The Brutal Reality: What to Expect in a Custody Battle

It’s 1836 and the French writer George Sand is swimming in the River Indre with her clothes on, weighed down by layers of ankle-length fabric. To anyone passing by, she must look mad or worse – driven by a death wish. But for her there is the relief of cool water sluicing hot skin, after walking for hours in 30C heat. She’s been moving all day because if she stops she’ll remember how frightened she is: she’s about to go to court to fight for her children against a husband driven by punitive anger. Custodire. To care. To look after. To guard. To restrain. Maternal care is, we are constantly told, the most natural of functions. But for century after century, women who transgress the expected norms of what a mother should be have battled for their children and been found wanting. Maternal care comes at a price when the law is involved. And all too often custody can be more a question of restraint than care. These cases happen now in blandly carpeted municipal rooms, and with less fanfare than they did in Sand’s day – she won her case against all odds, only for her husband to kidnap their daughter. But I thought of her when I fought for my children in the dull desolation of the winter of the pandemic, and discovered what it means to subject your capacity for love and care to a legal test likely to leave one parent high on the power of a win and the other traumatised by the vilification that often forms a part of these proceedings. Your children, I had been told by a friend as I embarked on my divorce, will be ripped in half. She sketched with her hand a line running straight down the middle of her body between the top of the head and the toes. I denied it at the time, but it was turning out that she was right: my children were being cut in half, as Sand’s children had been. I had moved to the countryside with the children for six months at the beginning of the pandemic and decided I wanted to stay. My ex-husband had given me permission to keep our two-year-old daughter but not our eight-year-old son. I began the case believing that I could make an argument for the life my son had with me, his mother, living in the countryside. I naively thought we could do this without lawyers, representing ourselves and treating the judge like a sort of family friend, seeking advice together. I quickly began to feel that I was being judged not only as a mother but as a woman. I came away from court feeling I had been held to account by standards I had mistakenly believed feminism to have eradicated. Women weren’t meant to write books or own property; and if we aren’t sufficiently emotional and sufficiently repentant, we can’t be the kinds of mothers who put our children first. The experience of being cross-questioned in the witness box remains one of the most difficult of my life to date. For months afterwards, the polished, insinuating voice of the barrister rang out in my head in my dreams or when I woke in the night, making endless statements masquerading as questions. “You act unilaterally, don’t you, over and over again?” “You don’t put your children first, do you?” “You just do what you want, whenever you want?” I answered back, despairingly, coming up with better answers than I’d managed in court, but even in these private nocturnal reveries I failed to have the final word. In the weeks between hearings, I found myself reading compulsively about women in similar situations. Crossing the foggy meadows to the Oxford courtroom, I was walking alongside George Sand in the 1830s countryside, and also alongside the fatally witty and beautiful writer and socialite Caroline Norton in 1830s London, when her philandering husband accused her publicly of adultery with the home secretary, and then asserted his right to their three young children. “I could hear their little feet running merrily over my head while I sat sobbing below – only the ceiling between us, and I am not able to get at them,” she wrote, after failing to retrieve them from the house where he’d hidden them. I lost my case. My son was to live mainly with his father, and my daughter mainly with me, though they’d be together for weekends and holidays, alternating between us. I wasn’t astonished at the court’s decision, though I was surprised the court was prepared to separate the siblings. But I was shocked at the arguments that had been successfully used to vilify me. It turned out that I lived in a culture where women who were seen as too independently minded could have their children taken away. As my daughter and I adjusted to being on our own in the grim January lockdown that ensued, I continued to read about women fighting for custody – about Sand, Norton, Elizabeth Packard, Frieda Lawrence, Edna O’Brien, Alice Walker and Britney Spears, and about thousands of ordinary women across the centuries, whose divorce and custody files I’ve been able to read. I also went into court as a journalist, and over the past year or so I’ve become used to sitting again in the cluttered, carpeted courtrooms where my own fate had once been decided. I’ve become used to the bucket seats in the corridors; to the dehydrating faces of men and women who haven’t slept for days, waiting