Courts see moms as
guilty till proven innocent


June 26, 2004



Bridget Marks' tearful farewell to her 4-year-old twins after a Manhattan Family Court judge ordered them into the custody of a father they accused of touching their private parts is a scene reenacted in custody trials across the country, in which mothers bring good-faith allegations of sexual abuse.

All too often, young children are taken from the only home they have ever known, not because their mother has been found unfit, but because she was concerned about improper sexual contact between her children and their father.

Judges in New York and other states have adopted a bizarre rule that a mother alleging sex abuse in a custody dispute is guilty until proved innocent: If her abuse charge is not supported by overwhelming evidence, she will lose custody for making an accusation that "poisons" the relationship between father and child.

In fact, as we are seeing in the Marks case, she can end up being doubly penalized: After she loses custody, the accused abuser can actually hit her up for child support.

Marks' suspicions were not without support. A baby-sitter reported that the children told her their father had "touched their peepee." A police investigator was concerned enough about the charges to recommend that a prominent forensic psychologist interview the children (an interview that was never allowed to take place). Another psychologist recommended strict supervision for the father's visits with the girls.

Judge Arlene Goldberg held the mother to a Kafkaesque standard: While rejecting evidence that explained the mother's suspicions, the judge required Marks to prove she would foster a "loving" relationship between the man accused of abuse and the children she was desperately trying to protect.

Adding insult to injury for Marks, supervisors appointed by the court actually left the father alone with the children on several critical occasions, court papers show.

What happened to Marks has happened to mothers across the country. We have studied two decades' worth of custody litigation, and we have found that mothers who raise allegations of sexual abuse against the children's fathers are likely to be punished with the loss of custody even when there is no proof that the abuse charges were fabricated or that they did anything to harm their children's welfare.

Courts focus instead on the supposed evil of making a charge that, by its very nature, is extremely difficult to prove. Then, with the fathers presumed innocent, the mothers bear the burden of proving that their intentions were good.

If they fail, they end up like Marks, who cannot even speak to her children without professional supervision but who now may have to pay child support to their rich father.


Neustein and Lesher are authors of "From Madness to Mutiny: Why Are Mothers Running from the Family Court?" due out in spring 2005.

Originally published on June 20, 2004


Ottawa Men's Centre Comment:

NOTE: The standard referred to here, is applied in several other western countries. The judicial reasoning is that the prejudice of allowing unsubstantiated abuse allegations that are void of any corroborating evidence causes more harm to children than by assuming that any unsubstantiated allegation effectively terminates a relationship between a father and a child.

Feminists argue that mothers are sacred cows whose every statement must be accepted as fact without any supporting evidence. They argue that the burden of proof falls upon the father to prove that the allegation is false.

Feminists ask society to adopt a "reverse onus" that a man is guilty of any allegation that he cannot prove is false. 

Canadian courts especially Ontario Family Court Judges acquiesce to the feminist demands that any allegation by a mother must be accepted as fact unless the father successfully proves other wise, a generally impossible task when judges generally predetermine interim and final custody and access decisions based on a presumption that mother gets the kids.

Ontario Family courts encourage mothers to file easily written legal pleadings  loaded with sufficient allegations that are most probably impossible to disprove while asking the courts to totally ignore the fact that the allegations are uncorroborated by any evidence.