Department of Justice Report Demands Custody Court Reforms Part II

by Barry Goldstein

Read Part I:  CLICK HERE

  Using Saunders’ Report to Protect Children

                The Saunders’ study establishes that the custody courts are getting an intolerably high percentage of domestic violence custody cases wrong and this will continue as long as the courts rely on evaluators and other professionals who do not have the specific domestic violence training they need and refuse to use the expertise that could be provided by domestic violence advocates and experts. 

                It is clear that the custody courts need to adopt the reforms that will make sure children are protected, but there are significant obstacles to achieving the needed reforms.  The worst evaluators and other professionals who are part of the cottage industry supporting abusive fathers will fight to maintain their lucrative practices even as they earn their money at the expense of the safety and future of children they are supposed to protect.  The abusers will continue to seek to manipulate the court in order to continue using the custody tactic to maintain what they believe is their right to control their partners even after they leave.  Judges and other administrators will be reluctant to acknowledge that their long established practices routinely place children in jeopardy.  Dan Saunders has done a substantial public service in providing meticulous research that should explode the complacency of court professionals who would like to believe the only problem is the complaints by protective mothers and their supporters.  Now it is our job to use this research to change the outcomes of cases and reform a system that is failing to protect children.

Presenting a Case with the Help of the Saunders’ Study

                The Saunders’ study highlighted an important point that may be obvious to some, but certainly is not recognized by the professionals who run the custody courts.  Domestic violence advocates are the group most knowledgeable about the specific topics needed to understand domestic violence custody cases and should be viewed as the experts on domestic violence.  There are domestic violence experts who are psychologists (  i.e. Mo Therese Hannah, Joy Silberg), lawyers (i.e. Joan Zorza, Lynn Hecht Schafran) and judges (i.e. Mike Brigner, Sol Gothard), but in each case it is not because of their educational degrees or profession.  They learned about domestic violence separate from their profession which made them so much more effective.  Domestic violence advocates work full time on domestic violence issues.  They have to understand how to recognize domestic violence and what behaviors are associated with higher lethality because one of the most important parts of their jobs is to work with clients to create safety plans.

 

                Dr. Saunders intimated that the percentage of other professionals with the needed training is probably overstated because those who participated in the study probably have more of an interest in domestic violence than other professionals who chose not to participate.  Advocates have chosen a career in domestic violence.  Obviously they have not done so for financial reasons as psychologists and lawyers who are part of the cottage industry supporting abusers have.  In my experience, advocates passionately care about their work to end domestic violence.  Dr. Mo Hannah and I had the privilege of training advocates working for the National Domestic Violence Hotline about custody issues.  It was a wonderful experience because the advocates understood the domestic violence part so we could have a really high level discussion about how courts respond to domestic violence and how they could best help victims calling for assistance.

                Court professionals would benefit from learning from advocates, but so would protective mothers.  If possible, protective mothers should start working with an advocate before seeking an attorney or other professional assistance.  Some domestic violence agencies have legal programs, but even when they don’t, there may be relationships with attorneys who would be supportive of survivors.  The advocates can help their clients put together the pattern of coercive and controlling behaviors by their abuser that will make it easier for court professionals to recognize that he is a domestic violence abuser.  They can also identify any behaviors that demonstrate a higher risk of lethality or other danger.  Recognizing this information is important because after the initial court documents are filed, the survivor may not be permitted to include additional information later in the proceeding or this information may be discredited because it was not raised initially.

                Advocates can also come to court with their clients.  They cannot speak on their behalf, but they can provide needed emotional support, make the judge and other court professionals understand it is a domestic violence case and often hear things in the court room that the client may miss in the emotion of being in court with their abuser.  Occasionally I hear complaints from mothers that the local dv agency was not helpful.  There are some agencies that still have not made custody issues a priority and any profession includes some individuals who are less helpful.  When we started the Battered Mothers Custody Conference, the domestic violence movement was not as supportive as they are now.  For mothers who have had a bad experience, I would encourage them to try again or try another agency.  In my experience the local shelter is their most important ally.

                In my opinion, domestic violence advocates are the answer to many of the problems exposed in the Saunders’ study.  Evaluators and other court professionals do not have the training in domestic violence necessary to understand the cases and protect the children.  We often see lawyers listening to lawyers and psychologists to psychologists.  This denies them the multi-disciplinary approach that is needed.  Many of the “domestic violence” trainings include substantial misinformation such as information about alienation and “high conflict” cases.  The Saunders’ report established that advocates know the most about the specific domestic violence topics court professionals need so it would make sense for advocates to play a major role in training court professionals and participating in discussions for the reform of the system.  Until these necessary reforms are accomplished, advocates can and should serve as expert witnesses and consultants so that the vital information is available to courts making life and death decisions.

                Custody courts have often failed to use critical thinking when deciding which professionals to hear as expert witnesses.  They have placed most attention on the post-graduate degrees of psychologists and other mental health professionals.  This would make the witness an expert in psychology or social work, but not in domestic violence.  There are certainly cases in which this information is useful to the court, but in domestic violence cases, domestic violence expertise is the most important information needed.  The Saunders’ report established that court professionals often mistake their limited training in domestic violence as providing them with the necessary understanding of domestic violence.  This has led them to refuse to hear testimony from the genuine experts with tragic consequences for the children.

  

                Domestic violence advocates can consult with evaluators and testify about domestic violence issues.  This will provide the court with information it vitally needs.  Mothers who cannot afford to pay for an expert witness would have the ability to provide the court with this information.  Although the evidentiary laws vary by state, they generally provide that someone who has substantially more knowledge of a relevant topic than the general public based on education, training or experience is qualified to be an expert witness.  Accordingly it would be common for a mechanic who did not graduate high school would qualify as an expert witness concerning the repair and workings of an automobile.  Domestic Violence advocates work full time on these issues, receive extensive training and often train others in the community.  By any fair consideration they easily qualify as an expert witness.  The Greenbook Initiative includes the practice of child protective agencies working with domestic violence agencies in response to abuse reports that may include domestic violence.  This practice has proven successful because it helps the caseworker recognize the domestic violence aspects of the case and create arrangements that benefit children.  Particularly until the custody courts create the needed reforms in response to the Saunders’ study, reliance on advocates’ expertise will be the best and most practical way to protect children.

                I believe one of the problems with the present custody courts is that the judges and other professionals have heard misinformation from mental health professionals and others throughout their careers.  As court professionals hear accurate information from advocates, I believe this will improve the knowledge of the professionals and at least help them understand there is another way to look at the same information.  Hopefully this will encourage professionals to start looking for patterns and to recognize the significance of evidence they previously ignored.   This will actually make their jobs easier because they will find evidence that confirms the claims of one party in cases that otherwise would be viewed as a he-says-she-says case.

Legal Representation

                Many protective mothers have complained about their attorneys and often have to change attorneys or represent themselves after an attorney drains her resources and undermines the case.  The Saunders’ study confirmed the problem as private attorneys were the least likely professionals to have the necessary domestic violence training.  We often see abusers and other court attorneys seek to use the fact that the mother has had a series of attorneys to suggest there is something wrong or uncooperative about her when it is actually a reflection of the difficulty in finding an attorney willing to present a strong domestic violence case.

                With the availability of the Saunders’ study, protective mothers can discuss at the initial meeting with a prospective attorney that there is new research from the U.S. Department of Justice that most court professionals do not have the necessary domestic violence training and this frequently causes mistakes that place children at risk.  Accordingly, she wants to make sure the attorney is open to presenting a strong case based on the father’s pattern of abuse and is willing to advise the court that the standard court practices are working poorly for children.

