by Barry Goldstein
My friend, Debra Wingfield is an author, trainer and therapist. She recently wrote me about trying to talk with an attorney about the new book I wrote with Elizabeth Liu, Representing the Domestic Violence Survivor. He dismissed his need for reading the book by saying, “I know all about domestic violence and I am sure the Ph. D. custody evaluator does too.” I wish I could say I was surprised by his attitude and beliefs, but unfortunately this is all too common among court professionals. The problem is that his views are not supported by current scientific research and this false sense of competence to respond to domestic violence cases places children in jeopardy.
The initial mistake was made in good faith at a time when there was virtually no research about domestic violence available. At the time there was a widespread assumption that domestic violence was caused by mental illness, substance abuse or the actions of the victim. This led courts to respond to domestic violence custody cases when domestic violence first became a public issue by seeking assistance from mental health professionals. This in turn led to a lot of misinformation as psychiatrists, psychologists and social workers are experts in psychology and mental illness but not domestic violence. Later research established that the original assumptions were wrong, but the courts never developed the practice of looking to current scientific research to inform their decisions. The development of a cottage industry of lawyers and mental health professionals that make their money supporting abusive fathers exacerbated the problem. Most contested custody cases are really domestic violence cases and since domestic violence is about control, the abusive fathers usually control the family’s financial resources so the best way for professionals to increase income is to support practices that favor abusive fathers. This is how unscientific alienation theories became so prevalent in custody court but nowhere else. The deliberate misinformation coming from the cottage industry and the misinformation coming from inadequately trained evaluators has been heard by other court professionals throughout their careers so that it is deeply ingrained.
Would the Attorney be Willing to Look at Current Research?
Last year the U. S. Department of Justice released a major study about the training of evaluators, lawyers and judges for domestic violence cases. The study was led by Dr. Daniel Saunders of the University of Michigan. Accordingly, the study should be viewed as both authoritative and neutral.
The Saunders’ study found that there is now a substantial body of scientific research concerning domestic violence. Unfortunately the custody courts never got into the habit of looking for this research in order to inform its decisions. I have seen many cases in which the evaluator’s lack of familiarity with this research is not treated as undermining their authority or credibility. The attorney was probably relying on the training received by court professionals to justify his assumption that they are qualified for domestic violence cases, but the Saunders’ study found the standard and required training received by evaluators, judges and lawyers does not qualify them to handle domestic violence custody cases.
Dr. Saunders recommended that court professionals not only receive training in domestic violence, but need training in specific topics such as screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Significantly these topics are all directly related to the safety of children. The study found that evaluators and other court professionals without this needed training tended to focus on harmful approaches that included the myth that women frequently make false allegations, support for unscientific alienation theories and assumptions that mothers trying to protect children from abusive fathers are actually hurting the children. These beliefs led to recommendations that are harmful to children.
The Saunders’ study included interviews through questionnaires of evaluators, lawyers, judges and domestic violence advocates. It should not be surprising that the profession that knew the most about the critical issues related to the safety of children was domestic violence advocates. They routinely have to screen potential clients for domestic violence, create risk assessments in order to create safety plans and are familiar with domestic violence dynamics. We have seen many court professionals seek to prevent testimony by domestic violence experts. Clearly the judges do not understand that they are the most knowledgeable about the topics the courts most need to respond effectively to domestic violence cases. It is not just that courts make a mistake when they refuse to receive this information, but demonstrate a lack of critical thinking and perhaps even bias in limiting their sources of information.
In the Saunders’ study, between 20 and 30 percent of judges, lawyers and evaluators acknowledged they did not have the training Saunders found necessary to protect the safety of children. These numbers would be of great concern because it would result in endangering a large number of children, but the risk is actually far greater. It was not a random sample to select professionals that would participate, but rather the professionals volunteered to take part in the research. Dr. Saunders made clear that this means these numbers are not scientifically reliable. In other words we can rely on findings that inadequately trained professionals tended to believe misinformation that caused them to make recommendations that harm children but cannot rely on the numbers regarding the percentage of professionals who have the requisite training.
It seems very clear that the evaluators, judges and lawyers who agreed to take the time to answer questions about domestic violence would be the best professionals, ones who care about domestic violence and tend to have the most training. That is why these professionals agreed to take the time to fill out the questionnaires and in the case of evaluators consider how they would respond to a few vignettes. In other words, we do not know what percentage of court professionals have the needed training, but the numbers discussed in the Saunders’ study are substantially overstated. All we know is that between 70-80% of the best professionals claimed to have this training.
