Safe Child Act

by Barry Goldstein

Last month my article was about legislation needed to stop custody courts from routinely sending children into the custody of dangerous abusers. My meeting with a state legislator led to her request that I prepare a proposal that would be the basis of legislation to reform the broken system. I would like to thank Toby Kleinman for her assistance in drafting this proposal. Immediately below will be my proposal for a Safe Child Act and I will then discuss why I think this would make a difference. You are most welcome to post or otherwise use this proposal and this article in support of efforts to reform the system. In fact I hope many people will take the proposal for a Safe Child Act and ask their legislators to sponsor it.

Safe Child Act 

Purpose: Improve the Safety of Children involved in Child Custody Cases

Provisions:

1. The paramount concern of all child custody decisions must be to provide complete safety when determining the best interests of the children.

2. Whenever domestic violence or child abuse is raised as an issue either during or before a child custody matter is litigated any professional who provides advice or recommendations to the court must have substantial training and experience about Domestic violence and child abuse to fully understand safety issues including behaviors that are associated with higher lethality or injury risks; domestic violence dynamics; effects of domestic violence on children; ability to recognize domestic violence and research about batterer narratives. Any professional without this necessary expertise must consult with someone who has this knowledge prior to giving any recommendation to the court.

3 A post graduate degree in mental health such as psychology, psychiatry or social work absent specialized and approved training shall not be considered proof of domestic violence expertise. A court shall not refuse to qualify an individual as a domestic violence expert because the witness does not possess a post graduate degree if the witness can demonstrate expertise based upon training and experience.

4. In any custody case where either domestic violence or child abuse is raised during the litigation process and even where a court may have already heard and determined there is not significant enough domestic violence to warrant a restraining order and in which there is no substantial basis to believe the parties or children have a significant mental health impairment likely to interfere with parenting ability, courts should not order a mental health evaluation. The court may appoint a domestic violence expert to help the court understand the significance of evidence related to domestic violence and must permit parties to present evidence from a qualified domestic violence expert.

5. Courts shall look to current, valid scientific research concerning domestic violence to help inform its decisions in all cases where domestic violence or child abuse is raised during the course of custody litigation Courts shall not permit practices or approaches that do not have scientific bases and are not accepted practice within the specialized field of practice of domestic violence and child abuse. Professionals who engage in practices based upon such unscientific beliefs shall not be qualified to participate in custody cases where domestic violence or child abuse is raised during the course of litigation.

6. In cases in which allegations of domestic violence are supported by the preponderance of the evidence, the safe or safer parent shall receive sole custody absent clear and convincing proof that the parent creates an imminent safety risk to the children. The parent who has committed domestic violence shall be permitted only supervised visitation pending a risk assessment by a domestic violence/child abuse professional. In order for the abusive parent to obtain unsupervised visitation, the parent must complete at least a six month accountability program, accept full responsibility for past abuse, commit to never abusing the children or future partners, understand the harm the abuse caused and convince the court that the benefit of unsupervised visitation outweighs any risk. Termination of all visitation should be considered upon proofs of failure to comply as it will present the children with a known dangerous circumstance.

7. A parent shall not be penalized for making a good faith complaint about domestic violence or child abuse.

8. Courts shall not use approaches developed for “high conflict” cases designed to encourage parents to cooperate in any litigated custody case if there have been allegations of domestic violence and or child abuse which have been supported with an expert report opining there is a reasonable risk to children and shared parenting shall not be permitted in these cases absent voluntary consent of both parties. Consent must be determined to be without coercion or undue pressure.

9. In cases in which there are allegations of domestic violence, a history between the parties that includes restraining orders, criminal charges or other evidence of possible domestic violence, early in the proceeding, before the appointment of any GAL, evaluator or other neutral professional the court shall conduct an evidentiary hearing to determine if one of the parties has engaged in a pattern of domestic violence. If the court finds domestic violence and the non or less abusive parent is safe the court shall award custody to the safe parent and supervised visitation to the abusive parent. A finding denying the allegations of domestic violence shall not prevent the court from considering additional evidence of domestic violence later in the case.

10. In any case in which the trial judge engaged in or tolerated gender biased practices or permitted practices or approaches based on myths, stereotypes or other bias, an appellate court shall not defer to the judgment of the trial court.

11. In any case involving allegations of child sexual abuse, any professionals asked by the court for a risk assessment or evaluation must have specialized training and experience of a minimum of five years after completing training working with children and expertise in child sexual abuse. Investigators shall take sufficient time to develop a trusting relationship before expecting the child to speak about the allegations. It shall be recognized that children frequently recant valid allegations of child abuse so a recantation shall not by itself be treated as absolute proof the allegations were false. No negative inference(s) may be drawn from a decision by a prosecutor or child protective agency not to file charges against a named perpetrator of domestic violence or child abuse and shall not be treated as proof the allegations are untrue. Given the difficulty of proving valid complaints about child sexual abuse, judges who make a finding that the allegations were deliberately false must demonstrate they considered not only if the allegations are true but other common circumstances such as violation of boundaries, inadequate information to determine the validity of the allegations and mistaken allegations made in good faith. In cases in which a court determined sexual abuse allegations cannot be proven, the court shall consider new evidence in the context of the evidence previously considered. No decision shall be made by a court absent a full evidentiary hearing with the parent having a right to have an expert of their choosing heard by the court. No preference and no deference shall be given to any expert selected by the court and identical standards of review and credibility shall be applied by the trial court.

12. This law is designed to correct common present practices that have been shown to work poorly for the protection of children. The law seeks to encourage custody court professionals to look to current, valid, scientific research to inform their decisions and stop using the outdated and discredited practices described in the legislative history. The use of such flawed practices in prior decisions shall be considered a change of circumstance that entitles the parties to request the court to reconsider arrangements that were created based upon flawed practices.

Training and Retraining: Any judge who hears a case involving the issue of domestic violence and/or child abuse as part of judicial responsibility shall receive specialized training regarding the new practices adopted by this law and the specialized information it is based upon. They shall also receive retraining concerning prior practices which have not worked to sufficiently protect children. GALs appointed to represent children where domestic violence and or child abuse is raised during the course of litigation shall receive specialized training and retraining. The trainings shall be presented by domestic violence advocates and/or other similar experts knowledgeable about the safety practices described herein and current scientific research such as described herein. The state shall provide additional funding to domestic violence agencies to train advocates to serve as domestic violence experts in court and to help train court professionals.

