A Pennsylvania Senate committee has approved for a second time a bill that puts the health, welfare and safety of a child above other factors in parental custody matters.
Senate Bill 78 — better known as Kayden's Law — was reintroduced and unanimously voted out of the Senate Judiciary Committee on Monday.
The committee unanimously approved the custody reform bill in September, but it had to be reintroduced because the previous legislative session expired before the bill could be brought to the Senate floor for a vote.
The legislation is named after Kayden Mancuso, 7-year-old Lower Makefield girl who was murdered by her biological father during an unsupervised court-ordered overnight visit in August 2018. The father then committed suicide.
"How many people did I have to beg for help?" Sherlock asked. "How many people did it take? And it didn't work.”
May 13, 2021, 4:00 PM EDT
By Adiel Kaplan, Kate Snow and Eric Salzman
Keith Negley for NBC News
Jacqueline Franchetti's 2-year-old daughter Kyra loved Mickey Mouse, blowing bubbles and going fast on the slide at the park. She had just learned to roll down the hill in the backyard the day before her father, Franchetti's ex-boyfriend, Roy Rumsey, picked her up for a weeklong visit, Franchetti said. It was a court-mandated, unsupervised visit in July 2016, a few months before the trial to decide the former couple's custody case.
But the case would never go to trial and Franchetti would not see her daughter again. That week, Rumsey shot the girl, set his house on fire, then took his own life, according to police.
For a year and a half, Franchetti had been trying to warn a Long Island court that Rumsey was unstable and violent and should not be allowed unsupervised time with their daughter. But the judge granted him time alone with Kyra while they awaited the custody trial. Had her concerns been taken more seriously, Franchetti believes her daughter would be alive today.
"I did everything I was supposed to do. I left the abusive relationship. I came forward with as much as I possibly could," she said. "Kyra's murder was 100 percent preventable."
In the past five years, at least two dozen similar cases — in which a parent killed a child after the other parent raised concerns about abuse during a custody dispute — have made headlines across the country. There's no official tally of these deaths and no national data on how courts handle custody cases with abuse allegations. But experts say in every state, judges have significant power in custody cases and their decisions are rarely overturned. The judges overseeing these cases, however, are often untrained in the dynamics of abuse and trauma or how to evaluate whether a child could be in danger.
"Family court isn't what you'd consider the favorite court. Lots of brand new judges wind up sitting in family courts across the country," said Judge Ramona Gonzalez, a circuit court judge in La Crosse, Wisc., and board member and former president of the National Council of Juvenile and Family Court Judges (NCJFCJ). "If you have untrained judges that don't understand the dynamics of trauma ... they will make assumptions and those assumptions will lead to decisions based on error."
Gonzalez's organization is the leading nonprofit that trains judges about domestic violence, child abuse and trauma. It has trained more than 10,000 judges since it began doing so in 1990, but estimates it reaches a tiny fraction of the judges that should receive training every year. Other nonprofits and some court systems also run trainings on these topics for court and legal professionals, but roughly 30,000 people work in family courts and funding for training is limited.
Around the country, family courts handle hundreds of thousands of custody cases every year. The vast majority of custody decisions are resolved between the parents without the need of court intervention. But, studies have shown those that are not can be among the most complicated and resource-intensive that courts handle, and often involve allegations of abuse. At stake is not just the rights of the parents, but potentially the life of the child.
Sometimes judges make bad calls and award custody to abusers. A 2019 study funded by the Department of Justice examined trends in 27 custody cases where an abuser was awarded unsupervised visits, joint or full custody of a child, despite allegations of child abuse. The decisions were all overturned when the allegations were later found to be valid, often after several years. In 78 percent of the cases, a primary reason for the judge's initial decision was the judge's belief that the parent who alleged abuse lacked credibility.
"When a judge makes that kind of mistake, it's not one that can be easily fixed," said Gonzalez. "For every catastrophic case that makes the paper, there are a thousand that have been just as catastrophic that haven't."
