How Can a Domestic Violence Expert Witness Help the Court?
Many custody courts are used to relying on a psychologist or other mental health professional even when there are no credible mental health issues. With rare exceptions domestic violence is not caused by mental illness. The Saunders’ study from the US Department of Justice confirmed what protective mothers have been complaining about that most evaluators do not have the needed training and expertise in domestic violence. Best practices involve using a multi-disciplinary approach. Mental health professionals are the experts in psychology and mental illness, lawyers and judges are the experts in the law other experts may be needed for medical issues, allegations of sexual abuse and substance abuse. The Saunders’ study found that domestic violence advocates have the best training and understanding about the specific topics Dr. Saunders found are most needed to help courts respond to domestic violence cases. So how can a domestic violence expert help family courts better protect children?
1. Recognizing Domestic Violence: The Saunders’ study recommends training in screening for dv. He found many evaluators claimed to screen for dv but did so by using psychological tests that say nothing about dv. The expert can help courts avoid discounting true allegations based on many common non-probative reasons and look for the pattern of coercion and control so that the non-physical abuse can help show the abuser’s motivation.
2. Risk Assessment: Another topic recommended by Saunders: There are specific behaviors associated with higher risk and lethality. Advocates know what they are but evaluators usually don’t. How can courts make a safe decision without knowing what the risks are?
3. Post-Separation Violence: Saunders recommends this because too many evaluators and other professionals believe the danger ends when the relationship is over. Not only is this the most dangerous time for the victim but dv is caused by the abuser’s belief system which is unlikely to change just because the parents separate. If the abuser has unsupervised visits the children are likely to witness more dv of other partners.
4. The Impact of DV on Children: This goes to the heart of the purpose for courts to consider dv. The potential risks include children engaging in harmful behavior when older, failure to meet developmental goals and lifetime health risks. Few evaluators are familiar with the later risk. Incomplete information about the potential risk of witnessing dv results in minimizing the danger and hurting children.
5. Bursting the Myth: Saunders found that inadequately trained professionals tend to focus on the myth that women frequently make false allegations. This results in outcomes that harm children. A dv expert can discuss this openly because some evaluators will use this wrong assumption without mentioning it directly. This is one of the major reasons why courts disbelieve true allegations of abuse.
6. The Health Impact on Children from DV and Child Abuse: The ACE (Adverse Childhood Experiences) studies released by the Center for Disease Control establish that exposure to dv, child abuse and other trauma increase children’s illnesses and injuries as children and as adults. Their life expectancy can be significantly reduced. Evaluators are rarely aware of this new research but the court cannot determine the best interests of children without considering how the custody decision will impact the child’s health and lifespan. This research is particularly important because it provides an opportunity to help children exposed to dv a chance to avoid the health consequences but it requires very specific custody and visitation arrangements.
7. Avoiding Unscientific Theories like Parental Alienation Syndrome: Many evaluators and other court professionals continue to use PAS, often by another name because of its notoriety. The Saunders’ study found this is an indication of lack of training. Most judges are not aware that PAS was concocted not based on any research but on the experiences and beliefs of Richard Gardner. Gardner made many public statements to the effect that sex between adults and children can be acceptable. Few judges would want to be associated with such offensive beliefs if they knew about it. The American Psychiatric Association recently refused to include PAS in its DSM-V, a compendium of all valid diagnoses despite aggressive lobbying by abuser groups and the professionals who make their living helping abusers. It was rejected because there is no valid scientific basis for it. This ought to end the use of any of the alienation theories by the courts.
8. Domestic Violence Dynamics: Dr. Amy Castillo sought a protective order against her abusive husband. Immediately before going to court she had marital relations with her husband. When the judge heard this he decided he couldn’t be that bad if she was still intimate with him. It never occurred to him that it might not have been safe for her to refuse. Many aspects of domestic violence are counterintuitive and courts would benefit from hearing from experts who understand the dynamics.
9. Abuser Legal Tactics: Abusive fathers and the professionals in the cottage industry supporting them have developed a wide range of tactics. Courts often miss the purpose of the tactics because they don’t look for patterns. We have seen many cases in which fathers spend substantial time and money to obtain custody or visitation and then refuse it. They then ask the court to punish the mother. This is an effective tactic because it makes no sense unless the court understands the purpose of the father is not to have a relationship with the child but to hurt the mother.
10. Gender Bias: At least 40 states and many districts have created gender bias committees that found widespread bias against women and particularly women litigants. Mothers in custody cases were give less credibility, higher standards of proof and blamed for the actions of their abuser. We constantly see cases in which fathers who present a real danger and are given supervised visitation there is an urgency to resume normal visits but when mothers are limited to supervision based on “alienation” type issues that pose no safety risk the courts are comfortable continuing the restriction for many years. The problem with gender bias is that it is unintentional and often unconscious so providing expertise is particularly helpful to a court.
11. Sexual Abuse of Children: Child sexual abuse allegations are incredibly painful and emotional. Court professionals hate to deal with these cases and victims receive enormous pressure not to complain. Although mothers make deliberately false complaints less than 2% of the time, in 85% of the cases the alleged abuser is given custody. This means courts are sending a lot of children to live with their rapists. This is caused by many common flawed and biased practices. A DV expert can inform the court of best practices so courts can protect children and help them heal.
12. Context: Courts cannot respond effectively to domestic violence cases without understanding the context. There is a strong tendency of courts to look at each incident and each issue separately and in doing so the judge can miss the pattern. I have heard many judges express frustration of having to respond to cases that seem like “he-said-she-said.” DV experts can help the court by putting together the patterns and focusing on the context. In this way difficult decisions can become clear.
13. Economic Abuse: One of the early mistakes that was made at the start of the domestic violence movement was to focus on only physical abuse. Although many court professionals give lip service to the fact that domestic violence includes many other forms of coercive tactics the major focus continues to be physical assaults. In many cases the abuser controls most of the family resources. Even when the victim has some resources, the abuser uses an aggressive litigation strategy to use up her money. In many cases the victim has to represent herself and the outcome is created by the economic superiority rather than the merits of the case. A DV advocate can help the court understand the significance of economic abuse and the need to level the playing field.
14. Making Valid Scientific Research Available: Most evaluators are not familiar with current research. Some may cite unscientific research like PAS but more often reference “my clinical experience.” This sounds impressive but actually means the personal beliefs and biases of the evaluator. Saunders emphasized that there is now a substantial body of scientific research which can be used to inform court decisions. A DV expert can bring this research in front of the court.