by Barry Goldstein
New Research Requires Changes in Custody Court Practices
Starting with the ACEs (Adverse Childhood Experiences) study in 1998 medical researchers have established the enormous and long term harm to children from being exposed to traumatic events such as witnessing domestic violence and direct physical or sexual abuse. The research establishes that there is a cumulative adversity so that the more exposure a child suffers the greater the chance of serious medical consequences and the more serious those consequences are likely to be. There is now a substantial body of medical research that establishes not only the enormous harm to children, but the many mechanisms that result in increased illnesses and injuries during their childhood and for the rest of their lives. When court or other professionals fail to take sensible actions to safeguard children, or give more consideration to less important factors they are literally reducing the life expectancy of these children.
When domestic violence first became a public issue in the mid to late 1970s, custody courts had to develop practices to respond. For many years when a protective mother went to court seeking a protective order and for any visitation with the father to be supervised judges would routinely ask some version of “Did he also assault the child?” If the answer was no, the court treated the father as if he was just as qualified as the mother for custody and visitation. These risky practices continued until the eighties and nineties when research established that children witnessing domestic violence were more likely to engage in a wide range of harmful behaviors when older including substance abuse, self-mutilation, teen pregnancy, dropping out of school, prostitution, crime and for boys to assault future partners and girls to be assaulted by future partners. These findings led to legislation in every state either to require courts to consider domestic violence in any decision about custody or visitation or to create a presumption against custody for abusers under some limited circumstances.
Every state has adopted the best interests of the child standard to determine custody and visitation and has developed a list of factors either legislatively or through case law that must be considered in making these decisions. Unfortunately the states have not required that children’s safety be treated as the first priority so courts are free to use very subjective standards when deciding where the children will live. In many cases political or personal beliefs and factors far less important than the safety of children are determinative in custody decisions. This often poisons the process because abusers can distract attention from safety issues by raising less important issues. Judges sometimes believe that fairness requires the court to treat the issues raised by the mother and father equally even though one of those issues is more fundamental to the well-being of children. This is an example of false equivalency that is common in custody courts. In many cases, courts weigh allegations of domestic violence and alienation as if they are equally important to the well-being of children. At worst, alienation might temporarily interfere with the relationship between the child and a parent while domestic violence leads to serious and life impacting health problems throughout the child’s life and often reduces how long they live. I have never heard an evaluator or a judge weigh the relative importance of these issues based on scientific research. This is particularly problematic because claims of alienation are a common abuser tactic but courts seem to be more open to these allegations than domestic violence which mothers rarely falsify.
There is now a substantial body of medical research that establishes the enormous risk to children of exposing them to domestic violence. The research demonstrates that these children have significant, increased risk of illnesses and injuries as children and need more medical care. Significantly, these medical problems do not end when children reach their majority but continue for the rest of their lives. They will have far more medical needs as adults and their life expectancy is reduced. I believe that custody courts cannot continue to tolerate practices that result in children losing precious years from their lives. This research requires fundamental reforms or else the courts cannot be acting in the best interests of children.
The Medical Harm to Children Witnessing Domestic Violence
One of the leading experts about the medical consequences of childhood trauma is Kathleen Kendall-Tackett. The second edition of her book, Treating the Lifetime Health Effects of Childhood Victimization, was recently published. This is a book by and for medical professionals that is designed to help them treat a variety of conditions in adult patients that were caused or exacerbated by traumas suffered as children. The research and the writing were not designed to respond to custody court issues, but the information should be required for any court that wishes to act in the best interests of children.
The long-term harm of exposure to domestic violence or direct physical or sexual abuse can and does develop in a myriad of ways. A child could develop immediate and obvious symptoms or the harm can go unnoticed for many years. The author encourages doctors to ask about childhood trauma because so many different ailments can have their genesis with childhood trauma. This is especially problematic because patients are rarely thinking about events from decades earlier as the cause of their health problems.