Findings:

1. Present Response to Domestic Violence Custody Cases Working Poorly for Children: Research based on the outcomes of domestic violence custody cases demonstrate frequent arrangements that place children at risk and standard practices shown to work poorly for children. Nationally, 58,000 children are sent for custody or unprotected visitation with dangerous abusers annually and in a two year period starting in 2009 fathers involved in contested custody cases murdered 175 children often with the unwitting assistance of the courts.

2. Large Majority of Contested Custody are Domestic Violence Cases: Many court professionals treat contested custody as “high conflict” but between 75-90% are actually domestic violence cases. This flawed practice results in courts pressuring victims to cooperate with their abusers instead of requiring abusers to stop their abuse. The most dangerous abusers, the ones who believe their partners have no right to leave have developed a particularly harmful tactic of seeking custody as a way to maintain control, pressure their partner to return or punish them for leaving. Court professionals, anxious to keep both parents in the children’s lives fail to consider motivation or ask why a parent who had minimal involvement with the children during the relationship suddenly demands custody in response to the separation. As a result there is a pattern of courts supporting abusers and punishing victims who continue to view their partner as unsafe. Contrary to a popular misconception, children do not need both parents equally. They need their primary attachment figure more than the other parent and the safe parent more than the abusive one.

3. Failure to Recognize Domestic Violence: Although a large majority of contested custody cases involve domestic violence, at least 70% result in custody or joint custody to the alleged abuser. One of the causes for this problem is flawed practices that make it hard for judges to recognize valid complaints about domestic violence. Court professionals often discredit valid allegations based on non-probative information such as a victim returning to the abuser, failing to follow-up on petition for protective order, lack of police or medical reports and observing children interact with the alleged abuser without showing fear (not realizing children know parent won’t hurt them in front of witness). At the same time court professionals fail to look for a pattern of coercive and controlling behaviors that in addition to physical abuse often include, verbal, emotional and psychological abuse, isolating tactics, economic abuse, monitoring behaviors, litigation abuse, past parenting behaviors and threatening or using custody as a tactic to pressure the partner to stay or punishing partner for leaving.

4. Court Response to Sexual Abuse Allegations Especially Problematic: By the time children reach the age of eighteen, one-third of the girls and one-seventh of the boys have been sexually abused. The stereotypical rapist or sexual abuser is a stranger, but 83% of these crimes are committed by someone the victim knows and for children this is often their father. Although children rarely make false allegations, 85% of sexual abuse allegations in custody cases result in custody to the alleged abuser. Sexual abuse of young children is extremely difficult to prove. Many instances of abuse leave no physical evidence and when there is evidence it often is no longer available by the time the child reveals the abuse. Many professionals particularly those who are not experts in child sexual abuse are reluctant to believe someone could commit such a heinous act particularly if they are successful in other parts of their lives. This stereotype also contributed to the Catholic Church sex scandal and the scandals at Penn State and Syracuse University. Many flawed practices have contributed to courts sending children to live with sexual predators and often punishing protective parents who try to protect their children.

5. Many Court Professionals Believe the Myth that Mothers Frequently Make Deliberately False Allegations of Abuse: A new U. S. Department of Justice study led by Dr. Daniel Saunders of the University of Michigan found that most evaluators and other court professionals have inadequate domestic violence training and those without needed training are more likely to believe this myth. Current scientific research establishes that deliberately false allegations by mothers in contested custody cases occur between one and two percent of the time. Nevertheless many court professionals continue to make recommendation based on this myth and this has been shown to work poorly for children. The use of this myth is an important factor in the widespread failure of custody courts to support valid allegations of domestic violence and child sexual abuse.

6. Gender Bias against Women Continues to be Widespread in the Court System: New Jersey was the first of over 40 states and many districts to create court-sponsored gender bias committees. They have found widespread bias against women particularly women litigants. Among the common examples are giving women less credibility, requiring a higher standard of proof and blaming women for the actions of their abusers. The use and tolerance of this bias is an important factor in keeping the myth that women frequently make false allegations alive. Judges and other professionals who engage in gender bias usually do so unconsciously, but there has been a lack of openness to hear this complaint and appellate courts are not reversing cases when this bias is in place.

Definitions:

1. Domestic Violence are a pattern of coercive and controlling tactics by one partner against another in an intimate partner relationship designed to maintain control over the partner and make the major decisions in the relationship. These tactics are intended to induce fear in the partner. Although abusers often use physical violence as one of the tactics, not all abusers engage in physical violence and most tactics are not physical and not illegal. Common tactics include verbal, emotional, psychological and economic abuse, isolating tactics, threats including threats to seek custody if the victim leaves, controlling behaviors, monitoring, litigation abuse and especially demands for custody or joint custody in order to pressure the partner to return or punish the partner for leaving.

2. Promoting safety of the children includes both preventing direct assault of the children and creating situations that have been shown to increase the likelihood the children will engage in harmful behaviors. Separating children from their primary attachment figure which has been shown to increase the risk of children to suffer depression, low self-esteem and commit suicide when older and witnessing domestic violence which has been shown to interfere with the ability of children to reach developmental milestones and increase the likelihood the children will engage in a wide range of harmful behaviors when older are common examples of situations that create a safety risk for children.

3. Domestic violence cases are cases in which there is an allegation of domestic violence or evidence or information that supports the possibility that one or both parties engaged in domestic violence tactics. The fact that no finding has been made should not be used to deny it is a domestic violence case because it requires domestic violence expertise to determine if the allegations are valid.

The Need to be Heard

Many protective mothers and their supporters are appropriately angry at the mistreatment they have received. I think I have some understanding of this feeling as I was similarly mistreated by the court system which suspended my law license in retaliation for exposing an abusive judge. Attacks on the offending court professionals, however justified, may feel good but do not help the cause of reforming the broken system. Those with the power to support reforms will not be convinced by such attacks. In other words, the name calling does not help our children.

