GOLDSTEIN & YORK

Article by Barry Goldstein & Veronica York

No judge wants to hurt children but Family Courts have developed many shortcuts designed to save time but are ruining children’s lives. In the last 16 years, over 1000 children involved in contested custody cases were murdered, mostly by abusive fathers.¹ Every year at least 58,000 children are sent for unprotected visitation with dangerous abusers.² Custody courts disbelieve far more reports of domestic violence (DV) and child abuse than could possibly be false.³ In many cases, practices designed to save judges time make it harder to save children’s lives.

In 2022, Congress passed the reauthorization of the Violence Against Women Act that included Kayden’s Law.⁴ As this chapter is written, five states have passed the state versions of Kayden’s Law.⁵ Kayden Mancuso was just seven-years-old when the judge in her parents’ custody case stated on the record that just because the father hurt the mother doesn’t mean he would hurt the child. This is a false belief many judges and other court professionals use to justify their failure to fully investigate the health and safety of children. The judge used this shortcut to give the father the access he needed to kill Kayden.⁶

[1] Center for Judiial Excellence, “Child Safety First: Preventing Child Homicides During Divorce, Separation and Child Custody Disputes.” Available at Home Page_1 – Justice. Accountability. Integrity. (centerforjudicialexcellence.org)

[2] Silberg, J.L., “How Many Children Are Court‐Ordered Into Unsupervised Visitation With an Abusive Parent After Divorce,” available at http://www.leadershipcouncil.org/1/med/PR3.html

[3] Joan Meier, et.al., “Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations.” (2019). At https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3448062

[4] Kayden’s Law available at Text - H.R.1620 - 117th Congress (2021-2022): Violence Against Women Act Reauthorization Act of 2021 | Congress.gov | Library of Congress

[5] Colorado, California, Utah, Pennsylvania and Tennessee.

[6] Barry Goldstein, “20 Common Mistakes in Evaluations Judges Miss.” 20 Common Mistakes in Evaluations Judges Miss (barrygoldstein.net).

The truth is that when a father hurts the mother, he is also hurting the child. If the child is present it is frightening for the child. The child wonders who will care for her if the mother cannot and if the father might also hurt her. No matter how hard she tries, the mother cannot hide her fear and stress from her children. Both consequences add to the fear and stress in the child that is likely to ruin her life unless she can be effectively protected.⁷ Kayden’s judge and the court system in general could save children’s lives if they took the time to learn about the research available to better understand DV custody cases.

Shortcuts Started on Day 1 of the Court Response to Domestic Violence

The modern movement to prevent DV started in the mid-to-late 1970s. Until that time, DV was considered a private matter and courts generally did not get involved except in the most extreme cases. The DV movement made it a public issue and forced courts to respond in custody and other cases. There was little or no research available at the time and courts had little guidance about best practices.

Popular assumptions at the time were that DV was caused by mental illness or substance abuse. We now know that mental illness and substance abuse reduce inhibitions so if someone is abusive their abuse becomes more severe when they are under the influence. This is why most people believed mental health and substance abuse caused DV. This belief led custody courts to turn to mental health professionals as if they were the experts in DV.

[7] Vincent J. Felitti, Robert F. Anda, D. Nordenberg, D. F. Williamson, AM Spitz, V. Edwards., MP Koss, et al. “The Relationship of Adult Health Status to Childhood Abuse and Household Dysfunction.” American Journal of Preventive Medicine. 1998; 14:245‐258. Available at https://www.ncbi.nlm.nih.gov/pubmed/9635069.

The evaluations often took significant time but it wasn’t court time. Judges did not need to be involved in the preparation of evaluations once the evaluator was appointed. In many cases, then as now, judges unskeptically followed the recommendations. Again, this saved time if not children.

The evaluators would interview the parties, children, collateral witnesses, involved professionals and review any records. The focus of the evaluation was psychological tests. The assumption was they could tell the abuse issues from the mental health of the alleged abuser. They also sought to determine how the children were doing. The expectation was that children exposed to abuse would act out in obvious ways. If these “tests” did not reveal abuse it was safe to assume the reports of DV must be false.

Only a small majority of evaluators even claim to screen for DV. Those who claim to screen for DV do so with the psychological tests that tell us nothing about DV.⁸ Some will look for DV by reviewing public records for arrests, convictions, child protective findings, and court findings.

Looking for arrests and convictions yields a tiny percentage of DV. Most DV is neither physical nor illegal and so is not covered by investigation of law enforcement records. DV is also one of the most underreported crimes. This means the lack of an arrest or conviction does not rule out commission of a DV crime. Conviction requires proof beyond a reasonable doubt which is an especially high standard for behavior almost always committed in private. Prosecutors will not consider bringing charges without overwhelming evidence because they are concerned with their batting average. One of the common examples of gender bias is holding women to a higher standard of proof. This is what courts do when they treat the lack of a criminal conviction as proof the father never abused the mother.

