Article by Barry Goldstein & Veronica York
The only time the public hears about custody court failures is when their decision leads directly to a child murder during a custody dispute. This regularly occurs because the flawed standard custody court practices deny or minimize the risk an abusive father creates, so the court gives him the unprotected access he needs to kill the children. I don’t know why society tolerates such unbearable loss, but in the last 16 years courts in the United States have permitted over 1000 children involved in domestic violence (DV) custody cases to be murdered, mostly by abusive fathers. This article seeks to expose that the same flawed practices cause substantial harm to the rest of us.
The National Council of Juvenile and Family Court Judges seeks to train other judges about the ACE (adverse childhood experiences) Research and the Saunders Study but courts handling DV custody cases rarely use these tools. ACE tells us that the harm from DV and child abuse is far greater and long lasting than previously understood. Saunders found that most court professionals do not have the specific DV knowledge needed and so courts often disbelieve true reports of abuse. The consequences of these fundamental makes cause harm far beyond the children in individual cases.
Increased Risk of Cancer and Heart Disease
Fundamental to ACE is that it is the fear and stress rather than any immediate physical injury that cause most of the harm from DV and child abuse. The widespread failure of custody courts to recognize true reports of DV and child abuse means many other people besides the mother and children will be exposed to the fear and stress the abuser causes.
It doesn’t seem obvious how a father yelling at a mother could cause cancer or heart disease decades later but that is exactly what ACE uncovered. Not any yelling would cause such severe consequences. Only when it is part of a larger pattern of coercive and controlling tactics that make victims feel like they are walking on eggshells. The stress from an abuser’s tactics increases the risk for cancer and heart disease.
Stress causes inflammation that weakens our hearts. It is also responsible for higher blood pressure. One of the first things a cardiologist tells new patients is that they need to reduce their stress. 55% of smokers in the United States started because they had high ACE scores. DV makes all of the other ACEs more likely. The harm from smoking has been well known since the 1964 Surgeon General’s report linking cancer with smoking. This is why the American Cancer Society and American Heart Association took the lead in preventing smoking. The stress from DV and child abuse undermines our immune system which also greatly increases our risk for cancer.
The risk for cancer and heart disease increase, not just from direct smoking but also from second hand smoke. Our tolerance for DV and child abuse means many third parties will be exposed to harmful smoke. Statistically, boys exposed to DV and child abuse are more likely to abuse their partners and so expose another generation to increased risk of cancer and heart disease. The courts’ failure to hold abusers accountable has encouraged more DV, again exposing more of the public to the risks.
he harm from cancer and heart disease impacts more than patients and their families. We all pay the costs as part of insurance premiums and taxes. The patients may need more services instead of contributing to our economy and tax base. We could say our tolerance for DV and child abuse is a cancer on our society.
Custody Courts Cause Increase in DV Homicide
Near the beginning of the modern DV movement, society responded with a group of reforms that made it easier for victims to obtain criminal prosecution, restraining orders, custody, divorce, shelter, economic and other assistance. All of these reforms made it easier for victims to leave their abusers. As a result, the DV homicide rate went steadily down for three decades.
In 1976, 1600 women were murdered by their intimate partners. By 2005 that number was reduced to 1181. Some communities like Quincy, MA, Nashville, TN, and San Diego, CA took DV even more seriously and saw DV homicides drop even more dramatically. The best practices in Quincy saw a community that averaged 5-6 DV homicides a year enjoy several years in a row with no murders. As less children were exposed to DV, we might have looked forward to still more progress.
Abusers did not like the restrictions and accountability. They developed particularly cruel tactics to regain what they believe is their right to maintain power and control over their victims and punish them for leaving. Abusive fathers started seeking custody or shared parenting as a way to regain control. They used their superior financial resources from economic abuse, concocted unscientific alienation theories, promoted the cottage industry of professionals who supported them in return for large incomes, and used high conflict and equal parenting approaches to create a false equivalency between safe, protective mothers who usually were the primary attachment figures and abusive fathers. Courts forced victims to interact with their abusers with regular contact. The failure of the courts to recognize the tactics and protect children from abusers has made it almost impossible for victims to escape. As a result, the progress made in reducing DV was stopped and reversed. By 2021, 1690 women were murdered by their intimate partners at a time when other murders were down. DV is one of the most underreported crimes for many reasons. DV homicide is especially reliable in recognizing the extent of DV because there is a body. She is not lying about her partner killing her. The same custody court failures that led to a huge increase in DV homicides are responsible for increases in other DV crimes and tactics. In other words, the custody courts are encouraging DV homicides.
