By Barry Goldstein
The Office of Violence Against Women (OVW) is the part of the US Justice Department that provides grants for programs designed to reduce and prevent domestic violence. They recently sponsored a forum for their staff and other professionals in various parts of the government to learn about the crisis in the custody court system. They heard from seven protective mothers, one very inspiring Courageous Kid and over a dozen of the leading experts in the country. It was a wonderful discussion based upon current scientific research and actual experiences and everyone seems to get it that the courts are routinely making catastrophic mistakes in failing to protect children and domestic violence survivors. The purpose of the forum was to consider the problem, causes and solutions. It was so wonderful to take part in a reality based discussion about domestic violence custody issues and to do so with people who may have the ability to promote the needed changes. And yet the next day if any of us walked into a custody court, the research and the reality that were an unquestioned part of the discussion at OVW would be missing in the pretend world that is the present custody court system.
Similarly, in December, I had the privilege of participating in a review of grant proposals concerning gender, violence and health. The Canadian Institute of Health brought leading experts in the field together to consider which grant proposals would be most beneficial to fund. This was a high level discussion in which all of the participants were familiar with current scientific research so that we could have a reality based discussion. I found it particularly interesting that the Canadian government could attract knowledgeable experts for $200 a day at the same time the courts pay or require litigants to pay thousands of dollars for a few hours to “experts” completely unfamiliar with up-to-date research who instead provide opinions based on their personal belief system and prejudices.
Our custody courts are a very insular system in which information and ideas that contradict the misinformation routinely relied on by court professionals are unwelcome. Custody courts started relying on mental health professionals at a time when no research about domestic violence was available and many people assumed domestic violence was caused by mental illness, substances abuse and the behavior of the victims. We now know the original assumptions are wrong and mental health professionals rarely have much expertise in domestic violence or child sexual abuse. Nevertheless the courts are so used to relying on professionals with inadequate training that they routinely refuse to hear genuine experts or treat their testimony with tremendous skepticism. Experts, government agencies and academicians relied on to make major decisions in the real world are treated with disrespect by the court system. Repeatedly I have heard judges suggest that when the (inadequately trained) GAL, evaluator and child protective caseworker all agree, it is unreasonable to consider any other view.
Abusers often impose a pretend world on their victims by denying and minimizing their abuse. They often blame their partners by claiming her behavior forced him to abuse her. It is often unsafe for the woman to challenge this pretend existence. Genuine experts agree that dealing with reality is an important part of the healing process after survivors leave their abusers. This makes the common court practice of cooperating with abusers to focus on pretend issues so harmful to battered mothers and their children.
Many years ago I tried to help a teenage girl whose father was sexually abusing her. She finally found a therapist she could trust and the courage to share her secret. He called the child protective agency, but their response was to remove the girl from her home so the father’s life would not be disrupted. They put her in a home for girls that included those there for criminal behavior. While at this home, she was assaulted and robbed. The caseworker refused to permit her to continue working with her therapist just when she needed him most and pressured her to recant her allegations. The caseworker threatened to send her to an even worse facility and she was also concerned about the trouble her father would face. When she recanted her allegations she was sent back to her home and forced to engage in therapy based upon the false assumption her allegations of abuse were wrong. At a time when she needed therapy in response to years of abuse, she was forced to engage in therapy to determine why she made false allegations.
More recently, I worked on a New Jersey case in which a young child reported to her mother that her father and his mother had touched her in the vicinity of her privates. She did not know the words to be more precise. The father immediately denied the allegations and claimed the mother was making deliberate false allegations. The unqualified professionals focused only on whether the child was molested or the mother made false allegations and when they could not find enough evidence of abuse after a flawed investigation assumed the allegations were false. They brought charges against the mother and eventually gave the abusive father custody and the mother supervised visitation. When the court professionals later learned of the father’s history of domestic violence and hired a qualified expert who used current research to recommend custody be restored to the mother, the court professionals ignored the information that undermined their mistaken finding. The mother was forced into therapy in which she had to prove she no longer believed the true allegations if she wanted unsupervised visitation with her daughter. Having escaped the pretend world imposed by her abuser by leaving him, the mother faced another pretend world imposed by the court.
These kinds of mistakes are common in the broken custody court system. Often they are caused by court professionals who use the bogus Parental Alienation Syndrome (sometimes by other names) to give custody to the abuser and deny normal contact with the protective mother. Some courts impose reunification therapy on the children who are taught that their dislike of their father is not because of his history of abusing them and their mother but because of the lies she has told them. Again at a time when they need therapy to heal from their father’s abuse and the separation from their primary attachment figure, they must instead engage in therapy based on pretend alienation issues. These practices work well for the bank accounts of mental health professionals, but poorly for children.
