By Barry Goldstein
As this article is about to be published, Joan Zorza, Nancy Erickson and I are getting ready to make a presentation to the Battered Mothers Custody Conference about how protective mothers can use our book to improve their case. We hope to provide suggestions that will lead to better outcomes than we have been seeing in the custody courts.
Integrating Research into your Case
We often do not hear about a case until it turns bad by which point a lot has happened to undermine the protective mother's position. When a mother has a chance to present the best possible case from the start, what would we want her to do?. Perhaps the first obstacle and the first opportunity is to try to convince the court to avoid the standard practices that work poorly for children and instead look to the specialized body of up-to-date research that was unavailable when many of the standard or should I say substandard practices were first developed.
At the start of the case, let the judge know it is a domestic violence case. Point out that there is a lot of recent information and research about domestic violence custody cases and your case occurs at a time when court systems are transitioning from traditional practices that have been shown to work badly for children to improved practices based on the specialized body of scientific research now available. Ask the court to be open to using best practices as established by this research as the children in the case deserve the use of practices shown to work best for children.
At the start of the case, ask the court if everyone can agree that the first priority should be the safety of the children and the second priority to create arrangements that give the children the best chance to reach their potential. It is hard to imagine a better demonstration of the best interest of the child, but routinely courts consider other factors that are far less important to children. Courts have statutes or case law that define factors that must be considered, but none of the laws would prevent courts from making these two factors that most affect children the highest priority. By raising this issue early, protective mothers focus attention on important issues instead of the false and misleading issues abusers often use to confuse the courts.
Courts usually don't give litigants much time to discuss the case during early appearances, but these statements can be made during initial appearances, motions and in bench conferences. The myth that women frequently make false allegations of abuse to gain an advantage in litigation is a common problem and it may be right to address it early in the proceeding. The mom or her attorney can mention the myth, the correct information that such deliberately false allegations occur only one or two percent of the time and the problem courts have had in responding to valid domestic violence allegations because of a widespread belief in this myth. The court should be informed of the recent Department of Justice study led by Dr. Daniel Saunders of the University of Michigan that found professionals with inadequate training in domestic violence are more likely to believe this myth and make recommendations that are harmful to children. The court can be asked to avoid appointing professionals who believe in this myth and encourage court professionals to review the up-to-date research that proves mothers rarely make false allegations.
One of the major problems in domestic violence cases is the failure of court professionals to recognize domestic violence because they don't know what to look for. Chapter 13 of the book written by Judge Mike Brigner describes false assumptions untrained professionals often make. They believe if a woman goes back to her abuser, fails to pursue her request for a protective order or doesn't have medical or police records to corroborate an allegation of abuse, the charges must be false. In reality these are normal actions of battered women who do this for safety and other good reasons particularly when they are still living with the abuser. Court professionals should avoid discrediting allegations of domestic violence based on information that is not probative.
The other major problem courts have in recognizing domestic violence is they often fail to understand the significance of much of the available evidence that supports the mother's allegations of domestic violence. Court professionals are often looking only at evidence of physical abuse because they don't understand the reasons why abusers commit domestic violence. Domestic violence involve tactics abusive men use to maintain control over their partner and enforce what they believe is their privilege to make the major decisions in the relationship. It is not a crime of passion, but rather abusers use a cost-benefit analysis in determining when and whether to abuse his partner. This is why abusers are able to control their temper if he perceives his partner did something disrespectful when they are in public and instead waits until there are no witnesses before punishing her.
