Article by Barry Goldstein & Veronica York
The National Council of Juvenile and Family Court Judges seeks to train other judges about the Saunders study and ACE Research because they provide exactly the knowledge courts need when responding to domestic violence (DV) custody cases. Saunders found most judges, lawyers and evaluators do not have the specific DV knowledge needed and that a multi-disciplinary approach that includes DV experts would work best. Without Saunders, courts often rely on the wrong professionals and this leads to recommendations and decisions that harm children.
Saunders is peer-reviewed scientific research from the National Institute of Justice in the US Justice Department. One section in Saunders investigated harmful outcome cases. These are extreme decisions in which an alleged abuser is given custody, and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. Saunders found harmful outcome cases are ALWAYS wrong and based on flawed practices. The reason they are always wrong is that the harm of denying children a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem, and suicide is greater than whatever benefit the court thought it was creating.
When courts make the mistake of creating a harmful outcome case, there should be a sense of urgency to at least resume normal contact between the mother and children. Even a relatively short denial of normal interaction between a child and their primary attachment figure is likely to require years of therapy to overcome. When courts permit the mistake to continue longer, the child’s life can easily be ruined when it becomes too late to overcome the damage.
Despite the risks, however, courts are often comfortable maintaining harmful outcome arrangements for many months or years. Ironically, when courts limit abusive fathers to supervised visitation because they are dangerous, there is often an immediate urgency to resume normal visitation. This is based on gender bias and the belief children do better with both parents in their lives (even though this isn’t considered when the children are denied their mother).
What if Courts Banned Harmful Outcome Cases?
The most direct and obvious benefit is that courts would stop denying children a normal relationship with their primary attachment figure. It would also make court professionals more aware of the specific benefits from the primary parent and that might lead to more decisions giving custody to the primary attachment figure. Still more benefits would come if courts consider the flawed practices and mistakes that caused harmful outcome cases in the first place.
Most harmful outcome cases are caused because courts are influenced by unscientific alienation theories that are also biased in favor of abusive fathers. The fact these bogus theories promote harmful outcome cases should cause courts to stop relying on them or at least treat them with more skepticism. There is such a thing as alienation but courts should at least use fair approaches when alienation needs to be considered.
Many of the harmful outcomes are created after the court disbelieved true reports of abuse and then punished mothers if they continued to try to protect their children. This should encourage court professionals to use the best practices from Saunders that would help courts recognize true reports of abuse. This, of course would help courts protect children better.
The biased and unreliable alienation theories are promoted by the cottage industry that makes large incomes helping abusive fathers take children from good mothers. Barring harmful outcome cases should help recognize that the cottage industry does not have expertise about DV and child abuse and instead provides biased claims and recommendations. These charlatans should be discredited when they focus on biased theories and make recommendations that would no longer be permitted.
I have never seen a harmful outcome case where the court weighed the certain harm of increased risk of depression, low self-esteem, and suicide with whatever speculative benefit the court thought it was creating. Particularly when creating an extreme result, the need to weigh risks and benefits should be obvious. Alienation theories encourage a subjective approach in which keeping alleged abusive fathers in children’s lives is the only consideration.
In the present system, abusive fathers often seek harmful outcome cases in order to regain power and control. When courts understand the fathers are thus asking the court to harm the children they claim to love, it will be easier to recognize their abuse and bad faith. If the abusers stop promoting harmful outcome results it will reduce the pressure and stress on the mothers and children. This might also reduce some of the excessive litigation we see from abusive fathers because they would be deprived of a particularly cruel tactic.
Harmful outcome cases are a major source of retaliation against protective mothers and sometimes their attorneys. The danger of retaliation and failure of many courts to hold abusive fathers accountable has done great harm to the court system and particularly the ability to obtain effective representation. This is particularly harmful because our jurisprudence is based on the assumption that if each party presents their strongest case, justice will prevail.
Attorneys for abusive fathers are comfortable being very aggressive, making misrepresentations, and asking for outcomes that harm children. This is because they don’t have to worry about any consequences. The most common question we get is where to find a good attorney for a DV custody case. Many attorneys are afraid to present evidence of abuse or the important research for fear their will be retaliation by the court against their clients or even themselves. The result is that courts often do not receive the information they need to make a safe decision.
Harmful outcome cases are an extreme mistake and part of the larger problem of retaliation against mothers for trying to protect their children. The poison from unscientific alienation theories that encourage retaliation is based on gender bias because the court is blaming mothers for their normal reaction to a long pattern of abuse. The court’s failure to use ACE (adverse childhood experience) and Saunders makes it harder for courts to recognize true reports of abuse.
