Six years ago, in 2010, an appellate court in Tennessee affirmed a family court ruling that had awarded Darryl Sawyer* primary custody of his six-and-a-half-year-old son, Daniel.
The court ruled in favor of Sawyer despite evidence presented by his ex-wife that alleged he had sexually abused their child.
Three years earlier, Daniel returned from a visit with his father with suspicious bruises on his bottom. His mother, Karen Gill, immediately took the three-year-old boy to his pediatrician. “Your instant reaction is that you don’t want it to be what it appears to be,” Gill said, choking back tears at the memory. “You really hope there’s another reason for why he has these marks on him.”
But the doctor, Victoria Rundus, confirmed Gill’s worst fears. Dr. Rundus reported to the Tennessee Department of Children’s Services that she found reddish blue bruises on the child’s buttocks that could only occur from an adult “holding his buttocks forcibly open.” Gill thus began a long, arduous battle – that continues to this day – to protect her son.
Gill expected resistance from her ex-husband, but was surprised and shocked to find herself facing an even more formidable obstacle to her son’s safety in family court.
By the time the case was heard by a Tennessee family court judge in 2008, the state’s Department of Children’s Services had already investigated and had determined that Sawyer “‘was indicated’ as the perpetrator of sexual abuse of [their son],” according to court records.
Nevertheless, the family court judge granted primary custody to Sawyer, warning Gill that if she wanted unrestricted visiting rights with her son, she had better quit talking with the boy about the alleged abuse by his father. What’s more, she had to stop taking her son to doctors to be examined for signs of abuse.
Why did the court give the boy to his father despite credible evidence of abuse? It turns out the family court relied heavily on the recommendations of William Bernet, a psychiatrist and court-appointed custody evaluator. He convinced the family court to ignore the medical report, stating that Sawyer was not a pedophile or child molester and should be awarded custody of Daniel.
Other factors played into the court’s decision as well. Gill had earlier tried to restrict Sawyer’s access to the boy based on allegations that the court deemed unfounded. Gill’s suspicions were aroused, she said, because Sawyer had told her of a family history of incest. She feared Sawyer, in turn, would abuse his own children. Other allegations included comments by her ex-husband that “Satan speaks to him,” physical and verbal abuse toward her and threats of suicide. None of this, the court said, could she prove.
Dr. Bernet declined to comment on the case.
But family courts have a different focus, explained Ducote, who also worked as a special assistant district attorney statewide in Louisiana prosecuting termination of parental rights cases. In theory they are supposed to consider first the best interest of the child. But in practice, Ducote said, “They’re concerned with the reduction of conflict [within the family] and getting along, which is good unless there is someone you need to protect the child from.”
Court records are often sealed, a practice intended to protect the privacy of children. As this investigation shows, however, it’s a practice that can put children in greater danger by blocking outside oversight.
Moreover, the high cost of litigation throws up a formidable obstacle for most parents fighting to get their children out of harm’s way. There is little research on court costs, but a preliminary analysis of a national survey of 399 protective parents by Geraldine Stahly, emeritus professor of psychology at California State University, San Bernardino, showed that, for some 27 percent of these parents who ultimately declared bankruptcy, the costs were about $100,000.
No government agency tracks the number of children nationally that family courts turn over to their abusers, and existing academic research is largely regional. Advocates have tried to put a number on it by culling statistics from primary and academic sources. They estimate that at least 58,000 children a year end up in unsupervised visits with or in the custody of an abusive parent. A 2013 analysis in the Journal of Family Psychology cited studies that show that anywhere between 10 and 39 percent of abusers are awarded primary or shared custody of their children.
However difficult it may be to quantify, high-level government officials recognize the breadth of systemic failure. “It’s a terrible situation,” said Lynn Rosenthal, who served as the White House Advisor on Violence Against Women from 2009 to 2015. Before going to the White House, Rosenthal personally saw the extent of the problem while working with many state coalitions on child welfare and domestic violence. “We saw this all over the country,” she said.