Article by Barry Goldstein
I can understand why the court system did not immediately seek to learn from and rely on domestic violence experts when domestic violence first became a public issue in the mid to late 1970s. There was no research available and few domestic violence advocates. A popular assumption and misconception was that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led some people, including court professionals to treat mental health professionals as if they were the experts in domestic violence.
I do not understand how courts still do not require the use of domestic violence experts in cases involving allegations or evidence of domestic violence. We now have a substantial body of specialized domestic violence research that establishes the courts are getting a very high percentage of domestic violence custody cases wrong and often spectacularly wrong because of the standard use of flawed practices. These mistaken practices cause even good judges to regularly make bad decisions. Although mothers involved in contested custody cases make deliberately false allegations only one or two percent of the time, fathers receive custody between 70 and 83% of the time. In other words a large majority of abusers who seek custody are successful.
The highest priority in deciding custody has to be the child’s safety as without safety nothing else matters. In a domestic violence case, this should require a safety or risk assessment. Instead, custody courts regularly order evaluations. Not only do these evaluations fail to conduct risk assessments but few evaluators even know what behaviors are associated with higher levels of lethality. We virtually never see an evaluation report in which these vital issues are even discussed and when evaluators are asked about abusive behaviors they are rarely aware of the risks demonstrated. Ignorant of fundamental safety issues, evaluators instead focus on less important issues.
Evaluators are generally trained in psychology of psychiatry, but not domestic violence. Even if they have received a few hours of training in domestic violence and have been willing to listen (many evaluators are hostile to this training), at most it gives them some general awareness of the subject, but not expertise. That is why evaluators rarely provide the courts with information about lethality assessments, domestic violence dynamics or current scientific research. It is why they don’t know what to look for to recognize domestic violence and often mistakenly assume the danger is diminished with the end of the relationship. Especially important is their failure to understand and explain to the courts the harm of domestic violence to children.
Caseworkers at child protective agencies are often social workers and usually have more special training about domestic violence than the psychologists who serve as evaluators. Many communities have developed practices in which child protective agencies and domestic violence agencies work together on domestic violence cases. They cross-train each other’s staffs and when a possible domestic violence case needs to be investigated the caseworkers will consult domestic violence advocates and sometimes take them to the home. This practice has been shown to benefit children because it gives caseworkers a better chance to recognize when the father has engaged in domestic violence tactics and therefore create arrangements that work best for children. This should be considered best practices.
Ethical practices for psychologists and psychiatrists require these professionals to consult with experts in areas they don’t have expertise in that impact cases they are working on. Unfortunately these ethical considerations are aspirational so the routine failure of evaluators to use these ethical practices does not result in disciplinary proceedings. They instead result in ruining children’s lives when evaluators fail to recognize domestic violence and protect children from very real dangers. THE BATTERER AS PARENT, which is one of the leading authorities on domestic violence and custody, makes a similar recommendation. Clearly a practice that works so well for caseworkers who generally have more training is even more important for evaluators to use.
Expertise in Safety Issues
Fundamental to the work of domestic violence advocates is the ability to engage in safety planning with their clients. In order to do this, they need to be able to assess the level of danger presented by the client’s abuser. We can never know that an abuser will not kill or seriously injure his partner. This is particularly true when she has left him because75% of men who kill their partners do so after she has left. There are, however, many behaviors domestic violence experts look closely at because they have been shown to demonstrate a significantly higher level of danger. Among the factors experts look for in assessing lethality are choking, strangling or grabbing her throat, hitting a woman while pregnant, rape or attempted rape, hurting pets, threatening suicide, homicide or kidnapping, substance abuse, mental illness, refusal to obey laws or court orders, availability of guns and a belief she has no right to leave.
With rare exceptions, evaluators and other court professionals do not have this fundamental information and do not apply it to the cases they are working on. When we review cases in which courts disbelieved the mothers’ allegations of domestic violence and gave custody to alleged abusers, the evaluators never discussed safety and lethality issues. It is possible, although rare, that a mother could make false claims that some of these safety factors apply to the case. In such cases the evaluator could explain the potential risk if the allegations were true and why the evaluator does not believe the accusation. Instead the evaluator and the court never discuss these vital issues because no one making the decision or helping the court make the decision have the knowledge or training to recognize these safety factors. In other words the unqualified professionals routinely make recommendations affecting the safety of children without ever understanding or considering the risk. Malpractice is the most, generous term I can think of to describe this dereliction of duty. Only a broken system can continue to rely on evaluators and other court professionals in domestic violence cases who have virtually no training or understanding of safety and lethality issues just because there is a long history of making this mistake.
