Litigating the Cult-Related Child Custody Case
This article is an electronic version of an article originally published in Cultic Studies Journal, 1988, Volume 5, Number 1, pages 122-131. Please keep in mind that the pagination of this electronic reprint differs from that of the bound volume. This fact could affect how you enter bibliographic information in papers that you may write.
Litigating the Cult-Related Child Custody Case
Randy Frances Kandel, J. D., Ph. D.
Mayerson, Zorn, Perez & Kandel
Successful litigation of child custody cases involving a cult group depends on several factors: showing that cult practices harm the child and that the cult leader is a surrogate parent; keeping multiple cases before the same judge and consolidating multiple actions for hearings and trial; making special use of expert witnesses; and getting the help and support of ex-members.
Successful litigation of child custody cases in which one parent is a member of a destructive cult requires strategies and techniques that focus the court's attention on the fact that the hierarchical totalitarian structure of the cult controls both parent and child. The cult leaders substantially usurp the parenting function; their dictates replace the decision-making usually exercised by custodial parents; and the parent-child interaction is embedded in and inseparable from cult practices and relationships.
Child custody litigation between a cult member parent and an independent parent can involve a broader judicial inquiry into the techniques of mind, lifestyle, and environmental control practiced by destructive cults than virtually any other type of cult-related litigation. In cases involving adults, the courts have been generally reluctant to recognize causes of action grounded in psychological manipulation (such as “coercive persuasion” or “mind control”) because of the law's strong presumption that adults act autonomously and voluntarily. But no comparable presumption attaches to children when custody is at issue. To the contrary, the very purpose of child custody litigation is to decide on an environment (human and otherwise) which will be “in the best interests of the child.” The court may evaluate the rules and relationships to which the child will be exposed commonsensically and qualitatively (if not judgmentally) precisely with regard to the formative effect they may have on the child's developing psyche.
The statutory recitation of the factors to be considered in determining child custody varies slightly from state to state, but it universally involves broad, sweeping inquiry into the relative “fitness” of the parents emotionally, financially, and otherwise. Testimony on the daily ritual and minutiae of cult life, including how and with whom the child spends time, the extent and nature of parental interaction, the methods of child discipline, the child's education, and the non-parental adults who will interact with the child, is relevant to the determination.
The Sullivanians: Beliefs and Practices
In the past several years, our firm and others have represented in child custody matters several former members of the so-called “psychotherapeutic community” known as the Sullivan Institute for Research in Psychoanalysis/Fourth Wall Repertory Company. This entity, located on New York City's Upper West Side, has approximately 250 members, most of whom are well-educated professionals in their late twenties to early forties.
The core of the Sullivanian theory is that the nuclear family and all strong dyadic relationships are psychologically destructive, and that parent-child bonds in particular are the root of all evil and the mainspring of psychological maladjustment.
Members must break off contact with parents and friends “outside” and learn to loathe them; avoid forming intense dyadic relationships; and maintain ongoing sexual relationships with other group members. Marriages, although permitted for reasons of convenience, financial and the like, are non-monogamous, non-coresidential and frequently formed and resolved at the dictates of the leadership.
The heart of the various profit and not-for-profit entities under which the Sullivanians operate is a “psychotherapeutic institute" to which the leaders and both licensed and lay therapists belong. AU members are required to be in perpetual therapy with these therapists. According to former Sullivanians, the therapists control members” lives through manipulation of the transference phenomenon. Transference is the process by which the patient transfers onto the therapist many of the primary reactions, feelings, and thoughts that were once associated with other highly significant persons in the patient's life. Responsibly handled transference can be therapeutic, but it offers the therapist an opportunity to exercise great control over the patient Unscrupulously handled transference can become a medium to foster cult allegiance and a means to the authoritarian domination of cult members.
Former Sullivanian therapists admit that therapeutic confidentiality is broken down in the group. Therapy sessions are a means for the leaders to extract information and exert control. The therapists themselves report the substance of therapy sessions to their own supervisors, the Sullivanian leaders.
Most Sullivanians, married or unmarried, live with other Sullivanians in sex- segregated apartments. Peer pressure, encouraged and directed by Sullivanian therapists, reinforces conformity to Sullivanian mores and dictates of the leaders.
Not surprisingly, Sullivanian child-raising practices manifest Sullivanian ideology. As described by former Sullivanians, the therapist's consent is needed to bear or raise a child. Sometimes it is decided, prior to birth or even conception, that the biological parent and the nurturing parent will be different people. From infancy the cult applies stringent measures to interfere with the development of loving bonds between mother and baby. Full-time babysitters or "committees" of cult members, under the authoritarian direction of the cult leader, are assigned to each child and act as guards and gossips to ward off any show of maternal affection. Others who are excessively demonstrative toward their children may have their babies taken from them for foster-parenting or adoption by other group members.
