by Barry Goldstein
Training Lawyers to Litigate Domestic Violence Cases Properly
The most common question I receive from protective mothers is about how they can find a good attorney. Most law students complete law school without receiving any training about domestic violence. Many lawyers receive some domestic violence training but it is often provided by attorneys or judges who are experts in the law, or mental health professionals who are experts in psychology, but usually not by domestic violence experts such as advocates. This is why the Saunders’ study recently released by the U. S. Department of Justice found that the standard and required training for judges and lawyers (and evaluators) does not provide the information necessary to respond to domestic violence cases. In many ways this kind of training is the worst of all worlds because it creates a false sense of competence in domestic violence and many attorneys who receive this limited training are not open to considering real domestic violence expertise.
The Saunders’ study found that there is now a substantial body of specialized research that would help inform courts about best practices in domestic violence custody cases. Unfortunately this research was not available when domestic violence first became a public issue and courts never got into the practice of obtaining this information in order to make better decisions for children. The problem is exacerbated by the widespread use of mental health professionals, who are often inadequately trained in domestic violence, but are relied on by the courts for expertise in domestic violence cases. This causes attorneys and judges to hear misinformation that is treated as if it were accurate because it is coming from “expert” witnesses.
Even worse is the cottage industry of lawyers and mental health professionals that has developed to support abusive fathers. Domestic violence is about control and economic control is an important part of domestic violence. A large majority of contested custody cases involve abusive fathers seeking custody as a way to regain control over a partner who decided to leave or to punish her for complaints about his abuse. In most of these cases the abusive father controls most of the family’s financial resources. Many court professionals understand that the best way to make a large income is to support theories and practices favorable to abusive fathers because that is where the money is. In many cases these biased professionals are permitted to serve as GALs and evaluators and treated as if they were neutral.
All of these unhelpful circumstances tend to reinforce misinformation and discourage the adoption of the best practices that would be supported by current scientific research. As a result, attorneys who are acting in good faith often do not have the familiarity with current research or an understanding of domestic violence dynamics that are needed to present the strongest possible case for protective mothers. Attorneys who are part of the cottage industry are often happy to take large retainers from protective mothers, but refuse to present the evidence of abuse because they do not believe her or that the information is important.
The result is that protective mothers often complain that their attorneys demanded a large retainer, promised to protect them but proceeded to undermine their case. Many of the mothers lose their attorneys prior to trial and are forced to precede pro se because they are out of money or with an attorney unfamiliar with her case. We often see mothers criticized for having several attorneys with the critics not realizing this is a function of the inadequate training of the lawyers rather than a reflection on the mothers. The protective mothers also repeatedly complain that their attorneys refuse to present evidence of abuse and are unwilling to work with a domestic violence expert.
A Solution for Creating Qualified Attorneys
Elizabeth Liu and I have written a comprehensive book containing 26 chapters and over 500 pages of information to help attorneys present strong cases on behalf of victims of domestic violence and to counter the common abuser legal tactics. The book is Representing the Domestic Violence Survivor: Critical Legal Issues; Effective Safety Strategies. It is based on our belief that attorneys should make full use of current scientific research to support their client’s cases and challenge practices that have been shown to work poorly for children. It is also based on using a multi-disciplinary approach and understanding that judges and lawyers are the experts in the law, mental health professionals are the experts in psychology and domestic violence advocates are the experts in domestic violence. This is important because courts routinely treat judges, lawyers and evaluators as if they were experts in domestic violence. The Saunders’ study confirmed our belief that domestic violence advocates are among the professionals with the most knowledge about domestic violence and that evaluators, lawyers and judges frequently do not have the specific training needed to effectively respond to domestic violence cases. We believe collaboration among professionals with complementary knowledge and training would improve the courts’ response to domestic violence and the assistance of domestic violence experts is critical to recognizing the best interests of children in domestic violence cases.