The focus of my proposal is to make safety of children the first priority for custody and visitation decisions. I particularly like this formulation because it would be hard for legislators or judges to disagree that safety should be the first priority. Indeed their major objection might be their belief that it already is. In practice the ideological view that both parents should be treated the same (regardless of past parenting) has been given a much higher priority and implemented in a way that frequently separate children from their mothers who are usually their primary attachment figures. Focusing on safety reframes the discussion in many useful ways.

One of the best strategies for supporting protective mothers is focusing on the children. Abusers seek to frame mothers’ attempts at protecting their children as if it was only a reflection of her anger at him. In the infamous Shockome case the court treated statements by the mother that the children should eat healthy meals, dress appropriately for the weather and avoid adult oriented programming as if this was proof of alienation. It was considered an attack on the father who engaged in all these harmful parenting practices. A safety first requirement would make the mother’s concerns important because they concern the health and safety of the children while the father’s complaint had no safety component.

Most states have laws or case law that sets forth factors to be considered in determining custody. As protective mothers are usually focused on abuse cases it is worth remembering that most cases do not involve domestic violence or child abuse which is why they usually settle much more easily. Most of the factors are reasonable and would be appropriate to consider when no safety risks are involved. Every state has laws requiring the courts to consider domestic violence and the purpose was to safeguard the safety of children. Unfortunately few states specifically require safety to be the first priority and the standard flawed practices have emphasized less important issues and prevented court professionals from recognizing when children are at risk. In many ways this proposal would simply require what the legislatures thought they were creating when they passed their domestic violence laws.

What Considerations does Safety Include?

We frequently see unqualified court professionals deny or minimize domestic violence allegations because “he didn’t beat her bloody.” or assume there is no further risk because the parents are separated. These are just some of the common mistakes routinely made by custody courts that rely on professionals without domestic violence expertise. This law would more specifically define both domestic violence and safety so that practices based on this ignorance would be illegal.

The proposal defines safety to include not only direct physical assault, but also situations that have been shown to encourage children to engage in behaviors that undermine their safety. It specifically mentions separating children from their primary attachment figure which increases the risk of depression, low self-esteem and suicide as well as witnessing domestic violence which interferes with children’s developmental process and often leads to a wide variety of harmful behaviors when older. If the purpose is to protect children’s safety, these risks must be avoided.

The proposal also provides a more accurate definition of domestic violence which is important because so many court professionals don’t know how to recognize it. We specifically state that domestic violence is not limited to physical assaults, but rather includes a pattern of coercive and controlling behaviors. This would force courts to look at important examples of domestic violence such as emotional, psychological, and economic and litigation abuse. It also includes isolating and monitoring behaviors. The emphasis of patterns and the purpose to control and coerce are designed to stop practices in which the victim hits back in self-defense or frustration and unqualified professionals treat this as if it were domestic violence.

We often see unqualified court professionals try to frame issues to include safety despite no research to support this concern. Aside from the fact that alienation has become an abuser’s tactic to distract attention from more important issues, we certainly do not want to encourage alienating behaviors. Genuine alienating behavior, more commonly practiced by abusers is certainly harmful to children, but there is no research that it poses safety issues. In other words issues like domestic violence and primary attachment have a greater impact on children, but the courts have paid much more attention to alienation allegations than safety issues.

Recognizing primary attachment as a safety issue should create a fundamental and positive change in the courts’ response to custody cases. We often see courts minimize an important benefit for children because of the expectation mothers will provide most of the child care. In some cases courts unconsciously favor fathers in an attempt to balance the advantage mothers have by virtue of their stronger relationships with the children. Understanding how primary attachment impacts safety should result in different outcomes.

Abusers would have to explain to a court what unusual circumstances would justify increasing the child’s risk of depression, low self-esteem and suicide. Issues like financial security, alienation and even most of the mental health diagnoses we see from unqualified psychologists would not justify the risk. I would expect the extreme cases in which mothers are limited to supervised or no visitation because they continue to believe the fathers are abusive would receive close scrutiny because the courts would be required to emphasize safety concerns.

Even if a judge or other court professional wants to distort some research to treat alienation or other similar tactics as if it was a safety issue, the law specifically prevents it by giving examples of the kinds of common issues unqualified professionals have used to undermine children’s safety. Indeed evaluators and other professionals used by the courts for advice would be disqualified if they continue to use unscientific approaches.

Mandating Practices Supported by Current Scientific Research

The biggest obstacle to courts protecting children in domestic violence cases is their reliance on unqualified professionals together with unjustified confidence in their ability to understand abuse. In many cases the judge is only looking for a mental health degree, but even when domestic violence expertise is requested, the mental health professionals claim such expertise because there is no strict standard about what that means. The Safe Child Act would require very specific knowledge as a condition of participating in domestic violence cases and this expertise would be difficult for the usual suspects relied on by the courts to fake. Their reports would be expected to discuss these topics and the failure to do so would be a basis to discredit the report or for an appeals court to reverse a decision.

The mandatory expertise would include behaviors associated with higher risks of lethality or other dangers, domestic violence dynamics, recognizing domestic violence, effects of domestic violence on children and familiarity with batterer narratives. Genuine experts with this expertise can be relied on to recognize domestic violence and make recommendations that protect the safety of children.

The proposed legislation also requires the use of current scientific research to inform court decisions. This is important because unqualified evaluators often use their personal beliefs and biases and invalid theories instead of current research. The law specifically discusses the kinds of studies the legislature wants the courts to use in order to avoid bogus theories that are not based upon valid research. It specifically refers to research that unqualified professionals often rely on the myth that women frequently make false allegations.

Parental Alienation Syndrome is not mentioned by name, but the law would bar theories like PAS that have no scientific basis. Furthermore professionals who seek to use such bogus theories would be barred from participating in domestic violence cases. The recent rejection of the campaign to include PAS in the DSM IV because it has no scientific basis should make it easy for PAS to be rejected including when it is used by other names such as parental alienation or just alienation.

Child Sexual Abuse Cases

Allegations of child sexual abuse make people uncomfortable and court professionals often respond by using practices that undermine their ability to recognize and respond to valid allegations. In the findings the law specifically describes the problem of courts frequently giving custody to sexual predators and taking safe, protective mothers out of children’s lives at a time when the children most need them. The law is clear that one of the purposes is to reform the way custody courts respond to child sexual abuse allegations.

