CUSTODY AWARDED TO ALLEDGEDLY ABUSIVE PARENTS

Proposed “Damon’s Law” seeks to protect abused children in California

By Jordan Schaffner

April 11, 2014 (San Diego’s East County)—Shockingly, parents accused of molesting and abusing their children have been awarded custody – including some cases in San Diego and East County.

One case, regarding a 16 year old boy, Damon Moelter, was first  heard at the El Cajon courthouse, where Damon accused his father,  Eric Moelter of sexually abusing him since he was 6 years old.   Although his father was never convicted, Damon’s experience has prompted legislation in Sacramento aimed at protecting other children in similar situations.

Damon’s story

In a recent East County Magazine interview, Damon stated that his father used to ejaculate on Damon’s back. Damon said his father told him to “keep it their little secret.” The Moelters got divorced and afterwards, the case was transferred to the downtown San Diego court which awarded the father custody and he was never convicted of molestation. Oddly enough, Damon Moelter also said that a family reunification therapist, Dr. Barrett approved his father’s custody. Damon later ran away, going into hiding to avoid being sent back to his father.

Fox News (http://www.savingdamon.com/) reported that Damon Moelter, had to leave California and get married  in Nevada when he turned 16 without his father’s consent, in order to get away from his father’s custody and become a legally emancipated adult. In the Fox News video on http:/www.savingdamon.com/. His father, Eric Moelter denies the abuse.

Damon Moelter stated the teenage wedding was a marriage of convenience for both parties and he is now divorced, and living with his mother, Cindy Dumas.  Dumas also said she knows of a few similar cases in East County where a father masturbated in front of his son and was still awarded custody, but the families don't want to be identified.

Damon’s Law proposed in State Legislature

Since there is such a massive silent epidemic of child sexual abuse, a new law called Damon’s Law is being presented in the California state capital to prevent this tragedy.

According  to[Wendy Murphy, J.D., former sex crimes prosecutor, CNN/Fox legal analyst and law professor who helped draft this legislation,] summarizing, Damon’s Law states that: “ All reports of suspected child sexual assault by a parent as defined by Penal Code 11165.1 shall be immediately submitted to law enforcement for investigation by a multidisciplinary team. All collateral investigations shall be stayed pending final determination of the criminal matter. A no-contact order shall issue upon filing and shall forbid all contact between the child and the accused parent pending final determination of the criminal matter."

Under the proposed law,  the fact-finder shall first determine if the charges have been proved beyond a reasonable doubt. If a determination is made that no charges have been so proved, there shall be no criminal conviction.  If the charges are proved either beyond a reasonable doubt or by a preponderance of the evidence, a long-term no-contact order shall issue forbidding all contact between the child and the offending parent until the child reaches majority. A minimum condition for a plea deal is a no contact order issued until the age of majority.

Why allegedly abusive parents  are awarded custody

The reason why courts award custody to accused abusive parents are varied.  The main reason found is a version of a psychological theory called parental alienation syndrome (http://www.familylawcourts.com/parental_alienation.html) invented by a psychiatrist in the 1980’s named Richard Gardner (http://www.fact.on.ca/Info/pas/gard01a.htm).

Some lawyers and judges seem to have used the theory in a misguided manner for their own malevolent political gain.  They say that the theory states that both parents need to be involved in the child’s life, even if one of the parents is accused of being abusive, while that accusation of the other parent is sometimes construed as alienating to the child. Complicating the problem, judges, attorneys, and psychologists have been accused of accepting bribes or favors for awarding custody to sexually abusive but wealthy parents. Cindy Dumas claimed the attorney on her ex-husband’s side was promoted after winning the case against her.

A former judge speaks out

Former East County Judge DeeAnn Salcido, when interviewed,  called herself a “whistleblower.”http://www.jdsupra.com/legalnews/press-release-cjp-vs-salcido-41969/ She issued a writ against her supervising judge who “told her not to follow the law because it was making the attorney’s lives too difficult.” She appointed as a judge in 2002 and assigned to the East County Courthouse in El Cajon in 2003.  She says she broke the code of silence and as a judge, didn't have the federal protections of a whistleblower.  She said she was not physically threatened, but the supervising judge made her life so difficult, that she didn't want to be a judge anymore. 