At the start of a case, protective mothers and their attorneys should put together information demonstrating the pattern of her partner's abuse. This would include abusive practices including physical, verbal, emotional, financial and legal tactics. It would also include controlling tactics like isolating her from friends and family, monitoring her behavior, false allegations of cheating, rules she has to follow and attempts to prevent professionals from helping her. The pattern would also include evidence about his motivation. Court professionals are often taught to view contested custody cases as "high conflict" by which they mean each parent is acting out their anger at the former partner to such an extreme as to hurt the children. In reality most contested custody cases are domestic violence cases which cannot be settled because of the father's abuse. Abuser groups encourage fathers who had little involvement with the children during the relationship to seek custody when she leaves in order to pressure her to return, punish her for leaving and avoid child support. Accordingly evidence of motivation would include his lack of interest in the children, poor parenting skills, use of visitation and the court case to gain access to his victim and attempt to resume their relationship. The alleged abuser's attempts to send the children to stay with a third party when the mother is available to take care of them should be used to demonstrate his goal is to hurt the mother. Sexist behavior is important evidence of motivation because sexism is the cause of domestic violence. This pattern can be used at court conferences, in motions as well as trials and appeals to help the court understand the pattern of abuse. The pattern can also be used in informal discussions with court professionals like GALs or evaluators to help them recognize the father's domestic violence.
Judges and other court professionals are often hostile or at least overly skeptical of abuse allegations. They are often more open to considering information about primary attachment even if they don't understand the full implications. At the same time, protective moms dealing with devastating issues of domestic violence and child abuse and defending against abuser tactics of demonizing the victim often fail to raise the issue of primary attachment.
Primary attachment refers to the person usually the mother who does most of the child care in the first couple of years of the baby's life. This has important consequences for the well being of the child. Primary attachment is sometimes confused with continuity, but subsequent changes in the child care arrangement, including court orders giving custody of the child to the non-primary attachment figure do not change primary attachment. Primary attachment is forever and a child deprived of regular contact with her primary attachment figure is more likely to suffer depression, low-self-esteem, commit suicide when older and other harmful effects. Unless the primary attachment figure is unsafe, how could it possibly be right to place a child at such risk? Safety issues would be a parent who is a drug addict, beats the child or some similar risk and certainly would not be just making negative statements about the other parent.
Although abusers sometimes lie or exaggerate their role in child care, in many cases they don't challenge the fact the mother provided most of the child care when the child was an infant. Other times the parties' work schedules or the father's lack of familiarity with the child's development and daily activities can be used to confirm the mother as the primary attachment figure. Once this is established, it is fair to ask why a father who claims to love the child would want to separate the child from his primary attachment figure. Information about the importance of primary attachment can be provided by the attorney during court appearances and through an expert witness at trial.
For many years, and to some extent today, if a mother complains about the father's domestic violence and sought to limit his contact, the judge would ask some version of did he also assault the children. If the answer was no, the court treated the abuser as if he was just as qualified as the mother for custody and visitation. This mistaken practice was supposed to stop after every state passed laws to take domestic violence more seriously in custody and visitation cases based on research that demonstrated the harm to children of witnessing domestic violence.
Our book contains an important chapter by Claire Crooks, Peter Jaffe and Nicholas Bala about the effects of domestic violence on children and how this information should be used in fashioning custody and visitation arrangements. In discussions during court conferences and through expert testimony at trial, courts should be informed that children who witness domestic violence (see it, hear it, see the mother's injuries, feel her fear) are more likely when they grow up to engage in serious dysfunctional behaviors like substance abuse, self-mutilation, teen pregnancy, school drop-out, prostitution, crime and for boys to abuse future partners and girls to be abused by future partners. The chapter also discusses the fact that children have developmental goals in each age category and witnessing domestic violence interferes with their ability to reach these goals. When children fail to reach developmental goals this interferes with achieving future development. In young children, being present for domestic violence can affect the hardwiring of their brain with harmful consequences for the rest of the child's life.
The severe consequences of domestic violence to children have led the writers of this chapter and most other reputable experts to recommend custody to the non-abusive or less abusive parent and supervised visitation, at least initially to the abuser. Claire Crooks, Peter Jaffe and Nicholas Bala provide a detailed discussion about best practices for future visitation with the abuser. Importantly, they recommend that the burden should be on the abuser to change his behavior and demonstrate safety instead of what many courts do which is to force the mother and children to accommodate the abuser. They recommend the abusive father complete a batterer program, accept full responsibility for his abuse and not try to minimize or blame others for his abuse. The abuser must promise never to abuse anyone again and acknowledge the harm he has caused his ex-partner and children. The court would then weigh these factors in determining whether to resume unsupervised visitation with the understanding that if he commits any further abuse his visitation will end.
