Department of Justice Report Demands Custody Court Reforms

by Barry Goldstein

Part I: The Game Changing Findings 

The United States Department of Justice provided a grant to support a major study by Dr. Daniel Saunders of the University of Michigan to determine how well court professionals and particularly evaluators are responding to domestic violence cases. The study comes in the context of frequent and substantial complaints that custody courts are using deeply flawed practices that result in placing children in danger. The Saunders’ study is the latest and most prestigious to confirm the validity of these complaints. Dr. Saunders found, “…domestic violence is frequently undetected in custody cases or ignored as a significant factor in custody-visitation determinations (report P. 4). One could argue about at what point the research became so compelling that reforms are required, but with the publication of the Saunders’ study there can be no informed discussion that the present practices are safe or acceptable.

Context

It is especially important that context be considered in understanding domestic violence cases, because the failure to do so has been one of the major problems in the courts’ response to domestic violence custody cases. Although we often disagree with various court decisions, the United States rightly has a very positive reputation for judicial fairness. Many of the protective mothers victimized by their abusers and then faulty court processes originally came from countries where courts are controlled by the state or otherwise biased. They began their cases confident that in this country the judge would hear the overwhelming evidence of their partner’s history of abuse and protect the children. Instead they became victims of the most extreme outcomes in which the abuser gains custody and the safe, protective mother is given supervised or no visitation.

Those of us who work with protective mothers must keep in mind that what we see constantly are part of a small percentage of cases. There are unfair advantages in the court system gained by litigants who have more resources and disadvantages to marginalized groups caused by racism and other oppressions, but most of the time the justice system works. Even in the custody courts more than 95% of cases are settled more or less amicably. The problem is with the 3.8% of cases which cannot be settled without a trial and often much more. Many court professionals have been taught these are “high conflict” cases and unintentionally use responses that help abusers, but the vast majority of these cases are actually domestic violence cases in which a father who often had little involvement in caring for the children during the relationship seeks custody as a tactic to pressure the mother to return or punish her for leaving. The Saunders’ study confirms other research that most of these cases involve domestic violence. We repeatedly see cases in which the father allowed or often required the mother to provide all or most of the child care and then seek to convince the court that she suddenly became unfit when she left him or made complaints about his abuse. The Saunders’ report demonstrates how evaluators with inadequate training or beliefs hostile to battered mothers help these abusers gain custody.

The custody courts, like other institutions, had to develop a response to domestic violence at a time when there was no research and domestic violence was first becoming a public issue. The courts relied on the popular assumption that domestic violence was caused by mental illness, substance abuse and the actions of the victim. This led to a reliance on mental health professionals as if they were the experts. In many ways the Saunders’ study is an investigation into how this practice has worked for the nation’s children. We now know that the original assumptions were wrong. Mental health training does not provide domestic violence expertise so the issue becomes whether the evaluator obtained sufficient specific training, but courts usually are more concerned with the post-graduate degree than relevant expertise.

The study specifically found, “Domestic violence is its own specialty. Qualification as an expert in the mental health field or as a family law attorney does not necessarily include competence in assessing the presence of domestic violence, its impact on those directly and indirectly affected by it, or its implications for parenting of each party. And even though some jurisdictions are now requiring custody evaluators to take a minimum amount of training in domestic violence, that ‘basic training’ by itself is unlikely to qualify an evaluator as an expert, or even assure basic competence, in such cases.” (report P. 133)

The court system uses the doctrine of stare decisis which means that once a finding is made the court will not permit the parties relitigate the issue. This makes a lot of sense as it would be a tremendous waste of resources to hear the same issues over and over again. Unfortunately, this is often applied in ways that make it hard for courts to understand the issues in context. Judges often want to consider each issue separately and in doing so fail to see the pattern which is so important in domestic violence cases. We have often seen a court initially make a decision denying the mother’s allegations of domestic violence. This may be the result of inadequate evidence, poor legal representation or the failure of the court to understand the significance of the evidence presented. Thereafter the court assumes the father is not abusive, but he continues to engage in coercive behaviors. When the mother wants to present the new incidents to prove he is abusive, the court will either refuse to hear any additional evidence of domestic violence or consider the new incidents separately from the earlier evidence. In other words refuse to consider the new evidence as a continuation of his pattern.

