Vol. 15 No.9 (September 2005), pp.872-875

 

FROM MADNESS TO MUTINY:  WHY MOTHERS ARE RUNNING FROM THE FAMILY COURTS – AND WHAT CAN BE DONE ABOUT IT, by Amy Neustein and Michael Lesher.  Boston, MA:  Northeastern University Press/University Press of New England, 2005.  320pp.  Cloth. $26.00.  ISBN: 1-58465-462-7.

 

Reviewed by Alice Hearst, Department of Government, Smith College.  Email: AHEARST [at] email.smith.edu

 

The vast majority of Americans, in their lifetimes, will engage with the formal world of law and the judicial system primarily in matters related to the family: marriage, divorce, child custody, property division, and often probate are the stuff of everyday life.  Yet anyone who has contact with the family court system as a scholar, a professional, or a party to an action knows that the system is deeply flawed. Family law generally ranks low in the legal hierarchy; it is sexier (and considerably more lucrative) to practice the law of mergers and acquisitions than to deal with clients whose lives are stressed and whose resources are often limited.  Passions run high, stories are murky and situations are messy.  Family courts are by and large understaffed and personnel poorly trained; they rely in turn on an army of professionals who are often equally under trained or inadequately supported.  But the failures of the system often fall beneath public notice; injustices, when they occur, are individual and thus not often the stuff of media exposés.

 

FROM MADNESS TO MUTINY is a book that tries to draw attention to the human scale of those injustices.  It takes as its arena an even smaller corner of the family court world:  custody disputes in which a mother accuses a father of sexual abuse of a child.  Amy Neustein’s and Michael Lesher’s central argument is that in such cases, mothers routinely find the tables turned with the result that they are labeled hysterical or vindictive women whose actions are themselves harmful to their children.  In such cases, the authors assert, mothers are more likely than not to lose custody of their children, often to the very father they have accused of sexual abuse.  The problem, they argue, lies in the very structure of the family court system, where inadequacies in one dimension augment inadequacies in another.  Judges, who are either weakly prepared to understand issues associated with the sexual abuse of children or biased from the outset against women who levy such accusations, rely on unsupported scientific opinions or the judgment of insufficiently trained professionals and auxiliary personnel who share their biases.  Other features peculiar to family law amplify defects in the system.  Confidentiality provisions intended to limit the unnecessary public display of information about parties’ private lives, and especially concerns about protecting minors, for example, insulate judges and other actors from the kind of scrutiny that might otherwise force more accountability and sounder decision-making.  As a result, Neustein and Lesher argue, it should not be surprising that mothers do not trust the system either to treat them fairly or, more [*873] importantly, to protect their children, and often flee the system altogether. 

 

On many levels, there is extraordinary merit in the claims the authors make.  Judges can be tyrannical, support personnel can act without brakes on their personal biases, and women and children in particular are likely to experience mistreatment.  There are, unfortunately, serious shortcomings in how this book makes its case. 

 

Neustein and Lesher contend that they are engaging in a form of sociological inquiry called “ethnomethodology,” in which they look at what actors in the family court system do and say in their everyday actions.  In theory, they observe how family courts and related personnel come to construct and understand family and parental fitness by examining the public records containing these actors’ explanations for their actions.  Then, through interviews, Neustein and Lesher assess mothers’ strategies to make sense of this structure to produce their own understandings of how the system works.  After explaining the methodology, the authors then devote a number of chapters to each of the actors in the system:  judges (“robed rage”); court appointed representatives for the child (“lawless law guardians”); child welfare personnel (“anti-social services”); and expert witnesses (“mental health quackery”). 

 

The fundamental problem with this book is that the authors presume from the outset that family courts commit “acts of institutional violence” (p.37) every time a mother raises a claim of sexual abuse by a father.  The bitterness in this book makes it difficult to assess its claims, especially because there is very little attempt to set out information about each case in any systematic way. Much of the information taken from transcripts to suggest that judges and family court auxiliaries have ignored clear evidence of sexual abuse is disturbing to say the least, and there have obviously been substantial miscarriages of justice with dire consequences for both children and parents. But it is difficult to determine whether the authors looked at five cases, ten or two hundred, and it is virtually impossible to get a sense of the context of each case.

