NOT LONG AFTER Clarke’s story was published, the California National Organization for Women (NOW) drafted a friend-of-the-court brief urging California appellate judges to review Clarke’s case, as did the Washington, DC–based legal-watchdog group Judicial Watch. (Her case has attracted an impressive list of notables from the mental-health and legal fields. Among the dozens who submitted letters this year urging the California Supreme Court to review the custody dispute were University of Southern California law professor Susan Estrich, National NOW president Kim Gandy, and former American Psychiatric Association president Paul Fink.) After NOW’s brief was reported in the press, the organization, like Clarke, began receiving e-mails and phone calls from women nationwide describing similar problems. The vast majority of these women, says Rachel Allan of California NOW, had lost custody to husbands or boyfriends believed to be sexually abusing their children. In response to the stories, the group launched a three-year effort to examine the problems women face in California’s family courts. In 2001, the organization posted a 21-page questionnaire on its Web page. Feedback was overwhelming, Allan says; the group received detailed responses from women in every region in the country, including Massachusetts. "Women had expected to find a family-friendly venue [in family court] to make arrangements on divorce and custody," she explains, "but they found something quite different."
Last June, after surveying 300 California mothers who had participated in the questionnaire and conducting follow-up interviews, NOW released a 134-page report on the state of the family courts in California. Not intended as a neutral analysis, the document portrays a system that’s "crippled, incompetent, and corrupt" and riddled with abuses against women. Women reported being openly insulted and called "sexist names" by judges, GALs, and court evaluators. Some complained that judges silenced them during hearings while allowing their estranged partners to speak. Others complained that judges refused to let them call their own expert witnesses who’d analyzed forensic evidence in their cases or even to let women testify in custody disputes that would affect their own children. Evaluators and GALs often sided with the fathers and their attorneys, especially when spousal or child abuse arose.
The NOW report found that the most serious problems occurred in custody litigation involving allegations of domestic violence; in 76 percent of the cases surveyed, the fathers were accused of having physically or sexually abused their children. In 50 percent of these cases, the abuse was substantiated with police reports. In 30 percent, court-issued restraining orders had been directed against the fathers. Yet when mothers raised allegations of child abuse in disputes, fathers won sole or joint custody 69 percent of the time. Family-court judges did not permit evidence of the father’s child abuse to be heard in 73 percent of these cases, even though blocking such evidence from court proceedings violates due-process rights. Allan and her colleagues repeatedly found that judges had disregarded compelling evidence of child sexual abuse. Some judges deemed such material irrelevant because of earlier rulings or similar technicalities. Others flouted the rules altogether. "I’ve been in a family court where the judge openly proclaimed, ‘I don’t care what the law says. This is my courtroom,’" Allan says. "In so many cases, judges just ignored the evidence of abuse and the word of children themselves."
Massachusetts hasn’t escaped these problems. Last November, the Wellesley Centers for Women, at Wellesley College, issued a sharp critique of the Massachusetts family-court system as part of a three-year research effort known as the Battered Women’s Testimony Project (BWTP). The November 25 report, "Battered Mothers Speak Out," stems from interviews with 40 women from across the state — all of whom had suffered physical, emotional, or psychological abuse during their marriages — and 45 victims’ advocates, judges, and other courtroom personnel. The study found that officials who work at nearly every family court in the Commonwealth regularly commit what the report described as "human-rights violations" against battered mothers. Women complained about a host of offenses: how court personnel labeled them hysterical and unreasonable; treated them with scorn, condescension, and disrespect; failed to give them a chance to be heard in court; and denied them access to sensitive investigations and documents pertinent to their custody disputes.
