Reproductive Rights, Parental Rights, and Family Violence: A Dangerous Intersection
By Joan Dawson
When do reproductive rights end? Do they end at birth? Do they continue throughout a child’s life? Do reproductive rights extend to parental rights? These are questions we are just starting to ask. And finding the answer can be, in many cases, the difference between life and death.
Most agree that women have a right to control their own bodies. However, recent research shows that some men sabotage women’s use of birth control and some use coercion to get a woman pregnant. Abusive men use these tactics to control women. And in cases where a woman then has children in an abusive setting, what are the woman’s reproductive rights and how do these intersect with her parental rights? Surely, charges of “failure to protect” can be used against her if she or the child is harmed. But what happens when women flee such relationships or try to deny abusive parents access to their children? Does either the judicial system or society support her in her efforts to protect her children? Do we believe her? Provide her with protection? Deny abusers access to children?
We are actually witnessing an erosion of protections of women and children in abusive relationships. In this article, I examine the ways in which policies that reflect social biases painting women as “vindictive” liars, combine with the efforts of both alleged abusers to fight to regain control of their wives and children and fathers’ rights proponents are harming women and children trying to escape abuse.
Approximately 100,000 contested child custody cases occur each year in the U.S. Two-thirds of these involve domestic violence, committed overwhelmingly (90 percent) by fathers, according to Harvard’s Jay Silverman, in a forward to the book Domestic Violence, Abuse, and Child Custody. Research finds that men who assault their wives are also likely to abuse their children. While we are likely to believe that the protective parent would gain custody, this is not often the case. In contested custody cases, men who seek custody get it up to 84 percent of the time. The Leadership Council on Child Abuse and Interpersonal Violence estimates that approximately 58,000 children a year go into unsupervised, joint or sole custody with an abusive parent. What’s a mother to do to protect herself and her child?
Failure to protect
In a recent case our judicial system was tested and failed. Katie Tagle sought a restraining order on Jan. 21, 2010 against her ex-boyfriendStephen Garcia to stop him from having unsupervised visitation with their nine-month-old child. She told the judge Garcia threatened to kill the infant. The judge thought she was lying. The court transcript records Judge Robert Lemkau as saying, “One of you is lying…” And later, “Mr. Garcia claims it’s total fabrication on your part.” Garcia also referred to it as “little stunts and games” that “she used” to deny him access to his son. Even when she mentions the evidence of the threats, he says, “Well, ma’am, there’s a real dispute about whether that’s even true or not.” And finally, “My suspicion is that you’re lying…” (said twice). He denied her the order (as did two other judges). Garcia took their son that day and drove off into the mountains. Ten days later they were both found dead.
If this were only an isolated case, it might end there. But it’s not.
Within two weeks of the Garcia-Tagle case, on February 8, 20-year-oldNicholas Bacon shot his nine-month-old son and then himself. Bacon had joint custody.
Shortly after these two cases, 34-year-old Jesus Roman Fuentes shot his four-year-old son during a court-ordered visitation. The boy died at the hospital. The father, who had also shot himself, died this past week.
And following on these three cases, Mark Resch shot his seven-year-old son during a scheduled visitation and then committed suicide. The apparent motive was revenge against his estranged wife. In this case, the wife sought two orders of protection and police removed a gun from the household. Evidently, the family court judge still believed this man was a safe parent.
Mark A. Guenther was charged in the murder of his 18-month-old daughter this month. According to a commenter named Brokenhearten, who posted acomment on the news article:
Her mother tried and tried to get something done so that she did not have to go see her father. She had DFS out to his house, they found nothing...She filed for an order of protection on a couple different occassions...they were dismissed...She refused to let her see her dad until her back was up to the wall...the court systems had tied her hands and she had no other choices but to let her sweet baby go to her dads house and hope that everything was ok...
Once again, parental rights trumped safety and the system meant to protect children ignored the dangers identified by the mother.
Family court and fathers’ rights = A deadly combination
Historically, battered women have had problems retaining custody of their children. Mainly this was due to how they present; in a word, poorly. They cry, they’re frightened, they appear anxious and even hostile. Now add to this mix the Fathers’ Rights movement, a group referred to as anti-feminist, backlash and even, the “Abusers’ Lobby” and you have what amounts to a catastrophe, if not a deadly combination, for women and children. (In contrast, positive parenting or responsible fatherhood groups often work as allies with women.)
The Fathers’ rights movement (along with many Men’s rights activists), has introduced policies such as “friendly parent” policies, joint custody, punishment for false allegations and various syndromes to family courts across the country (as well as in many Western countries and in India). Most of these policies seem beneficial on the surface -- but have hidden dangers lurking underneath.
In today’s courts with friendly parent policies, a battered woman will look anything but friendly. So who gets custody? The one who appears most likely to share parenting responsibilities. Often enough, the batterer.
Joint custody is another policy that sounds fair in principle, but experts warn it is not ideal for couples with high conflict. Family court is, however, known to be “the place” for couples with moderate-to-high conflict. Most couples (roughly 85 percent) resolve parenting plans themselves. Those that can’t, and often enough those with some prior history of abuse or control, go to family court. Fathers’ rights groups would like to see family courts enforce presumptive or mandated shared custody. Experts in domestic violence would not.
