MORGAN V. FORETICH EDITORIAL/CRITICAL COMMENT The following Law Review article is presente

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MORGAN V. FORETICH <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> EDITORIAL/CRITICAL COMMENT <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> The following Law Review article is presented because of its civil liberties issues regarding contempt incarceration. However, the highly biased viewpoint of its author clouds the fact that every competent expert witness, and every court, has found in factual favor of the falsely-accused father, Dr. Foretich. Regardless of how you interpret the constitutionality of contempt incarceration, if you have information which might assist Dr. Foretich to retrieve his wrongfully hidden daughter Hilary from Dr. Elizabeth Morgan and the "underground railway" which continues to hide the child, please call the Washington, DC Police. <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> For Educational/Critical Use Only: <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Copyright (c) The American University Law Review 1989 SPRING, 1989 38 Am. U.L. Rev. 491 ARTICLE: CUSTODIAL PARENTS, CHILD SEXUAL ABUSE, AND THE LEGAL SYSTEM: BEYOND CONTEMPT. * * (c) 1989 Susan Apel SUSAN B. APEL ** ** Assistant Professor, Vermont Law School; J.D., Northeastern University School of Law, 1977. In addition to academic credentials, I have practiced law for over ten years; my practice was varied but always contained a substantial domestic relations component. I wish to thank my research assistant, Gayle Middleton, and my colleagues, Michael Mello, Paul Ferber, and Gil Kujovich, for their support and guidance, but mostly for their enthusiasm and willingness to read and comment on the various drafts of this article. I am also grateful to Jane Graves for her invaluable contributions to the production of this article. INTRODUCTION Dr. Jean Elizabeth Morgan has been incarcerated in the District of Columbia Detention Facility since August 28, 1987. The superior court ordered her incarceration after she refused to obey an order requiring her to send her five year old daughter, Hilary, on a two-week unsupervised period of visitation with the child's father, Dr. Eric Foretich. Her refusal was based upon her belief that Dr. Foretich had repeatedly sexually abused their daughter over a period of at least three years. Dr. Morgan's attempts to protect her daughter through use of the legal system persisted for more than two years. In numerous proceedings, n1 she presented evidence that her daughter suffered sexual abuse by Dr. Foretich during her visits with him. This evidence failed to convince the court that the sexual abuse had in fact occurred. n2 The superior court ordered that Hilary be delivered to Dr. Foretich for visitation, and Dr. Morgan refused to comply with the order. n3 Accordingly, the court held Dr. Morgan in civil contempt of its order, and informed her that she could purge herself by delivering her daughter to Dr. Foretich for unsupervised visitation. n4 Dr.Morgan continued her refusal to comply with the visitation order due to her belief that unsupervised contact with the father would result in further sexual abuse of her child. Having no further legal recourse, she placed the child in hiding in the care of persons and in a location that she would not reveal. Subsequently, she was incarcerated in a Washington, D.C. jail. n1. The procedural history of this case is long and complex. Nonetheless, it is important to note in order to understand how Morgan and others like her chose the ultimate course of action that has resulted in a finding of contempt. The following, drawn from Morgan's Petition for Writ of Habeas Corpus by Person in Custody of District of Columbia, Morgan v. Plaut, No. 88-492 (D.D.C. filed Feb. 24, 1988) [hereinafter Petition for Writ of Habeas Corpus], and Morgan v. Foretich, 521 A.2d 248 (D.C. 1987), is a partial history. Unfortunately, since the superior court chose to seal the record of proceedings, much information is beyond the reach of the public. 1983-84 -- Morgan complies with court order granting Foretich visitation rights with Hilary. Morgan v. Foretich, 521 A.2d 248, 249 (D.C. 1987). Jan., 1985 -- Morgan, on advice of social worker who suspected sexual abuse, seeks temporary restraining order to suspend visits pending an evaluation of Hilary. Court denies motion. Morgan complies with order. Morgan v. Foretich, 546 A.2d 407, 408 (D.C. 1988), cert. denied, 109 S. Ct. 790 (1989). Nov., 1985 -- Morgan seeks temporary suspension of visits to enable valid evaluation of Hilary. Foretich moves to oppose evaluation. Court finds evidence of abuse "inconclusive" and denies Morgan's motion. Id. Feb., 1986 -- On advice of Mary Froning, Hilary's therapist, Morgan suspends visits. Foretich moves for contempt. Morgan cross-motions for suspension of visitation. Id. Petition for Writ of Habeas Corpus. June, 1986 -- Hearing on above motions. Court holds that Morgan did not prove abuse by "preponderance of evidence," and orders a month-long unsupervised visit between Foretich and Hilary. Morgan does not comply. Id. Morgan v. Foretich, 546 A.2d at 408. Aug., 1986 -- Hearing to show cause why Morgan should not be held in contempt. Imprisoned for several days and nights; released pending appeal with various conditions imposed including the posting of $ 200,000 security. Id. at 409. Apr., 1987 -- Court expands order and once again allows unsupervised weekend visits. Morgan complies. Hilary complains of sexual abuse during first and at least two other subsequent visits. Foretich moves for a change of custody and termination of Morgan's parental rights. Morgan cross-moves to suspend visitation or to mandate supervised visitation. Id. Aug., 1987 -- Court orders two-week unsupervised visit. Morgan does not comply. Seeks modification again; court refuses. Contempt hearing held; Morgan found in contempt but given opportunity to purge herself by turning child over for visitation. Morgan hides child and begins indefinite prison sentence for civil contempt, and is ordered to pay part of Foretich's legal fees. Id. at 410. n2. The transcript of this hearing is currently under seal and therefore unavailable to the public. As previously stated, several related hearings were held on the parties' motions and cross-motions to modify the order regarding visitation rights and custody, as well as the three hearings on contempt charges. Relevant portions of these hearings were also placed under seal by the court. The record that is available, however, shows that the information relied upon by Dr. Morgan and presented to the court by the time of and including the final contempt hearing in August, 1987, included but was not limited to the following: the child's own, often sexually graphic, statements to her mother, grandmother, three psychiatrists and psychologists, a nurse, a pediatrician, a social worker, and a police officer; the professional opinions of Dr. Charles Shubin, a pediatrician specializing in the diagnosis of sexual abuse in children; the professional opinion of child psychologist Mary Froning, a specialist who counselled the child over a period of one-and-a-half years and who specifically advised Dr. Morgan that unsupervised visitation would result in grave and imminent danger to her daughter; the professional opinion of Dr. David Corwin, another specialist in child abuse, who spent over 200 hours evaluating Hilary's case and who joined in the conclusion that Hilary had been sexually abused by her father; allegations of Dr. Foretich's sexual abuse of another daughter from a previous marriage, and testimony and part of a videotape depicting Hilary's behavior generally and specifically after a visit with her father. Petition for Writ of Habeas Corpus, supra note 1. Presumably, the testimony of all of the aforementioned experts was placed before the court and admitted into evidence. The court excluded transcripts of a hearing regarding the alleged sexual abuse of Dr. Foretich's other daughter as not relevant. In a separate action for damages brought by Dr. Morgan in the federal court, the United States Court of Appeals for the fourth Circuit reversed the lower court's similar exclusion of this evidence. Morgan v. Foretich, 846 F.2d 941, 944 (4th Cir. 1988). n3. See supra note 1 (detailing procedural history of case). n4. Morgan v. Foretich, 546 A.2d 407, 410 (D.C. 1988), cert. denied, 109 S. Ct. 790 (1989). At the time of the writing of this article, Dr. Morgan remains in prison. Her medical practice has been destroyed; the court has attempted to seize her home to pay for fines of $ 5,000 per day imposed in connection with earlier contempt proceedings. n5 The child, Hilary, remains in hiding and ostensibly has had no contact with either of her parents, including the visitation sought by Dr. Foretich, for more than a year. Characteristic of the civil contempt order (by which Dr. Morgan was imprisoned), the present status may continue indefinitely. n6 n5. Id. at 412. The trial court's order requiring forfeiture of Morgan's home was overturned on appeal. The appellate court found that she had agreed to post her home as security for her appearance in court but not to ensure general compliance with the court's order. Id. n6. Dr. Morgan has stated repeatedly that she will never acquiesce to the provisions of this court order and that she is prepared to stay in prison until Hilary reaches the age of majority (presumably at that point the visitation order will expire). Petition for Writ of Habeas Corpus, supra note 1, at 7. Elizabeth Morgan's case is not an isolated incident. Custodial parents, most of them mothers, have been faced with the Hobson's choice of defying court visitation orders to protect their children, thereby risking contempt charges, or heeding the court order and placing their children in danger of further sexual abuse by the noncustodial parent. n7 Some, like Dr. Morgan, defy the court order and are incarcerated. Others defy the court order and flee with their children, thus avoiding contempt charges and the resulting imprisonment. n8 n7. See H. CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES @ 19.4 at 800 (1988) and accompanying note (documenting that custody of children continues to be awarded to mothers in the majority of cases) Keating, Children in Incestuous Relationships: The Forgotten Victims, 34 LOY. L. REV. 111 (1988) (relating stories of mothers similar to Dr. Morgan who face negative judicial response to allegations of child abuse). The vast majority of sexually abused children, male and female, have been abused by men. One study showed that in roughly half of the reported cases, the biological father is the alleged perpetrator while only eight percent of the alleged perpetrators were female. Thoennes and Pearson, Recommendations from the Sexual Abuse Allegations Project,in NATIONAL LEGAL RESOURCE CENTER FOR CHILD ADVOCACY AND PROTECTION, AMERICAN BAR ASSOCIATION, SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES 20(E. Nicholson, ed. 1988), See also D. FINKELHOR, CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 73 (1984) (finding in survey of Boston families that 94% of sexual abuse victims were assaulted by men). n8. See infra note 53 and accompanying text; see also Keating, supra note 7, at 111-12 (discussing cases in which mothers hid their children to escape allegedly abusive fathers). This Article will examine the problem of the custodial parent who refuses to comply with a court order granting visitation rights to the noncustodial parent as a result of allegations of sexual abuse by the noncustodial parent. Part I of this Article will explain briefly why it is difficult, at best, to prove allegations of sexual abuse in court. It is this difficulty, and, at times, impossibility, that forces the custodial parent to search for alternatives outside of the law. Parts II and III will explore, respectively, civil and criminal contempt -- the legal system's responses to the custodial parent who defies the court order --and explain why the use of civil or criminal contempt in this situation is ineffective and counterproductive. Parts IV and V will examine the use of the necessity defense in criminal prosecutions and the standards used in assessing culpability for violation of criminal custodial interference statutes. Part VI proposes a new standard, based on the necessity defense doctrine, to be applied in contempt proceedings against custodial parents such as Morgan. This standard recognizes that a good faith belief that violating the court order was necessary to protect the child from further harm should be a complete defense to charges of contempt. Finally, Part VII analyzes the practical ramifications of adopting such a standard, and concludes that the difficulty of proving allegations of child abuse, the inherent limitations of the legal system, resource allocation questions, and a focus on the best interests of the child lead to a conclusion that the courts would do well to honor the good faith belief of the custodial parent instead of imprisoning her, even at the expense of the rights of the noncustodial parent to maintain contact with the child. I. THE DIFFICULTY OF PROVING CHILD SEXUAL ABUSE IN COURT The judicial system is this culture's legal mechanism for resolving disputes. Despite occasional questions about whether or not courts are the optimal method of dispute resolution for problems of a domestic nature, courts certainly have not abandoned their function in the family law sphere. The courts still arbitrate disputes over disposition of property, awards of alimony and child support, and custody and visitation. n9 Thus, a custodial parent who suspects sexual abuse, and therefore wants to stop or modify existing visitation rights, could be expected to turn to a court for relief. Upon proof that abuse did in fact occur (and presumably, that it might continue), the court would then take appropriate steps to modify the original parent and the child. n10 n9. See H. CLARK, supra note 7, @ 12.4, at 443, @ 12.5, at 456 (describing judicial participation in resolution of family law disputes). n10. NATIONAL LEGAL RESOURCE CENTER FOR CHILD ADVOCACY AND PROTECTION, AMERICAN BAR ASSOCIATION, SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES 6 (E. Nicholson, ed. 1988) [hereinafter SEXUAL ABUSE] (explaining court involvement in abuse cases between divorced parents). The obvious question, then, is why Elizabeth Morgan, after repeated attempts to get the court to intervene, failed in her efforts to prove that her ex-husband had sexually abused their daughter. Her inability to prove that her child had been abused, and that her ex-husband was the abuser, may be seen as indicative of one of three things. First, although the evidence was sufficient,the judge did not act properly. In this case, one could simply say that an occasional incompetent or prejudiced judge is a regrettable "glitch" in the system and, fortunately, one contemplated and therefore provided for; an appeal of the judge's ruling would "correct" the situation. n11 Second, the abuse complained of simply did not occur. In this instance, justice would have been served by the present result. n11. Appellate courts, however, rarely reverse custody decisions because they place great weight on the trial court opinions, reversing only when the trial court abuses its broad discretion. Nicholson, Child Sexual Abuse Allegations in Family Court Proceedings: A Survey of Legal Issues, in SEXUAL ABUSE, supra note 10, at 258; see also Lehman v. Billman, 178 Mont. 367, 373, 584 P.2d 662, 665 (1978) (deferring to district court on issue of custody and child's best interest). However, a third possibility exists -- that even in cases in which abuse has in fact occurred, if is often, and perhaps almost always, impossible to prove within the evidentiary rules and the adversarial nature of the current legal system. n12 Lack of corroborating witnesses, the age of the victim, the real and perceived problems in the competency and credibility of child witnesses, the clash of the rights of the victim with the sixth amendment confrontation rights of the defendant, and the responses and prejudices of the culture as a whole, carried into the courtroom by judge and jury, combine to make child abuse "one of the most difficult crimes to detect and prosecute . . .." n13 n12. See SEXUAL ABUSE, supra note 10, at 12-14, 17 (presenting reasons for judicial skepticism in abuse cases and maintaining that "all but the most flagrant cases of sexual abuse are difficult to validate"). It is not my intent to make reformation of the legal system the focus of this Article; it is important, however, to acknowledge the reality that causes parents to abandon the system that is supposed to resolve family problems. Nor, as this section of this Article will indicate, do I propose that the legal system is solely responsible for the problems in proving a case of child abuse; other factors, social and psychological, play a role as well. n13. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). The most obvious problem of proof is that sexual abuse of children, like rape, is a crime that is done privately, often in the home where there are few, if any, witnesses, The victim is often the only witness. n14 Adult women have suffered through decades of being unable to prove that they had been raped because no one had seen it happen; n15 until recently, the law itself often demanded corroborating evidence in order to secure a conviction. n16 In both cases, the problem has been the same, albeit for different reasons; women are often suspected of "consent," while children are suspected of "fabricating." n17 n14. See Morgan v. Foretich, 846 F.2d 941, 945 (4th Cir. 1988) (explaining need for admitting hearsay testimony in child abuse cases). n15. See D. RUSSELL, SEXUAL EXPLOITATION 100 (1984) (reporting results of study of rape victims in which only 20% of rapes had been reported). n16. Id. at 138 (characterizing American society as rape- supportive and citing reasons for failure of effective rape adjudication). n17. Id. (discussing notion that women consent to rape). Children are often accused of lying about sexual abuse, whether for reasons of their own or because they are suspected of being brainwashed by adults. n18 Our culture is one that simply does not find children credible. n19 The notion that children cannot be believed is entrenched in our legal system as well as the larger culture. Children under a certain age may be deemed by law to be incompetent as witnesses; in other instances, an elaborate voir dire on the issue of the child's understanding of the truth may be required to allow the child to testify at all. n20 Most experts, however, agree that the percentage of cases in which children lie about sexual abuse is very low, in some studies as low as two to four percent. n21 n18. J. CREWDSON, BY SILENCE BETRAYED: SEXUAL ABUSE OF CHILDREN IN AMERICA 169-70 (1988) (discussing reasons why children tell lies and improbability of children lying in sexual abuse cases). See also Keating, supra note 7, at 115 (noting misconception of children's untruthfulness). n19. Bulkley, Evidentiary and Procedural Trends in State Legislature and Other Emerging Legal Issues in Child Sexual Abuse Cases, 89 DICK. L. REV. 645, 665 (1985) (showing that children are no more likely to prevaricate than adults). n20. For a discussion of competency laws and their effect upon the child's ability to testify, see Note, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. MIAMI L. REV. 245, 257 (1985). No state bars the victim's testimony, but each differs as to what is required to establish competency of a minor to testify. On the other hand, some state legislatures have enacted statutes in which competency is assumed for purposes of child abuse cases. Id. at 253. See also ALA. CODE @ 12-11-165 (1975) (permitting any person competent to understand oath to act as witness); CAL. EVID. CODE @ 701 (West 1966) (understanding of truth and ability to be understood by jury determinative of competency); MASS. GEN. LAWS ANN. ch. 23 @ 20 (West Supp. 1985) (deeming as competent every person who can understand facts of testimony). n21. J. CREWDSON, supra note 18, at 169. In Sink, Studies of True and False Allegations: A Critical Review, in SEXUAL ABUSE, supra note 10, at 40-41, the author reports the following studies: Jones (1986): of 576 referrals of child sexual abuse made to Department of Social Services in Denver, Colorado in 1983, 6% fictitious reporting by adults, 1% fictitious reporting by children; Horowitz, Salt, Gomes-Schwartz & Sauzier (1984): of 181 cases of child sexual abuse reported to Family Crisis Program in urban Boston, of 92 reported by children, 85 were substantiated, 7 were false, and of 76 reported by others, 9 were false; Goodwin, Sahd, & Rada (1979): of 46 such reported cases, 1 false allegation by child, 2 false allegations by parents. The issue of credibility, as problematic as it may be, presumes that the child is capable of communicating at all. Many child abuse victims are pre-verbal; those who can talk may not have the vocabulary to adequately express what has happened to them. About half of sexual abuse victims may be under the age of five years; one writer states, "[m]any abusers have figured out what prosecutors already know, that it's open season on very young children." n22 Thus for half of the victims, the issue of credibility is not even reached; the child is simply unable to put words together that will adequately describe the crime. n23 n22. J. CREWDSON, supra note 18, at 162. Research concerning the ages of victims of sexual abuse is inconclusive. See Bulkley, supra note 19, at 647. While studies of the National Center on Child Abuse and Neglect place the age higher than does Crewdson, the statistics appear to show a shift downward. In 1981, the Center reported the average age of the victim to be between 11 and 14 years, followed by another study showing the majority of victims to be under the age of 12. The Center cited one program which showed that one-third of all victims were under the age of six years at the time of the abuse. Id. n23. See Morgan v. Foretich, 846 F.2d 941, 943 (4th Cir. 1988) (noting that two-thirds of sexual abuse cases go unreported and those that do reach trial are difficult to prosecute) (citing Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 HARV. L. REV. 806, 807 n.7 (1985)). Without the child's testimony, the court could look to expert witnesses, which is most often done in the form of medical evidence. Such evidence, however, is difficult to come by. Children can be repeatedly abused and yet have no physical symptoms. n24 Assuming physical symptoms or the presence of a sexually-transmitted disease, such evidence may prove half a case: that a child was abused, but not by whom. In addition, many physicians are not adequately trained to detect symptoms of sexual abuse of children; the same is true of mental health professionals. n25 Training of these professionals, when it exists, quite naturally focuses upon the ability of the professional to detect and treat medical and psychological disorders. It does not prepare medical and mental health workers to elicit or preserve evidence that is necessarily useful in a court proceeding. n26 For example, the interview of the child may reveal that abuse has occurred, but the manner in which the interview is conducted (e.g., leading questions) may tarnish the evidence of the child's statement. n27 n24. See J. CREWDSON supra note 18, at 164 (discussing difficulties of proving child abuse through physical examination). n25. See id. at 161-62. n26. One writer neatly captures this difference in approach by referring to "two formal ways that a determination about abuse of a child . . . is made: legal fact-finding and forming a professional opinion." Berliner, Deciding Whether A Child Has Been Sexually Abused, in SEXUAL ABUSE, supra note 10, at 49. n27. See Goodman & Helgeson, Child Sexual Assault: Children's Memory and the Law, in AMERICAN BAR ASSOCIATION, PAPERS FROM A NATIONAL POLICY CONFERENCE ON LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES: A REPORT OF THE AMERICAN BAR ASSOCIATION CHILD SEXUAL ABUSE LAW REFORM PROJECT 41, 46 (1985) [hereinafter LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES] (warning against placing children in situations in which they are susceptible to suggestion); Goodman, The Child Witness' Conclusions and Future Directions for Research and Legal Practice, in LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES 61, 74 (debating value of expert testimony in abuse cases). Assuming that a child is both physically and legally able to testify, the nature of a child's ability to perceive and to remember, combined with the adversarial nature of the court proceedings, often makes the child a poor witness: [T]he [defense] lawyer has a single, overriding goal -- to show that the child, for reasons of his own or at the behest of some adult, has made up the allegations. If such a contest seems like a gross mismatch, it usually is -- an intelligent, well-educated trial lawyer with years of experience in questioning hostile witnesses pitted against a child who is easily confused about time, place, and the sequence of events, who tells different parts of the same story at different times, and who links things in his mind that may not be connected. "Didn't you tell the police this happened in the bedroom?" the defense attorney may ask. "Now you're saying it happened in the bathroom." Perhaps the door between the bedroom and bathroom was open; perhaps the abuser took the child from the bedroom into the bathroom, but to the adults on the jury, who have learned to equate consistency with truthfulness, it begins to sound as though he is making the story up. n28 n28. J. CREWDSON, supra note 18, at 166. = While some accommodations have been made to ease a child's testifying in child abuse cases, such as testifying in camera or through use of a video monitor or some expansion of the hearsay exceptions, n29 there are constitutional standards that will allow such tinkering with the system to go only so far. n30 Probably no amount of adjustment would prevent a defense attorney from engaging in the kind of cross-examination described above, with its concomitant effect on a jury. n29. Twenty-two states permit adult witnesses to testify to statements made to them by child victims. See Note, Pennsylvania v. Ritchie: The Supreme Court Examines Confrontation and Due Process in Child Abuse Cases, 34 LOY. L. REV. 181, 186 n.41 (1988); see also Bulkley, supra note 19, at 657-64 (discussing adaptations by legal system to problem of proving child abuse in court). A judge may also separate abuse allegations from other connected family law proceedings and have the case tried in juvenile court. Edwards, The Relationship of Family and Juvenile Courts in Child Abuse Cases, 27 SANTA CLARA L. REV. 201, 202 (1987). Other means of determining outcomes of sexual offense cases include the use of anatomically correct dolls, the hiring of special advocates to prepare children, and having specially equipped waiting or =interviewing rooms. Nicholson, Child Sexual Abuse Allegations in Family Court Proceedings: A Survey of Legal Issues, in SEXUAL ABUSE, supra note 10, at 267. n30. In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), for example, the Court discussed whether restrictions on access to social service agency files violated a defendant's sixth amendment right to confront adverse witnesses. Although the Court did not take an expansive view of the right of confrontation and openly acknowledged the difficulty of proving a claim of child abuse, the plethora of separate opinions, including a strong dissent, indicated that the issue was far from settled. See id. at 62 (Brennan, J., dissenting). Indeed, one year later, in Coy v. Iowa, 108 S. Ct. 2798, 2803 (1988), the Court held that a defendant's sixth amendment right to confrontation was violated when the trial court permitted the child victims to testify in court behind a screen. Use of such a device was unconstitutional because it deprived a defendant of face-to-face confrontation. See Mlyniec & Dally, See No Evil? Can Insulation of Child Sexual Abuse Victims Be Accomplished Without Endangering the Defendant's Constitutional Rights?, 40 U. MIAMI L. REV. 115, 116 (1985) (analyzing attempts to shield child abuse victims and effects on defendants' constitutional rights). Culturally, child sexual abuse is such a taboo that most of the participants in the legal (and perhaps other) system(s) want to turn away from it. No one wants to believe it is true. Despite the fact that an estimated twenty-two percent of Americans have been sexually abused as children, n31 many people, including juries and judges, find it difficult to believe that it happens. Moreover, most parents who have abused their children do not fit any particular profile; therefore, the accused abuser is likely to look and act just like any of the jurors or the judge. n32 To the extent that fact-finders may identify with the alleged abuser, then, it is even more difficult to convince them that a seemingly "ordinary" parent is capable of, much less guilty of, sexually abusing a child. n31. J. CREWDSON, supra note 18, at 24 (citing 1985 Los Angeles Times poll).Studies have shown that various percentages of the population have been sexually abused as children, depending in part upon the definition of sexual abuse. Gender also plays a role; percentages are higher for women. Two major studies, for example, showed that 15% of women and 6% of men were sexually abused as children (Finkelhor), the other showed that 38% of women had been so abused (Russell). D. FINKELHOR, CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH (1984) (studying 521 Boston patients); D. RUSSELL, supra note 15, at 183 (measuring prevalence of incestuous and extra familial sexual abuse). n32. Berliner, supra note 26, at 62. Whether for reasons of sexism, or simply because negative feelings against a former marital partner are more within the first-hand experience of the fact-finder than sexual abuse of children, the myth of the vindictive female spouse remains. Accusations of sexual abuse of the child may be viewed suspiciously as attempts by the custodial parent to punish the former partner or to obtain leverage in some other aspect of the dissolution of the relationship. n33 Although the research in this area shows that the incidence of lying by custodial parents about this issue is very low, n34 the result of this research seem to have done little to dispel the myth. Even worse, the myth can be so strong in some cases that mothers who accuse their ex-spouses of child abuse find their fitness as parents called into question specifically because they have made such accusations. n35 n33. See Keating, supra note 7, at 113 (maintaining that judiciary becomes prejudiced