 

To protect the privacy of the parties, the authors have not provided case names, although there are frequent references to trial transcripts, copies of which one would have to assume are on file with the authors.  Often, it seems, Neustein and Lesher refer to the same case in several chapters, although it is difficult to determine when the citations are vague or non-existent, as on p.44, where the authors cite a case in which a judge restricted a mother’s access to her children based upon a “ ‘shameful display’ of anger toward social workers” without attribution. It simply is not clear how widespread the problem is, because the reader cannot determine to which cases the authors are referring. 

 

Nor does the book follow up any of the cases:  from reading the book—and this appears to be the claim of the authors—one would conclude that the entire family court system is absolutely unregulated and that all of the actors, from judges to social workers to experts, deliberately collude to demonize women and injure children.  Yet, given some of the citations to appeals courts and to legislative hearings, there has been some action to hold judges accountable and to [*874] consider reforms in the system; none of that follow-up information is provided.  What has happened to judges whose behavior has been reported to judicial conduct boards, which exist in every state?  To what extent have organizations responsible for running family courts—the National Council of  Juvenile and Family Court Judges, for example, or state judicial administration offices—developed training in these areas?  The manner in which the book is written suggests that any time a mother raises concern about sexual abuse in any court in the nation, she will be labeled hysterical or vindictive, but it would be interesting, in a scholarly analysis, to have solid factual information about how widespread the problem is and what reform efforts have been suggested or enacted.

 

For example, one of the major issues for the authors has been the widespread reliance of courts and auxiliaries upon the claims of psychiatrists, Richard Gardner and Arthur Green, both of whom developed theories that mothers in custody disputes were likely to fabricate claims of sexual abuse and program children to lie about abuse.  As the authors note, both Green’s and Gardner’s work—and the work of other “experts” who have discounted claims of sexual abuse—have been severely criticized by the wider therapeutic community.  The authors claim, however, that courts have been impervious to these critiques and have continued routinely to rely on this sort of specious science to punish mothers, repeating their criticism of Green and Gardner in virtually every chapter of the book.  Again, there may be truth in these allegations, but it is not clear from the book how widespread the reliance on this sort of bad science has been, nor does it present hard evidence to support the authors’ claim that courts have continued to invoke these theories, despite the proven worthlessness of the theories.

 

In the Introduction, Neustein and Lesher assert that their intention is to show how mothers make sense of the everyday actions of courts and auxiliary personnel.  In various places in the book, there is direct reference to how mothers have interpreted these events.   For the most part, however, the authors themselves have done the interpretation and concluded that the system is riddled with incompetence or malevolence.

 

This is a book that is intended to incite public anger at the inequities of the system—and it is, indeed, a system in woeful need of reform. Many of the reforms, suggested in the concluding three chapters, are worth consideration; indeed, many of these ideas have been in circulation for some time.  It may be true, for example, that the confidentiality of family court proceedings shields ineptitude or spite, and that procedural safeguards could limit the arbitrariness that seems to be part and parcel of the system.  Likewise, it makes eminent sense to develop ethical guidelines for law guardians.  It also makes sense to suggest that attitudes must be fundamentally changed—that family law should not be relegated to the backwaters of the legal system, for example, and that judges should receive training in how to evaluate both the substance and source of mental health expertise.  But the anger expressed in the book wears thin:  instead of presenting a complete picture and allowing the reader to draw his or her own conclusion, the [*875] authors’ style generates suspicion on its own; the reader is left trying to figure out what has not been said.  And that is a shame, since the style should not cover up some very cogent critiques of the system. 

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© Copyright 2005 by the author, Alice Hearst