[8] Daniel G. Saunders, Kathleen C. Faller & Richard M. Tolman, Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody‐Visitation Recommendations. (June, 2012). available at  Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations (centerforjudicialexcellence.org)

Child protective agencies are similar to custody courts in that they also face an overwhelming caseload. Caseworkers often seek shortcuts consciously and subconsciously to respond to all their cases. They give notice to the parents before any interviews which gives the abuser time to silence children and destroy evidence. Many caseworkers mistakenly believe that reports made during custody disputes are more likely to be false. Their investigation may be cursory or the report might be completely ignored. Some caseworkers allow themselves to be manipulated by the abuser and others are afraid of an aggressive abuser and so focus on the actions of the more compliant mother. Although caseworkers receive some training about DV, they do not have the specialized knowledge needed. Best practices include consulting with a DV advocate but these best practices are rarely used.⁹ It is common that closed cases later turn out to be true, but evaluators often treat “unfounded” cases as if the reports have been established to be false.

Findings by the court are usually binding on the parties. They should be reliable but may be influenced by the myth mothers frequently make false reports, financial superiority of the abuser that provides better legal assistance and other benefits, inadequate training of court professionals, gender bias, and inadequate time to prove his abuse.

[9] Susan Schecter & Jeffrey L. Edleson, “Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice Recommendations From the National Council of Juvenile and Family Court Judges Family Violence Department, available at http://www.thegreenbook.info/documents/Greenbook.pdf 

Evaluators rarely make a thorough investigation of the DV parts of the case. They tend to focus on other aspects of the case that they are better trained for and more comfortable discussing. They rarely understand that the lack of criminal convictions or child protective findings does not mean reports of DV are false. In some cases, the evaluator will say that they could not determine the truth about DV, but even that approach favors the abuser.

Courts sometimes appoint evaluators who are part of the cottage industry that seeks to make large incomes by promoting approaches that favor abusive fathers. DV is about control, including financial control, which is why the cottage industry developed. This is the worst of all situations for protective mothers because they have an evaluator ignorant about DV issues and biased to favor abusive fathers. A majority of evaluators are trying to be fair but their recommendations are influenced by their lack of specialized expertise in DV issues. Best practices for evaluators would require a multi-disciplinary approach or consultation with a DV advocate.¹⁰ Best practices are rarely employed in DV custody cases.¹¹ At least three government-sponsored studies have found serious problems with evaluations in DV custody cases. Nevertheless, suspect evaluations continue to have enormous influence on custody outcomes even when there is no evaluation in a specific case. Courts continue to use evaluators without specialized DV expertise in order to save the court’s time.

[10] Saunders, et.al. supra, Note 8.

[11] This would include the Saunders Study, a 3-day rountable discussion co-sponsored by the National Council of Juvenile and Family Court Judges and the Office on Violence against Women in the US Justice Department and a Commission appointed by the Governor of New York.

Settling for Harming Children

New attorneys are taught to work with their adversaries to promote settlement of their cases. This is necessary for courts with heavy caseloads. Many cases are just about money so the settlement can divide the disputed amount. In landlord tenant matters, the risk of homelessness is sometimes critical. In criminal cases, a defendant’s freedom is at stake and plea bargains that are necessary for criminal courts to function often allow defendants to limit the accountability for their crimes. In DV custody cases, courts need most cases to settle, but the agreements can literally ruin children’s lives.

Children exposed to DV or child abuse will live shorter and less healthy lives. Their custody cases are often the last chance to save them from the awful consequences of abuse.¹² Most custody cases involve two safe parents so that the outcomes are not as risky. Unfortunately, most custody courts are using the same settlement approaches in abuse cases as they use in safe cases.

Custody courts routinely use high conflict approaches that seek to pressure parents to agree to shared parenting. High conflict assumes that both parents are safe but are angry at each other and act out in ways that hurt the children. Courts immediately demand the parents co-parent and cooperate in making decisions and sharing parenting time. When parents have difficulty co-parenting, courts initially respond with parent coordinators, parenting classes, and Guardians ad litem (GALs). Parents who are viewed as non-cooperative often receive court sanctions that deprive the children of time with the parent.

[12] Barry Goldstein, The Quincy Solution: Stop Domestic Violence and Save $500 Billion. (2014).

Most custody cases fit this model so that it works in cases with two safe parents.¹³ The problem is the 3.8% of cases that require trial and often much more. 75-90% of these cases are really DV cases where an abusive father is seeking custody in order to regain what he believes is his right to control his victim and punish her for leaving.¹⁴ These cases are totally inappropriate for the high conflict model or outcomes that use shared parenting. Forcing the high conflict approach in these cases is extremely harmful for the children and traumatizing to protective mothers and the children.

Shared parenting is never appropriate in DV cases.¹⁵ DV victims, usually mothers are forced to decide if it’s better to accept a bad decision or the father’s punishment for disagreeing. Abusive fathers do not co-parent (except occasionally to manipulate court professionals) but counter-parent. They seek to use decision-making to block anything the mother wants and particularly to prevent or undermine therapy because they are afraid the child will reveal his abuse.¹⁶

High conflict creates a false equivalency between a safe, protective mother who is usually the primary attachment figure and an abusive father. The victim is asked to cooperate with her abuser and punished when that is not possible. This often creates an unbearable dilemma of choosing between protecting the children or obeying the court order. They know violating a court order is likely to expose the children to still more time with the abuser.