Several improved practices are specifically required. Any professionals relied on by the courts would be required to have experience and expertise in child sexual abuse. They would be required to take the time to develop a trusting relationship with the child before expecting her to reveal the abuse. Practices that treated the failure of prosecutors of child protective agencies to bring charges as proof the allegations were false would be outlawed. Courts would be forbidden to penalize parents for making good faith allegations of abuse. Courts would be required to consider common situations like boundary violations, evidence that is insufficient to determine if the allegations are true, and good faith allegations that turn out wrong. Accordingly courts would be discouraged from limiting their investigation to the possibility that the allegation is true or else assuming it is a deliberately false allegation.

The law would also take steps to prevent the blind reliance of mental health professionals who often do not have the needed expertise or worse have a bias against believing mothers’ allegations. All parties would have the right to present their own expert witnesses and the court would be required to evaluate the expert testimony based upon credentials and the value of the testimony rather than automatically give preference to the court-appointed expert. This is important as we often see courts refuse to hear domestic violence or other experts that could help the court understand the circumstances.

Retraining Judges and other Court Professionals

Contrary to appearances, judges receive training about domestic violence and other related issues. The problem is that some of the trainings are provided by unqualified professionals and when a good training is presented some judges, believing they already know everything, do not pay much attention. Most legal professionals have heard the often unqualified evaluators providing misinformation throughout their careers and so the wrong information can be so deeply ingrained they are not open to evidence based upon current scientific research that disputes what they have heard most of their careers.

I believe that by making substantial changes in the way domestic violence custody cases are considered it will encourage court professionals to hear the new information because that is what will be required to respond to cases from now on. The law also requires that the information be presented by genuine experts in domestic violence and be based on current scientific research. As discussed earlier, the law would require courts to consider specific types of information that are needed to assess the safety of children. Judges and other court professionals are unfamiliar with this information because they have been relying on mental health professionals who do not have the needed domestic violence expertise. Indeed this was the finding of the new U. S. Department of Justice study.

The language in the proposal refers not just to training but retraining. It says that the present practices and beliefs have not worked to protect children’s safety. In order to avoid being reversed, judges will have to have an understanding of the new safety practices and avoid the old flawed practices. Without active participation in the retraining programs, the judges’ mistakes would become obvious. This would create some accountability that has been sorely missing. In fairness, I do not believe most judges want to hurt children or even risk their safety. They just do not understand the enormous harm they have been causing.

The Importance of Findings

The proposed legislation includes extensive findings and I believe this is important because it essentially says that the present practices are working poorly for children. Lawyers representing protective mothers will be able to cite the findings in case abusers or judges seek to undermine the purpose of the reforms. The findings make it clear that the intent of the legislature is for courts to stop using practices that have proven so harmful to children.

The findings specifically challenge the widespread assumption by court professionals that contested custody are “high conflict” cases. Instead the law makes findings based on current research that most contested custody are really domestic violence cases in which an abuser is seeking custody to maintain control after his partner left him. This different understanding is critical because it encourages the use of accountability against abusers and to make him stop instead of pressuring his victim to cooperate with him. An attorney should have an easy time challenging the uses of flawed “high conflict” approaches because the legislature is telling the courts those approaches are harmful to children.

One of the big problems in domestic violence custody cases is that courts, using flawed practices and unqualified professionals fail to recognize valid complaints about domestic violence. This frequently results in punishment of the mother for trying to protect her children. The findings state specifically that the courts are frequently failing to recognize domestic violence because of the outdated and discredited practices they use. Attorneys should be able to challenge these practices more effectively by citing the findings by the legislature. The legislation also finds that unqualified professionals often rely on the myth that women frequently make false allegations of abuse. This leads to the rejection of many valid complaints without a fair hearing. The law also confirms the problem of widespread gender bias against women litigants and requires appellate courts to reverse decisions based on these biased approaches.

The legislation also finds that the courts’ response to sexual abuse allegations has been a disaster for children. Many of the common mistakes are discussed in the findings. The courts will have to change its practices as a result of the legislation and if the changes do not result in significant changes in the pattern of outcomes it would be clear the courts are not implementing the intent of the legislature. The child sexual abuse scandals at the Catholic Church, Penn State and Syracuse were allowed to continue longer because of the widespread assumption that men who are successful in other parts of their lives could not have committed such vile actions. This is the same mistake the custody courts keep making and the findings should force the courts to change this practice.

Correcting Existing Mistaken Outcomes

What do we do about the tens of thousands of heartbreaking cases in which custody courts have used their standard flawed practices to separate children from safe protective mothers who usually have been their primary attachment figure and sent them to live with dangerous abusers? Courts follow the doctrine of stare decisis in all cases, not just custody or domestic violence. This mean that once they make a decision, it is binding on both parties and cannot be relitigated. There are many good reasons for this practice as constantly retrying cases because one party is dissatisfied with the results would clog the courts and waste resources. We can be sure abusers would take full advantage if they were permitted to.

We often see cases in which the court considered allegations of domestic violence or child abuse, found against the mother and then refuse to consider new evidence that with the earlier evidence would prove the father is dangerous. The original decision might be because there was not sufficient evidence or the flawed practices prevented the court from using the evidence to understand the actual situation. The Safe Child Act would provide a solution and create the opportunity for many children to be rescued.

The law would say that the findings that custody courts are routinely using bad practices that result in its failure to recognize valid allegations of abuse. Accordingly the passage of the law and the findings and research it is based upon constitute a change of circumstance that would permit victims of the flawed practices to have a new hearing to determine if the custody-visitation arrangement should be changed based upon the improved practices required by the law and the research about children’s safety. Once courts make a mistake and send children to live with an abuser they often refuse to return the child to the safe parent based on continuity. Basically this means that children do better when their lives are not disrupted so there is a strong tendency to leave the child with the custodial parent (of course this does not seem to be an obstacle when they want to remove children from their mothers). Continuity is a valid consideration and reasonable to be included in the factors determining custody. It is not, however a safety issue so that proof of domestic violence, child abuse or primary attachment which are all safety issues would take precedence.

