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June 28, 2015

Ordered to live with an abuser: How and why American family courts fail children

Abuse Parenting
Child Abuse 2 File Art /for PhillyVoice

America’s children are too often treated as property to be divided between contentious parents in family courts. Courageous parents who flee with their children from violence risk losing custody of the children they fought so hard to protect.

Sarah’s story

“Pregnant at 22,” Sarah remembers. “I was pregnant at 22; naïve, too trusting and scared.”

Sarah was a devoted student enrolled at a local community college. She waitressed part time to pay for school and lived with her parents in Woodbury, New Jersey.

“I started seeing Rick that November,” she recalls. “I met him at the restaurant.” 

Rick was nearly 10 years older, making him appear sophisticated and worldly. 

“My mother met Rick once and summed him up with one word: trouble. I didn’t listen.”

Rick grabbed her by the jaw with his right hand. His fingers pressed deeply into her skin as he spit obscenities into her face. 

Initially, Sarah was drawn to Rick’s intensity. The sexual attraction was strong, but it didn’t take long before Sarah realized he had a horrid temper. Three weeks into their relationship, Rick grabbed her by the jaw with his right hand. His fingers pressed deeply into her skin as he spit obscenities into her face. 

“I was so scared,” Sarah remembers. “I froze in fear.” 

Once Sarah got home, she took action. 

“I sent him a text saying it was over, that he would never see me again.”

A month later, Sarah discovered she was pregnant.

Sarah didn’t plan on telling him. In fact, she considered contacting the police to file a restraining order to stop his incessant calls and messages. 

“I just got a new phone instead,” she states, shaking her head.

Eventually, Rick did stop driving by her parents’ home and Sarah began to focus on her pregnancy. 

“I couldn’t live with myself if I had an abortion,” she recalls. “I decided to see the baby as an unexpected gift.”

That summer, Sarah gave birth to a beautiful little girl named Trisha. The child was welcomed warmly into Sarah’s family.

Over a year passed.

“Then, one day, my dad and I took Trisha to the park,” Sarah recalls. 

While they pushed her in the swing, Sarah’s father brought up the subject of contacting Rick.

“A man has the right to know he’s a father,” he said.

That evening, Sarah called Rick to let him know about Trisha. 

“That one phone call changed everything,” she states with tears in her eyes.

Children as property divided

There’s a scene in "Mad Max: Fury Road" where Immortan Joe is deterred from firing his weapon during an adrenaline-packed chase. The fearful antagonist lowers his gun upon discovering that one of his pregnant “wives” is on board the targeted vehicle.

“That’s my property!” Immortan Joe declares -- his rage spewing from behind clenched jaws.

Of course, Immortan Joe is more monster than man and his character is crafted to represent the deepest shadows of aggression and greed. As moviegoers, we see this and rally behind the brave women fleeing his captivity. We recoil from the notion that a man would look upon his child, or his child’s mother, as property.

America’s children are too often treated as property to be divided between contentious parents in family courts.

While dozens of well-respected organizations work tirelessly to improve the legal status of those escaping domestic violence and abuse, the damning fact remains that America’s children are too often treated as property to be divided between contentious parents in family courts. Furthermore, the courageous parents who flee with their children from violence risk losing custody of the children they fought so hard to protect.

Joyanna Silberg Ph.D., executive vice president of the Leadership Council on Child Abuse & Interpersonal Violence, asserts that family courts, in general, are “horrifyingly uninformed” when it comes to how domestic violence and/or child abuse manifests in people's lives. The “signs and prevalence of violence” are rarely understood or appreciated. Tragically, this results in courts routinely ordering children to live with abusive parents.

How is this possible?

Silberg has served as an expert witness relating to allegations of abuse in family courts in more than 27 states. She explains that the “underlying paradigm” in family court law is of “equal distribution” and this viewpoint impacts everything -- particularly how children are treated. Generally, family courts regard it as in “the best interests” of a child to facilitate or mandate equal time or contact with both parents.

We cannot afford to fail America’s abused and neglected children. A restructuring of the family court paradigm is in order. 