There are many ways in which childhood trauma can seriously impact health now and in the future. The trauma can cause increased inflammation that can trigger numerous diseases now and in the future. Accordingly, Dr. Kendall-Tackett recommends an anti-inflammatory for children exposed to abuse. Quite naturally, exposure to domestic violence often interferes with the child’s ability to enjoy the quality and quantity of sleep needed. This and several other common responses to abuse can lead to obesity with increased risk of heart disease, cancer, diabetes and other medical problems. The author suggested that programs and campaigns designed to prevent obesity ought to include efforts to make sure children get their needed sleep and avoid exposure to domestic violence and child abuse. Indeed these experiences often lead to eating disorders.
Many diseases including heart disease, asthma and diabetes are caused or exacerbated by stress. One of the major reasons researchers found that we spend $750 billion per year on health costs related to domestic violence is because excessive stress is so inimical to good health. Domestic violence is especially harmful because there is the constant danger that the abuser will threaten or hurt his partner. Accordingly the stress is repetitive. This harm is especially severe for children whose various systems are still developing.
As discussed earlier, witnessing domestic violence strongly encourages substance abuse. The use of illegal drugs, tobacco and excessive use of alcohol, especially by children also creates a wide range of long-term medical problems. Many of the factors I am discussing interact with each other to reinforce the most negative impacts.
Exposure to childhood trauma also increases the risk of depression. This in turn can cause behaviors that further undermine the child’s health. Depression can discourage proper self-care, negatively impact the immune system and other bodily defenses and is a major factor in suicide. Significantly, separating children from their primary attachment figure as custody courts frequently do in domestic violence cases also causes depression. I mentioned before that cumulative adversity magnifies the risk so that it is particularly devastating to children who have witnessed domestic violence or been directly abused to be denied a normal relationship with their primary parent.
Childhood trauma is also associated with risky sexual behavior. This is another example of how witnessing domestic violence leads to many behaviors that cause still more health risks. Risky sexual behavior can lead to sexually transmitted diseases including HIV and cause survivors to interact with dangerous individuals. It can also encourage the use of dangerous drugs.
For children to witness their father or another man abusing their mother, they would tend to be fearful and angry, but often it is unsafe for them to express their anger particularly to the abuser. This can cause them to express their anger in other ways that can undermine their health and safety. This can result in both physical and mental illnesses or cause them to get into fights where someone else hurts them. The childhood trauma also can lead to shame and self-blame that can be harmful to their health. Significantly, low self-esteem can also be caused by denying children normal contact with their primary attachment figure so that many common custody court approaches serve to multiply the harm caused by domestic violence.
In many ways, domestic violence leads to poverty and this undermines the health of victims. Education is important in order to improve one’s economic status. Children who witness domestic violence and often miss needed sleep both because of frightening incidents at night and the fear which makes it hard to sleep at other times. This makes it difficult for children to get their work done in school. They may also act out because of their anger. Economic abuse is an often overlooked part of domestic violence tactics so that mothers seeking to leave their abusers often lose income and family resources. In many cases the bias favoring abusive fathers forces mothers to trade support for custody. Small wonder at least half of the homeless population consists of mothers and children who left abusers. Many children also leave home because of domestic violence, physical or sexual abuse. Victims with limited financial resources often can’t afford safe housing, healthy food and needed medical care. All of this contributes to medical problems facing children impacted by domestic violence.
Many victims of childhood trauma suffer from unexplained or inadequately explained conditions. Many are labeled as hypochondriacs which may say more about the failure of the medical community to find the cause than the complaints of the victims. These experiences are painful in many ways both physically and emotionally and can prove debilitating. Living with pain undermines other parts of a person’s life and interferes with their ability to reach their potential.
Just as any adverse experiences a child has are cumulative so that combined they are much more harmful, the same is true of the many medical consequences caused by domestic violence and child abuse. The various conditions which are just some of the problems faced by children impacted by domestic violence come together to magnify the harm done to children. This research ought to make clear that we must stop minimizing the significance of these childhood traumas.
Impact of Health Concerns in Individual Cases
The fact is that the present custody court response to domestic violence has been a disaster for battered women and children. Everything is severely tilted to favor abusive fathers so that the outcomes are often catastrophic and the court discussions tend to focus too much on protecting abusers’ interests rather than safeguarding children. Accordingly we are desperately seeking to find a way to help court professionals understand the enormous harm they are causing by following outdated, discredited and biased approaches. In succession we have hoped that the powerful documentation of court failures contained in The Batterer as Parent, Domestic Violence, Abuse and Child Custody, the Saunders’ study from the US Department of Justice and Representing the Domestic Violence Survivor might encourage court officials to take a fresh look at false assumptions that continue to place children in jeopardy. Much of this research and publications are new so they still may help change the system as they sometimes change individual cases. They may also have a cumulative effect over time.
