How Cutting Edge Research Can Help Psychologists and Judges Protect Children

By Barry Goldstein

One of the most important research studies about the impact of domestic violence on children began as a project to treat morbidly obese patients and help them lose substantial amounts of weight by eating no food but taking supplements to satisfy their nutritional needs. Some patients failed to lose the expected weight because they did not follow the protocol, but it was successful patients who were the ones to drop out of the program. Upon studying the personal records and interviewing the patients who left, Dr. Vincent Felitti came to understand that rather than a problem, the patients had viewed their excessive weight as a protective factor. They had experienced childhood trauma, particularly sexual abuse and believed their weight would discourage anyone from attacking them.

These findings led Dr. Felitti with the assistance of Dr. Robert Anda of the Centers for Disease Control and Prevention (CDC) to create a study involving over 17,000 middle-age patients in order to understand how childhood trauma impacted their health. This became the original ACE (Adverse Childhood Experiences) research. The first study was released in 1998 and since that time the CDC has sponsored at least five additional studies in other cities that confirmed and expanded on the findings of Dr. Felitti. There have now been over 80 research papers written for medical professionals about ACE research.

The patients were asked about ten different types of trauma in their childhood. The traumas were selected based on their prevalence in the obesity program. The traumas considered were domestic violence; physical, emotional, or sexual abuse; an adult in the household who engaged in substance abuse; was imprisoned; depressed or mentally ill; separation from at least one of the biological parents; emotional neglect; and physical neglect. An ACE Score was created wherein the patient received one point for exposure to each type of trauma. The point was given whether there was one incident or many so the calculation often understates the harm.

The fundamental finding in the ACE research is that children exposed to domestic violence, child abuse and other trauma will suffer more illnesses and injuries throughout their lives and have a shorter life expectancy. The harm is cumulative so that each additional form of trauma multiplies the risk. Other research demonstrates that fathers who commit domestic violence are more likely to also commit child abuse. Thus if a child was exposed to domestic violence, verbal, physical and sexual abuse, that would create an ACE score of 4. If one of the parents also had a substance abuse problem and these events led to the removal of one of the parents from the child’s life the ACE score would be 6. At this level a child has a life expectancy twenty years less than a child with none of these traumas.

On first consideration these findings are depressing, but they also offer an incredible opportunity. If society can protect children from domestic violence and child abuse, we would enjoy a dramatic improvement in the health of children and adults with huge resulting financial savings. The initial reports and articles have been directed at the medical community. This is useful because doctors can use this information to diagnose and treat adult patients suffering from a variety of illnesses that were caused by trauma experienced decades earlier. I am now working with Dr. Felitti to use this research for purposes of prevention.

In 1964 the Surgeon General’s report linking smoking and cancer was released. The tobacco industry initially attacked the report and denied the findings. Today the American Cancer Society and the American Heart Association would not consider doing their work without a component to discourage smoking. This has led to a significant reduction in smoking and therefore less cancer, heart disease and deaths.

The ACE research has linked the childhood traumas studied to the ten leading causes of death in the United States. We believe that charitable organizations working to prevent many common diseases and societal problems should include a component to prevent domestic violence and child abuse in their work. This would include organizations working to prevent cancer, heart disease, diabetes, asthma, auto-immune diseases, Aids, substance abuse, depression, suicide, eating disorders, PTSD, rape and many other scourges of society.

Understanding the pathways from abuse to illness will help professionals develop appropriate responses to domestic violence and child abuse. Domestic violence involve tactics abusers use to coerce and control their partners. The purpose of the tactics is to frighten and intimidate the victim so she does what the abuser demands even if she does not agree. Even more than the immediate harm from any physical abuse, it is this stress and fear that impacts victims and their children to produce the long-term medical risks. Many common diseases are caused or exacerbated by stress. The stress also causes inflammation which is associated with many health risks. The abuse and stress also lead to eating and sleeping disorders which in turn cause still more medical problems. Domestic violence and child abuse are also linked to depression and PTSD. The laws that require courts to consider domestic violence when making decisions about custody and visitation were based on research that children exposed to domestic violence are more likely to make a variety of poor choices. This leads to problems like substance abuse, crime, prostitution, teen pregnancy, dropping out of school, self-mutilation, suicide and depression. Significantly, these health problems and poor decisions interact with each other to increase risks exponentially.

How domestic violence and child abuse harm children is critical to understanding the most effective responses. Some professionals look to individual incidents and tend to focus on physical abuse. In a situation where a man and woman hit each other the professional might make the mistake of assuming the behaviors are equivalent. Aside from whether one assault was more severe, an important question is who is afraid of their partner. In many cases the woman is smaller and physically weaker and so the man is not afraid the way the woman is. Furthermore the physical incident is part of a pattern of coercive and controlling behavior that creates the stress and fear associated with health risks. This is why context is so important to understanding domestic violence. Approaches that look only at physical abuse, minimize the significance of domestic violence, miss the underlying pattern and the impact on the victim or focus on less important issues will fail to protect children from the catastrophic risks described in the ACE research.

The Saunders’ Study: Recognizing True Abuse Complaints

The disastrous impact on children of exposure to domestic violence and child abuse should require that psychologists and judges err on the side of safety and make sure they can recognize true allegations of abuse. The study led by Dr. Daniel Saunders of the University of Michigan was released by the U. S. Department of Justice in April of 2012. Dr. Saunders recommended that evaluators and other professionals receive training about the impact of domestic violence on children. The ACE research confirms the importance of this information.

The purpose of the Saunders’ study was to consider the knowledge and training of evaluators and other court professionals regarding domestic violence. He recommended that they have training in screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Many of the findings from this research raise concerns that court professionals do not have the expertise they need and this frequently leads to the failure to protect children.

Dr. Saunders emphasized that the selection of evaluators and other professionals to participate was not done on a random basis. He relied on volunteers and it is reasonable to believe the sample was weighted towards the best professionals who agreed to participate because they had greater training and interest in domestic violence issues than their colleagues. Despite this, however, approximately 30% of the evaluators said they did not have all of the necessary knowledge. Even this understates the problem as other questions demonstrated the lack of adequate training is far more widespread. Although most evaluators claimed they screened for domestic violence, when asked what tools they used many relied on standard psychological tests. These provide no information about domestic violence which means the evaluators were not conducting any effective screening. Their answers to vignettes further demonstrated inadequate understanding of domestic violence. This is the worst possible situation because these professionals did not have the necessary training but believe they do so they would be unlikely to consult with genuine experts.