We believe that three of the best sources of current research about domestic violence are the Saunders’ study, The Batterer as Parent and Domestic Violence, Abuse and Child Custody. We were familiar with much of the research in the Saunders’ study from the presentation by Dr. Saunders and his colleagues at the 2010 NCADV conference and discussions we had with him. After we submitted our manuscript, the U. S. Department of Justice released the Saunders’ study and an updated version of The Batterer as Parent was released. We rewrote some parts of the book and especially the citations in order to include the new material from these valuable sources. We hope to encourage attorneys to use this research to support their clients’ cases. The fact that Dan Saunders prepared his report for the U. S. Department of Justice gives it an aura of reliability and neutrality that should make it harder for judges to dismiss.
Our book focuses on child custody cases, but we also have two chapters about criminal cases and another about civil protection orders. Many of the chapters in the book contain information that will apply to any case that involves domestic violence issues. We believe many parts of our book can be cited by attorneys to support various points they want to make in their cases.
Preliminary Work with their Clients
The first chapter discusses the fact that domestic violence cases are very different than other cases. Many aspects of domestic violence are counterintuitive so that it is easy to misunderstand a party’s behavior unless the professional is considering the domestic violence context and understands the dynamics of domestic violence. The custody courts have developed a lot of practices designed to encourage the parties to cooperate. This may be useful in other kinds of cases, but often places domestic violence survivors at risk and undermines their cases and the safety of themselves and their children. We frequently see mothers blamed for the difficulty they have in cooperating with their abusers instead of courts blaming the abuser for actions that made such cooperation problematic.
In domestic violence cases the safety of victims and their children needs to be the paramount consideration. There is no other type of case including crimes involving gang members that is more likely to lead to murder or serious injury of parties, witnesses or court personnel. Courts make serious errors when they fail to recognize the dangers or minimize the risks. As an example, we often see courts assume that the risk of violence is reduced when the parties have separated. In reality the research demonstrates that the most dangerous time for women is after they have left. Similarly the frequency of court assisted child murders confirms the danger involved in these cases. Accordingly it is important for lawyers to clearly and directly inform courts at the start of a case that it is a domestic violence case and the court needs to give safety considerations the highest priority. This approach helps to protect the safety of the client and her children and also avoids approaches that undermine her case.
The chapter on interviewing clients helps attorneys understand the concerns survivors have and how to make them feel comfortable sharing what are often painful and embarrassing experiences. We emphasize the importance of attorneys making it clear they work for the client and will follow any proper request. Dara Carlin provided some wonderful insights about the need for male attorneys to consider how their behavior and body language could affect their clients.
The paramount importance of safety is emphasized in the chapter about safety planning. The client is the expert about the risks her ex-partner poses and lawyers must take these concerns seriously. A safety plan should be created, often with the assistance of a domestic violence advocate. Attorneys need to avoid actions that could place the client in jeopardy and strongly advocate for relief that is necessary for the safety of the client and her children.
The first chapter we wrote was about effectively putting together the comprehensive pattern of abuse. One of the biggest problems with the custody courts’ response to domestic violence is the frequent failure to recognize true complaints of abuse. Judges are often criticized for this mistake, but in fairness the widespread failure of attorneys to present important evidence and particularly to put together the pattern of the father’s abuse makes it harder for judges to believe the mothers’ allegations. Providing this information would also increase the chances of GALs and evaluators acting in good faith to support the mothers’ complaints.
I have often heard judges and other court professionals lament the difficulty in responding to what they see as a “he-said-she-said” case. In many cases the abuser has “only” engaged in physical abuse a few times. His purpose is not to cause as much pain as possible, but rather to coerce his partner to do what he wants. Once she knows what he is capable of these tactics have been successful and he only needs to remind her what could happen if she doesn’t obey. Court professionals who do not understand domestic violence dynamics tend to focus only on physical abuse and try to figure out who is telling the truth about a couple of disputed incidents.
