by Barry Goldstein
Many Republicans, including their leaders were shocked at the outcome of the recent elections. They had attacked pollsters who turned out to be accurate and never imagined their own information could be so wrong. This is exactly what happens when you limit yourself to information that comes from biased and unscientific sources. Significantly, the custody court system is headed for a similar shock. They have been relying for many years on the same small group of “experts” and thus far have failed to be open to reforms based on extensive scientific research that proves their standard practices frequently place children at risk.
Republicans and conservatives have been limiting their sources of information to Fox News, extreme talk radio shows like Rush Limbaugh and Glenn Beck, radical right wing blogs and columnists and similar unreliable sources. This has led to widespread belief in utter nonsense such as claims Obama was not born in the U.S., is a Muslim, the new health law has death panels, climate change is bogus, Saddam Hussein was responsible for the 9-11 terrorist attack and was building large stockpiles of weapons of mass destruction. Exit polls from Republican primaries found large numbers of voters who believed these lies. Our system of democracy and free speech is based on the belief that in the marketplace for ideas accurate information supported by research and reality will minimize these kinds of baseless beliefs. The problem is that large parts of the right wing community refuse to listen or pay attention to any sources of information that do not contain an extreme conservative bias.
The problems with the custody court response to domestic violence started when they adopted practices based on popular beliefs at a time when no research was available. This led courts to rely on mental health professionals who had little or no understanding, much less expertise about domestic violence issues. Although this was a new public issue neither the courts nor the mental health professionals made any attempts to determine how the recommendations and decisions were working for children. The evaluators had strong and misplaced confidence in their ability to understand what they thought were psychological issues and courts assumed their decisions were correct based on stare decisis. Over time the problem became worse because lawyers, some of whom later became judges spent their legal careers hearing misinformation from unqualified professionals. The problem was exacerbated by the development of a cottage industry of lawyers and psychologists who sought to represent “fathers’ rights” approaches because abusive fathers seeking custody as a tactic to maintain control have control of the family assets.
Other community organizations changed their practices as new research and information became available to inform the response to domestic violence. Police departments moved from a practice of separating the parties and having the abuser walk around the block to cool off, to a pro-arrest policy based on research that in 95% of domestic violence homicides by men, the police had been called to the home previously on average five times. In other words the standard practice was not working so it was changed. The custody courts however still have not sought to develop reforms based on the specialized body of domestic violence research that is now available. Many judges have refused to listen to domestic violence experts or else paid little attention to their testimony. Findings that custody courts get a large portion of domestic violence cases wrong which has resulted in thousands of children’s deaths and ruining hundreds of thousands of children’s lives have not resulted in the needed reforms. Some of the worst judges have been downright hostile to scientific research that undermines their beliefs and biases.
These widespread unscientific beliefs and practices have led court professionals to believe a lot of misinformation. This has included support for alienation theories that are based on the belief that sex between adults and children is acceptable. The recent U. S. Department of Justice study by Dr. Daniel Saunders found that evaluators, judges and lawyers without the specific training they need tended to believe the myth that women frequently make false allegations of abuse and that attempts by mothers to protect their children are actually harmful to the children. These mistaken beliefs regularly lead to outcomes that hurt children.
Senator Patrick Moynihan famously said that everyone is entitled to their own opinion but not their own facts. A lot of harm has been caused by practices used by extreme right wing conservatives and the court system. This article will examine several of the common misjudgments. There are overlaps such as the propaganda against climate change is based both on ideology and a failure to consider scientific research. So too is the use of Parental Alienation Syndrome which has harmed so many children. The outcomes of the recent elections that Republicans viewed as unfavorable have caused some talk of a need to consider other sources of information. They can give other causes for the devastation caused by recent catastrophic storms affected by global warning but cannot avoid the impact of losing the elections.