I recently had a chance to have some in depth discussions with judges who gave me enough confidence to ask them about the common complaint from protective mothers that the court system is corrupt. The judges I spoke with were more knowledgeable about DV and open to needed reforms. They acknowledged they had heard the complaints about corruption many times.
The complaints are caused by the extreme and harmful decisions by courts such as harmful outcome cases. In reality, the retaliation and unfair practices are caused by the failure to integrate important scientific research, reliance on professionals with expertise in their fields but not DV, gender bias, and the use of biased alienation theories that recommend harmful outcome cases and other catastrophic decisions. There is some corruption with the cottage industry but judges with extremely rare exceptions are not paid for the bad decisions. The retaliation and mistreatment of mothers create the appearance of corruption and ethical requirements forbid judges to create even the appearance of bias or other unfair practices. Accordingly, harmful outcome cases are harming the reputation of the courts while they also harm the children courts are supposed to protect.
The Larger Picture
There are three entities that support harmful outcome cases. One is the unscientific and biased alienation theories that recommend harmful outcome cases. The second is the cottage industry of legal and mental health professionals that make large incomes misinforming the courts in order to help their wealthy clients. The third are the male supremacist groups. These entities are using subjective and ideological approaches and have little credibility.
The groups that opposed creating harmful outcome cases are far more credible and use an evidence-based approach. This includes the National Council of Juvenile and Family Court Judges, American Heart Association, Centers for Disease Control and Prevention, National Institute of Justice in the US Justice Department, and Kayden’s Law which is based on scientific research and passed as part of the reauthorization of the Violence Against Women Act.
At the start of the modern DV movement, as a society we created a group of practices that made it easier for victims of DV to escape their abusers. This led to three decades of steadily declining DV homicides. The number of women murdered by their intimate partners went from 1600 in 1976 to 1181 in 2005.
Male supremacist groups believe they are entitled to control their partners and she has no right to leave. They created particularly cruel tactics of seeking custody to regain what they believe is their right to control their victims. Biased and unscientific alienation theories promoting harmful outcome cases are a major weapon in their successful efforts to manipulate family courts to regain control.
Custody courts do not understand the fundamental nature of DV custody cases. Courts use “high conflict” approaches that create a false equivalency between safe, protective mothers who are the primary attachment figures and abusive fathers. The success of abusive fathers makes it almost impossible for victims to escape or protect their children. As a result, by 2021, DV homicides were back up to 1690 at a time when other murders had been reduced.
The ACE studies are peer-reviewed medical research from the CDC. They found that children exposed to DV or child abuse will live shorter and less healthy lives. Most of the harm is not from any immediate injury but from the fear and stress abusers cause. Courts have the power and authority to force children to interact with their abuser as is done in harmful outcome cases, but courts have no ability to remove the fear and stress. The extreme decisions push children into survival mode. Their fear and stress are pushed deeper inside them where it will inevitably come out in much more harmful ways.
This stress causes inflammation that weakens the heart. Stress also causes high blood pressure. This is why one of the first things cardiologists tell new patients is to reduce their stress. At the same time, 55% of US adult smokers started because of a high ACE score. And stress undermines our immune system making us more susceptible to cancer and many other diseases. Everyone knows the connection between smoking with cancer and heart disease. Custody courts handling DV cases never even consider the risk they are creating for cancer and heart disease.
DV is one of the most underreported crimes and most DV is not criminal. Homicide statistics are much more reliable because there is a body so we cannot pretend she is lying as the alienation theories demand. The huge increase in DV homicides tells us the success of abusers in custody courts means there is much more of all domestic violence crimes and tactics.
DV is far more costly than previously recognized. Medical research using 2014 figures found the United States is spending $3.6 trillion annually. This includes $2.1trillion in health costs and $1.3 trillion in lost productivity which creates a huge brake on our economy. This comes to $11,000 per capita. Obviously, it is unrealistic to believe we can totally eliminate DV, but the courts’ tolerance for ideological approaches and harmful outcome cases are costing all of us significant financial resources in addition to the human costs.
The ACE studies are often compared to the 1964 Surgeon General’s Report linking cancer and smoking. As a society, we created many types of reforms and education to reduce smoking from 43% in 1965 to 18% in 2014. By 2014, the 50th anniversary of the Surgeon General’s Report, we had saved over 8 million lives and many trillions of dollars.
In 1961, the American Cancer Society and two other health organizations sent a letter to President Kennedy about the linkage between smoking and cancer. President Kennedy asked his Surgeon General to create a committee to investigate the research and potential responses. It is a wonderful reminder to think about the enormous benefits achieved from this one letter and the response it inspired. ACE tells us we now have the same opportunity if we take effective actions to reduce DV and child abuse. Our custody courts have been a major obstacle in preventing DV but could instead be a catalyst to reduce the huge harm DV causes. It starts by barring harmful outcome cases.