                The attorney will offer a retainer agreement that will specify the payments the attorney is to receive.  This is what is important to the attorney about the attorney-client relationship.  The mother should request that the agreement also states that the client has expressed her concern that the attorney will advise the court of the current scientific research that present practices in domestic violence cases are working poorly for children and that the attorney will present the court with the available evidence of domestic violence.  If the attorney objects to this kind of language it is better to know this at the start of the case instead of after the attorney has received substantial resources and may have undermined the case.  I am not as concerned with the exact language as long as it expresses the general information and the attorney does not seek to include language nullifying the intent such as saying that failure to present the information should not affect payment of legal fees.

                The most frequent question I receive is where to find an attorney who understands domestic violence.  The Saunders’ study confirmed that among private attorneys, the needed training is rare.  This does not need to be a disqualification if the attorney is willing to consult with experts and learn the material.  I have had some cases in which a protective mother wanted her attorney to read Domestic Violence, Abuse and Child Custody or some of my articles.  Battered mothers may now want their attorneys to read the Saunders’ report or at least the executive summary.  I have written a book with Elizabeth Liu to train lawyers how to present domestic violence cases.  Some protective mothers will want their attorneys to read this book when it is published, probably the end of this year.  Some attorneys have asked to be paid at their hourly rate for the time it takes to read the material.  This is general information attorneys should be familiar with in order to competently represent their clients in domestic violence cases.  They will benefit by being better able to represent other clients from having read this kind of material.  Obviously they are entitled to be compensated for reading material specifically related to the case and I can see some compensation because the client needs them to learn the information quickly.  Again it is best to resolve this before substantial sums are invested in the attorney.  In some cases and some locations, a client may have few options for legal representation, but the best time to determine these issues is at the start of the case.

Evaluators

                In Domestic Violence, Abuse and Child Custody, we provided substantial research to demonstrate the problems with using evaluators in domestic violence cases.  Chapters by Robin Yeamans, Judge Marjorie Fields and Joan Zorza demonstrated the problems unqualified evaluators are causing.  The Saunders’ study confirmed the problem and demonstrated how the inadequate training, biases and belief in the myth that women frequently make false allegations has contributed to tragic outcomes.   Indeed, the heart of Dr. Saunders’ research concerned the role of evaluators in domestic violence cases.

                Many judges routinely appoint psychologists or other mental health professionals as evaluators in domestic violence cases.  This practice was developed at a time when many assumed domestic violence was a mental health issue.  We now understand men abuse women because of their belief system and sense of entitlement that they should have the right to control their partners and make the major decisions in the relationship.  Dr. Saunders specifically found that abusers often show no mental health problems in the psychological tests they take.  This is because the beliefs that lead to domestic violence are all too normal in this and many other societies.

                At the very least judges should take a fresh look at standard practices based on the Saunders’ study and other research.  They should be asked to make any decision on the use of an evaluator based on the specific facts and circumstances of the case.  If there is no significant evidence that one of the parties has a mental health issue that would interfere with parenting ability, something more than one parent calling the other crazy, what expertise could a mental health professional bring  to the case?  If there is a real mental health issue, how does the court receive the domestic violence assistance that is critical?  The Saunders’ study establishes that the usual required domestic violence training that most evaluators and other court professionals receive does not provide the needed expertise.  Either the court needs to appoint an evaluator with an unusual high level of domestic violence competence, such as someone who has worked in a domestic violence program or require the evaluator to consult with a domestic violence advocate.

                The Saunders’ report established that social workers tend to do a better job on domestic violence custody cases than psychologists.  The use of a social worker is likely to result in lower costs, which means more assets available for the children and a better understanding of the critical domestic violence issues in the case.  It is also likely that the appointment of a social worker will save time.

                If the court insists on appointing a psychologist as evaluator, there should be a discussion of the use of psychological tests.  The generalized tests like MMPI that are most commonly used were not made for the populations seen in custody courts.  They provide virtually no information about domestic violence issues.  They are based upon probability so under the best of circumstances the results apply to the parties in the case only 55-65% of the time and in stressful contested cases or domestic violence cases the results are even less reliable.  Far more useful in domestic violence cases are tests designed for domestic violence cases such as the Campbell Danger Assessment.

                The Saunders’ study supports the recommendations of leading experts like Lundy Bancroft and Peter Jaffe that in domestic violence cases in which the victim is a safe parent, the outcome that works best for children is custody for the safe or safer parent and supervised visitation, at least initially for the abusive parent.  Accordingly, instead of wasting substantial time and money on evaluations, GALs and numerous court appearances, best practices would be to schedule an early evidentiary hearing limited to the domestic violence allegations.  This hearing will generally not take long because it is limited to domestic violence issues.  This avoids common distractions that waste time and seek to take the focus away from the safety of children.  One of the fundamental findings that is an underpinning of the Saunders’ study is that protective mothers rarely make deliberately false allegations.  This means that if the court provides a fair hearing, cases that often take many months or years can be resolved in a few hours or less and children will quickly learn who they will be living with.

Challenging Evaluators

                If the court appoints an unqualified evaluator despite your best efforts to avoid this mistake, the Saunders’ study provides many good ways to attack a harmful report.  The earlier objections should strengthen the mother’s position to challenge the report as she cannot be accused of complaining about the recommendations just because they are unfavorable.  Instead she is in a position to tell the court that the evaluator made precisely the mistakes she sought to avoid as demonstrated by Dr. Saunders.

                The first area for challenging an evaluator during cross-examination would be qualifications especially domestic violence training.  Is the evaluator familiar with the research found in the Department of Justice study by Dr. Daniel Saunders, The Batterer as Parent and Domestic Violence, Abuse and Child Custody?  The mother or her attorney could have referred to this current scientific research during the course of the evaluation.  This will make the evaluator look worse for failing to review this important information.  If the evaluator did review this information it will provide a gold mine of material to ask the evaluator about.  Recommendations adverse to the mother’s position are likely to demonstrate the evaluator did not understand the research or failed to apply it properly.

                Ask the evaluator about training concerning the specific topics Dr. Saunders believes is necessary to be qualified to work on domestic violence cases.  If the evaluator claims general dv training or satisfying the training requirements of the state, compare this with the findings in the Saunders’ study that satisfying these requirements do not make someone an expert in domestic violence, and fail to prevent recommendations that place children at risk. 

                Has the evaluator been trained in how to screen for domestic violence?  Where did the evaluator receive this training?  Ask specific questions.  What information did you have that you believe made the allegations unlikely to be true?  Can you cite any scientific research to support your conclusion?  Did you look for a pattern of coercive and controlling behaviors by the alleged abuser?  Ask all the types of information the evaluator received that if true would be part of the pattern?  Do not permit the evaluator to just say there are other examples.  Make the evaluator keep naming examples until he runs out of examples.  Compare the examples she provides with the examples mentioned in the report.  Ask the evaluator about other examples that the mother provided or is otherwise included in the evidence.  If you had considered all of the examples would you have recognized this as the pattern of the father’s abuse?  Are you aware that evaluators with inadequate domestic violence training tend to minimize the significance of dv?

