When Safety is the First Priority

By Barry Goldstein

I believe most judges, if pressed would agree that safety should be the most important priority in custody decisions. This certainly should be the focus of domestic violence cases. Nevertheless when they seek assistance through evaluations, the investigation focuses on cooperation between the parents, emotions, psychological tests that rarely provide any information about safety, alienation and other issues that are far removed from safety. One of the reasons the evaluators concentrate on less important issues is that they don’t understand domestic violence dynamics, the research about batterer narratives, behaviors associated with increased risk of lethality or how to recognize domestic violence. But if these evaluators don’t have the knowledge or skills to assist courts in focusing on safety issues what is the point of having evaluations? Clearly custody courts will make better decisions when safety is the first priority and the experts they rely on know how to recognize dangerous abusers.

What Can We Learn from Batterer Narratives? 

Batterers tend to be very manipulative and this is especially true of the ones we see in contested custody cases. We regularly see inadequately trained court professionals treat complaints by protective mothers with tremendous skepticism based on the myth that women frequently make false allegations of abuse for litigation purposes. A recent Department of Justice study led by Dr. Daniel Saunders found that court professionals without the necessary training in domestic violence are more likely to believe this myth and in turn make recommendations that harm children. While valid complaints of abuse are routinely disbelieved, Judge Mike Brigner points out that men’s denial of abuse allegations which are often false are viewed without the skepticism faced by their victims. Some evaluators and other court professionals may have heard about batterer manipulations, but this knowledge is rarely applied to an individual case.

Dr. Molly Dragiewicz wrote an important book, EQUALITY WITH A VENGEANCE which provides substantial research to demonstrate how men and women are different because they are treated differently. The book contains an interesting chapter about the use of batterer narratives to recognize and understand their abuse. Significantly, we virtually never see an evaluator aware of this research in order to better understand abuser tactics and to avoid being manipulated. Much of the remainder of this section of the article is informed by this book.

“Though it makes sense to pay attention to what batterers say about why they use violence and what they get out of it in order to understand it better, batterers’ accounts of what happened should not necessarily be taken at face value. What batterers say about violence can help us understand why they use violence as well as how they justify and continue that violence in the face of nominal cultural disapproval. …The tactics of denial, minimization, justification and excuse are central to… batterer narratives….Batterer accounts of violence also support feminist and other research on the importance of patriarchy to violence.”

There is a fundamental contradiction between an early childhood lesson that “boys don’t hit girls.” and the many messages that encourage and justify men’s abuse of women. A better message would be that boys (and girls) should not hit anyone except in self-defense because the original message suggests that hitting is ok except in some exceptions. We often see abusers expand the exceptions so that he hit her because she is a (insert sexist slur) or some action she took or did not take can justify his abuse. This belief system is one of the reasons why verbal abuse should be treated seriously as his name calling later serves as a justification for physical assault and this risk makes his verbal abuse a more effective coercive tactic.

“Denial that the abuser perpetrated the violence is fairly straightforward. It may include denial that anything violent happened or more elaborate stories about how the victim came to hurt herself through no fault of the abuser. Batterers often deny that they are violent people or at least that they would ever hit a woman. In this way, batterers apparently seek to create the impression that nice guys like them simply could not have perpetrated violence. This form of denial feeds on stereotypes about batterers as instantly recognizable cruel monsters. Batterers often cultivate positive public images in order to conceal their violence and maintain their self-image as great guys. Batterers’ insistence that they are nice or not violent people is mirrored in public accounts of domestic homicide interviews with neighbors who invariably testify about what a nice guy the abuser was are a staple of news coverage.” Similarly we often find court professionals unable to believe such a nice guy could have done the awful things he is accused of.

Another part of denial is the frequent repetition of the myth that women frequently make false allegations of abuse. We often see attacks on the victim’s credibility as an attempt to distract attention from the facts presented and as a substitute for an objective investigation of the abuse allegations.