hour after hour for their hearing until suddenly the judge is ready, but the solicitor is still on the phone, trying to get her laptop mended because otherwise her team won’t have the court documents. In court, month after month, I have come to think that children have as little agency as they did in the 19th century, when in England they were legally the possessions of their fathers with no rights of their own. Most pernicious now is the idea of “parental alienation”, introduced by the American child psychiatrist Richard A Gardner in 1985 to characterise a “disorder” wrought by the (possibly unconscious) “indoctrinations” of men-hating mothers. Gardner’s own writing is no longer given much credence, but his ideas slip in through expert reports by unregulated psychologists. Here, children are enmeshed, or unconsciously aligned with their mothers. Their wishes and feelings can’t be trusted because they’re likely simply to reflect the wishes and feelings of their all-powerful mothers. It’s not that the mothers in the cases I’ve seen have been perfect – far from it. The courts aim to be gender neutral, and some kind of shared care is the desirable norm, although they publish no data on how often this is achieved. Yet in case after case, I’ve seen an imperfect mother lose custody to an imperfect father because their children were in some way rejecting the father. Imperfect women are made more imperfect by a court system that can seem designed to exacerbate their faults and to heighten conflict. The predictable result is that children are handed over to fathers who end up over-empowered by the court process – their faults minimised. Watching these mothers suffering in courtrooms, I’ve found that I end up respecting them all the more for the desperate sincerity with which they try to present their cases to the court, often digging themselves in further as they do so. And I’ve felt painfully sorry for the children who lose their mothers because they love them too much, which can only be the mothers’ fault. East London. This court has been hollowed out of two upper floors in an anonymous office building. It’s a world of sleek riverside bars and stately Victorian colonnades and hustling financiers, such as the one who has come to court today to fight for his daughter – whom I’ll call Lana. The mother is hostile, the father says; she acts unilaterally, and their 50/50 arrangement isn’t working. He wants to have his daughter most of the time and to have full decision-making power. The court-appointed “expert” is on his side: a parenting coach-cum-therapist who’s attempted to improve the family dynamics while monitoring their interactions. In the court process, surveillance and nurturing are often meant to be miraculously embodied in the same person. The imbalance of power is palpable. This father is a highly paid European businessman at ease with the workings of the state. The mother was an immigrant sex worker who got together with him – her client – long enough to get married and produce a daughter and a lot of confused resentment on both sides. He took sex toys in a suitcase on business trips while she was left alone with the baby. He’s mellifluously represented by his barrister – a large, smiley woman who puts everyone at ease except the mother she calmly eviscerates. He’s also paying, indirectly, for his ex-wife’s much cheaper barrister, who doesn’t specialise in family law and has to have things explained by his lawyer when she gets confused. Already the father has won a case for 50/50 custody, costs (though the mother’s only income is the maintenance money he pays) and a change of nursery. As the day unfolds, it’s easy to see why. The father, giving evidence, is eloquent about his love for Lana. He demonstrates his capacity for self-reflection, describing himself imagining the questions Lana will ask him later about why he took her away from her mother. And he plays games with the mother’s barrister: “Do you want to do the answer as well as the question?” The mother, giving her evidence, is extravagantly evasive. She claims not to remember the year she moved house or the year she was in prison, a decade ago, for passport fraud. Asked if there’s anything good about this man, she can think of nothing. She can’t comment on the good times he has with Lana because she isn’t there. She can’t even reassure the court that she’ll support the arrangements if the father wins. “I don’t know. How can I answer that? I will be heartbroken.” She’s made mistakes and they all come out. In the last hearing, she produced photographs of him having sex to show his disregard for his own physical safety, and exposed his “cross-dressing”. The previous judge found all this “an exercise in humiliation on her part” – evidence of her agenda to “severely limit the father’s role” in their daughter’s life. She enrolled Lana in her previous nursery without his consent. Yet when she says, in despair, that she tries to prepare Lana for the handovers, only for her to scream as she leaves the house, I believe her. The coach and the father claim that Lana only cries because she hasn’t been properly prepared. But I believe that the mother did her best: she sent her with her favourite book