But what happens when one parent and/or child is a victim of another parent's violence? In such cases, equal time and distribution do not create a wise paradigm to consider, nor are these principles in any way supportive of a child’s best interests. Certainly, the Immortan Joes of our world do not deserve unsupervised visits with their “property” while non-abusive parents risk losing custody for failing to “facilitate contact.”

According to Silberg, most Americas are “shockingly unfamiliar” with the paradigms guiding family law and many abused mothers are aghast to discover that simply telling the truth about their own or their child's experience “often works against them.” Because abuse allegations are hard to prove, abusers can easily frame a mother as “a manipulative woman” and tell the judge that she has a “long history of lying.” If abuse isn't proven in court, this only reinforces the misconception that the victim isn't trustworthy.

Interference of custody

For Rick, the discovery of the presence of a child in his life only served one purpose: control. Within a few months, Rick filed for paternal rights at the local courthouse. By cashing in on his legal claim to his fatherhood, Rick could once again be in contact with Sarah – a woman he now despised.

“Can you imagine my horror when I read through the court documents?” Sarah says as her voice fills with anger.

Little Trisha had never met her biological father, but suddenly, it was mandated that the 17-month-old spend every other weekend with him. Even if the parent in question were emotionally stable and safe, for a securely attached, breastfeeding toddler, such a sudden separation from the primary attachment figure would be jarring, difficult and scary.

 “All I do is focus on seeing my daughter again. My heart is breaking, and I know her little heart is too.”

Highly regarded British psychologist Penelope Leach, whose books have been read by millions, asserts that children under 4 should not be separated overnight from their primary attachment figure -- unless the young child is “securely attached to each parent and turns to each parent for comfort.” Leach criticizes family courts that require parents “share” young children and argues, “when people say that it’s ‘only fair’ for a father and mother to care for their 5-year old daughter on alternate weeks, they mean it is fair to the adults  who see her as a possession and her presence as their right – not that it is fair to the child.”

For Sarah, the idea of placing Trisha into Rick’s hands for weekends of unsupervised time was terrifying. 

“I was stunned. I had no idea what to do,” she recalls. 

The night before Rick’s first court-ordered parental visitation, Sarah packed her bags in a panic and fled. 

“My mothering instincts took over,” she recalls. “I had to run.”

Looking back, Sarah laments the fact that she didn’t seek out legal counsel or file a temporary restraining order. She left a hurried note to her parents and spent the next few months living with Trisha at a friend’s home in Philadelphia. It didn’t take long for their whereabouts to be discovered. By then Rick had levied charges of “interference of custody” against her.

Today, Trisha lives with Rick. Sarah has no contact with her daughter and her parents’ home is a quiet, sad place. Grief fills her chest, replacing the warm and nurturing milk she loved to offer her little girl. Sarah took a semester off and is working diligently with her lawyer in order to regain primary custody. If convicted of the pending charge, Sarah could lose permanent custody. 

She cries: “All I do is focus on seeing my daughter again. I’m so worried that Trisha thinks I’ve abandoned her! My body aches with stress and fear. My heart is breaking, and I know her little heart is too.”

What if, instead of fleeing to a friend’s apartment, Sarah had sought refuge in a domestic violence shelter? What if she had sought out legal support? Would that have mattered?

Family court

In the 2014 fiscal year, Women Against Abuse -- the only organization offering a safe haven for those fleeing domestic violence in Philadelphia -- housed more than 500 women and children in its emergency safe havens. Tragically, more than 12,000 requests for emergency shelter were denied due to lack of space. If Sarah had called seeking refuge, it is likely there would not have been room for the mother and daughter. Nonetheless, the Women Against Abuse Legal Center has six full-time staff attorneys who offer pro bono representation to survivors of domestic violence with regards to abuse, support and custody. In 2014, the center represented more than 900 individuals. Certainly, Sarah would have benefited from their expert advice.

“There are many pathways for battered mothers to both lose and secure custody,” states attorney Gabrielle Davis. “Competent legal advice and strong domestic violence advocacy are key.” 

