Article by Barry Goldstein
The National Council of Juvenile and Family Court Judges seeks to teach other judges about the ACE (Adverse Childhood Experiences) Research and the Saunders Study. This research goes to the essence of the best interests of the child and makes it easier for courts to recognize and respond to domestic violence and child abuse. ACE and Saunders demonstrate that many court practices that have been used for years or decades work poorly for children. Why would court professionals attempt to respond to domestic violence custody cases without ACE and Saunders?
ACE is exciting research that is often compared to the 1964 Surgeon General’s Report linking smoking to cancer. Society responded by changing laws, taxes, education and entertainment to discourage smoking. This has saved millions of lives and trillions of dollars.
The present level of cancer, heart disease, diabetes, mental illness, substance abuse, suicide and many other health and social problems is based on the long tolerance of behavior we would now define as domestic violence and child abuse. This means that using best practices to prevent abuse will increase life expectancy and save trillions of dollars. Dr. Vincent Felitti, lead author of the first ACE Study says prevention is the best use for his research particularly in our family courts.
Children exposed to domestic violence, child abuse and other traumas will live shorter lives and face a lifetime of health and social problems. Most of the harm comes not from any immediate physical injuries that court professionals tend to focus on, but from the fear and stress abusers cause. Contested custody is often the last chance to save children from the awful consequences. Unfortunately, many common family court practices take away this last chance from children the courts want to protect.
The Office on Violence against Women (OVW) and other experts in the US Justice Department encouraged the National Institute of Justice to commission a study about the knowledge court professionals have about domestic violence. OVW had received many complaints, confirmed in roundtable discussions, that family courts were having a particularly hard time responding to DV custody cases. The Saunders Study reviewed the domestic violence knowledge of judges, lawyers and especially evaluators because law professionals often receive their information and too often misinformation from evaluators. Saunders found that court professionals need more than generalized training about domestic violence. They need training in specific topics that include screening for DV, risk assessment, post-separation violence and the impact of DV on children. Professionals without this knowledge tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. This leads to recommendations and decisions that harm children. When professionals focus on false reports and alienation, it usually says more about their lack of needed training than the circumstances in the case.
Saunders found that courts need to use a multi-disciplinary approach. Mental health professionals are experts in mental illness and psychology, but a couple of workshops do not provide the expertise they need for domestic violence or child abuse. They do not know the research nor DV dynamics. As a result, either they disbelieve true reports of abuse or they cannot determine the abuse issue so focus on less important issues they are more comfortable dealing with. Present practices are the equivalent of using a general practitioner when the patient has cancer or heart disease. Courts are routinely making life altering decisions without the needed expertise in domestic violence or child abuse.
A small majority of evaluators participating in the Saunders Study claimed to screen for DV. When asked how they do the screening, however, most claimed to use psychological tests that tell us nothing about domestic violence. This means in most DV custody cases there is no effective screening for DV. The problem was confirmed by the frequent mistaken answers by evaluators to the vignettes used in the Saunders Study.
The Saunders Study also found that courts do not limit alleged abusers to supervised visits as often as needed. Shared parenting does not work well for children in cases involving reports of domestic violence. Abusers use decision-making to block anything the mother wants and particularly seek to prevent therapy where the child might reveal his abuse.
Fundamentally, without ACE, courts routinely minimize the harm from domestic violence and child abuse and without Saunders, courts often disbelieve true reports of abuse. The absence of ACE and Saunders is not neutral in the sense that the practices are used for both mothers and fathers. All of the errors caused by failing to consider the research help abusive fathers and hurt children.
Harmful Outcome Cases
Family Courts’ failure to learn from scientific research in domestic violence custody cases is illustrated by the Saunders Study discussion of harmful outcome cases. These are extreme decisions in which an alleged abuser wins custody and a safe, protective mother, who is the primary attachment figure for the child is limited to supervised or no visitation. Saunders found in 2012 that harmful outcome cases are always wrong and based on the use of flawed practices. Nevertheless, courts continue to create these damaging mistakes.
In an individual case, it is possible the allegations of abuse are false or unproven, but more often, the myth that mothers often make false reports and unscientific alienation theories lead courts to disbelieve true reports of abuse. This mistake often leads to punishment and retaliation against protective mothers for trying to protect their children. Court professionals often fail to consider that punishing the mothers is also punishing the children.
