Article by Veronica York
Most family court custody cases are settled amicably. It’s only about 3.8% of cases that require trial and often much more. These cases are typically deemed “high conflict” by family court professionals. The reality is 75-90% of these cases are domestic violence and/or child abuse cases. These cases must be handled differently. The “high conflict” he said, she said approach is harming and sometimes killing children. This approach is creating a false equivalency between a victim and an abuser, which always favors abusers and risks children’s well-being.
The National Council of Juvenile and Family Court Judges seeks to train other judges on the current scientific research that shows standard court practices are working very poorly for children in DV custody cases. The two main studies that must be applied to these cases are the ACE Study (adverse childhood experiences) from the Centers for Disease Control and Prevention (CDC) and The Saunders Study form the National Institute of Justice in the U.S. Justice Department. Fundamentally, without ACE courts are minimizing the harm abusers cause and without Saunders, they are relying on the wrong professionals who are making recommendations and decisions that have devastating consequences for the children they are required to protect.
A Few Common Mistakes Lawyers Make in DV Custody Cases
The Saunders Study found that court professionals need more than just a general knowledge of domestic violence. They need to have knowledge of four specific areas including screening for DV, risk assessment, post separation abuse, and the impact of DV on children. If you are a family court lawyer who is being retained for cases involving DV or child abuse, you should have some knowledge in these areas to be able to effectively advocate and litigate for your client. Not having this knowledge wastes their precious time, money, and ability to protect their children.
The first most common mistake lawyers make is disbelieving true reports of abuse due to non-probative occurrences. For example, a victim of DV may leave their abuser and then return, they may have filed for a protective order and not followed through, they may have no incidents of physical violence reported to law enforcement, they may not show fear of their abuser in public, or they might have stayed with their abuser much longer than you feel anyone should. All these circumstances are common in DV relationships due to safety and other good reasons, one of which is protecting their children. However, court professionals assume these are good reasons to dismiss abuse allegations- and this is just not true.
The second most common mistake lawyers make is not asking the question “Who is afraid of who in the relationship?” The majority of DV cases involve a male abuser and a female victim. This is a statistical fact and although there are exceptions, it is important to understand that a victim of DV will give up much more than they are entitled to in these cases so they can avoid as much conflict as possible and protect their children. It is not uncommon for mothers to give up substantial financial assets, child support, and other possessions to ensure their children are protected from the abuser’s emotional and sometimes physical abuse.
Another mistake is missing the motive of the abuser. Most courts like to assume a father is acting out of love for their children. This could not be further from the truth in DV custody cases. Family court is the most successful venue for an abusive father to continue his abuse. He knows that the best way to hurt the mother is to use the children. Their motives are in plain sight but most often missed by court professionals.
For starters, loving fathers understand that children need their mothers. The most important thing a loving father needs to do for their children is support and treat their mother with respect. In our society, mothers are still typically the primary care giver. This means they are the children’s primary attachment figure. To be clear, the primary attachment figure is and always will be the person who did most of the childcare the first two years of the child’s life. The idea that children need both parents equally is simply not true. They need their primary attachment figure more than the other parent and they need their safe parent more than the abusive one. In fact, in almost all DV custody cases, during the relationship, the father either wanted or demanded that the mother do most of the childcare. In any other litigation this would be viewed as an admission by the father that she is a good mother. Otherwise, he would have made other arrangements for childcare. What are the chances that because the mother left the relationship and reported his abuse that she is suddenly unfit or crazy? In the real world, the answer is close to zero, but he will almost always claim that she now has a mental issue or is alienating the children. Their motive is to hurt the mother and punish her for leaving. This is also made clear when they refuse to follow court orders, refuse to pay child support, withhold contact with the children during their possession time, neglect the children, and continue to harass, stalk, belittle, and disparage the mother. These are just some examples of the many abusive behaviors that show their interest is what’s best for them and their goal of hurting the mother, rather than what’s best for the children.
Abuser Tactics in Custody Cases
If you are going to take on a custody case with alleged domestic violence or child abuse, you must be aware of abuser tactics. These tactics include lying (even under oath), counter-parenting, alienation allegations, neglectful/abusive parenting, isolation, harassment/stalking, legal abuse, financial abuse, and sexual abuse of the mother and/or children. Abusers will deny any wrongdoing unless you can prove it beyond a shadow of a doubt, even then they will blame someone else for their actions. They almost never accept responsibility unless they can spin a victim narrative and gain sympathy. They have learned that courts bend over backwards to keep fathers in children’s lives at any cost because they believe children who do not have a father in their lives are at greater risk. This is only true when the father does more good than harm. If a father is doing more harm than good, he should not be a part of their child’s life until he can change his behavior. Children can thrive with at least one loving and caring parent.