Davis is a policy adviser at the Battered Women's Justice Project and former law professor at the University of Toledo College of Law.

Many are shocked to discover that domestic violence survivors can be punished with loss of contact and custody for keeping their children safe in the shelters specifically designed to offer refuge to families in crisis. 

Molly Callahan, the director of Philadelphia’s Women Against Abuse Legal Center, notes that children who grow up witnessing abuse “suffer long-term consequences.” Such children are more likely to exhibit behavioral problems and regard verbal or physical violence as a normal means of resolving conflict, potentially becoming future abusers themselves. While Pennsylvania statute requires family courts to prioritize safety, Callahan reports: “Too often we see a default position where a non-custodial parent gets every other weekend, without enough consideration of the individual case … Our hope is that judges look at the totality of the circumstances and craft an order that protects the child’s emotional and physical well-being -- and that protects the adult victim of abuse.”

There are many tools at a family court judge’s disposal. She or he may order therapeutic visitation, require custodial figures to attend classes on parenting or mandate batterers’ intervention programs. When judges competently draw upon these tools, survivors of violence and abuse can successfully protect their children from unsupervised contact with an abusive parent.

However, wisdom does not represent the prevailing trend – even for those who have legitimately been admitted to, and received support from, domestic violence shelters. Silberg recalls: “In my last 20 years of experience with family court, I have never once seen the fact that a woman went to a domestic violence shelter be successfully used as proof of existing abuse.” 

Furthermore, some judges have been known to view the support given at a domestic violence shelter as “a tactic of manipulation” on the part of a parent who is not “giving a child over to facilitate contact.”

Eyes turn to Florida

Sarah’s story is a crafted amalgam of true stories shared with me in my research. Some women and children experienced brutal physical violence – including sexual assault. Some parents faced the damaging daily drain of a verbally abusive and manipulative co-parent. One mother lost complete contact with her 6-month-old son during the months she fought to establish her case for sole custody. In 2013, a Pennsylvania mother was ordered by a judge to stop breastfeeding her 10-month-old to facilitate overnight visits with the father.

This week, on July 2, Florida mother Heather Hironimus goes to court to fight the felony charge of interference of custody. Many media reports of the Hironimus story simply state that Hironimus took her 4 ½-year-old son “and fled” to escape an unwanted and unwarranted court-ordered circumcision. The subsequent dramatic and intense debate regarding genital cutting has obscured an important fact. Hironimus and her son didn’t just flee. Unlike Sarah in the story crafted above, Hironimus sought out the legitimate refuge our society upholds as vital for the protection of the abused.

Upon evaluating the evidence presented, a Florida domestic violence shelter chose to open its doors to Hironimus and her son and offer needed counseling, support and safe haven. Patterns of alleged abuse and harm, predating the court-ordered circumcision, would have been central determining factors.

Many are shocked to discover that domestic violence survivors can be punished with loss of contact and custody for keeping their children safe in the shelters specifically designed to offer refuge to families in crisis. How many find themselves in this unconscionable situation? It’s very difficult, nearly impossible, to determine how many abused American parents face an interference of custody charge after receiving the legitimate aid of a domestic violence shelter. Attendance at a shelter is confidential, and data regarding custodial charges are kept by each individual state. States may not know if shelters were involved; shelters may not know if criminal charges are later filed.

If Hironimus is convicted, she risks losing contact with, and custody of, the beloved son she has sacrificed so much to protect. If convicted, a little boy will grieve far more than the loss of his right to physical integrity. Being ordered to live with an allegedly feared and allegedly abusive parent, while being legally cut off from the one parent to whom he is securely attached, is a terrifying possibility.

Needed reforms

Surely, all family court judges would agree that safety is a higher priority than contact, and the statutes in many states, including Florida, do provide an affirmative defense of custodial interference charges. For example, according to Florida statute 787.03, domestic violence may be used as a valid defense in an interference with custody case. However, the way family courts are currently structured too often allows the system to be misused by abusers in order to have unsupervised time with their children. According to Silberg: “Current laws, in most states, lead to judges removing children from a parent who refuses to facilitate parenting time even when abuse is strongly suspected in the other home.”