Dr. Saunders found that evaluators and other professionals without the needed training tended to focus on the myth that women frequently make false allegations, unscientific alienation theories and the assumption that mothers seeking to protect children from frightening fathers were actually harming the children. Many domestic violence custody cases focus on these issues which means the courts are frequently relying on unqualified professionals. The Saunders’ study found that professionals using these methods create outcomes that hurt children.

The study also looked at what Dr. Saunders referred to as “harmful outcome” cases. These are extreme decisions in which the alleged abuser wins custody and the safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. These are typically cases in which the mother raised concerns about abuse, but the court disbelieved her. These outcomes are always wrong because the harm of separating the children from their primary attachment figure, damage that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was creating. In most of these cases the extreme outcome was caused by a very flawed process so frequently the opposite outcome would have benefited the children. The frequency of these harmful outcomes confirms the courts routinely rely on unqualified professionals.

The Quincy Solution:

Would Anyone Like to Share $500 Billion Every Year?

The ACE research demonstrates the enormous harm caused by tolerating domestic violence and child abuse. It not only reduces the quality and length of millions of lives, but creates enormous economic harm that impacts all of society. Research about the original Quincy Model proves that domestic violence and child abuse are not inevitable and that they can be dramatically reduced by using a group of best practices that are easily implemented. The Saunders’ study provides information on how to reform the custody court system which must be included in order to enjoy the enormous benefits from the Quincy Model with its reduction in domestic violence crimes and child abuse.

A group of leaders in Quincy, Massachusetts first individually and later working together developed a series of best practices to prevent domestic violence crime that became known as the Quincy Model. The people in Norfolk County benefited from this program from the late 1970s until the mid-1990s. District Attorney, Bill Delahunt reviewed the personal records of inmates at a nearby high security prison and noticed that virtually everyone had a childhood history that included domestic violence and/or sexual abuse. He realized that if they could prevent domestic violence crime, all crime would be reduced and that is exactly what happened. A county that had averaged 5 or 6 domestic violence homicides every year had none for several years, then one and back to none.

Some other communities like Nashville, San Diego and Duluth had similar good results with similar best practices. When some of the best practices were abandoned the murder and crime rates went back up. Since Quincy new research and technologies have become available and can be used to strengthen the model. During the Quincy Model some victims stopped cooperating after their abusers sought custody in the Probate Court. This undermined but did not derail the Quincy Model because this abuser tactic was still rare. Today it is standard practice for the worst abusive fathers to seek custody as a way to regain control over their victims. Most custody cases are settled more or less amicably. Even in cases with abusive fathers the litigation is settled because the fathers love their children and are unwilling to deliberately hurt them by separating the children from their mothers. This often results in a settlement in which the mother gives up resources and financial support in return for custody. The biggest problem in custody courts are the 3.8% of cases which cannot be settled and go to trial and often far beyond. These are overwhelmingly domestic violence cases that cannot be settled because the abuser is willing to hurt the child in order to control and punish the mother. At the same time the abusers are very manipulative and as the Saunders’ study demonstrated the court professionals do not have the training to recognize domestic violence. The problem is compounded by the development of a cottage industry of lawyers and evaluators that earn large incomes by supporting practices that help abusers. Domestic violence is about control and includes control of the family financial resources. Accordingly the best way for professionals to make a good living is to support the side with the money.

Many court professionals are taught to misunderstand these disputes as “high conflict” cases. That assumes the victim and the abuser are equally responsible for the conflict. The courts often pressure victims to cooperate with their abusers instead of forcing the father to stop his abuse if he wants a relationship with the children. A study led by Jennifer Hardesty found that courts frequently place too much emphasis on the emotions and anger of the mother out of proportion of what it says about her parenting. Many court-sponsored committees have found widespread gender bias against women. One common example is blaming mothers for their normal reactions to the fathers’ abuse. Dr. Saunders found that courts are not requiring supervised visitation for alleged abusers as often as they should. Every year in the United States, 58,000 children are sent for custody or visitation with dangerous abusers.

If custody courts are unwilling to voluntarily create the needed reforms, the Quincy Solution protects children with the Safe Child Act. This requires that in all custody and visitation decisions the health and safety of the children must be the first priority. Many people are surprised this is not already required. The proposed legislation requires courts to use genuine experts and avoids many of the outdated practices that place children in jeopardy.

Bill Delahunt created a section in his office to prosecute incest and child sexual abuse crimes. He believed that most allegations are true despite assumptions at the time that children frequently made false complaints. The original ACE study included a confidential questionnaire of over 17,000 middle age patients. 22% stated they were sexually abused as children. They had no reason to lie about this and in fact some patients probably denied abuse because embarrassment or defense mechanisms caused them to forget. Accordingly we know sexual abuse of children is far more common than we would like to believe. Nevertheless, although research confirms mothers make deliberately false allegations of sexual abuse less than 2% of the time, custody courts are giving the alleged sexual predators custody in 85% of these cases. This means courts are sending many children to live with their rapists. In this context Saunders’ finding that inadequately trained professionals tend to focus on the myth that women frequently make false allegations is especially important.

The same pathways described in the ACE research that cause health problems to children from domestic violence and child abuse also impact direct victims of domestic violence. The Academy on Violence and Abuse studied the medical costs and estimated the United States spends $333-750 billion per year on health costs related to domestic violence. I believe the higher amount is more likely because even in medical settings victims often deny or minimize their partner’s abuse. We spend over one trillion dollars per year on crime costs and at least $200 billion is caused by domestic violence. Many victims, children, third parties and abusers never reach their financial potential substantially undermining the economy. This means in the United States, domestic violence costs us over one trillion dollars annually and should be thought of as a subsidy for abusers. Even the best practices won’t end all domestic violence or related child abuse, but based on past successes, The Quincy Solution can prevent 80% of domestic violence crime and save at least $500 billion annually.

The Quincy Solution is not magic, but just the use of a group of best practices we know can prevent domestic violence. This includes strict enforcement of criminal laws, orders of protection and probation conditions; practices that make it easier for victims to leave; coordinated community response; multi-disciplinary approaches, use of current scientific research and technology like GPS; and reform of the custody courts so abusers can no longer manipulate the courts to gain custody or pressure their victim to return.

Most women will no longer have to cope with domestic violence. Children will live in safer homes and grow up happier and healthier. We will all benefit from a stronger economy, less crime and dramatically reduced health insurance costs. Of course in order to gain these life changing benefits, abusive men will no longer be able to terrorize and control their families. Sounds like the best deal we could ever make.