Salcido resigned from the bench amid charges that she herself  engaged in misconduct, including allowing TV cameras into her court for an episode of a reality courtroom TV program. 

Salcido refused to utilize the theory of parental alienation in her rulings because she stated it has proven to be a debunked science.  She believes Richard Gardner was a pedophile himself who distorted statistics.

Salcido, now a family law attorney in private practice, stated that father's rights groups push the parental alienation theory and after years of mothers getting custody, the pendulum has swung toward fathers now, and with abusers claiming parental alienation and winning custody, sometimes the law compensates unfairly for the past rulings.  She added, “As soon as abuse is claimed, the other side screams alienation.”  She observed that if judges don't make attorneys happy, they will either be challenged in an election, or when judges retire, they won't be given the opportunity to be on private arbitration panels because the attorneys won't like them and won't want to take cases to them. 

Salcido explained that judicial corruption comes, not usually as a cash payoff , but sometimes a judge will agree to a certain ruling just to keep his or her job or to plan for a post judicial career as a $2500 a day private mediator on family law cases.  Salcido indicated that if you weren't pleasant and accommodating while you were on the bench, these opportunities will not be available to you.  She stated that we really need laws preventing rulings on a Friday, with judges retiring over the weekend, going on vacation, and opening up shop after advertising that they are for hire in legal newspapers as a family court mediator on these arbitration panels, that are only for the wealthy.  She spoke about two different tiers of justice: “private arbitration panels for the wealthy and everybody else has a family court judge and has to air their dirty laundry out in public.”

She also suggested that prosecutors are afraid of these cases because they are hard to prove since most of them  lack physical evidence and they affect their “win” records.        

Like adult rape victims on the stand, children are put through a lot to prove their case, she noted, since nobody comes out and says, “Yeah, you're right, I molested the kid.” Compounding the problem is that the defense is trained to use the timing of the disclosure against the parent that mentions abuse. She stated that “Children won't usually tell about the abuse until they know the relationship is over and the parents are in court, which weakens the legal case against the abuser.”  

Salcido, like many victims’ rights advocates, believes that the term alienation itself is abused and thrown around loosely in the courtroom.  It's difficult to remove corrupt or inept judges; Salcido believes that juries should be deciding abuse cases, not judges. 

She says she has seen the Men's Legal Center wines and dines judges and give cover to some very unscrupulous people including alleged molesters.  Salcido resists the typical knee jerk mentality that mothers frequently claim child abuse out of bitterness. With regard to the Woody Allen case, she stated that “Woody Allen bought a professional expert who exonerated him, but the only adjudicated matter did not exonerate him.  The judge said he was smothering the child.” She derided the experts’ testimony saying that “Anybody can be a paid expert for a certain amount of money.” Salcido wants due diligence to be done on experts. 

Salcido isn't allowed to disclose case names because of confidentiality, but she did know about Damon Moelter and said he was a” brave kid.”  She did mention one of her cases where a suicidal girl claimed her father molested her; physical evidence was found of pictures and drawings  on his computer  and substantiated by Child Protective Services, yet the judge gave the father supervised visits with her.  The visits could be supervised by anyone over 18, even if they didn't have any professional designation.  The girl tried to kill herself several times near the trial date.  Then to get out of being put on the spot, she backed down on her claim saying “I don't know if I'm remembering this correctly. “As their lawyer, Salcido defended the girl by saying, “In what rational world would a victim be forced to spend time with their assailant?”  The mother finally got custody.

Salcido also noted that since there is more money when wealthy downtown condo owners go to court, psychiatric evaluations are usually recommended, but in East County they aren't even recommended, since nobody has the money to pay for it. 

Fathers’ rights group offers its perspective

In these kind of cases, Richard Gardner's parental alienation syndrome was often used by the San Diego Men’s Legal Center to obtain custody for sexually abusive parents.

