By Barry Goldstein
We have spent a lot of time discussing what is wrong with the custody court system particularly as it applies to domestic violence cases. This is understandable as there are so many horrendous cases in which flawed practices lead to outcomes that destroy children, undermine the reputation of the judicial system and create substantial harm to society. By now the research is overwhelming that the standard practices work poorly for children even as the custody court professionals fail to be open to the research now available. In recent years, academicians, government agencies and others have started to join protective mothers and domestic violence advocates in an understanding of the failure of the present system. We must go past mere complaints and offer solutions to reform the custody court system to be ready when those in authority are ready to listen. Accordingly I am writing this article to offer some ideas for the needed reforms. I hope this will start a discussion that will lead to a consensus on the types of reforms needed. While there will need to be a fundamental shift in attitudes to create significant reforms, I have tried to consider both what might be possible and what would work in creating my proposals.
1. Specialized Courts for Domestic Violence and Sexual Abuse Cases: This would include any cases where there are allegations or evidence of possible domestic violence or sexual abuse. Some judges and other court professionals believe it is not a domestic violence case until the allegations are proven. This is a mistake as the courts need domestic violence expertise to recognize whether or not the allegations are true. Specialized courts would have special training for the professionals and obtain expertise by responding constantly to these cases. Hopefully it would eliminate judges who don’t want to be hearing domestic violence or sexual abuse cases or have an obvious bias. This is not a panacea as it can be a disaster when the dv judge is hostile, but it seems to have a better chance. The benefit might also be limited in rural areas where there are not enough cases for specialization. Hopefully courts that can concentrate on these cases will learn best practices and to look at the patterns to help understand the cases.
2. First Priority Safety of Children, Second Priority Arrangements that give Children Best Chance to reach their Potential: Courts generally use some version of the best interests of the child standard. This sounds like it focuses on what works best for children which would be a good idea, but in practice it has created a very subjective analysis that has failed children. Some experts have suggested an approximation standard where the relative parenting time during the relationship would be replicated after the separation. This is what the parents thought worked best for the children before the disputes over the break-up clouded the process. Exceptions could be included to protect children from dangerous parents or for a serious change of circumstance such as a serious illness or substance abuse.
Most states have legislation or court decisions that create factors the courts should consider in deciding custody and visitation. The factors are usually relevant, but there is often no priority about what is most important so we often see court professionals focus on less important factors. I had one case where the judge was more concerned that the mother dressed the girls the same like twins although they were a year apart in age than the father’s abuse which included an incident observed by the children where the father took a knife to the mother’s throat. It is hard to believe that the children’s safety is not the most important priority far above all others, but it often is given less priority. Making this the priority would suggest a risk assessment rather than an evaluation that focuses on far less important and often pretend issues. Court professionals need to learn how to better recognize domestic violence and child abuse and to avoid minimizing these dangerous behaviors. A child’s safety cannot be reasonably compared with less important factors like a fancier home, higher income or negative statements about the other parent.
Similarly, the next priority should be arrangements that give the children the best chance to reach their potential. Children who are separated from their primary attachment figure are more likely to commit suicide, suffer depression or low self-esteem. It doesn’t make sense to take this risk except for something that can be shown to severely impact children. Research also shows that children witnessing domestic violence are more likely to engage in a wide range of harmful behavior. Allegations of alienation have not been shown to have such long-term harmful effects, but courts routinely focus on such less significant issues. The benefit of focusing on arrangements that help children reach their potential is the decisions would be more objective and based on valid scientific research.
In any decision, temporary or permanent in which a court diverges from the result that would have been created based upon the approximation standard, the court should put in writing:
- The harm the decision will cause the child (such as primary attachment issues)
- The benefits to the child the court believes it is creating by the decision
- Current scientific research that supports the expected benefits and supports the belief the benefits are more important to the well being of the child than the harm.
- The basis for the factual findings
- All significant evidence that would support a finding of a pattern of coercive control or intimidating behavior by the alleged abuser.
