Legislation Needed to Help Protective Mothers
By Barry Goldstein
As I write this article, I am expecting to meet shortly with a prominent state legislator. I hope and believe some of my readers would want to speak with their legislators to discuss what the legislature can do to better protect battered mothers and their children. More than anything we need a change of attitudes and atmosphere in the custody courts, but perhaps some positive legislative changes can help improve the atmosphere in the custody courts.
First Priority Must be Safety
Every legislature has passed laws requiring courts to consider domestic violence when making decisions about custody and visitation. Clearly the main purpose is in order to protect children’s safety. The concept of safety includes more than just preventing the direct assault on a child, but also placing children under conditions that make it more likely they will engage in harmful behaviors. We know this because many of the laws were passed based upon research about the harm caused to children by witnessing domestic violence. Almost all of the states use the best interests of the child standard and most have legislation or case law that discusses the criteria to be considered in determining what is in the best interests of the children. One of the major problems with this approach is that the lists do not set forth what issues should be given priority and we routinely see court professionals focus on issues that are far less important than the safety of children. Accordingly, I believe we need legislation that states clearly and unequivocally that courts must make the safety of children the highest priority in making decisions about custody and visitation. I believe most judges and other court professionals, if pressed, would claim this is already their priority, but the decisions and standard approaches demonstrate the frequency in which less important issues are used to make these decisions while safety issues are minimized or overlooked.
If safety was the first priority, courts would need a risk assessment rather than the present practice of ordering a more general evaluation. The evaluators rarely have expertise about the risks caused by domestic violence (or child abuse) and so focus on issues they are more comfortable handling. We have seen research in which evaluators claim that safety and domestic violence are their primary focus, but in practice, based on their evaluations, the issue of “alienation” is their most important concern. No one believes alienation is a good thing, but there is no valid research that demonstrates a safety risk connected to alienation. The issue is particularly problematic because it is often used as a generalized complaint that does not give the alleged alienator information about what she specifically is charged with doing. In reality alienation is a standard abuser tactic designed to distract attention from the father’s abuse and works well for this purpose. When a parent makes false and negative statements to children about the other parent the most likely result is to harm the relationship with the parent making these false statements. Even when the alienating behavior undermines the relationship with the opposite parent, the effects tend to be temporary. If legislatures make safety the first priority, court professionals (if they followed the law) would have to resolve the safety issue before ever considering “alienation.” This would blunt the use of alienation as a tactic because it could not be considered in cases where granting custody or visitation to one of the parents would create a safety risk.
If the safety of children was the first priority, court professionals would have to consider five major areas of research and information that are needed to protect children’s safety regarding domestic violence. These professionals would either have to possess this information or rely on genuine experts with this specific information. This would make a big difference because it takes it away from a generalized need for expertise in domestic violence which is capable of many different interpretations that has allowed evaluators and other unqualified professionals to wrongly claim they have the needed expertise. Here is the minimum expertise that would be required of professionals advising the court in domestic violence custody cases and would have to be discussed in any report or testimony.
1. Knowledge of Behaviors Known to Reveal an Increased Danger of Lethality or other Safety Risk: We can never know which abusers will kill or seriously injure their partners, but there are behaviors that have been shown to demonstrate a higher risk. These behaviors would include sexually abusing their partners, putting his hands around her throat, hurting animals, hitting her while pregnant, violating laws or orders, threats of homicide, suicide or kidnapping, a belief that she has no right to leave him and seeking custody as a tactic to pressure her to return or punish her for leaving. Domestic violence advocates are familiar with this research because a fundamental part of their job is risk assessment and creating a safety plan. The “experts” the custody courts rely on rarely possess this information and we virtually never see evaluators discuss these issues in their reports or testimony. If they cannot tell what to look for to determine the danger someone presents, they cannot effectively protect children from genuine danger.
2. Understanding Domestic Violence Dynamics: Men abuse the women they are partnered with because of their sense of entitlement to control their partners and make the major decisions in the relationship. In other words domestic violence are tactics men use to maintain the control they believe they are entitled to. When court professionals place the blame for a father’s abuse on substance abuse, inability to control their anger, mental illness or the actions of his victim they are demonstrating a lack of understanding of domestic violence dynamics. This is the same mistake they make when they assume that the end of the relationship or the fact he has not assaulted her since he no longer had physical access means he has magically reformed his behavior. Many abusers only hit their partners once or twice because once she knows what he is capable of just a threat or gesture is sufficient to maintain control. Unqualified professionals do not understand this. Since his abuse is based on his belief system it would be important to investigate how he treated earlier partners and to understand the risk of children witnessing his abuse of future partners if he is given custody or unsupervised visitation.
3. Recognizing Domestic Violence: Unqualified professionals often discredit allegations of domestic violence based on information that is not probative. Common examples of this are when women return to their abuser, seek a protective order but do not follow-up, fail to provide police or medical reports or when the children show no fear in interacting with their father while the professional is observing. The children understand he would not hurt them in front of a witness. All of these are normal events, but when inadequately trained professionals treat them as disproving domestic violence allegations it prevents them from recognizing his abuse. At the same time these unqualified professionals usually fail to look for patterns of controlling and coercive behaviors beyond his physical abuse. Among the common examples they miss are psychological abuse, emotional abuse, economic abuse, isolating tactics, monitoring activities and litigation abuse. We often see cases that unqualified professionals view as a he-said-she-said dilemma, but if they looked at the pattern of his behavior it would be easy to recognize his history of abuse.
4. The Effects of Domestic Violence on Children: Unqualified professionals do not understand the extent of the harm caused by domestic violence so they minimize its significance and place children at risk. This is a safety issue because children who witness domestic violence are more likely to engage in a wide range of harmful behaviors that can kill them or ruin their lives. Witnessing domestic violence also interferes with their developmental milestones that can undermine their progress, ruin their lives and in young children hardwire their brains in harmful ways. Unqualified professionals often focus on the harm to the direct victim and so fail to consider the importance of this issue to the well being of children.
5. Knowledge of Research about Batterer Narratives: We have a substantial amount of research about batterer narratives. It demonstrates the kinds of stories, justifications, minimizations and beliefs that they use in discussing their abuse. This is important because abusers tend to be extremely effective at manipulating people including professionals. Professionals who are confident in their ability to tell if someone is lying just by watching them are especially vulnerable to this manipulation. We repeatedly hear court professionals explain why they believe the denials or justifications of alleged abusers and these are just typical explanations that would confirm the allegations if only the professionals had the information they need. We can inform these professionals that batterers are great manipulators, but the information from their narratives is far more effective in getting the message across.
Primary attachment is an important issue that affects children’s safety but tends to get minimized because mothers are expected to provide child care. The parent who provides most of the child care in the first two years of the child’s life is the primary attachment figure. Separating children from their primary attachment figure increases their risk of depression, low self-esteem and suicide when older. It does not make sense for courts to take such significant risks unless the primary attachment figure is unsafe. Most court professionals are aware that children benefit from living with their primary attachment figure, but tend to minimize its significance in the context of more controversial issues that are raised in contested custody cases. In a system where safety is the first priority, judges and other court professionals would need to articulate how other factors are so critical as to take this risk with children’s safety.
There are other valid safety issues and courts need to consider them in context and based upon the overall safety of children. Obviously if a parent is beating or sexually abusing a child, that is a paramount safety issue. If a parent is selling drugs this creates a safety risk because the children could be exposed to dangerous characters. Substance abuse may be a safety issue. We should be careful to consider that some victims self medicate themselves as a response to his abuse. Certainly we want this behavior to stop, but past usage, particularly in that context should not be disqualifying. Driving while under the influence or otherwise mistreating the children as a result of substance abuse would be a safety issue.
Mental illness could be a safety issue, but it is important for courts to look further than the diagnosis. Many of the claims of mental illness are based on flawed evaluations and particularly psychological tests that were not meant for the populations seen in custody court. They often pick up minor differences that do not reflect a safety issue. We also see unqualified professionals fail to recognize his domestic violence and then label the mother paranoid or delusional. There are also many valid diagnoses that do not impact on the care of the children. Court professionals need to be careful to avoid acting on a diagnosis that is really only a family court condition. If someone has a genuine illness, it will impact them in all areas of their lives and not just their response to their partner’s abuse and the pressures of litigating a contested custody case. Judges should ask themselves how is she acting in the rest of her life and has the alleged illness impacted her care of the children. Certainly a father who has permitted or even demanded his partner take care of the children throughout the relationship should be asked to explain how her decision to leave him and report his mistreatment of her or the children suddenly makes her a bad mother.
I like the idea of seeking legislation to make safety the first priority because it is so reasonable and hard to argue that anything else should have a higher priority. This would be a significant change and thus should require new training for court professionals. Most judges and other court professionals need not only training which most have available, but retraining because so much of the information they have received is wrong. Many trainers have complained that judges and other professionals don’t pay a lot of attention to domestic violence trainings because they think they already know everything. The creation of new practices and priorities should make them more open to hearing this information. I also believe that if courts focused on children’s safety first the outcomes would be significantly improved.
Whenever groups of advocates and supporters of protective mothers come together to discuss reform of the broken custody court system, one of the first suggestions is that we find a way to hold judges and other court professionals accountable. In the case of judges most of the likely ways to promote accountability have been foreclosed by law or practice. The judges have immunity from most lawsuits. There are committees to review judicial conduct but they are usually underfinanced and are usually controlled by people in the legal profession who have an interest in supporting judges. The appellate courts could perform an accountability function but they have generally been deferential to trial judges especially in domestic violence cases. The media has also failed to uphold its obligation to scrutinize the work of the courts.
I have heard many protective mothers advocate for the ability to sue judges and I understand their frustration as many judges have acted in vindictive and unethical ways that have placed the safety of children in jeopardy. Nevertheless, there are good reasons that judges have immunity as they have to be able to make what they believe is the right decision without concern about their personal risks. In practice abusive fathers would be more likely to sue judges so the elimination of immunity could easily backfire. It might be possible to remove immunity under very limited circumstances such as outright corruption, but suing judges cannot be the solution.
State committees designed to review complaints about judges could be reformed to hold judges accountable. In order to do this, the committee would have to be funded sufficiently so that complaints can be fully investigated. Committee members should have strict rules to recuse themselves if they have a conflict of interest. Of great importance would be to create more balance on these committees to include the public, consumers and others who are not part of the legal establishment.
Even more effective would be to keep records of the decisions made by judges and other court professionals like evaluators. Instead of focusing on an individual case that might have unusual circumstances, the records would demonstrate the patterns of decisions made in domestic violence cases. The records would provide information about how often judges rule against mothers making allegations of domestic violence or child abuse. We know that mothers involved in contested custody make deliberately false complaints only one or two percent of the time so if judges (or evaluators) are making findings for alleged abusers significantly more often it is likely they have a bias or lack of understanding of current scientific research. I would also require judges and evaluators who rule against these allegations to explain their reasoning in writing. It is not just that we would know who the bad professionals are, but I believe these requirements would discourage courts from making some of these bad decisions because they would know the information would be available to the public.
I have seen many cases in which courts impose gag orders ostensibly to protect the children, but in reality to shield the court’s improper and harmful actions from the public.. There are rare circumstances where a limited gag order might be appropriate particularly around a child’s testimony in a sexual abuse case, but the indiscriminate use of gag orders should be prohibited by legislation. Under no circumstances should parties be denied the right to speak about their situation with clergy, therapists, dv advocates, child protective agencies, law enforcement or legislators. The parties should be permitted to speak with the media. In rare circumstances they could be prevented from using their names or the children’s pictures. Any gag order must only be made after a hearing in which all parties are given an opportunity to express their concerns, the order must be in writing and explain the unusual circumstances that justify the intrusion on free speech and must be crafted to make the order as limited as possible. Public records should be kept showing the frequency with which judges create gag orders.
Making it Easier for Victims to Leave Abusers
In my research about the Quincy Model, I discovered that an important part of the program that helped reduce domestic violence crime and particularly homicide were practices that made it easier for victims to leave their abusers. There is plenty of other research that demonstrates the importance of making it easier for women to leave abusive partners.
When the modern movement to end domestic violence started many of the reforms and approaches made it easier for women to leave. This included making it easier for victims to obtain divorce, criminal prosecution, child support, protective orders, shelter and community support. This lead to a gradual but significant reduction in domestic violence homicide. Surprisingly, these reforms that were designed to protect women saved more men’s lives than women’s. It seems clear the reason for this was that many women who killed their abusers did so because they believed there was no other way to make his abuse stop. When they were provided with options and assistance to leave the number of deaths of men in intimate partner relationships dropped dramatically. In recent years abuser groups have successfully manipulated the custody courts to help them maintain control over their partners by winning custody or joint custody of the children. This has led many abused women to stay with their abusers because they are afraid the courts will help her abuser and harm their children. This has resulted in an increase in domestic violence homicides after many years of consistent declines.
I would like to recommend a new criminal law designed to make it easier for victims to leave their abusers. This is important because of the increase in homicides that has resulted from practices that undermine the ability of victims to leave their abusers. We need to create a law to prevent “kidnapping by proxy.” The law would make it a crime to commit any crime for the purpose of preventing or discouraging an intimate partner from leaving a relationship.
This would be valuable because it puts a common abuser tactic in context. It has become standard abuser practice to seek custody in order to pressure his partner to return or punish her for leaving. One of the big mistakes in the custody courts is that they fail to look at the father’s motivation for seeking custody after little involvement with the children during the relationship. As reprehensible as this tactic is, we cannot make it illegal for parents to seek custody. We have seen, however that in seeking to win custody, abusive fathers frequently make false allegations. If it is a sworn statement this would be a crime, but it is rarely prosecuted. The research establishes that fathers in contested custody cases are 16 times more likely to make deliberately false allegations than mothers. A prosecutor could use threats to seek custody if she left together with false allegations, perjured affidavits or testimony or other crimes like stalking or trespass that are often not prosecuted to prove kidnapping by proxy. I know that abusers frequently claim women make false allegations and courts often believe it when it is untrue, but this could not be treated as kidnapping by proxy because it would not be for the purpose of preventing her partner from leaving. This is important because abusers are good at manipulation and we must consider how they might misuse a law before seeking its adoption.
The most important action legislatures can take to help victims leave their abusers and reduce the crime rate is to stop standard practices in custody courts that result in abusers winning custody and unprotected visitation. This was demonstrated in the small county of Dutchess, New York where the custody courts have long been influenced by the abuser rights movement and safe, protective mothers were frequently separated from their children. In a space of less than a year, the county suffered nine people killed including five battered women and a brave police officer who was shot by an abusive father after the officer rescued a three-year-old child. Proof of the impact of the harmful custody court practices came in a report by the county legislature’s committee that was asked to review the county’s domestic violence practices. The report said that mothers were refusing to go to the county courts including family court because they had found the courts biased in favor of abusive fathers and would only harm them and their children. The last thing we want is to encourage abusers to continue their destructive behavior as the custody courts in Dutchess County did to tragic consequences.
The legislatures should adopt practices that emphasize the safety of children and the use of current scientific research instead of approaches that pressure victims to interact and cooperate with their abusers. In cases involving domestic violence, when a protective mother seeks to relocate for safety or other good reasons this should be encouraged and supported. More resources should be provided for organizations and practices that help victims safely leave their abusers.
Use of Valid Scientific Research
When domestic violence first became a public issue we had virtually no research to help inform decision makers about the best responses. Custody courts like other entities developed practices based on common beliefs and assumptions. Many of these assumptions proved wrong and the standard practices have been shown to work poorly and in fact dangerously for children. We now have substantial current research that could help inform decisions and better protect children but the courts have failed to reform their practices. They also rely on mental health professionals who have inadequate training in domestic violence as again established by an upcoming U. S. Department of Justice study. As a result most court professionals have received substantial misinformation and never sought to use current research to help them make better decisions.
This unfortunate history creates a need not just for training court professionals about current scientific research, but retraining them to change beliefs and practices that are outdated and discredited. Part of the problem is that after hearing misinformation throughout their careers, many court professionals have an unjustified confidence in their understanding of domestic violence. This causes many professionals to refuse to participate in needed training or pay little attention when valid scientific research that contradicts standard practices is presented.
One problem caused by the failure to use current research is the lost opportunity to understand key issues, but the other problem is the frequent use of myths, stereotypes, misinformation and bias as a substitute for information. We see this in the use of Parental Alienation Syndrome (PAS) which has no scientific basis but has been used to force thousands of children to live with abusive fathers and separate them from safe, protective mothers. This is how the myth that mothers frequently make false allegations has been permitted to infect decision making. The frequency of gender bias is encouraged by the failure to look to current scientific research. All of this contributes to the frequent mistaken decisions that have ruined so many children’s lives.
The Ability to Save Lives and Save Money
When I was in college I conducted research regarding returnable bottle legislation. I was hoping to gain the environmental and energy benefits of the bill if the costs were not too high, but I learned that rather than costing money the law would result in increased employment and lower prices because of all the energy that would be saved. The law has been a huge success in the states that passed it but the special interest groups provided tremendous misinformation and pressure to prevent passage elsewhere.
I decided more recently to study the approaches to domestic violence in Quincy, Massachusetts and Poughkeepsie, New York hoping to learn how to obtain the benefits of reduced crime and particularly preventing domestic violence homicide. I was not surprised that there might be some financial benefits because domestic violence wastes the potential of victims, their children and even the abusers. I was shocked, however when I researched the information and found that adopting practices that have been proven effective we could quickly save $500 billion every year and this is likely to increase over time as more children grow up without witnessing domestic violence.
The Quincy Model involved a series of effective practices and priorities from the late 1970s until the early 1990s that resulted in a drastic reduction of domestic violence crime and particularly homicide. At the time there was little research available, but District Attorney Bill Delahunt noticed that almost all of the inmates in the nearby high security prison had childhood histories involving domestic violence and/or direct physical or sexual abuse. This led him to realize the importance of taking domestic violence and incest crimes seriously as a way to reduce all crimes.
Bill Delahunt was joined by other professionals in the criminal justice system including Judge Albert Kramer, Sarah Buel who led the domestic violence office for the prosecutor, Andy Klein, the director of probation, David Adams who later created EMERGE, the first batterers’ program in the nation and many other professionals. Together they created a dramatic reduction in domestic violence crime by taking seriously crimes that used to be considered a private family matter.
These benefits came from practices that strictly enforced criminal laws, restraining orders and conditions of probation. Although a coordinated community response was not part of the initial practices it soon provided the support and communication necessary to make the model work. Although it did not receive the attention of other practices, making it easier for victims to leave their abusers played a key role in the success in Quincy. They also benefited from aggressive coverage in the media which helped send a message to abusers that domestic violence crimes would result in serious consequences.
