Using Saunders’ Report to Protect Children
The Saunders’ study establishes that the custody courts are getting an intolerably high percentage of domestic violence custody cases wrong and this will continue as long as the courts rely on evaluators and other professionals who do not have the specific domestic violence training they need and refuse to use the expertise that could be provided by domestic violence advocates and experts.
It is clear that the custody courts need to adopt the reforms that will make sure children are protected, but there are significant obstacles to achieving the needed reforms. The worst evaluators and other professionals who are part of the cottage industry supporting abusive fathers will fight to maintain their lucrative practices even as they earn their money at the expense of the safety and future of children they are supposed to protect. The abusers will continue to seek to manipulate the court in order to continue using the custody tactic to maintain what they believe is their right to control their partners even after they leave. Judges and other administrators will be reluctant to acknowledge that their long established practices routinely place children in jeopardy. Dan Saunders has done a substantial public service in providing meticulous research that should explode the complacency of court professionals who would like to believe the only problem is the complaints by protective mothers and their supporters. Now it is our job to use this research to change the outcomes of cases and reform a system that is failing to protect children.
Presenting a Case with the Help of the Saunders’ Study
The Saunders’ study highlighted an important point that may be obvious to some, but certainly is not recognized by the professionals who run the custody courts. Domestic violence advocates are the group most knowledgeable about the specific topics needed to understand domestic violence custody cases and should be viewed as the experts on domestic violence. There are domestic violence experts who are psychologists ( i.e. Mo Therese Hannah, Joy Silberg), lawyers (i.e. Joan Zorza, Lynn Hecht Schafran) and judges (i.e. Mike Brigner, Sol Gothard), but in each case it is not because of their educational degrees or profession. They learned about domestic violence separate from their profession which made them so much more effective. Domestic violence advocates work full time on domestic violence issues. They have to understand how to recognize domestic violence and what behaviors are associated with higher lethality because one of the most important parts of their jobs is to work with clients to create safety plans.
Dr. Saunders intimated that the percentage of other professionals with the needed training is probably overstated because those who participated in the study probably have more of an interest in domestic violence than other professionals who chose not to participate. Advocates have chosen a career in domestic violence. Obviously they have not done so for financial reasons as psychologists and lawyers who are part of the cottage industry supporting abusers have. In my experience, advocates passionately care about their work to end domestic violence. Dr. Mo Hannah and I had the privilege of training advocates working for the National Domestic Violence Hotline about custody issues. It was a wonderful experience because the advocates understood the domestic violence part so we could have a really high level discussion about how courts respond to domestic violence and how they could best help victims calling for assistance.
Court professionals would benefit from learning from advocates, but so would protective mothers. If possible, protective mothers should start working with an advocate before seeking an attorney or other professional assistance. Some domestic violence agencies have legal programs, but even when they don’t, there may be relationships with attorneys who would be supportive of survivors. The advocates can help their clients put together the pattern of coercive and controlling behaviors by their abuser that will make it easier for court professionals to recognize that he is a domestic violence abuser. They can also identify any behaviors that demonstrate a higher risk of lethality or other danger. Recognizing this information is important because after the initial court documents are filed, the survivor may not be permitted to include additional information later in the proceeding or this information may be discredited because it was not raised initially.
Advocates can also come to court with their clients. They cannot speak on their behalf, but they can provide needed emotional support, make the judge and other court professionals understand it is a domestic violence case and often hear things in the court room that the client may miss in the emotion of being in court with their abuser. Occasionally I hear complaints from mothers that the local dv agency was not helpful. There are some agencies that still have not made custody issues a priority and any profession includes some individuals who are less helpful. When we started the Battered Mothers Custody Conference, the domestic violence movement was not as supportive as they are now. For mothers who have had a bad experience, I would encourage them to try again or try another agency. In my experience the local shelter is their most important ally.
In my opinion, domestic violence advocates are the answer to many of the problems exposed in the Saunders’ study. Evaluators and other court professionals do not have the training in domestic violence necessary to understand the cases and protect the children. We often see lawyers listening to lawyers and psychologists to psychologists. This denies them the multi-disciplinary approach that is needed. Many of the “domestic violence” trainings include substantial misinformation such as information about alienation and “high conflict” cases. The Saunders’ report established that advocates know the most about the specific domestic violence topics court professionals need so it would make sense for advocates to play a major role in training court professionals and participating in discussions for the reform of the system. Until these necessary reforms are accomplished, advocates can and should serve as expert witnesses and consultants so that the vital information is available to courts making life and death decisions.
Custody courts have often failed to use critical thinking when deciding which professionals to hear as expert witnesses. They have placed most attention on the post-graduate degrees of psychologists and other mental health professionals. This would make the witness an expert in psychology or social work, but not in domestic violence. There are certainly cases in which this information is useful to the court, but in domestic violence cases, domestic violence expertise is the most important information needed. The Saunders’ report established that court professionals often mistake their limited training in domestic violence as providing them with the necessary understanding of domestic violence. This has led them to refuse to hear testimony from the genuine experts with tragic consequences for the children.
Domestic violence advocates can consult with evaluators and testify about domestic violence issues. This will provide the court with information it vitally needs. Mothers who cannot afford to pay for an expert witness would have the ability to provide the court with this information. Although the evidentiary laws vary by state, they generally provide that someone who has substantially more knowledge of a relevant topic than the general public based on education, training or experience is qualified to be an expert witness. Accordingly it would be common for a mechanic who did not graduate high school would qualify as an expert witness concerning the repair and workings of an automobile. Domestic Violence advocates work full time on these issues, receive extensive training and often train others in the community. By any fair consideration they easily qualify as an expert witness. The Greenbook Initiative includes the practice of child protective agencies working with domestic violence agencies in response to abuse reports that may include domestic violence. This practice has proven successful because it helps the caseworker recognize the domestic violence aspects of the case and create arrangements that benefit children. Particularly until the custody courts create the needed reforms in response to the Saunders’ study, reliance on advocates’ expertise will be the best and most practical way to protect children.
I believe one of the problems with the present custody courts is that the judges and other professionals have heard misinformation from mental health professionals and others throughout their careers. As court professionals hear accurate information from advocates, I believe this will improve the knowledge of the professionals and at least help them understand there is another way to look at the same information. Hopefully this will encourage professionals to start looking for patterns and to recognize the significance of evidence they previously ignored. This will actually make their jobs easier because they will find evidence that confirms the claims of one party in cases that otherwise would be viewed as a he-says-she-says case.
Many protective mothers have complained about their attorneys and often have to change attorneys or represent themselves after an attorney drains her resources and undermines the case. The Saunders’ study confirmed the problem as private attorneys were the least likely professionals to have the necessary domestic violence training. We often see abusers and other court attorneys seek to use the fact that the mother has had a series of attorneys to suggest there is something wrong or uncooperative about her when it is actually a reflection of the difficulty in finding an attorney willing to present a strong domestic violence case.
With the availability of the Saunders’ study, protective mothers can discuss at the initial meeting with a prospective attorney that there is new research from the U.S. Department of Justice that most court professionals do not have the necessary domestic violence training and this frequently causes mistakes that place children at risk. Accordingly, she wants to make sure the attorney is open to presenting a strong case based on the father’s pattern of abuse and is willing to advise the court that the standard court practices are working poorly for children.
The attorney will offer a retainer agreement that will specify the payments the attorney is to receive. This is what is important to the attorney about the attorney-client relationship. The mother should request that the agreement also states that the client has expressed her concern that the attorney will advise the court of the current scientific research that present practices in domestic violence cases are working poorly for children and that the attorney will present the court with the available evidence of domestic violence. If the attorney objects to this kind of language it is better to know this at the start of the case instead of after the attorney has received substantial resources and may have undermined the case. I am not as concerned with the exact language as long as it expresses the general information and the attorney does not seek to include language nullifying the intent such as saying that failure to present the information should not affect payment of legal fees.
