Quincy District Attorney Bill Delahunt noticed that virtually every inmate at a nearby high security prison had a childhood history that included domestic violence and often sexual abuse. He believed that if he could prevent domestic violence all crime would be reduced and this is exactly what happened. A county that had averaged 5 to 6 DV homicides enjoyed several years with no murders. Detective Mark Wynn in Nashville and City Attorney Casey Gwinn in San Diego developed similar practices that also resulted in a dramatic reduction in DV crimes.
Dr. Vincent Felitti led the first ACE (Adverse Childhood Experiences) Study for the CDC. He found that children exposed to DV, child abuse and other traumas suffer more illnesses and injuries throughout their lives and their life expectancy is reduce. While this news could be depressing, it also provides an opportunity to improve lives and dramatically reduce common scourges of society like cancer, heart disease, stroke, diabetes, asthma, auto-immune diseases, eating and sleeping disorders, AIDS, mental illness, substance abuse, suicide, sexual assault, school drop-out, teen pregnancy and auto accidents. Our national life expectancy would increase substantially when we use effective practices to prevent DV and child abuse.
Those of us who have dealt with so many tragedies because of our tolerance for DV and child abuse would happily spend significant resources to end this abuse, but most public officials have a different priority. Based on the ACE Study, however we now understand that the United States spends $750 billion every year on health costs related to DV. When we add the cost of crime and victims and children who cannot reach their economic potential the annual cost is over one trillion dollars. We can quickly save $500 billion with the proven practices in the Quincy Solution and this will provide an enormous incentive to public officials to support the Quincy Solution. The financial considerations should also help expand our coalition as businesses, charities fighting diseases, labor unions and many others will have strong incentives to join the campaign to prevent DV and child abuse.
Bill Delahunt noticed that victims stopped cooperating when their abusers sought custody. This did not prevent Quincy from reducing crime because at the time it was a rare tactic. Today abusive fathers routinely use the custody tactic to regain control over victims trying to leave them. The custody courts are so anxious to include fathers in children's lives and have developed outdated and discredited practices so that abusers are able to successfully manipulate the courts and gain custody. Accordingly the Quincy Solution must include the custody courts. We do this with the Safe Child Act which says the courts must make the health and safety of children the first priority in all custody and visitation decisions.
We have never known a society where women and children are safe in their homes. This will unlock the potential of these women and children and create a far healthier, happier and wealthier society. DV is not inevitable, but neither is the Quincy Solution. These life-changing benefits are only possible if enough good people join the campaign for the Quincy Solution and take control back from the abusers.
The Broken Custody Court System: Is there Reason for Hope?
by Barry Goldstein
Every day I hear horrific stories of courts using deeply flawed and outdated practices that ruin the lives of protective mothers and their children. I learn about the unspeakable pain and anguish caused by the bias and unwillingness to consider new research that demonstrates the standard practices are hurting children. I hate these stories with a passion while feeling deeply honored that protective mothers trust me enough to share them with me. Surprisingly, I am going to provide information that suggests that there is hope. I think this is important psychologically because we are all inevitably worn down by the catastrophic stories we experience so we need reason to hope. It also may be that in projecting a sense of confidence it will encourage better results and coverage. In fact, in recent months I have started to see signs that maybe something good is happening and this long national nightmare might eventually end.
When we are in the middle of what Dr. Daniel Saunders referred to as “harmful outcome” cases it is hard to consider the context. But ten years ago when Mo Therese Hannah and Liliane Heller Miller started the Battered Mothers Custody Conference, so many of the encouraging events I will discuss in this article could not have been imagined. At that time we had a small group of protective moms delighted to find each other and an even smaller group of professionals wanting to help them. Although the bad outcomes have continued unabated, many encouraging developments should give us some reason to hope.
Coverage in the Media
Garland Waller wrote an important chapter in Domestic Violence, Abuse and Child Custody about the failure of the media to expose the child custody scandal. She explained some of the reasons the media was reluctant to cover these cases, but also said that at some point there would be sufficient awareness of the courts’ failure to protect children that we would reach the “tipping point” and the public would no longer tolerate the mistreatment of battered mothers and their children. Since the publication of the book, we have started to see some important media coverage that is moving us towards the “tipping point.”
The best coverage has been on the Fox station in Los Angeles. They have done a series of stories about the failures of the court system and child protective agency to protect children. I want to specifically mention the work of Kathleen Russell, Tammi Stefano and Connie Valentine in helping to encourage and promote these stories, but I am sure there are others I am missing.
One of the most compelling stories involves a young man named Damon. He revealed his father’s sexual abuse, but as happens all too often in the broken system the courts refused to listen and gave custody to the abuser. His mother, Cindy Dumas has fought hard to protect Damon, but the court disbelieved her and retaliated against her. The Fox station included several news segments about Damon including an interview that was taped at a secret location after he ran away from his father and remained in hiding for over a year. The station also interviewed the father who denied his abuse and could not explain why he would force the teen to stay on the run rather than agree for him to live with his mother. The court refused to respond to why they continued to keep Damon at risk. This story had a relatively happy ending in that Damon learned that if he married, the law would make him emancipated so that the custody order would no longer be valid. At sixteen he was allowed to marry in Nevada and thus earn his freedom from his abusive father.
