The Making of the Documentary Small Justice
By Garland Waller

Diane Hofheimer, a paralegal and child advocate, handed me the VHS tape with a warning: The video would chill me to the bone. She told me itshowed a three-year-old girl clinging to a banister, begging not to be sent to live with her father.As Diane explained, a family court judge had awarded custody of this little girl to her dad despite evidence that he had sexually abused her. The thought of this made my skin crawl and part of me refused to believe that our court system would do this to a child. So I did what many people in my situation would do: I put the tape on top of my "to do"file. And there it sat, staring me in the face, for six months. About once a week, Diane would call tocheck in and see if I had watched the tape and each time I had to tell her, "No, not yet." She was patient. A little background. Diane is a childhoodfriend. She and I grew up in the same Quaker meeting in Virginia. She and her husband, Charlie Hofheimer, had created a law office in Virginia Beach, Va., that represented women in custody and divorce cases. Together they had learned that the courts often ignored evidence of sexual abuse and awarded custody to the abusive parent, typically the father. Diane was alarmed that no one in the media was telling this story. And that was why she had turned to me. She was hoping that I would use my skills as a TV producer to get the word out about this issue.Eventually, I mustered up the courage and put the tape in the VCR. As promised, the videotape showed a towheaded girl, clinging to a banister,screaming, in a aunting, horrifying cry, "Please, Mommy, please don't make me go to my daddy's house." It was a singular moment in space and time for me; it was the moment that changed my life. If, as Diane said, this child was not a loneexception but part of a trend that extended across America then this amounted to a national scandal that needed to be exposed. I began to research custody and divorce cases in which violence or abuse was a component. Ihad always expected that parents going through a divorce would put the needs of their kids first. But, as the research unfolded I began to see that violent men tended to be the ones who demanded custody. And when they did, they had a good shot at receiving it. During the course of my research, I read things like:"Fathers who battered the mother are twice as likely to seek sole custodyof their children as non-violent fathers."– American Psychological Association's Presidential Task Force, Violence and the Family. (2000) and:"Abusers/batterers who are crimi nally liable for their violence nonethelessare getting sole or joint custody in approximately 70 percent of challenged child custody cases." – The American Judges Foundation, Domestic Violence in the Courtroom: Understanding the Problem,Knowing the Victim. (1996) "Between 50-75 percent of themen who batter their wives or female partners also abuse their children. "– Lenore E. Walker et al, "Beyond the Juror's Ken: Battered Women." 7 Vermont Law Review 1, (1982) I was growing increasingly convinced about the extent of this scandal and its potential as the subject of a documentary. But despite my background producing well-funded syndicated documentaries on such topics as the fear of nuclear war, rape, child abuse and drug addiction, I had a feeling no network would back me on this project until I could show them the finished goods. So, I decided to make my first independent, low budget documentary using $20,000 of my own money and one of my graduate students at Boston University who generously agreed to work for free. In 1998, I began shooting "Small Justice:

Little Justice in America's Family Courts." I spent months gathering information, and fully immersing myself in this issue. Given the complexity of the family court system and the intricacies of abusive relationships, I was lucky that I had DianeHofheimer to guide me. Diane explained legal theories and the intricacies of the family court system and she gave me boxes of legal research. She also introduced me to mothers who had lost custody of their kids to abusers. To document the abuse of justice being perpetrated by the family courts, I decided to follow Diane and Charlie Hofheimer as they worked with three mothers who were losing or had lost custody of their kids in family courts. I never doubted these women or their stories because they were so open, so desperate for help, so determined to protect their children. But I could see how they could lose in court, not because there wasn't evidence, but because they presented themselves poorly. They were overwrought and angry, and their emotions often affected their composure.I can't imagine any loving mother, frankly any loving father, acting differently. Sometimes, after a day of shooting, I would lie in bed at night, unable to sleep because of what I had seen. I wondered what I would do if the court ignored me and my efforts to protect my child. Would I run away with my child? How would I live? Where on the planet could I go without being caught? I saw the underbelly of American justice and I wondered what options these protective mothers had. In addition to the mothers, my crew and I also interviewed leading experts like attorney Richard Ducote, Dr. Carolyn Newberger of Children's Hospital in Boston and Karen Winner, author of "Divorced from Justice," one of the few books on this issue. These interviews further convinced me that the system was deeply flawed. Unfortunately, all of the dads involved in the cases I featured refused to speak with me, as did their lawyers. But I did manage to get an interview with Dr. Richard Gardner, the man who devised Parental Alienation Syndrome, the debunked theory behind many of the most egregious decisions handed down by family court judges. According to Dr. Gardner, alienating parents, typically the mothers, use accusations of abuse in order to alienate their children from their fathers. During my interview with Dr. Gardner, one of the last he gave before he committed suicide in 2003, I asked him what a mother should do if her child revealed that his or her father had abused them sexually. Gardner said she would respond by saying, "I don't believe you. I am going to beat you for saying that. Don't ever talk that way about you father.'" Although Gardner's theory has been widely discredited by the psychological establishment, the fact is that many members of the judicial system have bought into PAS. Now, when a mother brings allegations of sexual abuse before the court she is often accused of PAS. Unfortunately, many judges find PAS more credible than a hospital record of vaginal tearing or unexplained blood in the anus of a child. As I wrapped up production of "Small Justice"in 2001, I thought I would have no problemselling the show. After all, I had uncovered a national scandal and I had extensive testimony from three protective mothers and a litany of experts from across the spectrum. I was wrong. I took the show to all the news magazines at CBS, ABC and NBC, but no one wanted it. HBO and CNN also said no. I heard these responses over and over again: "What's wrong with the mother?""Give me something that is more clear cut.""It's her word against his." "He looks pretty normal to me." "Guys don't do this to their kids." "I thought all mothers got custody unless they were, like, nuts." "We can't air that. We could get sued." "It looks like 'He said-She said" to me." "This is way too complicated to explain to folks."

It is probably hard for anyone involved in this awful situation to understand why the media will not touch this issue. After all, these stories are filled with injustice and human drama. Unfortunately, television stations fear lawsuits and that fear hinders their willingness to uncover important stories and stand up for what is right. Although the large broadcasters rejected "Small Justice", the good news is that the documentary received some acclaim. It garnered the award for "Best Social Documentary" at the NY International 2001 and was honored with theAward for Media Excellence from the 8th International Conference on Family Violence, which was presented in California at the International Conference on Family and Domestic Violence. I showed clips of "Small Justice" and spoke at two conferences hosted by the National Organization for Women. "Small Justice" was also shown at The Museum of Fine Arts in Boston and the Key West Indie Film Fest gave it an award. I like to believe that "Small Justice" contributed to the growing interest in this area. Over the past couple of years, conferences like the Battered Mothers Custody Conference have been dedi cated to the issue, books have been written and recently Breaking the Silence: Children's Stories aired on PBS. These are big accomplishments and eachone helps to call attention to the heartbreaking injustices in the system. There are still nights when I cannot sleep because I hear Suzi begging not to be sent to her father's house. Every day, I get at least one letter from a terrified mother or worried grandfather, someone trying to protect a child from a family court system that is at best woefully misguided and, at worst, dangerous. And so, I believe that those of us who are able to fight the system, must continue the uphill battle to get the courts and the media to listen to a disturbing truth.
Tags: abuse, abuses, child, civil, constitutional, discrimination, domestic, human, rights, violence

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