PBS’s Breaking the Silence: Family Law in the Funhouse Mirror

By Jeffery M. Leving and Glenn Sacks

The controversial new documentary Breaking the Silence: Children’s Storiesairs Thursday on Public Broadcasting Service stations across the country. In the film, co-producers Catherine Tatge and Dominique Lasseur sound the alarm over an alleged crisis of fit mothers losing custody of their children to abusive husbands.

The documentary centers around Karen, who lost custody of her three children to her husband after a court-appointed evaluator found that she had falsely accused him of sexually abusing them. As the film notes, mothers like Karen are increasingly vocal and visible. Their cause celebre is Manhattan, New York ex-model Bridget Marks, who appeared on Dr. Phil, Larry King Live, and The O’Reilly Factor after she briefly lost custody of her twin 4-year-old girls under similar circumstances last year.

Despite the film’s claims, such custody transfers are very rare, and usually happen for a good reason. In Marks’ case, for example, the trial court judge and all four New York appellate court judges who heard the case concluded that Marks had coached her girls to believe that they had been sexually molested by their father.

Breaking the Silence ignores a far more common phenomenon—divorcing mothers’ tactical use of false allegations of sexual abuse. When a father who has daughters seeks joint custody over the objections of a recalcitrant mother, it is standard legal practice to advise the father that a charge of sexual abuse may be coming. According to a study published inSocial Science and Modern Society, the vast majority of accusations of child sexual abuse made during custody battles are false, unfounded or unsubstantiated.

False domestic violence allegations are an even greater problem. The filmmakers portray abused women as the victims of sexist judges who refuse to believe them, and who punish them for claiming abuse. In reality, courts are often very tolerant towards false allegations of domestic violence, and divorcing mothers frequently use domestic violence restraining orders as tactical weapons to secure custody.

Many courts grant restraining orders to practically any woman who applies, and research shows that these orders often do not even involve an allegation of violence. Once the order is issued, the father is booted out of his marital home and can even be jailed if he tries to contact his own children.

By the time the court decides custody, a firm precedent has already been set that mom is the primary caretaker, and she will likely get sole (or de facto sole) custody. The father is pushed to the margins of his own children’s lives even though he has never been found guilty of any wrongdoing or criminal offense. Nevertheless the filmmakers advocate that domestic violence policies be made even more draconian. This amounts to a doctrine of “moms never lie,” giving mothers veto power over fathers’ fatherhood.

The filmmakers also contend that abusive fathers use claims of Parental Alienation Syndrome—the phenomenon of a custodial parent turning his or her children against the noncustodial parent after divorce or separation—to get courts to secure them sole custody of their children.

To be fair, it is true that there are fathers who have alienated their own children through their abuse or personality defects, and who unfairly blame their children’s mothers by claiming PAS. Yet parental alienation is a common, well-documented phenomenon. For example, a longitudinal study published by the American Bar Association in 2003 followed 700 "high conflict" divorce cases over a 12 year period, and found that elements of PAS were present in the vast majority of them.

The cruelty PAS visits upon children and the fathers they love and need would be hard to overstate. One prominent example is the LaMusga case decided by the California Supreme Court last year. In that case Gary LaMusga’s son’s kindergarten teacher testified that LaMusga’s ex-wife asked her to keep track of the time Gary spent volunteering in his little son’s kindergarten classroom so it could be deducted from his visitation time with his son.

According to the teacher, the kindergarten boy told her "my dad lies in court," and said that his mom had told him this. The teacher testified:

"I finally sat down with him and told him that it was OK for him to love his daddy. I basically gave him permission to love his father. And he seemed brightened by that…I’m not sure that he was aware that he could do that."

While one can always find an unusual case or ruling, as Tatge and Lasseur have, fit mothers rarely lose custody of their children. The view of family law propounded in Breaking the Silence is not accurate, but is instead reflective of the grave distortions put forth by misguided women’s advocates. It is family law in the funhouse mirror.