Recognizing Domestic Violence
Domestic violence abusers present many unacceptable risks to children, but the courts cannot protect children if they are unable to recognize the abuser’s pattern of domestic violence tactics. Every year 58,000 children are forced into custody or unprotected visitation with dangerous abusers. Judges make these dangerous mistakes because they are relying on court professionals who do not know how to recognize domestic violence or minimize its significance. They often compound the harm to children by denying them normal access to their mothers by punishing mothers for making abuse allegations the courts assume are false because court professionals failed to understand the significance of the available evidence.
When we seek help with a medical problem, doctors often seek to rule out various possible causes in order to make a diagnosis. Domestic violence experts understand that context is important in recognizing domestic violence, but the psychologists and psychiatrists relied on by the courts are not experts in domestic violence and routinely seek to rule out allegations of domestic violence based upon out of context information that often is not probative.
We have often seen inadequately trained court professionals dismiss valid domestic violence allegations because the mother returned to her abuser, sought a protective order, but failed to follow-through, did not have medical or police records. All of these are common behaviors of battered women for safety and other valid reasons. Another common mistake is for court professionals to observe children interact with their father and when the children do not show fear the professional assumes the father cannot possibly be abusive. The children understand that the father would never hurt them in front of witnesses, particularly someone he is trying to impress. In fact they could be punished later if they showed fear. These are all very common situations so if evaluators or other unqualified court professionals discredit allegations based on non-probative information like this, many valid domestic violence complaints will be denied. This is exactly what is happening in our custody courts.
At the same time court professionals are mistakenly discrediting abuse allegations for the wrong reasons, they are missing important evidence that supports the complaints. Often this is because the professionals are only looking for evidence of physical abuse. When judges lament the difficulty of deciding a he-said-she-said case, they are really referencing their failure to recognize the significance of many pieces of evidence that would have made the case easy to understand. The failure of most court professionals to understand domestic violence dynamics is an important contributor to their inability to recognize valid allegations of abuse.
Domestic violence are tactics men use to maintain power and control over their partners. With a few exceptions, the abusers don’t abuse her in order to gain pleasure from her suffering. They also don’t abuse because they are out of control or she “pushed his buttons.” In many custody cases he “only” hit her once or twice because that was sufficient for his purpose. He can then use the same tone of voice, body language or other reference to his assault and she will be coerced to do what he wants. Unqualified professionals often take the fact he has not hit her in a long time to mean he is now safe. Most abuser tactics are neither physical nor illegal. They are behaviors designed to coerce, intimidate and control their victims. These include tactics to isolate her from friends and family, monitor her behavior, control the finances, and intimidate her such as by threats to go after custody if she leaves him. Emotional and psychological abuse are also part of his pattern of controlling behaviors.
Many court professionals have been misled to believe contested custody cases are “high conflict” cases. They understand this to mean the parties are angry with each other and act out in ways that hurt the children. The actual research demonstrates a large majority of contested cases are actually domestic violence cases. They can’t be settled because the father is willing to hurt the children in order to regain control. Mothers are unwilling to agree to arrangements that harm their children, but are often blamed for not cooperating. We repeatedly see fathers who had little involvement with the children during the relationship suddenly seeking custody when she leaves him as a tactic to force her to return or punish her for leaving. The most dangerous abusers are the ones who believe she has no right to leave. This is why 75% of men who kill their partners do so after she has left. These are the fathers we see in contested custody cases. This is why over the last few years we have documented at least two hundred children murdered by fathers involved in contested custody cases often with the unwitting assistance of the courts. Too often court professionals are so delighted that a father wants to be involved with his children that the court professionals never look at his motivation. In the notorious Shockome case, the father openly admitted telling his wife that he brought her here from Russia so she has no right to leave. He said she would never get away from him. He told the court his motivation for seeking to take the children from their mother, but the judge and evaluator never considered this crucial evidence because they failed to understand its significance. Repeatedly we see cases in which the court removes children from their safe mothers who have been the children’s primary attachment figures and give custody to the fathers in the belief the father would be more likely to promote the mother’s relationship with the children. As soon as the father gains control he destroys that relationship. These mistakes are completely avoidable if court professionals consider the fathers’ motivation.
The Mistake of Minimizing Domestic Violence
While evaluators and other court professionals are generally aware that domestic violence is harmful to children, many place less importance on this issue than it deserves because they are unfamiliar with the research that demonstrates the extent of the harm to children. The problem is compounded because most of these professionals have repeatedly heard only the first half of an important sentence. They have heard children do better with both parents in their lives, but missed the rest of the sentence which is unless one of the parents is abusive.
Fathers who commit domestic violence are significantly more likely to also directly abuse the children. Even if he doesn’t, witnessing domestic violence interferes with children’s ability to reach their developmental milestones and makes them more likely to engage in a wide range of harmful behaviors that make it less likely for children to reach their potential. We often see court professionals pay more attention to the anger and emotion of the mother, “friendly parent” issues, superior income and resources and other similar issues that have not been shown to have long-term effects on children instead of the father’s history of abuse. This mistake is made because of the lack of domestic violence understanding on the part of many of the evaluators and other court professionals relied on by judges.