                Ask if the evaluator has any training in safety or lethality assessment.  Describe what that training consisted of.  What behaviors by alleged abusers have been shown to create a higher risk of lethality or serious injury?  Keep asking until the evaluator admits he cannot name any others.  Has he ever conducted a lethality assessment?  Is there any information in the report about a lethality assessment or the significance of allegations about behaviors known to create greater risks?  Go through other examples of behaviors associated with higher risks particularly those alleged in the case.  Were these mentioned in the report?  Do you know if domestic violence advocates routinely conduct safety and lethality assessments?  Do you think it is likely they would have recognized the dangerous behaviors that you missed?  Are you aware the Saunders’ study found that dv advocates were far more knowledgeable about topics like lethality studies than evaluators and other court professionals?  Did you consult with a dv advocate as part of your investigation?  Are you aware that the Greenbook Initiative encourages consultation with dv advocates in potential domestic violence cases?  Since you missed several of the behaviors known to suggest increased danger and several types of abuse that could be part of a pattern of coercive and controlling behavior, do you think it would have been a good idea to consult with a domestic violence advocate? 

                How often do you believe mothers make deliberately false allegations of domestic violence or child abuse?  If the evaluator seeks to avoid the question by denying knowledge ask what her best estimate is?  Assuming the answer is more than two percent, continue this line of questions.  Can you cite any scientific research to support your estimate?  Do you know if the Department of Justice study cited specific research about the frequency of false reports by mothers and fathers?  Are you aware that the Saunders’ study found that evaluators and other court professionals who believe mothers commonly make false reports had inadequate training in domestic violence and were more likely to recommend arrangements that place children in jeopardy?  If you had been aware of these findings would you have done anything differently in preparing your evaluation?

                Are you familiar with the scientific research led by Nicholas Bala that is prominently cited in the Saunders’ study?  If you knew this study found that mothers in contested custody make deliberately false reports only 1.3% of the time, would that affect your estimate of how often mothers make false reports?  If you were aware that father’s involved in contested custody are sixteen times more likely than mothers to make deliberately false allegations, would that have affected how you prepared your evaluation?  Do you think women are sixteen times more honest than men?  Is it more likely that this applies only to parents involved in contested custody cases?  Do you believe the frequency of fathers’ false allegations is because a high percentage of contested custody is domestic violence cases?  And most of these fathers are seeking custody as a tactic to maintain control over their ex-partner?  If appropriate, are you telling this court you completed your investigation and made recommendations without considering the father’s motivation for seeking custody?

                Are you familiar with the concept of confirmation bias?  Is it fair to say this occurs when a professional is expecting a particular outcome and thus ignores information that undermines the expected result and focuses on supportive information?  And professionals can engage in confirmation bias without realizing they are doing so?  Would you agree that confirmation bias is probably one of the factors that explains the findings in Dr. Saunders’ report that evaluators who believe women frequently make false allegations are more likely to reach that conclusion and make recommendations that hurt children?  Be careful not to ask questions to give the evaluator the opportunity to explain why it doesn’t apply in your case.

                Many of the challenges to the evaluation will be specific to the case.  If an evaluator recommends some form of joint custody use statements in the report that this is harmful to children because abusers use this to control their ex-partner.  When evaluators recommend unsupervised visitation, we can use the findings that supervised visitation for dangerous abusers is not recommended as often as it should be and supervised visitation for abusers is in the best interests of the children.  If there is an issue where the mother has been angry or emotional, use findings that this information is used far out of proportion to the significance it has regarding parenting ability.

                The report also discussed the finding that unqualified evaluators tend to pathologize protective mothers leading to harmful custody decisions.  If someone had a genuine and serious mental health disorder it would impact them in many aspects of their life and not just in family court or responding to her abuser.  Ask what the evaluator did to avoid this mistake as discussed in the Saunders’ report.  Can the evaluator explain why the Saunders’ study believes this practice hurts children?

                In cases where the evaluator disbelieves or minimizes the mother’s domestic violence allegations ask what was done to screen for dv.  The Saunders’ report says that the typical psychological tests used in custody courts are not useful for screening domestic violence.  In most cases the evaluator will not have used any tests that can be used to screen for domestic violence.  The DOJ study suggests this is a strong indication that the evaluator doesn’t have the necessary training to recognize domestic violence.  In practice this will probably apply to almost all evaluators.

                The Saunders’ study found a strong connection of sexism and belief in patriarchal norms with a lack of adequate training and recommendations that harm children.  Be careful about asking questions about this because this gives the evaluator a chance to deny their bias.  You can ask about specific statements or approaches that are obviously biased such as when Dr. Marcus referred to the mother as “hon.”   This issue can also be used when an evaluator has spent substantially more time speaking with the father and his supporters.  This material can better be developed with the testimony of an expert testifying on behalf of the mother.

                If the evaluator issues a report based on PAS or even alienation, there is strong research in the Saunders’ study to challenge it.  We can start by asking the evaluator if he agrees that sex between adults and children is improper.  Then ask if there is any research not based on the belief that sex between adults and children can be appropriate (this is what PAS is based on), that “alienating” behavior creates a safety risk.  Are you aware the DOJ study found that PAS, including by any other name has no scientific basis?  Are you aware PAS was rejected for inclusion in the DSM-V because it has no scientific basis?  Are you aware that the Saunders’ study found that evaluators with inadequate training tended to believe the myth that women frequently make false allegations but alienation theories, particularly those used to separate children from their primary attachment figure are based on a belief that most dv and child abuse allegations by mothers are false?  Are you aware that evaluators are starting to lose their licenses for using PAS?  Do you know if that is because they are in affect creating a diagnosis that does not exist?  You can also ask questions comparing the harm of separating a child from their primary attachment figure with the harm of negative statements about the other parent.  Ask for any research findings because there is no scientific support for these standard biased practices.

Judges

                In order to encourage the judge to be open to research and practices that are significantly different than she is used to, we need to present it in as non-threatening way as possible.  Emphasize that this is brand new research.  The message is that the judge is not being blamed for past decisions before the research was available.  If the opportunity arises we can acknowledge that the judge might have been hampered by poor lawyering and unqualified evaluators.  Indeed that is supported by the Saunders’ study.  One of the important points in the research is that the training required of judges and other professionals does not provide them with the necessary domestic violence expertise so it is important to be open to information provided by dv advocates or other similar experts.  Tell the judge that the new research has found that most court professionals do not have the dv training they need, often believe the myth that women frequently make false allegations and this often leads to decisions that place children in jeopardy.

                There is strong support in the Saunders’ study to require supervised  visitation for abusers.  If this is what the children need it is important to ask for this at the start of the case because once the mother offers unsupervised visits, she is acknowledging the father is safe.  Obviously the risk is that the judge treats that request for supervision as hostile or alienating, but emphasize this is what the research found to work best for children.  Ask the court to pressure the father to stop his abuse instead of pressuring the mother to cooperate with her abuser.  This way the goal is to have the father actively involved with the child but the way to do this is for the father to behave in ways that benefit the children instead of sending the harmful message that the father’s abuse is acceptable.

                If the father seeks to limit the mother to supervised visitation (assuming there is no genuine safety issue), the response is not to focus on defending the mother but in using his request to confirm his abusiveness and willingness to hurt the children in order to maintain control.  In the Saunders’ study, cases in which safe mothers lost custody and were limited to supervised or no visitation were examined to see what was wrong with the court practices.  This is because such decisions are always harmful to the children and generally caused by bias and a lack of training.  Help the judge see what such an outcome would look like before there is any serious consideration of this common mistake.

