12 Reasons Family Courts Continue to Destroy Children’s Lives

Barry Goldstein

Why Don’t Family Courts Fix Dangerous Practices? The research is now clear that Family Courts get most domestic violence custody cases wrong and often dangerously wrong. The proof of this alarming circumstance is readily available. This article explains many factors that cause courts to tilt in favor of abusive fathers and away from protecting children. In this article, I wish to explore why the courts continue to make these mistakes which can end children’s lives or significantly reduce their life expectancies. No judge wants to hurt children, so why haven’t courts found a way to review their outdated practices and create reforms that focus on keeping children safe and healthy?

It would be easy to simplify the problem and pick one reason that undermines the well-being of children, but the reality is more complicated and there are many factors that undermine the ability of courts to create needed reforms even as the research is ever more compelling. Many of the factors are rarely discussed which makes it harder to convince courts to create needed reforms.

1. Keeping Language that Works: When I was in law school, we were taught that when drafting legal documents like wills and contracts, it is best to use the same language that courts have approved previously. We might be able to create clearer language but we would not know how a court would interpret it. This makes sense when the issue is the interpretation of language, but not when the issue is understanding how approaches impact children. Family Courts developed responses to domestic violence at a time when no research was available. These approaches have been used ever since. We now have very substantial research that demonstrates many standard practices harm children in abuse cases. Examples would include high conflict approaches, asking victims to just “get over it,” focusing only on physical injuries, relying only on mental health professionals for domestic violence issues, promoting shared parenting in domestic violence cases and assuming children need both parents equally. Using the same language is different than using the same approaches but courts have a tendency to continue doing things they think are working.
2. Res Judicata and Collateral Estoppel: The same mistakes that lead to child murders, more often result in exposing children to more abuse, but they survive, at least initially. If a child dies in their teens or twenties from suicide, drug overdose or other trauma-related cause it is not likely to be understood as connected to the court’s decision. When an allegedly abusive father uses access provided by the court to kill a child, this is directly connected to a bad decision and ought to result in a review to determine what went wrong. The Bartlow Study, however, found that judges failed to create reforms in response to these preventable tragedies because they all assumed the tragedy was an exception. In reality children have suffered over 700 such tragedies in the last ten years. Res Judicata and Collateral Estoppel are legitimate legal practices designed to prevent the same issues between parties to be repeatedly litigated. The assumption is that once the court makes a decision, absent overturn on appeal, that decision must be correct. If custody and visitation decisions are supposed to promote the well-being of children, the research establishes that many if not most of these decisions are wrong. When courts cannot recognize and respond to their most tragic mistakes, they have little chance to correct decisions where the child suffers but survives. Custody and visitation can always be corrected based on a change on circumstances, but res judicata and collateral estoppel are used to limit the evidence the court can consider and undermines the ability of judges to take a fresh look based on new developments and new research. In many cases the new abuse taken together with the earlier reports of abuse the court disbelieved could make a compelling case, but the court refuses to consider the earlier abuse even in the context of continued abuse.
3. Economic Issues: Wealthy litigants have long used their superior financial resources to gain an unfair advantage. In my first book with Dr. Mo Therese Hannah, Judge Mike Brigner wrote a chapter in which he said judges in custody courts have the authority to level the playing field but need to use that power more. This is important because abusers routinely use the tactic of trying to bankrupt their victims and too often superior financial resources is the determining factor in court decisions rather than the merits of the case. Most contested custody cases are really domestic violence cases and economic abuse is an important domestic violence tactic. In many cases, an abuser stealing or controlling the family’s resources is used to win custody, and courts rarely require the wealthier partner to share resources so that both sides of the case can be effectively presented. The cottage industry of lawyers and mental health professionals that make large incomes by promoting approaches that help wealthy abusers have played a major role in poisoning abuse litigation and tilting the courts in favor of abusive fathers. Not only do judges rarely do anything to overcome the harmful influence, they almost never even discuss the bias the cottage industry brings to the courts.