These requirements would force judges to focus on the most important issues for children and to at least put in the record the evidence considered. If the judge failed to consider important evidence or minimized it, an appellate court could more easily overturn the decision. This in turn would discourage judges from making a lot of the standard mistakes we see today.
3. Early Hearing on Domestic Violence: Near the start of any custody case that includes allegations or information about domestic violence, and before any appointment of an GAL or other representative for the child or any evaluator or other mental health professional, the court will schedule a hearing limited to the question of whether or not one of the parties has engaged in a pattern of coercive, controlling or intimidating behavior towards the other party. If such a pattern is established by a preponderance of the evidence, and the non-abusive parent is a safe parent (i.e. not a drug addict, beat the kids, etc) the non-abusive or less abusive parent shall receive custody and the abusive parent shall initially receive supervised visitation. In order to resume unsupervised visitation, the abusive parent must complete a batterer program or other form of accountability (therapy, anger management, substance abuse and other similar programs that have not been shown to change abusers' behavior shall not satisfy this requirement). The abusive parent must acknowledge sole responsibility for the abuse, commit to never abusing the mother and any other intimate partner and stop all forms of domestic violence tactics. If the abusive parent satisfies these requirements the court shall have the authority to order the resumption of unsupervised visitation in whatever gradualized manner the court deems appropriate with the understanding that if the parent commits further acts of domestic violence, all visitation shall stop. If the court does not find sufficient proof of domestic violence, the case shall continue, but the court shall be open to additional evidence and events that together with the evidence initially submitted constitute sufficient evidence to support a finding of domestic violence. This idea might appeal to courts because it would save a lot of resources and court time. Cases that now take many months or years could be resolved in a few hours and children would quickly know which parent they will be living with. This would also save a substantial amount in legal and other fees thus limiting the common abuser tactic of bankrupting the mother with aggressive litigation tactics. Most important the hearing would focus on domestic violence without distraction from other less important issues that abusers often use as a tactic to avoid accountability. This should lead to better decisions.
4. Custody Decisions to rely on Valid, Current Scientific Research: Custody decisions shall be made based upon the use of valid and current scientific research. Any expert testimony must be based upon such current research. Experts qualifying to testify based upon mental health degrees and practice shall be limited to testimony concerning mental health issues. Mental health professionals shall not be used in custody cases in which no significant mental health issue exists. Degrees in medicine, psychology or social work shall not be taken as proof of expertise in domestic violence. In any cases in which there are allegations or evidence of domestic violence, no mental health professional shall testify as an expert without consulting a domestic violence advocate or other expert. In order to testify or provide other assistance to the court as a domestic violence expert, the individual must work as a domestic violence advocate or other similar position at a recognized domestic violence organization, be approved as an expert by such recognized domestic violence organization or convince the court of expertise based on training and experience in domestic violence issues and familiarity with current scientific research. Any court professional whose behavior, practices or professional approaches creates the appearance of minimizing the importance of domestic violence or opposing the state policy of seeking to end domestic violence may not be considered for any position that would be considered a neutral professional.
We see repeatedly that courts rely on mental health professionals who often have no expertise in domestic violence and either cite bogus research that has serious flaws or just use what they call their clinical experience (which means their personal beliefs and prejudices). If there is any basis for courts to hear testimony from experts it must be based on a familiarity with current scientific research such as is found in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Part of the problem is that there was no research when custody courts initially adopted current practices and so they never got into the habit or expectation of looking for current research to inform their decisions. At the same time a cottage industry has developed where court professionals have realized the abusers have control of the family finances so the way to make money is to support approaches that favor abusers. This has led to articles by abuser rights mental health professionals that are not peer reviewed or based on any valid research.
