By Brittany K. Bandani
Thirty years ago, less than 2% of custody and visitation disputes involved any allegations of child sexual abuse, despite it being an alarmingly common occurrence in this country. Today, as more survivors of child sexual abuse come forward, a troubling trend has emerged—mothers who allege paternal sexual abuse of their children are more likely to lose custody, despite conservative estimates finding those claims to be valid at least 50% of the time. Punitive responses to abuse allegations in family court are pervasive, and allegations of child sexual abuse by a protective mother against the father in particular carry the weight of lengthy litigation, exceedingly high court costs, and further trauma inflicted upon the children. In Massachusetts, specifically, the odds are stacked against mothers. Despite overwhelming social attitudes and false beliefs that mothers are favored in custody disputes, fathers seeking custody obtain either primary or joint physical custody over 70% of the time. While a growing number of cases demonstrate a clear gender bias in the discrediting of abuse allegations in court, neither the Massachusetts family court system nor the state legislature seem inclined to consider why this problem continues to plague families, or how to remedy it.
“Parental Alienation Syndrome” (PAS) or its similar iteration, “Parental Alienation” (PA), is a legal strategy disguised as a psychological theory. Since its inception in the 1980s, shoddy scholarship has produced an extended campaign of misleading, misrepresented, and downright inaccurate medical, psychological, and legal information. The mythical concept, as proffered by its founder Richard Gardner, is that child sexual abuse allegations are “fabricated by vengeful or pathological mothers.” Gardner, who committed suicide in 2003, invented this “syndrome” backed by unsubstantiated, unscientific claims in an effort to discredit women in custody litigation and mischaracterize mothers who allege child sexual abuse against fathers as profoundly destructive, seeking only to alienate their children and brainwash them with false accusations in order to win custody.
Despite being widely denounced by domestic violence experts, the concept of PAS and its progeny continue to permeate judicial discretion, as courts rely on and incorporate the theory’s core principle that mothers will weaponize abuse allegations to punish fathers. For the first national study of its kind, Joan Meier and her team of researchers funded by the Department of Justice analyzed 4,388 custody cases where PAS was at issue and found the following: “When fathers alleged mothers were alienating, regardless of abuse claims, they took custody away from her 44% of the time. When the genders were reversed, and fathers started out with the children, mothers took custody from fathers only 28% of the time. Fathers were overall much more likely to win than mothers by claiming alienation . . . Even when the father’s abuse was considered by the court to have been proven, the mothers who were alleging the abuse still lost custody in 13% of the cases. By contrast, fathers lost custody only 4% of the time when a mother’s abuse was considered proved.”
If fathers responded to a mother’s claim of any type of abuse with a counterclaim of PAS, then the mothers were “twice as likely to lose custody as when fathers did not claim alienation.” The study’s conclusion yielded a chilling reality: alienation matters more than abuse. So how can we take heed of this information? Do mothers simply stop reporting the allegations of child sexual abuse for fear that fathers will retaliate with an alienation claim?
As currently written, the relevant and applicable statutory authority in Massachusetts reads as follows: “In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, ‘abuse’ shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. ‘Serious incident of abuse’ shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress.”
The law goes on to stipulate that a finding of abuse (as defined within the statute) by a preponderance of the evidence creates a rebuttable presumption that “it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent.” This rebuttable presumption can be overcome if the opposing party can establish by the same evidentiary standard that custody is in the best interests of the child. Two primary issues with this statutory construction as it relates to child sexual abuse are 1) the use of the term “involuntarily” when referring to sexual relations, and 2) the use of language rooted in physical violence when referring to “force, threat or duress.”
Children are not endowed with legal agency to the extent that the law recognizes their consent to underage sexual activity, so the state legislature’s choice to include “involuntarily” in the statutory language is puzzling, especially when this provision is referring to the issuance of custody orders, implying that the sexual relations could occur, if shown, between a child and the child’s parent. In Massachusetts, it is against the law to have sex with anyone under the age of 16, even if you are also under 16. It is also illegal to commit incest. The statutory confines of incest make criminal “relationships between persons related by blood or adoption.” Within this legislative framework, it makes little sense that § 31A should specify that the sexual relations must be involuntary, even if the provision includes both parent-to-parent and parent-to-child conduct, because parent-to-child sexual conduct should not specify a consent requirement. Section 31A dedicates exactly one sentence to child sexual abuse—that is not enough.