[13] Stephanie J. Dallam, “The Parental Alienation Syndrome: Is It Scientific?” in Expose: The Failure of Family Courts to Protect Children From Abuse in Custody Disputes (E. St. Charles & L. Crooks eds., 1999). available at http://leadershipcouncil.org/1/res/dallam/3.html

[14] Peter G. Jaffe, Claire V. Crooks & Samantha E. Poisson, “Common Misconceptions in Addressing Domestic Violence in Child Custody Disputes,” 54 JUV. & Fam. Ct. J. 57 (2003)

[15] Saunders, et.al. supra, Note 8.

[16] id

The purpose of high conflict and shared parenting is to promote settlements as quickly as possible. Courts often start the case with a shared parenting arrangement before determining if there is a history of DV or child abuse. Judges have an incentive to disbelieve or minimize the father’s abuse so they can continue with the preferred co-parenting outcome. This often creates confirmation bias that helps abusive fathers. Abusers tend to be completely unreasonable when it comes to settlements. They have no incentive to accept anything less than a 50-50 division. This leads judges, mediators and GALs to place great pressure on mothers to accept an unworkable shared parenting solution. Victims are often threatened and severely punished if they don’t agree to an arrangement likely to ruin the child’s life.

This author has started many paragraphs discussing a case in which the mother was pressured to accept shared parenting and it resulted in additional problems and harm to the children. Abusers use shared parenting as a first step towards taking complete control and removing the mother from the child’s life. Ordinarily, abusers would have little chance for custody against a mother who is a safe parent and primary attachment figure. Once he is awarded shared parenting, he is treated as equal to the mother and can then create incidents as a tactic to win custody.

The 98% Solution: Maternal Instinct

A mother was making dinner in the kitchen while her five-year-old son was playing in the backyard. All of a sudden, a mountain lion attacked the boy. His mother ran out and punched the lion to protect the child. Certainly, she was afraid but maternal instinct kicked in when it came to protecting her child. It was easy to see the mother was not engaging in alienation because she was protecting the boy from a mountain lion instead of an abusive father.¹⁷

If custody courts always ruled in favor of mothers who raised concerns about DV or child abuse, they would be getting a far higher percentage of cases right. Mothers involved in contested custody make deliberate false reports less than 2% of the time. Fathers in these same cases make deliberate false reports 16 times as often as mothers and make false denials even more frequently.¹⁸ If this sounds hard to believe it is because most contested custody cases are really DV cases and the myth of mothers making false reports has been deliberately promoted by male supremacists and the cottage industry that makes its living helping abusive fathers.

Obviously, courts cannot make custody decisions based on statistics but they can be informed by the research. At the start of a case, the court does not know for sure which parent is telling the truth but it knows mothers’ reports of abuse are almost always true. This means it is proper and necessary to err on the side of safety and avoid initial decisions that are likely to silence the child victim. In the rare case where a mother lied, the court can create make-up time for the father and penalize the mother for lying. If they provide access to the alleged abuser, the child may be permanently silenced or worse killed or seriously injured.

[17] Barry Goldstein, “Nothing Stronger than Maternal Instinct to Protect Her Child.”  Center for Judicial Excellence, (2021) available at Nothing Stronger than Maternal Instinct to Protect Her Child – Center for Judicial Excellence 

[18] Nicholas M .C . Bala et al ., Allegations of Child Abuse in the Context of Parental Separation: A Discussion Paper (Department of Justice, Canada, 2001), available at ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER (2001-FCY-4E) (justice.gc.ca)  

Presently, courts make decisions in similar circumstances but it is based on treating both parents equally and often having much more skepticism of the mother than father based on the big myth instead of good research. Court professionals without the necessary DV knowledge tend instead to focus on the myth mothers frequently make false reports and unscientific alienation theories. This leads to recommendations and decisions that harm children.¹⁹

Parental Alienation Syndrome (PAS) and other related unscientific alienation theories were created by Richard Gardner for the purpose of helping wealthy, abusive fathers take custody from good mothers. Male supremacist groups wanted this tactic in order to have a chance to take custody from their victims. Gardner used this to start the cottage industry of mental health professionals and lawyers who needed an approach to help abusive fathers and earn large incomes. This works because DV is about control including financial control.

PAS and its progeny are biased theories in addition to being unscientific. It focuses on the behavior of residential mothers and deliberately refuses to consider actions of non-residential fathers like failure to pay child support or demanding time with the child when the father is unavailable. PAS was based on the demonstrably false assumption that virtually all reports of abuse must be false. It assumes that if a child dislikes the father, is afraid of him, or doesn’t want to visit, the only possible explanation is alienation.

[19] Saunders, et.al. supra, Note 8.

