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Quincy District Attorney Bill Delahunt noticed that virtually every inmate at a nearby high security prison had a childhood history that included domestic violence and often sexual abuse.  He believed that if he could prevent domestic violence all crime would be reduced and this is exactly what happened.  A county that had averaged 5 to 6 DV homicides enjoyed several years with no murders.  Detective Mark Wynn in Nashville and City Attorney Casey Gwinn in San Diego developed similar practices that also resulted in a dramatic reduction in DV crimes.
 
Dr. Vincent Felitti led the first ACE (Adverse Childhood Experiences) Study for the CDC.  He found that children exposed to DV, child abuse and other traumas suffer more illnesses and injuries throughout their lives and their life expectancy is reduce.  While this news could be depressing, it also provides an opportunity to improve lives and dramatically reduce common scourges of society like cancer, heart disease, stroke, diabetes, asthma, auto-immune diseases, eating and sleeping disorders, AIDS, mental illness, substance abuse, suicide, sexual assault, school drop-out, teen pregnancy and auto accidents.  Our national life expectancy would increase substantially when we use effective practices to prevent DV and child abuse.
 
Those of us who have dealt with so many tragedies because of our tolerance for DV and child abuse would happily spend significant resources to end this abuse, but most public officials have a different priority.  Based on the ACE Study, however we now understand that the United States spends $750 billion every year on health costs related to DV.  When we add the cost of crime and victims and children who cannot reach their economic potential the annual cost is over one trillion dollars. We can quickly save $500 billion with the proven practices in the Quincy Solution and this will provide an enormous incentive to public officials to support the Quincy Solution.  The financial considerations should also help expand our coalition as businesses, charities fighting diseases, labor unions and many others will have strong incentives to join the campaign to prevent DV and child abuse.
 
Bill Delahunt noticed that victims stopped cooperating when their abusers sought custody.  This did not prevent Quincy from reducing crime because at the time it was a rare tactic.  Today abusive fathers routinely use the custody tactic to regain control over victims trying to leave them.  The custody courts are so anxious to include fathers in children's lives and have developed outdated and discredited practices so that abusers are able to successfully manipulate the courts and gain custody.  Accordingly the Quincy Solution must include the custody courts.  We do this with the Safe Child Act which says the courts must make the health and safety of children the first priority in all custody and visitation decisions. 
 
We have never known a society where women and children are safe in their homes.  This will unlock the potential of these women and children and create a far healthier, happier and wealthier society.  DV is not inevitable, but neither is the Quincy Solution.  These life-changing benefits are only possible if enough good people join the campaign for the Quincy Solution and take control back from the abusers.

The Broken Custody Court System: Is there Reason for Hope?

by Barry Goldstein

 

Every day I hear horrific stories of courts using deeply flawed and outdated practices that ruin the lives of protective mothers and their children. I learn about the unspeakable pain and anguish caused by the bias and unwillingness to consider new research that demonstrates the standard practices are hurting children. I hate these stories with a passion while feeling deeply honored that protective mothers trust me enough to share them with me. Surprisingly, I am going to provide information that suggests that there is hope. I think this is important psychologically because we are all inevitably worn down by the catastrophic stories we experience so we need reason to hope. It also may be that in projecting a sense of confidence it will encourage better results and coverage. In fact, in recent months I have started to see signs that maybe something good is happening and this long national nightmare might eventually end.

 When we are in the middle of what Dr. Daniel Saunders referred to as “harmful outcome” cases it is hard to consider the context. But ten years ago when Mo Therese Hannah and Liliane Heller Miller started the Battered Mothers Custody Conference, so many of the encouraging events I will discuss in this article could not have been imagined. At that time we had a small group of protective moms delighted to find each other and an even smaller group of professionals wanting to help them. Although the bad outcomes have continued unabated, many encouraging developments should give us some reason to hope.

Coverage in the Media

 Garland Waller wrote an important chapter in Domestic Violence, Abuse and Child Custody about the failure of the media to expose the child custody scandal. She explained some of the reasons the media was reluctant to cover these cases, but also said that at some point there would be sufficient awareness of the courts’ failure to protect children that we would reach the “tipping point” and the public would no longer tolerate the mistreatment of battered mothers and their children. Since the publication of the book, we have started to see some important media coverage that is moving us towards the “tipping point.”

The best coverage has been on the Fox station in Los Angeles. They have done a series of stories about the failures of the court system and child protective agency to protect children. I want to specifically mention the work of Kathleen Russell, Tammi Stefano and Connie Valentine in helping to encourage and promote these stories, but I am sure there are others I am missing.

 One of the most compelling stories involves a young man named Damon. He revealed his father’s sexual abuse, but as happens all too often in the broken system the courts refused to listen and gave custody to the abuser. His mother, Cindy Dumas has fought hard to protect Damon, but the court disbelieved her and retaliated against her. The Fox station included several news segments about Damon including an interview that was taped at a secret location after he ran away from his father and remained in hiding for over a year. The station also interviewed the father who denied his abuse and could not explain why he would force the teen to stay on the run rather than agree for him to live with his mother. The court refused to respond to why they continued to keep Damon at risk. This story had a relatively happy ending in that Damon learned that if he married, the law would make him emancipated so that the custody order would no longer be valid. At sixteen he was allowed to marry in Nevada and thus earn his freedom from his abusive father.

 The series of reports also followed demonstrations at the courthouse by protective mothers who complained they were mistreated and the courts failed to protect their children. Several of the moms were interviewed for the news reports. Significantly, looking at many different cases helped to demonstrate that this is a widespread problem and not based on an unusual mistake.

 One of the most revealing pieces involved an interview with former Judge DeAnn Salcido. She explained that as part of their judicial trainings, a senior judge told them to be skeptical of mother’s abuse allegations. This helps to explain why so many true allegations of domestic violence and child abuse made by mothers are disbelieved. Significantly, many of the gender bias committees appointed by courts around the country have found that men are given more credibility than women and this kind of misinformation certainly contributes to this bias and to court errors. The Saunders’ study found that court professionals without adequate training in domestic violence tended to believe the myth that mothers frequently make deliberately false allegations of abuse. It is truly outrageous that court sponsored trainings would include statements by judges encouraging other judges to use biased beliefs that put children in danger.

 This series of stories is ongoing and has created a powerful response. I think the station has found that as they investigated mothers’ complaints, the complaints are reliable and the courts are routinely placing children at risk. This can only encourage more stories on Fox and other media outlets. FoxLA is to be commended for helping to expose a scandal that has destroyed so many children’s lives and undermined the work to prevent domestic violence.

 The Dr. Phil program provided two programs that helped expose the crisis in the custody court system to a national audience. Dr. Phil promised to follow-up to help create the needed changes but thus far this has not happened. The show featured several victims of the court system including Katie Tagle who had pleaded with the judge to protect her nine-month old baby, Wyatt. As would be suggested by following the judicial training in California to disbelieve mothers, the judge repeatedly said he thought Ms. Tagle was lying when she said the father threatened to kill their baby. The father used the access provided by the court to murder Wyatt and himself. Kathleen Russell was instrumental in creating these shows and appeared on the first one.

 Two heartbreaking tragedies in the Washington, D.C. area and effective advocacy work by Eileen King led to some really valuable coverage in the Washington Post. In one case, Dr. Amy Castillo sought to protect her three children from their abusive father. Right before appearing in court on her application for a protective order she had marital relations with her husband. The judge learned of this and assumed this meant the father could not be too dangerous. This was a good illustration of the problem of relying on court professionals who do not understand domestic violence dynamics and so never considered it might not have been safe for the mother to refuse the father’s sexual demands. The father used the access provided by the court to murder the children.

 Joaquin Rams had a long history of dangerous criminal activity and was suspected in at least two other murders. As a result he was initially limited to supervised visitation. We have seen repeatedly that courts create an urgency to restore normal visitation to fathers even in the face of serious safety risks. The judge had little experience in domestic relations cases and openly stated that he did not like responding to these cases. He decided to give the father unsupervised visits over the objections of the mother. This decision led to the death of Prince McLeod Rams before he could reach his second birthday. The father is in jail awaiting trial for murder.

 The disparity in how supervised visitation is handled between mothers and fathers is illustrated by the case of Natalie Khawam. This was a case that was in the news after her twin sister, Jill Kelly filed a complaint against the woman who had an affair with General Petraeus. General Allen and General Petraeus sent letters to the judge accurately describing what a good mother Ms. Khawam is. The mother always took good care of the child and is the primary attachment figure. This means that continuing supervised visits increases the child’s risk for depression, low self-esteem and suicide when older. She was limited to supervised visits based on the court’s failure to provide a hearing for the evidence of domestic violence, evaluation by a notorious psychologist who is part of the cottage industry supporting abusive fathers and claims of alienation. In other words there were no issues related to the safety of the child. Nevertheless the courts that couldn’t wait to resume visitation with a dangerous father are willing to delay years before resuming normal visitation with a safe mother.

 These and other cases created an interest by the Washington Post about the custody court system. Eileen King cultivated a relationship with an editor on the editorial board and provided research and other information. This led to a meeting between the Washington Post Editorial Board and a small group of domestic violence experts. We provided information about the Rams case and the context of the problem. On the Saturday of the Battered Mothers Custody Conference we were excited to see a Washington Post editorial supporting the conference.

 One of the highlights of the Battered Mothers’ Custody Conference was the presentation of awards to Els Lucas, the attorney who so ably represented Holly Collins and helped her win asylum. The Kingdom of the Netherlands also received an award and the Dutch Embassy put out a press release about the awards ceremony that drew more attention to the court system’s failure to protect children. Quenby Wilcox also attended the conference and received plenty of material for her newsletter that responds to the custody issue as an international problem. Claire O’Toole was also at the conference and has been writing for the Washington Times.com including a three part article about Damon.

 Cara Tabachnick wrote an important article for The Crime Report that discussed the problem of abusive fathers in contested custody cases killing their children. A shorter version of the article appeared in the Daily Beast. She followed up with a report about the judge in the Katie Tagle case who lost re-election because of his failure to protect Baby Wyatt.

 Garland Waller produced a brilliant documentary film about the Holly Collins story entitled No Way Out But One. The film has won numerous awards, played at several conferences and film festivals and on television. It is available on DVD and can be used to help the public become more aware of the child custody scandal. Indeed it is a dramatic way to discuss these issues.

 There have been other stories, particularly about individual cases and tragedies. I am aware of a few other potential stories and investigations that I cannot discuss at this time but have the potential to make a big difference. Each story has the potential of getting us closer to the tipping point and forcing court administrators to do out of embarrassment what they should be doing out of concern for the safety of children.