The reason harmful outcome cases are always wrong is that the harm of denying children a normal relationship with their primary attachment figure is greater than any benefit the court thought it was providing. This harm includes increased risk of depression, low self-esteem and suicide. In virtually any other type of litigation, courts would routinely weigh the known harm from separating children from their primary attachment figure with whatever benefit the court seeks to accomplish. This might lead to decisions that find less harmful approaches.
Part of the problem that contributes to harmful outcome mistakes is gender bias. In our still sexist society, mothers continue to provide most of the child care and courts minimize the importance of primary attachment in an effort to treat mothers and fathers equally. Of course, mothers or fathers could be the primary parent in an individual case. Primary attachment should be a benefit to the parent providing most of the child care because it benefits the children. The primary attachment figure has spent more time with the child; knows the child’s strengths and weaknesses better; the child seeks out the primary parent for their needs; the primary parent is more familiar with the providers and is usually the better parent because they spent more time parenting. Many court professionals know primary attachment benefits children but do not know the specific benefits and risks. As a result, primary attachment is routinely minimized and this benefits abusive fathers.
Common Court Practices Proved Wrong by Scientific Research
Here are twelve court practices that continue to be used and harm children because courts are unaware the research proves they are wrong.
1. High Conflict Approaches: High conflict assumes you have two good and loving parents who are angry with each other and sometimes act out in ways that hurt children. Courts immediately start promoting co-parenting and cooperation. The research demonstrates that 75-90% of contested cases are really domestic violence cases involving the worst abusers. This doesn’t mean they committed the most severe physical assaults that court professionals look for, but rather they believe she had no right to leave and so they are entitled to do whatever is necessary to regain what they believe is their entitlement to control their victim and make the major decisions. Unfortunately, abusers have learned the best way to hurt a mother is to hurt her children. Saunders found that shared parenting is harmful in DV custody cases. This is because of the unequal power. Victims are forced to decide whether to accept a less beneficial decision or accept the abuser’s punishment for not agreeing. Saunders found abusers use decision-making to block anything the mother wants and especially to block therapy where the child might reveal the father’s abuse. The healing responses ACE says are needed to save children from the consequences of exposure to multiple ACEs are blocked by shared parenting. The courts are creating a false equivalency between an abusive father and a safe mother who is the primary attachment figure. Judges like share parenting because it promotes (temporary) settlement to alleviate crowded calendars and other professionals support co-parenting because they make more money by forcing victims and abusers to cooperate. Courts say children need both parents equally, but the research says they need their primary attachment figure more than the other parent and the safe parent more than the abuser. In many cases, mothers’ attempts to protect their children are viewed as being uncooperative and leads to children losing their best parent.
2. “Get Over It”: Judges have the power to force children and adult victims to interact with their abusers, but they cannot remove the fear and stress abusers cause. When courts tell victims to just get over it, the fear and stress is pushed deeper inside the child where it will inevitably come out later in a much more harmful form.
3. Only Physical Abuse Matters: Fundamental to ACE is that it is the fear and stress abusers cause rather than an immediate physical injury that causes most of the harm. Most DV is neither physical nor illegal. Once an abuser has hit the mother once or twice, he doesn’t need to keep hitting her because she knows what he is capable of. His other abusive tactics serve as a reminder of what could happen if she doesn’t obey. It is important to understand DV dynamics that the purpose of DV tactics is not to inflict pain but to coerce and pressure the victim to do what the abuser tells the victim to do. Significantly, by not limiting evidence to physical assaults there is much more evidence available to recognize domestic violence.
4. Older Abuse Does Not Matter: Courts sometimes limit the time period they will consider evidence of abuse. This is a shortcut to save time. Courts are already having difficulty recognizing domestic violence and child abuse. Limiting the available evidence makes it harder to understand the abuse and recognize the motive for seeking custody. ACE tells us that older abuse continues to contribute to the fear and stress. Other types of domestic violence serve as a reminder of what happens if the abuser is not obeyed. The passage of time does not reduce an abuser’s domestic violence. This is another example of a practice that only benefits abusers and harms adult and child victims.
5. Minimize Abuse: Georgia has a list of factors to consider in determining custody and visitation. Courts have complete discretion in deciding which factors to emphasize. ACE tells us that exposure to domestic violence and child abuse will result in shorter lives and a lifetime of health and social problems. None of the other factors are anywhere near as consequential but courts routinely emphasize less important factors.
6. Significance of Fear: The fundamental purpose of domestic violence tactics is to coerce and pressure the partner to accept what the abuser wants. Accordingly, this tactic creates fear in the victim, particularly when there is a pattern of abusive tactics. Fear causes stress and this creates most of the harm discussed in the ACE Research. Children inevitably feel their mother’s fear no matter how hard she tries to shield them. Abusers sometimes pretend to be afraid, and may be afraid of consequences, but considering the context usually makes it easy to determine which parent is afraid of the other. This is important evidence for recognizing domestic violence.