Unscientific alienation theories have had a powerful and pernicious impact on the courts despite being twice rejected by the American Psychiatric Association because there is no research to support it.²⁰ This author is unaware of any other theory twice rejected by the leading professional association that any other type of court is willing to consider. The success of the cottage industry in peddling their bogus theory is based on the enormous financial resources promoting it, the failure of many mothers’ attorneys to aggressively fight back, and the use of alienation by the courts to save time and avoid a full investigation of the underlying abuse issues.There is such a thing as alienation but it is more likely to be caused by DV, child abuse or other bad parenting. Alienation theories were designed to distract attention from abuse reports. At minimum, best practices require ruling out DV, child abuse or other more likely causes of a bad relationship before alienation is considered. This is actually a practice that would save the court time while better protecting children.There is substantial scientific research about gender bias. Forty states and many court districts have appointed court-sponsored gender bias committees to investigate bias against women. They have found widespread bias against women litigants.²¹ It has been hard to make progress in preventing this bias because gender bias is unintentional, often subconscious, and good people engage in gender bias without realizing it. At the same time, it is hard to discuss the issue because judges and other professionals often react defensively or even with retaliation. Little progress has been made because of the difficulty in discussing it.²² Treating women as if they are less credible than men is a common example of gender bias.²³ The widespread acceptance of the big myth saves courts time but at the expense of the wellbeing of children.

[20] “Good News: APA Rejects Parental Alienation Disorder,” 16 Domestic Violence Rep. 88 (2011).

[21] Molly Dragiewicz, “Gender Bias in the Courts: Implications for Battered Mothers and Their Children” in Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues. (Mo Therese Hannah and Barry Goldstein, eds.) Ch. 5. (2010)

[22] id

[23] id

Effective Screening for Domestic Violence

Judges, lawyers and evaluators need more than generalized training about DV which can mean different things to different people. They need training in screening for DV, risk assessment, post-separation abuse and the impact of DV on children. Most court professionals working on DV custody cases do not have this specific information.²⁴ Obtaining the needed training takes time and effort. Courts have instead used a variety of shortcuts that save time but tend to deny and minimize true reports of abuse.

[24] Saunders, et.al. supra, Note 8. 

At minimum any screening for DV should include at least the four parts listed below. There will be cases in which the DV reports can be confirmed with less information because the evidence easily confirms the presence of DV. Reports of DV should not be dismissed without considering all four parts. Unfortunately, custody courts often disbelieve reports of DV without a full examination of needed information.

1. 1. Avoid Discrediting Reports of DV based on Non-Probative Information:
      This common mistake is committed based on a faulty understanding of DV and an effort to save time. Common examples of non-probative factors used to discredit DV reports include a mother leaving her abuser and then returning; failure to follow through on a protective order; and the lack of police or medical records. These actions are often done for safety and other reasons and do not disprove reports of abuse. Another example is when a professional watches an alleged abuser interact with the child. If the child shows no fear, they assume there is no abuse. The child knows the father won’t hurt them in front of a witness and it is safe to play with someone they still love. This proves there is no alienation but tells us nothing about DV. Untrained court professionals often take a father’s good public behavior as if this is probative of his private behavior. Most abusers are capable of controlling their behavior and do so at the start of the relationship and in public because there would be consequences if they didn’t. It is disappointing to see how many evaluators still make this mistake and judges and lawyers accept the mistake.
   2. Which Parent is Afraid of the Other: The essence of DV is that the abuser uses tactics to coerce and intimidate the victim to do what he wants. This means the victim is likely to be afraid of him. Abusers often claim they are afraid of their victim but they are either lying or afraid she will report his abuse. The victim is afraid their abuser will assault or kill them.
   3. What is the Motive of the Alleged Abuser: In many DV custody cases, the father had limited involvement in caring for the children during the relationship but demands custody or shared parenting as a first step when the mother seeks to end the relationship and reports his abuse. Courts tend to assume any parent is acting out of love for the children but in DV custody cases the abuser is usually using custody to regain what they believe is their right to control the mother and punish her for leaving. Significantly, they often are willing to hurt the children (not necessarily physically) in order to hurt the mother and regain control. Courts cannot assume the father’s motives based on research or statistics but should take the time to review his tactics to determine his actual motives. Courts are used to litigants fighting over money and rarely consider economic abuse even though it is a common DV tactic. Actions that take money from the mother or force her to expend resources to protect the children remove resources that otherwise would be available for the children. This is the kind of action abusive fathers use and loving fathers try to avoid.
   4. The Pattern of Abuse: The best way to recognize DV in a child custody case is to look for the pattern of abuse. This approach emphasizes that most DV is neither physical nor illegal. The pattern focuses on all the different tactics as opposed to incidents the alleged abuser has engaged in. This is helpful in understanding the abuser’s motives. The pattern will include tactics during the relationship and since. The since is important because it confirms he has not changed. The tactics would include physical, verbal, emotional, psychological, isolating, monitoring, stalking, economic, coercive control, litigation, gaslighting, and others designed to pressure the victim to do what the abuser wants. Tactics that are associated with higher risk of lethality should be highlighted. Including all of his tactics makes it easier for court professionals to recognize that he is an abuser, and provides much more evidence to prove DV.

Other Factors in Screening for DV

Virtually all DV is committed in private for obvious reasons. This means there is rarely a neutral witness except for the children. Untrained professionals use this to dismiss true reports because there are “no witnesses” or it is just “he-said-she-said.” This approach has the advantage of saving time but results in preventing courts from recognizing DV. DV experts know to look for information that makes it more likely that what he said or she said is true. Family courts are supposed to use a preponderance of the evidence standard so that a little additional evidence should be sufficient. In this context, gender bias that holds mothers to a higher standard of proof can be devastating.