The series of reports also followed demonstrations at the courthouse by protective mothers who complained they were mistreated and the courts failed to protect their children. Several of the moms were interviewed for the news reports. Significantly, looking at many different cases helped to demonstrate that this is a widespread problem and not based on an unusual mistake.
One of the most revealing pieces involved an interview with former Judge DeAnn Salcido. She explained that as part of their judicial trainings, a senior judge told them to be skeptical of mother’s abuse allegations. This helps to explain why so many true allegations of domestic violence and child abuse made by mothers are disbelieved. Significantly, many of the gender bias committees appointed by courts around the country have found that men are given more credibility than women and this kind of misinformation certainly contributes to this bias and to court errors. The Saunders’ study found that court professionals without adequate training in domestic violence tended to believe the myth that mothers frequently make deliberately false allegations of abuse. It is truly outrageous that court sponsored trainings would include statements by judges encouraging other judges to use biased beliefs that put children in danger.
This series of stories is ongoing and has created a powerful response. I think the station has found that as they investigated mothers’ complaints, the complaints are reliable and the courts are routinely placing children at risk. This can only encourage more stories on Fox and other media outlets. FoxLA is to be commended for helping to expose a scandal that has destroyed so many children’s lives and undermined the work to prevent domestic violence.
The Dr. Phil program provided two programs that helped expose the crisis in the custody court system to a national audience. Dr. Phil promised to follow-up to help create the needed changes but thus far this has not happened. The show featured several victims of the court system including Katie Tagle who had pleaded with the judge to protect her nine-month old baby, Wyatt. As would be suggested by following the judicial training in California to disbelieve mothers, the judge repeatedly said he thought Ms. Tagle was lying when she said the father threatened to kill their baby. The father used the access provided by the court to murder Wyatt and himself. Kathleen Russell was instrumental in creating these shows and appeared on the first one.
Two heartbreaking tragedies in the Washington, D.C. area and effective advocacy work by Eileen King led to some really valuable coverage in the Washington Post. In one case, Dr. Amy Castillo sought to protect her three children from their abusive father. Right before appearing in court on her application for a protective order she had marital relations with her husband. The judge learned of this and assumed this meant the father could not be too dangerous. This was a good illustration of the problem of relying on court professionals who do not understand domestic violence dynamics and so never considered it might not have been safe for the mother to refuse the father’s sexual demands. The father used the access provided by the court to murder the children.
Joaquin Rams had a long history of dangerous criminal activity and was suspected in at least two other murders. As a result he was initially limited to supervised visitation. We have seen repeatedly that courts create an urgency to restore normal visitation to fathers even in the face of serious safety risks. The judge had little experience in domestic relations cases and openly stated that he did not like responding to these cases. He decided to give the father unsupervised visits over the objections of the mother. This decision led to the death of Prince McLeod Rams before he could reach his second birthday. The father is in jail awaiting trial for murder.
The disparity in how supervised visitation is handled between mothers and fathers is illustrated by the case of Natalie Khawam. This was a case that was in the news after her twin sister, Jill Kelly filed a complaint against the woman who had an affair with General Petraeus. General Allen and General Petraeus sent letters to the judge accurately describing what a good mother Ms. Khawam is. The mother always took good care of the child and is the primary attachment figure. This means that continuing supervised visits increases the child’s risk for depression, low self-esteem and suicide when older. She was limited to supervised visits based on the court’s failure to provide a hearing for the evidence of domestic violence, evaluation by a notorious psychologist who is part of the cottage industry supporting abusive fathers and claims of alienation. In other words there were no issues related to the safety of the child. Nevertheless the courts that couldn’t wait to resume visitation with a dangerous father are willing to delay years before resuming normal visitation with a safe mother.
These and other cases created an interest by the Washington Post about the custody court system. Eileen King cultivated a relationship with an editor on the editorial board and provided research and other information. This led to a meeting between the Washington Post Editorial Board and a small group of domestic violence experts. We provided information about the Rams case and the context of the problem. On the Saturday of the Battered Mothers Custody Conference we were excited to see a Washington Post editorial supporting the conference.
One of the highlights of the Battered Mothers’ Custody Conference was the presentation of awards to Els Lucas, the attorney who so ably represented Holly Collins and helped her win asylum. The Kingdom of the Netherlands also received an award and the Dutch Embassy put out a press release about the awards ceremony that drew more attention to the court system’s failure to protect children. Quenby Wilcox also attended the conference and received plenty of material for her newsletter that responds to the custody issue as an international problem. Claire O’Toole was also at the conference and has been writing for the Washington Times.com including a three part article about Damon.
Cara Tabachnick wrote an important article for The Crime Report that discussed the problem of abusive fathers in contested custody cases killing their children. A shorter version of the article appeared in the Daily Beast. She followed up with a report about the judge in the Katie Tagle case who lost re-election because of his failure to protect Baby Wyatt.
