"At that level, you don't have to meet the highest burden to get a case moved on," Flynn says. "But the allegations by two of the [children] were tossed out. So what does that tell you?"
Charges involving two alleged assaults on Michael Clark were allowed to proceed. But Mulligan never rescinded her order allowing Kevin Clark unsupervised visitation. And one of the younger children whose charges were dismissed now says that during the preliminary hearing, "I was scared of testifying against him because I knew I had to see him again."
Some child advocates question Mulligan's decision to leave unsupervised visits intact.
"The arrest suggests that there is substantial evidence that this crime occurred. ... How could we possibly allow this possible perpetrator to have contact with the child?" wonders Frank Cervone, the executive director of Philadelphia's Support Center for Child Advocates, which represents children in court proceedings. "There is already so much pressure on a child in these situations," he adds. "Why jack that pressure up by forcing interaction with the guy who's been arrested?
"Maybe the kid testified the way he did because [the allegation] was made up," says Cervone. Then again, he says, the child might also have felt threatened. "Because there was no stay-away order from the judge, we'll never know for sure."
"You have charges filed by law enforcement, and the judge decides to overrule that," says Lundy Bancroft, a widely published author and domestic-abuse expert who spent 15 years counseling male abusers. "That's direct interference with the prosecution if the victim is forced into having tons of unsupervised visits with the accused."
When contacted, Mulligan said she was unable to comment on the case. But in a later written opinion, she noted that while "there is no doubt that father was abusive during the marriage," prior to 2004, "despite numerous opportunities, mother never before presented ... evidence of sexual abuse in court." And in a hearing in her own court, she wrote, "testimony of the children ... was vague and inconsistent"
In 2005, Mulligan had also ordered Mark King to re-evaluate Kevin Clark — and to assess Val Clark as well. This time, though, King had seen "a positive change" in the father, who "now admitted that he did some ‘really bad things,'" Mulligan's opinion says. "[F]ather strongly denied the sexual abuse but admitted almost everything else." What's more, King told her that the younger children's interaction with their father was "very positive" and they "were not in any way afraid" of him.
By contrast, Mulligan wrote, King found Val Clark to be depressed and anxious, as well as "suspicious and obsessive" — and opined that her anger "was hurting any chance for father and the two younger children to have a relationship."
Val Clark rejects that account. She filed a complaint — later closed for insufficient evidence of a violation— against King with the state, alleging that he should have reported the abuse allegation to authorities in 2002. "I believe Dr. King's negative assessment of me was an attempt to cover his tracks for not reporting the abuse," Val Clark says.
But in the end, Mulligan concluded that "Either the children have convinced themselves that the incidents took place, or they are saying that these incidents took place in order to prevent unsupervised contact with father or to endear themselves to their mother or their siblings." At Kevin Clark's request, she had already imposed a gag order and sealed the family-court case. In an October 2004 order, Mulligan sealed the court record, barred the public from courtroom proceedings, and prohibited Val Clark from "discussing with the media or any third party, any allegation of sexual abuse of the children." (The criminal case remained open.)
Val Clark, whom Mulligan has found in contempt for not doing more to encourage the children to visit with their father, has posted court documents online. She also began speaking to City Paper before the gag order was lifted this summer.
"What was happening to my children wasn't fair," she says. "And if it was happening to me, maybe it was happening to other people. I didn't feel like I could stay quiet any longer."
Deciding what's in a child's best interest, especially in families with troubled histories, is rarely easy, experts say.
Engle, the Penn State professor, says judges have "a ton of discretion" in family disputes. "The best interest of the child" is a broad standard, she says — one that "leaves a judge sometimes to struggle with making value judgments."
Mulligan's decision to maintain unsupervised visitation, Bancroft says, is "not an unusual thing to happen." In general, he says, judges put too much emphasis on "trying to maintain two-parent households even when ... one of the parents is abusive."
"Keeping both parents involved in a child's life isn't always the best thing," he adds. "But we see judges trying to force it every day."
Sal Frasca, executive director of the Children's Rights Council — a Washington D.C.-based nonprofit that seeks to maintain "meaningful contact" with both parents — disagrees. Even where there are allegations of abuse or dysfunction, he says, "The best parent for a child is both parents," Frasca says. "Both parents contribute particular things to a child's growth, so the child should have the opportunity to be exposed to that."