As an expert witness, the first thing we have the client do is a pattern of abuse. This is a document that lists all the tactics their abuser used during their relationship and post separation. It is imperative to show the court the pattern of behavior that has caused so much stress and fear in the victim and their children. The court tends to only focus on any physical abuse, but The ACE research tells us that most of the harm caused by domestic violence and child abuse is the fear and stress. For decades, domestic violence advocates have been saying that physical assaults are not the most harmful parts of DV. No one paid attention to them because there was no research; they didn't have advanced degrees; and they were women. It turned out they were right, and the ACE Studies confirmed their understanding. Additionally, Saunders found, domestic violence advocates understand DV issues better than any other profession. Experts know and research confirms that it is the fear and stress that leads to depression, anxiety, low self-esteem, and suicide. Not to mention, long term effects such as heart disease, cancer and a variety of other ailments and diseases.
The doctors working on the ACE research were asked the question: “Is there something we can do now to save these children who have been exposed to DV and child abuse?” There answer was yes, but there are two things that need to happen. First, the children will need therapy and medical attention as problems develop. This means that the safe parent must have control over health decisions. Abusers use decision making to block anything the mother wants to help their children, especially therapy because they do not want their abuse to be exposed. Second, the children cannot be exposed to more abuse. This means that the abuser must be limited to supervised visits until he can change his behavior. The only thing proven to change behavior is accountability and monitoring. The father can be given a path to increase his visits to unsupervised, but the burden must be on him to prove to the court that he has changed. The recommendation is for the abuser to complete a 52-week batterer program that is focused on accountability. Once he has completed the program, he must assure the court that he takes full responsibility for his abuse, he understands the enormous harm that he has caused, he promises to never abuse anyone again, and if he does, he understands that could mean the end of his relationship with the children.
Best Practices
The first thing a family court lawyer should do when faced with a client who claims domestic violence is listen. Victims of DV need to be heard, believed, and validated. Too often they are told by attorneys their experiences don’t matter or will not be taken seriously in court. Although, that may be the case in many courts in the United States, it’s something that needs to be changed, not tolerated. Do not ignore the abuser tactics that are causing so much stress and fear in the victim and their children. This is what causes the most harm and as an attorney you can help them get these tactics to stop in the litigation process.
Second, understand the research must be presented as soon as possible to the judge. The first thing to do is tell the judge that there is now substantial scientific peer-reviewed research from the most credible sources, that shows current court practices are harming children and you would like the judge to take a fresh look at the case considering the research. This is a reasonable request that goes to the best interest of the children.
Last, bring in a domestic violence expert that can testify regarding the research and how it applies to the facts and circumstances of the case. Most courts are used to hearing from mental health professionals that conduct a psychological or custody evaluation. They speak to both parties and the children and give the judge the whole picture. Unfortunately, with rare exceptions, Saunders found these evaluators do not have the needed expertise to make the appropriate findings regarding abuse issues in these cases. They give the judge their subjective opinion based on their own beliefs and findings. A domestic violence expert with knowledge of ACE and Saunders can give the judge an objective opinion based on the research, which is much more valuable for the court.
A common objection we hear is that the DV expert did not speak to the alleged abuser or interview the children. An expert witness should only be giving the judge one piece of the story. The judge should hear from multiple witnesses and experts to determine and put together the whole story and make a fair and equitable decision. A DV expert can provide information and recommendations to the court that they will not hear from anyone else.
All too often, they continue to rely on the same evaluators and hear the same misinformation that is causing a crisis in our country of children, who according to ACE, will live shorter lives and face a lifetime of health and social problems.
Conclusion
As a protective mother, certified high conflict divorce coach, and a domestic violence, and child abuse custody expert, I have had the opportunity to speak with hundreds of other protective parents across the United States and abroad. The issues and tactics are typically the same and I can realize the patterns and identify the many errors being made in family court system today. Most judges, GALs, lawyers, and evaluators have spent their entire careers learning the wrong information as it pertains to DV and child abuse custody cases. The most significant impact is the harm being caused to the children of these cases. In addition, the financial impact on protective parents and their families is absolutely devasting. Entire bank accounts, college funds, 401K, and savings have been completely wiped out and then some. These cases are being drug out for almost a decade in some cases costing hundreds of thousands of dollars and many years off the childhood of so many precious children. This must stop.
Typically, I get involved in a case way too late, the mother has already spent her life savings on lawyers who did not know how to fight for them, they have lost their children to their abuser, or they are still being continually harassed and abused by the court system even after several years going through the litigation process. It takes time to help them, undo mistakes, and consult with their counsel to turn these cases around. In contrast, just this past March of 2022, I did have a mother who contacted me before she left her abuser. I was able to help her choose her lawyer, bring in an expert, and help her navigate communication, documentation, and strategy. Her case is now settled. From start to finish it took four months and much less money than it would have otherwise. It really proved that having the right knowledge, understanding the research, and finding a lawyer that is willing to listen, work with an expert, present the research, and advocate for her made all the difference in the world. Not only to her, but more importantly to her two young sons.