The most frequent question I receive is where to find an attorney who understands domestic violence. The Saunders’ study confirmed that among private attorneys, the needed training is rare. This does not need to be a disqualification if the attorney is willing to consult with experts and learn the material. I have had some cases in which a protective mother wanted her attorney to read Domestic Violence, Abuse and Child Custody or some of my articles. Battered mothers may now want their attorneys to read the Saunders’ report or at least the executive summary. I have written a book with Elizabeth Liu to train lawyers how to present domestic violence cases. Some protective mothers will want their attorneys to read this book when it is published, probably the end of this year. Some attorneys have asked to be paid at their hourly rate for the time it takes to read the material. This is general information attorneys should be familiar with in order to competently represent their clients in domestic violence cases. They will benefit by being better able to represent other clients from having read this kind of material. Obviously they are entitled to be compensated for reading material specifically related to the case and I can see some compensation because the client needs them to learn the information quickly. Again it is best to resolve this before substantial sums are invested in the attorney. In some cases and some locations, a client may have few options for legal representation, but the best time to determine these issues is at the start of the case.
In Domestic Violence, Abuse and Child Custody, we provided substantial research to demonstrate the problems with using evaluators in domestic violence cases. Chapters by Robin Yeamans, Judge Marjorie Fields and Joan Zorza demonstrated the problems unqualified evaluators are causing. The Saunders’ study confirmed the problem and demonstrated how the inadequate training, biases and belief in the myth that women frequently make false allegations has contributed to tragic outcomes. Indeed, the heart of Dr. Saunders’ research concerned the role of evaluators in domestic violence cases.
Many judges routinely appoint psychologists or other mental health professionals as evaluators in domestic violence cases. This practice was developed at a time when many assumed domestic violence was a mental health issue. We now understand men abuse women because of their belief system and sense of entitlement that they should have the right to control their partners and make the major decisions in the relationship. Dr. Saunders specifically found that abusers often show no mental health problems in the psychological tests they take. This is because the beliefs that lead to domestic violence are all too normal in this and many other societies.
At the very least judges should take a fresh look at standard practices based on the Saunders’ study and other research. They should be asked to make any decision on the use of an evaluator based on the specific facts and circumstances of the case. If there is no significant evidence that one of the parties has a mental health issue that would interfere with parenting ability, something more than one parent calling the other crazy, what expertise could a mental health professional bring to the case? If there is a real mental health issue, how does the court receive the domestic violence assistance that is critical? The Saunders’ study establishes that the usual required domestic violence training that most evaluators and other court professionals receive does not provide the needed expertise. Either the court needs to appoint an evaluator with an unusual high level of domestic violence competence, such as someone who has worked in a domestic violence program or require the evaluator to consult with a domestic violence advocate.
The Saunders’ report established that social workers tend to do a better job on domestic violence custody cases than psychologists. The use of a social worker is likely to result in lower costs, which means more assets available for the children and a better understanding of the critical domestic violence issues in the case. It is also likely that the appointment of a social worker will save time.
If the court insists on appointing a psychologist as evaluator, there should be a discussion of the use of psychological tests. The generalized tests like MMPI that are most commonly used were not made for the populations seen in custody courts. They provide virtually no information about domestic violence issues. They are based upon probability so under the best of circumstances the results apply to the parties in the case only 55-65% of the time and in stressful contested cases or domestic violence cases the results are even less reliable. Far more useful in domestic violence cases are tests designed for domestic violence cases such as the Campbell Danger Assessment.
The Saunders’ study supports the recommendations of leading experts like Lundy Bancroft and Peter Jaffe that in domestic violence cases in which the victim is a safe parent, the outcome that works best for children is custody for the safe or safer parent and supervised visitation, at least initially for the abusive parent. Accordingly, instead of wasting substantial time and money on evaluations, GALs and numerous court appearances, best practices would be to schedule an early evidentiary hearing limited to the domestic violence allegations. This hearing will generally not take long because it is limited to domestic violence issues. This avoids common distractions that waste time and seek to take the focus away from the safety of children. One of the fundamental findings that is an underpinning of the Saunders’ study is that protective mothers rarely make deliberately false allegations. This means that if the court provides a fair hearing, cases that often take many months or years can be resolved in a few hours or less and children will quickly learn who they will be living with.
If the court appoints an unqualified evaluator despite your best efforts to avoid this mistake, the Saunders’ study provides many good ways to attack a harmful report. The earlier objections should strengthen the mother’s position to challenge the report as she cannot be accused of complaining about the recommendations just because they are unfavorable. Instead she is in a position to tell the court that the evaluator made precisely the mistakes she sought to avoid as demonstrated by Dr. Saunders.
The first area for challenging an evaluator during cross-examination would be qualifications especially domestic violence training. Is the evaluator familiar with the research found in the Department of Justice study by Dr. Daniel Saunders, The Batterer as Parent and Domestic Violence, Abuse and Child Custody? The mother or her attorney could have referred to this current scientific research during the course of the evaluation. This will make the evaluator look worse for failing to review this important information. If the evaluator did review this information it will provide a gold mine of material to ask the evaluator about. Recommendations adverse to the mother’s position are likely to demonstrate the evaluator did not understand the research or failed to apply it properly.
Ask the evaluator about training concerning the specific topics Dr. Saunders believes is necessary to be qualified to work on domestic violence cases. If the evaluator claims general dv training or satisfying the training requirements of the state, compare this with the findings in the Saunders’ study that satisfying these requirements do not make someone an expert in domestic violence, and fail to prevent recommendations that place children at risk.
Has the evaluator been trained in how to screen for domestic violence? Where did the evaluator receive this training? Ask specific questions. What information did you have that you believe made the allegations unlikely to be true? Can you cite any scientific research to support your conclusion? Did you look for a pattern of coercive and controlling behaviors by the alleged abuser? Ask all the types of information the evaluator received that if true would be part of the pattern? Do not permit the evaluator to just say there are other examples. Make the evaluator keep naming examples until he runs out of examples. Compare the examples she provides with the examples mentioned in the report. Ask the evaluator about other examples that the mother provided or is otherwise included in the evidence. If you had considered all of the examples would you have recognized this as the pattern of the father’s abuse? Are you aware that evaluators with inadequate domestic violence training tend to minimize the significance of dv?
Ask if the evaluator has any training in safety or lethality assessment. Describe what that training consisted of. What behaviors by alleged abusers have been shown to create a higher risk of lethality or serious injury? Keep asking until the evaluator admits he cannot name any others. Has he ever conducted a lethality assessment? Is there any information in the report about a lethality assessment or the significance of allegations about behaviors known to create greater risks? Go through other examples of behaviors associated with higher risks particularly those alleged in the case. Were these mentioned in the report? Do you know if domestic violence advocates routinely conduct safety and lethality assessments? Do you think it is likely they would have recognized the dangerous behaviors that you missed? Are you aware the Saunders’ study found that dv advocates were far more knowledgeable about topics like lethality studies than evaluators and other court professionals? Did you consult with a dv advocate as part of your investigation? Are you aware that the Greenbook Initiative encourages consultation with dv advocates in potential domestic violence cases? Since you missed several of the behaviors known to suggest increased danger and several types of abuse that could be part of a pattern of coercive and controlling behavior, do you think it would have been a good idea to consult with a domestic violence advocate?
How often do you believe mothers make deliberately false allegations of domestic violence or child abuse? If the evaluator seeks to avoid the question by denying knowledge ask what her best estimate is? Assuming the answer is more than two percent, continue this line of questions. Can you cite any scientific research to support your estimate? Do you know if the Department of Justice study cited specific research about the frequency of false reports by mothers and fathers? Are you aware that the Saunders’ study found that evaluators and other court professionals who believe mothers commonly make false reports had inadequate training in domestic violence and were more likely to recommend arrangements that place children in jeopardy? If you had been aware of these findings would you have done anything differently in preparing your evaluation?
Are you familiar with the scientific research led by Nicholas Bala that is prominently cited in the Saunders’ study? If you knew this study found that mothers in contested custody make deliberately false reports only 1.3% of the time, would that affect your estimate of how often mothers make false reports? If you were aware that father’s involved in contested custody are sixteen times more likely than mothers to make deliberately false allegations, would that have affected how you prepared your evaluation? Do you think women are sixteen times more honest than men? Is it more likely that this applies only to parents involved in contested custody cases? Do you believe the frequency of fathers’ false allegations is because a high percentage of contested custody is domestic violence cases? And most of these fathers are seeking custody as a tactic to maintain control over their ex-partner? If appropriate, are you telling this court you completed your investigation and made recommendations without considering the father’s motivation for seeking custody?