5. Avoid Gender Biased Practices: Domestic violence and sexual abuse are gendered crimes. Repeated court-sponsored gender bias committees and other research have found widespread gender bias against women and particularly women litigants in child custody cases. The Constitution and our sense of fairness require men and women to be treated equally under similar circumstances, but failure to consider the fundamental differences between men and women is a violation of equal protection and fundamental fairness. Accordingly, practices that require mothers and fathers to be treated the same regardless of past parenting are not in the best interests of children and should not be permitted. Custody and visitation decisions should be made based upon the needs and well being of the children rather than the "rights" of the parents. Gender bias is often unconscious so judges must be open to concerns of mothers that they or other court professionals have engaged in gender bias and the use of gender biased approaches should require appeals courts to overturn the biased decisions.
6. Accountability: GALs, evaluators and other appointed court professionals shall not have immunity from civil lawsuits in connection with their work. If the evidence demonstrates the lawsuit was brought as part of a pattern of coercive, intimidating and controlling behavior towards their intimate partner, the defendant will be entitled to reimbursement of legal fees and expenses. Judges shall have a qualified immunity provided they avoid gross negligence, deliberate and unjustified retaliation or violation of a party's civil rights. Before a lawsuit can be brought against a judge, the party must obtain permission from a commission set up to review potential lawsuits against judges. A majority of the commission shall not be part of the legal profession. No one shall take part in review of a proposed lawsuit who has appeared or is likely to appear before the judge or has other professional connection that would create an appearance of bias. The commission or panel making the decision must include someone who is an expert in domestic violence.
In addition to other issues normally reviewed by judicial conduct committees, the committees shall investigate allegations of gender bias, retaliation for criticism of the judge or the court and a lack of understanding of domestic violence issues. Aside from other considerations, these issues will be investigated to determine if the judge needs retraining in these issues. A majority of the committees shall not be part of the legal profession and no one should participate in consideration of a complaint who has or might appear before the judge or have other potential conflicts. States shall provide sufficient funds so that significant issues raised in complaints shall be investigated. Lawyers shall not be subject to discipline for good faith criticism of the court or a judge and the court system shall take steps to avoid creating the appearance of retaliation for such criticism.
I know many mothers who have been cruelly mistreated by abusive judges would like to remove all immunity for judges. In practice this would not work well for protective mothers and there are legitimate justifications for judicial immunity. If all immunity was eliminated, the abusers would be the ones filing lawsuits because they have the resources and judges would be afraid to do the right thing. We need to create meaningful accountability for court professionals without interfering with legitimate protections. I remember reading an article by a psychologist in which he pointed to the low rate of findings against evaluators in complaints by litigants and concluded it proved the complaints were mostly frivolous. He never considered that psychologists are judging themselves and have a strong bias against these complaints. It really demonstrates why a majority of those reviewing complaints against any of the professionals cannot be from the profession being reviewed.
7. Economic Abuse: Custody courts shall take steps to prevent the outcome of custody cases to be decided by the relative resources of the parties. Courts shall level the playing field where one party has control of most of the family resources by ordering the wealthier parent to contribute to the other parent's legal expenses. In cases in which a pattern of coercive, intimidating and controlling tactics is established, the abusive parent shall be responsible for all expenses made necessary by their abuse. Courts shall consider economic abuse in considering allegations of domestic violence.
Abusers often threaten their victims that if she dares to leave he will bankrupt her and go after the children. Judges and other court professionals are often untrained in the use of economic abuse and rarely take steps to prevent this unfair strategy or use it to help understand the pattern of abuse. If courts were to respond aggressively to this tactic they would save a lot of work and court time because the abusers would no longer have an incentive to pursue a lot of frivolous claims and strategies.
8. The Importance of Context: Context is critical to understanding domestic violence issues. Accordingly custody courts shall avoid practices where each incident or issue is reviewed separately so that the context is hidden. Even where courts have made decisions denying domestic violence or similar allegations, this shall not prevent the court from examining new or additional examples or evidence of domestic violence in the context of the previous evidence rejected in an earlier decision. Similarly courts should be open to considering earlier evidence in the light of current research not previously considered. We have frequently seen courts give custody to alleged abusers on the assumption they were more likely to promote the relationship with the mother and once they gain control undermining or destroying the relationship. This behavior should be used to demonstrate the original assumptions were wrong and support the allegations of abuse because it demonstrates his motivation. Nevertheless, courts that severely punish mothers for asking courts to limit contact with dangerous fathers routinely do nothing when the fathers not only ask the court to interfere with the mother’s relationship, but unilaterally take actions to limit contact between the mother and children.