and toy, wanting her to be at home with him. “I don’t dispute that Lana has a strong emotional bond with her mother,” the father acknowledges. But why aren’t his books and toys good enough? “I have a library at home with about 50 books.” The mother’s mistakes seem to me the mistakes made by a parent who is ill at ease with the system and community she’s found herself in. The first nursery she enrolled Lana in was a merely good enough nursery, but it was embedded in her community. Now Lana has to take the train, squashed with City workers, from east London to her “outstanding” nursery. The mother gives vague excuses for not attending nursery stay and plays. But as a former sex worker, she may not feel at home with the City worker parents, and she may worry that the father will attend. Shouldn’t we accept that she feels intimidated by this man she remains financially dependent on – a man she alleges saw strangulation as part of good sex? Yet somehow there’s no place in court to acknowledge these imbalances. Indeed, the mother’s suggestion that she’d been controlled by her husband had been dismissed by a previous judge on the grounds that sexually “she was, in fact, the dominatrix”. Findings from previous judgments are not open to challenge. A couple of days later, the judgment comes. The father, the judge says, has been “very much focused” on his daughter and displayed “no underlying resentment of the mother”, while the mother’s evidence gave “little reason for optimism”. The videos she filmed of Lana’s distress at the handovers are evidence of “serious harm” which will be “ongoing” in the mother’s home, where Lana is exposed to her mother’s “negative beliefs about her father”. In the witness box, the mother displayed a “lack of warmth”. And so the father gets everything he asks for. The mother’s parental responsibility has been restricted, and Lana will now see her mother for only four nights a fortnight, even in the school holidays. The mother’s crime has been to hate the father. I try to imagine George Sand or Caroline Norton, told that in order to retain custody they are required not to hate their husbands. Isn’t hatred a common feature of divorce? And isn’t the legal system designed to stoke it? This mother has lost custody because she couldn’t or wouldn’t say that she valued her daughter’s love for her father. It may well be that this painful failure to see what’s required by the system does indeed make her ill-fitted to help her daughter navigate the world. But to say that she lacks warmth as well? Wasn’t it warmth that I saw, in the fierceness of her protectiveness? The night after the judgment, I wake at 5am and think of the mother, perhaps awake, listening to the sleeping breathing of the daughter she’s soon to lose. I think of a little girl, on a Monday morning, being taken to school by her mother, knowing it’s going to be a fortnight until their next weekend, and of the mother, unable to explain what has happened because she doesn’t understand it herself. It’s hard to say whose fault this all is, but we can be sure it isn’t Lana’s. Oxford. Four years after my own court case, I walk up the stairs lined cheerlessly with children’s pictures, to the coffee bar with its lacklustre sausage rolls. The case I’m witnessing today has dragged on for five years and the original issues are no longer contended, but the father now seeks a change in residence. These children are adolescents. Let’s call them Esther and Ada, after Dickens’s tale of a court case that goes on for so long that the disputed inheritance has all been spent on lawyers, and justice has long been forgotten. There’s a court-appointed expert involved, of course. Trish Barry-Relph is best known for a 2022 case in which 13- and 11-year-old sisters accused their father of sexual and physical abuse. The older girl called her psychologist from the father’s bedroom while staying with him, threatening to take her own life if she couldn’t go home to her mother. Barry-Relph diagnosed a case of “severe alienation”, finding that the mother had turned them against their father. The children – together with their therapeutic godmother, Barry-Relph herself – moved to the father’s house for 90 days, not seeing their mother at all. The girls smashed up the house and broke a window to escape. Thankfully, the case went to the high court in 2023. Mrs Justice Lieven did find evidence of alienation, but thought it had been an unhelpful allegation, “embedding conflict and a sense that one parent is right and justified, and the other parent is wrong”. She found that the criticism of the mother by Barry-Relph and others “bordered on the inhumane”. She returned the older girl to her mother, though the younger one remained in limbo. I’m curious to see Barry-Relph, and she doesn’t disappoint. She’s grandmotherly looking in a black cardigan, and seems brisk and kind in manner, but her recommendations are far from kind. Barry-Relph no longer uses the term “alienation” directly, saying instead that Esther and Ada have been left “unwittingly serving their mother’s unconscious needs”. For years, the girls have repeated the same allegations against the father, with Esther, the older girl, accusing him of being abusive. The