One would think the frequency that children are murdered by abusive fathers involved in contested custody cases would force the court system to reconsider its outdated and flawed practices. Professor Dianne Bartlow and her students interviewed many judges and other court officials to learn what reforms they are creating in response to the 175 children murdered by abusive fathers involved in contested custody in a recent two year period. This research was performed for a chapter in the second volume of Domestic Violence, Abuse and Child Custody. I think it is fair to say that the judges who agreed to participate are among the better judges. They took the time to be interviewed because they are interested in domestic violence and care about how it impacts children. While many were open to using new research, there was no indication the court system is seeking to create the significant reforms that are needed to better protect children. These judge frequently expressed incredulity that courts would send children to live with abusers. This is something that these judges would try hard to avoid, but they were often unaware of the extreme and harmful practices by many of their colleagues who are caught up in the echo chamber of misinformation and bias.
Hostility to Scientific Research
Perhaps the incident that best illustrates the Republican disdain for science is that they placed Todd Akin on the House Science Committee. He was the Republican Senate candidate in Missouri who claimed that women have ways to avoid pregnancy from a “legitimate rape.” He actually got this nonsense from a medical doctor involved in campaigns to deny women their right to an abortion. Obviously, abortion is a moral issue and reasonable people can have differing views, but using false and offensive information to support their views ought to be off base
The scientific evidence of global warming is now overwhelming. It can be measured by higher temperatures, melting ice and glaciers and rising sea levels. It seems we are facing storms of the century every couple of years. The problem is that reducing the harm of global warming would require adopting environmental regulations and practices that go against conservative ideology. In response industry lobbying groups and other ideologues have paid for “research” by scientists who are deniers to try to create the illusion that there is reason to disbelieve the findings of global warming caused by human activity. Those with a financial interest in preventing the needed responses publicize misinformation to undermine the findings about global warming. Those who receive all their information from unreliable right-wing sources hear only that global warming is unreal or unproven. The major storms we have witnessed are seen as exceptions. Issues around economics, environment and creationism are other examples of the hostility to current scientific research.
While many judges know PAS has no scientific basis, the lives of thousands of children have been destroyed by other judges who permitted arguments based on PAS. The theory was concocted by Richard Gardner, based not on any research but rather his personal experiences, beliefs and biases. I believe it is significant that PAS is often used to deny allegations of sexual abuse despite the fact that Gardner made many statements to the effect that sex between adults and children can be acceptable. Significantly, PAS is based on the assumption that virtually all allegations of abuse by mothers are false, but the actual research demonstrates that deliberately false complaints by mothers occur less than two percent of the time.
Another common example of courts failing to consider current scientific research concerns the widespread reliance on psychological tests that were not made for the populations seen in family court. Under the best of circumstances these tests are accurate only 55-65% of the time, but the circumstances during contested custody and particularly domestic violence are far from favorable making the tests substantially less reliable.
We now have substantial scientific research that confirms complaints by protective mothers that courts responding to domestic violence are getting a high percentage of custody cases wrong. Our book, Domestic Violence, Abuse and Child Custody was designed to make it easier for court professionals to benefit from the available research by putting it together in one resource from the leading experts in the U.S. and Canada. Although some judges have been open to this information, we have seen many cases in which court professionals seek to block this information from becoming part of the record because the research undermines the practices and findings in those courts. The release of the U.S. Department of Justice study by Dr. Daniel Saunders was more recent, but thus far the court system has not demonstrated an interest in embracing the findings that explain how the widespread lack of training by evaluators and other court professionals about specific domestic violence topics repeatedly place children in jeopardy. It is particularly disconcerting that many court professionals seem hostile to scientific research because it establishes the problems with present practices. Practices that pathologize safe, protective mothers, assume mothers frequently make false allegations, denial of gender bias and tolerance for the extreme results described in the Saunders’ study are other common examples of the court’s lack of acceptance of current scientific research.
Tolerance of Bullies and Retaliation
In many ways, the election really started with the attempt of Georgetown Law student Sandra Fluke to testify before Congress about Republican attempts to restrict the availability of contraceptive medicines. The Republicans on the committee refused to hear testimony from Ms. Fluke as they were uninterested in information that would undermine their position. She was able to testify before a committee convened by Democrats and made an important scientific point that some of the medications in question are commonly used for health purposes in addition to contraception.
