Content note: This article contains a graphic description of child sexual assault.
Karen Gill is undergoing a long, arduous battle to protect her son after a Tennessee court six years ago affirmed a family court ruling to give Darryl Sawyer custody of their 6-and-a-half-year-old son, despite evidence presented by his ex-wife that he had allegedly sexually abused little Daniel.
Three years before the family court ruling, a pediatrician had confirmed Gill’s worst fears that the reddish-blue bruises on the child’s buttocks after a visit with his father occurred from an adult “holding his buttocks forcibly open.”
But William Bernet, a psychiatrist and court-appointed custody evaluator, convinced the judge to grant primary custody to Sawyer, “stating that Sawyer was not a pedophile or child molester and should be awarded custody of Daniel.” This, despite the medical evaluation and a Department of Children’s Services report indicating sexual abuse of their son.
A new report from the investigative news organization 100Reporters throws light on complaints of a parent sexually or physically abusing a child being routinely rejected at family courts around the country.
“Instead, perpetrators of abuse are often entrusted with unsupervised visits or joint or sole custody of the children they abuse, putting children in danger of serious, often life-threatening harm,” writes Laurie Udesky in the investigative report, titled “Custody in Crisis: How Family Courts Nationwide Put Children in Danger.” (The names of the family members were changed to protect the children’s privacy.)
Udesky is an associate of the G.W. Williams Center for Independent Journalism, which worked with her to produce and report the story for 100Reporters.
The two-year investigation, which includes interviews with more than 30 parents and survivors in nine states, uncovered stories of children like Daniel who suffered years of abuse in fear and silence while the parents who sought to protect them were financially and psychologically drained.
“These parents have become increasingly stigmatized by a family court system that not only discounts evidence of abuse but accepts dubious theories used to undermine the protective parents’ credibility,” the report states.
News reports have indicated that 58 children between 2008 to 2016 were killed by custodial parents after family courts ignored abuse allegations by the protective parent, according to an analysis conducted by the California-based Center for Judicial Excellence, a watchdog group that focuses on family courts. “In all but six cases, protective parents were mothers who had warned family courts that their children were in danger from abusive fathers who later killed them,” the report notes.
The same amount of evidence in criminal court would result in convictions beyond a reasonable doubt, says attorney Richard Ducote, who represents concerned parents like Gill, in the report.
However, family courts have a different focus, according to Ducote. A former special assistant district attorney in Louisiana, Ducote says in the report that the courts usually try to keep families together although they are supposed to consider the best interest of the child first. “They’re concerned with the reduction of conflict and getting along, which is good unless there is someone you need to protect the child from,” he explains.
Sealed court records, intended to protect the privacy of children, can actually put children in greater danger by blocking outside oversight, the report notes.
The cost of litigation is also a huge deterrent for protective parents. Some 27 percent of 399 parents who ultimately declared bankruptcy spent about $100,000, according to the report.
With no state-by-state government data available, advocates estimate that at least 58,000 children a year end up in unsupervised visits with or in the custody of an abusive parent.
“A 2013 analysis in the Journal of Family Psychology cited studies that show that anywhere between 10 and 39 percent of abusers are awarded primary or shared custody of their children,” the report states.
“It’s a terrible situation,” Lynn Rosenthal says to Udesky. From 2009 to 2015, Rosenthal served as an adviser on violence against women in the White House. “The research shows that the family courts are a perfect place for abusers to get custody.”
Nashville-based Cynthia Cheatham, who represented Gill in her appeals case, agrees in the report that family courts can manipulate the evaluator, the guardian, and the judge to make themselves look good and to discredit the concerned mother.
The investigation recommends reforming the nation’s family court system, where some advocacy groups have made headway. Reps. Ted Poe (R-TX) and Carolyn Maloney (D-NY), for example, have introduced a resolution to recognize that “child safety is the first priority in custody and visitation adjudications.”
“Protective parents are asking the authorities to step in and protect their children and they’re not,” Kathleen Russell, executive director of the Center for Judicial Excellence, tells Udesky.
To be sure, the advocacy community holds widely divergent views on how to approach family court reform, which many see as inextricable from broader child welfare reform as a whole. Lillian Hewko, an attorney with the Incarcerated Parents Project, told Rewire in an email, “We need to work hard to find transformative justice strategies … that allow a community to respond to child sexual abuse in a manner that does not lead with prosecution, that creates real solutions.”
When possible abuse is identified, said Hewko, “we need options where a protective parent can insert a wrench into that cycle of abuse, where potential perpetrators can get help before they commit an act and work on their toxic shame that is leading them to often reenact their own trauma.”
Meanwhile, Rachel Ruttenberg, executive director of the Family Defense Center in Chicago—which seeks to “advocate justice for families in the child welfare system,” according to its website—said to Rewire that child protection systems in the United States frequently remove children from parents as a first resort, not as a last—a claim that runs counter to the cases presented in the report.
Ruttenberg added that separation can result in too many children and families being traumatized, sometimes even as young as breastfeeding babies. Parents also lose custody of their children to state foster care systems due to poverty or because they are victims of abuse themselves.
Often fraught with emotions and agendas, child custody cases, especially those involving abuse, evoke a variety of strong opinions. The Leadership Council on Child Abuse & Interpersonal Violence, a nonprofit independent scientific organization, has outlined some of the myths that come into play to put children at risk during custody disputes. These range from allegations of abuse being rampant to the notion that good mothers usually win custody.
Dorothy Roberts, a law professor at the University of Pennsylvania, told Rewire, “I think the [“Custody in Crisis”] report shows that, despite the common assumption that judges always favor mothers in custody disputes, mothers are often devalued and silenced in both the private and public child welfare systems. I hope the report can be part of an effort to rid child welfare decision making of race, gender, and class biases, which systematically harm children and families.”
Meanwhile Gill and her son, now 13, are still seeking justice in Tennessee, this time in criminal court.
After Gill lost primary custody of Daniel, he reportedly broke down during a visit at the age of 8 and told her his father was sexually abusing him. Fed up with family court, Gill contacted the FBI, which conducted forensic interviews that led to a grand jury indictment of Sawyer on four counts of child rape and one count of sexual assault, the report notes.
Criminal court hearings have been postponed several times due to “scheduling conflicts,” according to the report. Daniel is now living with his mother; as long as Sawyer is free, Gill says that they will always “feel hunted, like we’re prey.”
CORRECTION: This article has been updated to clarify details about the different approaches being pushed by advocates to reform the child welfare system.