Article by Barry Goldstein & Veronica York
Family courts got off to an unfortunate start in the 1970s when domestic violence (DV) became a public issue but virtually no research was available. The courts turned to mental health professionals as if they were experts in DV. They continued to rely on mental health professionals for DV cases long after the original assumptions proved wrong.
The risk could have been mitigated if lawyers and evaluators became knowledgeable about DV. We have never understood why lawyers would spend countless hours learning scientific and other technical expertise for a variety of cases but never engaged in similar study for DV cases they handle regularly. As researchers developed specialized knowledge that could help court professionals recognize and respond to DV custody cases, the courts never developed reforms to integrate the best tools for responding to DV custody cases.
DV experts have accomplished what judges, lawyers and evaluators have failed to even try to learn. There is a close relationship between DV and subjects like alienation, child sexual abuse, and PTSD. DV experts had to learn about these related subjects just as court professionals need to learn about DV. Unlike DV experts, most court professionals do not have the specific DV expertise needed to protect children in DV custody cases.
Alienation
Veronica recently testified in a case where the judge refused to allow her to testify about the alleged alienation against the mother in the case because the judge assumed a DV expert would not have the necessary knowledge about alienation. The alienation theories used by custody courts are ideological theories that were purposely designed to negate reports of DV and child abuse. Parental Alienation Syndrome (PAS) and its progeny are based on the demonstrably false claim that virtually all reports of DV and child abuse are false. This is their justification to assume alienation when the alleged abuser has a bad relationship with a child instead of considering more likely explanations such as DV, child abuse or other bad parenting by the abuser.
Unscientific alienation theories are the most common defense for abusive fathers in most DV custody cases. Therefore, DV experts must know the research and have extensive knowledge about alienation theories. With this knowledge, DV experts can point out the obvious flaws of the theory and help prove that the real cause of the poor relationship is the father’s DV or child abuse. There is a long history of attorneys for protective mothers failing to challenge PAS and similar biased theories because they didn’t have the necessary information. Accordingly, DV experts are needed to explain the history and mistakes in the theories.
Richard Gardner concocted PAS not from any research but rather his personal experience, beliefs and biases. PAS and related theories were twice rejected by the American Psychiatric Association because there is no scientific research to support it. We are unaware of any other type of court willing to consider a theory twice rejected by the leading professional association. Ironically, courts continue to treat mental health professionals as if they were experts in alienation even after the finding that alienation is not a mental health condition.
DV is about control including financial control. This means in most DV custody cases most of the money is controlled by the abusive father. PAS was created to help the cottage industry make large incomes supporting wealthy abusers. The huge financial advantage may explain why courts continue to listen to this discredited theory.
Richard Gardner made many public statements to the effect that sex between adults and children can be acceptable. We doubt judges would have listened if they had known the odious origins of PAS. The alienation theories are biased because they seek to focus only or mostly on mothers’ behavior. Alienation theories recommend an extreme outcome with the alleged abuser gaining custody and the child denied a normal relationship with their primary attachment figure. The Saunders Study from the US Justice Department found this outcome is ALWAYS wrong because the harm of denying children a normal relationship with their primary parent increases the risk of depression, low self-esteem and suicide. This means the risks are far greater than any benefit the court thought it was providing. In addition to Saunders, the American Heart Association, ACE Research from the CDC, American Psychiatric Association, National Council of Juvenile and Family Court Judges, and Kayden’s Law are among the entities discrediting unscientific alienation theories. Courts are usually deprived of this information unless they have the benefit of a DV expert.
Cottage industry professionals seek to continue using alienation because it is so lucrative. They often try to claim that there is some language in the DSM-V to justify the use of alienation theories. Recently, a psychologist was disciplined by the Oregon Psychology Board after trying this excuse. Evidently, she didn’t know that cottage industry professionals and male supremacist groups lobbied aggressively to include alienation in the DSM-V but it was specifically rejected because there is still no research to support it.