Rush Limbaugh thought that Ms. Fluke’s decision to advocate for a position he disagreed with justified attacking her in the most personal and offensive manner including references to her sexual activities. Although some Republicans criticized his abusive behavior, most refused to fully condemn his unacceptable behavior because they were afraid of being attacked by the leading Republican bully. Mitt Romney, for example limited himself to saying he would not use that language.
Limbaugh’s use of personal attacks against people he disagrees with is not unusual, but what is especially offensive were attacks on someone who is not a public figure with the ability to respond to his attacks, and the use of the most sexist slurs in public that make all women less safe. Other conservative radio hosts use similar attacking approaches and this has led to primary challenges against conservatives viewed as not extreme enough. The tolerance of these tactics by party leaders serves to silence discussion of complex issues and discourage conservatives from considering scientific research that does not support the extreme positions taken by Limbaugh and his supporters.
By definition, custody courts responding to domestic violence are dealing with bullies and too often allow these abusers to continue or even use the courts to further their abuse. Even worse, we have seen judges viciously attack domestic violence survivors and retaliate when they continue to believe abuse allegations the court failed to recognize or punish victims for their criticism of the courts. Significantly, in attempting to punish women the courts are also punishing the children.
These extremely harmful practices are at work in cases that Dr. Saunders referenced as harmful outcomes. These are cases where safe, protective mothers who are the primary attachment figures lose custody to alleged abusers and are limited to supervised or no visitation. These outcomes are always wrong because the harm of separating children from their primary attachment figure, which includes depression, low self-esteem and suicide when older is far greater than any benefit the court believes it is providing. This establishes the court was using deeply flawed practices and frequently the outcome created by the court is based on failing to recognize true allegations of abuse is the exact opposite of the arrangement that would be in the best interests of children. The Saunders’ study found that in many of these cases the court professionals pathologized safe mothers, failed to give fair consideration to her abuse allegations or recognize the risk the alleged abuser presented.
A recent public example of a court making this mistake occurred in the Natalie Khawam case. Natalie is the twin sister of Jill Kelley whose complaints about harassing emails led to the revelation of the affair involving General Petraeus. The press revealed that General Petraeus and General Allen wrote letters to the judge in support of Ms. Khawam accurately telling the court what a wonderful mother she is. Some of the media quoted statements from the court’s findings claiming the mother was a liar who had made false allegations of abuse. The reporters never bothered to speak to any domestic violence experts which would have led them to learn that the court created the kind of extreme outcome Dr. Saunders found is always harmful to children. In practice these outcomes are created because the court used flawed practices and courts often create findings that are the opposite of reality. In the Khawam case they relied on an evaluator with a “fathers’ rights” bias who has victimized many other mothers. Although Natalie Khawam is a successful attorney and has done well in other parts of her life, she was pathologized by this evaluator. Dr. Saunders’ found this is a common mistake by evaluators with inadequate training. Significantly the court never provided a full opportunity to present the domestic violence evidence and then assumed she was lying because they did have the training to properly screen for domestic violence. Cases in which the mother is pathologized because she has trouble dealing with a father she views as abusive and a court unwilling to protect the child, in the context of adaptive responses in the rest of her life are generally wrong.
We are also concerned about the retaliation bad judges have engaged in against lawyers and other court professionals. In my case the judge and his colleagues were so hostile to battered women that a committee authorized by the county legislature found that many victims were unwilling to enter the courts because they so frequently helped abusers. This led to a series of domestic violence homicides and calls for reform. Despite the problems caused by one of the worst judges, my license was suspended in part because I made a motion seeking to recuse the judge and move the case out of Dutchess County. They were offended when I offered to help train court professionals in order to better protect children. We will see if the appellate court will correct their error based on the findings of the legislative committee and the US Dept. of Justice study both of which are incompatible with the court’s findings in support of their abusive colleague.