Bill Delahunt, the District Attorney during the Quincy Model found that victims stopped cooperating when their abusers sought custody. This did not prevent great success in Quincy because at the time, this tactic was rare. It is now a standard practice for abusive fathers to seek custody to regain control and the courts don’t even think about their motives. Why is a father who historically had little involvement in childcare seeking custody and claiming the person he demanded do most of the childcare is suddenly unfit?
Dutchess County, NY launched an investigation of its response to DV in response to a series of DV homicides. Nine people died in less than a year in a county with less than 300,000 people. The dead included 5 victims, a police officer who had just rescued a child whose mother was murdered by the father, and three of the killers committed suicide after their crimes. The county legislature asked a citizen’s committee of professionals to investigate the county response.
They issued an extensive report that found several problems that contributed to the series of homicides. The committee found many women either never went to court or if they did stopped because the Dutchess courts were so biased in favor of abusive fathers. The women recognized that it was safer to deal with their abuser alone than to have a judge helping him. The committee found the custody courts had been influenced by “fathers’ rights” committees and Parental Alienation Syndrome. Victimized mothers were afraid to go to court in Dutchess and this contributed to the series of tragedies.
The United States has been repeatedly traumatized by mass shootings. The response has often been around the issue of guns. This has caused inadequate discussion of the fact that about half of these mass shootings have been committed by DV abusers. One of the key points in this article is the ability of abusive fathers to manipulate custody courts to regain control has undermined the response and earlier success in preventing DV. This means that a better and more evidence-based approach to DV by the custody courts would reduce all crimes including mass shootings.
Custody Courts Also Severely Harm the Economy
The worst abusers are using custody courts to maintain their ability to control and harm their former partners. Their ability to do so has undermined the work to prevent DV. Obviously, not all cancer, heart disease, DV homicides, or other consequences from DV are caused by the custody court failure, but the problems caused by DV would be significantly reduced if custody courts used best practices in DV custody cases so that victims could escape and children could live without the fear and stress caused by the abusive fathers successfully manipulating our family courts. Conservatively, the United States spends $3.6 trillion every year to tolerate DV. This equals about $11,000 per capita. Even a fraction of the financial cost would make a huge difference in people’s lives.
The largest financial costs from DV are the health costs. Earlier calculations only considered the costs of any immediate physical injuries which limited the expense to $5-8 trillion. ACE is medical research that found the harm from DV is much greater and longer-lasting than previously understood. The fear and stress undermine the immune system causing a wide variety of diseases and making existing health problems significantly worse. The harm is not limited to adult victims, but includes children who experience DV and sometimes third parties. The yearly cost in the United States is $2.1 trillion and that was measured in 2014 dollars. We spend $14.1 trillion because of exposure to ACEs and DV can cause all the other ACEs.
The ACE studies are often compared to the 1964 Surgeon General’s Report linking cancer and smoking. As a society, we created many different kinds of responses that succeeded in reducing smoking from 42% of the adult population to 18%. By 2014, the reduction in smoking had saved over 8 million lives and many trillions of dollars. ACE offers a similar opportunity to save millions of lives and trillions of dollars by reducing DV and child abuse.
The loss of economic potential is a big part of the economic loss. Smokers usually do not get sick until middle age or later and so can accomplish significant contributions before their health is compromised. Obviously, children witnessing DV or direct child abuse are affected during their childhood before they can make any economic contributions. DV victims are usually early in their adulthood which limits the contributions they can make. Similarly, abusers waste their time and resources controlling and harming their partners, may be incarcerated for their crimes and often commit suicide after killing their wives and children. This often occurs early in their careers.