9. Review of Catastrophic Outcomes: A Catastrophe Review Commission shall be established to review events occurring after a decision in a domestic violence custody case that demonstrate the predictions made in the custody decision were catastrophically wrong. This would include cases where an alleged abuser found safe by the court later kills a child or intimate partner, is convicted of sexual abuse, child pornography, a domestic violence crime or other similar event that makes it likely the original decision was tragically wrong. A domestic violence expert shall be part of any panel reviewing these cases. The panel shall issue a public report that includes the names of the parties and professionals involved in the case, findings and recommendations. One of the problems we see is that unless a father immediately kills the children there are no consequences to judges making dangerous decisions. If they knew later events could trigger an investigation that could place the court’s mistakes in the context of some tragedy they might be afraid to take the chance.
10. Protective Parent Act: No penalty or retaliation shall be imposed for a good faith report of domestic violence or child abuse. A determination that a report of domestic violence or child abuse is not supported by sufficient evidence to confirm the allegation shall not by itself be used as proof that the allegation was deliberately false or to discredit the person making the allegation. The myth that women often make false allegations has led inadequately trained court professionals to create a punitive and retaliatory response to allegations of abuse. The decisions usually cause more harm to children than any expected benefit. Sexual abuse allegations are particularly difficult to prove. Inadequate proof, particularly in the context of common poor investigation practices do not mean the allegations were deliberately false, but too many court professionals fail to understand the distinction.
11. Courts May Not Consider Theories Based on Myths: No theories or approaches based on the myth that women frequently make false allegations of abuse shall be considered in a custody case. No professional who expresses a belief in this myth shall be qualified to participate as a neutral professional in a custody case. A determination of a belief in this myth can be made by explicit statements or implicitly from the actions and approaches of the professional. Parental Alienation Syndrome and its progeny like “friendly parent” approaches are based on the belief almost all allegations of abuse are false. The same is true of PAS by other names such as alienation or parental alienation. These bogus theories have prevented adequate investigation of abuse allegations by assuming they are false. This reform would prevent the harm caused by these unscientific practices. It would not prevent courts from considering actual evidence of specific behaviors and the effects of proven behaviors.
12. Record Keeping: Courts shall keep records that will be available on its web site providing information for each judge about how many custody cases included allegations of domestic violence or child abuse and how many the judge upheld. This will further be divided by gender. The court will also keep records of requests for protective orders and the numbers upheld by each judge. This will not invade anyone’s privacy as the names of the cases will not be provided. We know that only one or two percent of abuse allegations made by mothers are deliberately false (some additional ones may not have sufficient proof) so that if a specific judge is consistently finding against what we know have to be valid allegations, it will establish the judge needs retraining or to be removed from sitting on a bench handling domestic violence cases. I believe just posting this information will discourage judges from making arbitrary and harmful decisions.
13. Use of Best Practices by Child Protective Agencies: Child protective agencies shall work together with a local domestic violence agency and obtain training for their staff from them. The caseworkers shall consult with domestic violence advocates or other domestic violence experts when working on any complaint in which there is information the case might involve domestic violence. Many local communities have created a partnership between child protective and domestic violence agencies. These have worked well by helping to recognize domestic violence and respond in ways that benefit children. This should be considered best practices and illustrates that a mental health degree does not demonstrate expertise in domestic violence so these professionals should be consulting with domestic violence advocates or other experts.