This means that courts could not refuse to provide a new hearing or consider evidence of domestic violence or child abuse despite prior denials of the allegations. In the new hearing the courts would have to use the new and improved practices mandated by the law. Hopefully this would discourage courts from continuing to send children to live with abusers because this would only make more work for the court. Most importantly, the law would give protective parents an opportunity to rescue children placed in danger by mistaken court decisions.

Additional Useful Benefits

One of the big problems in the custody court has been the reliance on unqualified mental health professionals. Courts originally turned to them based on the popular assumption that domestic violence was caused by substance abuse, mental illness or the actions of the victim. We now know that these assumptions were wrong, but the courts continue to treat a mental health degree as if it provided expertise in domestic violence. Interestingly, the new Department of Justice study found that recommendations from social workers and lawyers worked better for children than those made by psychologists and psychiatrists. This contradicts popular beliefs that a degree based on a longer course of study would provide more expertise. It appears psychologists and psychiatrists are less effective in domestic violence cases because they rely on psychological testing that is not useful in most cases and fail to use a holistic approach. The Safe Child Act would specifically state that graduate degrees should not be treated as proof of domestic violence expertise and the lack of such degrees should not be the basis for refusing to listen to testimony from domestic violence experts. Even the current law provides for qualifying experts based on training and experience, but many judges have failed to follow the law when disqualifying domestic violence experts who usually know more about domestic violence than the mental health professionals routinely relied on. The law would also discourage the use of mental health professionals in cases where there are no legitimate mental health issues.

The proposal would also mandate early evidentiary hearings in all cases in which there are allegations or evidence of domestic violence. The hearing would be limited to the issue of whether the abuse allegations are true. There would be no need to go to the time and expense of appointing a GAL or evaluator as the hearing would be limited to the factual issue of the validity of domestic violence allegations. If the allegations are true and the non-abusive parent is safe, she would receive custody and the abuser would be limited to supervised visitation. Instead of forcing victims to accommodate their abusers, the law would place the burden on the abuser to change his behavior and convince the court it would be safe for him to have unsupervised visitation. Any further abuse would end all visitation.

Conclusion

As I discussed last month in my article about legislative proposals, there are other ideas and provisions that could be added to the reforms and some of the ideas in this proposal could be removed if necessary to gain approval. I believe that as long as safety of children is effectively treated as the first priority, this will create the fundamental reforms necessary to alter the frequency of outcomes that place children in jeopardy. It is critical that safety be defined to include not only physical abuse, but also situations that place children at risk. Also critical is the definition of domestic violence both to help courts recognize the coercive and controlling behaviors abusers use and to avoid the mistakes where victims are accused of domestic violence if they strike out in self-defense or frustration.

The heart of the proposal is the requirement that professionals used to provide expertise and advice to the court are knowledgeable about the five subjects required for an understanding of domestic violence. These are:

1. Knowing what behaviors are associated with higher risk of lethality or injury.

2. Domestic violence dynamics

3. The effects of domestic violence on children.

4. Recognizing domestic violence

5. Batterer narratives.

With these provisions the courts can stop sending children to live with dangerous abusers. Instead of pressuring mothers to cooperate with their abusers they can be using their power and authority to require him to stop his abuse if he wants to have a relationship with the children. It is important for legislators and court professionals to understand that children do not need both parents equally. They need the safe parent more than the abusive one and their primary attachment figure more than their other parent. It is certainly high time the courts start making decisions that are truly based on what is really in the best interests of the children.

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 

Related articles

• Uncomfortable Truths About The Violence Against Women Act (themoderatevoice.com)
• Do You Care about Domestic Violence? (domesticviolenceantidote.wordpress.com)
• Legislation Needed to Help Protective Mothers (timesupblog.blogspot.com)

U. S. Department of Justice v. Custody Court System

photo courtesy of Family Court Crisis-Abusers Getting Custody!

By Barry Goldstein

Protective mothers have been complaining about mistreatment by the custody court system, but have routinely been dismissed as “disgruntled litigants.” As recently as the beginning of the Battered Mothers Custody Conferences in 2004, there was little professional support for protective mothers. The mothers’ complaints have now been confirmed and supported by the domestic violence community, many women’s organizations, numerous governmental agencies, many in the academic community and a substantial body of research such as contained in our book DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.

Last summer at the NCADV Conference, Dr. Daniel Saunders of the University of Michigan and some of his colleagues presented their findings from a major Department of Justice study that confirms the findings in our book and other research that the present custody court practices for domestic violence cases are deeply flawed. The publication of these findings has taken longer than expected as Dr. Saunders and the Justice Department seek to carefully present the information in a clear and accurate manner, but they should soon be available on the Department of Justice web site. Many of us who seek to reform the broken custody court system are excited about this study because it should be difficult for the courts to dismiss or ignore because of where it comes from. Significantly, the findings are incompatible with a continued belief that the present practices are working for the benefit of the children the courts are supposed to protect.

Custody Courts Frequently Disbelieve Valid Abuse Complaints

Custody courts have a particularly poor record in responding to domestic violence cases. The research demonstrates that court professionals reject a high percentage of valid complaints by protective mothers. This problem has been confirmed in many ways. It is confirmed based on the frequency of mistaken outcomes. Although battered mothers make deliberately false allegations only one or two percent of the time, in contested custody cases the alleged abuser wins custody or joint custody over seventy percent of the time. Subsequent events regularly confirm courts’ mistakes. This occurs when men found safe by the court professionals are later convicted or otherwise found to have to have committed domestic violence, sexual abuse, murder or other similar crimes.

The revelations of the Courageous Kids Network further demonstrate the frequency in which courts fail to recognize valid complaints of abuse. Courageous Kids are young adults who have aged out of their custody orders and decided to speak out about the harm caused by these orders. The context is important in understanding their stories. These are cases in which the court disbelieved the mothers’ abuse allegations and gave the fathers complete control. The children have been threatened, coerced and punished if they continue to complain about their father’s abuse or seek a relationship with their mother. In other words the fathers have had tremendous assistance in silencing the children. Accordingly the children now speaking out represent a small minority of those mistreated by fathers the court believed were safe. The descriptions by the Courageous Kids demonstrate the fathers deliberately sought to hurt the mother and children based upon their belief system that the mother had no right to leave them. The children have had little or no contact with their mothers often for many years so we know the mothers could not be influencing the children’s decision to speak out about the fathers’ abuse. These are all too common examples of cases in which the court professionals failed to believe valid allegations of abuse.