In many cases, the victims told friends, family, or colleagues about the fathers’ abuse or her fear before there was any litigation. It is possible she was lying even at a time she was still trying to save the relationship but it makes it more likely her reports are true. In some cases, the victim has received services from a DV agency. These organizations are often severely underfunded and they routinely screen potential clients before providing services. This means the experts in the community determined the mother was abused by the father. Courts are used to relying on mental health professionals to determine DV, but the Saunders Study found DV advocates have more of the specific DV knowledge courts need than judges, lawyers or evaluators.²⁵

[25] id

The Kavanaugh Supreme Court confirmation hearing was highly contentious. Many untrained professionals viewed Dr. Christine Blasey Ford as having no proof or else dismissed her claims as “he-said-she-said.” There was actually a compelling piece of evidence that did not receive the attention it deserved. Several years before Kavanaugh was nominated, Dr. Ford had a disagreement with her husband over adding an extra door to her home. They went to a couples’ counselor to discuss the issue. During the sessions, Dr. Ford explained that she was traumatized by an incident when she was a teenager, referring to the attack by Kavanaugh, and that’s why she needed the extra door.²⁶ The chances she made that story up years before the nomination in order to prevent confirmation is very close to zero and so should have been considered compelling evidence.

[26] Robin Pogrebin and Kate Kelly, The Education of Brett Kavanaugh, (2019). 

Just as advocates for veterans need to learn about PTSD in order to help injured soldiers, DV advocates learn about PTSD because so many victims suffer from it. PTSD can only be caused from the most horrific incident or a series of traumatic events such as occurs with DV or child abuse. Someone who suffers from PTSD can still be a good parent but someone who causes PTSD is certain to be an unfit parent. We know this because the level of abuse needed to cause PTSD makes him unfit regardless of his denials or minimizations. PTSD is diagnosed based on the victim’s involuntary response to triggers so it is almost impossible to fake. This is actually a time when a shortcut would be justified because the diagnosis of PTSD caused by the father means the children would not benefit from anything more than supervised visits.

In many DV custody cases the father uses pornography. This is significant because it is based on the belief the main value of women is their beauty, body parts, and having sex. It is also common for abusive fathers to believe they should not do “women’s work” so demand the mother do all the cooking, cleaning and child care. Research about batterer narratives found abusers believe it is wrong for a man to assault a woman but then they say EXCEPT. One common exception is if she is a (insert the slur). The slurs tend to be the most offensive sexist words that often have a literal meaning of a woman having sex outside marriage. Using these slurs towards their partner gives them permission to hurt her and warns the victim she is in danger.²⁷ There are non-abusive men who like pornography but each of these behaviors makes it more likely that the mother’s reports of DV are true because it is based on the same belief system.

Custody courts have used a variety of limitations designed to save time by preventing victims from presenting evidence of abuse. These restrictions have included considering only physical abuse, recent abuse, abuse since an earlier hearing, or forbidding evidence of abuse after a finding denying previous reports. These restrictions are even more problematic based on the ACE Research that it is the fear and stress abusers cause rather than any immediate physical injury that causes most of the harm to children. Earlier or non-physical abuse continues to create the fear and stress that will ruin children’s lives.²⁸ Even if the court previously believed the evidence of DV was insufficient to provide protection, together with the new evidence it may help the court recognize the father’s abuse. DV is more about who the abuser is and the harm he causes than just incidents. Once an abuser commits a physical assault, the victim and children know what he is capable of. Abusers often use other, non-violent tactics as a reminder of what can happen if the victim doesn’t obey. The court system’s difficulty in recognizing DV, particularly without the benefit of the Saunders Study²⁹ make restrictions designed to save time even more problematic.

[27] Molly Dragiewicz, Equality with a Vengeance: Men’s Rights Groups, Battered Women, and Antifeminist Backlash. (2011).

[28] Felitti, et. al. supra, Note 7

[29] Saunders, et. al., supra Note 8.

Context is Critical to Understanding DV

One of the abusers’ most common tactics is to decontextualize an incident. They will often start the story immediately after their aggressive or abusive behavior and focus only on the mother’s reaction. Sometimes they plan to record her response. It takes more time to look for the context but missing the context provides abusers with an unfair advantage.

In most DV custody cases there is a revealing context that is usually not in dispute and yet court professionals rarely consider it. During the relationship the father either wants or demands 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 or else he would have sought other arrangements. When the mother seeks to end the relationship and reports the father’s abuse, abusive fathers routinely respond by seeking custody or shared parenting, by claiming the mother is suddenly unfit, usually based on she’s crazy or alienating. We add the word suddenly because before she tried to escape, he impliedly believed she was a good parent.

What are the chances a mother suddenly becomes unfit because the relationship ended and she reported his abuse. In the real world, the answer is close to zero but in courts that use a high conflict approach, fail to use the research, rely on the wrong professionals for DV cases, are influenced by biased and unscientific alienation theories and seek to resolve even DV cases with shared parenting, this unlikely conclusion is very common.

