Above, Adam Fuss and son Arden before their separation and his arrest in Costa Rica, despite his being cleared of child sex abuse charges and awarded custody in New York. Now he faces a repeat of the ordeal in a foreign land. (Photo: Adam Fuss)
By Richard Bernstein, RealClearInvestigations
July 9, 2020
A few months ago, Adam Fuss, an internationally known fine art photographer, flew from New York to Costa Rica for one of his regular visits with his 7-year-old son, Arden. Arden’s mother had absconded with the boy to Central America during a long-simmering custody dispute in the U.S., and he was living in a foster home run by the country's child protection agency while the local authorities figured out whether to return him to his father or not.
The visit never took place. Instead, Fuss was arrested on charges he’d been cleared of in America: sexual abuse of a minor. Ever since, in what he and his supporters see as a grotesque, Kafkaesque miscarriage of justice, he's been prevented from leaving the country while the district attorney and his defense lawyers prepare for a trial.
I heard about Fuss's situation from a mutual friend, who was certain that the charges were ridiculous. The friend said that for nearly the past five years, Arden's mother, Aleidria Lichau, a former schoolteacher turned environmentalist, has been alleging that Fuss sexually assaulted their child, starting when the boy was just 2. These grave charges were painstakingly investigated by child protection agencies, several recognized experts in child sexual abuse, and the New York Police Department’s Special Victims Unit, all of whom determined that Lichau's accusations were “unsubstantiated” or “unfounded.”
After hearing testimony, a New York Family Court awarded Fuss full custody of Arden, declaring that it was Lichau who had “committed child abuse against the child,” who, the judge said, was “in imminent danger each day that he remains with the mother.”
The basic facts, set forth in court records and expert reports, point to only one interpretation: Fuss's arrest and prosecution in Costa Rica were, in fact, ridiculous. The case seemed an example of the believe-all-women movement gone to excess -- in Costa Rica, not in the United States: A mother deemed to be a psychological danger to her child, indicted in the U.S. for parental kidnapping and passport fraud, was given custody of him, while the father faces a long prison sentence on charges for which no evidence was found by several detailed investigations in the U.S.
“You don't have to believe me,” the British-born Fuss told me when I contacted him via WhatsApp in Costa Rica, referring to the charges that he sexually molested his son. “It would be crazy to believe me. There have been 20 people involved in this case – psychologists, police investigators, judges, and others – and they have unanimously decided in my favor. Believe them. They are professionals with these issues.”
But is it possible that these investigators and the family court judge could have made a terrible mistake? There are people and groups both in the U.S. and, evidently, in Costa Rica, alarmed about the frequency of child sexual abuse, who see Lichau's actions not as a parental kidnapping, but as a morally justified act of rescue of a boy in danger.
In fact, a substantial body of research shows that courts often do make mistakes, sometimes disbelieving mothers' justified accusations of abuse and turning children over to fathers who have abused them. Moreover, some of the testimony in this case, especially statements given by Arden himself against his father, were graphic and troubling, and, if true, would certainly be criminal abuse of a child.
“For the first time, Aleidria and her son will sleep in safety and the same home,” Barry Goldstein, a former lawyer and anti-abuse activist whom Lichau has consulted, wrote in January, celebrating a ruling that month by the Costa Rican Constitutional Court that Lichau could stay with Arden in the country. “Aleidria will not face prosecution and jail for trying to protect her son as long as she stays in safe Costa Rica instead of dangerous United States.” The headline on Goldstein's article was “Costa Rica saves child US gave to sex offender.”
So, which is it? Has Arden been courageously saved by his mother? Or was he coached by his mother to accuse his father of heinous acts? Has Fuss been caught in a feminist trap in a foreign country that unreasonably elected not to recognize the judicial process in the U.S.? Or is he facing justice?
As with other cases of this nature, absolute certainty is elusive to any outsider since only predator and victim could have been present during the alleged abuse. But the sequence of events leading to Lichau's move to Costa Rica, which are described in court documents and by Fuss himself, seems pretty clear.
Fuss was interviewed several times for this article; attempts to contact Lichau in Costa Rica, made through one of her lawyers there and through supporters in the U.S., were unavailing.
Fuss and Lichau, who were never married, split up about a year and a half after Arden was born, Adam living mostly in New York City and Aleidria and Arden in a house rented for them by Fuss in Pine Plains in Upstate N.Y., where Fuss went for frequent visits.
In 2014, a few months after Arden's second birthday, Lichau, having told Fuss that she wanted to end her relationship with him entirely, sought to limit the time that he could spend with the boy. Fuss went to Family Court in Dutchess County, and won overnight visits with Arden. Shortly after that ruling, Lichau made her first allegations of abuse, saying that Arden had described to her sexual acts that, she alleged, Fuss was forcing on his son.