In an interview with Howard Thomas, an associate attorney from the Men’s Legal Center, he indicated that parental alienation is an argument that they use in some rare cases.  However, PAS is not used most of the time.  Thomas indicated that mothers are usually awarded  custody, unless there’s a history of drug or alcohol abuse, child abuse or neglect.  If a sexually abusive father is awarded custody, Thomas stated that it is mainly because no physical evidence or witnesses are available.  In Damon’s case, his brother was a witness. 

Usually, Thomas added, when abuse is reported, it is taken seriously and the child is taken to the hospital for a physical examination.  However, it’s important to keep in mind that the wife reporting the abuse already has animosity toward her husband, and will sometimes do whatever it takes to retain custody and child support. He stated that in most divorce cases, some kind of abuse is usually claimed.

Thomas believes that most judges award custody in good faith, yet he agrees with former East County Judge Salcido that mistakes are made sometimes and financial rewards are granted to those who go along with a popular verdict, or punished for an unpopular one.  

A national and worldwide crisis

This writer has received emails from parents around the world maintaining that abusers have been granted custody of their children. In the U.S.,  mothers across the nation have claimed that PAS was used against them in custody cases in favor of child abusers. Yet, in a Facebook post, before his suicide, Richard Gardner has stated that he condemns incestous custody. https://www.facebook.com/notes/associa%C3%A7%C3%A3o-para-a-igualdade-parental-e-direitos-dos-filhos/professor-richard-gardner-tears-apart-extremist-misinformation-one-by-one/10150805815707261. However, he does acknowledge the prevalence of sexually abusing children throughout society.

The problem is global—and it’s not new.

East County Magazine editor Miriam Raftery covered  the International Conference on Family Violence held in San Diego (ironically on September 11, 2001) for Women’s E-News. There Colorado attorney Alan Rosenfeld revealed, “For 15 years, mothers have been going into hiding in large scale due to failures of courts to protect children.  Rosenfeld was representing mothers in custody and criminal cases who were charged with kidnapping to protect their children.  He claimed that in the prior 15 years, 1.5 million women had gone underground with their children and further, that a San Bernadino, California prosecutor had estimated that 100,000 mothers went into hiding each year because they believed their children were being abused.   

“Those missing children on milk cartons? In my experience, 85 to 90 percent of them are mothers in hiding with their children. They do not wish to be found,” Rosenfeld added. 

Geraldine Stahly, PhD at California State University in San Bernadino, noted that many women stay in abusive relationships for fear of losing their children.

Mary Lou French took her children into hiding in Costa Rica and later Panama because she feared they were being sexually abused. Tracked by fathers' rights groups and the FBI, she was arrested, becoming the first to face stiff mandatory sentencing for international parental kidnapping, a federal crime. Facing up to 12 years in jail if she pleaded guilty, French risked even longer imprisonment if she exercised her right to a trial and lost.

"There I was in prison, and my children were with the perpetrator--and no one was listening,” she said in a trembling voice.

Another heart-wrenching case, Raftery recalled, involved a teen girl who came to the conference to speak out about her own ordeal in a Southern state.  Despite evidence from a pediatrician documenting sexual abuse, a judge placed her back in the custody of her abusive father.

Abuse not limited to men

After researching the subject, it seems like the fathers are mostly the abusers, however there are cases of some women who have post partum depression and kill their children, like Andrea Yates http://abcnews.go.com/Health/story? and Ebony Wilkerson, the woman who recently drove her children in a van into the ocean in Florida. These women are just as mentally ill as male abusers, even if their abuse is primarily non-sexual.

Straight & Gay Male and female Sexual Abuse, NAMBLA and Chicken Hawking

Child abuse happens in both straight and gay communities, albeit in only a small percentage of relationships.

“Chicken hawking” is the practice of a gay man seeking an underage male lover. In some cases, secretly gay married men have divorced their wives and sought custody of a son for molestation.  There have also reportedly been cases of children of abusive fathers used for trafficking on porn sites or for prostitution. To learn more about it, please see http://articles.latimes.com/1994-08-14/entertainment/ca-27046_1_chicken-...