Custody disputes occupy a unique corner of the legal system. A single judge — often facing conflicting accounts, charged emotions and scant evidence — decides who a child will spend their time with and how. Most parents represent themselves, as there's no provision for a court-appointed lawyer in the vast majority of these cases and hiring one can be prohibitively expensive. The judge's decision may be aided by a custody evaluator or legal representative for the child, but many courts don't guarantee those and require parents to foot the bill for their services, which can cost thousands of dollars.
"The presumption in family court is that children need an ongoing relationship with both parents," said Peter Jaffe, academic director of the Center for Research and Education on Violence Against Women and Children at Western University in Ontario. But that doesn't work for the estimated 20 percent of separating couples with a history of domestic violence, he said.
"Unfortunately, in many of the cases that go to court, one or both of those parents may be toxic or dangerous to the children," said Jaffe, a clinical psychologist who has worked with criminal and family courts in the U.S. and Canada for five decades. "In domestic violence cases, there may need to be a whole different strategy or approach.”
While domestic violence happens in all types of relationships, the most dangerous cases — those with a high potential for homicide — are relationships with male abusers and female victims. The presence of domestic violence in a custody case may mean a victim is unwilling to let their abuser spend time alone with their child. But in many family courts, parents who refuse to cooperate by sharing custody can be penalized and receive less access to their children.
Bringing up domestic violence in family court, especially if there’s no record of it, can backfire to the point that women are often told not to mention abuse allegations, said Gonzalez.
“There are lawyers who will say, ‘We’re not going to mention the abuse because you can’t corroborate it and it will impact the judge’s view of your credibility on other issues,’” she said.
Often, when a parent raises concerns about domestic violence or child abuse, the other parent will counter by saying the allegation is an attempt to "alienate" the child. At that point, Gonzalez said, the focus of the case stops being on the abuse and shifts to what kind of parent the person alleging abuse is and whether they are credible.
The concept of "parental alienation" describes actions by one parent to damage the relationship a child has with the other parent. It has not gained enough scientific credibility to be recognized as an official psychological syndrome, but the phrase comes up frequently in contested custody cases. Groups like the National Parents Organization, which advocates for equal parenting as the default in custody cases, say that despite scientific questions, no one who works on divorce and separation cases is unfamiliar with alienating behavior.
"Certainly people use allegations of parental alienation strategically and falsely, but people also use allegations of abuse strategically and falsely,"said Don Hubin, board chair of NPO. Hubin said his group pushes for state legislation to prioritize equal parenting in custody cases, but with exceptions if the court finds there is abuse.
Franchetti said her lawyer initially cautioned her that raising concerns over her ex's abusive behavior might damage her credibility with the court. But she took the risk, sharing the concerns in the petition for custody she and her lawyer filed and in interviews with Child Protective Services and a forensic evaluator. She said she was repeatedly told she could bring her detailed concerns about abuse up at the custody trial. Her daughter was killed three months before the trial date.
After Kyra's death, Franchetti became an activist, learning everything she could about the New York state family court system, then getting the ear of several state legislators and helping them craft bills to reform it. Her goals include mandating extensive training on domestic violence, child abuse and trauma for family court workers and increasing the qualifications for forensic evaluators in custody cases. Currently, the state has few limits on who may act as a forensic evaluator or how evaluations should be done.
"These officials are making life or death decisions every day," Franchetti said. "And without the proper skills, training and knowledge, they're going to get it wrong."
This year, three bills for sweeping reforms of New York's family court system are moving through the legislature, including one that would require forensic evaluators to be licensed psychologists, social workers or psychiatrists. Another, named for Franchetti's daughter, would create requirements for how many hours of training judges must attend before handling custody cases with abuse allegations, how organizations are approved to provide training and eight key topics for training to cover.
The New York Office of Court Administration declined to comment on the proposed legislation or Franchetti's case, as family court cases are private in New York. The office noted that the state courts run many training sessions on domestic violence and child abuse every year, and that since 2001, judges have been required to receive domestic violence training every two years.
When the movement to end domestic violence began to grow in the U.S. in the 1970s, advocates focused much of their efforts on improving how criminal courts handle family violence. It was only in more recent decades that the push expanded to bringing education on domestic violence to family courts.
"A whole system has developed around this issue as a problem in criminal court," said Jaffe. "The same system has not developed within the family court. In family court, for the most part, it's every man or woman for themselves."