The opposite of Quincy was in Poughkeepsie, New York where abuser rights groups were allowed to influence the custody courts and other practices also undermined efforts to prevent domestic violence. Some local judges failed or refused to arraign offenders in misdemeanor domestic violence cases when court was not in session. This resulted in the abusers receiving appearance tickets and their victims being unable to obtain a protective order. The bias and flawed practices in the custody courts resulted in frequent awards of custody to dangerous abusers and punishment of safe, protective mothers by limiting them to supervised or no visitation with their children. There was widespread failure to enforce violations of protective orders in the county. The problems were exacerbated by cuts to domestic violence funding by the county legislature and poor reporting by the media.
These flawed practices resulted in five domestic violence homicides in a period of less than a year resulting in the deaths of nine people including five battered women and a courageous police officer who was shot by an abusive father after rescuing a young child. After the first of these tragedies, the county legislature asked its domestic violence committee, made up of professionals working on domestic violence issues to report on the county’s response to domestic violence. Included in their findings was that the practices in the courts of failing to support battered women had led many victims to stop going to court to seek assistance because the courts frequently instead supported their abusers. In other words, the court practices made it harder for victims to leave domestic violence offenders.
The comparison of the approaches to domestic violence in Quincy and Poughkeepsie made it easy for experts to understand what practices could be adopted to reduce not only domestic violence crime, but other crimes also. These best practices include strict enforcement of criminal laws, orders of protection and probation conditions. The community should support practices and provide resources that make it easier for victims to leave their abusers. Communities also need to create an active coordinated community response that includes the professionals working on domestic violence issues and other parts of the community. It is important for the local media to take an active role in reporting about domestic violence issues and become part of the coordinated response. It is especially important that the custody courts have as one of its goals supporting the community’s efforts to prevent domestic violence. Male supremacist groups developed the practice to encouraging abusers to seek custody as a tactic to pressure victims to return or punish them for leaving. The flawed practices used in custody court unwittingly help abusers undermine the work of the rest of the community trying to prevent domestic violence. The courts should look to current and valid scientific research to inform its decisions. One of those findings is that only accountability and monitoring have been shown to change abusers’ behavior. The research also establishes that it is in the best interests of children in domestic violence cases to live with the safe parent and for the abuser to be limited, at least initially to supervised visitation until he can demonstrate a change in behavior and beliefs.
The human benefits of achieving a sharp reduction in domestic violence crimes are expected, but the dramatic financial savings this would provide is especially exciting because it could create an irresistible incentive to do what society should have accomplished long ago. In the past most studies of the health care costs caused by domestic violence tended to be limited to the cost of treating the immediate wounds inflicted by an assault. A group of medical professionals, however looked at the long-term financial effects. They specifically considered the many illnesses that are created or exacerbated by stress because there are few things more stressful than living with an abuser. The costs related to self-medication and mental illnesses like depression and PTSD further added to the expense. When we also consider the costs involving children witnessing domestic violence the health bill for tolerating domestic violence is $750 billion annually. The cost of crime in the U. S. is over $1 trillion a year and this includes domestic violence crime and other crimes committed by children impacted by witnessing domestic violence. Conservatively the share caused by domestic violence is at least $200 billion. Many people impacted by domestic violence never reach their potential. Not only does this include women killed or seriously injured by their abusers but also women prevented from completing their education or not permitted to develop a career. Abusers who waste their time stalking and harassing their victims or with criminal records fail to reach their potential. Many children witnessing domestic violence are also impacted as are third parties who become victims of these children. Most of these individuals would become part of the economy and make general contributions to society. Some might have created business or even new industries, made medical, scientific or other breakthroughs or inspired others such as teachers. The financial loss is hard to calculate but clearly the total annual cost of domestic violence is more than one trillion dollars. I believe the policies discussed earlier would quickly save at least $500 billion per year and as children grow up in homes where men are not abusing their partners, the losses will gradually be further decreased.
The practices described in this article can be implemented locally, by state or nationally. The benefits would quickly be realized and the huge financial incentive should help create the needed support. I am sure legislators would much rather concern themselves with how to divide the surplus than the present problem of responding to ever increasing deficits.
Any judge could take the present laws and with good knowledge and practices make the right decision in almost every domestic violence case. The obstacle is that courts are used to using a lot of outdated and discredited practices and many court professionals believe a substantial amount of misinformation. Particularly harmful is that many judges and other professionals have an undeserved confidence in their practices so they are not open to hearing more accurate and supported information. I have heard some judges suggest that the failure of the legislature to enact reforms is proof the courts are satisfying the intent of the legislators.
This is why it would be useful to pass legislation that creates reforms and demonstrates a lack of satisfaction with the current failed practices. My meeting with the legislator went well and we are working on legislation to make safety the first priority when determining the best interests of the child. I believe this is a good place to start because it would be hard to argue this and I suspect many professionals would claim to be doing so. The requirement that professionals advising the court have expertise in the five needed aspects of safety discussed above follows logically from the focus on safety. At the same time it would require meaningful changes because evaluators and other court professionals do not have this needed information. I believe a focus on this information would change outcomes and who is providing the information. Certainly the widespread refusal to listen to dv advocates and experts would have to stop as they are the ones most familiar with these safety issues. I particularly like the idea that this change would require not just the training but retraining of judges and other court professionals. Suddenly information they now pay little attention to would be required in order to do their job.
I hope that many protective mothers and their supporters will contact their legislators to seek some of the needed reforms. When proposed legislation is drafted, I will be happy to share with everyone. I know it is easy to be discouraged when we continue to hear one atrocious story after another, but I think there are now more people aware that there is a problem in the custody courts and hopefully this will soon be translated into needed reforms and then decisions that actually protect children.
Changing Abusers’ Behavior: What Works What Doesn’t
By Barry Goldstein
A few years ago I attended a national conference for and about batterer programs. One of my colleagues aptly referred to it as a marketing conference for the batterer program industry. I am sure there were many people at the conference that sincerely sought to reduce domestic violence and believed their programs could help accomplish this. Nevertheless I was appalled at practices that undermined the safety of women partnered with abusive men and frequent inaccurate claims that their programs could change men’s behavior and make it safe for women to live with them.
The modern movement to end domestic violence began in the mid to late 1970s and helped make men’s violence against women a public issue. This focused attention on the question of how to stop men in heterosexual relationships from abusing their partners. At the time there was little research available to help policy makers and most of the decisions on how to respond to domestic violence were made by people who did not understand domestic violence dynamics. This led to attempts to promote partner safety through ineffective approaches that continue to the present.
One of the fundamental questions was whether to respond by changing individuals one at a time or to promote societal changes. The primary response has been to focus on the individual such as by creating shelters and counseling for survivors and batterer programs and forms of treatment for abusers. This has undermined recognition of the need to make fundamental changes to the status quo by creating an appearance that society is engaged in an effective response to domestic violence. Ironically the present response has resulted in a substantial reduction in the number of men killed by their heterosexual partners, but only a small decrease in the number of women murdered by their abusers.
Common Practices Providing Little Protection for Women
Society has adopted many flawed practices in responding to domestic violence and failed to use critical thinking in understanding what strategies are likely to work. Large sums of money have been wasted repeating studies about the effectiveness of batterer programs and other unsuccessful approaches. These are based on a lot of unexamined assumptions. Repeatedly we have seen attempts to measure the success of a program based on re-arrest rates without any basis to assume the lack of a new arrest makes it likely he has changed his behavior. New and additional studies are piled on earlier flawed studies based on false assumptions like this. Too often there is a financial incentive to claim practices and approaches change men’s behavior. This results in a lot of misleading claims and then further research based on the earlier flawed studies.
1. Mental Health Treatment: Many people including abusive men can benefit from a variety of forms of therapy. A batterer could have a mental or emotional illness in addition to his abusive behavior. With extremely rare exceptions his mental health issues are not the cause of his domestic violence tactics and resolving them will not make it safe for a woman to live with him. Batterers sometimes like to seek therapy as a way to avoid accountability for his actions and create a false sense that he is likely to change. A full understanding of domestic violence dynamics is critical to responding to intimate partner violence. The cause of his abuse is his belief system and sense of entitlement. This is not something changed with therapy. Too often mental health professionals with little or no expertise in domestic violence and overconfidence in their therapeutic skills encourage the belief that they can change his behavior. There is no valid research to support these claims.
The custody court system made the mistake of treating mental health professionals as if they were experts in domestic violence. This was based upon the popular assumption when domestic violence first became a public issue that domestic violence was caused by mental health problems, substance abuse and the behavior of the victim. We now know these assumptions were wrong, but the custody courts continue to rely on unqualified mental health professionals for domestic violence cases and the result has been frequent mistakes that place children in jeopardy. One of the big risks is that partners and judges will believe his therapy reduces the risk he poses to his partner. This can lead to bad decisions that place his partner and any children in danger.
2. Substance Abuse: Long before the start of the modern movement to prevent domestic violence there was a widespread belief that alcohol or drug abuse was the cause of the batterer’s assault. Many unqualified professionals continue to believe this even today. Often he would come home after drinking too much and severely assault her. Accordingly the excess drinking was assumed to be the cause of his assault. The use of drugs or alcohol reduces inhibitions so that when he assaults her while under the influence his assault is often much worse than at other times and certainly more memorable. One of the main reasons the Women’s Christian Temperance Movement lobbied for prohibition was their belief that it would lead to less wife beatings.
An abusive man with a substance abuse problem would certainly benefit from treatment or other programs to end his abuse of alcohol or drugs. It is completely appropriate for courts to mandate such programs in response to a domestic violence crime. The court and his partner need to understand, however that his substance abuse did not cause his partner abuse and if he successfully completes a program to deal with his addiction, this would not resolve his domestic violence issues.
A closer look at his behavior will demonstrate he has a belief system and sense
of entitlement that he uses to justify controlling and coercive behavior towards his partner. He engages in these tactics even when he is sober. Abusive men often use their substance abuse problem as an abuse excuse while trying to avoid accountability for their mistreatment of their partners. Significantly, many men with substance abuse problems never abuse their partners while under the influence because it is not a behavior they would consider. This is why we do not see people commit cannibalism while under the influence. It is a behavior they would never consider while sober.
3. Anger Management: Some courts continue to send batterers to anger management classes although there is no valid research to support this practice. Anger management is a legitimate problem for some people and such classes can be helpful. Someone with an anger management problem cannot control their anger towards anyone. They are a danger to assault their boss, the bank teller or police officer. Domestic violence perpetrators have complete control of their anger and use it to help coerce their partner. They control their anger, often after far more provocation when interacting with others because they know there would be serious consequences if they failed to do so. They abuse their partners because there is a long history of husbands abusing their wives with no accountability consequences to him.
In the New York Model Batterer Program that I instruct in the men will point out that they don’t have an emotional involvement with others who they don’t assault, but cannot control themselves when their partner “pushes their buttons.” What happens if she does something that he defines as improper when they are out in public? He may be angry, but he controls his anger and waits until they are home and there are no witnesses before abusing her. In other words he controlled his anger as long as he knew there would be consequences if he hurt her in front of others.
4. They Need Tools: In one of the classes I taught we started with a check in and then one of the men asked where another man was and the answer shocked everyone. He was in jail accused of murdering his wife. The men and instructors were genuinely upset about this tragedy and the men repeatedly asked why we did not provide them with tools so they would know how to respond if they became upset. The instructors did not have an answer so we promised to discuss it in our weekly training and respond the following week. During the discussion we came to understand that every man in the class already knew how to behave appropriately if it was important to him. He used these “tools” in his interaction with others and used them with his partner at the start of their relationship. In fact if he had not initially treated her respectfully there would never have been a relationship. In other words the men already had the tools to treat their partners properly. If we used the class to teach tools it would be colluding with the men. If they were really unable to avoid abusing their partners it would be unfair to punish them for something they could not help. In fact they know how to behave and do so throughout their lives even when something happens that makes them angry. Therefore if they mistreat their partners they are responsible and should be held accountable.
5. Batterer Programs: Most people probably believe the purpose of batterer programs is to change offenders’ behavior. The government has spent a fortune trying to determine the “effectiveness” of the many programs. What would it mean to say a program is successful or effective? This is often measured by recidivism or in other words how often are men who complete the program later arrested for a domestic violence crime? The problem is that this measure actually tells us very little. Domestic violence crimes have the lowest rate of reporting so many men who continue to assault their partner are never again arrested. The failure of the court’s response and abusers’ practice of blaming their partners for their arrest often discourages women from involving the police or the courts again. Accordingly the lack of a new arrest does not mean he never committed another domestic violence crime.
Furthermore, most acts of domestic violence are not illegal. The abuser might continue to believe he is entitled to use domestic violence tactics to coerce and control his partner, but limit himself to legal tactics so he does not face any consequences for his actions. How could we measure if he is doing this? Some programs and research seek to measure it by asking the offenders if they stopped abusing their partners. For obvious reasons their answers are suspect. Some programs seek to obtain more honest answers by asking their partners. I believe this is unethical because it places his partner at risk. If she reports that he is continuing to abuse her he is likely to punish her or hurt her for revealing his continued abuse and if she lies in order to protect herself the program assumes their practices have been successful. Accordingly when programs make claims about their success rate there is good reason to doubt the validity of their findings.
A better question to ask in evaluating the success of batterer programs would be what happens to a man who fails to complete the program. A study of batterer programs across the country found that only around half of the time do men who fail to comply with a court order face further consequences. This is important because it sends an important message about how seriously the courts and in turn society takes domestic violence. Consider what happens if someone gets a parking ticket and fails to pay the fine. It may take a while, but eventually the driver will face increased fines, an inability to obtain a new registration and drivers’ license and in some cases might find a boot on the car. In other words society takes parking violations seriously. It is a sad commentary on community values if they place more emphasis in enforcing parking violations that the brutalization of women by their intimate partners.
Practices that Would Provide Protection for Women
It is not just that the common practices are not helpful in ending men’s violence against women. They create the illusion that something useful is being done and drain resources from practices and approaches that would provide better protection for women partnered with abusive men. We have the ability in the short term to drastically reduce at least domestic violence crimes and if we adopt best practices would also start to reduce other forms of domestic violence. Here are some of the approaches that could take society from the appearance of responding to domestic violence to actually making women safer.
1. Accountability: Men are far more likely to assault and abuse their intimate partners than anyone else in part because they do not expect to suffer any consequences for their actions. Holding men accountable for their abusive behavior sends a message that society no longer will tolerate his abuse. He will stop his abuse or at least criminal abuse because he does not wish to risk jail or other real punishment. The success of the Quincy Model and other communities that enjoyed a drastic reduction in domestic violence crime and particularly homicide used strict enforcement of criminal laws, protective orders and probation limitations as an effective way to prevent domestic violence crimes.
Many men grew up in homes where they saw their fathers abuse their mothers and suffered no consequences for doing so. Many of these boys grew up and decided not to repeat their father’s behavior. Others took the message from the lack of consequences that such behavior is acceptable in our society. A jail term or other serious penalty is needed to reverse the message and discourage men from repeating their criminal acts.
2. Monitoring: The only responses to domestic violence that have been shown to create a long-term change in men’s behavior towards their partners are accountability and monitoring. Probation departments that have used strict and aggressive monitoring of domestic violence offenders have been shown to be successful in discouraging men from repeat offenses. In the Quincy Model, the probation department closely monitored their clients which contributed to a reduction in domestic violence crime. When men on probation were charged with a new crime they would quickly charge him with violating probation. This permitted them to jail him immediately instead of waiting for his case to go to trial. This provided safety for women as their partners would be out of circulation and sent the message that Quincy was taking domestic violence seriously.
3. Making it Easier for Women to Leave: The modern movement to end domestic violence has resulted in many laws and practices designed to help women partnered with abusive men. As a result of these reforms it is easier for women to obtain divorce, protective orders, shelter, financial support, advocacy, criminal prosecution and community support. Significantly, each of these improvements has made it easier for women to leave. It is no coincidence that practices that made it easier for women to leave also resulted in a reduction in domestic violence crime and particularly domestic violence homicide. More recently abusers have learned to use the custody courts to go after the children. The frequent mistakes caused by inadequately trained court professionals have resulted in frequent awards of custody to abusive fathers. Many mothers have responded by staying with their abusers in order to be close to their children in order to protect them. The recent increase in domestic violence homicides after many years of declines are likely caused by the widespread failures of our custody courts. They have made it harder for battered mothers to leave abusive fathers.
The problems caused by making it harder for women to leave their abusers are illustrated by a series of preventable tragedies in Dutchess County, New York. For many years the custody courts in Dutchess have been strongly influenced by “fathers’ rights” groups. The courts have routinely minimized the significance of domestic violence complaints and often failed to recognize the pattern of coercive and controlling behavior because of the use of flawed practices and unqualified professionals. The result was frequent cases in which the abusive father won custody and safe, protective mothers were taken out of their children’s lives. As a result of these and other practices that created ineffective responses to domestic violence the community suffered six domestic violence homicide incidents in little over a year that resulted in ten deaths including the loss of five women and a police officer.
The county legislature asked a citizens committee made up of professionals in the relevant professions and disciplines to investigate the county’s response to domestic violence and make suggestions for improvements. The committee found that battered women and particularly protective mothers were refusing to seek court assistance because the courts were so frequently siding with abusers and in many cases helping the abusers maintain their control over them. In other words the flawed practices by the courts in response to domestic violence led more women to stay with their abusers and this was an important factor in encouraging the tragedies men committed in Dutchess County.
In contrast, the Quincy Model included practices and approaches to help make it easier for women partnered with abusers to leave. They set up special days and times for courts to hear domestic violence cases and took these cases out of order on other days. In other words they made these cases a priority. Police, prosecutors, court clerks and advocates made it easier for women to seek assistance and understand the court procedures. Strict enforcement of criminal laws, restraining orders and probation conditions supported the women and made it easier to leave. These practices that helped women escape from their abusers resulted in a significant reduction of domestic violence crimes and especially homicides.
4. Stop Forcing Children to Live with Abusers: A few years ago I wrote an article discussing how we know the custody court system is frequently sending children to live with abusers. I cited examples of ten types of research and information that established the frequent mistakes in domestic violence custody cases were causing courts to place children in danger. Since that article was printed many additional articles and studies have appeared that confirm my conclusions. The purpose of abusive fathers seeking custody, particularly fathers who had little involvement with the children during the relationship is to regain control over their partners or punish her for leaving. The custody courts have made these tactics successful and in doing so discouraged battered mothers from trying to leave their abuser. As discussed above, this has led to an increase in crimes including domestic violence homicide.
A study by the Leadership Council has established that every year at least 58,000 children are sent for custody or unprotected visitation with dangerous abusers. Although the first priority in deciding custody ought to be safety, the custody courts regularly use professionals and make decisions without knowledge of the kinds of abusive behaviors that demonstrate a higher risk of lethality or other risks, without any understanding of domestic violence dynamics or even how to recognize domestic violence. In other words the courts are giving themselves no chance to engage in the kind of investigation necessary to make an informed decision. Even worse when protective mothers or qualified professionals criticize their mistakes the courts respond in a defensive and retaliatory manner.