The initial complaints that custody courts were mishandling domestic violence cases came from protective mothers. Court officials quickly dismissed their concerns as coming from “disgruntled litigants.” Later more mothers came forward and we began to see a pattern of outrageous decisions. Professionals who looked at these cases found a pattern of mistakes and outcomes that could not possibly benefit the children. In 2002, the groundbreaking book, The Batterer as Parent by Lundy Bancroft and Jay Silverman was published. This provided substantial research to prove there was a problem with the courts’ response to domestic violence custody cases.

In 2004, the first annual Battered Mothers Conference was held. The initial conference included a limited number of protective mothers and very few professionals supporting them. Over the years the size of the conference has increased. The domestic violence movement came to understand how abusive fathers were using custody to undermine the work to prevent domestic violence and became strong supporters of protective mothers. Academicians and some government agencies also came to see the problems in the custody courts. In 2010, Domestic Violence, Abuse and Child Custody, co-edited by Mo Therese Hannah and Barry Goldstein brought together the research from many fields to establish that a high percentage of domestic violence custody cases resulted in custody for abusers and often supervised or no visitation for safe, protective mothers. The book presented chapters by over 25 of the leading experts from the U. S. and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. The evidence became clear that significant reforms were needed.

Court professionals, however, have reacted defensively to research questioning their practices. They did not seek to conduct research to see how the custody arrangements created by the courts had worked for the children. Their assumption continued to be that once a decision was made it must be right. Mothers who continued to believe the father was dangerous after courts denied their allegations often faced severe punishment and professionals who challenged the courts’ mistakes often faced retaliation. There was no effective forum for courts to reconsider standard practices that had been adopted before the current scientific research was available. When courts did create committees to review the response to domestic violence (or more commonly to contested custody), they responded like New York with its Matrimonial Commission. Instead of co-sponsoring with the NY State Office for the Prevention of Domestic Violence, which would have provided the needed domestic violence expertise, the court system appointed a commission overwhelmingly consisting of judges and lawyers unfamiliar with the current research. In other words they gave themselves no chance to recognize the common errors that have become standard in domestic violence cases.

It was in this context that the Department of Justice provided a grant to consider the effectiveness of evaluators and other court professionals responding to domestic violence cases. Last year the Office of Violence Against Women (OVW) conducted a roundtable in which it heard from leading domestic violence experts. It appears that they have an understanding that the present system is placing children in jeopardy. The Saunders’ study confirms that custody courts are using practices that inevitably result in the failure to protect children. Although child custody is a subject traditionally and legally under the control of the states, the federal government can use its ability to provide or withhold grants and ability to draw attention to problems that are harming children to encourage the needed reforms.

Standard Child Custody Practices Work Poorly in Domestic Violence Cases

Alexander Solzhenitzyn wrote One Day in the Life of Ivan Denisovich which tells the story of a prisoner in a forced labor camp in the Soviet Union during the Communist era. The day described was cruel and beyond unpleasant as a reader would expect, but what made the story so powerful and haunting was the frequent reminder that the author was describing one of the “better” days. We would not want to think about what a bad day would be like.

Dr. Saunders describes some of the limitations of his study. There was no readily accessible list of evaluators or other court professionals. Instead he needed to recruit judges, evaluators and other professionals through professional associations or other venues where they could be found. Many of the judges who participated in the study were found through the National Council of Juvenile and Family Court Judges (NCJFCJ). This is a voluntary organization which tends to be made up of judges who are trying to improve their skills and who care about domestic violence issues. In other words the better judges are more likely to be members of NCJFCJ. Likewise, the professionals who agreed to participate in the study are likely to be the ones who have greater knowledge and interest in domestic violence. Professor Dianne Bartlow recently sent me a first draft of her chapter for the second volume of Domestic Violence, Abuse and Child Custody. She contacted judges in communities where abusive fathers involved in contested custody had killed their children. We wanted to see to what extent courts adopted reforms in response to these tragedies and the research that established that many standard practices in domestic violence custody cases are working poorly for children. In reading the draft, it was very obvious that the judges who participated were more informed and cared more about domestic violence than the average judge. This is why they agreed to participate in the research. Accordingly, it is likely the professionals responding to surveys for the Saunders’ study are significantly better informed than the average professionals seen in custody courts. Dr. Saunders also pointed out that some of the participants might be influenced by their perception of the politically correct beliefs when responding to the questionnaire. This means that the professionals participating in the Saunders’ research and their responses are likely to be significantly better than the professionals and approaches battered mothers see in domestic violence custody cases. The results of the study demonstrate why our custody courts frequently make decisions that place children at risk in domestic violence cases, and like Ivan Denisovich, protective mothers probably face an even worse experience than what is described by the results in the study. As we describe the contents of the study, it is important to keep in mind the context and that the actual circumstances are likely to be even more dangerous for children and the mothers they depend on.

