The Broken Custody Court System: Is there Reason for Hope?

by Barry Goldstein

Every day I hear horrific stories of courts using deeply flawed and outdated practices that ruin the lives of protective mothers and their children. I learn about the unspeakable pain and anguish caused by the bias and unwillingness to consider new research that demonstrates the standard practices are hurting children. I hate these stories with a passion while feeling deeply honored that protective mothers trust me enough to share them with me. Surprisingly, I am going to provide information that suggests that there is hope. I think this is important psychologically because we are all inevitably worn down by the catastrophic stories we experience so we need reason to hope. It also may be that in projecting a sense of confidence it will encourage better results and coverage. In fact, in recent months I have started to see signs that maybe something good is happening and this long national nightmare might eventually end.

When we are in the middle of what Dr. Daniel Saunders referred to as “harmful outcome” cases it is hard to consider the context. But ten years ago when Mo Therese Hannah and Liliane Heller Miller started the Battered Mothers Custody Conference, so many of the encouraging events I will discuss in this article could not have been imagined. At that time we had a small group of protective moms delighted to find each other and an even smaller group of professionals wanting to help them. Although the bad outcomes have continued unabated, many encouraging developments should give us some reason to hope.

Coverage in the Media

Garland Waller wrote an important chapter in Domestic Violence, Abuse and Child Custody about the failure of the media to expose the child custody scandal. She explained some of the reasons the media was reluctant to cover these cases, but also said that at some point there would be sufficient awareness of the courts’ failure to protect children that we would reach the “tipping point” and the public would no longer tolerate the mistreatment of battered mothers and their children. Since the publication of the book, we have started to see some important media coverage that is moving us towards the “tipping point.”

The best coverage has been on the Fox station in Los Angeles. They have done a series of stories about the failures of the court system and child protective agency to protect children. I want to specifically mention the work of Kathleen Russell, Tammi Stefano and Connie Valentine in helping to encourage and promote these stories, but I am sure there are others I am missing.

One of the most compelling stories involves a young man named Damon. He revealed his father’s sexual abuse, but as happens all too often in the broken system the courts refused to listen and gave custody to the abuser. His mother, Cindy Dumas has fought hard to protect Damon, but the court disbelieved her and retaliated against her. The Fox station included several news segments about Damon including an interview that was taped at a secret location after he ran away from his father and remained in hiding for over a year. The station also interviewed the father who denied his abuse and could not explain why he would force the teen to stay on the run rather than agree for him to live with his mother. The court refused to respond to why they continued to keep Damon at risk. This story had a relatively happy ending in that Damon learned that if he married, the law would make him emancipated so that the custody order would no longer be valid. At sixteen he was allowed to marry in Nevada and thus earn his freedom from his abusive father.

The series of reports also followed demonstrations at the courthouse by protective mothers who complained they were mistreated and the courts failed to protect their children. Several of the moms were interviewed for the news reports. Significantly, looking at many different cases helped to demonstrate that this is a widespread problem and not based on an unusual mistake.

One of the most revealing pieces involved an interview with former Judge DeAnn Salcido. She explained that as part of their judicial trainings, a senior judge told them to be skeptical of mother’s abuse allegations. This helps to explain why so many true allegations of domestic violence and child abuse made by mothers are disbelieved. Significantly, many of the gender bias committees appointed by courts around the country have found that men are given more credibility than women and this kind of misinformation certainly contributes to this bias and to court errors. The Saunders’ study found that court professionals without adequate training in domestic violence tended to believe the myth that mothers frequently make deliberately false allegations of abuse. It is truly outrageous that court sponsored trainings would include statements by judges encouraging other judges to use biased beliefs that put children in danger.

This series of stories is ongoing and has created a powerful response. I think the station has found that as they investigated mothers’ complaints, the complaints are reliable and the courts are routinely placing children at risk. This can only encourage more stories on Fox and other media outlets. FoxLA is to be commended for helping to expose a scandal that has destroyed so many children’s lives and undermined the work to prevent domestic violence.

