Article by Barry Goldstein & Veronica York
We know too much about the unbearable pain when young children are murdered, usually by abusive fathers because the custody court failed to recognize the danger. In the last 16 years, the United States has suffered through over 1000 such child murders. This is only the tip of the iceberg when it comes to preventable premature deaths caused by the many harmful practices courts developed before research was available, and have maintained, despite new research and the painful consequences.
Recent research found a direct connection between the ability of abusive fathers to manipulate custody courts to regain control over their victims and the huge resurgence in DV homicides. At the start of the modern DV movement, practices that made it easier for victims to obtain protective orders, criminal prosecution, divorce, custody, shelter, economic and other support led to a steady decline in DV homicides. In 1976, around the start of the modern DV movement, 1600 women were murdered by their intimate partners. By 2005, the reforms that made it easier for women to escape their abusers helped reduce the number of women murdered by their intimate partners to 1181. The steady progress made it seem that domestic violence could become rare.
Domestic violence perpetrators were angry at the loss of what they believe is their “right” for power and control over their victims. They believe she has no right to leave and developed particularly cruel tactics to regain control by seeking custody of the children. This was supported by Richard Gardner’s biased Parental Alienation Syndrome (PAS) and the start of the cottage industry of legal and mental health professionals designed to help abusive fathers take custody from protective mothers. DV is about control, including financial control. As a result, abusive fathers usually control most of the financial assets which is the incentive for cottage industry professionals to mislead the courts and harm children.
The custody courts have failed to recognize these tactics and have instead allowed abusive fathers and their professional supporters to successfully manipulate the courts in most custody cases. As a result, it is almost impossible for DV victims to escape their abusers at least until the youngest child reaches 18. Family Court judges often admonish abused mothers that because they had a child with him, they must continue to interact with their abusers. By 2021, DV abusers killed 1690 women. All the progress in reducing DV homicides was lost and more women than ever are being murdered by their intimate partners at a time when other murders have been reduced.
One of the routine mistakes custody courts make is the failure to integrate the ACE (adverse childhood experiences) Studies into their standard practices. The ACE Research goes to the essence of the wellbeing of children. Exposure to domestic violence and child abuse shortens children’s lives and makes their lives less healthy. Many of the children the courts fail to protect will die in their teens and twenties from suicide, substance abuse, accidents, and crimes. If they survive their early years, they are still more likely to die prematurely from cancer, heart disease, and many other diseases. ACE found that it is the fear and stress abusers cause rather than any immediate physical injury that causes most of the harm to children, but courts rarely consider the need to reduce children’s stress. Instead, the courts often make poor decisions that add to the stress that will ruin their lives.
Common Court Flawed Practices that Lead to Premature Deaths
1. Acceptance of Unscientific Alienation Theories: PAS and related unscientific alienation theories are the most harmful tactic used by abusive fathers to manipulate the courts. It is designed to distract attention from true reports of DV and child abuse. There is no research to support unscientific alienation theories. This is why the American Psychiatric Association twice rejected demands and pressure from the cottage industry to include alienation in the DSM which is the compendium of all valid mental health diagnoses. We are not aware of any other type of court besides the custody courts that are willing to consider a theory twice rejected by the leading professional association.
The alienation theories are based on the demonstrably false assumption that most reports of DV and child abuse must be false. Instead of disproving reports of abuse, abusive fathers demand courts ASSUME the reports must be false if the children are afraid of the father, don’t want to go for visitation, or otherwise have a bad relationship with the alleged abuser. More likely explanations for the bad relationship such as DV, child abuse, or other poor parenting practices are required to be ignored. Alienating behaviors do occur in contested custody cases, and ironically abusive fathers are more likely to engage in alienation tactics when they are given the opportunity. The alienation theories are biased because they seek to focus mostly on the mother’s behavior. These theories recommend extreme measures that place children in jeopardy and are contradicted by research from highly credible sources like the American Cancer Society, American Heart Association, U.S. Justice Department and Federal Legislation called Kayden’s Law (named for one of the over 1000 child murder victims).
2: Failure to Integrate the ACE Research: The ACE Research provided a huge advancement in our understanding of DV, child abuse and other childhood trauma. ACE found that the harm from exposure to DV and child abuse is far greater and longer lasting than previously understood. Children exposed to multiple ACEs can still avoid the terrible consequences if they can receive medical treatment, therapy, and protection from further abuse. Most of the harm is caused from the fear and stress abusers create. Courts need this information to understand the risks to children and the responses needed to protect them. This must be central to the custody court response to reports of DV and child abuse. The biased practices relied on by custody courts often remove the last chance children have to avoid the consequences of exposure to multiple ACEs. Although the first ACE Study was published in 1998, it is still rare for custody courts to use one of the most important tools in responding to DV and child abuse.