Are you familiar with the concept of confirmation bias? Is it fair to say this occurs when a professional is expecting a particular outcome and thus ignores information that undermines the expected result and focuses on supportive information? And professionals can engage in confirmation bias without realizing they are doing so? Would you agree that confirmation bias is probably one of the factors that explains the findings in Dr. Saunders’ report that evaluators who believe women frequently make false allegations are more likely to reach that conclusion and make recommendations that hurt children? Be careful not to ask questions to give the evaluator the opportunity to explain why it doesn’t apply in your case.
Many of the challenges to the evaluation will be specific to the case. If an evaluator recommends some form of joint custody use statements in the report that this is harmful to children because abusers use this to control their ex-partner. When evaluators recommend unsupervised visitation, we can use the findings that supervised visitation for dangerous abusers is not recommended as often as it should be and supervised visitation for abusers is in the best interests of the children. If there is an issue where the mother has been angry or emotional, use findings that this information is used far out of proportion to the significance it has regarding parenting ability.
The report also discussed the finding that unqualified evaluators tend to pathologize protective mothers leading to harmful custody decisions. If someone had a genuine and serious mental health disorder it would impact them in many aspects of their life and not just in family court or responding to her abuser. Ask what the evaluator did to avoid this mistake as discussed in the Saunders’ report. Can the evaluator explain why the Saunders’ study believes this practice hurts children?
In cases where the evaluator disbelieves or minimizes the mother’s domestic violence allegations ask what was done to screen for dv. The Saunders’ report says that the typical psychological tests used in custody courts are not useful for screening domestic violence. In most cases the evaluator will not have used any tests that can be used to screen for domestic violence. The DOJ study suggests this is a strong indication that the evaluator doesn’t have the necessary training to recognize domestic violence. In practice this will probably apply to almost all evaluators.
The Saunders’ study found a strong connection of sexism and belief in patriarchal norms with a lack of adequate training and recommendations that harm children. Be careful about asking questions about this because this gives the evaluator a chance to deny their bias. You can ask about specific statements or approaches that are obviously biased such as when Dr. Marcus referred to the mother as “hon.” This issue can also be used when an evaluator has spent substantially more time speaking with the father and his supporters. This material can better be developed with the testimony of an expert testifying on behalf of the mother.
If the evaluator issues a report based on PAS or even alienation, there is strong research in the Saunders’ study to challenge it. We can start by asking the evaluator if he agrees that sex between adults and children is improper. Then ask if there is any research not based on the belief that sex between adults and children can be appropriate (this is what PAS is based on), that “alienating” behavior creates a safety risk. Are you aware the DOJ study found that PAS, including by any other name has no scientific basis? Are you aware PAS was rejected for inclusion in the DSM-V because it has no scientific basis? Are you aware that the Saunders’ study found that evaluators with inadequate training tended to believe the myth that women frequently make false allegations but alienation theories, particularly those used to separate children from their primary attachment figure are based on a belief that most dv and child abuse allegations by mothers are false? Are you aware that evaluators are starting to lose their licenses for using PAS? Do you know if that is because they are in affect creating a diagnosis that does not exist? You can also ask questions comparing the harm of separating a child from their primary attachment figure with the harm of negative statements about the other parent. Ask for any research findings because there is no scientific support for these standard biased practices.
In order to encourage the judge to be open to research and practices that are significantly different than she is used to, we need to present it in as non-threatening way as possible. Emphasize that this is brand new research. The message is that the judge is not being blamed for past decisions before the research was available. If the opportunity arises we can acknowledge that the judge might have been hampered by poor lawyering and unqualified evaluators. Indeed that is supported by the Saunders’ study. One of the important points in the research is that the training required of judges and other professionals does not provide them with the necessary domestic violence expertise so it is important to be open to information provided by dv advocates or other similar experts. Tell the judge that the new research has found that most court professionals do not have the dv training they need, often believe the myth that women frequently make false allegations and this often leads to decisions that place children in jeopardy.
There is strong support in the Saunders’ study to require supervised visitation for abusers. If this is what the children need it is important to ask for this at the start of the case because once the mother offers unsupervised visits, she is acknowledging the father is safe. Obviously the risk is that the judge treats that request for supervision as hostile or alienating, but emphasize this is what the research found to work best for children. Ask the court to pressure the father to stop his abuse instead of pressuring the mother to cooperate with her abuser. This way the goal is to have the father actively involved with the child but the way to do this is for the father to behave in ways that benefit the children instead of sending the harmful message that the father’s abuse is acceptable.
If the father seeks to limit the mother to supervised visitation (assuming there is no genuine safety issue), the response is not to focus on defending the mother but in using his request to confirm his abusiveness and willingness to hurt the children in order to maintain control. In the Saunders’ study, cases in which safe mothers lost custody and were limited to supervised or no visitation were examined to see what was wrong with the court practices. This is because such decisions are always harmful to the children and generally caused by bias and a lack of training. Help the judge see what such an outcome would look like before there is any serious consideration of this common mistake.
Make it as easy as possible for the judge to recognize the father’s abuse. Clearly state at the beginning of the case that the father has a history of domestic violence. Put all of his coercive and controlling behaviors together to help the court see the pattern. As the father engages in litigation abuse or other abusive behaviors label these as a continuation of his pattern. Those behaviors that have been shown to create a higher risk of lethality or other danger should be discussed. Ask the court to order a risk assessment instead of or if necessary in addition to an evaluation. The Saunders’ study found that most evaluators and other court professionals do not have the training to assess safety, but this is the most important consideration in order to protect children. Offer to provide the court (and the other party) research that supports your claims and let the judge know the information that will be provided. This supports initial restrictions on the father’s access to the children and the mother. By letting the judge know early in the case that there is substantial evidence and research to support the claim the father is dangerous it may discourage the court from making dangerous initial decisions. Once the court makes a mistake, the judge is often reluctant and defensive when later information demonstrates the harm created by the initial decision.
After the Case Goes Bad
If there is still time to appeal, you can cite the Saunders’ report in support of the appeal. There are likely to be numerous mistakes the court made that are covered in the report. I would emphasize that there is no reason for the court to defer to the trial court because the trial court did not have this critical research. The mistakes described in the report lead to harmful outcomes for children so a court using best interests of the child should consider this research in making its decision.
More common will be cases in which the court has already made a decision that is harmful to the children and an appeal would be too expensive or it is too late to appeal. I believe the release of the Saunders’ study, by itself creates a change of circumstance that would justify asking the court to take a fresh look at the case based on the research in the report that was previously unavailable to the court. Protective mothers could cite specific approaches and practices used by the custody court that the Saunders’ report demonstrates harm children. Surely the judge is not going to claim to have already known the court was using bad practices so the best interests of the children demand the court reexamine the facts and circumstances based on this new research from the United States Department of Justice. If there are factual changes in circumstances such as the father using the control given him by the court to undermine the mother’s relationship with the children, this can be used together with this research.
Many of the cases that need to be corrected involve the extreme outcomes in which alleged abusers receive custody and safe, protective mothers are limited to supervised or no visitation. The Saunders’ study included interviews with 24 mothers who were victims of these outcomes. Dr. Saunders interviewed the mothers as part of the study in order to understand the kinds of mistakes made that lead to these harmful outcomes. To say this more directly when the mother is safe, these outcomes are always wrong.
More specific to the case would be to show how the professionals demonstrated their lack of adequate domestic violence training. In many of the cases the evaluator and other court professionals failed to find domestic violence because they did not know how to screen for it. The Saunders’ studies specifically raises concern where evaluators use general psychological tests like MMPI which tell us virtually nothing about domestic violence and fail to use needed screening tools like the Campbell Danger Assessment. “Evaluators using general measures of personality-psychopathology were more likely to recommend sole or joint custody to the abusive father in the case vignette.” (Report, P. 15).
This also contributed to the common problem of safe mothers being pathologized through the use of psychological tests that were not made for the populations seen in custody court. “Some of the standard tests may also measure and confuse psychological distress or dysfunction induced by exposure to domestic violence with personality disorder or psychopathology.” (Report, P. 133). Until there is more and better training and courts reform their outdated practices, this will be an important point that can be made in almost every domestic violence case. This can be supported by the failure of the court professionals to consider the pattern of coercive and controlling behaviors that includes tactics far beyond just physical assaults.
