ALECOMM

Karen Anderson suspected that something strange was going on between her ex-husband, Rex Anderson, and their 15-year-old daughter. Prior to the couple's separation in 1998, the girl would sometimes put on high heels and makeup, "visiting" her dad while he worked late at night in the family's basement. It was the same retreat in which he stored the dildos and artificial vaginas he used to stimulate himself sexually.

After the divorce, Rex was given primary custody of his daughter, as well as the couple's 8-year-old son. Karen says this was because he had a full-time job as a facilities engineer at Santa Clara Valley Medical Center, while she was unemployed. While staying with her on weekends, her daughter would sometimes say she hated herself and wanted to die.

In 1999, Anderson, a resident of San Jose, decided to take her concerns to Santa Clara County Family Court. Like similar courts across the state, it is charged with adjudicating high-conflict divorces — managing the division of property, child support payments, and the often bitter process of establishing a plan for shared child-rearing. She urged the court to investigate whether her daughter was at risk of sexual molestation, and whether Rex's custody rights should be restricted as a result.

Family Court Judge James Stewart temporarily barred the children from seeing their father while the court looked into the abuse claims. But instead of seeking evidence as to whether molestation was taking place, he hired a Menlo Park–based psychologist, Leslie Packer, to evaluate both parents. Among Packer's tasks was to assess, in light of their psychological profiles, whether the accusations were likely to be true. After a series of interviews and personality tests, such as the Rorschach inkblot test, she delivered her opinion: Karen's fears for her daughter were unfounded.

"Karen's suspiciousness goes to the extent of paranoid thinking, particularly in regard to her husband's actions," Packer wrote in an evaluation delivered to the court. "There is a basis in her concerns with her husband's unusual sexual practices, but it appears that most of her speculations about her husband's possible sexualized attitudes toward their daughter are not based upon documented or reality-based evidence." Rex regained primary custody of his children.

Today, Rex Anderson is serving a 23-year sentence at Pleasant Valley State Prison in Coalinga. In 2003, he pleaded no contest to 25 counts of sex crimes against his daughter, including child molestation, sexual penetration of a child with a foreign object, and use of a minor to create pornography. When she turned 18, his daughter left his care and reported years of abuse to police in El Dorado County, where they were living. (SF Weekly is withholding her name as a victim of child sexual abuse.)

Seldom are a parent's allegations against an estranged former spouse rejected out of hand, only to be vindicated so completely. Yet observers say the Anderson case represents just one unfortunate outcome of systemic problems in the family courts' methods for investigating accusations of abuse.

Looking out for the children who find themselves in the middle of bitter divorces is the most important function of the state's family courts, and arguably one of the most significant duties of the judiciary as a whole. Yet evidence has mounted in recent years that it is a responsibility in which family court officials are sometimes failing dramatically.

Interviews with dozens of parents, activists, lawyers, judges, children, and former family court employees, as well as a review of hundreds of pages of family and criminal court documents, indicate that the system's methods for assessing whether child sexual abuse or spousal battery has taken place — findings that are critical to deciding whether a parent should retain custody of or visitation rights with a child — fall short of the standards accepted by domestic-violence experts and the criminal-justice community.

The results can be tragic. In some cases, such as Anderson's, abuse allegations have been confirmed decisively, in the form of criminal convictions, after a poor custody decision was made. In others, court officials have ignored existing domestic-violence convictions, sending children to live with admitted batterers. In at least one case, an infant boy lost his life because of a judge's refusal to take seriously warnings about an unstable parent.

Family court officials face difficult decisions in cases where the truth is often clouded by high emotions. Every day, in courtrooms throughout the state, those decisions doubtless lead to many beneficial outcomes for the children whose futures are at stake. In the morass of ill will and "he-said, she-said" exchanges that characterize bitter divorces, the facts can be hard to tease out.

For this reason, SF Weekly has focused exclusively on cases, both in the San Francisco Bay Area and the rest of California, where allegations of domestic violence or child molestation were backed up by criminal convictions — and, in one case, a murder-suicide. In all of them, the courts seem to have failed to follow basic procedures, including some dictated by state law, for weighing evidence of a parent's abusiveness before making crucial custody decisions.