In reality most domestic violence tactics do not involve physical abuse. More common are tactics that include emotional, verbal, psychological and economic abuse, monitoring and isolating behaviors. Courts can also look at past parenting practices. They rarely consider why a father who had limited involvement with the children during the relationship is suddenly demanding custody. Litigation abuse is a common tactic both to harass the mother and in an attempt to bankrupt her. We recommend that attorneys and their clients put together this pattern of coercive and controlling behaviors which can help demonstrate the father’s motivation for seeking custody. Often many of these other tactics are more easily proven or even admitted by abusers who see nothing wrong with them. In the context of her complaints and his denials of physical abuse, this pattern of other controlling and coercive behaviors should be very convincing. It is also helpful to show how his abusive tactics are continuing because many inadequately trained professionals believe the end of the relationship suggests he is now safe even if he acted improperly while they were together. Knowing that his abusive tactics will be used against him may discourage some of the more harmful tactics and this can only benefit the children.
Effective Preparation and Presentation of Domestic Violence Cases
Throughout the book we provide examples of how to use current scientific research to bolster domestic violence cases. We have one chapter which is all about the value of using this research and how to include it in the case. We discuss ways to make it easier for judges to be open to this research. A later chapter discusses the best ways to approach judges in an effort to educate them about domestic violence in ways they can hear.
Domestic violence advocates are the experts about domestic violence so it was important to include a chapter about working with domestic violence agencies. We encourage attorneys to work with the client’s advocate and learn from her. Advocates are particularly important in helping to create a safety plan and recognizing dangers. Potentially, advocates can be the expert witnesses needed to inform the court about domestic violence issues. This is especially important because many mothers would have no other opportunity to access an expert witness. We believe if advocates regularly served as experts it would educate court professionals so as to improve the court response to other domestic violence cases.
We have a chapter about how to work with Guardians ad litem or other attorneys representing the children. When possible we encourage attorneys to provide the research and information about domestic violence to the GAL and try to convince them to support the mother’s position. When the GAL is a “fathers’ rights” supporter or otherwise biased for the father we discuss ways to challenge the GAL. At the end of the chapter are a group of best practices for GALs in domestic violence cases. We hope that protective mothers and their attorneys will share these pages with their GAL so they can see the basis for practices that would benefit their clients.
The chapter about working with child protective agencies recognizes that caseworkers, like judges, lawyers and evaluators usually do not have the domestic violence training they need, but the training they receive often gives them a false sense of competence. Accordingly it is useful to provide them with current research and help them see the pattern of abuse. Best practices require caseworkers to consult with domestic violence advocates regarding domestic violence cases and some agencies have this arrangement. If your community has not adopted these successful strategies we encourage those supporting protective mothers to lobby for these best practices. Knowing the frequent flaws in the child protective response to domestic violence cases can be used to inform courts about the real meaning of child protective outcomes.
The reliance by courts on inadequately trained evaluators and other “experts” has contributed to the failure of courts to protect children from abusers. We have included chapters in the book about challenging the use of unhelpful professionals, cross-examining evaluators and obtaining genuine experts to support the cases of protective mothers.
We believe it is important for attorneys to raise concerns about the appointment of an evaluator before the appointment is made. Once the evaluator submits an unfavorable report any complaints will be seen as a reaction to the unfavorable information. In a domestic violence case, courts need expertise about domestic violence. They may or may not need the help of a mental health professional depending on whether there is credible information that one of the parties or the children has a serious mental illness. Credible information would have to be more than the alleged abuser saying she is crazy. If there are no significant mental health issues in the case, there is no reason for an evaluation and attorneys should object to any appointment of an evaluator. As things stand today few psychologists or other potential evaluators have the necessary expertise in domestic violence to respond appropriately to domestic violence allegations. In many cases they fail to recognize domestic violence because of their ignorance and limitations and then label the mother paranoid or delusional because the evaluator missed the father’s history of abuse.
