GOLDSTEIN & YORK

Article by Barry Goldstein

The first indication of a systemic family court problem responding to domestic violence was the frequency the courts would make findings that in real life are extremely rare. Domestic violence experts immediately recognized the mistakes, but the courts were relying on experts in mental illness and psychology instead of domestic violence. The research has now confirmed that courts are getting a large majority of DV and child abuse cases wrong, but the courts continue to make these catastrophic errors.

I have identified a dozen findings that are extremely rare in the real world but very common when family courts rely on their standard outdated practices. These mistakes contribute to a widespread belief that the courts are corrupt. There is no valid justification for so many harmful decisions so when judges and court officials seek to justify their mistakes, they are promoting the belief that corruption is widespread.

Ironically, many of the abusers the courts support, engage in gaslighting tactics to confuse and control their victims. The failure to recognize abuser legal tactics create a pretend world that mimics the gaslighting tactics used by abusers. Here are twelve examples of events that almost never happen in real life but are believed by courts that fail to use professionals with domestic violence expertise.

12 Rare Events Family Courts Repeatedly Believe

1. Abusers Cured by Separation: Relying on mental health professionals for expertise about domestic violence was the original sin for family courts responding to DV custody cases. It was based on the popular assumption that DV was caused by mental illness and substance abuse. The courts never modified its practices when the research became clear that DV is not caused by mental illness or substance abuse. Instead it is caused by sexism and a sense of entitlement. It is based on a long history and belief that men are entitled to control their partners and make the major decisions in the relationship. Although abusers don’t mistreat their partners because of anything she says or does, courts routinely assume the end of the relationship ends his abuse. The Saunders study found that court professionals need to learn about post-separation violence. Very often the litigation tactics and economic abuse are a continuation of DV but courts usually refuse to consider these tactics. Even if the father never abuses the mother again, he will abuse future partners which means the children will be exposed to more abuse and cannot heal from their exposure to ACEs (adverse childhood experiences) The causes of DV are part of fundamental domestic violence dynamics, but the professionals courts rely on are unfamiliar with this vital knowledge. The research demonstrates that only accountability and monitoring have been shown to change abusers’ behavior, but courts continue to rely on separation and time.
2. Only Physical Violence Matters: For many years, DV advocates have said that physical abuse is often not the worst part of DV. Although they are the experts, the advocates were not listened to because they are mostly women, often did not have advanced degrees and there was no scientific research to support their statements. Now the ACE research confirms that most of the harm from DV is caused by the fear and stress living with an abuser cause. Nevertheless, most family courts continue to deny or minimize the importance of non-physical DV tactics. This mistake makes it harder for courts to recognize DV because they are only willing to consider a small percentage of the abusers’ tactics. ACE tells us that children living with the fear and stress will live shorter lives and face a lifetime of health and social problems, but courts that are supposed to focus on the best interests of children refuse to consider these consequences. Medical doctors tell us that children exposed to ACEs can be saved from the harm, but courts cannot protect the children when the fear and stress cannot even be considered.
3. Only Recent Abuse Matters: Many judges try to save court time by limiting evidence about abuse to some arbitrary time period. Most DV custody cases involve only one or a few physical assaults. One is more than enough because it tells the partner and children what the abuser is capable of. His use of other abusive tactics serves as a reminder of what can happen if the abuser is not obeyed. This means the children are forced to live with the fear and stress and suffer the ACE consequences. Limiting the time frame means that the earlier physical incidents that the mother and children remember cannot be considered. This makes it harder for courts to recognize the father’s abuse and makes it seem like it is less severe. Like most of these errors, the practice only helps abusers and makes it harder to protect children.
4. Mothers Are Suddenly Crazy: In the typical contested custody case, the father always wanted or required the mother to provide most of the child care. When the mother decides to end the relationship and report the father’s abuse, he responds with the common abuser legal tactic of seeking custody. He claims the mother is unfit and possibly crazy. In any other litigation the fact he always wanted her to care for the children would be seen as an admission she is a good mother. No loving father would want his children cared for by an unfit mother. She did not suddenly become unfit because she decided to leave her abuser and report his abuse. But this is exactly what the courts keep finding. The courts keep using mental health professionals for evaluations even though they rarely have the needed expertise about domestic violence. They use psychological tests that were meant for patients that probably need hospitalization and not for the population seen in family court. They often turn minor personality differences into unfitness. They also fail to screen questions about the mother’s fear or belief someone is following her. This is supposed to show paranoia or delusion, but not when someone is a victim of domestic violence. As a result, evaluators take someone who is having trouble with the abuser and the professionals helping him, but is successful in other parts of their life as if she is unfit to continue caring for children, she always took good care of.
5. Father’s Public Behavior Proves his Private Behavior: If someone engages in abusive behavior in public, we can be sure they also act abusively in private. Most abusers act appropriately in public and certainly do not engage in physical abuse or other illegal tactics in front of witnesses. Abusive fathers and their attorneys regularly use friends, family and co-workers to testify about what a nice and peaceful man he is. This tells the court nothing about how he behaves towards his partner in the privacy of their home. Nevertheless, evaluators, lawyers and judges routinely accept this testimony as if it provided probative information. The best source of information about an abuser and what he is capable of is his partner. Nevertheless, courts take anything the victim says with the utmost skepticism. This mistake leads to minimizing the danger presented by abusers even when the court recognizes he committed some abuse.