The Dr. Phil program provided two programs that helped expose the crisis in the custody court system to a national audience. Dr. Phil promised to follow-up to help create the needed changes but thus far this has not happened. The show featured several victims of the court system including Katie Tagle who had pleaded with the judge to protect her nine-month old baby, Wyatt. As would be suggested by following the judicial training in California to disbelieve mothers, the judge repeatedly said he thought Ms. Tagle was lying when she said the father threatened to kill their baby. The father used the access provided by the court to murder Wyatt and himself. Kathleen Russell was instrumental in creating these shows and appeared on the first one.

Two heartbreaking tragedies in the Washington, D.C. area and effective advocacy work by Eileen King led to some really valuable coverage in the Washington Post. In one case, Dr. Amy Castillo sought to protect her three children from their abusive father. Right before appearing in court on her application for a protective order she had marital relations with her husband. The judge learned of this and assumed this meant the father could not be too dangerous. This was a good illustration of the problem of relying on court professionals who do not understand domestic violence dynamics and so never considered it might not have been safe for the mother to refuse the father’s sexual demands. The father used the access provided by the court to murder the children.

Joaquin Rams had a long history of dangerous criminal activity and was suspected in at least two other murders. As a result he was initially limited to supervised visitation. We have seen repeatedly that courts create an urgency to restore normal visitation to fathers even in the face of serious safety risks. The judge had little experience in domestic relations cases and openly stated that he did not like responding to these cases. He decided to give the father unsupervised visits over the objections of the mother. This decision led to the death of Prince McLeod Rams before he could reach his second birthday. The father is in jail awaiting trial for murder.

The disparity in how supervised visitation is handled between mothers and fathers is illustrated by the case of Natalie Khawam. This was a case that was in the news after her twin sister, Jill Kelly filed a complaint against the woman who had an affair with General Petraeus. General Allen and General Petraeus sent letters to the judge accurately describing what a good mother Ms. Khawam is. The mother always took good care of the child and is the primary attachment figure. This means that continuing supervised visits increases the child’s risk for depression, low self-esteem and suicide when older. She was limited to supervised visits based on the court’s failure to provide a hearing for the evidence of domestic violence, evaluation by a notorious psychologist who is part of the cottage industry supporting abusive fathers and claims of alienation. In other words there were no issues related to the safety of the child. Nevertheless the courts that couldn’t wait to resume visitation with a dangerous father are willing to delay years before resuming normal visitation with a safe mother.

These and other cases created an interest by the Washington Post about the custody court system. Eileen King cultivated a relationship with an editor on the editorial board and provided research and other information. This led to a meeting between the Washington Post Editorial Board and a small group of domestic violence experts. We provided information about the Rams case and the context of the problem. On the Saturday of the Battered Mothers Custody Conference we were excited to see a Washington Post editorial supporting the conference.

One of the highlights of the Battered Mothers’ Custody Conference was the presentation of awards to Els Lucas, the attorney who so ably represented Holly Collins and helped her win asylum. The Kingdom of the Netherlands also received an award and the Dutch Embassy put out a press release about the awards ceremony that drew more attention to the court system’s failure to protect children. Quenby Wilcox also attended the conference and received plenty of material for her newsletter that responds to the custody issue as an international problem. Claire O’Toole was also at the conference and has been writing for the Washington Times.com including a three part article about Damon.

Cara Tabachnick wrote an important article for The Crime Report that discussed the problem of abusive fathers in contested custody cases killing their children. A shorter version of the article appeared in the Daily Beast. She followed up with a report about the judge in the Katie Tagle case who lost re-election because of his failure to protect Baby Wyatt.

Garland Waller produced a brilliant documentary film about the Holly Collins story entitled No Way Out But One. The film has won numerous awards, played at several conferences and film festivals and on television. It is available on DVD and can be used to help the public become more aware of the child custody scandal. Indeed it is a dramatic way to discuss these issues.