against parent who alleges abuse). n34. Sink, supra note 21, at 40; Theonnes and Pearson, supra note 7, at 17, 21. n35. Theonnes and Pearson, supra note 7, at 13. See Keating, supra note 7, at 114 (describing recent trend of custody modification following allegations of sexual abuse). Other societal reasons also make abuse cases often impossible to prove. Despite the recent concentration of attempts to address the problem, such as telephone hot line numbers and public education campaigns, a desperate shortage of resources to investigate adequately complaints of child abuse still remains. n36 In a famous study oft-cited by persons who believe the furor over child abuse is simply a witch hunt, sixty-five percent of all reported cases of child abuse were determined to be "unfounded." n37 "Unfounded" does not, however, mean"untrue." Rather, there are not enough trained professionals (i.e. social workers, psychologists, or physicians) to investigate the claims adequately. The rash of recent legislation adds to the burden by not only requiring reporting and investigation of suspected child abuse, but often setting very short deadlines within which an "answer" must be given by the responsible agency. n38 While undoubtedly the intent of the legislation is to ensure promptness in dealing with the problem, given the scarcity of resources, time pressures decrease the ability of the child protection system to operate effectively. n36. The term "explosion" does not begin to describe the increase in numbers of children who are reported to have been sexually abused. The American Humane Association estimated that in 1984, 110,878 children were reported as victims of=sexual molestation, a 54% increase from the previous year. American Humane Association, "Reports of Child Maltreatment Increase Again," News Release, (Nov.8, 1985). In Morgan v. Foretich, 846 F.2d 941, 943 (4th Cir. 1988), the Fourth Circuit cites a study by Finkelhor showing an 852% increase in reported cases from 1976 to 1983, and notes that an estimated two-thirds of child sexual abuse cases are never reported. Finally, a most recent report from the National Coalition for Children's Justice shows that in 1975, the number of reported cases was 1,741, and by 1986, the number had increased to 216,216, almost a quarter of a million cases per year. n37. Besharov, "Doing Something" About Child Abuse: The Need to Narrow the Grounds for State Intervention, 8 HARV. J.L. & PUB. POL'Y 539, 556 (1985) (citing Besharov, The Legal Aspects of Reporting Known and Suspected Child Abuse and Neglect, 23 VILL. L. REV. 458 (1977-78)). Besharov interpreted data from the U.S. NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, NATIONAL ANALYSIS OF CHILD NEGLECT AND ABUSE AND REPORTING (1978). It is important to note, however, that this study involved all forms of child abuse and neglect, not just sexual abuse. Moreover, Besharov himself, while urging a more restrained approach to the problem of child abuse, does not equate the high percentage of "unfounded" reports to any sinister cause. Instead, he states, "Few of these 'unfounded' reports are made maliciously; rather, most involve confusion over what types of situations should be reported. Approximately half involve situations of poor child care . . . . Many reports are made by professionals playing it safe." Id. at 556. n38. See, e.g., MD. FAM. LAW CODE ANN. @ 5-706 (1984) (mandating completed investigation of incident of abuse within ten days); IND. CODE ANN. @ 31-6-11-5 (Burns 1987) (requiring written report within forty-eight hours of reported abuse). Finally, given all of the problems of proving child abuse, it is not difficult to see why prosecutors might use their discretion not to prosecute these cases. Prosecutors correctly view a pre- verbal child, or any child who is the sole witness to an incident, coupled with a lack of corroborating physical evidence and lack of access to or resources for appropriate expert testimony, as a case with almost no chance of conviction. n39 The training and skill of prosecutors cannot make up for the lack of admissible and persuasive evidence. The task is no easier for the custodial parent's attorney in the domestic relations arena. n39. See J. CREWDSON, supra note 18, at 176-77. Of course, the degree of prosecutorial reluctance varies from state to state, county to county, and individual to individual. Some factors that may cause prosecutors to back away from prosecuting these cases are individual personality and prejudices, discouragement with the legal system in child abuse cases, public pressure, lack of specialized training, and generally high case loads. Id. Thus, the custodial parent who views the court system as providing no solution to her problem is neither ignorant nor anarchic. The perception that the legal system is "against" the custodial parent is probably accurate; the belief that the custodial parent must protect the child because the court system will not is a realistic one. The parent who finds herself having to choose between protecting the child and following a court order is between the proverbial rock and hard place. If the custodial parent chooses, as Morgan and others have done, to protect the child by violating the court order granting visitation rights to the suspected abuser, the court may hold the custodial parent in civil or criminal contempt. II. CIVIL CONTEMPT It is well-established that courts have the power to enforce their orders through contempt proceedings. n40 When the purpose is to punish an individual for disobeying an order, the court invokes the powers of criminal contempt. n41 Historically, criminal contempt was the original form of contempt, designed to vindicate the court's own authority. n42 Courts soon realized, however, that such punishment was not always the desired purpose; a device was necessary to enable courts to enforce orders that would protect the rights of other parties. Civil contempt is the vehicle through which one party may enforce rights granted to her by the court. n43 n40. See 28 U.S.C. @ 1826 (1983) (creating federal right of courts to use contempt proceedings); FED. R. CRIM. P. 42 (enabling use of contempt in criminal proceedings); Note, Civil and Criminal Contempt in Federal Courts, 47 YALE L.J. 83, 85 (1947) (defining contempt and its punishment). n41. See 3 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE @ 704 (1982) (asserting that criminal contempt punishes contemner and vindicates court's authority). n42. For a brief historical account of the development of civil and criminal contempt, see Note, supra note 40; see also R. GOLDFARB, THE CONTEMPT POWER 1-42(1971) (discussing origin of contempt power in British law). n43. In Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 441 (1911), for example, the Court stated that "for civil contempt, the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." See also R. GOLDFARB, supra note 42, at 42-90 (relating history of contempt power and trends of usage and motivation). The purpose of civil contempt is coercive. It is used to force a recalcitrant party to obey a court order. Thus, the contemnor is incarcerated until she agrees to abide by the court's broken order. n44 Civil contempt is best described by the familiar, if by now banal, expression that the contemnor carries the "keys to his prison." n45 Persons found in civil contempt may purge themselves of the contempt charge and resulting imprisonment simply by doing that which they were originally ordered to do. n46 Because coercion is the purpose for civil contempt, once the contemnor is in fact coerced, further imprisonment would serve no useful end. If and when the contemnor decides to purge herself, she simply accedes to the terms of the court order and thereby secures her release from jail. n47 The beauty of this remedy, then, is the surgical precision with which it addresses the problem of noncompliance with a court order. It requires simple obedience and places the responsibility for incarceration directly upon the recalcitrant party. n44. See C. WRIGHT, supra note 41 at @ 2960. n45. The history of this phrase is amusing. While its source is not entirely clear, the suggestion is that it was borrowed from a Pennsylvania case, Passmore Williamson's Case, 26 Pa. 9, 24 (1855), in which the court used the metaphor to describe an incarceration that it labeled as criminal. Confusion between the two is still not uncommon. See R. GOLDFARB, supra note 42, at 48. Following a discussion of the attempts of two distinguished commentators, Stewart Rapalje and James Oswald, to define the differences between civil and criminal contempt, Goldfarb concludes that "the greatest percentage of cases of contempt could fall into either category, depending not upon the application of the Rapalje or Oswald formulas, but upon the discretion of the particular decision-maker." Id. See also Shillitani v. United States, 384 U.S. 364, 367 (1966) (using phrase to illustrate purpose of civil contempt). n46. See generally Note, The Coercive Function of Civil Contempt, 33 U. CHI.L. REV. 120 (1965). n47. See C. WRIGHT, supra note 41, at @ 704 (describing operation of civil contempt). Civil contempt has been used in a variety of contexts. Among its first uses in the federal court system were cases involving labor disputes. n48 Federal courts have used civil contempt most notably to force witnesses to testify in grand jury proceedings. n49 It should come as no surprise that the state courts are inundated with cases in the domestic relations are. Noncompliance with court orders concerning domestic issues such as custody, child support, and alimony is rampant. n50 n48. See Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 452 (1911) (holding defendants guilty of contempt for refusing to stop boycott); United States v. United Mine Workers, 330 U.S. 258, 301 (1947) (upholding contempt order imposed on striking mineworkers). n49. In re Crededio, 759 F.2d 589, 595 (7th Cir. 1985) (refusing to release immunized witness after questioning effectiveness of sanction); Sanchez v. United States, 725 F.2d 29, 30 (2d Cir. 1984) (reviewing coercive effect of contempt sanction); Simkin v. United States, 715 F.2d 34, 39 (2d Cir. 1983) (remanding for determination as to coercive effect); In re Grand Jury Investigation, 600 F.2d 420, 428 (3rd Cir. 1979) (affirming refusal to release contemnor who refused to testify in organized crime case). n50. Such cases are obviously too numerous to cite, although any conclusions from the number of cited cases would be grossly under inclusive. Many of these cases, often deemed too fact-specific for use as precedent, are unreported. As to the rate of noncompliance itself, however, statistics are available. On the issue of child support alone, there is a 53% default rate. L. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 262 n.1 (1985) (citing U.S. Bureau of the Census, "Child=Support and Alimony: 1981"). Weitzman's own study showed that within six months of the divorce decree, one out of six men owed an average of $ 1000 in unpaid alimony. Id. at 161. Examples of the use of civil contempt in reported domestic cases are voluminous. SeE, e.g., Mallory v. Mallory, 207 Conn. 48, 57,539 A.2d 995, 999 (1988) (upholding trial court's finding that father was in contempt for failure to pay child support); People v. Doherty, 165 Ill. App. 3d 630, 639-40, 518 N.E. 2d, 1303, 1309 (1988) (holding that father could be found in both civil and criminal contempt for abduction of children from custodial mother); Alexander v. Alexander, 22 Ark. App. 273, 276-77, 742 S.W. 2d 115, 118 (1987) (finding civil contempt and imprisonment appropriate for father who failed to make child support payment due to willful refusal); Breeding v. Breeding, 515 So. 2d 374, 375 (Fla. App. 1987) (overturning on procedural grounds contempt finding where mother refused to appear in court to disclose children's location); Young v. Young, 514 N.Y.S. 2d 785, 786, 129 A.D. 2d 794, 795 (1987) (upholding trial court's finding of civil contempt for impeding mother's visitation, but also holding that imprisonment for six months was excessive, although definite sentence approved); King v. Department of Social Serv., 47 Wash. App. 816, 827, 738 P.2d. 289, 294 (1987) (overturning contempt by father who refused to divulge location of children to social service agency). Civil contempt, then, designed as it is to change behavior rather than punish (and one might therefore say a remedy that focuses specifically on solving the problem) is available and is often used in situations akin to that presented in the Morgan case. n51 Unfortunately, as also demonstrated in Morgan, its power is much like the use of threat in negotiation. n52 For so long as the spectre of incarceration hangs over the head of a recalcitrant parent, the court retains its power to persuade her and to coerce the desired behavior. Once the contemnor has called the court's bluff, however, the court is required to make good on the threat and imprison the custodial parent. Some parents, like Morgan, have chosen jail over placing their children at risk. n53 It is at this point that the use of civil contempt initiates a grave scenario and one that appears to serve the interests of none of the participants. Civil contempt does not serve the interests of the parties, the court, or the community. n51. See infra note 53 (discussing parental imprisonment through use of contempt orders). n52. "[I]t is important to recognize that a threat is most effective when it produces the desired result without having to be carried out . . . once it has been carried out it loses its value as a deterrent or incentive . . . ." G. BELLOW & B. MOULTON, THE LAWYERING PROCESS 559-61 (1978) (emphasis in original). n53. There are many reported cases in which parents are imprisoned for contempt for failure to afford visitation or for refusal to disclose the whereabouts of their children. See, e.g., Young v. Young, 129 A.D.2d 794, 795, 514 N.Y.S.2d 785, 786 (1987) (approving prison sentence for contempt, but finding that six-month sentence was too long); Marallo v. Marallo, 128 A.D.2d 710, 710, 513 N.Y.S.2d 204, 204 (1987) (ordering mother jailed for contempt of order granting visitation rights to grandparents); King v. Department of Social Services, 47 Wash. App. 816, 827, 738 P.2d 289, 294 (1987) (overturning contempt order for father who refused to divulge location of children to social service agency); Casbergue v. Casbergue, 335 N.W.2d 16, 19 (Mich. Ct. App. 1983)(suspending criminal sentence upon mother's compliance with visitation order);Schotz v. Oliver, 361 So. 2d 605, 606 (Ala. Civ. App. 1978) (upholding contempt order against mother who failed to produce child for visits with father); People ex. rel. Feldman v. Warden, 46 A.D.2d 256, 257-58, 362 N.Y.S.2d 171, 173-74 (1974) (affirming imprisonment of "foster" mother for failure to disclose location of child to court in custody proceeding with biological mother). Reported cases do not, however, provide accurate information on the number of parents in Morgan's situation for two reasons. First, the reported cases, remarkably, often do not state facts sufficient to understand the reasons for the custodial parent's refusal. Second, given the standard of review, contempt cases are rarely appealed. The recent popular media provide occasional glimpses of parents in Morgan's situation: Morgan herself, Karen Newsom, Virginia LaLonde, Valerie Marcus, Dorrie Singley, and April Curtiss. See Mothers