Article by Barry Goldstein
My first book with Dr. Mo Therese Hannah included a chapter by attorney, Robin Yeamans that discussed child custody evaluations as a consumer product. Most domestic violence custody cases involve parents who have no severe mental health problem that would make them unfit parents. Most domestic violence evaluations are simple, easy and wrong for judges to follow. They are wrong for many reasons but particularly because the evaluators usually have the worst level of domestic violence knowledge possible. They have enough training to think they have the needed expertise but not enough to recognize and respond to domestic violence cases that ruin children’s lives.
The evaluators rely heavily on psychological tests meant for patients with severe psychological problems that often require hospitalization. This often leads evaluators to pathologize victims and blame them for their normal response to the fathers’ abuse. We see diagnoses that don’t impact the rest of the victim’s life but only their interaction with their abuser and court professionals supporting the abuser. At the same time the evaluators miss the more important abuse issues because they don’t know what to look for. They tend to miss the pattern of abuse and the fear and stress caused to mothers and children.
The point Ms. Yeamans was making is that any other consumer product that caused so much harm to children would have been removed from the market long ago. Her position has only been strengthened in the time since her chapter was published. Every year 58,000 children are sent for custody and unprotected visitation with dangerous abusers. In the last ten years, over 650 children involved in contested custody and related issues have been murdered mostly by abusive fathers. In many of these cases the court provided the access the killer needed because the judge failed to recognize the seriousness of the killer’s abuse.
The ACE (Adverse Childhood Experiences) Research from the CDC demonstrates that the failure to protect abused children leads to cancer, heart disease, suicide, drug overdoses and many other tragedies. The Saunders Study confirms that most evaluators and other court professionals do not have the specific domestic violence knowledge they need. The new Meier Study that will soon be released will confirm exactly what one would expect from a system that continues to rely on outdated and discredited practices. The courts frequently fail to protect children in abuse cases.
Courts have a legitimate problem in trying to respond to an overloaded calendar. This is why judges love simple and easy solutions to complex problems and don’t take the time to understand how wrong the recommendations are. Instead courts use a variety of shortcuts that help them move cases. The shortcuts make it even harder for judges to recognize danger that leads to very real tragedies. Instead, courts respond to tragedies in a defensive manner that prevents examination of needed reforms.
Context is Critical to Understand Domestic Violence
Most custody cases, like most litigation are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. A large majority of these cases involve domestic violence with the most dangerous abusers. They are dangerous because they believe she has no right to leave rather than because he committed the most severe physical assaults. This results in courts failing to recognize the risk because they focus almost exclusively on physical injuries. These are the cases in which mothers, children and bystanders are killed. These are the cases in which children’s lives are ruined. These are the cases that courts need to invest more time and resources, but instead focus on time-saving shortcuts.
Domestic violence is based on control, including financial control. This means that in contested custody cases most of the financial resources are controlled by abusive fathers. This has been recognized by a cottage industry of unscrupulous lawyers and mental health professionals who understand the best way to make large incomes is to promote approaches that favor abusive fathers.
Richard Gardner became the founder of the cottage industry by concocting Parental Alienation Syndrome (PAS) based not on any research but only his personal experience, beliefs and biases. His beliefs include many public statements that support sex between adults and children. PAS and other unscientific alienation theories are used by the cottage industry to provide an approach to justify giving custody to abusive fathers.
The soon to be released Meier Study, from the National Institute of Justice in the US Justice Department will help explain the catastrophic consequences for children. Alienation theories are more influential on custody courts then peer reviewed highly credible scientific research like ACE and Saunders. Alienation and other approaches are routinely applied in a gender biased manner that favors abusive fathers.
Courts are actually treating alienation as if it is more impactful than domestic violence or child abuse. This is unquestionably wrong because exposure to ACEs shortens lives and sickens children. In practice, unscientific alienation theories are used to deny and minimize true reports of abuse.
