By Barry Goldstein
As I write this article, I am expecting to meet shortly with a prominent state legislator. I hope and believe some of my readers would want to speak with their legislators to discuss what the legislature can do to better protect battered mothers and their children. More than anything we need a change of attitudes and atmosphere in the custody courts, but perhaps some positive legislative changes can help improve the atmosphere in the custody courts.
First Priority Must be Safety
Every legislature has passed laws requiring courts to consider domestic violence when making decisions about custody and visitation. Clearly the main purpose is in order to protect children’s safety. The concept of safety includes more than just preventing the direct assault on a child, but also placing children under conditions that make it more likely they will engage in harmful behaviors. We know this because many of the laws were passed based upon research about the harm caused to children by witnessing domestic violence. Almost all of the states use the best interests of the child standard and most have legislation or case law that discusses the criteria to be considered in determining what is in the best interests of the children. One of the major problems with this approach is that the lists do not set forth what issues should be given priority and we routinely see court professionals focus on issues that are far less important than the safety of children. Accordingly, I believe we need legislation that states clearly and unequivocally that courts must make the safety of children the highest priority in making decisions about custody and visitation. I believe most judges and other court professionals, if pressed, would claim this is already their priority, but the decisions and standard approaches demonstrate the frequency in which less important issues are used to make these decisions while safety issues are minimized or overlooked.
If safety was the first priority, courts would need a risk assessment rather than the present practice of ordering a more general evaluation. The evaluators rarely have expertise about the risks caused by domestic violence (or child abuse) and so focus on issues they are more comfortable handling. We have seen research in which evaluators claim that safety and domestic violence are their primary focus, but in practice, based on their evaluations, the issue of “alienation” is their most important concern. No one believes alienation is a good thing, but there is no valid research that demonstrates a safety risk connected to alienation. The issue is particularly problematic because it is often used as a generalized complaint that does not give the alleged alienator information about what she specifically is charged with doing. In reality alienation is a standard abuser tactic designed to distract attention from the father’s abuse and works well for this purpose. When a parent makes false and negative statements to children about the other parent the most likely result is to harm the relationship with the parent making these false statements. Even when the alienating behavior undermines the relationship with the opposite parent, the effects tend to be temporary. If legislatures make safety the first priority, court professionals (if they followed the law) would have to resolve the safety issue before ever considering “alienation.” This would blunt the use of alienation as a tactic because it could not be considered in cases where granting custody or visitation to one of the parents would create a safety risk.
If the safety of children was the first priority, court professionals would have to consider five major areas of research and information that are needed to protect children’s safety regarding domestic violence. These professionals would either have to possess this information or rely on genuine experts with this specific information. This would make a big difference because it takes it away from a generalized need for expertise in domestic violence which is capable of many different interpretations that has allowed evaluators and other unqualified professionals to wrongly claim they have the needed expertise. Here is the minimum expertise that would be required of professionals advising the court in domestic violence custody cases and would have to be discussed in any report or testimony.
1. Knowledge of Behaviors Known to Reveal an Increased Danger of Lethality or other Safety Risk: We can never know which abusers will kill or seriously injure their partners, but there are behaviors that have been shown to demonstrate a higher risk. These behaviors would include sexually abusing their partners, putting his hands around her throat, hurting animals, hitting her while pregnant, violating laws or orders, threats of homicide, suicide or kidnapping, a belief that she has no right to leave him and seeking custody as a tactic to pressure her to return or punish her for leaving. Domestic violence advocates are familiar with this research because a fundamental part of their job is risk assessment and creating a safety plan. The “experts” the custody courts rely on rarely possess this information and we virtually never see evaluators discuss these issues in their reports or testimony. If they cannot tell what to look for to determine the danger someone presents, they cannot effectively protect children from genuine danger.