Absent an exhaustive review of the state's family courts, it is impossible to say how common such cases are. The reasoning that guides custody decisions can also be difficult to decipher. Court officials — including a number of those approached for this article — frequently decline to explain their decisions or recommendations, citing client confidentiality or judicial ethics.

Still, advocates of reform say a few widespread problems lead to poor court decisions, such as inadequate procedures for investigating abuse; the use of controversial and potentially dangerous psychological theories about child welfare; and a prejudice toward joint parental custody, even when one parent is clearly violent. Compounding these issues, critics say, is a lack of accountability for judges, attorneys, custody evaluators, and other court personnel, who enjoy immunity from lawsuits even in cases where they make decisions that do obvious harm to children and parents.

"The family court system is supposed to work in the best interests of the child, but very infrequently does that happen," says Susan Wilde, a Berkeley psychologist and expert on child abuse intervention. "Families find themselves in the grip of a system that has no responsibility to them or to the children, that just kind of runs amok."

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Karen Anderson, who now lives in Manteca with her daughter and son, still looks back ruefully on her experience in the Santa Clara Family Court. Her allegations about her husband were met with skepticism not only by Packer, she says, but by the attorney, Miki Minzer, whom the court had appointed to represent the interests of her children. "They didn't believe me," she says. "The children's attorney, I was so angry with her ... she treated me terribly during the whole thing."

(Anderson's case is distinct from that of California Protective Parents Association executive officer Karen Anderson, a resident of Amador County and well-known activist on family court reform. The two women are not related.)

Minzer now practices law in Colorado.She declined to comment on the Anderson case. "I am not in a position to speak with you about that case," she wrote in an e-mail. "I have no authorization from my former client to do so. I am sure you understand."

Packer likewise declined to comment, saying in an e-mail, "The ethics of client confidentiality are such that I cannot speak to you about this case, or any other case." Stewart retired in 1999 shortly after hearing the case; he died in 2004.

If the way events unfolded in the Anderson case sounds odd, it should. Despite the enormous impact of family courts' decisions, they are in many ways unrecognizable when compared to other branches of the judiciary, particularly in their lack of mechanisms for due process.

Family courts have no juries, and litigants who lack the money for a private attorney have no right to counsel. (As a result, many parents without financial means must represent themselves.) In the place of the traditional fact-finding apparatus that operates daily in criminal and civil courtrooms — dueling lawyers, and jurors charged with determining the facts of a case from available evidence — family court substitutes a cadre of individuals who make decisions in concert. Foremost is the judge. And it is with the judges, in some ways, that the problem starts.

Few aspirants to the bench relish the idea of refereeing the roughly 20 percent of divorces that are hostile enough to end up in family court. As a result, many assigned to this branch of the judiciary are rookies — paying their dues for a year or two before moving on to the more genteel arenas of civil or criminal law — or lifers without the aptitude to move on. "Family courts are the ugly stepchild of the law," Oakland family law attorney Kim Robinson says. "It's considered the bottom of the barrel. Almost no one wants to be there as a judge. The judges come in with a major attitude about it from the get-go."

Family law judges are aided by a range of subjudicial officials, including psychological evaluators and minors' counsels, attorneys appointed to represent the children in disputed custody cases. The courts also rely on mediators, who attempt to arbitrate custody agreements between parents. Failing such an agreement, they have the authority in many California jurisdictions to make a recommendation about custody rights.

Complaints about how all these people do their jobs aren't new, and in light of their high-stakes, high-conflict work environment, some amount of dissatisfaction among litigants is to be expected. But officials in state government have begun to take the sheer volume of those complaints seriously.

Last year, the California State Auditor's office conducted reviews of two heavily criticized family courts in Marin and Sacramento counties. The audit, released in January, presented troubling findings. Among them were the observation that seven of the Sacramento court's 20 mediators "appeared not to possess the minimum qualifications and training requirements" for their jobs, and that in Marin the court "did not verify that the mediators had met the initial training requirements" during the hiring. The report also noted problems with record-keeping at both courts, particularly with regard to written complaints about court personnel.

Auditors did not address the prevalence of cases where child custody is awarded to a spousal batterer or child molester. But as they were conducting their work, one such case was unfolding in San Francisco.

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On April 14, 2010, Shari Rivers appeared before San Francisco Family Court Judge Lillian Sing to ask for a restraining order preventing Derrick Perryman, the estranged father of her 5-month-old son, from contacting her or her family members. The previous month, Rivers said, he had struck her during an argument, leaving her with bruises on her face.

