by Barry Goldstein
The United States Department of Justice offered some good news to long suffering protective mothers and their children when it announced grants to courts in Illinois, Delaware, Minnesota and Oregon to develop improved practices to protect battered women and their children. Incredibly, the abusers’ lobby objects to any possible reforms to promote children’s safety out of concern the improved practices might undermine the privilege of abusive fathers to maintain strict control over their victims. The National Parents Association, formerly Fathers and Families wrote a distorted article attacking the Office on Violence Against Women and the Battered Mothers Justice Project, which is one of the organizations working to help the courts create effective reforms.
I normally try not to pay much attention to these male supremacist groups because I witness enough traumas without listening to their attempted justifications and they tend to live in a reality deprived world. My friend Eileen King, the founder and director of Child Justice asked me to write an article to correct the misinformation that permeates the article from the National Parents Association. In reading their article I was reminded of a friendly disagreement I sometimes have with Joan Meier of DVLEAP. I am a strong supporter of the use of current scientific research because the use of good research would inform the courts and create better outcomes for children. Joan often expresses concerns that the abuser groups will use their bogus research to justify continued harm to our children. This is exactly the kind of material relied on in their article. Joan is, of course, right that flawed research can and is used to mislead the courts and they do not always recognize the difference.
While I regularly discuss research that comes from the Department of Justice and Center for Disease Control, the abuser rights groups rely on “research” based only on the personal beliefs and biases of a man who made many public statements to the effect that sex between adults and children can be acceptable. It is hard to imagine that judges could not appreciate the difference if the lawyers present the information effectively. Nevertheless we have seen all too many cases where bogus studies are the ones relied on by the courts.
In deep appreciation of the wonderful work Eileen does, I will go through some of the false claims made in their article and then discuss the more encouraging topic about the impact of the grants to the four court systems.
What about Male Victims?
There are men who are assaulted and seriously mistreated by their female partners. This is a horrendous situation and should not be tolerated, period. There are sincere people working on this issue and it is a worthy cause. Unfortunately many abusive fathers use and exaggerate this issue as a way to nullify and negate the work to end men’s violence against women.
One of the first articles I wrote for this blog demonstrated the falsity of articles and “research” claiming that women abuse men about as often as men abuse women. Some of this propaganda such as those cited by the abuser lobby is produced by professionals who are part of the cottage industry that makes its money helping abusive fathers gain custody from safe, protective mothers. Some of this research is produced by sincere but unqualified researchers who do not understand domestic violence dynamics and fail to consult with genuine experts. These researchers like the court professionals we see in custody cases possess a false sense of competence about domestic violence and so don’t seek the help and expertise they need.
A good example of this came in a workshop I attended at an IVAT conference in Hawaii. Two young female psychologists who had been students of the conference organizer presented their findings based on a grant they had received. They claimed their research proved that abuse by men and women was roughly equal and described their methodology. It turned out they got their information from questionnaires filled out by men they found on web sites. Most of the men came from “fathers’ rights” organizations. This was hardly a neutral or reliable source, but they accepted everything the men said uncritically. At one point they said that the police refused to bring charges against the men’s alleged abusers because of the bias against men who claim to be assaulted. It never occurred to the psychologists that the police did not bring charges after investigating the claims and finding a lack of evidence.
There are many common mistakes unqualified researchers make that lead to the mistaken results. This “research” is often based on phone calls to the general population and reliance on the discredited conflict tactics scales. Results from phone calls to the general public distort the results because it will usually be safe for the men but not the women to reveal assaults. It would also focus on less serious assaults than would be found in a survey from emergency rooms or shelters. The problem is exacerbated by the fact that abusive men are more likely to make false allegations and women routinely minimize the abuse committed by their partners. The researchers’ lack of familiarity with domestic violence dynamics means they are not even aware of the inevitable distortions in their data.
The conflict tactics scales are designed to just count the hits. No distinction is made based on the fact that in general men are bigger and stronger than women, hit harder and cause more serious injuries. The findings by the unqualified researchers are belied by good research that demonstrates women are far more likely to need treatment in the emergency room and are at least three times more likely to be murdered. Research based on murders is particularly reliable because there is a body so no one can claim she is lying about his abuse. Another problem with these methods is that men and women hit their partners for very different reasons. Men usually do this to maintain control while women assault men in self-defense and out of frustration at his abuse. The researchers do not understand and so make no effort to differentiate the pattern of coercive and controlling behavior; most of which does not involve physical abuse. Perhaps the most important difference is that it is common for women to be so afraid that her partner will kill or seriously injure her that she will give in and do whatever he wants just to protect her safety. This is rarely true of men. This is the essence of domestic violence and no accurate analysis is possible without taking this into consideration. These studies also do not include rape which in heterosexual relationships is something overwhelmingly done by men to women.
