Safe Child Act

by Barry Goldstein

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

Safe Child Act 

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

Provisions:

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

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

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

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

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

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

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

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

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

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

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

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

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

Findings:

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

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

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

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

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

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

Definitions:

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

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

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

The Need to be Heard

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

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

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

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

What Considerations does Safety Include?

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

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

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

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

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

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

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

Mandating Practices Supported by Current Scientific Research

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

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

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

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

Child Sexual Abuse Cases

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

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

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

Retraining Judges and other Court Professionals

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

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

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

The Importance of Findings

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

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

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

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

Correcting Existing Mistaken Outcomes

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

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

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

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

Additional Useful Benefits

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

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

Conclusion

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

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

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

2. Domestic violence dynamics

3. The effects of domestic violence on children.

4. Recognizing domestic violence

5. Batterer narratives.

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

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

Related articles

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

When Safety is the First Priority

By Barry Goldstein

I believe most judges, if pressed would agree that safety should be the most important priority in custody decisions. This certainly should be the focus of domestic violence cases. Nevertheless when they seek assistance through evaluations, the investigation focuses on cooperation between the parents, emotions, psychological tests that rarely provide any information about safety, alienation and other issues that are far removed from safety. One of the reasons the evaluators concentrate on less important issues is that they don’t understand domestic violence dynamics, the research about batterer narratives, behaviors associated with increased risk of lethality or how to recognize domestic violence. But if these evaluators don’t have the knowledge or skills to assist courts in focusing on safety issues what is the point of having evaluations? Clearly custody courts will make better decisions when safety is the first priority and the experts they rely on know how to recognize dangerous abusers.

What Can We Learn from Batterer Narratives? 

Batterers tend to be very manipulative and this is especially true of the ones we see in contested custody cases. We regularly see inadequately trained court professionals treat complaints by protective mothers with tremendous skepticism based on the myth that women frequently make false allegations of abuse for litigation purposes. A recent Department of Justice study led by Dr. Daniel Saunders found that court professionals without the necessary training in domestic violence are more likely to believe this myth and in turn make recommendations that harm children. While valid complaints of abuse are routinely disbelieved, Judge Mike Brigner points out that men’s denial of abuse allegations which are often false are viewed without the skepticism faced by their victims. Some evaluators and other court professionals may have heard about batterer manipulations, but this knowledge is rarely applied to an individual case.

Dr. Molly Dragiewicz wrote an important book, EQUALITY WITH A VENGEANCE which provides substantial research to demonstrate how men and women are different because they are treated differently. The book contains an interesting chapter about the use of batterer narratives to recognize and understand their abuse. Significantly, we virtually never see an evaluator aware of this research in order to better understand abuser tactics and to avoid being manipulated. Much of the remainder of this section of the article is informed by this book.

“Though it makes sense to pay attention to what batterers say about why they use violence and what they get out of it in order to understand it better, batterers’ accounts of what happened should not necessarily be taken at face value. What batterers say about violence can help us understand why they use violence as well as how they justify and continue that violence in the face of nominal cultural disapproval. …The tactics of denial, minimization, justification and excuse are central to… batterer narratives….Batterer accounts of violence also support feminist and other research on the importance of patriarchy to violence.”

There is a fundamental contradiction between an early childhood lesson that “boys don’t hit girls.” and the many messages that encourage and justify men’s abuse of women. A better message would be that boys (and girls) should not hit anyone except in self-defense because the original message suggests that hitting is ok except in some exceptions. We often see abusers expand the exceptions so that he hit her because she is a (insert sexist slur) or some action she took or did not take can justify his abuse. This belief system is one of the reasons why verbal abuse should be treated seriously as his name calling later serves as a justification for physical assault and this risk makes his verbal abuse a more effective coercive tactic.

“Denial that the abuser perpetrated the violence is fairly straightforward. It may include denial that anything violent happened or more elaborate stories about how the victim came to hurt herself through no fault of the abuser. Batterers often deny that they are violent people or at least that they would ever hit a woman. In this way, batterers apparently seek to create the impression that nice guys like them simply could not have perpetrated violence. This form of denial feeds on stereotypes about batterers as instantly recognizable cruel monsters. Batterers often cultivate positive public images in order to conceal their violence and maintain their self-image as great guys. Batterers’ insistence that they are nice or not violent people is mirrored in public accounts of domestic homicide interviews with neighbors who invariably testify about what a nice guy the abuser was are a staple of news coverage.” Similarly we often find court professionals unable to believe such a nice guy could have done the awful things he is accused of.