The term “domestic violence” did not exist at the start of the movement and was invented at a time when little research was available. Most domestic violence advocates and experts understand the limitations of the term because it tends to focus on physical violence and fails to explain the patterns and tactics used by abusers to maintain control over their victims. As a result, domestic violence means different things to different people. Court professionals can claim to have training in domestic violence and this can have many different meanings. Dr. Saunders and his colleagues understood this potential problem and instead sought to inquire about the professionals’ knowledge of specific information which is needed to understand a domestic violence custody case.

Dr. Saunders looked for seven areas of knowledge necessary for understanding domestic violence custody cases. These included: a) prevalence of dv, b) causes of dv, c) types of perpetrators, d) post separation violence, e) screening for dv, f) assessing dangerousness in dv cases, and g) effects of children’s exposure to dv. (report, P. 43) Dr. Saunders wanted to assess what percentage of court professionals had this vital information and how the absence or presence of this information affected the recommendations and outcomes. The percentage of professionals possessing this information is probably overstated for the reasons described earlier, but the impact of this information is likely to be accurate.

These specific areas of knowledge that Dr. Saunders believes are needed for professionals to make an informed decision are almost identical to the information we would require as part of the proposed safe child act. It would seem obvious that a court cannot assure a child’s safety in a domestic violence case if the professionals do not know how to recognize domestic violence and the behaviors most associated with lethality or other dangers and yet courts routinely make decisions without this vital information.

In the study, based on the self reports of the professionals, 75% of the judges and 83.8% of the evaluators had knowledge about post-separation violence. 61% of the judges and 84.2% of the evaluators claimed knowledge about screening for domestic violence and 73% of the judges and 78.8% of evaluators claimed knowledge about assessing dangerousness. In comparison, for dv advocates, 90.7% claimed knowledge about post-separation violence, 94.8 claimed knowledge to screen for dv and 96.4% claimed knowledge for danger assessment. Knowledge of six or seven of these subjects was considered necessary for working on domestic violence cases. This was claimed by 61% of the judges, 65% of the evaluators and 88.6% of dv advocates. (report, P. 51-52).

In addition to the dangerous outcomes, the lack of this knowledge means that the professionals in the case are not even discussing the issues that would most impact the children. In thirty years of practice I never saw an evaluation or court decision that said something to the effect that the mother is alleging the father hit her while pregnant (or sexually abused her or attempted to strangle her) and this would signify the highest degree of danger if it is true. I also never saw this kind of informed discussion in any cases I reviewed for consultation or research purposes. I think it is fair to conclude the professionals did not discuss this issue because they lacked training on safety issues.

At the same time, I frequently saw reports, testimony and decisions in which allegations of domestic violence were discredited based on non-probative information such as the mother returning to her abuser, failing to follow-up on her request for a restraining order, failing to have police or medical records or observations of children interacting with their father without showing fear (they knew he wouldn’t hurt them in front of witnesses). These statements demonstrate a lack of training in recognizing domestic violence. The inevitable result of this lack of training would be children placed in danger. The Saunders’ study found that even among professionals most concerned and interested in domestic violence, at least 39% of the judges and 35% of the evaluators do not have the training they need to protect children and their mothers. Even these percentages probably understate the actual limitations as some professionals may have overstated their expertise. Each of these unqualified professionals would likely be responsible for placing dozens if not hundreds of children at risk.

Clusters of Qualifying and Disqualifying Beliefs

The heart of this study was to consider how the training, knowledge, experience and beliefs of evaluators and other court professionals affects their recommendations and decisions. The study found clusters of beliefs that appear to be connected to training, experience and biases rather than the facts and circumstances of the case. This tended to confirm the belief that evaluations often tell us more about the evaluator than the parties being evaluated.

