By Laurie Udesky

Six years ago, in 2010, an appellate court in Tennessee affirmed a family court ruling that had awarded Darryl Sawyer* primary custody of his six-and-a-half-year-old son, Daniel.

The court ruled in favor of Sawyer despite evidence presented by his ex-wife that alleged he had sexually abused their child.

Three years earlier, Daniel returned from a visit with his father with suspicious bruises on his bottom. His mother, Karen Gill, immediately took the three-year-old boy to his pediatrician. “Your instant reaction is that you don’t want it to be what it appears to be,” Gill said, choking back tears at the memory. “You really hope there’s another reason for why he has these marks on him.”

But the doctor, Victoria Rundus, confirmed Gill’s worst fears. Dr. Rundus reported to the Tennessee Department of Children’s Services that she found reddish blue bruises on the child’s buttocks that could only occur from an adult “holding his buttocks forcibly open.” Gill thus began a long, arduous battle – that continues to this day – to protect her son.

Gill expected resistance from her ex-husband, but was surprised and shocked to find herself facing an even more formidable obstacle to her son’s safety in family court.

By the time the case was heard by a Tennessee family court judge in 2008, the state’s Department of Children’s Services had already investigated and had determined that Sawyer “‘was indicated’ as the perpetrator of sexual abuse of [their son],” according to court records.

*All of the names of family members involved in custody cases have been changed to protect the children’s privacy.

Nevertheless, the family court judge granted primary custody to Sawyer, warning Gill that if she wanted unrestricted visiting rights with her son, she had better quit talking with the boy about the alleged abuse by his father. What’s more, she had to stop taking her son to doctors to be examined for signs of abuse.

Why did the court give the boy to his father despite credible evidence of abuse? It turns out the family court relied heavily on the recommendations of William Bernet, a psychiatrist and court-appointed custody evaluator. He convinced the family court to ignore the medical report, stating that Sawyer was not a pedophile or child molester and should be awarded custody of Daniel.

Other factors played into the court’s decision as well. Gill had earlier tried to restrict Sawyer’s access to the boy based on allegations that the court deemed unfounded. Gill’s suspicions were aroused, she said, because Sawyer had told her of a family history of incest. She feared Sawyer, in turn, would abuse his own children. Other allegations included comments by her ex-husband that “Satan speaks to him,” physical and verbal abuse toward her and threats of suicide. None of this, the court said, could she prove.

Dr. Bernet declined to comment on the case.

Daniel’s case is not unique.

In family courts throughout the country, evidence that one of the parents is sexually or physically abusing a child is routinely rejected. Instead, perpetrators of abuse are often entrusted with unsupervised visits or joint or sole custody of the children they abuse, putting children in danger of serious, often life-threatening harm, according to children’s advocates.

Our two-year investigation – which includes interviews with more than 30 parents and survivors in California, Ohio, North Carolina, New York, Georgia, Texas, Tennessee, Maryland and New Jersey – uncovered stories of children consigned to suffer years of abuse in fear and silence while the parents who sought to protect them were driven to the brink financially and psychologically. These parents have become increasingly stigmatized by a family court system that not only discounts evidence of abuse but accepts dubious theories used to undermine the protective parents’ credibility.

“Protective parents are asking the authorities to step in and protect their children and they’re not,” said Kathleen Russell, executive director of the California-based Center for Judicial Excellence (CJE), a watchdog group that focuses on family courts.

In scores of cases, the consequences have been lethal. News reports alone, while not comprehensive, paint a startling picture. From 2008 to 2016, 58 children were killed by custodial parents after family courts around the country ignored abuse allegations by the protective parent, according to an analysis of news reports conducted by CJE. In all but six cases, protective parents were mothers who had warned family courts that their children were in danger from abusive fathers who later killed them.

“The authorities are blaming the protective parents and pathologizing them, and their kids are ending up dead,” said Russell.

How do family courts get away with these kinds of decisions?

“You can take the same amount of evidence to criminal court and a jury will convict beyond a reasonable doubt,” said attorney Richard Ducote, who represents protective parents trying to regain custody of their children. “And the appellate court will uphold the conviction and the sentence.”

“They’re concerned with the reduction of conflict `{within the family}` and getting along, which is good unless there is someone you need to protect the child from.”