Another part of denial is the frequent repetition of the myth that women frequently make false allegations of abuse. We often see attacks on the victim’s credibility as an attempt to distract attention from the facts presented and as a substitute for an objective investigation of the abuse allegations.

Knowledgeable experts can use internal contradictions in the abusers’ accounts to help understand what really happened. “…While one might expect batterers’ accounts to be internally consistent, they often are not. For example, even when batterers disavow violence they are often careful to emphasize their strength, size and capacity to use violence if they want to. These juxtapositions suggest that despite the men’s denial of certain forms of transgressive violence, their perceptions of normative masculinity call for the capacity to do violence.”

Batterers tend to minimize their abuse in terms of its severity, frequency and their responsibility for it. Interestingly, and counter intuitively, women also tend to minimize their partner’s abuse. The descriptions from both parties often confuse inadequately trained professionals and contribute to their misunderstanding of the seriousness of the father’s abuse.

One of the common ways abusers minimize their mistreatment of their partners is to compare what they did to what other more brutal batterers might commit or what they could have done if they wanted to. One of the unearned male privileges men are used to exercising is the power to define. Batterers often minimize their abuse by defining domestic violence or assault as something that requires a serious enough injury so that their assault would not qualify. They will also define what they did as justice rather than abuse.

“Because abusers rarely admit to the full extent of their violence or take responsibility for their violent actions, excuses and justifications are frequently part of their accounts (citations omitted). Hearn wrote, “Excuses and justifications involve the recognition of the violence but the denial of either responsibility (excuses) or blame (justifications). Whilst in some sense excuses and justifications are conceptual opposites, they are in practice sometimes closely interlinked.’ Hearn’s observation gets at the contradictions that are so often present in batterer accounts. Indeed batterers often say in effect, ‘I did something but it wasn’t my fault. And she deserved it anyway.’”

Many of the excuses deny responsibility by claiming it was caused by forces beyond his control. The excuses can also be based on alcohol or drug abuse. They may also blame abuse they suffered as children. Often the batterer will acknowledge some action he believes is acceptable while creating a disconnect between his actions and any harm he caused. Abusers frequently claim self-defense and claim to be the real victim. They may take something she said or her “misbehavior” as the cause of the incident and his violent response as self-defense or justified.

“David Adams argued that what batterers label self-defense is often violent retaliation for disobedience. Adams described how male abusers categorize even very violent acts including strangling, punching, and beating someone up as self-defense and therefore not violence. At the same time, abusers outline a very different standard for their partners’ behavior. Many abusers characterize their partner’s disagreeable speech as akin to a violent physical attack and justify physical beatings as self-defense against such perceived attacks. One study found that more than half of the batterers blamed their partner’s aggressive speech for their violence.”

“Equating very different kinds of aggression and violence is part of abusers’ ‘account-keeping’ mindset. Research on batterers suggests that they often keep a running tab of all the ways they feel their partners have disrespected, disobeyed or wronged them. Reasoning that they are simply settling accounts, abusers then use these transgressions as justifications for physical violence. For some batterers this kind of account keeping shades into looking for reasons to use violence. “I started looking for excuses; I’d do anything to get an excuse (to use violence).’ The pairing of excuses and justifications allows batterers simultaneously to deny their violent intentions and garner support or at least understanding of their violent actions.”

Batterers often use patriarchal explanations for their abuse. They expect their partners to conform to traditional women’s roles. Accordingly if she fails to fulfill her “sexual obligations” or doesn’t perform the household and child care duties the way he demands this would be used as a justification for abusing her. They usually would not directly say that women are inferior, but might call her names to justify his assault and suggest she asked for it. Abusers often have a low tolerance for their partner’s failure to submit. Batterers seek to take their abusive behavior out of context and to start the narrative at the point where they feel their partner did something wrong.