3. Failure to Integrate the Saunders Study: The purpose of Saunders was to determine the domestic violence knowledge of judges, lawyers, and especially evaluators because judges and lawyers are getting their DV information and too often misinformation from evaluators. Saunders found these court professionals do not have the specific DV knowledge needed for custody cases. Saunders recommends a multi-disciplinary approach that includes DV experts. Saunders found shared parenting is never appropriate in DV custody cases and courts are not requiring supervised visits for alleged abusers as often as needed. Saunders found court professionals need to learn how to screen for DV which is especially difficult because most DV is committed in private. All these common mistakes mean that without Saunders courts often fail to recognize true reports of abuse.
4. Failure to Overcome Gender Bias: 41 states have created court-sponsored gender bias committees. They have found widespread gender bias against women litigants. Most commonly, mothers are given less credibility, they require higher standards of proof, and mothers are blamed for the actions of their abusers. Gender bias is difficult to overcome because good people, including women, engage in gender bias (often based on myths and stereotypes) subconsciously without realizing they are doing it. At the same time if one reports gender bias there is a strong likelihood of a defensive or even retaliatory response. As a result, it is hard to have the open discussion that is needed and little progress has been made.
5. Retaliation against Protective Mothers: The failure to integrate Saunders and ACE means custody courts frequently disbelieve true reports of abuse and minimize the harm from reports they do believe. Maternal instinct and love for their children causes mothers to continue to fight to protect their children even after the court decides to give access to the alleged abuser. The worst judges are very willing to retaliate and severely punish protective mothers who believe the court’s findings are wrong. The biased alienation theories and other bad practices encourage this retaliation. At the same time, the research found only accountability and monitoring are effective in changing abuser’s behavior, but custody courts rarely provide meaningful accountability for abusive fathers. This disparity is another example of gender bias.
The disparity in treatment between protective mothers and abusive fathers creates great harm in the court system. Attorneys for abusive fathers are comfortable being very aggressive, misleading the court and requesting relief that is harmful to children. Protective mothers have difficulty finding an effective attorney because many lawyers are afraid to present evidence of abuse, the necessary scientific research, and request outcomes needed to save children from the consequences of exposure to multiple ACEs. The attorneys are afraid their clients or even the attorney could be retaliated against. As a result, the parties get unequal representation, courts do not receive the information they need to protect children and create the appearance of bias or worse, corruption.
6. Shared Parenting and High Conflict Approaches: These practices can work in the vast majority of custody cases that involve two safe parents. They are dangerous in DV custody cases. The typical DV case involves an abused mother seeking to escape from her abuser. The abusive father uses standard abuser tactics to regain what he believes is his right to control the mother and punish her for trying to leave. During the relationship, the father wanted or demanded the mother provide most of the childcare. In any other type of court this would be correctly understood as an admission by the father that the mother is a good parent or else he would have sought other arrangements. When the mother tries to leave, the father seeks custody and claims the mother is SUDDENLY unfit usually because she is crazy or alienating. What are the chances that the mother suddenly became unfit because she left her abuser and reported his abuse? In the real world, the answer is close to zero but in a custody system that relies on outdated and biased approaches, courts often reach this unlikely conclusion. Shared parenting and high conflict approaches create a false equivalency between a safe, protective mother who is the primary attachment figure and an abusive father. This creates still more bias to keep dangerous abusers in children’s lives instead of forcing them to change their behavior if they want a relationship. Contrary to the courts’ assumptions, children need their primary attachment figure more than the other parent and the safe parent more than the abuser. This should be obvious and easy to understand.
7. Shortcuts: Custody courts often have a heavy caseload and have developed shortcuts to save time. These efforts are done in good faith and can be useful in cases that are not dangerous. Judges assume the shortcuts are fair because both sides are affected by the same time limitations. One problem is that context is critical to understanding DV, so the limitations hurt DV victims and favor abusers. DV custody cases require more time to present the scientific research courts have been slow to integrate. Abusers are happy to keep the outdated practices that are biased in their favor. Courts should understand that best practices would make it easier for them to recognize DV and thus save time and lives.