In cases in which mothers lost custody because they were wrongly pathologized by the misuse of psychological tests, the response can include, “One guidebook for judges cautions that ‘Generally…psychological testing is not appropriate in domestic violence situations. Such testing may misdiagnose the non-abusive parent’s normal response to the abuse or violence as demonstrating mental illness, effectively shifting the focus away from the assaultive and coercive behaviors of the abusive parent’ (Dalton, Drozd, & Wong, 2006, p. 20). Not surprisingly, evaluators using these measures were less likely to have received information on screening for domestic violence and assessing dangerousness.” (Report, P. 124).
Few of the evaluators or court professionals have the needed training in assessing safety which is critical because it means they don’t know how to protect children’s safety. This can be emphasized when there are allegations of specific acts that have been shown to create a higher level of lethality or serious danger. Among the common examples would be hitting mother while pregnant, strangulation, hurting animals, unconsented sex, violating laws and orders and threats of suicide, kidnapping or murder. Other related circumstances such as availability of guns, mental illness, substance abuse and tactics that seek custody as a way to pressure the mother to return further increase the risk. The evaluator or other professional could conclude the allegations are false, but if they have the needed training would at least mention that these concerns are significant because of the correlation with higher risk of lethality.
These critical mistakes will be present in virtually every case because the professionals relied on by the court do not have the training or expertise necessary to handle domestic violence cases. Many other types of mistakes are common and can be used to support an application for modification of the custody-visitation arrangement based on changed circumstances. The Saunders’ study found a connection between a lack of training, belief in the myth that women frequently make false allegations and recommendations that place children at risk. Accordingly if the evaluator or other professionals made any statements suggesting they believe or relied on this myth, this would be proof of their inadequate training and bias. Sometimes the statements will not be direct but can be implied from the circumstances. In one case the CPS caseworker accused the mother of making deliberately false allegations to gain an advantage in the case. The findings, however confirmed the mother’s complaint was accurate but CPS did not consider the father’s acts as abusive. In another case involving sexual abuse allegations, the court professionals considered only the possibility the child was abused or the mother made a deliberate false report. They never considered the likely possibility that the child’s reaction was based on a violation of her boundaries or a good faith report that could not be confirmed.
In other cases, court professionals may have relied on information that is not probative. Common examples are when they rely on the fact the mother returned to her abuser, failed to follow-up on petitions for a protective order, did not have police or medical reports or the children showed no fear when interacting with their father in front of witnesses. The use of any of these facts to support a finding against abuse allegations would demonstrate inadequate training in screening domestic violence.
Another common mistake is a belief that the danger ends when the parties separate. This might also be expressed in the fact that the father has not physically assaulted the mother since the parties separated and he had limited or no access to her. This would demonstrate a lack of understanding of post-separation violence which is one of the specific areas Dr. Saunders found evaluators and other professionals need. One of the likely dangers is that the father will abuse future partners and if he has custody or unsupervised visitation, the children will witness still more domestic violence. Any recommendation to give the father custody or unsupervised visitation without discussing this risk should be understood as proof the professional is missing critical domestic violence training.
“Similar to the emphasis on cooperative parenting, use of the label “parent-alienation syndrome” (Gardner, 1998) or, more recently, “parental-alienation disorder” (JBernet, 2008; von Boch-Galjau, Baker, & Morrison, 2010) can also place battered women in a no-win situation. Battered mothers are vulnerable to these labels when they make formal child abuse allegations or raise concerns about the possible abuse of the children by an ex-partner. Many child abuse professionals believe that mothers coach their children to make false allegations in contested custody disputes (Faller, 2007). As noted earlier, they may even face court sanctions and lose custody as a result of raising such concerns (Faller & DeVoe, 1995). However, research indicates that although false allegations may occur more frequently in divorce-access disputes, the non-custodial parent (usually the father), not the custodial parent (usually the mother) tends to make more false reports (Trocme & Bala, 2005). Practicioners who apply parent-alienation syndrome (PAS) or parent-alienation disorder formulations tend to automatically label a parent as an “alienator” without a thorough investigation or the allegations (Brown, Fredercio, Hewitt & Sheehan, 2000; Brown Frederico, Hewitt & Sheehan, 2001; Meier, 2009). As a result, battered mothers may be viewed as both pathological and abusive.” (Report, P. 22-23). This quote can be used where the court’s mistake was based on alienation theories. The Bala research can be used when court professionals fail to have the proper skepticism of allegations made by allegedly abusive fathers.
In cases in which the judge or other court professionals insisted on shared custody or attacked the mother for objecting to sharing custody with her abuser, consider, “Of particular concern was the relatively high percentage of evaluators who recommended that the victim receive physical custody, but that legal custody be shared by the parents. Evaluators must understand the potential negative implications of this arrangement, given the likelihood that many abusers will use the arrangement to continue their harassment and manipulation through legal channels (Bancroft & Silverman, 2002; Jaffe, Lemon & Poisson, 2003; Zorza, 2010). Abusers can gain access to victims by manufacturing reasons to ‘discuss’ child rearing or by insisting upon joint attendance at school events, parent-teacher meetings, or medical appointments. They can also withhold consent for a child’s counseling, medical procedures, and extra-curricular school events.” (Report, P. 130).
The Saunders’ study found a correlation between a belief by evaluators and other court professionals that mother’s attempts to protect children was harmful and claims of “alienation” with beliefs by professionals that domestic violence is not important, women frequently make false allegations and men are entitled to control their partners. Accordingly, courts should carefully scrutinize findings based on “alienation” and the mother’s fear of the father, particularly when her allegations of domestic violence or child abuse were not thoroughly investigated. Punishing mothers for seeking to protect children from their fathers or continuing to believe the father is dangerous are common examples of gender bias because she is being blamed for her normal reaction to the father’s abuse. Courts should seek to avoid these common mistakes and discredit evaluators and GALs who support these errors.
Reforming the Broken Custody Court System
For many years custody court officials confidently responded to complaints from protective mothers by minimizing and rejecting their concerns. In some cases they suggested there must be something wrong with a woman who believed all of the court professionals were wrong. Now the United States Department of Justice has produced a comprehensive study that not only confirms what protective mothers have been saying that the courts are getting a high percentage of domestic violence custody cases wrong, but that most of the professionals relied on by the courts, and particularly the evaluators do not have the training or understanding of domestic violence necessary to help courts make an informed decision concerning the well being of children. The present outdated and discredited practices give judges little chance to protect children. This has resulted in courts sending 58,000 children for custody or unprotected visitation with dangerous abusers every year. During a two year period starting in 2009 we know of news stories of 175 children murdered by fathers involved in contested custody cases, often with the unwitting assistance of the courts whose most important purpose is to protect these children. With the tragic outcomes and the clear findings in the Saunders’ study, administrative judges cannot justify the status quo and we must use the DOJ report and other research to make sure the needed reforms are implemented. There must be an urgency for creating the reforms because every day courts using the flawed practices place children in jeopardy.
We need to bring the research from the Saunders’ study to the attention of the court system and ask the courts to implement the reforms needed to protect children. Dr. Saunders stated very clearly that contrary to the beliefs of most judges, the present training practices do not provide the expertise necessary. Locally I would encourage protective mothers, domestic violence organizations and other interested parties to request meetings with the local administrative judge. The purpose is not to speak about individual cases which would raise ethical issues, but the need for the court to use the new research to reform practices that have been shown to hurt children. Nationally, leaders of the dv and protective mothers’ movement need to contact national organizations of judges and create a dialog to promote implementing the reforms suggested by the Saunders’ report. If you can’t promote a meeting, at least write to the administrative judge, provide the information about the Saunders’ report and ask how the court will respond to this research.
Similarly, we can speak with our state legislators, provide this research and ask them to help protect the children. Hearings on the problem would be helpful because it would attract attention to something the media has failed to expose. Ask the legislators to consider the Safe Child Act that I wrote about recently. If they have any interest in sharing in the $500 billion savings by dramatically reducing dv crime they can implement what I call Quincy Model 2.0. Surely in these hard economic times there is no justification for continuing the trillion dollar abuser subsidy.