on the Run, U.S. NEWS AND WORLD REPORT, June 13, 1988, at 22 (reporting on April Curtiss, who has run from authorities to prevent former husband from receiving visitation rights); Wilkinson, Witchhunting in Hattiesburg, AM. LAW., May 1988, at 104 (summarizing cases of Karen Newsom and Dorrie Singley); What Makes Mommy Run?, Boston Globe, Apr. 24, 1988, (Magazine), at 14 (describing plight of mothers who have hidden children from allegedly abusive fathers including Valerie Marcus and Virginia LaLonde). The detriment of this approach to the custodial parent is obvious: she is required to spend her time in prison, a situation from which any number of negative consequences may flow. The most ominous aspect of her incarceration is that her sentence is an indefinite one. n54 The actual number of years served by the parent will of course differ depending upon the age of the child and the statutory age of majority in each state, but the potential sentence could run for several years, much longer than the six-month maximum sentence for criminal contempt that could have been imposed in the absence of a jury trial. n55 Moreover, while the procedural safeguards that accompany prosecution for criminal contempt will be dealt with subsequently, it is crucial to note that other than notice and an opportunity to be heard, none of the due process requirements attendant to a criminal proceeding must be observed in this, a civil matter. n56 Thus, the combination of an indefinite, potentially lengthy, sentence coupled with a lack of procedural safeguards, implicates serious constitutional concerns. n57 n54. The sentence is "indefinite" because it is not possible to know exactly when the sentence will end. One could argue that the sentence technically is a "definite" one since once the child reaches the age of majority, a custody order would become obsolete. The same argument could, however, be made with respect to the federal civil contempt statute, 28 U.S.C. @ 1826(a) (1982), since it provides for release of the recalcitrant witness at the end of the term of the grand jury or 18 months, whichever comes first. I am unaware of any comment questioning the civil nature of contempt under this statute for that reason. Any civil contempt sentence is in some sense definite if one can foresee a future event that would make compliance impossible, as in this case and in grand jury proceedings. n55. See Duncan v. Louisiana, 391 U.S. 145, 162 (1968) (holding that defendant is entitled to jury trial for crime punishable by two-year imprisonment); Bloom v. Illinois, 391 U.S. 194, 211 (1968) (mandating jury trial for criminal contempt punished by two-year prison term); Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966) (imposing maximum six month sentence for contempt without a jury). n56. In Elizabeth Morgan's case, for example, the hearing was closed to the public, over her objections, and the record of the proceeding is sealed. The court has also ordered the parties not to reveal any information about the hearing to the public. On appeal, the court held that the trial court had erred in failing to make specific findings on the issue of closure, and remanded to enable the lower court to remedy its error. In dicta, however, the appellate court stated that the right to a public hearing was not absolute in the evidentiary phase of a civil contempt proceeding involving the custody of children, and that "our examination suggests that the record would support closure in this case." Morgan v. Foretich, 521 A.2d 248, 253 (D.C. 1987). n57. Despite the notion that release is within the power of the contemnor herself, the deprivation of a person's liberty is viewed by this legal system to be such a serious harm that the lack of procedural safeguards has been a major issue for commentators. R. GOLDFARB, supra note 42, at 230-35. The issue of due process is even more worrisome when one considers that the determination to hold a party in contempt is largely discretionary and as a consequence, appellate courts, applying an abuse of discretion standard, rarely overturn a trial court's contempt order. See Morgan v. Foretich, 546 A.2d 407, 410 (D.C. 1987) (holding lower court's decision binding unless clearly erroneous), cert. denied, 109 S. Ct. 39 (1989). Additionally, the custodial parent suffers the torment peculiar to all incarcerated parents: separation from her child. In this case, however, the torment is heightened by the inestimable fears, lack of knowledge, and lack of information concerning the child's precise location and welfare. Nor can the physical separation be ameliorated by regular (or irregular) visits from or telephone contact with the child. For the same, obvious reasons, contact by mail is certainly limited if at all possible. One sees that the noncustodial parent -- the person whose rights civil contempt is designed to protect -- in many instances fares no better after contempt sanctions than prior to the action for contempt. If the allegations of abuse or harm to the child are in fact true, and the child is available for visitation, the opportunity for abuse continues. It is impossible for one to argue that an interest in continued abuse of the child is one that deserves legal protection. Whether or not the allegations are true, however, the noncustodial parent's interest in contact with the child presumes that the child's location is known to the noncustodial parent. Given sufficient time and resources, it is probable that a custodial parent who is willing to face prison in order to protect her child will make arrangements to place the child in a location beyond the reach of the noncustodial parent. n58 Under this scenario, one parent is incarcerated, and the other parent, the supposed "beneficiary" of the contempt proceeding and resulting incarceration, has no more access to the child than before the custodial parent's imprisonment. n58. Monetary resources in this context will undoubtedly make the resolution easier. There is nothing to suggest, however, that parents who place their children in hiding, or who live in hiding with them, are persons of considerable means. The "underground" network of persons who assist custodial parents on the run may operate on a shoestring, but according to Faye Yager, no one is turned away for lack of resources. Telephone Conversation Between Faye Yager, Member of Mothers Against Raping Children (MARC), and Gayle Middleton, Aug. 18, 1988. The child is potentially by far the most damaged party. The use of civil contempt appears to produce little by way of promoting the child's welfare. The imprisonment of the custodial parent is traumatic in and of itself. It may be coupled with the guilt that children often feel in situations of domestic strife in which they blame themselves and feel responsible for family disharmony. It is possible that the child may be cared for by a loving third party, or perhaps by the noncustodial parent, and assuming that abuse has not in fact occurred, such an arrangement might be beneficial to the child. Other scenarios arise, however. It is possible that the abuse is real, and now the opportunity for further abuse of the child exists without the possibility of interference or protection by the now-incarcerated custodial parent. A second possibility, the one chosen by Elizabeth Morgan, is that the child live in hiding. Such an "underground" existence isolates the child from contact with both parents and forces the child to live in an alien and insecure environment. n59 n59. Resources exist to help mothers who believe they must flee with their children, or arrange for the children to flee alone, in the form of groups such as Mothers Against Raping Children (MARC). The similarity of this predicament with that of slaves escaping from the pre-Civil War South is expressed in the term "underground railroad." In commenting on life underground, the supposed similarity, and one real difference, one writer stated, "[m]ore costly . . . is the physical and psychological damage . . . . Typically, the mother is paralyzed by anxiety, the children traumatized by indefinite separation from home, school, parents, friends, and pets. The "underground railroad' as a phrase has one fatal weakness for these women and children," says Louise Armstrong, author of two books on incest. "There is no North." What Makes Mommy Run?, supra note 53, at 42. Custodial parents fleeing with their children is a phenomenon intimately tied to the use of contempt and incarceration for parents who violate court orders. Some parents, like Morgan, may choose jail; many more, preferring to avoid imprisonment, opt to live underground with the child. Statistics on the prevalence of this practice are difficult to obtain, since secrecy is inherent and the networks try to remain as invisible as possible. Faye Yager of MARC, only one in a web of individuals who place women and children in safe homes, estimates that she herself provides service to approximately 100 parents with children every four months. See Mothers on the Run, supra note 53, at 52; Telephone Conversation Between Faye Yager and Gayle Middleton, Aug. 18, 1988. Finally, to the extent that the legal system and society at large can be deemed to have an interest in this situation, both appear to suffer. The legal system finds itself in paradoxical positions in several ways. First, the use of civil contempt is conceptually unsuitable in custody situations. The courts have long abandoned haggling over children as though they were merchandise to whom one or the other party had certain rights. n60 Yet it is the civil side of contempt that takes a rights-based approach to the problem of the recalcitrant parent. Secondly, the custodial parent was chosen by the court because it believed that such a decision was in the best interests of the child. n61 Now, in a feeble attempt to make sure that the child's best interests are being served, the remedy all but assures the opposite result. It could be argued that the best interests test is applicable only to the initial custody determination, and not to enforcement of the custody order itself. Such as argument, however, seems to be splitting hairs and overly legalistic. It makes no sense to recognize the validity of the best interests standard in the initial determination and then to ignore it in any subsequent actions, especially if the result of those actions operates against the best interests of the child. Third, the best interests of the child are served by a custodial parent who acts to protect a child from harm. n62 Even if the belief is a false one, it is the duty of the custodial parent to do whatever is necessary for the child's protection. After giving such responsibility to a custodial parent, the court must then place itself in the awkward position of incarcerating her for taking seriously her custodial responsibilities. n60. H. CLARK, supra note 9, at 786-89 (noting that while both mother and father are equal candidates for custody, focus in on what is in the best interests of the child). n61. Id. at 797. n62. Harm may be either actual or potential. One would expect, for example,that the custodial parent would not place a child in situations in which harm to the child was certain to occur. Thus, a parent would not place a child in the path of a speeding vehicle, because the parent knows that the child would be in danger. Custodial parents are expected to further protect their children, however. A responsible parent entrusted with the care of her child would also not permit the child to play by the side of the road. Even though harm may not be certain, it is possible; the prudent caretaker must therefore guard the child against potential, as well as actual, harm. Nor do we expect the custodial parent to "play the percentages." One would not expect a parent to leave her child in the care of a baby sitter whom the parent knows to be a child abuser, but what if the parent is not 100% certain? If the parent were to estimate that the probability of abuse to the child were only 50%, or even 10%, we expect the possibility of harm to be sufficient reason for the parent to refuse the services of the babysitter. Moreover, we would expect the parent to refuse. Failure to adequately supervise children may constitute neglect and provide the state with sufficient reason to remove the child from the parent's custody. See OR. REV. STAT. @ 163.545 (1987) (providing that persons having custody of a child under the age of ten years may be found guilty of criminal neglect, if, with criminal negligence, she leaves the child unattended or in a place likely to endanger the health or welfare of the child); Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 STAN. L. REV. 625, 700-06 (1976) (proposed legislation authorizing removal of child if child has suffered actual injury, or there is substantial risk of such harm to the child, as result of conditions uncorrected by parent or because of parent's failure to supervise and protect her); Joint Commission on Juvenile Justice Standards, Institute of Judicial Administration and American Bar Association (incorporating the previously proposed standard and providing for state intervention when a child has been sexually abused "by another person where the parent knew or should have known and failed to take appropriate action."); State v. Goff, 675 P.2d 1093 (Or. Ct. App. 1984) (acquitting parent of criminal negligence in the absence of evidence establishing knowledge of substantial risk to children). From a societal point of view, the situation is equally untenable. The society as a whole does not benefit from incarcerating a custodial parent for an indefinite term. It is the custodial parent whom the society expects will take on the responsibilities of child rearing. The immediate costs inherent in removing the custodial parent from the role of caretaker (the need for another caretaker, private or public) are obvious. Long- term, hidden costs are more speculative. Particularly if the child is placed in hiding by her custodial parent, as in the Morgan case, one is left to wonder about the long-term effects of disruption of education, lack of adequate health care for fear of being discovered, and the psychological toll on the child's well- being. What societal resources may be called upon to perform the task of nurturing, and the task of dealing with those children for whom nurturing became impossible by dint of their custodial parent's imprisonment? Moreover, one could argue that it is the irresponsible parent, the one who fails to protect her child, who is costly to the community. Sexual abuse victims may require, at a minimum, the resources of the mental health profession. n63 In addition, while long-term effects of sexual abuse of children are still not completely known, research shows that children who were sexually abused may be unable to form appropriate marital and parental relationships in adult life. n64 To the extent, then, that society uses the law to send a message to the public, the message is that self-risk in the protection of one's child is not valued, and in fact, may harm both the parent and child. n63. Short term effects of sexual abuse on young victims include self-destructive behavior, anxiety, depression, impaired ability to trust others, guilt, delinquent behavior including truancy, and sexually inappropriate behavior. Browne and Finkelhor, The Impact of Child Sexual Abuse: A Review of the Research, 99 PSYCHOLOGICAL BULL. NO. 1 66, 66-68 (1986). n64. Id. at 69-72. An argument