Judges Unaware of Custody Court Crisis
Barry Goldstein
Courts cannot save children if they are unaware that standard court practices routinely place children in jeopardy. Researchers, experts in domestic violence and child sexual abuse and people who can count fatalities know custody courts are getting a high percentage of abuse cases tragically wrong. Unfortunately, judges, lawyers and evaluators live in an insular world shielded from the awful consequences of their routine mistakes.
We now have substantial scientific research from highly credible sources like the CDC and US Justice Department but court professionals mostly make their decisions without this valuable information. The ACE (adverse childhood experiences) Research demonstrates that exposure to domestic violence and child abuse causes far greater harm than previously understood. Most of the harm is caused from living with the fear and stress abusers cause rather than the immediate physical injuries courts focus on. The children will live shorter lives and suffer a lifetime of health and social problems. This goes to the essence of the best interests of children. Domestic violence custody cases represent the last chance to save the children from exposure to ACEs. But courts routinely resolve abuse cases without any discussion of the children’s ACE score or how to reduce the catastrophic fear and stress.
The Saunders Study was created to determine whether judges, lawyers and especially evaluators have the specific domestic violence knowledge needed to respond effectively in DV cases. For the most part the professionals do not possess this vital knowledge and this leads directly to a failure to recognize domestic violence and practices that minimize abuse and instead focus on far less important issues. The lack of this expertise by evaluators is especially harmful because it gives judges and lawyers a false sense of confidence in their ability to respond to abuse cases. Saunders should have been used to revise training and dangerous practices in the courts, but most court professionals in their insular world don’t even know about the findings in Saunders.
Closing the Circle on Custody Court Failures
How can courts respond effectively to abuse cases when they aren’t using the most important and relevant research and rely on professionals who do not have the necessary knowledge? They can’t and it is the children who keep paying the price—often the ultimate price.
The frequency of tragic custody court outcomes is what one would expect from a broken system. In the last ten years, over 650 children involved in contested custody or related matters have been murdered; usually by abusive fathers. In many of the cases the court gave the killer the access he needed to murder his children. The Bartlow Study asked judges in the communities where these tragedies occurred what reforms were created in response to the local murder. The shocking response was none because they all assumed the tragedy was an exception.
The Leadership Council found that courts send 58,000 children a year for custody or unprotected visitation with dangerous abusers. Research by Neustein and Lesher found the courts are giving custody to alleged sexual abusers 85% of the time. Research by Dr. Joy Silberg on “turnaround” cases and the experiences of the Courageous Kids provide anecdotal evidence of the frequency of dangerous outcomes.
If the court system was geared to err on the side of safety for children this would have been more than enough to require reforms to better protect children. Unfortunately, court officials in the insular system are extremely defensive about their mistakes and bad practices. Accordingly, the National Institute of Justice awarded a grant to Professor Joan Meier to obtain definitive scientific findings about the frequency of dangerous decisions in DV custody cases.
Professor Meier conducted a random search for appeals in custody cases involving domestic violence, child abuse and claims of alienation. The final report is expected to be released in June, but she gave a preview at the Battered Mothers Custody Conference.
The Bala research, cited in Saunders demonstrates that mothers make deliberate false reports in custody disputes less than 2% of the time. Richard Gardner concocted his original alienation theory not based on any research but only his personal beliefs and biases that include many public statements supporting sex between adults and children. It is a sexist theory based on the false assumption that abuse reports are almost always fabricated and was designed to help fathers take custody from safe mothers.
The Meier Study will demonstrate that unscientific alienation theories have more influence in the custody courts than peer-reviewed research like ACE and Saunders. Custody cases continue to be influenced by gender bias despite a long history of court-sponsored reports confirming widespread gender bias against women. Accordingly, the Meier research will show that courts are giving allegedly abusive fathers custody in a high percentage of cases and a significant majority of cases in which alienation is credited. This will confirm the earlier research that the widespread use of flawed and outdated practices leads to widespread decisions forcing children to live with their rapists and abusers. The findings help explain why so many children are murdered and even more will die from suicide, drug and alcohol abuse and from health problems like cancer and heart disease as predicted by the ACE Research. With the publication of the Meier Research, the circle will be closed. The use of flawed and outdated practices and failure to use current scientific research cause custody courts to make decisions that destroy the lives of the children they are supposed to protect.
