Practices that Risk Children Baked into Court Procedures: 20 Routine Practices that Endanger Children

Barry Goldstein, NOMAS Child Custody Task Group

Protective mothers are angry that custody courts so often place their children in danger.  Many believe that only corruption can explain the frequency of risky decisions.  At the same time no judge wants to hurt children leading the judicial establishment to respond defensively to criticism.  Research confirms that the courts are not safe for children in cases involving domestic violence and child abuse.  58.000 children are sent for custody or unprotected visitation with dangerous abusers every year.  In a recent two-year period, researchers found news stories about 175 children murdered by abusive fathers involved in contested custody cases.  In many of these tragedies the courts gave the fathers the access they needed to kill the children.  The National Institute of Justice will soon release research designed to quantify the frequency of family courts making decisions that place children at risk.

I believe the discrepancy in the perceptions of protective mothers and the judiciary is caused because the courts continue to rely on practices developed in the 1970s at a time when no research about domestic violence was available.  Many of these outdated practices have a hidden and unintentional bias towards beliefs and outcomes that place children in jeopardy.  Below are twenty routine practices that make it harder for courts to recognize domestic violence and child abuse, minimize the harm of this abuse or both.

The widespread reliance on dangerous practices is illustrated by the delay in integrating important research that would make it easier to protect children.  The ACE (Adverse Childhood Experiences) Research comes from the Centers for Disease Control and Prevention and demonstrates the harm from domestic violence is far greater than previously realized.  Physical abuse is not necessary in order to create catastrophic consequences to children and approaches that ask victims to just get over it have no chance to work.  The Saunders’ Study from the National Institute of Justice looked at the knowledge and training of evaluators, judges and lawyers regarding domestic violence.  Although Saunders did not attempt to determine the frequency that courts rely on unqualified professionals, it is clear this problem is widespread and probably involves a large majority of the professionals the courts rely on.  While the courts have largely ignored this research which comes from the most credible sources, they have been strongly influenced and many would say poisoned by unscientific alienation theories that are not based on any research and have been condemned by every reputable professional organization that has considered it.