Garland Waller produced a brilliant documentary film about the Holly Collins story entitled No Way Out But One. The film has won numerous awards, played at several conferences and film festivals and on television. It is available on DVD and can be used to help the public become more aware of the child custody scandal. Indeed it is a dramatic way to discuss these issues.
There have been other stories, particularly about individual cases and tragedies. I am aware of a few other potential stories and investigations that I cannot discuss at this time but have the potential to make a big difference. Each story has the potential of getting us closer to the tipping point and forcing court administrators to do out of embarrassment what they should be doing out of concern for the safety of children.
Compelling Scientific Research
One of the many causes for the widespread tragedy in the courts’ response to domestic violence custody cases was that there was no research available when domestic violence first became a public issue and the courts had to create a process for responding. This led to the use of popular assumptions that domestic violence was caused by mental illness, substance abuse and the actions of the victim. Courts turned to mental health professionals for advice. They are experts in mental illness and psychology, but not domestic violence. When scientific research became available which demonstrated the original assumptions were wrong, the courts never modified their approach or required experts to reference valid research to support their beliefs. This has led to evaluations that are completely subjective and tell us more about the beliefs and biases of the evaluator than the circumstances in the family. Many protective mothers have been pathologized because the evaluators did not know how to recognize or investigate domestic violence allegations. These mistakes have been compounded by the development of a cottage industry of lawyers and psychologists who learned they could make a large income by supporting approaches that favor abusive fathers. This is because most contested custody involves domestic violence and the abusers usually control the family finances as part of their controlling tactics. The courts have treated these unqualified and biased professionals as if they were neutral and treat their misinformation as if it were accurate thus poisoning still other cases.
In April of 2012, the U. S. Department of Justice released a groundbreaking study by Dr. Daniel Saunders. Since then, and even before, I have been repeatedly referencing this study for two important reasons. The findings by Dr. Saunders are incompatible with assumptions that the court system’s response to domestic violence is working for children. The fact that it comes from the U.S. Justice Department means that it has the authority and neutrality that makes it hard for judges to dismiss this research as they have sometimes sought to do with other studies.
Saunders found that the standard and required training received by judges, lawyers and evaluators does not qualify these professionals to handle domestic violence cases. These professionals need specific training in topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Those professionals without this training tend to believe the myth that mothers frequently make false allegations, support unscientific alienation theories and believe mothers’ attempts to protect their children are actually harmful to the children. These findings are incredibly valuable because most of the bad outcomes we see are created by professionals who focus on exactly this misinformation. Saunders found that these wrong beliefs lead to outcomes that are harmful to children. This is an incredibly powerful argument that is now available for mothers.
The heart of the custody courts’ failure are the extreme cases in which the outcome is that the alleged abuser receives custody and safe, protective mothers who are the primary attachment figures for their children are limited to supervised or no visitation. Saunders found that these, what he calls “harmful outcomes” are always wrong because the harm of separating children from their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was providing. In most of these cases the extreme outcome demonstrates that very flawed practices were used and in many if not most of these cases the opposite outcome would have worked better for children.
The Saunders’ study also found that courts are not imposing supervised visitation on alleged abusers frequently enough. It found that shared parenting is being used much too often and that abusers use the exchanges to harass and abuse their ex-partners and the control provided in decision making to prevent decisions that would benefit the children. The study also supported mothers’ concerns about the harm caused by professionals who are part of the cottage industry that has a financial incentive to support abusive fathers. Significantly Saunders also found that domestic violence advocates have better training and expertise than any of the court professionals on the specific topics most needed in order to understand domestic violence cases.
My book that I co-edited with Dr. Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY did not contain much new research. What it did was put together all the important research related to domestic violence custody cases together in one place so that it would be convenient for protective mothers and court professionals. The book provided recommendation from the leading experts in the field and encouraged the use of a multi-disciplinary approach with a focus on current scientific research. The fact that the Saunders’ study cited our book repeatedly should make it difficult for courts to challenge the authority of the information in the book. The book is particularly helpful in challenging evaluations and the use of psychological tests that were not created for the populations seen in family courts. Dan Saunders cited several of the chapters in our book which confirms it is authoritative and neutral.
FROM MADNESS TO MUTINY, a book about sexual abuse custody cases by Dr. Amy Neustein and Michael Lesher was based on a review of over 1000 child sex abuse cases. It establishes the frequency that child protective agencies and courts fail to protect children and routinely use flawed and biased practices. The authors found that in 85% of custody cases with allegations of child sexual abuse the alleged abuser was given custody. This means the faulty practices in custody courts are responsible for sending many children to live with their rapists.
In 2012, a new edition of THE BATTERER AS PARENT by Lundy Bancroft, Dr. Jay Silverman and Daniel Ritchie was published. Their findings and recommendations include that all batterers engage in harmful parenting practices, evaluators who do not work for a domestic violence agency should consult with someone who does and the abuser should pay for all costs related to his abuse including legal fees. Most significantly they recommend that in domestic violence cases the arrangement that works best for children is custody for the safe or safer parent and initially supervised visitation for the abuser. Significantly the Saunders’ study found courts are not limiting alleged abusers to supervised visitation as often as they should. Saunders also cited the original Batterer as Parent repeatedly.