Fifteen of the 40 women interviewed 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. Eighteen complained that judges or family-service officers granted or recommended that abusive fathers get unsupervised visitation with their children. When it came to allegations of spousal or child abuse, 38 women said judges, family-service officers, and GALs had ignored or minimized their claims. Nine of the 40 women said judges and GALs failed to investigate allegations of physical and sexual abuse. And six of the 40 women said that judges and GALs refused to take into account documented evidence of child abuse when deciding their custody disputes. The Wellesley report concluded that family courts across Massachusetts are systematically failing to protect battered women and their children from further harm. As Carrie Cuthbert, one of the report’s five authors and co-director of the Wellesley Centers’ Women’s Rights Network, explains, "Not only is the safety and well-being of mothers and children at stake, but so is battered mothers’ trust in our family courts." Within the community of battered women and their advocates, she continues, "the family courts have gained a reputation as a place where women don’t find justice."
Not surprisingly, Massachusetts family-court judges disagree. They condemn the 106-page Wellesley report as skewed because it relies solely on testimony from women with complaints about custody decisions, not those satisfied with their rulings. "It is incomplete and flawed in its methodology," states Sean Dunphy, the chief justice of the Massachusetts family and probate courts. He maintains that the report’s approach, which frames the 40 women’s accounts in the context of human-rights violations, "may work well for systems in Third World countries, but not for a court in the United States." He and other judges argue that the women’s testimony would have been strengthened if it had been verified by a review of court transcripts and by interviews with lawyers in the cases. (In fact, the Wellesley report’s authors fact-checked 10 of the 40 stories with court records and other documentation. "In every one, we found the documents thoroughly supported the women’s statements," says Lundy Bancroft, a report author.)
Nevertheless, Dunphy finds the claim that the state’s family courts aren’t working to be a "broad-brushed statement." It concerns him, however, "that individuals would have such perceptions and beliefs." Jeremy Stahlin, associate justice at the Suffolk County Probate and Family Court, concedes that if the complaints outlined in the report were true, "then, yes, it’s a problem." But he also concludes: "I don’t think the court is predominantly favoring one side or the other in these custody cases, and I find that hard to accept as a premise."
Complaints about faulty methodology strike advocates as a convenient way to deflect attention from the issues laid out in the controversial reports. That so many women across the state reported strikingly similar accounts should, in and of itself, be cause for alarm, Bancroft says, noting, "It’s shocking that 40 women who don’t know each other would offer the same complaints about the family courts." He adds, "The family court’s current response to custody disputes, particularly those that involve child-abuse allegations, is repeatedly failing to protect children."
Losing custody to a child molester
SARAH FITZPATRICK Mandel is hunching forward, wrapping her arms around herself as if she’s trying to contain her pain. The Orleans resident, 30, is telling me about how she lost custody of her two children, a daughter now four years old and a son now age three, in Barnstable Probate and Family Court to her ex-husband, a man who Baltimore, Maryland, child-protection workers believe is a child molester. About how she was arrested and jailed for six nights for refusing to hand over her children. About how the court refused to hear charges that her ex-husband had abused their son when he was two years old.
Fitzpatrick filed to divorce her then-husband, Marc Mandel, a 36-year-old Baltimore County state prosecutor, in June 2001, after five years of what she describes as an emotionally abusive and violent marriage. Six months later, pending a trial in Baltimore County Circuit Court, the couple agreed to a temporary custody arrangement that gave her primary care of their daughter Amy and son James. (The children’s names have been changed to keep their identities private.) The court order handed down a visitation plan allowing Fitzpatrick’s former spouse to see the children in Cape Cod, where she’d since relocated.
But last February, while changing her son’s diaper after he’d returned from a visit with his father, Fitzpatrick saw that James’s penis and rectum were red and swollen. Fitzpatrick phoned the OrleansPolice. In a February 4, 2002, police report, she told the responding officer that James’s "private area ... looked like the skin was pinched and pulled ... [and] there was redness around his anus."
