OPPOSE HB 2237 / SB 5205
WHY JUDGES DON’T FOLLOW OPTIONAL LAWS IN FAMILY COURT.
HB 2237 removes mandatory protections for survivors of domestic abuse in family court, making them optional with language that only “guides” the court to take the right action but does not require it. An optional law is not a law. People who haven’t been aggressively litigated against in family court may be fooled into thinking a judge will follow the law the way the bill is written. There are a substantial reasons the court will not follow this “guide” in most cases.
First, children and survivor parents are rarely believed in family court. As courts believe less than 1 in 5 claims of child abuse, and less than 1 in 50 claims of child sexual abuse, following a claim of parental alienation (see ref 1). Our state uses “Abusive Use of Conflict” as a proxy for parental alienation, in RCW 26.09.191, sometimes referred to as “resist and refuse,” “restrictive gatekeeping,” “enmeshment,” etc.).
Physical and sexual abuse rarely leaves physical evidence: theres no virtual paper trial, and no finger prints; whereas evidence for counterclaims of Abusive Use of Conflict can be any virtually any written communication or professional opinion.
Children can’t testify in family court. And in the rare cases a parent can afford an expensive therapist to testify for the child, the other parent often hires their own expert to testify against them.
Survivors of domestic abuse are disadvantaged in time to prepare for litigation. While survivors usually have only 14 days to a few months to prove domestic abuse after an incident occurs; abusers have years of opportunity to support their counter-claims that the protective parent has an Abusive use of Conflict or Emotional Impairment finding.
Survivors can’t relitigate claims of domestic abuse. Often a survivor being under-represented fails to adequately present their case of domestic abuse, and even if they do get adequate representation later, they can’t bring it up again.
The “neutral” professional the court appoints and relies on take trainings heavily influenced by abuser rights groups. Even after the United Nations debunked Parental Alienation claims (see ref 2), its is still present in most of the court professionals required trainings, including local (ref 3) and national trainings (see ref 4).
Second, survivors face significant disadvantages in court:
Abusers tend to file endlessly against against survivors, these cases often dragging on for an average of 3+ years. Abusers are twice as likely to seek custody than non-abusers, and when they do more than 70% receive it (ref 5). Imagine in criminal court where you are being brought to court every month for three years because the prosecutor not only had a preexisting sexual relationship with you, but also gained personally from prosecuting you: this is family court.
Court processes are designed to ignore domestic abuse. The court process tends to focus more on what happened during litigation, less than what happened before litigation, giving abusers the ample opportunity to put on an act for the court.
Mom’s are financially disadvantaged compared to fathers. Unlike criminal court indigent parents are denied right to appointed council or appeal. The median income for mothers is 53% to fathers (ref 6). Additionally, because newly separated moms are often struggling to take care of their kids while adjusting to a new living arrangement, they struggle to even represent themselves pro se.
Abusive Use of Conflict functions like an unconstitutional ex-post facto law. A completely safe and legal parenting behavior can later be painted as “bad faith,” labeled as Abusive Use of Conflict and be used to remove custody. See our Actions Warranting Custody Removal document based on Washington State’s Appellate cases and verified survivor stories. “A fundamental concept of due process is that citizens are entitled to fair warning that particular conduct is proscribed before they can be held criminally liable for engaging in it... This principle is the basis for the prohibition of ex post facto, overbroad and vague legislation.” (State v. Hull 1976)
Without strict guardrails in family court, we are giving judges unlimited authority to rule our lives. Removing mandatory provisions in the high-risk statute is the equivalent of removing mandatory and minimum sentence guidelines in criminal court, subjecting a defendant to the biases and unlimited authority of the court. Why do we give defendants in criminal court more protections than we give children in family court?
There is a reason why our current statute is the way it is, its based on science and research, HB 2237 is not. Please, HB 2237 does not “update” our statute, but regresses it and will endanger thousands of children’s lives.
For a list of references sited, please see the bottom of this page: Actions Warranting Custody Removal.
For more analysis of this bill please see FVAP’s Analysis of HB 2237, World Renowned Expert Opposes HB 2237/SB 5205, and from survivors who were ignored in the creation of HB 2237: Fails of HB 2237.