Department of Justice Report Demands Custody Court Reforms Part II

by Barry Goldstein

Read Part I:  CLICK HERE

  Using Saunders’ Report to Protect Children

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

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

Presenting a Case with the Help of the Saunders’ Study

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

 

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

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

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

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

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

  

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

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

Legal Representation

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

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

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

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

Evaluators

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

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

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

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

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

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

Challenging Evaluators

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

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

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

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

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

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

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

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

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

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

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

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

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

Judges

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

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

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

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

After the Case Goes Bad

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Reforming the Broken Custody Court System

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

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

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

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

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

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

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

               

               

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