Alienation theories have been a disaster for the reputation of custody courts and the safety of children. Many children have died prematurely and others suffered unbearable pain because courts did not realize alienation theories are bogus. Alienation is a legitimate issue but the theories that have so poisoned the court process are hopelessly biased. We recently wrote an article advocating for a new and fairer approach to alienation. We believe the behavior of both parents should be considered, the court needs to consider if the behavior in question is actually harmful to the children, and the court needs to avoid ASSUMING alienation just because there is a poor relationship between the alleged abuser and the child. In most cases, the father has no personal knowledge of what goes on in the mother’s home but refuses to accept responsibility for the bad relationship and alienation tactics let him get away with it.
Post Traumatic Stress Disorder
Professionals who work with the military have to learn about PTSD because such a high percentage of combat veterans suffer from it. The same is true for DV experts because a high percentage of DV survivors suffer from PTSD. DV experts don’t have the qualifications to diagnose PTSD, but we know the research, consequences and significance of the diagnosis.
PTSD can only be caused in one of two ways. Either from the most horrific kind of incident that often feels life threatening or a series of traumatic events such as are caused by DV or child abuse. This means anyone who causes PTSD in the context of DV custody cases is an unfit parent, PERIOD. PTSD is diagnosed from involuntary responses to triggers associated with the cause of the PTSD. This means it is almost impossible to fake PTSD.
he context in DV custody cases is that most DV tactics are committed in private. Untrained professionals often use the lack of an independent witness as an excuse to move on to other less important issues. This mistake gives abusers an additional unfair advantage. DV experts know to look for other information that makes what he said or she said more likely. Child custody cases are supposed to be decided by the preponderance of the evidence so that a little more evidence on one side should be sufficient. Many other factors make it a little more likely what the victim said is true, but PTSD caused by the alleged abuser makes it almost certain her abuse reports are true and he is unfit because his abuse was so severe. This is particularly helpful because false denials by abusers are common and they already have so many unfair advantages in custody cases.
When a mother or child suffers from PTSD caused by the father, the court should know the abuser is not fit for anything beyond supervised visitation. Ironically, we have seen many mental health professionals who should be qualified to diagnose PTSD failing to recognize the significance of the diagnosis in a DV custody case. The ACE (adverse childhood experiences) Research found that the most harmful part of DV and child abuse is the fear and stress abusers cause. A diagnosis of PTSD tells us the stress that will ruin children’s lives is through the roof and the child must be protected from the abuser who caused it.
Child Sexual Abuse
DV experts have to know about child sexual abuse because of the overlap between DV and child abuse. Fathers who abuse the mother are 30-60% more likely to physically or sexually abuse the child. In some cases, the abuser doesn’t even do this for sexual reasons but rather because it is the best way to hurt the mother. An added bonus for abusers is that courts rarely believe reports of child sexual abuse so if the mother reports sexual abuse there is a good chance it will harm her credibility. While mothers make deliberate false reports less than 2% of the time, when the alleged abuser uses the alienation tactic, custody courts disbelieve 98% of child sexual abuse reports. This means they are getting most of these cases tragically wrong.
There are some mental health professionals who have specialized knowledge of child sexual abuse. This is a large part of their practice and they provide an important service to the court. Just a mental health degree does not provide this expertise and most evaluators relied on by the courts do not have the specialized sexual abuse knowledge needed and frequently disbelieve true reports of abuse.
The context is that as a nation and in the family courts our response to child sexual abuse is nothing short of a catastrophe. The ACE Studies found that in the United States, we allow one-quarter of our children to be sexually abused. This is because our responses are deeply flawed and many professionals don’t want to believe a father or other close relative, or a respected adult would commit such a heinous act. This was true in many child sexual abuse scandals that were permitted to last many years or decades. This includes the Catholic Church, Penn State, Olympic athletes, Boy Scouts, and many others. After the Sandusky conviction at Penn State a reporter asked one of the victims why he didn’t report Sandusky’s abuse sooner. He said he didn’t think he would be believed. This is similarly a problem in family courts.