Barry Goldstein is a nationally recognized domestic violence author, speaker and expert. His new book, The Quincy Solution: Stop Domestic Violence and Save $500 Billion demonstrates that domestic violence is not inevitable and we can enjoy the benefits of ending abuse through the best practices in the Quincy Solution. Barry is the co-editor with Mo Therese Hannah of Domestic Violence, Abuse and Child Custody and co-author with Elizabeth Liu of Representing the Domestic Violence Survivor. To purchase the new book or join the campaign to end domestic violence with the Quincy Solution: http://stopabusecampaign.com/product/the-quincy-solution To learn more about Barry's work, check out www.Barrygoldstein.net and www.Domesticviolenceabuseandchildcustody.com Barry can be reached at Barryg78@aol.com

The Broken Custody Court System: Is there Reason for Hope?

by Barry Goldstein

Every day I hear horrific stories of courts using deeply flawed and outdated practices that ruin the lives of protective mothers and their children. I learn about the unspeakable pain and anguish caused by the bias and unwillingness to consider new research that demonstrates the standard practices are hurting children. I hate these stories with a passion while feeling deeply honored that protective mothers trust me enough to share them with me. Surprisingly, I am going to provide information that suggests that there is hope. I think this is important psychologically because we are all inevitably worn down by the catastrophic stories we experience so we need reason to hope. It also may be that in projecting a sense of confidence it will encourage better results and coverage. In fact, in recent months I have started to see signs that maybe something good is happening and this long national nightmare might eventually end.

When we are in the middle of what Dr. Daniel Saunders referred to as “harmful outcome” cases it is hard to consider the context. But ten years ago when Mo Therese Hannah and Liliane Heller Miller started the Battered Mothers Custody Conference, so many of the encouraging events I will discuss in this article could not have been imagined. At that time we had a small group of protective moms delighted to find each other and an even smaller group of professionals wanting to help them. Although the bad outcomes have continued unabated, many encouraging developments should give us some reason to hope.

Coverage in the Media

Garland Waller wrote an important chapter in Domestic Violence, Abuse and Child Custody about the failure of the media to expose the child custody scandal. She explained some of the reasons the media was reluctant to cover these cases, but also said that at some point there would be sufficient awareness of the courts’ failure to protect children that we would reach the “tipping point” and the public would no longer tolerate the mistreatment of battered mothers and their children. Since the publication of the book, we have started to see some important media coverage that is moving us towards the “tipping point.”

The best coverage has been on the Fox station in Los Angeles. They have done a series of stories about the failures of the court system and child protective agency to protect children. I want to specifically mention the work of Kathleen Russell, Tammi Stefano and Connie Valentine in helping to encourage and promote these stories, but I am sure there are others I am missing.

One of the most compelling stories involves a young man named Damon. He revealed his father’s sexual abuse, but as happens all too often in the broken system the courts refused to listen and gave custody to the abuser. His mother, Cindy Dumas has fought hard to protect Damon, but the court disbelieved her and retaliated against her. The Fox station included several news segments about Damon including an interview that was taped at a secret location after he ran away from his father and remained in hiding for over a year. The station also interviewed the father who denied his abuse and could not explain why he would force the teen to stay on the run rather than agree for him to live with his mother. The court refused to respond to why they continued to keep Damon at risk. This story had a relatively happy ending in that Damon learned that if he married, the law would make him emancipated so that the custody order would no longer be valid. At sixteen he was allowed to marry in Nevada and thus earn his freedom from his abusive father.

The series of reports also followed demonstrations at the courthouse by protective mothers who complained they were mistreated and the courts failed to protect their children. Several of the moms were interviewed for the news reports. Significantly, looking at many different cases helped to demonstrate that this is a widespread problem and not based on an unusual mistake.

One of the most revealing pieces involved an interview with former Judge DeAnn Salcido. She explained that as part of their judicial trainings, a senior judge told them to be skeptical of mother’s abuse allegations. This helps to explain why so many true allegations of domestic violence and child abuse made by mothers are disbelieved. Significantly, many of the gender bias committees appointed by courts around the country have found that men are given more credibility than women and this kind of misinformation certainly contributes to this bias and to court errors. The Saunders’ study found that court professionals without adequate training in domestic violence tended to believe the myth that mothers frequently make deliberately false allegations of abuse. It is truly outrageous that court sponsored trainings would include statements by judges encouraging other judges to use biased beliefs that put children in danger.

This series of stories is ongoing and has created a powerful response. I think the station has found that as they investigated mothers’ complaints, the complaints are reliable and the courts are routinely placing children at risk. This can only encourage more stories on Fox and other media outlets. FoxLA is to be commended for helping to expose a scandal that has destroyed so many children’s lives and undermined the work to prevent domestic violence.

The Dr. Phil program provided two programs that helped expose the crisis in the custody court system to a national audience. Dr. Phil promised to follow-up to help create the needed changes but thus far this has not happened. The show featured several victims of the court system including Katie Tagle who had pleaded with the judge to protect her nine-month old baby, Wyatt. As would be suggested by following the judicial training in California to disbelieve mothers, the judge repeatedly said he thought Ms. Tagle was lying when she said the father threatened to kill their baby. The father used the access provided by the court to murder Wyatt and himself. Kathleen Russell was instrumental in creating these shows and appeared on the first one.

Two heartbreaking tragedies in the Washington, D.C. area and effective advocacy work by Eileen King led to some really valuable coverage in the Washington Post. In one case, Dr. Amy Castillo sought to protect her three children from their abusive father. Right before appearing in court on her application for a protective order she had marital relations with her husband. The judge learned of this and assumed this meant the father could not be too dangerous. This was a good illustration of the problem of relying on court professionals who do not understand domestic violence dynamics and so never considered it might not have been safe for the mother to refuse the father’s sexual demands. The father used the access provided by the court to murder the children.

Joaquin Rams had a long history of dangerous criminal activity and was suspected in at least two other murders. As a result he was initially limited to supervised visitation. We have seen repeatedly that courts create an urgency to restore normal visitation to fathers even in the face of serious safety risks. The judge had little experience in domestic relations cases and openly stated that he did not like responding to these cases. He decided to give the father unsupervised visits over the objections of the mother. This decision led to the death of Prince McLeod Rams before he could reach his second birthday. The father is in jail awaiting trial for murder.

The disparity in how supervised visitation is handled between mothers and fathers is illustrated by the case of Natalie Khawam. This was a case that was in the news after her twin sister, Jill Kelly filed a complaint against the woman who had an affair with General Petraeus. General Allen and General Petraeus sent letters to the judge accurately describing what a good mother Ms. Khawam is. The mother always took good care of the child and is the primary attachment figure. This means that continuing supervised visits increases the child’s risk for depression, low self-esteem and suicide when older. She was limited to supervised visits based on the court’s failure to provide a hearing for the evidence of domestic violence, evaluation by a notorious psychologist who is part of the cottage industry supporting abusive fathers and claims of alienation. In other words there were no issues related to the safety of the child. Nevertheless the courts that couldn’t wait to resume visitation with a dangerous father are willing to delay years before resuming normal visitation with a safe mother.

