MORGAN V. FORETICH
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
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.
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
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
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
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
n15. See D. RUSSELL, SEXUAL EXPLOITATION 100 (1984) (reporting
results of study of rape victims in which only 20% of rapes had
n16. Id. at 138 (characterizing American society as rape-
supportive and citing reasons for failure of effective rape
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
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
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
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
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
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
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
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
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
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
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
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. 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,
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
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
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
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 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
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
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
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.
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
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
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
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
(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
(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
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
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
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
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,
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
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
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
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
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,
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
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."
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
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,
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
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
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,
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.
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.