A letter from Họn Doris A. Pechkurow to Dr. Petra Deeter on Oct 25th 2022:
Dr. Petra Deeter,
I am responding to your request for input about legislative interference in child custody matters, an issue with which I became involved when the Pennsylvania Senate passed a bill known as “Kayden’s Law,” which will amend the state custody code if passed by the House of Representatives. The legislation stemmed from the tragic killing of an eight year old child by her father during a period of custody, for which tragedy the press & “advocates” blamed the judge who had done nothing wrong and had entered a careful and considerate order after hearing all the evidence.
During that particular custody hearing, there was no testimony that anyone had concerns about the child’s safety with her father, who had had regular periods of custody with the child for years, as arranged between the parties. The judge reduced father’s custody time from four to one day on alternating weekends to limit the child’s exposure to father’s angry outbursts at other persons, of which there was a record. But none of the press coverage provided accurate information about the hearings, even though the transcripts were made available to the public.
Significantly, neither the state nor any county bar association, nor any agency that advocates for families and children in the state, supported the legislation because of problematic provisions fashioned by the legislature, such as mandating professional supervised custody without any regard as to its availability in any given county or the inability of the parties to pay.
The chief sponsor of the bill capitalized upon erroneous and misleading “statistics” disseminated by organizations such as the Center for Judicial Excellence, which has tracked the killing of children by parents dating back to 2008, currently 872 in number. Notwithstanding that only 118 of these tragedies (13.5%) had some court involvement, the website has as its mission”to protect vulnerable children in the family court system and to strengthen the integrity of all courts by creating judicial accountability,” overlooking the vulnerability of 86.5% of the homicide victims.
Had anyone with the Center actually researched the court-involved cases, they would have seen that the five child homicides in Pennsylvania, for example, that had some court involvement, out of a total of 33 such homicides dating back to 2009, none of the tragedies was attributable to any court’s having placed a child in harm’s way, as claimed by the agency. One child was killed during a period of supervised custody, two siblings were killed during a period of custody agreed upon between the parties, one child was killed as a result of a suicide pact orchestrated by paternal grandmother and father, to prevent mother from having her scheduled period of custody, and the 5th case was the child Kayden, as discussed above.
The chief sponsor of Kayden’s law accused courts of failing to read signs of domestic abuse and awarding custody or unsupervised visitation to an abuser 81% of the time, based upon a review of 4000 domestic court cases (without citing the authority). Court records show that claim is preposterous and has no basis in reality.
According to annual reports of the Administrative Office of Pennsylvania Courts, approximately 512,000 custody orders have been entered since 2009, compared with 151,920 Protection from Abuse Orders entered between 2010 and 2020, the majority of which do not involve parties with children. In fact, a review by court staff of 347 custody cases scheduled for a hearing in Philadelphia in early 2021 showed that only 49 cases (14%) had some form of Protection from Abuse involvement, where 18 had current protection orders, 22 had expired protection orders and in 9 cases domestic violence petitions were pending.
In addition, a Westlaw Next search of approximately 9000 custody appeals filed in the Pennsylvania Superior Court during the past fortyyears showed that a claim about a Protection from Abuse matter was raised in only 177 cases, and in only sevencases did the party filing the appeal complain that an abusive party was awarded primary, joint or partial custody. But such fact-based, reliable information was never considered by the legislature and is wholly ignored by “advocacy” agencies such as the Center for Judicial Excellence.
Unfortunately, the misinformation was incorporated into the federal Violence Against Women Act this year when Congressman Brian Fitzpatrick followed the lead of the state Senator who had sponsored Kayden’s Law, and made it part of the federal legislation, specifically Section Title XVI of the Act.
Section 1602 of the Act, paragraph (6) states, “Empirical research [from?????] indicates that allegations of child physical and sexual abuse are regularly discounted by courts when raised in child custody cases, with fewer than one-fourth of claims that a father has committed child physical or sexual abuse believed.”
Query: In what world are allegations of sexual abuse of a child raised and litigated in family court as opposed to criminal court???
And in most jurisdictions, allegations of child abuse are handled by child protective services in separate court proceedings, not in child custody hearing.
Paragraph (8) of section 1602 further states that more than 100 of the 800 children murdered in the United States in custody disputes (presumably referring to the statistics published by the Center for Judicial Excellence), “are known to have occurred after a court ordered the child into contact with the dangerous parent over the objection of a safe parent or caregiver.” Yet, no such court order was made in the five Pennsylvania child homicide cases and it cannot be said that the Center reviewed any transcripts or court proceedings in these 100 cases, as opposed to making blanket, unsupported claims about the courts.
Title XVI also has provisions that link federal funding to requirements that courts take or refrain from taking certain actions in custody cases, with no caveat whatsoever specifying that the totality of evidence and determination of credibility must first be made, in clear violation of due process. And, needless to say, not a single penny is designated to fund facilities where supervised visitation can occur to provide protection for the child when one parent has been shown to perpetrate domestic violence against the other parent.
As a recently retired Philadelphia Family Court Judge, I spent almost eighteen years in family court where, on a regular basis, I heard and saw scenarios that were astonishing and disturbing. It was often challenging to determine who was telling the truth, particularly where there was no objective evidence to show anything one way or the other. Fortunately, in one case a court video camera showed the child’s claim of inappropriate sexual conduct by a parent was false and in another case, the parent’s cell phone video showed the child was enjoying himself with relatives during a custody visit and was not locked away in a room as he testified in court. In both instances, the custodial parent had clearly been influencing the child, which both state and federal versions of Kayden’s law assume never occurs.
Had there been no independent evidence to show the children were lying and had I concluded they were not telling the truth, when I entered the custody decisions, both Kayden’s Law and Title XVI of the Violence Against Women Act would have condemned my decisions as failing to protect the child.
In summary, neither state nor federal legislation should be enacted to dictate how child custody cases are handled when such legislation is based upon press accounts and “research” promulgated by self-serving agencies, to the exclusion of trial transcripts and court records made available to the public which contradict the press accounts and “research”. It is ironic how these advocacy agencies and legislators claim that judges do not know this or that when neither members of the agencies nor legislators have spent any time observing child custody hearings or reviewing trial transcripts. Had they done so they would have realized that, while there are exceptions, the majority of family court judges are dedicated civil servants whose challenges and responsibilities are unique among all the various facets of law and that they should be provided with resources that help them meet their responsibilities in determining what is in the best interests of the child.
Hon. Doris A. Pechkurow (retired)