On Nov. 20, the National Organization for Women (NOW) Foundation filed a friend-of-the-court brief on behalf of 10 women’s rights and anti-violence organizations in the case of Khawam v. Wolfe, in the District of Columbia Court of Appeals. The brief supports reversal of an unprecedented award of $350,000 in attorneys’ fees against a woman who accused her ex-husband of domestic violence. The brief argues that such an extraordinary award may chill protective mothers from raising allegations of domestic violence in custody disputes for fear of retaliation should their claims ultimately be found unproven.
After Khawam sought a protective order against Wolfe, citing emotional and physical abuse, Wolfe sought custody of their young child. Khawam’s ability to introduce evidence of domestic violence was sharply limited by the courts, and her truncated testimony was ruled not credible, leading to Wolfe being awarded sole custody of their son. Additionally, the judge expressly premised the attorneys’ fee award on Khawam’s supposedly “unsupported” domestic violence allegations.
The organizations’ brief argues that the extraordinary award of attorneys’ fees is wrong under established law, emphasizing that the trial court’s action is particularly troubling from a policy standpoint. It punishes — and threatens to bankrupt — Khawam for raising the issue of domestic violence in the court of divorce and custody proceedings, despite the fact that those allegations were clearly relevant to the issues before the court.
NOW Foundation President Terry O’Neill states: “This case is emblematic of the continuing bias in family courts against women, discrediting their testimony of domestic violence, ignoring the potential for continuing abuse of children placed in the custody of abusers and financially punishing the protective parent. This judicial bias is all too often reinforced by biased psychological evaluators, who frequently view conflict as caused equally by both parties. That is a dangerously false equivalence in cases of intimate partner violence.”
O’Neill adds: “The entire system of family courts handling divorce and child custody cases is desperately in need of reform to reflect what we now understand to be defects in the custody evaluation process as well as common practices of poorly informed or biased judges.”
Researchers have documented the widespread use of unqualified and biased custody evaluators, who use non-standard measures in claiming that a protective parent — usually the mother — is “emotionally unstable” or “has characteristics” of a mental disorder. At the same time, evaluators and judges may fail to recognize or discount a pattern of controlling, threatening and often violent behavior by the other parent — usually the father. Many family court judges mistakenly believe that mothers falsely claim violence by the father, or they have an unrealistic understanding of the nature of domestic violence, thinking that both parties are at fault, when in most such cases there is clearly a single perpetrator and a victim.
One very troubling practice is that judges and court personnel award custody of minor children to batterers, when extensive research has shown that in at least half of cases, child abuse is associated with domestic violence. The Leadership Council on Child Abuse and Interpersonal Violence estimates that at any given point in time there are half a million minor children placed by family court judges in the hands of an abusive parent as a result of a flawed custody determination.
The Khawam case is one of thousands that NOW leaders have become familiar with over the years and is illustrative of the dysfunction of the family court system. Ten organizations joined with NOW Foundation in filing this brief: The Battered Women’s Justice Project — Domestic Abuse Intervention Program, the Center for Judicial Excellence, Child Justice, Inc., Domestic Violence Legal Empowerment and Appeals Project, Georgetown University Domestic Violence Law Clinic Director and Law Professor Deborah Epstein, The Leadership Council on Child Abuse and Interpersonal Violence, Maryland Network Against Domestic Violence, National Coalition Against Domestic Violence, Virginia Sexual and Domestic Violence Action Alliance, and the Women’s Equal Rights Legal Defense and Education Fund.
NOW Foundation wishes to credit the assistance of attorneys Lori Alvino McGill and Kerry C. Dingle, who prepared the brief and to thank Latham & Watkins LLP for their generous support.