The Facilitating System of the Family Court

Earlier this month I made a presentation at a conference, organised by the University of California, Irvine’s Initiative To End Family Violence, in conjunction with California Protective Parents. In my presentation I made some brief points about what can be called the “Facilitating System” in and around family courts that I think could do with some elaboration. These are the ideas and incentives that facilitate, not alleviate, abuse.

Globally there are a number of common traits that family courts are exhibiting which is making it incredibly difficult for mothers to protect their children from abusive fathers. I highlighted what I have been seeing as three structural issues that are leading to these brutal and often fatal decisions that family courts are making.

The first is the economic incentives around the family court system. This is what I’ve previously described as a “repugnant market” — when a market forms around servicing the demand for something that is unethical or amoral. In the family court’s case, the demand comes from abusive men not wanting to face consequences for their behaviour and wishing to maintain their household authority. These are powerful desires which men will pay a lot of money to protect.

Lawyers, psychiatrists and professional witnesses all see facilitating this desire as a lucrative opportunity. The concept of “parental alienation” has become the best tool to service this demand.

It’s worth reading an extraordinary exchange that took place in a family court room in Pittsburgh, Pennsylvania, earlier this year. This will give you a sense of not just how “parental alienation” is being advanced into the family court, but the lengths professional witnesses will go to in order to defend their income.

Here, a lawyer (Richard Ducote) acting for the mother was asking a professional witness (Robert Evans) -– acting for the father — a number of questions about the ethical basis of parental alienation. The questions were blunt and brutal, but it is the responses that are truly shocking:

Ducote: Can a parent inflict more damage by parental alienation to a child than the parent could inflict by, say, breaking the child’s bones?

Evans: Conceivably, yes.

Ducote: How about, you have a four year old child, and the parent punches the child in the face and leaves two black eyes. Could in your opinion, parental alienation be worse for the child than that?

Evans: Potentially, yes.

Ducote: Okay. How about if you have a 4yr old, and the father forces the child to perform fellatio on him. Could that be less harmful to the child than parental alienation?

Evans: Potentially, yes.

Ducote: How about the father actually fully penetrates his four-year-old daughter’s vagina with his penis. Could that be less harmful to the child than parental alienation?

Evans: Potentially.

Ducote understood that professional witnesses like Evans have become dangerously entrenched in the family court system, and as they continue to grift off the vulnerability of children it has become an ethical imperative to demonstrate their lack of credibility. Yet, Evans, needing to protect his source of income, unashamedly sticks to the grift, maintaining an appalling commitment to the idea that lack of normalised contact with a father is what is truly damaging to children, regardless of how much violence and abuse is inflicted on them.

There is another element to this repugnant market though. The counter-desire of mothers whose instincts are always to protect the safety and well-being of their children creates another powerful demand. The two demands — avoidance of consequences and the need to protect — work in concert with each other in order to create a continuous need for the services of those who profit off the abuse of children. It’s a system designed to keep parents engaged in the process for as long as possible.

The second component of the Facilitating System is the professional incentives. “Parental alienation” has become entrenched in the system because it is a gatekeeping device for psychiatrists and guardians ad litem. There is no power for these actors within the system if the reason why children are reluctant to engage with their fathers is obvious. If anyone can tell you it is because these children are afraid of their fathers then the services of these professionals are redundant.

Therefore it is important for their careers to bring a layer of complexity into the situation. To say, no it’s not fear, it’s actually brainwashing, and that they — and only they — are the ones who understand and can explain this brainwashing. Judges need to defer to their assessments, not follow the rational and logical lines of enquiry. This gives these actors far greater power within the system, and a greater ability to influence outcomes themselves. So although “parental alienation” has no professional credibility, it still maintains huge professional incentives.

The third component of the Facilitating System is the socio-political calculations. The most obvious calculation is that the state still sees the household as a domain of male authority. Women and children who report abuse are defying this authority and the state feels the need to punish them for it. It is a way of legally enforcing a cultural attribute. For those of us who live in the 21st Century this can seem brutal and absurd. Yet culture is often incredibly difficult to shift and the idea men do have the right to enforce their household authority through violence was the norm until very recently. Many people still believe this, even highly educated judges.

The other socio-political calculation that these courts are making is that the state is worried about what these men will do if it doesn’t submit itself to at least some of their demands. There is a belief that male violence is an inevitable aspect of human existence; men lust for power and control and they use violence as a tool of their power and this is never going to change. The state’s assessment is that it needs to minimise this violence by not risking aggravating men.

So here the state asks women and children to carry a certain amount of male violence for our societies. This is because there is a fear of wider forms of violence from either lone wolves like Leonard Warwick or from more organised male supremacist groups if these men feel that their need for power and control isn’t being respected. It’s basically a form of cowardice from the state because it feels that it has no solution of how to handle these types of men. So women and children have to suffer for the state to protect itself.

All three of these components are working either separately or in conjunction with one another in order to consistently produce appalling outcomes from family courts globally. This is why mothers and children frequently feel that they are in no-win situations, because the abuse at home is mirrored and compounded by the abuse of the system.

I am a Melbourne-based writer, and a contributing author at The Diplomat. Twitter: @grantwyeth