Knowledgeable experts can use internal contradictions in the abusers’ accounts to help understand what really happened. “…While one might expect batterers’ accounts to be internally consistent, they often are not. For example, even when batterers disavow violence they are often careful to emphasize their strength, size and capacity to use violence if they want to. These juxtapositions suggest that despite the men’s denial of certain forms of transgressive violence, their perceptions of normative masculinity call for the capacity to do violence.”

Batterers tend to minimize their abuse in terms of its severity, frequency and their responsibility for it. Interestingly, and counter intuitively, women also tend to minimize their partner’s abuse. The descriptions from both parties often confuse inadequately trained professionals and contribute to their misunderstanding of the seriousness of the father’s abuse.

One of the common ways abusers minimize their mistreatment of their partners is to compare what they did to what other more brutal batterers might commit or what they could have done if they wanted to. One of the unearned male privileges men are used to exercising is the power to define. Batterers often minimize their abuse by defining domestic violence or assault as something that requires a serious enough injury so that their assault would not qualify. They will also define what they did as justice rather than abuse.

“Because abusers rarely admit to the full extent of their violence or take responsibility for their violent actions, excuses and justifications are frequently part of their accounts (citations omitted). Hearn wrote, “Excuses and justifications involve the recognition of the violence but the denial of either responsibility (excuses) or blame (justifications). Whilst in some sense excuses and justifications are conceptual opposites, they are in practice sometimes closely interlinked.’ Hearn’s observation gets at the contradictions that are so often present in batterer accounts. Indeed batterers often say in effect, ‘I did something but it wasn’t my fault. And she deserved it anyway.’”

Many of the excuses deny responsibility by claiming it was caused by forces beyond his control. The excuses can also be based on alcohol or drug abuse. They may also blame abuse they suffered as children. Often the batterer will acknowledge some action he believes is acceptable while creating a disconnect between his actions and any harm he caused. Abusers frequently claim self-defense and claim to be the real victim. They may take something she said or her “misbehavior” as the cause of the incident and his violent response as self-defense or justified.

“David Adams argued that what batterers label self-defense is often violent retaliation for disobedience. Adams described how male abusers categorize even very violent acts including strangling, punching, and beating someone up as self-defense and therefore not violence. At the same time, abusers outline a very different standard for their partners’ behavior. Many abusers characterize their partner’s disagreeable speech as akin to a violent physical attack and justify physical beatings as self-defense against such perceived attacks. One study found that more than half of the batterers blamed their partner’s aggressive speech for their violence.”

“Equating very different kinds of aggression and violence is part of abusers’ ‘account-keeping’ mindset. Research on batterers suggests that they often keep a running tab of all the ways they feel their partners have disrespected, disobeyed or wronged them. Reasoning that they are simply settling accounts, abusers then use these transgressions as justifications for physical violence. For some batterers this kind of account keeping shades into looking for reasons to use violence. “I started looking for excuses; I’d do anything to get an excuse (to use violence).’ The pairing of excuses and justifications allows batterers simultaneously to deny their violent intentions and garner support or at least understanding of their violent actions.”

Batterers often use patriarchal explanations for their abuse. They expect their partners to conform to traditional women’s roles. Accordingly if she fails to fulfill her “sexual obligations” or doesn’t perform the household and child care duties the way he demands this would be used as a justification for abusing her. They usually would not directly say that women are inferior, but might call her names to justify his assault and suggest she asked for it. Abusers often have a low tolerance for their partner’s failure to submit. Batterers seek to take their abusive behavior out of context and to start the narrative at the point where they feel their partner did something wrong.

“The findings that batterers minimize their abusive behavior, blame the victim for their own use of violence and equate their partners’ failure to submit with violence all have serious implications for research” and I would add for custody court professionals. “Given what we know about how batterers talk about their violence, scholars and advocates are ill advised to take batterer reports at face value.” And yet this is exactly what we repeatedly see from court professionals with inadequate understanding of domestic violence and no knowledge of the research about what we can learn from batterer narratives. Before leaving this topic, I want to make sure to mention that there are exceptions and if a father does not use these tactics or explanations this does not prove he is not an abuser.