Even this is overstated based on the evaluators’ response to the vignettes and other questions. Saunders notes that many of the evaluators who claimed to screen for domestic violence did so by using general psychological tests that provide no information about domestic violence or parenting and were not created for the populations seen in family courts. The evaluators’ response to the vignettes further demonstrated that many who claimed to have the necessary training did not actually have the domestic violence understanding needed to respond to custody cases. Dr. Saunders suggested that the evaluators would need to use the Campbell Danger Assessment or other similar tool in order to make an informed screening for domestic violence and risk assessment. In thirty years of practicing law I never saw an evaluator use a meaningful tool that could help them respond to domestic violence. I would be surprised if the attorney referenced by Debra Wingfield has worked with any evaluator who conducted the necessary tests. This information suggests that very few evaluators have the needed training and this impacts on the qualifications of judges and lawyers who often take their information and training from these often unqualified mental health professionals.
Common Results Confirm Widespread Lack of Training
Every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers and in a recent two year period we found news stories about 175 children murdered by abusive fathers involved in contested custody cases, often with the unwitting assistance of courts that gave the fathers the access they needed to kill the children.
In the Katie Tagle case, the mother asked the judge for a protective order to limit the father to supervised visitation because he had threatened in texts and emails to kill the child. In the transcript, the judge repeatedly said he thought the mother was lying. This (false) assumption was not based on any evidence, but rather the beliefs of court professionals with inadequate training. As discussed earlier, inadequately trained professionals tend to believe the myth that women frequently make false allegations. In many of these cases this expectation leads to self-fulfilling findings by a process called confirmation bias. The father used the access granted by the judge to kill baby Wyatt. Afterwards, the judge was genuinely horrified at the result but said there was nothing he could do based on what he knew at the time. In one way he was correct. As long as court professionals continue to assume their limited training qualifies them to make decisions in domestic violence cases without the assistance of genuine domestic violence experts they have no ability to protect children or recognize the real risks abusive fathers create.
The Courageous Kids are a group of young adults who were the subject of custody court decisions in domestic violence cases. These were cases in which the courts disbelieved the mothers’ abuse allegations and gave the abusive fathers complete control so that they could silence the children. In many of these cases the mother had little or no contact with their children. These children have a moral authority none of the rest of us have because the court orders were supposed to be for their benefit and protection. Court professionals who believed the myth that mothers frequently make false allegations assumed the mother encouraged the children to lie about their father’s abuse. These children are now finally free from the father’s control and describe horrific abuse by their fathers. Everything was done to silence and intimidate these children so the fact so many Courageous Kids are speaking out demonstrates widespread failure to protect children.
The experts who wrote chapters for Domestic Violence, Abuse and Child Custody, repeatedly reviewed cases in which courts gave custody to the allegedly abusive father based on the prediction that he was more likely to promote the relationship between the mother and children. Once the fathers gained control, however they did everything possible to destroy the relationship with the mother. This would have been completely predictable if the court understood the motivation of the fathers.
Extreme Outcomes Against Children
Dan Saunders interviewed 24 protective mothers as part of his study. The purpose was to consider extreme decisions that Saunders referred to as “harmful outcomes.” These are cases in which the alleged abuser is given custody and a safe, protective mother who is the child’s primary attachment figure is limited to supervised or no visitation. These outcomes are always wrong because the harm to children is greater than any benefit the court thinks it is creating. In many cases the decision is justified based on claims of alienation or a diagnosis that pathologizes the mother. Even if these findings were accurate, the harm of separating children from their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide when older is far more significant to children’s welfare than the issues the court focused on.
It is possible in some of these cases that the abuse allegations are false or even deliberately so. If the father has good parenting skills the decision to give him custody could be right. More often the extreme outcome is an indication that flawed practices were used so that many of the findings were wrong. The extreme outcomes are often a strong indication that the court relied on inadequately trained professionals. As discussed earlier, the focus on unscientific alienation theories, myths about the frequency of false claims by mothers and assumption that attempts to protect children from dangerous abusers are actually harmful to the children are commonly associated with professionals unqualified to participate in domestic violence cases.
The bad practices, bias and lack of training frequently results in courts denying true allegations of abuse and using approaches that blame the victim. In many cases the professionals do not understand domestic violence dynamics and attempt to resolve the case without considering the context. Although most contested custody cases are domestic violence cases in which abusive fathers seek to use custody to regain control over their victims, many court professionals assume the father is acting out of love for his children. In many of these cases the father allowed or even demanded the mother provide most of the child care during the relationship. Inadequately trained professionals rarely ask how the mother’s decision to leave the father or complain about his abuse suddenly makes her unfit. In virtually any other type of court preceding his previous behavior in encouraging the mother to care for the children would be seen as a strong admission she is a fit parent.
The extreme nature of the outcome in these cases which is divorced from what actually works best for children suggests that the court was seeking to punish mothers or retaliate against them for criticizing the court and/or the father. They fail to consider that in punishing the mother they are really punishing the children. Joan Zorza warned courts to avoid these outcomes in her chapter in Domestic Violence, Abuse and Child Custody.