I am frequently contacted by mothers who want to go public with their stories. They need to be careful because courts often retaliate when their bad practices are exposed. Of course they claim to be doing this to protect the children they sent to live with abusers. The media has been missing in action with respect to the frequent tragedies caused by the standard flawed practices in the custody court system. They often do not want to write about something they view as he-said-she said and are not willing to invest the resources to establish individual decisions were wrong or even outrageous. Even when they can be pretty confident the court failed the children they are reluctant to write a story that could risk a lawsuit.
The Saunders’ report could be used to promote better coverage. They should have more confidence in writing a story based on a report issued by the United States Department of Justice. The report does not speak about specific named cases but rather a pattern of bad practices that place children in jeopardy. I would encourage you to contact your local media, make them aware of the significance of the Saunders’ report and ask them to help expose the scandal. They may want to discuss specific cases, particularly local cases to illustrate the problem, but using the research and the pattern of mistakes should strengthen what mothers are saying and give them greater credibility. It also means mothers do not need to go into all the details of their case which undermines their efforts to attract attention. Instead they can show how the problems cited in the Saunders’ report were the same mistakes made in your case. It is helpful when seeking publicity to include the local dv agency or a dv expert that will give the story even more credibility.
I would also like to encourage people to discuss the Saunders’ report and the general problems in the custody court with family, friends and community members. You never know when someone you are speaking with may have an important contact or special interest in the subject. No one wants to see children suffer (aside from the abuser) so this is something members of the community are likely to care about. If you are comfortable perhaps you can discuss the problem at a community event or offer to speak at different clubs or service organizations. Only the other side benefits by keeping the failures in the custody courts a secret. At the same time I would encourage you to speak about the problem in ways we can be heard. I know many court professionals have done many despicable things and we often are very angry. Saying what we want to say may feel good, but it can undermine our ability to be heard.
I also recognize that we have been disappointed so many times before. It is hard to be optimistic even in the face of overwhelming research that supports everything we have been saying for all these years. Nevertheless it is important that we convey the message that this is an earthshaking event. In effect the United States Department of Justice is acknowledging that our justice system is failing our children. We can understand the causes and work on solutions but no one should tolerate standard practices that deny our children the opportunity to be safe in their home and reach the potential God gave them when they were born.
Crisis in the Custody Court System
Every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers. In a recent two year period 175 children were murdered by abusive fathers involved in contested custody often with the unwitting assistance of courts that gave the fathers the access used to kill the children. Dr. Dianne Bartlow and her students interviewed judges and court administrators as part of a study to determine what reforms the courts had made in response to the tragedies in their communities. The judges who participated are some of the best which is why they agreed to take the time to discuss domestic violence and custody. They often spoke eloquently about these issues and tended to have more training than their colleagues. Nevertheless these courts had not created reforms to make children safer because they assumed the tragedy in their community was an exception. Unfortunately the court system has not been very open to findings that their practices are working poorly for children. In many ways the court system is an insular community that only speaks to themselves and has not modified their practices and training in response to current scientific research.
In April of 2012, the U. S. Department of Justice released a study led by Dr. Daniel Saunders of the University of Michigan that is extremely helpful in explaining why the courts get such a high percentage of domestic violence custody cases wrong. Saunders found that there is now a substantial body of current scientific research that could inform court decisions, but court professionals rarely look to this research to help protect children. He found that the standard training received by evaluators, judges and lawyers does not provide the information needed to respond effectively to domestic violence cases. Dr. Saunders recommends that court professionals receive training in screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. I would add that they need to understand domestic violence dynamics and be familiar with batterer narratives in order to avoid being manipulated by abusers. Most of the evaluators claimed to have the needed training, but when asked how they screened for domestic violence often cited the MMPI and other standard psychological tests that tell us nothing about domestic violence. Saunders recommends that they should use the Campbell Danger Assessment or other similar tool. In thirty years of practicing law and reviewing cases since, I have never seen an evaluator use any tool that would be effective in screening for domestic violence or recognizing the danger the alleged abuser poses. This is the worst of all possible situations in that the professionals do not have the training and expertise they need but think they do so they do not seek assistance from genuine domestic violence experts. Many judges and lawyers receive their information from these evaluators who do not have the necessary training.
The problem is magnified by the widespread use of a cottage industry of lawyers and mental health professionals that seek “fathers’ rights” business. A large majority of contested custody are really domestic violence cases in which abusive fathers use standard abuser tactics to seek custody as a way to regain control over their victims. Domestic violence is very much about control and economic control is an important part of the standard tactics. This means that in contested cases the abusive father usually controls most of the family financial resources. Accordingly the best way for unscrupulous professionals to make a substantial income is to support practices and approaches that favor abusers. This is why we see support for PAS in custody courts and nowhere else. These professionals are extremely biased but courts treat them as if they were neutral. In many cases attorneys for the abuser encourage the appointment of GALs and evaluators who are part of the cottage industry and GALs similarly support biased evaluators. This mistake often leads to cases in which overwhelming evidence of abuse is ignored or minimized and extreme outcomes that Saunders found are always harmful to children are created.
Dr. Saunders found that court professionals without the specific training needed tend to believe the myth that women frequently make false allegations of abuse, focus on unscientific alienation theories and assume mothers trying to protect their children from abusive fathers are hurting the children. Many of the harmful outcomes occur when courts focus on these issues which say more about the lack of qualifications of the court professionals than the facts and circumstances in the case.
There is now a substantial body of medical research about the long-term health impact on children exposed to domestic violence, child abuse and other traumas. This research is based on the ACES (Adverse Childhood Experiences) studies. We now know that children exposed to domestic violence will suffer more illnesses and injuries as children and later as adults. They will require more medical care and have a reduced life expectancy. I believe these findings about the catastrophic impact of domestic violence on children should require the court system to take a fresh look at its response to domestic violence. They need to make the safety of children the first priority rather than claims to “rights” of parents or other factors that have much less influence on the well-being of children. The research means that it is critical courts learn to recognize domestic violence and stop minimizing its significance. I wish the leaders in the custody court system would be open to meeting with leading researchers and domestic violence experts to discuss the reforms needed to better protect our children.
HOW DO WE KNOW CUSTODY COURTS ARE SENDING CHILDREN TO LIVE WITH ABUSERS?
TEN WAYS TO KNOW THE CUSTODY COURT SYSTEM IS BROKEN
by Barry Goldstein
Mothers and domestic violence advocates have been complaining for many years about problems in the custody court system that have resulted in large numbers of children being sent to live with abusive fathers while safe, protective mothers are denied any meaningful relationship with their children. Courts have tended to dismiss the complaints by referring to the mothers as “disgruntled litigants.” As more concern about the problem has been expressed and more research performed, the mothers’ complaints have been confirmed. Early in 2010, a new book co-edited by Dr. Maureen T. Hannah and Barry Goldstein, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY will be published and end any doubts that there is a pattern of mistakes made in the custody court system. These mistakes have caused thousands of cases to be mishandled and placed the lives and well being of battered women and their children in jeopardy. The book includes chapters by over 25 of the leading experts in the United States and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. Although these experts come from different disciplines and approached the issue from different directions, there is a remarkable consensus about the problem and the solution. The up-to-date research and information now available makes it clear that the present practices can no longer be justified and the custody court system must create the necessary reforms to protect the safety of children and protective mothers in domestic violence custody cases. This article will discuss ten reasons we know the custody court system is broken and must be reformed.
1. Mothers’ Complaints: The problem this article seeks to discuss are cases in which a mother who has been the primary caregiver and makes allegations of domestic violence and/or child abuse loses custody to the alleged abuser and receives supervised visitation or no contact with her children. These cases have increased since federal laws designed to increase enforcement of child support orders were passed. Male supremacist groups have encouraged abusive fathers to seek custody as a way to avoid paying child support, to pressure his partner to stay or punish her for leaving. The courts and the often inadequately trained professionals they rely on, glad to see the involvement of fathers in children’s lives often fail to recognize the tactic and motivation. Courts tend to look at each case separately and so fail to see the patterns of mistakes in these cases. Demonizing their victim is a common strategy employed by abusers so a court could believe there was something profoundly wrong with an individual mother to justify the extreme outcome. When experts look at the pattern of these cases it is evident that the unusual circumstances needed to justify a particular outcome cannot be as common as the results would suggest. Women and children make deliberately false allegations of abuse between one and two percent of the time, but the court decisions support the myth that such deliberate false allegations are common. Furthermore, domestic violence allegations are painful and embarrassing to make and require the victims to speak about uncomfortable issues and questions. Research demonstrates that allegations of domestic violence and child abuse make women less likely to obtain custody. We can’t know that an individual case was improperly decided without careful review of the case, but we know the frequency of outcomes that give custody to alleged abusers cannot possibly be based on objective facts.