Professionals Without Understanding of Domestic Violence Dynamics are Unqualified 

Repeatedly we see cases in which court professionals conclude and judges decide that the alleged abuser committed one or two acts of domestic violence and then suddenly stopped for no apparent reason, there is no further risk because the parties separated or he hasn’t assaulted her since they separated and he has no access so there is no risk in giving him custody or unsupervised visitation. These are the kinds of mistakes unqualified professionals make when they do not understand domestic violence dynamics.

Men commit domestic violence against their intimate female partners because of a belief system that they are entitled to control their partners and make the major decisions in the relationship. The end of a relationship rarely changes their belief system. When their history is fully investigated, they usually have abused a series of partners. Evaluators rarely ask about past history of abuse even though that would be important information to determine the danger he presents.

Abusers are unlikely to change their beliefs unless they are held accountable and punished for their abusive behavior. Approaches that blame the victim for her partner’s abuse or suggest his abuse is mutual or that both parties contributed demonstrates a lack of understanding of domestic violence dynamics. The abuser deliberately took actions to frighten his partner because this coerces her to do what he wants. One of the worst mistakes of court professionals is when they blame or punish mothers for their fear or emotion caused by her partner’s abuse. Many court sponsored gender bias committees have cited this as a common example of gender bias, but the custody courts continue to make this dangerous error.

Most contested custody cases are domestic violence cases in which an abusive father who usually had limited involvement with the children during the relationship seeks custody as a tactic to pressure the mother to return or punish her for leaving. Untrained professionals usually fail to look at his motivation for seeking custody. They ignore evidence that the father uses visitation exchanges, phone calls to the children and other litigation opportunities to try to reunite with the mother or to harass her. He may use his time with the children to pump them for information about the mother or constantly ask to speak with her. This could help courts recognize the father’s motivation if only they understood the significance.

At the same time, even when they see evidence that he abused the mother, they rarely take effective steps to stop his abuse and protect the children. Domestic violence experts recommend that in domestic violence cases the best arrangement for the children is custody for the safe or safer parent and supervised visitation for the abusive parent. It is important that the abuser be held accountable for his abuse so requiring him to complete a batterer program or imposing other consequences should be part of the arrangement. I want to be clear that batterer programs do not by themselves change men’s behavior particularly long term. Only monitoring and accountability have been shown to accomplish this, but completion of the program can show the father is motivated to make the changes needed to become a safe father. In order to work towards unsupervised visitation, the father would have to convince the court that he will end his abusive behavior. The court can consider if the father acknowledges his abuse and does not try to minimize his responsibility or blame others. The father should express his understanding that his behavior harmed his children and make a commitment never to act abusively again. He must have stopped all coercive and intimidating behaviors. The court must make clear that if he commits further acts of abuse he will lose his visitation privileges. This is an approach that is based on the safety and well being of the children instead of the rights of the father. One of the present problems in the custody court system is in the rare cases when they order supervised visitation for abusive fathers they quickly want to move to unsupervised without any change in his belief system, but when they order supervised visitation for mothers who do not pose any safety risks, the courts appear happy to continue this burden on the children indefinitely.

A common mistake by court professionals occurs when the father has supervised visitation and the father’s ability to act appropriately while supervised is taken as proof he is safe for unsupervised visitation. This is based on the false assumption that abusers batter their partners because they cannot control their behavior. In fact abusers control their behavior and anger. This is why they do not assault people other than their partners because if they did they would face consequences and why they don’s assault their partners except in private so there are no witnesses. If they cannot control their behavior during supervised visitation they are unsafe for unsupervised visitation, but the ability to control their behavior is not surprising and should not be used by itself to assume the father no longer poses a danger.