2. Understanding Domestic Violence Dynamics: Men abuse the women they are partnered with because of their sense of entitlement to control their partners and make the major decisions in the relationship. In other words domestic violence are tactics men use to maintain the control they believe they are entitled to. When court professionals place the blame for a father’s abuse on substance abuse, inability to control their anger, mental illness or the actions of his victim they are demonstrating a lack of understanding of domestic violence dynamics. This is the same mistake they make when they assume that the end of the relationship or the fact he has not assaulted her since he no longer had physical access means he has magically reformed his behavior. Many abusers only hit their partners once or twice because once she knows what he is capable of just a threat or gesture is sufficient to maintain control. Unqualified professionals do not understand this. Since his abuse is based on his belief system it would be important to investigate how he treated earlier partners and to understand the risk of children witnessing his abuse of future partners if he is given custody or unsupervised visitation.
3. Recognizing Domestic Violence: Unqualified professionals often discredit allegations of domestic violence based on information that is not probative. Common examples of this are when women return to their abuser, seek a protective order but do not follow-up, fail to provide police or medical reports or when the children show no fear in interacting with their father while the professional is observing. The children understand he would not hurt them in front of a witness. All of these are normal events, but when inadequately trained professionals treat them as disproving domestic violence allegations it prevents them from recognizing his abuse. At the same time these unqualified professionals usually fail to look for patterns of controlling and coercive behaviors beyond his physical abuse. Among the common examples they miss are psychological abuse, emotional abuse, economic abuse, isolating tactics, monitoring activities and litigation abuse. We often see cases that unqualified professionals view as a he-said-she-said dilemma, but if they looked at the pattern of his behavior it would be easy to recognize his history of abuse.
4. The Effects of Domestic Violence on Children: Unqualified professionals do not understand the extent of the harm caused by domestic violence so they minimize its significance and place children at risk. This is a safety issue because children who witness domestic violence are more likely to engage in a wide range of harmful behaviors that can kill them or ruin their lives. Witnessing domestic violence also interferes with their developmental milestones that can undermine their progress, ruin their lives and in young children hardwire their brains in harmful ways. Unqualified professionals often focus on the harm to the direct victim and so fail to consider the importance of this issue to the well being of children.
5. Knowledge of Research about Batterer Narratives: We have a substantial amount of research about batterer narratives. It demonstrates the kinds of stories, justifications, minimizations and beliefs that they use in discussing their abuse. This is important because abusers tend to be extremely effective at manipulating people including professionals. Professionals who are confident in their ability to tell if someone is lying just by watching them are especially vulnerable to this manipulation. We repeatedly hear court professionals explain why they believe the denials or justifications of alleged abusers and these are just typical explanations that would confirm the allegations if only the professionals had the information they need. We can inform these professionals that batterers are great manipulators, but the information from their narratives is far more effective in getting the message across.
Primary attachment is an important issue that affects children’s safety but tends to get minimized because mothers are expected to provide child care. The parent who provides most of the child care in the first two years of the child’s life is the primary attachment figure. Separating children from their primary attachment figure increases their risk of depression, low self-esteem and suicide when older. It does not make sense for courts to take such significant risks unless the primary attachment figure is unsafe. Most court professionals are aware that children benefit from living with their primary attachment figure, but tend to minimize its significance in the context of more controversial issues that are raised in contested custody cases. In a system where safety is the first priority, judges and other court professionals would need to articulate how other factors are so critical as to take this risk with children’s safety.
There are other valid safety issues and courts need to consider them in context and based upon the overall safety of children. Obviously if a parent is beating or sexually abusing a child, that is a paramount safety issue. If a parent is selling drugs this creates a safety risk because the children could be exposed to dangerous characters. Substance abuse may be a safety issue. We should be careful to consider that some victims self medicate themselves as a response to his abuse. Certainly we want this behavior to stop, but past usage, particularly in that context should not be disqualifying. Driving while under the influence or otherwise mistreating the children as a result of substance abuse would be a safety issue.
Mental illness could be a safety issue, but it is important for courts to look further than the diagnosis. Many of the claims of mental illness are based on flawed evaluations and particularly psychological tests that were not meant for the populations seen in custody court. They often pick up minor differences that do not reflect a safety issue. We also see unqualified professionals fail to recognize his domestic violence and then label the mother paranoid or delusional. There are also many valid diagnoses that do not impact on the care of the children. Court professionals need to be careful to avoid acting on a diagnosis that is really only a family court condition. If someone has a genuine illness, it will impact them in all areas of their lives and not just their response to their partner’s abuse and the pressures of litigating a contested custody case. Judges should ask themselves how is she acting in the rest of her life and has the alleged illness impacted her care of the children. Certainly a father who has permitted or even demanded his partner take care of the children throughout the relationship should be asked to explain how her decision to leave him and report his mistreatment of her or the children suddenly makes her a bad mother.
