Article by Barry Goldstein
Most child custody cases involve two safe parents who would not hurt their children. Accordingly, when courts use standard practices that don’t include current research and does include experts in psychology and mental illness, they are able to make good decisions.
The problem is the 3.8% of cases that require trial and often much more. A large majority of these cases involve domestic violence. Abusers who believe their partner has no right to leave use custody to regain what they believe is their right to control their partners. These fathers are willing to harm their children to regain control, but the courts relying on experts more suited to safe parents and a “high conflict” approach that blames victim and abuser equally; are getting a high percentage of these cases disastrously wrong.
Failure to Consider Current Scientific Research
The ACE (Adverse Childhood Experiences) studies are medical research from the Centers for Disease Control and Prevention and so highly credible. ACE demonstrates that exposure to domestic violence, child abuse and other trauma will shorten children’s lives and subject them to a lifetime of increased health and social problems. Most of the harm comes from living with the fear and stress abuse causes rather than from the immediate physical injuries, courts tend to focus on. ACE also demonstrates that one-quarter of children in the United States are sexually abused. The methodology eliminated any possibility of false reports and so proves that approaches that assume most reports are false are mistaken.
Contested custody cases are usually the last chance to save children from the horrific consequences of exposure to ACEs. With the necessary treatment and therapy and protection from further abuse, the children can be saved from the long-term harm. The courts virtually never focus on preventing fear and stress. Common decisions that give abusers shared decision-making allow them to prevent needed treatments and especially therapy. Keeping abusers in children’s lives does more harm than good because it prevents children from healing.
The ACE Research proves that many common court practices are wrong because they make it harder to recognize and respond to domestic violence and child abuse. The common mistakes include: exclusive or primary focus on physical assaults; assumption older incidents of abuse do not matter; approaches that ask victims to “get over it:” high conflict approaches; the use of co-parenting in abuse cases; reliance on court professionals who are not trauma-informed; and failure to recognize the significance of fear.
The Saunders study comes from the National Institute of Justice in the US Justice Department so again highly credible research. The purpose was to determine whether court professionals have the necessary knowledge about domestic violence to respond effectively to DV custody cases. They don’t! Saunders found that judges, lawyers and especially evaluators need knowledge about very specific topics that include screening to DV, risk assessment, post-separation violence and the impact of DV on children.
A small majority of evaluators claimed to screen for DV, but most claimed to do so by using psychological tests that tell them nothing about DV. Many also got the vignettes that were part of the Saunders study wrong. This is the worst of all possible situations; professionals who do not have the DV knowledge needed but who think they are qualified. The problem is confirmed by the fact courts rarely discuss the topics Saunders found most important. Professionals without the necessary training tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. These mistaken beliefs lead to decisions that harm children.
One section in the Saunders study focused on “harmful outcome” cases. These are extreme decisions in which the alleged abuser gets custody and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. These decisions are always wrong because the harm of denying a child a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide is greater than any benefit the court thought it was providing. Saunders found these bad decisions that are all too common are caused by the use of flawed practices.
The widespread failure of courts to learn from the Saunders study results in courts continuing to use harmful practices that include: limiting experts to mental health professionals; relying on professionals without the necessary DV expertise; continuing to impose harmful outcome cases; allowing co-parenting in DV cases; relying on professionals who don’t know how to recognize DV; failure to use risk assessment in DV cases; assuming the end of a relationship ends the risk; failing to understand the importance of fear; and assuming children benefit from an abusive parent in children’s lives.
The failure to use ACE means courts are minimizing the significance of DV and child abuse and failing to consider a child’s ACE score in determining custody. The failure to use Saunders means courts are often using the wrong experts. This results in courts routinely disbelieving true reports of abuse. Significantly all of the mistakes help abusive fathers and increase the harm and risk to children. In other words, the failure to integrate current research is not neutral but causes courts to err on the side of risking children.
The Awful Consequences
According to a study from the Leadership Council, every year 58,000 children are sent for custody or unprotected visitation by dangerous abusers. The Center for Judicial Excellence has started keeping track of child murders in contested custody cases. Over 700 children have been murdered, mostly by abusive fathers. In many cases, the courts using standard practices that minimize and deny the risk posed by dangerous abusers gave the killers the access they needed to murder their children.
Dr. Dianne Bartlow followed-up on the child murders by interviewing judges and court administrators in the communities where the tragedies were committed. The judges who participated tended to be the most knowledgeable and caring about DV which is why they agreed to participate. Their discussion about DV was very informative, but their response to Dr. Bartlow was the most revealing.
She asked what the courts had done to reform practices in response to the local tragedy. The shocking answer was nothing because they all assumed the local murder was an exception. This fits with the larger practice of treating each case and each issue separately. Patterns are important to understand DV but court practices discourage looking for patterns. In many of the child murders, the judicial response was extremely defensive. Courts do not seem to have a mechanism where they can reassess long-established practices in the light of tragic consequences or new research.
The Meier Study also comes from the National Institute of Justice in the US Justice Department so is highly credible. Professor Meier and her colleagues reviewed over 4000 published opinions dealing with DV, child abuse and alienation. The Meier Study provides detailed information about the outcomes of these cases. By itself, the results from Meier cannot provide information about the appropriateness of the decisions. In the context of the other research, I believe the findings are devastating for anyone who wants to justify the status quo.