One of the fundamental problems is that court professionals have been taught that contested custody are “high conflict” cases. This leads them to look for mutual conflict and to pressure the parties to work together. The research demonstrates that a large majority of contested custody are domestic violence cases so mothers are being punished for not wanting to interact with their abusers. Most of these contested custody cases involve the worst of the worst abusers. Fathers who had little involvement with the children during the relationship but seek custody because they believe she had no right to leave. The courts use of flawed practices and failure to look to current scientific research about domestic violence leads them to help abusive fathers maintain power and control. Often the courts punish the mothers as the fathers request. This makes it harder for battered mothers to leave and undermined the laws and practices designed to prevent and discourage domestic violence.
5. Use Multi-Disciplinary Approach with Current Scientific Research: The book I co-edited with Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY features a multi-disciplinary approach with chapters by the leading experts in the U. S. and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. We did this deliberately because this gives professionals access to all the current scientific research and encourages an open discussion. I have frequently seen custody court professionals limit themselves to information and training from people in their profession and so fail to be open to new information even if the face of frequent mistakes by the courts.
Best practices involve consultation between different disciplines and professions in order to create the most effective responses to domestic violence. Many communities have adopted practices where the child protective agency and domestic violence shelter work together to respond to possible domestic violence cases. They cross-train each other’s staff and when potential domestic violence cases are reported the caseworkers consult with domestic violence advocates and sometimes they go together to the homes. This has resulted in caseworkers better able to recognize domestic violence and formulate arrangements that work best for the children.
The psychology and psychiatry professions recommend that when someone is handling a case that involves subjects in which they are not experts they should consult with someone who is. Unfortunately these recommendations are aspirational so failure to use these best practices does not result in discipline. Repeatedly we see evaluators appointed by the court with little or no training in domestic violence fail to consult with a domestic violence expert. This is why such a high percentage of domestic violence custody cases result in arrangements harmful to children. Rita Smith, Executive Director of the National Coalition Against Domestic Violence was right when she wrote in the afterward of our book that once the book is published court professionals who continue to use these outdated and discredited practices should be understood to be committing malpractice.
6. Rely on Genuine Experts: Domestic violence professionals are part of the only profession that works full time on domestic violence issues. Judges and other custody court professionals tend to minimize their value because the advocates often have less formal education than the unqualified evaluators and other professionals relied on by the courts, are seen as partisan because “they always oppose domestic violence,” and the courts are not used to thinking of domestic violence as having a specialized body of knowledge that requires expertise.
The custody courts turned to mental health professionals at a time when there was a widespread assumption that domestic violence was caused by mental illness, substance abuse or the behavior of the victim. At the time and until very recently the higher degrees the courts put such high value on were obtained with no training about domestic violence. Even now few of the evaluators and other professionals relied on by the courts have more than a few minutes of formal training in domestic violence and often a couple of hours at a workshop is the extent of their domestic violence training. Nevertheless these professionals continue to try to handle domestic violence cases without the assistance of experts because they don’t know what they don’t know.
In contrast, domestic violence advocates are provided extensive training in domestic violence before they start their work and regularly attend additional trainings. Indeed they are often the experts that provide trainings for professionals and others in the community (particularly those not involved in the custody court system). Perhaps the most important part of their job is assessing the dangers faced by their clients and helping to create a safety plan. The advocates understand domestic violence dynamics and how to recognize domestic violence. They are also familiar with current scientific research. In other words they have all the needed expertise that the professionals relied on by the courts are missing.
I have heard many judges express the view that domestic violence advocates are partisans, but this is based upon a lack of critical thinking. The policy of every state and every court is to work against domestic violence. Advocates do not support false allegations by mothers both because it is wrong and they make it harder for battered women to be believed. The advocates are best able to recognize domestic violence and safety risks and to suggest remedies to avoid harm to survivors and their children. According to the law this is exactly what the courts are supposed to be doing.
Judges, other court professionals and the public are not used to thinking of domestic violence as a subject for expertise. In part this is caused by the fact there was virtually no research available at the start of the modern movement to end men’s violence against women so the courts never got into the habit of seeking this information once it became available. Most people have had some experience with domestic violence as a victim, offender or knowing people who are. There is a tendency to reach general conclusions from the few cases they think they have knowledge of. If they are personally involved it may be hard to be objective and if they hear the story from someone else they likely heard only one side. Domestic violence advocates base their knowledge on personal experience with at least hundreds of cases and research based on thousands of cases. This helps them identify patterns which are so important in understanding domestic violence and particularly keeping the issues in context. This is one of the reasons advocates are so much more qualified to provide advice about domestic violence and their conclusions are so much more accurate than court professionals. We frequently see courts reach conclusions that are possible but extremely rare such as the belief the batterer suddenly stopped his abuse without any intervention. I often hear judges say they have to look at each case separately, but in doing so they miss the pattern. This is the kind of information they need and would receive if they were open to listening to domestic violence experts.
7. Work to End Sexism and all other Oppressions: One of the many problems in responding to domestic violence is that in sexist societies we are not responding to aberrational behavior but rather normal behavior. We often see journalists and court professionals confused by information that the alleged abuser is successful in other parts of his life and is known for good deeds and other positive behaviors that make it hard for untrained professionals to accept that the same man has brutalized his partner often over many years. Similarly we often see untrained professionals have difficulty believing domestic violence allegations against someone who is well dressed and well spoken.
Men do not commit domestic violence in a vacuum. Indeed the failure to view their behavior in context is a major impediment to understanding and recognizing domestic violence. Men’s behavior towards women takes place in the context of hundreds and thousands of years in which men were allowed and even encouraged to abuse and control their wives. In many of our lifetimes, domestic violence crimes that are now prosecuted were considered legal or at least treated as private matters for which the government was not expected to interfere. Wife rape was treated as legal behavior because men were considered to be entitled to sex from their wives.
We often see slumlords that mistreat their tenants and provide unsafe homes. If an angry tenant burned down the building no one would suggest that the bad behavior by the landlord excuses or justifies the act of arson, but we frequently hear abusive men or their attorneys justify his abuse because of something his partner did that made him angry and worse we hear judges and other court professionals take the explanation seriously. In one notorious case in which the abusive father admitted to calling the mother 20-25 times a day as late as 1 AM when he knew the mother and children were sleeping, the judge ruled he was justified because he was angry at the mother because he believed he missed some of the phone calls he was entitled to. Only in a sexist society would someone believe this explanation was worth making much less acted upon by a court of law.
The men in the batterer program I instruct often question why we spend so much time discussing other oppressions instead of focusing on domestic violence. I sometimes respond by discussing the exhibits at the King Center in Atlanta designed to honor the life and work of Dr. Martin Luther King. They have an exhibit about the continuation of his work today that features many activists from around the world. One of the people featured was the woman who started the domestic violence movement in Russia. Dr. King’s family understands that we cannot end one oppression like racism without ending all oppressions. In other words the work to end domestic violence and sexism helps support the work to end racism. Toward the end of Dr. King’s life he was preparing to lead a poor people’s demonstration because classism is another form of oppression.
A year before Dr. King’s death, the Supreme Court issued a landmark decision Loving v. Virginia that invalidated state laws denying the rights of blacks and whites to marry. At the time a majority of the public or certainly whites probably supported laws that prevented whites and blacks from marrying each other. The court recognized the fundamental violation of basic rights including equal protection and it is fair to say a large majority of the public would now oppose any restrictions. Just as racism was used to limit who could marry, the present issue of same sex marriage is opposed by many people based upon heterosexism. There was never a rational basis for either restriction of fundamental human rights and dignity and acceptance of same sex marriage appears to be increasing so that it will eventually be accepted like interracial marriage is today.
Those of us working to end domestic violence understand that sexism is the cause of domestic violence. Sexism encourages the belief that men are superior to women and entitled to unearned privileges including the right to control their intimate partner and make the major decisions in the relationship. The belief that women are less than men causes widespread harm to our society and robs us of much that women could contribute to our wealth, health and happiness because it undermines the ability of women to reach their potential.
8. Coordinated Community Response: Men in batterer programs often suggest that the best approach to domestic violence would be to “teach the children.” On the surface this seems like a good idea and certainly we want to reach children and provide them with a perspective about the importance for men to treat their partners respectfully. In the program we often start a discussion about where children get their ideas and beliefs. We quickly make an extensive list of sources that include friends, family, peers, religious institutions, the media, business and many others. The point is that if children received a good message in class but received the typical misinformation from the other sources their belief systems would not fundamentally change.
The present widespread beliefs that tolerate or encourage men’s abuse of their intimate partners comes from a long history of sexist practices and the constant reinforcement of misinformation from all the major institutions in society. This is why a coordinated community response is necessary so that positive messages are coming from each community to reinforce each other and make the prevention of domestic violence a high priority.
Each part of the community has a positive role to play to reinforce the message against domestic violence and to stop delivering messages that support men’s sense of entitlement and privilege. Thus the media needs to stop supporting the belief that the value of women has to do with their attractiveness or body parts or that they should be limited to “women’s roles.” They need to stop publishing and broadcasting stories about domestic violence crimes that actually sympathize with the offender and often invisibilize or blame the victim. The media particularly needs to expose the crisis in the custody court that has resulted in at least 58,000 children being sent for custody or unprotected visitation with dangerous abusers every year and the deaths of 175 children in a recent two year period caused by abusive fathers involved in contested custody.
Many religious institutions helped abusers and encouraged domestic violence by pressuring women to stay with her family despite the danger and her partner’s abuse. Quotations from holy books and documents were often misused to encourage women to stay. More modern and responsible clergy instead speak of the importance of peace and safety and treating partners respectfully. Many religious institutions now take on a strong role of working to discourage domestic violence and supporting survivors.
Unqualified mental health professionals often seek to treat abusers as if their mistreatment of their partners was caused by mental illness. Unethical therapists provide couple’s counseling despite the danger to women. Unscrupulous evaluators and other professionals have adopted practices supporting abusers in order to increase their income. This has contributed to the widespread failure of the courts to safeguard protective mothers and their children. Mental health professionals who work as part of a coordinated community response refuse to engage in such unethical practices but do provide support and assistance for women partnered with abusive men and their children.
For years the medical community treated the physical wounds without considering the cause based on the common belief that it was a private matter. Today they can make a record of her injuries so it can be used later when she is ready. They also make information and resources available to the survivors by making sure they have private conversations away from their partners.
Throughout this article I have discussed the role of criminal courts to hold abusive men accountable and make it easier for women to leave. The custody courts need to reform their practices so they can become part of the community response seeking to prevent domestic violence instead of frequently helping abusive men maintain control over their partners and punishing her for trying to leave. In all of these efforts the community should look to the domestic violence agencies for information, resources and leadership. Communities that have an active coordinated community response tend to have lower crime rates and more support for domestic violence survivors.
The media recently reported on a story in which a man walked into a beauty salon and murdered his ex-wife and several others. The stories emphasized what a nice man the murderer was and such a devoted father. His history of domestic violence and homicidal threats were ignored or barely mentioned. I wrote to one of the reporters complaining about the approach to the story and suggested they should have interviewed a domestic violence advocate or other expert. The reporter agreed this was a good idea and promised to do so. Journalists are not the only profession that routinely fails to know who the experts are regarding domestic violence or to seek their assistance when responding to possible domestic violence cases or incidents.
Part of the problem is the false assumption that mental health professionals are domestic violence experts. Some are, but not because of their degrees. Part of the problem was the lack of research and expertise at the start of the movement to end domestic violence when decisions needed to be made about the best ways to respond to domestic violence. The frustrating part is that we now have a specialized body of research that could inform other professionals and help them make better decisions but many factors are preventing the use of this expertise.
We know how to respond to domestic violence in a much more effective way. We have the ability to eliminate a large majority of domestic violence crimes and particularly homicides. We also know that children who witness domestic violence or are themselves directly abused are far more likely to commit crimes when they are older. In other words a substantial portion of crimes would be prevented if domestic violence crimes were significantly reduced. People impacted by domestic violence including the abusers, their partners, the children who witness his abuse and third parties who become victims of crimes committed by these children often never reach their potential as a result of society’s continued tolerance for domestic violence. Many of those impacted might just lead a normal life, pay taxes and contribute to society in a variety of ways. Some may have made substantial contributions to society developing new businesses or even industries, making health or other scientific discoveries to improve society. Some might be teachers who inspire students to do something remarkable. The possibilities are unlimited.
The health care impact of domestic violence tends to be drastically understated because we typically only consider the immediate expense to heal a wound. Stress is an important factor in causing and exasperating many common diseases and few things are more stressful than domestic violence. Domestic violence often creates the need for extensive mental health services for PTSD and other conditions caused by domestic violence. The crimes discussed earlier creates still further need for medical treatment.
A group of medical professionals recently calculated that the United States spends as much as $750 billion every year on health care related to domestic violence. We spend over a trillion dollars every year in expenses caused by crime. Obviously we would have plenty of crime even if domestic violence were greatly reduced but it is likely a couple hundred billion can be attributed to domestic violence. The lost potential is hard to calculate because we cannot know what might have been but it is reasonable to believe the cost in the United States is hundreds of billions of dollars annually. There are many other costs such as lost work days. To be practical not all of our losses to domestic violence can be expected to be recovered by the adoption of best practices, but hundreds of billions of dollars can be saved every year. This is in addition to the lives lost and the quality of the survivors’ lives.
This seems like an awful lot of money to throw away to justify past bad practices, help unqualified professionals make a good living helping abusers or to maintain the ability of abusive men to keep their unearned privileges. I believe we should start an honest discussion based on critical thinking about the costs of the present practices and our ability to do better. I believe an open discussion will lead to the needed reforms. Perhaps there are people that would like to share $500 billion this year and every year for the rest of our lives. Even better most women could lead their lives without experiencing domestic violence crimes.
Why Don’t We End Domestic Violence?
Society has the knowledge and ability to prevent a large majority of domestic violence crimes and especially murders. It is not like cancer or heart disease which would require some fundamental changes in human behavior to achieve massive reductions. We could easily put together a change in laws, policies and practices and quickly end the danger of domestic violence for most women and children. If we could as readily prevent most of the deaths from earthquakes, tornados, cancer or terror attacks, we would not hesitate to do so. Why should we continue to tolerate the enormous harm caused by abusers? Many of our leaders have spoken of and dreamed of a world without domestic violence. This is a worthy goal, but I am not naïve enough to believe we can end all domestic violence in our lifetimes. We can, however create a massive reduction in domestic violence crimes. I say let’s do it.
Our publisher asked Mo Hannah and I to prepare a second volume of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. I decided to write a chapter for the book of a modern tale of two cities comparing Quincy, Massachusetts with Poughkeepsie, New York. I selected Quincy, Massachusetts because they had developed the Quincy Model which had resulted in a drastic reduction of domestic violence homicide. I selected Poughkeepsie, New York because they had been severely criticized for using approaches in custody court that strongly favored abusive fathers. The court system and particularly the judges reacted to the criticism in a defensive and retaliatory manner. Dutchess County has now had a series of domestic violence homicides including the last crime in which the abusive father also killed a police officer. The County Legislature created a committee to study and respond to the series of domestic violence homicides and I am interested to see if they make a connection between the murders and the pattern of mistreatment of protective mothers in the custody court system.
In the late 1970s around the start of the modern movement to end domestic violence, approximately three thousand domestic violence homicides were committed each year in the United States. The frequency of domestic violence homicides did not change significantly until society adopted policies and practices to hold abusers accountable, particularly with pro-arrest policies. The timing of the increased accountability with the reduction in domestic violence homicide supported the belief that these policies led to the reduction, but perhaps what was most convincing was the results in communities that were especially strict in enforcing domestic violence laws. Communities like Nashville, Tennessee and San Diego, California saw even more dramatic reductions in domestic violence homicide as a result of strong programs to prevent domestic violence. Quincy, Massachusetts adopted its model in response to a series of domestic violence homicides and for many years they had no domestic violence homicides in Quincy.
Achieving a Massive Reduction in Domestic Violence Crime
As part of the research for my chapter I have had the opportunity to read about the practices that were so successful in Quincy and elsewhere. I have also read some of the ideas for improving the conditions in Poughkeepsie. We also have the research to establish improved practices in the custody courts. This is particularly important for reducing domestic violence crimes because abuser rights groups have been particularly successful in using common mistakes and flawed practices in the custody courts to undermine the progress society had made elsewhere in reducing domestic violence. The result of the failures in the custody courts has been that more battered mothers are staying with their abusers because they are afraid of being separated from their children and some of them do not survive this decision. Although some have attributed the recent rise in domestic violence homicide after many years of reduction to the bad economy, I believe the problems we see in the custody courts is the more likely explanation. Based upon the research and experience, I believe it would be easy for a group of domestic violence experts to create a best practices model that would result in a drastic reduction in domestic violence crimes.
The basic reforms that would create a massive reduction in domestic violence crime should not be in dispute. Experts may differ about some of the specifics around the edges, but the decisions on those issues would not affect the positive outcome if we included the practices that have been shown to work. We are working on a more complete and detailed agenda for the second volume of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, but we already know the basics of what is needed. Here is what any reform agenda would include:
1. Coordinated Community Response: The communities that were most successful in reducing domestic violence homicide developed a coordinated community response in which all parts of the community came together to do their part in ending domestic violence. The professionals worked together to coordinate their response and included the domestic violence community as a key resource in the response to domestic violence. The communities had regular meetings to monitor how the campaign to end domestic violence was going and to make adjustments as needed.
2. Make it Easier for Victims to Obtain Protective Orders: Some people disparage protective orders as not worth the paper they are printed on and sometimes it is true, but women with protective orders are safer than those without. Society needs to make it less of a burden on battered women to obtain needed protection by having specified times when the court handles only protective orders so women can get in and out of court quickly. At other times judges should take protective orders before other cases because of the safety concerns. This is important because women may have work or family obligations that make it difficult to wait around the court in order to see a judge. Many judges get frustrated when women seek a protective order and then don’t return for the next court date. Reducing the burdens on victims will encourage them to follow through. At the same time there should be special clerks that help women fill out the forms and prosecutors’ offices should brief victims on the procedures they can expect. Finally judges should take domestic violence allegations more seriously, receive better training and make sure women who need protection can obtain the orders.
3. Strict Enforcement of Criminal Laws and Violations of Protective Orders: The heart of the programs that created a substantial reduction in domestic violence homicide was taking domestic violence seriously. This requires strict enforcement of domestic violence crimes and protective orders. Research demonstrates that abusive men tend to use a cost-benefit analysis in deciding whether to abuse their partners. That is why accountability and monitoring are the best ways to prevent domestic violence. The strict enforcement not only sends a message to the men held accountable, and their children, it sends a message to the entire community. The programs are often launched with important media coverage and those involved in the coordinated community response also help spread the message.