The research not only demonstrates the fact that the custody courts get a large majority of domestic violence cases wrong, but also that the standard practices used by court professionals are deeply flawed and make it difficult for judges to recognize legitimate complaints about domestic violence and child abuse.

Court professionals routinely discredit allegations of abuse based upon factors that are not probative. At the same time these professionals do not understand the importance of looking to the abusers’ patterns of controlling and coercive behavior in order to recognize domestic violence. The court professionals often make the mistake of considering each incident and each allegation separately. Genuine domestic violence experts understand the importance of context in recognizing domestic violence, but the mental health and other professionals relied on by the courts do not understand the importance of context and thus make it more difficult to recognize valid allegations of abuse.

One of the big obstacles to recognizing valid abuse complaints is the common use of mental health and other professionals without expertise in domestic violence. The main purpose of considering domestic violence in custody cases is to protect the safety of children. Nevertheless the evaluators relied on by custody courts rarely know how to conduct a safety assessment or what behaviors have been associated with higher lethality and other dangers. The evaluators do not understand domestic violence dynamics and often are unfamiliar with the effects of domestic violence on children or other information based upon the specialized body of scientific research that could be used to better understand domestic violence issues and recognize truthful allegations of abuse.

The new Department of Justice study helps explain why the evaluators and other professionals relied on by custody courts routinely fails to recognize domestic violence. The study found that most evaluators and other professionals relied on by the courts do not have adequate domestic violence training and those with inadequate training are more likely to believe in the myth that women frequently make false allegations of abuse to gain an advantage in litigation. The professionals who believe this myth, in turn are more likely to make recommendations that harm children. In other words judges have little chance to protect the children under their control as long as they rely on these unqualified professionals and tend to believe their deeply flawed analysis.

Judges often become defensive when protective mothers or their attorneys request that any evaluator or other court professional be required to have domestic violence expertise in order to be appointed. We have repeatedly seen judges refuse to listen to domestic violence experts offered on behalf of protective mothers. The courts often focus on the need for a mental health degree even though the academic training for most mental health professionals included no or virtually no domestic violence instruction and the law does not require advance degrees to qualify as an expert (a common example is a mechanic without a high school degree who can testify as an expert in automotive repair based on experience and training).

In recent years most court systems have encouraged and usually required some domestic violence training for court professionals. This is a good thing but has often been implemented in ways that undermine the purpose. Many of the trainings include substantial misinformation such as the belief most contested custody cases are “high conflict” when the research establishes a large majority are really domestic violence cases. Some of the trainings even include Parental Alienation Syndrome (sometimes by another name because of its deserved notoriety) even though it was recently again rejected for inclusion in the DSM-V because there is no scientific basis for it. Many of the trainings fail to include domestic violence advocates or other genuine experts in domestic violence.

We have also seen some really good programs used to train court professionals, but I have heard many trainers complain that some of the judges, evaluators and lawyers pay little attention to the valuable information presented. In one Queens County, New York case I cross-examined an experienced evaluator who went to a really excellent domestic violence training in order to qualify as a parent coordinator. They provided numerous excellent research studies that could have helped him recognize domestic violence and protect children. During my cross-examination it became clear he never read the research and was unfamiliar with the current scientific research he needed to understand the case. When I pressed him about the training he described it as “not a life changing experience.” This was a man who needed a life changing experience because he failed to recognize the obvious history of abuse by the father, demanded the mother cooperate with her abuser and when she continued to try to protect herself and her son, the unqualified evaluator recommended custody for the abusive father. The judge failed to discredit the evaluator based on his failure to read or consider the current scientific research provided at the training.

We need much more and better trainings for court professionals, but there is also the danger that attending trainings can give judges and other professionals a false sense of confidence in their understanding of domestic violence. The findings by Dr. Saunders and his colleagues that most court professionals have inadequate training in domestic violence confirms our concern that in most cases the professionals relied on by the court are not qualified to participate in a domestic violence case without the assistance of a genuine expert. Even if the judge has received good training the court is likely to be influenced by unqualified evaluators and other court professionals.

The failure to possess adequate training in domestic violence means that it will be difficult for these professionals to recognize and respond effectively to domestic violence, but the widespread belief in the myth that women frequently make false allegations of abuse is a bias that strongly undermines the cases of protective mothers. These mistakes result in frequent findings denying the mother’s abuse allegations which is exactly what the other research has found. If a professional believes the myth they will expect to see false allegations and without training in how to recognize domestic violence they have little chance to get these cases right and protect the children. Even worse, courts having found against the mothers because of the deeply flawed practices and biases are severely punishing mothers and children because the mothers continue to believe their true allegations despite the disbelief of the unqualified court professionals.

A few months ago, in this forum, I wrote an article about the extreme decisions we often see in domestic violence cases. These are decisions in which the alleged abuser receives custody and the mother who was the primary attachment figure is limited to supervised or no visitation. The primary attachment figure is the parent who provided most of the child care during the first couple of years of the child’s life. When children are separated from their primary attachment figure they are significantly more likely to suffer depression, low self-esteem and to commit suicide when older. It can never be right to separate children from their primary attachment figure unless she is unsafe such as a drug addict, someone who beats the kids or otherwise poses a danger. In most of these cases the father allowed or even demanded the mother provide child care until she decided to leave him. It should be obvious that her decision to leave a man she found to be abusive does not make the mother unsafe. Unqualified court professionals frequently limit the mother’s contact with her children based upon some version of alienation or pathologizing the mother based on psychological tests that were not made for the populations seen in custody cases. We know the diagnosis is not safety related because the mother functions fine in all other aspects of her life except interacting with her abuser and the court professionals supporting him. These are not safety issues so these extreme decisions can never be beneficial to the children.

The reliance on court professionals with inadequate training and belief in the myth takes place in the context of many other common mistakes discussed in earlier research. The courts cannot protect mothers and children in domestic violence cases if they cannot recognize domestic violence when it is present. The frequent decisions that harm children are confirmed by later findings and information, the extensive research court professionals routinely fail to consider and the new Department of Justice study and they provide multiple confirmations of the present inability of custody courts to recognize domestic violence and child abuse when it exists.

