, as well as adverse mental health outcomes like anxiety, depression, and post-traumatic stress symptoms.” 

Another path towards reform is the creation of a separate court specifically for domestic relations, such as a The Family Court Pilot Program of the 17th Judicial District in Adams County, Colorado in 2001. The Center for Policy Research found it created a “a more informed bench, better opportunity to respond to the needs of the case, and can have great benefits when the family's problems are severe.” Currently, judges and magistrates continually rotate through different court systems throughout their career - civil, criminal and family court. If judges do not have an interest or practice background in family law, children suffer. 

Cases involving child abuse and domestic violence should be sent directly to our criminal courts. By keeping abuse cases in family court, we run the risk of minimizing or even rejecting reports of abuse altogether. If a perpetrator of child abuse is someone outside the family, the case would be brought before criminal court, yet cases where a divorcing or divorced parent is involved often end up in family court. Many women have been told repeatedly, by attorneys and social workers that they would be considered a trouble maker and an alienating parent by making reports or calls to the police.  In one case, a child made accusations of abuse but the father was issued a ticket, not arrested. The mother filed an emergency motion but the family court judge did not believe her so she was forced to return the child to his abuser. Child abuse is a crime that needs to be thoroughly investigated by the District Attorney so the the court process takes place within criminal court.

If a parent claims parental alienation after an allegation of abuse, that should be a red flag to court personnel. Some women are accused of coaching their children to make false allegations in contested custody disputes. An allegation of abuse arising during or after a custody situation should be taken seriously and a criminal investigation should not be influenced by a family court proceeding.

Family courts need to recognize the long-term effects of emotional abuse on children and weigh this as heavily as physical abuse. According to “Emotional abuse or psychological abuse, also referred to as psychological neglect, is a pattern of behavior that impairs a child’s emotional development or sense of self-worth. This may include constant criticism, threats or rejection, as well as withholding love, support, or guidance.” Not all negative attitudes constitute emotional abuse as parents can occasionally exhibit these behaviors. However, if it’s a chronic pattern it is considered emotional abuse.

Colorado courts believe it is in the best interest of the child to have both parents in his/her life and joint decision-making is the norm. However, co-parenting or joint decision making is not possible with some people. Court professionals have a misconception that shared parenting will provide an incentive for cooperation and negotiation, but with an abusive co parent it leads to children being exposed to conflict.  Judges, lawyers and psychologists use the phrase “high conflict parents” when describing what they believe are two parents that can’t put aside their animosity for the best interest of the child.  Court professionals need to understand that many of these so called “high conflict” cases are driven by one parent with a high conflict personality.

High conflict personality types tend to use the courts to further abuse the former significant other as a means of control  by filing repeated petitions or motions, requesting many adjournments, appealing the judge’s orders without a legal basis to do so, or taking other actions that make the victim repeatedly come to court. When judges and magistrates do not identify this behavior as litigation abuse, they blame both parties and still expect the parents to get along and make decisions together for the best interest of their child. Sarah Stanley, the executive director of Healing Abuse Working for Change stated, "It's gone to the point where it's not just encouraging cooperation, it's compelling cooperation. And when you have the situation of domestic violence, that doesn't work. You cannot co-parent with someone whose entire goal is to control you.”

A way for family courts to combat incessant filing of motions and irrelevant discovery just for the sake of harassment is to order the abuser to pay the victim’s legal fees. Colorado judges and magistrate need to recognize when litigation abuse is happening since Colorado law leaves great discretion to judges on awarding legal fees.  Without compromising the constitutional rights of litigants, the courts can require judicial authorization before the abuser can file new motions or limit the number of allowable filings. Awarding attorney’s fees and curtailing the amount of vexatious or frivolous filings can curb litigation abuse, however without proper education on all forms of domestic violence, judges and magistrates may not recognize that the abuser is using the court as another weapon.

In Colorado once a judge is appointed by the governor with the guidance of  a local judicial nominating commission, he or she serves a fixed term until retention comes up on the ballot again. The Commissions on judicial performance conducts evaluations of judges and then provides voters with their recommendations in the State Ballot Information Booklet. This year, all nine district court judges within the first district were deemed to meet performance standards. William Banta, a  State Judicial Performance Commission member in 2005 and 2006, noted the omission of actual job performance reviews and criticized “a lack of analytical content in the write-ups for the voters.”