6. Fathers’ Lack of Personal Knowledge Repeatedly Credited: One of the many problems with unscientific alienation theories is the assumption that if a child dislikes or does not want to visit the father, the only possible explanation is the mother is alienating the child. Courts often allow the father to supply the missing connection by testifying the mother is saying or doing something to alienate the children. The evidentiary problem is that the father no longer lives with the mother and children so has no personal knowledge. Abusers sometimes claim the children told them this, but such statements are hearsay and under the circumstances highly questionable. Nevertheless, courts repeatedly accept such testimony, or evaluators do, and use it to support sexist alienation theories.
7. Children Benefit from Having Abusive Fathers in their Lives: The fundamental problem in the family courts is that repeatedly courts force children to have custody or unprotected visitation with abusers. This is caused by uninformed practices that cause courts to disbelieve or minimize true reports of abuse. Children are harmed when they lose their relationship with their father. The harm is far greater when they are exposed to domestic violence or child abuse. Based on the ACE research, children exposed to abuse will live shorter lives and suffer a lifetime of health and social problems. The best solution is to force abusers to change their behavior if they want a relationship with their children. This is a win-win situation. In most cases courts force children to maintain a relationship with an abuser and this causes more harm than good.
8. Courts Can Force Children to “Get Over It.” The harm to children from exposure to domestic violence, child abuse and other ACEs is that they live with the fear and stress that causes so much damage. Courts have the power to force children into relationships with abusers. This causes the children to push their fear deep inside where it will come out later in much more harmful ways. Many judges believe they are doing the children a favor as they force a dangerous connection and destroy children’s lives.
9. Court Professionals Are Taught that Contested Custody is “High Conflict.” Most custody cases are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. Courts treat these cases as “high conflict” which means the parents are angry at each other and act out in ways that hurt the children. Accordingly, courts respond by forcing parents to co-parent, promoting communication and punishing victims trying to protect their children. A large majority of the contested custody are really domestic violence cases involving the most dangerous abusers. These are usually fathers who believe she has no right to leave and they are entitled to do whatever is necessary to win the case and regain what they believe is their right to control their victim. These are the cases where children, mothers and bystanders lose their lives. More commonly the children are forced to live at least part of the time with the abusers. This means they live with the fear and stress that causes a lifetime of misery and shorter lives. The courts demand a co-parenting relationship that is totally inappropriate and unworkable in DV cases. In many cases, the counterproductive effort to keep abusers in children’s lives results in taking safe, protective mothers who are the primary attachment figures out of the children’s lives. Often, if the courts don’t remove the victim mother out of the children’s lives, the abuser uses the power provided by the court to destroy the relationship.
10. Courts Frequently Make Decisions Disbelieving Mothers’ Abuse Reports: Courts continue to be influenced by the myth that mothers frequently make false reports. The myth is based on stereotypes of the “scorned woman” or the “hysterical woman.” The myth is promoted by the cottage industry that supports abusers and unscientific alienation theories. In reality, mothers involved in contested custody make deliberate false reports of abuse less than 2% of the time. The Saunders study found that court professionals without the specific domestic violence knowledge they need tend to believe this myth and this leads to decisions that harm children. The Meier study demonstrates that courts are believing alleged abusers far more often than other research would support. The ignorant belief in the myth and failure to discuss this common mistake, repeatedly cause courts to deny true reports of abuse and leave children at risk.
11. Shared Parenting Used in Domestic Violence Cases: In my writing, I often start a sentence, “a protective mother was pressured to accept shared parenting,” and then describe the horrible consequences. The legitimate research found that if shared parenting works, it is only in the most favorable cases in which the parents are able to cooperate, there is no unequal power and the parties live nearby. It was never meant for cases involving domestic violence and laws that permit shared parenting have an exception for DV cases. Abuser rights groups promote shared parenting because it helps fathers gain control when the mother is the primary attachment figure and the safe parent. The cottage industry promotes shared parenting because it increases their income. Courts like shared parenting because they can use it to promote settlements and so dispose of cases (usually temporarily). In order to support settlements, judges often treat domestic violence as an obstacle to settlement rather than a warning that shared parenting is inappropriate. Mothers are often threatened that they will lose all custody if they don’t cooperate.
    The Saunders study found that shared parenting is harmful in DV cases. Abusers use decision-making to prevent any decisions the mother wants (particularly therapy for the children). Saunders also found that abusers use visitation exchanges to harass or even assault the victim. Nevertheless, courts continue to help abusive fathers by promoting shared parenting in domestic violence cases.
12. Child Murders in Contested Custody Cases: The Center for Judicial Excellence found that over 700 children involved in contested custody have been murdered, mostly by abusive fathers, in the last ten years. In many cases the courts, whose practices err on the side of risking children, gave the killer the access he needed. The Bartlow study asked judges in communities where the tragedies occurred what reforms they created in response to the local murder. The shocking response was none because they all assumed the local tragedy was an exception. Even after the most direct and tragic response to their flawed and outdated practices, court leaders refuse to consider the need for reform.