Compelling Scientific Research

 One of the many causes for the widespread tragedy in the courts’ response to domestic violence custody cases was that there was no research available when domestic violence first became a public issue and the courts had to create a process for responding. This led to the use of popular assumptions that domestic violence was caused by mental illness, substance abuse and the actions of the victim. Courts turned to mental health professionals for advice. They are experts in mental illness and psychology, but not domestic violence. When scientific research became available which demonstrated the original assumptions were wrong, the courts never modified their approach or required experts to reference valid research to support their beliefs. This has led to evaluations that are completely subjective and tell us more about the beliefs and biases of the evaluator than the circumstances in the family. Many protective mothers have been pathologized because the evaluators did not know how to recognize or investigate domestic violence allegations. These mistakes have been compounded by the development of a cottage industry of lawyers and psychologists who learned they could make a large income by supporting approaches that favor abusive fathers. This is because most contested custody involves domestic violence and the abusers usually control the family finances as part of their controlling tactics. The courts have treated these unqualified and biased professionals as if they were neutral and treat their misinformation as if it were accurate thus poisoning still other cases.

 In April of 2012, the U. S. Department of Justice released a groundbreaking study by Dr. Daniel Saunders. Since then, and even before, I have been repeatedly referencing this study for two important reasons. The findings by Dr. Saunders are incompatible with assumptions that the court system’s response to domestic violence is working for children. The fact that it comes from the U.S. Justice Department means that it has the authority and neutrality that makes it hard for judges to dismiss this research as they have sometimes sought to do with other studies.

 Saunders found that the standard and required training received by judges, lawyers and evaluators does not qualify these professionals to handle domestic violence cases. These professionals need specific training in topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Those professionals without this training tend to believe the myth that mothers frequently make false allegations, support unscientific alienation theories and believe mothers’ attempts to protect their children are actually harmful to the children. These findings are incredibly valuable because most of the bad outcomes we see are created by professionals who focus on exactly this misinformation. Saunders found that these wrong beliefs lead to outcomes that are harmful to children. This is an incredibly powerful argument that is now available for mothers.

 The heart of the custody courts’ failure are the extreme cases in which the outcome is that the alleged abuser receives custody and safe, protective mothers who are the primary attachment figures for their children are limited to supervised or no visitation. Saunders found that these, what he calls “harmful outcomes” are always wrong because the harm of separating children from their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was providing. In most of these cases the extreme outcome demonstrates that very flawed practices were used and in many if not most of these cases the opposite outcome would have worked better for children.

 The Saunders’ study also found that courts are not imposing supervised visitation on alleged abusers frequently enough. It found that shared parenting is being used much too often and that abusers use the exchanges to harass and abuse their ex-partners and the control provided in decision making to prevent decisions that would benefit the children. The study also supported mothers’ concerns about the harm caused by professionals who are part of the cottage industry that has a financial incentive to support abusive fathers. Significantly Saunders also found that domestic violence advocates have better training and expertise than any of the court professionals on the specific topics most needed in order to understand domestic violence cases.

 My book that I co-edited with Dr. Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY did not contain much new research. What it did was put together all the important research related to domestic violence custody cases together in one place so that it would be convenient for protective mothers and court professionals. The book provided recommendation from the leading experts in the field and encouraged the use of a multi-disciplinary approach with a focus on current scientific research. The fact that the Saunders’ study cited our book repeatedly should make it difficult for courts to challenge the authority of the information in the book. The book is particularly helpful in challenging evaluations and the use of psychological tests that were not created for the populations seen in family courts. Dan Saunders cited several of the chapters in our book which confirms it is authoritative and neutral.

 FROM MADNESS TO MUTINY, a book about sexual abuse custody cases by Dr. Amy Neustein and Michael Lesher was based on a review of over 1000 child sex abuse cases. It establishes the frequency that child protective agencies and courts fail to protect children and routinely use flawed and biased practices. The authors found that in 85% of custody cases with allegations of child sexual abuse the alleged abuser was given custody. This means the faulty practices in custody courts are responsible for sending many children to live with their rapists.

 In 2012, a new edition of THE BATTERER AS PARENT by Lundy Bancroft, Dr. Jay Silverman and Daniel Ritchie was published. Their findings and recommendations include that all batterers engage in harmful parenting practices, evaluators who do not work for a domestic violence agency should consult with someone who does and the abuser should pay for all costs related to his abuse including legal fees. Most significantly they recommend that in domestic violence cases the arrangement that works best for children is custody for the safe or safer parent and initially supervised visitation for the abuser. Significantly the Saunders’ study found courts are not limiting alleged abusers to supervised visitation as often as they should. Saunders also cited the original Batterer as Parent repeatedly.

 My new book, co-written by Elizabeth Liu, REPRESENTING THE DOMESTIC VIOLENCE SURVIVOR puts this research together and encourages lawyers to use current research and a multi-disciplinary approach to present the strongest possible cases. The research discussed in this article is discussed extensively. Attorneys are advised to inform judges that there is now a substantial body of research that demonstrates many of the standard practices used by courts in domestic violence cases are working poorly for children. They should then ask the court to be open to hearing evidence about this research. We are hopeful that as more lawyers read the book and start presenting the right information to the courts that it will gradually change the system as court professionals become more familiar with valid scientific research.

 I recently wrote an article about the health impact on children of witnessing domestic violence. I hope that my efforts will encourage lawyers and protective moms to present this information in court. It seems to me that an understanding that exposure to the father’s abuse will cause children to be sicker the rest of their lives and likely have shorter lives demands that courts rethink their standard practices that minimize and fail to recognize domestic violence. These failed practices cannot be in the best interests of the children given what we know about the health effects. The point is strengthened by recommendations in the Saunders’ study that court professionals need training about the impact of domestic violence on children.

 One of the great things about the research mentioned in this article and other valid scientific research is that it reinforces each other in many ways because it speaks the truth. Courts had gotten into the practice of relying on evaluators, believing they were providing current research and then failing to notice or challenge the credibility of evaluators who could not cite valid research to support their recommendations and indeed could not answer questions about this research. We need to understand that when an evaluator says the opinion is based on clinical experience, which sounds so impressive, it really means it is just the evaluator’s personal and subjective opinion based on personal beliefs, biases and financial interests. An increased use of good research can only improve court outcomes.

United States Department of Justice

 The first thing I was told during my initial meeting with staff from OVW (Office on Violence Against Women) was they had my book (the one co-edited with Mo Hannah) on their desk and were working with it. Imagine how different the court system would be if they could say the same thing. The people I have spoken with from OVW and other parts of the Justice Department get it. We don’t have to tell them that PAS is bogus, the courts frequently send children to live with abusers or that most contested custody are really domestic violence cases. They already know this. It is wonderful to have allies who have the credibility and resources to make a difference.

 So why don’t we notice a difference in the outcomes of the horrendous cases we keep seeing? Under our federal system, child custody is specifically left to the states and indeed there is federal case law that limits the ability of federal courts to redress the common constitutional violations protective mothers experience in custody cases. This means the Justice Department must work indirectly to try to influence the needed reforms.

 March 22, 2011 was a particularly exciting day. OVW had planned a roundtable discussion about child custody for its staff, but the enormous interest in the program led to it being expanded so that the program was available to the entire Justice Department, HHS and representatives of Vice President Biden and President Obama were also present. Non-government workers from organizations like the ABA, National Council of Juvenile and Family Court Judges and other interested groups also came to hear the presentations. The morning program featured six protective mothers and a brave teen who had been caught in the broken court system. In the afternoon I was privileged to be included among a group of twelve national experts many of whom are frequent presenters at the Battered Mothers Conference. As the only man on the panel, I joked that I was the leader of the male caucus.

 The morning session had everyone in tears as we heard the heartrending stories of the unspeakable cruelty inflicted by abusive fathers with the assistance of custody courts that fail to recognize, believe or respond effectively to true allegations of abuse. These stories were perfect illustrations for the presentations in the afternoon in which we shared our experience and current research to explain why courts so frequently fail to protect children and offered recommendations for needed reforms.

 Although the federal government can’t force courts to create the changes necessary to protect children, there are things it can do to help. The Saunders’ study and other research it funds can be used to help inform courts about the impact of their faulty practices. OVW recently offered grants to courts interested in implementing better practices in domestic violence cases. I was especially pleased to see that the notices included findings from the roundtable discussions. OVW has supported grants to good organizations like DV-LEAP and the Leadership Council for training, research and other assistance. We would also like to see the Justice Department withhold funds from courts and other institutions that continue to use harmful and faulty practices such as PAS and the reliance on biased and inadequately trained professionals.

 I am also aware of other high level meetings with domestic violence experts I absolutely trust. Hopefully these will lead to more actions in support of protective mothers. We have also encouraged activities such as a White House Conference that would encourage the media to cover the custody court failures. For protective moms and their children, the effects of these hopeful events do not come soon enough, but it does provide hope that reforms are on the way.

The Rejection of PAS

 Parental Alienation Syndrome is a bogus theory concocted by Richard Gardner to help him and other professionals who are part of the cottage industry supporting abusive fathers to obtain large incomes at the expense of the well-being of children. There continues to be ever more research that debunks the theory and demonstrates the enormous harm it has caused.

 PAS was never approved by any recognized professional organization. It was never included in the DSM which is the book that includes all the valid and recognized mental health conditions. Despite intense lobbying by abuser groups and the cottage industry, it was again rejected by the American Psychiatric Association which refused to include PAS in the DSM-V because there is no valid research supporting it. I realize that not many court professionals follow current research and decisions like this, but attorneys for protective mothers can bring this to the courts’ attention which can only serve to further undermine its reputation.

Anecdotal Information about Ongoing Custody Cases

 When we see so many harmful outcomes in custody cases it is easy to get discouraged and to assume protective mothers cannot win. That is why it is so wonderful when we hear of successful outcomes. Recently I have noticed that there seems to be more good outcomes. Some moms have told me that they cited Saunders or one of my books and the judge seemed to listen and protected the children. I have started to see more judges open to listening to the research and qualifying domestic violence experts.

 It could be that I am hearing about cases that are the exceptions. Certainly this is not scientific proof, but it seems like some of the favorable events might be starting to penetrate the court system. I would like to think that the courts are in the process of transitioning from the old failed practices to new approaches based on current scientific research that are better able to focus on the well-being of children.

Conclusion

 It is hard to be optimistic when we continue to see so many bad outcomes and courts remain defensive about correcting past mistakes. Nevertheless, it is clear that the many positive signs discussed in this article are reason to hope that we are starting to make a little bit of progress. The research is compelling and any fair consideration of the research and evidence would result in drastically different outcomes. The increased media coverage and role of the Justice Department may be nudging the courts in the right direction.

 I hope protective mothers and their attorneys will continue the trend of offering genuine expert witnesses and submitting the research that is so supportive of protective mothers’ cases. At the same time we must be vigilant for the next set of abuser tactics that will be implemented if they sense they are losing the control and privilege the custody courts have been providing. I hope that our children will one day be astonished that there once was a period when the custody courts were actually supporting abusers and criminals.

Safe Child Act

by Barry Goldstein
 
Purpose: Improve the Safety of Children involved in Child Custody Cases

Provisions:

1. The paramount concern of all child custody decisions must be to provide complete safety when determining the best interests of the children.

2. Whenever domestic violence or child abuse is raised as an issue either during or before a child custody matter is litigated any professional who provides advice or recommendations to the court must have substantial training and experience about Domestic violence and child abuse to fully understand safety issues including behaviors that are associated with higher lethality or injury risks; domestic violence dynamics; effects of domestic violence on children; ability to recognize domestic violence and research about batterer narratives. Any professional without this necessary expertise must consult with someone who has this knowledge prior to giving any recommendation to the court.