This prompted the first of several rounds of accusations and investigations over the next five years that were marked by graphic descriptions of abuse.
In one instance, a psychologist hired by Lichau, Lucy Barbera—who does what her website calls “creative arts therapy" -- supported Lichau's allegations of abuse. Moreover, all investigators accepted the fact that when Arden was 3 and 4 years old, he acted out in a sexual manner with other children, touching them inappropriately and asking to play what he sometimes called the “penis to penis” game.
Lichau and her supporters alleged that this behavior was a product of the abuse the boy was suffering from his father, but experts testified in court that this troubling behavior could have been due to many other factors, including Lichau's own parenting style, in which few boundaries to behavior were set.
In most of his several meetings with child abuse investigators, Arden said nothing about being touched in a sexual manner by his father, and Fuss's ex-wife and a former baby sitter both said that his relations with Arden were entirely normal and affectionate. But sometimes Arden did describe behaviors that, if they actually occurred, would clearly amount to abuse.
“Arden entered the interview room and spontaneously declared, 'I have to tell you what I have to tell you,'” one child abuse expert, Eileen Treacy, testified in New York Family Court in August 2015. “He went on to say, 'Dad touched my penis. He started it. He made the rule.' It should be noted that Arden was smiling as he made these comments,” Treacy said.
“Arden spontaneously stated, 'Know what? My Dad peed in my mouth,'” Treacy's testimony continued. “‘White milk came out. It was rotten and sour when it went into my mouth.'”
Clearly, what appears to be a description of forced oral sex with a 3-year-old boy is disturbing. But Treacy told the court that she didn't believe Arden's statements to be true. They seemed “scripted” to her, she said, and were likely due to what she called “coaching” by Lichau. Many of Arden's statements were, she said “clearly in the realm of fantasy.” His account of sexual touching by his father, for example, took place inside “a magical movie theater,” he told her.
Moreover, Treacy said, children who have been sexually abused behave in a much more troubled manner than did Arden.
“Most children don't do, 'La la la la la, here I am, Eileen. I was sexually abused,'” she told the court. She emphasized Arden's affect when he told these stories, his smile especially, and said that they sounded “rote and repetitious.”
In later testimony, Treacy said that after one of her sessions with Arden, he ran out of the room to greet his mother and blurted out to her, “I told them what you wanted me to say.”
“I think it was pretty clear coaching going on there,” Treacy told the court. “You very rarely get something this clear.”
Investigators who interviewed Lichau generally described her as a well-educated, articulate woman, now 42 years old (Fuss is 59), whose way of speaking could be very persuasive, and who was successful in enlisting the support of relatives and friends, several of whom said Arden had recounted to them the same graphic details he told investigators. During one short stretch of time, Arden made phone calls to Lichau's mother, her boyfriend, and a child protective services case worker, telling them about his sexual contact with his father, calls the investigators suspected he'd done at his mother's behest.
“I was concerned that he was being led into that activity,” Treacy said.
According to a police report, the caseworker whom Arden phoned, Allison Sterling, told a colleague that “the mother is orchestrating things again in order to block Dad's custody.”
A third expert who interviewed Arden, Paul Hymowitz, testifying in the custody case, said Arden was “quite fantasy-laden with some difficulty distinguishing fact from fantasy.” He described Lichau as “seemingly very sincere” and “able to rally a large ... coterie of friends, family, and professionals, sophisticated professionals, to her cause.”
But Hymowitz continued that she “shows a disturbing inclination to project her own preoccupations onto her son.” Lichau and her boyfriend, Hymowitz said, “would spend hours, you know, interrogating this child, talking to him late into the night, you know, until 2 a.m.”
Much of this testimony was given during the custody trial before New York Family Court Judge Adam Silvera. But even before the court announced its ruling, Lichau took matters into her own hands.
In May that year, 2018, she attended the Battered Mothers Custody Conference, an annual event in Albany, N.Y., held, in the words of the group's website, “to educate professionals and the general public about the serious legal and psychological challenges faced by battered women who seek protection for themselves and their children from the family/divorce court system.”
There are many such women, and there is a substantial body of research showing that family courts do make tragically wrong decisions in custody battles or are unable to act to protect endangered children. A four-part investigation published earlier this year by the Albany Times Union – linked on the BMCC website – told several stories of children in New York who died at the hands of abusive fathers, or, sometimes, the boyfriends of divorced mothers, despite efforts by friends or relatives of the children to alert family courts to the danger.
