Tuesday, June 5, 2012

Cases Reversed Because Court Relied on Junk Science

by Barry Goldstein

Comparison of Court Response to Arson and Domestic Violence
                I have found that it is useful to compare the courts’ response to arson and domestic violence because it illustrates how courts routinely minimize domestic violence and engage in bias towards domestic violence survivors.  In the notorious Shockome case, the father admitted to calling the mother’s home as much as 20-25 times in a day, as late as 1 AM when he knew the mother and children were sleeping.  The judge explained his refusal to award the mother an order of protection because the father was angry because he believed he had been denied some of the phone calls with the children that he was entitled to.

                Compare this with a common situation of a slumlord who mistreats the tenants by creating unsafe and unhealthy living conditions.  A tenant would have a right to be angry, but if the tenant set fire to the landlord’s property no court would even entertain the idea that the landlord’s bad and even illegal actions could be used to justify the tenant’s arson.  In each case there is nothing in the criminal law that would justify the criminal acts based on the behavior of the victim, but courts routinely consider the justifications of the abuser but not the arsonist.

                Similarly, inadequately trained judges and other court professionals often discredit or minimize the value of the expert testimony of domestic violence advocates.  I have frequently heard judges dismiss these experts by saying they are biased because they always oppose domestic violence.  They seem to forget that the law and the policy of every state and every court is to prevent domestic violence.

                If a community had a series of arson fires and needed an effective court response, they would seek the assistance and advice of arson experts who would be found in the firefighting community.  No one would discredit the firefighters because they always oppose arson.  There are three important differences that help explain the difference in the courts’ response to arson and domestic violence despite the clear and unambiguous prohibition in the criminal laws.  (1)  Arson has always been a crime so there is no history of justifying an arsonist’s behavior.  (2)  The firefighting community is overwhelmingly male dominated while most domestic violence advocates are women.  In our still sexist society, we continue to treat what men say as if it is more valuable than what women say.  (3)  There are no arsonist rights groups that seek to minimize the danger of arson, manipulate court officials and create a cottage industry to support arsonists.

Reversal of Arson Conviction Obtained by Junk Science
                A California arson case was recently reversed based upon the use of expert testimony now understood to be junk science.  For many years the experts believed and testified that factors such as extreme heat, burn patterns and lack of other fuel proved the fire was caused by arson.  They now understand that these facts can be consistent with arson or accident and the judge found no jury would convict the defendant based on the actual information even though the evidence cannot determine whether or not the fire was caused by arson.  Hundreds of other prisoners were convicted based on similar testimony and it is expected this decision will also require the reversal of their convictions.

                There is an obvious parallel between the junk science used to obtain these convictions and the junk science routinely used to minimize and deny valid domestic violence complaints and to remove children from safe, protective mothers in order to allow abusive fathers to have custody.  There are also some differences.  In the arson case both parties agreed that the science used to obtain the conviction was invalid.  Significantly, because the winning party was the prosecutor, they have an ethical obligation to promote justice which a successful abuser does not have.  Nevertheless, particularly with the recent release of the United States Department of Justice study, the findings that the standard practices used in domestic violence custody cases are invalid are based upon overwhelming research while most of the misinformation relied on by the courts is based on unsupported personal opinion.  The arson case obviously was a criminal case while custody is a civil proceeding.  Nevertheless it would be hard to argue that children should continue to suffer and live in great risk when we know the basis for the custody decisions was invalid.

                Just as the leading experts regarding the science of arson agree that the prior assumptions were wrong, there is strong agreement that custody courts have been using junk science.  The three leading sources of research and information regarding domestic violence and custody are the Saunders’ report, Domestic Violence, Abuse and Child Custody and The Batterer as Parent.  From Madness to Mutiny, which is the leading book regarding sexual abuse allegations in custody cases, and The Domestic Violence Report have provided similar findings.  Accordingly there can be no reasonable justification for the continued use of junk science in custody cases.

Custody Courts Do Not Know Who the Domestic Violence Experts Are
                The Saunders’ study looked at which professionals have the necessary domestic violence training to provide useful advice to courts in domestic violence cases.  The report confirmed what should have been obvious.  Domestic violence advocates work full time on domestic violence issues, receive far more training than the professionals relied on by the courts and must work on fundamental issues such as screening for domestic violence and working on safety plans.  One of the reasons the problems of relying on mental health and other professionals was not obvious to the courts is that domestic violence means different things to different people.  Dr. Saunders avoided this mistake by asking about training in specific areas critical to domestic violence cases instead of a generalized question about domestic violence often used by the courts.  Thus, for example, Saunders asked evaluators if they screened for domestic violence and then looked at what tools they used.  Many of the evaluators who claimed to screen for domestic violence used generalized psychological exams that provide virtually no information about domestic violence.  This was the worst of all possibilities because it provided no assistance but created an illusion of investigating domestic violence.

                One of the most important findings in the Saunders’ study is that there is a specialized body of domestic violence research and the court professionals do not have this expertise based on the standard or required domestic violence training they receive.  This results in a failure to look to this specialized body of research to inform their decisions and a false sense of competence to respond to domestic violence cases.  The use of junk science or no science is completely predictable when courts rely on unqualified professionals and often refuse to listen to the genuine experts.  Repeatedly we have seen courts refuse to listen to testimony of genuine domestic violence experts and then make catastrophic errors because of this lack of vital information.