My new book, co-written by Elizabeth Liu, REPRESENTING THE DOMESTIC VIOLENCE SURVIVOR puts this research together and encourages lawyers to use current research and a multi-disciplinary approach to present the strongest possible cases. The research discussed in this article is discussed extensively. Attorneys are advised to inform judges that there is now a substantial body of research that demonstrates many of the standard practices used by courts in domestic violence cases are working poorly for children. They should then ask the court to be open to hearing evidence about this research. We are hopeful that as more lawyers read the book and start presenting the right information to the courts that it will gradually change the system as court professionals become more familiar with valid scientific research.
I recently wrote an article about the health impact on children of witnessing domestic violence. I hope that my efforts will encourage lawyers and protective moms to present this information in court. It seems to me that an understanding that exposure to the father’s abuse will cause children to be sicker the rest of their lives and likely have shorter lives demands that courts rethink their standard practices that minimize and fail to recognize domestic violence. These failed practices cannot be in the best interests of the children given what we know about the health effects. The point is strengthened by recommendations in the Saunders’ study that court professionals need training about the impact of domestic violence on children.
One of the great things about the research mentioned in this article and other valid scientific research is that it reinforces each other in many ways because it speaks the truth. Courts had gotten into the practice of relying on evaluators, believing they were providing current research and then failing to notice or challenge the credibility of evaluators who could not cite valid research to support their recommendations and indeed could not answer questions about this research. We need to understand that when an evaluator says the opinion is based on clinical experience, which sounds so impressive, it really means it is just the evaluator’s personal and subjective opinion based on personal beliefs, biases and financial interests. An increased use of good research can only improve court outcomes.
United States Department of Justice
The first thing I was told during my initial meeting with staff from OVW (Office on Violence Against Women) was they had my book (the one co-edited with Mo Hannah) on their desk and were working with it. Imagine how different the court system would be if they could say the same thing. The people I have spoken with from OVW and other parts of the Justice Department get it. We don’t have to tell them that PAS is bogus, the courts frequently send children to live with abusers or that most contested custody are really domestic violence cases. They already know this. It is wonderful to have allies who have the credibility and resources to make a difference.
So why don’t we notice a difference in the outcomes of the horrendous cases we keep seeing? Under our federal system, child custody is specifically left to the states and indeed there is federal case law that limits the ability of federal courts to redress the common constitutional violations protective mothers experience in custody cases. This means the Justice Department must work indirectly to try to influence the needed reforms.
March 22, 2011 was a particularly exciting day. OVW had planned a roundtable discussion about child custody for its staff, but the enormous interest in the program led to it being expanded so that the program was available to the entire Justice Department, HHS and representatives of Vice President Biden and President Obama were also present. Non-government workers from organizations like the ABA, National Council of Juvenile and Family Court Judges and other interested groups also came to hear the presentations. The morning program featured six protective mothers and a brave teen who had been caught in the broken court system. In the afternoon I was privileged to be included among a group of twelve national experts many of whom are frequent presenters at the Battered Mothers Conference. As the only man on the panel, I joked that I was the leader of the male caucus.
The morning session had everyone in tears as we heard the heartrending stories of the unspeakable cruelty inflicted by abusive fathers with the assistance of custody courts that fail to recognize, believe or respond effectively to true allegations of abuse. These stories were perfect illustrations for the presentations in the afternoon in which we shared our experience and current research to explain why courts so frequently fail to protect children and offered recommendations for needed reforms.
Although the federal government can’t force courts to create the changes necessary to protect children, there are things it can do to help. The Saunders’ study and other research it funds can be used to help inform courts about the impact of their faulty practices. OVW recently offered grants to courts interested in implementing better practices in domestic violence cases. I was especially pleased to see that the notices included findings from the roundtable discussions. OVW has supported grants to good organizations like DV-LEAP and the Leadership Council for training, research and other assistance. We would also like to see the Justice Department withhold funds from courts and other institutions that continue to use harmful and faulty practices such as PAS and the reliance on biased and inadequately trained professionals.
I am also aware of other high level meetings with domestic violence experts I absolutely trust. Hopefully these will lead to more actions in support of protective mothers. We have also encouraged activities such as a White House Conference that would encourage the media to cover the custody court failures. For protective moms and their children, the effects of these hopeful events do not come soon enough, but it does provide hope that reforms are on the way.
The Rejection of PAS
Parental Alienation Syndrome is a bogus theory concocted by Richard Gardner to help him and other professionals who are part of the cottage industry supporting abusive fathers to obtain large incomes at the expense of the well-being of children. There continues to be ever more research that debunks the theory and demonstrates the enormous harm it has caused.
PAS was never approved by any recognized professional organization. It was never included in the DSM which is the book that includes all the valid and recognized mental health conditions. Despite intense lobbying by abuser groups and the cottage industry, it was again rejected by the American Psychiatric Association which refused to include PAS in the DSM-V because there is no valid research supporting it. I realize that not many court professionals follow current research and decisions like this, but attorneys for protective mothers can bring this to the courts’ attention which can only serve to further undermine its reputation.