Misuse of Mothers’ Anger and Emotion

Let’s look at this issue from the mother’s perspective and in the context of her experience. These are domestic violence cases. The father usually has a long history of controlling and coercive behaviors and the mother has finally gained the courage and resources to leave her abuser in order to protect her children. She is fearful because of the many threats he made of what he would do if she left and knowledge that the most dangerous time for a woman is after she has left. She is angry at the way he has mistreated her and often the children. She may be worried about her ability to support and protect her children because her partner has been telling her how useless she is throughout their relationship.

Even if the father’s physical abuse ends when he no longer has access to the mother (which makes unqualified court professionals believe he is now safe), he continues his domestic violence through litigation abuse and often other ways. The abusers often use any contact provided by the court to seek reconciliation and/or to harass and attack her verbally or psychologically. Many women expect the courts to protect her children because the evidence is so overwhelming and instead find the court pressuring her to cooperate with her abuser and punishing her if she tries to protect her children from a man they have found to be hostile and dangerous. In other words she has good reason to be angry and emotional and in fact this would be a normal reaction to her experiences.

The research contained in our book and elsewhere supports this understanding and analysis. We discussed the common mistake of custody courts that treat the mother’s actions as a litigant as if they were an indication of her behavior as a parent. Over forty states and many judicial districts have created court sponsored gender bias committees. These committees have found widespread bias particularly against women litigants. One of the common examples of gender bias was blaming women for the actions of their abusers. One of the typical examples of this bias is when courts blame mothers for their anger and emotion caused by the father’s mistreatment of them and their children. In many cases the abusers deliberately harass or pressure them shortly before a court appearance is scheduled in order to obtain an emotional reaction the court is likely to misunderstand. Abusers tend to be extremely manipulative and so after their abuse that the judge does not see, come to court calm and cooperative. Court professionals are often fooled by this act.

The new Department of Justice study confirms what we said in our book and other similar research. Dr. Saunders found that court professionals frequently treat mothers’ anger and emotion as far more important than it actually is in terms of the well being of children. These professionals may be uncomfortable with the mothers’ emotions particularly if she criticizes their response to the father’s abuse. Clearly these are difficult and unpleasant issues to confront. The misinformation treating contested custody as if it were “high conflict” when it is actually domestic violence contributes to the misunderstanding of the mothers’ anger and emotion. The professionals are focused on forcing the parties to cooperate even though this is not the best approach for children. When the parties have difficulty cooperating and certainly in domestic violence cases, parallel parenting is a more effective approach for children. The problem, as demonstrated by the Saunders’ study is that these professionals are focused on their beliefs and preferences rather than research about what works best for children. The custody courts did not get into the practice of looking to current scientific research and particularly the specialized body of research about domestic violence because there was no such research when the initial court practices were developed. We now have substantial research that would help inform court decisions and avoid the frequent mistakes but court professionals rarely look to this research to help them make better decisions. This is why we rarely see custody courts weigh the benefits and harms to children of a proposed resolution. The Department of Justice study establishes that these flawed practices lead to decisions that hurt children.

Cottage Industry Supporting Abusive Fathers

We often hear complaints about corruption in the custody court system. This belief is supported by the many cases in which courts make findings that are far removed from a fair evaluation of the evidence and decisions that seem to be disconnected from the well being of the children involved. There are cases of outright corruption such as the Garson case in Brooklyn, New York, but more often, I believe courts create the appearance of corruption because of bias, ignorance and deeply flawed practices. One of my concerns with complaints about corruption is that it makes it harder for judges in the broken system to hear the complaints and create the reforms that are needed. An important contributing factor to the widespread belief in corruption is the cottage industry that has been created to support abusive fathers.

Most contested custody cases involve abusive fathers seeking custody as a tactic to pressure their victims to return or punish them for leaving. Domestic violence is all about control so these abusive fathers usually have controlled the family finances and have these resources to support their custody litigation. Some lawyers and mental health professionals have figured out that they can make a large income by supporting practices and approaches that support abusers. We often see them advertise as supporting “fathers’ rights.” In many cases we see fathers’ attorneys and GALs promoting the appointment of evaluators who support abusive fathers. It is particularly frustrating when judges refer to these professionals who regularly support abusers as “neutral professionals.”

Protective mothers often have no chance when these biased professionals are appointed regardless of how strong their cases may be. Many of the mothers have complained that the evaluators and GALs make misrepresentations to the court in order to justify findings in favor of the abusive fathers paying their fees. When such professionals lie to the court about the evidence or to justify fees they did not earn, the mothers are justified in complaints suggesting corruption.

Many of these biased professionals strongly support PAS despite a lack of scientific justification. Significantly, PAS is based upon the assumption that virtually every complaint by mothers about the father’s abuse is deliberately false. The Department of Justice study found a problem with inadequately trained professionals who believe the myth that women frequently make deliberately false allegations of abuse. The unqualified professionals supporting PAS are even worse assuming that virtually all such allegations are false. The courts have virtually no chance of making the right decision if they treat such biased professionals as having any credibility.

The Department of Justice study’s contribution to this issue is a finding that evaluators working for the court or the county made recommendations that worked better for children than those of evaluators in private practice. When Dr. Saunders described this finding at a workshop during the NCADV Conference I asked him if he thought the findings supported our concerns about the cottage industry that has developed to support abusive fathers. He agreed this was a good interpretation. Evaluators working for the court or county are not paid extra for each evaluation so they have no incentive to favor the wealthier parent.

Professionals often have fundamental conflicts of interest. Medical doctors who schedule tests or procedures will earn money from performing the services they recommend. Tests may be scheduled to shield the doctor from potential lawsuits rather than to benefit the patient. Lawyers who recommend going to trial, starting a lawsuit or making a motion will earn money when the client takes their advice. Similarly, mental health professionals benefit financially when patients accept recommendations for more services. The conflict of interest is largely unavoidable and the professionals are expected to have the integrity to act in their client’s best interests instead of their own. Unfortunately some of the evaluators and lawyers, particularly those supporting abusive fathers have not fulfilled this ethical obligation.