                This problem is compounded by the development of a cottage industry of evaluators, lawyers and other mental health professionals who have developed a practice of supporting abusive fathers.  Indeed many advertise their support for “fathers’ rights” approaches.  We often see abuser rights attorneys, including supposedly neutral GALs recommend evaluators known to support abusers.  Courts that refuse to listen to domestic violence experts because support of the law and policy in the state is considered biased, routinely follow recommendations from unqualified professionals who make their living supporting abusers.

                The Saunders’ study found that evaluators with inadequate training in domestic violence tend to believe domestic violence is unimportant (despite the findings by every legislature), that mothers frequently make false allegations (despite the actual scientific research), that mothers seeking to protect the children from abusive fathers are harming the children, believe that victims deserve the abuse, focus on unscientific alienation theories and make recommendations that tend to be harmful to children.  These beliefs, statements and approaches are common in domestic violence custody cases especially from professionals who are part of the cottage industry.

Psychological Tests Constitute Junk Science as Applied to DV Cases
                Popular psychological tests have a valid purpose, but were not created for the populations seen in custody courts.  They are not useful in attempting to screen domestic violence cases.  Indeed, the Saunders’ study found that evaluators who relied on general psychological tests to screen for domestic violence were demonstrating their lack of adequate training or expertise.  Proper practice would require use of tools specifically designed to screen for domestic violence such as the Campbell Assessment.  In thirty years of practice I never saw an evaluator use any tools designed to screen for domestic violence.  Such practices are extremely rare.  Another way to say this is that exceedingly few evaluators are qualified to handle domestic violence cases.  They routinely commit mistakes that contribute to the widespread failure of custody courts to recognize the risk in domestic violence cases and make arrangements that fail to protect the safety of children.

                The psychological tests are based upon probability.  This means that people who answer the questions in a particular way may be more or less likely to have certain characteristics.  Under the most favorable circumstances the results of these tests would apply to 55-65% of the parties.  In other words the court is being asked to make decisions based on information that does not apply to at least 35% of the litigants and the court does not know which parents the results apply to.  Even worse, in cases involving domestic violence or bitter custody disputes, which cover virtually every contested case, the reliability of the test is even lower.

                The lack of reliability of generalized psychological tests contributes to the Department of Justice finding that social workers produce better outcomes for children than psychologists.  The study also found that unqualified evaluators and other court professionals frequently pathologize battered mothers labeling them with inaccurate mental health diagnoses.  Minor discrepancies and personality differences are treated as if they constitute a serious disorder.  We often see cases in which the mother is successful in all other parts of her life, but is labeled as if she had a serious mental health problem that occurs only in the custody court or in response to her abuser.  This is more accurately referred to as “crazy in the family court.”

                In many cases, evaluators and other court professionals with inadequate training in domestic violence fail to recognize valid allegations of domestic violence because they do not know what to look for.  Complaints are routinely discredited based on information that is not probative.  These unqualified evaluators then label the mothers as paranoid or delusional for believing accurate complaints that the evaluators failed to recognize.

PAS: The Epitome of Junk Science
                Parental Alienation Syndrome (PAS) was never based on any research, but rather was concocted by Richard Gardner, based solely on his beliefs, experiences and biases.  Significantly, among his beliefs was his often stated idea that sex between adults and children can be acceptable.  It is hard to believe that the lack of scientific basis and assumption that incest and pedophilia is acceptable did not immediately disqualify PAS in the courts, but in fairness to the judges, many attorneys failed to challenge PAS or provide information about its nefarious origins.

                PAS is based on circular reasoning and assumes that if a child does not like or want to visit with the father it must be based upon alienation.  Fundamental to PAS is the belief that virtually all allegations of domestic violence or child abuse must be false.  This is why they do not investigate the allegations, but immediately seek to punish the mother for seeking to protect her children. 

                These mistakes are exposed in the Saunders’ study.  The actual research such as a comprehensive study led by Nicholas Bala found that deliberately false allegations of abuse by mothers in contested custody cases occur less than two percent of the time.  In contrast, fathers involved in contested custody are 16 times more likely to make deliberately false allegations, such as when they claim alienation.  The study specifically found that evaluators and other court professionals with inadequate training in domestic violence are more likely to believe that mothers are harming their children by seeking to protect them from dangerous abusers.  In other words, PAS is permeated with false assumptions and fundamental ignorance.

                Significantly, PAS is promoted by evaluators and other court professionals who are part of a cottage industry developed to support abusive fathers.  A large majority of contested custody cases involve abusive fathers seeking custody as a tactic to regain control over their victims.  Abusers tend to control their partners in many ways including economically.  This means that in most contested custody cases the abusive fathers will have control of the family’s resources.  Accordingly, mental health professionals and lawyers interested in maximizing their income and unconcerned about the harm caused to children have a huge financial incentive to support practices that help abusive fathers.  This is not supported by scientific research, but searching for ways to justify support for abusers, these unqualified professionals have promoted PAS as a way to help dangerous abusers gain custody.