7. Reliance Only on Mental Health Professionals: The evaluators and other mental health professionals are experts in psychology and mental illness and this is often helpful when those are important issues in a case. The original mistake for handling DV custody cases occurred before we had specialized research and the (false) assumption was the domestic violence was caused by mental illness or substance abuse. This led to reliance on professionals that Saunders confirmed do not have the knowledge needed for DV cases. This is extremely problematic because legal professionals have spent their entire careers listening to information and misinformation about DV so that it is now deeply ingrained. Courts now need to take a fresh look at their approach to abuse cases and follow Saunders’ findings about the need for a multi-disciplinary approach that includes experts in DV and child abuse. A few workshops do not provide the level of expertise needed.
8. Lack of Risk Assessment: I have never seen an evaluation that includes: “the mother says the father hit her while she was pregnant and if this is true it means he presents a higher risk of lethality.” There are behaviors associated with increased risk of lethality and courts need this information if they are going to protect children. The dangerous behaviors include assaulting a woman while pregnant; strangulation; hurting animals; threatening suicide, kidnapping or murder; presence of guns; abusers deliberately violating court orders and the belief she has no right to leave. When these risks are present, courts need to know it.
9. Lack of Domestic Violence Expertise: Attorneys for abusers routinely present evidence from family, friends and colleagues that he is calm, peaceful and has many good traits. The testimony is often true because most abusers act very differently in public than private. Court professionals don’t even know something basic like this and so evaluators and others often base decisions on such non-probative information. Other important DV information is more subtle and less well-known. This is why courts need someone with genuine DV expertise in any custody cases where there are reports or evidence of domestic violence.
10. Ignoring Post-Separation Violence: In many if not most DV custody cases, the father has told the mother if you leave me, I will take the child and bankrupt you. This is carried out with litigation abuse and economic abuse. Courts need to start considering these tactics to understand an alleged abuser’s motives. This is a continuation of his abuse contrary to assumptions that the end of the relationship ends the abuse. The other issue that is missed is that nothing the victim did or said caused his abuse. We told the men in the batterer classes I taught that no woman can force a man to abuse her. This means that abusers are likely to abuse future partners and this means the children cannot heal if abusers get custody or unprotected visitation. They will probably treat new partners well during litigation so she can testify for him, but will resume their abuse afterwards. Today, courts rarely consider these risks.
11. Very Young Children Cannot be Harmed by Witnessing DV: Many court professionals assume very young children cannot be harmed by witnessing domestic violence because they don’t understand what is going on. Actually, it is worse because infants can have their brains rewired in a way that harms them for the rest of their lives. And they are very sensitive to the mother’s fear because they depend so much on her for their needs.
12. Assume Children Benefit from Abusers in their Lives: Many court professionals have repeatedly heard that children do better with both parents in their lives. This is usually true, but not when an abuser is causing more harm than good. The only response that benefits children is to require the abuser to change their behavior if they want a relationship. This is a win-win arrangement. Otherwise, courts are causing children to live shorter lives and face a lifetime of health and social problems.
Conclusion
Every year, 58,000 children in the United States are sent for custody or unprotected visitation with dangerous abusers. In the last 13 years, over 800 of these children have been murdered, mostly by abusive fathers. The Bartlow Study asked judges and court administrators in the communities where these tragedies occurred what reforms have you created in response to the murder to better protect children. The shocking response was nothing because the judges assumed the local tragedy was an exception.
The courts tend to use the same small group of experts and this has promoted an insular atmosphere that discourages new ideas and research. ACE was published in 1998 and Saunders in 2012 and still most courts fail to use this vital knowledge. The DV custody cases represent a small percentage of the court docket, but these are the cases where adult and child victims lose their lives. More often they survive, at least until suicide or drug overdoses kill them in their teens or twenties or cancer or heart disease get them sooner than if they were never exposed to ACEs. The tragedy is that we have the research and the experts to avoid these mistakes if family courts can be open to change for the sake of the children.
References:
- 1. Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults. The Adverse Childhood Experiences (ACE) Study - PubMed (nih.gov) https://pubmed.ncbi.nlm.nih.gov/9635069/
- 2. Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations (ojp.gov) https://www.ojp.gov/pdffiles1/nij/grants/238891.pdf