could be made that the draconian nature of civil contempt, particularly in this context, has already been softened by general developments in the law of civil contempt. For the contemnor, like Morgan, who refuses to purge herself by complying with the court order, there is another possibility for release. Since the purpose of incarceration is to force the contemnor to obey, once incarceration loses its coercive power, there is no reason for the incarceration to continue. Courts, therefore, have released persons under the belief that continued imprisonment will not have the desired effect of persuading the contemnor to abide by the order. n65 While somewhat incongruous, the contemnor can therefore secure her release not by changing her mind, but by holding ever more firmly to the original belief that resulted in her imprisonment in the first place. A second "safety valve" is the willingness of some courts to find a potential contemnor to be innocent of contempt because, if motivated by feelings as intractable as those of Morgan, she may be said to be "unable" to comply with the court order. Inability to comply has always been a defense to a charge of civil contempt. n66 n65. See, e.g., King v. Department of Social Serv. and Health, 47 Wash. App.816, 826, 738 P.2d 289, 294 (1987) (finding that contemnor's confinement had become punitive after eleven months' confinement for refusal to disclose location of child); In re Parrish, 613 F. Supp. 356, 357 (S.D.N.Y. 1985) (finding no realistic possibility that continued confinement would cause contemnor to testify); In re Dohrn, 560 F. Supp. 179, 183 (S.D.N.Y. 1983) (noting that release of contemnor justified because recalcitrance would have continued); In re Farr, 36 Cal. 3d 577, 584, 111 Cal. Rptr. 649, 654 (Cal. Ct. App. 1974) (concluding that it was necessary to determine point at which confinement ceased to serve coercive purpose). n66. See Maggio v. Zeitz, 333 U.S. 56, 72-73 (1947) (stating that coercive contempt order should not issue when no willful disobedience exists). The first possibility, that the contemnor can secure her release by remaining ever more immovable in her refusal to obey, has been successfully claimed by contemnors in some cases. n67 As a general rule, however, this is a difficult task. The test requires the contemnor, as a threshold, to prove a state of mind, not an impossible but always a difficult endeavor. n68 Moreover, not only must the court be convinced of the sincerity of the contemnor's belief, it must also make an independent judgment as to whether continued imprisonment will effect a change of heart. In other words, the court may believe that the contemnor's original belief is sincere and that she also believes that additional time in jail will do nothing to dissuade her. Nevertheless, the court can still disagree with her and find that continued incarceration is substantially likely to coerce her to comply at some point. n69 Secondly, the court's decision on this issue is "virtually unreviewable." n70 Finally, while at some point the refusal to be coerced may provide release for the contemnor, she is still incarcerated for what could be a substantial period of time. The problems inherent in the use of civil contempt are not really ameliorated, but rather, they continue to exist albeit for a relatively shorter period. n67. See supra note 65 (listing successful cases); see also In re Papadakis, 613 F. Supp. 109, 109 (S.D.N.Y 1985) (finding no realistic possibility that further confinement would induce testimony). n68. See Simkin v. United States, 715 F.2d 34 (2d Cir. 1983). In Simkin, the Second Circuit enunciated a standard judges can use to determine if a civil contempt sanction has lost its coercive effect. The judge must make "a conscientious effort to determine whether there remains a realistic possibility that continued confinement might cause the contemnor to testify." Id. at 37. Moreover, the burden rests with the contemnor to demonstrate that no such realistic possibility exists. Id. See also Lambert v. Montana, 545 F.2d 87, 95 (9th Cir. 1976) (noting that contemnor has burden of proving that continued confinement will not cause him to change his mind and testify). n69. United States v. Dien, 598 F.2d 743, 745 (2d Cir. 1979). In Dien, the Second Circuit explained that "[e]ven if the judge concludes that it is the contemnor's present intention never to testify, that conclusion does not preclude the possibility that continued confinement will cause the witness to change his mind." Id. In In re Parrish, the court stated: The contemnor may conscientiously believe at the time he testifies that incarceration will not coerce him into compliance, but the issue is not whether the contemnor believes there is no realistic possibility that continued confinement might cause him to testify; rather, if whether the district judge believes, based on all the circumstances pertinent to that contemnor, that no such realistic possibility exists. In Re Parrish, 613 F. Supp. 109 (S.D.N.Y. 1985) (emphasis added). See also In re Crededio, 759 F.2d 589, 593 (7th Cir. 1985) (affirming lower court's determination that confinement had not lost its coercive nature); In re Cantazaro, 663 F. Supp. 1, 2 (D.D.C. 1985) (affirming decision to deny release of contemnor because judge was not convinced that continued incarceration would not coerce contemnor to testify). But see Sanchez v. United States, 725 F.2d 29, 31 (2d Cir. 1984) (holding that contemnor was not required to demonstrate unusual circumstances for failure to testify). n70. Simkin v. United States, 715 F.2d 34, 38 (2d Cir. 1983). The second possibility, that persons in Morgan's shoes should be found to be "unable" rather than "unwilling" to comply, presents interesting possibilities. Such an approach does not seem to have found much favor, however, nor is it likely to. Science and social science might be able to provide evidence of biological instinct or social mores so strong that a custodial parent would find any conduct other than protection of the child to be impossible, but to date, the lack of reported cases indicates that this has been either an untried or an unsuccessful defense. The best that can be said about the use of civil contempt in recalcitrant custodial parent situations is that when it works, it works. Data are not available to indicate how many parents have backed down when faced with a contempt charge; it is not unheard of for some to give up after a period of incarceration. n71 As the Morgan case demonstrates, however, some parents will not feel themselves able to betray their ideals and their children. Goldfarb has written that "[i]n contempt cases . . ., where the issues are grounded in deep personal ideals, there is little hope of inducing a moral change. While it is not necessarily bad for man to suffer for his convictions, . . . it is cruel and onerous to continue his punishment indefinitely." n72 When the threat of prison or prison itself fails to move a parent into compliance, the result is an abhorrent one in which everyone loses, most of all the child whose best interests the court must always protect. n71. See Wilkinson, supra note 53, at 105 (reporting that Karen Newsom relented after one month in jail after alleging her husband was molesting their daughter). n72. R. GOLDFARB, supra note 42, at 55. III. CRIMINAL CONTEMPT Criminal contempt is another remedy available to courts in these situations. Courts could, in lieu of charging the person with civil contempt and thereby attempting to coerce compliance, shift their focus and view the matter as one in which punishment is the objective. n73 From the contemnor's point of view, there are two advantages to the use of criminal rather than civil contempt. First, criminal contempt brings with it a definite sentence. Secondly, a charge of criminal contempt requires the procedural safeguards that are noticeably absent in a civil contempt proceeding. n74 These include notice of the charge and a specific characterization of the criminal nature of the charge, the right to adequate time to prepare a defense and the right to an attorney. n75 Contemnors also have the right to have witnesses testify in their behalf. n76 Constitutional protections from double jeopardy and from self-incrimination apply, and contemnors must be found guilty beyond a reasonable doubt. n77 Perhaps most significantly, the Supreme Court has held that in both federal and state criminal contempt proceedings the accused has the right to a jury trial for other than petty offenses, defined as one for which the sentence is less than six months. n78 Another important distinction between civil and criminal contempt is that criminal contempt is subject to executive pardon while civil contempt is not. n79 Thus, criminal contempt appears to eliminate the due process questions that plague the use of civil contempt and to result in a definite, and perhaps shorter, sentence. n80 n73. This is not to suggest that the court must choose between civil and criminal contempt, as it is possible for the court to use both. See R. GOLDFARB, supra note 42, at 48. n74. See Shillitani v. United States, 384 U.S. 364, 371 (1966) (noting that contemnor's defiance justifies lack of procedural safeguards of civil contempt). n75. United Mine Workers v. United States, 330 U.S. 258, 298-301 (1947). n76. Cooke v. United States, 267 U.S. 517, 537 (1925). n77. Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 444 (1911). n78. See Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968) (analyzing historical basis for holding petty offenses not subject to sixth amendment jury trial provision); Bloom v. Illinois, 391 U.S. 194, 210 (1968) (ruling that petty crimes need not be tried by jury); Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966) (holding that federal courts may not impose sentence longer than six months for criminal contempt absent jury trial or waiver). n79. R. GOLDFARB, supra note 42, at 48. n80. Ironically, as one student commentator noted, "as restrictions have accrued upon the power to punish criminal contempt, there has been increasing resort to the less inhibited coercive contempt sanctions. Hence the undiscriminating classification of the latter as a civil remedy may conceal the need for adequate safeguards." Note, supra note 40, at 102. Given that courts can, in a given situation, choose the charge, it is evident that it is administratively easier for the court to charge the contemnor with civil, not criminal, contempt. It is important to realize then that criminal contempt is an option of the court, and that procedural safeguards can then be bestowed or not, depending on what the court chooses to call the proceeding. These advantages, as significant as they might be, do little, however, to address the other problems discussed in connection with civil contempt. Incarceration of the custodial parent produces all of the same problems for her, the child, and the noncustodial parent. With the exception of a possible shorter sentence, none of the parties will care, from a practical point of view, whether the proceeding is deemed civil or criminal. The hardships will be the same. Moreover, the message implied in incarceration for criminal contempt is perhaps even stronger, and less appropriate than that sent by the courts in civil contempt proceedings: acting to protect one's child results in criminal incarceration and is viewed by the legal system as an act deserving punishment. IV. THE NECESSITY DEFENSE Having established that the use of civil contempt is a problematic solution to a parent who believes herself to be acting to protect her child, and having seen that the use of criminal contempt, though perhaps more sensitive to the contemnor's constitutional rights, may be just as unworkable, what should courts do with the recalcitrant custodial parent? The following sections will examine the doctrine of necessity, apply it to the present situation, critique the analysis of the Alaska Court of Appeals in Gerlach v. State, n81 and examine what custodial interference statutes may or may not contribute to solving the problem. n81. 699 P.2d 358 (Alaska Ct. App. 1985). In Gerlach, the court applied and rejected a defense of necessity in a criminal prosecution for custodial interference. The common law defense of necessity is somewhat vague in definition, varied in application, of questionable effectiveness, and a source of discomfort to judges who must grapple with it. n82 Generally speaking, the defense of necessity is available to those who can assert that they engaged in an unlawful act to avoid an even greater harm. n83 The defense finds its underpinnings in natural law and to some extent in utilitarian philosophy. n84 Given the tension between the philosophical roots of the necessity defense and the rationale for a system of criminal justice, it is not surprising that while necessity has been part of Anglo-American jurisprudence for some time, n85 its use has been restrictive. n86 n82. The confusion surrounding the necessity defense, even as it haltingly grows more acceptable, was recognized by the Supreme Court in United States v. Bailey, 444 U.S. 394 (1980), where the Court stated that, "in explaining the reasons for our decision, we find ourselves in the position akin to that of the mother crab who is trying to teach her progeny to walk in a straight line, and finally in desperation exclaims, 'Don't do as I do, do as I say."' ID. at 397. See also Note, Necessity Defined: A New Role in the Criminal Defense System, 29 U.C.L.A. L. REV. 409, 410 (1981) (citing Bailey as representing reluctance of courts "to base a decision on the necessity principle."). n83. United States v. Richardson, 588 F.2d 1235, 1239 (9th Cir. 1978), cert, denied, 441 U.S. 931 (1979); Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. CRIM. L. & CRIMINOLOGY 289, 291 (1974). See also Note, supra note 82, at 438 (analyzing necessity defense in terms of cost benefit analysis). n84. See Surocco v. Geary, 3 Cal. 69 (1853) (stating that one can destroy property if such action will prevent disaster). n85. See, e.g., The Case of the King's Prerogative in Saltpetre, 12 Co. Rep.17, 77 Eng. Rep. 1294 (1607) (taking of saltpeter was necessary for making gunpowder and defense of realm); The Queen v. Dudley and Stephens, 14 Q.B.D. 273, 286 (1884) (rejecting utilitarian rationale justifying taking innocent life for food for survival); United States v. Holmes, 26 F. Cas. 360, 368 (C.C.E.D. Pa. 1842) (No. 15,383) (precluding consideration of necessity defense for manslaughter for sailors' throwing of passengers off overcrowded lifeboat). n86. Note, supra note 82, at 410-16 (providing historical analysis of necessity defense). This defense has been raised in a wide range of factual settings. In recent times, the defense has been asserted in cases involving political protest, n87 escape from prison, n88 kidnapping and reprogramming members of religious cults, n89 and possession and use of marijuana. n90 Courts have sought, from time to time, to exclude certain categories of cases from the reach of the necessity defense, n91 usually over concerns of morality (as in cases involving the taking of a life) or excessive concern for deterrence (economic crimes, for which, in a capitalist system, deterrence is paramount, and crimes involving prison escape, for which public safety is the issue). n87. United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972) (holding that common law justification was not available because defendant's action was not unreasonable); Commonwealth v. Capitolo, 508 Pa. 372, 381, 498 A.2d 806, 809(1985) (holding necessity defense not available to nuclear protesters); State v.Warshow, 138 Vt. 22, 25, 410 A.2d 1000, 1002 (1979) (concluding that evidence of danger of nuclear accidents does not fulfill imminent and compelling harm element of necessity defense); State v. Dorsey, 118 N.H. 844, 847, 395 A.2d 855,857 (1978) (upholding criminal trespass for failure to establish statutory defense of "competing harms"). n88. People v. McKnight, 626 P.2d 678, 684 (Colo. 1981) (en banc) (rejecting"choice of evils" defense of escapes); Commonwealth v. Clark, 429 A.2d. 695, 698 (Pa. Super. 