As the child grows up, a continuous round of adults other than the parent or full- time babysitter supervises the child for some brief period of time each day so that parents may be literally forced to “date” their own children.
Parents must discuss every aspect of their children's lives with their therapists, and the children themselves are frequently in therapy from an early age. Thus, every aspect of the children's lives - what they shall do, who their friends shall be, where they shall go to school, how they shall spend vacations - comes directly under the purview and control of the therapist/leaders.
Litigation Strategies and Tactics
In one of the custody proceedings which are the basis for this report, our firm represented a mother who had been forbidden contact with her infant daughter by the Sullivanian leadership. The mother took the child and left the Sullivanian community, at which point the father/husband petitioned for a writ of habeas corpus. In the other two proceedings, handled by other counsel not of our firm, fathers who are former Sullivanians sought custody of their children from their ex-wives who continue to live in the Sullivanian community. Based upon our experience and observations, we can suggest certain general guidelines for attorneys to consider in similar situations.
Emphasize the Destructive and Dangerous Influence of the Cult on the Child.
Make the court aware at the outset that the adversary is the cult and that the cult is dangerous. In the case handled by my firm, this issue emerged immediately when we refused to disclose the address of the mother and child. We maintained that confidentiality was needed because of the risk of physically and psychologically dangerous reprisals from the Sullivanians.
Indeed, courts have held quite uniformly that the whereabouts of a spouse and children are protected by the attorney-client privilege where one spouse fears the other's violent propensities or where the marital situation appears to be potentially explosive. We argued that confidentiality was even more necessary in a case, like the one in question, where the wife/mother fears not merely an estranged husband, but the combined force of a cult group which operates through physical violence and psychological terrorism.
When we refused to reveal the mother's address, the court held several days of evidentiary hearings on the dangerous aspects of the Sullivanians - placing the destructiveness of the cult environment into issue prior to any concerns about individual parental fitness.
Former Sullivanians testified about physical and psychological control within the group. Former Sullivanian parents testified that they had been forced to surrender their children or required to send them to boarding school at ages as young as three years. Testimony was given by young adults who had been raised within the Sullivanians on the suffering they had experienced. (One Sullivanian- raised young adult had become a teenage alcoholic. Another had committed suicide.)
Although never formally concluded because our case was happily resolved, these hearings set the stage for all further proceedings. Most significantly through these hearings, a kind of “longitudinal evidence” was brought into the case by which the destructiveness of Sullivanian child-raising patterns was demonstrated through testimony of the psychological injuries suffered by other children raised in the group.
Focus on Control: The Cult Leader as the Real Parent
Bring the cult leaders into the case. Put them on the stand and let them expose themselves through their own testimony. If procedurally possible (for example, as respondents on a habeas corpus petition) join the cult leaders or significant members as parties in the case. Their “parenting" role is a genuine and material factor in determining custody.
In child custody litigation, the issue of relative parental “fitness” can be dispositive. A fit parent is a parent capable of making independent, mature, autonomous, and rational decisions about the raising of a child, and also capable of acting upon those decisions. Parents who must “clear everything” with their therapist or who must respond blindly to the dictates of the leadership do not meet this standard.
Fortunately, during the course of extended litigation the authoritarian control of the cult leaders will frequently make itself evident. For example, decisions to move all the cult children from one school to another or from one summer camp to another; or to permit or deny all cult children to engage in a certain activity or to play with other children betray the absence of responsible, independent parenting. Bring all such examples of controlled group action to the court's attention.
The fact of leadership control is related to the issue of parents' rights as well as parental fitness. The right to decide how one's child shall be raised is not necessarily equivalent to the right to turn over to someone else decisions about how one's child shall be raised. While both parents may be assumed at the outset to have equal rights to their children, the same is not true of parental surrogates whom the cult may appoint.
In the Sullivanian cases particularly, the practices of appointing perpetual babysitters, rotating cult members in turn to care for the baby, and limiting the parent's own time with the child, were arguments against cult parents' having primary custody.
The amount of time and the amount of quality time which a parent is able to spend with a child are usually factors in deciding the ordinary custody case. Thus, the extraordinarily small amount of private quality time a cult parent spends with a child may be of particular significance.
Keep Multiple Cases Before the Same Judge
Few things can be more advantageous in cult-related custody litigation than to keep several cases involving the same cult before the same judge.