If there are legitimate mental health issues it is important to understand these are separate from the domestic violence issues. Treating an abuser’s mental illness is a good thing, but does nothing to alleviate his belief system that supports his abuse of the mother and often the children. Accordingly the attorney should ask that any evaluator who is appointed also be an expert in domestic violence or be requested to consult with such an expert about the domestic violence issues. Evaluators often claim to have expertise in domestic violence based on limited training they have received. The Saunders’ study establishes that this standard training is usually insufficient. There is strong support by Saunders, The Batterer as Parent, ethical rules for psychologists and psychiatrists and the Greenbook Initiative for evaluators to consult with domestic violence advocates in domestic violence cases. Any failure to do this or refusal to accept their expertise can be used to challenge any unfavorable report.
One of the most common reasons for the failure of evaluators to recognize true allegations of abuse is the widespread belief in the myth that women frequently make false allegations of abuse. This is especially prevalent among evaluators who are part of the cottage industry supporting abusers, but is also common for evaluators acting in good faith but without the necessary expertise. The research demonstrates that mothers rarely make deliberately false complaints of abuse and fathers involved in contested custody are 16 times more likely to make deliberately false allegations. It is important that courts be made aware of this information. This research is particularly helpful for cross-examining unqualified evaluators. They can be asked how frequent they believe deliberately false allegations are. They will likely overestimate mothers’ false allegations and underestimate lies by fathers. Evaluators can also be asked how often they support mothers and fathers in their reports. Their estimates are usually not reliable and they may tend to claim it is close to 50-50 because they think this shows neutrality. When you consider that most allegations by mothers are true and most contested cases involve abusive fathers this would mean they are sending a lot of children to live with abusers.
We recommend asking evaluators if they have read the leading research such as the Saunders’ study. Their failure to be familiar with this research should undermine their credibility. Particularly helpful is a finding that inadequately trained evaluators tend to focus on the myth that women frequently make false allegations, unscientific alienation theories and beliefs that attempts by mothers to protect children from abusive fathers are harmful to the children. This is perfect for challenging evaluators who focused on these issues. Saunders found that evaluators with this focus tend to make recommendations that are harmful to children.
Particularly interesting in the Saunders’ study is a finding that social workers make better recommendations in domestic violence cases than psychologists and psychiatrists. This seems surprising because we would expect professionals with more education to be more qualified. One reason for this discrepancy is that social workers are more likely to take a holistic approach. This is important because context is critical to understand domestic violence cases and court professionals often look at each issue and incident separately and so miss patterns and context. The other major reason is the reliance on psychological tests that were not developed for the populations seen in family court. This often results in focusing on minor personality differences that are used to pathologize protective mothers. The findings in the Robin Yeamans’ chapter of my book with Mo Therese Hannah further support our concern about the reliance on psychological tests. Under the best of circumstances they are accurate only 55-65% of the time and when there is domestic violence or a contentious custody case these odds are further reduced.
The Saunders’ research is particularly helpful in responding to the worst recommendations that involve custody to the alleged abuser and supervised or no visitation to the safe, protective mother who always provided good care for the children and is their primary attachment figure. Saunders refers to these as harmful outcomes because they are always harmful to the children. The risk of separating children from their primary attachment figure, a risk that includes higher rates of depression, low self-esteem and suicide when older, is greater than any benefit the evaluator believed he was providing. It will be hard to justify this risk on cross-examination because in truth the evaluator never considered it. The extreme outcomes are a strong indication of deeply flawed practices so that most of the time the opposite result would work better for the children.
The Saunders’ study found that court professionals need not just general domestic violence training, but training in specific topics that include screening for domestic violence, risk assessment, impact of domestic violence on children and post-separation violence. Saunders found that the people most likely to have this necessary expertise are domestic violence advocates. This makes sense because it is what they focus on full time as part of their jobs, but too often courts are more focused on mental health degrees or treat advocates as biased because the support the purpose of domestic violence laws. We hope the Saunders’ study and our book will be used to encourage the use of domestic violence experts in court. We hope to work with the NCADV and others to make training available to advocates and encourage those of us who are familiar with this research to serve as expert witnesses. This will be a way to bring this research in front of the court and start providing accurate information about domestic violence.