2. Available Research: The modern movement against domestic violence is only about thirty years old and there was little research available when it started. We now have extensive research to demonstrate common mistakes courts and the often-unqualified professionals they rely on use in domestic violence custody cases. Studies show that while evaluators believe they are considering domestic violence in their investigation of the family, in fact most fail to do so. We have many studies proving widespread gender bias against women in the approaches used by the courts. Evaluators regularly use psychological testing that has little or no relevance to the issues before the court and is gender biased. Psychologists testifying before the courts rarely inform the judges that their results are based upon probabilities so that factors in the case that would reduce those probabilities can be considered. Most important to the present topic is research that considers the accuracy of the actual court decisions. Most custody cases (over 95%) are settled more or less amicably. The problem is with the minority of terrible cases that continue to trial and beyond. Courts often think of them as “high conflict” cases, but in reality these are mostly domestic violence cases. Research studies vary somewhat on the percentage of these cases that involve abusive fathers, but all agree the majority of such cases involve domestic violence. I believe the studies that found 90% of these contested custody cases are caused by abusive fathers because unqualified professionals frequently miss domestic violence. In any event, contested custody cases should be being decided overwhelmingly in favor of protective mothers because most of the fathers are abusive, but 70% of the cases result in custody or joint custody to the father. This does not tell us an individual case was wrongly decided, but does demonstrate that a large percentage of cases are being decided in a way that is harmful for the children.
3. Battered Mothers Testimony Project and Research: Several states including Massachusetts, Pennsylvania, California, Arizona and New York City have done studies based on questionnaires filled out by protective mothers. These surveys have demonstrated widespread problems in the custody court system, many common mistakes and outcomes that fail to protect battered women and their children. This is admittedly not scientific research as the participants are volunteers rather than randomly selected (much of the “research” cited by male supremacist groups comes from interviews with alleged abusers, but is often treated as if it were valid research). Sociologists, Sharon Araji and Rebecca L. Bosek went several steps further for their chapter in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. They performed a similar study in Alaska and then compared the results from the various states that interviewed protective mothers. The authors found the responses similar across the several state surveys. They then compared the results of the surveys filled out by protective mothers to scientific research performed by a variety of researchers using accepted scientific methods. Significantly the findings from the protective mothers are strongly supported by the scientific research. In other words, the complaints by protective mothers that have been so often dismissed as coming from “disgruntled litigants” actually have substantial validity.
4. Courageous Kids: If a court system wanted to determine the validity and value of psychological evaluations, it would look for research that examined how the recommendations and approaches used by the evaluators worked out in the lives of the children. Without such research there is no way to determine if the time, money and results for evaluations are useful. In fact there is no such research and I would certainly recommend obtaining such research if evaluations were to continue to be used in child custody cases. The closest we have to such research is the Courageous Kids Network. The Courageous Kids are young adults who were forced to live with abusers by the decisions of the custody court. They are now old enough to have escaped their abusers and are speaking out about their experiences. The stories are painful to hear because they had to survive such awful abuse, but life affirming as they overcame the obstacles to support each other and help change the broken system. These heroes have spoken at judicial trainings, legislative hearings and domestic violence conferences. Their presentations are effective because it is all too easy to discredit protective mothers, but hard to discredit the children for whom the courts and the professionals are supposedly trying to help. Remember these children were forced to live with and be influenced by the abuser. In most cases they had to endure “therapy” designed to support the abuser and discredit the protective mother. There are many psychological, safety and other reasons to discourage such children from coming forward and speaking out. The fact so many Courageous Kids have spoken out demonstrates the courts are getting large numbers of cases tragically wrong.
5. Review of Bad Cases: The authors of the 25 chapters in the book have carefully reviewed hundreds if not thousands of these cases. In their book, FROM MADNESS TO MUTINY, Dr. Amy Neustein and Michael Lesher reviewed over 1000 cases. The Truth Commission listened to the testimony of 16 women and reviewed records from their cases. Many other experts have studied domestic violence cases where the alleged abuser received custody and the protective mother received little or no contact with her children. In these cases we have found widespread mistakes, bad practices, use of myths and stereotypes, the failure to use up-to-date research, gender bias and outcomes that place children at risk. The legal system works on the assumption that once a case is decided or facts determined that the findings are established and any further consideration should be based upon the assumption the court decided the case properly. This assumption will lead to misinformation and inaccurate research because there is strong evidence that most contested domestic violence custody cases and certainly those that result in custody to the alleged abuser are wrongly decided. We are particularly concerned with the growing court practice of retaliating against protective mothers and professionals trying to help them for exposing court mistakes in these cases. Frequently a mother’s refusal to believe an abuser is safe after the court fails to recognize his abuse is used to justify severe and extreme limitations on her access to her children without regard to the harm such rulings have on the children.
6. Parental Alienation Syndrome: PAS is a bogus theory created based on the personal biases of Dr. Richard Gardner. His books were self-published and never peer reviewed. It is used only in domestic violence custody cases to prevent or shorten investigations of the father’s abuse. PAS assumes that if a child expresses negative feelings about the father or doesn’t want visitation, the only possible explanation is that the mother alienated the child and the solution is to force the child to live with the abuser and have at most supervised visitation with the protective mother who has been the primary attachment figure for the child. PAS is not recognized by any reputable professional organization and does not appear in DSM IV, which contains recognized diagnosis. Dr. Paul Fink, past president of the American Psychiatric Association wrote a chapter for the book in which he demonstrates the invalidity of PAS. Dr. Fink points out that Richard Gardner made numerous statements complaining that society takes child sexual abuse too seriously and that sex between adults and children can be appropriate. This explains why PAS is so often used to give custody to fathers who have sexually abused their children. Dr. Fink points out that psychologists are starting to lose their licenses for using PAS in evaluations. They are, in effect diagnosing something that does not exist. Thousands of the cases in which alleged abusers won custody was based upon the discredited PAS or PAS by a different name. Any case in which “evidence” of PAS was allowed was likely wrongly decided.
7. Gender Bias: The Truth Commission recommended that rather than training professionals with general domestic violence information, all professionals should have training in Gender Bias, Recognizing Domestic Violence and the Effects of Domestic Violence on Children. This is because they found that many of the mistakes made in these cases were caused by a lack of understanding of these basic concepts. At least 40 states and many other districts and communities have created court-sponsored gender bias committees. They have found widespread gender bias and particularly in domestic violence custody cases. Among the common problems were blaming victims for their abuser’s behavior, burdening women with higher standards of proof and giving fathers more credibility than mothers. Other research, including the chapter in the book by Molly Dragiewicz has made similar findings. In one New York case the court gave custody to an abuser and denied the protective mother any contact with the children after the evaluator used and the judge supported a certainty standard for the mother and probability standard for the father. Few litigants could win a case when faced with a certainty standard. At least 15-20 different judges were asked to review this clear example of gender bias (the different standards were stated in the evaluator’s report and repeatedly challenged in the transcript), but every judge failed to correct this obvious error. Lynn Hecht Schafran wrote a brilliant article “Evaluating the Evaluators” that illustrates the problem. The article describes a new psychologist asked to perform an evaluation on a young family. She went to the father’s apartment and found it a complete mess with no food in the refrigerator. She wrote the father lives in a typical bachelor apartment. She went to the mother’s apartment and found it to be somewhat messy, but not as bad as the father’s. She had food in the refrigerator, but not as much as preferable. The evaluator wrote the mother lives in a messy apartment with inadequate food. The evaluator had a supervisor because she was new and the supervisor asked if she saw what she had done. The evaluator could not believe she had engaged in gender bias and quickly corrected the report. The article is valuable because it demonstrates that professionals acting in good faith (including women) can easily engage in gender bias without realizing it because of the sexism and stereotypes so prevalent in our society. How can anyone reasonably believe the courts are reaching fair decisions in domestic violence custody cases when gender bias is so common?