These experts avoid common mistakes often committed by court professionals. The end of the relationship does not also end the danger presented by the abuser. For many women this is the most dangerous time particularly when he realizes that this time she is not coming back. Over 70% of domestic violence homicides by men are committed after she has left. In other words it is not the crime of passion many unqualified professionals assume. Every year abusive fathers involved in contested custody cases kill over one hundred children often with the unwitting assistance of the courts who fail to recognize the danger. Abusive fathers often act out their belief she had no right to leave him by going after custody, not as most court professionals believe, our of love for the children, but to pressure her to return or punish her for leaving. This is what most contested custody cases are about which courts mistakenly view as "high conflict" cases.
Significantly, domestic violence is not caused by the actions of the victim, but rather the belief system and sense of privilege of the abuser. The end of the relationship does not change his beliefs so that if he receives custody or unsupervised visitation, the children are likely to witness his abuse of future partners. This will compound the harm caused by his earlier abuse. Many inadequately trained professionals mistake the lack of physical abuse after separation as an indication he is no longer dangerous. In reality the change reflects limited access to his victim. We often see him continue his attempt to control through abusive litigation strategies and other forms of abuse, and protective mothers and their attorneys need to help the courts see how his abuse continues.
One of the common mistakes caused by viewing domestic violence cases through the "high conflict" lens is that courts seek to pressure victims to interact and cooperate with her abuser. Court professionals have been misled to believe that children would benefit from such cooperation. This works great for abusers who sought custody in order to gain access to his victim but is harmful to battered mothers and their children. If a father is to receive unsupervised visitation in such cases, genuine experts, like the contributors of the chapter, recommend parallel parenting. The court creates a very specific visitation arrangement which should not be changed by the parties. Each parent makes the rules during the time the children are with that parent. This limits the need for any communication to rare emergencies and has been shown to work better for children.
Mental Health Professionals
Mental health professionals were brought into custody courts to provide expertise in domestic violence cases at a time when there was a widespread belief that domestic violence was caused by mental health issues, substance abuse and the behavior of the victim. Although these assumptions proved wrong and most evaluators and other mental health professionals have little or no expertise in domestic violence and are unfamiliar with the scientific research now available, courts have continued to rely on their "expertise." The research cited in our book and elsewhere demonstrates that the involvement of mental health professionals in domestic violence cases causes more harm than benefit. Judge Marjorie Fields wrote in her chapter that she refused to appoint them and was never reversed for making custody decisions without relying on mental health professionals.
Courts often automatically seek to appoint evaluators without fully considering the purpose or benefit. Since they often come to cases with biases against protective mothers, the moms should seek to prevent such appointments or limit their role to areas in which they actually have expertise. I appreciate many judges may be reluctant to try a contested custody case without a "neutral" professional, but it is worth making a record opposing such an appointment and if necessary trying to limit their role to topics for which they have expertise. Alternatively, mothers can ask for the appointment of someone with expertise in domestic violence or at least a willingness to consult with a domestic violence expert. Ask the judge or other professional seeking such an appointment how such an appointment would help the court make its decision. If there is an actual mental health issue such as credible concerns about a parent's mental health, the appointment should limit the role to questions about the mental health condition and how it would affect parenting. None of the tests psychologists use can help determine issues like parenting ability or domestic violence and unless they are the rare evaluator with domestic violence expertise and familiarity with the specialized body of research, they really have nothing to contribute to the fundamental issue before the court. A litigant will have more credibility challenging an evaluator if she does so before there is an unfavorable report.