These and other cases created an interest by the Washington Post about the custody court system. Eileen King cultivated a relationship with an editor on the editorial board and provided research and other information. This led to a meeting between the Washington Post Editorial Board and a small group of domestic violence experts. We provided information about the Rams case and the context of the problem. On the Saturday of the Battered Mothers Custody Conference we were excited to see a Washington Post editorial supporting the conference.

One of the highlights of the Battered Mothers’ Custody Conference was the presentation of awards to Els Lucas, the attorney who so ably represented Holly Collins and helped her win asylum. The Kingdom of the Netherlands also received an award and the Dutch Embassy put out a press release about the awards ceremony that drew more attention to the court system’s failure to protect children. Quenby Wilcox also attended the conference and received plenty of material for her newsletter that responds to the custody issue as an international problem. Claire O’Toole was also at the conference and has been writing for the Washington Times.com including a three part article about Damon.

Cara Tabachnick wrote an important article for The Crime Report that discussed the problem of abusive fathers in contested custody cases killing their children. A shorter version of the article appeared in the Daily Beast. She followed up with a report about the judge in the Katie Tagle case who lost re-election because of his failure to protect Baby Wyatt.

Garland Waller produced a brilliant documentary film about the Holly Collins story entitled No Way Out But One. The film has won numerous awards, played at several conferences and film festivals and on television. It is available on DVD and can be used to help the public become more aware of the child custody scandal. Indeed it is a dramatic way to discuss these issues.

There have been other stories, particularly about individual cases and tragedies. I am aware of a few other potential stories and investigations that I cannot discuss at this time but have the potential to make a big difference. Each story has the potential of getting us closer to the tipping point and forcing court administrators to do out of embarrassment what they should be doing out of concern for the safety of children.

Compelling Scientific Research

One of the many causes for the widespread tragedy in the courts’ response to domestic violence custody cases was that there was no research available when domestic violence first became a public issue and the courts had to create a process for responding. This led to the use of popular assumptions that domestic violence was caused by mental illness, substance abuse and the actions of the victim. Courts turned to mental health professionals for advice. They are experts in mental illness and psychology, but not domestic violence. When scientific research became available which demonstrated the original assumptions were wrong, the courts never modified their approach or required experts to reference valid research to support their beliefs. This has led to evaluations that are completely subjective and tell us more about the beliefs and biases of the evaluator than the circumstances in the family. Many protective mothers have been pathologized because the evaluators did not know how to recognize or investigate domestic violence allegations. These mistakes have been compounded by the development of a cottage industry of lawyers and psychologists who learned they could make a large income by supporting approaches that favor abusive fathers. This is because most contested custody involves domestic violence and the abusers usually control the family finances as part of their controlling tactics. The courts have treated these unqualified and biased professionals as if they were neutral and treat their misinformation as if it were accurate thus poisoning still other cases.

In April of 2012, the U. S. Department of Justice released a groundbreaking study by Dr. Daniel Saunders. Since then, and even before, I have been repeatedly referencing this study for two important reasons. The findings by Dr. Saunders are incompatible with assumptions that the court system’s response to domestic violence is working for children. The fact that it comes from the U.S. Justice Department means that it has the authority and neutrality that makes it hard for judges to dismiss this research as they have sometimes sought to do with other studies.

Saunders found that the standard and required training received by judges, lawyers and evaluators does not qualify these professionals to handle domestic violence cases. These professionals need specific training in topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Those professionals without this training tend to believe the myth that mothers frequently make false allegations, support unscientific alienation theories and believe mothers’ attempts to protect their children are actually harmful to the children. These findings are incredibly valuable because most of the bad outcomes we see are created by professionals who focus on exactly this misinformation. Saunders found that these wrong beliefs lead to outcomes that are harmful to children. This is an incredibly powerful argument that is now available for mothers.

The heart of the custody courts’ failure are the extreme cases in which the outcome is that the alleged abuser receives custody and safe, protective mothers who are the primary attachment figures for their children are limited to supervised or no visitation. Saunders found that these, what he calls “harmful outcomes” are always wrong because the harm of separating children from their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was providing. In most of these cases the extreme outcome demonstrates that very flawed practices were used and in many if not most of these cases the opposite outcome would have worked better for children.

The Saunders’ study also found that courts are not imposing supervised visitation on alleged abusers frequently enough. It found that shared parenting is being used much too often and that abusers use the exchanges to harass and abuse their ex-partners and the control provided in decision making to prevent decisions that would benefit the children. The study also supported mothers’ concerns about the harm caused by professionals who are part of the cottage industry that has a financial incentive to support abusive fathers. Significantly Saunders also found that domestic violence advocates have better training and expertise than any of the court professionals on the specific topics most needed in order to understand domestic violence cases.

My book that I co-edited with Dr. Mo Therese Hannah, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY did not contain much new research. What it did was put together all the important research related to domestic violence custody cases together in one place so that it would be convenient for protective mothers and court professionals. The book provided recommendation from the leading experts in the field and encouraged the use of a multi-disciplinary approach with a focus on current scientific research. The fact that the Saunders’ study cited our book repeatedly should make it difficult for courts to challenge the authority of the information in the book. The book is particularly helpful in challenging evaluations and the use of psychological tests that were not created for the populations seen in family courts. Dan Saunders cited several of the chapters in our book which confirms it is authoritative and neutral.

FROM MADNESS TO MUTINY, a book about sexual abuse custody cases by Dr. Amy Neustein and Michael Lesher was based on a review of over 1000 child sex abuse cases. It establishes the frequency that child protective agencies and courts fail to protect children and routinely use flawed and biased practices. The authors found that in 85% of custody cases with allegations of child sexual abuse the alleged abuser was given custody. This means the faulty practices in custody courts are responsible for sending many children to live with their rapists.

In 2012, a new edition of THE BATTERER AS PARENT by Lundy Bancroft, Dr. Jay Silverman and Daniel Ritchie was published. Their findings and recommendations include that all batterers engage in harmful parenting practices, evaluators who do not work for a domestic violence agency should consult with someone who does and the abuser should pay for all costs related to his abuse including legal fees. Most significantly they recommend that in domestic violence cases the arrangement that works best for children is custody for the safe or safer parent and initially supervised visitation for the abuser. Significantly the Saunders’ study found courts are not limiting alleged abusers to supervised visitation as often as they should. Saunders also cited the original Batterer as Parent repeatedly.