8. Failure to Recognize Domestic Violence: Many of the mistakes custody courts make have to do with failing to recognize domestic violence. In fairness some of the problem is caused because victims or their attorneys fail to present the necessary evidence. Unqualified professionals often discount allegations of abuse based upon information that represents a normal and reasonable response to his abuse. In the book, Judge Mike Brigner writes about training judges in domestic violence. They often ask him how to respond to all the cases where women are lying about domestic violence. When he asks what they mean, they cite cases where women go back to their abuser, withdraw petitions for a protective order, fail to file police complaints or don’t seek medical care. In reality there are safety and other explanations for women’s response to domestic violence and none of these examples should be used to assume her complaints are false. At the same time they use information of limited value to discount domestic violence, professionals fail to use helpful and relevant information to understand the pattern of domestic violence tactics. Too often the professionals are interested only in physical abuse. They fail to consider a variety of controlling and coercive tactics. They don’t understand the significance of a woman’s fear of her partner. Domestic violence advocates are the only professionals that work full time on domestic violence issues. The advocates receive more training and have more knowledge of domestic violence then the professionals relied on by the courts. Domestic violence agencies have very limited resources so they are forced to screen clients before providing services. Accordingly when a woman is receiving services from a domestic violence agency, it is a strong indication that she is a battered woman, but many professionals fail to consider this information. Although seeking custody to pressure a mother to return or punish her for leaving is a common abuser tactic, few courts consider why a father with limited involvement with the children prior to separation suddenly demands full custody. Similarly unqualified professionals often fail to consider evidence that a man believes his partner has no right to leave is a strong indication of his motivation in seeking custody. How can courts be expected to decide domestic violence custody cases appropriately if they don’t know what to look for when determining the validity of domestic violence allegations?
9. Effect of Domestic Violence on Children: Every state has passed laws designed to promote greater consideration of the effects of domestic violence on children. Some states require domestic violence to be considered in making custody and visitation decisions and others create a presumption against custody for abusers (although often the laws or the courts require a level of proof or create other restrictions that limit the effectiveness of these laws). Prior to these laws, when a protective mother asked to limit the father’s contact with the children because of domestic violence, the judge would ask some version of “Does he also abuse the child?” If the answer was no, the court treated the father as if he was just as appropriate for custody and visitation as the mother. The change in laws was based on overwhelming research that children witnessing domestic violence were harmed as much as children directly abused. The research found these children to be at substantially greater risk of a wide range of dysfunctional behaviors when they were older. In other words, domestic violence is a serious form of child abuse. We have found, however that courts frequently place greater reliance on other custody factors that have far less consequences to the safety and well being of children. In fairness, the courts are not solely to blame as legislatures have passed laws like “friendly parent” factors and failed to make domestic violence and safety the primary factors in custody determination. There is no research that “alienating” statements or attitudes by one parent to the children has the kind of serious long-term harm of domestic violence and yet many of the cases reviewed focus far more attention on alleged alienation. When mothers respond normally to their partner’s abuse with fear or attempts to protect the children, courts frequently treat this as the most important issue in deciding custody. This is a common example of what was discussed in gender bias reports in that the mother is held responsible for her reaction to the father’s abuse instead of holding the father responsible for his abuse. This type of mistake is at the heart of the common mistakes made by custody courts and does not serve the best interests of the children. If children are having problems as a result of the father’s abuse, unqualified professionals often blame the divorce and separation instead of his abuse. They often recommend cooperation and interaction between abuser and victim that is the opposite of what is healthy for children, but often benefit the fathers’ cases. When children appear to be doing well, inadequately trained professionals mistakenly assume this means the abuse allegations are false. Some children respond to abuse by trying to be perfect and take on adult responsibilities. Many years later the harm of the father’s abuse comes out in debilitating ways. Similarly children will often behave well with abusers and act out with their mothers because they know she is the safe parent. This is often misunderstood and courts reach the false conclusion that the father is the better parent. As long as the courts fail to understand the long-term harm to children of placing them with abusers, the courts will continue to make decisions that ruin children’s lives.
10. Extreme Results: If a court were to give custody to a protective mother and limit the father to supervised visitation because of his domestic violence, it would be following the recommendations of up-to-date research. In other words there is a scientific basis for such an outcome. The researchers weigh the harm of restricting the children’s contact with their father and the harm the father is likely to cause with unrestricted visitation and the message sent to the children by awarding normal visitation with someone they know abused their mother. Instead what we are seeing is alleged abusers receiving custody and protective mothers having supervised or no visitation. Obviously, in these cases the courts are assuming the mother’s allegations of abuse are false. They justify the visitation restrictions by their concern the mother will continue to believe she was abused and say negative things about the father. Where is the research that the harm to the children of hearing such statements is greater than the harm of being denied a normal relationship with their mother? Even in intact families the children often hear negative comments about the other parent. In other words, these extreme court decisions are based upon the belief systems and biases of court professionals and not up-to-date research. Many children have been denied any contact with their mothers in these cases. Ironically fathers are often granted custody based on the belief they are the friendlier parent and will promote the relationship between the mother and children, but he proceeds to terminate all contact once he has control. Many courts that jumped all over mothers for requesting the court restrict the father’s access have done nothing in the face of the father preventing visitation or other contact between mother and children. Rapists and even murderers frequently receive some supervised visitation and yet mothers who sought to protect their children from an abuser are completely cut off from their children. The extreme outcomes faced by protective mothers are unsupported by any research, but demonstrate serious flaws in the custody system.
Now is not the time for blame or attacks. As the Schafran article demonstrates, it is all too easy for good and caring people to fail to understand and recognize gender bias and domestic violence. In the book, Judge Hornsby writes that in his 19th year on the bench he finally understood the proper way to handle requests for protective orders. The judge’s humility, integrity and openness should serve as a model to the legal community as it responds to the clear information and research that the present court practices are mistreating protective mothers and their children. I was recently at a domestic violence conference in Hawaii where a court official was asked a question implying serious problems in the court system. She responded by saying if someone didn’t like a decision they could appeal. To her credit she later acknowledged that many people don’t have the money for such an appeal. This official fell into the trap of responding defensively to criticism. The challenge for the custody court system is to be open to the up-to-date research even though it finds the courts have made widespread mistakes in its handling of domestic violence custody cases. The medical community faced a similar situation in responding to research that found avoidable mistakes were responsible for 100,000 deaths each year in our nation’s hospitals. For years, fear of lawsuits, discipline and damaged reputation caused the medical profession to ignore, deny and seek to place blame on others. Finally they realized this was a losing strategy. Doctors, nurses and hospitals have now come together to correct the problems with more openness and accountability. Lives have already been saved from implementation of this approach and the campaign to prevent such avoidable errors. Rather than harm the medical community’s reputation, this campaign has increased the respect for the medical community. I believe if the legal community makes a similar effort to apply the latest research and create a campaign to avoid the kinds of tragic mistakes that have ruined the lives of so many women and children, the campaign will improve the reputation of the legal system. The promotion of the safety of battered mothers and their children is not and should not be considered a partisan issue.
Every state and every court system has rules and laws against domestic violence. Although some fringe male supremacist groups object to these laws, society has spoken and there is no longer any legitimate dispute about whether domestic violence should be tolerated. If a community had a rash of arson fires and the courts and legislature wanted to figure out how to respond they would seek the expertise of the experts. The experts are the firefighting community because they know best how to recognize arson, prevent it and respond to arson. No one would ever accuse the firefighters of being partisan because they are always against arson. In responding to domestic violence the experts are the domestic violence community. They are the only profession working full time on domestic violence issues and know how to recognize domestic violence, the best ways to prevent it and the harm it causes. Too often the courts have failed to take advantage of this community resource because they viewed domestic violence advocates as partisans. The validity for this claim ended when society determined it would no longer tolerate domestic violence and passed laws to enforce this determination. The crimes of arson and domestic violence are treated differently because arson has always been a crime and domestic violence is a relatively new crime and most firefighters are men and most domestic violence advocates are women. In this still sexist society what women say is not treated with the respect and value that what men say is. The domestic violence community is an important and valuable resource that the court system can benefit from as it applies the up-to-date research to practices that are now discredited. The legal system must use this research to launch a re-evaluation of its response to domestic violence custody cases so that custody courts become a safe place for battered mothers and their children. We are ready to work with them to help accomplish society’s goal of ending domestic violence.
by Barry Goldstein
In a Queens New York custody case, the court appointed a prominent psychologist to evaluate a young couple. The psychologist was frequently used as an expert in the New York courts despite a fathers' rights bias that included a quotation in a New York Times article supporting shared parenting. Throughout his testimony supporting the abusive father, the evaluator could not respond to any of my questions asking for research to support any of his claims. Finally I asked him if there was any research to support his belief that children benefit from a 50-50 division as compared to 70-30. He cited Judith Wallerstein, but could not cite a particular book or article. A colleague put me in touch with Ms. Wallerstein who sent me an email for my continued cross-examination of the evaluator. She said that earlier research had indicated shared parenting might be beneficial in cases where the parents are able to cooperate, but more recent research has demonstrated that shared parenting is in fact harmful to children. One of the problems in our custody courts is that this psychologist, like most experts relied on by the courts does not have the knowledge of up-to-date research or the ability to apply it to custody cases.