First, the repetition and expansion of contextual information which can thus be provided to the court makes a strong evidentiary statement on the quality and nature of a child's life in a cult. Besides, cults are exposed when the same patterns of oddities and abuse in child-raising matters and husband-wife relations occur again and again in multiple cases. From an evidentiary perspective, trying multiple cult cases before the same judge permits evidence on the often bizarre similarities in the lives of different cult children - revealing and proving as cult pattern and practice what might otherwise appear to be vagaries and idiosyncrasies of parental personalities. When various cult cases are assigned to a single judge, the court can gain a thorough understanding of the manipulations of the cult leadership which may be impossible to perceive by viewing any single case in isolation.
Second, assignment to the same judge makes possible cooperation and collaboration among the various non-cult parents and their attorneys. Working through such a “quasi-class action” structure allows non-cult parties to meet the power of the cult with their own power. All attorneys, and sometimes all parties, may attend judicial conferences. It enables non-cult parties to combine financial resources against the vastly greater financial power of the cult by sharing the costs of trial preparation, expert witness fees, and clerical costs. Use of the same judge, in addition, allows an intimate support network to form among the non-cult parties, which is essential to maintaining stamina, spirits, and morale in the face of cult forces' continuing psychological influence. Ex-cult members leave behind both an authoritarian structure, which has dictated their Lifestyles and decisions and all the friendships and emotional attachments they have known for years. They re-enter a world which is strange, threatening, lonely, and confusing without the supportive reintegrative network of other former cult members.
The assignment of three Sullivanian custody cases to the same judge proved to be a markedly effective tool. Fortunately, only a month before the commencement of the Sullivanian cases, a massive reorganization of litigation management took place in the New York State judicial system. Under the new organization, known as the LAS (Individual Assignment System), each case is assigned at the outset to one particular judge who thereafter hears all motions, matters, and evidentiary hearings, and conducts all conferences related to the case.
Initially, cases are randomly assigned to judges by computer. However, by attorney request or administrative decision, cases may be assigned to a particular judge before whom other related matters are pending. When rust requesting judicial attention, an attorney is required to indicate such other, related pending cases.
The first two Sullivanian cases were assigned to the same judge without objection from the Sullivanians. Although the actions were not formally consolidated, the cases were combined for the purposes of the evidentiary hearings, and most judicial conferences were also informally combined.
When the third ex-Sullivanian parent requested assignment to the same judge, the issue was body although belatedly litigated by counsel for the Sullivanian parent. The independent parents won a substantial victory when the administrative law judge ruled that all Sullivanian cases were to be handled by the same judge. Finding such assignment to be of the very essence of the IAS system, the administrative judge stated that a major benefit of the IAS is the ability to eliminate duplication and waste of judicial resources by assigning cases arising from the same subject matter to the same judge. He found a sufficient legal and factual nexus among the cases to warrant assigning the Sullivanian custody cases to the same judge.
Consolidate Actions for Hearings and Trial
An even more powerful tactic is the actual consolidation of actions for hearing and trial. Such consolidation allows evidentiary emphasis to be placed dramatically on the acts and attitudes of the cult. Moreover, it enables clients to more easily bear the costs of protracted litigation by sharing them.
Winning a motion for consolidation of matrimonial actions is, in and of itself, a victory against the cult because it necessarily entails a judicial determination that the commonalities of cult life and child-raising provide a sufficient common nexus of fact and law even in the intimate, unique, and variable area of relationships among nuclear family members.
In the Sullivanian cases, the issue of consolidation came up twice. The first firm was at the very beginning of the litigation, during the hearings on the dangerousness of the cult. Consolidation was essentially defacto. While hearings were proceeding in regard to the confidentiality of the mother's address in the first action, a second former cult parent was attacked, allegedly by a member of the cults security forces who was reputed to be a black belt in karate. As the two cases were proceeding in tandem before the same judge, the hearings, almost as a matter of course, came to apply to both cases.
The attempt at consolidation was less successful the second time. The two ex- Sullivanian fathers, who by that time were both represented by the same attorney and were living in a house they had rented together, made a formal motion to consolidate their trials.