                Make it as easy as possible for the judge to recognize the father’s abuse.  Clearly state at the beginning of the case that the father has a history of domestic violence.  Put all of his coercive and controlling behaviors together to help the court see the pattern.  As the father engages in litigation abuse or other abusive behaviors label these as a continuation of his pattern.  Those behaviors that have been shown to create a higher risk of lethality or other danger should be discussed.  Ask the court to order a risk assessment instead of or if necessary in addition to an evaluation.  The Saunders’ study found that most evaluators and other court professionals do not have the training to assess safety, but this is the most important consideration in order to protect children.  Offer to provide the court (and the other party) research that supports your claims and let the judge know the information that will be provided.  This supports initial restrictions on the father’s access to the children and the mother.  By letting the judge know early in the case that there is substantial evidence and research to support the claim the father is dangerous it may discourage the court from making dangerous initial decisions.  Once the court makes a mistake, the judge is often reluctant and defensive when later information demonstrates the harm created by the initial decision.

After the Case Goes Bad

                If there is still time to appeal, you can cite the Saunders’ report in support of the appeal.  There are likely to be numerous mistakes the court made that are covered in the report.  I would emphasize that there is no reason for the court to defer to the trial court because the trial court did not have this critical research.  The mistakes described in the report lead to harmful outcomes for children so a court using best interests of the child should consider this research in making its decision.

                More common will be cases in which the court has already made a decision that is harmful to the children and an appeal would be too expensive or it is too late to appeal.  I believe the release of the Saunders’ study, by itself creates a change of circumstance that would justify asking the court to take a fresh look at the case based on the research in the report that was previously unavailable to the court.  Protective mothers could cite specific approaches and practices used by the custody court that the Saunders’ report demonstrates harm children.  Surely the judge is not going to claim to have already known the court was using bad practices so the best interests of the children demand the court reexamine the facts and circumstances based on this new research from the United States Department of Justice.  If there are factual changes in circumstances such as the father using the control given him by the court to undermine the mother’s relationship with the children, this can be used together with this research.

                Many of the cases that need to be corrected involve the extreme outcomes in which alleged abusers receive custody and safe, protective mothers are limited to supervised or no visitation.  The Saunders’ study included interviews with 24 mothers who were victims of these outcomes.  Dr. Saunders interviewed the mothers as part of the study in order to understand the kinds of mistakes made that lead to these harmful outcomes.  To say this more directly when the mother is safe, these outcomes are always wrong.

                More specific to the case would be to show how the professionals demonstrated their lack of adequate domestic violence training.  In many of the cases the evaluator and other court professionals failed to find domestic violence because they did not know how to screen for it.  The Saunders’ studies specifically raises concern where evaluators use general psychological tests like MMPI which tell us virtually nothing about domestic violence and fail to use needed screening tools like the Campbell Danger Assessment.  “Evaluators using general measures of personality-psychopathology were more likely to recommend sole or joint custody to the abusive  father in the case vignette.” (Report, P. 15).

                This also contributed to the common problem of safe mothers being pathologized through the use of psychological tests that were not made for the populations seen in custody court.  “Some of the standard tests may also measure and confuse psychological distress or dysfunction induced by exposure to domestic violence with personality disorder or psychopathology.”  (Report, P. 133).  Until there is more and better training and courts reform their outdated practices, this will be an important point that can be made in almost every domestic violence case.  This can be supported by the failure of the court professionals to consider the pattern of coercive and controlling behaviors that includes tactics far beyond just physical assaults.

 

                In cases in which mothers lost custody because they were wrongly pathologized by the misuse of psychological tests, the response can include, “One guidebook for judges cautions that ‘Generally…psychological testing is not appropriate in domestic violence situations.  Such testing may misdiagnose the non-abusive parent’s normal response to the abuse or violence as demonstrating mental illness, effectively shifting the focus away from the assaultive and coercive behaviors of the abusive parent’ (Dalton, Drozd, & Wong, 2006, p. 20).  Not surprisingly, evaluators using these measures were less likely to have received information on screening for domestic violence and assessing dangerousness.”  (Report, P. 124).

                Few of the evaluators or court professionals have the needed training in assessing safety which is critical because it means they don’t know how to protect children’s safety.  This can be emphasized when there are allegations of specific acts that have been shown to create a higher level of lethality or serious danger.  Among the common examples would be hitting mother while pregnant, strangulation, hurting animals, unconsented sex, violating laws and orders and threats of suicide, kidnapping or murder.  Other related circumstances such as availability of guns, mental illness, substance abuse and tactics that seek custody as a way to pressure the mother to return further increase the risk.  The evaluator or other professional could conclude the allegations are false, but if they have the needed training would at least mention that these concerns are significant because of the correlation with higher risk of lethality.

                These critical mistakes will be present in virtually every case because the professionals relied on by the court do not have the training or expertise necessary to handle domestic violence cases.  Many other types of mistakes are common and can be used to support an application for modification of the custody-visitation arrangement based on changed circumstances.  The Saunders’ study found a connection between a lack of training, belief in the myth that women frequently make false allegations and recommendations that place children at risk.  Accordingly if the evaluator or other professionals made any statements suggesting they believe or relied on this myth, this would be proof of their inadequate training and bias.  Sometimes the statements will not be direct but can be implied from the circumstances.  In one case the CPS caseworker accused the mother of making deliberately false allegations to gain an advantage in the case.  The findings, however confirmed the mother’s complaint was accurate but CPS did not consider the father’s acts as abusive.  In another case involving sexual abuse allegations, the court professionals considered only the possibility the child was abused or the mother made a deliberate false report.  They never considered the likely possibility that the child’s reaction was based on a violation of her boundaries or a good faith report that could not be confirmed.

                In other cases, court professionals may have relied on information that is not probative.  Common examples are when they rely on the fact the mother returned to her abuser, failed to follow-up on petitions for a protective order, did not have police or medical reports or the children showed no fear when interacting with their father in front of witnesses.  The use of any of these facts to support a finding against abuse allegations would demonstrate inadequate training in screening domestic violence.

                Another common mistake is a belief that the danger ends when the parties separate.  This might also be expressed in the fact that the father has not physically assaulted the mother since the parties separated and he had limited or no access to her.  This would demonstrate a lack of understanding of post-separation violence which is one of the specific areas Dr. Saunders found evaluators and other professionals need.  One of the likely dangers is that the father will abuse future partners and if he has custody or unsupervised visitation, the children will witness still more domestic violence.  Any recommendation to give the father custody or unsupervised visitation without discussing this risk should be understood as proof the professional is missing critical domestic violence training.

                “Similar to the emphasis on cooperative parenting, use of the label “parent-alienation syndrome” (Gardner, 1998) or, more recently, “parental-alienation disorder” (JBernet, 2008; von Boch-Galjau, Baker, & Morrison, 2010) can also place battered women in a no-win situation.  Battered mothers are vulnerable to these labels when they make formal child abuse allegations or raise concerns about the possible abuse of the children by an ex-partner.  Many child abuse professionals believe that mothers coach their children to make false allegations in contested custody disputes (Faller, 2007).  As noted earlier, they may even face court sanctions and lose custody as a result of raising such concerns (Faller & DeVoe, 1995).  However, research indicates that although false allegations may occur more frequently in divorce-access disputes, the non-custodial parent (usually the father), not the custodial parent (usually the mother) tends to make more false reports (Trocme & Bala, 2005).  Practicioners who apply parent-alienation syndrome (PAS) or parent-alienation disorder formulations tend to automatically label a parent as an “alienator” without a thorough investigation or the allegations (Brown, Fredercio, Hewitt & Sheehan, 2000; Brown Frederico, Hewitt & Sheehan, 2001; Meier, 2009).  As a result, battered mothers may be viewed as both pathological and abusive.”  (Report, P. 22-23).  This quote can be used where the court’s mistake was based on alienation theories.  The Bala research can be used when court professionals fail to have the proper skepticism of allegations made by allegedly abusive fathers.