things he’s done have been found to have been accidents: he threw a ball at her face playing in the pool; he demonstrated a “slap”, clapping his hands by her face. Both girls bring up these incidents to justify their unease, which may indeed be inflected by their sense of both parents’ hostility. For a while, Barry-Relph was recommending that Esther should be moved to foster care while she rebuilt her relationship with her father, which she thought was impossible while she was exposed to the mother’s hostility towards the father. Now she’s recommending a six-month transfer to the father, but as he lives far from their schools, they’re to board full-time and see him for weekends and holidays. Esther has said she doesn’t want to see him; Ada has been happy spending weekends and holidays with him and wants to continue. Both have said they don’t want to board full-time. Cross-questioned, Barry-Relph is clear. If her solution isn’t adopted, Esther will have poor relationships with her sister and with future peers and partners, and her own children and grandchildren will be affected, too. Barry-Relph’s views are shared by the social worker “guardian” appointed to represent the children’s interests. The questioning of the parents begins. This is a packed court, because Esther is old enough to hire her own barrister (though she’s not in court herself), and Ada has the barrister appointed to represent the guardian. The mother has a KC, and up to now the father has had one, too, but this time he’s decided to represent himself, despite his wealth. This is usually disadvantageous, but it gives him a voice in the courtroom, allowing him to cross-question the mother, asking her about a time when the police were called because the girls had phoned her, sounding frightened. “Do you accept responsibility for calling the police?” the father asks. It was her new husband who called the police, she tells the court. “Do you accept responsibility for coming down to my house?” She’s getting fed up, having to answer to him like this. “I want to ask him to take responsibility for calling my husband a fucking bastard,” she replies, addressing the judge, who intervenes, insisting on the original question. “Other judges have been critical,” the judge continues, referring to the judge at the fact-finding hearing who determined that the mother was responsible for the conflict. “When a judge says these things, it’s an opportunity for self-reflection.” She follows the script. She regrets calling the police, she says. When the guardian’s barrister begins her questioning, it becomes clear why the father felt able to represent himself. This barrister is entirely on his side, effectively providing him with free legal representation – all the more powerful because she’s supposedly representing the children. Repeatedly, she asks the mother if she accepts the fact-finding judgment and accepts that the children are happy with their father. “I believe the children, is all I’m saying,” the mother says, fatally. The fact-finding judgment criticised her for taking at face value what the children say: seeing the slap and the ball accident as abuse. The barrister swiftly points out that she’s doing this now. The trap tightens as one day gives way to another and the mother returns to court in a black velvet jacket that seems to defy the muted neutrality of the courtroom. Does she see herself as a victim, the barrister asks. No, the mother insists. But surely there is something off here, she suggests, more hesitantly – something perhaps a little chauvinistic? “Not one person can say something nice about me.” She’s right. Here is a mother whom no one is criticising as a mother, except in her failure to co-parent with the equally uncooperative father. Yet nothing is asked about her parenting. Its exemplary nature is simply taken as a given, so neither Barry-Relph nor the guardian has felt the need to see the mother with the children. The father gets to show that he’s a fun parent, and a thoughtful one. He buys tickets for his children to attend the VIP section at a concert (only Ada attended). He engages with commitment and self-reflection in the therapeutic process with Barry-Relph. What the mother does that’s fun is irrelevant, because only her crimes are relevant here. And it’s true that she has doubted this man’s fathering in the past and doesn’t quite trust him now. But why does this mean that her daughters are better off without her? Esther’s lawyer cross-questions the father about a crucial turning point, in the spring, when Esther had been making an effort to rebuild her relationship with her father. The two girls were to go to him for half-term, and a couple of days beforehand he and Esther discussed how often she would speak to her mother. Initially, she wanted to phone her three times a day, while he wanted twice a week. He was worried that his ex-wife would become a constant witness to their days. Esther immediately tried to compromise by offering twice a day, but this still alarmed him, so she promised that she’d think about talking to her twice a week. The next day, the father panicked, afraid that Esther would involve her mother too much in any day-to-day squabbles she had with him. Without