This loss of economic potential costs the United States $1.3 trillion annually. Calculating the full loss of potential is difficult because there are so many moving parts. DV often interferes with the ability of adult victims and children to obtain the education they might otherwise complete. They are likely to require more government and charity services while earning far less than their potential. Some victims might have become doctors, teachers, scientists, police, firefighters, and others who could have saved or inspired lives and allow others to more fully reach their potential. Some victims might have started businesses that employ others or create new industries that expand productivity. It is hard to imagine all that might have been.
The increased crime discussed earlier also has a financial cost. This includes the need for greater protection, prosecution, incarceration, health costs mentioned earlier, destroyed and damaged property, and loss of business when people are afraid to frequent some parts of the community.
Children go to school after the abuser traumatized them. These children have difficulty concentrating which undermines their ability to learn. Teachers and administrators often have to take time out from teaching to respond to traumatized children acting out in school. This interferes with the education of all students.
Making Custody Courts Safe for Everyone
Unlike today, DV was not a specialized area of knowledge when custody courts needed to develop responses. They turned to mental health professionals for assistance because of the popular belief at the time that DV was caused by mental illness and substance abuse. The problem is that the original assumptions proved wrong but courts never corrected the errors. The only significant changes have been ideological and influenced by male supremacist groups. Important research has become available that would make judges’ jobs easier, but they still haven’t integrated this knowledge. Here is what custody courts need to do to stop the enormous harm they are causing.
1. Make the Health and Safety of Children the First Priority: Each state has a group of factors courts are supposed to consider when deciding custody and visitation. These factors are reasonable in the vast majority of cases with two safe parents. Judges are given complete discretion in choosing which factors to base their decisions on. In DV and child abuse cases, the other factors are far less important than the health and safety of children. DV custody cases are the most dangerous for the children and everyone else. These are the cases where people lose their lives. I included health based on the ACE Studies because this research found exposure to DV and child abuse shortens lives and causes a lifetime of health problems. The harm is created by the fear and stress abusers cause but most courts are not even discussing the need to reduce children’s fear and stress.
2. Integrate the Relevant Scientific Research: Without ACE, courts inevitably minimize the harm from DV and child abuse. Without Saunders they rely on the wrong professionals who don’t know how to screen for DV. These professionals don’t know how to determine the truth of a DV report when the abuse is committed in private. As a result, courts routinely disbelieve true reports of abuse. All these mistakes help abusers and harm children. It boggles the mind that courts continue to respond without this critical information. Child sexual abuse is a very specialized and critical issue but courts rely on the usual suspects instead of specialized experts. This is why the United States permits one-quarter of our children to be sexually abused. Although mothers make deliberate false reports less than 2% of the time, when fathers use the alienation tactic, courts disbelieve 98% of child sexual abuse reports. Saunders recommends a multi-disciplinary approach that includes a DV expert. Legal and mental health professionals have important training and make important contributions, but few have the DV expertise that is needed.
3. Stop Relying on Biased and Unscientific Alienation Theories: Parental Alienation Syndrome and its progeny were deliberately created to help abusive fathers take custody from good mothers and for cottage industry professionals to earn large incomes helping abusers. These theories were twice rejected by the American Psychiatric Association because there is no research to support them and yet courts continue to destroy children’s lives by accepting them. It is not just that it is unscientific which makes it unreliable but also the approaches used in custody courts are biased. There is such a thing as alienation but if it is to be considered it must be in a fair way. Courts must look at the behavior of both parents rather than just mothers. They must consider if the behavior is actually harmful to the child rather than protective. If a child is reluctant to have a relationship with an alleged abuser, courts should first consider if the bad relationship is caused by DV, child abuse or other bad parenting before jumping to the far less likely assumption of alienation. And there needs to be actual evidence to prove alienation rather than assumptions. This is important because the alleged abuser is unlikely to have personal knowledge of what happens in the other parent’s home.
