Changes in Massachusetts family courts since 1989

A 1989 MASSACHUSETTS study commissioned by the state Supreme Judicial Court showed that mothers engaged in custody disputes with their ex-husbands or boyfriends can fall victim to gender bias.  Family courts held mothers to higher standards than fathers.  Judges and other courtroom personnel, for example, scrutinized mothers’ habits, work schedules, and relationships, as if looking for any reason to prove them unfit.  By contrast, fathers who simply sought custody were viewed as undertaking what the study termed " an extraordinary act of commitment " to his children.

When it came to allegations of child abuse in custody battles — typically, allegations lodged by women against men — court officials often presumed that the claims were false.  The 1989 study showed that a majority of Massachusetts family-court judges even agreed with the statement that mothers only charge child abuse "to gain a bargaining advantage in the divorce."  Judicial attitudes ranged from "skepticism" to "disdain."  And judges made what the study described as "inconsistent and ... questionable" rulings, such as granting alleged abusers unsupervised visits.

Court officials today say that much has changed since the study was published 13 years ago.  The Massachusetts family court has almost completely changed its face since 1989.  Only six of the judges interviewed for the SJC gender-bias study still remain on the family-court bench.  Forty-four new and younger judges, about half of whom are women, now hear divorce, custody, and child-support cases in the 14 family courts statewide.  " The field of judges looks different," says Sean Dunphy, chief justice of the Massachusetts family and probate courts.  Today’s judges are more enlightened about domestic violence and child sexual abuse than judges were in 1989 because, he maintains, "they’ve been exposed to significant training."  Many family-court judges spent legal careers practicing domestic-relations and child-welfare law.  And their knowledge of child abuse has grown and evolved, just as society’s has.

Since the troublesome SJC findings became public in 1989, judges say, the family-court administration has taken concerted steps to improve judicial responses to these cases.  Dunphy, for instance, helped to create a 59-page protocol to assist judges in addressing child sex-abuse charges in the mid 1980s, when he served as first justiceof the Hampshire Probate and Family Court.  As chief justice, he has distributed these extensive guidelines to all his 49 colleagues on the family-court bench.  Administrators, in addition, have drafted judicial-conduct provisions prohibiting biased behavior.  And each year since 1994, they’ve devoted $100,000 toward official training of judges and family-service officers on domestic violence.

Such reforms have had an effect, according to David Sacks, the first justice of the Hampden Probate and Family Court.  "Does the system need help?" he asks.  "Absolutely. But there is real progress on this issue."  He then adds, "In my experience, we treat [disputed custody] cases [with abuse charges] very seriously.  The nightmare of a family-court judge is placing a child at risk."

- Kristen Lombardi

What we found: A catalog of shame

• Family courts do not rely on criminal investigators to examine child-abuse claims. They rely on family advocates called guardians ad litem, whose charge is to investigate allegations of abuse, abandonment, and neglect and to represent the best interests of the children in disputed custody cases.  More often than not, they are unqualified to evaluate physical evidence of abuse and to interview victims and alleged abusers.  Yet, in contested custody battles, they are frequently called upon to do just that.

• Normal courtroom checks and balances don’t exist in family court.  Unlike in criminal and civil court, there are no juries.  And family courts do not mandate legal representation.  Therefore, the only litigants with attorneys are those who can afford them.  In this atmosphere, judges have extraordinary powers and can work with near-complete impunity.  It is not uncommon for judges to hold hearings in which important rulings are made with only one party present; such hearings can violate basic constitutional rights of due process.

• Even when child-protection service workers find evidence of abuse, it is not uncommon for judges to refuse to hear the evidence.  A California woman, who was one of the first to go public with her story, lost custody of her daughter to a man whom Los Angeles child-protection workers twice found to have abused the girl.  The mother is now appealing the decision to the United States Supreme Court.

• Gender bias and traditional stereotypes of how women and men parent children continue to prevail in family court.  As a result, while conventional wisdom has it that mothers almost always fare well in custody disputes, statistics show otherwise.  In 1996, the Williamsburg, Virginia–based American Judges Association released a report, "Domestic Violence and the Courtroom," in which it noted that wife batterers and child abusers convince family-court officials that their ex-wives are "unfit" or "undeserving" of sole custody in roughly 70 percent of contested custody cases.

• A 1999 study on judicial responses to mothers’ child-abuse complaints followed 300 cases through the family courts in locales around the country from 1988 to 1998. I t showed, according to researcher Amy Neustein, that "[t]he system retaliates against mothers with such ferocity that they lose their rights."

• A 2002 California NOW report found that the most serious problems occurred in custody litigation involving allegations of domestic violence.

• Fifteen of the 40 women interviewed for a 2002 report on Massachusetts family courts said their ex-partners retained sole or joint custody of the children — even though all 15 men reportedly abused both their ex-wives and their children.

• Despite a sea change in attitude toward abusive priests, we remain a culture unwilling to believe fathers capable of molesting their children.  Yet a well-known 1994 national study of the incidence of child sexual abuse found that one in five girls and one in 10 boys are molested before the age of 18 — and 70 percent of them are assaulted by their own fathers.