I like the idea of seeking legislation to make safety the first priority because it is so reasonable and hard to argue that anything else should have a higher priority. This would be a significant change and thus should require new training for court professionals. Most judges and other court professionals need not only training which most have available, but retraining because so much of the information they have received is wrong. Many trainers have complained that judges and other professionals don’t pay a lot of attention to domestic violence trainings because they think they already know everything. The creation of new practices and priorities should make them more open to hearing this information. I also believe that if courts focused on children’s safety first the outcomes would be significantly improved.
Whenever groups of advocates and supporters of protective mothers come together to discuss reform of the broken custody court system, one of the first suggestions is that we find a way to hold judges and other court professionals accountable. In the case of judges most of the likely ways to promote accountability have been foreclosed by law or practice. The judges have immunity from most lawsuits. There are committees to review judicial conduct but they are usually underfinanced and are usually controlled by people in the legal profession who have an interest in supporting judges. The appellate courts could perform an accountability function but they have generally been deferential to trial judges especially in domestic violence cases. The media has also failed to uphold its obligation to scrutinize the work of the courts.
I have heard many protective mothers advocate for the ability to sue judges and I understand their frustration as many judges have acted in vindictive and unethical ways that have placed the safety of children in jeopardy. Nevertheless, there are good reasons that judges have immunity as they have to be able to make what they believe is the right decision without concern about their personal risks. In practice abusive fathers would be more likely to sue judges so the elimination of immunity could easily backfire. It might be possible to remove immunity under very limited circumstances such as outright corruption, but suing judges cannot be the solution.
State committees designed to review complaints about judges could be reformed to hold judges accountable. In order to do this, the committee would have to be funded sufficiently so that complaints can be fully investigated. Committee members should have strict rules to recuse themselves if they have a conflict of interest. Of great importance would be to create more balance on these committees to include the public, consumers and others who are not part of the legal establishment.
Even more effective would be to keep records of the decisions made by judges and other court professionals like evaluators. Instead of focusing on an individual case that might have unusual circumstances, the records would demonstrate the patterns of decisions made in domestic violence cases. The records would provide information about how often judges rule against mothers making allegations of domestic violence or child abuse. We know that mothers involved in contested custody make deliberately false complaints only one or two percent of the time so if judges (or evaluators) are making findings for alleged abusers significantly more often it is likely they have a bias or lack of understanding of current scientific research. I would also require judges and evaluators who rule against these allegations to explain their reasoning in writing. It is not just that we would know who the bad professionals are, but I believe these requirements would discourage courts from making some of these bad decisions because they would know the information would be available to the public.
I have seen many cases in which courts impose gag orders ostensibly to protect the children, but in reality to shield the court’s improper and harmful actions from the public.. There are rare circumstances where a limited gag order might be appropriate particularly around a child’s testimony in a sexual abuse case, but the indiscriminate use of gag orders should be prohibited by legislation. Under no circumstances should parties be denied the right to speak about their situation with clergy, therapists, dv advocates, child protective agencies, law enforcement or legislators. The parties should be permitted to speak with the media. In rare circumstances they could be prevented from using their names or the children’s pictures. Any gag order must only be made after a hearing in which all parties are given an opportunity to express their concerns, the order must be in writing and explain the unusual circumstances that justify the intrusion on free speech and must be crafted to make the order as limited as possible. Public records should be kept showing the frequency with which judges create gag orders.
Making it Easier for Victims to Leave Abusers
In my research about the Quincy Model, I discovered that an important part of the program that helped reduce domestic violence crime and particularly homicide were practices that made it easier for victims to leave their abusers. There is plenty of other research that demonstrates the importance of making it easier for women to leave abusive partners.