3 A post graduate degree in mental health such as psychology, psychiatry or social work absent specialized and approved training shall not be considered proof of domestic violence expertise. A court shall not refuse to qualify an individual as a domestic violence expert because the witness does not possess a post graduate degree if the witness can demonstrate expertise based upon training and experience.

4. In any custody case where either domestic violence or child abuse is raised during the litigation process and even where a court may have already heard and determined there is not significant enough domestic violence to warrant a restraining order and in which there is no substantial basis to believe the parties or children have a significant mental health impairment likely to interfere with parenting ability, courts should not order a mental health evaluation. The court may appoint a domestic violence expert to help the court understand the significance of evidence related to domestic violence and must permit parties to present evidence from a qualified domestic violence expert.

5. Courts shall look to current, valid scientific research concerning domestic violence to help inform its decisions in all cases where domestic violence or child abuse is raised during the course of custody litigation Courts shall not permit practices or approaches that do not have scientific bases and are not accepted practice within the specialized field of practice of domestic violence and child abuse. Professionals who engage in practices based upon such unscientific beliefs shall not be qualified to participate in custody cases where domestic violence or child abuse is raised during the course of litigation.

6. In cases in which allegations of domestic violence are supported by the preponderance of the evidence, the safe or safer parent shall receive sole custody absent clear and convincing proof that the parent creates an imminent safety risk to the children. The parent who has committed domestic violence shall be permitted only supervised visitation pending a risk assessment by a domestic violence/child abuse professional. In order for the abusive parent to obtain unsupervised visitation, the parent must complete at least a six month accountability program, accept full responsibility for past abuse, commit to never abusing the children or future partners, understand the harm the abuse caused and convince the court that the benefit of unsupervised visitation outweighs any risk. Termination of all visitation should be considered upon proofs of failure to comply as it will present the children with a known dangerous circumstance.

7. A parent shall not be penalized for making a good faith complaint about domestic violence or child abuse.

8. Courts shall not use approaches developed for “high conflict” cases designed to encourage parents to cooperate in any litigated custody case if there have been allegations of domestic violence and or child abuse which have been supported with an expert report opining there is a reasonable risk to children and shared parenting shall not be permitted in these cases absent voluntary consent of both parties. Consent must be determined to be without coercion or undue pressure.

9. In cases in which there are allegations of domestic violence, a history between the parties that includes restraining orders, criminal charges or other evidence of possible domestic violence, early in the proceeding, before the appointment of any GAL, evaluator or other neutral professional the court shall conduct an evidentiary hearing to determine if one of the parties has engaged in a pattern of domestic violence. If the court finds domestic violence and the non or less abusive parent is safe the court shall award custody to the safe parent and supervised visitation to the abusive parent. A finding denying the allegations of domestic violence shall not prevent the court from considering additional evidence of domestic violence later in the case.

10. In any case in which the trial judge engaged in or tolerated gender biased practices or permitted practices or approaches based on myths, stereotypes or other bias, an appellate court shall not defer to the judgment of the trial court.

11. In any case involving allegations of child sexual abuse, any professionals asked by the court for a risk assessment or evaluation must have specialized training and experience of a minimum of five years after completing training working with children and expertise in child sexual abuse. Investigators shall take sufficient time to develop a trusting relationship before expecting the child to speak about the allegations. It shall be recognized that children frequently recant valid allegations of child abuse so a recantation shall not by itself be treated as absolute proof the allegations were false. No negative inference(s) may be drawn from a decision by a prosecutor or child protective agency not to file charges against a named perpetrator of domestic violence or child abuse and shall not be treated as proof the allegations are untrue. Given the difficulty of proving valid complaints about child sexual abuse, judges who make a finding that the allegations were deliberately false must demonstrate they considered not only if the allegations are true but other common circumstances such as violation of boundaries, inadequate information to determine the validity of the allegations and mistaken allegations made in good faith. In cases in which a court determined sexual abuse allegations cannot be proven, the court shall consider new evidence in the context of the evidence previously considered. No decision shall be made by a court absent a full evidentiary hearing with the parent having a right to have an expert of their choosing heard by the court. No preference and no deference shall be given to any expert selected by the court and identical standards of review and credibility shall be applied by the trial court.

12. This law is designed to correct common present practices that have been shown to work poorly for the protection of children. The law seeks to encourage custody court professionals to look to current, valid, scientific research to inform their decisions and stop using the outdated and discredited practices described in the legislative history. The use of such flawed practices in prior decisions shall be considered a change of circumstance that entitles the parties to request the court to reconsider arrangements that were created based upon flawed practices.

Training and Retraining: Any judge who hears a case involving the issue of domestic violence and/or child abuse as part of judicial responsibility shall receive specialized training regarding the new practices adopted by this law and the specialized information it is based upon. They shall also receive retraining concerning prior practices which have not worked to sufficiently protect children. GALs appointed to represent children where domestic violence and or child abuse is raised during the course of litigation shall receive specialized training and retraining. The trainings shall be presented by domestic violence advocates and/or other similar experts knowledgeable about the safety practices described herein and current scientific research such as described herein. The state shall provide additional funding to domestic violence agencies to train advocates to serve as domestic violence experts in court and to help train court professionals.

Findings:

1. Present Response to Domestic Violence Custody Cases Working Poorly for Children: Research based on the outcomes of domestic violence custody cases demonstrate frequent arrangements that place children at risk and standard practices shown to work poorly for children. Nationally, 58,000 children are sent for custody or unprotected visitation with dangerous abusers annually and in a two year period starting in 2009 fathers involved in contested custody cases murdered 175 children often with the unwitting assistance of the courts.

2. Large Majority of Contested Custody are Domestic Violence Cases: Many court professionals treat contested custody as “high conflict” but between 75-90% are actually domestic violence cases. This flawed practice results in courts pressuring victims to cooperate with their abusers instead of requiring abusers to stop their abuse. The most dangerous abusers, the ones who believe their partners have no right to leave have developed a particularly harmful tactic of seeking custody as a way to maintain control, pressure their partner to return or punish them for leaving. Court professionals, anxious to keep both parents in the children’s lives fail to consider motivation or ask why a parent who had minimal involvement with the children during the relationship suddenly demands custody in response to the separation. As a result there is a pattern of courts supporting abusers and punishing victims who continue to view their partner as unsafe. Contrary to a popular misconception, children do not need both parents equally. They need their primary attachment figure more than the other parent and the safe parent more than the abusive one.

3. Failure to Recognize Domestic Violence: Although a large majority of contested custody cases involve domestic violence, at least 70% result in custody or joint custody to the alleged abuser. One of the causes for this problem is flawed practices that make it hard for judges to recognize valid complaints about domestic violence. Court professionals often discredit valid allegations based on non-probative information such as a victim returning to the abuser, failing to follow-up on petition for protective order, lack of police or medical reports and observing children interact with the alleged abuser without showing fear (not realizing children know parent won’t hurt them in front of witness). At the same time court professionals fail to look for a pattern of coercive and controlling behaviors that in addition to physical abuse often include, verbal, emotional and psychological abuse, isolating tactics, economic abuse, monitoring behaviors, litigation abuse, past parenting behaviors and threatening or using custody as a tactic to pressure the partner to stay or punishing partner for leaving.

4. Court Response to Sexual Abuse Allegations Especially Problematic: By the time children reach the age of eighteen, one-third of the girls and one-seventh of the boys have been sexually abused. The stereotypical rapist or sexual abuser is a stranger, but 83% of these crimes are committed by someone the victim knows and for children this is often their father. Although children rarely make false allegations, 85% of sexual abuse allegations in custody cases result in custody to the alleged abuser. Sexual abuse of young children is extremely difficult to prove. Many instances of abuse leave no physical evidence and when there is evidence it often is no longer available by the time the child reveals the abuse. Many professionals particularly those who are not experts in child sexual abuse are reluctant to believe someone could commit such a heinous act particularly if they are successful in other parts of their lives. This stereotype also contributed to the Catholic Church sex scandal and the scandals at Penn State and Syracuse University. Many flawed practices have contributed to courts sending children to live with sexual predators and often punishing protective parents who try to protect their children.

5. Many Court Professionals Believe the Myth that Mothers Frequently Make Deliberately False Allegations of Abuse: A new U. S. Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that most evaluators and other court professionals have inadequate domestic violence training and those without needed training are more likely to believe this myth. Current scientific research establishes that deliberately false allegations by mothers in contested custody cases occur between one and two percent of the time. Nevertheless many court professionals continue to make recommendation based on this myth and this has been shown to work poorly for children. The use of this myth is an important factor in the widespread failure of custody courts to support valid allegations of domestic violence and child sexual abuse.

6. Gender Bias against Women Continues to be Widespread in the Court System: New Jersey was the first of over 40 states and many districts to create court-sponsored gender bias committees. They have found widespread bias against women particularly women litigants. Among the common examples are giving women less credibility, requiring a higher standard of proof and blaming women for the actions of their abusers. The use and tolerance of this bias is an important factor in keeping the myth that women frequently make false allegations alive. Judges and other professionals who engage in gender bias usually do so unconsciously, but there has been a lack of openness to hear this complaint and appellate courts are not reversing cases when this bias is in place.

Definitions:

1. Domestic Violence are a pattern of coercive and controlling tactics by one partner against another in an intimate partner relationship designed to maintain control over the partner and make the major decisions in the relationship. These tactics are intended to induce fear in the partner. Although abusers often use physical violence as one of the tactics, not all abusers engage in physical violence and most tactics are not physical and not illegal. Common tactics include verbal, emotional, psychological and economic abuse, isolating tactics, threats including threats to seek custody if the victim leaves, controlling behaviors, monitoring, litigation abuse and especially demands for custody or joint custody in order to pressure the partner to return or punish the partner for leaving.

2. Promoting safety of the children includes both preventing direct assault of the children and creating situations that have been shown to increase the likelihood the children will engage in harmful behaviors. Separating children from their primary attachment figure which has been shown to increase the risk of children to suffer depression, low self-esteem and commit suicide when older and witnessing domestic violence which has been shown to interfere with the ability of children to reach developmental milestones and increase the likelihood the children will engage in a wide range of harmful behaviors when older are common examples of situations that create a safety risk for children.

3. Domestic violence cases are cases in which there is an allegation of domestic violence or evidence or information that supports the possibility that one or both parties engaged in domestic violence tactics. The fact that no finding has been made should not be used to deny it is a domestic violence case because it requires domestic violence expertise to determine if the allegations are valid.


The Need to be Heard

Many protective mothers and their supporters are appropriately angry at the mistreatment they have received. I think I have some understanding of this feeling as I was similarly mistreated by the court system which suspended my law license in retaliation for exposing an abusive judge. Attacks on the offending court professionals, however justified, may feel good but do not help the cause of reforming the broken system. Those with the power to support reforms will not be convinced by such attacks. In other words, the name calling does not help our children.