Moreover, the use of the language “by force, threat or duress” negates the insidious nature of the abuse itself, and replaces it with an outdated notion that all sexual abuse is overtly violent. Domestic violence is not always violent—it is about power and control—and an abuser who maintains dominance in an abusive relationship (although often expressed through physical violence) relies on stripping the victim of their autonomy and making them feel essentially powerless. In child sexual abuse, the child almost always knows or has a close relationship with the perpetrator, so in custody litigation (where the alleged abuser is a parent), that relationship is even more significant, because the balance of power is already beyond the control of the child, who depends on the parent for care, guidance, and survival. A child engaging in sexual behavior with a parent whom they trust will not necessarily understand what is happening until much later, when symptoms of Post Traumatic Stress Disorder, anxiety, depression, and other chronic health issues surface.
Child sexual abuse overwhelmingly affects a disproportionate number of girls than boys. This does not mean boys are not affected, and there are doubts as to the statistical accuracy because boys are more likely to underreport; but in the aggregate, girls are more likely to fall victim to child sexual abuse, by exceedingly wide margins, across multiple demographics.
Some advocates have already begun the work to dismantle the courts’ misuse of PAS that wrongfully closes the door on preventing visitation with the alleged abuser. In criminal and civil courts, PAS has long been ruled inadmissible and unscientific, though family courts have yet to adopt an outright repudiation of the persistent theory. The more data made available demonstrating the clear gender bias in custody cases, the stronger the persuasion will be for scholars, forensic experts, attorneys, and judges to recognize the realities of abuse and how mothers are treated in court. Right now, PAS serves as a vehicle for negating legitimate claims of child sexual abuse. More well-executed and in-depth research studies must be funded and provided for reference if mothers ever hope to have a fair fight. Though most divorce proceedings are settled with minimal court intervention, the ensuing custody litigation that can take place finds family courts reluctant to believe mothers, and instead label them as “unstable, hostile or alienating.” More viable data means a stronger case for change, and more funded research studies can help make that happen.
The state legislature of Massachusetts must amend § 31A to include a provision addressing the seriousness of child sexual abuse, irrespective of incidents that may occur between parents, which rightfully should indicate a consent requirement. Children should not have to prove consent, force, threat, or duress. The standard should be any sexual contact whatsoever between the parent and the child, shown by a preponderance of the evidence. Furthermore, the particularly heinous nature of sexual abuse as distinct from other forms of physical abuse should not create a rebuttable presumption which may be overcome at the same evidentiary standard. Child sexual abuse allegations need to be considered on the merits without falling prey to prejudice from a defense of alienation. The law needs to reflect our evolving standards of decency as a society, as more cases of child sexual abuse are coming to the surface because more women and girls, especially, are now empowered to reclaim their agency in the context of domestic violence and subsequent custody litigation.
It is time for a conversation about why we are so quick to dismiss and invalidate legitimate claims made by mothers—and why, when mothers know the risk they take in coming forward with allegations of child sexual abuse—judges remain hesitant to reject the gender bias in PAS claims asserted by fathers as a defense. At the broadest level, fathers are successfully delegitimizing otherwise valid claims of child sexual abuse with alienation defenses; fathers are favorably winning custody litigation; and mothers are not being believed. This reality has the capacity to change, but that change cannot happen until the underlying prejudices are addressed and the systemic societal beliefs about child sexual abuse are confronted with radical honesty.
Through expanded research efforts, legislative intervention, and a sociocultural reckoning with our evolving societal values, the problem of gender bias and subsequent undermining of child sexual abuse allegations in custody litigation can hopefully be addressed. It is time to believe mothers and take the claims of their children seriously.
Brittany is currently finishing her final semester at Western New England University School of Law. She has a concentration in Public Interest Law and is a proud member of the Western New England Law Review.