The Best Interests of a Child in a Rational World

Barry Goldstein, NOMAS Task Group on Child Custody.


As far as I know, the above language is not the law, nor the standard practice of custody courts in any state or country.  Although I have been advocating this general idea for years, the first time I saw this language was in a proposed draft for the Safe Child Act for Texas.  Forty years after the start of the modern movement to end domestic violence, the legal and mental health professionals the custody courts rely on have not figured out that the continued focus on less significant issues cannot possibly be in the best interests of children.

This failure illustrates the insular nature of the custody system that tends to use the same limited group of professionals and is slow to integrate new research that would make it easier for courts to recognize abuse and create responses that protect children.  In 2012 the National Institute of Justice issued groundbreaking research about the inadequate training of evaluators, judges and lawyers concerning domestic violence.  The Saunders’ Study supports the use of a multi-disciplinary approach, but just a few weeks ago, a judge in Virginia stated he was unfamiliar with the use of domestic violence experts.  He sent a young girl for unprotected visitation with a father who was sexually abusing her because the judge did not have the time to hear about the scientific research the expert witness could testify about.

At the same time the Saunders’ Study demonstrates why inadequately trained evaluators and other professionals routinely disbelieve true reports of abuse, the ACE Research from the Centers for Disease Control and Prevention establish that exposure to domestic violence and child abuse has far more serious consequences than previously understood or that most courts realize.  These children will literally live shorter lives with more illness and social problems throughout their lives.  Many of these children could still be saved, but courts that have failed to integrate the information from ACE and Saunders deny or minimize the abuse and steal from these precious children their last chance for a full and successful life.

Custody courts were forced to develop responses to domestic violence at a time when no research was available.  Popular assumptions suggested that DV was caused by mental illness or substance abuse and only physical abuse mattered.  This is why the courts turned to mental health professionals as if they were the experts.  They are experts in psychology and mental illness and courts benefit when those issues are important to the case.  We now know the original assumptions were wrong and the present practices are the equivalent of asking a general practitioner to treat cancer patients.

Context is critical to understand domestic violence but the usual court professionals tend to look at each issue and case separately and so miss the patterns that are so critical to recognizing abuse.  Dr. Dianne Bartlow conducted a study based on stories about 175 children murdered by fathers involved in contested custody during a recent two-year period.  She interviewed judges and court administrators in the communities where the tragedies were committed.  The judges who agreed to participate tended to be the best trained and knowledgeable which is why they took the time to participate.  Their discussion of domestic violence was informative, but when asked what reforms had been implemented in response to the tragedy, the answer was none.  Each judge believed the tragedy in their community was an exception.

Many of the murders were committed after the court gave the father access to the children.  In one California case the mother told the court that the father threatened to kill the baby.  The judge repeatedly said he thought the mother was lying.  The Saunders’ Study found that inadequately trained professionals tend to focus on the myth that mothers often make deliberate false reports.  After the murder, the judge expressed his sorrow at the tragedy but said there was nothing he could do based on the information he had.  In a sense the judge was correct because as long as courts continue to operate based on the practices developed in the 1970s, they have little chance to protect the children.  Clearly the continued reliance of outdated practices cannot be in the children’s best interests.

The Safe Child Act is a Comprehensive Solution

The Safe Child Act is based on current scientific research, a multi=disciplinary approach and is trauma-informed.  These are the considerations that are needed to protect children but missing from standard court practices.  As described at the beginning of this article, the Safe Child Act would require courts to make the health and safety of children the first priority in all court decisions.  Today, every state has a list of factors that must be considered for custody and visitation decisions.  This would include factors that impact children’s health and safety, but other factors are far less important to the well-being of children.

In one NY case the father complained that the mother dressed two girls a year apart the same as if they were twins.  The court viewed this as psychologically harmful and treated this as more important than the fact the girls saw their father take a knife to the mother’s throat.  Judges are free to make subjective judgments about the significance of each factor so when the judge gave custody to the abusive father there was no effective way to appeal.