This Is What the Broken Custody Courts Look Like
Most custody cases, like other litigation get settled. The problem is the 3.8% of cases that require trial and often much more. These are the most dangerous cases because a large majority involve the most dangerous abusers—fathers who believe she has no right to leave. These are the cases in which children, mothers and bystanders lose their lives. These are the cases in which children are raped and molested. And these are the cases where children suffer the horrific consequences of adverse childhood experiences.
Today, court professionals are taught to treat these domestic violence cases as “high conflict.” The courts assume they have two good parents who are angry at each other and act out in ways that harm the children. So, mothers and children are pressured to accommodate their abusers instead of requiring fathers to change their behavior if they want a relationship with their children. This works great for abusers who sought custody to regain access and control over their victims. Mothers are routinely punished for trying to protect their children as we would expect good mothers to do. None of the court professionals seem to notice that high conflict and shared parenting move the courts away from safe parenting as a priority that benefits children.
Judge Jeffrey Trauger is so ingrained with this mistaken analysis that he continues to defend his approach and blame both parents AFTER his decision led to the murder of 7-year-old Kayden Mancuso. In contested custody cases in which abusive fathers seek custody, their motive is to regain control and punish the mother for leaving. Jeffrey Mancuso, the father who murdered Kayden, left a note on her body saying you are getting what you deserve. Clearly, he was talking to the mother, Kathryn Giglio. The false equivalency involved in the high conflict approach was so ingrained that Judge Trauger and his colleagues continued to blame both parents. As a practical matter if court professionals still cannot abandon the false equivalency after a murder, what chance do battered mothers and children have if all they can present is evidence of the father’s abuse?
The judge claimed Kayden was not at risk because the father’s threats and abuse were directed at her mother. As the note demonstrated, abusers understand the best way to hurt a mother is to hurt her child. Kayden had expressed fear of her father because she had witnessed him assaulting others. ACE tells us that forcing a child to live with this fear and stress is likely to cause profound health and other consequences but most courts, like Trauger’s are not using current research to inform their decisions.
The story of Baby Wyatt was told on an episode of Dr. Phil. Katie Taigle, Wyatt’s mother sought a protective order against the father who had threatened to kill the baby. The transcript showed that Judge Robert Lemkau repeatedly stated that he believed the mother was lying and gave the father the access he needed to kill Wyatt.
Judge Lemkau was sincerely upset at the results of his decision. He apologized to the mother, but said there was nothing he could have done based on the information he had. In one sense this was true because courts cannot protect children as long as they use the standard outdated and flawed practices routinely relied on. Judge Lemkau’s assumption the mother was lying was not based on any evidence, but rather the myth that mothers frequently make false abuse allegations in order to gain an advantage in custody disputes. The Saunders Study found that court professionals without the specific domestic violence knowledge and training needed tend to instead focus on this myth. In other words, Wyatt would be alive today if Lemkau’s court was using current research like Saunders.
The same mistakes and flawed practices that lead to child murders more often lead to decisions that expose children to more abuse with the resultant harmful consequences spelled out in the ACE Research. Shared parenting is never appropriate in domestic violence cases, but victims are routinely pressured and threatened with a loss of custody if they don’t agree.
Initially Faith had primary residence with her safe mother, but when she was five her abusive father was given primary residence because it worked better for her school schedule. The abusive father used his authority to limit the mother’s contact with Faith. Over the years, Faith developed mental health problems from living with the fear and stress an abuser causes. The father would only allow therapy with a therapist he could control and manipulate. The court eventually ordered new therapy, but the father delayed the treatment. Faith could no longer tolerate her pain and committed suicide.
Based on the ACE Research, it is important for the safe parent to have control over health decisions because an abuser doesn’t want the child in therapy where his abuse might be revealed. Saunders found that shared parenting works poorly in domestic violence cases because abusers refuse to agree to anything the mother wants such as therapy for Faith.
The final case is ongoing and at a dangerous point so I will not use names. It involves sexual abuse of a boy that started when he was two. The child revealed the father would play the “penis game” with him. The court minimized and disbelieved the child’s reports and forced him to continue the dangerous visitation.