One of the fundamental problems both with the abuser rights perspective and of the courts is that they want to treat people and groups the same even though they are very different. There is a long history of husbands being entitled and even encouraged to assault their wives, control them and make the decisions for the family. The first law in the United States about what we would now call domestic violence said that husbands may not beat their wives ON SUNDAY. In other words beating her any other time was acceptable. There was never the equivalent expectation or permission for wives to assault their husbands. Although the laws have changed, this history means there are still many men who feel entitled to control their partners and use abusive tactics to do so. An individual woman might repeatedly assault her male partner but it is not based and supported by beliefs that wives are entitled to control their husbands.
My friend, Molly Dragiewicz wrote an important book, Equality with a Vengeance that includes a ton of good research that disproves the frivolous claims coming from abuser groups. The research is clear that men commit most violent crime both in this country and throughout the world. Well over ninety percent of familicides, crimes in which an individual kills the spouse and children are committed by men. As I write this article there have been more than one hundred mass murders in the year since the Newtown tragedy and all but one were committed by males.
The research about batterer narratives helps us understand how abusive men can appear so sincere when they confidently repeat their misinformation. Many will say that it is wrong for a man to assault a woman EXCEPT if she does something he defines as improper or she is a (insert the slur). They then view their attack on her as justified and even self-defense. Again there is nothing remotely similar for women.
Mothers Make False Claims
The “fathers’ rights” movement and cottage industry that supports abusive fathers are permeated with the belief that most abuse allegations made by mothers are false. This is really based on ideology and assumption because there is no valid research to support it. PAS is based on this assumption. Significantly, the Saunders’ study (from the U.S. Department of Justice) found that professionals with inadequate training tended to believe the myth that women frequently make false allegations and unscientific alienation theories. So when their propagandists encourage courts to disbelieve mothers’ complaints they are demonstrated their lack of training and qualifications.
Nicholas Bala led one of the leading studies about false allegations in the context of custody and in fact it was a study that looked at many other studies. He found that mothers make deliberately false allegations less than two percent of the time. Any “research” with significantly higher numbers reflects the frequency that true allegations of abuse are disbelieved. Interestingly the Bala study found that fathers involved in contested custody are 16 times more likely than mothers to make deliberately false allegations. The common abuser tactics of claiming alienation and claiming mothers lie about their abuse are examples of these false allegations by abusive fathers. In fairness the Bala study is not saying that all men are this dishonest. The study applies only to contested custody and a large majority of these cases involve abusive fathers who feel entitled to use any tactic including false allegations to regain the control over their partner they believe had no right to leave.
At least 40 states and many districts created court-sponsored gender bias commissions. They found that there is widespread gender bias against women and particular woman litigants. Common examples are that mothers are given less credibility than fathers, are held to a higher standard of proof and blamed for the actions of their abuser. These findings help explain why so many true allegations of abuse are disbelieved by the courts.
Shared Parenting Benefits Children
Shared parenting is another ideological belief of abuser groups that is not supported by valid research and is not beneficial to children. Many of us can remember when shared parenting was either not permitted or strongly discouraged. An initial study based on a small population and short time period found that shared parenting could be beneficial to children under the best of circumstances. This encouraged courts to promote shared parenting as a way to resolve difficult and contentious cases. Abusers have promoted shared parenting as a way for fathers to gain control when they otherwise would have difficulty winning custody because of their abuse and the mother provided most of the children care.
Later research based on a larger population and a longer period of time found that shared parenting is actually harmful to children. Constantly going back and forth is disruptive, having two homes is really having none and needed items are often in the wrong home.
There is legitimate research that shared parenting can benefit children under the best of circumstances. This would include a voluntary desire by both parents to share parenting, an ability of the parents to cooperate and living nearby. There is other good research that found shared parenting is never a good idea for children. Indeed most cases in which shared parenting are initially tried are quickly changed because of the problems it creates. There is no need to reconcile this dispute in the context of contested custody and domestic violence as these cases are not close to the best of circumstances.
