GOLDSTEIN & YORK

Article by Barry Goldstein & Veronica York

We received a free dinner at Holland America’s Italian restaurant as part of our package for our last cruise. I did not like the menu choices, so a few days before our reservation I spoke to the Maitre d. I asked if it was possible for me to have chicken marsala. They checked with the chef and were very accommodating. I looked forward to my chicken marsala as we were seated at our table. With a smile, the waiter served me chicken masala. They had used a spicy Indian sauce instead of the traditional Italian sauce I expected. An R makes all the difference in the world. We laugh about the mistake now but it was very disappointing at the time. It was a mistake no real Italian restaurant would even consider. The ship probably used experts in Italian cooking to design the menu and teach the staff to prepare it, but obviously no one there understood the fundamental nature of Italian cooking.

Domestic violence is a specialized area of knowledge. This is why the Saunders study recommends a multi-disciplinary approach that includes a DV expert as part of best practices. We have repeatedly seen custody courts make decisions, assumptions, and approaches that no DV advocate would ever consider. Often the court professionals are just trying to save time and don’t realize the mistakes make it harder to recognize abuse which puts children in danger.

Central to the harm custody courts frequently cause in DV cases is the failure to understand the fundamental nature of the DV cases they are called upon to handle. Domestic violence cases are routinely called and assumed to be “high conflict” cases. Part of the problem is that courts do not make a distinction between the large majority of cases between two safe parents and DV cases. They assume in both types of cases that the parents are angry based on whatever caused the end of the relationship and act out in ways that harm the children. In DV cases, this creates a false equivalency between a safe, protective mother who is the primary attachment figure and the abusive father she is trying to escape from.

In most DV custody cases, and virtually all the cases we see as expert witnesses, the same pattern keeps repeating. The mother is seeking to escape the father after a long pattern or coercive and controlling tactics. She is doing this to protect her children. The father believes she has no right to leave and uses the standard abuser tactic of seeking custody to regain control. Recent research makes the connection between the success of abusive fathers in manipulating courts to regain control and a huge increase in DV homicide at a time when most other murders are down.

In most of our cases, we find a common context. During the relationship, the father either wanted or demanded the mother provide most of the childcare. In any other type of court this would correctly be understood as an admission by the father that the mother is a good parent. Otherwise, he would have sought other arrangements. When she tries to escape his abuse, the father demands custody or shared parenting (as a first step) and claims the mother is SUDDENLY unfit. Usually, they claim she is crazy and/or alienating. The word suddenly is helpful in understanding the case because until she tried to escape, he impliedly admitted she was a good mother. Courts don’t think to consider what caused this sudden change. Did she have some accident where she hit her head? What are the chances she suddenly became unfit because the relationship ended and she reported his abuse. In the real world, the answer is close to zero, but in custody courts that create a false equivalency with high conflict approaches, do not require experts to have DV expertise (as the ship didn’t require Italian cooking expertise), have failed to address gender bias, use a biased unscientific alienation theory but not the best research that could help protect children, courts in many cases make a finding that almost never occurs in real life.

Courts cannot assume that every DV case involves a father seeking to use the court to regain control and punish his victim, but they also should not assume it is high conflict with both parties contributing to the conflict. DV 101 would warn courts to never blame the victim and that is exactly what high conflict approaches do and encourage. At the start of the case, the court immediately is demanding a relatively equal division of parenting, co-parenting and cooperation (between victim and abuser). If mothers object because of fear for themselves and their children, they are blamed for being uncooperative instead of the father being blamed for causing that fear. This is a common example of the gender bias courts have been slow to respond to.

Recognizing DV is particularly difficult for professionals without DV expertise because most DV is committed in private. This means there is no independent witness and at least some court professionals assume that “he-said-she-said” disputes cannot be determined. They quickly move to less important issues they are more comfortable with. Many professionals refuse to make a finding of abuse without a criminal conviction or child protective finding that is rarely available in contested cases.

Understanding the fundamental nature of DV custody cases offers many additional opportunities to recognize abuse. Instead of assuming the father is acting out of love for the child, courts should look at the available evidence to compare that hypothesis with the more likely explanation that he is seeking to regain control and punish the mother.

The standard of proof is supposed to be preponderance of the evidence. The mother is reporting the father’s abuse and the father is denying it. The Saunders Study, which should be part of standard practice in DV custody cases found most court professionals do not have the specific DV knowledge needed, but also provides guidance for how to screen for DV. The court should be looking for information that makes what the father said or the mother said more likely to be true. The fact the father always wanted the mother to provide most of the child care supports the mother’s position especially if the father claims the mother is suddenly unfit without any proof. Such false claims should undermine the father’s credibility and are what alienation really looks like.