The Most Common “Mythtake” Custody Courts Make
The new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that evaluators and other court professionals with inadequate domestic violence training were more likely to believe the myth that mothers frequently make false allegations of abuse and as a result make recommendations that work poorly for children. Deliberate false allegations by mothers occurs only one or two percent of the time, but the myth which is encouraged by abuser rights groups and the professionals they support contribute to frequent mistakes by custody courts that dismiss valid complaints about domestic violence and child abuse. Many of the deeply flawed practices such as parental alienation, “friendly parent” and pathologizing mothers are based on this myth. The myth also encourages gender bias and confirmation bias. This is why experts who know the truth and have the training they need are able to make decisions that work best for children.
The Justice Department study also determined that recommendations by social workers and lawyers work better for children than ones by psychologists and psychiatrists. This conclusion goes against conventional wisdom and standard custody court assumptions that professionals with more formal education would be more qualified. The problem is that psychologists and psychiatrists were less likely to use a holistic approach (thus missing the context of domestic violence issues) and more often rely on psychological tests that were not made for the population usually seen in custody cases. These tests encourage the professionals to focus on issues far less important than domestic violence while contributing nothing towards recognizing domestic violence.
The study also found that evaluators tended to pay much too much attention to mothers’ anger and emotions in comparison to how this impacts their parenting ability. This tended to support the use of gender stereotypes and biases. Numerous court sponsored gender bias committees have found widespread gender bias including the frequent practice of blaming mothers for the actions of their abusers. This is exactly what happens when court professionals blame mothers for their anger and emotion instead of fathers for their continuing abuse that causes this anger and emotion.
Especially significant is the DOJ finding that evaluators working for the court or the county make recommendations that work better for children than those of evaluators in private practice. Protective mothers have long complained about a cottage industry of evaluators and GALs that favor abusive fathers. This research confirms the mothers’ complaints and undermines the common court assumption that evaluators and GALs are neutral. The study demonstrates those professionals paid for each case separately do an inferior job. Most contested custody cases are really domestic violence cases and abusive fathers use economic abuse and control as part of their pattern of abuse. This means they control the family finances so court professionals, like Richard Gardner have figured out the best way to make a large income is to support approaches that favor abusers. Thus we often see attorneys representing abusive fathers and GALs who tend to support fathers recommending “fathers’ rights” evaluators. This gives even good judges little chance to recognize the domestic violence in the case.
Ignorance Is Not Neutral: It Favors Abusers
We sometimes hear about a judge refusing to participate in domestic violence training or read current research on the grounds that such information would interfere with his neutrality. More frequently judges refuse to listen to testimony from a domestic violence expert because the judge has been on the bench for many years and so doesn’t need to learn more about domestic violence. Even more commonly we see judges and other court professionals treat domestic violence advocates as biased partisans because “they are always against domestic violence.”
This lack of critical thinking contributes to the widespread mishandling of domestic violence custody cases. Abuser rights groups often argue that when they come to court mothers and fathers should be treated the same. Judges often accept and support such statements because they superficially sound reasonable and never consider the unstated part of the statement “regardless of past parenting.” If courts are working for the best interests of the children, they need to consider that children usually need one parent more than the other. Their primary attachment figure, whether mother or father is far more important to their well- being than the other parent. A non-abusive parent is far more valuable to a child than an abusive one. And yet we often hear judges uncritically repeating the belief that the child needs both parents equally.
Many judges wrongly assume that the mental health professionals working in custody cases have the needed domestic violence expertise or that the couple of hours of required training often obtained by court professionals is sufficient. Many professionals and others do not look at domestic violence as a subject for which specialized training and knowledge is needed. Most people have had some experience with domestic violence as a victim, offender or knowing or working with someone who is. This does not tell them if their experience was typical or unusual and fails to provide context or an understanding of domestic violence dynamics or current scientific research.
The custody court system has been extremely defensive in refusing to adopt needed reforms in the face of multiple confirmations from many varied sources that the present practices are working poorly for the children overseen by custody courts. The Department of Justice study demonstrates the courts frequently use experts without adequate training in domestic violence and this results in the use of myths instead of current scientific research and outcomes that hurt children. In comparison, communities in which child protective agencies consult with domestic violence advocates the resulting arrangements benefit children.
The evaluators who testify in court cannot tell us how their practices and approaches to domestic violence have worked out for the children they have seen because they are making recommendations based on their personal beliefs and biases instead of current scientific research that they are often unfamiliar with. When the evaluators are challenged for their ignorance about this research, courts rarely use this to disqualify or discredit their recommendations.
