Family Courts’ ‘Cottage Industry’ Skirts Law to Separate Children from Fathers

January 26th, 2012 by Robert Franklin, Esq.

Aptly entitled “Ripped Apart,” Nina Shapiro’s article describes not only the plain anti-father bias of King County, Washington’s family courts, but as well the main excuse for it – spurious domestic violence accusations by mothers.  Here’s Shapiro’s article again (Seattle Weekly, 1/18/12).

As I said in my previous piece, that’s in line with the findings of a study by Margaret Brinig and Douglas Allen regarding Oregon family courts.  Back in 1997, 
the Oregon legislature attempted to reduce the number of cases resulting in sole custody to mothers, only to be thwarted by the law’s domestic violence exceptions.  Put simply, allegations of domestic violence by mothers, often accompanied by little or no objective evidence, were sufficient to deny to children a relationship with their fathers post-divorce.

It’s not included in Shapiro’s piece, but the recent case of Solomon Metalwala is an excellent, if tragic, example of the genre.  Metalwala’s wife had been diagnosed as having emotional problems that were serious enough to at first get him custody of the couple’s two young children.  But, once out of the mental hospital, his wife leveled domestic violence charges against him that had virtually no evidence to support them.  Sure enough, that was enough to lose Metalwala all contact with his children for a time.  That was later replaced with closely supervised visitation.

Then one of the children went missing.  His mother reported two-year-old Sky Metalwala had been abducted by persons unknown from her car when she’d left him there and gone to get gas.  No one, including the police believes her story and yet the child has still not been found, either dead or alive.

I’ve argued before that the commissioner who issued the no-contact order against Metalwala is at the very least complicit in Sky’s disappearance.  She knew the danger of giving custody to the child’s mother, but used questionable claims of domestic violence as an excuse to do so.  As if to make the point, custody of the older child was returned to Metalwala shortly after Sky’s disappearance.

What had changed?  Had Metalwala suddenly gone from an abuser to a non-abuser?  Of course not.  He was never an abuser to begin with, but with egg running down her face, the family court judge couldn’t very well keep up the pretense that it was Metalwala and not his wife who was the deficient parent.

As I mentioned in my previous piece, one of the amazing facts to come out of Washington State’s data on child custody cases is that, when the mother has a “risk factor” and the father none, the father still only gets custody in 24% of cases.  “Risk factors” are things like abuse or neglect of children, drug or alcohol abuse and mental health issues.  Sure enough, Solomon Metalwala had no risk factors and his wife had one – mental health problems – but she was given custody of the children.

Nina Shapiro hits all the high points about how claims of domestic violence are used to come between fathers and children.  She starts with “Jim,” who came home one evening to find a police officer with a suitcase with some of his belongings and a no-contact order courtesy of his wife and a commissioner of the family courts of King County.

In it, his wife wrote that she felt like she had to “walk on eggshells” around Jim due to his unpredictable temper. He would scream to such an extent that “veins in his neck were bulging” and “spittle from his lips was hitting me in the face.” She also described him yelling at their dogs, roughly handling their cat, and driving aggressively and recklessly.

But there’s one thing she never claimed—that Jim had ever hit her or their son. Nor did she accuse Jim of threatening either of them.

Jim, an insurance agent periodically unemployed, had at times performed more child-care duties than his wife, according to a court-assigned social worker hired to assess each spouse’s parenting skills. Observing interactions between Jim and his son, and talking to friends, relatives, and neighbors, she called the bond between them “relatively strong, happy, interactive, comfortable, playful, and full of physical play and affection.” Yet it would still take 15 months for Jim to be allowed to have normal visits with his son.

It’s a familiar refrain; domestic violence needn’t have anything to do with – well – violence.  Assume that every word in Jim’s ex-wife’s claim was true.  He may have been guilty of being obnoxious and he probably irritated his wife.  But there is simply no way in which a man described as Jim was by the social worker should be kept out of his children’s lives for any amount of time, much less 15 months.

And that of course raises one of the main issues about domestic “violence” restraining orders; many of them don’t even allege violence.  And they don’t need to in order to achieve the desired effect – keeping Dad and children separate.

Now, Washington criminal law defines domestic violence as some sort of assaultive behavior.  The problem comes, not from its definition by criminal law, but from the fact that family courts and their various minions simply ignore the definition in favor of their own hugely expanded one.

In Jim’s trial, his wife’s attorney, Jan Dyer, called that bane of fathers throughout the state, Doug Bartholomew as an expert witness.

After noting that he had worked in the field of domestic violence since 1982, providing both risk assessments and treatment, the counselor explained that he didn’t have much use for the definition of domestic violence provided by state law.

The law, Bartholomew said, “is an extremely limiting definition in that basically you have to rape, assault, or kidnap someone, or stalk them. And that doesn’t allow for addressing the bulk of domestic violence.” Instead, he said he had used a “judges’ manual” on the subject that is put out by the state Administrative Office of the Courts. That definition cites “a pattern of assault and coercive behaviors, including physical assaults, psychological attacks, and economic coercion.”

Bartholomew is not alone in using an expansive concept of domestic violence, though there seems to be no one precise definition that is generally understood. Jim’s risk assessment, by a now-retired therapist named Warland Wight, began by listing three definitions: the state law, that of the judges’ manual, and a similar definition that takes into account both physical incidents and “control tactics.”

“What the general public needs to understand is that domestic violence is more than just physical assault,” says Commissioner Ponomarchuk. “It has to do with control . . . When you control the keys to the car and check [your wife’s] cell phone to see if she’s having an affair, that’s control.”

It’s a problem when counsellors, judges and the cottage industry that makes up the DV area of family courts sees the law as little more than a worrisome inconvenience that they’re free to ignore or sidestep in the service of a larger goal of keeping fathers and children separate.  But Bartholomew and others are laudably frank about doing just that.

Indeed, what they’ve done is usurp the law in favor of long-discredited notions of what is and isn’t domestic violence.  One of the many logical fallacies of the DV industry is its claim that, because (according to the DV industry) all DV involves “control,” then all “control” must be DV.  That’s obviously false, but logic has never been the DV industry’s long suit.

In fact, there is a great deal of domestic violence that has nothing to do with controlling the actions of the other person.  Most DV is non-injurious and either a one-time incident or very rare.  A small percentage of DV incidents do involve an effort to monitor and control every aspect of the other person’s life, and include some sort of assault as well.  That’s now called Intimate Terrorism, and is rightly the subject of concern and even intervention by police and courts.

What should have nothing to do with police, courts or child custody is what every couple does with some frequency – make emotional demands on the other person.  The simple fact is that couples do control each other’s behavior and should.  It’s entirely appropriate for a wife to tell her husband “call me when you get there” when he goes on a business trip.  She has a right to know that he arrived safely.  But according to the DV industry, if a husband does the same on a regular basis, he’s an abuser.  To DV “experts” like Doug Bartholomew, it’s cause for losing his children.

And that, among many other things, is how we’ve gotten DV so terribly wrong in this country.

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