Conclusion

Abusers often commit abuse and then immediately deny what they just did. They also claim obviously false reasons for their abuse. Their victims cannot challenge the lies because it would be unsafe. This forces them to live in a pretend world where reality cannot be discussed.

Accordingly, when the woman is able to leave her abuser, speaking openly and staying in the real world is an important part of healing. This is an additional reason that the false and damaging reality of family courts is so harmful. Courts make it dangerous for victims to discuss the harm the abuser caused or to express the truth that the children would be better off without their father until he changes his behavior.

This is the context in which the 12 common examples of courts creating findings that rarely occur in real life takes place. It is possible in an individual case that the abuser suddenly changes his behavior; that a mother makes a false report; or that an individual child benefits from the relationship with an abuser, but such events are extremely rare. Courts repeatedly make these mistaken findings because they are relying on professionals who are not experts in domestic violence and failing to consider current scientific research.

Most court professionals do not know that these 12 common findings are virtually never in the best interests of children. And the court system has no effective mechanism to update practices or find the patterns of mistaken decisions. Even murders where the court decision gave the killer the access, he needed have not caused the courts to investigate ways to make children safer.

I hope protective mothers and their attorneys will reference these common errors to the court; hopefully before the court makes a decision that is virtually always wrong. I hope the courts will use these examples to take a new look at outdated practices that harm children. Otherwise, only passage of the Safe Child Act can save the precious children.