Domestic violence experts also cringe at the idea of punishing false allegations, something the fathers’ rights groups actively promote. Since accusations of abuse can be difficult to prove – with evidence and witnesses – this can serve to punish parents for alleging abuse. Punishment deters reporting. Parents can be fined, jailed or denied custody if the judge doesn’t believe their accusation. Domestic violence expert Barry Goldstein says, "Research has established that fathers in contested custody cases are 16 times more likely than mothers to make false allegations. It is not that men are more dishonest, but 90 percent of contested custody cases involve abusive fathers seeking custody to pressure their partner to return or punish her for leaving. Although fathers are more likely to make false charges, courts are more likely to believe them.”
Parental alienation (PA) or parental alienation syndrome (PAS), the idea that a parent poisons the mind of the child(ren), is another idea introduced within the last two decades by fathers rights groups. Developed by Dr. Richard Gardner, PAS is highly controversial. Proponents claim parents (mostly mothers) turn their children against the other parent. Opponents claim PAS can mask child abuse. Indeed, research by Jay Silverman found 54 percent of cases with documented abuse were in favor of abusers. PAS was used in nearly every case.
In many of the cases I’ve cited, had the women tried to deny the fathers access to the children, they could’ve been countered with “alienation” or the judge could’ve immediately transferred custody over to the more “friendly” parent.
In a case stemming from November, for example, Danielle Horvat fled with her three-and-a-half-year-old boy, Garrett Aguilar on a day that she had a dispute with the boy’s father, David Aguilar. She stopped at one domestic violence shelter. Despite the fact that police did not investigate her claims of abuse, the court immediately transferred custody over to the father, as they often do when parents flee.
The incredible lightness of domestic violence
Thanks to the aid of the Internet, (mostly) men that make claims of being falsely accused or alienated find support, encouragement and targets for their anger -- which is aimed at their exes, or women in general and feminists in particular. Individuals and groups that promote studies referring to domestic violence as 50-50 or “mutual” also find supporters within this crowd. Many of these claims are based on studies that rely on self-reportage or pick up common couple violence. Their limitations include using self-report; not picking up severe violence or homicide; not putting violence into context (was it used for self-defense?); and not including violence during separation (the most dangerous time for a woman). What the promotion of these studies has done is introduce the element of doubt. If you combine this with women’s low credibility (due to societal bias and the biases of the legal system), you have danger.
Take the case of Timothy Frazier. In May 2009, Frazier convinced police his ex-girlfriend Candice Dempsey was a threat to their 21-month-old son. While Frazier made it very clear to police he did not have custody, police readily handed his son over to him. Two weeks later, both were found dead.
Even when the woman is believed, it is not often the father will have his parental rights terminated. Last year, Octavious Dupree Gilmore punched his ex-girlfriend in the head and threatened to kill her, their two kids and himself. The Gaston Gazette reported him as saying, “"...(I)f I can't have you, nobody can," Gilmore allegedly told her. "I'll kill you, the kids, then myself." He was charged but later released. According to the article, he was told to "have no contact with the accuser outside of their child custody agreement," (emphasis mine). Despite an assault and death threats, the judge believed this man to be a safe parent.
In another case, charges of domestic violence were not given much weight, as they were not placed in context of the abuser’s history. Craig Alan Wall, Sr. was a suspect in his 5-week-old son’s death. He violated a protection order when he went to his son’s memorial. The prosecutor never mentioned that Wall was a suspect in his son’s case or that he had served a 14-year prison sentence for armed robbery. The judge released Wall on $1,000 bail. Two days later, he stabbed his ex-girlfriend (the child’s mother) to death. She was 29 and left behind a 6-year-old son.
Fathers rights do not trump women and children’s safety
In many of these cases, the women are doing what they are “supposed to do:” reporting domestic violence, filing orders of protection, using shelters, and so on. And yet, despite jumping all the hoops set up for them, in many of these cases, the system is failing them. The women in question are not finding justice for themselves or their children. As a result, we find women who feel forced to stay with an abuser or forced to share parenting rather than not be able to protect her children at all. These women are not “failing to protect,” but the judicial system is failing to protect them and their children from further harm, abuse and death. (For citations to research on women losing custody, see www.leadershipcouncil.org) [Note: organizations like Justice for Children do report men experiencing similar situations, but overwhelmingly we witness women facing this type of bias and injustice in family court.]
Many of the fathers rights guys think their reproductive rights extend to their parental rights. This should also be the case for women -- and, indeed, many mothers’ rights groups have sprung up in defense of these rights. So the question remains: When do our reproductive rights end? How can we we prevent women from losing custody of the very children they bear? How can we help them protect themselves and their children from harm? How can we help women receive justice in a judicial system that may not believe their claims and may actually punish them for making abuse allegations? Fathers do have rights, no doubt, but their rights do not trump women and children’s safety. That is the balance -- the justice -- that we must seek -- and it’s a matter of life and death that we do so soon.