Failure to Hear the Other Side
It was not only the flawed polls constantly referenced in the conservative echo chamber that made the actual results so shocking. For at least four years President Obama was politically and personally attacked in the most vicious and inaccurate manner. The health care law was attacked as if it was some radical socialist measure far outside the mainstream and its provisions were falsified. In reality a liberal approach would have been a one-payer system. A more moderate alternative might have been the approach used but with competition from a government alternative to health insurance which would have pressured the insurance companies to limit costs and provide good service. Instead, the final outcome was based on proposals originally made by conservatives. Whatever the differences people had on the merits, the widespread notion that this was a radical proposal had no factual basis.
Throughout the last four years, letters to the editor, social media posts and even some parts of the media constantly attacked the President in the most personal and uncivil terms. Many of the baseless attacks suggested he was not a “real” American. This included unquestionably false claims that he was born outside the country and is a Muslim. In many cases code words were used to pander to racist tendencies. While it is reasonable for opponents to disagree with some of his policies, President Obama is unquestionably a good family man, who has avoided any valid hint of personal scandal, arguably saved the country from what easily could have been a depression and helped eliminate our number one enemy. Those in the echo chamber could not see these realities so never imagined he would be reelected.
The widespread failure of the custody court system to fairly consider all information about domestic violence cases might be summed up by one of the typical extreme cases that work so poorly for children. The evaluator pointed out that the judge, law guardian; evaluators, child protective caseworker and visitation supervisors all disagreed with the mother. The evaluator suggested the mother’s belief they were all wrong suggests there is something wrong with her mental health. In reality all of these professionals turned out not to have the specific training recommended by the Saunders’ report, used practices and beliefs that have been shown to harm children and created an outcome the Saunders’ study and other research demonstrates is always wrong.
When, New York State wanted to investigate its response to contested divorce they created a Matrimonial Commission. Although 90% of contested custody involves domestic violence, the committee was filled with members of the legal profession lacking the necessary domestic violence expertise. It would have made more sense for the commission to be co-sponsored with the New York State Office for the Prevention of Domestic Violence. This would have provided the commission with information and insight to make choices to better protect children. Instead we often see judges seek to keep information and testimony out of the record that would undermine the conclusions they intend to make. Judges are then shocked by research and criticisms that suggest the courts are doing a poor job protecting children.
Widespread Beliefs that are Clearly Wrong
In this section, I am not referencing differences in opinion. Someone could believe it is clearly wrong to permit an abortion or that it is clearly wrong for the government to tell a woman what she can do with her body. Instead I am speaking about factual issues for which there is no legitimate basis to dispute. When Todd Akin made his statement that victims of “legitimate rape” have a way to avoid pregnancy in the context of a discussion of whether there should be an exception to abortion restrictions for victims of rape and incest his statement was unquestionably wrong. While many Republicans rejected the false statement, there remained many others who continued to believe this misinformation.
The statements that President Obama was not born in the United States and that he is a Muslim are clearly false. Although some Republican and conservative leaders have denounced these lies, the conservative echo chamber and some Republican leaders continue to repeat the lies or treat it as a legitimate question. Significantly, many mostly Republican voters said they believed these false statements.
During the Bush administration, the echo chamber and many administration officials including the Vice President repeated lies that Hussein had weapons of mass destruction and played a role in targeting the United States in the 9-11 terrorist attack. These lies were used to rally support for the war in Iraq. Even after no weapons of mass destruction could be found, large numbers of voters continued to believe this misinformation.
Perhaps the most serious false claim in the custody courts is the widespread belief that women frequently make false complaints in order to gain an advantage in litigation. The statement could be phrased as an opinion, but there is solid research the deliberately false allegations by women are rare. The Bala study found the rate of false allegations by women to be 1.3%. There are other valid studies with somewhat variable numbers, but they all agree such deliberate false allegations are rare. Significantly, the Saunders’ study found that evaluators and other court professionals with inadequate training tended to believe mothers frequently made false allegations and this led to decisions that were harmful to children. Some of these beliefs are made in good faith by people who failed to recognize true allegations because of inadequate training, have trouble believing how often men abuse women or have repeatedly heard this misinformation. Other professionals and abuser groups deliberately repeat this misinformation in order to support their beliefs and promote business. Significantly alienation theories are based on the belief virtually all allegations of abuse by women are false. That is the equivalent of putting the lie on steroids and grossly distorts reality. Particularly disturbing were reports by Judge Deann Salcido, who was a judge in California, that during judicial trainings judges were advised to be skeptical of mother’s abuse allegations in the context of contested litigation. It is not surprising that many judges believe this misinformation. The Saunders’ study found that inadequately trained judges often believe this myth. This is one of the problems that are caused when judges receive training only from other judges or people without domestic violence expertise. Anyone who believes or acts on the basis of this myth should be disqualified from handling domestic violence cases.