Robin Yeamans wrote a chapter for the book that is helpful for challenging evaluation reports and particularly conclusions based on reliance on psychological tests. The tests routinely used for custody evaluations were not created for the populations seen in custody court. The evaluators rarely tell the courts that the results are based on probability so the findings may not apply to the particular parties the court must judge. Under the best of circumstances, these tests have a probable accuracy of between 55-65%. Under common situations for which evaluations are sought such as domestic violence or a stressful custody dispute, the percentages are significantly lower. Some of these tests have a demonstrated gender bias so that the same answer is treated an negative for the mother but neutral for the father. The reliance of questionable psychological exams, inability to recognize domestic violence and other questionable practices frequently result in evaluations that pathologize protective mothers.
This information can be used in objecting to the appointment of evaluators and for cross-examination if they are appointed over objection. The book provides a substantial amount of up-to-date scientific research that can be used to question the evaluator and challenge the standard methods which are far from best practices. Evaluators can be asked if they are familiar with the authoritative research that is available. If they are the attorney can demonstrate that the evaluator failed to use the practices recommended by the research and if the evaluator is unfamiliar with this research it should be grounds to disqualify or at least challenge their credibility. Protective mothers will frequently find that the bad practices criticized by the experts who wrote the book are the same approaches used by the evaluators. Joan Zorza, Judge Marjorie Fields and others explain why a family systems approach is inappropriate in domestic violence cases, but most evaluators use this approach because they do not understand domestic violence.
The research in the book can be used not only to challenge the bad information provided to the court, but to provide the court with the accurate information it needs. The mother can use her own expert witness to discuss the scientific research available and how it would apply to the case. If the mother cannot afford an expert witness she may be able to ask a domestic violence advocate to serve as her expert witness. This would emphasize an important point we want to make that domestic violence advocates are the real experts about domestic violence and the only profession working full time on domestic violence issues. Many communities have developed a practice whereby child protective agencies work together with the local domestic violence organization. They train each other's staffs and when the child protective agency has a case that might involve domestic violence, they consult with a domestic violence advocate. These programs have resulted in a better ability to recognize domestic violence and provide solutions that work best for children. Accordingly, the use of domestic violence advocates and experts should be considered best practices. To put it another way, relying on mental health professionals without consultation with domestic violence experts should be considered malpractice.
Parental Alienation Syndrome (PAS), sometimes called parental alienation or just alienation in order to avoid a discredited term is a major cause of mistaken decisions in custody courts. Dr. Paul Fink, former president of the American Psychiatric Association wrote a chapter in the book about PAS. In his chapter he included several quotes from Richard Gardner, who concocted PAS based not on any research but on his own experience and biases. These quotes are to the effect that sex between children and adults can be beneficial. I believe many of the judges who permitted the use of PAS or its progeny are unaware of these quotes and would not wish to be associated with such offensive ideas. Nancy Erickson wrote a chapter the helps protective moms counter PAS allegations.
After the Case Has Gone Bad
I believe that if the court system were using the up-to-date scientific research available to help them handle domestic violence custody cases instead of myths, stereotypes and biases that so often dominate these cases the horrendous outcomes we constantly see would be rare. Until the courts start using best practices, however we will continue to need to respond to decisions that are tragically wrong.
Many judges smugly state that if you don't like their decision the remedy is to appeal. Of course many mothers don't have the resources for appeals and often trial courts place obstacles in the way of appeals. Poor legal work or cowardly attorneys who failed to make a record of the important evidence and issues in the case often prevents any meaningful review of the decision.
If a protective mother is able to appeal, the research in the book can be particularly helpful in framing the issues. The brief can put together all the evidence that constituted the pattern of abuse. This will include tons of evidence for which the trial court failed to understand the significance. The research in the book can be cited in an appellate brief and is particularly appropriate in an amicus brief that seeks to help the appeals court understand the societal harm caused by the discredited practices routinely relied on by trial judges. In most cases the mothers will be able to contrast the assumptions, biases and unscientific approaches used by "neutral" professionals with the accurate research provided in our book and many other sources. If the assumptions are unstated the brief can discuss them based on the context and failure to provide a proper basis for the conclusions.