8. Follow the Money: Domestic violence is about control including economic control. This means in most DV custody cases the abuser is allowed to use the family’s money to harm the family. Financial abuse is a very common in DV custody cases. Abusers often have total control over the family finances and courts often fail to realize how this impacts the mother’s ability to leave her abuser and be able to financially care for the children. Avoiding having to pay child support is one of the main reasons abusive fathers want equal parenting. Their motive is not to seek custody out of love for their children, but to punish the mother for leaving, and to shirk their financial responsibilities. There is good research that says courts should use its authority to level the playing field and force the abuser to pay costs made necessary by his abuse. Superior finances give abusers still another advantage and often prevents courts from receiving the information needed to protect children. Unfortunately, courts are more likely to impose financial penalties on protective mothers in retaliation for trying to protect their children.
Tragic Consequences of Family Court Practices
For thousands of years, husbands were allowed and even encouraged to control, discipline and even assault their wives. This is why meaningful accountability is so badly needed for abusers. The penalties send a message that behavior that was encouraged for so long is now unacceptable. The present practices in our custody courts undermine and nullify any message to end DV and child abuse. And this is permitted just when we know exposure to adverse childhood experiences is so much more harmful than previously understood.
All the common and influential practices discussed in this article tilt court decisions in favor of abusive fathers and towards risking children. The research we now have available proves each of these practices is mistaken and dangerous. The biased practices harm the children and adult victims of DV, and harm millions of people the courts never see. The ability of abusive fathers to manipulate the courts and get custody of their children to regain control discourages other victims from ever attempting to escape from his abuse.
Increasingly, the most common DV question of “Why does she stay?” is answered because she is afraid of losing her children in the broken court system. We constantly see admirable, protective mothers face an impossible choice. Should she send her children to be abused, and have their lives ruined by the abusive father, or should she try to fight, and likely lose all contact with her children? Rather than forcing abusers to change their behavior so they can have a safe and healthy relationship with their children, courts instead pressure and punish the mothers and children to accommodate the father’s abuse.
55% of smokers in the US started because of high ACE scores. Every year 480,000 Americans die from conditions caused by smoking. This is in addition to the 1000 child murders and increased DV homicide rate. Other victims die from suicide, drug overdoses, and a variety of illnesses caused or exacerbated by the stress caused by their abusers. The flawed custody court response to DV and child abuse is costing hundreds of thousands of lives every year. Exposure to ACEs costs the US $14.1 trillion annually including $3.6 trillion for DV. There is good reason to believe even these calculations understate the full cost. We have many other factors that contribute to DV and ACEs but the ability of the worst abusers to use the custody courts to regain control is a huge obstacle to the progress we need.
ACE is exciting research that is often compared to the 1964 Surgeon General’s Report linking cancer and smoking. As a society, we came together to develop many practices, research, education, and laws to discourage smoking. These efforts dramatically reduced the number of smokers and the harm smoking causes. On the 50th anniversary of the Surgeon General’s Report, experts calculated the campaign to discourage smoking had saved 8 million lives. We tend to underestimate the difficulty of preventing smoking and the benefits we are enjoying today from the successful campaign because we know the outcome.
A societal campaign to prevent DV and child abuse would be much easier than the work to prevent smoking in part because we have the blueprint the many heroes used. Smoking could never be banned because of the same problems seen with prohibition, so the campaign could only use persuasion. Most domestic violence and child abuse is illegal, so we have the law enforcement tool available.
The opposition to discouraging smoking was the tobacco lobby. They were far wealthier and more powerful than the male supremacist groups and cottage industry court professionals. For decades tobacco companies bragged about never losing a case in court because they used their far superior financial resources to bludgeon the victims to resolve cases other than on the merits. Today abusive fathers win most cases, but victims can sometimes prevail when the judge is fair, and the mother has enough resources to present her case.
We know how to dramatically reduce DV crime. Many different communities developed best practices to take DV seriously and were rewarded with a significant reduction in DV crime and particularly DV homicide. We know the reforms custody courts need to make the health and safety of the children the first priority in DV custody cases. As a society we can enjoy the huge benefits from reducing DV and child abuse as we did for reducing smoking. All we need is the will to do something about it.
Who Will Save the Children?
