Most custody cases involve two safe and loving parents. The courts are faced with good choices so the standard practices work fine. The problem is the 3.8% of cases that require trial and often much more. These are overwhelmingly domestic violence cases involving the most dangerous abusers. At the start of a case, judges do not know if they are responding to a DV case. Nevertheless, they use the standard practices and focus on reaching a settlement.
The standard practices are not just wrong in cases involving domestic violence and child abuse—they are dangerous! High conflict approaches assume there are two good parents who are angry at each other and equally responsible for the immediate dispute. Courts seek to promote communication and cooperation. This works great for the abuser who sought custody to gain access to his victim but horribly for a victim trying to escape his abuse and protect the children.
The courts also immediately promote co-parenting either because it is encouraged by law or as the best way to promote settlements. Shared parenting is never appropriate in domestic violence cases because of the unequal power between the parents and abusers’ practice to use co-parenting to regain control over their victim. By immediately imposing dangerous arrangements in abuse cases, the courts are helping abusers and harming adult and child victims.
The good news is that we have research available that courts could use to better recognize domestic violence and child abuse and better protect the children. This means court officials need to do a better job to train judges to respond to abuse cases and it means it is critical for attorneys to educate judges as early in the case as possible.
Educating Judges During DV Cases
Just like the academic training for mental health professionals, judges and lawyers do not learn about domestic violence in law school. Lawyers and judges responding to DV custody cases often hear expert testimony and see reports from mental health professionals who are experts in psychology and mental illness but not domestic violence. As a result, by the time lawyers become judges they have received substantial misinformation about domestic violence and it is deeply ingrained.
Courts tend to use the same small group of professionals which is one of the reasons the legal system has been so slow to integrate important new research that would help courts better understand and respond to DV. The problem is compounded by a cottage industry of lawyers and mental health professionals that make large incomes by supporting approaches designed to help wealthy abusers. This is why unscientific alienation theories have had such poisonous influence over family courts.
Most custody cases, like all litigation will be settled and new lawyers are trained to help courts promote settlements. This often means that the initial stages of a case are used to create any needed investigations and move towards trial or preferably settlement. Accordingly, even when attorneys agree to present a domestic violence expert, their assumption is the information is only needed at trial. The problem is that the earlier proceedings are already tilting the case in favor of harmful outcomes from ignorance of current research. Settlement negotiations are based on mistaken beliefs that help abusers and hurt children. The knowledge and benefits from DV expertise are left on the sidelines waiting for a trial that never comes.
At the beginning of the case, attorneys need to inform the judge that there is now substantial scientific research from highly credible sources that demonstrate many of the standard and outdated practices work poorly for children and tilt court decisions in ways that place children in jeopardy. Then ask the judge to be open to considering this research as part of the case.
ACE (Adverse Childhood Experiences) research from the CDC demonstrates exposure to DV and child abuse is far more harmful than previously understood and it is the fear and stress rather than the immediate physical injuries that cause most of the harm. The Saunders study from the US Justice Department demonstrates most court professionals do not have the specific DV knowledge they need and this leads courts to disbelieve true reports of abuse. The Center for Judicial Excellence found that in the last ten years over 700 children involved in contested custody were murdered, mostly by abusive fathers. The Meier Study from the US Justice Department, in context with other research confirms courts are getting a high percentage of DV custody cases wrong with a strong tilt in favor of abusive fathers.
At the start of a custody case, the court may make critical decisions about temporary custody-visitation arrangements; evaluations, protective orders and financial issues. Courts tend to start with assumptions favoring co-parenting which is dangerous in abuse cases. Judges would use the usual suspects for evaluations instead of someone who is trauma-informed. At the very least the evaluator should consult with a DV expert. The research demonstrates protective orders are more needed and false reports by abusers to nullify protections are common. Economic abuse is a common part of DV and should be factored into financial decisions. The court might still make bad decisions but without an attempt at educating the judge we can be certain the court will use unfavorable practices.
