The Problem — Why Protective Mothers Need Help

Why Protective Mothers Lose Custody

Across the United States, Protective Mothers too often lose custody of their children to the abusive fathers, even with clear evidence of abuse. Children are then forced to live with abusers, risking more harm and lifelong trauma.

What Children Face

• Ongoing abuse and coercion


• Pressure to lie to professionals


• Emotional harm from losing their safe parent

Why the System Fails

• Evidence of abuse is minimized or disbelieved


• Old common-law attitudes still shape outcomes


• Mothers reporting abuse face sex-based bias

THE CONSTITUTIONAL REQUIREMENT OF STATE ACTION IS MET

The Equal Rights Amendment (the 28th Amendment) and the Due Process and Equal Protection clauses of the 14th Amendment require “state action” to be applied to Protective Mothers child custody cases. In each Amendment, it says “No state shall….” Usually, child custody cases are not considered to be state actions.

However, ironically, in most if not all, Protective Mothers child custody cases, against Fathers who have physically or sexually abused their children, involve the Fathers lying in various ways in their sworn testimony on the witness stand or in the motions, complaints or petitions they file, and also to critical witnesses in these custody cases, such as to: 

  • Child Protective Services (aka Departments of Social Services, Children and Family Services, etc.);

  • Therapists / psychologists for the children or parents, including regarding psychological evaluations, or parenting evaluations, which are used by the Court to decide what custody arrangement is in the best interest of the children; and, but not limited to

  • Law enforcement officers investigating the abuse for possible criminal charges.  

Under the “state action” legal rules (“doctrine”), those lies by the abusive Fathers, even if usually considered private misconduct, becomes constitutionally attributable to the State when state officials, courts, or agencies adopt, enforce, or ratify the misconduct through the exercise of state authority.  Once falsehoods are incorporated into judicial findings or enforced through custody orders, the resulting harm is no longer private; it is an act of the State.  Thus, it can be regulated by the ERA (the 28th Amendment) and the due process and equal protection clauses of the 14th Amendment.

Here are some basic legal examples:

  • If a CPS investigator or law-enforcement officer relies upon or enforces or testifies that a private falsehood (here, for example, the Father’s denial of abusing his children or the Father saying that the Protective Mother caused the children to lie to others saying they were abused) in an official proceeding, the deception is “fairly attributable to the State.”

  • When the Father knowingly submits falsified evidence or lies under oath to influence a custody determination, he willfully obstructs (interferes with by manipulating) the court’s lawful process of determining the child’s best interests [in North Carolina under N.C.G.S. § 50-13.2, which codifies a state’s policy].  If the court adopts those falsifications into its order as true, the interference becomes state-endorsed, transforming private deceit into official state action.

  • When state employees, such as CPS workers or law enforcement officers knowingly or negligently (meaning reasonably they should have known it was probably or possibly false, but did not dig deep enough to verify the truth or falsehood) disregard the falsity—they acted “under color” of state law, which is “state action.” 

  • Misuse of power “possessed by virtue of state law” constitutes “state action.” 

  • “State action” exists when the private party (for example, the abusive Father) is “a willful participant in joint activity with the State.”