Shared custody, sometimes referred to as joint custody involves joint decision making by the parents and sometimes also requires something close to a 50-50 division of time with each parent. The equal time division is often important to parents wishing to avoid paying child support. Proponents of shared parenting say it is only fair that parents have the same rights to parenting time with their children and courts claim that they must treat each parent that comes to court equally. This seems fair unless we understand the unstated part that parents should be treated the same regardless of the quantity and quality of time each parent spent with the child before the separation. Research about primary attachment is not controversial and demonstrates that a child's primary attachment figure is more important to the well being of a child than the other parent. Furthermore, although research supports the belief that children benefit from having both parents in their lives, this is not true if one of the parents is abusive. Nevertheless many courts think it is their obligation to treat each parent the same even when one is much more valuable to the child.
Custody When Neither Parent is Abusive
The concept of shared parenting was supported by an initial study that found a favorable response. Courts were delighted to support shared parenting because it served as a way to compromise a difficult issue and could remove many cases from an already crowded calendar. Abusive fathers who had little involvement with the children during the relationship strongly supported shared parenting as a way to avoid child support and maintain access and control over their victims.
The initial study was based on a very limited population and most favorable circumstances that included parents who enthusiastically supported the use of shared parenting, were able to cooperate and lived close together. Later studies that included larger populations and more long term effects of the arrangement demonstrated shared custody to be harmful to children, but these studies failed to dampen the enthusiasm for shared custody in the legal system and by abusers.
The studies found that children with two homes in reality had no homes. Children forced to bounce back and forth between their parents' homes were denied a sense of security and continuity. They could not spend the time with friends that they wanted and often could not participate in a variety of activities because they had to be with the other parent when some of the events occurred. Children were often embarrassed when articles they needed for school or other activities were left in the wrong home. In other words, even when parents were able to cooperate, the shared custody arrangement placed added pressure on the children and made their lives more difficult. Their success in academic studies and social interaction was negatively impacted by the shared custody arrangement.
Shared Custody in Domestic Violence Cases
Many of the laws and proposed legislation seeking to promote shared custody purport to contain language to create an exception for domestic violence cases and sometimes for other cases in which the parties are unable to cooperate. There is a good reason to treat domestic violence cases differently as shared custody is particularly harmful to children when one of the parents is an abuser. A parent cannot co-parent with an abuser because it is unsafe to challenge him and compromise is impossible when there is unequal power. The fundamental problem, too often missed by courts is that abusers are willing to see their children harmed in order to maintain what they believe is their right to control or punish their partner. Most contested custody cases that courts mistakenly label "high conflict" are in reality domestic violence cases in which fathers use the common abuser tactic of seeking custody to maintain control of their partner or punish her for leaving. Children who witness domestic violence (including non-physical abuse) are more likely to engage in dysfunctional behavior when they are older. Depending on their age when they witness his abuse, their stage of development is disrupted. All batterers have been found to engage in harmful parenting practices including undermining the relationship with the other parent, teaching bad values (sexism) and providing a bad example. In other words, up-to-date research establishes that abusers are not appropriate candidates for custody or shared custody.
The benefit of an exception for domestic violence is limited because of the widespread failure of courts to recognize domestic violence in custody cases. Thirty plus years ago when domestic violence first became a public issue there was no research available. Courts, like other bodies developed practices and approaches to consider domestic violence without knowing what worked. At the time domestic violence was mostly focused on physical abuse. The assumption was that mental problems and substance abuse caused domestic violence and that women's behavior contributed to their partner's abuse. Courts therefore chose to use mental health professionals as experts although they had no training in the dynamics of domestic violence. Courts assumed that children were not harmed by domestic violence unless they were directly assaulted and his abuse would end once the parties separated. Up-to-date research demonstrates that all of this and many other assumptions still relied on by many professionals in the custody court system are wrong.
There is now a specialized body of knowledge about domestic violence, but too often judges and the professionals they rely on are overconfident in their own understanding of domestic violence and fail to consider up-to-date research. Judge Mike Brigner wrote in his chapter for DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY that when he trains judges they often ask him what to do about women who are lying. When asked what they mean, they cite women who return to their abusers, fail to pursue petitions for protective orders, don't have police reports or hospital records and the myth that women frequently make false allegations of abuse to gain an advantage in litigation (in reality this occurs only one-two percent of the time). None of these behaviors indicates the women are lying and in fact this is often the safest response they can make particularly when still living with their abuser. Similarly inadequately trained professionals often cite the fact that the children did not seem afraid of the alleged abuser when they observed them as proof the allegations are false. The children understand what the "experts" don't that the abuser is not going to hurt them in front of others and in fact they could be punished if they demonstrated fear in public. Many professionals in the court system believe they have the ability to determine who is lying just from observation. In fact research shows that aside from a very few elite CIA and FBI agents, no one has been shown to possess this skill. Accordingly these professionals through this belief become more susceptible to abusers who are skilled manipulators. While the unqualified professionals often discredit allegations of abuse for these and other invalid reasons, they fail to look at the pattern of controlling and coercive behaviors that would help them see the pattern of abusive behavior.
The result of this and many other mistakes by professionals in the custody court system is that thousands of children are being forced to live with abusers and many protective mothers, who are wrongly dismissed as disgruntled litigants and denied any meaningful role in their children's lives. Legislatures and courts should be focusing on using the available up-to-date research to protect the safety and secure the potential of children caught up in domestic violence custody cases. Today, shockingly, courts are getting a majority of domestic violence custody cases wrong. This is one of the reasons we recommend that all professionals receive not just general domestic violence training, but specific training in Recognizing Domestic Violence, Gender Bias and The Effects of Domestic Violence on Children. Until courts have and apply this information, our children will not be safe when courts decide their fate.
In domestic violence custody cases, the use of shared parenting does not save court time and resources, but rather only postpones extensive litigation at great expense to the parties and harm to the children. Abusers eventually contrive incidents as an excuse to seek sole custody or protective mothers are forced to seek custody because the abusers are hurting the children. Abusive parents with limited parenting skills use shared parenting to get their foot in the door while continuing to harass and abuse their former partners. Court professionals often pressure protective mothers to accept shared custody with their abusers and punish them for trying to protect themselves and their children. Over forty states and many other court districts have sponsored gender bias commissions that have found widespread gender bias. Gender bias is particularly hard to overcome because judges and other professionals engage in gender bias without realizing they are doing so. The studies have shown that in custody cases, mothers are given higher standards of proof, less credibility and are blamed for their abuser's behavior. When mothers seek to limit contact between their children and their abuser for safety reasons and courts routinely treat this as if she is trying to interfere with the relationship between the children and abusive father, this is an example of blaming mothers for the father's behavior. Instead of courts pressuring the abuser to stop his controlling and threatening behavior, protective mothers often face retaliation and punishment for trying to protect their children. This is particularly common when courts fail to recognize domestic violence and then punish mothers who continue to believe their abuse allegations. Provisions in shared custody laws that purport to make an exception for domestic violence will continue to be ineffective as long as there is widespread failure to recognize domestic violence and to take it seriously. Accordingly shared custody laws are not beneficial in cases where the parties can voluntarily cooperate and create serious danger to children in domestic violence cases.
Barry Goldstein is a nationally recognized domestic violence speaker, author and consultant. He is co-editor with Dr. Mo Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. For more information see Domesticviolenceabuseandchildcustody.com