Most court professionals have been trained to view contested custody cases as “high conflict” by which they mean the parents are angry at each other and act out in ways harmful to their children. Current research, however, establishes that most of these cases are actually domestic violence cases. Fathers with a long history of abuse seek custody as a way to gain access to their victim to pressure her to return or punish her for leaving. Court professionals unwittingly assist these tactics by pressuring the mother to interact and cooperate with her abuser instead of pressuring the father to stop his abuse. The normal fear, emotion and reluctance to cooperate with a man they see as dangerous is used to discredit and punish the mother. Using the “high conflict” lens makes it harder for court professionals to recognize the father’s abuse and to take it seriously.
Few court professionals have been taught about the dynamics of domestic violence or how to recognize it. We regularly see court professionals discredit domestic violence complaints for reasons that are not probative such as when women return to their abuser, withdraw protective orders or don’t have police or medical reports. The women do this for safety and other reasons, but if the professionals treat this kind of information as if it were proof of false allegations, they have no chance to recognize valid complaints. At the same time, these professionals are often only looking at incidents of physical abuse. Accordingly they fail to see the patterns of controlling and coercive behavior. They don’t pay attention to economic control, isolating behaviors, emotional abuse, monitoring their partner’s behavior or information about the abusers’ motivation. Once courts determine through these flawed practices that the domestic violence allegations are false, they generally refuse to consider additional evidence or events that support the allegations and severely retaliate against mothers who continue to believe their allegations. Significantly, when courts do recognize the father’s abuse, they rarely if ever penalize him for continuing to deny his abuse.
The pretend world created by the custody courts is supported by the popular myth that women frequently make false allegations of abuse to gain an advantage in the litigation. A new Department of Justice study led by Dan Saunders of the University of Michigan found that court professionals without adequate training in domestic violence are more likely to believe this myth and in turn make recommendations harmful to children. The myth greatly contributes to the frequent mistaken findings we see in custody courts where valid allegations of domestic violence are disbelieved. Widespread gender bias also contributes to the inaccurate decisions.
Custody courts do their worst job in responding to allegations of sexual abuse of children. Although a majority of allegations made by mothers are accurate, 85% of the cases result in custody for the alleged abuser. Even attorneys with little knowledge of domestic violence and child abuse routinely advise clients not to raise sexual abuse allegations, even with strong cases, because the courts are so reluctant to believe a father could commit such a heinous act. Sexual abuse against young children is particularly hard to prove because it is committed in private for obvious reasons and children often do not have the language to describe what their father did to them. Although many court professionals expect physical proof, most assaults do not leave physical evidence and when they do it may be gone by the time the child works up the courage to reveal the abuse. Older children often recant true allegations because the abuser has threatened to hurt them or their mother or because they don’t want someone they still love to get in trouble. Poor investigation methods by often inadequately trained professionals also impede proof of sexual abuse. When allegations are made by mothers the most likely circumstance is the allegations are true. The next most likely is that the accused did not abuse the child but engaged in boundary violations that made the child uncomfortable. Other common possibilities are that the allegations are false, but made in good faith or that the evidence is equivocal, but court professionals routinely focus on deliberately false allegations even though this is the least likely cause for the allegations. The result of these flawed practices is that courts often deny valid allegations of sexual abuse and conduct the rest of the case based upon the fiction that there is something wrong with the mother for trying to protect her child.
These common mistakes in domestic violence and child abuse cases lead to a pretend world promoted by the abuser and supported by the court in which the case is conducted based on the fiction that the mother’s allegations are false. Any attempt by the mother to provide additional information of the father’s abuse is treated as a lack of cooperation for which she is severely punished. Her only hope to have some minimal time with her children is to prove she no longer believes the true allegations she made. In other words she is back in a pretend world that she hoped to escape by leaving her abuser. Even worse, now he has complete control, supported by the court and she is not even near the children to try to protect them when he acts in a dangerous manner.