Rivers was also requesting a restriction of Perryman's custody rights for Derrick Jr., the pair's child. In light of Perryman's actions, she asked that his visits with the baby be supervised by court-appointed professionals, a standard practice in custody disputes involving potentially violent parents. "I would rather him get some counseling for himself, do whatever it is he has to do," she said. "But, for now, I will be happy with supervised visits for an hour a week."

During the hearing, Perryman admitted to the judge that the incident took place — "I slapped her, yes," he said — though he denied he had hit her with a closed fist. He said he "didn't see the need" for a restraining order, "because there is no issue of violence at all."

Sing agreed to issue a restraining order — protecting Rivers alone, not her family members, and issued for one year, instead of the customary five — "so that you both can cool down and calm down and hopefully be better to each other and the kids." The judge refused to modify Perryman's joint legal custody of his son. "It is good for the child and it's in the best interest of the child to have continuous and frequent contact with dad and with mom," she said. She also denied Rivers' request, made out of concern for her own safety, that custody exchanges take place at a police station. Instead, she ordered that the child would be handed off between parents at the home of Perryman's mother in San Francisco.

Under California Family Code Section 3044, findings of domestic violence are supposed to carry a "presumption" against any form of custody for the abusive parent. Sing confirmed at the April 14 hearing that Perryman had abused Rivers; he admitted as much in open court. Had there been any doubt about the question, however, it was quickly dispelled.

Later in April, Rivers hired Kim Robinson, the Oakland attorney, who discovered that Perryman had pleaded guilty just a week before the hearing to misdemeanor spousal battery in Alameda County, where Rivers had reported the incident to police. (He had originally been charged with one count of felony domestic violence, one count of misdemeanor battery, and misdemeanor child endangerment, since his son had been present at the time.)

In light of this further evidence, Robinson urged the judge to modify the custody order. Sing again refused, in what Robinson says is a violation of state law.

"She just did not care. I gave her a second chance, and she did not take it," Robinson says of Sing. "Her explanation was that she did not see the father as a danger to the child."

Ann Donlan, spokeswoman for the San Francisco Superior Court, said Sing was on vacation and would not be available to comment on the case. Even if she were available, Donlan added, "it is not permissible for her to comment on the specifics of any case."

Perryman, a soft-spoken man with a warm demeanor, acknowledges during a recent interview at his home in the Lower Haight that he struck Rivers. "I did make a mistake," he says. But he asserts it was done in self-defense, after she pushed him to the floor during an argument while he was holding their son.

"When I was pushed down, it put me in sort of a protective mode," he tells a reporter, with Derrick Jr., now 16 months old, perched on his lap and sucking from a baby bottle. "I did strike her. My thing is, I wasn't the one who started it." Rivers' facial bruising, he says, did not come from his slapping her but from a shove during the same altercation: "I pushed her in the face, and her eye caught the bottom of the palm, and that's how her face got bruised."

Perryman says he pleaded guilty to misdemeanor domestic violence only so he could get out of jail — where he was held for more than three weeks after his arrest — to appear in family court, ensuring continued custody of his son. "I would have pleaded to murder as long as I could have gotten out to make the court date," he says.

"This is about the child," he adds. "Both parents should have custody. If neither parent is a danger to the child, why shouldn't they?"

What Robinson says was an unwillingness to appropriately weigh evidence of criminal behavior in the Rivers case is, according to court officials elsewhere, characteristic of the culture of at least some of California's family courts. In one instance that recently came to light, an officer of the court was actually punished for seeking to investigate such evidence too thoroughly.

Emily Gallup, a Stanford-educated mediator in the Nevada County Family Court, was fired after her supervisors criticized her for reviewing parents' criminal histories when making her custody recommendations. In a March 2010 written reprimand of Gallup prepared by Court Executive Officer Sean Metroka, and obtained by SF Weekly, Metroka states that it was "unprofessional and unacceptable" for her to have requested a criminal history report in a recent case she was handling. "I admonished you not to take the role of a court investigator," he wrote.