consulting Esther, he’d booked a flight to dispatch her to her mother abroad instead, sending her across the world on her own. Listening, I find it unsurprising that they’ve ended up where they have. The suggestion of moving to foster care, combined with this painful assertion of power: this father may not be abusive, but surely there’s cruelty here, even if it’s cruelty provoked and engineered by the court process and by the pseudo-therapy it gave rise to. It’s not surprising that Esther took refuge in anger; that she revived old allegations, because it was easier to say that he’d thrown the ball at her face on purpose than that she was a vulnerable girl who couldn’t trust in his love. The final submissions come in. The charge, according to the guardian’s barrister, is that the children “have lost a meaningful grasp of reality”, and this is the mother’s fault. The judgment is not a surprise. “The mother has not controlled the animosity which she feels towards the father.” For six months, the girls will board and spend weekends and holidays with their father. They’ll have brief, monthly supervised contact with their mother and then she’ll be hauled in again, to see if she’s sufficiently repentant, and capable of releasing her daughters from their “false narrative”. Around us, there are campaigns for change, especially for parents who can prove domestic abuse. In 2020, the government commissioned the Harm Panel report, which criticised the way that alienation is weaponised as a counter-allegation against domestic abuse, and found that “too often the voices of children go unheard or are muted”. The government has appointed its first ever domestic abuse commissioner, who has recommended that parental alienation is made ineligible in cases involving domestic abuse. Very recently, the government has announced the plan to repeal the clause in the Children Act 1989 that presumes that contact with both parents is in a child’s interests unless proven otherwise. This is a welcome move, though it probably wouldn’t have made any difference in either of the cases I’ve described, where the fathers don’t pose a threat to their daughters’ safety. Most promising has been the Pathfinder courts initiative, introduced in pilot programmes in Dorset and north Wales in 2022 and since expanded. These “problem-solving” courts try to interview the children and any professionals involved early on, and then to support families to engage in out-of-court dispute resolution, reducing the winner/loser aspect of the court process. Recently I’ve visited the Bournemouth Pathfinder court. It felt very different from other courts I’d been in: few expert reports are commissioned, hearings can be arranged with a few days’ notice and far fewer transfers of residence are ordered. I’m hopeful that if Lana or Esther and Ada’s cases had come to Bournemouth, the judges would have worked actively on improving the daughters’ time with their fathers, and wouldn’t have felt compelled to order a dramatic change of residence. It’s not surprising that the greatest custody novels are tragedies. Tolstoy’s great novel of adultery, Anna Karenina, is not normally thought of as a book about custody, but it is at heart the story of Anna’s son Seryozha, who helplessly misses the mother who can’t win him in court and has to grow up in a world without her. “Getting divorced with a kid is one of the hardest things to do,” the father’s lawyer says in Noah Baumbach’s brilliant custody film Marriage Story, “it’s like a death without a body.” But in fact there is a body, as Tolstoy knew: it’s a child’s body, and it carries the venom of the courtroom within it for ever, even if it hasn’t been visibly ripped in half. However, it’s precisely because situations of custody are so inherently tragic that we need to do all we can to avoid exacerbating conflict through the court system, splitting parents into traumatised losers and over-empowered winners – and we need to do all we can to give children genuine agency. In my own case, I’ve found that things have improved with each year that we get further away from our time in court. My ex-husband’s tendency to quote the judge’s indictments of my character in any minor altercation between us has gradually diminished, and on the whole we’re able to put the children first in most of our interactions. I’ve learned again to admire this man who may occasionally hate me – and not without reason – but whose love for our children makes him an often impressively collaborative father. “I love you both,” our daughter shouted exuberantly at a handover recently, going from one to the other for hugs. It may be the most important thing a child of divorce can say. This is an adapted extract from Custody: The Secret History of Mothers, by Lara Feigel, published by William Collins on 29 January at £25. To bTo support the Guardian, order your copy at guardianbookshop.com Trish Barry-Relph was approached to comment for this article. She said, “I always act in my professional capacity to assist the court and the children’s welfare is my paramount concern. Every case turns on its own facts. It’s not for an independent social worker to ‘diagnose’ alienation as this is a question of fact for the court.”