The focus of my proposal is to make safety of children the first priority for custody and visitation decisions. I particularly like this formulation because it would be hard for legislators or judges to disagree that safety should be the first priority. Indeed their major objection might be their belief that it already is. In practice the ideological view that both parents should be treated the same (regardless of past parenting) has been given a much higher priority and implemented in a way that frequently separate children from their mothers who are usually their primary attachment figures. Focusing on safety reframes the discussion in many useful ways.

One of the best strategies for supporting protective mothers is focusing on the children. Abusers seek to frame mothers’ attempts at protecting their children as if it was only a reflection of her anger at him. In the infamous Shockome case the court treated statements by the mother that the children should eat healthy meals, dress appropriately for the weather and avoid adult oriented programming as if this was proof of alienation. It was considered an attack on the father who engaged in all these harmful parenting practices. A safety first requirement would make the mother’s concerns important because they concern the health and safety of the children while the father’s complaint had no safety component.

Most states have laws or case law that sets forth factors to be considered in determining custody. As protective mothers are usually focused on abuse cases it is worth remembering that most cases do not involve domestic violence or child abuse which is why they usually settle much more easily. Most of the factors are reasonable and would be appropriate to consider when no safety risks are involved. Every state has laws requiring the courts to consider domestic violence and the purpose was to safeguard the safety of children. Unfortunately few states specifically require safety to be the first priority and the standard flawed practices have emphasized less important issues and prevented court professionals from recognizing when children are at risk. In many ways this proposal would simply require what the legislatures thought they were creating when they passed their domestic violence laws.

What Considerations does Safety Include?

We frequently see unqualified court professionals deny or minimize domestic violence allegations because “he didn’t beat her bloody.” or assume there is no further risk because the parents are separated. These are just some of the common mistakes routinely made by custody courts that rely on professionals without domestic violence expertise. This law would more specifically define both domestic violence and safety so that practices based on this ignorance would be illegal.

The proposal defines safety to include not only direct physical assault, but also situations that have been shown to encourage children to engage in behaviors that undermine their safety. It specifically mentions separating children from their primary attachment figure which increases the risk of depression, low self-esteem and suicide as well as witnessing domestic violence which interferes with children’s developmental process and often leads to a wide variety of harmful behaviors when older. If the purpose is to protect children’s safety, these risks must be avoided.

The proposal also provides a more accurate definition of domestic violence which is important because so many court professionals don’t know how to recognize it. We specifically state that domestic violence is not limited to physical assaults, but rather includes a pattern of coercive and controlling behaviors. This would force courts to look at important examples of domestic violence such as emotional, psychological, and economic and litigation abuse. It also includes isolating and monitoring behaviors. The emphasis of patterns and the purpose to control and coerce are designed to stop practices in which the victim hits back in self-defense or frustration and unqualified professionals treat this as if it were domestic violence.

We often see unqualified court professionals try to frame issues to include safety despite no research to support this concern. Aside from the fact that alienation has become an abuser’s tactic to distract attention from more important issues, we certainly do not want to encourage alienating behaviors. Genuine alienating behavior, more commonly practiced by abusers is certainly harmful to children, but there is no research that it poses safety issues. In other words issues like domestic violence and primary attachment have a greater impact on children, but the courts have paid much more attention to alienation allegations than safety issues.

Recognizing primary attachment as a safety issue should create a fundamental and positive change in the courts’ response to custody cases. We often see courts minimize an important benefit for children because of the expectation mothers will provide most of the child care. In some cases courts unconsciously favor fathers in an attempt to balance the advantage mothers have by virtue of their stronger relationships with the children. Understanding how primary attachment impacts safety should result in different outcomes.

Abusers would have to explain to a court what unusual circumstances would justify increasing the child’s risk of depression, low self-esteem and suicide. Issues like financial security, alienation and even most of the mental health diagnoses we see from unqualified psychologists would not justify the risk. I would expect the extreme cases in which mothers are limited to supervised or no visitation because they continue to believe the fathers are abusive would receive close scrutiny because the courts would be required to emphasize safety concerns.

Even if a judge or other court professional wants to distort some research to treat alienation or other similar tactics as if it was a safety issue, the law specifically prevents it by giving examples of the kinds of common issues unqualified professionals have used to undermine children’s safety. Indeed evaluators and other professionals used by the courts for advice would be disqualified if they continue to use unscientific approaches.

Mandating Practices Supported by Current Scientific Research

The biggest obstacle to courts protecting children in domestic violence cases is their reliance on unqualified professionals together with unjustified confidence in their ability to understand abuse. In many cases the judge is only looking for a mental health degree, but even when domestic violence expertise is requested, the mental health professionals claim such expertise because there is no strict standard about what that means. The Safe Child Act would require very specific knowledge as a condition of participating in domestic violence cases and this expertise would be difficult for the usual suspects relied on by the courts to fake. Their reports would be expected to discuss these topics and the failure to do so would be a basis to discredit the report or for an appeals court to reverse a decision.

The mandatory expertise would include behaviors associated with higher risks of lethality or other dangers, domestic violence dynamics, recognizing domestic violence, effects of domestic violence on children and familiarity with batterer narratives. Genuine experts with this expertise can be relied on to recognize domestic violence and make recommendations that protect the safety of children.

The proposed legislation also requires the use of current scientific research to inform court decisions. This is important because unqualified evaluators often use their personal beliefs and biases and invalid theories instead of current research. The law specifically discusses the kinds of studies the legislature wants the courts to use in order to avoid bogus theories that are not based upon valid research. It specifically refers to research that unqualified professionals often rely on the myth that women frequently make false allegations.

Parental Alienation Syndrome is not mentioned by name, but the law would bar theories like PAS that have no scientific basis. Furthermore professionals who seek to use such bogus theories would be barred from participating in domestic violence cases. The recent rejection of the campaign to include PAS in the DSM IV because it has no scientific basis should make it easy for PAS to be rejected including when it is used by other names such as parental alienation or just alienation.

Child Sexual Abuse Cases

Allegations of child sexual abuse make people uncomfortable and court professionals often respond by using practices that undermine their ability to recognize and respond to valid allegations. In the findings the law specifically describes the problem of courts frequently giving custody to sexual predators and taking safe, protective mothers out of children’s lives at a time when the children most need them. The law is clear that one of the purposes is to reform the way custody courts respond to child sexual abuse allegations.

Several improved practices are specifically required. Any professionals relied on by the courts would be required to have experience and expertise in child sexual abuse. They would be required to take the time to develop a trusting relationship with the child before expecting her to reveal the abuse. Practices that treated the failure of prosecutors of child protective agencies to bring charges as proof the allegations were false would be outlawed. Courts would be forbidden to penalize parents for making good faith allegations of abuse. Courts would be required to consider common situations like boundary violations, evidence that is insufficient to determine if the allegations are true, and good faith allegations that turn out wrong. Accordingly courts would be discouraged from limiting their investigation to the possibility that the allegation is true or else assuming it is a deliberately false allegation.

The law would also take steps to prevent the blind reliance of mental health professionals who often do not have the needed expertise or worse have a bias against believing mothers’ allegations. All parties would have the right to present their own expert witnesses and the court would be required to evaluate the expert testimony based upon credentials and the value of the testimony rather than automatically give preference to the court-appointed expert. This is important as we often see courts refuse to hear domestic violence or other experts that could help the court understand the circumstances.

Retraining Judges and other Court Professionals

Contrary to appearances, judges receive training about domestic violence and other related issues. The problem is that some of the trainings are provided by unqualified professionals and when a good training is presented some judges, believing they already know everything, do not pay much attention. Most legal professionals have heard the often unqualified evaluators providing misinformation throughout their careers and so the wrong information can be so deeply ingrained they are not open to evidence based upon current scientific research that disputes what they have heard most of their careers.

I believe that by making substantial changes in the way domestic violence custody cases are considered it will encourage court professionals to hear the new information because that is what will be required to respond to cases from now on. The law also requires that the information be presented by genuine experts in domestic violence and be based on current scientific research. As discussed earlier, the law would require courts to consider specific types of information that are needed to assess the safety of children. Judges and other court professionals are unfamiliar with this information because they have been relying on mental health professionals who do not have the needed domestic violence expertise. Indeed this was the finding of the new U. S. Department of Justice study.

The language in the proposal refers not just to training but retraining. It says that the present practices and beliefs have not worked to protect children’s safety. In order to avoid being reversed, judges will have to have an understanding of the new safety practices and avoid the old flawed practices. Without active participation in the retraining programs, the judges’ mistakes would become obvious. This would create some accountability that has been sorely missing. In fairness, I do not believe most judges want to hurt children or even risk their safety. They just do not understand the enormous harm they have been causing.

The Importance of Findings

The proposed legislation includes extensive findings and I believe this is important because it essentially says that the present practices are working poorly for children. Lawyers representing protective mothers will be able to cite the findings in case abusers or judges seek to undermine the purpose of the reforms. The findings make it clear that the intent of the legislature is for courts to stop using practices that have proven so harmful to children.

The findings specifically challenge the widespread assumption by court professionals that contested custody are “high conflict” cases. Instead the law makes findings based on current research that most contested custody are really domestic violence cases in which an abuser is seeking custody to maintain control after his partner left him. This different understanding is critical because it encourages the use of accountability against abusers and to make him stop instead of pressuring his victim to cooperate with him. An attorney should have an easy time challenging the uses of flawed “high conflict” approaches because the legislature is telling the courts those approaches are harmful to children.

One of the big problems in domestic violence custody cases is that courts, using flawed practices and unqualified professionals fail to recognize valid complaints about domestic violence. This frequently results in punishment of the mother for trying to protect her children. The findings state specifically that the courts are frequently failing to recognize domestic violence because of the outdated and discredited practices they use. Attorneys should be able to challenge these practices more effectively by citing the findings by the legislature. The legislation also finds that unqualified professionals often rely on the myth that women frequently make false allegations of abuse. This leads to the rejection of many valid complaints without a fair hearing. The law also confirms the problem of widespread gender bias against women litigants and requires appellate courts to reverse decisions based on these biased approaches.

The legislation also finds that the courts’ response to sexual abuse allegations has been a disaster for children. Many of the common mistakes are discussed in the findings. The courts will have to change its practices as a result of the legislation and if the changes do not result in significant changes in the pattern of outcomes it would be clear the courts are not implementing the intent of the legislature. The child sexual abuse scandals at the Catholic Church, Penn State and Syracuse were allowed to continue longer because of the widespread assumption that men who are successful in other parts of their lives could not have committed such vile actions. This is the same mistake the custody courts keep making and the findings should force the courts to change this practice.

Correcting Existing Mistaken Outcomes

What do we do about the tens of thousands of heartbreaking cases in which custody courts have used their standard flawed practices to separate children from safe protective mothers who usually have been their primary attachment figure and sent them to live with dangerous abusers? Courts follow the doctrine of stare decisis in all cases, not just custody or domestic violence. This mean that once they make a decision, it is binding on both parties and cannot be relitigated. There are many good reasons for this practice as constantly retrying cases because one party is dissatisfied with the results would clog the courts and waste resources. We can be sure abusers would take full advantage if they were permitted to.

