Article by Barry Goldstein & Veronica York
The Saunders study found that best practices in domestic violence (DV) custody cases require a multi-disciplinary approach that includes a DV expert. Most judges and lawyers are not familiar with these best practices and so fail to gain the full benefits working with a DV expert can provide.
The National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders because the findings go to the essence of the wellbeing of children. The ACE (adverse childhood experiences) studies are peer-reviewed medical research from the CDC. ACE found that children exposed to DV or child abuse will live shorter and less healthy lives. Most of the harm comes not from any immediate physical injury, but rather the fear and stress abusers cause. ACE tells us that children exposed to multiple ACEs can heal and avoid the awful consequences but standard court practices, that prioritize keeping abusive fathers in children’s lives, remove the child’s last chance for a full and healthy life.
If custody courts are going to act in the best interests of children, they must focus on practices that reduce stress in the children to avoid the consequences of exposure to DV, child abuse and other ACEs. At present, custody courts almost never discuss how to avoid the effects of exposure to ACEs or how to reduce the stress that is likely to ruin a child’s life.
The Saunders study is peer-reviewed scientific research from the National Institute of Justice in the U. S. Justice Department. Saunders found most judges, lawyers and evaluators do not have the specific DV information they need, including how to effectively screen for DV. Recognizing DV is difficult because abusers usually commit their abuse in private. DV experts know what to look for to recognize true reports of abuse. Lawyers often dismiss reports of DV because they don’t know how to put together the available evidence to confirm DV reports. ACE and Saunders can fundamentally change the discussion in DV custody cases. ACE tells us that the harm from DV and child abuse is far greater and long lasting than previously understood. Saunders can help courts recognize true reports of abuse that would otherwise be disbelieved or ignored. Many standard court practices and assumptions have been disproven by ACE and Saunders but continue to be used by professionals unfamiliar with the research. DV experts provide the knowledge to put ACE and Saunders into evidence during their testimony.
DV Experts Are Part of Your Team
DV experts can help the team in many ways in addition to testimony. We can provide attorneys with scientific research and citations that can be used in legal arguments. We can also prepare an affidavit to support any motion the team plans to submit to the court. As experts, we often speak with other court professionals like GALs or evaluators. If they are sincere about their work, these professionals will appreciate the research that they could use in this and other cases to better protect children.
DV experts are helpful in discussing strategy because we understand the impact on children and can frame the discussion in terms of the wellbeing of children in the case. For mediations or other settlement negotiations, we recommend focusing on what can be done to reduce the fear and stress in children because this effects their longevity and health. Focusing on the wellbeing of children is good strategy in addition to being beneficial for children.
DV experts are especially helpful in reviewing expert reports of evaluators and other professionals who don’t have the necessary DV expertise. We wrote an article about 20 common mistakes evaluators make when they are unfamiliar with ACE and Saunders, although the list consisted of over 80 such common errors. We can also prepare questions to help the attorney cross-examine experts who are hostile to our position and suggest questions for the abuser. Our favorite question for an abusive father is what can you do to reduce the fear and stress in the child and the mother they depend on?
DV experts can suggest best practices on issues involved in the case. For example, we often recommend play therapy for younger children because it helps them express their emotions and tends to eliminate claims of coaching. We recommend trauma-informed therapy for victims of DV. We know that anger management and therapy do not address a father’s DV issues. Instead, what he needs is accountability and monitoring. All of this is supported by scientific research.
Unscientific alienation theories have often been successful in helping abusive fathers take children from good mothers. DV experts can cite the research that demonstrates the invalidity of these theories and harm they have caused. We offer a fairer approach to alienation that requires courts to consider the actions of both parents and the actual effects on children.
Attorneys Need to Advocate for Approaches that Help Their Clients
Present court practices in DV custody cases are tilted in favor of abusive fathers. The unscientific and biased alienation theories help abusive fathers as they were designed to do. The failure to use ACE and Saunders minimize the harm from DV and make it harder to prove. The failure to address and prevent gender bias harms protective mothers. DV is about control including financial control, this means abusive fathers usually have a big financial advantage that results in courts hearing more about bogus alienation theories than the best research like ACE and Saunders. Courts rarely use their authority to level the playing field, even though they can. These and other flawed approaches all help abusive fathers and risk children. Supporting these biased practices undermines the position of clients who are protective mothers. The research is compelling and most judges would listen to information that benefits children, but attorneys need to advocate for this better approach.
Expert witnesses are the only witnesses permitted to give their opinions. Little attention is paid to the difference between the three types of opinions. The cottage industry that makes large incomes helping abusers provides ideological opinions that are not based on any valid research and are biased. Most of the other professionals courts hear give subjective opinions. These can be helpful if the expert is knowledgeable and truly neutral. The problem is they sometimes give opinions contradicted by scientific research they are unfamiliar with. DV experts provide objective opinions based on highly credible scientific research. This is much more useful to the court and beneficial for children. Attorneys need to stress the distinction and advocate for evidence-based approaches.
Custody courts have heavy caseloads and judges often use shortcuts to save time. This is done in good faith based on the belief that the time and other limitations apply to both sides, equally. This practice actually provides an additional benefit for abusive fathers. It takes more time to present the research courts are usually unfamiliar with than to just rely on standard practices that favor abusers. A standard abuser tactic is to decontextualize any dispute. Context is critical to understanding DV issues. Again, it takes more time to provide this context. Attorneys need to be aware of the risks from shortcuts and advocate for sufficient time to present their full case.
We easily meet the low standards for qualifying as an expert witness. When there is any problem, it is usually that judges and lawyers are not used to a DV expert. Attorneys for abusers often try to demand qualifications that apply to mental health professionals. Another tactic is to try to limit the subjects we can discuss. DV experts need to be familiar with related topics like alienation, child sexual abuse, and PTSD. Attorneys need to ask qualifying questions that permit the full use of the expert’s knowledge. If an issue arises, it is good practice to ask the DV expert questions about why they are qualified to discuss an issue that the other side objects to. The attorney might want to suggest the objection is only based on the lack of familiarity with DV experts.
Dedicated attorneys often spend tens of hours learning difficult technical subjects so they can represent their clients effectively. It seems odd that few do this with domestic violence that they encounter in many of their cases. Working with a DV expert will help attorneys become more effective even when the client can’t afford an expert witness.