Research on parents is part of a mediator's job, as it is for evaluators, minors' counsels, and judges — no single court official is specifically designated as an "investigator." Metroka says that Gallup went too far, conducting criminal background checks in cases where they weren't relevant. "It's easy to violate [parents'] due-process rights if you try to make more out of a case than is there when it's presented to you," Metroka says. "Emily's position is that in every case a mediator should investigate and get every piece of evidence she can before the mediation."

Just last month, Gallup prevailed in a grievance against the family court system over her dismissal. Arbitrator Christopher Burdick found that she "had reasonable cause to believe that Court's Family Court Services department had violated or not complied with statutes and rules of court," and ordered an audit of the court to investigate the claims in her grievance.

"They're making these monumental decisions based on air," Gallup says. "They think if you have too much information about a parent, that makes you biased. My contention is, if you have more information, that will make you less biased."

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In addition to mediators like Gallup, family courts make extensive use of psychologists in researching and adjudicating child custody. There is arguably no branch of the legal system where psychological theories — including some that are highly controversial — are more influential. And critics say the courts' less than rigorous approach to investigating allegations of child abuse is formalized in one such theory, which is widely used by evaluators and attorneys: the concept of Parental Alienation Syndrome (PAS).

PAS was coined by Richard Gardner, a child psychiatrist affiliated with Columbia University, to describe what he believed was a form of brainwashing that took place in the context of divorce proceedings. According to Gardner, the condition arises when a parent — usually, but not always, the mother — "programs" a child to hold delusions of sexual abuse by the father. Armed with this theory, Gardner hired himself out as an expert witness in family courts across the country, appearing on behalf of men seeking to discredit sex-abuse allegations.

Yet many questioned the scientific basis of his work. Gardner's research consisted for the most part on his personal observations as a clinician, rather than systematic, peer-reviewed studies. PAS has never been accepted into the Diagnostic and Statistical Manual of Mental Disorders, the psychiatrist's bible of known conditions. The syndrome has also been denounced by professional groups including the National Council of Juvenile and Family Court Judges and the American Psychological Association Presidential Task Force on Violence and the Family, which view it as a ploy for obscuring a court's inquiries into allegations of child abuse.

"Alienation is being used in almost every case where a child is taken from a safe parent and placed with a dangerous parent," says Kathleen Russell, executive director of the Mill Valley–based Center for Judicial Excellence, a family-court reform group. "It's a legal tactic."

Gardner's ideas are also controversial in light of provocative statements he made criticizing society's condemnation of pedophiles, and seeking to portray adult-child sexual contact as normal. "Pedophilia has been considered the norm by the vast majority of individuals in the history of the world," he wrote in the 1992 book True and False Accusations of Child Sex Abuse. In the same book, he suggested wives of pedophiles masturbate in order to increase their own sex appeal, reasoning that "increased sexuality may lessen the need for her husband to return to their daughter for sexual gratification."

Few defend Gardner's more outlandish stances, but his theory of parental alienation has persisted, in part because he trained psychologists and family court officials in California and other states prior to his suicide. (Gardner punctuated an unusual career in an unusual way, stabbing himself to death with a steak knife in 2003.)

Amy Baker, a New York–based psychologist who does extensive work in the family courts and is one of the most prominent adherents nationally of Gardner's theories, says isolated instances of the misuse of PAS by abusive parents have given it a bad name. "I think there's a very simplistic idea that just because people make false allegations of parental alienation, parental alienation doesn't happen," she says.

Yet such assurances are scant comfort to those who have seen the term "parental alienation" turned against them as a weapon by child molesters. San Diego resident Joyce Murphy is one parent who has reason to regret the shadow Gardner and PAS still cast over the family court system.

In 2003, Murphy, a research biologist at UC San Diego, was fighting for custody of her 6-year-old daughter with her ex-husband, Henry "Bud" Parson. Murphy, who had been disturbed in the final years of her marriage by what she says was her husband's obsession with child pornography, suspected, based on her daughter's odd behavior after returning from unsupervised visits with her father, that abuse might be taking place.

The judges and court-appointed therapists who reviewed Murphy's case, however, sided with her husband. Murphy says she was accused of committing parental alienation. After the San Diego Family Court refused to heed her warnings about Parson, she fled the state with her daughter. "I reached the point where I broke," she says. "I could not see a way to keep my daughter safe."

Arrested in Florida, she was extradited to California, where she pleaded no contest to felony kidnapping and was placed on probation. Her daughter was taken from her and placed in Parson's full custody.