14. Response to Child Sexual Abuse Allegations: In any child custody case that included allegations of child sexual abuse or charges against a parent who raised concerns about child sexual abuse and the court decides to give temporary or permanent custody or joint custody to the alleged abuser, the court, in writing shall specify the following: What was the evidence that supported the sexual abuse allegations; what is the evidence that proves no sexual abuse occurred; what is the evidence that proves no boundary violation occurred; what is the evidence that the complaint was made in bad faith; what is the harm of changing custody of the child; what is the benefit of changing custody, what can be done to secure the benefit without creating the harm or minimizing the harm
No type of child custody case is mishandled worse than ones with sexual abuse allegations. By the time children reach the age of eighteen, one-third of the girls and one-sixth of the boys have been sexually abused. The stereotypical abuser is a stranger, but most rapists and molesters are someone the victim knows and for children it is often their fathers. Nevertheless 85% of sexual abuse allegations result in custody for the alleged abuser. Clearly a large percentage of these cases are wrongly decided and spectacularly so. Courts routinely use flawed practices in responding to these allegations. These reforms will force courts to at least consider important issues that are often missed in the emotions of these cases. Hopefully it will discourage courts from granting custody to abusers and punishing good faith allegations.
15. Responses to Child Sexual Abuse Allegations: Courts shall use best practices in considering allegations of child sexual abuse such as use of play therapy in young children, providing sufficient time for a child to build a trusting relationship with the interviewer before expecting the child to reveal whatever happened; considering the context of domestic violence in the case, understanding children often recant truthful allegations for a variety of good reasons and the need to avoid silencing the child.
Child sexual abuse allegations are difficult to prove under the best of circumstances. The crime is not committed in front of witnesses for obvious reasons. Most sexual abuse does not leave physical proof (although inadequately trained professionals often expect it) and when physical proof is available it is often lost by the time the child reveals the abuse. Society is uncomfortable with the subject and court professionals don’t want to believe a father could do something so heinous, particularly if he is successful in other parts of his life. Accordingly it is important that professionals investigating the allegations use best practices and avoid being influenced by the myth that women frequently make false allegations. At the same time professionals should consider if the child’s reaction was caused by boundary violations or some innocent behavior.
16. Providing Necessary Information in Court Applications: In any application to a court for a change in the custodial arrangement, the applicant will provide information about any arrests or convictions for domestic violence or child abuse crimes and any prior protective orders against the party. Any misrepresentation or omission of material information required under this section shall result in the dismissal of the application and reversal of any relief granted based upon the misleading application.
We have seen common abuser tactics where they make false allegations and ex-parte applications for a change of custody. Frequently mothers lose custody without any opportunity to challenge the allegations. Courts can be unaware of a history of domestic violence and child abuse. By the time the mother has a chance to challenge the decision the children are living with the father and the court is reluctant to uproot them again. If the application fails to inform the court of these critical issues, the petition must be dismissed and the children returned.
17. Retraining Court Professionals: In conjunction with the current scientific research that establishes widespread mistakes and bad practices in responding to domestic violence custody cases and the reforms developed to respond to the problem, court professionals shall be retrained based upon current scientific research. Among the topics to be included in the retraining shall be:
1. Most contested custody are domestic violence cases and not "high conflict" cases.
2. How to Recognize Domestic Violence
3. Gender Bias
4. The Effects of Domestic Violence on Children
5. The Need to Limit Mental Health Professionals to their Actual Expertise
6. The Proper Way to Respond to Sexual Abuse Allegations.
Court professionals have received a lot of misinformation that contributes to the bad custody decisions we see in domestic violence cases. Judge Mike Brigner and I have written an article designed to train judges. These six areas constitute frequent mistakes made by judges and other court professionals that lead to decisions that are harmful to children. A big part of the problem is that many judges and other professionals have a false confidence in their knowledge of domestic violence issues and are not open to hearing information based upon the current scientific research now available. Hopefully by making major reforms in the courts’ response to domestic violence cases it will send a powerful message that court professionals need to take a fresh look at this subject and be open to the expertise now available.
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