Responding to Specific Issues
In a court system that often fails to protect victims of abuse, their most catastrophic failure involves sexual abuse allegations. Although mothers rarely make deliberately false allegations, 85% of custody cases with sexual abuse allegations result in custody to the alleged abuser. This is a statistic we would like court professionals to hear frequently because it means present practices are forcing an awful lot of kids to live with their rapists.
The frequent failure of custody courts to respond appropriately to sexual abuse cases means mothers are often faced with a heartrending decision. If they seek to protect their children from unspeakable violations by raising the issue of abuse, they are likely to lose custody and probably be limited to supervised visitation. This gives them no opportunity to help their children. If they do not raise the father’s sexual abuse they will be sending their children to be raped. An attorney can explain the risks and chances for success, but only the mother can make this decision. We believe it is important for the attorney to make clear to their client that she will represent her as zealously as possible no matter what the mother decides.
If the mother decides to raise the sexual abuse issue, we believe it is important for the attorney to make the court aware that many of the common practices by courts in response to sexual abuse work poorly for children. The attorney should promise to present information based on current research and ask the court to be open to the likelihood the allegations are true no matter how painful that realization would be. The attorney should also attempt to avoid investigation strategies that tend to silence the child.
The child should be protected from access by the father that can be used to pressure the child to recant and to prevent his friends and family from also seeking to influence the child. Some courts think it would be neutral to also separate the child from the protective mother so she cannot influence the child. The problem is the child will view this as a punishment and this will encourage her to recant in order to be reunited with her protective parent. Sexual abuse is a painful and embarrassing experience for children just as it is for adults. We often see caseworkers; GALs, judges or other professionals expect children to reveal their most private experiences after only a brief time for creating a trusting relationship. Unsurprisingly children often refuse to talk about the abuse and inadequately trained professionals treat this refusal as proof the allegations are false. The attorney should advocate for arrangements that give the child a chance to develop a trusting relationship with the professional assigned to interview the child before expecting the child to speak about their experiences. The use of play therapy, especially for younger children is a particularly good idea.
We often see evaluators and other mental health professionals assigned to sexual abuse cases despite a lack of expertise. A psychology degree and regular work as an evaluator does not guarantee expertise in child sexual abuse. We also recommend when possible to call a genuine expert who can help the court understand the issues in the case and avoid common mistakes. The expert can speak about the difficulty in proving child sexual abuse and that despite expectations there often is no physical evidence either because of the nature of the abuse or the delay before the child reports it. Children who are repeatedly interviewed may discuss emotional details in a bland manner that is often mistaken as proof the allegations are false. The expert can also explain that in most cases the abuser does not assault the child in front of witnesses for obvious reasons. Accordingly the mother has no personal knowledge but is reacting to something the child said or their behavior. Accordingly there are several possible explanations for the allegations. The most likely is that the father abused the child. Other common situations are that there was a boundary violation, but no abuse, the evidence is equivocal or a good faith allegation was wrong. The least likely cause is a deliberate false report, but courts often create a high standard of proof and tremendous skepticism about abuse allegations and assume if it is not adequately proven it must be an attempt at alienation.
Abusers often threaten to bankrupt mothers if they dare to leave them, but many court professionals fail to consider the use of economic abuse as an important part of domestic violence tactics. The book discusses how many common abuser tactics can be used against them to show their motivation. In one case the abuser refused benefits from his job for the children which would cost him nothing and spent thousands of dollars in legal fees to challenge a school expense for his daughter of a few hundred dollars. This clearly demonstrates his motive if only court professionals would start to use this information. When abusers see these tactics are used against them it might discourage these harmful actions and that can only benefit the children. We also discuss the gender bias in the way child support is enforced more aggressively against mothers.