                In cases in which the judge or other court professionals insisted on shared custody or attacked the mother for objecting to sharing custody with her abuser, consider, “Of particular concern was the relatively high percentage of evaluators who recommended that the victim receive physical custody, but that legal custody be shared by the parents.  Evaluators must understand the potential negative implications of this arrangement, given the likelihood that many abusers will use the arrangement to continue their harassment and manipulation through legal channels (Bancroft & Silverman, 2002; Jaffe, Lemon & Poisson, 2003; Zorza, 2010).  Abusers can gain access to victims by manufacturing reasons to ‘discuss’ child rearing or by insisting upon joint attendance at school events, parent-teacher meetings, or medical appointments.  They can also withhold consent for a child’s counseling, medical procedures, and extra-curricular school events.”  (Report, P. 130).

                The Saunders’ study found a correlation between a belief by evaluators and other court professionals that mother’s attempts to protect children was harmful and claims of “alienation” with beliefs by professionals that domestic violence is not important, women frequently make false allegations and men are entitled to control their partners.  Accordingly, courts should carefully scrutinize findings based on “alienation” and the mother’s fear of the father, particularly when her allegations of domestic violence or child abuse were not thoroughly investigated.  Punishing mothers for seeking to protect children from their fathers or continuing to believe the father is dangerous are common examples of gender bias because she is being blamed for her normal reaction to the father’s abuse.  Courts should seek to avoid these common mistakes and discredit evaluators and GALs who support these errors.

Reforming the Broken Custody Court System

                For many years custody court officials confidently responded to complaints from protective mothers by minimizing and rejecting their concerns.  In some cases they suggested there must be something wrong with a woman who believed all of the court professionals were wrong.  Now the United States Department of Justice has produced a comprehensive study that not only confirms what protective mothers have been saying that the courts are getting a high percentage of domestic violence custody cases wrong, but that most of the professionals relied on by the courts, and particularly the evaluators do not have the training or understanding of domestic violence necessary to help courts make an informed decision concerning the well being of children.  The present outdated and discredited practices give judges little chance to protect children.  This has resulted in courts sending 58,000 children for custody or unprotected visitation with dangerous abusers every year.  During a two year period starting in 2009 we know of news stories of 175 children murdered by fathers involved in contested custody cases, often with the unwitting assistance of the courts whose most important purpose is to protect these children.  With the tragic outcomes and the clear findings in the Saunders’ study, administrative judges cannot justify the status quo and we must use the DOJ report and other research to make sure the needed reforms are implemented.  There must be an urgency for creating the reforms because every day courts using the flawed practices place children in jeopardy.

                We need to bring the research from the Saunders’ study to the attention of the court system and ask the courts to implement the reforms needed to protect children.  Dr. Saunders stated very clearly that contrary to the beliefs of most judges, the present training practices do not provide the expertise necessary.  Locally I would encourage protective mothers, domestic violence organizations and other interested parties to request meetings with the local administrative judge.  The purpose is not to speak about individual cases which would raise ethical issues, but the need for the court to use the new research to reform practices that have been shown to hurt children.  Nationally, leaders of the dv and protective mothers’ movement need to contact national organizations of judges and create a dialog to promote implementing the reforms suggested by the Saunders’ report.  If you can’t promote a meeting, at least write to the administrative judge, provide the information about the Saunders’ report and ask how the court will respond to this research.

                Similarly, we can speak with our state legislators, provide this research and ask them to help protect the children.  Hearings on the problem would be helpful because it would attract attention to something the media has failed to expose.  Ask the legislators to consider the Safe Child Act that I wrote about recently.  If they have any interest in sharing in the $500 billion savings by dramatically reducing dv crime they can implement what I call Quincy Model 2.0.  Surely in these hard economic times there is no justification for continuing the trillion dollar abuser subsidy.

                I am frequently contacted by mothers who want to go public with their stories.  They need to be careful because courts often retaliate when their bad practices are exposed.  Of course they claim to be doing this to protect the children they sent to live with abusers.  The media has been missing in action with respect to the frequent tragedies caused by the standard flawed practices in the custody court system.  They often do not want to write about something they view as he-said-she said and are not willing to invest the resources to establish individual decisions were wrong or even outrageous.  Even when they can be pretty confident the court failed the children they are reluctant to write a story that could risk a lawsuit.

                The Saunders’ report could be used to promote better coverage.  They should have more confidence in writing a story based on a report issued by the United States Department of Justice.  The report does not speak about specific named cases but rather a pattern of bad practices that place children in jeopardy.  I would encourage you to contact your local media, make them aware of the significance of the Saunders’ report and ask them to help expose the scandal.  They may want to discuss specific cases, particularly local cases to illustrate the problem, but using the research and the pattern of mistakes should strengthen what mothers are saying and give them greater credibility.  It also means mothers do not need to go into all the details of their case which undermines their efforts to attract attention.  Instead they can show how the problems cited in the Saunders’ report were the same mistakes made in your case.  It is helpful when seeking publicity to include the local dv agency or a dv expert that will give the story even more credibility.

                I would also like to encourage people to discuss the Saunders’ report and the general problems in the custody court with family, friends and community members.  You never know when someone you are speaking with may have an important contact or special interest in the subject.  No one wants to see children suffer (aside from the abuser) so this is something members of the community are likely to care about.  If you are comfortable perhaps you can discuss the problem at a community event or offer to speak at different clubs or service organizations.  Only the other side benefits by keeping the failures in the custody courts a secret.  At the same time I would encourage you to speak about the problem in ways we can be heard.  I know many court professionals have done many despicable things and we often are very angry.  Saying what we want to say may feel good, but it can undermine our ability to be heard.

                I also recognize that we have been disappointed so many times before.  It is hard to be optimistic even in the face of overwhelming research that supports everything we have been saying for all these years.  Nevertheless it is important that we convey the message that this is an earthshaking event.  In effect the United States Department of Justice is acknowledging that our justice system is failing our children.  We can understand the causes and work on solutions but no one should tolerate standard practices that deny our children the opportunity to be safe in their home and reach the potential God gave them when they were born. 

               

               

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 

The Catholic Church, Penn State, Syracuse & the Custody Courts: The Pattern of Powerful Institutions Protecting Pedophiles

By Barry Goldstein

Domestic violence experts understand the importance of looking for patterns in order to recognize and understand domestic violence. The scandals involving the Catholic Church, Penn State and Syracuse University did not involve domestic violence, but the principles are the same. The church scandal may have involved 100,000 victims while the scandal at the colleges impacted many additional children. We can and should provide support, compassion and compensation for the victims, but can never return them to their old lives. The abusers who committed these acts are reprehensible, but the many responsible leaders of these respected institutions who failed to stop them caused even greater harm. If society fails to learn from these mistakes and use the patterns to prevent additional children from suffering the same fate we are all no better than others who covered up this abuse.

The abuse of children at these institutions is not an isolated event. It is well established that by the time children reach eighteen one third of the girls and one sixth of the boys have been sexually abused. The popular stereotype of a rapist or pedophile is some stranger lurking somewhere in a raincoat, but 83% of sexual abuse is committed by someone the victim knows just as it was at these respected institutions. This is an extraordinarily painful and uncomfortable subject, but society cannot protect children unless it examines the patterns that have facilitated these tragedies and create responses designed to prevent such scandals from ever happening again.