Our response to child sexual abuse depends on the relationship between the child and her abuser. When the alleged offender is a stranger, the investigation is taken seriously and led by law enforcement. The purpose is to gather evidence in order to bring charges and send him to jail. The police quickly seek to interview the suspect and pressure him to take a lie detector test. The vast majority of sexual abuse is committed by someone the child knows especially for very young children. It is often a father, stepfather, or uncle. In these cases, the investigation is led by a social worker. They first give the parents notice so that a perpetrator has time to destroy any evidence and silence the child. The purpose of the investigation is reunification, so they don’t seek or save evidence. Caseworkers receive some training in child sexual abuse but do not have the specialized training needed. They are also dealing with a heavy caseload which encourages them to take shortcuts. Instead of taking the time needed to develop a trusting relationship with the child, the caseworkers typically ask a few questions like favorite food or color and quickly ask questions about the alleged sexual abuse. If the child doesn’t quickly reveal the most painful and embarrassing episode in their life, the case is quickly closed or unsubstantiated and courts assume the report must be false.
Child sexual abuse is difficult to prove because many assaults do not leave physical evidence or aren’t available by the time the child reveals what someone did to them. Children often do not understand what happened, don’t have the language to accurately describe, are afraid they may be punished if they tell, and may have been threatened by the offender. Children often tell the adult they most trust and tell part of the story to see what the reaction is. When they tell their mother, authorities tend to be very skeptical of mothers based on gender bias and bogus alienation theories. When the child reveals more details later, defense attorneys make it seem as if this undermines the child’s credibility even though it is normal. When children are asked to tell their story multiple times, they often tell in in a rote fashion. This is normal but caseworkers and court professionals who don’t have specialized expertise often treat this tone of voice as proof the report is false. When the child is not protected from the alleged abuser, she is pressured to recant. False recantations are common but are treated as if the original report must be false.
Best practices for child sexual abuse involving children between 3-12 is play therapy. The child meets someone she is likely to like and they are going to play so it is a pleasant experience. The child reveals whatever is going on subconsciously, through their play and artwork. It is impossible for a parent to coach a child how to play with Legos or draw a picture. This eliminates any possibility of coaching which is the standard abuser response. Courts often refuse to allow play therapy or let the abuser block it.
When a mother raises concerns about possible child sexual abuse, there are several likely explanations. The most likely is that the report is true. Other common causes include: the child was exposed to pornography; or witnesses sexual behavior; there was a boundary violation; the evidence is equivocal; or a good faith report turns out to be wrong. The least likely explanation is a deliberate false report. Custody courts they usually only consider if the report is true and require a heavy burden of proof because they don’t want to believe a father would do that to his child. If there is not sufficient evidence, courts often jump to the assumption that it was a deliberate false report and severely punish the mother. This has the effect of discouraging reports and encouraging child sexual abuse.
As DV experts, we cannot make a clinical investigation, but we know the research discussed above that could help courts respond better than from relying on professionals without the needed specialized knowledge. Courts often make the mistakes discussed above that we can help avoid. Is it heartbreaking when a mother has information suggesting the father sexually abused the child but is concerned, she can’t prove it or the court won’t believe it. Her choice is to send the child and risk more abuse or refuse to send the child and risk losing any contact with the child while the father has more opportunities to abuse her. We have to find a better way to protect these precious children.
Strangulation
Strangulation is an all-too common tactic of abusers. There is recent research that demonstrates strangulation is far more dangerous than previously understood. Criminal law tends to assign categories and penalties based on the perceived harm. The problem was that strangulation often leaves no visible injuries and yet brings the victim close to death. Based on recent research every state has now increased the penalties in order to take strangulation more seriously.
Without a DV expert, court professionals are likely to minimize the harm from strangulation. Any abuser who engaged in strangulation is very dangerous and certainly unfit as a parent. Strangulation often causes PTSD because of its close association with potential lethality. An abuser who has committed strangulation is exponentially more likely to commit murder. Many victims refer to strangulation as choking. This is a manifestation of victims minimizing the father’s abuse which is counterintuitive but makes it more likely her reports are true.
Conclusion
Courts are constantly looking for approaches to save time because of the heavy calendars they are dealing with. This is not a neutral process because less information helps abusers hide their harmful tactics. As DV experts, we regularly discuss the research and issues included in this article. This expertise is certainly beneficial to the courts and especially for children who need protection. We find that court professionals are often not used to hearing from DV experts and may not understand what we can provide. We hope this article will encourage courts to take advantage of the knowledge and expertise DV experts can offer.