GOLDSTEIN & YORK

Article by Barry Goldstein

Judges, lawyers and evaluators often minimize or dismiss domestic violence by referring to the dispute as “he-said-she-said.” This flawed approach simply means that the professional does not have the necessary training to seek and recognize evidence that would explain the true nature of the case. Most of these disputes are easily resolved---if only we know what to look for. Recognizing domestic violence is important because the ACE (adverse childhood experiences) Research tells us that the consequences are far greater than most professionals understand.

The reference to “he-said-she-said” is a cop-out that should be seen as an admission of lack of qualifications to respond to a domestic violence case. The ignorance also means it will be easier for an abuser to manipulate the court. This widespread lack of training always benefits the abuser and is another reason why family courts are so severely tilted in favor of abusive fathers. Any time a court makes a reference to “he-said-she-said,” it means a domestic violence expert is needed.

Available Evidence that Solves the “He-Said-She-Said” Dilemma

1. Pattern of Abuse: Most domestic violence is neither physical nor illegal. Limiting the inquiry to incidents of physical abuse, reduces the available evidence and encourages courts to blame the victim if she strikes back or the abuser lies. Considering psychological, verbal, economic and litigation abuse; isolating tactics and monitoring tactics offers much more evidence to understand domestic violence in the relationship. Lawyers for victims of abuse should put together the pattern of abuse to help courts recognize domestic violence.
2. Who is Afraid: The purpose of domestic violence is to scare and intimidate the victim to do what the abuser wants. Fear is the normal consequence of DV and ACE tells us is a major cause of the harm from abuse. It is usually easy to tell which partner is afraid of the other which makes this information particularly helpful in recognizing a DV abuser.
3. Size and Strength: Context is really important in understanding domestic violence. Shortcuts courts take because of their heavy caseloads often make it harder to recognize DV. The relative size and strength of the parties is usually easy to see. Sometimes abusers will pretend to be afraid of their partner (more likely they are afraid she will report his abuse), but this is likely an attempt at manipulation if the abuser is clearly physically superior.
4. Who Is the Primary Parent? Again, this is usually easy to determine although abusers may attempt to lie about child care. One reason DV advocates understand domestic violence better than court professionals is we look for patterns. In most custody disputes, the father wanted or demanded the mother provide most of the child care. In any other type of litigation, this would be understood as an admission she is a good mother. She did not suddenly become unfit because she ended the relationship or reported his abuse. Nevertheless, this unlikely possibility is the standard claim of abusive fathers and many court professionals believe their lies.
5. Avoid the Myth: The Saunders Study found that court professionals without the specific DV knowledge needed tend to believe the myth that mothers frequently make false reports of abuse. Unscientific alienation theories assume this myth is true. In reality, mothers involved in contested custody cases make deliberate false reports less than 2% of the time. Court professionals need to avoid being manipulated by this myth and demand convincing evidence before accepting an assumption that is almost always wrong.
6. History of Abuse: Abusers commit their crimes because of what they believe and their sense of entitlement. It has nothing to do with anything the victim says or does. This means the abuser is likely to have abused past partners and will abuse future partners. This means courts should look for his history of abuse and it is malpractice for an evaluator in a possible DV case to fail to seek information about his treatment of former partners. The fact he is likely to abuse future partners means children will be exposed to more abuse unless they are protected. His abuse of other women doesn’t prove he abused the mother, but it makes it much more likely and is probative when courts determine preponderance of the evidence.
7. Motive: The fact that most contested custody cases involve abusive fathers does not mean an individual father committed domestic violence, but good practice requires courts to consider his motive instead of assuming he is acting out of love for the children. Why is he seeking custody when he always wanted the mother to provide most of the child care? Why would he seek to accept increased risk of depression, low self-esteem and suicide in order to remove children from their primary attachment figure? Do his economic tactics demonstrate a willingness to hurt the children? Are his litigation tactics designed to benefit the father or the children? What is he willing to do to reduce the fear and stress in his children and the mother they depend on?
8. Public Behavior vs. Private Behavior: Most DV abusers are able to control their behavior and usually do so in public. If the father is abusive or inappropriate in public the court can be sure he is an abuser. The opposite is not true. Abusers often present evidence of good behavior in public and testimony of friends and family about what a nice guy he is. Courts must understand that good public behavior tells us nothing about how he acts in the privacy of his home. His partner is the best source of information about what an abuser is capable of, but they are treated as biased even when his history of abuse has been proven. He is capable of good behavior so supportive behavior of his new partner may be a function of the abuser behaving while the litigation is pending.
9. Economic Abuse: Part of the common pattern in DV custody cases is the abuser will threaten to bankrupt the victim if she dares to leave. The economic and litigation response often support this motive but professionals who do not understand domestic violence do not even look for this pattern. In extreme cases the abuser may cancel insurance for the children that costs him nothing. In other cases, an abuser might spend $1000 to avoid paying the victim $200. Taking all or most of the family’s money instead of leaving half is common. Excessive litigation to drain the victim’s money is another tactic. This type of deliberate actions tells courts about the motives if only the court would listen. Courts dismiss these tactics as litigants seeking their own advantage, but in most cases, it is harmful to the children they claim to care about.
10. Litigation Abuse: Wealthy corporations often deliberately make litigation expensive to gain an unfair advantage over poorer opponents. Accordingly, courts accept similar tactics by abusers, but in custody cases children are the collateral damage. The important context is that DV is about control, including financial control. Judges need to be sensitive to the harm of abusers taking most of the family’s financial resources and using excessive litigation to gain an unfair advantage. This only serves to prevent an outcome based on the merits. In many cases, victims start with an attorney, but are forced to go pro se before trial. In many cases they are pressured to accept a dangerous outcome because they cannot afford to go to trial. This helps courts reduce their caseload, but at the price of ruining children’s lives.
11. Sexist Behavior: We live in a sexist society so it is not surprising for male litigants to act in sexist ways. Most sexist behavior is completely legal even if it is also harmful. Corroborative evidence is information that makes a fact in dispute more likely. Domestic violence is caused by sexism and the purpose is to enforce men’s entitlement to make the decisions in the family. A common example is objectifying women and girls. This practice is harmful to children in the home AND it makes it more likely the person doing the objectifying committed domestic violence. The Batterer as Parent is one of the leading books about DV and custody and found all abusers engage in harmful parenting practices that include teaching bad values like sexism and serving as a poor example.