There were many heroes in the campaign to reduce smoking. Dr. E. Cuyler Hammond and Dr. Daniel Horn created important research linking smoking and cancer that led the American Cancer Society to send a letter to President Kennedy asking for an investigation of the research and potential responses. President Kennedy asked the Surgeon General, Dr. Luther Terry to create a committee to investigate. This led to the 1964 Surgeon General’s Report that sparked the movement that saved 8 million lives in the first 50 years after the study was released. Professor John Banzaff successfully sued to force equal time for anti-smoking commercials and joined with Ralph Nader to prevent smoking on airplanes. The American Cancer Society and American Heart Association continue to take the lead in saving lives by preventing smoking. The family of Rose Cippolone were the first to win a judgment against the then invincible tobacco companies even if the award was reversed on appeal. William Talman, best known for playing District Attorney Hamilton Burger on the Perry Mason show taped a powerful anti-smoking commercial while suffering from the cancer that would soon take his life.
The protective mother’s movement also has many heroines, but it needs more. Men are welcome to join the campaign to give children in family courts the chance for a full and healthy life. Dr. Mo Therese Hannah started the Battered Mothers Custody Conference and became the leader of the protective mothers’ movement. Rita Smith supported protective mothers from her role as executive director of the National Coalition against Domestic Violence. Connie Valentine was lobbying Congress when no one else would. Kathleen Russell created research that demonstrated the over 1000 child murder victims from family court failures. Most of all are the brave mothers who responded to the most unbearable crime, the murder of their children. They faced their pain and often unspeakable attacks to promote reforms so no other mother would face the same tragedy. Most of the DV custody reforms are named after murdered children because of the work of these heroines and the failure of courts and legislatures to otherwise address the needed reforms. We are in awe of mothers like Kathy Sherlock, Jacqueline Franchetti, Hera McLeod, Ali Kessler, Leighann Olson, and too, too many others.
These heroines have helped pass many valuable laws. The problem is the legislators have only been willing to consider piecemeal legislation and too many judges have avoided compliance with the purpose and often the letter of these laws. We need comprehensive legislation, like the Safe Child Act that requires courts to stop the failed practices they are used to that are responsible for so many premature deaths.
The courts are using the same practices for the large majority of custody cases that involve two safe parents as they are for the DV custody cases that are so dangerous. Family Courts initially turned to mental health professionals based on the assumption DV was caused by mental illness. The assumption was disproven long ago but the courts have resisted creating needed reforms. It is absolutely absurd that courts continue to be influenced by a biased and unscientific theory twice rejected by the American Psychiatric Association but have failed to integrate peer-reviewed scientific research from the most credible sources that go to the essence of the wellbeing of children. The judiciary have expertise in the law and managing caseloads. The Saunders Study recommends a multi-disciplinary approach that would include a DV expert. This is vital because in most DV custody cases no one involved has an understanding of the fundamental nature of the cases they deal with. Instead, they have allowed themselves to be influenced by abusers who want courts to treat abusive fathers equally to protective mothers who are the primary attachment figures. The needs of the children routinely fall through the cracks.
As we write this article, the protective mothers’ movement is excited about events in Arizona. The judiciary and the legislature have held separate hearing with powerful testimony from protective mothers of children the courts failed to protect. There is hope and expectation that these hearings and the willingness to listen will lead to needed reforms. The reforms are so clearly superior to the present outdated practices that implementation in even one state will prove the need to reform practices everywhere.
Another route to saving precious children is on a case-by-case basis. Courts developed the mistaken practices by listening to professionals without the necessary DV expertise, and worse listening to the biased cottage industry that has a financial interest in supporting abusive fathers. There is nothing in the law that prevents a mother from presenting ACE, Saunders, and other vital research. We do this regularly in our testimony. We hope the judges and other professionals will use this information to help children in other cases as well as the one we are testifying for.
The problem is that even with keeping our rates low through the use of flat fee packages many others cannot afford an expert. Many attorneys are afraid to present DV evidence because of the retaliations against protective mothers and sometimes their attorneys. Several years ago, when Rita Smith led the NCADV, we created a training for advocates to become expert witnesses. This was co-sponsored by the Battered Mothers Custody Conference, California Protective Mothers Association, and National Organization for Men Against Sexism. We all volunteered our time so that the advocates did not have to pay for the training or the certificate they received. We had hoped to repeat this training throughout the country so that protective mothers would have experts available that they could afford. Unfortunately, the NCADV changed leadership and no longer prioritized child custody.
When the attorney is willing to present the DV research and evidence, and the judge is willing to listen, we can often save children because the information is so compelling. If we can bring Saunders’ recommendation of a multi-disciplinary approach to reality, courts could have the information they need to protect children. It often doesn’t seem so, but no judge wants to hurt children.