Standard Practices that Minimize Abuse and Encourage Disbelief of True Reports

1. Domestic Violence Dynamics:  Many aspects of domestic violence are counter-intuitive and many children have died because courts were unfamiliar with the dynamics.  In Connecticut a judge denied a petition for a protective order because he thought the threat wasn’t continuous.  Once an abuser engages in physical abuse the victim knows what he is capable of and he often uses legal domestic violence tactics to maintain control so the danger is continuous.  The father used the access to throw the baby off a bridge to his death.  In Maryland the judge denied a protective order after learning the parents had sexual relations immediately before court.  The judge thought that meant the father could not be so dangerous but never considered it might have been unsafe for the mother to refuse.  The father used the access to kill the three children.  Of course most mistakes from not understanding the dynamics do not have as dramatic and immediate results but they expose children to repeated abuse that often ruins lives.  Many abusers bring in friends and relatives to say how safe and peaceful he is.  The problem is most abusers act very differently in the privacy of their homes than in public.  Many professionals take an alleged abuser’s ability to behave appropriately during supervision as proof they are safe.  The problem is not that they cannot control their behavior, but they act differently when no one is watching.
2. Focus on Physical Abuse: When courts first started responding to domestic violence they limited their concerns to physical abuse.  The ACE Research confirms what domestic violence advocates have said for years that other forms of domestic violence are often much more harmful.  The essence of domestic violence is tactics designed to scare and intimidate the intimate partner.  This naturally causes fear in the (usually) mother and the children which leads to the worst kind of stress.  Living with this stress leads to a lifetime of harm including cancer, heart disease, mental illness, suicide, crime, substance abuse and many other health and social problems.  For many years the CDC used research that found the United States spends $5-8 billion on health costs for domestic violence every year.  This figure only considered the cost of treating her immediate physical wounds.  Based on the ACE Research, the actual annual cost is $750 billion.  In other words, focusing only on physical abuse responds to one percent of the harm although obviously physical abuse also causes fear and stress.
3. Relying on Mental Health Professionals: Courts started relying on psychologists and other mental health professionals at a time when there was virtually no research and the assumption was the domestic violence was caused by mental illness and substance abuse.  Subsequent research proves those assumptions are wrong.  These professionals are experts in mental health and psychology and can make important contributions when these issues are critical to the case.  They rarely have the level of expertise about domestic violence that is needed.  This causes them to disbelieve true reports of abuse, focus on less important issues and too often punish mothers who report abuse.  The evaluations seek to determine how the children are doing.  One of the problems is that children use a variety of defense mechanisms to survive and often do not act out in the obvious ways court professionals are expecting.  This leads to denial of true reports.
4. Need for Multi-Disciplinary Approach: The Saunders’ Study supports the need for a more multi-disciplinary approach.  They found that domestic violence advocates have more of the specific information courts need to respond to domestic violence cases than the court professionals presently relied upon.  The present approach is the equivalent of using a general practitioner for someone suffering from cancer or heart disease.  Saunders found that court professionals without the specific knowledge they need tend to focus on the myth that mothers frequently make false reports.  Expertise in domestic violence and child sexual abuse would help courts to respond to this life-altering abuse.  The ignorance is not neutral—it helps abusers, hurts victims and is often devastating to the children.  Custody court response to child sexual abuse is so problematic that many attorneys routinely discourage or refuse to present reports of sexual abuse out of fear the mother will be punished for even raising the issue.
5. High Conflict Approaches: Many court professionals have been taught to treat contested custody as high conflict cases.  This is interpreted to mean that the parents are angry at each other and act out in ways that hurt the children.  Most custody cases are settled more or less amicably including some involving domestic violence.  The problem is the 3.8% of cases that require a trial and often much more.  Research demonstrates a large majority of these cases are really domestic violence cases involving the worst abusers.  This is frequently not recognized because they usually don’t involve the most severe physical abuse.  These are the worst abusers because they believe their partner has no right to leave and so feel entitled to use any tactic necessary to regain control.  This often includes efforts initially or later to take children away from safe mothers who are usually the primary attachment figures.  High conflict approaches are often self-fulfilling in that professionals find what they are expecting.  The courts often pressure victims to cooperate with their abusers and severely punish them if they try to protect their children.  Better practice would be to pressure the abusers to stop their abuse if they want a relationship with their children.  The courts often fail to recognize litigation and economic abuse as a continuation of the history of domestic violence.
6. Considering Only Recent Abuse: The reason custody courts need to consider domestic violence is that children are profoundly harmed from exposure to these tactics.  Some courts refuse to consider incidents of abuse that they consider too old to be relevant.  This makes cases easier for courts and abusers but not for children.  Abusers use these tactics to coerce and control their partners.  A variety of coercive tactics are often used to remind victims of one or a few earlier physical incidents.  The ACE Research demonstrates that the fear and stress from the abusive tactics leads to a lifetime of health and other risks.  Domestic violence is not caused by the actions of the victim.  An older incident tells the family and should tell the court what the abuser is capable of.  The passage of time does not change the beliefs that led to physical or other abuse nor make the children feel safer.  Older incidents are relevant to the risk and harm children in the family face and the passage of an arbitrary period of time after incidents of physical abuse is irrelevant to the danger posed by the abuser.
7. Harmful Outcome Cases: The Saunders’ Study includes a section on what they call harmful outcome cases.  These are extreme decisions in which an alleged abuser wins custody and a safe, protective mother, who is the primary attachment figure for the child is limited to supervised or no visitation.  These decisions are always wrong because the harm of denying children a normal relationship with their primary parent is greater than whatever benefit the court thought it was providing.  In most cases the court used flawed practices that led to disbelieving true abuse reports, but even if the father is safe, the attempt to punish the mother is really punishing the child.  These are cases in which the court failed to weigh the usually speculative benefit with the certain risk it is creating.  The Saunders’ Study was released in 2012 and still harmful outcome cases continue to be common and many courts refuse to correct the error even after the research is cited.
8. Reliance on Cottage Industry of Biased Professionals: As mentioned earlier, contested custody is overwhelmingly domestic violence cases.  Since control is a key part of domestic violence, abusive fathers seeking custody usually control most of the family financial resources.  This means that the best way for lawyers and evaluators to make large incomes is to support approaches that favor abusers.  These professionals tend to be biased and ignorant of current research about domestic violence.  In many cases they are appointed to neutral positions like GAL or evaluator which offers victims almost no chance to protect their children.  Compounding the problem is that the misinformation provided by the cottage industry is often relied on in other cases thus spreading the poison into the system.
9. Manipulation by Abusers: Abusers tend to be very good at manipulation of court professionals and their victims.  When victims act angry or emotional because of the continued abuse, their behavior is viewed as highly negative.  Abusers will often act calm and cooperative or even cry as if they are hurting and they are believed.  Their ability to control their behavior is treated as if it discredits reports of domestic violence.  Court professionals rarely consider the motives of an alleged abuser and instead just assume they are acting out of love for the child.  Inadequately trained professionals often accept unlikely scenarios presented by abusers while using substantial skepticism against the victims.
10. Responding to Overcrowded Calendars: Context is critical to understanding domestic violence. At the same time courts often have limited time for each case and know most cases settle so the judge will not need to know the full story.  Accordingly, the court seeks to limit the parties’ discussion to just the limited facts needed for whatever decision is in front of the court.  This makes a lot of sense with most types of cases, but works poorly in domestic violence cases.  In many cases the abuser is using litigation and economic abuse to bankrupt the victim and pressure her to return.  The judge needs to understand the pattern of abuse and motives in order to respond effectively but approaches that limit what each side can say actually benefit the abuser who has a simpler story to convey.