“The findings that batterers minimize their abusive behavior, blame the victim for their own use of violence and equate their partners’ failure to submit with violence all have serious implications for research” and I would add for custody court professionals. “Given what we know about how batterers talk about their violence, scholars and advocates are ill advised to take batterer reports at face value.” And yet this is exactly what we repeatedly see from court professionals with inadequate understanding of domestic violence and no knowledge of the research about what we can learn from batterer narratives. Before leaving this topic, I want to make sure to mention that there are exceptions and if a father does not use these tactics or explanations this does not prove he is not an abuser.

Professionals Without Understanding of Domestic Violence Dynamics are Unqualified 

Repeatedly we see cases in which court professionals conclude and judges decide that the alleged abuser committed one or two acts of domestic violence and then suddenly stopped for no apparent reason, there is no further risk because the parties separated or he hasn’t assaulted her since they separated and he has no access so there is no risk in giving him custody or unsupervised visitation. These are the kinds of mistakes unqualified professionals make when they do not understand domestic violence dynamics.

Men commit domestic violence against their intimate female partners because of a belief system that they are entitled to control their partners and make the major decisions in the relationship. The end of a relationship rarely changes their belief system. When their history is fully investigated, they usually have abused a series of partners. Evaluators rarely ask about past history of abuse even though that would be important information to determine the danger he presents.

Abusers are unlikely to change their beliefs unless they are held accountable and punished for their abusive behavior. Approaches that blame the victim for her partner’s abuse or suggest his abuse is mutual or that both parties contributed demonstrates a lack of understanding of domestic violence dynamics. The abuser deliberately took actions to frighten his partner because this coerces her to do what he wants. One of the worst mistakes of court professionals is when they blame or punish mothers for their fear or emotion caused by her partner’s abuse. Many court sponsored gender bias committees have cited this as a common example of gender bias, but the custody courts continue to make this dangerous error.

Most contested custody cases are domestic violence cases in which an abusive father who usually had limited involvement with the children during the relationship seeks custody as a tactic to pressure the mother to return or punish her for leaving. Untrained professionals usually fail to look at his motivation for seeking custody. They ignore evidence that the father uses visitation exchanges, phone calls to the children and other litigation opportunities to try to reunite with the mother or to harass her. He may use his time with the children to pump them for information about the mother or constantly ask to speak with her. This could help courts recognize the father’s motivation if only they understood the significance.

At the same time, even when they see evidence that he abused the mother, they rarely take effective steps to stop his abuse and protect the children. Domestic violence experts recommend that in domestic violence cases the best arrangement for the children is custody for the safe or safer parent and supervised visitation for the abusive parent. It is important that the abuser be held accountable for his abuse so requiring him to complete a batterer program or imposing other consequences should be part of the arrangement. I want to be clear that batterer programs do not by themselves change men’s behavior particularly long term. Only monitoring and accountability have been shown to accomplish this, but completion of the program can show the father is motivated to make the changes needed to become a safe father. In order to work towards unsupervised visitation, the father would have to convince the court that he will end his abusive behavior. The court can consider if the father acknowledges his abuse and does not try to minimize his responsibility or blame others. The father should express his understanding that his behavior harmed his children and make a commitment never to act abusively again. He must have stopped all coercive and intimidating behaviors. The court must make clear that if he commits further acts of abuse he will lose his visitation privileges. This is an approach that is based on the safety and well being of the children instead of the rights of the father. One of the present problems in the custody court system is in the rare cases when they order supervised visitation for abusive fathers they quickly want to move to unsupervised without any change in his belief system, but when they order supervised visitation for mothers who do not pose any safety risks, the courts appear happy to continue this burden on the children indefinitely.

A common mistake by court professionals occurs when the father has supervised visitation and the father’s ability to act appropriately while supervised is taken as proof he is safe for unsupervised visitation. This is based on the false assumption that abusers batter their partners because they cannot control their behavior. In fact abusers control their behavior and anger. This is why they do not assault people other than their partners because if they did they would face consequences and why they don’s assault their partners except in private so there are no witnesses. If they cannot control their behavior during supervised visitation they are unsafe for unsupervised visitation, but the ability to control their behavior is not surprising and should not be used by itself to assume the father no longer poses a danger.

Since men abuse women because of their belief systems and not anything the mother did, there is every reason to believe the father will continue to abuse future partners. This means that if he is given unsupervised visitation or custody, the children are likely to witness their father abusing future partners. This risk is often overlooked by inadequately trained professionals with little understanding of domestic violence dynamics.