One cluster of beliefs by evaluators (and judges) included the mothers often make false allegations about dv and child abuse, survivors alienate children from the other parent, dv is not an important factor in making custody decisions, and children are hurt when survivors are reluctant to co-parent. These professionals tended to have less training in domestic violence and had personal beliefs supporting patriarchy and sexism. I will refer to these as unqualified professionals, but please understand that is my term.

Evaluators with better training, more familiarity with domestic violence and an understanding that mothers rarely make false allegations of domestic violence or child abuse tended to recognize that dv is important in custody decisions; victims do not alienate the children; and victims do not hurt children when they resist co-parenting. I will refer to these as qualified professionals.

One of the problems of asking professionals general questions about their response to dv is that they know they are expected to take dv seriously and this affects the responses received. Accordingly, Dr. Saunders used a vignette in which the mother described three incidents of physical abuse two of which are indications of a higher lethality risk. She also said he had a history of controlling behavior. The father said the incidents were isolated, occurred when he had been drinking and were exaggerated by the mother. The mother initially took the child to another city and seeks to limit the father to supervised visits even though he hasn’t physically abused the child. His psychological tests show no evidence of any major mental illness while her tests provide indications of anxiety, depression and paranoia. Qualified evaluators were more likely to investigate coercive control and the belief the father’s abuse caused the mother’s mental health issues. They were also more likely to recommend sole custody for the mother. Although supervised visits were recommended relatively rarely, qualified evaluators were the ones more likely to do so. Unqualified evaluators were more likely to support joint custody. “Of particular concern was the relatively high percentage of evaluators who recommended that the victim receive physical custody and the parents share legal custody. The potential negative implications of this arrangement need to be explained to evaluators given the likelihood that many abusers will use the arrangement to continue harassment and manipulation through legal channels.” (Report P. 14).

One of the main focuses of this study had to do with how often evaluators and other court professionals believed the myth (my term) that women frequently make false allegations of abuse. This was something that unqualified professionals often believed while qualified professionals understood is rare. The Saunders’ study found a close relationship between evaluators and other professionals who believe the myth, a lack of necessary training and recommendations that place children at risk. It is this ignorance and bias that has led to so many disastrous outcomes. Significantly, 58,000 children are sent for custody or unprotected visitation with dangerous abusers every year and in a period of two years starting in 2009, we found stories about fathers involved in contested custody murdering 175 of their children often with the unwitting assistance of the courts. The Saunders’ report is especially important because it establishes both that the courts are making frequent mistakes in domestic violence cases and demonstrates the kinds of common flawed practices that create these tragedies.

The danger of relying on unqualified professionals was demonstrated in a Bergen County, New Jersey case. The girl complained that her father and grandmother had touched her inappropriately. The father immediately denied the allegations and claimed alienation. Based on the evidence, the father certainly engaged in a pattern of coercive and controlling tactics and either sexually abused the child or violated her boundaries. The unqualified professionals in the case considered only sexual abuse or a deliberate false report and when they could not verify sexual abuse using flawed methods, concluded the mother was responsible for false accusations and separated the child from her primary attachment figure. At the first supervised visitation, the girl had a letter for her mother in which she said she was sorry for being such a bad girl. She believed she was a bad girl because telling her mother what happened led to the worst punishment in her young life. You can bet she will never make that “mistake” again which means if anyone else ever abuses her she will not tell.

DYFS, which is the child protective agency in New Jersey, selected a series of mental health professionals without the knowledge Saunders believes is needed. In the course of treatment, one of these “experts” learned that the father had broken into his prior girl friend’s apartment and she needed to obtain a protective order. Anyone who knows how to recognize domestic violence would have found this information compelling and indeed would have inquired about his history of abuse long before giving him custody. The professionals in this case ignored this critical evidence because they did not understand its significance. DYFS later hired a psychologist to review the case. She immediately recognized the significance of this and other evidence and recommended returning custody to the mother. She was the only expert to cite research to support her conclusion. Her report was ignored and the child forced to continue her punishment. The judge also refused to hear the testimony of a domestic violence expert although that may soon change. Unfortunately this is not an unusual case in the broken court system and confirms the lack of qualifications regarding domestic violence is far more common in custody courts than among the professionals who agreed to participate in the Saunders’ study.