The new research about the lifelong health impacts on children witnessing domestic violence, child abuse and other childhood traumas ought to require courts to take a new look at standard practices. There are two important differences that might help give this information some traction. The research does not come from anyone involved in the domestic violence movement, but rather is from the medical community. It was developed for the purpose of better treating adult patients who suffered childhood trauma. In other words it would be hard for anyone to discredit this research. The second factor is that the findings go to what is supposed to be the essence of what custody courts are supposed to do. HOW CAN ANYTHING THAT DOES NOT IMPACT THE IMMEDIATE SAFETY OF CHILDREN BE TREATED AS IF IT WERE AS IMPORTANT OR MORE IMPORTANT THAN CHILDHOOD TRAUMAS THAT RESULT IN INCREASED ILLNESSES AND INJURIES THROUGHOUT THE LIFE OF THE CHILDREN AND REDUCED LIFE EXPECTANCY?
This medical research strongly supports requests from protective mothers to make safety the first priority. Common issues that courts routinely consider as factors in deciding custody and visitation like alienation, friendly parent, which home is nicer, relative financial status of the parties, children’s preference and many of the phony or unimportant mental health diagnoses used to pathologize protective mothers pale in comparison with the significance of factors that impact children’s health such as domestic violence and child abuse. Not only should the court place far more weight on these factors, but there is no reason to allow issues that do not impact children’s safety to distract attention from factors that so directly impact the well-being of children. The “rights” of the parents, which “fathers’ rights” groups have elevated to the first priority, must be subordinated to the health and lifespan of the children. Yes, courts should have seen that before, but the research about the impact of trauma means that political beliefs about father’s rights can no longer be used to undermine children’s safety.
We have also seen many evaluators and other court professionals who do not understand domestic violence dynamics require some artificial level of domestic violence or child abuse before taking the risk seriously. In our new book, Elizabeth Liu and I wrote about a New York evaluator with a bias for shared parenting who claimed to know domestic violence when he saw it and required the victim to have serious physical injuries before he would allow claims of domestic violence to interfere with his personal preferences. Similarly some states require a more “serious” offense or level of proof such as conviction of a felony before presumptions against custody for abusers apply. This would not prevent a court from protecting children in cases that do not rise to this level, but some courts have discarded evidence if it fails to meet the requirement for the presumption. Courts sometimes forget that the purpose of considering domestic violence is because of the harm it does to children. The medical harm I have been discussing in this article is not limited to cases in which the victim sustains a “serious” injury or even to cases of physical abuse. Furthermore, one of the problems with the custody court response to domestic violence is the widespread failure to understand domestic violence dynamics. Abusive fathers commit domestic violence tactics based on a belief system that they are entitled to control their partner and make the major decisions in the relationship. His belief system does not change with the end of the relationship and in fact the use of the custody tactic demonstrates the likelihood he will continue to abuse future partners. If the abuser is granted custody or unsupervised visitation, the children are likely to witness still more domestic violence. This adds to their cumulative adversity and therefore dramatically increases their medical risks.
The severity of the harm of domestic violence makes it critical that courts are able to recognize true allegations of abuse. We frequently see practices where courts rely on inadequately trained court professionals. The Saunders’ study recommended these professionals need to learn how to screen for domestic violence and conduct a risk assessment. In many cases allegations of domestic violence are dismissed for non-probative reasons such as the mother returning to her abuser, failing to follow-through when seeking a protective order, having no police or medical records or the children interacting with their father without fear because they know he would not hurt them in front of witnesses. At the same time few lawyers know to present the pattern of coercive and controlling tactics which includes so much more than physical abuse and judges and evaluators rarely look for this pattern. Evaluators routinely fail to use any tools such as the Campbell Danger Assessment that would help them recognize the danger, but instead rely on psychological tests that tell them nothing about domestic violence. We cannot continue to use such flawed practices and inadequately trained professionals when the resulting mistakes are likely to reduce children’s life expectancy. It becomes even more important for courts to use best practices which include considering current scientific research and at least consulting with a domestic violence expert. A psychologist or other mental health professional could also be a domestic violence expert, but this is rare. The Saunders’ study found that a mental health degree and the standard and required training for evaluators do not provide the level of expertise needed for domestic violence cases.