When courts fail to use current scientific research; use practices that minimize and deny true reports of abuse and rely on the wrong experts instead of using a multi-disciplinary approach supported by the Saunders study; one would expect results tilted to favor abusers and this seems to be supported by the Meier Study.
Starting in the 1980s, forty states and many judicial districts created court-sponsored gender bias committees. The committees did their work over a few decades using different approaches but found widespread gender bias particularly against women litigants. Common examples include holding women to a higher standard of proof, giving mothers less credibility and blaming women for the actions of their abusers.
Gender bias is difficult to deal with because it tends to be unintentional and often subconscious. Often it is based on gender myths and stereotypes. At the same time lawyers and litigants are reluctant to raise the issue because it often results in defensive and retaliatory responses. The courts have done little to overcome the problem so it is not surprising that Meier found little progress has been made.
Meier also found that unscientific alienation theories have far more influence in the custody courts than important research like ACE and Saunders. ACE and Saunders are scientific research from highly credible sources. ACE is medical research that is used for many other purposes. Parental Alienation Syndrome and its progeny are not based on any research but rather the personal experience, beliefs and biases of Richard Gardner. This includes many public statements that sex between adults and children can be acceptable.
PAS is a sexist theory created to support a cottage industry of lawyers and mental health professionals that make large incomes by helping wealthy abusers. This works because most contested custody involve DV abusers who usually control the family resources. Lawyers and judges have heard this biased misinformation throughout their careers and it also poisons other cases the biased experts are not involved in. The cottage industry lobbied aggressively to have alienation included in the DSM-V which is the compendium of all valid mental health diagnoses. It was rejected by the American Psychiatric Association because there is no scientific support for this theory. This rejection has not caused courts to avoid these biased theories.
ACE demonstrates that DV and child abuse shorten children’s lives and cause a lifetime of health and social problems. There is no scientific support for harm caused by alienation because there is no generally agreed definition. Children sometimes hear negative statements about the other parent in intact families, but any harm is usually limited and short-term. Since alienation is not caused by mental illness, the experts who now give often biased and subjective opinions have no special qualifications to do so.
Meier found that when fathers’ allegations of alienation are believed it gives them large benefits but when courts find mothers were alienated, the mothers get no benefit. It is not surprising that a sexist theory created to help abusive fathers would be used in ways that unfairly favor fathers. With the publication of the Meier Study, it is clear that the use of alienation theories creates fundamental equal protection and due process violations.
Although the Bala study proved mothers involved in contested custody make deliberate false reports less than 2% of the time and fathers are 16 times more likely to make deliberate false reports, Meier’s findings demonstrate very different outcomes. Mothers raising concerns about abuse are believed only 41% of the time and if the father uses the standard alienation tactic mothers are believed only 23% of the time. We have long believed custody courts have a serious problem responding to child sexual abuse and Meier found courts believe mothers only 15% of the time and only 2% if the father claims alienation.
When mothers report abuse, they lose custody 26% of the time. The losses increase to 44% if the father claims alienation and 73% when courts believe alienation occurred.
I think it is important to understand the type of cases we are discussing. In our still sexist society, mothers continue to provide most of the child care and are usually the primary attachment figure for the children. This means the courts are accepting an increased risk of the children suffering depression, low self-esteem and suicide in order to change custody.
In most of these cases the father allowed or even demanded the mother provide most of the child care. In any other type of litigation this would be considered an admission by the father that the mother is a good parent. She didn’t suddenly become crazy or unfit because she decided to leave or reported the father’s abuse. Nevertheless, this is what the alleged abusive fathers routinely claim and the court professionals without the needed DV expertise accept.
Saunders suggests and Meier supports the belief that professionals unqualified for abuse cases tend to believe the myth that mothers frequently make false reports and unscientific alienation theories. Although mothers make false reports less than 2% of the time, one could understand why they might not win 98% of the cases. DV and child abuse are usually committed in private and so available evidence might be limited. Abusers often have more financial resources and are often allowed to take advantage of their control of the family resources. Child sexual abuse is often hard to prove.
When these mothers are losing custody in abuse cases 26% of the time even without alienation tactics, something is wrong. More so when she is the primary parent and the father has admitted she is a good parent. Taken together, the research confirms that in the most dangerous cases, the courts are getting a large percentage catastrophically wrong.
There is no good reason that courts have not yet integrated important scientific research. It is unreasonable that courts use the same small group of experts and fail to use a multi-disciplinary approach in DV and child abuse cases. No judge wants to hurt children, but few judges are willing to make the needed changes even in response to the most tearful tragedies. Children’s lives continue to be destroyed while court professionals defend approaches of making life and death decisions without the benefit of current scientific research or specialized experts.
Custody cases involving possible DV or child abuse must be given the highest priority. The best judges and other court professionals should be assigned to these cases. They need the resources including time to make the right decisions. The health and safety of children must become the first priority in all abuse decisions. The era of pretending everything is fine must end and the era of creating the necessary reforms to safeguard precious children must start immediately.
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