In a published opinion, the New York State Supreme Court (Walter Shackman, 1.) held:
[T]he Court finds a joint trial is inappropriate. In each case the Court is separately concerned with the psychological environment surrounding the children as a result of the interaction between their parents, each parent and child/children, and between the children and significant other adults and children with whom the children interact as well as the physical environment in which they reside. Combining these two cases would make the Court's task of evaluating the evidence pertaining to the individuals involved more difficult While the Court is cognizant of the fact that a joint trial would reduce the fathers' cost of litigation, the Court does not believe it would result in a more economical use of judicial resources, for it deprives the parties of the individual attention each case warrants. Furthermore, a joint trial might create the impression that the court “should” or “would” decide the issues of custody and visitation similarly, without acknowledging that the Court is concerned with two separate family units. Having decided to have children together, these parents have implicitly committed themselves to an ongoing relationship to each other insofar as it relates to the best interests of their children. This relationship is now distinct from any communal relationship the parents once shared, and must necessarily grow to encompass the differing needs and preferences of maturing children. The Court finds a separate trial better fosters autonomous parenting and independent reflection upon parental guidance and the children's well-being.
Notably, this decision was reached despite the fact that the common questions of fact were unusually great. The children did not merely share a similar life with their mothers among the Sullivanians; they shared a similar life with their fathers as well. The fathers shared a house with a common living space and outdoor play space for the children, and frequently engaged in activities together when the children resided with them. Moreover, the judge was familiar with these arrangements and had presided over the entirety of the three cases.
The consolidation decision perhaps exemplifies the difficulties which may be encountered by an attorney who attempts in any sense to "litigate against the cult" rather than exposing the cult activities which may be detriment to the best interests of the child.
Make Special Use of Expert Witnesses
In planning a trial strategy, attorneys should consider and select among the multiple possible uses of psychologists, psychiatrists, anthropologists, and sociologists as expert witnesses. Testimony by social and behavioral scientists who have done primary research on a cult, or clinicians who have treated former cult members and their families, can be invaluable in providing information on the patterns of child-raising within the cult.
If such experts testify in court, caution them to concentrate on facts about the social organization, culture, and interpersonal dynamics in the group and about the psychological consequences of these factors. Avoid the battle of theories that is subject to First Amendment protection and which creates a tangle of ideologies while raising issues of admissibility under the Frye test. As first enunciated in the case of Frye v. United States, 293 F. 1013 (CADC 1923), the rule holds that “in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” The test can be used to exclude expert testimony in the behavioral and social sciences where the nature of academic debate often makes it impossible to meet the “general acceptance” standard. But do elicit sufficient ethnographic detail to assist the clinical experts in giving their testimony. Such experts may also be helpful out of court in providing ethnographic and theoretical information to clinical experts. The body of scientific literature has swelled to substantial proportions, and any attorney litigating cult cases is well advised to become familiar with some of this material whether or not its authors are to testify as expert witnesses.
The use of clinical experts must, almost necessarily, be more extensive than in a typical matrimonial action. The usual psychiatric or psychological evaluative consultation is done in the experts office and typically consists of interviews with the parents and children and observations of parent-child interaction.
In a cult-related case this is simply not enough. The inquiry must not end with the question of whether the parent-child relationship is good or bad because much of the psychologically destructive quality of life in a cult comes from the mental and psychological control exercised by the cult leadership. The expert evaluation must include other issues such as: 1) who controls and directs the parent's functioning and decision-making; 2) who, other than the parent, disciplines and cares for the child; 3) how much time do parents spend with their children and what is the nature of the interaction; 4) who, other than the parents, makes decisions about the child's upbringing and education, and what is the basis for these decisions.
Ideally, the expert witness should have a substantial Opportunity to observe the parent-child interaction in ethnographic context (at home in the cult interacting with cult leaders and other cult members who are significant adults in the child's life). Alternatively, the expert should have the opportunity to testify about the effects of the cult's practices as developed through the testimony of others, through information provided by research-oriented experts, or through their scholarly works.
Enlist the Help and Support of Other Ex-Members
Individuals who had left the Sullivanians relatively recently formed a supportive, informal “re-entry” network of friends and associates who were in close and frequent contact with one another. The same is true for former members of many other groups.
The people in this network provided invaluable assistance to both the litigators and the litigants. They testified as witnesses. They provided volunteer clerical services (helping, in a small way, to minimize the inordinate financial discrepancies between the wealth of the cult and the budgets of the independent parties). And, perhaps most importantly, they provided emotional and practical support to the ex-member parent parties during the long ordeal of litigation which, for the litigants, meant slowly and painfully breaking with and publicly exposing a former total way of life. Non-party former cult members are a litigation resource not to be underestimated.
Randy Francis Kandel earned her Ph. D. in anthropology from the City University of New York in 1975 and a J. D., cum laude, from the New York University School of Law in 1982. The litigation partner in the firm of Mayerson Zorn Perez & Kandel, she has significant experience in matrimonial litigation, and has written numerous scholarly articles.