There have been other stories, particularly about individual cases and tragedies. I am aware of a few other potential stories and investigations that I cannot discuss at this time but have the potential to make a big difference. Each story has the potential of getting us closer to the tipping point and forcing court administrators to do out of embarrassment what they should be doing out of concern for the safety of children.

Compelling Scientific Research

One of the many causes for the widespread tragedy in the courts’ response to domestic violence custody cases was that there was no research available when domestic violence first became a public issue and the courts had to create a process for responding. This led to the use of popular assumptions that domestic violence was caused by mental illness, substance abuse and the actions of the victim. Courts turned to mental health professionals for advice. They are experts in mental illness and psychology, but not domestic violence. When scientific research became available which demonstrated the original assumptions were wrong, the courts never modified their approach or required experts to reference valid research to support their beliefs. This has led to evaluations that are completely subjective and tell us more about the beliefs and biases of the evaluator than the circumstances in the family. Many protective mothers have been pathologized because the evaluators did not know how to recognize or investigate domestic violence allegations. These mistakes have been compounded by the development of a cottage industry of lawyers and psychologists who learned they could make a large income by supporting approaches that favor abusive fathers. This is because most contested custody involves domestic violence and the abusers usually control the family finances as part of their controlling tactics. The courts have treated these unqualified and biased professionals as if they were neutral and treat their misinformation as if it were accurate thus poisoning still other cases.

In April of 2012, the U. S. Department of Justice released a groundbreaking study by Dr. Daniel Saunders. Since then, and even before, I have been repeatedly referencing this study for two important reasons. The findings by Dr. Saunders are incompatible with assumptions that the court system’s response to domestic violence is working for children. The fact that it comes from the U.S. Justice Department means that it has the authority and neutrality that makes it hard for judges to dismiss this research as they have sometimes sought to do with other studies.

Saunders found that the standard and required training received by judges, lawyers and evaluators does not qualify these professionals to handle domestic violence cases. These professionals need specific training in topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Those professionals without this training tend to believe the myth that mothers frequently make false allegations, support unscientific alienation theories and believe mothers’ attempts to protect their children are actually harmful to the children. These findings are incredibly valuable because most of the bad outcomes we see are created by professionals who focus on exactly this misinformation. Saunders found that these wrong beliefs lead to outcomes that are harmful to children. This is an incredibly powerful argument that is now available for mothers.

The heart of the custody courts’ failure are the extreme cases in which the outcome is that the alleged abuser receives custody and safe, protective mothers who are the primary attachment figures for their children are limited to supervised or no visitation. Saunders found that these, what he calls “harmful outcomes” are always wrong because 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 greater than any benefit the court thought it was providing. In most of these cases the extreme outcome demonstrates that very flawed practices were used and in many if not most of these cases the opposite outcome would have worked better for children.

The Saunders’ study also found that courts are not imposing supervised visitation on alleged abusers frequently enough. It found that shared parenting is being used much too often and that abusers use the exchanges to harass and abuse their ex-partners and the control provided in decision making to prevent decisions that would benefit the children. The study also supported mothers’ concerns about the harm caused by professionals who are part of the cottage industry that has a financial incentive to support abusive fathers. Significantly Saunders also found that domestic violence advocates have better training and expertise than any of the court professionals on the specific topics most needed in order to understand domestic violence cases.

My book that I co-edited with Dr. Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY did not contain much new research. What it did was put together all the important research related to domestic violence custody cases together in one place so that it would be convenient for protective mothers and court professionals. The book provided recommendation from the leading experts in the field and encouraged the use of a multi-disciplinary approach with a focus on current scientific research. The fact that the Saunders’ study cited our book repeatedly should make it difficult for courts to challenge the authority of the information in the book. The book is particularly helpful in challenging evaluations and the use of psychological tests that were not created for the populations seen in family courts. Dan Saunders cited several of the chapters in our book which confirms it is authoritative and neutral.

FROM MADNESS TO MUTINY, a book about sexual abuse custody cases by Dr. Amy Neustein and Michael Lesher was based on a review of over 1000 child sex abuse cases. It establishes the frequency that child protective agencies and courts fail to protect children and routinely use flawed and biased practices. The authors found that in 85% of custody cases with allegations of child sexual abuse the alleged abuser was given custody. This means the faulty practices in custody courts are responsible for sending many children to live with their rapists.