The research that establishes that 98% of mothers’ domestic violence allegations are honest, but 70-83% of the time the alleged abuser wins custody does not tell us a specific case was wrongly decided, but does demonstrate a large majority of these cases are wrongly decided. Even worse are the sexual abuse cases in which 85% of the cases result in custody for the alleged offender. These cases are more difficult because the mothers usually did not witness the alleged sexual abuse. Some of the concerns could be caused by a child’s sexualized behavior or complaints that might be caused by boundary violations rather than molestation. Nevertheless, the outcomes establish that the courts often send children to live with sexual abusers and punish mothers for good faith reports. In many of these cases the mother was the primary attachment figure so should have received custody even if no sexual abuse occurred.
In many cases in which the custody court decided the father was safe he is later convicted of domestic violence, sexual abuse or kills the mother and/or children. We also see alleged abusers destroy the relationships between mothers and children once they gain control of the children which confirms their purpose in seeking custody was to punish the mother for leaving. The reports of the Courageous Kids who were children sent by custody courts to live with alleged abusers and now describing their experiences after aging out of the court order further confirms the frequency of courts giving custody to abusers.
A chapter written by sociologists Sharon Araji and Rebecca Bosek in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY provides multiple additional confirmations of the frequent mistakes in domestic violence custody cases. They interviewed protective mothers in Alaska and then compared the responses to similar studies in four other states. They found substantial complaints by the mothers of mistreatment by the courts and failure to protect their children. The complaints were supported by the results in the five studies and in a later study by Voices of Women that reviewed reports from mothers in New York City Family Court. These were not random samples and courts might argue the mothers were not objective. Drs. Araji and Bosek covered this potential concern by comparing the mothers’ complaints with other scientific research. The research confirmed what the mothers were saying. This is significant because it confirms the research that demonstrates mothers’ complaints are reliable and confirms the problems cited concerning the courts’ response to domestic violence cases are valid.
Domestic violence advocates constitute the only profession that works full time on domestic violence issues. The widespread mistake by many court professionals to treat them as if they are biased or partisan is based upon a lack of critical thinking. If courts needed to respond to a rash of arson fires, they would seek help from the experts which would be the firefighting community. The firefighters would be treated as the experts they are even if they had no advanced degrees or even a college degree. Through training and experience firefighters know best how to recognize arson, prevent and respond to arson. There are three important differences between arson and domestic violence crimes. One is that arson has always been a crime so there is no history of society tolerating or encouraging arson. If a landlord were particularly cruel or dishonest no one would say the arsonist was justified in burning down his building. The second is that most firefighters are men and in our still sexist society people pay more attention to what men say and treat it as having more value. Finally there are no arsonist’s rights groups that can lobby to minimize or justify their crimes.
There was a time when society had not reached a consensus about domestic violence, but those days are past. Every state has made a variety of domestic violence acts crimes and every state has ordered courts to take domestic violence seriously in custody cases based on research that establishes the harm to children. Domestic violence advocates understand the dynamics of intimate partner abuse and how to recognize the pattern of abuse. This is an area that the court professionals repeatedly miss because they don’t have the training and often don’t even realize they are missing crucial information. Advocates have no desire or reason to want false allegations to succeed and in fact this would make their job more difficult. Their goal is to keep victims safe and prevent domestic violence. This coincides with the laws and policies in every state. Statements and practices that minimize the role of domestic violence advocates or treat them as if they were partisan should be viewed not just as wrong, but a demonstration of gender bias.
Stare decisis is a fundamental legal principle created to prevent the need to relitigate the same issues over and over. We have every reason to respect this principle, but it has been misused in domestic violence cases. The assumption is that once a court makes a decision (after any appeals), we must assume the decision is correct. Unfortunately the assumption that the decisions were correct has discouraged court officials from investigating how their decisions have worked out. Judge Sol Gothard wrote, “If the court system had commissioned research to determine how the present practices are working, the result would be the information contained in Domestic Violence, Abuse and Child Custody. The research findings demonstrate court practices are outdated and their confidence misplaced.” In reality, these decisions are predictions that children would do better living with one parent than the other. It is appropriate for courts to study how these predictions have worked out just as it is proper to reconsider past decisions based on new research and information.
When allegations or evidence of domestic violence are part of a custody case, a court must consider current scientific research about domestic violence and learn from the knowledge and experience of domestic violence advocates or other experts. Hopefully it won’t be long until we are shaking our heads and wondering how it could have taken so long to appreciate what should be obvious. A custody court that refuses to listen to a domestic violence expert is demonstrating its bias and committing malpractice. The failure to consider domestic violence research and expertise should be grounds for reversal. The flawed and outdated practices that have ruined too many children’s lives have already been tolerated for far too long.