4. Lethality Assessment: The most important purpose of the laws, programs and practices designed to prevent domestic violence is the safety of victims and their children. One of the first things domestic violence advocates learn is safety planning and how to assess the danger. There are several common behaviors of abusers that have been shown to be related to an increased level of danger that domestic violence experts look at in making lethality assessments. These behaviors include choking, strangling or putting his hands around his partner’s throat, assaulting her while pregnant, raping or attempting to rape his partner, killing or hurting family pets, availability of guns, threats of suicide, homicide or kidnapping and a belief she has no right to leave. Incredibly, court professionals rarely use risk assessments or even understand the significance of these behaviors in making judgments about alleged abusers. Criminal courts should be using risk assessments to inform decisions about bail, protective orders and sentencing. Custody courts should use this information in determining custody and visitation arrangements that are safe for the victim and children.
5. Give Domestic Violence Cases the First Priority: Communities that reduced domestic violence crimes gave these cases the first priority. As discussed earlier this means making sure victims can get access to judges quickly so they don’t lose jobs or have to spend a lot of money on child care in order to protect themselves. It means local judges coming to arraignments after hours rather than releasing alleged offenders with an appearance ticket, but no protective order. It also means that custody courts must recognize most contested custody cases involve domestic violence and place a priority on the safety of the children and alleged victims.
6. Best Interests of the Child Should Mean Safety is the First Priority: The most important issue in deciding custody should be the safety of the children, but states usually have a list of factors to be considered and shockingly courts often focus on other less important issues. The second priority should be arrangements that give children the best chance to reach their potential.
7. Use of Current Scientific Research: When domestic violence first became a public issue there was no research to inform professionals about the best way to respond. When professionals modified their practices based on new research it has helped protect victims. Police departments went from practices of separating the parties and having the abuser walk around the block to cool off to a pro-arrest policy. Communities that created more accountability for abusers saw domestic violence crimes reduced. Child protective agencies that have partnered with domestic violence agencies and consulted with their advocates on potential domestic violence cases have been better able to recognize domestic violence and forge arrangements that protect children better. Police and prosecutors need to be aware of the frequency in which abusers involved in contested custody make deliberately false allegations and avoid wasting their resources persecuting their victims before fully investigating the allegations and speaking with the real victims. Custody courts have been particularly slow to modify practices based on current scientific research. They need to recognize most contested custody involve abusive fathers seeking custody as a tactic to maintain their control. They need to limit the role of mental health professionals to their area of expertise which is mental health and not domestic violence. They need to avoid inadequately trained professionals who continue to believe the myth that women frequently make false allegations particularly in sexual abuse cases. The court must also stop permitting unscientific theories like Parental Alienation Syndrome.
8. Retraining Court Professionals: A lot of unfortunate events have combined to create widespread beliefs in a wide range of misinformation about domestic violence. Domestic violence is often counterintuitive which leads to misinformation. The lack of research when court professionals started responding also contributes to the problem. The widespread use of unqualified professionals has encouraged an undeserved confidence in false notions that make them harder to challenge and correct. The media has done a lousy job of covering domestic violence and often fails to understand who the experts are. Accordingly we need to retrain court professionals both to prevent the use of misinformation and to help the professionals learn about current scientific research, domestic violence dynamics and best practices. The training must have the active participation of genuine domestic violence experts such as dv advocates. Professionals working in criminal court must learn the importance of taking domestic violence seriously, prioritizing domestic violence cases and holding offenders strictly accountable. They should particularly learn how communities have dramatically reduced domestic violence homicide. Criminal court professionals must learn that accountability and monitoring are the only approaches shown to reduce domestic violence. Domestic violence is not caused by substance abuse, mental illness or anger management issues. Some offenders may have mental illness or substance abuse and domestic violence issues and each problem should be responded to separately. Custody court professionals must unlearn the myth that women frequently make false allegations of abuse. They need to look at the motivation of alleged abusers and understand the harm to children. They must learn that allegations of child sexual abuse have been totally mishandled and learn best practices to respond to these painful allegations. They also must learn that the way to include both parents in children’s lives that most benefits children is to require abusers to stop their harmful tactics instead of asking their victims to get over their fear and concern.
9. Use of Domestic Violence Experts: We now have a substantial body of specialized knowledge about domestic violence. Courts must stop relying on “experts” unfamiliar with this research and ignorant of domestic violence dynamics and instead listen to genuine domestic violence experts. Courts must stop refusing to listen to these genuine experts and especially until this information is better known to court professionals allow these experts to testify in order to educate the judge and other professionals.
10. Early Domestic Violence Hearings in Custody Cases: A large majority of contested custody cases are actually domestic violence cases. The research is very clear that unless the victim is unsafe, she should have custody and the abuser supervised visitation because that is what works best for children. Accordingly, custody courts can schedule an evidentiary hearing at the start of the case on the domestic violence issue. There is no need for evaluators or GALs as it is a factual issue. This will permit courts to resolve cases in a few hours or less that otherwise would take months or years and provide a huge savings in money and court time. Children also benefit because they don’t have to spend years worried about where they will live. This also avoids less important and distracting issues that only make it more difficult for the judge to understand the issues. This practice is likely to help courts make better decisions as well as quicker ones.
11. Use of Victim’s Advocate: The advocates are used by law enforcement to help and support the victim and provide information and training for law enforcement personnel. They are used in the prosecutor’s office for similar purposes and to acquaint the victim with the procedures. These practices should make survivors more comfortable and thus more likely to cooperate and press charges. In the court clerk’s office the advocate can help victims fill out forms and documents and explain the procedures. These procedures will help provide law enforcement and the courts with needed evidence while encouraging the complainant to continue to participate.
12. New Approach to Child Sexual Abuse in Custody Cases: Although most allegations of child sexual abuse made by mothers are true and deliberately false allegations are rare, 85% of sexual abuse allegations in custody cases result in custody for the alleged abuser and frequently little or no contact with the mother who sought to protect her child. This is a result of the difficulty in proving abuse of very young children and deeply flawed practices. Based especially on the new Department of Justice study led by Dr. Daniel Saunders, we should start by eliminating court professionals who believe in the myth that women frequently make false allegations. Professionals should be trained in best practices that would include understanding why a child might be reluctant to reveal sexual abuse or recant truthful allegations, use of play therapy for young children, avoid giving abusers additional opportunities to silence children and give children a chance to develop trusting relationships with therapists or other investigators before expecting them to discuss the abuse. We particularly need to abandon approaches that retaliate against mothers for good faith allegations.
13. Limit Role of Mental Health Professionals to their Area of Expertise: Mental health professionals are routinely used for evaluations and other services in domestic violence custody cases despite limited and often distorted information about domestic violence. This has contributed to the frequency in which courts place children in jeopardy. Mental health professionals have a role to play when a parent has a serious mental disorder that interferes with the ability to care for the children or other issues related to their field of study and practice. They should be limited to roles they are qualified for and at the very least consult with domestic violence experts on cases involving possible domestic violence.
14. Gender Bias: Over forty states and many districts have conducted court-sponsored gender bias committees that have found widespread gender bias. Other scientific research supports these findings. Women who kill their partner receive seventy percent longer sentences under similar circumstances as men who kill their partner. Women are given less credibility, higher standards of proof and are blamed for the actions of their abusers. Courts cannot do an effective job of responding to domestic violence as long as it continues to unconsciously favor male litigants. Court professionals must be trained about gender bias, attorneys and litigants must be protected and encouraged to raise concerns about gender bias, judges and other court professionals should be transferred, retrained or otherwise disciplined for continued gender biased practices and appellate courts must reverse cases based on gender bias.
15. Improved Police Role in Ending Domestic Violence: Police should make domestic violence cases a high priority and conduct an evidence based investigation instead of just relying on the victim’s testimony. Police must be trained to understand fathers involved in contested custody cases are 16 times more likely than mothers to make false allegations. This means they should take complaints from mothers seriously despite ongoing litigation, but have some skepticism of father’s allegations. They should always speak with the mother to understand the context before making a decision to make an arrest or bring charges. The police must also be aware that abusers tend to be very manipulative, but sometimes the police can use abusers’ sense of entitlement to encourage them to make statements that are actually admissions. Police departments must take precautions to respond to male officers who abuse their partners and particularly use their influence and relationship with other officers to undermine any investigation. There should be no tolerance for domestic violence or covering up domestic violence complaints. Departments should have a procedure for women to have someone in the department they can safely complain to about their partner’s abuse and any assistance other officers provide him.
Can Society Afford to Continue to Tolerate Domestic Violence?
Politicians sometimes justify their failure to do more to stop domestic violence by citing the costs, but the reality is the costs are much greater by tolerating domestic violence. In reviewing a report about the response to domestic violence in Dutchess County, New York, I noticed how often they undermined substantial parts of the plan to prevent domestic violence in order to save small sums of money. The problem is when they are budgeting; they fail to consider the extra money that will be expended as a result of the increase in domestic violence encouraged by the cutbacks.
Children who witness domestic violence are more likely to engage in a wide range of harmful and costly behaviors including crime. Large majorities of the prison population were directly abused as children or witnessed domestic violence. This creates huge added expenses in police, courts, prosecutors, defense attorneys and prisons. It also creates more expenses in substance abuse treatment. This is in addition to the extra similar expenses in directly responding to domestic violence crimes and custody cases based on domestic violence.
An increase in domestic violence crimes also increases health care costs. Not only is the health care system used to heal the immediate physical wounds, but it leads to other medical problems based on the stress of living with domestic violence as well as emotional and psychological difficulties. If the woman has medical insurance his abuse is paid by all of the policy holders through higher premiums. If she does not have insurance she may not be able to pay for the care so that the rest of the public and the government ultimately pays. Many of the health costs are borne directly by various governmental entities.
When victims miss work it harms the economy thus reducing tax revenues. The same is true when women lose jobs because of injuries or repeated court dates. Government programs like unemployment insurance and crime victim compensation may also be triggered. Significantly domestic violence interferes with the ability to reach their potential. It is hard for women to reach their potential when dealing with domestic violence even if the injuries do not prove fatal. Men who commit domestic violence crimes can’t reach their potential if they are in jail and even if they are not jailed the time they waste abusing and harassing their partners can interfere with the ability to reach their potential. Children who witness domestic violence are significantly less likely to reach their potential and if the children grow up to hurt others these third parties also lose the ability to reach their potential. We don’t know if society will miss out on someone who would have discovered a medical cure, developed a patent, created a major new business or is just a productive member of society. All of this represents a massive loss of economic activity that translates into a huge loss of tax revenue.
While the proposal described above would include some additional expenses, it also includes plans that would save substantial tax dollars. Conducting early evidentiary hearings on domestic violence would help courts make better decisions, but also save substantial sums of money and judicial time. A large majority of contested custody cases which are the cases that take most of the court’s time are domestic violence cases. Since mothers rarely make deliberately false allegations of abuse, a hearing for an hour or two will avoid cases that often take many months or years. There will be no need to spend money on evaluators, GALs or other professionals who provide no help in recognizing or responding to domestic violence. Furthermore, as the practices outlined in this article become better known, abusive men will be less likely to commit domestic violence crimes and children will be sent an important message that domestic violence will not be tolerated. This will save significant sums initially and much greater amounts over time as the message resonates.
We don’t have figures on the full cost of domestic violence or the amount of money this proposal would save, but it has to be at least in the hundreds of billions of dollars. In that context attempting to save thousands of dollars by cutting local programs or a few million on programs nationally is counterproductive based on the financial costs and insane based on the human costs.
How to get Started Ending Domestic Violence
It is common rhetoric to say we should end domestic violence. We may not be able to prevent all domestic violence tactics or even all domestic violence crimes, but we know how to quickly create a massive reduction in domestic violence crimes and especially domestic violence homicide. How do we get from here to there?
Just as people in Quincy, Massachusetts, Nashville, Tennessee and San Diego, California came together to make ending domestic violence the leading priority other communities can do the same and it is easier because they have the successes of those communities to look at and a lot of additional research. Individual states can take the lead by adopting the needed law changes and provide funding to implement a program like the one discussed in this article.
This can also be done on a national basis. The President can announce that we will no longer tolerate domestic violence and create a program to encourage communities to implement the practices that work. Grants and other support can be provided to set up pilot projects around the country to demonstrate that these practices will work. Eventually the federal government can make implementation of these practices a requirement if states wish to receive any federal funding for law enforcement and the judicial system. This should be done on a non-partisan basis. Democrats claim to be supporters of women so they should certainly wish to free women from the fear and risk of domestic violence. Republicans regularly propose spending millions of dollars to promote abstinence for children. If they don’t want children having sex with their peers they certainly will wish to protect them from sex with adults. The bills to end domestic violence should be House 1 and Senate 1 to make them the first priority.
Several years ago I gave a presentation with Mo Therese Hannah at the NCADV Conference in Atlanta. I spoke about the success of Quincy, Nashville and San Diego in implementing these practices. After the workshop, a woman came up to me and told me what I said was no longer true. It seems a new administration took over in Nashville, dismantled the successful program and the domestic violence homicide rate went back up. This was disappointing news, but it also confirmed that it was these practices that are the difference between a substantial reduction in domestic violence crime and requiring women’s lives to be impacted by men’s abuse of their intimate partners.
Domestic violence is not inevitable. It can be prevented. Our daughters and granddaughters can grow up in a world in which domestic violence crimes are rare. The worst crime would be if we take the knowledge, research and ability we have to substantially reduce domestic violence crimes and instead find some excuse to force women and children to continue to suffer.
Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com
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Labels: Abuse, Advocates, Assessments, Barry Goldsteins Posts, Child custody, Domestic violence, Lethality, Mental Health, Protective Mothers, Protective orders, Violations
Tuesday, May 24, 2011
Listening to the Perps
By Barry Goldstein
At the same time the media fails and refuses to cover the crisis in the custody courts in which thousands of children’s lives are destroyed by the use of outdated, discredited and biased practices, the NY Model Batterer Program I work with is frequently invited for television shows and interviews with reporters if we would provide a “reformed” batterer. We always turn down these requests and explain that there is no way to know a batterer has truly changed and that in any event he would not be someone with the expertise to help their audience understand the issue. This is no problem for most journalists. They simply find a program with less ethics and a greater desire to appear on television.
I believe the idea comes from a common practice where former prisoners are asked to speak with at risk youngsters to tell them what a life of crime and time in jail is like. This can be an effective tool to provide that message because it is coming from people who once were where the young people are now. The same approach is often used in substance abuse programs. Those who have experienced life using drugs or excessive amounts of alcohol are perceived to understand the temptations and results better. These types of programs can be effective, but a mistake is made when people attempt to expand the program to offenses involving sexism, racism or other oppressions. For these issues, the experts are those in the marginalized groups and not the offenders who took advantage of the unearned advantages they enjoy in this society based on being a member of groups that are treated as if they are superior. One of the privileges members of advantaged groups receive is the ability to define so that men can define what is included in abuse and whites define what constitutes racism. An earned privilege is something earned through work such as a doctor allowed to perform surgery based on education and training in comparison to a man who has the privilege of walking anywhere without risk of sexual assault or having people pay more attention to what he says than they do to what women say which is an unearned privilege. Members of the dominant group are often oblivious to the privileges they receive.
A good, or perhaps I should say bad example of this common mistake occurred at Minnesota State University, Mankato last month. The school paid Adam Ritz $2500 to speak to the students about the dangers of drinking. The event was sponsored by the Residence Hall Association, a fraternity and Men Against Violence. The Women’s Center expressed its opposition to the presentation but was ignored by these organizations including Men Against Violence which claims to be an ally of the Women’s Center.
Adam Ritz is a former local media personality. He is also a convicted sex offender. He reveals this as part of his presentation, but only towards the end. Mr. Ritz came home and attempted to rape the young woman who was baby-sitting his children. He was convicted, but served only six months and is on the sex offender list for his crime. His presentation sparked a controversy on campus that has spread throughout the country. A Facebook page was created to protest the decision to invite him to the school. Rather than treating the student body with a modicum of respect and addressing these concerns Mr. Ritz and the organizers of the program made many mistakes and I would like to look at them in hopes they can be avoided in the future.
1. Take Leadership from Members of the Marginalized Group: Men are not the experts about rape, just as it would be foolish to look to the wealthy to learn about poverty or a heterosexual to learn about the risk of being outed. Men can go virtually anywhere they wish without worrying about being sexually assaulted. Women have to pay close attention to the behavior or men and carefully restrict their activities in order to reduce the risk of rape. Women and even young girls have to learn and pay attention to information needed for their safety and so become the experts. Accordingly when the Women’s Center objected to the program with Adam Ritz, the male organizations should have recognized the Women’s Center as the experts on campus and stopped the program. Even better they should have consulted with the Women’s Center before scheduling Adam Ritz. It is unsurprising that they didn’t because they were exercising their privilege. Maya Angelou, the poet, says when people show you who they really are, believe them.
2. Rapists are not Qualified to Speak about Addressing or Ending Sexual Abuse: The many egregious, inappropriate and downright hurtful statements made by Adam Ritz illustrates why it is a bad idea to have perpetrators of sexist or other crimes based upon oppression speak to these issues. Rape, like domestic violence, is committed because of a belief system of male entitlement and the common view that the value of women has to do with their appearance and sexual attractiveness instead of their intelligence, talent, hard work, character and so many other attributes that women possess. At most, Adam Ritz may have learned that there can be moderately negative consequences to him for sexually assaulting a young woman, but there is no indication that he understands the magnitude of the harm he caused and the wrongness of both his actions and his beliefs. Society tends to measure whether a sex abuser or domestic violence offender has reformed by determining if he has been arrested again. This is an ineffective approach to these crimes which have the lowest rates for reporting of any crimes. In other words, the fact he was not rearrested does not mean he has not committed further crimes. Furthermore domestic violence offenders may switch to legally sanctioned (as we live in a patriarchal misogynistic culture) domestic violence tactics and sexual abusers may continue to treat girls and women as if their main value is their appearance even if they do not commit further crimes. Accordingly the school should not use a rapist to discuss sexual abuse particularly when so many on campus object.
3. Substance Abuse does not Cause Rape: Substance abuse causes a lot of societal problems such as premature death, days missed from work, lowering the GNP and additional burdens on the health care system. Certainly colleges and universities are justified in creating programs to respond to a problem that causes absenteeism, undermines the academic work of students and too often results in deaths from drunk driving and binge drinking. That seems to be the genesis of this program, but the speaker attempted to use his excessive drinking as an abuse excuse for his attempt to rape the young woman who was watching his children. While alcohol can reduce inhibitions, it does not cause people to engage in activities they would otherwise never consider. This truth makes us aware that Ritz is an even bigger danger than people want to believe because he is inclined to rape. We know this because with inhibitions reduced this is what he tried to do. If this wasn’t already on his agenda he would not have committed sexual violence as alcohol does not a rapist make, though, some rapists turn to alcohol in an attempt to justify or minimize the violence and harm they commit If Mr.Ritz had a belief system that sexual activity is supposed to be mutually pleasurable and based upon consent his excessive consumption of alcohol would not have caused him to do something out of character. The same is true with domestic violence where many abusers mistakenly blame alcohol for their more serious assaults. Millions of people drink too much, but never abuse their partners or attempt to rape someone while under the influence. Men on and off campus often seek to encourage women they are with to drink alcohol in the hopes it will reduce their resistance to having sex with them. It is based on a belief system of men wishing to be able to do things to women often degrading, demoralizing or dehumanizing, instead of sharing mutually pleasurable and meaningful activities with women.