Using All Available Evidence to Recognize Domestic Violence

The Saunders Study confirmed that most court professionals do not have the domestic violence expertise that is needed. These professionals might object to the point of this article by saying the fact that an alleged abusive father qualifies for some or most of the eleven factors does not prove he is an abuser or committed a specific abusive act that is in dispute. Each of these factors does make a conclusion of abuse more likely. Context requires putting all of the available evidence together rather than isolating incidents and issues. Gender bias studies have found courts are holding women to a higher standard of proof. One example is requiring a criminal conviction which requires proof beyond a reasonable doubt. In a typical case, the mother says the father committed specific acts of DV and the father denies it. If both parties are treated as equally credible, these other factors will usually push one party over the preponderance of evidence threshold. Failure to consider these factors, holds victims of DV to a higher standard of proof.

I have seen thousands of custody evaluations in my career. In many of the cases, the evaluator said they could not determine the DV issue and went on to focus on less important factors. Some even said it is simply a “he-said-she-said” issue. This is an excuse for professionals who do not know how to screen for domestic violence. Unfortunately, judges and lawyers have learned a lot of misinformation from listening to evaluators who are experts in psychology and mental illness but not DV or child abuse.

Mothers involved in contested custody cases rarely make false reports of abuse. The Meier Study confirms what we have long believed; family courts frequently disbelieve true reports of abuse. This is because so many standard practices tilt courts towards risking children. The unscientific alienation theories spread the lie that mothers frequently make false reports. Courts rely on professionals without the needed specialized knowledge of DV and child abuse. The courts continue to tolerate gender bias. And when courts dismiss and minimize reports of domestic violence as “he-said-she-said,” they tell us nothing about the evidence in the case and everything about their lack of qualifications for DV cases. This is one of the times courts need to consult a domestic violence expert. Otherwise, children the courts are supposed to protect will suffer.