If a mother is alleged to be abusive or neglectful, studies show that a father can nearly always win sole custody of their children. But if a father is abusive, a protective mother will often focus on getting their children out of the home to safety. If she goes to court seeking a divorce, it is unlikely that she will get sole custody.
This is partly due to no-fault divorce law. Attorneys warn battered mothers not to mention any history of abuse, even if there are police records, hospital reports, and independent witnesses, because such allegations lead to a lengthy contested divorce that becomes unaffordable for most victims of abuse.
Even if they never showed interest in their children, abusers quickly learn that joint custody gives them a strategic advantage. Family Court enables them to gain greater control over their families. The Court may even relieve them of paying child support if they get joint custody with shared possession--no matter how harmful it is for children to shuttle back and forth between two parents with radically different parenting styles.
Rhode Island judges decide who will have custody on the basis of eight standards set by the Supreme Court in a 1990 decision called Pettinato v. Pettinato, 582 A.2d 909, 913-14:
1. The wishes of the child's parent or parents regarding the child's custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.
4. The child's adjustment to the child's home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child's home environment.
7. The moral fitness of the child's parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.
The eighth standard raises an extraordinary problem for victims of domestic abuse, because it requires the custodial parent to maintain a good relationship with the other parent.
This may work fine in ordinary divorces, but it is devastating and can be deadly when there is a history of domestic abuse.
Should a judge require a responsible parent to force a child into a close relationship with a harmful parent? What if an abuser encourages delinquency by teaching children to lie, cheat, steal, sell drugs, or prostitute themselves?
The eighth Pettinato factor should not constrain a good judge or a good parent to force a child into such a damaging relationship with an abusive parent.
But Rhode Island Family Court has made the eighth standard of Pettinato all important by endorsing a legal strategy developed by New Jersey psychiatrist Richard Gardner in 1985 that he called “parental alienation” (PA) or “parental alienation syndrome” (PAS), though it has never been recognized as a disorder or syndrome in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
Gardner actively lobbied against mandatory reporting of child sex abuse and advised that sex between adults and children is natural. Before his 2003 suicide, he testified in hundreds of court cases for parents, usually fathers accused of abusing their children. He did this by arguing that the mothers had “alienated,” “brainwashed,” and “coached” children to falsely accuse their fathers.
Rhode Island devoted an entire section of its 2004 Guardian ad Litem Training Manual to Parental Alienation.
Within a year, the National Council of Juvenile and Family Court Judges (NCJFCJ) warned that parental alienation does not meet evidentiary standards and should be stricken from the reports of custody evaluators. NCJFCJ reinforced the warning in their 2008 Judicial Guide to Child Safety in Custody Cases (shown at the top), which is available online at:
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Here are more pages from the NCJFCJ Judicial Guide to Child Safety in Custody Cases
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NEXT: 9. How "Vincent" drove the judges crazy