Theoretically, the judge should be waiting until the actual evidence is presented to reach conclusions about the case, but in reality, most are reaching conclusions as the case proceeds. Making those judgments based on standard but deeply flawed practices will inevitably hurt the position of protective mothers. Evaluations based on the outdated practices will be tilted against the well-being of children. The worst problem is that settlement negotiations will be based on dangerous assumptions.
I recently worked on a case in which the parties went to court ready to try the case, but instead the judge encouraged further settlement discussions. Although my report discussed the research, the mother’s lawyers had failed to focus on the importance of ACE, Saunders and other vital research.
This was a typical DV custody case in which the father had allowed or demanded the mother provide most of the child care during the relationship. In any other court this would have been seen as the father’s admission the mother is a good parent. In family court, under the flawed practices, we keep seeing decisions in which somehow when the parties separate and the mother reports the father’s abuse, she suddenly becomes unfit and probably crazy. If these findings were reality, the CDC would be funding major studies to understand how ending a relationship with an abuser and reporting his abuse turns good mothers into unfit parents. Instead, these absurd conclusions are only seen in bad decisions about DV custody cases.
The father has a long history of domestic violence and a belief reinforced by his church, that wives should be submissive. The knowledge Saunders says court professionals need would have exposed the fact that the father presented a serious risk of lethality. If the settlement discussions were based on knowledge of current research, the debate would have been whether the father’s visitation should be supervised. We could have been focused on what the father could do to reduce the fear and stress he had caused his wife and children.
Instead, the only framework they discussed was shared parenting and 50-50 division of time between the mother who is the primary attachment figure and the abusive and often absent father. The mother had to make concessions in order to get needed therapy for her children. The aggressive litigation tactics had forced the mother to borrow money just to complete the trial.
Not surprisingly, the father sought to violate the agreement within a few days of the settlement. Abusive fathers often seek shared parenting as a first step to sole custody and eventually taking the mother out of the children’s lives. Shared parenting gives him an equal position despite less parental involvement and many improper and intimidating tactics. The huge cost designed to bankrupt mothers gives abusive fathers an unfair advantage in the next court dispute.
Conclusion
I recently worked on a case where the judge had just received training about the ACE Research. As a result of this knowledge, the judge was excited to have an expert witness to discuss ACE and other research and totally open to the information. This was a typical DV custody case with a dangerous and aggressive abuser seeking to manipulate the court. With the benefit of the research, the judge recognized the risk posed by the father and created an outcome in which the safe, protective mother received custody and the abusive father was limited to supervised visitation.
This is the outcome for DV custody cases that according to the research works best for children. Judges without knowledge of current research almost never adopt these best practices and rarely even consider this outcome. Instead these uneducated decisions give abusive fathers shared parenting or worse. Some of these decisions are involved in the child murders discussed above. More often the decisions lead to suicide, drug overdoses, a painful childhood and a lifetime of health and social problems.
The courts can and should be training their judges about ACE, Saunders, Meier and other scientific research. The National Council of Juvenile and Family Court Judges includes ACE and Saunders in their trainings, but most judges never obtain this badly needed information. Many trainings do not include the specific topics recommended by Saunders and do not involve the multi-disciplinary approach supported by Saunders.
Many of the trainings include harmful approaches such as unscientific alienation theories, high conflict approaches, co-parenting in DV cases and demanding that victims just get over it. Some judges refuse to pay attention to trainings because they believe they already know everything about DV or really do not want to handle family law matters. Many judges refuse to listen to any professionals except other judges.
The Saunders study confirms that most judges do not have the needed education in current scientific research related to DV custody cases. This means they will only hear about this research if lawyers for protective mothers and their children discuss this research in individual cases. This good practice will not only benefit their clients, but help educate the judges for future cases.
USA Today, recently published a story about a young boy staying in a DV shelter with his mother. He wrote a letter to Santa that included a touching request for “a very, very, very good father.” Children routinely receive the opposite when judges attempt to resolve abuse cases while unfamiliar with current research. Santa would never stay ignorant to the needs of children but judges without the necessary education are limited to the role of Scrooge.