Subsequent medical examinations of the boy revealed rare physical symptoms typically associated with child sexual abuse. Two doctors diagnosed James as suffering from a red and swollen penis and scrotum. The first doctor, Hope Brooks, saw James on February 4. The second doctor, Nancy Golden, who is James’s pediatrician, examined the boy nine days later, on February 12, and found that James also had "anal fissures," or cuts and scrapes around the rectum. Such symptoms do not necessarily prove molestation, explains Dr. Eli Newberger, the founder of the child-protection team at Children’s Hospital and a renowned expert on child sexual abuse, "but they’re extremely important indicators." Anal fissures almost never occur in instances other than abuse, he says. The findings prompted Golden to contact the Massachusetts Department of Social Services (DSS), whose mission is to ensure the safety and well-being of minors. On February 14, the department evaluated James and confirmed he had severe redness and abrasions on his genitals — symptoms that the DSS called "atypical" for such ordinary conditions as diaper rash. In accordance with agency procedures, evaluators tried to interview the boy. But James, who was just two years old, said nothing. As a result, the DSS closed the case, though its report cautioned that "the absence of specific findings in no way indicates abuse did not occur."
Mandel did not return a phone call from the Phoenix seeking comment. His Brewster, Massachusetts–based attorney, Dennis Manesis, says his client "has steadfastly refused to speak to the press because he doesn’t believe his children should be bandied about in the newspapers." In court records, Mandel attributes James’s injuries to a diaper rash that he aggravated during James’s February 3 visit by wiping his son’s bottom with a paper towel after the boy had had a "difficult bowel movement." His attorney also points out that the two doctors examined the boy over a period of nine days. Only the second doctor diagnosed anal fissures, however. "So how did the child get those injuries?" Manesis asks, emphasizing that Mandel had not seen his son during those nine days.
His question, of course, is meant to cast doubt on Fitzpatrick. But a July 2002 report conducted for the Baltimore County DSS determined that Mandel had assaulted his 10-year-old daughter from an earlier marriage. The report states that Mandel’s daughter accused him of seven "incidents" of fondling, including one where he "rubbed and went inside her vagina." The report concedes that such allegations could have arisen from one of two possibilities — first, that the girl was programmed to make false charges against her father; or second, that "Mandel has indeed exhibited sexually inappropriate and intrusive behavior with his daughter." The investigator concludes, however, that the girl was telling the truth: "I did not find signs of coaching and [the child’s] credibility appears high." In an interview documented in the report, Mandel maintained not only that his older daughter had repeated bogus claims against him made by her maternal grandmother, but also that both of his ex-wives and their mothers were "conspiring against him" to portray him as an abuser. And according to Manesis, Mandel’s first wife filed abuse charges against Mandel with the Baltimore DSS only after a similar investigation by the Department of Protective Services, in Virginia, where the older daughter lives, did not substantiate the abuse. "After he was cleared in Virginia," Manesis argues, "the mother ran to Maryland to make a report." He adds that, "whatever the Maryland DSS found," its child-protection workers didn’t base their determination on any physical "proof" that Mandel had abused his daughter.
For Fitzpatrick, her son’s diagnosis only reinforced her suspicion that her estranged husband, in her words, "had done something terribly bad" to James. She refused to comply with the Baltimore court’s visitation plan; indeed, she sent Amy and James to live with relatives elsewhere in the state and kept their whereabouts hidden. "I wasn’t going to let my children see their father alone again," she says. She then turned to the Barnstable family court for help, filing a February 15, 2002, motion seeking to move the pending custody matter from Baltimore to Massachusetts. The Barnstable family court ruled instead that a hearing had to be held on whether Massachusetts had proper jurisdiction in the matter. Meanwhile, the Baltimore trial got under way before either Fitzpatrick or her ex-husband pursued the Massachusetts hearing.
By the time the Baltimore trial took place in August, Fitzpatrick had accumulated a battery of documentation and witnesses to back up her sex-abuse claims, including the Baltimore DSS findings that Mandel had assaulted his oldest daughter, as well as expert testimony from Eli Newberger, who concluded after evaluating the medical reports that it is "highly likely that Marc Mandel had ... sexually abused" James. None of this evidence was ever heard at trial, however. On August 21, the day trial began, Fitzpatrick’s attorney, William Kerr, withdrew as her counsel. Kerr told the Phoenix that he removed himself from the case because of a conflict between him and Elizabeth Clague, the Brockton attorney who represents Fitzpatrick in Massachusetts. Rather than listen to his advice and attend the Baltimore trial, Kerr says, "Sarah chose to heed her Massachusetts attorney and not appear. I felt my effectiveness as her lawyer was no longer a factor." The move stunned Fitzpatrick, who contends that Kerr had left her a message the morning of the trial saying everything was all right. "He has never explained to me why he did that," she says.