Many protective mothers have complained that their attorneys refuse to present evidence of abuse. The new medical evidence will make it critical that attorneys not only present the father’s history of abuse, but make sure the court is aware of the enormous medical harm to children to witnessing domestic violence. They must also ask the courts for the protection that is needed including protective orders and supervised visitation. One of the findings in the Saunders’ study is that courts did not limit alleged abusers to supervised visitation as often as needed.
The Medical Research Requires Fundamental Reforms in the Custody Courts
The enormity of the harm to children caused by witnessing domestic violence, child abuse and other childhood trauma makes it critical that society find ways to protect children and minimize their exposure to risk. Now that the research is available that demonstrates the cumulative impact of adversity on children, our method of resolving custody and visitation must assure everything possible is done to minimize this risk.
Our system of jurisprudence is based on the belief that if both parties present their best case the truth will usually prevail. This is particularly problematic when one party has significantly more resources. This frequently happens in domestic violence cases because abusers use control tactics that include control of financial resources. They have also developed tactics designed to bankrupt their victims by using aggressive and often questionable legal strategies. In many cases, protective mothers are left unrepresented by the time the case comes to trial. This means the results are often determined more by the relative wealth of the parties than the merits of the case. This can no longer be tolerable when the result often takes years off children’s lives. The Batterer as Parent recommends that the abuser pay all expenses including legal fees made necessary by his abusive behavior. Judge Mike Brigner has written that courts have the authority to level the playing field but rarely make use of this authority. At the very least courts will have to become more aware of economic abuse and create effective remedies so that victims can present their side of the story in a meaningful way.
Lawyers are ethically required to zealously advocate for their clients within the law even when this causes a miscarriage of justice. In the case of a criminal defense attorney they are required to use defense strategies that sometimes result in guilty criminals going free. In some cases they use their freedom to kill or hurt new victims. Nevertheless the potential harm would be speculative and the greater good of maintaining our system of jurisprudence takes precedence. Can it be ethical to use the same legal principles to help an abuser gain custody or unprotected visitation which is likely to seriously harm the health and well-being of a specific child victim?
It seems to me that the harm to children’s health requires that the legal and mental health community take a fresh look at the ethics involved in practices that are likely to hurt children. This is particularly true of the lawyers and psychologists who are part of the cottage industry that makes its money supporting abusive fathers. Can it be ethical given the new research for mental health professionals to provide reports and give testimony based on personal beliefs and theories unsupported by scientific research that are likely to harm the children in the case? Similarly can attorneys for batterers ethically use strategies deliberately designed to mislead or confuse the court in ways that place children in jeopardy? Can these professionals remain ignorant of current research so that they are unqualified to handle the case but can truthfully say they were unaware of the danger they helped create? Another way of asking this is should the legal system reconsider how custody and visitation are determined in cases involving domestic violence and child abuse in order to make sure the children’s health is protected?
At a minimum, it seems to me the courts must create a screening system so a professional with genuine domestic violence expertise reviews each case and sends all domestic violence cases to a special part or section that specializes in these critical and difficult cases. This will be important because a lot of common custody practices particularly seeking to require the parents to cooperate are inappropriate in domestic violence cases. Children will benefit if the professionals responding to the case understand the serious health and safety risks the children are probably facing.
The judges presiding over these cases would have special training about domestic violence and understand the risks involved. They would be used to looking to the specialized body of domestic violence research to inform their decisions. Lawyers, GALs and evaluators (if needed) would all be required to have the necessary training. The focus would be on the safety of the children as it should be.
The initial inquiry would be limited to the validity of allegations concerning domestic violence and child abuse. This avoids distractions from other less important issues that abusers often use as part of their tactics to avoid responsibility for their actions. If allegations of domestic violence or child abuse are confirmed the court will protect the children and encourage actions that would limit the long-term health impact.