One woman whose hearing was in district one stated, “I recall in our child custody case the first thing ‘the judge’ said was that he had read the file and the child abuse perpetrated against my son by my ex-husband would not be discussed. He seemed to not believe my claims that my ex was abusive to my children.  Despite the Department of Human Service's report finding that my ex-husband had been physically abusive to our son and emotionally abusive to all the children, the judge wrote in his decision that my ex-husband's actions "did not rise to the level of child abuse."  She agreed to a 50/50 schedule with her ex husband so as not to lose custody altogether.  We’re not getting the full picture from the Commissions on judicial performance reviews.

Many cases involving the allocation of parental responsibilities and parenting time are heard by magistrates who have more limited roles in the judicial system. They hear a variety of cases but cannot conduct jury trials and they work under the supervision of a judge. The only way magistrates can be hired and fired is at the discretion of the Colorado State Judicial Department which reports to the Chief Judge of the Judicial District. We need more transparency for our elected judicial officials and appointees. The Tesoriero custody hearings and eventual murder of ten-year-old Ty are a  case in point. Magistrate Rebecca Moss who presided over many of the hearings and initially gave his abusive father custody is still on the bench in Arapahoe County.

In the realm of family court,  the act of protecting a child is often interpreted as creating conflict. With judges and other powerful people subjecting victims to harsh ramifications if they speak out about abuse, many parents accept 50/50 parenting time rather than lose all custody to the abuser. The agonizing decision of shared parenting or nothing is forced upon countless mothers victimized by the former partners and the family court system. As one woman whose child was being physically abused by her ex husband told me, “I felt I had to settle for the custody plan my ex-husband wanted or risk losing full custody.”   An estimated 58,000 children a year are ordered into unsupervised contact with physically or sexually abusive parents. Can we continue to allow biased judges or judges without an adequate understanding of child abuse to rule on domestic relations cases?

The truth is that conflict serves the family court industry. Court professionals such as lawyers, CFIs and PREs  profit from protective mothers and abusive father. Expert Witness and Consultant in Domestic Violence Cases, Barry Goldstein stated, “Domestic violence is about control including financial control. The most unethical professionals lawyers and evaluators have figured out the best way to make a lot of money is to create approaches that favor abusive fathers because they have the money. That’s why the bogus alienation theories were created and they have had enormous influence and poison on the family courts.”

Because of judicial immunity, there is no way victims of family law courts can hold judges or magistrates accountable. One might think that after Magistrate Moss's willful neglect in the Tesoriero case, she would be fired or at least suspended. However, she, like many other judges and magistrates that make incompetent rulings that place children with abusers, is still on the bench.

While judges and magistrates enjoy judicial immunity, many protective mothers do not always receive due process in family court. One example is a woman whose first amendment rights were violated. Arapahoe County Judge Natalie T. Chase sentenced her to a year in jail after she put up a petition to address what was happening in her case. The woman was also charged for a second post that in actuality was written and distributed by other people. Instead of believing the woman or her children, and in spite of the evidence and what the children stated was being done to them, the father was given full custody and the mother's parental rights were terminated.

Why am I anonymous? Why are my sources anonymous? Because we are terrified the courts would take away our children or retaliate against us with a gag order or jail time. When the father of my child physically bullied me I was told by my lawyer if I tell the court he is trying to intimidate me I would be perceived as hysterical - rather than just protecting myself. Our child family investigator cautioned me to not protect my boundaries in front of my child.  Urging victims of abuse to be friendly with their perpetrator trivializes the violence and teaches children abusive behavior is acceptable.

Survivors of domestic violence and child abuse need to feel safe to raise awareness about the victimization they have endured from the system that was supposed to protect them. When women speak out, they often find judges suppress their first amendment rights. One avenue available now in Colorado is a newly created Domestic Violence and Child Welfare Task Group through Denver’s Office of Children Youth and Families. Although the clinical and research based knowledge of social workers, directors of non-profit organizations, and psychologists are integral to the task force, the experience of women who have gone through domestic violence and an inadequate family court system is paramount. Only survivors of abuse are the true experts and should be respected as such.

My hope for this task force is that the organizers listen to actual voices from the battlefront and take their recommendations to our legislators for meaningful family court reform. There have been more than 700 children murdered since 2008 by a parent or parental figure while a custody case was pending in court, according to The Leadership Council. Waiting on legislation could potentially lead to an even greater child homicide rate. Congressional House Resolution 72, which prioritized child safety in custody proceedings, was a first step in addressing the protection of children in family court. Colorado legislators and court professionals need to take additional strides to guarantee the wellbeing of children in family law decisions. your social media marketing partner
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