Why This Mother Was Not Heard

Sunday, April 13, 2008

The Castillo family's tragedy ["Deaths of 3 Children Test Md. Legal System," front page, April 6] highlights family courts' failures to protect children in the context of custody litigation. The question permeating media coverage is why the courts allowed Mark Castillo unsupervised access to his children, despite their mother's pleas that they needed protection. Mark Castillo's specific threat -- to kill the children and leave Amy Castillo with "nothing" -- was ignored by both the courts and the psychological evaluators, as was his history of suicidal actions. Had the request for protection come from the state, instead of the mother, the court would have listened.

The reluctance of custody courts and evaluators to suspend paternal access to children despite specific threats to kill those children (and their mother) should be seen as nothing short of astounding. In no other world would we expect authorities to grant unfettered access to children to someone who had threatened to kill them. Yet in family court, the obvious risk becomes obscured. Courts become blinded by the parents' battles. Thus, mothers are believed to fabricate or exaggerate dangers posed by fathers. Fathers (and mothers) are assumed to say things they don't mean in the heat of a "bitter custody dispute."

These stereotypes are generally false. Mothers rarely fabricate or exaggerate the dangers they see. And parents who make threats rarely do so for the first time in litigation. "Bitter custody disputes" do not arise in a vacuum -- most arise in the context of mothers seeking to end abuse or protect their children. When they go to court, however, mothers' fears are suspect, simply because they are in a custody battle. In the Castillo case, the judge and evaluators apparently felt that Amy Castillo was "biased" and not credible, in part because she continued to have sex with the father and allowed him to see the children. However, mothers have few means of protecting their children from dangerous fathers.

When they flee, they face parental kidnapping prosecutions or loss of custody, as in a case now pending in the D.C. Court of Appeals. And it is well established that "acting normal" with an abuser can be a survival strategy -- Castillo told the court she was (rightly) afraid to refuse sex. David L. Levy's April 6 Close to Home piece made the bizarre suggestion that Maryland needs more joint custody. "Bitter custody battles" make parents "nuts," he wrote. This ignores the critical fact that Mark Castillo's abusive behavior was the cause, not the effect, of that "battle."

Levy also, strangely, urged courts "to provide more psychological evaluations." If this case teaches anything, it is that standard psychological evaluations are worse than useless. But lethality risk assessment in domestic violence teaches what Levy and the evaluators apparently do not know: Two major red flags for familial homicide are threats to kill and suicidal tendencies. Had either evaluator possessed this expertise, they might have had more respect for Amy Castillo's fear.

Contrary to stereotypes, most divorcing mothers do not seek to deprive the children of their father. Most settle out of court. Only about 20 percent of cases become "contested custody litigation." It's not surprising that a large proportion of these "bitter custody disputes" involve violent or abusive fathers.

It is time courts faced the truth: Custody litigants frequently have a history of abuse. Men who abuse their partners often pose a threat to their children. Most women seeking to restrict fathers' access to their children are doing so out of legitimate fear for their well-being. And too many children are delivered to dangerous fathers by family courts that prioritize fathers' "rights" over children's safety.

Not a pretty picture. And not one that, if we care about children, can be ignored.

-- Joan S. Meier


The writer is executive director of the Domestic Violence Legal Empowerment and Appeals Project at George Washington University Law School.

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