The leading study about false allegations in the context of contested custody was led by Nicholas Bala and cited in the Saunders’ report. The study dealt with reports of child sexual abuse and found mothers in contested custody make deliberately false reports only 1.3% of the time. In contrast, fathers in contested custody cases were sixteen times more likely to make deliberately false allegations. It is important to understand the context. This does not mean that mothers are that much more honest than fathers, but rather this finding only applies to contested custody cases. The problem is that a large majority of contested custody cases are domestic violence cases in which abusive fathers use the tactic of seeking custody to regain control of his partner whom he believes has no right to leave. Accordingly these fathers believe they are justified in using any tactic to regain control including false allegations.

There is no reason to believe mothers would be more likely to make false allegations of domestic violence than child sexual abuse. Abuser groups claim that they make frequent false reports of both types of abuse. Why would there be any difference in the frequency of false reports of these two types of abuse? Nevertheless, Dr. Saunders was unwilling to use the Bala study as evidence regarding domestic violence. I do not say this to be critical of Dr. Saunders who I deeply respect and admire. The difference, rather, is based on the purpose of the decision. Dr. Saunders was conducting careful scientific research that requires specific cites for everything reported. I am interested in making decisions in the custody courts which requires a preponderance of the evidence. It is extremely likely the Bala study also applies to domestic violence and therefore professionals should realize that false allegations of abuse by mothers are rare. In contrast, the unqualified professionals relied on by the courts assume mothers frequently make false allegations when there is no valid research to support this claim and the available information suggests the opposite.

The Role of Bias in Promoting Flawed Practices

Two of the hypotheses Dr. Saunders sought to test with his research were the expectation that there would be a positive correlation between attitudes blaming domestic violence victims and belief in the frequency of false allegations and that there would be a positive correlation between belief in high rates of false allegations and belief in a just world, a social dominance orientation and patriarchal norms. (report, P. 30). Just world beliefs suggest that when good or bad things happen to someone there is a reason that it was deserved. This would mean victims somehow deserved his abuse and robbers who were not caught deserved to get away with their crime. Social dominance and patriarchal norms refers to a belief that men are entitled to unearned power and privilege over women. The hypotheses were supported by the research and help explain many of the mistakes seen in custody courts. In this way the outcomes are based not on the evidence or the well being of children, but on the private belief systems of evaluators and other court professionals.

The problem was illustrated by a Queens, New York case in which Paul Marcus, a fathers’ rights psychologist was appointed as the evaluator and treated as if he was a neutral professional. Shortly before his participation in the case he was quoted in a NY Times article sympathetic to fathers in which he advocated for shared parenting. He came into the case determined to force the parties to agree to shared parenting no matter how inappropriate it was in the case.

The parties were never married and the mother ended her relationship with the father after he assaulted her while she was pregnant. Lethality assessment, which was one of the areas of knowledge Dr. Saunders believes is needed for evaluators in domestic violence cases, includes assaulting a woman while pregnant as one of the behaviors that demonstrates a higher risk of lethality. Dr. Marcus minimized this and other important evidence of the risks presented by the father because he did not have this knowledge and his belief system undermined state laws that required domestic violence be taken seriously.

Dr. Marcus’ sexism was demonstrated when he referred to the mother as “hon” short for honey and failed to understand the objection when questioned about it. Although the father routinely worked 80-100 hours per week, Dr. Marcus demanded the parents share time with the baby equally and referred to the mother as an “extreme fundamentalist” for suggesting the father receive visitation every other weekend, one or two dinners during the week and additional vacation and holidays. Dr. Marcus also sought to pressure the baby’s pediatrician to support his plan to stop breast feeding the baby at one year old so that the father could more easily have equal time with the baby. In other words he was more concerned with the political value of the parties having equal time then the well being of the child.

Dr. Marcus had attended an excellent domestic violence training in order to qualify to serve as a parent coordinator. They provided the kind of current scientific research Dr. Saunders believed was necessary to understand the domestic violence aspects of the case. It quickly became clear, however that Marcus failed to read the material, did not have this needed information and made the typical mistakes of unqualified professionals. The judge continued to treat him as a neutral professional despite his obvious unfamiliarity with needed domestic violence information. He recommended custody to the abusive father which is what the Saunders’ study would predict from an unqualified evaluator.