1981) (finding that adverse prison conditions do not support necessity defense to charge of prison escape); People v. Lovercamp, 43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115 (1974) (enunciating limited defense of necessity for prison escapees). n89. People v. Patrick, 126 Cal. App. 3d 952, 960, 179 Cal. Rptr. 276, 281 (1981) (finding that cult reprogrammer did not meet elements of necessity defense). n90. State v. Diana, 24 Wash. App. 908, 916, 604 P.2d 1312, 1317 (1979) (applying medical necessity defense to use of marijuana for multiple sclerosis).See also Note, Medical Necessity as a Defense to Criminal Liability: United States v. Randall, 46 GEO. WASH. L. REV. 273, 276-78 (1978). n91. See Note, supra note 82, at 419-23 (discussing cases involving homicide, economic crimes (from stealing loaf of bread to prevent starvation to modern equivalent: welfare fraud), and emergencies caused by actor herself). The elements of the defense vary from jurisdiction to jurisdiction; some states have codified the defense. n92 For the sake of discussion, the definition of necessity will be that set forth in the Model Penal Code: n92. See, e.g., COLO. REV. STAT. @ 18-1-708 (1986 & Supp. 1988); ILL. REV. STAT. ch. 38, para. 7-13 (1972 & Supp. 1988); KY. REV. STAT. ANN. @ 503.030 (Baldwin 1984 & Supp. 1988); N.H. REV. STAT. ANN. @ 627:3 (1986 & Supp. 1988); N.Y. PENAL LAW @ 35.05 (McKinney 1987 & Supp. 1989); 18 PA. CONS. STAT. ANN. @ 503 (Purdon 1983 & Supp. 1988). Section 3.02 Justification Generally: Choice of Evils (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. n93 n93. American Law Institute, MODEL PENAL CODE @ 3.02 (1985). The first element of necessity is the heart of the defense. Applying it to the case of the recalcitrant custodial parent, she must believe that violating the court order is necessary in order to prevent harm to the child. This is somewhat in accord with case and statutory law in many jurisdictions that state that the conduct chosen must be the only alternative available, except that the Model Penal Code requires only that the actor believe that the chosen conduct is the sole avenue open to her. n94 If the standard is a subjective one, as set forth in the Code, the court would look at all of the facts to make a determination of the sincerity of the custodial parent's belief. A finding by the court that she believed that violation of the court order was "necessary" (i.e., there was no other course open to her) is the first step in finding her conduct justified. n94. Note, supra note 82, at 416-17 n.42 (identifying New York, Delaware, Illinois, New Hampshire, Oregon, and Pennsylvania as states enacting necessity defense statutes). In some jurisdictions, this subjective standard is not part of the necessity defense; in its stead is an objective, rather than subjective, test. n95 Under an objective standard, the custodial parent must prove that there was nothing else she could do. Obviously, the task of proving no actual alternatives is a more difficult one. n95. See Gerlach v. State, 699 P.2d 358, 360 (Alaska Ct. App. 1985) (giving objective determination to decide if defendant's judgment was correct); see also note, supra note 82, at 428-29 nn.95-96 (listing states that have enacted necessity defense statutes). In Gerlach v. State, n96 for example, a mother hid her daughter out of state for over a year in violation of a modified custody agreement that gave temporary custody of the child to her estranged husband. The court held that Gerlach could not defend the charge of custodial interference with necessity. n97 Despite Gerlach's concerns about her financial situation and her ability to continue to pay for her lawyer's services, the court reasoned that the defense was inapplicable because the parent had another alternative -- the court. n98 n96. 699 P.2d 358 (Alaska Ct. App. 1985). n97. Gerlach, 699 P.2d at 363. n98. Id. at 362. Assuming an objective test, rather than that suggested by the Model Penal Code, the reasoning of the court in Gerlach on this point is troubling. Every jurisdiction has laws dealing with the custody and protection of children and a court system for resolving these matters. n99 If the court's reasoning in Gerlach holds sway, it is difficult to imagine how the defense would ever be applicable in those jurisdictions that adhere to the more stringent, objective test. Two possibilities exist, however; one within the confines of the Gerlach holding and the other requiring a rejection of the Gerlach rationale. n99. See H. CLARK, supra note 9, at 791-849 (reviewing remedies and procedures for custody of children). Even within the logic of the Gerlach opinion, the holding is not as universally applicable as it may first appear. First, it assumes that litigation is still an alternative. Thus if the custodial parent could make a showing that she has exhausted her remedies at law, the legal system would have no other alternative to offer her. Going to court and losing, therefore, may be a prerequisite to a successful necessity defense. n100 Secondly, for unknown reasons, the court simply ignored Gerlach's financial plight. It is indisputable that access to the court system is not free; poverty may act as a barrier to the theoretical availability of the legal system as a real alternative. Particularly in domestic cases, in which contingent fee arrangements are impossible, many potential consumers of the court system are left waiting at the courthouse door. n101 Third, if the legal system is to be touted as offering an alternative to the custodial parent, a more careful analysis of this point must be made. If, for example, as in Gerlach,a modification proceeding is viewed as an alternative, one needs to examine the timeliness and efficacy of this option. Availability might depend on the congestion of the court, the accessibility of the judge, and the provisions of the law regarding temporary orders. A modification proceeding may be an alternative. A modification proceeding with a hearing scheduled three weeks or months into the future and a bond requirement for a restraining order may not be a viable alternative. All of the foregoing does not reject the rationale of the court in Gerlach, but it does suggest that a court must probe more deeply into the facts in order to separate real from illusory alternatives. n100. But see Ladner v. Ladner, 206 So. 2d 620, 624 (Miss. 1968). In this case, the court held that evidence previously raised in a court proceeding could not form the basis for a defense to a charge of contempt against a father who violated an order granting visitation rights to the mother. Id. The argument appears to be a sort of estoppel; if the court did not find it persuasive in the prior proceeding on the merits, it will not revisit the same evidence in the contempt proceeding. n101. Statutes allowing recovery of attorney fees from the opposing party in domestic actions may make this argument less persuasive. In many situations, however, those statutes make an award of fees discretionary, not mandatory. See fla. STAT. @ 61.16 (1984) (giving court discretion to order party to pay reasonable attorneys' fees). In theory, this may make attorneys available to those who could not otherwise afford them. In practice, however, the potential award of attorneys' fees may have little effect. A second argument is that the court's finding in Gerlach (i.e., that the legal system provides an alternative) was simply wrong; it fails to reflect an understanding of why parents are taking drastic measures to avoid the legal system. The real problem is that the legal system is not functioning effectively in situations such as these. Even assuming that one can pay for access to the legal system and therefore, financial ability is not an issue, it is ludicrous to think that custodial parents choose an underground existence for themselves and their children unless they have found the law lacking. The problems with proving a case in court, set forth at the beginning of this Article, may mean that not only does the lack of alternatives exist in the mind of the custodial parent, it exists in fact. n102 n102. See supra notes 8-39 and accompanying text (discussing custodial parent's lack of available alternatives). The importance of the Model Penal Code approach, then, is that it would not =seek to punish the parent who acts under a good faith belief that she chose the only course open to her. In jurisdictions that require an objective test on the element of availability of other alternatives, the Gerlach reasoning may make this a more difficult, though not impossible, element to satisfy. The second element of the Code's definition of the defense is that the action taken must be for the purpose of avoiding a harm or evil. Again, the Code would find the custodial parent's conduct justified whether or not the harm actually exists as long as she acts on the good faith belief that it does. This is not very different from the law in jurisdictions that hold that the harm sought to be avoided need not be actual; a reasonable belief is sufficient. n103 Assuming a subjective test, the custodial parent is relieved from the burden that may have caused the situation initially -- proof that abuse by the other parent did in fact occur. In jurisdictions requiring a "reasonable" belief, what is "reasonable" will depend of course on the circumstances. This standard would, therefore, probably prevent the application of the necessity defense when no evidence, or extremely weak evidence, of abuse exists. n104 n103. See People v. Manson, 61 Cal. App. 3d 102, 206, 132 Cal. Rptr. 265, 329 (1976) (noting that defense of compulsion requires evidence that accused =acted on reasonable cause and belief that her life was in danger), cert. denied,430 U.S. 986 (1977); see also Note, supra note 82, at 428 n.95 (giving examples of statutes including Arkansas, Georgia, Idaho, Minnesota, Montana, and Washington). n104. The prospect of a custodial parent maintaining a good faith belief of abuse in the absence of any evidence of any kind pushes the necessity defense to its limits. It may raise the question of why the custodial parent should be found innocent of contempt and therefore take from the other parent what is perceived to be the only teeth in the order itself -- the possibility of enforcement. The consideration of the Model Penal Code is one of culpability, and therefore, whether the actor is mistaken or not, the Code does not contemplate punishment for those who act in good faith. The final component in the Code's definition of the defense is the recognition that one may act to protect another as well as one's self. Thus it is legitimate for the custodial parent to act to protect her child even if she herself is in no danger. Defense of others as opposed to defense of self appears to be a non-issue in the context of the necessity defense. American courts have long recognized that one may assert the defense in cases in which the actor has sought to help third parties. n105 n105. See Surocco v. Geary, 3 Cal. 69 (1853) (holding that administrator could destroy property for benefit of populace). Many of the cases in which necessity has been raised in connection with acts of political protest involve assisting third parties. See supra note 87 (citing political protest cases involving necessity defense). The Model Penal Code next lists three caveats. The first is that the harm sought to be avoided is greater than that sought to be prevented by the law defining the offense charged. Defining the harm sought to be avoided is relatively easy: sexual abuse of the child. The harm sought to be prevented by the law defining the offense is more difficult because it may be subject to more than one interpretation. What harm, for example, does a law (or the provisions of the court order itself) requiring compliance with the court order establishing visitation rights seek to avoid? Disrespect for the court? Disorderly administration of domestic affairs? Deprivation of the parent/child relationship? Assuming that one can ascertain the precise harm caused by the custodial parent (or perhaps one would need to balance each of them), the next inquiry is how to decide which is worse? Should courts, for example, look at the penalties assigned to each, i.e. a felony can be avoided by committing a misdemeanor, but not vice versa? And what if the "harm done" is not a crime at all? The court in Gerlach sheds some light on how courts interpret -- or misinterpret -- this element. The court found against the defendant on this issue. With little explanation, the court held that the possibility of child abuse was of less consequence than the harm to the noncustodial parent, which was the foregoing of visitation rights. It is difficult to understand the court's logic, other than to view it as a blatant preference of parental rights over those of the child. While defining the harms and balancing them may not be an easy task, this case seems to present a less troublesome task than most. The rights of the noncustodial parent to see the child, perhaps the most compelling of all of the possible rights being protected, seem to pale by comparison to the child's right to personal integrity and safety. The court in Gerlach might have done well to look at the history of the law's intent in providing for visitation rights. The law has long since abandoned its focus on the rights of parents in custody and visitation determinations and is now guided by the best interests of the child. Thus, in balancing between avoidance of harm to the noncustodial parent versus avoidance of possible harm to the child, it would be consistent with general principles of child custody law to undervalue the parent's rights to visit. n106 n106. See Beckham v. O'Brien, 176 Ga. App. 518, 519-20, 336 S.E.2d 375, 377 (1985). The court in Beckham was eloquent in its defense of the child's rights in this situation. A factual difference, i.e. the father's indictment for molesting his daughter, persuaded the court not to hold the mother in contempt despite the assertion by the father of the presumption of innocence. Id. at 522, 336 S.E.2d at 377. The two remaining caveats in the Code -- that no other specific statute defining defenses exist and that the legislature cannot have excluded the application of the defense to the particular situation -- are easier to determine and will vary more widely among jurisdictions. Unfortunately, or fortunately, for the recalcitrant custodial parent, many states have enacted statutes prohibiting custodial interference. n107 The existence and language of those statutes, whether they may help or hurt, have made the question of the applicability of the necessity defense in these cases a little murkier. n107. E.g., ALASKA STAT. @ XI (1983) (making custodial interference first degree class C