Anecdotal Information about Ongoing Custody Cases
When we see so many harmful outcomes in custody cases it is easy to get discouraged and to assume protective mothers cannot win. That is why it is so wonderful when we hear of successful outcomes. Recently I have noticed that there seems to be more good outcomes. Some moms have told me that they cited Saunders or one of my books and the judge seemed to listen and protected the children. I have started to see more judges open to listening to the research and qualifying domestic violence experts.
It could be that I am hearing about cases that are the exceptions. Certainly this is not scientific proof, but it seems like some of the favorable events might be starting to penetrate the court system. I would like to think that the courts are in the process of transitioning from the old failed practices to new approaches based on current scientific research that are better able to focus on the well-being of children.
It is hard to be optimistic when we continue to see so many bad outcomes and courts remain defensive about correcting past mistakes. Nevertheless, it is clear that the many positive signs discussed in this article are reason to hope that we are starting to make a little bit of progress. The research is compelling and any fair consideration of the research and evidence would result in drastically different outcomes. The increased media coverage and role of the Justice Department may be nudging the courts in the right direction.
I hope protective mothers and their attorneys will continue the trend of offering genuine expert witnesses and submitting the research that is so supportive of protective mothers’ cases. At the same time we must be vigilant for the next set of abuser tactics that will be implemented if they sense they are losing the control and privilege the custody courts have been providing. I hope that our children will one day be astonished that there once was a period when the custody courts were actually supporting abusers and criminals.
Safe Child Act
DV CASES REQUIRE DV EXPERTS: DUH!
By Barry Goldstein
I can understand why the court system did not immediately seek to learn from and rely on domestic violence experts when domestic violence first became a public issue in the mid to late 1970s. There was no research available and few domestic violence advocates. A popular assumption and misconception was that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led some people, including court professionals to treat mental health professionals as if they were the experts in domestic violence.
I do not understand how courts still do not require the use of domestic violence experts in cases involving allegations or evidence of domestic violence. We now have a substantial body of specialized domestic violence research that establishes the courts are getting a very high percentage of domestic violence custody cases wrong and often spectacularly wrong because of the standard use of flawed practices. These mistaken practices cause even good judges to regularly make bad decisions. Although mothers involved in contested custody cases make deliberately false allegations only one or two percent of the time, fathers receive custody between 70 and 83% of the time. In other words a large majority of abusers who seek custody are successful.
The highest priority in deciding custody has to be the child’s safety as without safety nothing else matters. In a domestic violence case, this should require a safety or risk assessment. Instead, custody courts regularly order evaluations. Not only do these evaluations fail to conduct risk assessments but few evaluators even know what behaviors are associated with higher levels of lethality. We virtually never see an evaluation report in which these vital issues are even discussed and when evaluators are asked about abusive behaviors they are rarely aware of the risks demonstrated. Ignorant of fundamental safety issues, evaluators instead focus on less important issues.
Evaluators are generally trained in psychology of psychiatry, but not domestic violence. Even if they have received a few hours of training in domestic violence and have been willing to listen (many evaluators are hostile to this training), at most it gives them some general awareness of the subject, but not expertise. That is why evaluators rarely provide the courts with information about lethality assessments, domestic violence dynamics or current scientific research. It is why they don’t know what to look for to recognize domestic violence and often mistakenly assume the danger is diminished with the end of the relationship. Especially important is their failure to understand and explain to the courts the harm of domestic violence to children.
Caseworkers at child protective agencies are often social workers and usually have more special training about domestic violence than the psychologists who serve as evaluators. Many communities have developed practices in which child protective agencies and domestic violence agencies work together on domestic violence cases. They cross-train each other’s staffs and when a possible domestic violence case needs to be investigated the caseworkers will consult domestic violence advocates and sometimes take them to the home. This practice has been shown to benefit children because it gives caseworkers a better chance to recognize when the father has engaged in domestic violence tactics and therefore create arrangements that work best for children. This should be considered best practices.
Ethical practices for psychologists and psychiatrists require these professionals to consult with experts in areas they don’t have expertise in that impact cases they are working on. Unfortunately these ethical considerations are aspirational so the routine failure of evaluators to use these ethical practices does not result in disciplinary proceedings. They instead result in ruining children’s lives when evaluators fail to recognize domestic violence and protect children from very real dangers. THE BATTERER AS PARENT, which is one of the leading authorities on domestic violence and custody, makes a similar recommendation. Clearly a practice that works so well for caseworkers who generally have more training is even more important for evaluators to use.
Expertise in Safety Issues
Fundamental to the work of domestic violence advocates is the ability to engage in safety planning with their clients. In order to do this, they need to be able to assess the level of danger presented by the client’s abuser. We can never know that an abuser will not kill or seriously injure his partner. This is particularly true when she has left him because75% of men who kill their partners do so after she has left. There are, however, many behaviors domestic violence experts look closely at because they have been shown to demonstrate a significantly higher level of danger. Among the factors experts look for in assessing lethality are choking, strangling or grabbing her throat, hitting a woman while pregnant, rape or attempted rape, hurting pets, threatening suicide, homicide or kidnapping, substance abuse, mental illness, refusal to obey laws or court orders, availability of guns and a belief she has no right to leave.
