Actress Tawny Kitaen, in danger of losing custody of her children after being arrested for domestic violence, has just played what family law attorneys often call "the woman's trump card." In her recent custody petition she accused her husband, baseball player Chuck Finley, of domestic violence.
Kitaen's accusation concerns the evening of April 1, when she was arrested for attacking Finley as he was driving the couple home. Police officers reported seeing abrasions and scrapes on Finley's body after Kitaen had allegedly kicked Finley repeatedly with her high-heeled shoes, grabbed his ear and twisted it, and put her foot on top of his, forcing the accelerator to the floor. Kitaen's petition contends that Finley had started that argument by grabbing and twisting her leg while he was driving.
After Kitaen's arrest, Finley was granted temporary custody of their two daughters, ages nine and three.
Pam Sheek, a 51 year-old nanny who has cared for the Finley children for six years, made a sworn declaration shortly afterward stating that Kitaen has a severe prescription drug addiction and that her erratic and abusive behavior has often put the children at risk. She described an incident in March when Kitaen turned on the gas in the gas fireplace log without lighting it and then called the two children to come into bed with her to go to sleep. Sheek, suspicious, entered the room and, smelling the gas, turned off the fireplace, probably saving the lives of both Kitaen and her children.
Dianna Thompson, Executive Director of the American Coalition for Fathers and Children, says that false and unfounded accusations of domestic violence are common in custody disputes, and that Kitaen's is "highly suspect."
She notes that Finley has no prior history of violence but that Kitaen does--the April 1 attack on Finley, and a conflict with a motorist in a parking lot in December for which she was charged with malicious damage. Also, Kitaen has a recent history of drug abuse, and research indicates that drug abuse and domestic violence are highly correlated. Thompson adds that Kitaen is making the accusation at the exact moment when false accusations are the most common--when a parent is about to lose custody of the children in a divorce proceeding.
Forensic consultant Dean Tong, author of Elusive Innocence, believes that in the context of a custody battle, between 60% and 80% of domestic violence accusations are false. According to a study conducted in New York, 75% of child sexual abuse accusations made during custody battles were shown to be unfounded or unsubstantiated.
Thompson and Tong note that the "woman's trump card" is often devastatingly effective.
"Family court judges are often in an impossible situation with DV accusations," Thompson says. "Most of them realize that the accusation is probably false, but the political costs of believing the man are far higher than that of believing the woman. If the judge believes the man and there is violence later, it could haunt his or her career. But the judge risks little by giving custody to the mother making the false accusation, even if she later turns out to be abusive."
One of the biggest reasons for false accusations is our adversarial family court system wherein parents fear that they will be expelled from their children's lives if they lose custody. Destructive custody battles and false accusations are largely driven by this fear. Even in states where there is a presumption of joint legal custody, the parent who is not granted primary physical custody often faces losing the ability to have a meaningful relationship with his or her children or losing contact with them altogether.
The solution to the problem lies in Shared Parenting bills now being considered by the legislatures of several states, including New York, New Jersey, and Michigan. The Michigan bill, for example, creates equality between divorcing couples by replacing the option of Sole Physical Custody, which occurs in the vast majority of custody cases, with the presumption of Joint Legal and Joint Physical Custody, giving equal standing to both parents in a divorce.
If divorcing parents are unable to agree on a shared parenting plan, the courts would instruct the parents to negotiate a plan which would afford both parents equal physical time and decision-making power. The bills allow judges to deviate from this equal arrangement only if there is strong evidence that one of the parents has committed acts which render that parent unfit, such as child abuse or domestic violence.
Replacing the win/lose child custody system with Shared Parenting won't eliminate false accusations, because there will always be some spouses who are vengeful or psychologically disturbed. But it certainly would reduce the high number of false accusations, and help eliminate them as a weapon against decent fathers.
This column first appeared in the Santa Clarita Signal (5/26/02)