Six years later, it was Parson's turn to go to jail. In 2008, he was arrested on charges including child molestation, sex with a child, and creating child pornography. While Murphy and Parson's daughter was not among the victims listed in the criminal complaint against him, some of her friends were, including two girls under the age of 14 and one under the age of 18. As part of a plea deal, he admitted the molestation charges and was sentenced to six years in prison.

Murphy says she suspected that her ex was victimizing other young girls. After her past experiences with the family courts, however, she chose to stay silent, fearing that further accusations would lead to retribution from the court. (In the years prior to Parson's arrest, she had regained limited visitation rights.)

"It was obvious to me, but I couldn't say anything at this point," says Murphy, who today has full custody of her daughter. "Nobody would believe me, and anytime I objected to anything they would accuse me of 'alienating.'"

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One of the judges who presided over Murphy's case was DeAnn Salcido. In 2010, Salcido resigned from the San Diego bench and was censured by the California Commission on Judicial Performance for, among other things, hamming it up in the courtroom in an effort to secure a deal for a court-based reality television show. She claims the misconduct complaints against her were retaliation for her criticisms of other court officials.

The dispute over Salcido's screen aspirations is less interesting than what she has to say, in retrospect, about the approach she took to the Murphy case. From the moment she arrived in family court as a new judge, she says, she was advised by veterans of the system to disbelieve accusations of child or spousal abuse arising in divorces. "I was basically told to be suspect of anyone claiming abuse," she says. "I had senior judges telling me, 'Be suspect. The dad probably has a new girlfriend, and the mom's upset.'" The concept of parental alienation, she says, arose in private discussions "all the time" among court officials who espoused it.

Salcido says, "In the end, it did turn out that Joyce was right. She was right to be crying, and hysterical, because no one would believe her. I signed a court order handing a kid over to someone who turned out to be a pedophile."

Salcido's observations on the culture of family court point to the common thread running through the stories of Anderson, Rivers, and Murphy: a reluctance on the part of court officials to upset what they deem an appropriate balance of child custody among parents. Particularly in the cases of Anderson and Murphy, the mothers' accusations, if true, would almost certainly have led to a denial of visitation rights for the father.

While the family courts' desire to equitably divide a child's time led to unfortunate and absurd results in these cases, it has clear historical roots. Decades ago, divorce courts often operated with a bias toward placing children with their mothers. As divorce became more common, however, swelling advocacy from fathers' rights groups started to alter this dynamic. A state law directing the courts to make a presumption of joint custody was passed in 1979, leading to the present inclination toward splitting a child's time more or less evenly between parents.

Joyanna Silberg, a psychologist with the Baltimore-based Leadership Council on Child Abuse and Interpersonal Violence, says this drive to assure each party due parental rights has evolved into a form of judicial prejudice. In cases where abuse accusations are true, she says, this prejudice has the practical affect of abetting the abuser. "What it is, is a family court culture that seems to be about dividing property," she says. "It's not about seeing whether a crime is committed."

Glenn Sacks, the Los Angeles–based executive director of the national fathers' rights group Fathers and Families, disagrees. He asserts that the courts still routinely demonstrate a bias against fathers, and are overly protective of moms and punitive of dads when handling abuse allegations. "They'll err on the side of caution," he says, "without ever stopping to think, 'Why am I erring?'" Even today, he adds, "The courts are very much biased against fathers. Usually it's 'She's the mom, she's the real parent; he's the dad, he's not the real parent.'"

Sacks adamantly defends the legitimacy of parental alienation. He also says that "a lot of the progress for fathers has been undermined by [stricter] domestic violence laws" that punish men for alleged acts of which there is insufficient evidence. To be clear, he says, "Not now or ever do we believe that wife beaters should be getting control of their children."

Sacks' remarks underline another truth about the family courts: Their problems are entwined with gender politics, and as such are difficult to approach. While the system's mistakes affect both mothers and fathers, men are statistically more likely to be the perpetrators of the types of serious crimes that highlight the family courts' shortcomings — as they are in all the cases, substantiated by criminal convictions, examined in this article. The topic of gender's correlation with violent crime is hotly debated, but studies have found that only 6 percent of sex offenses and 5 percent of serious incidents of domestic violence are committed by women.