We often see cases in which the court considered allegations of domestic violence or child abuse, found against the mother and then refuse to consider new evidence that with the earlier evidence would prove the father is dangerous. The original decision might be because there was not sufficient evidence or the flawed practices prevented the court from using the evidence to understand the actual situation. The Safe Child Act would provide a solution and create the opportunity for many children to be rescued.

The law would say that the findings that custody courts are routinely using bad practices that result in its failure to recognize valid allegations of abuse. Accordingly the passage of the law and the findings and research it is based upon constitute a change of circumstance that would permit victims of the flawed practices to have a new hearing to determine if the custody-visitation arrangement should be changed based upon the improved practices required by the law and the research about children’s safety. Once courts make a mistake and send children to live with an abuser they often refuse to return the child to the safe parent based on continuity. Basically this means that children do better when their lives are not disrupted so there is a strong tendency to leave the child with the custodial parent (of course this does not seem to be an obstacle when they want to remove children from their mothers). Continuity is a valid consideration and reasonable to be included in the factors determining custody. It is not, however a safety issue so that proof of domestic violence, child abuse or primary attachment which are all safety issues would take precedence.

This means that courts could not refuse to provide a new hearing or consider evidence of domestic violence or child abuse despite prior denials of the allegations. In the new hearing the courts would have to use the new and improved practices mandated by the law. Hopefully this would discourage courts from continuing to send children to live with abusers because this would only make more work for the court. Most importantly, the law would give protective parents an opportunity to rescue children placed in danger by mistaken court decisions.

Additional Useful Benefits

One of the big problems in the custody court has been the reliance on unqualified mental health professionals. Courts originally turned to them based on the popular assumption that domestic violence was caused by substance abuse, mental illness or the actions of the victim. We now know that these assumptions were wrong, but the courts continue to treat a mental health degree as if it provided expertise in domestic violence. Interestingly, the new Department of Justice study found that recommendations from social workers and lawyers worked better for children than those made by psychologists and psychiatrists. This contradicts popular beliefs that a degree based on a longer course of study would provide more expertise. It appears psychologists and psychiatrists are less effective in domestic violence cases because they rely on psychological testing that is not useful in most cases and fail to use a holistic approach. The Safe Child Act would specifically state that graduate degrees should not be treated as proof of domestic violence expertise and the lack of such degrees should not be the basis for refusing to listen to testimony from domestic violence experts. Even the current law provides for qualifying experts based on training and experience, but many judges have failed to follow the law when disqualifying domestic violence experts who usually know more about domestic violence than the mental health professionals routinely relied on. The law would also discourage the use of mental health professionals in cases where there are no legitimate mental health issues.

The proposal would also mandate early evidentiary hearings in all cases in which there are allegations or evidence of domestic violence. The hearing would be limited to the issue of whether the abuse allegations are true. There would be no need to go to the time and expense of appointing a GAL or evaluator as the hearing would be limited to the factual issue of the validity of domestic violence allegations. If the allegations are true and the non-abusive parent is safe, she would receive custody and the abuser would be limited to supervised visitation. Instead of forcing victims to accommodate their abusers, the law would place the burden on the abuser to change his behavior and convince the court it would be safe for him to have unsupervised visitation. Any further abuse would end all visitation.

Conclusion

As I discussed last month in my article about legislative proposals, there are other ideas and provisions that could be added to the reforms and some of the ideas in this proposal could be removed if necessary to gain approval. I believe that as long as safety of children is effectively treated as the first priority, this will create the fundamental reforms necessary to alter the frequency of outcomes that place children in jeopardy. It is critical that safety be defined to include not only physical abuse, but also situations that place children at risk. Also critical is the definition of domestic violence both to help courts recognize the coercive and controlling behaviors abusers use and to avoid the mistakes where victims are accused of domestic violence if they strike out in self-defense or frustration.

The heart of the proposal is the requirement that professionals used to provide expertise and advice to the court are knowledgeable about the five subjects required for an understanding of domestic violence. These are:

1. Knowing what behaviors are associated with higher risk of lethality or injury.

2. Domestic violence dynamics

3. The effects of domestic violence on children.

4. Recognizing domestic violence

5. Batterer narratives.

With these provisions the courts can stop sending children to live with dangerous abusers. Instead of pressuring mothers to cooperate with their abusers they can be using their power and authority to require him to stop his abuse if he wants to have a relationship with the children. It is important for legislators and court professionals to understand that children do not need both parents equally. They need the safe parent more than the abusive one and their primary attachment figure more than their other parent. It is certainly high time the courts start making decisions that are truly based on what is really in the best interests of the children.


Serious Health Consequences to Children Witnessing Domestic Violence 

 
 
 
 