In 2012, a new edition of THE BATTERER AS PARENT by Lundy Bancroft, Dr. Jay Silverman and Daniel Ritchie was published. Their findings and recommendations include that all batterers engage in harmful parenting practices, evaluators who do not work for a domestic violence agency should consult with someone who does and the abuser should pay for all costs related to his abuse including legal fees. Most significantly they recommend that in domestic violence cases the arrangement that works best for children is custody for the safe or safer parent and initially supervised visitation for the abuser. Significantly the Saunders’ study found courts are not limiting alleged abusers to supervised visitation as often as they should. Saunders also cited the original Batterer as Parent repeatedly.

My new book, co-written by Elizabeth Liu, REPRESENTING THE DOMESTIC VIOLENCE SURVIVOR puts this research together and encourages lawyers to use current research and a multi-disciplinary approach to present the strongest possible cases. The research discussed in this article is discussed extensively. Attorneys are advised to inform judges that there is now a substantial body of research that demonstrates many of the standard practices used by courts in domestic violence cases are working poorly for children. They should then ask the court to be open to hearing evidence about this research. We are hopeful that as more lawyers read the book and start presenting the right information to the courts that it will gradually change the system as court professionals become more familiar with valid scientific research.

I recently wrote an article about the health impact on children of witnessing domestic violence. I hope that my efforts will encourage lawyers and protective moms to present this information in court. It seems to me that an understanding that exposure to the father’s abuse will cause children to be sicker the rest of their lives and likely have shorter lives demands that courts rethink their standard practices that minimize and fail to recognize domestic violence. These failed practices cannot be in the best interests of the children given what we know about the health effects. The point is strengthened by recommendations in the Saunders’ study that court professionals need training about the impact of domestic violence on children.

One of the great things about the research mentioned in this article and other valid scientific research is that it reinforces each other in many ways because it speaks the truth. Courts had gotten into the practice of relying on evaluators, believing they were providing current research and then failing to notice or challenge the credibility of evaluators who could not cite valid research to support their recommendations and indeed could not answer questions about this research. We need to understand that when an evaluator says the opinion is based on clinical experience, which sounds so impressive, it really means it is just the evaluator’s personal and subjective opinion based on personal beliefs, biases and financial interests. An increased use of good research can only improve court outcomes.

United States Department of Justice

The first thing I was told during my initial meeting with staff from OVW (Office on Violence Against Women) was they had my book (the one co-edited with Mo Hannah) on their desk and were working with it. Imagine how different the court system would be if they could say the same thing. The people I have spoken with from OVW and other parts of the Justice Department get it. We don’t have to tell them that PAS is bogus, the courts frequently send children to live with abusers or that most contested custody are really domestic violence cases. They already know this. It is wonderful to have allies who have the credibility and resources to make a difference.

So why don’t we notice a difference in the outcomes of the horrendous cases we keep seeing? Under our federal system, child custody is specifically left to the states and indeed there is federal case law that limits the ability of federal courts to redress the common constitutional violations protective mothers experience in custody cases. This means the Justice Department must work indirectly to try to influence the needed reforms.

March 22, 2011 was a particularly exciting day. OVW had planned a roundtable discussion about child custody for its staff, but the enormous interest in the program led to it being expanded so that the program was available to the entire Justice Department, HHS and representatives of Vice President Biden and President Obama were also present. Non-government workers from organizations like the ABA, National Council of Juvenile and Family Court Judges and other interested groups also came to hear the presentations. The morning program featured six protective mothers and a brave teen who had been caught in the broken court system. In the afternoon I was privileged to be included among a group of twelve national experts many of whom are frequent presenters at the Battered Mothers Conference. As the only man on the panel, I joked that I was the leader of the male caucus.