Shared parenting laws usually include exceptions for domestic violence, but this does not protect the children when courts have difficulty recognizing true allegations of abuse. The courts are littered with cases in which mothers are pressured to accept shared parenting with their abuser and often severely punished if they object. The Saunders’ study found that abusers use decision making authority to control the mother and hurt the children. They use the exchanges to harass the mothers and although contradictory to try to resume the relationship. If the court is not inclined to limit an abuser to supervised visitation, parallel parenting would work far better for the children. Until the courts create the necessary training and reforms to improve its response to domestic violence consideration of shared parenting is a particularly bad idea that causes enormous mischief.
Children Need Both Parents Equally
This statement is effective in misleading people because it sounds so reasonable and fair. It is really based on an ideological belief in treating individuals the same even when they are very different. This approach is designed to treat the mother and father the same REGARDLESS OF PAST PARENTING. This is not in a child’s best interests. The truth is that children do not need both parents equally. They need their primary attachment figure more than the other parent and the safe parent more than the abusive one. In domestic violence cases courts should stop pressuring the victim to cooperate with the abuser and instead force the abuser to stop the abuse in order to gain time with the children.
The reach and harm of this misleading statement is illustrated by a statement by one of the leading family court judges in the United Kingdom. In a speech to an abuser rights group he said that the worst thing that can happen to children is for the mother to bad mouth the father. We have heard judges in the United States make similar statements. It is hard to imagine that this is meant literally. I would hope the judge realizes that assaulting, killing or sexually abusing a child and many other abusive actions are far more harmful. The ACES (Adverse Childhood Experiences) studies demonstrate the profound harm to children’s health caused by trauma which is not true about negative statements. Indeed some negative statements are beneficial for children to learn. When children see an abusive father mistreat them or their mother it is important for the mother to tell them that such behavior is not acceptable in our society.
The misuse of the belief that mothers should not make negative statements about the father was taken to the extreme in a notorious case in Poughkeepsie, N.Y. The court found the mother to have engaged in alienating behavior because she encouraged the children to eat healthy foods, dress appropriately for the weather and avoid adult oriented television programs. This was considered alienation because the father encouraged all of these harmful activities. In the world outside of family courts this would just be considered good advice that any parent would be expected to give their children. As a result of widespread gender bias in the courts more serious negative comments by fathers are routinely ignored or minimized.
Mothers Most Often Already Receive Custody
This is a statement we often hear from those supporting abusive fathers. It is literally true, but highly misleading. Over 95% of custody cases are settled more or less amicably. Some involve abusive fathers who love their children enough that they would not deliberately hurt them by separating them from their mothers. Accordingly these cases tend to be settled with the mother giving up economic benefits she and the children deserve in order to retain custody. In the more common cases that do not involve domestic violence the parents work out a truly voluntary arrangement they believe will benefit their children. In this still sexist society, mothers continue to provide most of the child care and loving fathers sacrifice their personal interests for their children to create arrangements where the children live with the mother and spend significant time with the father. This is why mothers receive custody far more than fathers, but it is based on voluntary agreements and not favoritism from the courts.
The problem in the custody court system is the less than 5% of cases that cannot be settled and continue to trial and usually far beyond. Most of these cases involve abusive fathers who seek custody as a tactic to regain control over their victims. These are the most dangerous abusers because they believe the mother has no right to leave them. This is why three-fourths of all women killed by their male partners are killed after they have left. It is why in a recent two year period we found news stories about 175 children murdered by abusive fathers involved in contested custody. More commonly the abusers seek custody as a way to regain control and punish the mothers for leaving. The abusive fathers understand that the best way to hurt a mother is to hurt the children, but the courts routinely just assume the father is seeking custody out of love for the children.
Although contested custody cases overwhelmingly involve true complaints of domestic violence by mothers, most of the time the dangerous abuser receives custody or joint custody. One troubling finding is that abusive fathers are more likely to win custody than safe fathers. The flawed practices, gender bias, and reliance on unqualified professionals, result in 58,000 children being sent for custody or unprotected visitation with dangerous abusers every year. Although mothers rarely make false allegations of abuse, the courts routinely disbelieve or minimize their complaints.
The significance of the Saunders’ study is that it explains why the courts so frequently mishandle domestic violence cases and give control to dangerous abusers. Saunders found that we now have substantial scientific research that courts could use to inform their decisions about domestic violence allegations. Unfortunately judges never developed the practice of looking to this research because it was not available when courts were first creating responses to domestic violence. Saunders specifically found that the standard and required training for evaluators, judges and lawyers does not provide them with the specific information needed to respond effectively to domestic violence cases. This is the worst of all possible situations because the training received does not make these professionals qualified to recognize and respond to domestic violence but gives them a false sense of competence so they refuse to consult with genuine experts.
