You can read the submission here. Posted by permission implicit in that all submissions will be included in a public document.

This submission by The Women’s Coalition [hereafter “Coalition”] is in response to the Call for Input by the UN Human Rights Council Special Rapporteur on Violence against Women regarding child custody cases. 

Women in countries all over the world are being maltreated in family courts, wrongly deprived of custody, and unable to protect their children. The Special Rapporteur has requested input on many issues surrounding this “custody crisis”, which the Coalition includes in this submission.

However, in the end, it is imperative to put all these issues into the larger context, so the core cause of the crisis becomes clear. It is not just victims of domestic violence who are affected; women are losing custody whether they report abuse or not. Judges often switch custody to fathers who want it, for whatever reason, often to reduce child support or punish their ex for leaving. 

This ubiquity supports the core cause of the crisis being systemic male entitlement and the concomitant discrimination against women, rather than the improper handling of women’s reports of violence or abuse. The custody crisis needs to be understood as essentially about power, not abuse—about judges maintaining age-old male entitlement and control in the family, i.e. persisting patriarchy. Only then can an effective solution be identified that gets at the root of the problem. It is the Coalition’s contention that reforms made within the Family Court system will not get to the source of the problem and that a new system is necessary.

SURVEY

The Coalition conducted a last-minute survey after hearing about the Call for Input a few weeks ago. There was no time to translate it into other languages, otherwise there would have been many more participants. Even so, 518 mothers from 21 countries took part: Argentina, Australia, Austria, Canada, Colombia, Denmark, England, France, Germany, Greece, Ireland, Japan, Mexico, New Zealand, Portugal, Scotland, Singapore, South Africa, Sweden, Trinidad and Tobago, and the United States of America.

This survey represents a convenience sample and is not meant to be representative of all family court cases. The survey provides quantitative insights on cases in which mothers have lost custody or have been unable to protect their children. Tens of thousands more cases have been compiled qualitatively by the Coalition and other civic organizations worldwide, attesting to women’s lived experiences.

DISREGARD OF ABUSE

The Special Rapporteur stated the aim of the investigation is to “document the many ways in which family courts ignore the history and existence of domestic and family violence and abuse in the context of custody cases”. “Ignored” is the operative word, as countless mothers report judges are disregarding strong and credible evidence. 95% of mothers surveyed reported that their judge ignored, dismissed, or minimized evidence of violence, abuse, unfitness, or other negative facts about the father.

Judges often issue gag orders or seal cases to keep injustices concealed and disempower mothers. In some jurisdictions, cases are automatically confidential. This is consistent with the patriarchal narrative that abuse is a “private family matter”. It is not. Abuse of women and children is a societal issue.

MISUSE OF PARENTAL ALIENATION

The Special Rapporteur’s Call for Input states there will be special emphasis on “parental alienation and related concepts”. A dictionary definition and common usage of the term is, “Alienation is when one person causes another person to be indifferent, hostile to, or estranged from someone”.

Thus, alienation exists on a spectrum from indifference to complete estrangement. Although it has not been established as a valid scientific construct, it is indisputable that parents sometimes engage in this behavior and that it is harmful.

The problem with alienation is not that it is unscientific. It is that judges are falsely finding mothers have alienated their children by coaching or influencing them to say their father abused them. But, as our survey demonstrates, judges often use other false accusations to switch custody, the most common being that mothers are lying or mentally ill. Judges also often claim that being with the father is in the child’s best interest, or that it is a father’s right to be with his child, regardless of abuse. 

However, there is an arguably much more serious problem with the discussion around parental alienation that does not get much attention: judges are enabling fathers to truly alienate children from their mothers. The main way judges do this is to severely restrict or eliminate children’s contact with the mother, which can cause them to form a trauma bond with their father. 

Another way is that judges order children into “reunification therapy”, the problem with that being it is not really therapy children are getting. Judges appoint mental health professionals who will “coercively persuade” (i.e. brainwash) children to recant abuse and comply with living with their father. Judges rarely order reunification with mothers because the goal is to keep the father in control.

Much activism is focused on invalidating and prohibiting the use of parental alienation or reunification therapy in family courts. However, it is neither parental alienation nor reunification therapy that is the problem. The problem is that judges have the power to falsely find mothers to be alienating to justify switching custody and appoint therapists who will help alienate children from mothers.

Prohibiting the use of alienation or reunification therapy, as many organizations and activists are pushing for, will not be effective because, as the survey shows, judges can simply use other terms or something else entirely. So, the Coalition strongly advises the Special Rapporteur not to recommend it be abolished. The Human Rights Council taking that position could do much harm to women who have been truly alienated and to the effort to end the crisis.

Instead, it would be helpful if a statement is made clarifying the real problems with parental alienation and urging women who’ve been falsely accused to unite with women who’ve been truly alienated. Women will have more power fighting together for an effective solution, such as the new system proposed. 

