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fail to recognize valid complaints about domestic violence and child abuse with frightening frequency because of the outdated and discredited practices that continue to be used in domestic violence custody cases despite the scientific research now available.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.