The worst cases, often referred to as Custody-Visitation Scandal Cases because the outcomes are so extreme and are contrary to the evidence and the well being of children involve decisions giving custody to the abuser and supervised or no visitation to a safe, protective mother who is the primary attachment figure for the child. Cases with these extreme outcomes are virtually always wrongly decided.
One of my favorite parts of the book is a quote in Joan Zorza's chapter 14 page 26. I know the page by heart because I use it so often. "Until judges and other professionals receive the specific training they need to recognize these patterns (and as noted previously, many have such strong preconceived notions that they will not learn anything from even the best training), they must consult with genuine DV experts, particularly DV advocates. Otherwise, as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. IN THIS CONTEXT, IT IS IMPORTANT FOR COURTS THAT RULE AGAINST ALLEGED VICTIMS OF DV TO BE OPEN TO THE POSSIBILITY THAT THEY MADE A MISTAKE. COURTS SHOULD BE RELUCTANT TO TAKE PUNITIVE OR RETALIATORY ACTIONS AGAINST MOTHERS WHO CONTINUE TO BELIEVE THEIR PARTNERS ABUSED THEM." This quote also applies to allegations of child sexual abuse for which courts often deny valid allegations and then punish mothers severely for trying to protect their children.
The best time to use this quote would be when the abuser first seeks such restrictions or the judge indicates consideration of these extreme remedies because once the decision is made courts can become defensive trying to justify their mistakes. Nevertheless I would encourage protective moms to use this quote in asking courts to modify extreme restrictions particularly when the court created the restrictions without being aware of the quote or the research in the book.
Decisions on custody and visitation can always be challenged based upon a substantial change of circumstances. When a mother cannot afford to appeal or the time for appeal has expired, this may be her only avenue to change the bad decision. In most cases the decisions were the product of the use of outdated and discredited practices and the lack of information about the up-to-date scientific research now available. I believe the availability of this information is itself a change of circumstance that justifies a reconsideration of the evidence based on the information in the book and other good sources. Mothers should be able to pick out many examples of practices and assumptions misused by court professionals that led to the mistaken decision which the research shows are practices that work poorly for children.
An even stronger argument for a change of circumstance can be made when subsequent events after the decision can be combined with the new research to create an even clearer case of changed circumstances. In many of these cases, whether or not stated directly, courts give abusive fathers custody based on the prediction that they are more likely to foster a relationship between the mother and children. The prediction of domestic violence experts would be just the opposite because they understand the father was seeking custody as a way to control the mother and punish her for leaving. THE BATTERER AS PARENT says that all batterers engage in harmful parenting practices that include undermining the children's relationship with the mother. Accordingly when the father wins custody and proceeds to interfere with the relationship either by seeking court orders or his unilateral actions, this behavior confirms the predictions of domestic violence experts and discredits the predictions that led to the decision. Our book says it is common for abusive fathers to interfere with the mothers' relationships once they get custody. The courts' handling of this common issue is another example of gender bias. If the original decision supported the mother and resulted in interference with the father's relationship, the court would severely punish the mother and yet rarely does anything in response to far more objectionable behavior by the father. The mother can raise this issue by asking the court what it would do if a mother had committed the interference this father is doing.
I am not sure how this strategy of using the research to claim a change of circumstance will work. Certainly it is allowed in other areas of the law as when advances in DNA technology lead to a reconsideration of criminal convictions. I suspect it will work in some cases and not others. It is possible that even if the court rejects the initial petition it may lead to a later relaxation of visitation in which the court provides a different justification for promoting the relationship between mother and children so as not to acknowledge its prior mistakes. As this information is presented in more courts and the professionals become familiar with the research, we hope it will lead to better decisions for all protective mothers and their children.
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. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com