Sometimes the mother told friends or family about the father’s abuse or her fear at a time she was still trying to maintain the relationship. This isn’t absolute proof but does make her later reports more credible. Did the father engage in controlling tactics during the relationship and since? Does he have male supremacist beliefs such as an interest in pornography and insistence the mother do all or most of what he views as “women’s work.” Non-abusive men could use pornography and expect their partner to do the women’s work, but it makes it more likely the mother’s report is true. Did the father demand control of the couple’s finances, and has that continued after separation? A non-abuser might take the lead in financial issues but again it’s a factor that supports the mother’s reports. This is even more convincing if the father grabbed more than his share of the couple’s assets, refused to pay child support or expenses until there was a court order, or is often late with payments after a court order. This is especially true if the father has substantial financial resources. Courts are used to parties fighting over money, but child custody is different because when the father takes money the mother should have, he is hurting the children because that money would be available for them. Similarly, if he engages in unnecessary litigation, it forces the mother to expend funds that could have been used for the children. Abusers often threaten to bankrupt the mother if she dares to leave.

If the father is acting out of love for the children, he would avoid actions that are harmful to the children. Depriving children of financial resources is just one example. Does he prevent them from getting needed services. Preventing or undermining therapy is particularly revealing because Saunders found abusive fathers seek to prevent therapy because they are afraid the child would reveal his abuse. Does the father support the child’s socialization and extracurricular activities? Does he block or interfere with the mother’s calls with the children? Is he trying to deny the children a normal relationship with their primary attachment figure which would increase their risk of depression, low self-esteem and suicide? Is he doing things to put added pressure on the mother? It is impossible for a DV victim to hide her fear and stress from the children so when the father harms the mother, he is hurting the children he claims to love. This is particularly true when it is part of a larger pattern of coercive and controlling tactics. This is why it is important for courts to consider the questions which parent is afraid of the other. Abusers sometimes claim they are afraid but it is more they are afraid she will report his abuse or else they lie about it. Which parent is afraid their partner will kill or physically assault them?

Screening for Domestic Violence

Based on Saunders, we use a four-part screening for DV.

1. Avoid Discrediting Reports Based on Non-Probative Factors: Court professionals without the specialized knowledge often discredit true reports of DV based on factors that have no probative value. Victims of DV often leave and then return to their abuser. They may seek a protective order but fail to follow through. They often do not have police or medical reports. Victims often do this for safety and other good reasons. A professional may observe a child interacting with the alleged abuser and the child shows no fear. The professional jumps to the conclusion that this means there is no abuse but the child knows the father wouldn’t hurt her in front of witnesses. This proves there is no alienation rather than no abuse. The most common mistake is a professional will treat the father’s public behavior as if it was probative of his private behavior. Victims and DV advocates know abusers act very differently in private.
2. Which Parent is Afraid of the Other: Abusers may be afraid she will report his abuse and some abusers pretend to be afraid and might even produce tears. Actual victims are afraid their abuser will kill or seriously injure them. We can usually tell this from the behavior of the parents. The relative size and strength of the parties and ownership of weapons is another helpful factor.
3. What is the Alleged Abusers’ Motive: The question courts must explore is whether the father is seeking custody to regain power and control or out of love for the child. If he is acting out of love for the child, he would not engage in tactics that are likely to hurt the child. Is the father trying to pressure the mother to return to the relationship? It might appear romantic but if the father demands visitation and instead uses the time to try to resume the relationship with the mother, this is significant. The court should also consider if the father gratuitously seeks to harm the mother.
4. Pattern of Abuse: Most DV is neither physical nor illegal. An abuser is likely to commit hundreds or thousands of DV acts (most of which are forgotten) before he engages in anything physical or illegal. Some abusers limit themselves to non-physical coercive control? This means courts should not minimize coercive and controlling tactics. If the father has engaged in physical abuse, DV experts will immediately recognize he must have committed many other tactics before getting physical. Similarly, DV is one of the most underreported crimes so a first report or arrest does not equal a first offense. The pattern of abuse is a list not of incidents, but of tactics the alleged abuser committed during the relationship and since. The since is important because it demonstrates he has not changed. Including all the tactics gives the court much more evidence available to confirm the report.

Avoiding Mistakes DV Advocates Would Never Make

DV is a specialized area of knowledge and custody courts routinely make basic mistakes that undermine their ability to recognize true reports of abuse. This is the opposite of erring on the side of protecting children.