When the modern movement to end domestic violence started many of the reforms and approaches made it easier for women to leave. This included making it easier for victims to obtain divorce, criminal prosecution, child support, protective orders, shelter and community support. This lead to a gradual but significant reduction in domestic violence homicide. Surprisingly, these reforms that were designed to protect women saved more men’s lives than women’s. It seems clear the reason for this was that many women who killed their abusers did so because they believed there was no other way to make his abuse stop. When they were provided with options and assistance to leave the number of deaths of men in intimate partner relationships dropped dramatically. In recent years abuser groups have successfully manipulated the custody courts to help them maintain control over their partners by winning custody or joint custody of the children. This has led many abused women to stay with their abusers because they are afraid the courts will help her abuser and harm their children. This has resulted in an increase in domestic violence homicides after many years of consistent declines.
I would like to recommend a new criminal law designed to make it easier for victims to leave their abusers. This is important because of the increase in homicides that has resulted from practices that undermine the ability of victims to leave their abusers. We need to create a law to prevent “kidnapping by proxy.” The law would make it a crime to commit any crime for the purpose of preventing or discouraging an intimate partner from leaving a relationship.
This would be valuable because it puts a common abuser tactic in context. It has become standard abuser practice to seek custody in order to pressure his partner to return or punish her for leaving. One of the big mistakes in the custody courts is that they fail to look at the father’s motivation for seeking custody after little involvement with the children during the relationship. As reprehensible as this tactic is, we cannot make it illegal for parents to seek custody. We have seen, however that in seeking to win custody, abusive fathers frequently make false allegations. If it is a sworn statement this would be a crime, but it is rarely prosecuted. The research establishes that fathers in contested custody cases are 16 times more likely to make deliberately false allegations than mothers. A prosecutor could use threats to seek custody if she left together with false allegations, perjured affidavits or testimony or other crimes like stalking or trespass that are often not prosecuted to prove kidnapping by proxy. I know that abusers frequently claim women make false allegations and courts often believe it when it is untrue, but this could not be treated as kidnapping by proxy because it would not be for the purpose of preventing her partner from leaving. This is important because abusers are good at manipulation and we must consider how they might misuse a law before seeking its adoption.
The most important action legislatures can take to help victims leave their abusers and reduce the crime rate is to stop standard practices in custody courts that result in abusers winning custody and unprotected visitation. This was demonstrated in the small county of Dutchess, New York where the custody courts have long been influenced by the abuser rights movement and safe, protective mothers were frequently separated from their children. In a space of less than a year, the county suffered nine people killed including five battered women and a brave police officer who was shot by an abusive father after the officer rescued a three-year-old child. Proof of the impact of the harmful custody court practices came in a report by the county legislature’s committee that was asked to review the county’s domestic violence practices. The report said that mothers were refusing to go to the county courts including family court because they had found the courts biased in favor of abusive fathers and would only harm them and their children. The last thing we want is to encourage abusers to continue their destructive behavior as the custody courts in Dutchess County did to tragic consequences.
The legislatures should adopt practices that emphasize the safety of children and the use of current scientific research instead of approaches that pressure victims to interact and cooperate with their abusers. In cases involving domestic violence, when a protective mother seeks to relocate for safety or other good reasons this should be encouraged and supported. More resources should be provided for organizations and practices that help victims safely leave their abusers.
Use of Valid Scientific Research
When domestic violence first became a public issue we had virtually no research to help inform decision makers about the best responses. Custody courts like other entities developed practices based on common beliefs and assumptions. Many of these assumptions proved wrong and the standard practices have been shown to work poorly and in fact dangerously for children. We now have substantial current research that could help inform decisions and better protect children but the courts have failed to reform their practices. They also rely on mental health professionals who have inadequate training in domestic violence as again established by an upcoming U. S. Department of Justice study. As a result most court professionals have received substantial misinformation and never sought to use current research to help them make better decisions.
This unfortunate history creates a need not just for training court professionals about current scientific research, but retraining them to change beliefs and practices that are outdated and discredited. Part of the problem is that after hearing misinformation throughout their careers, many court professionals have an unjustified confidence in their understanding of domestic violence. This causes many professionals to refuse to participate in needed training or pay little attention when valid scientific research that contradicts standard practices is presented.