4. Follow the Money: DV is about control including financial control. This means in most DV custody cases most of the money is on the side of abusive fathers. This is why many of the standard court practices favor fathers. In many cases only the father has an attorney or they have more expensive ones. Our jurisprudence is based on the assumption that if each party presents their best case, justice can prevail. The huge money difference often prevents mothers from presenting their best case and decisions are not based on the merits. Judge Mike Brigner wrote a chapter in one of my books in which he said courts have the authority to level the playing field but are not using it. The Batterer as Parent, one of the leading books about DV and child custody recommends that courts require the abuser to pay for any expenses, including legal fees, made necessary by his abuse. Courts need to use economic abuse to recognize DV and take steps to give both parents a chance to present their best case. The dispute is not just about money but the wellbeing of children.
5. Gender Bias: 41 states have created court-sponsored gender bias committees. They have found widespread bias against women litigants. Common examples include holding women to a higher standard of proof, giving women less credibility, and blaming mothers for the actions of their abusers. Gender bias is difficult to address because it is usually unintentional and subconscious. Good people, including women engage in gender bias. The problem is that the response to a report is usually defensive or even retaliatory. This discourages the kind of discussion that is needed. As a result, little progress has been made. One major result of gender bias is that custody courts are far more likely to retaliate against mothers (usually after disbelieving true reports of abuse) than holding abusers accountable. As a result, attorneys for abusive fathers are comfortable being very aggressive, misrepresenting the facts and asking courts for outcomes that harm children. At the same time, many attorneys for protective mothers are afraid to present evidence of DV or the research that supports their clients because of the risk of retaliation against their clients or even themselves. The result is courts do not hear all the information they need and abusive fathers have another unfair advantage.
6. Stop Using Outdated and Discredited Practices: There have been many good pieces of legislation passed to try to reform the courts. The problem is they have been piecemeal responses and courts usually work around the reform to continue using the failed practices they are comfortable with. This is why we need comprehensive legislation that requires courts to stop using old practices that were developed before research was available. Courts need to use an evidence-based approach and stop using practices the research long ago proved was wrong.
7. Early Hearing: DV and child abuse ruin children’s lives. ACE tells us such abuse is far more harmful than previously recognized. If one parent is proven to be an abuser and the other is safe, we know the best outcome for the children is custody for the safe parent and initially supervised visitation for the abuser. The abuser needs accountability and must change his behavior if he wants more of a relationship. Accordingly, courts can hold an early hearing limited to abuse issues. If abuse is proven, there is no need to hear a lot of less important issues abusers often use to distract attention. Mothers make deliberate false reports less than two percent of the time, so the early hearing is likely to resolve most DV cases. This will save the courts and parties substantial time and resources. It will help courts that often make mistakes because of shortcuts to handle overcrowded dockets. The money families save would be available for the children. Most important, this procedure is more likely to create outcomes that benefit children.
8. Training and Retraining Court Professionals: ACE and Saunders go to the essence of the wellbeing of children. Any attempt to respond to a DV custody case without ACE and Saunders should be understood as malpractice. There is other important research about gender bias, shared parenting, primary attachment, the Meier Study about outcomes in DV cases, and many others that would help courts protect kids. Courts need this training to avoid common mistakes that ruin children’s lives. Courts also need to understand the fundamental nature of DV custody cases. These aren’t “high conflict” cases in which both parents contribute to the problem. These are cases in which a DV victim seeks to escape and her abuser seeks custody to regain power and control and to punish her for leaving. Court professionals need to also learn to abandon older and biased practices that were developed before research was available and that we now know are mistaken. I have seen many cases in which the same mistakes led directly to a child murder. And the court system rushes to defend the mistake instead of using the tragedy to create needed reforms. We have seen laws that require training ignored and the same mistakes repeated. Judges must be forbidden to handle DV custody cases, which are the most dangerous cases until they have the training they need.
I recently posted something on Facebook about the exciting research we were going to speak about. I received a response that the findings were not exciting but horrific. She was right that the enormous harm custody courts are allowed to continue causing is horrific, but the research is exciting because if custody courts make the needed changes the benefits will be enjoyed not just by the direct victims, but by everyone. This is a huge opportunity and it is long past time to fix the broken custody court system.