The first priority is to make sure the children are never again exposed to these traumatic events. This is especially important because of the increased harm from cumulative adversity. Professionals trained in domestic violence dynamics will understand the danger for children to witness the offender’s abuse of future partners if the children are not protected.
There are responses and treatment children can receive that would reduce the harm caused by exposure to domestic violence and other trauma. In some cases they might receive anti-inflammatories to reduce negative consequences. Their sleep patterns can be monitored so they can be helped to get the sleep they need. Mental health therapy can be used to cope with the trauma and respond in more healthy ways. The protective parent is more likely to encourage the needed treatment, make it safe for the children to discuss their experiences and help them heal. In the present custody system, we often have arrangements that give the abuser control or veto power over treatment and other issues which are used to prevent or discourage the necessary treatment. This is another example where the “rights” of the parent or the minimization of abuse are harmful to the long-term health of the children.
Given the enormous risks to children’s health, it is important that children have access to any treatment that could prevent serious health consequences years later. This treatment is available today and could help protect children’s health. Other treatment may be needed as the child gets older and new symptoms develop as a result of earlier traumas. Many of the treatments will only be effective if the child is no longer exposed to domestic violence and abuse and is made to feel safe. This is another reason courts should be giving custody to the safer parent. It should be considered malpractice for any court professional to make recommendations that undermine a child’s chance to heal.
What happens if a court mistakenly believes a mother’s allegations about the father’s abuse and limits the children’s contact with the father? The children would be denied some good times with their dad and be denied opportunities to learn from him. This would be wrong and harmful and I have no desire to minimize the negative impact on the children. What happens if the court disbelieves the mother’s true complaints and provides the abusive father with unprotected visitation or even custody? This is an unmitigated catastrophe that substantially increases the children’s risk of illnesses and injuries throughout their lives and likely result in a shorter life. Certainly a less pleasant and productive life. In the rare event that the mother made a false complaint, the missed time can be made up and there is no reason to expect any long-term consequences. When the court fails to protect a child from an abuser, it is possible it can later realize its mistake and modify the custody arrangement. One problem, however, is that in my experience courts that rule against protective mothers are often extremely defensive about their mistakes and rarely correct them. Furthermore the abusive father is likely to use the control given him by the court to undermine the mother’s relationship with the children. It is possible, the children could be returned to the mother and receive treatment to ameliorate the harm caused by the court decisions, but in many cases much of the damage will be permanent.
Courts routinely consider the relative risks of being wrong in most other types of cases, but rarely in domestic violence custody cases. Indeed most evaluation reports and court decisions that I have read fail to weigh the relative risks and benefits of a given action based on scientific research.
The Saunders’ study from the U. S. Department of Justice recommended that evaluators and other court professionals receive training about the impact of domestic violence on children. Most of the court professionals who participated in the study claimed to have this research. In the case of the evaluators, however, this was not supported by their response to vignettes presented as part of the study. I suspect that when the professionals claimed they had this information, they were referring to the earlier research that witnessing domestic violence makes children more likely to engage in harmful behaviors when older. The frequency that courts minimize the significance of domestic violence strongly supports this conclusion.
The Saunders’ study also recommended that court professionals get training in screening for domestic violence. The serious consequences when courts fail to recognize true allegations of abuse confirm why this is so important. So does the finding that the courts are not imposing supervised visitation on alleged abusers as often as they should. Significantly, court professionals without adequate training tend to believe the myth that mothers frequently make false allegations of abuse. This means that in many cases the lack of training or bias of court professionals causes decisions that pose enormous risks for children. Even if the judge knows that mothers rarely make false complaints, the court might be relying on an evaluator or GAL making a recommendation based on this myth.
Now that we know the enormous lifetime medical harm caused to children when they are exposed to domestic violence and child abuse, what will we do to minimize the potential harm? I would like to ask judges and court administrators if they agree this medical research requires a fundamental review of practices used to respond to abuse allegations. In order to better protect children, would the courts be willing to create meetings with leading researchers and domestic violence advocates to explore the best ways to protect our children. THE LOSS OF ONE YEAR FROM ONE CHILD’S LIFE IS ONE YEAR TOO MANY.