4. Limited Time and Resources: It is no secret that many family courts have to deal with overcrowded dockets and inadequate resources. Many judges respond by severely limited the time each party is given in presenting arguments and presenting evidence at trial. Although the limitations apply to both sides, the impact helps abusers and hurts protective mothers and their children. Context is critical to understanding domestic violence and a common abuser tactic is to decontextualize an issue. Explaining the context requires more time. Similarly, it requires more time to prove abuse then to just deny it. We now have substantial research that demonstrates many longstanding practices work poorly for children. Best practice is to inform the judge about the research and ask the court to be open to this research. The problem is that it takes far more time to explain the new research and the problems with the outdated practices. Abusers just ask the courts to rely on standard approaches. I have seen many cases where attorneys for protective mothers are not provided the time needed to present all the vital evidence. Accordingly, it is important to inform the court of the problem and ask for extra time to present the research.
5. Failure to Look for the Research: Family Courts developed practices to respond to reports of domestic violence at a time when no scientific research was available. We now have substantial research from the most credible sources but most courts have been slow to integrate research that would make it easier to recognize and respond to true reports of abuse. Most courts are not getting this research in judicial trainings or from the mental health professionals who are relied on as if they are experts in domestic violence. The courts never developed a practice of looking for current scientific research because it wasn’t available initially and the outdated practice has not been reconsidered.
6. Unqualified Judges: There are many judges who want to handle family court issues and try to stay abreast of current research and best practices. Unfortunately, family court is not the most prestigious area of the law and many judges would prefer to deal with other types of issues. It makes sense that we hear much more about the cases that go wrong. Kayden Mancuso and Prince McLeod Rams are just two of the children who could not survive bad decisions by unqualified judges. Although Saunders found that courts should use a multi-disciplinary approach that would include experts in domestic violence and child abuse, many judicial trainings rely only on other judges or perhaps mental health professionals. When the Stop Abuse Campaign had a series of conference calls with the National Council of Juvenile and Family Court Judges, we were warned that many judges would only accept training by other judges. The arbitrary limitation on who can provide training contributes to judges making life and death decisions without the necessary expertise.
7. Legal Ethics: Protective mothers often complain about attorneys who refuse or undermine their efforts to present evidence of domestic violence and child abuse. This could be because they believe the judge or the legal system do not want to hear about abuse and may retaliate against victims. This is a legitimate concern for attorneys to warn clients about, but the decision should be made by the client. In many cases lawyers do not want to present this evidence because they are concerned it will harm their relationship with the judge. This creates a fundamental conflict of interest because lawyers are not allowed to undermine a client’s case in order to help another client or the attorney’s career. They have an ethical obligation to advocate zealously for their client. Other attorneys don’t bother preparing the case because they expect there will be a settlement. They don’t understand that it is domestic violence cases that are most likely to require a trial. These failed attorneys then place great pressure of victims to accept a dangerous settlement or leave the case which means the money paid to the attorney was wasted, and in many cases the protective mother is forced to represent herself. The courts and the legal community have been aggressive to retaliate against ethical attorneys that criticize the failure of custody courts to use best practices in abuse cases, but rarely take action against unethical attorneys that undermine victim’s cases. During our discussions with the National Council, they agreed judges need to avoid decisions and statements that might cause attorneys to believe the judge does not want to hear about evidence of abuse. This is critical because courts cannot protect children if they never hear about the dangers.