The Catholic Church sex scandal continued over many decades. By some estimates two percent of priests engaged in child molestation. In many cases church administrators including the most influential leaders reassigned pedophiles to new positions with access to more child victims or sent them for treatment and then permitted them to regain access to children. In some cases victims and their parents were silenced by threats or promises. In this manner the scandal was covered up for more than a generation until exposed by lawsuits and eventual press coverage.

At Penn State a respected assistant football coach is accused of sexually abusing at least several children. In one case a graduate assistant witnessed an assault and informed Coach Paterno but nothing was done to protect the children. At Syracuse University the alleged abuser was an assistant basketball coach. When initial complaints surfaced the school asked the law firm that helps them with compliance with NCAA regulations to investigate. The firm has no expertise in sexual abuse issues and there is no indication they hired anyone with this expertise to help with the investigation. The result was the coach had more years to abuse additional children.

Looking at the Patterns

In all three cases these are powerful and respected institutions. They had the trust and admiration of many in the community. Although children rarely make false allegations of sexual abuse, denials by these institutions tended to be believed. The media and law enforcement have relationships with these institutions and were willing to give them the benefit of any doubts. The problem was compounded by the myths and misinformation related to child sexual abuse.

These institutions are also wealthy. The Catholic Church was able to pay for the treatment of pedophile priests and keep the information secret. Syracuse University could afford to hire a law firm to protect their interests and create the illusion of a reasonable response. The ESPN sports network received evidence of the coach’s abuse and failed to report on the story for many years giving the coach the opportunity to abuse still more boys. ESPN has a financial interest in covering the sports program at Syracuse. Could their financial interest influence their decision against covering the issue at least subconsciously?

The institutions also had a strong moral reputation especially the Catholic Church. Who would believe that a church that aggressively seeks to prevent sex outside of marriage and especially sex between consenting same sex partners would tolerate and protect priests who raped young boys? Penn State and Syracuse University had the reputation of running strong and ethical athletic programs and so it was difficult to believe they would tolerate or cover-up for coaches sexually abusing children. Their moral stature made their denials all the more believable.

At the same time the victims had none of these advantages and this was not a coincidence. In most cases the predators deliberately selected victims who were vulnerable and less likely to be believed. Their victims were young, had no influence in the world and not likely to be given credibility. For obvious reasons the pedophiles abused the children at a time and place where there would be no witnesses with few exceptions. Even when an incident was witnessed at Penn State, the failures of the university permitted the coach to continue his abuse.

Sexual abuse has profound negative effects on children. This experience often contributes to the child making poor choices even into their adulthood. These poor choices often get them into trouble which further undermines their credibility. Many aspects of sexual abuse, like domestic violence are counterintuitive which makes it harder for non experts to recognize and believe valid complaints. Throughout the scandals at the three institutions we heard journalists, law enforcement and other professionals without training about sexual abuse making statements to the effect that the long time it took the children to report the abuse made the reports less credible. In reality, this is a normal response for many reasons including threats, fear, embarrassment, guilt and the realistic danger that no one will believe them. This widespread ignorance from professionals and the general public (who will serve on any juries) gives sexual abusers an additional advantage.

Difficulty of Proving Child Sexual Abuse

There are many reasons why child sexual abuse is hard to prove and this applies to custody cases, criminal cases and tort cases. There are rarely witnesses to the assault for obvious reasons. Many forms of sexual assault leave no physical evidence and when there is evidence it may have disappeared by the time the child reveals the abuse. One of the biggest obstacles to proving sexual abuse in a court of law is the widespread myth that women and children often make false allegations of abuse. This is especially problematic in custody cases where most evaluators and court professionals are given inadequate domestic violence training and those without proper training are more likely to believe the myth.

Children face a lot of pressures not to reveal the abuse. Abusers often threaten to harm them or their family if they tell anyone. They are also threatened that no one will believe them and the frequency with which professionals disbelieve valid complaints by children supports this threat. When the abuse is committed by a father or other family member, the child may still love their abuser or not want to get him in trouble. Revealing something that is so painful, embarrassing and uncomfortable is difficult and often requires a lot of support which the child may not have. Children (and adults) respond to traumatic events with a variety of defense mechanisms. This is a survival mechanism that may be the best way to cope with an impossible situation. This may cause the child not to remember or otherwise delay the reports. Many people including unqualified professionals often believe the delay raises doubts about the victim’s credibility. It is common for victims of abuse to engage in illegal or other unwise behaviors that further undermine their credibility. One of the alleged Syracuse victims is charged with molesting another boy.

An important factor that helped the scandals in the Catholic Church, Penn State and Syracuse University as well as the custody court system continue as long as they did is the widespread disinclination to believe that someone who is successful in other parts of his life could do something so disgusting. This applies to the priests who assaulted children, the assistant coaches at the two universities and many of the fathers in custody court cases. Many professionals cannot imagine that people like this could commit these crimes and so never conduct an effective investigation. This factor probably contributed to the lame investigations by police and the media regarding Syracuse University as well as the investigations by Penn State and Syracuse Universities. In the custody court, the frequent use of mental health professionals without expertise in child sexual abuse and use of the bogus Parental Alienation Syndrome contribute to the widespread failure of court professionals to believe valid allegations of child sexual abuse. Initial complaints by victims in the Catholic Church child sex abuse scandal were probably taken less seriously because they were made against clergy who would be expected to maintain high moral standards.

When child sexual abuse complaints are investigated, most are initially investigated for purposes of criminal prosecution. In the Syracuse University case, for instance it appears some of the allegations were investigated by the police and the law firm and the failure to find sufficient evidence to be able to convince a jury of the validity of the complaint beyond a reasonable doubt led to closing the case which was widely interpreted as establishing the complaints were invalid. This is part of a widespread problem about the lack of critical thinking in responding to abuse complaints.

Consider a fundamental question of what is the purpose of investigating allegations of child sexual abuse. For law enforcement the purpose is to determine if a crime has been committed and if there is sufficient evidence to bring charges. For other institutions such as schools, religious institutions, custody courts or child protective agencies, the primary purpose should be to determine if the alleged offender presents a risk to children and if so to take steps to make sure the children are protected. Too often when law enforcement believes it cannot prove a case beyond a reasonable doubt and closes the case, other institutions treat this as if the perpetrator has been vindicated.

Beyond a reasonable doubt is a heavy evidentiary burden to meet under the best of circumstances and even more difficult in cases that are notoriously hard to prove. Our system of justice deliberately makes it difficult to prove because the consequence can be taking away someone’s liberty. I certainly don’t advocate reducing the standard of proof in criminal cases, but there is no legal or moral reason to use that severe standard as a precondition for protecting children. Indeed when the issue is the safety of children any reasonable doubt should be resolved in favor of protecting children.

Given the high level of proof required and the added obstacles to proving child sexual abuse, circumstances that are normal to child sexual abuse cases and information that is of little or no probative value are often sufficient to convince police and prosecutors to close cases with true allegations. The necessary reliance on the testimony of a young child, the myth of frequent false allegations, the lack of physical evidence, the delay in reporting the abuse, inappropriate later behavior by the victim and a continued relationship with the abuser are all common circumstances in child sexual abuse cases, have little or no probative value but any one of them alone can be used to claim a “reasonable doubt.”