My new book, co-written by Elizabeth Liu, REPRESENTING THE DOMESTIC VIOLENCE SURVIVOR puts this research together and encourages lawyers to use current research and a multi-disciplinary approach to present the strongest possible cases. The research discussed in this article is discussed extensively. Attorneys are advised to inform judges that there is now a substantial body of research that demonstrates many of the standard practices used by courts in domestic violence cases are working poorly for children. They should then ask the court to be open to hearing evidence about this research. We are hopeful that as more lawyers read the book and start presenting the right information to the courts that it will gradually change the system as court professionals become more familiar with valid scientific research.

I recently wrote an article about the health impact on children of witnessing domestic violence. I hope that my efforts will encourage lawyers and protective moms to present this information in court. It seems to me that an understanding that exposure to the father’s abuse will cause children to be sicker the rest of their lives and likely have shorter lives demands that courts rethink their standard practices that minimize and fail to recognize domestic violence. These failed practices cannot be in the best interests of the children given what we know about the health effects. The point is strengthened by recommendations in the Saunders’ study that court professionals need training about the impact of domestic violence on children.

One of the great things about the research mentioned in this article and other valid scientific research is that it reinforces each other in many ways because it speaks the truth. Courts had gotten into the practice of relying on evaluators, believing they were providing current research and then failing to notice or challenge the credibility of evaluators who could not cite valid research to support their recommendations and indeed could not answer questions about this research. We need to understand that when an evaluator says the opinion is based on clinical experience, which sounds so impressive, it really means it is just the evaluator’s personal and subjective opinion based on personal beliefs, biases and financial interests. An increased use of good research can only improve court outcomes.

United States Department of Justice

The first thing I was told during my initial meeting with staff from OVW (Office on Violence Against Women) was they had my book (the one co-edited with Mo Hannah) on their desk and were working with it. Imagine how different the court system would be if they could say the same thing. The people I have spoken with from OVW and other parts of the Justice Department get it. We don’t have to tell them that PAS is bogus, the courts frequently send children to live with abusers or that most contested custody are really domestic violence cases. They already know this. It is wonderful to have allies who have the credibility and resources to make a difference.

So why don’t we notice a difference in the outcomes of the horrendous cases we keep seeing? Under our federal system, child custody is specifically left to the states and indeed there is federal case law that limits the ability of federal courts to redress the common constitutional violations protective mothers experience in custody cases. This means the Justice Department must work indirectly to try to influence the needed reforms.

March 22, 2011 was a particularly exciting day. OVW had planned a roundtable discussion about child custody for its staff, but the enormous interest in the program led to it being expanded so that the program was available to the entire Justice Department, HHS and representatives of Vice President Biden and President Obama were also present. Non-government workers from organizations like the ABA, National Council of Juvenile and Family Court Judges and other interested groups also came to hear the presentations. The morning program featured six protective mothers and a brave teen who had been caught in the broken court system. In the afternoon I was privileged to be included among a group of twelve national experts many of whom are frequent presenters at the Battered Mothers Conference. As the only man on the panel, I joked that I was the leader of the male caucus.

The morning session had everyone in tears as we heard the heartrending stories of the unspeakable cruelty inflicted by abusive fathers with the assistance of custody courts that fail to recognize, believe or respond effectively to true allegations of abuse. These stories were perfect illustrations for the presentations in the afternoon in which we shared our experience and current research to explain why courts so frequently fail to protect children and offered recommendations for needed reforms.

Although the federal government can’t force courts to create the changes necessary to protect children, there are things it can do to help. The Saunders’ study and other research it funds can be used to help inform courts about the impact of their faulty practices. OVW recently offered grants to courts interested in implementing better practices in domestic violence cases. I was especially pleased to see that the notices included findings from the roundtable discussions. OVW has supported grants to good organizations like DV-LEAP and the Leadership Council for training, research and other assistance. We would also like to see the Justice Department withhold funds from courts and other institutions that continue to use harmful and faulty practices such as PAS and the reliance on biased and inadequately trained professionals.

I am also aware of other high level meetings with domestic violence experts I absolutely trust. Hopefully these will lead to more actions in support of protective mothers. We have also encouraged activities such as a White House Conference that would encourage the media to cover the custody court failures. For protective moms and their children, the effects of these hopeful events do not come soon enough, but it does provide hope that reforms are on the way.

The Rejection of PAS

Parental Alienation Syndrome is a bogus theory concocted by Richard Gardner to help him and other professionals who are part of the cottage industry supporting abusive fathers to obtain large incomes at the expense of the well-being of children. There continues to be ever more research that debunks the theory and demonstrates the enormous harm it has caused.

PAS was never approved by any recognized professional organization. It was never included in the DSM which is the book that includes all the valid and recognized mental health conditions. Despite intense lobbying by abuser groups and the cottage industry, it was again rejected by the American Psychiatric Association which refused to include PAS in the DSM-V because there is no valid research supporting it. I realize that not many court professionals follow current research and decisions like this, but attorneys for protective mothers can bring this to the courts’ attention which can only serve to further undermine its reputation.

Anecdotal Information about Ongoing Custody Cases

When we see so many harmful outcomes in custody cases it is easy to get discouraged and to assume protective mothers cannot win. That is why it is so wonderful when we hear of successful outcomes. Recently I have noticed that there seems to be more good outcomes. Some moms have told me that they cited Saunders or one of my books and the judge seemed to listen and protected the children. I have started to see more judges open to listening to the research and qualifying domestic violence experts.

It could be that I am hearing about cases that are the exceptions. Certainly this is not scientific proof, but it seems like some of the favorable events might be starting to penetrate the court system. I would like to think that the courts are in the process of transitioning from the old failed practices to new approaches based on current scientific research that are better able to focus on the well-being of children.

Conclusion

It is hard to be optimistic when we continue to see so many bad outcomes and courts remain defensive about correcting past mistakes. Nevertheless, it is clear that the many positive signs discussed in this article are reason to hope that we are starting to make a little bit of progress. The research is compelling and any fair consideration of the research and evidence would result in drastically different outcomes. The increased media coverage and role of the Justice Department may be nudging the courts in the right direction.

I hope protective mothers and their attorneys will continue the trend of offering genuine expert witnesses and submitting the research that is so supportive of protective mothers’ cases. At the same time we must be vigilant for the next set of abuser tactics that will be implemented if they sense they are losing the control and privilege the custody courts have been providing. I hope that our children will one day be astonished that there once was a period when the custody courts were actually supporting abusers and criminals.