We often hear evaluators and judges give custody or unprotected visitation to an abuser because he “only” hit her couple of times, has not assaulted her recently or he has not hurt her since they separated and no longer had physical access. These mistakes are usually not deliberate but it is based on misinformation that his abuse is caused by the relationship or something she did rather than his belief system. Court professionals who do not understand domestic violence dynamics frequently make this dangerous error. Men abuse women based on their belief that they are entitled to control their partner and a sense of entitlement to make the major decisions in the relationship. There is no reason to believe the end of the relationship will change his beliefs and in most contested custody cases the litigation and attempt to gain custody are continuations of his coercive tactics. Inevitably, if the abuser receives custody or unprotected visitation the children will witness him abusing future partners.
Many professionals, who should know better, believe domestic violence is caused by substance abuse and mental illness. Certainly men with substance abuse and mental illness problems commit domestic violence. These problems may undermine normal inhibitions so their abuse is more severe and memorable, but with rare exceptions would not cause men who would never otherwise consider acting abusively to engage in domestic violence. Court professionals may require or encourage men to obtain treatment for substance abuse and emotional problems. This is a good thing. The problem is when they believe this solves the domestic violence issues and fail to take additional actions to hold him accountable. These must be treated as separate problems and failure to respond to domestic violence makes it likely his abusive behaviors will continue.
In a speech, Sir Nicholas Wall, one of the leading British family judges said the worst thing for a child is for the mother to make negative statements about the father. I don’t mean to take this literally as I am sure he didn’t mean that killing or sexually assaulting the child is less harmful. Rather, his statement was based on popular misinformation that children need both parents equally. Children need their primary attachment figure more than the other parent and the safe parent more than the abusive one. Children also benefit from living with the parent with superior parenting skills. The judge’s statement is part of a pattern of treating alienation allegations as more important than it is to the well being of children. Certainly alienation and negative statements are harmful and should be avoided. Truthful, statements such as being honest about the father’s abuse is beneficial for children because it helps them understand that such behavior is not acceptable in our society. The problem is that abuser groups have used alienation theories as a common tactic to minimize abuse allegations. Court professionals routinely make statements about the harm of “alienation” that are not based on any valid research. This serves to take the court’s emphasis away from issues that are more important for children which is exactly the purpose of most alienation claims.
Reliance on Ideology over Practicality
At the start of the Clinton administration, the Democrats passed a tax increase in order to help balance the budget and restore the economy. Republicans opposed this because it is against their ideology to support tax increases. At the time, Senator Phil Graham and other Republican leaders predicted the decision would lead to a terrible recession and increase in the deficit. The actual results were very different as the economy became strong and we actually enjoyed budget surpluses by the end of the Clinton presidency. Certainly, economists and politicians can have a sincere difference about economic policy but there are times when more revenue is needed. Appeals to ideology that ignore history undermines the ability of leaders to make the compromises necessary to keep the economy running strong.
The refusal to support measures designed to avoid the most harmful effects of global warming have similarly been thwarted by ideology. The easing of financial regulations led to many of the bankruptcies that helped devastate the economy. Again this was based on the ideology against regulation although in fairness many Democrats joined in this mistake. Another example of ideology trumping pragmatism is the use of money for abstinence programs in schools instead of sex education. Interestingly many people anxious to spend money they believe will discourage children from having sex with other children have been unwilling to promote the kind of reforms that would prevent courts from sending children to live with adult sexual predators.