Dr. Marcus is part of a cottage industry of evaluators and other court professionals that have sought to increase their incomes by supporting practices that favor abusive fathers. Most contested custody cases are really about domestic violence and most abusers control their partners including the family finances. This means that fathers in contested custody cases are most likely to have most of the resources from the family. Interestingly, one of the findings in the Saunders’ study is that evaluators who work for the court or the county tend to be more qualified than those in private practice. At the NCADV Conference when Dr. Saunders presented his findings, I asked if the superiority of evaluators who do not profit from each case might support concerns about the cottage industry. Dr. Saunders agreed this was a likely explanation.

The Saunders’ study supports earlier findings of substantial gender bias against women litigants. At least forty states and many judicial districts established court-sponsored gender bias committees that demonstrated the bias against women. The connection found by Saunders between beliefs in male dominance and patriarchy with inadequate dv training, belief in the myth that women frequently make false allegations and approaches that minimize or deny valid complaints about domestic violence, demonstrate how evaluators and other court professionals contribute to this gender bias.

Domestic violence advocates are part of the only profession that has exactly the domestic violence training needed to recognize when domestic violence is present and to formulate responses to protect the victims’ safety. The courts have repeatedly demonstrated a lack of critical thinking by refusing to hear testimony from domestic violence experts or minimizing its importance. Many judges have complained that advocates are biased because “they are always against domestic violence.” In the same way, firefighters are biased because they are always against arson and doctors because they are always against cancer. The laws and policy of every state and court is to work to prevent domestic violence. Advocates have the skill and knowledge to respond in the most effective way. The last thing advocates would do, would be to support a false accusation because the rare false charges have caused tremendous harm to the vast majority of women making truthful allegations, but facing skepticism and disbelief. Ironically courts are refusing to listen to genuine domestic violence experts while routinely treating mental health professionals with inadequate training in domestic violence and bias against women as if they were experts. Hopefully the Saunders’ report will encourage judges to look at specific domestic violence knowledge and training instead of degrees that provide little or no dv qualifications.

Other Findings in the Saunders’ Study

Custody courts have generally assumed that degrees based on more years of education would provide greater expertise. This is something that is generally agreed by most people. The Saunders’ study, however found that professionals with a social work degree were more likely to be qualified to respond to domestic violence cases than psychologists and made recommendations that provided more safety for victims. It appears there were two important reasons for this surprising finding. Social workers were more likely to use a holistic approach and this is helpful because context is so important to understanding domestic violence. Psychologists were burdened by the use of psychological tests that provide little information about domestic violence and thus distract attention from more critical issues. There are some tests such as the Campbell Danger Assessment that are useful in screening for domestic violence and risk assessment. The Saunders study probably showed more use of tests geared towards domestic violence than are actually used in the courts. In most cases psychologists rely on the MMPI or other similar tests that create the illusion of a scientific basis for their recommendations, but often do more harm than good. Significantly these tests were not created for the populations seen in custody courts and often result in pathologizing domestic violence victims.

Another important finding is that court professionals place far too much emphasis on the anger or emotion of dv victims. This was a key finding in research done by Jennifer Hardesty and supported in the Saunders’ study. The mother’s reactions are normal responses to the abuse they suffered, but the result is to blame the victim for problems caused by the abusive behavior of their partners. Gender bias committees that find women being blamed for the actions of their abusers are referring to mistakes like this. Unqualified professionals often use this anger all out of proportion to how it would impact their ability to parent the children.

The study also found that legal aid attorneys tended to be more qualified for handling domestic violence cases than private attorneys. We often see private attorneys discourage or refuse to present evidence of domestic violence and child abuse. In some cases this could be a reflection of the perceived hostility of the judge to these issues, but often is based on the belief system and attorneys’ lack of needed domestic violence training.

“On average, evaluators estimated that one-fourth to one-third of child abuse allegations were false. This finding raises serious concerns, because empirical findings about the rates of false child abuse allegations in divorce cases are much lower than these rates.” (Report, P. 117). Although deliberate false allegations of child sexual abuse by mothers are 1.3%, 85% of cases involving these allegations led to custody for the alleged abuser. The widespread lack of needed training, and bias of evaluators and other court professionals, explains why these tragic outcomes are so common. The reports of the Courageous Kids document the unspeakable cruelty caused by these mistakes. The court system has a moral obligation to expeditiously develop the needed reforms in order to stop forcing children to live with their rapists.