With rare exceptions, evaluators and other court professionals do not have this fundamental information and do not apply it to the cases they are working on. When we review cases in which courts disbelieved the mothers’ allegations of domestic violence and gave custody to alleged abusers, the evaluators never discussed safety and lethality issues. It is possible, although rare, that a mother could make false claims that some of these safety factors apply to the case. In such cases the evaluator could explain the potential risk if the allegations were true and why the evaluator does not believe the accusation. Instead the evaluator and the court never discuss these vital issues because no one making the decision or helping the court make the decision have the knowledge or training to recognize these safety factors. In other words the unqualified professionals routinely make recommendations affecting the safety of children without ever understanding or considering the risk. Malpractice is the most, generous term I can think of to describe this dereliction of duty. Only a broken system can continue to rely on evaluators and other court professionals in domestic violence cases who have virtually no training or understanding of safety and lethality issues just because there is a long history of making this mistake.
Recognizing Domestic Violence
Domestic violence abusers present many unacceptable risks to children, but the courts cannot protect children if they are unable to recognize the abuser’s pattern of domestic violence tactics. Every year 58,000 children are forced into custody or unprotected visitation with dangerous abusers. Judges make these dangerous mistakes because they are relying on court professionals who do not know how to recognize domestic violence or minimize its significance. They often compound the harm to children by denying them normal access to their mothers by punishing mothers for making abuse allegations the courts assume are false because court professionals failed to understand the significance of the available evidence.
When we seek help with a medical problem, doctors often seek to rule out various possible causes in order to make a diagnosis. Domestic violence experts understand that context is important in recognizing domestic violence, but the psychologists and psychiatrists relied on by the courts are not experts in domestic violence and routinely seek to rule out allegations of domestic violence based upon out of context information that often is not probative.
We have often seen inadequately trained court professionals dismiss valid domestic violence allegations because the mother returned to her abuser, sought a protective order, but failed to follow-through, did not have medical or police records. All of these are common behaviors of battered women for safety and other valid reasons. Another common mistake is for court professionals to observe children interact with their father and when the children do not show fear the professional assumes the father cannot possibly be abusive. The children understand that the father would never hurt them in front of witnesses, particularly someone he is trying to impress. In fact they could be punished later if they showed fear. These are all very common situations so if evaluators or other unqualified court professionals discredit allegations based on non-probative information like this, many valid domestic violence complaints will be denied. This is exactly what is happening in our custody courts.
At the same time court professionals are mistakenly discrediting abuse allegations for the wrong reasons, they are missing important evidence that supports the complaints. Often this is because the professionals are only looking for evidence of physical abuse. When judges lament the difficulty of deciding a he-said-she-said case, they are really referencing their failure to recognize the significance of many pieces of evidence that would have made the case easy to understand. The failure of most court professionals to understand domestic violence dynamics is an important contributor to their inability to recognize valid allegations of abuse.
Domestic violence are tactics men use to maintain power and control over their partners. With a few exceptions, the abusers don’t abuse her in order to gain pleasure from her suffering. They also don’t abuse because they are out of control or she “pushed his buttons.” In many custody cases he “only” hit her once or twice because that was sufficient for his purpose. He can then use the same tone of voice, body language or other reference to his assault and she will be coerced to do what he wants. Unqualified professionals often take the fact he has not hit her in a long time to mean he is now safe. Most abuser tactics are neither physical nor illegal. They are behaviors designed to coerce, intimidate and control their victims. These include tactics to isolate her from friends and family, monitor her behavior, control the finances, and intimidate her such as by threats to go after custody if she leaves him. Emotional and psychological abuse are also part of his pattern of controlling behaviors.
Many court professionals have been misled to believe contested custody cases are “high conflict” cases. They understand this to mean the parties are angry with each other and act out in ways that hurt the children. The actual research demonstrates a large majority of contested cases are actually domestic violence cases. They can’t be settled because the father is willing to hurt the children in order to regain control. Mothers are unwilling to agree to arrangements that harm their children, but are often blamed for not cooperating. We repeatedly see fathers who had little involvement with the children during the relationship suddenly seeking custody when she leaves him as a tactic to force her to return or punish her for leaving. The most dangerous abusers are the ones who believe she has no right to leave. This is why 75% of men who kill their partners do so after she has left. These are the fathers we see in contested custody cases. This is why over the last few years we have documented at least two hundred children murdered by fathers involved in contested custody cases often with the unwitting assistance of the courts. Too often court professionals are so delighted that a father wants to be involved with his children that the court professionals never look at his motivation. In the notorious Shockome case, the father openly admitted telling his wife that he brought her here from Russia so she has no right to leave. He said she would never get away from him. He told the court his motivation for seeking to take the children from their mother, but the judge and evaluator never considered this crucial evidence because they failed to understand its significance. Repeatedly we see cases in which the court removes children from their safe mothers who have been the children’s primary attachment figures and give custody to the fathers in the belief the father would be more likely to promote the mother’s relationship with the children. As soon as the father gains control he destroys that relationship. These mistakes are completely avoidable if court professionals consider the fathers’ motivation.