 
by Barry Goldstein

New Research Requires Changes in Custody Court Practices

Starting with the ACEs (Adverse Childhood Experiences) study in 1998 medical researchers have established the enormous and long term harm to children from being exposed to traumatic events such as witnessing domestic violence and direct physical or sexual abuse.  The research establishes that there is a cumulative adversity so that the more exposure a child suffers the greater the chance of serious medical consequences and the more serious those consequences are likely to be.  There is now a substantial body of medical research that establishes not only the enormous harm to children, but the many mechanisms that result in increased illnesses and injuries during their childhood and for the rest of their lives.  When court or other professionals fail to take sensible actions to safeguard children, or give more consideration to less important factors they are literally reducing the life expectancy of these children.
When domestic violence first became a public issue in the mid to late 1970s, custody courts had to develop practices to respond.  For many years when a protective mother went to court seeking a protective order and for any visitation with the father to be supervised judges would routinely ask some version of “Did he also assault the child?”  If the answer was no, the court treated the father as if he was just as qualified as the mother for custody and visitation.  These risky practices continued until the eighties and nineties when research established that children witnessing domestic violence were more likely to engage in a wide range of harmful behaviors when older including substance abuse, self-mutilation, teen pregnancy, dropping out of school, prostitution, crime and for boys to assault future partners and girls to be assaulted by future partners.  These findings led to legislation in every state either to require courts to consider domestic violence in any decision about custody or visitation or to create a presumption against custody for abusers under some limited circumstances.
Every state has adopted the best interests of the child standard to determine custody and visitation and has developed a list of factors either legislatively or through case law that must be considered in making these decisions.  Unfortunately the states have not required that children’s safety be treated as the first priority so courts are free to use very subjective standards when deciding where the children will live.  In many cases political or personal beliefs and factors far less important than the safety of children are determinative in custody decisions.  This often poisons the process because abusers can distract attention from safety issues by raising less important issues.  Judges sometimes believe that fairness requires the court to treat the issues raised by the mother and father equally even though one of those issues is more fundamental to the well-being of children.  This is an example of false equivalency that is common in custody courts.  In many cases, courts weigh allegations of domestic violence and alienation as if they are equally important to the well-being of children.  At worst, alienation might temporarily interfere with the relationship between the child and a parent while domestic violence leads to serious and life impacting health problems throughout the child’s life and often reduces how long they live.  I have never heard an evaluator or a judge weigh the relative importance of these issues based on scientific research.  This is particularly problematic because claims of alienation are a common abuser tactic but courts seem to be more open to these allegations than domestic violence which mothers rarely falsify.
There is now a substantial body of medical research that establishes the enormous risk to children of exposing them to domestic violence.  The research demonstrates that these children have significant, increased risk of illnesses and injuries as children and need more medical care.  Significantly, these medical problems do not end when children reach their majority but continue for the rest of their lives.  They will have far more medical needs as adults and their life expectancy is reduced.  I believe that custody courts cannot continue to tolerate practices that result in children losing precious years from their lives.  This research requires fundamental reforms or else the courts cannot be acting in the best interests of children.
The Medical Harm to Children Witnessing Domestic Violence
One of the leading experts about the medical consequences of childhood trauma is Kathleen Kendall-Tackett.  The second edition of her book, Treating the Lifetime Health Effects of Childhood Victimization, was recently published.  This is a book by and for medical professionals that is designed to help them treat a variety of conditions in adult patients that were caused or exacerbated by traumas suffered as children.  The research and the writing were not designed to respond to custody court issues, but the information should be required for any court that wishes to act in the best interests of children.
The long-term harm of exposure to domestic violence or direct physical or sexual abuse can and does develop in a myriad of ways.  A child could develop immediate and obvious symptoms or the harm can go unnoticed for many years.  The author encourages doctors to ask about childhood trauma because so many different ailments can have their genesis with childhood trauma.  This is especially problematic because patients are rarely thinking about events from decades earlier as the cause of their health problems.
There are many ways in which childhood trauma can seriously impact health now and in the future.  The trauma can cause increased inflammation that can trigger numerous diseases now and in the future.  Accordingly, Dr. Kendall-Tackett recommends an anti-inflammatory for children exposed to abuse.  Quite naturally, exposure to domestic violence often interferes with the child’s ability to enjoy the quality and quantity of sleep needed.  This and several other common responses to abuse can lead to obesity with increased risk of heart disease, cancer, diabetes and other medical problems.  The author suggested that programs and campaigns designed to prevent obesity ought to include efforts to make sure children get their needed sleep and avoid exposure to domestic violence and child abuse.  Indeed these experiences often lead to eating disorders.
Many diseases including heart disease, asthma and diabetes are caused or exacerbated by stress.  One of the major reasons researchers found that we spend $750 billion per year on health costs related to domestic violence is because excessive stress is so inimical to good health.  Domestic violence is especially harmful because there is the constant danger that the abuser will threaten or hurt his partner.  Accordingly the stress is repetitive.  This harm is especially severe for children whose various systems are still developing.  
As discussed earlier, witnessing domestic violence strongly encourages substance abuse.  The use of illegal drugs, tobacco and excessive use of alcohol, especially by children also creates a wide range of long-term medical problems.  Many of the factors I am discussing interact with each other to reinforce the most negative impacts.
Exposure to childhood trauma also increases the risk of depression.  This in turn can cause behaviors that further undermine the child’s health.  Depression can discourage proper self-care, negatively impact the immune system and other bodily defenses and is a major factor in suicide.  Significantly, separating children from their primary attachment figure as custody courts frequently do in domestic violence cases also causes depression.  I mentioned before that cumulative adversity magnifies the risk so that it is particularly devastating to children who have witnessed domestic violence or been directly abused to be denied a normal relationship with their primary parent.
Childhood trauma is also associated with risky sexual behavior.  This is another example of how witnessing domestic violence leads to many behaviors that cause still more health risks.  Risky sexual behavior can lead to sexually transmitted diseases including HIV and cause survivors to interact with dangerous individuals.  It can also encourage the use of dangerous drugs.
For children to witness their father or another man abusing their mother, they would tend to be fearful and angry, but often it is unsafe for them to express their anger particularly to the abuser.  This can cause them to express their anger in other ways that can undermine their health and safety.  This can result in both physical and mental illnesses or cause them to get into fights where someone else hurts them.  The childhood trauma also can lead to shame and self-blame that can be harmful to their health.  Significantly, low self-esteem can also be caused by denying children normal contact with their primary attachment figure so that many common custody court approaches serve to multiply the harm caused by domestic violence.
In many ways, domestic violence leads to poverty and this undermines the health of victims.  Education is important in order to improve one’s economic status.  Children who witness domestic violence and often miss needed sleep both because of frightening incidents at night and the fear which makes it hard to sleep at other times.  This makes it difficult for children to get their work done in school.  They may also act out because of their anger.  Economic abuse is an often overlooked part of domestic violence tactics so that mothers seeking to leave their abusers often lose income and family resources.  In many cases the bias favoring abusive fathers forces mothers to trade support for custody.  Small wonder at least half of the homeless population consists of mothers and children who left abusers.  Many children also leave home because of domestic violence, physical or sexual abuse.  Victims with limited financial resources often can’t afford safe housing, healthy food and needed medical care.  All of this contributes to medical problems facing children impacted by domestic violence.
Many victims of childhood trauma suffer from unexplained or inadequately explained conditions.  Many are labeled as hypochondriacs which may say more about the failure of the medical community to find the cause than the complaints of the victims.  These experiences are painful in many ways both physically and emotionally and can prove debilitating.  Living with pain undermines other parts of a person’s life and interferes with their ability to reach their potential.
Just as any adverse experiences a child has are cumulative so that combined they are much more harmful, the same is true of the many medical consequences caused by domestic violence and child abuse.  The various conditions which are just some of the problems faced by children impacted by domestic violence come together to magnify the harm done to children.  This research ought to make clear that we must stop minimizing the significance of these childhood traumas.
Impact of Health Concerns in Individual Cases
The fact is that the present custody court response to domestic violence has been a disaster for battered women and children.  Everything is severely tilted to favor abusive fathers so that the outcomes are often catastrophic and the court discussions tend to focus too much on protecting abusers’ interests rather than safeguarding children.  Accordingly we are desperately seeking to find a way to help court professionals understand the enormous harm they are causing by following outdated, discredited and biased approaches.  In succession we have hoped that the powerful documentation of court failures contained in The Batterer as Parent, Domestic Violence, Abuse and Child Custody, the Saunders’ study from the US Department of Justice and Representing the Domestic Violence Survivor might encourage court officials to take a fresh look at false assumptions that continue to place children in jeopardy.  Much of this research and publications are new so they still may help change the system as they sometimes change individual cases.  They may also have a cumulative effect over time.  
The new research about the lifelong health impacts on children witnessing domestic violence, child abuse and other childhood traumas ought to require courts to take a new look at standard practices.  There are two important differences that might help give this information some traction.  The research does not come from anyone involved in the domestic violence movement, but rather is from the medical community.  It was developed for the purpose of better treating adult patients who suffered childhood trauma.  In other words it would be hard for anyone to discredit this research.  The second factor is that the findings go to what is supposed to be the essence of what custody courts are supposed to do.  HOW CAN ANYTHING THAT DOES NOT IMPACT THE IMMEDIATE SAFETY OF CHILDREN BE TREATED AS IF IT WERE AS IMPORTANT OR MORE IMPORTANT THAN CHILDHOOD TRAUMAS THAT RESULT IN INCREASED ILLNESSES AND INJURIES THROUGHOUT THE LIFE OF THE CHILDREN AND REDUCED LIFE EXPECTANCY?
This medical research strongly supports requests from protective mothers to make safety the first priority.  Common issues that courts routinely consider as factors in deciding custody and visitation like alienation, friendly parent, which home is nicer, relative financial status of the parties, children’s preference and many of the phony or unimportant mental health diagnoses used to pathologize protective mothers pale in comparison with the significance of factors that impact children’s health such as domestic violence and child abuse.  Not only should the court place far more weight on these factors, but there is no reason to allow issues that do not impact children’s safety to distract attention from factors that so directly impact the well-being of children.  The “rights” of the parents, which “fathers’ rights” groups have elevated to the first priority, must be subordinated to the health and lifespan of the children.  Yes, courts should have seen that before, but the research about the impact of trauma means that political beliefs about father’s rights can no longer be used to undermine children’s safety.
We have also seen many evaluators and other court professionals who do not understand domestic violence dynamics require some artificial level of domestic violence or child abuse before taking the risk seriously.  In our new book, Elizabeth Liu and I wrote about a New York evaluator with a bias for shared parenting who claimed to know domestic violence when he saw it and required the victim to have serious physical injuries before he would allow claims of domestic violence to interfere with his personal preferences.  Similarly some states require a more “serious” offense or level of proof such as conviction of a felony before presumptions against custody for abusers apply.  This would not prevent a court from protecting children in cases that do not rise to this level, but some courts have discarded evidence if it fails to meet the requirement for the presumption.  Courts sometimes forget that the purpose of considering domestic violence is because of the harm it does to children.  The medical harm I have been discussing in this article is not limited to cases in which the victim sustains a “serious” injury or even to cases of physical abuse.  Furthermore, one of the problems with the custody court response to domestic violence is the widespread failure to understand domestic violence dynamics.  Abusive fathers commit domestic violence tactics based on a belief system that they are entitled to control their partner and make the major decisions in the relationship.  His belief system does not change with the end of the relationship and in fact the use of the custody tactic demonstrates the likelihood he will continue to abuse future partners.  If the abuser is granted custody or unsupervised visitation, the children are likely to witness still more domestic violence.  This adds to their cumulative adversity and therefore dramatically increases their medical risks.
The severity of the harm of domestic violence makes it critical that courts are able to recognize true allegations of abuse.  We frequently see practices where courts rely on inadequately trained court professionals.  The Saunders’ study recommended these professionals need to learn how to screen for domestic violence and conduct a risk assessment.  In many cases allegations of domestic violence are dismissed for non-probative reasons such as the mother returning to her abuser, failing to follow-through when seeking a protective order, having no police or medical records or the children interacting with their father without fear because they know he would not hurt them in front of witnesses.  At the same time few lawyers know to present the pattern of coercive and controlling tactics which includes so much more than physical abuse and judges and evaluators rarely look for this pattern.  Evaluators routinely fail to use any tools such as the Campbell Danger Assessment that would help them recognize the danger, but instead rely on psychological tests that tell them nothing about domestic violence.  We cannot continue to use such flawed practices and inadequately trained professionals when the resulting mistakes are likely to reduce children’s life expectancy.  It becomes even more important for courts to use best practices which include considering current scientific research and at least consulting with a domestic violence expert.  A psychologist or other mental health professional could also be a domestic violence expert, but this is rare.  The Saunders’ study found that a mental health degree and the standard and required training for evaluators do not provide the level of expertise needed for domestic violence cases.
Many protective mothers have complained that their attorneys refuse to present evidence of abuse.  The new medical evidence will make it critical that attorneys not only present the father’s history of abuse, but make sure the court is aware of the enormous medical harm to children to witnessing domestic violence.  They must also ask the courts for the protection that is needed including protective orders and supervised visitation.  One of the findings in the Saunders’ study is that courts did not limit alleged abusers to supervised visitation as often as needed.  
The Medical Research Requires Fundamental Reforms in the Custody Courts
The enormity of the harm to children caused by witnessing domestic violence, child abuse and other childhood trauma makes it critical that society find ways to protect children and minimize their exposure to risk.  Now that the research is available that demonstrates the cumulative impact of adversity on children, our method of resolving custody and visitation must assure everything possible is done to minimize this risk.  
Our system of jurisprudence is based on the belief that if both parties present their best case the truth will usually prevail.  This is particularly problematic when one party has significantly more resources.  This frequently happens in domestic violence cases because abusers use control tactics that include control of financial resources.  They have also developed tactics designed to bankrupt their victims by using aggressive and often questionable legal strategies.  In many cases, protective mothers are left unrepresented by the time the case comes to trial.  This means the results are often determined more by the relative wealth of the parties than the merits of the case.  This can no longer be tolerable when the result often takes years off children’s lives.  The Batterer as Parent recommends that the abuser pay all expenses including legal fees made necessary by his abusive behavior.  Judge Mike Brigner has written that courts have the authority to level the playing field but rarely make use of this authority.  At the very least courts will have to become more aware of economic abuse and create effective remedies so that victims can present their side of the story in a meaningful way.  
Lawyers are ethically required to zealously advocate for their clients within the law even when this causes a miscarriage of justice.  In the case of a criminal defense attorney they are required to use defense strategies that sometimes result in guilty criminals going free.  In some cases they use their freedom to kill or hurt new victims.  Nevertheless the potential harm would be speculative and the greater good of maintaining our system of jurisprudence takes precedence.  Can it be ethical to use the same legal principles to help an abuser gain custody or unprotected visitation which is likely to seriously harm the health and well-being of a specific child victim?
It seems to me that the harm to children’s health requires that the legal and mental health community take a fresh look at the ethics involved in practices that are likely to hurt children.  This is particularly true of the lawyers and psychologists who are part of the cottage industry that makes its money supporting abusive fathers.  Can it be ethical given the new research for mental health professionals to provide reports and give testimony based on personal beliefs and theories unsupported by scientific research that are likely to harm the children in the case?  Similarly can attorneys for batterers ethically use strategies deliberately designed to mislead or confuse the court in ways that place children in jeopardy?  Can these professionals remain ignorant of current research so that they are unqualified to handle the case but can truthfully say they were unaware of the danger they helped create?  Another way of asking this is should the legal system reconsider how custody and visitation are determined in cases involving domestic violence and child abuse in order to make sure the children’s health is protected?
At a minimum, it seems to me the courts must create a screening system so a professional with genuine domestic violence expertise reviews each case and sends all domestic violence cases to a special part or section that specializes in these critical and difficult cases.  This will be important because a lot of common custody practices particularly seeking to require the parents to cooperate are inappropriate in domestic violence cases.  Children will benefit if the professionals responding to the case understand the serious health and safety risks the children are probably facing.
The judges presiding over these cases would have special training about domestic violence and understand the risks involved.  They would be used to looking to the specialized body of domestic violence research to inform their decisions.  Lawyers, GALs and evaluators (if needed) would all be required to have the necessary training.  The focus would be on the safety of the children as it should be.  
The initial inquiry would be limited to the validity of allegations concerning domestic violence and child abuse.  This avoids distractions from other less important issues that abusers often use as part of their tactics to avoid responsibility for their actions.  If allegations of domestic violence or child abuse are confirmed the court will protect the children and encourage actions that would limit the long-term health impact.
The first priority is to make sure the children are never again exposed to these traumatic events.  This is especially important because of the increased harm from cumulative adversity.  Professionals trained in domestic violence dynamics will understand the danger for children to witness the offender’s abuse of future partners if the children are not protected.  
There are responses and treatment children can receive that would reduce the harm caused by exposure to domestic violence and other trauma.  In some cases they might receive anti-inflammatories to reduce negative consequences.  Their sleep patterns can be monitored so they can be helped to get the sleep they need.  Mental health therapy can be used to cope with the trauma and respond in more healthy ways.  The protective parent is more likely to encourage the needed treatment, make it safe for the children to discuss their experiences and help them heal.  In the present custody system, we often have arrangements that give the abuser control or veto power over treatment and other issues which are used to prevent or discourage the necessary treatment.  This is another example where the “rights” of the parent or the minimization of abuse are harmful to the long-term health of the children.
Given the enormous risks to children’s health, it is important that children have access to any treatment that could prevent serious health consequences years later.  This treatment is available today and could help protect children’s health.  Other treatment may be needed as the child gets older and new symptoms develop as a result of earlier traumas.  Many of the treatments will only be effective if the child is no longer exposed to domestic violence and abuse and is made to feel safe.  This is another reason courts should be giving custody to the safer parent.  It should be considered malpractice for any court professional to make recommendations that undermine a child’s chance to heal.
Conclusion
What happens if a court mistakenly believes a mother’s allegations about the father’s abuse and limits the children’s contact with the father?  The children would be denied some good times with their dad and be denied opportunities to learn from him.  This would be wrong and harmful and I have no desire to minimize the negative impact on the children.  What happens if the court disbelieves the mother’s true complaints and provides the abusive father with unprotected visitation or even custody?  This is an unmitigated catastrophe that substantially increases the children’s risk of illnesses and injuries throughout their lives and likely result in a shorter life.  Certainly a less pleasant and productive life.  In the rare event that the mother made a false complaint, the missed time can be made up and there is no reason to expect any long-term consequences.  When the court fails to protect a child from an abuser, it is possible it can later realize its mistake and modify the custody arrangement.  One problem, however, is that in my experience courts that rule against protective mothers are often extremely defensive about their mistakes and rarely correct them.  Furthermore the abusive father is likely to use the control given him by the court to undermine the mother’s relationship with the children.  It is possible, the children could be returned to the mother and receive treatment to ameliorate the harm caused by the court decisions, but in many cases much of the damage will be permanent.
Courts routinely consider the relative risks of being wrong in most other types of cases, but rarely in domestic violence custody cases.  Indeed most evaluation reports and court decisions that I have read fail to weigh the relative risks and benefits of a given action based on scientific research.  
The Saunders’ study from the U. S. Department of Justice recommended that evaluators and other court professionals receive training about the impact of domestic violence on children.  Most of the court professionals who participated in the study claimed to have this research.  In the case of the evaluators, however, this was not supported by their response to vignettes presented as part of the study.  I suspect that when the professionals claimed they had this information, they were referring to the earlier research that witnessing domestic violence makes children more likely to engage in harmful behaviors when older.  The frequency that courts minimize the significance of domestic violence strongly supports this conclusion.
The Saunders’ study also recommended that court professionals get training in screening for domestic violence.  The serious consequences when courts fail to recognize true allegations of abuse confirm why this is so important.  So does the finding that the courts are not imposing supervised visitation on alleged abusers as often as they should.  Significantly, court professionals without adequate training tend to believe the myth that mothers frequently make false allegations of abuse.  This means that in many cases the lack of training or bias of court professionals causes decisions that pose enormous risks for children.  Even if the judge knows that mothers rarely make false complaints, the court might be relying on an evaluator or GAL making a recommendation based on this myth.
Now that we know the enormous lifetime medical harm caused to children when they are exposed to domestic violence and child abuse, what will we do to minimize the potential harm?  I would like to ask judges and court administrators if they agree this medical research requires a fundamental review of practices used to respond to abuse allegations.  In order to better protect children, would the courts be willing to create meetings with leading researchers and domestic violence advocates to explore the best ways to protect our children.  THE LOSS OF ONE YEAR FROM ONE CHILD’S LIFE IS ONE YEAR TOO MANY.