Attempts to curb the system's capacity for enabling abusive parents have thus been perceived in the past as antimale activism. When state Assemblyman Jim Beall, a San Jose Democrat and chair of the Assembly's Human Services Committee, introduced legislation in 2009 that would have banned the use of Parental Alienation Syndrome in California family courts, strong opposition from fathers' rights groups helped doom the bill.

Some observers say the family courts can be meaningfully reformed only by improving their methods of fact-finding, perhaps through introducing procedures or personnel borrowed from the criminal courts. Seth Goldstein, a former police officer and investigator for the district attorney's offices in Napa and Santa Clara counties who now practices family law, suggests creating interdisciplinary panels — composed of a range of professionals with expertise in child abuse and domestic violence, such as doctors and social workers, or former prosecutors and police officers — to thoroughly evaluate abuse allegations when they arise. "The way that the courts have to work is evidence-based, not theory-based," he says.

Geraldine Stahly, a psychology professor at California State University at San Bernardino, likewise says that the family courts need to be revamped so as to devote more attention to evidence — as do other courts of law — rather than the opinions of individuals such as psychologists, mediators, or even judges. "I would like to see judges relying a lot less on psychological evaluations and a lot more on the facts of a case," she says.

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What is the likelihood of such changes? With limited audits of two counties' family courts complete, and a third one on the way, it appears that government officials are starting to pay attention to this little-scrutinized branch of the judiciary. Meanwhile, some of the dramatic mistakes of California's family courts have begun to resonate with the public. One such case is that of Katie Tagle, a Yucca Valley woman who paid the ultimate price for the system's lapses.

On Jan. 21, 2010, Tagle appeared before San Bernardino County Family Court Judge Robert Lemkau to ask for a protective order against her ex-boyfriend, Stephen Garcia, who shared custody of their 9-month-old son, Wyatt. Over the previous few days, Tagle had received disturbing messages from Garcia threatening to kill their son if she didn't reunite with him. She described "e-mails saying that [Garcia is] going to take his life and our son's life at the lake the next time he gets him, and if he doesn't do it that day, he will finish the job later."

Lemkau refused to modify the joint custody order that was in place. "My supposition, ma'am, is that you're lying," he said. "But if I'm incorrect, you can always bring another ex parte motion, but don't misrepresent the situation. If you're lying about this, there's going to be adverse consequences."

Adverse consequences were imminent, though not the ones Lemkau imagined. Within two weeks, Garcia sent Tagle a suicide note while Wyatt was in his custody. When police tracked him down, a car chase ensued through mountains above San Bernardino. Just after 1 a.m. on Sunday, Jan. 31, Garcia shot his son, and then himself.

The community's reaction was swift. Picket lines formed outside Lemkau's courthouse. In the fall, when he was up for re-election, he lost his seat to James Hosking, a deputy district attorney whose upstart campaign was fueled by public outrage over the case.

Lemkau could not be reached for comment. His phone number and address were redacted from campaign forms filed in San Bernardino County during last year's election, and messages sent to the e-mail address listed for his campaign were not returned. On March 3, 2010, at another hearing in family court, he apologized to Tagle and said he could not have predicted what would happen at the time he refused to issue the restraining order, the Daily Press of Victorville reported. "I deeply apologize for my comments to you," he said, according to the newspaper.

Hosking, who just ascended to the bench in January, said that while Tagle's case presents a clear picture of a family court failing to assess dangers to children, the question of systemic reform is more complex. At bottom, he says, the courts are "concerned with trying to predict future behavior," a task at which people in any profession have never excelled. "Family law judges like myself face difficult decisions every day," Hosking says.

Speaking through tears today as she recalls her son's death, Tagle, who has moved to Las Vegas, talks about the reform she would most like to see: a stripping of the legal immunity enjoyed by judges, evaluators, and all the other personnel who make up the complex apparatus of the state's troubled family courts.

At present, litigants are barred from suing such court employees for official misconduct under the doctrine of judicial immunity that applies to judges in the civil and criminal courts. Evaluators and mediators enjoy similar protections with respect to their court functions. When decisions about child welfare turn out to be disastrous, parents like Tagle have no recourse.

"If they had no immunity, they would think twice," she says. "It was [Lemkau's] job to protect our son, and not give him to the person who admitted to me, multiple times, in e-mails, that he was going to kill our son."