COURT-AFFILIATED PROFESSIONALS

Judges regularly appoint children’s legal representatives, custody evaluators, therapists, mediators, and others, on whom they supposedly rely in making their custody decisions. But they inevitably choose professionals who can be counted on to steer cases to the father.

Although there is activism to require stricter regulation, higher qualification, and more training for court officials, that will not significantly change outcomes, since the actions of the appointees are mere reflections of the judges’ wishes. Also, judges can simply ignore them if they don’t say what is expected.

THREATS AND PUNISHMENT

Threats and punishments serve to not only discourage women from continuing their own efforts to protect their children, but also send a message to other women to cease and desist. Judges and other court officials often threaten mothers to get them to comply with orders to make their children visit unsupervised or live with an abusive father, or to stay quiet about abuse.

Judges not only threaten mothers, they actually restrict contact with children to punish them for challenging male authority in the family. Mothers are also being criminally indicted after going into hiding to escape abuse. Law enforcement and the criminal justice system often aid and abet family court judges by prosecuting them. 

Thus, contact with children is being used by judges as leverage, not in their best interest.

GRAVE CONSEQUENCES

Many women not only suffer psychologically, but are losing their homes and careers and being financially devastated. Some succumb to suicide.

More than half of the mothers in the survey said they considered running with their children, and 15% fled anyway, many of who were imprisoned. The Hague has failed women who run, ordering them back to return children to the abusive father.

Children almost always suffer from psychological problems and many from educational problems, substance use issues, suicidal ideation, and some children also succumb to suicide. Both mothers and children are being rendered unable to fulfill their human potential.

HUMAN RIGHTS VIOLATIONS

The Universal Declaration of Human Rights enumerates certain inalienable rights guaranteed to all citizens. Equal protection under the law is set out in Article 7. The right to a fair hearing before an impartial tribunal is set out in Article 10. The right to be free of torture and cruel, inhumane and degrading treatment is set out in Article 5.

Articles 7 and 10 establish the right to due process and prohibition of sex discrimination. A whopping 98% of mothers surveyed reported their judge discriminated against them. However, it should be noted that this is not simple discrimination due to unconscious bias or gender stereotyping. It is deep, systemic discrimination executed for the purpose of empowering men in their role as fathers.

Of course, there is no way to prove a judge discriminated against or tortured a mother psychologically, but it is important to credit women’s lived experiences in the courtroom. These human rights violations need to be prevented, not remedied. Judges must be prevented from committing them in the first place.

CONCLUSION

The family court system is greatly harming women and children around the world. Women are being deprived of custody and the ability to protect their children, along with being financially devastated. 

It should not be surprising that men created a system that perpetuates their power in the family after women gained financial independence and the ability to divorce. In order for women to regain the power they had to keep and protect their children before patriarchy took hold, a new system is needed which provides them due process and equal protection.

The Coalition has attempted to establish in this submission that the issues of interest to the Special Rapporteur are all means or results of judges making rulings that maintain male power and control in the family. The reason Family Court judges are able to entitle fathers and oppress mothers is because they have, in effect, absolute power, and there is no effective means of oversight or remedy. Besides, unjust rulings need to be prevented, not remedied, as children suffer greatly in the litigation process. 

Because of this, reforms within the present system will not make any significant difference. Custody cases must not be heard in family courts.

The Coalition has drafted legislation in which custody cases are removed from family courts and heard in regular, public civil courts with the right to a jury. This will provide for due process and equal protection, while precluding judges from inflicting torturous and degrading treatment on litigants, thus preventing the human rights violations being committed in family courts. The Coalition is willing to work with the Special Rapporteur or others within the Human Rights Council or other UN body to create a framework to be used internationally.

REQUESTS

The Coalition hereby requests the Special Rapporteur make three recommendations in her report to the Human Rights Council: 

·       First, that the Council should identify the human rights violations identified by the Special Rapporteur are a result of “systemic male entitlement and the concomitant discrimination against women”. 

·       Second, that the Council should establish that reforms within the present system will not prevent judges from committing human rights violations, hence, the right to a jury trial in a regular civil court must be guaranteed, along with other due process protections. 

·       Third, that the Council should form a task group that communicates with The Women’s Coalition and other women’s rights organizations to create an international framework for a process that will provide justice and protection in custody cases, and where the Coalition’s proposed Child Custody Act may act as a guide in this process. 

Finally, it is The Women’s Coalition’s earnest stance that this approach is the only way women’s human and civil rights will be effectively upheld in custody cases. Non-abusive men who truly want the best for their children will also benefit from this new and just process.

Respectfully submitted to the UN Special Rapporteur this 15th day of December 2022

Cindy Dumas

Founder and Executive Director of The Women’s Coalition