DV CASES REQUIRE DV EXPERTS: DUH!

By Barry Goldstein

 I can understand why the court system did not immediately seek to learn from and rely on domestic violence experts when domestic violence first became a public issue in the mid to late 1970s. There was no research available and few domestic violence advocates. A popular assumption and misconception was that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led some people, including court professionals to treat mental health professionals as if they were the experts in domestic violence.

 I do not understand how courts still do not require the use of domestic violence experts in cases involving allegations or evidence of domestic violence. We now have a substantial body of specialized domestic violence research that establishes the courts are getting a very high percentage of domestic violence custody cases wrong and often spectacularly wrong because of the standard use of flawed practices. These mistaken practices cause even good judges to regularly make bad decisions. Although mothers involved in contested custody cases make deliberately false allegations only one or two percent of the time, fathers receive custody between 70 and 83% of the time. In other words a large majority of abusers who seek custody are successful.

 The highest priority in deciding custody has to be the child’s safety as without safety nothing else matters. In a domestic violence case, this should require a safety or risk assessment. Instead, custody courts regularly order evaluations. Not only do these evaluations fail to conduct risk assessments but few evaluators even know what behaviors are associated with higher levels of lethality. We virtually never see an evaluation report in which these vital issues are even discussed and when evaluators are asked about abusive behaviors they are rarely aware of the risks demonstrated. Ignorant of fundamental safety issues, evaluators instead focus on less important issues.

 Evaluators are generally trained in psychology of psychiatry, but not domestic violence. Even if they have received a few hours of training in domestic violence and have been willing to listen (many evaluators are hostile to this training), at most it gives them some general awareness of the subject, but not expertise. That is why evaluators rarely provide the courts with information about lethality assessments, domestic violence dynamics or current scientific research. It is why they don’t know what to look for to recognize domestic violence and often mistakenly assume the danger is diminished with the end of the relationship. Especially important is their failure to understand and explain to the courts the harm of domestic violence to children.

 Caseworkers at child protective agencies are often social workers and usually have more special training about domestic violence than the psychologists who serve as evaluators. Many communities have developed practices in which child protective agencies and domestic violence agencies work together on domestic violence cases. They cross-train each other’s staffs and when a possible domestic violence case needs to be investigated the caseworkers will consult domestic violence advocates and sometimes take them to the home. This practice has been shown to benefit children because it gives caseworkers a better chance to recognize when the father has engaged in domestic violence tactics and therefore create arrangements that work best for children. This should be considered best practices.

 Ethical practices for psychologists and psychiatrists require these professionals to consult with experts in areas they don’t have expertise in that impact cases they are working on. Unfortunately these ethical considerations are aspirational so the routine failure of evaluators to use these ethical practices does not result in disciplinary proceedings. They instead result in ruining children’s lives when evaluators fail to recognize domestic violence and protect children from very real dangers. THE BATTERER AS PARENT, which is one of the leading authorities on domestic violence and custody, makes a similar recommendation. Clearly a practice that works so well for caseworkers who generally have more training is even more important for evaluators to use.


Expertise in Safety Issues

 Fundamental to the work of domestic violence advocates is the ability to engage in safety planning with their clients. In order to do this, they need to be able to assess the level of danger presented by the client’s abuser. We can never know that an abuser will not kill or seriously injure his partner. This is particularly true when she has left him because75% of men who kill their partners do so after she has left. There are, however, many behaviors domestic violence experts look closely at because they have been shown to demonstrate a significantly higher level of danger. Among the factors experts look for in assessing lethality are choking, strangling or grabbing her throat, hitting a woman while pregnant, rape or attempted rape, hurting pets, threatening suicide, homicide or kidnapping, substance abuse, mental illness, refusal to obey laws or court orders, availability of guns and a belief she has no right to leave.

 With rare exceptions, evaluators and other court professionals do not have this fundamental information and do not apply it to the cases they are working on. When we review cases in which courts disbelieved the mothers’ allegations of domestic violence and gave custody to alleged abusers, the evaluators never discussed safety and lethality issues. It is possible, although rare, that a mother could make false claims that some of these safety factors apply to the case. In such cases the evaluator could explain the potential risk if the allegations were true and why the evaluator does not believe the accusation. Instead the evaluator and the court never discuss these vital issues because no one making the decision or helping the court make the decision have the knowledge or training to recognize these safety factors. In other words the unqualified professionals routinely make recommendations affecting the safety of children without ever understanding or considering the risk. Malpractice is the most, generous term I can think of to describe this dereliction of duty. Only a broken system can continue to rely on evaluators and other court professionals in domestic violence cases who have virtually no training or understanding of safety and lethality issues just because there is a long history of making this mistake.


Recognizing Domestic Violence

 Domestic violence abusers present many unacceptable risks to children, but the courts cannot protect children if they are unable to recognize the abuser’s pattern of domestic violence tactics. Every year 58,000 children are forced into custody or unprotected visitation with dangerous abusers. Judges make these dangerous mistakes because they are relying on court professionals who do not know how to recognize domestic violence or minimize its significance. They often compound the harm to children by denying them normal access to their mothers by punishing mothers for making abuse allegations the courts assume are false because court professionals failed to understand the significance of the available evidence.

 When we seek help with a medical problem, doctors often seek to rule out various possible causes in order to make a diagnosis. Domestic violence experts understand that context is important in recognizing domestic violence, but the psychologists and psychiatrists relied on by the courts are not experts in domestic violence and routinely seek to rule out allegations of domestic violence based upon out of context information that often is not probative.

 We have often seen inadequately trained court professionals dismiss valid domestic violence allegations because the mother returned to her abuser, sought a protective order, but failed to follow-through, did not have medical or police records. All of these are common behaviors of battered women for safety and other valid reasons. Another common mistake is for court professionals to observe children interact with their father and when the children do not show fear the professional assumes the father cannot possibly be abusive. The children understand that the father would never hurt them in front of witnesses, particularly someone he is trying to impress. In fact they could be punished later if they showed fear. These are all very common situations so if evaluators or other unqualified court professionals discredit allegations based on non-probative information like this, many valid domestic violence complaints will be denied. This is exactly what is happening in our custody courts.

 At the same time court professionals are mistakenly discrediting abuse allegations for the wrong reasons, they are missing important evidence that supports the complaints. Often this is because the professionals are only looking for evidence of physical abuse. When judges lament the difficulty of deciding a he-said-she-said case, they are really referencing their failure to recognize the significance of many pieces of evidence that would have made the case easy to understand. The failure of most court professionals to understand domestic violence dynamics is an important contributor to their inability to recognize valid allegations of abuse.

 Domestic violence are tactics men use to maintain power and control over their partners. With a few exceptions, the abusers don’t abuse her in order to gain pleasure from her suffering. They also don’t abuse because they are out of control or she “pushed his buttons.” In many custody cases he “only” hit her once or twice because that was sufficient for his purpose. He can then use the same tone of voice, body language or other reference to his assault and she will be coerced to do what he wants. Unqualified professionals often take the fact he has not hit her in a long time to mean he is now safe. Most abuser tactics are neither physical nor illegal. They are behaviors designed to coerce, intimidate and control their victims. These include tactics to isolate her from friends and family, monitor her behavior, control the finances, and intimidate her such as by threats to go after custody if she leaves him. Emotional and psychological abuse are also part of his pattern of controlling behaviors.

