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Parental Rights v. Children Rights? Why Courts Keep Getting It Wrong

Justice works around adults. Keen to uphold parental custody rights, family courts have effectively allowed violence against children by giving abusive parents access. So it is time the legal system stopped ignoring children.

Photo of a child sitting on a bench

Child sitting on a bench

Catalina Ruiz-Navarro

-OpEd-

BOGOTA — Recently a sound recording from Bogotá of a 10-year-old girl crying and pleading not to be made to live with her father went viral online. The father had faced two sets of charges relating to domestic violence and sexual abuse of the girl, who had earlier described to court doctors his inappropriate physical contact.

The charges were dismissed for technical reasons, which led the authorities to conclude that, technically, the father had not "touched" his daughter. But the ruling led the girl's mother to refuse him visits or access to the girl. That in turn prompted a (female) judge to deprive the mother of custody rights and order the daughter to be sent to live with her father — a suspected child molester.

The girl's weeping was recorded at the handover, loudly illustrating how the girl's wishes contradicted the judge's decision.

The trouble with Parental Alienation Syndrome

This piece of juridical injustice is connected with two terms that recur in custody battles: parental alienation syndrome (PAS) and vicarious violence. One is a sexist male invention and the other a reality that isn't discussed enough. PAS is a term coined by the psychiatrist Richard Gardner and concerns a child's supposed brainwashing by one parent — more often than not the mother — after a divorce against the other parent.

Parental Alienation Syndrome is an argument that sells with both male and female judges.

The concept came to the fore in the 1993 court battle between the film director Woody Allen and his former wife, actress Mia Farrow, over the custody of their daughter Dylan. The girl, who was around six years old at the time, had told her mother about supposed abuse from Allen, her adoptive father. This was recorded on tapes later used for the documentary, Allen v. Farrow. Viewing them makes it very difficult to believe that these were trumped up allegations.

Gardner made many assertions that have never been certified by the medical community. In 1992, he published his True and False Accusations of Child Sex Abuse, in which he insisted pedophilia is "normal" in certain societies and "necessary" to human survival. In spite of having been refuted a thousand times, PAS is an argument that sells with both male and female judges and has been used to negate the testimonies of many children who tried to denounce parental abuse.

Photo of a person sitting in front of a jury

The judicial experience has been designed by — and for — adults.

Saúl Bucio/Unsplash

Listening to and believing children

Separately, vicarious violence (violencia vicaria) is a term coined in 2012 by the Argentinian psychologist Sonia Vaccaro to explain the way many abusers use their children to control and attack their partner. The idea itself is older. In the early 1990s, in the U.S. state of Minnesota, the Duluth model (named after a Minnesota town) was developed to curb domestic violence.

Children know who loves and cares for them.

It included a Power and Control Wheel that identified forms of abuse that include use of the children to threaten and control their mother. In 2015, the UN's Committee on the Elimination of Discrimination Against Women ruled that the Spanish state had violated the rights of Ángela González Carreño and of her seven-year-old daughter Andrea, who was killed by her father during a custody visit.

González had filed 30 complaints against the aggressor, in spite of which a court had allowed unsupervised visits by the father. Justice, evidently, works around adults. That is why certain judges become convinced that children are malleable creatures that are easily led to accuse their father of sexual abuse in order to please their mothers. And while this is possible in theory, it is in fact quite improbable.

Children know who loves and cares for them, and we must believe them when they denounce violence or sexual abuse.

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