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California Family Courts Helping Pedophiles, Batterers Get Child Custody 

Wednesday, Mar 2 2011
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While the family courts' desire to equitably divide a child's time led to unfortunate and absurd results in these cases, it has clear historical roots. Decades ago, divorce courts often operated with a bias toward placing children with their mothers. As divorce became more common, however, swelling advocacy from fathers' rights groups started to alter this dynamic. A state law directing the courts to make a presumption of joint custody was passed in 1979, leading to the present inclination toward splitting a child's time more or less evenly between parents.

Joyanna Silberg, a psychologist with the Baltimore-based Leadership Council on Child Abuse and Interpersonal Violence, says this drive to assure each party due parental rights has evolved into a form of judicial prejudice. In cases where abuse accusations are true, she says, this prejudice has the practical affect of abetting the abuser. "What it is, is a family court culture that seems to be about dividing property," she says. "It's not about seeing whether a crime is committed."

Glenn Sacks, the Los Angeles–based executive director of the national fathers' rights group Fathers and Families, disagrees. He asserts that the courts still routinely demonstrate a bias against fathers, and are overly protective of moms and punitive of dads when handling abuse allegations. "They'll err on the side of caution," he says, "without ever stopping to think, 'Why am I erring?'" Even today, he adds, "The courts are very much biased against fathers. Usually it's 'She's the mom, she's the real parent; he's the dad, he's not the real parent.'"

Sacks adamantly defends the legitimacy of parental alienation. He also says that "a lot of the progress for fathers has been undermined by [stricter] domestic violence laws" that punish men for alleged acts of which there is insufficient evidence. To be clear, he says, "Not now or ever do we believe that wife beaters should be getting control of their children."

Sacks' remarks underline another truth about the family courts: Their problems are entwined with gender politics, and as such are difficult to approach. While the system's mistakes affect both mothers and fathers, men are statistically more likely to be the perpetrators of the types of serious crimes that highlight the family courts' shortcomings — as they are in all the cases, substantiated by criminal convictions, examined in this article. The topic of gender's correlation with violent crime is hotly debated, but studies have found that only 6 percent of sex offenses and 5 percent of serious incidents of domestic violence are committed by women.

Attempts to curb the system's capacity for enabling abusive parents have thus been perceived in the past as antimale activism. When state Assemblyman Jim Beall, a San Jose Democrat and chair of the Assembly's Human Services Committee, introduced legislation in 2009 that would have banned the use of Parental Alienation Syndrome in California family courts, strong opposition from fathers' rights groups helped doom the bill.

Some observers say the family courts can be meaningfully reformed only by improving their methods of fact-finding, perhaps through introducing procedures or personnel borrowed from the criminal courts. Seth Goldstein, a former police officer and investigator for the district attorney's offices in Napa and Santa Clara counties who now practices family law, suggests creating interdisciplinary panels — composed of a range of professionals with expertise in child abuse and domestic violence, such as doctors and social workers, or former prosecutors and police officers — to thoroughly evaluate abuse allegations when they arise. "The way that the courts have to work is evidence-based, not theory-based," he says.

Geraldine Stahly, a psychology professor at California State University at San Bernardino, likewise says that the family courts need to be revamped so as to devote more attention to evidence — as do other courts of law — rather than the opinions of individuals such as psychologists, mediators, or even judges. "I would like to see judges relying a lot less on psychological evaluations and a lot more on the facts of a case," she says.


What is the likelihood of such changes? With limited audits of two counties' family courts complete, and a third one on the way, it appears that government officials are starting to pay attention to this little-scrutinized branch of the judiciary. Meanwhile, some of the dramatic mistakes of California's family courts have begun to resonate with the public. One such case is that of Katie Tagle, a Yucca Valley woman who paid the ultimate price for the system's lapses.

On Jan. 21, 2010, Tagle appeared before San Bernardino County Family Court Judge Robert Lemkau to ask for a protective order against her ex-boyfriend, Stephen Garcia, who shared custody of their 9-month-old son, Wyatt. Over the previous few days, Tagle had received disturbing messages from Garcia threatening to kill their son if she didn't reunite with him. She described "e-mails saying that [Garcia is] going to take his life and our son's life at the lake the next time he gets him, and if he doesn't do it that day, he will finish the job later."

Lemkau refused to modify the joint custody order that was in place. "My supposition, ma'am, is that you're lying," he said. "But if I'm incorrect, you can always bring another ex parte motion, but don't misrepresent the situation. If you're lying about this, there's going to be adverse consequences."

Adverse consequences were imminent, though not the ones Lemkau imagined. Within two weeks, Garcia sent Tagle a suicide note while Wyatt was in his custody. When police tracked him down, a car chase ensued through mountains above San Bernardino. Just after 1 a.m. on Sunday, Jan. 31, Garcia shot his son, and then himself.

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Peter Jamison

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