Many courts seek to save time by arbitrarily limiting the time for each party to present their case. The judges believe this is a neutral decision because the limitation applies to both parties equally. In a DV custody case, the limitation is actually a huge advantage to the abusive father. Context is critical to understanding DV but it takes longer for victims to provide the context than for abusers to just deny the allegations. It also takes longer to present the critical scientific research that courts have been slow to integrate. Without ACE, courts inevitably minimize the harm from abuse and without Saunders they rely on the wrong professionals for a DV case and so disbelieve true reports of abuse. Abusers are happy for courts to rely on the common but outdated practices that continue to favor them.

The context in most DV custody cases is that the father is usually bigger and stronger. The context also includes a long history of thousands of years in which husbands were permitted and encouraged to control their wives, make the decisions, discipline, and assault them. The first law in the United States about what we would now call DV said husbands may not assault their wives—ON SUNDAY. Presumably, any other day such assaults were acceptable. Even though the laws have changed, this history means many people, mostly men believe there are circumstances where it is proper for a man to assault his intimate partner. There was never an equivalent history where wives were allowed to control or assault their husbands. There are certainly individual cases in which a mother assaults or mistreats the father but these tend to be exceptions that are not supported by history or culture. Many court practices create a false equivalency between mothers and fathers. They may speed up the deliberation but miss the context and unfairly favor abusive fathers.

Failure to Create Needed Reforms Based on Updated Research

There was virtually no scientific research about DV when Family Courts first needed to develop practices to respond. It is understandable why the courts developed practices that turned out to be mistaken and harmful to children. In addition, court professionals are experts in practices that help courts run more efficiently. The problem is that as new research became available that demonstrated many of these practices were mistaken, court administrators were reluctant to create the needed reforms.

It is well established that DV is not caused by mental illness or substance abuse but many courts continue to use therapy and substance abuse treatment to respond to DV. They also use anger management when that is rarely the cause of DV. Most abusers are able to control their behavior, but courts continue to use the ability to control behavior in public as if it were probative about complaints of DV and child abuse.

The first ACE (adverse childhood experiences) Study was released in 1998. There have been at least five additional ACE Studies that have confirmed and expanded the findings. ACE tells us that children exposed to DV and child abuse will live shorter and less healthy lives. Most of the harm is caused not by any immediate physical injuries but from the fear and stress abusers cause.³⁰ This goes to the essence of the wellbeing of children or in legal terms to the best interests of children. 26 years later most courts still are not using this critical research.

The Saunders Study first came out in 2011. The purpose of Saunders was to review the DV knowledge of judges, lawyers and evaluators. It found most court professionals do not have the specific DV knowledge needed for DV cases. The courts need to instead use a multi-disciplinary approach that in DV cases would include DV advocates because the advocates have more of the specific DV knowledge courts need than judges, lawyers or evaluators. Many other standard court practices and assumptions were proven mistaken. As a result, courts frequently disbelieve true reports of abuse.³¹ The National Council of Juvenile and Family Court Judges seeks to teach other judges about ACE and Saunders because they go to the heart of what courts need to understand in DV custody cases. Nevertheless, it is rare when a court uses Saunders to help recognize DV.

Perhaps the worst example of custody courts failing to learn from their mistakes is contained in the Bartlow Study. Bartlow was responding to a study that found 175 child murders in a two-year period from contested custody cases.³² The counting of child murders in DV custody cases is now provided by the Center for Judicial Excellence which shows over 1000 child murders in the last 16 years.³³

The Bartlow Study interviewed judges and court administrators in the communities where these preventable tragedies occurred. She asked the court officials what reforms they created in response to the local tragedy. The shocking answer was none because they all assumed the local tragedy must be an exception.³⁴ It appears courts are reluctant to abandon outdated practices that help them save time to manage overloaded dockets. Some of the reasoning may be inertia because they are comfortable and used to the old practices, but managing dockets is one of the considerations. It is puzzling that the courts continue to defend discredited practices that have repeatedly been shown to harm and sometimes kill the children the courts are charged with protecting.³⁵

Scientific Research can tell courts how best to protect children. This ought to be the highest priority in custody cases and certainly cases that may involve abuse. Subjective opinions that present practices rely on could benefit children but are often affected by bias or ignorance so children are not protected. Too often courts are

[30] Felitti, et. al., Note 7.[31] Saunders, et. al., Note 8.

[32] Dianne Bartlow, “Judicial Response to Court‐Assisted Child Murders.” In Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues. (Mo Therese Hannah and Barry Goldstein, eds.) V. II (2016).

[33] Center for Judicial Excellence, supra, Note 1influenced by the need to respond to all the cases on the docket and compromises to save time can undermine the health and safety of children.

[34] Bartlow, supra, Note 32.

[35] id

Taking the Time to Protect Children

In many ways, DV custody cases are some of the most important cases based on the effects on society and the individual children. These are cases that when they are mishandled children, adult victims, law enforcement, and court professionals can lose their lives. These cases are often the last chance to save children from the awful consequences of exposure to ACEs. It is particularly hard to save the children when most courts are not even considering ACE. Here are some evidence-based practices that would make protecting children the first priority.

Separate Section for DV Custody Cases: DV cases are very different from other custody cases and would strongly benefit from research and specialized expertise. Many of the present practices that use shortcuts to save time are actually counterproductive because the cases keep coming back after flawed outcomes. The court response will need to vary depending on the size and resources of the court. Any custody case where there are reports of abuse, protective orders, arrests or other information that DV may be involved should be separated from other cases. In some cases, the reports will be untrue but we need best practices to make an accurate determination of the reports.