Without legal representation, Fitzpatrick was forced to request that the trial be continued — to no avail. After two days of testimony elicited by Mandel’s attorney, the judge in the case, Baltimore County Circuit Court judge John Fader, issued a stinging judgment against Fitzpatrick, in which he rejected her sex-abuse claims and granted Mandel full custody of both children. "I fear the mother of these children will do almost anything, and say almost anything to get her way," the judge explained in his August 28, 2002, order. He labeled Fitzpatrick "a pathological liar, or a purposeful liar, or both" and denied her any visitation rights at all.
Faced with Fader’s harsh judgment, Fitzpatrick sought relief once again in Barnstable family court, filing a September 3, 2002, motion seeking to reverse custody. Rather than hear the complaint — and the evidence of child abuse — First Justice Robert Terry dismissed it. Instead, he upheld an order that came from an ex parte hearing — which Fitzpatrick had not appeared at or known about — that the Barnstable court had granted Mandel on August 29, 2002. Not only did this order enforce Fader’s decision, but it also ruled that Mandel "be assisted by the Orleans Police ... in the assumption of the physical custody of the two minor children." Terry denied Fitzpatrick’s appeal for custody because, he wrote in his October 15, 2002, decision, "two first-rate judges in two states have fully considered these [sex-abuse] allegations and have rejected their veracity." In a brief interview with the Phoenix, the judge elaborated upon his findings. He explained that he’d honored Fader’s judgment because the Baltimore court has "clear jurisdiction" in the case. "One of the major problems, as family-court judges know, is forum shopping," he continued, adding that litigants "cannot just go to any state they want and file motions and hold hearings" because they’re dissatisfied with a decision.
Fitzpatrick has appealed Terry’s decision, which is pending before the state Supreme Judicial Court. Yet her continued refusal to let Mandel see his children caused the judge to declare Fitzpatrick in contempt of court last fall. On October 25, in another closed-door ex parte hearing, Terry authorized a civil-detention warrant for Fitzpatrick. Four days later, she awoke at her family’s Scituate home to a loud bang at the door. Within minutes, she was under arrest. Police seized her son, James, who was with her at the time, before forcing her to the ground, slapping on handcuffs, and hauling her off to the Barnstable County House of Corrections, where she languished for six days. Terry, for his part, presented the contempt proceeding as a straightforward judgment. "I determined that there was a valid order — which there is, from Maryland — and that she had the present abilities to comply," he says. "She could turn over her children" to Mandel.
As it stands, the only judge who has not doubted the veracity of Fitzpatrick’s allegations also happens to be the only one who’s heard her testify. Last month, US District Court judge Robert Keeton issued a scathing decision in a federal lawsuit Fitzpatrick filed against the Orleans Police. In his December 9 judgment, Keeton blasted the police for launching a broad, misleading investigation into the whereabouts of Fitzpatrick’s children, during which the judge found that the department "likely violated" the mother’s due-process and parental-privacy rights. More important, based on testimony given by Fitzpatrick, Keeton also determined that "there is compelling evidence that the children have been harmed by their father."
Today, as she waits for the SJC to accept her case for review, Fitzpatrick has a hard time believing what’s happened to her and her children. After her October 29 arrest, police handed over her toddler son to his alleged abuser, who has taken the boy back to Baltimore. While her daughter remains in an undisclosed location in this state, Fitzpatrick wonders how long Amy will be safe. Given the reaction of the family courts to her claims of child sexual abuse so far, she fears she may lose custody of her kids forever. "It’s just inconceivable what’s happened in the family courts," she says, her voice shaken. "All I’m doing is trying to protect my kids. Any mother would do the same."
No comments:
Post a Comment