Abuser rights groups have sought to promote shared parenting approaches supported by fathers’ rights professionals like Dr. Marcus. Although most laws and case law promoting shared parenting have an exception for domestic violence, the widespread failure to recognize domestic violence makes these practices dangerous. Evaluators frequently recommend shared custody in domestic violence cases. “This finding is a concern because with joint legal custody, abusers can manufacture reasons to have contact with their partners and to restrict counseling, medical, and extra-curricular school events for the children.” (Report, P. 118). Courts and legislatures should reconsider promotion of shared custody. While earlier studies seemed to support its value under the most favorable circumstances, later research established it is harmful to children even when parents can cooperate and a disaster when it is mistakenly used in domestic violence cases.

Evaluators and other court professionals rarely recommend supervised visitation for dangerous abusers. The lack of adequate training in assessing safety issues and understanding the frequency of post-separation violence contributes to this mistake. So does the high priority given to including fathers in the children’s lives. In general this is a good thing, but unqualified professionals often support and require this even when the father presents a danger. Many children have been murdered as a result of the courts’ failure to take the risks seriously. Communities need to develop professional supervised visitation facilities so that this safe alternative is available. Tragically, the frequent imposition of supervised visitation against safe, protective mothers as described in the next section wastes the limited resources for supervised visitation on parents who pose no safety risk to their children.

Interviews with Mothers Victimized by System

Dr. Saunders interviewed 24 domestic violence survivors who suffered the extreme outcome of abusers winning custody and safe, protective mothers limited to supervised or no visitation. The purpose of this part of the study was to help understand the kinds of mistakes that lead to these outcomes. Dr. Saunders pointed out that these represent a small minority of case outcomes, but are important to study in order to determine the reforms that are needed. Many of the mistakes made in these extreme cases are also made in other cases but without the most extreme outcomes. We often see court professionals react defensively about complaints from mothers involved in these extreme cases, but Dr. Saunders recognized the cases represented outcomes harmful to the children. We need to create practices and reforms that can avoid these outcomes.

“In studying “worst-case scenarios,’ we might learn what might have gone wrong in their encounters with various systems. Our aim was similar to the assessments conducted by fatality review teams in family homicide cases.” (Report, P. 101) The research recognized that when the mother does not present a safety risk to the children, such extreme outcomes are virtually always wrong and cause tremendous harm to the children. In cases in which the father allowed or even required the mother to provide most of the child care during the relationship, the chances of a genuine safety issue are remote. The mother did not become unsafe because she chose to leave her abuser or complain about his abuse. Most of the time these extreme outcomes are imposed in retaliation for the mother continuing to believe her allegations of abuse despite the failure of the court (often using professionals who do not have the domestic violence training recommended by this study) to believe her allegations, labeling her as an alienator or pathologizing her based on tests that do not screen for domestic violence and were not made for the populations in custody courts. We often see diagnoses that seem to apply only to her behavior in the custody courts because she functions fine in the other parts of her life. These facts would lead to the diagnosis being discarded if the professionals were properly trained and unbiased.

The Saunders’ study developed a list of common mistakes that led to these harmful outcomes. The first problem was that court professionals ignored or minimized the domestic violence evidence in the case. This is exactly what one would expect to happen when evaluators and other professionals lack the specific training necessary to recognize and respond effectively to domestic violence allegations. Evaluators who believe domestic violence is unimportant or do not know what to look for to determine if the allegations are true have little chance to recognize the abuse. Evaluators who believe the myth that women frequently make false allegations are likely to support their self-fulfilling assumptions. Similarly, evaluators who believe men should control women or that the women must deserve any abuse they receive are not likely to treat her allegations seriously.

The second major obstacle to an accurate evaluation was an overreliance on mental health diagnoses of mothers to assess credibility. This mistake was caused by the use of psychological tests not meant for the population seen in custody courts, made less reliable by the stress of domestic violence and contested custody and magnifying minor personality issues into significant personality disorders. We often see cases in which the evaluator fails to recognize the father’s domestic violence or child abuse and then labels the mother as paranoid or delusional for believing her accurate allegations. The widespread failure of evaluators to use tests designed to detect domestic violence contribute to their failure to recognize domestic violence.

