Article by Barry Goldstein & Veronica York
Most people, including court professionals are not aware that custody courts routinely mishandle domestic violence (DV) cases. The outdated and biased practices tilt courts in favor of abusive fathers and are causing enormous harm to children and society. No judge wants to hurt children but standard court practices in DV cases make it hard to recognize abuse and protect children. If only the courts had integrated the scientific research that would help them understand these cases better, hundreds of thousands of mothers and children would be living longer, healthier and more successful lives.
The National Council of Juvenile and Family Court Judges seeks to train other judges about the ACE (adverse childhood experiences) Research and Saunders Study because they go to the essence of the wellbeing of children. ACE found that children exposed to DV, and child abuse will live shorter and less healthy lives. Most of the harm is not from any immediate physical injury but rather the fear and stress abusers cause. In other words, without ACE, courts inevitably minimize the harm from DV and child abuse.
The Saunders Study found most judges, lawyers and evaluators do not have the specific DV knowledge needed. The study recommends a multi-disciplinary approach that includes a DV expert. Without Saunders, courts rely on the wrong professionals and so routinely disbelieve true reports of abuse.
While courts rarely use scientific research from the most credible sources, for many decades they have been influenced by alienation theories that were twice rejected by the American Psychiatric Association because there is no research to support the theories. It is not just that the theories are unscientific, they are also biased because they were designed to help abusive fathers take custody from good mothers. Accordingly, they focus mainly on mothers’ behavior.
41 states have created court-sponsored gender bias committees. They have found widespread gender bias against women litigants. Common examples include holding women to a higher standard of proof, giving women less credibility, and blaming mothers for the actions of their abusers. Little progress has been made in overcoming gender bias because victims are afraid to raise the issue, and courts are defensive about their mistakes.
Part of gender bias and the other practices that favor abusive fathers is that courts are far more willing to retaliate and punish protective mothers than to hold abusive fathers accountable. Mothers are often punished for trying to protect their children which is treated as if it were alienation. This has had a profound effect on the ability of protective mothers to obtain effective legal representation. Attorneys for abusive fathers are comfortable engaging in aggressive advocacy that often includes misleading the courts and seeking orders that place children in jeopardy. They can do this because there is little chance of facing consequences for these harmful actions. At the same time, it is difficult for protective mothers to obtain effective representation because many lawyers are afraid to present evidence or research about DV for fear of retaliation against their clients or even themselves. Other lawyers do not want to push DV issues because they believe the judge doesn’t want to hear it and are afraid it could negatively impact their other cases with the judge. This response is unethical because it is based on a conflict of interest but is nevertheless common.
Courts are often overwhelmed with a heavy caseload and judges handling DV custody cases have developed shortcuts to save time. These time limitations apply to both sides and were intended to be neutral. The problem is that they actually favor abusive fathers. Context is critical to understanding DV and abusers routinely seek to decontextualize situations to mislead the court. It takes far less time to deny abuse than to explain the full context. The standard court practices do not include important research necessary to recognize and understand DV. It takes more time to introduce the research than for abusers to ask courts to just use the outdated practices that make it harder to recognize abuse.
DV is about control including financial control. This means that in most custody cases, abusive fathers control most of the money. Not only does this give abusers a huge advantage in individual cases, but even in other cases, court professionals use the misinformation, like alienation, they have heard so many times because wealthy abusers can repeatedly present the ideological and biased claims.
The unscientific alienation theories recommend an extreme outcome in which the alleged abuser is given custody and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. The Saunders Study calls this a harmful outcome case that is ALWAYS wrong and based on flawed practices. The reason it is 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 any benefit the court thought it was providing. Similarly, these extreme actions go against the findings of the American Heart Association.
To make matters worse, when courts restrict abusive fathers’ access to the children because they are dangerous, there is immediately a sense of urgency to resume unprotected visitation. When the mother is restricted, often based on bogus alienation claims, the courts are comfortable continuing the harmful arrangement for many years. It seems that because the mother is the primary parent courts assume her relationship is more secure so that limiting it does less harm. In reality primary attachment means the children need their mother more.
Significantly, all the mistakes favor abusive fathers and harm mothers and their children. The alienation theories promote the lie that mothers frequently make false reports of DV or child abuse. The Meier Study found that abusive fathers win most of their cases. Child sexual abuse cases are even worse because when a mother raises concerns about possible child sexual abuse, and the father responds with claims of alienation, the courts disbelieve 98% of the reports. The actual research in definitive studies like Saunders and Bala is that mothers make deliberate false reports less than 2% of the time. This confirms that custody courts are getting a high percentage of DV decisions catastrophically wrong.
The harm goes far beyond ruining the lives of the children involved in individual cases. At the start of the DV movement, as a society we created reforms to better protect women and children. The reforms made it easier for women to obtain orders of protection, criminal prosecution, custody, divorce, shelter, financial and other support. Each of these reforms made it easier for victims to escape their abusers. This led to steady reductions in DV homicide for over two decades. The number of women murdered by their intimate partners went from 1600 in 1976 to 1181 in 2005.
Male supremacists did not want to give up what they believe is their right to control their partners. They developed practices to regain control by seeking custody. They promoted unscientific alienation theories, shared parenting, and high conflict approaches to help manipulate the courts. They also supported the cottage industry of legal and mental health professionals to promote misinformation to help them get shared parenting or sole custody. Custody courts have allowed abusers to be highly successful with these tactics. These and other flawed practices have made it almost impossible for victims to escape from their abusers. As a result, the DV homicide rate ended the previous progress and went sky high at a time when other murders were declining. By 2021, 1690 women were murdered by their intimate partners. In addition, in the last 16 years, over 1000 children involved in contested custody cases have been murdered, mostly by abusive fathers.
DV is one of the most underreported crimes. As a result. most of the DV statistics understate the prevalence of DV. Murder statistics are particularly helpful because there is a body, and she is not lying about being killed. Research from ACE as well as the American Heart Association and American Cancer Society confirm that when the courts undermine the work to reduce DV they are greatly increasing cancer and heart disease. Other research found the US is spending $3.6 trillion annually to tolerate DV. This comes to $11,000 per capita. Again, the ability of abusers to regain control by manipulating custody courts is a major factor in the increase in DV.
The problem started at the beginning of the modern movement to end DV. At the time, the popular assumption was that DV was caused by mental illness or substance abuse. This led courts to turn to mental health professionals as if they were experts in DV. We now know the original assumptions were mistaken but the courts have been reluctant or worse to create the necessary reforms.
Dr. Dianne Bartlow conducted research about the courts’ response to the tragic murders of children involved in DV custody cases. A judge in Texas explained what he tells the parents in his cases. “You may think that you don’t need an attorney, but I know you need an attorney.” The judge had the right expertise to say this because he understands the law and the procedures in the courts. By the same token, I would tell court officials, you may think your present practices are working, but I know they are ruining the lives of far too many children. I know this because I spent my entire career working on DV issues and know the research.
Dr. Bartlow and I put together a group of reforms that would make it easier for courts to recognize and respond to DV. She interviewed a respected court administrator from NY who was open to some of the proposed reforms but adamantly objected to the idea that courts need to recognize the present outdated practices place children in jeopardy. We all pay a heavy price financially and in quality of life because courts have been slow to update their dangerous practices.