Risk Assessment 

In custody cases involving allegations of domestic violence or child abuse the safety of the children should be the first priority. Accordingly it would make much more sense to order a risk assessment which would give courts the information it needs to make an intelligent decision instead of an evaluation that focuses on far less important issues. Few of the evaluators relied on by custody courts know the significance of the alleged abusive behaviors they are asked to investigate.

There are several common abusive practices that have been demonstrated to be associated with a higher risk of lethality or serious injury. It should be considered malpractice to make a custody decision without knowledge of these risks. One of the risks is strangling, choking or placing his hands around her neck. New York recently made this a crime because abusers sometimes do this without leaving physical injuries which was the previous requirement for prosecution, but this behavior is extremely dangerous. Other common issues that reflect an increased risk include hitting a woman while pregnant, rape or attempted rape, hurting pets or other animals, substance abuse, availability of guns, belief she has no right to leave, threats of suicide, homicide or kidnapping, violation of orders or laws and seeking custody as a tactic to maintain control.

For domestic violence advocates, risk assessment and safety planning are a fundamental part of their job. Their expertise could help courts make decisions that promote the safety of children. Nevertheless we repeatedly see judges refuse to listen to domestic violence experts because they believe they know enough, but no one in the courtroom has this vital expertise.

Recognizing Domestic Violence 

Custody courts have no chance to respond properly to domestic violence if they do not know how to recognize domestic violence. It often appears like some court professionals are attempting to rule out abuse allegations because they disbelieve complaints based on many common situations that in no way contradict the allegations. We often see evaluators and judges discredit allegations because the protective mother returned to her abuser, sought a protective order but did not follow-through, failed to have police or medical reports or the children did not show fear when a court professional observed them interacting with their father. The first four situations represent a normal response by battered women for safety and other good reasons. In the final example the children understand their father would not hurt them in front of a witness, particularly someone he is trying to impress. Of course if courts discredit allegations based on information that is not probative they inevitably will get a lot of decisions wrong.

At the same time they are discrediting allegations for the wrong reasons; many court professionals do not know what to look for in order to use the available evidence to determine the validity of domestic violence allegations. Some professionals look only for incidents of physical abuse and therefore miss a lot of important evidence. Genuine experts understand that they need to look for patterns of coercive, controlling and intimidating behavior. They will look at psychological, emotional and financial abuse. They will look for isolating behaviors. The experts will consider if the alleged abuser is monitoring her such as checking her phone or the odometer on her car. They will look at his motivation for seeking custody if he had little involvement with the children during the relationship. They want to know if he is seeking custody as a tactic to pressure her to return or punish her for leaving. The experts will consider if he is engaged in litigation abuse. Very often judges who complain about a he-said-she-said case would have a lot of evidence to help them get it right if only they understood the significance of the evidence available.

Conclusion 

I believe the approaches that should be used in domestic violence custody cases are both logical and unassailable. The first priority and most important factor in deciding custody must be the safety of the children. No one can make an intelligent or informed decision about safety without knowing the factors that make an abuser most dangerous, how to use abuser narratives to recognize how abusers will describe their abuse, how to recognize domestic violence and an understanding of the dynamics of domestic violence. As Dr. Dragiewicz points out, professionals must learn not to take each incident or issue separately but rather look for patterns and always consider the issues in context of the whole relationship. If we ask court professionals if they understand or have sufficient expertise in domestic violence, they are likely to claim that they do and many believe it sincerely, but if we instead ask them about the specific knowledge and skills necessary to respond to domestic violence custody cases they cannot honestly claim to have this information. If they did, the courts would not repeatedly be sending children to live with dangerous abusers.

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

Behind The Four Walls

By Gaetane Borders

In recent months, many African American leaders and celebrities have urged the community to help make a positive impact in the lives of our youth…particularly our young Black men. I have listened intently to radio and tv shows in which experts discussed the presumed reasons for why so many of our young adults are ”out of control” and demonstrating such a “lack respect for authority.” Drugs, gangs, rap music, and negative media imagery have all had a finger pointed at them as a probable cause. Yet, there is also another poignant issue which has a profound affect on our youth that is not often discussed. That issue is domestic violence. Although alarmingly frequent…the topic is almost completely avoided in common conversations.