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. Representing the Domestic Violence Survivor, co- authored with Elizabeth Liu is designed to train attorneys to present domestic violence cases and was released in April of 2013. Barry can be reached by email from their web site www.Domesticviolenceabuseandchildcustody.com

For more information about the new book, including access to the first approximately 50 pages or to purchase the book go to the publisher’s web site at http://civicresearchinstitute.com/rdv.html Elizabeth Liu and I have convinced our publisher to make available the last section of our chapter about GALs that lists and explains the best practices for GALs in domestic violence cases. You can now download and print this information and share it with your GAL. Everyone is welcome to share this information. I also hope you will check out my new Face book page, Barry Goldsteins Representing the Domestic Violence Survivor. Barry’s web site, www.Barrygoldstein.net is back up and running with new material.

Being a Hero Like Mickey Mantle

by Barry Goldstein

My friend, Debra Wingfield is an author, trainer and therapist. She recently wrote me about trying to talk with an attorney about the new book I wrote with Elizabeth Liu, Representing the Domestic Violence Survivor. He dismissed his need for reading the book by saying, “I know all about domestic violence and I am sure the Ph. D. custody evaluator does too.” I wish I could say I was surprised by his attitude and beliefs, but unfortunately this is all too common among court professionals. The problem is that his views are not supported by current scientific research and this false sense of competence to respond to domestic violence cases places children in jeopardy.

The initial mistake was made in good faith at a time when there was virtually no research about domestic violence available. At the time there was a widespread assumption that domestic violence was caused by mental illness, substance abuse or the actions of the victim. This led courts to respond to domestic violence custody cases when domestic violence first became a public issue by seeking assistance from mental health professionals. This in turn led to a lot of misinformation as psychiatrists, psychologists and social workers are experts in psychology and mental illness but not domestic violence. Later research established that the original assumptions were wrong, but the courts never developed the practice of looking to current scientific research to inform their decisions. The development of a cottage industry of lawyers and mental health professionals that make their money supporting abusive fathers exacerbated the problem. Most contested custody cases are really domestic violence cases and since domestic violence is about control, the abusive fathers usually control the family’s financial resources so the best way for professionals to increase income is to support practices that favor abusive fathers. This is how unscientific alienation theories became so prevalent in custody court but nowhere else. The deliberate misinformation coming from the cottage industry and the misinformation coming from inadequately trained evaluators has been heard by other court professionals throughout their careers so that it is deeply ingrained.

Would the Attorney be Willing to Look at Current Research?

Last year the U. S. Department of Justice released a major study about the training of evaluators, lawyers and judges for domestic violence cases. The study was led by Dr. Daniel Saunders of the University of Michigan. Accordingly, the study should be viewed as both authoritative and neutral.

The Saunders’ study found that there is now a substantial body of scientific research concerning domestic violence. Unfortunately the custody courts never got into the habit of looking for this research in order to inform its decisions. I have seen many cases in which the evaluator’s lack of familiarity with this research is not treated as undermining their authority or credibility. The attorney was probably relying on the training received by court professionals to justify his assumption that they are qualified for domestic violence cases, but the Saunders’ study found the standard and required training received by evaluators, judges and lawyers does not qualify them to handle domestic violence custody cases.

Dr. Saunders recommended that court professionals not only receive training in domestic violence, but need training in specific topics such as screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Significantly these topics are all directly related to the safety of children. The study found that evaluators and other court professionals without this needed training tended to focus on harmful approaches that included the myth that women frequently make false allegations, support for unscientific alienation theories and assumptions that mothers trying to protect children from abusive fathers are actually hurting the children. These beliefs led to recommendations that are harmful to children.

The Saunders’ study included interviews through questionnaires of evaluators, lawyers, judges and domestic violence advocates. It should not be surprising that the profession that knew the most about the critical issues related to the safety of children was domestic violence advocates. They routinely have to screen potential clients for domestic violence, create risk assessments in order to create safety plans and are familiar with domestic violence dynamics. We have seen many court professionals seek to prevent testimony by domestic violence experts. Clearly the judges do not understand that they are the most knowledgeable about the topics the courts most need to respond effectively to domestic violence cases. It is not just that courts make a mistake when they refuse to receive this information, but demonstrate a lack of critical thinking and perhaps even bias in limiting their sources of information.

In the Saunders’ study, between 20 and 30 percent of judges, lawyers and evaluators acknowledged they did not have the training Saunders found necessary to protect the safety of children. These numbers would be of great concern because it would result in endangering a large number of children, but the risk is actually far greater. It was not a random sample to select professionals that would participate, but rather the professionals volunteered to take part in the research. Dr. Saunders made clear that this means these numbers are not scientifically reliable. In other words we can rely on findings that inadequately trained professionals tended to believe misinformation that caused them to make recommendations that harm children but cannot rely on the numbers regarding the percentage of professionals who have the requisite training.

It seems very clear that the evaluators, judges and lawyers who agreed to take the time to answer questions about domestic violence would be the best professionals, ones who care about domestic violence and tend to have the most training. That is why these professionals agreed to take the time to fill out the questionnaires and in the case of evaluators consider how they would respond to a few vignettes. In other words, we do not know what percentage of court professionals have the needed training, but the numbers discussed in the Saunders’ study are substantially overstated. All we know is that between 70-80% of the best professionals claimed to have this training.

Even this is overstated based on the evaluators’ response to the vignettes and other questions. Saunders notes that many of the evaluators who claimed to screen for domestic violence did so by using general psychological tests that provide no information about domestic violence or parenting and were not created for the populations seen in family courts. The evaluators’ response to the vignettes further demonstrated that many who claimed to have the necessary training did not actually have the domestic violence understanding needed to respond to custody cases. Dr. Saunders suggested that the evaluators would need to use the Campbell Danger Assessment or other similar tool in order to make an informed screening for domestic violence and risk assessment. In thirty years of practicing law I never saw an evaluator use a meaningful tool that could help them respond to domestic violence. I would be surprised if the attorney referenced by Debra Wingfield has worked with any evaluator who conducted the necessary tests. This information suggests that very few evaluators have the needed training and this impacts on the qualifications of judges and lawyers who often take their information and training from these often unqualified mental health professionals.

Common Results Confirm Widespread Lack of Training

Every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers and in a recent two year period we found news stories about 175 children murdered by abusive fathers involved in contested custody cases, often with the unwitting assistance of courts that gave the fathers the access they needed to kill the children.

In the Katie Tagle case, the mother asked the judge for a protective order to limit the father to supervised visitation because he had threatened in texts and emails to kill the child. In the transcript, the judge repeatedly said he thought the mother was lying. This (false) assumption was not based on any evidence, but rather the beliefs of court professionals with inadequate training. As discussed earlier, inadequately trained professionals tend to believe the myth that women frequently make false allegations. In many of these cases this expectation leads to self-fulfilling findings by a process called confirmation bias. The father used the access granted by the judge to kill baby Wyatt. Afterwards, the judge was genuinely horrified at the result but said there was nothing he could do based on what he knew at the time. In one way he was correct. As long as court professionals continue to assume their limited training qualifies them to make decisions in domestic violence cases without the assistance of genuine domestic violence experts they have no ability to protect children or recognize the real risks abusive fathers create.