. The third major obstacle is the ineffectiveness of child custody practices in domestic violence cases. The professionals relied on often do not have the needed training and courts refuse or discourage the use of domestic violence experts who have the required expertise. Practices that view contested custody as “high conflict” instead of the actual domestic violence help abusers by penalizing mothers who demonstrate fear or seek to protect her children from a father she experienced as dangerous. The widespread belief that children need both parents equally contributes to pressure for mothers to cooperate with her abuser. In reality, children need their primary attachment figure more than the other parent and the safe parent more than the abuser. Nevertheless we often see court professionals respond to domestic violence by pressuring the mother to cooperate with her abuser instead of pressuring the father to stop his abuse.

The limited time and resources available contribute to the harmful outcomes. Mothers complained that judges and evaluators rushed through the hearings and meetings and did not take the time to understand the issues. Fathers were often given more time to present his side. Context is critically important to understand domestic violence and recognize the patterns, but the professionals tended to look at each issue and event separately thus depriving themselves of the ability to recognize these patterns. Domestic violence experts understand these issues because they look for these patterns, but the courts rarely seek their assistance in domestic violence cases.

These and other deeply flawed practices give evaluators and other court professionals little opportunity to make decisions that protect children’s safety. Significantly, the information provided by the survivors in this part of the study confirms the problems exposed from the responses of court professionals. Not all court professionals engaged in the harmful and biased practices, but enough of them did to make the extreme and harmful outcomes in some of these cases inevitable. As discussed earlier, the percentage of unqualified professionals is probably far higher than the percentage from the professionals who volunteered to participate in the study, but just the percentage of unqualified professionals revealed in this study explains the extreme harmful outcomes discussed by these survivors.

Conclusions

For many years, protective mothers and professionals supporting them have been criticizing the practices used by custody courts in domestic violence cases. The courts have denied the complaints even as ever more evidence of avoidable tragedies has surfaced. The courts appeared to have no interest in reviewing the outcomes of cases to see how their decisions have worked out. Ever more research has supported the concerns of protective mothers, but the court systems have refused to consider the needed reforms. With the publication of the Saunders’ study there can be no further doubt that custody courts are routinely placing children in danger because of flawed practices in domestic violence cases. The Saunders’ study demonstrates the courts are getting a high percentage of their cases wrong and these mistakes are inevitable as long as they continue relying on evaluators and other professionals with inadequate domestic violence training, widespread belief in the myth that women frequently make false allegations of abuse, and political beliefs and biases that support abusers.

Domestic violence victims are often forced to live in a pretend world in which their abusers deny their abuse or blame the victims for his mistreatment of her. When courts fail to use experts who understand domestic violence, they inevitably force victims to return to the pretend world in which only they are to blame. The Saunders’ study should be required reading for any professionals who provide advice to the court. The courts must immediately adopt practices based on the kind of current scientific research contained in the Saunders’ study and make it safe for battered mothers to discuss the reality of their partner’s abuse.

With the release of the Saunders’ study and the availability of other important information such as The Batterer as Parent and Domestic Violence, Abuse and Child Custody, judges can no longer reasonably pretend or remain oblivious to the frequency in which it places children at risk. It is now time to focus on the reforms needed to make our custody courts safe for children.

Unfortunately, it will take some time to retrain evaluators and other court professionals, adopt improved practices and make safety the first priority. The court system should work with domestic violence experts, who Saunders found to be the best trained and most knowledgeable group regarding domestic violence, to develop the needed reforms. Any attempt to limit this process to judges, lawyers and mental health professionals would be malpractice.

In the interim, tomorrow and every day thereafter more children will have their futures ruined until the reforms can be implemented. We can make every court professional immediately aware that the Saunders’ study has now established that the present practices are working poorly for children. The custody courts should immediately start requiring the participation of domestic violence advocates and experts in all domestic violence cases. If evaluators are appointed in a case they should consult with dv experts. Their prior belief and assumption that they had sufficient expertise in domestic violence has been shattered by the research in the Saunders’ study. From now on the most important factor must be that children be kept safe rather than that fathers always have access to their children.



The second part of this article about the Saunders’ study will discuss how to use the research in the report in individual cases and to reform the broken system.

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 from their web site www.Domesticviolenceabuseandchildcustody.com  

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