Saunders recommends that evaluators and other professionals receive training in screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Most of the evaluators claimed to have training in these subjects, but when tested with vignettes they demonstrated they did not have the needed understanding. Most of the evaluators claimed they screened for domestic violence by using standard psychological tests that tell them nothing about domestic violence. This means they are not screening for domestic violence and routinely disbelieve true allegations because they don’t know what to look for. This failing undermines the entire court system because lawyers and judges look to psychologists and other mental health professionals for expertise in cases and training. The misinformation they receive in one case poisons many other cases. After hearing the outdated and discredited claims throughout their careers it becomes deeply ingrained so that many judges and lawyers are resistant to accurate information. It sounds so different from what they constantly hear from the “experts.”
Saunders found that evaluators and other professionals without the needed training tend to focus on the myth that mothers frequently make false allegations, unscientific alienation theories and the mistaken assumption that attempts to protect children from dangerous abusers are harmful to the children. These false beliefs lead to outcomes that hurt children.
The problem is compounded by the development of a cottage industry of psychologists and attorneys who make their living promoting approaches biased in favor of abusive fathers. Domestic violence are tactics men use to coerce and control partners. Economic control is a common form of domestic violence and this means that in most contested custody cases (which are really domestic violence cases) the abusive father controls most of the family’s resources. Accordingly the best way to earn a large income is to support practices that help abusers. Unfortunately courts do not tend to be skeptical of these biased professionals and in many cases we see courts appoint “fathers’ rights” attorneys and psychologists for neutral roles such as GAL and evaluator. Good mothers have no chance to win the support of professionals who are part of the cottage industry.
The Saunders’ report found that domestic violence advocates possess exactly the training and expertise needed to help courts on domestic violence cases. They knew more about the specific topics recommended by Saunders than evaluators, judges and lawyers. Nevertheless we repeatedly see courts refuse to listen or minimize the testimony of genuine experts claiming they are biased because “they always oppose domestic violence.” The courts also place great weight on academic degrees that provide no domestic violence training. The cottage industry seeks to undermine domestic violence laws while advocates try to support them. And yet it is the advocates who are treated as if they were biased.
The research suggests that a multi-disciplinary approach works best in domestic violence custody cases. Mental health professionals have expertise in psychology and mental illness. Lawyers and judges are experts in the law. Doctors can be used for medical issues and other experts for substance abuse and sexual abuse. Domestic violence advocates are the experts in domestic violence. The Saunders study demonstrated support for a multi-disciplinary approach by favorably citing many of the chapters in my book co-edited with Dr. Mo Therese Hannah.
The findings about inadequate training, flawed and outdated practices and gender bias are incompatible with any view that the courts are responding properly to domestic violence cases much less the abuser fantasy that mothers are favored. Judges cannot do their job of protecting children while they continue to be burdened by outdated and discredited practices.
Mothers Commit Child Abuse More than Fathers
This is another example of the National Parents Association taking information out of context in order to distort the circumstances. It is true that mothers commit more child abuse and neglect than fathers, but that is because they provide so much more of the child care. If the statistics were adjusted based on the amount of child care provided, it would be clear that fathers are far more dangerous to children. The problem is further compounded by the tendency of child protective agencies to always focus on the mother because moms are easier to find and far more compliant.
Courts Receive Grants to Reform Practices
Those of us who work to protect children from abuse are reminded every day of the enormous pain and ruined lives caused by the failure of the court system to recognize and respond effectively to domestic violence and child abuse allegations. When our book, Domestic Violence, Abuse and Child Custody came out, I wrote an article about the ten ways we knew the custody court system was broken. This was based on the frequency of harmful outcomes, denials of true allegations and deeply flawed practices that undermine the ability of courts to get it right.
It seems obvious that what we need to do is meet with court administrators; present the overwhelming research and work together to create the needed reforms. So far the courts have been resistant, if not hostile to considering the adoption of best practices based on new research that was not available when the courts created the present practices. Each time important new research came out whether it was our book, The Batterer as Parent, the Saunders’ study or the new ACES research; we have hoped that it would create the impetus for courts to discuss the needed reforms.