felony). V. CUSTODIAL INTERFERENCE STATUTES As previously explained, some states have sought to limit the scope of the necessity defense by excluding certain kinds of cases from its application. n108Accordingly, states could prohibit, by statute or by common law, use of the necessity defense in cases involving custodial parents who violate court orders or otherwise interfere with the visitation rights of a noncustodial parent. Given the relatively few categories of cases so excluded, this appears unlikely. Nonetheless, some states have responded to a growing public awareness of the problem of enforcing court orders in domestic cases by enacting what will be generically called "custodial interference" statutes. n109 They are germane here because, in some instances, they provide a legislatively-sanctioned statutory necessity defense to the crime of custodial interference and therefore recognize the realities of a situation akin to that in Morgan. On the other hand, these statutes may, unwittingly perhaps, limit the use of the common law, or generic statutory necessity defenses. For purposes of discussion, this Article will examine two such representative statutes, one from the District of Columbia and one from the State of Florida. n108. See supra note 91 and accompanying text (discussing instances in which application of necessity defense was limited). n109. See, e.g., ARIZ. REV. STAT. ANN. @ 13-1302 (1977); N.Y. PENAL LAW @ 135.45(1) (McKinney 1987); OR. REV. STAT. @ 163.245(1) (1987); UTAH CODE ANN. @ 76.5-303(1) (1982). The newly-enacted District of Columbia statute provides in section 16-1022: "No parent, or any person acting pursuant to directions from the parent, may intentionally conceal a child from the child's other parent." n110 It further provides in section 16-1023, that: "No person violates this act [subchapter] if the action: (1) is taken to protect the child from imminent physical harm." n111The statute goes to provide that a person who violates section 16-1022 and who wishes to avail herself of the defense set out in section 16-1023 must file a petition in the court seeking modification of the court order (or seeking a court order itself if one does not exist) and must state that "at the time the act was done, a failure to do the act would have resulted in a clear and present danger to the health, safety, or welfare of the child . . . ." n112 Further, the statute provides that if the petition is filed "a finding by the court that, at the time the act was done, a failure to do the act would have resulted in a clear and present danger to the health, safety, or welfare of the child is a complete defense to prosecution under this act." n113 n110. D.C. CODE ANN. @ 16-1022 (Supp. 1988). n111. Id. @ 16-1023. n112. Id. @ 16-1023(b)(1). n113. Id. @ 16-1023(c). In evaluating the District of Columbia statute, it is helpful to reexamine the second caveat of the Model Penal Code, that the general defense of necessity will not apply if a statute defines the offense and provides specific defenses. Under this caveat, the above statute may preclude use of a common law or statutory necessity defense. In cases in which the custodial parent is charged with a crime under the custodial interference statute, the defense surely would be excluded; defenses are specifically enumerated in the statute. Moreover, while the District of Columbia statute appears to provide for something akin to the necessity defense, the subjective element is missing. Under the language of the statute, a good faith, even reasonable, belief that the child would be abused would not be sufficient. The court would have to find that there was in fact an actual clear and present danger to the health, safety,or welfare of the child. n114 Custodial interference statutory defenses such as the one enacted in the District of Columbia, therefore, will not only hurt custodial parents with a reasonable belief but inability to prove abuse but may rule out the use of the general necessity defense for them as well. n114. See id. @ 16-1023(b)(1). There are still two other possibilities for retaining the necessity defense in states that have enacted custodial interference statutes like that of the District of Columbia. Some of those states may not have adopted the caveat in the Model Penal Code regarding the existence of specific statutes. The District of Columbia has no statutory necessity defense and one could interpret the statute as providing a defense without precluding others, including the common law necessity defense. Secondly, not all custodial interference statutes set forth exceptions or defenses as does the District of Columbia statute. Thus, the above discussed caveat of the Model Penal Code is inapplicable in those states. By contrast to the District of Columbia statute, a modified necessity defense was incorporated into the Florida custodial interference statute. After defining interference with custody, the Florida statute provides: "It is a defense that the defendant reasonably believes that his action was necessary to preserve the child . . . from danger to his welfare." n115 With a statute like that of Florida, it becomes even less important whether or not the state has adopted the provisions of the Model Penal Code. The statute itself allows protection for the custodial parent who reasonably believes abuse has occurred, whether or not abuse has actually occurred and is provable. n116 n115. FLA. STAT. @ 787.03(2)(a) (1981). n116. See id. The Florida statute includes the word "reasonably" before the word "believed" in order to eliminate the possibility of an individual escaping =criminal prosecution because of any ill-advised or whimsical belief that her conduct was justified. See id. @ 787.03 (1974 Committee Comment). Custodial parents who flee with their children, or who choose jail and secrete their children outside of the state, however, may not fare as well in Florida if a court order exists and the court order restricts the location of the child to the state of Florida. A separate Florida statute, which makes it a felony to remove children from the state contrary to court order, provides no equivalent necessity defense. n117 In fact, the statute enumerates no defenses. A custodial parent whose court order contains restrictive residence provisions cannot rely, therefore, on the specific statutory defense of the preceding section. As previously stated, however, given that this section lists no exceptions or defenses at all, the general necessity defense may still be available. n117. Id. @ 787.04(1). Once again, the Model Penal Code is instructive. The final caveat of the Code is that a legislative purpose to exclude the justification claimed must not plainly appear in the statute outlawing the substantive crime. n118 Clearly, =states are free to limit the scope of the defense. The problem, however, is figuring out what "plainly appear" means. It is not clear if the presence of a necessity defense in Florida's custodial interference statute, and its absence in the following section regarding removing children from the state, is a "plain" appearance of legislative purpose to exclude the defense from the second statute. n118. See American Law Institute, MODEL PENAL CODE @ 3.02(1)(c) (1985). Another restriction in the Code focuses upon the applicability of the defense. Recklessness or negligence on the part of the actor in bringing about the situation requiring the choice of evils may operate to bar the defense when recklessness or negligence is an element of the offense charged. Id. @ 3.02(2).This restriction does not seem relevant here and therefore will not be discussed. To summarize, custodial interference statutes may or may not assist custodial parents who seek to raise the necessity defense in criminal proceedings. Where such statutes exist, the question of applicability of the defense will depend upon whether the state has adopted the Model Penal Code (or its equivalent) standard, whether other statutes specify defenses, and if so, whether the language of the statute incorporates a true necessity defense (good faith belief), a modified defense (reasonable belief), or requires the =parent to prove actual harm. VI. THE NECESSITY DEFENSE AND CONTEMPT Necessity should be available as a defense to custodial parents charged with civil or criminal contempt. The precise test to be applied could be that of the Model Penal Code, in which a good faith belief that the conduct taken was necessary to prevent harm is sufficient, n119 or a more modified standard requiring that the belief also be a reasonable one. n120 n119. See id. @ 3.02(1) (providing that conduct that actor subjectively believes to be necessary to avoid evil to himself or another is justifiable). n120. See supra notes 115-16 and accompanying text (describing reasonable belief standard of Florida custodial interference statute). The application of the defense to criminal, as opposed to civil, contempt is a somewhat easier fit. The purpose of criminal contempt is punishment. The philosophy that created the defense in the criminal arena -- that punishment is only for the culpable and that the law is willing to admit of certain circumstances under which the breaking of the law does not establish culpability-- applies with equal force to the "crime" of contempt. Absent a total =rejection of the necessity defense in criminal proceedings generally, there would appear to be no rational argument against its use by custodial parents who are charged with criminal contempt. As has been explained, however, courts often have discretion as to which type of contempt order they wish to impose. n121 Assuming that procedural safeguards attendant to a criminal contempt charge may sway courts to use civil contempt when they can, n122 or assuming that in some instances the discretion of the court may be constrained, the issue then becomes whether necessity ought to be a defense to a charge of civil contempt as well. The answer is yes. The preceding discussion of the difficulties of proving child sexual abuse in court and the problems created by the use of civil contempt cries out for some kind of reform. n123 In addition to the general notion that "something" has to be done, there are several reasons why the necessity defense is appropriate. n121. See R. GOLDFARB, supra note 42, at 50-52 (stating that although civil and criminal contempt were born from different histories and reasons, they are considered but nuances of each other and are often applied interchangeably). In fact, a reviewing court often has difficulty determining whether a particular contempt order is civil or criminal. See Kutner, Contempt Power: The Black Robe-- A Proposal for Due Process, 39 TENN. L. REV. 1, 8 (1971). n122. See Note, supra note 40, at 106-07 (suggesting that civil and criminal contempt should be merged so that civil contemnor given "the protection to which he would otherwise be entitled were he guilty of irremedial misconduct"). n123. See supra notes 12-39 and accompanying text describing difficulties of proving sexual abuse of children). A more radical possibility is that civil contempt in these kinds of custodial situations simply be abolished. This Article does not go so far, however. It assumes that civil contempt remains as an option for enforcement of custody and visitation orders. First, the necessity defense has never been restricted to the criminal side of the law; it enjoys a long history in the civil area as well. n124 The civil action, in which one party seeks a remedy from another, is akin to civil contempt, in which one party seeks to enforce her rights against another. If the civil law is willing to recognize, in appropriate cases, that necessity may protect a defendant from liability, it effectively fails to enforce another's right to recover for a wrong committed against her. n125 Thus,the law now recognizes necessity as a defense in civil, as well as criminal, matters, and does not restrict the defense to those situations in which the defendant attempts to avoid only punishment. n124. See The Case of the King's Prerogative in Saltpetre, 12 Co. Rep. 17, 77 Eng. Rep. 1294 (1607); Surocco v. Geary, 3 Cal. 69 (Cal. 1853). = n125. Modern cases of civil employment discrimination rely on a form of the necessity defense. This "business necessity" defense requires that: (1) the employment or hiring practice is necessary to the safe and efficient operation of the business; (2) the practice carries out the alleged business purpose; and (3) no less discriminatory alternatives exist. See Robinson v. Lorillard Corp.,444 F.2d 791, 798 (4th Cir. 1971); see also Contreras v. Los Angeles, 656 F.2d 1267, 1280 (9th Cir. 1981) (explaining standards used to show business necessity defense); Shannon v. Pay 'N Save Corp., 104 Wash. 2d 722, 731, 709 P.2d 799, 806(1985) (discussing business necessity defense). Second, the issue of the actor's state of mind is not foreign to the law of civil contempt. As has been shown, the law ultimately affords respect and legal significance to an individual's belief when it releases her from incarceration upon a finding that further imprisonment will not coerce, it will only punish. n126 It does not seem incongruous for a legal system that is willing to allow a good faith belief to act as a key to the prison to allow that same belief to prevent the prison door from closing in the first instance. n126. See supra notes 45-52 and accompanying text (discussing psychological element of civil contempt). Third, and perhaps the most cogent of all arguments, is Goldfarb's point that the labeling of contempt as "civil" or "criminal" is a legal fiction. n127 He argues that we must view civil contempt for what it is -- a serious deprivation of liberty which ought to be afforded whatever procedural safeguards this legal system has instituted for those it seeks to incarcerate. In other words, civil contempt is in reality no different from criminal contempt in its aim, which is punishment through incarceration. Certainly a review of the contempt cases in any jurisdiction would lead one to believe that the courts have eroded the differences between the two, jailing persons for indefinite sentences in criminal contempt proceedings and for definite sentences in cases in which the stated reason is to coerce. If we view civil contempt through Goldfarb's prism,then, there is nothing really civil about it; it is really criminal in nature and therefore ought be treated as such for all purposes, including the applicability of the necessity defense. n128 n127. R. GOLDFARB, supra note 42, at 48. n128. See id. at 292-94 (suggesting that imprisonment in civil contempt situations is departure from Anglo-American law and is in fact often used for punitive purposes). The District of Columbia Court of Appeals did in fact review, and reject, the necessity defense raised by Morgan in her civil contempt proceeding. n129 It admitted the applicability of the defense to criminal acts, including the proviso that proof of actual harm is not required; rather, a reasonable belief that harm was about to occur is sufficient. However, the court rejected the defense solely because Morgan sought to raise it in a contempt proceeding rather than as a defense to a criminal act. n130 The entire reasoning of the court on this point is as follows: n129. Morgan v. Foretich, 546 A.2d 407, 411 (D.C. 1988), cert. denied, 109 S. Ct. 790 (1989). n130. Id. The court explained that the necessity defense does not exonerate one who has the opportunity to resort to a