The widespread false assumption that the failure of law enforcement to press criminal charges means the allegations were probably false automatically eliminate most valid cases. This encourages the institutions discussed in this article and others to take no steps to safeguard children from a possible or even likely sexual offender. Using the beyond a reasonable doubt standard to determine who goes to jail is reasonable, but using the same standard to decide whether to protect children is unconscionable. We see a similar problem with many child protective agencies that can either determine abuse allegations are unfounded or indicated. When the caseworkers believe there is not enough evidence to bring charges they are required to close the case. In many cases the evidence is ambiguous or a fair assessment is they are not sure whether or not the allegations are true. Many agencies do not have the option of saying they cannot determine the validity of the allegation and leave the case open. The result is that many children are exposed to dangerous abusers in this way. Even worse, artificial deadlines, limited resources, the use of unqualified professionals and flawed practices undermine the ability to establish the evidence needed to protect children.

Custody Courts

It took the media far too long to expose the long and sordid history of widespread sexual abuse of children in the Catholic Church. It appears some members of the media had strong proof about sexual abuse by the assistant coach of the Syracuse University Basketball team. In each case they failed to expose the scandal and protect children. When the press did start covering the scandals at the Catholic Church, Penn State and Syracuse University they became major stories. In many ways the biggest part of each of these stories was not the sexual abuse committed by employees of these institutions but the cover-up that many of the leaders of these institutions participated in. The stories and the effect on the institutions would be far different if the leaders had quickly investigated the allegations, reported the abuse and taken steps to protect children.

It appears the cover-up by the Catholic Church is responsible for approximately 100,000 children suffering from attacks by the clergy. In fairness to the custody court system, the complaint is not that judges are sexually assaulting children but they are sending children to live with dangerous abusers. Current scientific research establishes that every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers. This is caused by the widespread flawed and discredited practices used in the custody courts and the extreme defensiveness in responding to complaints from protective mothers and professionals supporting them. These tragedies have continued since at least the late 1970s although the numbers were probably significantly lower in the earlier years before the male supremacist movement and the cottage industry of professionals who earn their living supporting abusive fathers made going after custody the leading tactic to prevent battered women from leaving their abusers. A significant portion of the 58,000 children victimized each year by flawed practices in the custody court system are not sexually abused but abused physically or witness their mothers’ abuse by their father. Nevertheless the number of children subjected to sexual abuse through the practices in the custody court system is probably much higher than the number abused in the Catholic Church.

We know the custody courts are getting a very high percentage of their contested sexual abuse cases wrong because they are giving custody to the alleged abuser in 85% of the cases despite the research that establishes deliberately false complaints by mothers and children is extremely rare. In a majority of the cases with sexual abuse allegations the charges are true, many others involve boundary violations that do not have to disqualify the father for normal visitation but certainly should discourage giving him custody. The problem is that when the court disbelieves the abuse allegations it tends to punish the mother by taking custody away from her and often limiting her to supervised or no visitation. These are decisions that are extremely harmful to children. Most attorneys have little or no expertise about sexual abuse and yet they routinely discourage mothers from making sexual abuse allegations even with substantial proof because they know the likely result would be for the mother to lose custody.

Perhaps even more convincing than outcome studies is the routine use by custody courts of deeply flawed practices that give judges little chance to protect children from sexual predators. The new Department of Justice study found that most evaluators and other court professionals have inadequate training concerning domestic violence and those with inadequate training are likely to believe the myth that mothers frequently make false allegations of abuse and in turn make recommendations that harm children. In custody cases with sexual abuse allegations this means many of the evaluators and other professionals the courts rely on consider only the possibility that the allegations are true or the mother is making deliberate false allegations to undermine the children’s relationship with their father. The difficulty in proving child sexual abuse, widespread failure to use best investigative practices and the bias caused by the myth cause these professionals to routinely assume false allegations even when there is strong evidence supporting the mother’s allegations. Although boundary violations (which can cause children to act out in sexualized ways) and ambiguous information that may be inconclusive are far more likely than deliberate falsehoods, the inadequately trained professionals rarely even consider these possibilities and jump right to punishing the mothers by removing custody and often restricting visitation. This not only increases the risk to children but helps abusive fathers silence the children so that their continuing abuse is unlikely to be revealed.

Although the burden of proof in custody cases is typically preponderance of the evidence which translates to something just over 50%, as with the other institutions discussed in this article many court professionals use the failure of law enforcement to bring criminal charges as evidence the charges are false. Similarly they also use the failure of child protective agencies to press charges as proof of false charges. Of course the inability to prove something beyond a reasonable doubt does not establish it cannot be proven by a preponderance of the evidence. Significantly over forty states and many judicial districts created court-sponsored gender bias committees that have found widespread bias against women including requiring women to meet higher standards of proof than men. The frequent use of the lack of criminal or child protective charges as if it were proof of false allegations is a common example of placing an illegal evidentiary burden on protective mothers.

When children are sexually abused it is a painful and embarrassing experience. Like women who are raped, it is not something children are comfortable discussing. Accordingly best practices for therapists or investigators would be to take the time to develop a trusting relationship with the child before expecting the child to discuss truly painful experiences. For younger children it is particularly useful to use play therapy. This permits children to reveal whatever happened unconsciously which has the added advantage of preventing parents or others from influencing what they say. Unfortunately court professionals rarely use these best practices. We often see cases in which the caseworker or other investigator asks a few general questions like favorite food or how they like school and quickly ask questions about the alleged abuse. When a child refuses to discuss the issue or otherwise deflects the question the professional often assumes the allegations are false or at least cannot be proven.

One of the problems with custody courts’ response to domestic violence is their reliance on a half sentence. The part they have heard often is that children do better with both parents in their lives. The rest of the sentence is unless one of the parents is abusive. Having missed the critical remainder of the sentence, court professionals are often particularly anxious to actively involve the father in the children’s lives. In many cases with allegations of sexual abuse the court will initially limit the alleged abuser to supervised visitation, but there is tremendous pressure to make sure the father resumes normal visitation as quickly as possible (tellingly the courts don’t seem to feel the same pressure when mother’s are limited to supervised visitation based on alienation claims or mental health diagnoses that don’t seem to impact other parts of her life or her ability to parent the children). Accordingly the professionals rush to complete investigations, fail to use best practices and seek to reunite the father and children as quickly as possible. This results in the frequent denial of valid complaints and quickly gives the father the opportunity to silence the children. If children’s safety were the first priority as it should be and as I believe most judges would say they favor, the outcomes would be very different.

The Catholic Church, Penn State and Syracuse University had years of opportunities to take action to stop the abusers, protect children and save their reputations. Instead they waited until criminal charges, civil suits and massive publicity forced them to respond. Ironically the desire to protect their reputations was probably an important motivation for staying silent but that silence magnified the harm to the institutions a thousand times over. The custody court system is now in a similar situation that the other institutions confronted immediately before the scandal broke. For many years protective mothers and later abused children after they aged out of custody orders that subjected them to more abuse complained to the courts. Current scientific research is now indisputable that the use of flawed and discredited practices has resulted in custody courts sending children to be raped and beaten by abusive fathers. The exposure of the scandal is taking longer because judges and some other professionals are largely immune from civil suit, they have some control over the criminal court system and with a few exceptions the media has viewed the scandal as a dispute between mothers and fathers and have avoided covering and exposing the scandal. The problem is that they have failed to look for patterns so they could understand what is happening. The custody court system has reacted extremely defensively often threatening and retaliating against mothers and professionals who sought to inform the public of the courts’ failures. Like the Catholic Church, Penn State and Syracuse University, the custody court system is a powerful institution with substantial resources and a strong moral reputation. This has helped them put off the day they will be exposed. Their advantages have provided extra time but inevitably a sensational case or a prize winning journalist will expose the continuing scandal and the rest of the media will jump onboard. As someone who worked within the custody court system for thirty years I still hope and believe that they can recognize the problem, reform the flawed practices, retrain the professionals it relies on and start protecting the children in its care. They would probably take some criticism for waiting so long, but nothing like the coverage of the Catholic Church, Penn State and Syracuse University. Making the reforms voluntarily instead of responding only after the scandal breaks would save the court system a lot of trouble, money and damage to their reputation. I believe the scandals we have discussed in this article make it more likely that some reporters (and perhaps more importantly their bosses) will be ready to break a story that I believe has Pulitzer Prize written all over it. In other words the custody courts need a sense of urgency in creating the needed reforms for their sake and to protect the children.