4. Sending the Message of Serious Consequences for Men who Sexually Assault Women: Adam Ritz could have put out a message that there are now serious consequences for men who abuse and mistreat women. That would have been a useful message because the fear of consequences to them might make men change their behavior even when they do not fully understand the harm they are causing. The message was profoundly undermined by the extremely mild sentence Mr. Ritz received. It was further undermined by his approach which was to minimize all his transgressions and instead focus on how much he had suffered and lost. His failure to acknowledge the tremendous harm he did to the young woman and others demonstrates his failure to understand the consequences of his actions and a complete lack of accountability for his crimes.
As men generally do not worry about being sexually assaulted it can be hard for them to understand the magnitude of the harm they cause. Our patriarchal culture structures privilege to shield men from the realities of the harm they cause. Newsweek ran an interesting article right after the 9-11 terrorist attack. They compared a variety of traumatic events in terms of what is most likely to cause Post-Traumatic-Stress-Disorder (PTSD). This is a horrible experience commonly caused by the worst possible experiences such as war, earthquakes, kidnappings, hurricanes and killing sprees. The reason they wrote the story at that time was because the type of event second most likely to cause PTSD was a terroristic attack. At that time the closest example we had was the Oklahoma City bombing. Significantly, the type of event most likely to cause PTSD was rape. It may be hard for a man to imagine being raped, but they can certainly imagine what it would be like to be in the middle of a terror attack as it is a subject about which the media always provides comprehensive coverage. My purpose is not to compare rape and a terror attack, but to consider that rape is even more likely to cause PTSD. That should help men understand the magnitude of the harm they cause when committing rape.
5. Men Must be Open to Questions and Challenges: The organizers promised that there would be an opportunity for questions and comments. This was an absolute necessity after a discussion of such an emotionally charged topic and particularly one led by someone with unearned privilege. The organizers appear to have never intended to provide a question and answer session and just announced there was no time for questions and abruptly ended the program. This permitted wrong and disturbing messages to remain to further support a rape culture. An ethical speaker would have wanted to hear what community members had to say in order to make sure he had not caused further pain. Apparently, Mr. Ritz continues to be concerned only with himself and his needs.
6. Focus on the Impact on Victims not Offenders: Many of the women in the audience were offended because Adam Ritz focused on the moderate consequences he brought on himself by his actions instead of concentrating on the severe harm he had caused his victim. Supposedly he was paid to speak because he had learned some lessons that he could share particularly with the men in the audience. Instead it is clear that he has not learned the right lessons because he continues to focus on what happened to him which was more than deserved instead of the horror he inflicted on the young woman he attacked who did nothing and could not possibly do anything to deserve what Mr. Ritz did to her. Mr. Ritz discussed his shameful behavior as if he was a victim rather than the perpetrator. Too often in this society, perpetrators of outrageous and offensive conduct say something like “mistakes were made” instead of accepting complete and total responsibility and acknowledging the harm he alone caused. While society encourages such meaningless insincere apologies with a boys will be boys mentality, Adam Ritz must share the blame for his unaccountable message.
7. Consider the Impact on the Audience: The rate of rape and sexual abuse on college campuses is frighteningly high. This means there was a good chance that victims of this crime could be expected to be in the audience. This is especially true because there was no warning in the publicity materials that the speaker was a rapist. The approach of Mr. Ritz in minimizing his responsibility and focusing on the legal sanctions and consequences to offenders rather than the harm they caused their victims was likely to be offensive to caring people who oppose misogynistic messages in society and support the work to end men’s violence against women. His deeply flawed presentation has the potential for severely harming survivors who had been victimized by other rapists. Again this is why it was so crucial to get feedback from the Women’s Center.
8. The Focus Should be on Changing Men’s Behavior: Most programs and approaches to preventing rape and sexual assault are based on changing women’s behavior, and hence collude with rather than meaningfully address the rape culture. Certainly there are many actions women can take to reduce their risk and these can sometimes be useful responses, but the danger is that it promotes the blame-the-victim approaches that predominate as responses to sexual assault. Better approaches would involve holding men accountable for their own actions and putting the responsibility to prevent rape on men where it belongs. Only rapists can stop rape and to think otherwise is to accept the premise that men are entitled to rape if they can get away with it. This is exactly what Adam Ritz, still clinging to his privilege, refused to do and more importantly what the school failed to do when they selected such an inappropriate speaker.
What Can Colleges Do to Prevent Rape on Campus?
1. Hold Offenders Accountable: Schools should make it clear that there will be zero tolerance for sexual assault. Lesser offenses like harassment or verbal abuse must be treated seriously. Athletes should be warned that charges of sexual assault will result in suspension from the team and confirmed findings will result in removal from the team. When any charges are pending the alleged offender should have no access to the alleged victim even if he has to change classes. The strongest deterrent will occur when men see other men punished for behaviors they had always thought were no big deal. This is exactly what American Colleges and Universities fail to do when they impose gag orders or even expel survivors, fail to make required reports of sexual assaults and protect student, faculty and staff rapists.
2. Train Staff: Students tend to pay more attention to what they observe than what they are told. Therefore it is important for colleges to train staff about domestic violence and sexual assault. They need to know more than what the rules are and how to enforce them. Teachers and administrators need to set an example for treating women in a respectful manner. Sexist jokes and comments should be avoided and sexual harassment rules strictly enforced. Placing women in positions of authority sends a strong message about the value of women.
3. Consult Women’s Organizations: When colleges develop policy, practices and particularly programs aimed at preventing sexual assaults, the administration should consult with Women’s organizations with an interest in the issue. This will give administrators a viewpoint that will help them understand what coeds are facing on campus and what they think could help them.
4. Men Must Earn Ally Status: Men have an important role to play in ending men’s mistreatment of women. We certainly want men to become actively involved and to support women, thus creating a healthier humanity. At the same time the men must avoid thinking they have all the knowledge and that they can take the lead on this issue. I belong to the National Organization for Men Against Sexism (NOMAS). We aspire to be considered allies of women and organizations working on behalf of women. It is not up to us, however to proclaim ourselves allies, but to listen to the women and hope they will consider us allies.
Adam Ritz, without taking the time to earn the trust of women and without understanding the issues he speaks about, took it upon himself to create a for-profit business where he would be paid large sums of money to speak about very sensitive subjects that he is unqualified to address. In doing so, he caused tremendous harm and subjected himself to much deserved criticism. I also often speak when asked on behalf of women and for such organizations as the Battered Mothers Custody Conference and the National Coalition Against Domestic Violence. The difference is that I worked a long time on these issues and earned the trust of the women who are leaders in these organizations. I learned the importance of taking direction from women which I must admit was not always easy because it is so different from what men learn in this society. Unlike Adam Ritz, women leaders asked me to speak on their behalf and I continue to listen to their feedback in order to be accountable to the women in the movement. Adam Ritz was never part of the movement so speaks for profit and to minimize his responsibility for his crimes instead of encouraging men to stop acting on their sexism and male superiority. Men in the movement to end men’s violence against women often receive undeserved praise for doing what ought to be normal. As long as men’s mistreatment of women is the norm, men have substantial unearned advantages over women and a substantial portion of the population provide misplaced sympathy for rapists like Adam Ritz because he spent six months in jail for his attempt to rape a young woman in his home, while minimizing the lifetime of pain, fear and trauma suffered by survivors of Adam Ritz and other rapists, it will be important for men to listen to women and be open to the idea that a lot of our beliefs must change.
I wish to acknowledge and thank Genevieve Brackins for her assistance in preparing this article.
Dear Custody Court Judge:
The research is now clear that certain extreme decisions in domestic violence custody cases that have become all too common are contributing to an increase in the frequency of domestic violence homicide and other harmful consequences. This is established in the leading resources about domestic violence and custody including THE BATTERER AS PARENT by Lundy Bancroft and Jay Silverman, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY edited by Mo Therese Hannah and Barry Goldstein and the major new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan. Judges should be aware of the research that demonstrates the danger of creating these dangerous decisions avoid these decisions in the future and modify existing arrangements that create substantial risks to the children.
The decisions that must be avoided and corrected are ones in which an alleged abuser is given custody and a safe, protective mother is limited to supervised or no visitation. I will more fully describe these dangerous cases below and I am not saying it can never be right to give someone custody who was accused of domestic violence or child abuse or that a mother who makes abuse allegations should never be denied normal visitation.
I will discuss the harm and danger of these extreme decisions below, but judges should be aware that these decisions are probably the largest factor in the recent increase in domestic violence homicide. Furthermore these extreme decisions are never in the best interests of children even when the court is right that the abuse allegations are false and the mother seeks to take the father out of the child's life for bad faith reasons. More commonly, the research demonstrates that court professionals who used flawed practices to justify the extreme decision also got the underlying facts wrong. Judges should look to the specialized body of research now available that can help courts make the best decisions in domestic violence custody cases.
Description of Extreme Cases
The extreme cases I am speaking about include evidence or at least allegations of domestic violence or child abuse. It is not limited to cases in which the allegations are confirmed or believed. The research establishes that courts fail to recognize valid complaints about domestic violence and child abuse with frightening frequency because of the outdated and discredited practices that continue to be used in domestic violence custody cases despite the scientific research now available. Furthermore, even when courts reject abuse allegations because of inadequate proof or in rare cases in which mothers make deliberately false allegations, courts have a tendency to punish mothers in ways that are harmful to the children.
Most of these cases involve mothers who are the primary attachment figures for their children. Primary attachment is created in the first couple of years of a child’s life so later care or custody of a child does not change the primary attachment figure. Some court professionals confuse continuity, which is a valid consideration with primary attachment which is far more significant to children. Primary attachment is often minimized by custody courts because of stereotypes and gender bias. Mothers are often expected to provide most of the child care so they receive little credit or benefit for doing so even though it makes a big difference to the well being of children. In fairness to judges, many attorneys fail to present evidence about the mothers’ early care for her children and the significance of that care.
In attempting to treat both parents equally, courts often fail to understand that the parents may not be of equal importance to the well being of their children based on past parenting such as superior parenting skills, non-abusiveness and primary attachment. When a court treats unequal parents as if their value to the child is the same, this is actually a bias favoring the weaker parent and certainly not in the best interests of the children. Children who are separated from their primary attachment figure are more likely to suffer depression, low self-esteem and to commit suicide when they are older. It cannot be beneficial to subject children to such substantial risks unless the primary attachment figure is unsafe, but courts routinely do so when they treat alienation as if it were more significant than primary attachment or abuse.
If custody courts were acting in the best interests of children as required by statute, they would be weighing the harms and benefits of any proposed custody-visitation arrangement. So if a mother was a drug addict she could not be relied upon to keep her children safe and healthy. If she beat the children, that would create an obvious safety risk. If she had a mental illness so serious that it would prevent her from taking proper care of her children, this would create a safety risk. I must emphasize, however that many of the mental health diagnoses seen in custody court are inaccurate because of flawed practices and biases and in any event do not create a legitimate safety issue. The kinds of safety issues discussed in this paragraph are more serious than the risks of separating a child from her primary attachment figure and would justify the extreme decisions discussed in this article. The problem is that most of the extreme decisions are justified by reasons that do not involve a safety issue and are likely to create more harm than benefit for the children.
The extreme decisions frequently imposed on protective mothers come in the context of a court system that is extremely reluctant to restrict fathers who abused their partners to supervised visitation as recommended by leading domestic violence experts such as Lundy Bancroft and Peter Jaffe. Children who witness domestic violence are prevented from reaching their developmental goals which in turn interferes with their ability to reach future developmental milestones. These children are also more likely to engage in a wide range of harmful behavior when they are older including substance abuse, self-mutilation, suicide, prostitution, crime, teen pregnancy, school drop-out and for boys to abuse future partners and girls to be abused by future partners. Again these are valid safety concerns that justify visitation restrictions. Some unqualified professionals unfamiliar with domestic violence dynamics minimize these risks because the parties are separated or the father stopped assaulting his partner when he no longer had access to her. Domestic violence is not caused by the victim’s behavior, but by the abuser’s belief system. There is no reason to believe the end of the relationship will change his beliefs so if the father is given custody or unsupervised visitation, the children are likely to witness his abuse of future partners. Over forty states have created court-sponsored gender bias committees that have found widespread gender bias particularly against mothers in custody cases. The willingness and almost eagerness to engage in these extreme decisions against protective mothers, together with the reluctance to limit contact with dangerous fathers demonstrates the impact of gender bias in domestic violence custody cases.
For purposes of this article, these extreme cases are ones in which there is no legitimate safety issue to justify decisions that place children in jeopardy. One common example of a non-safety issue is the use of alienation to justify the extreme decisions. One of the problems with alienation is that courts often allow fathers to make a general complaint claiming alienation without specifying exactly what the mother is alleged to have done. This makes it difficult to defend and raises due process concerns. If the concern is that the mother is making negative statements about the father, where is the research that demonstrates the long term harm to children hearing these statements? There is none. Children hear negative statements like this even in intact families. The most likely result is to harm the relationship with the parent making these statements if they are false. Even when the statements cause some harm to the relationship, these effects are generally short term. More often in domestic violence cases the real problem with the father’s relationship is his mistreatment of the mother or children as when Alec Baldwin called his daughter vile names, threatened her and then wanted to blame the mother for the natural effects of his abusive behavior. We often see mental health professionals lacking domestic violence expertise pathologize the victim and use this to justify the kind of extreme decision discussed in this article. I will discuss this in more detail below, but these are rarely safety issues. Courts also sometimes impose the extreme decisions to punish mothers who continue to believe their allegations of abuse after the court denied them, criticize the judge or otherwise act in ways the judge disapproves of. Given the harm to children of separating them from their primary attachment figure, none of these justifications rise to the level of safety issues so that the restrictions on the children’s ability to see their primary attachment figure are far more harmful than any benefit the court believes it is providing for the children.
Extreme Decisions Contribute to Rising Domestic Violence Homicide Rate
When domestic violence first became a public issue over thirty years ago there was no research to inform decision making by institutions charged with responding to domestic violence. The standard police response was to separate the parties and have the abuser walk around the block to cool off. This is how police officers were trained to respond and was considered best practices. Later, researchers found that this response was ineffective. In 95% of cases in which men murdered their intimate partner, the police had been called and used the standard response. On average the police had been called to the home in response to the abuser’s violence five times. The information from the research and lobbying by those working to end domestic violence led police departments across the country to adopt a pro arrest policy. These and other policies designed to hold abusers accountable and make it easier for women to leave their abusers resulted in a significant reduction in domestic violence homicides. The benefit of strict accountability was confirmed by some communities like Quincy, Massachusetts, Nashville, Tennessee and San Diego, California that obtained even more dramatic reductions in domestic violence homicide by stricter enforcement of criminal laws and restraining orders against abusers.
The steady decrease in domestic violence homicides continued until recently when many states reported a resurgence in intimate partner homicides. Some people have suggested the poor economy has caused this increase, but a lot of research and information suggests the frequency of custody court decisions favoring dangerous abusers and particularly the extreme decisions discussed in this article have been a major factor in the increase in domestic violence homicides. A large part of the reduction in domestic violence homicides had been aided by providing victims with safer ways to leave their abuser. Court decisions, particularly in criminal cases taking domestic violence more seriously sent an important message that society no longer tolerated abusive behavior. The frequent custody decisions supporting abusers have undermined this progress and sent the opposite message. Domestic violence advocates have told me that they are seeing more mothers staying with their abusers and taking his beatings because they are afraid the custody court will separate them from their children and they won’t be able to protect them. Of course some of these mothers do not survive this decision. At the same time, custody decisions that minimize the significance or fail to recognize the father’s abuse are sending a terrible message that society will tolerate this abuse. For many years, Dutchess County, New York permitted many court professionals with strong fathers’ rights sympathies to work in the custody court. This led to numerous extreme decisions against safe, protective mothers. This in turn led to a series of domestic violence homicides and now the community is trying to create a coordinated community response and change practices that have encouraged these tragedies including the murder of a police officer by an abusive father in the aftermath of one of these murders.
Custody courts also developed their practices to respond to domestic violence cases at a time when no useful research was available. The courts turned to mental health professionals for expertise based on the widespread assumption that domestic violence was caused by mental illness, substance abuse and the actions of the victim. We now have a substantial body of research that establishes these assumptions were wrong and the standard practices are working poorly for children. The evaluators and other mental health professionals routinely relied on by the courts are not experts in domestic violence and usually unfamiliar with the specialized body of research now available. This has led judges and lawyers to be taught a lot of misinformation and continue to use outdated and discredited practices. Significantly, the Department of Justice study found many evaluators and other court professionals do not have the domestic violence training they need. Those professionals without the needed training are more likely to believe the myth that women frequently make false allegations of abuse and therefore make recommendations harmful to children. We often see court professionals make reference to this myth and it is especially influential in the extreme decisions discussed in this article. Even if you know mothers in contested custody cases make deliberate false allegations only one or two percent of the time, you may be influenced by other court professionals making recommendations based on this myth. Parental Alienation Syndrome (also often referred to as parental alienation or just alienation because of its notoriety), which was recently rejected for inclusion in the DSM-V (that lists all valid mental health diagnoses) because there is no scientific basis for it, is based on the assumption that virtually all allegations of abuse by mothers are false. In fairness to judges, they were often never told that PAS is based not on any research but the beliefs and biases of Richard Gardner. Gardner, who made a fortune providing expert testimony for abusers made many statements to the effect that sex between adults and children can be acceptable. It is hard to imagine many judges would want to be connected with such beliefs if they had known the basis for the PAS formulation. Alienation tactics based on PAS are probably the most common basis for the extreme decisions as the theory recommends punitive actions against protective mothers without considering the harm to children.
Most court professionals have been taught that contested custody are ”high conflict” cases by which they mean the parents are angry with each other and act out in ways that hurt their children. The actual research shows a different story. Most custody cases are settled more or less amicably. Even abusive fathers who are willing to seek custody for strategic reasons will ultimately settle usually for an unfair financial advantage and often a custodial arrangement that gives him some continued control over his victim. Even though these fathers are abusive they are not willing to hurt their children in order to punish the mother. Of course most custody cases do not involve domestic violence and these are easily settled once the parties get past their hurt. Accordingly over 95% of custody cases are settled more or less amicably.