One problem is that fundamental to our jurisprudence is the doctrine of res judicata which requires that once a decision and finding is made, it can no longer be challenged (aside from appeals) and it is assumed to be right. This is an important and valuable principle because otherwise you would have to constantly relitigate the same issues over and over and just imagine what wealthy abusers could do with that. This is working particularly badly in domestic violence cases both because courts frequently fail to recognize true allegations of abuse and often refuse to look at new evidence of the pattern of abuse in the context of the previous evidence that was rejected. Context is critical to understanding domestic violence, but many of the court practices and abuser strategies prevent courts from understanding the facts in context. I have seen many cases in which the court disbelieved allegations of abuse and forced children not only to live with the abuser but to engage in therapy based on that assumption. When new information comes out demonstrating the initial decision was a mistake the professionals believe they must ignore it and silence the children.
In the next volume of Domestic Violence, Abuse and Child Custody which we hope to submit to the publisher this month, we have a chapter following up on the 175 children murdered by abusive fathers involved in custody disputes. We asked judges and court administrators in the communities where the tragedies occurred what reforms they had created in response in order to safeguard other children. The judges interviewed were the best and most knowledgeable which is why they agreed to be interviewed. Nevertheless the answer was that they created no reforms because they assumed the murder was an exception. Domestic violence experts recognize the problems in the court because we look at the patterns both within a case and over many cases. The courts seem never to look for patterns and thus have not been open to research that proves the present practices routinely place children at risk.
Some of the judges interviewed said that they regularly participated in meetings that included domestic violence advocates and these experts helped with training judges and other professionals. These are good practices that promote a multi-disciplinary approach and would tend to lead to better results. The problem is that these good practices are rare in the court system.
More common is for courts to rely on the same small group of psychologists and other mental health professionals for expertise in domestic violence cases. They are expert in mental illness and psychology but not domestic violence. Hearing from the same often unqualified experts creates an insularity in the custody courts that contributes to their satisfaction with the failed practices. Other courts, government agencies and civilian organizations look to a much wider group of experts with knowledge of current research. This is why other parts of society respond more effectively to domestic violence and are less likely to repeat the myths that are so prevalent in family court.
So the problem is how do we create a dialogue with court leaders and encourage them to be open to considering how the new research impacts old practices that have been shown to hurt children. This is why the grants to courts in four states is such an encouraging sign and why the National Parents Organization was so aggressive and unreasonable in attacking the Justice Department, Battered Women’s Justice Project and the grants to state courts.
The Office on Violence Against Women (OVW) conducted an impressive and lengthy investigation about concerns the custody courts are failing children. Every day I hear stories of children’s lives ruined I wish they could have moved more quickly. But I recognize that by doing a thorough job they could make sure their findings are correct and they will not be vulnerable to the unreasoned attacks from abuser groups and the professionals who make their money off the misery of children.
OVW reviewed much of the newest research including the Saunders’ study. I know that staffers read our book. They created roundtable discussions with leading experts to present current research and experience. Significantly, the experts they listened to are very different from the mental health professionals relied on by the courts who know little about domestic violence. The courts rarely hear from a professional who would be considered one of the nation’s leading experts and indeed in some cases the courts refuse to consider testimony from genuine experts without irrelevant mental health degrees or people they are used to seeing in their courts.
I know something of the process because I had the honor of being selected as one of the experts to participate in the roundtable discussions. My colleagues on the panel are the very best experts in this nation and provided a wealth of information for OVW to study. I believe the quality and quantity of research and information made it easy for OVW to make findings that the present practices in custody courts are failing to protect children. I greatly appreciate my colleagues at the Battered Women’s Justice Project who are knowledgeable and caring. I often turn to them for research for the books I am working on. I am sure they will do a wonderful job in implementing this grant project.
The four states are being asked to create models for responding to domestic violence cases based on current scientific research and the widespread problems caused by the present flawed approaches. It is extremely valuable to include court systems in the process of creating needed reforms. Inevitably the new practices tried in these four states will work far better than what we have now. Coming from state court systems, other courts will be more open to adopting these reforms. Accordingly this is an encouraging development and one we hope will lead all courts to finally make the safety of children the first priority.
I am deeply grateful for the work of the staff at OVW, the National Institute of Justice, the National Council of Juvenile and Family Court Judges, the Battered Women’s Justice Project and the experts and victims who participated in the discussions that led to this potential breakthrough. They deserve praise and encouragement because work to prevent domestic violence and child abuse must never again be viewed as an attack on fathers. Good men and good fathers want all children to live in a world without trauma. I hope that this project will be an important step in bringing the custody courts into a coalition of people and organizations working together to prevent domestic violence and child abuse. Ending domestic violence is not a biased position—IT’S THE LAW.