One problem caused by the failure to use current research is the lost opportunity to understand key issues, but the other problem is the frequent use of myths, stereotypes, misinformation and bias as a substitute for information. We see this in the use of Parental Alienation Syndrome (PAS) which has no scientific basis but has been used to force thousands of children to live with abusive fathers and separate them from safe, protective mothers. This is how the myth that mothers frequently make false allegations has been permitted to infect decision making. The frequency of gender bias is encouraged by the failure to look to current scientific research. All of this contributes to the frequent mistaken decisions that have ruined so many children’s lives.
The Ability to Save Lives and Save Money
When I was in college I conducted research regarding returnable bottle legislation. I was hoping to gain the environmental and energy benefits of the bill if the costs were not too high, but I learned that rather than costing money the law would result in increased employment and lower prices because of all the energy that would be saved. The law has been a huge success in the states that passed it but the special interest groups provided tremendous misinformation and pressure to prevent passage elsewhere.
I decided more recently to study the approaches to domestic violence in Quincy, Massachusetts and Poughkeepsie, New York hoping to learn how to obtain the benefits of reduced crime and particularly preventing domestic violence homicide. I was not surprised that there might be some financial benefits because domestic violence wastes the potential of victims, their children and even the abusers. I was shocked, however when I researched the information and found that adopting practices that have been proven effective we could quickly save $500 billion every year and this is likely to increase over time as more children grow up without witnessing domestic violence.
The Quincy Model involved a series of effective practices and priorities from the late 1970s until the early 1990s that resulted in a drastic reduction of domestic violence crime and particularly homicide. At the time there was little research available, but District Attorney Bill Delahunt noticed that almost all of the inmates in the nearby high security prison had childhood histories involving domestic violence and/or direct physical or sexual abuse. This led him to realize the importance of taking domestic violence and incest crimes seriously as a way to reduce all crimes.
Bill Delahunt was joined by other professionals in the criminal justice system including Judge Albert Kramer, Sarah Buel who led the domestic violence office for the prosecutor, Andy Klein, the director of probation, David Adams who later created EMERGE, the first batterers’ program in the nation and many other professionals. Together they created a dramatic reduction in domestic violence crime by taking seriously crimes that used to be considered a private family matter.
These benefits came from practices that strictly enforced criminal laws, restraining orders and conditions of probation. Although a coordinated community response was not part of the initial practices it soon provided the support and communication necessary to make the model work. Although it did not receive the attention of other practices, making it easier for victims to leave their abusers played a key role in the success in Quincy. They also benefited from aggressive coverage in the media which helped send a message to abusers that domestic violence crimes would result in serious consequences.
The opposite of Quincy was in Poughkeepsie, New York where abuser rights groups were allowed to influence the custody courts and other practices also undermined efforts to prevent domestic violence. Some local judges failed or refused to arraign offenders in misdemeanor domestic violence cases when court was not in session. This resulted in the abusers receiving appearance tickets and their victims being unable to obtain a protective order. The bias and flawed practices in the custody courts resulted in frequent awards of custody to dangerous abusers and punishment of safe, protective mothers by limiting them to supervised or no visitation with their children. There was widespread failure to enforce violations of protective orders in the county. The problems were exacerbated by cuts to domestic violence funding by the county legislature and poor reporting by the media.
These flawed practices resulted in five domestic violence homicides in a period of less than a year resulting in the deaths of nine people including five battered women and a courageous police officer who was shot by an abusive father after rescuing a young child. After the first of these tragedies, the county legislature asked its domestic violence committee, made up of professionals working on domestic violence issues to report on the county’s response to domestic violence. Included in their findings was that the practices in the courts of failing to support battered women had led many victims to stop going to court to seek assistance because the courts frequently instead supported their abusers. In other words, the court practices made it harder for victims to leave domestic violence offenders.