Our jurisprudence is based on the assumption that if both parties present their strongest arguments this will lead courts to the best decision. This is problematic in many types of cases where the wealthier party has an overwhelming advantage. The consequences are far more severe when the well-being of children is at risk. And custody courts are making life-altering decisions without considering the effects of economic abuse; the cottage industry, widespread gender bias; vital research like ACE, Saunders and Meier; the frequency of child murders and research that many of the standard custody court practices are outdated, discredited and tilt decisions in favor of abusive fathers and against the health and safety of children.
Saving Time Instead of Saving Kids
Most custody cases involve two safe and loving parents so initial decisions are easy and even a mistake is unlikely to harm the children. Accordingly, courts initially assume they are dealing with two good parents and immediately start pushing for a relatively equal co-parenting arrangement. Any concerns raised by a parent are assumed to be based on the anger from the break-up. The practice expedites initial court involvement and works fine in a large majority of cases. Most courts do not separate the potentially dangerous cases so there is no time to make sure children are protected.
Almost every case is expected to be settled so it is a waste of the judges’ time to learn more about a case than is needed to move it to the next step. If there is a significant chance that trial will be required, the court often seeks the appointment of an evaluator.
The evaluation will often lead to settlement because the court is unlikely to disagree with the recommendations. Most judges are unaware of the Saunders’ Study about the need for a multi-disciplinary approach and the lack of domestic violence knowledge of most evaluators. Judges are also generally unaware of the problems with cottage industry professionals especially in neutral roles like evaluator.
In most contested custody cases, the mother is the primary attachment figure and the safe parent. The father has a history of abuse among other drawbacks. The worst abusers are seeking custody to regain what they believe is their right to control their victim and use litigation to gain access to a mother trying to avoid her abuser. The abuser has no incentive to agree to a reasonable settlement so the court routinely pressures victims to co-parent with their abusers. In the worst courts she is threatened with retaliation and punishment if she doesn’t agree.
Increasingly, we see courts impose a strict time limit when a trial is required. Judges are rarely trained in risk assessment and so do not make exceptions in dangerous cases. On the surface the time limits seem fair as they are imposed on both sides. The problem is that the alleged abuser simply makes their straightforward claims and relies on the standard and outdated approaches. Victims need to explain more complicated scenarios and need time to explain how new research demonstrates many of the older practices work poorly for children.
Courts create these time restrictions because of an overwhelming calendar. They are not trying to do anything nefarious or benefit one of the parties. The restrictions apply to both parties equally, but the burden falls far more heavily on victims of abuse and their children.
What Saving Time Looks Like
Most judges are unfamiliar with vital research like ACE and Saunders. They don’t know that most contested custody involve the most dangerous abusers. The judges don’t know to look for the pattern of abuse when trying to recognize domestic violence or understand the significance of fear. The most important question in cases where children have been exposed to ACEs is what can be done now to save the children from the awful consequences. It is a question that is almost never discussed. These voids help explain why courts get such a high percentage of abuse cases wrong and also explains the problem of limiting the time victims have to educate judges about what they are missing.
In a recent Virginia case, I discussed the importance of giving me a chance to explain the need for a domestic violence expert with the mother’s lawyer. She planned to do this until the time limits required shortcuts. The abuser’s attorney had time to ask me about 15 repetitive questions proving I had no mental health expertise to testify about domestic violence that is not caused by mental illness. The judge never had time or interest to learn the children’s ACE score is five and the consequences can be fatal.
Although most contested custody involve the worst abusers who seek custody as the best way to hurt the mother, Kayden Mancuso’s judge had no time to learn the high conflict approach doesn’t work in these DV cases. Kayden’s father placed a note on Kayden’s lifeless body that demonstrated his purpose was to hurt the mother. This is what domestic violence experts would explain about abuser’s motives. The judge continued to believe both parents were to blame because he had no time to learn even after this preventable tragedy.