“Until judges and other professionals receive the specific training they need to recognize DV or the patterns (and as noted previously, many have such strong preconceived notions that they will not learn anything from even the best training), they must consult with genuine DV experts, particularly DV advocates. Otherwise, as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. In this context, it is important for courts that rule against alleged victims of DV to be open to the possibility that they made a mistake. Courts should be reluctant to take punitive or retaliatory actions against mothers who continue to believe their partners abused them.”
Interestingly, Joan wrote this before the Saunders’ study was released. Everything she wrote is supported by the research conducted by Dr. Saunders. Most of the criticism of custody courts is the result of these extreme decisions that we now know are always wrong. Unfortunately, many court professionals have reacted defensively to this criticism. The lawyer whom Debra Wingfield spoke with assumed that a Ph. D. psychologist would have sufficient understanding of domestic violence, but most of these horrendous outcomes were supported by evaluators who demonstrated their lack of qualifications by supporting what Saunders’ found to be harmful outcomes that are always wrong.
The frequency with which custody courts create these harmful outcomes is incompatible with the belief that court professionals have received adequate training. I believe most of these extreme outcomes are created by the worst judges, but the failure of appellate judges and administrative judges to discourage these harmful outcomes reflects on the entire court system. Many protective mothers and professionals helping them believe these outcomes are caused by corruption. While there are rare cases of corruption and more common cases in which the members of the cottage industry decide the outcome, I believe these outcomes are the result of inadequate training, bias and deeply flawed practices. Court officials should pay more attention to this issue, however because it is unethical for them to act in ways that create the appearance of corruption. In so many of these cases the courts ignore overwhelming evidence of abuse or refuse to listen to evidence of abuse thus creating the appearance these bad decisions were caused by corruption. By focusing on the misinformation Saunders found to frequently be used by inadequately trained judges, lawyers and evaluators, they are doing enormous harm not only to the children involved in these cases but to the reputation of the legal system.
Need for Genuine Domestic Violence Experts
A significant part of the problem was caused by a decision to treat mental health professionals as if they were the experts in domestic violence. In fairness this decision was made at a time when no research was available and there was a popular assumption that domestic violence was caused by substance abuse, mental illness and the actions of the victim. Subsequent research determined these assumptions were wrong, but the courts have continued to rely on psychologists and psychiatrists for expertise in domestic violence cases.
One of the most initially surprising findings by Saunders was that recommendations by social workers tended to work better for children than those from psychiatrists and psychologists. One reason is that social workers tend to use a more holistic approach and context is particularly important in understanding domestic violence. Indeed the common court practice of looking at each issue and incident separately contributes to their frequent failure to recognize true allegations of domestic violence. The other reason for this finding is that psychologists and psychiatrists tend to rely on psychological tests. These tests add to the costs of an evaluation but rarely are helpful in domestic violence cases. The tests were not created for the populations seen in family courts. They were designed for populations with serious mental illnesses. The tests are based on probability so that under the best of circumstances would only apply to 55-65% of the parties. The reliability is much lower when the parties are under stress such as from domestic violence or a bitter custody dispute. This often results in pathologizing protective mothers based on minor personality differences that have little or no impact on their parenting. In other cases the evaluators use flawed methods to deny true allegations of abuse and then claim the mother is paranoid or delusional. If the diagnoses were valid it would impact the rest of their lives and not just their interaction with their abuser and sometimes court professionals who fail to protect the children. In many of these cases the mothers have been successful at work, school, family and other parts of their lives which should discredit the diagnosis.
Many protective mothers and professionals who support them would like to eliminate all evaluations because they greatly increase the cost of litigation but provide little assistance to the courts. I can understand this sentiment as evaluators in domestic violence cases often do more harm than good. I believe the research suggests that courts should use critical thinking when deciding whether to appoint an evaluator. Evaluators are experts in psychology and mental health so if there is a legitimate mental health issue, something more than the father saying the mother is crazy, an evaluator can be appointed solely to consider mental health issues. Domestic violence is rarely caused by mental health problems although it can cause PTSD or depression. It is important to remember that PTSD is not something wrong with the victim but something done to her. If the level of a father’s abuse has been so severe as to cause PTSD, he is not appropriate for custody or unsupervised visitation.
The Saunders’ study found that courts need experts with training in recognizing domestic violence, risk assessment, the impact of domestic violence on children and post-separation violence. It is also critical for any expert to understand domestic violence dynamics or else they won’t know how to use their training. Domestic violence advocates work extensively on these issues as part of their job which is why Saunders found they were the most knowledgeable of any profession. Too often, however, courts have discounted the value of advocates often thinking they were biased because “they always oppose domestic violence.” This is based on a lack of critical thinking because advocates support the purpose and intent of domestic violence laws and policies. When courts rely on GALs and evaluators who are part of the cottage industry that makes its money supporting abusive fathers they are listening to professionals who seek to undermine these laws and policies. Ironically many courts treat the biased professionals as if they were neutral while refusing to hear genuine experts.