The Courageous Kids are a group of young adults who were the subject of custody court decisions in domestic violence cases. These were cases in which the courts disbelieved the mothers’ abuse allegations and gave the abusive fathers complete control so that they could silence the children. In many of these cases the mother had little or no contact with their children. These children have a moral authority none of the rest of us have because the court orders were supposed to be for their benefit and protection. Court professionals who believed the myth that mothers frequently make false allegations assumed the mother encouraged the children to lie about their father’s abuse. These children are now finally free from the father’s control and describe horrific abuse by their fathers. Everything was done to silence and intimidate these children so the fact so many Courageous Kids are speaking out demonstrates widespread failure to protect children.

The experts who wrote chapters for Domestic Violence, Abuse and Child Custody, repeatedly reviewed cases in which courts gave custody to the allegedly abusive father based on the prediction that he was more likely to promote the relationship between the mother and children. Once the fathers gained control, however they did everything possible to destroy the relationship with the mother. This would have been completely predictable if the court understood the motivation of the fathers.

Extreme Outcomes Against Children

Dan Saunders interviewed 24 protective mothers as part of his study. The purpose was to consider extreme decisions that Saunders referred to as “harmful outcomes.” These are cases in which the alleged abuser is given custody and a safe, protective mother who is the child’s primary attachment figure is limited to supervised or no visitation. These outcomes are always wrong because the harm to children is greater than any benefit the court thinks it is creating. In many cases the decision is justified based on claims of alienation or a diagnosis that pathologizes the mother. Even if these findings were accurate, the harm of separating children from their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide when older is far more significant to children’s welfare than the issues the court focused on.

It is possible in some of these cases that the abuse allegations are false or even deliberately so. If the father has good parenting skills the decision to give him custody could be right. More often the extreme outcome is an indication that flawed practices were used so that many of the findings were wrong. The extreme outcomes are often a strong indication that the court relied on inadequately trained professionals. As discussed earlier, the focus on unscientific alienation theories, myths about the frequency of false claims by mothers and assumption that attempts to protect children from dangerous abusers are actually harmful to the children are commonly associated with professionals unqualified to participate in domestic violence cases.

The bad practices, bias and lack of training frequently results in courts denying true allegations of abuse and using approaches that blame the victim. In many cases the professionals do not understand domestic violence dynamics and attempt to resolve the case without considering the context. Although most contested custody cases are domestic violence cases in which abusive fathers seek to use custody to regain control over their victims, many court professionals assume the father is acting out of love for his children. In many of these cases the father allowed or even demanded the mother provide most of the child care during the relationship. Inadequately trained professionals rarely ask how the mother’s decision to leave the father or complain about his abuse suddenly makes her unfit. In virtually any other type of court preceding his previous behavior in encouraging the mother to care for the children would be seen as a strong admission she is a fit parent.

The extreme nature of the outcome in these cases which is divorced from what actually works best for children suggests that the court was seeking to punish mothers or retaliate against them for criticizing the court and/or the father. They fail to consider that in punishing the mother they are really punishing the children. Joan Zorza warned courts to avoid these outcomes in her chapter in Domestic Violence, Abuse and Child Custody.

“Until judges and other professionals receive the specific training they need to recognize DV or the patterns (and as noted previously, many have such strong preconceived notions that they will not learn anything from even the best training), they must consult with genuine DV experts, particularly DV advocates. Otherwise, as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. In this context, it is important for courts that rule against alleged victims of DV to be open to the possibility that they made a mistake. Courts should be reluctant to take punitive or retaliatory actions against mothers who continue to believe their partners abused them.”

Interestingly, Joan wrote this before the Saunders’ study was released. Everything she wrote is supported by the research conducted by Dr. Saunders. Most of the criticism of custody courts is the result of these extreme decisions that we now know are always wrong. Unfortunately, many court professionals have reacted defensively to this criticism. The lawyer whom Debra Wingfield spoke with assumed that a Ph. D. psychologist would have sufficient understanding of domestic violence, but most of these horrendous outcomes were supported by evaluators who demonstrated their lack of qualifications by supporting what Saunders’ found to be harmful outcomes that are always wrong.

The frequency with which custody courts create these harmful outcomes is incompatible with the belief that court professionals have received adequate training. I believe most of these extreme outcomes are created by the worst judges, but the failure of appellate judges and administrative judges to discourage these harmful outcomes reflects on the entire court system. Many protective mothers and professionals helping them believe these outcomes are caused by corruption. While there are rare cases of corruption and more common cases in which the members of the cottage industry decide the outcome, I believe these outcomes are the result of inadequate training, bias and deeply flawed practices. Court officials should pay more attention to this issue, however because it is unethical for them to act in ways that create the appearance of corruption. In so many of these cases the courts ignore overwhelming evidence of abuse or refuse to listen to evidence of abuse thus creating the appearance these bad decisions were caused by corruption. By focusing on the misinformation Saunders found to frequently be used by inadequately trained judges, lawyers and evaluators, they are doing enormous harm not only to the children involved in these cases but to the reputation of the legal system.

Need for Genuine Domestic Violence Experts

A significant part of the problem was caused by a decision to treat mental health professionals as if they were the experts in domestic violence. In fairness this decision was made at a time when no research was available and there was a popular assumption that domestic violence was caused by substance abuse, mental illness and the actions of the victim. Subsequent research determined these assumptions were wrong, but the courts have continued to rely on psychologists and psychiatrists for expertise in domestic violence cases.

One of the most initially surprising findings by Saunders was that recommendations by social workers tended to work better for children than those from psychiatrists and psychologists. One reason is that social workers tend to use a more holistic approach and context is particularly important in understanding domestic violence. Indeed the common court practice of looking at each issue and incident separately contributes to their frequent failure to recognize true allegations of domestic violence. The other reason for this finding is that psychologists and psychiatrists tend to rely on psychological tests. These tests add to the costs of an evaluation but rarely are helpful in domestic violence cases. The tests were not created for the populations seen in family courts. They were designed for populations with serious mental illnesses. The tests are based on probability so that under the best of circumstances would only apply to 55-65% of the parties. The reliability is much lower when the parties are under stress such as from domestic violence or a bitter custody dispute. This often results in pathologizing protective mothers based on minor personality differences that have little or no impact on their parenting. In other cases the evaluators use flawed methods to deny true allegations of abuse and then claim the mother is paranoid or delusional. If the diagnoses were valid it would impact the rest of their lives and not just their interaction with their abuser and sometimes court professionals who fail to protect the children. In many of these cases the mothers have been successful at work, school, family and other parts of their lives which should discredit the diagnosis.