The real problem is the 3.8% of cases that go to trial and usually far beyond. The vast majority of these cases, probably around 90% are domestic violence cases that involve the worst of the worst abusers. These are usually cases where the father had little involvement with the children during the relationship, but suddenly demands custody as a way to pressure her to return or punish her for leaving. Abusers tend to be good at manipulation and court professionals are usually happy to find a father who appears to want to be involved in his children’s lives. The flawed “high conflict” approach works great for abusers because it requires the parties to interact and cooperate with each other. This gives him the access to his victim he sought by playing the custody card. At the same time it pressures the mother to cooperate with her abuser and punishes her reluctance to interact with someone she experienced as dangerous and difficult. In other words the “high conflict” approach gives abusers a huge advantage.
The most dangerous abusers are the ones who believe she has no right to leave him. They usually respond to her leaving in one or more of three ways. They respond by killing her which is why75% of men who kill their partners do so after she has left. They respond by killing their children. In the last couple of years over 175 children have been murdered by abusive fathers involved in contested custody cases. Most often they respond by going after custody as a tactic to regain control and too often custody courts help them do so.
In one California case featured on the Dr. Phil Program, Katie Tagle asked Judge Lemkau to limit the father to supervised visitation after he threatened to kill the baby. The transcript of the hearing shows that the judge stated he thought the mother was lying and threatened to punish her. During the unsupervised visitation, the father murdered seven-month-old Baby Wyatt and himself. I am sure Judge Lemkau was sincere when he expressed how sorry he was for what happened, but said there was nothing he could have done based on the information before him. In a sense, he is right. As long as he and other judges continue to use the outdated and discredited practices routinely relied on in domestic violence custody cases, you have little chance to protect the children whose futures you must determine.
The first priority in any custody case ought to be safety, but that cannot happen as long as custody courts continue to rely on professionals without the needed expertise in domestic violence. Many communities have developed practices where child protective agencies and domestic violence agencies work together on domestic violence issues. They cross-train staffs and when a potential domestic violence case develops, the caseworker will consult with a domestic violence advocate and even bring her to the home. This has resulted in a better ability to recognize domestic violence when it is present and respond in ways that benefit children. This should be understood as a fundamental part of best practices. Psychiatrists and psychologists are encouraged to consult with experts in fields in which they do not have expertise when that is a vital part of the case they are working on. Evaluators rarely consult with domestic violence advocates or other experts even though they rarely possess the domestic violence expertise they need or familiarity with current scientific research. Domestic violence advocates routinely conduct safety assessments for their clients. There are many common abuser behaviors such as strangling or choking his victim, raping or attempting to rape her and hitting her while pregnant that are associated with higher rates of lethality. We virtually never see evaluators discussing the significance of these and other dangerous behaviors. If they are not doing a lethality assessment, the evaluators cannot tell judges which alleged abusers are unsafe. Instead we routinely see evaluators focus on less important issues because they don’t have the expertise to recognize the dangers. Even worse they frequently seek to punish mothers who know their abusers are dangerous after failing to recognize the danger because of their lack of expertise. This is common in the extreme decisions discussed in this article.
There is good reason to believe there is a strong connection to the extreme decisions discussed in this article and the sudden rise in domestic violence homicides after many years of decline. These cases are dealing with the most dangerous abusers. The frequency of these extreme decisions has led many victims to stay with their abusers. Some of these mothers will not survive the decision. Perhaps most significant is that these decisions send a horrible message of support for abusers which only serves to support their dangerous beliefs. I am sure this is not your intent, but it is the message these extreme decisions send to the community.
These Extreme Decisions are almost Always Harmful to Children
The extreme decisions described in this article are the focus of much of the review of domestic violence custody cases because they trigger the most legitimate complaints. Thousands of these cases have been reviewed and we rarely find any attempt by the court professionals to weigh the harm caused by these decisions with whatever benefit the court believes it is providing to the children. The decisions are virtually always wrong because separating a child from her primary attachment figure significantly increases the child’s risk of depression, low self-esteem and suicide when older. When the justifications for limiting the mother’s contact with the child to supervised or less do not involve safety issues, the restrictions on the mother’s access are more harmful than any benefits. In other words, even if the court’s factual findings are accurate, the decision is a mistake.
Many of these decisions are based on findings that the mother suffers from some kind of mental illness. Repeatedly we have seen unqualified and biased mental health professionals pathologize the victim and impose false or exaggerated diagnoses based upon considering facts out of context. In many cases mothers have been labeled delusional or paranoid because professionals without adequate training in domestic violence failed to recognize the proof of the father’s domestic violence. Other common mistakes are based on the misuse of psychological testing. Most judges and lawyers are not aware that these tests were not created for the populations seen in custody court and are based on probabilities so may not apply to the parties in a specific case. The tests were designed for patients in mental hospitals who have severe mental illnesses. In the context of family court, parents under stress or with minor differences from the average person are diagnosed as if the differences are significant. Under the best of circumstances, the results of psychological tests are accurate between 55-65% of the time. If I went to court and told you that 98% of domestic violence allegations by mothers are accurate, you would quite properly tell me that you have to look at each case separately because this father might be part of the 2% and yet the courts routinely rely on tests that don’t apply to at least 35% of the parties. Even worse, the tests are less reliable when given to parties under stress such as victims of domestic violence and those involved in difficult custody cases. Evaluators rarely explain that the tests are based on probabilities. Repeatedly we have seen mothers who have no problems dealing with family, jobs, school and other parts of their lives labeled with disqualifying mental illnesses. While they may be impacted by the pressure of custody court and the use of litigation abuse by the father, these mothers are safe as parents and sane in every other part of their lives. In almost all of these cases the mother has always taken good care of the children and the father allowed and often demanded she provide the child care right up until she decided to leave him. She did not suddenly become crazy because she left him except in his eyes.
Another common excuse for the kind of extreme decision discussed in this article is some version of alienation. This is a common abuser tactic and in many of these decisions the problems with the relationship between the father and children were caused by the father’s behavior. Court professionals have constantly heard and relied on half a sentence. The half they are familiar with is that children do better with both parents in their lives. This is a true statement, but the rest of the statement is unless one of the parents is abusive. Interestingly this statement seems to get little consideration when a mother is taken out of the child’s life. As mentioned earlier, alienation issues tend to be short lived and there is no research that demonstrates the kind of long term harm that has been shown to children separated from their primary attachment figure. I am not saying that alienating behaviors are not a legitimate issue, but only there is no basis in scientific research that justifies the harm done to a child in losing regular contact with her primary attachment figure. Supervised visitation is not sufficient to avoid this serious harm.
These extreme decisions are also made as a way to punish the mother for continuing to believe her abuse allegations after the court denies them, her continued fear or anger towards her alleged abuser, attempts to obtain publicity, failure to pay support or economic sanctions, criticism of the judge and other similar issues. Courts that limit mothers’ contact with the children for these types of reasons fail to recognize they are really punishing and hurting the children. Significantly, the motivation of most abusers seeking custody is to punish the mother for leaving and it is particularly harmful for courts to help him do so. The fathers understand the best way to hurt the mother is to hurt her children, but the judge is supposed to help the children. Even if the facts the judge believes justifies action against the mother are true, they can never justify extreme decisions that place the future of the children in jeopardy.
Sexual Abuse Cases
Many of the extreme decisions come in cases involving allegations of sexual abuse. By the time children reach the age of eighteen, one-third of the girls and one-sixth of the boys have been sexually abused. The stereotypical rapist or sexual abuser is a stranger, but 83% of rape and sexual abuse is committed by someone the victim knows. For young children, this is often their father, but when allegations are made by mothers in custody cases, the alleged abuser receives custody 85% of the time and the mother is often denied any meaningful relationship with the children she tried to protect. A large majority of these decisions are wrong and it is extremely difficult for judges to get these cases right with the deeply flawed practices that are standard in these cases.
Many years ago, three brave children complained their father was physically and sexually abusing them. The mother obtained a protective order limiting the father to supervised visitation and sought custody. The children told the CPS caseworker, their attorney, the judge and the court-appointed evaluator what their father did to them. As is common in these cases, these professionals decided the mother was brainwashing the children and they threatened to take custody away from her unless she stopped. The judge ordered a resumption of unsupervised visitation that weekend. Before the first visitation could start, the father was confronted by the baby sitter in the presence of the children’s law guardian and admitted kissing his daughters on their privates. The law guardian immediately made a motion to stop the visitation which I supported. The judge consulted the evaluator who said the father used bad judgment, but there was no reason to stop the visitation. During the first visit the four-year-old was penetrated for the first time.
I called CPS based on the father’s admission which had not been part of the original investigation. When the judge found out he yelled and screamed at me saying that the allegations had already been investigated. This time a new caseworker did a thorough job and found the father had done even worse than we alleged. They filed charges against the father and he never again had anything but supervised visitation.
The caseworker and I were invited to a celebratory dinner after the mother won custody. The children had gifts for us, but most important they had a name for us. They called us believers because we believed them when all the professionals charged with protecting them didn’t. There is no greater honor than to be called a believer and the problem is that a lot of custody court professionals are not believers. They instead believe the myth that women frequently make false allegations as again confirmed in the recent Justice Department study.
The evaluator in this case was a psychiatrist who was the favorite evaluator of all the judges in Westchester County, New York. He had a very positive reputation and in fact was excellent in cases that did not involve domestic violence or child abuse. Many years after this case a mother was pressured to accept joint custody with her abuser and this psychiatrist was appointed to resolve any issues the parents could not decide on their own. The mother learned that the father’s new partner had suffered a mental breakdown at a birthday party attended by her son. She called the psychiatrist to discuss how to handle the situation. The psychiatrist responded completely appropriately and then told her that when she first called he thought she was going to claim that her son was sexually abused AND HE WAS FULLY PREPARED NOT TO BELIEVE IT. In other words, no matter how strong the evidence, if this evaluator was appointed (and he handled most custody cases in Westchester), a mother had virtually no chance of convincing him about her allegations of abuse and the judges were almost certain to follow his recommendation. While few evaluators would express their disbelief of all sexual abuse allegations so openly, his views are all too typical. This gives even good judges little chance to get sexual abuse cases right.
Sexual abuse is extremely difficult to prove especially with young children. Many professionals expect physical proof, but many forms of sexual abuse do not leave physical evidence and any evidence is often destroyed by the time the child reports the abuse. We often see valid claims of abuse dismissed for reasons that are not probative such as the failure of prosecutors or child protective to bring charges, the reluctance of children to discuss the abuse particularly with someone with whom they have not developed a trusting relationship with and unqualified professionals often take a child’s matter of fact demeanor as if it disproves the allegations. Most prosecutors know that victims often recant valid allegations of abuse for many good reasons, but custody court professionals routinely use this as absolute proof the mother pressured the child to make a false allegation.
When a mother or child makes allegations of sexual abuse the most likely circumstance is that the allegation is true. The next most likely is that the allegation is based upon behavior that made the child act out in ways that suggested sexual abuse but were actually boundary violations. Other common causes are good faith complaints that turn out not to be true or situations where there is not sufficient evidence to determine the validity of the allegations. The least likely cause is deliberate false allegations by mothers, but inadequately trained court professionals frequently jump to this conclusion which often results in the kind of extreme and mistaken decisions discussed in this article.
In one New Jersey case, DYFS and the court completely mishandled both the domestic violence and sexual abuse issues. DYFS has now adopted best practices for potential domestic violence cases by making consultation with domestic violence advocates a standard response. This has been shown to give them the best chance to recognize domestic violence and make arrangements that work best for children. This case started before they adopted best practices and so never consulted with a domestic violence advocate even though the case is ongoing. They failed to recognize the father’s history of domestic violence. After the father was given custody and the mother limited to supervised visitation, an unqualified therapist inadvertently discovered the father had broken into his previous girl friend’s apartment after they separated and she had to obtain a restraining order. The unqualified therapist forced the mother to have joint counseling with her abuser and ignored his discovery because he did not understand its significance. DYFS later hired a psychologist who was familiar with current scientific research and was the only professional hired by them to cite research to support her recommendations. She immediately understood his history of domestic violence, together with other evidence the unqualified professionals failed to understand the significance of, confirmed the mother’s allegations of domestic violence and should have resulted in a reversal of the mistaken living arrangements.
DYFS sought to limit the mother to supervised visitation after all their unqualified professionals decided she had made deliberately false allegations. The evidence included the decision by DYFS and the prosecutor not to bring charges. As discussed earlier, the difficulty in proving sexual abuse means the failure to press charges does not establish the allegations were false and in the case of the prosecutor the inability to prove a crime beyond a reasonable doubt certainly does not mean the charges were false. DYFS interviewed the child without developing a trusting relationship and when she didn’t immediately repeat her allegations or with other professionals was reluctant to speak about them they concluded the allegations were deliberately false. Reports from the child’s therapist with whom she had a trusting relationship showed that the child reported the abuse but was reluctant to speak about it and used a matter of fact tone. The unqualified professionals immediately assumed that either the allegations were true or deliberately false so when they discredited the allegations proceeded as if the mother deliberately made false allegations.
The psychologist later hired by DYFS reviewed the records and recognized that the facts used by DYFS to discredit the allegations were not probative and cited research to support her findings. Again DYFS and the court ignored the findings of the one professional, who was both neutral and familiar with current scientific research. In reality, this was a very young girl who did not know the significance of whatever was done to her. Something her father and grandmother did made her uncomfortable and she told the person she most trusted, her mother. It was difficult for her to tell others although she did tell her therapist and a few other professionals. She was uncomfortable speaking about it. The evidence does not definitively establish if she was sexually abused or if her boundaries were violated. These are the two possibilities supported by the evidence that the professionals should have focused on, but instead they focused on false allegations just as the Justice Department study says is done by professionals with inadequate training. The result is that the child is forced to live with a dangerous abuser and denied a normal relationship with her primary attachment figure who is a safe, protective mother. In other words the court created one of these extreme decisions because it relied on unqualified professionals and failed to look to current scientific research to inform its decision.
In a Dutchess County case, the mother did everything right and the actions she complained about were admitted and still she was found to have made false sexual abuse allegations to gain an advantage in the litigation. The mother met with the school nurse who told the mother about incidents in which her child acted out in a sexualized way. The nurse advised the mother to seek therapy for her son. She took the child to the family services center that is regularly used by the courts and police as the nurse suggested. They selected the therapist to treat her son. The mother was concerned that the father would scratch the children all over their almost naked bodies, but not on their privates. They reacted in an inappropriately excited way and begged their mother to do this to them. The therapist believed this constituted sexual abuse and called child protective. The mother begged her not to because she was afraid of the reaction by her abuser. During couples counseling, the therapist for the mother and father also concluded the father’s actions were sexually abusive. The father admitted what he did and promised not to do it anymore. CPS also confirmed what the father did, but did not consider this to constitute sexual abuse and so unfounded the case. In the custody decision the judge treated the allegations as if they were deliberately false and punished the mother even though the acts she complained of were confirmed and two neutral therapists believed the actions were harmful to the children. The abuser won custody and the mother, who had been the primary attachment figure, was limited to supervised visitation. When good judges use bad practices to create these extreme decisions, it is easier for bad judges to get away with the extreme decisions even when there is no basis because his decisions are not that different from the mistakes by good judges.
Extreme Decisions Usually Have Underlying Facts Wrong
When the mother is safe, decisions that give custody to the alleged abuser and limit her to supervised visitation are virtually always wrong because the harm of denying the children a normal relationship with their primary attachment figure is greater than any benefit the court believes it is providing. These wrong decisions can only be obtained through the use of deeply flawed practices so it is not surprising that courts often also made substantial mistakes in their factual findings.
Often the key to understanding the case has to do with the domestic violence allegations, but unfortunately, although most professionals now have some minimum amount of domestic violence training, they have never learned how to recognize domestic violence or the importance of consulting with a domestic violence expert who understands the dynamics of domestic violence and is familiar with current scientific research.
Judge Mike Brigner wrote that when he trains judges and other court professionals about domestic violence, the most common question he receives is what to do about women who are lying. When he asks what they mean they cite behaviors like returning to her abuser, seeking a restraining order and not following-up and the failure to have police or medical records. All of these are common behaviors of battered women for safety and other reasons particularly if she is still living with him, but court professionals repeatedly treat these actions as if they prove her allegations are false. Another common mistake is for a professional to observe the children interact with their father and when they don’t show fear, the professionals assume it means the father could not be abusive. The children understand that he would not hurt them in front of witnesses, particularly someone he is trying to impress. When court professionals believe these common behaviors disprove domestic violence allegations, they give the judge very little chance of recognizing valid allegations of abuse.
Another common mistake is to look only at physical abuse in considering the mother’s allegations. Domestic violence are tactics abusers use to maintain what they believe is their right to control their partners and make the major decisions in the relationship. Most domestic violence is neither physical nor criminal. Lawyers should present the pattern of the father’s controlling and coercive behaviors and judges should be looking for this pattern. This would include not only physical abuse, but verbal, emotional and psychological abuse. It would include economic abuse and control, litigation abuse designed to bankrupt or otherwise harm his victim, isolating behaviors, monitoring behaviors, threats as well as evidence that shows the father’s motivation for seeking custody. In cases in which the mother did most of the child care during the relationship, the court should consider why the father is suddenly seeking custody and why is he willing to harm the children he claims to love by removing their primary attachment figure. The father may not know the exact harm demonstrated by the research but should have a general sense that children are harmed when denied their primary attachment figure.
The Department of Justice study found that court professionals pay far too much attention to the anger or emotion a mother displays in court in comparison to its significance in determining how good a mother she is. Similarly over forty states have had court-sponsored gender bias committees that have found substantial bias against women and particularly against mothers involved in custody disputes. One of the common forms of bias is to blame a mother for the actions of her abuser. This is exactly what a court does when it blames the mother for her emotion or anger caused by the father’s history of abuse and use of abusive litigation tactics instead of blaming him for intimidating and coercive behaviors that caused her reaction. Gender bias is often difficult to recognize because it is not done deliberately or consciously and some court professionals become extremely defensive when this issue is raised. A good remedy is to frequently consider how you would have reacted to the same situation if the genders were reversed.
We often hear judges complain about how difficult it is to decide a he-said she-said case. Usually this is because much of the evidence that would have helped the judge see the pattern was missed because the court professionals did not know what to look for. In one case the father admitted telling his wife that he brought her here from Russia so she had no right to leave. He said she would never get away from him. This father, in effect told the judge his motivation for seeking custody, but the judge failed to use this evidence because he did not understand its significance. Most cases will not have such obvious evidence, but smart professionals can figure out the motivation from the history and context.
Consequences of Extreme Decisions
Abusers understand that the best way to hurt mothers is to hurt their children. This is why so many abusive fathers who had little involvement with the children during the relationship suddenly seek custody when the mother seeks to leave her abuser. Court professionals often miss recognizing the fathers’ motivation because they have repeatedly heard that contested custody are high conflict cases when most are actually domestic violence cases. The worst part of this work is hearing about the unspeakable pain suffered by mothers and children when courts send children to live with dangerous abusers and take safe, protective mothers out of their children’s lives. It is extremely frustrating because these mistakes cause so much harm, but could be prevented if the courts would apply current scientific research.