But family courts have a different focus, explained Ducote, who also worked as a special assistant district attorney statewide in Louisiana prosecuting termination of parental rights cases. In theory they are supposed to consider first the best interest of the child. But in practice, Ducote said, “They’re concerned with the reduction of conflict [within the family] and getting along, which is good unless there is someone you need to protect the child from.”

Court records are often sealed, a practice intended to protect the privacy of children. As this investigation shows, however, it’s a practice that can put children in greater danger by blocking outside oversight.

Moreover, the high cost of litigation throws up a formidable obstacle for most parents fighting to get their children out of harm’s way. There is little research on court costs, but a preliminary analysis of a national survey of 399 protective parents by Geraldine Stahly, emeritus professor of psychology at California State University, San Bernardino, showed that, for some 27 percent of these parents who ultimately declared bankruptcy, the costs were about $100,000.

The high cost of litigation throws up a formidable obstacle for most parents fighting to get their children out of harm’s way.

No government agency tracks the number of children nationally that family courts turn over to their abusers, and existing academic research is largely regional.

No government agency tracks the number of children nationally that family courts turn over to their abusers, and existing academic research is largely regional. Advocates have tried to put a number on it by culling statistics from primary and academic sources. They estimate that at least 58,000 children a year end up in unsupervised visits with or in the custody of an abusive parent. A 2013 analysis in the Journal of Family Psychology cited studies that show that anywhere between 10 and 39 percent of abusers are awarded primary or shared custody of their children.

However difficult it may be to quantify, high-level government officials recognize the breadth of systemic failure. “It’s a terrible situation,” said Lynn Rosenthal, who served as the White House Advisor on Violence Against Women from 2009 to 2015. Before going to the White House, Rosenthal personally saw the extent of the problem while working with many state coalitions on child welfare and domestic violence. “We saw this all over the country,” she said.

How do abusers get custody?

A big part of the answer lies in the very experts that courts turn to for help in evaluating the fitness and safety of parents.

In sounding the alarm over her suspected abuse by her ex-husband, Gill ran squarely into an unexpected obstacle. Bernet and his colleague, James Walker, stated in a joint report that they used a battery of tests to evaluate Sawyer. They claimed that Sawyer tested as “low risk” for sexual offenses and was not a pedophile. These tests included a sex offender risk test known as the Static-99, the Minnesota Sex Offender Screening Tool, the Sex Offender Risk Scale and the Abel Exam for Sexual Interest.

But according to Anna Salter, PhD, who has conducted research with sex offenders for two decades, using such tests in family court is meaningless. “They can’t be used to determine if someone is a child molester,” explained Salter, who is the author of “Predators: Pedophiles, Rapists and Other Sex Offenders” and a consultant with the Wisconsin Department of Corrections. Instead, she said, the tests were intended to evaluate people already convicted of child molesting to determine the likelihood of recidivism. The Abel exam, which tests for sexual interest in children, does not yield meaningful results, she said. “It is based on how long you look at the pictures of the children. There are now sites that tell you how to fake it – ‘just look away.’”

Beyond the tests, Bernet also wrote that Gill, not Sawyer, was causing harm to their son. “Since 2003, [Gill] possessed personality traits of parents who make false allegations of sexual abuse,” such as “strongly criticizing” Sawyer. Bernet also ascribed “narcissistic tendencies” to Gill, stating that she “appears to lack insight into the strong feelings and motivations that are driving her current behavior in casting [Sawyer] as a child abuser.”

Among his primary concerns, wrote Bernet, was that if Gill were allowed to continue questioning her son about his father’s actions, she would “induce [Daniel] to share her false beliefs.”

Bernet dismissed Daniel’s claim that his father had “put a stick in my butt,” writing that the child was, rather, making up a fantastical story under prompting by his mother. Similarly, he contended that an interview with Child Protective Services did not show Daniel was “capable of giving a simple, coherent description of a past event” Of the bruises on the child’s buttocks, Bernet noted that Sawyer said he thought they were from water slides at the two water parks that he and Daniel had visited two days in a row. His acceptance of Sawyer’s explanation at face value appeared to ignore a physician’s description in court records of bruises “shaped like thumbprints”