In the typical contested custody case the mother is the primary attachment figure for the child and complains about the father’s domestic violence and/or child abuse. The father counters with claims of alienation. The primary attachment figure is the parent or other caregiver who provides most of the child care during the first couple of years of a child’s life. When a child is separated from their primary attachment figure, the child is more likely to suffer depression, low self-esteem and to commit suicide when older. Accordingly it makes no sense to do this unless the primary attachment figure is unsafe such as if they were a drug addict or beat the child. At the same time children who witness domestic violence are more likely to engage in a variety of harmful behaviors when they are older and their normal development is impeded which can cause lifetime of harmful effects. Alienation is a nebulous term which is often alleged in a generalized way. The most likely outcome of false negative statements is that it harms the relationship with the parent making the false statements. There is no research that demonstrates long term harm to children from alienating behaviors. Claims of primary attachment are almost always true as in our still sexist society mothers continue to provide most of the child care particularly in the first years of a child’s life. In many cases the father does not contest the issue or the work schedules of the parents make it clear who was the primary attachment figure. Mothers’ allegations of abuse are rarely deliberately false (in cases of child sexual abuse inaccurate complaints could be made based on the behavior of the child), so the complaints tend to be reliable. Alienation claims by fathers in contested custody cases are often part of a standard abuser tactic to deflect claims of abuse. Research such as the study led by Nicholas Bala establishes that fathers in contested custody cases are sixteen times more likely to make deliberately false complaints. The complaints by mothers are more important to the well being of children and far more likely to be true than father’s complaints and yet in contested custody cases fathers receive custody or joint custody between 70 and 83% of the time. Clearly courts are not making decisions based upon the reality experienced by children or approaches that benefit children.
The worst custody decisions provide custody to the alleged abuser and supervised or no visitation to the safe, protective mother who is the primary attachment figure for the child. These decisions are virtually always wrong because they are based on punishing the mother for believing the father is dangerous and not on concerns for the well being of children. The findings are usually wrong because of the flawed practices, but the outcome would be wrong if the findings were correct because courts rarely weigh the harm they are causing with whatever benefit they seek to create. The harm of denying the child their primary attachment figure is far greater than any benefit the court believes it is providing. Significantly, we rarely see evaluation reports or court decisions that weigh the benefits and harm of a decision they are considering. This is the kind of result we see when courts fail to consider current scientific research in their decisions. Judges may believe the mental health professionals involved in the case provide this expertise, but the professionals relied on by the courts are rarely familiar with current scientific research and courts don’t disqualify or even discredit evaluators and other mental health professionals for being unfamiliar with current research.
Mothers partnered with abusive fathers are in an impossible situation. If they fail to protect their children from the dangerous abusers, they can lose custody for failure to protect. The mothers hear repeated messages that they should leave him, but when they do and try to protect their children, they are punished for interfering with the relationship between the children and the abusive father. The result is too many courtrooms in which courts recreate the pretend world the mother sought to escape.
In fairness to the custody courts, they were forced to develop practices to respond to domestic violence cases at a time when no research was available. Many other entities were slow to understand the best ways to respond to domestic violence. Police officers were trained for many years to separate the parties when called to a home and have the abuser walk around the block to calm down. Eventually they switched to a pro-arrest policy after research demonstrated this practice was ineffective. Domestic violence homicides were reduced as communities moved towards practices designed to hold the abuser accountable. Even domestic violence agencies have not always been as supportive of protective mothers as they deserved, but with the increase in Custody-Visitation Scandal Cases and increase in domestic violence homicides as a result of mothers staying with their abusers because of the dangers created by custody courts, the domestic violence community has made child custody an important priority. It has taken a while for academicians to realize the harm in common custody court practices. Initial research supported shared parenting, but more comprehensive research has demonstrated shared parenting is harmful to children even when there is no domestic violence, but too often it is used in domestic violence cases because court professionals have difficulty in recognizing domestic violence. Current scientific research confirms complaints by protective mothers that the custody courts are mistreating them and harming their children. Government agencies now seem to understand the custody courts are harming children. Their understanding is based upon the research now available. The problem is that child custody issues have historically and constitutionally been left to the states and their courts.
Psychologists and other mental health professionals engaged in research have come to understand the harm of the standard practices in domestic violence custody cases. Most mental health professionals are not involved in the custody court system, but have failed to impose ethical standards on mental health professionals involved in questionable practices in the custody courts. The professional associations have permitted ethically challenged psychologists and other professionals to make recommendations unsupported by current scientific research, engage in biased practices that favor abusers and make diagnoses that are not found in the DSM IV because they don’t exist. Although ethical considerations would require the professionals to consult with experts on subjects in which they don’t have expertise, like domestic violence, the professionals in custody courts routinely fail to consult domestic violence experts, wrongly believing they have this expertise. This has led to frequent mistakes in domestic violence custody cases. These unqualified mental health professionals have played an important role in misleading custody courts and creating an illusion that there is a scientific basis for the mistaken practices commonly used in custody courts.
Judge Sol Gothard often trains other judges because of his expertise in domestic violence and child abuse. He was featured in the PBS documentary BREAKING THE SILENCE: CHILDREN’S STORIES. He wrote that if the courts had commissioned a study on how the present practices are working, they would have found the research contained in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. This research demonstrates that the present practices are working poorly for children. The outdated and discredited practices routinely relied on by custody courts lead to the pretend world of custody courts we have discussed in this article. We must encourage judges and other court professionals to be open to the current scientific research and stop closing their eyes and ears to information that undermines their long-held beliefs and assumptions.
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