1. Just because he hurts the mother doesn’t mean he would hurt the child. The research tells us this assumption is wrong. When a father hurts the mother, he is hurting the child and fathers who assault mothers are 30-60% more likely to physically or sexually assault the child. We are particularly emotional about this mistake because we know mothers whose children were murdered by the abusive father after the judge made this mistake.
2. Earlier or older incidents of abuse don’t matter. Courts favor this approach to save time dealing with heavy caseloads. There may be a legal reason where the court made a finding after an earlier hearing. ACE tells us it is the fear and stress abusers cause that create most of the harm. Newer incidents of abuse combine with older incidents to increase the stress. The newer incidents combined with earlier incidents may be enough to prove abuse when previously the court thought there wasn’t enough evidence. The earlier abuse may be the cause of the child’s reluctance to see the abuser but without considering the earlier abuse, the court is likely to jump to a false assumption of alienation.
3. The lack of criminal or child protective findings of abuse prove any reports must be false. DV and child abuse are usually committed in private which makes it harder to confirm true reports. A criminal conviction requires proof beyond a reasonable doubt which is far higher than the family court standard of preponderance of the evidence. Holding mothers to a higher standard is a common example of gender bias. Child protective agencies also have a heavy caseload and while the caseworkers receive some training in DV, they do not have the specialized knowledge needed. Many caseworkers assume the court will conduct an investigation and so fail to properly investigate. Some caseworkers do not take reports seriously if a custody case is pending.
4. An alleged abuser’s good public behavior demonstrates his ability to control his behavior and so make reports of DV less likely. Almost all DV abusers control their behavior at the start of the relationship or else there would be no relationship. They control their behavior in public where there could be consequences to the abuser. DV advocates know abusers act very differently in private and court professionals need this same understanding.
5. Evaluators have the needed expertise concerning DV. At the start of the DV movement in the1970s there was no research and the popular assumption was that DV was caused by mental illness or substance abuse. This was because mental illness and substance abuse reduced inhibitions so someone who was abusive would commit more severe and so more memorable DV. Someone who believes it is wrong to abuse their partner will not do so under the influence or from mental illness. The Saunders Study was designed to investigate the DV knowledge of judges, lawyers, and especially evaluators. Saunders found most evaluators, and other court professionals do not have the specific DV knowledge needed. This is why Saunders recommends a multi-disciplinary approach that includes a DV expert because they work full time on DV and have the expertise to recognize abuse. Accordingly, it is a mistake to treat the failure of an evaluator to find DV as determinative.
6. Mothers in DV custody cases frequently make false reports. The Saunders study found that the belief in this myth causes courts to make recommendations and decisions that harm children. The Bala study is the definitive research about false reports in contested custody and found mothers make deliberate false reports less than 2% of the time. Some, if not many court professionals are skeptical of mothers’ reports of abuse based on the myth. Ironically, fathers involved in contested custody are 16 times more likely to make deliberate false reports but rarely face the skepticism used against mothers. This is another example of gender bias.
7. Children harmed by DV would show obvious signs: This assumption was part of the basis for the use of evaluators. While some children exposed to DV act out in obvious ways, many children go into survival mode and may seem to be doing well. The stress will eventually come out in harmful ways. This is another common excuse to disbelieve true reports of abuse.
8. Only physical abuse matters. Most DV is neither physical nor illegal. For decades, DV advocates told us that physical abuse is not the most harmful part of DV. Few people listened because there was no research to support this, the advocates did not have fancy degrees, and they were “just” women. The ACE research confirmed what the advocates had been saying. It is the fear and stress that cause children a lifetime of harm. The finding is further confirmation of the importance of listening to advocates because they are the experts in DV.

Conclusion

There are some judges who have substantial expertise in DV. These judges are happy to hear from DV experts to put the information on the record for the case and because they may learn something new about a subject they are interested in. Other judges believe they have sufficient DV knowledge and shut down DV experts because the judge assumes they already know everything. These judges often make catastrophic mistakes because they make the kind of DV 101 errors discussed in this article. Other judges who recognize they are not experts rely on evaluators who rarely have the DV knowledge they need even if they are experts in mental illness and psychology. We also see judges who are open to new information and appreciate testimony from genuine DV experts.

At this point in our history, courts do not have the benefit of DV experts in most DV cases. This failure increases the influence of mental health experts and common court practices like high conflict. Just as there was no one on our ship with the necessary Italian cooking expertise, most cases are missing the needed DV expertise.

The most common DV question is why did she stay with her abuser. This is the wrong question because it places the burden on the victim. A better question would be why does he abuse the woman he claims to love? An even better question is why does society let him abuse her. Increasingly, the answer to the first question is that she is afraid she will lose her precious children in the broken custody court system.

In many cases women who stay do not survive that decision. Abusive fathers seek custody to regain power and control and punish the mother for leaving. The ease with which abusive fathers can manipulate the family courts makes it harder for victims to escape their abusers. The DV homicide rate went steadily downward for three decades after we enacted initial reforms to make it easier for victims to leave. The present practices make it almost impossible for victims to escape their abusers and is the main reason for a huge increase in DV homicides. Most court professionals do not realize that in most DV custody cases the abusive father is suddenly seeking control of the children to regain control and punish the mother. The most likely motive is almost never even discussed or considered. The consequences are catastrophic for the children and society.