Many protective mothers and professionals who support them would like to eliminate all evaluations because they greatly increase the cost of litigation but provide little assistance to the courts. I can understand this sentiment as evaluators in domestic violence cases often do more harm than good. I believe the research suggests that courts should use critical thinking when deciding whether to appoint an evaluator. Evaluators are experts in psychology and mental health so if there is a legitimate mental health issue, something more than the father saying the mother is crazy, an evaluator can be appointed solely to consider mental health issues. Domestic violence is rarely caused by mental health problems although it can cause PTSD or depression. It is important to remember that PTSD is not something wrong with the victim but something done to her. If the level of a father’s abuse has been so severe as to cause PTSD, he is not appropriate for custody or unsupervised visitation.

The Saunders’ study found that courts need experts with training in recognizing domestic violence, risk assessment, the impact of domestic violence on children and post-separation violence. It is also critical for any expert to understand domestic violence dynamics or else they won’t know how to use their training. Domestic violence advocates work extensively on these issues as part of their job which is why Saunders found they were the most knowledgeable of any profession. Too often, however, courts have discounted the value of advocates often thinking they were biased because “they always oppose domestic violence.” This is based on a lack of critical thinking because advocates support the purpose and intent of domestic violence laws and policies. When courts rely on GALs and evaluators who are part of the cottage industry that makes its money supporting abusive fathers they are listening to professionals who seek to undermine these laws and policies. Ironically many courts treat the biased professionals as if they were neutral while refusing to hear genuine experts.

If a community experienced a series of arson fires, the courts and legislatures would likely seek assistance from the experts to learn how to best respond to arson. Accordingly they would seek the expertise of the firefighting community. No one would suggest they are biased because they always oppose arson. It is helpful to consider there are three important differences between arson and domestic violence. Arson has always been a crime so there is no hesitancy to strongly enforce the laws against arson. Most firefighters are men and in our still sexist society we tend to pay more attention to what men say. Most domestic violence advocates are women. Finally there is no arsonist rights organization.

We can imagine a tenant dealing with a slumlord who fails to provide heat, eliminate rodents or keep the property safe. The tenant would be justified in being angry at the landlord for maintaining an unsafe building. If the tenant burned down the building, even in a manner so no one was in danger of being killed by the fire, the tenant would be charged with arson. No consideration would be given to the reasons he committed arson because it is against the law and yet the courts routinely seriously consider the “justifications” abusers give for their crimes.

The Greenbook Initiative which was developed by the National Council of Juvenile and Family Court Judges includes a practice that has been adopted in many communities involving collaboration between child protective and domestic violence agencies. They cross-train staff and when CPS needs to investigate a potential domestic violence case they consult with a domestic violence advocate. This has resulted in caseworkers being better able to recognize and respond to domestic violence and create outcomes that benefit children. This should be considered best practices.

Similarly, best practices for a custody case that involves mental health and domestic violence issues is for the evaluator to consult with a domestic violence advocate. This is supported by the American Psychological Association, American Psychiatric Association and The Batterer as Parent. In practice most evaluators believe the limited training they have had in domestic violence is sufficient and do not seek the assistance of a domestic violence advocate. The Saunders’ findings demonstrate that in most cases the evaluator’s confidence is misplaced. Aside from the harmful outcomes, the discussions and reports made by evaluators demonstrate inadequate understanding of the domestic violence issues in the case. Many of the findings denying allegations of domestic violence tell us more about the beliefs and biases of the evaluator than the circumstances in the family.

Court Professionals Should Be a Hero Like Mickey Mantle

When I was a boy, I was a Yankee fan and Mickey Mantle was my hero. Two years after I first started following baseball, Mickey and Roger Maris participated in a magical season in which they challenged the home run record of the immortal Babe Ruth. Those were the days when baseball players did not seek artificial assistance. Mickey had to overcome serious injuries and yet he repeatedly was the hero in winning games as the Yankees seemed to win every year. When I played whiffle ball I would emulate his swing batting lefty and righty.

It turns out that Mickey engaged in other behavior that wasn’t so heroic. He drank far too much and was constantly womanizing. Certainly he did not treat his wife with the respect she deserved. I must admit that at the time I wouldn’t have understood the significance of these defects even if I had known. After Mickey retired, I would see him come back for Old Timer’s Day to thunderous ovations.

His drinking problems eventually led to the need for a liver transplant and later liver cancer which killed him. I was never more proud to be one of Mickey’s fans than when he held a press conference and advised fans “Don’t be like me.” He also encouraged organ donations. Mickey Mantle demonstrated enormous physical courage in playing through painful and debilitating injuries to help his team. In his last years he illustrated an important lesson that moral courage is so much more important and valuable. Here was a man who decades after his last game was still among the most well known and popular celebrities telling everyone that his behavior had been wrong and he hoped they would act differently. It took enormous honor and integrity to say that and provided huge value to our society.

The research is very clear that the present practices used in custody courts to respond to domestic violence are working poorly for children. The training received by judges, lawyers and evaluators rarely includes current scientific research or domestic violence dynamics and is usually not presented by domestic violence experts. In many ways this training is counter-productive when it creates a false sense of competence that discourages the professionals from seeking assistance from the real experts.

Debra, I hope that you will share this article with the attorney that you mentioned. Maybe Mickey Mantle can be a hero once more and get through to him. We desperately need court professionals to be like Mickey Mantle; to acknowledge that the past practices have worked poorly for children and to be open to looking at the new research particularly the Saunders’ study coming from the US Dept. of Justice; and to be open to supporting the reforms necessary to make our children safe. It will take moral courage for these professionals to make the needed changes and to be willing to accept there are domestic violence experts who can help them make better decisions.

Like most other people, I will never play center field for the Yankees and never hit a home run in Yankee Stadium. Judges, lawyers and evaluators can hit a home run for the children they are sworn to protect by having the courage to admit the present practices are hurting children and creating the reforms needed to make them safe. That would be a home run that Mickey would cheer.

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. Representing the Domestic Violence Survivor, co authored with Elizabeth Liu is designed to train attorneys to present domestic violence cases and was released in April of 2013. Barry can be reached by email from their web site www.Domesticviolenceabuseandchildcustody.com

For more information about the new book, including access to the first approximately 50 pages or to purchase the book go to the publisher’s web site at http://civicresearchinstitute.com/rdv.html

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