The chapter about civil protection orders discusses the importance of safety which is a major theme in our book. It is supported by the Saunders’ study finding about the need for risk assessment. We also address the importance of preventing mutual restraining orders and the common abuser tactic of seeking their own protective orders. We emphasize the need for a finding of abuse in the protective order case so that the finding can be used in the custody case.
There is some older research that suggests shared parenting can benefit children under the most favorable circumstances that include parents who can cooperate, want to voluntarily share parenting and live nearby. More recent research demonstrates that shared parenting works poorly for children even under the best of circumstances because it disrupts their lives, two homes are really no homes and items they need are often at the wrong home. It is not necessary to resolve this conflict because all research confirms that shared parenting is never appropriate in the domestic violence cases the book is considering. Even if the allegations were untrue, just the allegations demonstrate the most favorable circumstances for shared parenting do not exist. We encourage attorneys to make courts aware of this research and eliminate the possibility of shared parenting as soon as possible.
Many of the cases in which parental alienation syndrome (PAS) was used, particularly early in its history were allowed because the attorneys for protective mothers failed to object, or did so ineffectively. PAS was concocted by Richard Gardner not based on any research but from his personal experience, beliefs and biases. This included many public statements to the effect that sex between adults and children can be acceptable. Few attorneys knew this or raised it in court. We recommend that this be mentioned early because we believe judges will not want to be associated with a theory that supports incest.
We also believe it is significant that supporters of PAS put tremendous pressure on the American Psychological Association to include it in the DSM-V but it was rejected because there is no valid scientific basis for it. If scientists confirm there is no scientific basis how can courts possibly consider it? Furthermore, PAS is based on the assumption that virtually all allegations of abuse made by mothers are false but the actual research found that less than two percent is deliberately false. The Saunders study is the latest to confirm that false allegations by mothers are rare and PAS is invalid.
Many supporters of PAS are now calling it something else such as alienation or parental alienation because PAS itself has become so notorious. It is important for attorneys to make clear that it is often used by another name but if alienation is assumed to be the mother’s fault, and is solely based on the poor relationship between father and child and the proponents seek extreme remedies that we earlier discussed are always harmful to children, this is PAS. We also believe it is important not just to challenge PAS, but to argue that any professional supporting PAS by any name proves they are unqualified and any party attempting to use it demonstrates the likelihood they are abusive since it is the favorite tactic of abusers.
The next chapter is about friendly parent approaches which come from the same people who have caused so much harm with PAS. Friendly parent approaches are often used in a gender biased manner so that only behaviors more likely to be done by the custodial mother are treated as unfriendly and somehow abusive tactics that more often are committed by non-custodial fathers are not considered. It is no accident that states that support friendly parent approaches are less likely to recognize and respond effectively to domestic violence. This is exactly what those who promote these approaches are trying to accomplish.
We have two chapters about criminal cases. In cases where abusers are the defendants, we believe it is important that the outcome include a finding or admission about his domestic violence crimes so that he cannot deny it later. The mother’s attorney can work with the prosecutor to support the case. The research demonstrates that the only actions shown to change abusers’ behavior are accountability and monitoring. Accordingly, if the mother supports this the attorney can share this research with the prosecutor. We also strongly support strict enforcement of protective orders and want prosecutors to enforce witness tampering laws because that is extremely common in domestic violence cases.
Increasingly, abusers are using false criminal complaints as a tactic to regain control. They often make the complaint at the start of a custody case to gain initial control of the children. Accordingly it is important for attorneys to make prosecutors aware of the research that fathers involved in contested custody are 16 times more likely to make false allegations. Therefore they should be extremely skeptical of such complaints and investigate thoroughly before bringing charges. This is especially important because once they bring charges based on the father’s complaint they will be reluctant to charge him with his crimes because it would undermine the earlier case. Attorney need to consider that a plea deal that might be beneficial in the criminal case can undermine the custody case which was exactly the reason the false charge was made.