The comparison of the approaches to domestic violence in Quincy and Poughkeepsie made it easy for experts to understand what practices could be adopted to reduce not only domestic violence crime, but other crimes also. These best practices include strict enforcement of criminal laws, orders of protection and probation conditions. The community should support practices and provide resources that make it easier for victims to leave their abusers. Communities also need to create an active coordinated community response that includes the professionals working on domestic violence issues and other parts of the community. It is important for the local media to take an active role in reporting about domestic violence issues and become part of the coordinated response. It is especially important that the custody courts have as one of its goals supporting the community’s efforts to prevent domestic violence. Male supremacist groups developed the practice to encouraging abusers to seek custody as a tactic to pressure victims to return or punish them for leaving. The flawed practices used in custody court unwittingly help abusers undermine the work of the rest of the community trying to prevent domestic violence. The courts should look to current and valid scientific research to inform its decisions. One of those findings is that only accountability and monitoring have been shown to change abusers’ behavior. The research also establishes that it is in the best interests of children in domestic violence cases to live with the safe parent and for the abuser to be limited, at least initially to supervised visitation until he can demonstrate a change in behavior and beliefs.
The human benefits of achieving a sharp reduction in domestic violence crimes are expected, but the dramatic financial savings this would provide is especially exciting because it could create an irresistible incentive to do what society should have accomplished long ago. In the past most studies of the health care costs caused by domestic violence tended to be limited to the cost of treating the immediate wounds inflicted by an assault. A group of medical professionals, however looked at the long-term financial effects. They specifically considered the many illnesses that are created or exacerbated by stress because there are few things more stressful than living with an abuser. The costs related to self-medication and mental illnesses like depression and PTSD further added to the expense. When we also consider the costs involving children witnessing domestic violence the health bill for tolerating domestic violence is $750 billion annually. The cost of crime in the U. S. is over $1 trillion a year and this includes domestic violence crime and other crimes committed by children impacted by witnessing domestic violence. Conservatively the share caused by domestic violence is at least $200 billion. Many people impacted by domestic violence never reach their potential. Not only does this include women killed or seriously injured by their abusers but also women prevented from completing their education or not permitted to develop a career. Abusers who waste their time stalking and harassing their victims or with criminal records fail to reach their potential. Many children witnessing domestic violence are also impacted as are third parties who become victims of these children. Most of these individuals would become part of the economy and make general contributions to society. Some might have created business or even new industries, made medical, scientific or other breakthroughs or inspired others such as teachers. The financial loss is hard to calculate but clearly the total annual cost of domestic violence is more than one trillion dollars. I believe the policies discussed earlier would quickly save at least $500 billion per year and as children grow up in homes where men are not abusing their partners, the losses will gradually be further decreased.
The practices described in this article can be implemented locally, by state or nationally. The benefits would quickly be realized and the huge financial incentive should help create the needed support. I am sure legislators would much rather concern themselves with how to divide the surplus than the present problem of responding to ever increasing deficits.
Any judge could take the present laws and with good knowledge and practices make the right decision in almost every domestic violence case. The obstacle is that courts are used to using a lot of outdated and discredited practices and many court professionals believe a substantial amount of misinformation. Particularly harmful is that many judges and other professionals have an undeserved confidence in their practices so they are not open to hearing more accurate and supported information. I have heard some judges suggest that the failure of the legislature to enact reforms is proof the courts are satisfying the intent of the legislators.
This is why it would be useful to pass legislation that creates reforms and demonstrates a lack of satisfaction with the current failed practices. My meeting with the legislator went well and we are working on legislation to make safety the first priority when determining the best interests of the child. I believe this is a good place to start because it would be hard to argue this and I suspect many professionals would claim to be doing so. The requirement that professionals advising the court have expertise in the five needed aspects of safety discussed above follows logically from the focus on safety. At the same time it would require meaningful changes because evaluators and other court professionals do not have this needed information. I believe a focus on this information would change outcomes and who is providing the information. Certainly the widespread refusal to listen to dv advocates and experts would have to stop as they are the ones most familiar with these safety issues. I particularly like the idea that this change would require not just the training but retraining of judges and other court professionals. Suddenly information they now pay little attention to would be required in order to do their job.
I hope that many protective mothers and their supporters will contact their legislators to seek some of the needed reforms. When proposed legislation is drafted, I will be happy to share with everyone. I know it is easy to be discouraged when we continue to hear one atrocious story after another, but I think there are now more people aware that there is a problem in the custody courts and hopefully this will soon be translated into needed reforms and then decisions that actually protect children.