In urban areas, there may be more services available for parents navigating family court, and better informed judges and custody evaluators, experts said. But it can also be luck of the draw.
Custody cases are handled differently state to state, even county to county. Court rules and judge duties vary — in large court systems, judges may serve for years in dedicated family courts, while small systems may only have a few judges seeing all civil cases, from custody disputes to traffic tickets and multi-million dollar injury claims. The differences make it difficult to track family court trends, but the same issues come up everywhere, experts said, because few places require extensive training on the dynamics of family violence for judges and court employees.
But courts should require it, said Gonzalez. Victims may be reluctant to come forward, she said, and when they do, they may have delayed months or years. They may have little to no money because they were financially controlled by their abuser. Often they are experiencing trauma, and may be depressed, anxious, overwhelmed and unsure of who to trust, which can affect how they appear in court.
Comprehensive domestic violence training covers those dynamics and more, including how domestic violence impacts children who witness it. During and immediately after a separation is the most dangerous time for victims, and if abusive behavior escalates, that can also put children at risk.
The Department of Justice puts several million dollars toward domestic violence training programs for judicial and legal professionals annually, including those run by NCJFCJ. But for every family court system to make training mandatory, NCJFCJ estimates training programs would need to get a major funding increase from federal and state governments.
Two years after Franchetti lost her daughter, Kathy Sherlock's daughter Kayden was killed by her father, Jeffrey Mancuso, following a custody dispute. Sherlock had left Mancuso when Kayden was around one year old, but years later found herself in court after he filed for equal custody.
Sherlock, who lives outside Philadelphia, said she told everyone she could in the court system that she was worried for Kayden's safety if left alone with him, even showing the court a restraining order she filed to protect herself from Mancuso. During their relationship, he had been violent toward Sherlock repeatedly, she said, though out of fear, she had never filed a police report.
In a 2018 custody order, the judge acknowledged Mancuso's history of violence, saying that when questioned about it, "[the] father did not express any remorse or regret nor did he accept responsibility for his conduct." However, the order allowed him unsupervised custody of Kayden every other weekend. Less than three months later, he beat the 7-year-old to death, then took his own life.
"How many people did I have to beg for help?" Sherlock asked. "How many people did it take? And it didn't work.”
A friend filed a judicial misconduct complaint about the judge after Kayden's death, which was later dismissed by a state panel. The court's decision was, "made in compliance with Pennsylvania law and based on the facts of the case and was not appealed by either party," the Bucks County Court of Common Pleas said in a statement to NBC News on behalf of the court and judge.
Like Franchetti, Sherlock threw herself into activism after her daughter's death. The Pennsylvania legislature is now considering a bill named for Kayden, aiming to protect children from unsupervised visits with abusers and to expand judicial training.
The momentum from these tragedies has been building. Three years ago, the stories of Franchetti and other parents led the House of Representatives to pass a resolution that child safety should be the first priority of family courts and that it would schedule hearings on family court practices (which have not yet happened).
This year, Sherlock's congressman, Rep. Brian Fitzpatrick, R-Penn., added a federal version of Kayden's law — which would increase grant funding to states that commit to prioritizing child safety in family courts and to training judges on child abuse and domestic violence — to the Violence Against Women's Act reauthorization that passed the House in March. It's unclear if the Senate version of the bill will include Kayden's law, though Sherlock and the National Family Violence Law Center are lobbying for it.
Other states have also begun to tackle how they handle these cases. Last year, California passed a law allowing descriptions of psychologically damaging and abusive behavior, known as coercive control, as supporting evidence in family court hearings. Colorado and Maryland are currently considering bills that would make training in domestic violence mandatory for judges and other family court personnel, and the Hawaii legislature is considering several family court reform bills.
While they advocate separately, Sherlock and Franchetti are united in their belief that more action is needed to ensure family courts around the country prioritize child safety and recognize credible claims of abuse. Both have set up organizations in their daughters' names to fund advocacy and training, and hear daily from scared parents across the country going through custody litigation.
"I have hope that things will change," said Sherlock. "I think that's the only thing that really keeps me going.”