'She wouldn't lie' mentality tips scales in custody fights

April 25, 2008|By Rinaldo Del Gallo III

Last month, Mark A. Castillo allegedly confessed to drowning his three children in the bathtub of a hotel room at the Inner Harbor. Mr. Castillo, who reportedly told police a divorce and custody battle with his estranged wife had propelled him to kill his children, is charged with three counts of first-degree murder.

The Castillo tragedy might have been seen as a wake-up call to stop being politically correct about mental illness and accept the fact that people who attempt suicide or engage in exceptionally erratic behavior might be unacceptable behavior risks to children. Instead, observers are drawing flawed conclusions from this terrible incident - conclusions that threaten to do serious harm to many innocent fathers embroiled in custody disputes.

What went wrong in the Castillo case, according to domestic violence activists, is not that the courts were allowing an obviously mentally ill person to visit his children. Rather, they seem to feel the problem is that the mother's claims of abuse were not automatically believed.

Horrific, unusual cases such as the Castillos' can be a nightmare for the fathers' rights community. Based on years of experience practicing family law and as a father's rights advocate, I know that such incidents bring activists out of the woodwork to decry a system that does not treat nearly every "he said-she said" accusation as a case wherein what "she said" is the truth. For example, Joan Meier, a faculty member at the George Washington University law school, wrote an opinion piece in The Washington Post this month stating that "mothers rarely fabricate or exaggerate the dangers they see. ... 'Bitter custody disputes' do not arise in a vacuum - most arise in the context of mothers seeking to end abuse or protect their children."

The activists do have a point. If nearly every allegation of domestic violence were accepted on its face as the truth, there would be less domestic violence. However, hundreds of thousands would wrongfully be thrown out of their homes, separated from their children and face undeserved legal penalties.

Such an outcome would contradict what our nation stands for. American society is supposed to avoid prosecution and persecution of the innocent as an acceptable casualty in bringing the guilty to justice and protecting victims.

We will never know what percentage of accusation of domestic violence are false. Most of the time, there is simply an accusation without any supporting evidence - and a denial without any supporting evidence - and it is impossible to know who is telling the truth. It is what we lawyers call a party that has not proved its case. Unfortunately for many men and fathers, after tragic headlines such as the Castillo case, some judges would rather play it safe than sorry. Restraining orders and supervised visitation under such scenarios become more common, in my experience.

Accusations of domestic violence are simply too effective a tool in divorces or child custody cases for some people not to succumb to the temptation of making false or exaggerated claims when a relationship turns bad. A successful early accusation of domestic violence typically leads to the awarding of child custody. That leads to child support and often to advantages in property division. Down the road, child support awards and restraining orders can lead to contempt charges, and before long, a father's life is ruined.

Curiously, our immigration laws also provide an incentive for false claims of domestic violence: If the mother does not have a green card, she can apply for a visa based upon such accusations under the reforms occasioned by the Violence Against Women Act.

Unfortunately, many judges either naively accept the argument that women seldom lie about acts of domestic violence or they accept persecution of innocent fathers as a necessary casualty in protecting women and children. I have tried many cases where judges cut me off when I was trying to prove a mother's motivation to lie. Gruffly, the judges told me that my questions were "irrelevant" and my theories "far-fetched."

This "she would not lie" mentality is infecting our legal system to the point where domestic violence cases are about the defendants proving their innocence rather than plaintiffs meaningfully overcoming the presumption of innocence. Cases such as the Castillos' are exploited to make the situation worse.

Rinaldo Del Gallo III is a practicing family law attorney in Pittsfield, Mass., and a spokesman of the Berkshire Fatherhood Coalition. His e-mail is rdelgalloIII@aol.com.

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