Several months ago, the world learned of a horrific crime in which 41-year-old Patrick Dell shot and murdered his estranged wife, Natasha Whyte-Dell, and four step-children. Another step-son was severely injured, but was expected to live. Reports indicated that on December 20, Whyte-Dell said her estranged husband came after her with a knife, slashed her tires and scratched an "X'' into the concrete driveway. He apparently also threatened her by saying "You will be going to the morgue," according to a police report. "Your family is going to cry today," he said in rage. Despite reportedly fearing for her life, Whyte-Dell repeatedly reconciled with her husband in hopes that he would change. Sadly….he never did.

Tragic as it is, Natasha’s story is not exceptional. Reports have shown that the number one killer of African American females, ages 15 to 34, is homicide at the hands of an intimate partner or ex-partner. In fact, the African American community reportedly experiences domestic violence at greater levels than White Americans, Asian Americans, and Latinos according to various research studies. In addition, an estimated 63% of all males between ages 11 and 20 who are serving time for homicide in the U.S. are incarcerated because they killed their mothers’ abusers? Here’s yet another statistic… children are present 25% of the time when their mothers are murdered by their partners.

I urge everyone to promise not to turn a blind eye to this issue anymore…starting today. This includes community leaders as well as celebrities. If we begin to talk about it openly, we can build and support a community culture that stands against violence in our homes. This generation is watching us, and will suffer from both our actions and inactions. Therefore, if we really want to see our Black youth achieve academic, emotional, and economic success, we must not only be committed to addressing the violence in the streets…we also have to remedy the violence occurring in our homes.

Gaétane F. Borders, Ed.S.
Certified School Psychologist
President of Peas In Their Pods and author of www.theparentingpundit.com

Berea College Blames Victim for Being Sexually Assaulted

By Gayle Crabtree

Will the Decision Alienate Alumni and Donors?

Students learn that no means no well before they enter college. Apparently, that lesson is an elective course that some people missed. That could explain why legal counsel for Berea College blames a sexual assault victim for her injuries.

It all began in March 2010, when a Berea College student came forward claiming that she had been sexually assaulted by a (then) professor. The professor was later arrested under the charge of sex abuse which is a Class D felony. In January, Demetrius Semien pleaded guilty to lesser charge of fourth degree assault against the student.

A lawsuit filed by the student against the college is asking for $4,000 in damages. This includes past and future medical bills, mental and physical pain and suffering, punitive damages and also costs surround the litigation and a trial by jury.

The response was decisive. Legal counsel for Berea College blames the sexual assault victim for her injuries and is asking that the suit be dropped. Not only that but legal counsel for Berea College is also asking for "..any and all other relief to which it may be properly entitled".

First legal counsel for Berea College blames the sexual assault victim then it adds salt to the wounds. Not cool.

Sexual assault victims are not responsible being hurt. In today's world, there is no room to say that injuries "were caused and brought about by her own negligence and/or intentional act". This point of view is both harmful and antiquated.

My family has had nothing but overwhelmingly positive contact with the school. As the parent of an alumnus I am deeply saddened by the direction of counsel. As an advocate I am deeply angered.

The Sexual Assault Reporting Guidelines and Information in the Student Handbook tell a different story. It defines a representative as any college representative is any faculty or staff member. Yet, legal counsel for the school says that the former professor did not represent the school. It's difficult to have it both ways.


Advocates work to educate the public about the realities of sexual assault. For years we have taught that no means no. It doesn't mean "maybe" and it doesn't mean "yes" and it doesn't


mean that victims are responsible. Abusers create victims. Victims don't create abusers. It really is that simple.

There is a strong backlash as Berea College blames a sexual assault victim for her injuries. A petition on Change.Org is gaining momentum. Alumni do not support Berea Colleges Statements that place blame on Sexual Assault Victim. Bloggers are writing about it and people are talking about the situation on Twitter.

In this day of funding shortfalls the school would do well to stop the blaming. Every school needs a donor support base to help offset budget shortfalls. The majority of the support usually comes from alumni, their families and the public at large.

Right now, as legal counsel for Berea College blames a sexual assault victim, it is apparent that the alumni are paying attention. Whether they will help the college pay its bills in the future remains to be seen.

Richmond Register
LEX18 News

Gayle Crabtree is Founder and Executive Director of Hope For Healing.Org