A Triple Pandemic: COVID-19, Violence against Children, and the Crisis in the Family Courts

Bandy X. Lee ^1* Grace Lee ²

• ¹ Harvard Medical School, Boston, United States
• ² Yale University, New Haven, Connecticut, United States

These incidents are closely linked to family violence and violence against women, affecting about one third of women around the world. 6 Natural disasters and external stressors escalate the risk. 7,8 However, a third, hidden but deadly scourge-the crisis in the family courts-is as much an aftereffect as well as an exacerbator. Victims of violence may seek remedies through social services, including the family court system. 9,10 In many countries, divorce, separation, and child custody issues are dealt with in family courts, with practices that deviate vastly from civil or criminal courts. However, this deviation, originally intended for the protection of children, has instead led to deadly results.Indeed, family courts have become a place where too many vulnerable children go to die. A nonprofit organization has tracked 990 child murders by a separating parent since 2008 in the United States. 11 At the height of the pandemic, between the years of 2020 and 2022, child murders by separating parent increased by 47.8%. 11 An astonishing fact is that, instead of protecting these children, family court judges' decisions have facilitated the murders. 11 A closer look at 175 child murders by fathers showed that, in many cases, the judges had ordered the conditions that allowed for the murders, often over the mother's objections. 12 An even greater number of suicides occur for every murder, 13 and hundreds of injuries are medically treated for every death. 14 And the actual numbers are likely much higher, as routine concealment of records, often against the litigants themselves, has made tracking actual numbers of child murders in the family courts virtually impossible.How does this happen? In the U.S., family court judges have almost unlimited discretion, including the ability to seal records, without oversight or accountability. A net result is that those with few rights, notably children, are violated in ways that multiply their harm. A vast majority of the approximately 100,000 contested child custody cases per year are family violence cases. Abusive fathers disproportionately seek sole custody in these cases, in contrast to trends outside family court, and family courts grant it almost 75% of the time. 15 In the United Kingdom, the first country to compel the opening of family courts to reporters, found that even convicted child rapists were sometimes granted custody. 16 In the United States, fathers who murder the mother of his children face almost no barrier to obtaining custody (family courts are disconnected from criminal courts, and the murderer's parents may be given temporary custody, until the father is out of prison). 17 As a result of these reverse practices of the family courts, violent perpetrators may seek custody of their children as a favorable way to regain respectability in society or to exculpate themselves of their crimes-often without having to change behavior.Predictably, violent fathers who are granted custody often go on to abuse and murder their children at alarming rates. The United Kingdom has forced family courts to open precisely for such research, but they have still found resistance. Deaths are the extreme end, but other harms occur as well. For example, more than 58,000 children a year are ordered into their physical or sexual abuser's unsupervised custody following divorce in the United States. 18 These children are likely to suffer "soul murder," 19 or the psychological "death" that results from abuse. Consequences are lifelong psychological and physical problems and decades of loss of life. 20 The estimated economic loss in healthcare, child welfare, criminal justice, special education, productivity losses, among other costs, was estimated at $592 billion for 2018. 21 This is also an problem, as almost 1 in 3 abused and neglected children become abusers themselves. 22 During the COVID-19 pandemic, the monitoring and reporting of child maltreatment was even more hampered at a time of heightened need. 23 In family courts, the "protective parent," or the parent attempting to safeguard the child from abuse, often loses custody simply for alleging abuse-or, sometimes, when the children allege the abuse. Studies now show that, in addition to child deaths, protective parents, usually mothers, also disproportionately die. 24 The pseudo-rationaleThe source of these deaths is the regular family court practice of denying abuse, prolonging cases for years, and requiring the parents to pay for multiple court appointees. 25 The revenue for doing so is estimated to be between $50 and 175 billion per year in the United States alone. 26 In other words, there is great financial incentive for placing children in situations of greater danger, and families in greater crisis.The pseudo-rationales designed to promote this result is "parental alienation," a notion that any allegation of abuse is a fabrication to "alienate" the other parent from the child, and any rejection on the part of the child is a result of "coaching". This pseudo-theory is intended to punish and "turn the tables" against the victim, so as to discourage reporting of abuse. Multiple reputable scientific associations-including the United Nations (UN) 27 -have denounced the unscientific "pseudo-concept," but it continues to be used almost ubiquitously in family court. It enables the courts to exculpate the perpetrators in ways that they not only escape prosecution but can gain full custody, collect "child support," demand legal fees, and even punish their victims with incarceration if they cannot pay (which occurs at staggering levels without due process or the possibility of bail).The pseudo-concept of "parental alienation" contradicts all scientific, medical, and developmental research. It also enables severe and lasting childhood trauma through isolation with their abusers while separated from their primary supports 28 . Indeed, research shows that while the deliberate false reporting is rare (e.g., 0.1% in one study 29 ), the abuse of children is not. In fact, it is greatly underreported, a problem that only exacerbated during the pandemic. 30 A national study of 4,388 custody cases showed that mothers reporting abuse-especially child sexual abuse-were losing custody at alarming rates, sometimes to convicted sex offenders. 31 A nationwide study found that family court custody decisions were overwhelmingly more wrong than right. 32 Yet, an "abuse industry" has arisen around these wrong decisions, with its own group of lawyers, guardians ad litem, and poorly-trained "experts". Not only do abusers control the money most of the time, but they are also willing to pay anything to avoid prosecution, while protective parents are willing to give up their savings to save their children's lives. Hence, in a manner akin the "kids for cash" scandal, 33 family courts are commodifying children and taking them from their stable homes and protective, primary caregivers, no matter the harm. This practice, unfortunately, has been exported worldwide. A special issue in 2020 first demonstrated the misuse of "parental alienation" in eight countries. 34 Then, a number of international bodies began urging governments to consider testimonies of "parental alienation" as a "continuation of power and control" by abusive fathers. 35 A European Parliament resolution soon "call[ed] on the Member States not to recognise parental alienation syndrome in their judicial practice and law." 36 And a United Nations report found widespread family court practices of punishing mothers and children who brought forward credible allegations of abuse. 37 Family courts are an unchecked, domestic abusers' instrument to further abuse. Children are the greatest casualties, who not only lose the opportunity to develop their potential, but for some, they become the next generation of substance users, rapists, and murderers, if they survive at all. Judicial abuses have accelerated as well as have received greater attention during the COVID-19 era, but attempts at reform, including legislative changes, have been marginally successful at best. Efforts at educating the judges have been futile, in the absence of motivation. Therefore, a culture of deadly abuse of the most vulnerable members of society calls for a moratorium on family courts in child custody decisions, especially under the current structure of absolute judicial immunity, total secrecy, and lack of any accountability with enormous financial incentives, in order to prevent the devouring of children by the very institutions intended to protect them. Child welfare matters should be handled outside of courts where possible, and the rest be dealt with in civil courts that have juries, are accountable to the Law, and are beholden to rules of procedure-to better preserve lives and prevent exploitation.