If there was a scientific basis for these decisions, an evaluator could tell the court how his recommendations have worked out for the children in earlier cases. There is no such research and the closest we have are the Courageous Kids. These are young adults who have aged out of custody orders forcing them to live with abusive fathers and denying them a normal relationship with their mothers. These kids have a moral authority that none of the rest of us has because the decisions were supposed to be made for their benefit. The decisions gave control to the fathers who had tremendous power and resources to silence the children. This means the many Courageous Kids who have spoken out, often in great pain in order to help other children from suffering the same fate, represent a small percentage of spectacularly mistaken decisions. They describe tremendous pain and suffering during childhood and many problems that last into their adult lives. In many ways they are the lucky ones because other children in this situation commit suicide, destroy their lives with drugs and other harmful behaviors or otherwise never reach their potential.
As discussed earlier these decisions lead to a higher crime rate in addition to the increase in domestic violence homicide. A large majority of our prison population witnessed domestic violence or suffered direct abuse. The extreme decisions discussed in this article increase this unfortunate population. These mistakes also have a profound negative impact on society. The increased crime requires substantial expenditures in the criminal justice system as well as property losses and injuries. These mistakes also substantially increase health expenses that raise insurance rates and taxes when the government pays health costs. At the same time, by destroying or limiting the potential of these children, and others, it reduces economic output thus reducing tax revenue.
As someone who practiced law for thirty years, I am particularly concerned about the harm these cases do to the reputation of the courts and the legal system. I repeatedly hear statements that the custody court system is corrupt. This is based on so many cases in which the disparity of the evidence and the outcome makes it look like only corruption could have caused such improper decisions. The extreme decisions that cannot possibly benefit the children further support the corruption conclusion.
While there are instances of corruption such as the Garson case in Brooklyn, I believe the research supports a different explanation. It appears the courts adopted flawed practices at a time when no research was available and have continued these outdated and discredited practices despite the current scientific research available. The use of myths, stereotypes, bias and misinformation are widespread in the custody courts. The use of mental health professionals as if they were the experts in domestic violence contributes both to mistaken decisions and widespread misinformation. Many judges have been unwilling to take a close look to scrutinize evaluators’ recommendations or to discredit evaluators who are unfamiliar with current scientific research. The problem is exasperated by a cottage industry of lawyers and mental health professionals who have figured out that fathers tend to have control of most of the resources in contested custody so the best way to make a lot of money is to support theories and approaches that help abusers. We frequently see courts treat evaluators and GALs who are biased in favor of fathers as if they were “neutrals.” These mistakes create an appearance of corruption that is extremely harmful to the reputation of the legal system.
Judges are supposed to be open to new information, willing to correct mistakes and to change their minds based on new evidence. I was particularly impressed with Judge Thomas Hornsby who wrote a chapter in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY in which he said that in his nineteenth year on the bench he learned the right way to handle certain types of restraining orders. It takes the kind of ethics and courage we expect from judges to admit past mistakes like that. Too often we hear judges refusing to listen to a domestic violence expert based on statements that the judge has been on the bench for many years and doesn’t need this assistance. And then they send the children to live with an abuser. It is important for good judges to set an example and reverse decisions that research establishes are harmful to children.
When you made a decision giving custody to the alleged abuser and limiting the mother to supervised or no visitation, you thought you were doing something to benefit the children. In some cases you thought the father was the parent most likely to promote the relationship between the children and other parent.
In most of these cases once the father gains control he actually interferes with the mother’s relationship in ways that you would severely punish if done by the mother. Repeatedly abusive fathers use their control to undermine the mother’s relationship because that was his purpose in seeking custody in the first place. The subsequent interference in the mother’s relationship, including asking the court to limit her contact is a change of circumstance giving the court new information not available when the decision was made. The research now available that demonstrates the frequency of abusers destroying mothers’ relationships with their children is also a change of circumstance the court was unaware of when it made the decision. Domestic violence is very much about context and one of the common mistakes in custody court is to look at each incident and each issue separately thus preventing court professionals from recognizing the pattern of abuse. Judges sometimes make the mistake of treating a finding denying abuse allegations as settling the issue so that it can never look at the issue again or at least not the prior evidence. Best practices would be to look at the new information, such as the father using his control to harm the children’s relationship with the mother in the context of his history of controlling and coercive behavior so that even if the court failed to recognize his pattern of abuse earlier, the new circumstances, taken together with the prior evidence can be sufficient to confirm the abuse allegations if only the judge can be open to acknowledging the prior conclusion was wrong.
Even if the court continues to believe the mother’s abuse allegations were false and even deliberately so, current scientific research does not support limiting the children to supervised or no visitation with their primary attachment figure. The harm of losing a normal relationship with their mother under these circumstances is far more harmful than the risk she might make some negative statements. This research, by itself constitutes a change of circumstance requiring at least normal visitation for the mother. We have too often seen judges refuse to correct their decision for fear of looking bad by admitting an error. I ask you not to take the risk of a child suffering depression, low self-esteem or God forbid commit suicide. That would be a judicial error we cannot tolerate.
Part I: The Game Changing Findings
The United States Department of Justice provided a grant to support a major study by Dr. Daniel Saunders of the University of Michigan to determine how well court professionals and particularly evaluators are responding to domestic violence cases. The study comes in the context of frequent and substantial complaints that custody courts are using deeply flawed practices that result in placing children in danger. The Saunders’ study is the latest and most prestigious to confirm the validity of these complaints. Dr. Saunders found, “…domestic violence is frequently undetected in custody cases or ignored as a significant factor in custody-visitation determinations (report P. 4). One could argue about at what point the research became so compelling that reforms are required, but with the publication of the Saunders’ study there can be no informed discussion that the present practices are safe or acceptable.
It is especially important that context be considered in understanding domestic violence cases, because the failure to do so has been one of the major problems in the courts’ response to domestic violence custody cases. Although we often disagree with various court decisions, the United States rightly has a very positive reputation for judicial fairness. Many of the protective mothers victimized by their abusers and then faulty court processes originally came from countries where courts are controlled by the state or otherwise biased. They began their cases confident that in this country the judge would hear the overwhelming evidence of their partner’s history of abuse and protect the children. Instead they became victims of the most extreme outcomes in which the abuser gains custody and the safe, protective mother is given supervised or no visitation.
Those of us who work with protective mothers must keep in mind that what we see constantly are part of a small percentage of cases. There are unfair advantages in the court system gained by litigants who have more resources and disadvantages to marginalized groups caused by racism and other oppressions, but most of the time the justice system works. Even in the custody courts more than 95% of cases are settled more or less amicably. The problem is with the 3.8% of cases which cannot be settled without a trial and often much more. Many court professionals have been taught these are “high conflict” cases and unintentionally use responses that help abusers, but the vast majority of these cases are actually domestic violence cases in which a father who often had little involvement in caring for the children during the relationship seeks custody as a tactic to pressure the mother to return or punish her for leaving. The Saunders’ study confirms other research that most of these cases involve domestic violence. We repeatedly see cases in which the father allowed or often required the mother to provide all or most of the child care and then seek to convince the court that she suddenly became unfit when she left him or made complaints about his abuse. The Saunders’ report demonstrates how evaluators with inadequate training or beliefs hostile to battered mothers help these abusers gain custody.
The custody courts, like other institutions, had to develop a response to domestic violence at a time when there was no research and domestic violence was first becoming a public issue. The courts relied on the popular assumption that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led to a reliance on mental health professionals as if they were the experts. In many ways the Saunders’ study is an investigation into how this practice has worked for the nation’s children. We now know that the original assumptions were wrong. Mental health training does not provide domestic violence expertise so the issue becomes whether the evaluator obtained sufficient specific training, but courts usually are more concerned with the post-graduate degree than relevant expertise.
The study specifically found, “Domestic violence is its own specialty. Qualification as an expert in the mental health field or as a family law attorney does not necessarily include competence in assessing the presence of domestic violence, its impact on those directly and indirectly affected by it, or its implications for parenting of each party. And even though some jurisdictions are now requiring custody evaluators to take a minimum amount of training in domestic violence, that ‘basic training’ by itself is unlikely to qualify an evaluator as an expert, or even assure basic competence, in such cases.” (report P. 133)
The court system uses the doctrine of stare decisis which means that once a finding is made the court will not permit the parties relitigate the issue. This makes a lot of sense as it would be a tremendous waste of resources to hear the same issues over and over again. Unfortunately, this is often applied in ways that make it hard for courts to understand the issues in context. Judges often want to consider each issue separately and in doing so fail to see the pattern which is so important in domestic violence cases. We have often seen a court initially make a decision denying the mother’s allegations of domestic violence. This may be the result of inadequate evidence, poor legal representation or the failure of the court to understand the significance of the evidence presented. Thereafter the court assumes the father is not abusive, but he continues to engage in coercive behaviors. When the mother wants to present the new incidents to prove he is abusive, the court will either refuse to hear any additional evidence of domestic violence or consider the new incidents separately from the earlier evidence. In other words refuse to consider the new evidence as a continuation of his pattern.
The initial complaints that custody courts were mishandling domestic violence cases came from protective mothers. Court officials quickly dismissed their concerns as coming from “disgruntled litigants.” Later more mothers came forward and we began to see a pattern of outrageous decisions. Professionals who looked at these cases found a pattern of mistakes and outcomes that could not possibly benefit the children. In 2002, the groundbreaking book, The Batterer as Parent by Lundy Bancroft and Jay Silverman was published. This provided substantial research to prove there was a problem with the courts’ response to domestic violence custody cases.
In 2004, the first annual Battered Mothers Conference was held. The initial conference included a limited number of protective mothers and very few professionals supporting them. Over the years the size of the conference has increased. The domestic violence movement came to understand how abusive fathers were using custody to undermine the work to prevent domestic violence and became strong supporters of protective mothers. Academicians and some government agencies also came to see the problems in the custody courts. In 2010, Domestic Violence, Abuse and Child Custody, co-edited by Mo Therese Hannah and Barry Goldstein brought together the research from many fields to establish that a high percentage of domestic violence custody cases resulted in custody for abusers and often supervised or no visitation for safe, protective mothers. The book presented chapters by over 25 of the leading experts from the U. S. and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. The evidence became clear that significant reforms were needed.
Court professionals, however, have reacted defensively to research questioning their practices. They did not seek to conduct research to see how the custody arrangements created by the courts had worked for the children. Their assumption continued to be that once a decision was made it must be right. Mothers who continued to believe the father was dangerous after courts denied their allegations often faced severe punishment and professionals who challenged the courts’ mistakes often faced retaliation. There was no effective forum for courts to reconsider standard practices that had been adopted before the current scientific research was available. When courts did create committees to review the response to domestic violence (or more commonly to contested custody), they responded like New York with its Matrimonial Commission. Instead of co-sponsoring with the NY State Office for the Prevention of Domestic Violence, which would have provided the needed domestic violence expertise, the court system appointed a commission overwhelmingly consisting of judges and lawyers unfamiliar with the current research. In other words they gave themselves no chance to recognize the common errors that have become standard in domestic violence cases.
It was in this context that the Department of Justice provided a grant to consider the effectiveness of evaluators and other court professionals responding to domestic violence cases. Last year the Office of Violence Against Women (OVW) conducted a roundtable in which it heard from leading domestic violence experts. It appears that they have an understanding that the present system is placing children in jeopardy. The Saunders’ study confirms that custody courts are using practices that inevitably result in the failure to protect children. Although child custody is a subject traditionally and legally under the control of the states, the federal government can use its ability to provide or withhold grants and ability to draw attention to problems that are harming children to encourage the needed reforms.
Standard Child Custody Practices Work Poorly in Domestic Violence Cases
Alexander Solzhenitzyn wrote One Day in the Life of Ivan Denisovich which tells the story of a prisoner in a forced labor camp in the Soviet Union during the Communist era. The day described was cruel and beyond unpleasant as a reader would expect, but what made the story so powerful and haunting was the frequent reminder that the author was describing one of the “better” days. We would not want to think about what a bad day would be like.
Dr. Saunders describes some of the limitations of his study. There was no readily accessible list of evaluators or other court professionals. Instead he needed to recruit judges, evaluators and other professionals through professional associations or other venues where they could be found. Many of the judges who participated in the study were found through the National Council of Juvenile and Family Court Judges (NCJFCJ). This is a voluntary organization which tends to be made up of judges who are trying to improve their skills and who care about domestic violence issues. In other words the better judges are more likely to be members of NCJFCJ. Likewise, the professionals who agreed to participate in the study are likely to be the ones who have greater knowledge and interest in domestic violence. Professor Dianne Bartlow recently sent me a first draft of her chapter for the second volume of Domestic Violence, Abuse and Child Custody. She contacted judges in communities where abusive fathers involved in contested custody had killed their children. We wanted to see to what extent courts adopted reforms in response to these tragedies and the research that established that many standard practices in domestic violence custody cases are working poorly for children. In reading the draft, it was very obvious that the judges who participated were more informed and cared more about domestic violence than the average judge. This is why they agreed to participate in the research. Accordingly, it is likely the professionals responding to surveys for the Saunders’ study are significantly better informed than the average professionals seen in custody courts. Dr. Saunders also pointed out that some of the participants might be influenced by their perception of the politically correct beliefs when responding to the questionnaire. This means that the professionals participating in the Saunders’ research and their responses are likely to be significantly better than the professionals and approaches battered mothers see in domestic violence custody cases. The results of the study demonstrate why our custody courts frequently make decisions that place children at risk in domestic violence cases, and like Ivan Denisovich, protective mothers probably face an even worse experience than what is described by the results in the study. As we describe the contents of the study, it is important to keep in mind the context and that the actual circumstances are likely to be even more dangerous for children and the mothers they depend on.
The term “domestic violence” did not exist at the start of the movement and was invented at a time when little research was available. Most domestic violence advocates and experts understand the limitations of the term because it tends to focus on physical violence and fails to explain the patterns and tactics used by abusers to maintain control over their victims. As a result, domestic violence means different things to different people. Court professionals can claim to have training in domestic violence and this can have many different meanings. Dr. Saunders and his colleagues understood this potential problem and instead sought to inquire about the professionals’ knowledge of specific information which is needed to understand a domestic violence custody case.
Dr. Saunders looked for seven areas of knowledge necessary for understanding domestic violence custody cases. These included: a) prevalence of dv, b) causes of dv, c) types of perpetrators, d) post separation violence, e) screening for dv, f) assessing dangerousness in dv cases, and g) effects of children’s exposure to dv. (report, P. 43) Dr. Saunders wanted to assess what percentage of court professionals had this vital information and how the absence or presence of this information affected the recommendations and outcomes. The percentage of professionals possessing this information is probably overstated for the reasons described earlier, but the impact of this information is likely to be accurate.
These specific areas of knowledge that Dr. Saunders believes are needed for professionals to make an informed decision are almost identical to the information we would require as part of the proposed safe child act. It would seem obvious that a court cannot assure a child’s safety in a domestic violence case if the professionals do not know how to recognize domestic violence and the behaviors most associated with lethality or other dangers and yet courts routinely make decisions without this vital information.
In the study, based on the self reports of the professionals, 75% of the judges and 83.8% of the evaluators had knowledge about post-separation violence. 61% of the judges and 84.2% of the evaluators claimed knowledge about screening for domestic violence and 73% of the judges and 78.8% of evaluators claimed knowledge about assessing dangerousness. In comparison, for dv advocates, 90.7% claimed knowledge about post-separation violence, 94.8 claimed knowledge to screen for dv and 96.4% claimed knowledge for danger assessment. Knowledge of six or seven of these subjects was considered necessary for working on domestic violence cases. This was claimed by 61% of the judges, 65% of the evaluators and 88.6% of dv advocates. (report, P. 51-52).
In addition to the dangerous outcomes, the lack of this knowledge means that the professionals in the case are not even discussing the issues that would most impact the children. In thirty years of practice I never saw an evaluation or court decision that said something to the effect that the mother is alleging the father hit her while pregnant (or sexually abused her or attempted to strangle her) and this would signify the highest degree of danger if it is true. I also never saw this kind of informed discussion in any cases I reviewed for consultation or research purposes. I think it is fair to conclude the professionals did not discuss this issue because they lacked training on safety issues.
At the same time, I frequently saw reports, testimony and decisions in which allegations of domestic violence were discredited based on non-probative information such as the mother returning to her abuser, failing to follow-up on her request for a restraining order, failing to have police or medical records or observations of children interacting with their father without showing fear (they knew he wouldn’t hurt them in front of witnesses). These statements demonstrate a lack of training in recognizing domestic violence. The inevitable result of this lack of training would be children placed in danger. The Saunders’ study found that even among professionals most concerned and interested in domestic violence, at least 39% of the judges and 35% of the evaluators do not have the training they need to protect children and their mothers. Even these percentages probably understate the actual limitations as some professionals may have overstated their expertise. Each of these unqualified professionals would likely be responsible for placing dozens if not hundreds of children at risk.
Clusters of Qualifying and Disqualifying Beliefs
The heart of this study was to consider how the training, knowledge, experience and beliefs of evaluators and other court professionals affects their recommendations and decisions. The study found clusters of beliefs that appear to be connected to training, experience and biases rather than the facts and circumstances of the case. This tended to confirm the belief that evaluations often tell us more about the evaluator than the parties being evaluated.
One cluster of beliefs by evaluators (and judges) included the mothers often make false allegations about dv and child abuse, survivors alienate children from the other parent, dv is not an important factor in making custody decisions, and children are hurt when survivors are reluctant to co-parent. These professionals tended to have less training in domestic violence and had personal beliefs supporting patriarchy and sexism. I will refer to these as unqualified professionals, but please understand that is my term.
Evaluators with better training, more familiarity with domestic violence and an understanding that mothers rarely make false allegations of domestic violence or child abuse tended to recognize that dv is important in custody decisions; victims do not alienate the children; and victims do not hurt children when they resist co-parenting. I will refer to these as qualified professionals.
One of the problems of asking professionals general questions about their response to dv is that they know they are expected to take dv seriously and this affects the responses received. Accordingly, Dr. Saunders used a vignette in which the mother described three incidents of physical abuse two of which are indications of a higher lethality risk. She also said he had a history of controlling behavior. The father said the incidents were isolated, occurred when he had been drinking and were exaggerated by the mother. The mother initially took the child to another city and seeks to limit the father to supervised visits even though he hasn’t physically abused the child. His psychological tests show no evidence of any major mental illness while her tests provide indications of anxiety, depression and paranoia. Qualified evaluators were more likely to investigate coercive control and the belief the father’s abuse caused the mother’s mental health issues. They were also more likely to recommend sole custody for the mother. Although supervised visits were recommended relatively rarely, qualified evaluators were the ones more likely to do so. Unqualified evaluators were more likely to support joint custody. “Of particular concern was the relatively high percentage of evaluators who recommended that the victim receive physical custody and the parents share legal custody. The potential negative implications of this arrangement need to be explained to evaluators given the likelihood that many abusers will use the arrangement to continue harassment and manipulation through legal channels.” (Report P. 14).