The standard for awarding custody and visitation is the best interests of the children. One of the problems with this standard is that it has encouraged a very subjective view of what is best for children. If these decisions had been divorced from ideology, the first priority would have been the safety of children. Any other consideration pales in comparison to keeping children safe. This would mean that courts would be focused not only on preventing direct abuse or neglect that create an immediate risk of harm, but also arrangements that make It more likely the children will place themselves in danger. This would include concerns about separating children from their primary attachment figures or exposing children to parents who have committed domestic violence.
Instead of focusing on issues that impact children’s safety, the courts regularly focus on less important considerations based on ideology and in doing so often increase the risk to children. Many courts have created a prime focus regarding “high conflict” issues. Although 90% of contested custody involve domestic violence abusers seeking custody to maintain control, many court professionals have been taught to treat these as “high conflict” cases. This means that they treat the abusers’ coercive tactics and the victim’s survival and protective response as mutual problems. The expectation of finding mutual issues, and lack of training in risk assessment and screening for domestic violence, lead to frequent failures of courts to recognize valid allegations of abuse. Protective mothers are routinely pressured to cooperate with their abusers and severely punished for continuing to believe he is dangerous. The same courts fail to pressure the fathers to stop their abuse which would be the best solution for the children. Widespread beliefs that view contested disputes as mutual and the desire to treat both parents equally (regardless of past parenting) help abusers and harm children.
Understanding the ideology in family courts that is biased in favor of fathers can be difficult to understand because it occurs in three different ways. Much of the bias is unintended and occurs without the participants realizing they are doing it. There have been 40 states with court-sponsored gender bias committees and many other judicial districts. They have all shown widespread bias against women and particularly women litigants. Most commonly, mothers are faced with higher standards of proof, given less credibility and blamed for the actions of their abuser. This occurs when court professionals focus on the mothers’ normal response to the fathers’ abuse such as trying to protect the children from him instead of forcing him to stop. Instead of taking aggressive action to prevent gender bias, most courts have ignored the problem and often retaliate against anyone who points out a biased response. This discourages reports of bias and thus makes it harder for judges to avoid these mistakes.
Many judges recognize that mothers have closer relationships with their children because they have been more involved in their care, but believe it is important for children to have their fathers in their lives, and so bend over backwards to favor fathers. This is generally done in good faith thinking this benefits the children. The problem is that a large majority of contested custody are abusive fathers whose involvement as abusers is not beneficial to the children. The favoritism only supports their sense of entitlement and makes it less likely they will make the changes necessary to become good fathers.
Even worse is the cottage industry of evaluators and lawyers who understand that in contested custody cases it is the abusive father that controls most of the family resources. Accordingly the best way to earn large incomes is to develop practices to support abusers. We often see these professionals advertise as “fathers’ rights” advocates, but when the court appoints them as GALs or evaluators they are treated as if they were neutral professionals. When these charlatans are appointed, children and protective mothers have little chance of obtaining a safe outcome. Most judges are trying to do the right thing by children, but there are judges who support a “fathers’ rights” ideology and sense of entitlement. These are the judges who create the most harmful outcomes of custody for the abuser and supervised or no visitation for the safe, protective mother. These are the cases the Saunders’ study found are always harmful to children.
We constantly see cases in which abusive fathers use alienation and friendly parent claims to obtain custody from the protective mother who has been the primary attachment figure. Court professionals confidently predict that the father will promote the relationship between the mother and children, but as soon as he gains control denies her visitation and ultimately destroys the relationship. This is exactly what abusive fathers would be expected to do. They only sought custody as a way to punish her for leaving or complaining about his abuse. This interference with the mother’s relationship should confirm the mother’s concerns were accurate, but courts that are quick to threaten and punish mothers for trying to protect children from dangerous abusers do little or nothing when the mother’s relationship is interfered with. These are exactly the patterns that would help the court system see the problems with their response if only they could be open to the fact that they have a problem with their response to domestic violence cases.