“An analysis of over 2,000 civil opinions confirms that courts are skeptical of mothers' claims of abuse by fathers,” concluded one academic paper principally authored by Joan S. Meier, a professor of law at George Washington University. “This skepticism is greatest when mothers claim sexual abuse.” The paper goes on to say that something over 25% of the time, courts award custody to fathers even when the mothers claim that the father has abused the child.
Meier's paper made no claim regarding whether the accusations of abuse in these cases were true or not, and, in any case, the immense time and resources devoted to investigating Lichau's accusations make it hard to dismiss the conclusions in this case as rushed or careless.
Some critics of the system, including Goldstein, contend that the courts and experts frequently make tragic mistakes because many of the supposed experts in the field are ignorant of the relevant research, like Meier's. But Treacy, who interviewed Arden twice, as well as each of the parents, said she's interviewed more than 2,000 children in sex abuse cases over the past 30 years and worked at the Fordham University School of Social Work training sex abuse case workers. Others involved in the case have also had long experience with child sex abuse.
How did Lichau find her way to Costa Rica? Did somebody, perhaps at the Battered Mothers Custody Conference, advise her on how to flee the U.S. and where she might get a favorable reception? Goldstein told me in an email that he met briefly with Lichau at the conference, adding that “although I don't know everybody who attended, I have not heard anything about how to run away or about Costa Rica.” Lawyers in Costa Rica told me that they have heard of a few cases like Lichau's, but that the country is not a refuge for desperate mothers.
Nevertheless, a few weeks after attending the BMCC, Lichau did leave with Arden for Costa Rica, telling her mother in a letter she left behind, later turned over to the police: “I have come up with a solution only through the help of some people I don't know and others I knew so long ago. I believe this is what is best for now.” After the mother allegedly forged Fuss's signature on a new passport application for Arden, they arrived in Costa Rica on July 4, 2018. It took Fuss nine months, with the help of various American and Costa Rican law enforcement agencies, to locate them. In the meantime, the New York Family Court awarded custody of Arden to Fuss, and declared Lichau an “imminent danger” to the boy.
For their first few months in Costa Rica, from July 2018 to March of last year, Lichau appears to have had uninterrupted custody of Arden, but once Fuss arrived around March last year and went to court to have Arden returned to him, things went badly for Lichau – at first. She was supported in Costa Rica by an influential women's rights group, the National Institute for Women, known by the Spanish acronym INAMU, one of whose lawyers was present at Lichau's various hearings. Still, a family court in Costa Rica ruled that Arden be “restituted” to Fuss, a decision that was confirmed on appeal. For a few months, Arden was put into the custody of Costa Rica's child welfare agency, known by the acronym PANI. Lichau was officially not allowed to see him, though Fuss was able to, and he began his regular visits to Costa Rica.
But things turned around for Lichau when she applied for political asylum, citing her fear that if she and Arden were forced to return to the U.S., Arden would be in danger of abuse from his father. A three-member board granted Lichau's request, a highly unusual gesture given that the Fuss/Lichau custody dispute was resolved by an independent judiciary in a democratic country, the United States, where she was wanted for two federal crimes. After that, the Constitutional Court, Costa Rica's highest, ruled that Lichau's asylum status took precedence over the Family Court ruling that Fuss and Arden should be reunited and returned to the U.S.
Along with her asylum application, Lichau brought the same charges of child sexual abuse against Fuss that had been found unsubstantiated in the U.S. This prompted an official investigation in Costa Rica, during which Arden told police and psychologists some of the same stories of sexual contacts with his father that he had told to investigators in New York.
Eileen Treacy, who watched a video of Arden's interrogation in Costa Rica, said in an affadavit that it was marred by what she called “suggestive, leading, and improper” techniques. She cited, for example, this question: “We got the news in this little sheet that something happened to you that you don't like. They say it was related to Papa Adam, right?”
Still, the district attorney in San José chose to bring charges against Fuss, who was arrested last September; since then he been allowed to live freely in Costa Rica but not leave the country or see his son, even as, he told me, his legal bills have depleted his resources. Why the Costa Rican prosecutors decided to ignore the investigations of identical charges against Fuss that were dismissed in the U.S. is not clear. Emails I sent to the DA's press office asking that question have been acknowledged, but no reply has been given.
Some people in Costa Rica cite a tendency in the country to give the benefit of the doubt to women in disputed cases, especially when supported by an influential organization like INAMU. In any case, as some observers of the situation there pointed out, it perhaps shouldn't be surprising that the authorities in Costa Rica would take Lichau's charges seriously. Fuss readily acknowledged to me that Lichau gives every appearance of being a loving, protective mother, and her very flight to Costa Rica seems in its way testimony to a deeply felt need to save her son.
But are her accusations true? That is the question, already adjudicated in the U.S., that will now be decided in a Costa Rican courtroom.