8. Domestic Violence Involves Specialized Knowledge: Saunders found that there is now a specialized body of domestic violence knowledge and research. Without the Saunders Study, courts rely on the wrong experts and frequently disbelieve true reports of abuse. Without ACE (Adverse Childhood Experiences) Research, courts routinely minimize the harm from abuse and fail to focus on the most harmful effects which are living with the fear and stress abusers cause. ACE and Saunders are peer reviewed, scientific research from the Centers for Disease Control and Prevention and the National Institute of Justice. Unscientific alienation theories that are based on no research but the beliefs of Richard Gardner that sex between adults and children can be acceptable has been given more influence on court decisions in abuse cases than ACE and Saunders. It is hard to imagine any other type of court that would make such an obvious mistake in an individual case and none that would constantly make this error. ACE tells us that children exposed to DV and child abuse will live shorter lives and face a lifetime of health and social problems and yet most courts continue to make life and death decisions without reference to the specialized body of research.
9. Gender Bias: Forty states and many judicial districts have created court-sponsored gender bias committees to study the effects of gender bias. These committees have operated over four decades, used a variety of methods but keep confirming widespread gender bias against women litigants. Common examples are holding mothers to a higher standard of proof, giving women less credibility and blaming mothers for the actions of their abusers. The recent Meier Study confirmed that little progress has been made. The problem is most gender bias is unintentional and subconscious, but lawyers and litigants are afraid to raise this concern because judges could be defensive and retaliate. Courts need to take affirmative action to prevent gender bias, but thus far they have failed to do so.
10. Insular Community: Few Family Courts have followed the Saunders recommendation to use a multi-disciplinary approach. Even worse they tend to use the same small group of evaluators and related experts. The problem is compounded by the cottage industry that has a financial incentive to maintain practices that help wealthy abusers. These professionals have neither the knowledge nor incentive to inform courts of new research that would benefit victims of abuse. In other types of cases lawyers for victims would research for this information and make sure it is presented. Most attorneys know little about domestic violence and don’t view it as a specialized body of knowledge. Protective mothers rarely have the financial resources to present genuine experts and the courts often focus on mental health degrees that provide no expertise about domestic violence. As a result, courts continue to hear from the same small group of professionals and this insular atmosphere discourages new approaches and responds defensively to criticism about the court’s failure to protect children.
11. Inertia: Most lawyers and judges have heard the same misinformation throughout their careers so it is deeply ingrained. The system works great for the professionals as they are able to make large incomes while children suffer. Hawaii was the first state to introduce the Safe Child Act. The court establishment reacted defensively and immediately attacked the proposal based on misunderstanding how it would work. Andrew Willis and I met with Judge Browning who was the key figure in influencing the legislature. Many legislators said they would not consider legal reforms unless the court was supportive. Judge Browning told us the Safe Child Act was unnecessary because they do everything perfectly. Shortly after our meeting another child was murdered by his abusive father after the court disbelieved the danger. The research tells us that children are dying and others are suffering greatly. The enormous pain makes it hard for protective mothers, advocates and children to sleep, but court professionals actually believe the courts are doing a fine job.
12. Lack of Accountability: Judges are granted immunity from any lawsuit when

they mishandle cases that cause harm to children. Many protective mothers would like to change this, but there are good reasons for this protection. Judges need to be able to make decisions based on what they believe is best. Abusers would be much more likely to file frivolous lawsuits so removing immunity would probably make a bad situation worse. The problem is other potential forms of accountability have also been removed or weakened. It is possible to file an ethics complaint against a judge but the committees that review these complaints tend to be underfunded and biased in favor of the judges. Appeals could provide some accountability, but many protective mothers cannot afford an appeal and judges are given complete discretion to make decisions based on whichever custody factor they deem most important. The Safe Child Act would change this by requiring that the health and safety of children must be the first priority. Perhaps the one risk judges would be afraid of is to be front page news. This most often happens when they make a decision that leads to the murder of a child. Even then, the court system routinely defends the judge instead of using the tragedy to consider needed reforms. The media could provide important accountability, but until recently they rarely covered the family court crisis. Even now, various privacy rules and sometimes gag orders make news coverage more difficult. Retaliation against protective mothers and ethical attorneys make it even harder for the media to expose the scandal.

Barry Goldstein

Child Custody Task Group