reasonable legal alternative to violating the law. Id. (quoting Griffin v. United States, 447 A.2d 776, 778 (D.C. 1982), cert. denied, 461 U.S. 907 (1983)). In any event, the situation here is far different from that facing one who violates a criminal law. Here there was a specific court order, requiring specific conduct tailored to a specific fact situation -- an order which we on appeal had refused to stay. Civil contempt could become meaningless if a lawful defense could rest on the ground that a party took a different view, however reasonable, of the potential harm in compliance. n131 = n131. Id. at 411. The court's reasoning is as dubious as it is sparse. First, there is nothing in the District of Columbia custodial interference statute that excludes persons having custody orders from its reach. n132 Thus, Morgan's actions could be construed as violating both the statutory law and the court order. In the former, it is clear that the appellate court would entertain the defense because it is specifically enunciated in the statute. In the latter, whether civil or criminal contempt, the court would refuse to do so. It is illogical to picture two simultaneous proceedings brought on by the same conduct, against the same person, consisting of the same evidence, and in the case of criminal contempt, with the same object -- to punish the criminal/contemnor -- and yet to have the court accept the defense in one but not the other proceeding. One is left to wonder, then, in what way the violation of a court order is "far different from that facing one who violates the criminal law." n133 n132. See supra notes 110-14 and accompanying text (providing text of District of Columbia custodial interference statute). n133. Morgan, 546 A.2d at 411. Second, it does not automatically follow that application of the defense is tantamount to rendering civil contempt meaningless. An individual contemnor =seeking to assert the defense must still meet all of the elements. If the road to meaninglessness was as short as the court fears it to be, our criminal laws would have ceased to exist immediately upon the appearance of the necessity defense in our jurisprudence. The admission of an exception, or a defense, does not render the entire structure meaningless; it simply recognizes that in some instances, the general rule -- that one must obey court orders --should not be applied. In addition, the same argument can be raised about the civil contempt doctrine that requires release of the contemnor upon a showing that further confinement will not persuade her to obey the order. As previously stated, this doctrine means that recalcitrance results in imprisonment, but real recalcitrance then results in release. The logic of such a doctrine would seem even harder for courts to accept than the necessity defense, and therein may lie an insight into the law's acceptance. It is not logic that fuels the doctrine, but the reality that for some individuals in some situations, the standard procedure -- continued imprisonment --does not produce the desired result. n134 In those situations, the law is willing to recognize that the motivation of the contemnor is a relevant and important factor. The same is true of the necessity defense. Some individuals in some situations -- like that of Morgan -- will believe that they cannot act in accordance with the court order. The =application of the necessity defense to a contemnor's situation provides a framework within which the court can then properly consider the contemnor's motivation for her failure to abide its terms. n134. See supra note 65 (citing cases in which court released persons when imprisonment lacked desired effect of coercion). Finally, if there is one clear difference expressed by the court in Morgan between the contemnor and the criminal, it is that the contemnor has violated an order that is specific to her, whereas the criminal has broken a law of more general application. It is not evident why the court regards this difference as dispositive. Perhaps the court sees the process by which a court order comes into existence as one in which the court has already considered the factors, including the personal feelings and motivations of the individual, that the contemnor now seeks to raise through the necessity defense. The legislative process, by contrast, does not tailor its product to any one individual's situation. While generally true, the specificity of the court order will apply to a situation that existed at the time the order was entered. The situation at the time the order was violated may be, and often is, quite different. Therefore, the specific tailoring may be for a reality that no longer exists, and which a new reality has now replaced. Even assuming, however, that the violation of the order followed on the heels=of its entry, or more likely, of a court's refusal to modify an existing order, the court's reality is obviously different from that of the contemnor. The court's perspective, because it is determined by legal rules and procedures and the problems inherent in proving child sexual abuse, is a limited perspective. The reality of the contemnor, however, is not constrained by notions of what is legally admissible, or of whether or not a child stands up under cross- examination on the witness stand; the contemnor's perspective is built upon additional facts which the legal system has determined to be of no legal significance. Accordingly, when the Morgan court refers to a court order being tailored to a specific situation, it is a situation that the court has defined, not one as seen by the contemnor. One may wonder, then, why specificity, unfettered to the reality defined by the contemnor, should make a court order somehow more inviolate than a criminal statute. And if no more sanctity should attach to court orders than to criminal laws, the rationale for holding the necessity defense inapplicable in contempt proceedings crumbles. VII. AFTER A SUCCESSFUL NECESSITY DEFENSE The focus of this Article has been to argue on behalf of the availability of the necessity defense in civil contempt cases arising from child sexual abuse allegations. However, a fair question is what happens if the defense is successfully asserted. A potential contemnor may use the defense to avoid incarceration and all of the attendant harms of jailing a custodial parent, and yet the original problem remains. That is, what, if anything further, should courts do to deal with the problem that continues to haunt: the custodial parent who, through a now judicially-sanctioned good faith belief of abuse by the other parent, refuses visitation rights. Supervised visitation with the noncustodial parent is one solution that is often recommended, whether for an interim period or for the remainder of the child's minority. It may be a viable answer assuming that the custodial parent will agree to it, that the child has not in fact been abused, and that the noncustodial parent is willing to accept such limitations. On the other hand, it may be a solution that is unsatisfactory for all concerned. The custodial parent will not admit to any positive value to be had in a continued relationship between the abuser and the victim. The child, if in fact a victim,is forced into intolerable continued contact with his or her rapist. If the child is not, in fact a victim, there remains the intrusion of a third party into the time spent between parent and child, and perhaps for the noncustodial parent, the sense of stigma that follows. While it could be said that supervised visitation is a viable solution despite its problems, there remains the question of who will provide the supervision and who will pay for it. A second possibility is that once the custodial parent has proven her good faith belief, the child could be removed from the custody of both parents and placed in foster care, with supervised access to both parents until such time as the question of abuse is decided. This option has the advantage of allowing the child to maintain contact with the parents while presumably ensuring his or her own safety. n135 It may also have the incidental advantage of testing out accusations of brainwashing of the child by the custodial parent. The resource problem is even greater here, however. The cost of supervision doubles, there being two parents to observe during visitation, in addition to the cost of the foster care itself. Assuming this to be an interim rather than permanent arrangement, there is also the cost of trained professionals to examine the child and the parents and to provide whatever counseling may be needed. Perhaps in even the most skilled of hands, the question of abuse may never be answered, raising the issue of whether long-term foster care is an acceptable resolution. n135. Placing the child in foster care is its own trauma, however. See Besharov, supra note 37, at 560 (describing some problems inherent in foster care system). A third, and obvious, solution is to "fix" the legal system that makes allegations of child abuse so difficult to prove, and thus contributes to the problem of custodial parents whose shattered faith in the legal system causes them to hide their children or to flee with them. The tension between attempts to "fix it" and the constitutional rights of defendants n136 portend at best a slow, and at worst, an impossible process. Assuming that one could substantially improve the legal system without running afoul of the Constitution, there is no doubt that in some cases, custodial parents might persuade themselves that a court can and would decide the matter fairly. Unfortunately, the reformation of the legal system alone will not solve the problem. As previously discussed, failings in the society as a whole would remain. Pre- verbal children with no physical evidence of abuse, for example, will probably not stand any better chance in an improved legal system than in the present one. n136. See supra note 30 and accompanying text. The fourth alternative is for courts to recognize the limits of the law in resolving this conflict. Whether for lack of resources, or for other reasons, the legal system may have no answer that will satisfy the needs of all of the parties concerned. If this is the case, the court must seek to do the best it can, never forgetting that its focus should be on how best to promote the child's interests. Accordingly, the best in a myriad of less than optimal solutions may be for the court simply to allow the custodial parent to determine the extent of the relationship that will exist between the child and the noncustodial parent. This suggestion does not minimize the effect on the noncustodial parent, for whom a court's refusal to interfere with the custodial parent's decision may mean a loss of contact with the child. Given the choices available, however, it can be defended for a variety of reasons. First, the child's best interest is served by allowing a continuation of the relationship between the child and the custodial parent, that is, the parent caring for the child on a daily basis. The interruption of such a bond, not to mention the actual physical displacement involved in placing a child in foster care, for example, is a source of great trauma to the child. n137 Secondly, to refuse to second-guess the custodial parent's decision in this matter underscores the court's initial determination regarding which parent would best serve the child's interests. The court (or sometimes the parties themselves) may have already made a decision that the child would be better off with one parent than the other, and that the custodial parent possesses all of the faculties necessary to act in the child's best interest. Therefore, in a difficult situation such as this, a court could stand behind its initial determination and place its faith in the custodial parent. n138 Third, such an idea is not entirely new. Though still controversial, and admittedly never really accepted in the American legal system, Goldstein, Freud, and Solnit, in Beyond the Best Interest of the Child, make a similar argument. n137. J. GOLDSTEIN, A. FREUD, & A. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD 109 (2d ed. 1979). The importance of continuity of the relationship between the custodial caregiver and the child is beginning to be recognized in the doctrine of the primary caretaker. In custody determinations, this is a presumption that the child's welfare will best be served by placing her in the custody of the parent who has been primarily responsible for daily care of the child. Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981) (originating presumption); see H. CLARK, supra note 9, at 800. But see LOYOLA ASSOCIATION OF WOMEN LAW STUDENTS, SEEKING SOLOMON'S WISDOM 5-6 (1984) (arguing that in spite of Goldstein's theory, many professionals in child welfare feel strongly that the more contact the child has with both parents the better the child will adjust to her new life). n138. Under Japanese law, to be a custodial parent is to decide what, if any, contact the child will have with the noncustodial parent. See J. GOLDSTEIN, A. FREUD, & A. SOLNIT, supra note 137, at 132. Once it is determined who will be the custodial parent, it is that parent, not the court, who must decide under what conditions he or she wishes to raise the child. Thus, the noncustodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such a visit. What we have said is designed to protect the security of an ongoing relationship -- that between the child and the noncustodial parent, which the adults involved have jeopardized. It leaves to them what only they can ultimately resolve. n139 n139. Id. at 38. This view on the subject is different in one respect from the situation at issue here. Goldstein, Freud, and Solnit recommend that visitation be totally removed from the jurisdiction of the court except peripherally in that court's determination of who should be the custodial parent. This Article, however, does not go that far. The rights of the noncustodial parent are protected in some measure until it appears that further protection of those rights will harm the child. Thus, the noncustodial parent in most situations may continue to look to the courts for enforcement of his or her rights to visit with the child.Only in a situation of such irremediable conflict and one in which other alternatives prove harmful should the court choose the least detrimental one for the child, permitting the custodial parent to use her discretion to discontinue visits. CONCLUSION The problem of what courts should do with recalcitrant custodial parents is a problem with no easy solutions. The inquiry should not ignore that this is one small piece of the larger challenge facing the legal system, that is, what it can or ought to do in dealing with the hideous problem of sexual abuse of children. No ultimate solution exists, nor is one likely to. If nothing else, however, the legal system ought not be paralyzed by the enormity of the problem;rather, it should make whatever inroads are possible. It also ought not fool itself into thinking that solutions have no costs, or that balancing rights and interests of family members is a painless activity. The recognition of necessity as a defense to contempt charges is one small inroad. In a myriad of tough choices, courts need to be counted on to provide shelter and protection for child victims and to choose the course that is truly in the best interests of children.


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