Our chapter about supervised visitation deals with both the problem of using supervised visitation for protective mothers who pose no safety risk and failing to use it effectively for abusive fathers who pose a serious risk. The Saunders’ study found that courts are not using supervised visitation enough for alleged abusers. Part of this is a lack of availability. These are cases where the children’s safety is at risk so it ought to be a priority. Accordingly it is a particularly poor practice to waste these resources on Supervising safe, protective mothers usually based on unscientific alienation theories or pathologizing their normal response to their partner’s abuse. We also see professionals without an understanding of domestic violence dynamics assume that an abuser’s ability to behave appropriately while supervised demonstrates it is safe for the children to interact with him without supervision.
We included a chapter about vicarious trauma because this is an important issue that is rarely discussed. Lawyers and other professionals must hear incredibly painful stories and this often creates a harmful emotional impact that can negatively impact their effectiveness as attorneys. It is important for attorneys to take care of themselves, seek support and professional help if needed. We hope our book will bring more awareness to this problem.
Responding to Cases with Harmful Outcomes
Our chapter about appeals is particularly important in the context of the frequency with which courts mishandle domestic violence cases. This provides the best way to overcome bad decisions by hostile or biased trial judges. We emphasize that it is critical to make a strong record during the trial. If an issue is not raised during trial, the appellate court is likely to refuse to consider the issue. Sociological studies have long been used in appellate briefs so the research we discuss throughout the book can be used to buttress survivors’ appeals. They can also be used in amicus briefs that we also encourage. Including this information not only improves the chances for a successful appeal, but educates judges and lawyers so that the information can benefit mothers and children in other cases.
While an appeal is an avenue to overturn a bad trial court decision that addressed previous facts and legal challenges, a modification petition may be used to change custody after the custody arrangement has been shown to work poorly. This requires proof of a change of circumstance. We encourage attorneys to view custody decisions as a prediction about what arrangement will work best for children. We constantly see cases in which the abusive father is given custody based on the assumption that he is more likely to promote the relationship between mother and children. This common assumption fails to consider that he sought custody to regain control over his victim. Accordingly it is completely predictable that he uses the control the court gave him to undermine the mother’s relationship. We believe this and various violations of the court order that interfere with visitation rights can be used as a change of circumstance. We also believe the new research that demonstrates the assumptions made by the trial court turned out to be wrong is also a change of circumstance. Combining subsequent events that challenge the court’s prediction with new research that explains why the arrangement works poorly for children makes a particularly strong argument for modification. Testimony by an expert witness who can place this research into evidence, and put the father’s actions since the custody order into context make a particularly strong argument for modification.
We have included a chapter about seeking publicity because it is a subject that often comes up in response to bad decisions and a judge who is not open to information that demonstrates the existing arrangements are harming the children. We urge protective mothers to be able to articulate to what end they seek publicity. How is it going to change the bad arrangement? There is a very real danger the court and the abuser will retaliate and that must be considered. Ultimately this is a decision for the mother to make and the attorney should help her as long as it does not violate any court order or ethical consideration. The attorney should also make the mother aware of the potential negative consequences the court may impose. Mothers also need to be realistic about their ability to obtain coverage. The media has been reluctant to cover this issue and most of the time mothers have been disappointed by their inability to attract press coverage.
I started this article discussing the difficulty protective mothers are having in finding effective representation. The court system has responded to criticism about their flawed response to domestic violence with extreme defensiveness. They have retaliated against protective mothers and professionals who support them. In the process the courts have ignored First Amendment protections and misused disciplinary procedures. At the same time they have ignored widespread ethical violations. In the final chapter of the book, we discuss the ethical obligation to zealously represent the client. The retaliation by too many courts has made it dangerous for lawyers to advocate zealously. We also see many attorneys reluctant to present domestic violence evidence or challenge a court’s mistakes because they are afraid it will undermine their relationship with the judge and thus harm the position of other clients. This is a fundamental conflict of interest because attorneys cannot undermine the position of one client to benefit another one. The widespread failure of attorneys to obtain the necessary training in domestic violence, as confirmed in the Saunders’ report also has ethical ramifications. By seeking to silence criticism and refusing to enforce ethical obligations the court system makes it difficult for survivors to obtain good representation. They also undermine the public’s confidence in the fairness of our judicial system.