The morning session had everyone in tears as we heard the heartrending stories of the unspeakable cruelty inflicted by abusive fathers with the assistance of custody courts that fail to recognize, believe or respond effectively to true allegations of abuse. These stories were perfect illustrations for the presentations in the afternoon in which we shared our experience and current research to explain why courts so frequently fail to protect children and offered recommendations for needed reforms.

Although the federal government can’t force courts to create the changes necessary to protect children, there are things it can do to help. The Saunders’ study and other research it funds can be used to help inform courts about the impact of their faulty practices. OVW recently offered grants to courts interested in implementing better practices in domestic violence cases. I was especially pleased to see that the notices included findings from the roundtable discussions. OVW has supported grants to good organizations like DV-LEAP and the Leadership Council for training, research and other assistance. We would also like to see the Justice Department withhold funds from courts and other institutions that continue to use harmful and faulty practices such as PAS and the reliance on biased and inadequately trained professionals.

I am also aware of other high level meetings with domestic violence experts I absolutely trust. Hopefully these will lead to more actions in support of protective mothers. We have also encouraged activities such as a White House Conference that would encourage the media to cover the custody court failures. For protective moms and their children, the effects of these hopeful events do not come soon enough, but it does provide hope that reforms are on the way.

The Rejection of PAS

Parental Alienation Syndrome is a bogus theory concocted by Richard Gardner to help him and other professionals who are part of the cottage industry supporting abusive fathers to obtain large incomes at the expense of the well-being of children. There continues to be ever more research that debunks the theory and demonstrates the enormous harm it has caused.

PAS was never approved by any recognized professional organization. It was never included in the DSM which is the book that includes all the valid and recognized mental health conditions. Despite intense lobbying by abuser groups and the cottage industry, it was again rejected by the American Psychiatric Association which refused to include PAS in the DSM-V because there is no valid research supporting it. I realize that not many court professionals follow current research and decisions like this, but attorneys for protective mothers can bring this to the courts’ attention which can only serve to further undermine its reputation.

Anecdotal Information about Ongoing Custody Cases

When we see so many harmful outcomes in custody cases it is easy to get discouraged and to assume protective mothers cannot win. That is why it is so wonderful when we hear of successful outcomes. Recently I have noticed that there seems to be more good outcomes. Some moms have told me that they cited Saunders or one of my books and the judge seemed to listen and protected the children. I have started to see more judges open to listening to the research and qualifying domestic violence experts.

It could be that I am hearing about cases that are the exceptions. Certainly this is not scientific proof, but it seems like some of the favorable events might be starting to penetrate the court system. I would like to think that the courts are in the process of transitioning from the old failed practices to new approaches based on current scientific research that are better able to focus on the well-being of children.

Conclusion

It is hard to be optimistic when we continue to see so many bad outcomes and courts remain defensive about correcting past mistakes. Nevertheless, it is clear that the many positive signs discussed in this article are reason to hope that we are starting to make a little bit of progress. The research is compelling and any fair consideration of the research and evidence would result in drastically different outcomes. The increased media coverage and role of the Justice Department may be nudging the courts in the right direction.

I hope protective mothers and their attorneys will continue the trend of offering genuine expert witnesses and submitting the research that is so supportive of protective mothers’ cases. At the same time we must be vigilant for the next set of abuser tactics that will be implemented if they sense they are losing the control and privilege the custody courts have been providing. I hope that our children will one day be astonished that there once was a period when the custody courts were actually supporting abusers and criminals.

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. Representing the Domestic Violence Survivor, co- authored with Elizabeth Liu is designed to train attorneys to present domestic violence cases and was released in April of 2013. Barry can be reached by email from their web site www.Domesticviolenceabuseandchildcustody.com

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 Elizabeth Liu and I have convinced our publisher to make available the last section of our chapter about GALs that lists and explains the best practices for GALs in domestic violence cases. You can now download and print this information and share it with your GAL. Everyone is welcome to share this information. I also hope you will check out my new Face book page, Barry Goldsteins Representing the Domestic Violence Survivor. Barry’s web site, www.Barrygoldstein.net is back up and running with new material.