Role of therapists in abuse custody cases

Therapists too, sometimes approve custody with abusers. Therapist, Dr. Rochelle Bastien has stated that this mostly happens through human error. She has said PAS is used as a gag order. She stated it is one of the first accusations leveled against a mother, even though there is within the American Psychological Association, no diagnostic code for PAS. 

However it is being misused as a legal term.  Bastien emphasized that abuse needs to be reported right away to professionals, instead of waiting years which weakens a legal case. There is also a fear of authority which prevents abuse from being reported and parents are hesitant to do that.  She said people need to report the truth in a way that will be healing and not attacking. She believes family court is uninformed  on psychological research.  Judges and attorneys are flawed by the "good old boy system," where the victim becomes the accused, she added.

"These decisions made in family court will affect families for generations to come. "she said. Dr Bastien reiterated that "It concerns me that currently the law allows a family court judge to deny a  parent the right to file a complaint of bias against the therapist. The law allows a disparate application when it comes to therapists, known in court as child custody evaluators. “

She added, "There are a tremendous number of complaints to the Board of Psychology or Board of Social Sciences against courts evaluators. Because of this, the law allows the judge to block a complaint against them. Any professional should have a process to file a complaint but if the judge decides that the complaint should not go forward then it will not go forward. That judge can give the court evaluator immunity from complaints. This needs to monitored."

 

The Woody Allen case

As mentioned by Salcido,"A prime example of child abuse would be the recently noted Woody Allen case. What can we learn from the accusations against Woody Allen? http://centerforjudicialexcellence.org/2014/02/13/what-can-we-learn-from-the-accusations-against-woody-allen/

The current public drama of accusation being played out between Woody Allen’s adoptive daughter Dylan Farrow and Woody Allen is a familiar dynamic to child abuse professionals who work in the family court arena. Unfortunately, child abuse experts know that family court is a difficult venue for a child who alleges sexual abuse to be protected. While in Dylan Farrow's case, the judge protected her, in many cases children are forced into ongoing contact despite their allegations. The Center for Judicial Excellence has researched cases of custody litigation in which children were placed with their alleged abusers and later judges reversed those decisions. “Through our research, we have identified how and why many courts fail to protect children. One of the main reasons is because many professionals are not well educated in this area and misinterpret the signs of abuse and attribute them to a vengeful parent. Many seek physical evidence when it is rare for physical evidence to exist in molestation cases.” Below are some of the common misconceptions highlighted by the Woody Allen—Dylan Farrow case that led some professionals or court personnel to overlook child abuse in the cases we have studied."

Some informative articles by actress and blogger Nancy Lee Grahn about the Woody Allen-Dylan Farrow case can be found here: http://www.nancyleegrahn.com/my-thoughts-on-dylan-farrow/ Kathleen Russell Executive Director, Center for Judicial Excellence,also contributed to this article. 

 Here is a compilation of the best articles on the web about Dylan Farrow's credibility vs. Woody Allen's- http://centerforjudicialexcellence.org/2014/02/13/what-can-we-learn-from-the-accusations-against-woody-allen.   For more info, please call 415-717-2221 cell 1CJE Facebook Page @JudicialCenter, @MarinKat 

Human trafficking

Trafficking is also a part of the picture and is a huge business. In a recent USA Today article, a suspect’s message was posted with a sonogram photo of a fetus read, “I have a new baby about to be added to the game.”   

The San Diego border region is an international hub for human trafficking, law enforcement officials have warned, thus this is a serious concern locally as well as globally.

Closing statements

Custody awarded to abusers is a local and worldwide problem that plays no favorites.

Increasingly, experts say, this problem must be addressed without the theory of parental alienation, because P.A.S.  itself has been abused and isn't a psychological diagnosis, thus it should no longer prevail in family court, victims’ advocates contend.

For statistics about child abuse, see http://centerforjudicialexcellence.org/wp-content/uploads/2013/12/2008-

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