                The U. S. Department of Justice study confirms what every other reputable professional organization and expert has found that PAS is junk science.  The Saunders’ study, particularly in the context of all the other research discrediting PAS constitutes the level of research necessary to convince any unbiased court that the use of PAS should require the reversal of any custody or visitation determination that was never based upon any valid science.  PAS is often used by other names such as parental alienation or alienation in order to avoid the stigma of its deservedly poor reputation.  Any alienation claims that seek to assume the father’s bad relationship with the children was caused by alienation, avoid a full investigation of abuse allegations or seeks a punitive approach against the mother and children should be understood as PAS regardless of the terminology used.

Reversing Extreme Decisions Based on Junk Science
                The Saunders’ study included the interview of 24 protective mothers involved in domestic violence cases that resulted in extreme outcomes against these mothers.  The report states that the mothers were interviewed to determine what mistakes were made to create these harmful outcomes.  In other words when we see a case in which there are allegations or evidence of domestic violence and the mother does not pose a safety risk to the children, outcomes that limit the children to supervised or no visitation with their primary attachment figure are always harmful to the children.  In most cases, these extreme outcomes were caused by many serious mistakes and biases in the court that resulted in findings that are often the opposite of the actual facts. 

                In most of these cases the mother is the primary attachment figure for the children and there is often little dispute about that.  Indeed we routinely find cases in which the father wanted or even required the mother to provide most of the child care until she decided to leave him or report his abuse.  Her complaint against him did not suddenly make her a bad parent, but courts, using junk science and other discredited practices frequently reach this conclusion (although they do not express it this way). 

                Separating children from their primary attachment figure significantly increases the risk the children will suffer depression, low self-esteem and to commit suicide when older.  This obviously creates a significant safety risk in addition to other problems and it is hard to understand why a court or a loving father would want to place the children in such a risky situation.  Significantly, when we review cases in which courts create these risks, we virtually never even see a discussion in which they weigh the harm of separating a child from their primary attachment figure with whatever benefit they believe they are providing.  This is another strong indication the courts were relying on junk science.

                It is possible that the risk of separating children from their primary attachment figure could be reasonable, but it would have to be based on a serious safety risk.  If the primary attachment figure beat the children, failed to provide for their health or nutritional needs or exposed them to danger with a drug addicted lifestyle, these risks would outweigh primary attachment.  There are some mental disorders that would create serious safety risks and the Saunders’ study found that these extreme outcomes are often justified by claims the mother is “crazy.”  In cases in which the mother took good care of the children while the parties lived together or she is successful in other parts of her life, the mental health diagnoses are usually based on flawed practices and junk science rather than legitimate safety issues.

                One of the findings in the Saunders’ report is that one of the common mistakes that lead to these extreme outcomes is false and exaggerated mental health diagnoses against protective mothers.  These mistakes are caused by bad practices that include reliance on psychological tests that were not made for the populations seen in custody courts and the failure of many evaluators to properly screen for domestic violence.  This results in them denying valid allegations of abuse and then labeling the mother as paranoid or delusional for believing the true allegations.

                The study recommends that evaluators (and other court professionals) need specific training in screening for domestic violence.  Many evaluators claim to screen for domestic violence but use a general psychological test such as the MMPI.  They should instead be using a tool specifically made for assessing domestic violence such as the Campbell risk assessment.  With the release of the Saunders’ study any evaluator who disbelieved allegations of domestic violence without using practices able to screen for domestic violence has demonstrated a lack of qualifications to work on domestic violence cases.

                Unqualified professionals frequently discredit allegations of domestic violence based on information that is non-probative.  If an evaluator or other professional referenced information that the alleged victim returned to the abuser, failed to follow-up on a petition for a restraining order or does not have police or medical reports, this should be seen as proof the professional is unqualified to handle domestic violence cases.  The same is true of professionals who observe a father interact with the children and if the children show no fear assumes this means the children could not have been abused.  The children understand their father would not hurt them in front of witnesses.

                Dr. Saunders found that evaluators and other professionals without the necessary domestic violence training tend to have a cluster of beliefs that often result in outcomes that are harmful to children.  These beliefs can include the myth that women frequently make false allegations of abuse; that domestic violence is unimportant; that mothers are hurting children by trying to keep them away from abusive fathers; focus on the importance of alienation allegations and theories or believe victims of abuse deserve what was done to them.  If the professionals in a domestic violence custody case demonstrated one or more of these beliefs, it is likely the adverse outcome was based on the use of junk science and bias.

                The reversal of the California arson case provides strong support for reversing hundreds of arson convictions obtained through the use of junk science.  The same standard challenging the use of junk science would similarly support the reversal of many bad domestic violence custody decisions.  This is especially true of the extreme decisions because if the mother is safe, the decision is unquestionably wrong.  Protective mothers can argue that the decision in California requires courts to consider whether other decisions were obtained based upon junk science.  I believe it is time to junk the common use of bad science and no science that has so often been used to support decisions for abusive fathers.
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 


  1. I'd love to see an extended version of this with references to follow up on.


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