Since men abuse women because of their belief systems and not anything the mother did, there is every reason to believe the father will continue to abuse future partners. This means that if he is given unsupervised visitation or custody, the children are likely to witness their father abusing future partners. This risk is often overlooked by inadequately trained professionals with little understanding of domestic violence dynamics.

Risk Assessment 

In custody cases involving allegations of domestic violence or child abuse the safety of the children should be the first priority. Accordingly it would make much more sense to order a risk assessment which would give courts the information it needs to make an intelligent decision instead of an evaluation that focuses on far less important issues. Few of the evaluators relied on by custody courts know the significance of the alleged abusive behaviors they are asked to investigate.

There are several common abusive practices that have been demonstrated to be associated with a higher risk of lethality or serious injury. It should be considered malpractice to make a custody decision without knowledge of these risks. One of the risks is strangling, choking or placing his hands around her neck. New York recently made this a crime because abusers sometimes do this without leaving physical injuries which was the previous requirement for prosecution, but this behavior is extremely dangerous. Other common issues that reflect an increased risk include hitting a woman while pregnant, rape or attempted rape, hurting pets or other animals, substance abuse, availability of guns, belief she has no right to leave, threats of suicide, homicide or kidnapping, violation of orders or laws and seeking custody as a tactic to maintain control.

For domestic violence advocates, risk assessment and safety planning are a fundamental part of their job. Their expertise could help courts make decisions that promote the safety of children. Nevertheless we repeatedly see judges refuse to listen to domestic violence experts because they believe they know enough, but no one in the courtroom has this vital expertise.

Recognizing Domestic Violence 

Custody courts have no chance to respond properly to domestic violence if they do not know how to recognize domestic violence. It often appears like some court professionals are attempting to rule out abuse allegations because they disbelieve complaints based on many common situations that in no way contradict the allegations. We often see evaluators and judges discredit allegations because the protective mother returned to her abuser, sought a protective order but did not follow-through, failed to have police or medical reports or the children did not show fear when a court professional observed them interacting with their father. The first four situations represent a normal response by battered women for safety and other good reasons. In the final example the children understand their father would not hurt them in front of a witness, particularly someone he is trying to impress. Of course if courts discredit allegations based on information that is not probative they inevitably will get a lot of decisions wrong.

At the same time they are discrediting allegations for the wrong reasons; many court professionals do not know what to look for in order to use the available evidence to determine the validity of domestic violence allegations. Some professionals look only for incidents of physical abuse and therefore miss a lot of important evidence. Genuine experts understand that they need to look for patterns of coercive, controlling and intimidating behavior. They will look at psychological, emotional and financial abuse. They will look for isolating behaviors. The experts will consider if the alleged abuser is monitoring her such as checking her phone or the odometer on her car. They will look at his motivation for seeking custody if he had little involvement with the children during the relationship. They want to know if he is seeking custody as a tactic to pressure her to return or punish her for leaving. The experts will consider if he is engaged in litigation abuse. Very often judges who complain about a he-said-she-said case would have a lot of evidence to help them get it right if only they understood the significance of the evidence available.

Conclusion 

I believe the approaches that should be used in domestic violence custody cases are both logical and unassailable. The first priority and most important factor in deciding custody must be the safety of the children. No one can make an intelligent or informed decision about safety without knowing the factors that make an abuser most dangerous, how to use abuser narratives to recognize how abusers will describe their abuse, how to recognize domestic violence and an understanding of the dynamics of domestic violence. As Dr. Dragiewicz points out, professionals must learn not to take each incident or issue separately but rather look for patterns and always consider the issues in context of the whole relationship. If we ask court professionals if they understand or have sufficient expertise in domestic violence, they are likely to claim that they do and many believe it sincerely, but if we instead ask them about the specific knowledge and skills necessary to respond to domestic violence custody cases they cannot honestly claim to have this information. If they did, the courts would not repeatedly be sending children to live with dangerous abusers.

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