When the boy was three, his mother had a court-related appointment and left him with his best friend, also three. The boy took his friend into the bedroom and convinced him to take off his clothes. By the time the friend’s mother found them, the boy’s penis was sore from trying to push it up his friend’s bottom and he had peed all over his friend’s back. The evaluator, who claims to be an expert in child sexual abuse dismissed the incident as “playing doctor.”
This is an extreme example where most professionals and most laypersons could recognize this child had been sexually abused. In the insular world of the court, this long-time evaluator was trusted and another evaluator similarly recommended the abusive father should have custody. This is what happens in a system that disbelieves almost all reports of child sexual abuse.
The Saunders Study supports the use of a multi-disciplinary approach. When issues of child sexual abuse or domestic violence are part of a case, the court needs to rely on an expert in DV or child sexual abuse instead of a mental health professional. If there are also mental health issues the court could hear both. This is particularly important where the small group of psychologists and psychiatrists that regularly appear in custody cases are influenced by a culture that tends to disbelieve true reports of abuse and has failed to keep up with current scientific research that demonstrates many of the standard practices work poorly for children.
Conclusion
No judge wants to destroy children’s lives, but there is a systemic failure that the courts have been unable to overcome. It started forty years ago at a time when domestic violence was first becoming a public issue and no research was available. Popular assumptions suggested that men abused women because of mental illness, substance abuse or the actions of the victims. This led courts to turn to mental health professionals as if they were the experts in domestic violence. Practices were developed based on these mistaken beliefs. The practices became lucrative for many lawyers and mental health professionals. A charlatan developed a phony and sexist alienation theory so unscrupulous professionals had an approach to advocate for wealthy abusers.
Inevitably, good scientific research became available that disproved many of the original assumptions. A cottage industry of lawyers and mental health professionals had a financial incentive to maintain the status quo. Judges were used to relying on professionals who were experts in psychology and mental illness, but not domestic violence. These professionals made it easy for judges to adopt their biased and ignorant findings. They often had more credibility because they responded effectively to the majority of custody cases that did not involve abuse. The court system became defensive about criticism and didn’t want to develop needed reforms that would imply earlier decisions were harmful.
An insular atmosphere was developed because the court kept using the same small group of professionals. This made it far less likely that new research that would make the courts’ job easier would be integrated. Courts often treated different professionals, especially with different, but often better qualifications with skepticism or even disapproval. Retaliation against mothers trying to protect their children and any professionals who dared challenge discredited practices, helped silence any possible criticism.
The Saunders Study found that we now have a substantial body of scientific research about domestic violence. This research can be used to help courts recognize and respond to abuse. Most important, the research and improved practices would help save children from the awful consequences of exposure to adverse childhood experiences.
Any court could develop reforms to better protect children. There is nothing in the law that would prevent this. There are individual judges and courts that have improved their practices. The National Council of Juvenile and Family Court Judges encourages judges to integrate current research like ACE and Saunders.
The stories I included in this article and in my many books and articles are not the exception. Indeed, one of the continuing court mistakes is missing the pattern of abuse within and among domestic violence cases. Accordingly, every day more children’s lives will continue to be ruined by the courts until judges understand the crisis in the custody court system that has now been definitively confirmed.
I hope court officials will start creating the needed reforms, but the children cannot afford to wait until this is done. Accordingly, we need the media to expose this cruel scandal. We need the public to start demanding that custody courts be made safe for children. We need legislators to pass the Safe Child Act that would require the necessary reforms based on current scientific research.
Sadly, it is too late to save precious children like Kayden and Wyatt. Contested custody cases are often the last chance to save the children. The crisis in the custody court system might be painful to consider and inconvenient for the professionals involved, but for the sake of the children we must stop looking away.
Barry Goldstein
Child Custody Task Group
Important Links
Current scientific research http://www.nctsn.org/content/children-and-domestic-violence
Trauma-informed http://www.nctsn.org/content/children-and-domestic-violence
ACEs Study, Center for Disease Control and Prevention (CDC) https://www.cdc.gov/violenceprevention/acestudy/
Protecingt children who are largely unprotected now https://100r.org/2016/12/custody-2/