If a community experienced a series of arson fires, the courts and legislatures would likely seek assistance from the experts to learn how to best respond to arson. Accordingly they would seek the expertise of the firefighting community. No one would suggest they are biased because they always oppose arson. It is helpful to consider there are three important differences between arson and domestic violence. Arson has always been a crime so there is no hesitancy to strongly enforce the laws against arson. Most firefighters are men and in our still sexist society we tend to pay more attention to what men say. Most domestic violence advocates are women. Finally there is no arsonist rights organization.
We can imagine a tenant dealing with a slumlord who fails to provide heat, eliminate rodents or keep the property safe. The tenant would be justified in being angry at the landlord for maintaining an unsafe building. If the tenant burned down the building, even in a manner so no one was in danger of being killed by the fire, the tenant would be charged with arson. No consideration would be given to the reasons he committed arson because it is against the law and yet the courts routinely seriously consider the “justifications” abusers give for their crimes.
The Greenbook Initiative which was developed by the National Council of Juvenile and Family Court Judges includes a practice that has been adopted in many communities involving collaboration between child protective and domestic violence agencies. They cross-train staff and when CPS needs to investigate a potential domestic violence case they consult with a domestic violence advocate. This has resulted in caseworkers being better able to recognize and respond to domestic violence and create outcomes that benefit children. This should be considered best practices.
Similarly, best practices for a custody case that involves mental health and domestic violence issues is for the evaluator to consult with a domestic violence advocate. This is supported by the American Psychological Association, American Psychiatric Association and The Batterer as Parent. In practice most evaluators believe the limited training they have had in domestic violence is sufficient and do not seek the assistance of a domestic violence advocate. The Saunders’ findings demonstrate that in most cases the evaluator’s confidence is misplaced. Aside from the harmful outcomes, the discussions and reports made by evaluators demonstrate inadequate understanding of the domestic violence issues in the case. Many of the findings denying allegations of domestic violence tell us more about the beliefs and biases of the evaluator than the circumstances in the family.
Court Professionals Should Be a Hero Like Mickey Mantle
When I was a boy, I was a Yankee fan and Mickey Mantle was my hero. Two years after I first started following baseball, Mickey and Roger Maris participated in a magical season in which they challenged the home run record of the immortal Babe Ruth. Those were the days when baseball players did not seek artificial assistance. Mickey had to overcome serious injuries and yet he repeatedly was the hero in winning games as the Yankees seemed to win every year. When I played whiffle ball I would emulate his swing batting lefty and righty.
It turns out that Mickey engaged in other behavior that wasn’t so heroic. He drank far too much and was constantly womanizing. Certainly he did not treat his wife with the respect she deserved. I must admit that at the time I wouldn’t have understood the significance of these defects even if I had known. After Mickey retired, I would see him come back for Old Timer’s Day to thunderous ovations.
His drinking problems eventually led to the need for a liver transplant and later liver cancer which killed him. I was never more proud to be one of Mickey’s fans than when he held a press conference and advised fans “Don’t be like me.” He also encouraged organ donations. Mickey Mantle demonstrated enormous physical courage in playing through painful and debilitating injuries to help his team. In his last years he illustrated an important lesson that moral courage is so much more important and valuable. Here was a man who decades after his last game was still among the most well known and popular celebrities telling everyone that his behavior had been wrong and he hoped they would act differently. It took enormous honor and integrity to say that and provided huge value to our society.
The research is very clear that the present practices used in custody courts to respond to domestic violence are working poorly for children. The training received by judges, lawyers and evaluators rarely includes current scientific research or domestic violence dynamics and is usually not presented by domestic violence experts. In many ways this training is counter-productive when it creates a false sense of competence that discourages the professionals from seeking assistance from the real experts.
Debra, I hope that you will share this article with the attorney that you mentioned. Maybe Mickey Mantle can be a hero once more and get through to him. We desperately need court professionals to be like Mickey Mantle; to acknowledge that the past practices have worked poorly for children and to be open to looking at the new research particularly the Saunders’ study coming from the US Dept. of Justice; and to be open to supporting the reforms necessary to make our children safe. It will take moral courage for these professionals to make the needed changes and to be willing to accept there are domestic violence experts who can help them make better decisions.
Like most other people, I will never play center field for the Yankees and never hit a home run in Yankee Stadium. Judges, lawyers and evaluators can hit a home run for the children they are sworn to protect by having the courage to admit the present practices are hurting children and creating the reforms needed to make them safe. That would be a home run that Mickey would cheer.
For more information about the new book, including access to the first approximately 50 pages or to purchase the book go to the publisher’s web site at http://civicresearchinstitute.com/rdv.html