False Sense of Equivalence
Early in the recent political campaign, two respected and objective journalists, Thomas E. Mann and Norman J. Ornstein wrote an important article that demonstrated the two parties are not equally responsible for the gridlock and other problems, but the media often blindly feels the need to criticize them equally in order to be seen as fair. In reality, Mann and Ornstein wrote, “The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.” This does not mean the Democrats are pure but the level of deliberate deceit and obstruction is much greater on the Republican side. The failure of most journalists to differentiate their approaches has only encouraged practices that poison the process.
When President Lyndon Johnson signed the civil rights law he said it would cost the Democrats any chance to win the southern states for a generation. Richard Nixon led the Republicans in taking advantage of racism for political gain. In the old days this could be done in blatant obvious ways, but now it is done more subtly. The lies about Obama not being born in the U.S. or being a Muslim are deliberately designed to emphasize the differences and encourage racist voting. The Romney campaign accused Obama of undermining the welfare reform law. This was blatantly false as what he did was to allow plans created by Republican governors to be tried. This was Romney’s subtle way of raising racial issues as was his “joke” referencing where he was born. Many people expressed deep offense at the suggestions that they supported Republicans because of racism. There were certainly non-racial reasons to support Republicans, but many people voted against Obama out of racism and many of their extreme statements confirmed this. The attempts to suppress voter turnout through voter ID laws was particularly reprehensible. There was no fraud problem and some of the Republican leaders even acknowledged the purpose was to help Romney win. It is hard to think of anything more un-American than seeking to prevent eligible voters from casting their ballot.
The debate over the health insurance law was particularly offensive. There is room for valid disagreements, but the conservative plan ultimately adopted could not justify the extreme attacks that took place. So often the complaints were completely divorced from reality. At one point Romney claimed that repeal of the law would not kill anyone despite neutral research that confirmed tens of thousands of people would die because of a lack of health insurance. Romney’s misleading point was that emergency rooms would care for someone in an emergency (albeit at far greater cost). The problem is the lack of early screening and treatment often made later treatment too late. We had a tragic example of this when we lost our dear friend Susan Murphy-Milano.
I have had the opportunity recently through interviews as part of research for upcoming books to hear the views of judges responding to custody cases. As with the Saunders’ study, the judges who agreed to take the time to speak about domestic violence issues tend to be the best and most caring judges so are not necessarily typical of the judges seen by protective mothers. These judges often spoke about excruciating choices where they believed (probably with cause) that both parents had significant limitations. Some expressed the belief this was a circumstance where giving custody to the abusive father was the lesser of evils. Many expressed the desire to help the mother recover custody. Clearly these are not the usual cases we see constantly.
It is important to recognize that custody judges see a much wider variety of cases than domestic violence advocates. Most cases are settled more or less amicably and judges need to encourage settlements or the system would collapse. Even cases involving domestic violence often are settled. The fathers still love their children and are not willing to deliberately harm them (obviously their abuse harms the children) by separating them from their mothers. These cases are often settled by mothers giving up needed support and resources in return for custody.
The biggest problem is the approximately 3.8% of cases that cannot be settled and will continue to trial and often far beyond that. Most of these cases cannot settle because they involve abusive fathers who are using the custody tactic to regain control over their victims after she left him and/or complained about his abuse. In many of these cases he has threatened to take the kids if she dared to leave him. It is important to understand that these cases involve the most dangerous abusers. These are men who believe she has no right to leave him. Nevertheless, it is often difficult for inadequately trained court professionals to recognize the danger he creates. These abusers are good at manipulation, often appear cooperative to outsiders and are successful in other parts of their lives. Many of these cases do not involve the kind of frequent or severe forms of physical assaults that unqualified professionals often associate with “real” domestic violence.
Nevertheless, these are the fathers who create the greatest risk to children and mothers. The belief that the mother has no right to leave is why 75% of women murdered by their heterosexual partners are killed after she left. It is why in a recent two year period, abusive fathers involved in contested custody killed 175 of their children. More commonly they seek to regain control through use of the custody process. They often come off as cooperative and promise to promote the relationship with the mother, but once they obtain control seek to destroy the relationship between the mother and children. In most of these cases the mother is the primary attachment figure which adds to the harm caused of separating children from their mothers.