One of the main focuses of this study had to do with how often evaluators and other court professionals believed the myth (my term) that women frequently make false allegations of abuse. This was something that unqualified professionals often believed while qualified professionals understood is rare. The Saunders’ study found a close relationship between evaluators and other professionals who believe the myth, a lack of necessary training and recommendations that place children at risk. It is this ignorance and bias that has led to so many disastrous outcomes. Significantly, 58,000 children are sent for custody or unprotected visitation with dangerous abusers every year and in a period of two years starting in 2009, we found stories about fathers involved in contested custody murdering 175 of their children often with the unwitting assistance of the courts. The Saunders’ report is especially important because it establishes both that the courts are making frequent mistakes in domestic violence cases and demonstrates the kinds of common flawed practices that create these tragedies.
The danger of relying on unqualified professionals was demonstrated in a Bergen County, New Jersey case. The girl complained that her father and grandmother had touched her inappropriately. The father immediately denied the allegations and claimed alienation. Based on the evidence, the father certainly engaged in a pattern of coercive and controlling tactics and either sexually abused the child or violated her boundaries. The unqualified professionals in the case considered only sexual abuse or a deliberate false report and when they could not verify sexual abuse using flawed methods, concluded the mother was responsible for false accusations and separated the child from her primary attachment figure. At the first supervised visitation, the girl had a letter for her mother in which she said she was sorry for being such a bad girl. She believed she was a bad girl because telling her mother what happened led to the worst punishment in her young life. You can bet she will never make that “mistake” again which means if anyone else ever abuses her she will not tell.
DYFS, which is the child protective agency in New Jersey, selected a series of mental health professionals without the knowledge Saunders believes is needed. In the course of treatment, one of these “experts” learned that the father had broken into his prior girl friend’s apartment and she needed to obtain a protective order. Anyone who knows how to recognize domestic violence would have found this information compelling and indeed would have inquired about his history of abuse long before giving him custody. The professionals in this case ignored this critical evidence because they did not understand its significance. DYFS later hired a psychologist to review the case. She immediately recognized the significance of this and other evidence and recommended returning custody to the mother. She was the only expert to cite research to support her conclusion. Her report was ignored and the child forced to continue her punishment. The judge also refused to hear the testimony of a domestic violence expert although that may soon change. Unfortunately this is not an unusual case in the broken court system and confirms the lack of qualifications regarding domestic violence is far more common in custody courts than among the professionals who agreed to participate in the Saunders’ study.
The leading study about false allegations in the context of contested custody was led by Nicholas Bala and cited in the Saunders’ report. The study dealt with reports of child sexual abuse and found mothers in contested custody make deliberately false reports only 1.3% of the time. In contrast, fathers in contested custody cases were sixteen times more likely to make deliberately false allegations. It is important to understand the context. This does not mean that mothers are that much more honest than fathers, but rather this finding only applies to contested custody cases. The problem is that a large majority of contested custody cases are domestic violence cases in which abusive fathers use the tactic of seeking custody to regain control of his partner whom he believes has no right to leave. Accordingly these fathers believe they are justified in using any tactic to regain control including false allegations.
There is no reason to believe mothers would be more likely to make false allegations of domestic violence than child sexual abuse. Abuser groups claim that they make frequent false reports of both types of abuse. Why would there be any difference in the frequency of false reports of these two types of abuse? Nevertheless, Dr. Saunders was unwilling to use the Bala study as evidence regarding domestic violence. I do not say this to be critical of Dr. Saunders who I deeply respect and admire. The difference, rather, is based on the purpose of the decision. Dr. Saunders was conducting careful scientific research that requires specific cites for everything reported. I am interested in making decisions in the custody courts which requires a preponderance of the evidence. It is extremely likely the Bala study also applies to domestic violence and therefore professionals should realize that false allegations of abuse by mothers are rare. In contrast, the unqualified professionals relied on by the courts assume mothers frequently make false allegations when there is no valid research to support this claim and the available information suggests the opposite.
The Role of Bias in Promoting Flawed Practices
Two of the hypotheses Dr. Saunders sought to test with his research were the expectation that there would be a positive correlation between attitudes blaming domestic violence victims and belief in the frequency of false allegations and that there would be a positive correlation between belief in high rates of false allegations and belief in a just world, a social dominance orientation and patriarchal norms. (report, P. 30). Just world beliefs suggest that when good or bad things happen to someone there is a reason that it was deserved. This would mean victims somehow deserved his abuse and robbers who were not caught deserved to get away with their crime. Social dominance and patriarchal norms refers to a belief that men are entitled to unearned power and privilege over women. The hypotheses were supported by the research and help explain many of the mistakes seen in custody courts. In this way the outcomes are based not on the evidence or the well being of children, but on the private belief systems of evaluators and other court professionals.
The problem was illustrated by a Queens, New York case in which Paul Marcus, a fathers’ rights psychologist was appointed as the evaluator and treated as if he was a neutral professional. Shortly before his participation in the case he was quoted in a NY Times article sympathetic to fathers in which he advocated for shared parenting. He came into the case determined to force the parties to agree to shared parenting no matter how inappropriate it was in the case.
The parties were never married and the mother ended her relationship with the father after he assaulted her while she was pregnant. Lethality assessment, which was one of the areas of knowledge Dr. Saunders believes is needed for evaluators in domestic violence cases, includes assaulting a woman while pregnant as one of the behaviors that demonstrates a higher risk of lethality. Dr. Marcus minimized this and other important evidence of the risks presented by the father because he did not have this knowledge and his belief system undermined state laws that required domestic violence be taken seriously.
Dr. Marcus’ sexism was demonstrated when he referred to the mother as “hon” short for honey and failed to understand the objection when questioned about it. Although the father routinely worked 80-100 hours per week, Dr. Marcus demanded the parents share time with the baby equally and referred to the mother as an “extreme fundamentalist” for suggesting the father receive visitation every other weekend, one or two dinners during the week and additional vacation and holidays. Dr. Marcus also sought to pressure the baby’s pediatrician to support his plan to stop breast feeding the baby at one year old so that the father could more easily have equal time with the baby. In other words he was more concerned with the political value of the parties having equal time then the well being of the child.
Dr. Marcus had attended an excellent domestic violence training in order to qualify to serve as a parent coordinator. They provided the kind of current scientific research Dr. Saunders believed was necessary to understand the domestic violence aspects of the case. It quickly became clear, however that Marcus failed to read the material, did not have this needed information and made the typical mistakes of unqualified professionals. The judge continued to treat him as a neutral professional despite his obvious unfamiliarity with needed domestic violence information. He recommended custody to the abusive father which is what the Saunders’ study would predict from an unqualified evaluator.
Dr. Marcus is part of a cottage industry of evaluators and other court professionals that have sought to increase their incomes by supporting practices that favor abusive fathers. Most contested custody cases are really about domestic violence and most abusers control their partners including the family finances. This means that fathers in contested custody cases are most likely to have most of the resources from the family. Interestingly, one of the findings in the Saunders’ study is that evaluators who work for the court or the county tend to be more qualified than those in private practice. At the NCADV Conference when Dr. Saunders presented his findings, I asked if the superiority of evaluators who do not profit from each case might support concerns about the cottage industry. Dr. Saunders agreed this was a likely explanation.
The Saunders’ study supports earlier findings of substantial gender bias against women litigants. At least forty states and many judicial districts established court-sponsored gender bias committees that demonstrated the bias against women. The connection found by Saunders between beliefs in male dominance and patriarchy with inadequate dv training, belief in the myth that women frequently make false allegations and approaches that minimize or deny valid complaints about domestic violence, demonstrate how evaluators and other court professionals contribute to this gender bias.
Domestic violence advocates are part of the only profession that has exactly the domestic violence training needed to recognize when domestic violence is present and to formulate responses to protect the victims’ safety. The courts have repeatedly demonstrated a lack of critical thinking by refusing to hear testimony from domestic violence experts or minimizing its importance. Many judges have complained that advocates are biased because “they are always against domestic violence.” In the same way, firefighters are biased because they are always against arson and doctors because they are always against cancer. The laws and policy of every state and court is to work to prevent domestic violence. Advocates have the skill and knowledge to respond in the most effective way. The last thing advocates would do, would be to support a false accusation because the rare false charges have caused tremendous harm to the vast majority of women making truthful allegations, but facing skepticism and disbelief. Ironically courts are refusing to listen to genuine domestic violence experts while routinely treating mental health professionals with inadequate training in domestic violence and bias against women as if they were experts. Hopefully the Saunders’ report will encourage judges to look at specific domestic violence knowledge and training instead of degrees that provide little or no dv qualifications.
Other Findings in the Saunders’ Study
Custody courts have generally assumed that degrees based on more years of education would provide greater expertise. This is something that is generally agreed by most people. The Saunders’ study, however found that professionals with a social work degree were more likely to be qualified to respond to domestic violence cases than psychologists and made recommendations that provided more safety for victims. It appears there were two important reasons for this surprising finding. Social workers were more likely to use a holistic approach and this is helpful because context is so important to understanding domestic violence. Psychologists were burdened by the use of psychological tests that provide little information about domestic violence and thus distract attention from more critical issues. There are some tests such as the Campbell Danger Assessment that are useful in screening for domestic violence and risk assessment. The Saunders study probably showed more use of tests geared towards domestic violence than are actually used in the courts. In most cases psychologists rely on the MMPI or other similar tests that create the illusion of a scientific basis for their recommendations, but often do more harm than good. Significantly these tests were not created for the populations seen in custody courts and often result in pathologizing domestic violence victims.
Another important finding is that court professionals place far too much emphasis on the anger or emotion of dv victims. This was a key finding in research done by Jennifer Hardesty and supported in the Saunders’ study. The mother’s reactions are normal responses to the abuse they suffered, but the result is to blame the victim for problems caused by the abusive behavior of their partners. Gender bias committees that find women being blamed for the actions of their abusers are referring to mistakes like this. Unqualified professionals often use this anger all out of proportion to how it would impact their ability to parent the children.
The study also found that legal aid attorneys tended to be more qualified for handling domestic violence cases than private attorneys. We often see private attorneys discourage or refuse to present evidence of domestic violence and child abuse. In some cases this could be a reflection of the perceived hostility of the judge to these issues, but often is based on the belief system and attorneys’ lack of needed domestic violence training.
“On average, evaluators estimated that one-fourth to one-third of child abuse allegations were false. This finding raises serious concerns, because empirical findings about the rates of false child abuse allegations in divorce cases are much lower than these rates.” (Report, P. 117). Although deliberate false allegations of child sexual abuse by mothers are 1.3%, 85% of cases involving these allegations led to custody for the alleged abuser. The widespread lack of needed training, and bias of evaluators and other court professionals, explains why these tragic outcomes are so common. The reports of the Courageous Kids document the unspeakable cruelty caused by these mistakes. The court system has a moral obligation to expeditiously develop the needed reforms in order to stop forcing children to live with their rapists.
Abuser rights groups have sought to promote shared parenting approaches supported by fathers’ rights professionals like Dr. Marcus. Although most laws and case law promoting shared parenting have an exception for domestic violence, the widespread failure to recognize domestic violence makes these practices dangerous. Evaluators frequently recommend shared custody in domestic violence cases. “This finding is a concern because with joint legal custody, abusers can manufacture reasons to have contact with their partners and to restrict counseling, medical, and extra-curricular school events for the children.” (Report, P. 118). Courts and legislatures should reconsider promotion of shared custody. While earlier studies seemed to support its value under the most favorable circumstances, later research established it is harmful to children even when parents can cooperate and a disaster when it is mistakenly used in domestic violence cases.
Evaluators and other court professionals rarely recommend supervised visitation for dangerous abusers. The lack of adequate training in assessing safety issues and understanding the frequency of post-separation violence contributes to this mistake. So does the high priority given to including fathers in the children’s lives. In general this is a good thing, but unqualified professionals often support and require this even when the father presents a danger. Many children have been murdered as a result of the courts’ failure to take the risks seriously. Communities need to develop professional supervised visitation facilities so that this safe alternative is available. Tragically, the frequent imposition of supervised visitation against safe, protective mothers as described in the next section wastes the limited resources for supervised visitation on parents who pose no safety risk to their children.
Interviews with Mothers Victimized by System
Dr. Saunders interviewed 24 domestic violence survivors who suffered the extreme outcome of abusers winning custody and safe, protective mothers limited to supervised or no visitation. The purpose of this part of the study was to help understand the kinds of mistakes that lead to these outcomes. Dr. Saunders pointed out that these represent a small minority of case outcomes, but are important to study in order to determine the reforms that are needed. Many of the mistakes made in these extreme cases are also made in other cases but without the most extreme outcomes. We often see court professionals react defensively about complaints from mothers involved in these extreme cases, but Dr. Saunders recognized the cases represented outcomes harmful to the children. We need to create practices and reforms that can avoid these outcomes.
“In studying “worst-case scenarios,’ we might learn what might have gone wrong in their encounters with various systems. Our aim was similar to the assessments conducted by fatality review teams in family homicide cases.” (Report, P. 101) The research recognized that when the mother does not present a safety risk to the children, such extreme outcomes are virtually always wrong and cause tremendous harm to the children. In cases in which the father allowed or even required the mother to provide most of the child care during the relationship, the chances of a genuine safety issue are remote. The mother did not become unsafe because she chose to leave her abuser or complain about his abuse. Most of the time these extreme outcomes are imposed in retaliation for the mother continuing to believe her allegations of abuse despite the failure of the court (often using professionals who do not have the domestic violence training recommended by this study) to believe her allegations, labeling her as an alienator or pathologizing her based on tests that do not screen for domestic violence and were not made for the populations in custody courts. We often see diagnoses that seem to apply only to her behavior in the custody courts because she functions fine in the other parts of her life. These facts would lead to the diagnosis being discarded if the professionals were properly trained and unbiased.
The Saunders’ study developed a list of common mistakes that led to these harmful outcomes. The first problem was that court professionals ignored or minimized the domestic violence evidence in the case. This is exactly what one would expect to happen when evaluators and other professionals lack the specific training necessary to recognize and respond effectively to domestic violence allegations. Evaluators who believe domestic violence is unimportant or do not know what to look for to determine if the allegations are true have little chance to recognize the abuse. Evaluators who believe the myth that women frequently make false allegations are likely to support their self-fulfilling assumptions. Similarly, evaluators who believe men should control women or that the women must deserve any abuse they receive are not likely to treat her allegations seriously.
The second major obstacle to an accurate evaluation was an overreliance on mental health diagnoses of mothers to assess credibility. This mistake was caused by the use of psychological tests not meant for the population seen in custody courts, made less reliable by the stress of domestic violence and contested custody and magnifying minor personality issues into significant personality disorders. We often see cases in which the evaluator fails to recognize the father’s domestic violence or child abuse and then labels the mother as paranoid or delusional for believing her accurate allegations. The widespread failure of evaluators to use tests designed to detect domestic violence contribute to their failure to recognize domestic violence.
. The third major obstacle is the ineffectiveness of child custody practices in domestic violence cases. The professionals relied on often do not have the needed training and courts refuse or discourage the use of domestic violence experts who have the required expertise. Practices that view contested custody as “high conflict” instead of the actual domestic violence help abusers by penalizing mothers who demonstrate fear or seek to protect her children from a father she experienced as dangerous. The widespread belief that children need both parents equally contributes to pressure for mothers to cooperate with her abuser. In reality, children need their primary attachment figure more than the other parent and the safe parent more than the abuser. Nevertheless we often see court professionals respond to domestic violence by pressuring the mother to cooperate with her abuser instead of pressuring the father to stop his abuse.
The limited time and resources available contribute to the harmful outcomes. Mothers complained that judges and evaluators rushed through the hearings and meetings and did not take the time to understand the issues. Fathers were often given more time to present his side. Context is critically important to understand domestic violence and recognize the patterns, but the professionals tended to look at each issue and event separately thus depriving themselves of the ability to recognize these patterns. Domestic violence experts understand these issues because they look for these patterns, but the courts rarely seek their assistance in domestic violence cases.
These and other deeply flawed practices give evaluators and other court professionals little opportunity to make decisions that protect children’s safety. Significantly, the information provided by the survivors in this part of the study confirms the problems exposed from the responses of court professionals. Not all court professionals engaged in the harmful and biased practices, but enough of them did to make the extreme and harmful outcomes in some of these cases inevitable. As discussed earlier, the percentage of unqualified professionals is probably far higher than the percentage from the professionals who volunteered to participate in the study, but just the percentage of unqualified professionals revealed in this study explains the extreme harmful outcomes discussed by these survivors.
For many years, protective mothers and professionals supporting them have been criticizing the practices used by custody courts in domestic violence cases. The courts have denied the complaints even as ever more evidence of avoidable tragedies has surfaced. The courts appeared to have no interest in reviewing the outcomes of cases to see how their decisions have worked out. Ever more research has supported the concerns of protective mothers, but the court systems have refused to consider the needed reforms. With the publication of the Saunders’ study there can be no further doubt that custody courts are routinely placing children in danger because of flawed practices in domestic violence cases. The Saunders’ study demonstrates the courts are getting a high percentage of their cases wrong and these mistakes are inevitable as long as they continue relying on evaluators and other professionals with inadequate domestic violence training, widespread belief in the myth that women frequently make false allegations of abuse, and political beliefs and biases that support abusers.
Domestic violence victims are often forced to live in a pretend world in which their abusers deny their abuse or blame the victims for his mistreatment of her. When courts fail to use experts who understand domestic violence, they inevitably force victims to return to the pretend world in which only they are to blame. The Saunders’ study should be required reading for any professionals who provide advice to the court. The courts must immediately adopt practices based on the kind of current scientific research contained in the Saunders’ study and make it safe for battered mothers to discuss the reality of their partner’s abuse.
With the release of the Saunders’ study and the availability of other important information such as The Batterer as Parent and Domestic Violence, Abuse and Child Custody, judges can no longer reasonably pretend or remain oblivious to the frequency in which it places children at risk. It is now time to focus on the reforms needed to make our custody courts safe for children.
Unfortunately, it will take some time to retrain evaluators and other court professionals, adopt improved practices and make safety the first priority. The court system should work with domestic violence experts, who Saunders found to be the best trained and most knowledgeable group regarding domestic violence, to develop the needed reforms. Any attempt to limit this process to judges, lawyers and mental health professionals would be malpractice.
In the interim, tomorrow and every day thereafter more children will have their futures ruined until the reforms can be implemented. We can make every court professional immediately aware that the Saunders’ study has now established that the present practices are working poorly for children. The custody courts should immediately start requiring the participation of domestic violence advocates and experts in all domestic violence cases. If evaluators are appointed in a case they should consult with dv experts. Their prior belief and assumption that they had sufficient expertise in domestic violence has been shattered by the research in the Saunders’ study. From now on the most important factor must be that children be kept safe rather than that fathers always have access to their children.