Preventing Sexual Abuse of Children

This is a painful and unpleasant topic to discuss. This discomfort probably contributes to the failure of the media to expose these scandals more quickly. I am hopeful that the massive coverage of the tragedies discussed in this article will encourage the media to perform its role in exposing scandals and particularly crimes, and flawed practices that place children in danger. Already I have seen a wonderful article by Wendy Murphy, who every year makes a provocative presentation to the Battered Mothers Custody Conference, about the importance of accountable language in discussing stories about offenders’ rape and abuse of children. The media often describes events in ways that blame the children, invisibilize the perpetrators and describe the brutal and demeaning acts as if they were pleasant or titillating. The media makes similar errors in writing about domestic violence cases often creating a sympathetic description of men who murder their partners and sometimes their children.

One of the problems is that journalists, like judges, lawyers, mental health professionals, college administrators and the public do not have the training or expertise to understand and respond appropriately to domestic violence or offenders’ rape and brutalization of children. There is a specialized body of current research and there are wonderful professionals who have the expertise to assist courts, journalists and survivors. This expertise was not always available so society needs to get into the habit of seeking this expertise when confronted with these issues. There are mental health professionals who have this expertise, but it is not based on their academic training but on extensive practice with survivors and familiarity with current research. The media should not shy away from covering these stories even if they make themselves and the public uncomfortable, but they should make it a habit of seeking assistance from genuine experts.

Journalists need to provide context for their stories. Many people believe that women and children frequently make false allegations of abuse and that a delay in reporting the abuse is an indication of a false report. The news stories should include interviews with experts or references to research that provide accurate information in order to challenge the myths and stereotypes that are so prevalent. When the sexual assault case involving Duke lacrosse players fell apart the media failed to place the events in context by informing the public that deliberately false allegations are extremely rare and the results at Duke constituted a rare exception. They generally treated the players as completely vindicated despite what was at best obnoxious and loutish behavior.

One of the problems is the lack of clear thinking about the concept of innocent until proven guilty. We often forget that this applies only to the criminal justice system which cannot presume a defendant charged with a crime is guilty or punish him unless it is proven beyond a reasonable doubt or he admits his crime by pleading guilty. The system was designed so that guilty defendants sometimes walk free in order to make it rare for innocent defendants to be convicted. In other words there is a difference between not guilty and innocent. Innocent until proven guilty does not apply to the rest of the public or the media although the media must consider defamation laws. In the Kobe Bryant case the criminal charges were dropped and he later reached a civil settlement with his alleged victim. He has largely been treated as if he were vindicated although there is a good chance he committed the crimes originally charged. A civil settlement is not an admission. Instead it means that he may or may not have committed the crime just as a not guilty verdict does. Clearly the media could do a better job of explaining this. If the public knew there were pending or possible charges against the assistant coaches at Penn State and Syracuse University, parents could have taken steps to protect their children. This would be unfair to the coaches if they never acted inappropriately, but the safety of children should be the higher priority.

Indeed society’s response to sexual assaults against children ought to be changed to make the safety of children the first priority. There are valid justifications for statutes of limitation and charges from many years ago can be difficult to defend (and prosecute) with witnesses dead or unavailable and memories faded. Nevertheless the frequency of children not reporting these crimes for many years if at all and the frequency in which the perpetrator discouraged the reports through threats, gifts or promises supports extending the time for reporting to a more realistic time frame. As I write this the prosecutor in Syracuse stated that the charges against the assistant coach are credible but he cannot prosecute because of the statute of limitations. A court could throw out a criminal complaint if the circumstances and delay made it unfair to the defendant, but an arbitrary statute of limitations gives the court no alternative but to allow a likely sex offender to continue seeking his prey.

Communities need to have the resources and expertise available to support the survivors and develop the evidence needed to take the criminals off the streets. Child protective caseworkers and other professionals involved in these cases need better training and retraining to eliminate the widespread use of myths and stereotypes. Programs need to be developed for children to meet with trained experts who can take the time to work with the children, develop trusting relationships and give children a safe place to reveal what the perpetrator did. These professionals can then be expert witnesses to support the allegations both in criminal court and custody court. Some communities already have good programs like this. There is a cost to these programs, but what often gets overlooked is the cost to society of allowing predators to keep raping and assaulting children and of failing to provide the therapy children need costs far more in criminal, health and other costs. Attempts to save money on programs to prevent domestic violence and child abuse actually cost far more financially and in personal devastation.

The custody court system also needs to make safety the first priority starting with the recognition that the present practices are working poorly for children. Courts must stop using mental health professionals with inadequate training in domestic violence and child abuse and those who believe the myth. If court administrators do not believe they are routinely using unqualified professionals they should review the Department of Justice study led by Dr. Daniel Saunders. Other court professionals need to be retrained to stop relying on the misinformation that is so prevalent in the custody courts. They need to look to the specialized body of scientific research and genuine experts for assistance. When allegations are pending, courts must avoid custody or visitation arrangements that give the alleged abuser the ability to silence the children. Stop using bogus theories like Parental Alienation Syndrome that have no scientific basis and were concocted based on the false assumption that virtually every allegation of abuse is false.

When I was a boy, I was a big Yankee fan and my favorite player was Mickey Mantle. I did not know or understand at the time that he engaged in many inappropriate behaviors. Towards the end of his life he demonstrated remarkable courage and candor when he told his fans “Don’t be like me.” Recently, in response to the Penn State Scandal, Archbishop Timothy Dolan declined to offer advice acknowledging that the Catholic Church had done a poor job in responding to similar issues. He is right that the Catholic Church can never undo the enormous harm it caused to children in its care. Certainly they need to help the victims and take steps to make sure this never happens again, but that is not enough. I believe they have an opportunity to use their experience to help prevent other children from suffering similar life-destroying experiences. They should stand with protective mothers and their children (including many Catholics) to encourage the custody court system to make the needed reforms.

They have the influence and access to deliver their message and make sure it is heard. Priests can deliver sermons informing the congregation of the widespread failure of custody courts to protect children. They can support protective mothers and use the moral force of the church to pressure abusive fathers to stop their abuse and stop playing the custody card in ways that ruin their children’s lives. They can write about the problem in their church publications and gain newspaper columns to address this issue. Perhaps most important they can set up meetings with administrative judges. They can provide the research of how the custody courts have failed to protect children. They can explain the harm to the church of covering up for so long and like Mickey Mantle tell the judges “Don’t be like us.” I believe the moral way to respond to their history of tolerating the abuse of children is to help prevent other children from suffering a similar fate.

 Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com

The 9th annual Battered Mothers Custody Conference will be held January 6-8 in Albany, New York. For more information check out the Battered Mothers Custody Conference web site. I hope to see many of you at the conference.