Sue Julian: “One of the main reasons why mothers don’t leave abusers relates to the fear of the loss of custody.”

This week, tens of thousands concerned about the fate of the Hironimus boy turn their eyes to Florida. Certainly, we should follow the court proceedings carefully and advocate for justice. Yet, we must also advocate for American parents, the vast majority of whom never find their stories reflected in the news, who struggle to protect themselves and their children from violence and abuse. Some of these parents will seek formal support; others won’t. 

“One of the main reasons why mothers don’t leave abusers relates to the fear of the loss of custody,” states Sue Julian, former team coordinator for the West Virginia Coalition Against Domestic Violence.

This doesn’t just apply to mothers. Fear of dividing the family and a denial of the severity of my mother’s escalating mental illness delayed my father – for years – from initiating a needed custody claim to protect my youngest siblings from harm. I know what it is like to sit in court with my parents, one on each side of the room, involved in an acrimonious dispute over the future of my youngest three siblings. I’ve felt my heart tear with grief as I witnessed the two people who once united in tender passion to bring me into this world no longer look each other in the face, relying instead on the cold and broken protocols of family court to determine the fate of my family.

Until such reforms occur, America’s family courts inadvertently place innocent children at grave risk of harm.

We cannot afford to fail America’s abused and neglected children. A restructuring of the family court paradigm is in order. One possible solution would be to change the burden of proof required to substantiate abuse. Most significantly, according to Silberg, family courts “shouldn't be adversarial systems” at all. Silberg contends that if every lawyer, “if every member of the family court team,” had the same moral obligation that a guardian ad litem has with regard to prioritizing a child's mental and physical well-being, we all would be better off. A child isn’t a piece of property to be equally divided. Removing the contentious litigating atmosphere and protocols in family court and replacing them with a shared moral obligation that prioritizes a child’s well-being is “the top requirement.”

Until such reforms occur, America’s family courts inadvertently place innocent children at grave risk of harm. Whether this harm entails marking a child’s body with an elective surgery akin to how a dog owner crops her pet’s ears or treating a child as property in the custody game of revenge – our most vulnerable citizens bear the burden of a faulty system.

An intake legal advocate at the Battered Women’s Justice Project described how survivors of domestic violence, fearful of the custodial implications of acting upon their plight, are their “most frequent and most desperate callers.” Until family courts are reformed, this will continue to be the case.


Updated July 20, 2015: On Thursday, July 16, Florida Judge Glenn Kelley accepted a pre-trial intervention (PTI) proposed by Richard Tendler, the criminal defense lawyer representing Heather Hironimus. The PTI allows for Hironimus’ criminal charge to be dropped pending an 18-month probationary period wherein no subsequent criminal charges or arrests occur.

At this point, it looks like a mother who legitimately sought out and received the support of a domestic violence shelter will not face jail time.

Hironimus now turns her attention to engage with Florida’s family court system in order to re-establish custodial and visitation rights with regard to her son. Since Hironimus’ controversial arrest at the domestic violence shelter, the boy remains with his father, Dennis Nebus, and his father’s family. Currently, Nebus has temporary sole custody and has refused to let Hironimus, or any member of the Hironimus family, see or visit the child.

Ironically, the “crime” the mother committed – i.e. removing a child from contact with a custodial parent -- is now being committed by the state. However, Hironimus removed her son from contact with an alleged abuser and was motivated by her moral duty to protect her son. In contrast, the state has removed the child from contact with the one parent he trusts -- and to whom he is securely attached -- and placed him in the hands of the parent who sought to have an elective, risky and unwarranted surgery forced upon him. Why? The well-being of the Hironimus boy, who desperately misses his mother, wonders daily about her absence and is heartbroken and numb to find himself suddenly living with a parent he allegedly fears, continues to be lost on authorities who regard the child as a possession to be divided equally between contending parties.

Only with systemic and significant restructuring will America’s family courts be able to fulfill their societal obligation to protect our country’s most vulnerable citizens. Until then, the Hironimus boy, along with hundreds of thousands of American children, needlessly suffer.


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