Judges involved in this section should be volunteers who want to handle these cases because a lot of harm has been caused by judges uninterested in DV cases or even domestic relations cases. The professionals assigned to these cases should have specialized DV training. Ideally a DV advocate would be assigned to the DV section or at least available for consultation. Additional resources should be provided because their work is so critically important and they must avoid dangerous shortcuts.

Health and Safety of Children as First Priority: Children exposed to multiple ACEs can still be saved from the awful consequences. This must become the first priority because there is nothing more important. The children’s ACE score should be calculated in every case in order for the court to understand the risks. The judge also must be told which of the reports of abuse are associated with higher risks of lethality.

Every state has a list of factors courts are required to consider when determining custody. These lists make sense when the court is dealing with two safe parents. If one of the parents is causing fear and stress, they are doing more harm than good. It makes no sense for judges to have discretion to focus on less important issues that don’t risk a child’s health and safety.

This author was involved in a case in Rockland County, New York where the father objected to two sisters being dressed alike as if they were twins when they were a year apart. He thought this was a terrible idea that might cause psychological harm. When the judge interviewed the girls, he learned they saw their father take a knife to their mother’s throat. The judge used his discretion to decide the children’s dress was more important than the father’s abuse and gave custody to the abusive father. There was no way to appeal because the decision was up to the judge’s discretion. Requiring courts to make the health and safety of children the first priority would allow appellate courts to reverse such dangerous decisions and mostly prevent judges from making the error in the first place.

Mandate Evidence-Based Decisions by Considering the Research: Family Courts should have integrated the important research related to DV and child abuse a long time ago, particularly in response to the frequent preventable tragedies they have permitted. ACE, Saunders, and Bala have previously been discussed.³⁶ Primary attachment emphasizes the importance of the main parent and undermines the present excessive use of shared parenting.³⁷ The problem of gender bias helps abusers, but courts have not promoted the needed discussions to discourage it.³⁸ The Meier Study tends to confirm that in cases involving claims of DV, child abuse, and alienation, the courts are tilted in favor of abusive fathers which is the opposite of the wellbeing of children.³⁹ At the same time, courts have accepted biased alienation theories that seek to rely on ideology and financial considerations instead of valid research.⁴⁰

[36] Felitti, et. al., supra, Note 7.  Saunders, et. al., supra, Note 8. Bala, et. al., supra, Note 16.

[37] Susan Goldberg, “Attachment Part Three: Attachment Across the Lifespan.” (Nov. 2004).

[38] Molly Dragiewicz, “Gender Bias in the Courts: Implications for Battered Mothers and Their Children” in Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues. (Mo Therese Hannah and Barry Goldstein, eds.)  Ch. 5.  (2010).

[39] Meier, et. al., supra, Note 3.

[40] Paul Jay Fink, “Parental Alienation Syndrome.” In Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues. (Mo Therese Hannah and Barry Goldstein, eds.) ch. 12 (2010).

In other types of courts, new research gets integrated because the party that would benefit from the research brings it to the courts’ attention. Custody courts have created obstacles to the inclusion of research that goes to the very essence of the best interests of children. Courts tend to use the same small group of professionals that encourage an insular atmosphere and discourage new approaches. The aggressive use of high conflict approaches and shared parenting sends a message that judges don’t want to hear information that might discourage settlements and challenge longstanding practices and decisions. Even worse, protective mothers and their attorneys are often afraid to present research and evidence about abuse because of the frequency that the worst courts retaliate against DV victims trying to protect their children.

One section of the Saunders Study concerns harmful outcome cases. These are extreme decisions in which an abuser is given custody and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. Saunders found these decisions are ALWAYS wrong and based on flawed practices. The reason it is always wrong is that the harm of denying children a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide is greater than any benefit the court thought it was providing.⁴¹ Other retaliatory actions include gag orders, incarceration, and economic sanctions. The retaliatory decisions are made in the context of courts minimizing the harm from abuse, using the wrong professionals to recognize abuse, and widespread gender bias. The retaliatory actions are often caused by shortcuts and designed to silence mothers to prevent challenges to mistaken findings.

Perhaps the largest obstacle to integrating the research into Family Court practices is the failure to manage the huge financial advantage abusive fathers have. DV is about control, including financial control, and as a result it is common for the abusive father to have an unfair advantage. PAS and its progeny and the cottage industry were created to obtain money from wealthy abusers and they have had a huge pernicious effect on the courts. They are effective in distracting attention from DV and child abuse that are usually the most important issues for the wellbeing of children.

Judge Mike Brigner wrote a chapter in which he discussed the fact that courts have the authority to level the playing field. They can make sure that alleged victims of abuse have sufficient resources to hire an attorney and present the research that could make a huge different in the outcome of DV cases. Judge Brigner found courts are not using this authority anywhere near as often as it is needed.⁴² The Batterer as Parent is one of the leading books about DV and child custody. The authors recommend that any expenses made necessary by the father’s abuse, including legal fees, should be paid by the abuser.⁴³ This practice would provide abusers badly needed accountability. If they had to pay both side’s legal fees there would be no benefit to much of the litigation abuse. Ironically, this would save the courts time and resources without undermining the fairness of the proceedings that shortcuts do.