Standard Practices that Encourage Disbelief of True Domestic Violence Reports

1. The Myth Mothers Make Frequent False Abuse Reports: The Saunders’ Study found that evaluators, lawyers and judges without the needed knowledge and training regarding domestic violence tend to focus on the myth of mothers making frequent false abuse reports and unscientific alienation theories. This leads to decisions that hurt children.  Research establishes that in the context of contested custody less than 2% of abuse reports by mothers are deliberately false.  The same research established that fathers in contested custody cases are 16 times more likely to make deliberate false reports.  It is not that men are 16 times more dishonest than women, but rather contested custody overwhelmingly involves the worst abusers who believe they are entitled to use any tactic necessary to regain control over their partners.  Parental Alienation Syndrome which is often used by other names like alienation or parental alienation because of its notoriety, is based on the false assumption that virtually every report of abuse is false.  Many courts continue to use alienation despite the lack of scientific support based on the “common sense” belief that of course some parents try to undermine the relationship between the children and the other parent.  One problem with this approach is that it just assumes substantial harm rather than requiring proof of specific harm.  The ACE Research suggests that unless the “alienation” results in taking a parent out of a child’s life it does not rise to a health or safety issue.  In most cases any damage is short-lived.  Another problem is that reporting domestic violence and even making sure children understand it is wrong is not alienation and is beneficial for children to know.  The myth is often self-fulfilling as professionals expecting to find false reports reach this conclusion far too frequently.  When PAS is used, including by another name, the alienation is assumed from the bad relationship between father and child rather than based on proof of what the mother said or did.  More likely explanations for the problem are ignored or discarded.  Even when the judge knows not to believe the myth, they may be relying on evaluators or lawyers who used the myth without articulating this mistake.  The myth is a poison in the court system that encourages mistakes the err on the side of risking children.
2. Missing the Context: Context is critical to understand domestic violence, but fundamental jurisprudence requires that courts consider each issue and each case separately. There is nothing in the law that would prevent use of best practices to look for patterns, but this is often missed.  It is conceivable that someone could commit one act of domestic violence and then stop or that an abuser can stop without effective intervention, but such scenarios are extremely unlikely.  When there are one or more incidents of abuse that cannot be denied abusers will argue for this rare circumstance and professionals without an understanding of domestic violence dynamics accept this unlikely claim.  Teachers routinely use common sense to know that “the dog ate my homework” is usually a false excuse, but are open to the rare exception such as a note from a parent that this actually occurred.  Judges could use similar common sense if they were better informed of the dynamics.
3. End of Relationship Does Not End Risk: Domestic violence tactics are not responses to incidents, but based on beliefs and entitlement to control. Many court professionals wrongly assume that the end of the relationship also ends the risk.  This is why the Saunders’ Study recommends training in post-separation violence.  We know the end of a relationship is the most dangerous time for a woman because 75% of women killed by their partners lose their lives after they leave.  It also explains the large number of children killed by abusive fathers during custody disputes because it is the best way to hurt the mother.  The litigation and economic abuse that often occurs during custody disputes is a continuation of his abuse although many professionals don’t even consider this.  The Saunders’ Study found that abusers use shared decision making to maintain control and visitation exchanges to harass and assault their partners.  Even if the father never abuses the mother again, the end of the relationship does not change his beliefs so he will abuse future partners.  This means if children are not protected they will be exposed to more abuse.
4. Economic Abuse: Economic abuse is an important form of domestic violence both during the relationship and during divorce and custody disputes.  Many abusers have threatened their victims that he will bankrupt them if she ever leaves.  They often are willing to hurt themselves financially in order to hurt the mothers.  This is one of the purposes for aggressive litigation tactics and false reports against the mother.  In custody cases abusers who controlled the finances during the relationship use this financial superiority to gain an unfair advantage.  Judge Mike Brigner who has provided domestic violencel training for judges says that judges have the tools to level the playing field, but rarely do so.  This leads to cases that are decided based on the financial advantages of the abuser instead of the merits of the case.
5. Psychological Tests: Psychological tests were not created for the populations seen in Family Court.  Instead they are designed for people with serious mental health problems.  The tests are based on probabilities so under the best of circumstances the accuracy is 60% or less.  Cases involving domestic violence and contentious litigation offer far worse accuracy.  A particular problem is that the tests ask questions about a belief someone is following you or fears you might have.  In the context of domestic violence, the answer is often yes but unless the psychologist modifies the scoring this is taken as a negative for abuse victims.  Protective mothers are often labeled as paranoid or delusional for their normal reaction to their partner’s abuse.  These are expensive tests that create the false illusion of a useful investigation while failing to provide any information about domestic violence.
6. Failure to Screen for Domestic Violence: The Saunders’ Study found that evaluators and other court professionals need training about how to screen for domestic violence.  These professionals routinely discredit reports of abuse based on common circumstances that are not probative.  Victims of domestic violence often return to their abuser; fail to follow-through on petitions for a restraining order; and don’t have police or medical records for safety and other good reasons.  Unqualified professionals often fail to look for the pattern of coercive and controlling tactics that include far more than physical assault.  This knowledge would provide information about the abuser’s motive for seeking custody and his history of abuse.
7. Gender Bias: Some of the good judges interviewed by Dr. Dianne Bartlow in a chapter about the child murders made an interesting point that is rarely discussed openly.  They said they thought some of their colleagues might favor fathers because too many other fathers abandon their children.  Forty states and many districts have created court-sponsored gender bias committees.  They have found widespread bias particularly against women litigants.  Common examples are holding mothers to higher standards of proof, giving them less credibility and blaming victims for the actions of their abusers.  In many cases courts give custody to abusive fathers based on the prediction that they are more likely to promote the relationship with the mother.  Once they receive custody the abusers use the control to interfere with visitation and destroy the relationship which was their purpose in seeking custody.  Courts that would have punished mothers for far less serious behavior allow many fathers to get away with genuine alienation.  Judges engaging in this bias are usually unaware they are doing so, but the defensiveness of some judges discourages discussion of this important issue.