Domestic violence experts agree that the arrangement that works best for children in domestic violence cases is custody for the safe parent and at least initially supervised visitation for the abuser. The Saunders’ study found that courts do not require supervised visitation as often as they should. Part of the problem is that the arrangement that works best for children is not something an abuser will agree to. Indeed anything short of a form of shared parenting, which is never appropriate in a domestic violence case, is unlikely to produce a settlement. In most cases even if the abuser does not win custody, he is likely to receive unsupervised visitation so he has no incentive to compromise. As a result we constantly see courts using their authority to pressure mothers to cooperate with their abusers instead of taking steps to make him stop his abuse. Standard abuser legal tactics include substantial litigation designed to bankrupt the mother. Courts rarely look to litigation abuse as a continuation of his pattern of coercive and controlling behavior or require him to pay some of her expenses in order to level the playing field.
Many factors in these cases lead court professionals to treat abusive fathers and their victims as if they were roughly equally responsible for the problems in the family and the inability to resolve custody and related issues. The inadequate domestic violence training leads professionals to disbelieve valid abuse complaints and minimize the very real dangers. “High conflict” approaches and desire to promote settlement encourage judges and others to treat the parties equally. The widespread belief that children need both parents (regardless of the past history of parenting and abuse) further supports the false equivalency. On some level judges think fairness requires the court to treat the parties the same. The reality, however, is that 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. Approaches that treat unequal parents the same are not in the best interests on children. Even worse, when an abused mother continues to distrust the father, court professionals often punish her in ways that harm children.
Conclusion
In this article, I have been critical of the GOP and the nation’s custody courts, not because I want them to fail, but because they have an important role to play. They cannot benefit the community if they continually act based on obvious misinformation and false claims. At least some part of the harm caused by this delusional approach became clear to Republicans when they badly lost an election they confidently believed they would win. They could continue to deny the role of global warning despite the ever more frequent catastrophes like Katrina and Sandy, but cannot pretend they are going to inaugurate Mitt Romney as the next president. We knew that living in an echo chamber did not benefit the country and it turns out it is also harmful to the electoral position of Republicans and conservatives.
The pretend world often occupied by court professionals is probably a lot less deliberate on the part of court professionals than Republican politicians. They started receiving misinformation from mental health professionals who never understood domestic violence at a time when no research was available. The problem has been that once research became available the courts have been extremely defensive in responding to criticism. On many occasions the worst judges have responded to criticisms with retaliation against protective mothers and the rare professional who supports them. The common practice of courts deferring to the trial judge has prevented accountability regarding the most harmful decisions. This is one reason the most common question I receive is how to find a good attorney to help protective mothers. Many attorneys are afraid to present evidence of domestic violence that they believe the judge does not want to hear. This is a disaster for the court system because it means judges never have a chance to hear the information they need to make good decisions.
Inevitably the bad practices lead to avoidable catastrophes. In the numerous cases in which bad court decisions lead to the murder of children and mothers, the courts have largely treated the tragedy as an exception and made little effort to see the pattern of these tragic outcomes. In Dutchess County, New York, a custody court system that strongly favored abusive fathers and often seemed like a pretend world to battered mothers contributed to a series of domestic violence homicides. The county legislature asked a committee of law enforcement, social service, legal and domestic violence professionals to investigate the county’s response to domestic violence. The committee found that many battered women stopped going to court to seek protection because they found the courts were siding with their abusers and making their situation even more dangerous. What can be worse for the effectiveness and reputation of the courts than victims refusing to seek court intervention? These decisions were not made as some sort of attack on the courts but rather an intelligent attempt to make the least harmful decision about their very survival. I believe it is long past time for custody courts to take a fresh look at its response to domestic violence that is informed by the specialized body of research that is now available. They will learn as the Saunders’ study found that they need expertise in specific topics like screening for domestic violence, risk assessment, post-separation violence and the effects of domestic violence on children. The experts on these and other critical topics are not psychologists, but domestic violence experts. This is another reason why the multi-disciplinary approach we used in Domestic Violence, Abuse and Child Custody is so important for a realistic understanding of these cases.