The Mistake of Minimizing Domestic Violence
While evaluators and other court professionals are generally aware that domestic violence is harmful to children, many place less importance on this issue than it deserves because they are unfamiliar with the research that demonstrates the extent of the harm to children. The problem is compounded because most of these professionals have repeatedly heard only the first half of an important sentence. They have heard children do better with both parents in their lives, but missed the rest of the sentence which is unless one of the parents is abusive.
Fathers who commit domestic violence are significantly more likely to also directly abuse the children. Even if he doesn’t, witnessing domestic violence interferes with children’s ability to reach their developmental milestones and makes them more likely to engage in a wide range of harmful behaviors that make it less likely for children to reach their potential. We often see court professionals pay more attention to the anger and emotion of the mother, “friendly parent” issues, superior income and resources and other similar issues that have not been shown to have long-term effects on children instead of the father’s history of abuse. This mistake is made because of the lack of domestic violence understanding on the part of many of the evaluators and other court professionals relied on by judges.
The Most Common “Mythtake” Custody Courts Make
The new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that evaluators and other court professionals with inadequate domestic violence training were more likely to believe the myth that mothers frequently make false allegations of abuse and as a result make recommendations that work poorly for children. Deliberate false allegations by mothers occurs only one or two percent of the time, but the myth which is encouraged by abuser rights groups and the professionals they support contribute to frequent mistakes by custody courts that dismiss valid complaints about domestic violence and child abuse. Many of the deeply flawed practices such as parental alienation, “friendly parent” and pathologizing mothers are based on this myth. The myth also encourages gender bias and confirmation bias. This is why experts who know the truth and have the training they need are able to make decisions that work best for children.
The Justice Department study also determined that recommendations by social workers and lawyers work better for children than ones by psychologists and psychiatrists. This conclusion goes against conventional wisdom and standard custody court assumptions that professionals with more formal education would be more qualified. The problem is that psychologists and psychiatrists were less likely to use a holistic approach (thus missing the context of domestic violence issues) and more often rely on psychological tests that were not made for the population usually seen in custody cases. These tests encourage the professionals to focus on issues far less important than domestic violence while contributing nothing towards recognizing domestic violence.
The study also found that evaluators tended to pay much too much attention to mothers’ anger and emotions in comparison to how this impacts their parenting ability. This tended to support the use of gender stereotypes and biases. Numerous court sponsored gender bias committees have found widespread gender bias including the frequent practice of blaming mothers for the actions of their abusers. This is exactly what happens when court professionals blame mothers for their anger and emotion instead of fathers for their continuing abuse that causes this anger and emotion.
Especially significant is the DOJ finding that evaluators working for the court or the county make recommendations that work better for children than those of evaluators in private practice. Protective mothers have long complained about a cottage industry of evaluators and GALs that favor abusive fathers. This research confirms the mothers’ complaints and undermines the common court assumption that evaluators and GALs are neutral. The study demonstrates those professionals paid for each case separately do an inferior job. Most contested custody cases are really domestic violence cases and abusive fathers use economic abuse and control as part of their pattern of abuse. This means they control the family finances so court professionals, like Richard Gardner have figured out the best way to make a large income is to support approaches that favor abusers. Thus we often see attorneys representing abusive fathers and GALs who tend to support fathers recommending “fathers’ rights” evaluators. This gives even good judges little chance to recognize the domestic violence in the case.
Ignorance Is Not Neutral: It Favors Abusers
We sometimes hear about a judge refusing to participate in domestic violence training or read current research on the grounds that such information would interfere with his neutrality. More frequently judges refuse to listen to testimony from a domestic violence expert because the judge has been on the bench for many years and so doesn’t need to learn more about domestic violence. Even more commonly we see judges and other court professionals treat domestic violence advocates as biased partisans because “they are always against domestic violence.”
This lack of critical thinking contributes to the widespread mishandling of domestic violence custody cases. Abuser rights groups often argue that when they come to court mothers and fathers should be treated the same. Judges often accept and support such statements because they superficially sound reasonable and never consider the unstated part of the statement “regardless of past parenting.” If courts are working for the best interests of the children, they need to consider that children usually need one parent more than the other. Their primary attachment figure, whether mother or father is far more important to their well- being than the other parent. A non-abusive parent is far more valuable to a child than an abusive one. And yet we often hear judges uncritically repeating the belief that the child needs both parents equally.
Many judges wrongly assume that the mental health professionals working in custody cases have the needed domestic violence expertise or that the couple of hours of required training often obtained by court professionals is sufficient. Many professionals and others do not look at domestic violence as a subject for which specialized training and knowledge is needed. Most people have had some experience with domestic violence as a victim, offender or knowing or working with someone who is. This does not tell them if their experience was typical or unusual and fails to provide context or an understanding of domestic violence dynamics or current scientific research.
The custody court system has been extremely defensive in refusing to adopt needed reforms in the face of multiple confirmations from many varied sources that the present practices are working poorly for the children overseen by custody courts. The Department of Justice study demonstrates the courts frequently use experts without adequate training in domestic violence and this results in the use of myths instead of current scientific research and outcomes that hurt children. In comparision, communities in which child protective agencies consult with domestic violence advocates the resulting arrangements benefit children.