 Many court professionals have been misled to believe contested custody cases are “high conflict” cases. They understand this to mean the parties are angry with each other and act out in ways that hurt the children. The actual research demonstrates a large majority of contested cases are actually domestic violence cases. They can’t be settled because the father is willing to hurt the children in order to regain control. Mothers are unwilling to agree to arrangements that harm their children, but are often blamed for not cooperating. We repeatedly see fathers who had little involvement with the children during the relationship suddenly seeking custody when she leaves him as a tactic to force her to return or punish her for leaving. The most dangerous abusers are the ones who believe she has no right to leave. This is why 75% of men who kill their partners do so after she has left. These are the fathers we see in contested custody cases. This is why over the last few years we have documented at least two hundred children murdered by fathers involved in contested custody cases often with the unwitting assistance of the courts. Too often court professionals are so delighted that a father wants to be involved with his children that the court professionals never look at his motivation. In the notorious Shockome case, the father openly admitted telling his wife that he brought her here from Russia so she has no right to leave. He said she would never get away from him. He told the court his motivation for seeking to take the children from their mother, but the judge and evaluator never considered this crucial evidence because they failed to understand its significance. Repeatedly we see cases in which the court removes children from their safe mothers who have been the children’s primary attachment figures and give custody to the fathers in the belief the father would be more likely to promote the mother’s relationship with the children. As soon as the father gains control he destroys that relationship. These mistakes are completely avoidable if court professionals consider the fathers’ motivation.


The Mistake of Minimizing Domestic Violence

 While evaluators and other court professionals are generally aware that domestic violence is harmful to children, many place less importance on this issue than it deserves because they are unfamiliar with the research that demonstrates the extent of the harm to children. The problem is compounded because most of these professionals have repeatedly heard only the first half of an important sentence. They have heard children do better with both parents in their lives, but missed the rest of the sentence which is unless one of the parents is abusive.

 Fathers who commit domestic violence are significantly more likely to also directly abuse the children. Even if he doesn’t, witnessing domestic violence interferes with children’s ability to reach their developmental milestones and makes them more likely to engage in a wide range of harmful behaviors that make it less likely for children to reach their potential. We often see court professionals pay more attention to the anger and emotion of the mother, “friendly parent” issues, superior income and resources and other similar issues that have not been shown to have long-term effects on children instead of the father’s history of abuse. This mistake is made because of the lack of domestic violence understanding on the part of many of the evaluators and other court professionals relied on by judges.


The Most Common “Mythtake” Custody Courts Make

 The new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that evaluators and other court professionals with inadequate domestic violence training were more likely to believe the myth that mothers frequently make false allegations of abuse and as a result make recommendations that work poorly for children. Deliberate false allegations by mothers occurs only one or two percent of the time, but the myth which is encouraged by abuser rights groups and the professionals they support contribute to frequent mistakes by custody courts that dismiss valid complaints about domestic violence and child abuse. Many of the deeply flawed practices such as parental alienation, “friendly parent” and pathologizing mothers are based on this myth. The myth also encourages gender bias and confirmation bias. This is why experts who know the truth and have the training they need are able to make decisions that work best for children.

 The Justice Department study also determined that recommendations by social workers and lawyers work better for children than ones by psychologists and psychiatrists. This conclusion goes against conventional wisdom and standard custody court assumptions that professionals with more formal education would be more qualified. The problem is that psychologists and psychiatrists were less likely to use a holistic approach (thus missing the context of domestic violence issues) and more often rely on psychological tests that were not made for the population usually seen in custody cases. These tests encourage the professionals to focus on issues far less important than domestic violence while contributing nothing towards recognizing domestic violence.

 The study also found that evaluators tended to pay much too much attention to mothers’ anger and emotions in comparison to how this impacts their parenting ability. This tended to support the use of gender stereotypes and biases. Numerous court sponsored gender bias committees have found widespread gender bias including the frequent practice of blaming mothers for the actions of their abusers. This is exactly what happens when court professionals blame mothers for their anger and emotion instead of fathers for their continuing abuse that causes this anger and emotion.

 Especially significant is the DOJ finding that evaluators working for the court or the county make recommendations that work better for children than those of evaluators in private practice. Protective mothers have long complained about a cottage industry of evaluators and GALs that favor abusive fathers. This research confirms the mothers’ complaints and undermines the common court assumption that evaluators and GALs are neutral. The study demonstrates those professionals paid for each case separately do an inferior job. Most contested custody cases are really domestic violence cases and abusive fathers use economic abuse and control as part of their pattern of abuse. This means they control the family finances so court professionals, like Richard Gardner have figured out the best way to make a large income is to support approaches that favor abusers. Thus we often see attorneys representing abusive fathers and GALs who tend to support fathers recommending “fathers’ rights” evaluators. This gives even good judges little chance to recognize the domestic violence in the case.


Ignorance Is Not Neutral: It Favors Abusers

 We sometimes hear about a judge refusing to participate in domestic violence training or read current research on the grounds that such information would interfere with his neutrality. More frequently judges refuse to listen to testimony from a domestic violence expert because the judge has been on the bench for many years and so doesn’t need to learn more about domestic violence. Even more commonly we see judges and other court professionals treat domestic violence advocates as biased partisans because “they are always against domestic violence.”

This lack of critical thinking contributes to the widespread mishandling of domestic violence custody cases. Abuser rights groups often argue that when they come to court mothers and fathers should be treated the same. Judges often accept and support such statements because they superficially sound reasonable and never consider the unstated part of the statement “regardless of past parenting.” If courts are working for the best interests of the children, they need to consider that children usually need one parent more than the other. Their primary attachment figure, whether mother or father is far more important to their well- being than the other parent. A non-abusive parent is far more valuable to a child than an abusive one. And yet we often hear judges uncritically repeating the belief that the child needs both parents equally.

 Many judges wrongly assume that the mental health professionals working in custody cases have the needed domestic violence expertise or that the couple of hours of required training often obtained by court professionals is sufficient. Many professionals and others do not look at domestic violence as a subject for which specialized training and knowledge is needed. Most people have had some experience with domestic violence as a victim, offender or knowing or working with someone who is. This does not tell them if their experience was typical or unusual and fails to provide context or an understanding of domestic violence dynamics or current scientific research.

 The custody court system has been extremely defensive in refusing to adopt needed reforms in the face of multiple confirmations from many varied sources that the present practices are working poorly for the children overseen by custody courts. The Department of Justice study demonstrates the courts frequently use experts without adequate training in domestic violence and this results in the use of myths instead of current scientific research and outcomes that hurt children. In comparision, communities in which child protective agencies consult with domestic violence advocates the resulting arrangements benefit children.

 The evaluators who testify in court cannot tell us how their practices and approaches to domestic violence have worked out for the children they have seen because they are making recommendations based on their personal beliefs and biases instead of current scientific research that they are often unfamiliar with. When the evaluators are challenged for their ignorance about this research, courts rarely use this to disqualify or discredit their recommendations.

 The research that establishes that 98% of mothers’ domestic violence allegations are honest, but 70-83% of the time the alleged abuser wins custody does not tell us a specific case was wrongly decided, but does demonstrate a large majority of these cases are wrongly decided. Even worse are the sexual abuse cases in which 85% of the cases result in custody for the alleged offender. These cases are more difficult because the mothers usually did not witness the alleged sexual abuse. Some of the concerns could be caused by a child’s sexualized behavior or complaints that might be caused by boundary violations rather than molestation. Nevertheless, the outcomes establish that the courts often send children to live with sexual abusers and punish mothers for good faith reports. In many of these cases the mother was the primary attachment figure so should have received custody even if no sexual abuse occurred.

 In many cases in which the custody court decided the father was safe he is later convicted of domestic violence, sexual abuse or kills the mother and/or children. We also see alleged abusers destroy the relationships between mothers and children once they gain control of the children which confirms their purpose in seeking custody was to punish the mother for leaving. The reports of the Courageous Kids who were children sent by custody courts to live with alleged abusers and now describing their experiences after aging out of the court order further confirms the frequency of courts giving custody to abusers.

 A chapter written by sociologists Sharon Araji and Rebecca Bosek in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY provides multiple additional confirmations of the frequent mistakes in domestic violence custody cases. They interviewed protective mothers in Alaska and then compared the responses to similar studies in four other states. They found substantial complaints by the mothers of mistreatment by the courts and failure to protect their children. The complaints were supported by the results in the five studies and in a later study by Voices of Women that reviewed reports from mothers in New York City Family Court. These were not random samples and courts might argue the mothers were not objective. Drs. Araji and Bosek covered this potential concern by comparing the mothers’ complaints with other scientific research. The research confirmed what the mothers were saying. This is significant because it confirms the research that demonstrates mothers’ complaints are reliable and confirms the problems cited concerning the courts’ response to domestic violence cases are valid.

 Domestic violence advocates constitute the only profession that works full time on domestic violence issues. The widespread mistake by many court professionals to treat them as if they are biased or partisan is based upon a lack of critical thinking. If courts needed to respond to a rash of arson fires, they would seek help from the experts which would be the firefighting community. The firefighters would be treated as the experts they are even if they had no advanced degrees or even a college degree. Through training and experience firefighters know best how to recognize arson, prevent and respond to arson. There are three important differences between arson and domestic violence crimes. One is that arson has always been a crime so there is no history of society tolerating or encouraging arson. If a landlord were particularly cruel or dishonest no one would say the arsonist was justified in burning down his building. The second is that most firefighters are men and in our still sexist society people pay more attention to what men say and treat it as having more value. Finally there are no arsonist’s rights groups that can lobby to minimize or justify their crimes.

 There was a time when society had not reached a consensus about domestic violence, but those days are past. Every state has made a variety of domestic violence acts crimes and every state has ordered courts to take domestic violence seriously in custody cases based on research that establishes the harm to children. Domestic violence advocates understand the dynamics of intimate partner abuse and how to recognize the pattern of abuse. This is an area that the court professionals repeatedly miss because they don’t have the training and often don’t even realize they are missing crucial information. Advocates have no desire or reason to want false allegations to succeed and in fact this would make their job more difficult. Their goal is to keep victims safe and prevent domestic violence. This coincides with the laws and policies in every state. Statements and practices that minimize the role of domestic violence advocates or treat them as if they were partisan should be viewed not just as wrong, but a demonstration of gender bias.

 Stare decisis is a fundamental legal principle created to prevent the need to relitigate the same issues over and over. We have every reason to respect this principle, but it has been misused in domestic violence cases. The assumption is that once a court makes a decision (after any appeals), we must assume the decision is correct. Unfortunately the assumption that the decisions were correct has discouraged court officials from investigating how their decisions have worked out. Judge Sol Gothard wrote, “If the court system had commissioned research to determine how the present practices are working, the result would be the information contained in Domestic Violence, Abuse and Child Custody. The research findings demonstrate court practices are outdated and their confidence misplaced.” In reality, these decisions are predictions that children would do better living with one parent than the other. It is appropriate for courts to study how these predictions have worked out just as it is proper to reconsider past decisions based on new research and information.

 When allegations or evidence of domestic violence are part of a custody case, a court must consider current scientific research about domestic violence and learn from the knowledge and experience of domestic violence advocates or other experts. Hopefully it won’t be long until we are shaking our heads and wondering how it could have taken so long to appreciate what should be obvious. A custody court that refuses to listen to a domestic violence expert is demonstrating its bias and committing malpractice. The failure to consider domestic violence research and expertise should be grounds for reversal. The flawed and outdated practices that have ruined too many children’s lives have already been tolerated for far too long.