Aaden Moreno died when his father threw him off a bridge. His mother sought a protective order, but the judge and later the Connecticut Judiciary justified the judge’s mistake. They didn’t have time to learn about domestic violence dynamics that would have explained how the father’s threats and risk were continuing.
In California, Katie Tagle sought a protective order because the father threatened to kill baby Wyatt. In the transcript, the judge repeatedly stated he believed the mother was lying. This was not based on any evidence but only the myth that mothers frequently make false reports. The Saunders Study would have provided the judge the information to avoid his mistake if only judges were required to keep up with current research and victims were given the time to educate the court. The judge had a busy docket and didn’t have time to save Wyatt.
Time to Save the Children
The courts need to understand how to recognize the most dangerous cases. Ideally, they need to put these in a separate court or at least docket. When possible the best judges and other professionals with training about domestic violence should be assigned to these cases. These cases should be permitted the time necessary to make sure children are protected.
Judges and other court professionals should not handle DV cases without up-to-date knowledge about current scientific research. They need to avoid practices that are harmful in abuse cases like high conflict models and unscientific alienation theories. There also needs to be training and openness to avoid gender bias.
Lawyers need better training if they are going to present domestic violence cases. At the start of the case they should inform the court that it is a DV case and that there is substantial new scientific research that makes it easier for courts to recognize abuse and protect children. Courts should avoid early decisions that give alleged abusers the access they need to silence or otherwise harm the children. If needed the court can hold an early hearing to obtain the relevant research information so the case can be conducted in an informed manner.
Courts should use the multi-disciplinary approach recommended by Saunders. They should avoid evaluators and other professionals who are part of the cottage industry. Judges need to scrutinize the work of evaluators. In a case I wrote about in earlier articles, an experienced evaluator who claimed expertise in child sexual abuse dismissed extreme sexual play by a three-year-old boy as “playing doctor.” Such an obvious mistake cannot be tolerated because the evaluator is trusted.
The fundamental unfairness in creating strict time limits to present a case at trial is that it impacts a victim and an abuser fundamentally differently. A leading judicial organization like the National Council of Juvenile and Family Court Judges trains its judges about ACE and Saunders, but in 2019 most judges are unfamiliar with this vital research. This means protective mothers need to educate the court about basic information. It also means that many of the issues are complicated. Courts need to make sure alleged victims have the time necessary to provide the needed information because ignorance of abuse issues can and does kill children.
In the Virginia case discussed above, even the father admitted committing serious physical abuse. We should have been discussing an accountability program and supervised visits. The ultimate goal if the abuser changed should be parallel parenting with custody to the mother. Instead the evaluator moved on to other subjects because she had no training in domestic violence. The focus was on co-parenting, high conflict and a false equivalency between the primary attachment figure and the drunken abuser. That is a lot to explain with strict time limits, but the consequences for the children are life-shattering.
Conclusion
I have said many times that no judge wants to hurt children. My statement has been questioned because so often judges make decisions that not only hurt but kill the children they are supposed to protect. There are many reasons the courts continue to get so many abuse cases wrong starting with the fact that the original foundation and approach was based on assumptions that proved wrong.
A major factor in the continued failure is that the courts don’t have a mechanism to review tragedies and create needed reforms. Too often the court leaders react defensively to clear errors. They have never created an approach to integrate new research that would make their jobs easier.
In this article, I highlight a common mistake that has not received much attention. Increasingly the courts are not taking the time they need to understand the case. The judges never seem to realize that in a system that uses approaches that favor abusers and assume fathers always benefit their children, limiting available time hurts protective mothers far more than abusive fathers.
There is one factor that is consistent. When courts focus on saving time, supporting court professionals, maintaining the status quo, promoting high conflict approaches, giving priority to alienation theories and assuming children always benefit from two parents: they are not doing what is most important for children. They are not making the health and safety of children the first priority. They are not promoting safe parenting. And so, the courts are placing precious children at unnecessary risk.