Multi-Disciplinary Approach: The original mistake in responding to DV custody cases was treating mental health professionals as if they were experts in DV. They have needed expertise in mental illness and psychology that is needed in many cases including DV cases. Legal professionals are experts in the law and are trained in analytical thinking so they always have something to contribute. DV advocates are the experts in DV and usually child abuse. Their expertise is necessary for DV custody cases.⁴⁴

DV advocates know how to create safety plans because they understand risk assessment. They know how to screen for DV. Professionals without DV expertise usually do not know what to look for and so fail to recognize the significance of available DV evidence. DV experts understand DV dynamics. They understand that the abuser did not abuse her because of anything she said or did but rather because of what he believes and who he is. This means it is extremely likely an abusive father will abuse future partners and his children will witness more abuse unless he is forced to change his behavior. DV advocates also understand that abusers do not start with physical abuse and will commit hundreds or thousands of abusive tactics before moving to physical abuse. This means court practices that ignore or minimize non-physical abuse, older abuse, or abuse prior to the separation are mistakes. The long failure of custody courts to learn from DV advocates helps explain why present practices and beliefs are tilted so far in favor of abusive fathers and so many children have been killed or had their lives ruined by abusers the courts believed were safe.

[41] Susan Goldberg, supra, Note 37.

[42] Mike Brigner, “Why Do Judges Do That.” Ch. 13 in Domestic Violence, Abuse, and Child Custody: Legal Strategies and Police Issues (Mo Therese Hannah & Barry Goldstein, eds., 2010).

[43] Lundy Bancroft, Jay G. Silverman & Daniel Ritchie, The Batterer as Parent 2 (2013)

[44] Saunders, et. al., Note 8.

Need for Training and Retraining of Court Professionals:

Several years ago, there was a typical DV custody case near Albany, New York. The abusive father was initially limited to supervised visitation but gradually received more and more time with the children despite stalking and harassing the mother. The father was claiming alienation and it seems like the case was headed towards shared parenting. Then the judge received training about ACE and this author came to testify. The judge was delighted to have an ACE expert in his court. Every time the father’s attorney objected to the expert’s testimony, the judge cited the testimony in overruling the objection. The mother received sole custody and the father was limited to supervised visits. He appealed to the highest state court but his appeals were rejected.⁴⁵ This case illustrates the difference when courts have the knowledge ACE provides.

Many judges don’t want or receive the DV training they need. Judges are often only open to trainings that come from other judges. They may also seek training from mental health professionals. Worst of all some judicial trainings have included unscientific alienation theories that are designed to negate the reality of DV and child abuse. In Hawaii, this author met with Judge Browning who was overseeing Family Courts. He seemed pleased when telling us the judges had a negative response to a training by DV experts that included Professor Joan Meier and Dr. Joy Silberg. Professor Meier and Dr. Silberg are two of the very best DV experts and presenters. Clearly the judges objected to information and research that demonstrated many of their standard practices are harming children.

In Wyoming, the local bar association invited Dr. Arnold Sheinvold, a cottage industry evaluator to speak with them. This led one of the judges to appoint Sheinvold as an evaluator. Apparently, the bar association and the judge failed to recognize that he is a biased professional who promotes unscientific alienation theories. The evaluator became an advocate for the abusive father and other professionals were barely able to save the boy in the case. More recently, Sheinvold made a recommendation in a Pennsylvania case that led to the death of a child under suspicious circumstances.⁴⁶

Judges and lawyers have spent their entire careers assuming mental health professionals were the experts in DV and receiving substantial misinformation. They do not have the specific DV knowledge that is needed in DV cases.⁴⁷ Accordingly, it is critical that court professionals receive both DV training and retraining to address many mistaken beliefs. This training needs to include DV advocates who are the experts in DV.⁴⁸

Recognizing Past Failures: The frequent tragedies and complaints about custody court responses to DV has led to many legislative reforms. Sponsors hoped the changes would fix the broken system. The courts have repeatedly created workarounds to avoid the purpose of the legislation and continue the outdated practices including dangerous shortcuts. Accordingly, it is critical that court professionals recognize that the old practices may manage caseloads but they are not protecting children.

ACE found that the harm from DV is far greater and long lasting than previously understood. Saunders found court professionals do not have the specific DV knowledge needed to protect children and this inevitably leads courts to disbelieving true reports of abuse. Other research explains why so many children involved in custody disputes are dying or seeing their lives ruined. The courts may find that when they abandon their shortcuts and use best practices that make it easier to recognize and respond to abuse, abusers may stop their harmful litigation tactics because the tactics are no longer working. This would unclog dockets without continuing to jeopardize children.

[45] Barry Goldstein, “When Family Court Uses ACE Research” (2020).

[46] This author is familiar with the Wyoming case because he was an expert witness in that case.  Richard Luthmann, “Courtroom Corruption Grieving Mom Accuses Judge of “Cash for Kids” Scandal.” March 12, 2024. Available at Courtroom Corruption? Grieving Mom Accuses Judge of 'Cash-For-Kids' Scandal (substack.com)

[47] Saunders, et. al., Note 8.

[48] id