We have repeatedly seen problems in custody courts with mental health professionals and particularly ones sympathetic to abusive fathers making recommendations requiring protective mothers to use their unwanted and unneeded services. We see these biased professionals pathologizing mothers who have always taken good care of their children with diagnoses that are clearly wrong. This would include the frequent finding of rare conditions such as Munchausen Syndrome by Proxy, conditions like paranoia or delusional based on the mothers’ continued belief in the father’s abuse despite the failure of the court professionals to recognize his abuse and other emotional problems that magically seem to affect only her relationship with her abuser and the court. They seem oblivious to the fact that that she does fine in other parts of her life that under any unbiased circumstances would rule out the claimed diagnosis.

Some of these mistakes are clearly deliberate and qualify as corruption. Other cases may involve bias and ignorance and a lack of the needed qualifications as the Saunders’ study demonstrates. When the professionals who are part of the cottage industry engage in gender bias they usually do so without realizing it. Many actually believe in the theories and practices they use despite a lack of scientific basis. Some of this can be explained by confirmation bias where the professional focuses on information or accusations that support what the professional expects to find and ignores information that undermines their theories and assumptions. We see this kind of mistake frequently in domestic violence custody cases and the mental health professional is often unconscious that they are engaging in confirmation bias. In fact they are likely to become defensive and angry at the suggestion. The Department of Justice study demonstrates the harm of using professionals who are part of the cottage industry and the need for custody courts to screen court professionals to avoid relying on them. Even worse, courts often use these unqualified professionals to train other court professionals. This can only serve to spread misinformation which makes it harder for court officials to recognize the problems demonstrated by the Saunders’ study and other current scientific research.

Conclusion

The custody court system tends to look at each case and each issue or event in a case separately. This is based on a belief that just because a man slapped his wife on Monday does not mean he punched her on Friday. The court system uses stare decisis which means once a case or an issue has been decided the same parties cannot relitigate it. There are good reasons for these practices, but they work poorly in domestic violence cases because of the importance of context in understanding domestic violence. We often see cases where the court denies allegations of domestic violence and they may even have been right if there was insufficient evidence. Naturally the abuser continues his abusive behavior so more evidence becomes available, but many courts refuse to hear the new evidence or refuse to consider it in the context of the previous evidence because those issues were previously litigated. In doing this the court is denying itself the ability to recognize the pattern of the father’s abuse and protect the children. Domestic violence experts are confident that the custody court system is broken because we see the pattern of mistakes and harmful decisions, but the powers in the court system are offended at the criticism and cannot believe the problem because they refuse to look at the patterns.

The findings of the Department of Justice study, by itself, provides convincing documentation that the custody court system is getting a large majority of domestic violence custody cases wrong. It would be impossible for courts to get most cases right when most of the court professionals have inadequate domestic violence training, those with inadequate training tend to believe the myth that women frequently make false allegations, the courts are placing too much weight on mothers’ anger and emotion and the evaluators who earn additional money through appointment in custody cases are making decisions more harmful to children then those who do not have a financial incentive. This study was not made in a vacuum, but was produced in the context of a substantial and growing body of scientific research that establishes the custody courts are making bad decisions in contested custody cases that endanger children. The research also establishes that the standard practices used in the custody courts are deeply flawed and outdated.

I am hopeful that a study coming from the U. S. Department of Justice will be harder for the custody court system to ignore. They have a strong reputation and can only be considered neutral. Furthermore, the courts frequently seek grants and other funding from the Department of Justice. Protective mothers and their attorneys can cite this research and it should be harder for the courts to ignore. I can’t wait until it is published on the DOJ web site.

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

When The Law Fails You

By: Gaétane Borders, Ed.S 

Let me ask you a rhetorical question....How do you feel about the Casey Anthony verdict? To be honest, I have not met a person yet who isn't outraged by the findings, and the apparent slap on the hand of a mother, human, egg supplier who covered up the murder eh hem...accidental drowning of beautiful Caylee Anthony. Well let me share another story with you that may very well put you over the edge. Please make sure you're sitting down...sigh.

Weldon Marc Gilbert of Washington state is a wealthy commercial pilot acting as his own defense counsel, so he gets to personally review the evidence against him. Not such a big deal, right. But wait, there's more! Gilbert is accused of child rape and molestation and the "evidence" that he is allowed to view is the 100s of pornographic material seized from his home in 2007. Reports indicate that he lured children to his house. Once inside, he would get them drunk, tie them down and beat them, all with the camera rolling, detectives said.

According to ABC News, authorities found a stash of pornographic videotapes and DVDs depicting 250 scenes involving 40 individuals, including one of a boy who was 12 years old. Police also allegedly found a cassette tape on which Gilbert described his spanking fantasies in addition to a variety of sex toys, paddles, blindfolds, spanking devices and two handguns.

Apparently Gilbert will be put in a private room whenever he wants to watch the porn....to research. OUR legal system allows this obscenity! Imagine how the children and their parents must feel knowing that this pedophile gets to relive their rape and abuse as often as he wants. Sickening! The only rule is that he is not able to show the tapes to other inmates, and must have one person supervise him while he researches.

This travesty and the results of the Casey Anthony case are a blatant indication that we have to put pressure on lawmakers in order to protect our children. Because, clearly the laws that are in place are wishy washy, and reward the perpetrators instead of the victims. However, until these laws are changed we can also help our children from falling prey by teaching them critical safety skills.

1. Role play with your kids frequently in which you act out various scenarios where “tricky adults” attempt to lure them away. Have them take turn being both the adult and the child.

2. Come up with a password or phrase. Tell them that if a stranger says "Your mom said that you have to come with me," they should immediately ask "What's the password?" If the person knows it they can go. If they don't....they should NOT GO. Remember, for this to work...the password must be kept secret and shared upon your discretion.

3. In an emergency, a loud yell is one of the best things a child can do. Teach them to yell out "MOM, DAD", "STOP," "HELP", "THIS IS NOT MY DAD." A child calling attention to himself in public is a predator's worst nightmare. 4. Review your home address and phone number with children. All kids should know their parents' cell phone number. If necessary, you can write in on a slip of paper, and tuck it into their pocket. 

Gaetane Borders is the President of Peas In Their Pods