Standard Practices that Minimize the Harm from Domestic Violence

1. Skepticism of Abuse Claims During Contested Custody: Problems with the societal response to domestic violence is certainly not limited to custody courts.  We have seen child protective agencies refuse to investigate reports when they learn of an ongoing custody case.  The few written policies promoting this bad practice have been corrected but many individual caseworkers continue to make this mistake.  Courts sometimes discount reports that are unfounded by protective agencies and this is misguided.  This practice is connected to the lack of training uncovered in the Saunders’ Study that believes the myth about frequent false reports.
2. Minimizing the Harm Caused by Domestic Violence: The ACE Research demonstrates that the fear and stress caused by exposure to domestic violence is far more harmful to children than previously realized.  But many courts and even more court professionals are unaware or unfamiliar with this groundbreaking research.  Inevitably this leads courts to treat domestic violence as far less important than it is.  In many cases courts focus on other issues that are far less important to the well-being of children.  For children exposed to one or more ACEs, the best interests of a child must consider what the court can do to prevent the catastrophic consequences of exposure to domestic violence, child abuse and other traumas.
3. The Risk of Promoting Compromise with Abusers: Custody courts could not operate with their present limited resources without being able to settle a large majority of its cases.  There are many good reasons that judges, mediators and others recite to encourage litigants to reach mutual settlements.  This is problematic in domestic violence cases.  Abusers, by definition are not reasonable and will not sacrifice their interests for the well-being of the child.  Victims are at a huge disadvantage in settlement discussions because abusers have more power and victims are dealing with the fear engendered by their partners.  The problem is compounded by the need to find an arrangement that both parties can be convinced to agree upon rather than an arrangement that keeps children safe.  In too many cases victims are punished or fear they will be if they insist on safe arrangements.

Conclusion

We now have substantial scientific research that courts can use to better protect children.  We have experience with practices developed in the 1970s that unintentionally push courts towards decisions that jeopardize children.  After almost forty years, these flawed practices are deeply ingrained.  Abusers and the professionals who benefit financially have an interest in discouraging the needed reforms.  Many of these problems have not been adequately discussed because the flaws are hidden particularly from professionals with expertise in mental health or the law, but not domestic violence.

How can it possibly be right to attempt to safeguard children:

Without integrating current research like ACE and Saunders?

Without using a multi-disciplinary approach that would include the specific expertise that is needed?

Without considering how the old practices are impacting children?

Without creating reforms in response to the hundreds of children murdered by abusive fathers involved in contested custody cases?

Without making the health and safety of children the first priority in all custody and visitation decisions?

Protective mothers are angry because the present practices routinely fail to protect their children.  Judges are defensive that outrageous decisions create a widespread belief that corruption must be the cause.  Children who are placed with dangerous abusers blame judges even more than their abusers.  We cannot continue to allow outdated practices that support the tragic song lyrics

ONLY THE GOOD DIE YOUNG.