Most custody cases do not involve abuse and so the less important factors are reasonable to weigh and consider.  The most serious problem in the custody courts is the 3.8% of cases that go to trial and often far beyond.  These are overwhelmingly domestic violence cases involving the most dangerous abusers who are seeking custody to regain control over their victims.  These are the cases where courts are destroying children’s lives.  These cases need a specialized approach, but the courts call them “high conflict” cases and use the same practices used for safe parents.  This results in approaches that pressure victims and their children to cooperate with the abuser instead of forcing abusers to change their behavior if they want a relationship with the children.  The Safe Child Act will only impact this small group of abuse cases, but this is where courts have an opportunity to save the children.

Focusing on the health and safety of children requires courts to value what is most important and also makes it easier to recognize the risks.  Based on the ACE Research, exposure to domestic violence or child abuse is a health and safety issue.  ACE found that physical abuse is not necessary to cause severe harm.  It is living with the fear engendered by the abuser that leads to the worst form of stress and causes a lifetime of health problems and poor decisions.  Most domestic violence tactics are neither physical nor illegal but it causes fear which is the purpose.  Courts that refuse to consider older incidents of physical abuse fail to understand that the mother and children are impacted by knowledge of what the father is capable of.  He doesn’t have to continue his assaults because his other tactics are a constant reminder of the danger.  Although abusers rarely commit one or a few abuse tactics and suddenly stop without meaningful intervention and accountability, court professionals without an understanding of domestic violence dynamics repeatedly assume this rare scenario.

Denying children a normal relationship with their primary attachment figure causes increased risk of depression, low self-esteem and suicide when older.  Obviously children exposed to substance abuse, neglect or mental illness so severe as to prevent proper care are also health and safety issues.  Alienation which is a standard abuser custody tactic does not rise to a health and safety issue unless it leads to the termination of the relationship.  Most of the other factors courts focus on do not result in shortened lives or a lifetime of health problems.  Unfortunately the courts have never updated their practices based on scientific research that is now available.

Important research like ACE and Saunders would make the court’s job so much easier.  There is nothing in the law that would prevent courts from using this highly credible research, but inertia and the reliance on professionals who are rarely familiar with current research have so far greatly limited implementation of these best practices.  The Safe Child Act would require courts to use this research.  It would also require the use of a multi-disciplinary approach instead of using the same mental health professionals any time some expertise is needed.  Domestic violence and child sexual abuse are very specialized areas of knowledge.  Most evaluators have taken some training, but do not have the level of expertise necessary.  This results in the evaluators focusing on less important issues they are more familiar with and denying true reports of abuse.  Ironically many courts have been skeptical or worse of listening to experts without mental health degrees who can provide objective information based on credible scientific research but routinely accept highly subjective recommendations from professionals unfamiliar with the research.

Another section of the proposed legislation would require an early hearing in abuse cases limited to evidence of domestic violence and child abuse.  If the court confirms the reported abuse and the non-abusive parent is safe, the outcome must follow the recommendations of current research and provide custody for the safe parent and supervised visits for the abuser.  Focusing on the most important issues eliminates distractions used to discourage courts from protecting children.  This early hearing saves both the courts and the parents substantial time and resources while resulting in safer outcomes.

The Safe Child Act would also require training and retraining for court professionals who need to learn about current research and how to better recognize true reports of abuse.  Almost equally important is to abandon the misinformation many professionals have learned over the years by listening to professionals without the needed expertise in domestic violence and child abuse.

The public is often surprised at how often custody courts fail to protect children.  Court professionals are often defensive about criticism and like to believe they are doing a good job under difficult circumstances.  Recent research, however confirms that courts frequently place children in jeopardy because they continue to use outdated and discredited practices.  The fact that it has taken all these years without adopting practices that require courts to make providing a safe, healthy, stable and non-violent environment the paramount consideration in all custody and visitation decisions is incompatible with beliefs the present practices are tolerable.