The Difference the Book Could Make
For Lawyers: The book provides exactly the information and ideas competent attorneys need to present strong domestic violence cases. It helps them with specific issues they will face and provides the citations they will need. This will allow attorneys who want to represent domestic violence survivors to do so effectively and to be prepared for the common abuser tactics they will face.
We hope this will be a big part of the answer about where to find a good attorney. We hope to create a system where we can keep a list of attorneys who have read the book and so are qualified to handle these cases. This will help mothers find good attorneys and allow attorneys who want to be on the right side of this issue to develop practices that support protective moms. We hope the book will encourage attorneys to work closely with domestic violence advocates which can only strengthen their cases and provide access to valuable information. When mothers can bring in experts to testify about the research available and consult with the attorneys, this information will benefit the attorney in future cases as well. In effect the attorney is getting expert personalized training at no cost. I have seen some attorneys request to be paid for reading the information in Domestic Violence, Abuse and Child Custody and I think it is wrong. If they do not have the needed training they should not expect the client to pay for their time to learn. Instead it should be viewed by attorneys as an advantage to learn from one case and then use the learning for other cases.
For Courts: There are many factors that have caused courts to mishandle so many domestic violence custody cases. I believe a big part of the problem is that they developed practices at a time when no research was available and decided to rely on mental health professionals as if their expertise included domestic violence. This led to lawyers and judges hearing a lot of misinformation that has become deeply ingrained. Even when the right information is presented, it is so different from what they are used to that it sounds off.
We believe this book could help reverse this process if lawyers learn from the book and start presenting strong cases based on current research. As more attorneys provide courts with the pattern of abuse court professionals should start looking for evidence that they now ignore. As the attorneys provide genuine expert witnesses who can explain current research and domestic violence dynamics the courts will start to expect more than just a personal opinion. We hope this will lead to better training practices based on current research. We particularly hope that findings in the Saunders’ report, which should be seen as a neutral source will convince judges that they need to take a fresh look at outdated practices that work poorly for children. As good judges start making better decisions, the extreme decisions by bad judges will stick out more and hopefully lead to reversals and even discipline.
For Domestic Violence Survivors: We hope and expect that this book will make it easier for domestic violence survivors to find capable attorneys. The suggestions in the book will also make it easier for protective moms forced to represent themselves. We hope over time it will make the courts more open to hearing the necessary information. The book should encourage survivors to work with domestic violence advocates and this is especially helpful in custody cases. The book should make it easier to obtain qualified expert witnesses both by encouraging the courts to look at domestic violence expertise instead of just advanced degrees that are unrelated to domestic violence and child abuse. The book also provides a lot of resources for protective moms with bad outcomes to seek a modification based on the new research.
The book was written based on the reality that the present response to domestic violence cases is not working well for children. So often we see mothers forced to focus on pretend issues and pretend reality because the court professionals do not know how to recognize valid allegations of abuse. We deeply admire protective mothers who work so hard to safeguard their children and hope our book will make their job a little easier.
I would like to thank Elizabeth Liu for her assistance in writing this article about our new book. I have had the pleasure of getting to know her better and the advantage of her wisdom and knowledge in preparing this book. For more information about the book, including access to the first approximately 50 pages or to purchase the book go to the publisher’s web site at
http://civicresearchinstitute.com/rdv.html
Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Representing the Domestic Violence Survivor, co authored with Elizabeth Liu is designed to train attorneys to present domestic violence cases and was be released in April of 2013. Barry can be reached by email from their web site www.Domesticviolenceabuseandchildcustody.com
A couple of weeks ago the local media reported an intensely disturbing development in this case– Allan Smith was moving Susann’s belongings out of the house and doing some repairs so he could move in. He has since moved back into the house where she was killed and is going to pursue custody of their children, who are currently under the care of Child Protective Services.
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