The evaluators who testify in court cannot tell us how their practices and approaches to domestic violence have worked out for the children they have seen because they are making recommendations based on their personal beliefs and biases instead of current scientific research that they are often unfamiliar with. When the evaluators are challenged for their ignorance about this research, courts rarely use this to disqualify or discredit their recommendations.
The research that establishes that 98% of mothers’ domestic violence allegations are honest, but 70-83% of the time the alleged abuser wins custody does not tell us a specific case was wrongly decided, but does demonstrate a large majority of these cases are wrongly decided. Even worse are the sexual abuse cases in which 85% of the cases result in custody for the alleged offender. These cases are more difficult because the mothers usually did not witness the alleged sexual abuse. Some of the concerns could be caused by a child’s sexualized behavior or complaints that might be caused by boundary violations rather than molestation. Nevertheless, the outcomes establish that the courts often send children to live with sexual abusers and punish mothers for good faith reports. In many of these cases the mother was the primary attachment figure so should have received custody even if no sexual abuse occurred.
In many cases in which the custody court decided the father was safe he is later convicted of domestic violence, sexual abuse or kills the mother and/or children. We also see alleged abusers destroy the relationships between mothers and children once they gain control of the children which confirms their purpose in seeking custody was to punish the mother for leaving. The reports of the Courageous Kids who were children sent by custody courts to live with alleged abusers and now describing their experiences after aging out of the court order further confirms the frequency of courts giving custody to abusers.
A chapter written by sociologists Sharon Araji and Rebecca Bosek in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY provides multiple additional confirmations of the frequent mistakes in domestic violence custody cases. They interviewed protective mothers in Alaska and then compared the responses to similar studies in four other states. They found substantial complaints by the mothers of mistreatment by the courts and failure to protect their children. The complaints were supported by the results in the five studies and in a later study by Voices of Women that reviewed reports from mothers in New York City Family Court. These were not random samples and courts might argue the mothers were not objective. Drs. Araji and Bosek covered this potential concern by comparing the mothers’ complaints with other scientific research. The research confirmed what the mothers were saying. This is significant because it confirms the research that demonstrates mothers’ complaints are reliable and confirms the problems cited concerning the courts’ response to domestic violence cases are valid.
Domestic violence advocates constitute the only profession that works full time on domestic violence issues. The widespread mistake by many court professionals to treat them as if they are biased or partisan is based upon a lack of critical thinking. If courts needed to respond to a rash of arson fires, they would seek help from the experts which would be the firefighting community. The firefighters would be treated as the experts they are even if they had no advanced degrees or even a college degree. Through training and experience firefighters know best how to recognize arson, prevent and respond to arson. There are three important differences between arson and domestic violence crimes. One is that arson has always been a crime so there is no history of society tolerating or encouraging arson. If a landlord were particularly cruel or dishonest no one would say the arsonist was justified in burning down his building. The second is that most firefighters are men and in our still sexist society people pay more attention to what men say and treat it as having more value. Finally there are no arsonist’s rights groups that can lobby to minimize or justify their crimes.
There was a time when society had not reached a consensus about domestic violence, but those days are past. Every state has made a variety of domestic violence acts crimes and every state has ordered courts to take domestic violence seriously in custody cases based on research that establishes the harm to children. Domestic violence advocates understand the dynamics of intimate partner abuse and how to recognize the pattern of abuse. This is an area that the court professionals repeatedly miss because they don’t have the training and often don’t even realize they are missing crucial information. Advocates have no desire or reason to want false allegations to succeed and in fact this would make their job more difficult. Their goal is to keep victims safe and prevent domestic violence. This coincides with the laws and policies in every state. Statements and practices that minimize the role of domestic violence advocates or treat them as if they were partisan should be viewed not just as wrong, but a demonstration of gender bias.
Stare decisis is a fundamental legal principle created to prevent the need to relitigate the same issues over and over. We have every reason to respect this principle, but it has been misused in domestic violence cases. The assumption is that once a court makes a decision (after any appeals), we must assume the decision is correct. Unfortunately the assumption that the decisions were correct has discouraged court officials from investigating how their decisions have worked out. Judge Sol Gothard wrote, “If the court system had commissioned research to determine how the present practices are working, the result would be the information contained in Domestic Violence, Abuse and Child Custody. The research findings demonstrate court practices are outdated and their confidence misplaced.” In reality, these decisions are predictions that children would do better living with one parent than the other. It is appropriate for courts to study how these predictions have worked out just as it is proper to reconsider past decisions based on new research and information.
When allegations or evidence of domestic violence are part of a custody case, a court must consider current scientific research about domestic violence and learn from the knowledge and experience of domestic violence advocates or other experts. Hopefully it won’t be long until we are shaking our heads and wondering how it could have taken so long to appreciate what should be obvious. A custody court that refuses to listen to a domestic violence expert is demonstrating its bias and committing malpractice. The failure to consider domestic violence research and expertise should be grounds for reversal. The flawed and outdated practices that have ruined too many children’s lives have already been tolerated for far too long.