Custody Courts Assume Protective Mothers Are Just Being Vindictive
Barry Goldstein

A recent news item showed a mother attacking a mountain lion who snatched her child. The mother mentioned was not alienating her child from the mountain lion. The mother’s only concern, like most mothers in contested custody cases is to protect her children. Court professionals without the necessary domestic violence knowledge tend to focus on the myth that mothers frequently make false reports and assume they are acting out of vindictiveness. Mothers facing courts with these common and false beliefs do not receive fair trials.
When I taught batterer classes, the men in class often offered a variety of excuses for why their partner reported their abuse. The real answer is really very simple. She just wanted his abuse to stop. Courts need to stop concocting tortured explanations that fit a false equivalency between victims and abusers and replace it with conclusions based on context and reality.
Domestic violence experts first grew concerned about the biased and flawed response by custody courts from witnessing repeated findings of events that rarely occur. One example was deciding the father abused the mother once or twice and then stopped. This came from considering only physical assaults and requiring overwhelming proof of physical attacks. Even today, courts often ignore or give only lip service to coercive control tactics. Most domestic violence (DV) is neither physical or illegal and these tactics would help courts recognize the abuser’s motives if courts relied on professionals with DV expertise.
In most DV custody cases, the father wanted or demanded the mother provide most of the child care during the relationship. In any litigation outside the custody courts, this would be correctly understood as an admission the mother is a good parent or else the father would have sought other arrangements. Abusers routinely seek custody by coming up with some explanation of why she is unfit. They often claim she is crazy or alienating. What are the chances that mothers with the maternal instinct to protect her children suddenly became unfit because the relationship ended and she reported his abuse? It is close to zero everywhere except in our family courts.
The original sin was to turn to mental health professionals as if they were the experts in domestic violence and child abuse. This was based on popular misconceptions at the time that assumed DV was caused by mental illness or substance abuse. Courts have continued this practice even after the original assumptions proved wrong. The more recent Saunders Study found most court professionals do not have the specific DV knowledge courts need and recommended a multi-disciplinary approach that includes experts in DV and child sexual abuse when those are key subjects in the case.
Instead, evaluators typically rely on psychological tests that were not meant for the populations seen in family court. The evaluators often focus on the mother’s difficulty dealing with their abuser and court professionals she views as failing to protect her children. This leads to diagnoses that pathologize the victims. In many of the cases, context would demonstrate that the mother is successful in other parts of her life which should cause the professionals to discard their diagnosis. Except in family court.
Gender bias research demonstrates that courts are often influenced by bias against mothers who are litigants. Common examples are holding mothers to a higher standard of proof, giving fathers more credibility (despite the research) and blaming mothers for the actions of their victims. This bias and the influence of sexist stereotypes routinely lead courts to favor the weaker and often the more dangerous parent.
Supporting Mothers Protecting their Children
Courts have to consider each case separately based on the individual circumstances, but family courts will have a much easier job of protecting children when the aggression is not as obvious as the mountain lion if they use accurate and useful information that focuses on the well-being of children.
If we could ask court officials one question, it would be why have you taken so long to integrate scientific research that goes to the essence of the best interests of children and comes from the most credible sources? Custody cases involving possible domestic violence and child abuse are fundamentally different than other cases. These are the cases in which mothers and children are too often murdered and children’s lives are often ruined. There is a specialized body of knowledge that must be used if courts don’t want to continue to get these cases tragically wrong.
Malpractice is committed every time a court tries to respond to a DV custody case without the benefit of ACE and Saunders. This research demonstrates DV and child abuse are far more harmful to children than courts assume; most court professionals do not have the necessary knowledge of DV; The excessive focus on the myth that mothers frequently make false reports and unscientific alienation theories is caused by reliance on professionals without the DV knowledge they need; shared parenting is crazy in DV custody cases; and approaches that are based on forcing victims and children to just “get over it” have no chance of success.
Instead of making most decisions based on myths and stereotypes, accurate and consequential information is available. Who is the primary attachment figure? Did one parent want the other parent to provide most of the parenting during the relationship? Who is afraid of the other parent? How were decisions made during the relationship? Who do DV experts believe is the abuser? How is the family’s money being controlled and used? Is there a party trying to control the other party? Who has the superior parenting skills? In every case, this seeks information more about the well-being of children and more likely to reveal the truth about abuse allegations than the myths, bias, stereotypes, ignorance and misogyny relied on in most cases.
We started this article by referencing the story of a mother saving her child from a mountain lion because it helps illustrate motivations that custody courts routinely miss. The Bala Study is scientific research repeatedly cited in Saunders that most courts fail to consider. Bala found that mothers involved in contested custody make deliberate false reports less than 2% of the time. Even though the mothers are dealing with a contested custody case, they are similar to most mothers. Contrary to sexist myths, they rarely make false reports that would harm their children, but like the mother who repeatedly punched the mountain lion, they will do whatever is necessary to protect their precious children. And in a court using false assumptions, brave mothers are constantly punished for actions any good mother would do.
The Bala Study also found that fathers involved in contested custody are 16 times more likely to make false reports. In other words, the fathers involved in contested custody are very different from the average father. This is because most contested custody are really domestic violence cases. The courts, which won’t assume anything based on good scientific research instead assume the mothers in contested custody are worse than other mothers and the fathers are the same as all fathers who want to be in their child’s life. The history of mistaken assumptions and failure to incorporate valuable research means the courts do not understand the nature of DV custody cases or the parties involved. When courts have inadequate time for the most dangerous cases and rely on shortcuts that hide the context, it is little wonder the courts often fail to protect children.
The mother risked literally everything to save her son from the mountain lion. She did this because there is no higher priority than protecting her child. In a court system that still doesn’t use best practices, mothers risk everything to save their children. What makes this work so hard is that they usually lose. We have spoken to these mothers. Like the heroic mother described above, they would rather lose their life than see their child harmed. There is no stronger instinct than a mother protecting her child. When was the last time you heard a custody court discuss this instinct while trying to understand a mother’s motives?

Barry Goldstein
Child Custody Task Group