Throw the Book at Abusers: Using DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY in Your Case

By Barry Goldstein

As this article is about to be published, Joan Zorza, Nancy Erickson and I are getting ready to make a presentation to the Battered Mothers Custody Conference about how protective mothers can use our book to improve their case. We hope to provide suggestions that will lead to better outcomes than we have been seeing in the custody courts. 

Integrating Research into your Case 

We often do not hear about a case until it turns bad by which point a lot has happened to undermine the protective mother's position. When a mother has a chance to present the best possible case from the start, what would we want her to do?. Perhaps the first obstacle and the first opportunity is to try to convince the court to avoid the standard practices that work poorly for children and instead look to the specialized body of up-to-date research that was unavailable when many of the standard or should I say substandard practices were first developed.

At the start of the case, let the judge know it is a domestic violence case. Point out that there is a lot of recent information and research about domestic violence custody cases and your case occurs at a time when court systems are transitioning from traditional practices that have been shown to work badly for children to improved practices based on the specialized body of scientific research now available. Ask the court to be open to using best practices as established by this research as the children in the case deserve the use of practices shown to work best for children.

At the start of the case, ask the court if everyone can agree that the first priority should be the safety of the children and the second priority to create arrangements that give the children the best chance to reach their potential. It is hard to imagine a better demonstration of the best interest of the child, but routinely courts consider other factors that are far less important to children. Courts have statutes or case law that define factors that must be considered, but none of the laws would prevent courts from making these two factors that most affect children the highest priority. By raising this issue early, protective mothers focus attention on important issues instead of the false and misleading issues abusers often use to confuse the courts.

Courts usually don't give litigants much time to discuss the case during early appearances, but these statements can be made during initial appearances, motions and in bench conferences. The myth that women frequently make false allegations of abuse to gain an advantage in litigation is a common problem and it may be right to address it early in the proceeding. The mom or her attorney can mention the myth, the correct information that such deliberately false allegations occur only one or two percent of the time and the problem courts have had in responding to valid domestic violence allegations because of a widespread belief in this myth. The court should be informed of the recent Department of Justice study led by Dr. Daniel Saunders of the University of Michigan that found professionals with inadequate training in domestic violence are more likely to believe this myth and make recommendations that are harmful to children. The court can be asked to avoid appointing professionals who believe in this myth and encourage court professionals to review the up-to-date research that proves mothers rarely make false allegations.

One of the major problems in domestic violence cases is the failure of court professionals to recognize domestic violence because they don't know what to look for. Chapter 13 of the book written by Judge Mike Brigner describes false assumptions untrained professionals often make. They believe if a woman goes back to her abuser, fails to pursue her request for a protective order or doesn't have medical or police records to corroborate an allegation of abuse, the charges must be false. In reality these are normal actions of battered women who do this for safety and other good reasons particularly when they are still living with the abuser. Court professionals should avoid discrediting allegations of domestic violence based on information that is not probative.

The other major problem courts have in recognizing domestic violence is they often fail to understand the significance of much of the available evidence that supports the mother's allegations of domestic violence. Court professionals are often looking only at evidence of physical abuse because they don't understand the reasons why abusers commit domestic violence. Domestic violence involve tactics abusive men use to maintain control over their partner and enforce what they believe is their privilege to make the major decisions in the relationship. It is not a crime of passion, but rather abusers use a cost-benefit analysis in determining when and whether to abuse his partner. This is why abusers are able to control their temper if he perceives his partner did something disrespectful when they are in public and instead waits until there are no witnesses before punishing her.

At the start of a case, protective mothers and their attorneys should put together information demonstrating the pattern of her partner's abuse. This would include abusive practices including physical, verbal, emotional, financial and legal tactics. It would also include controlling tactics like isolating her from friends and family, monitoring her behavior, false allegations of cheating, rules she has to follow and attempts to prevent professionals from helping her. The pattern would also include evidence about his motivation. Court professionals are often taught to view contested custody cases as "high conflict" by which they mean each parent is acting out their anger at the former partner to such an extreme as to hurt the children. In reality most contested custody cases are domestic violence cases which cannot be settled because of the father's abuse. Abuser groups encourage fathers who had little involvement with the children during the relationship to seek custody when she leaves in order to pressure her to return, punish her for leaving and avoid child support. Accordingly evidence of motivation would include his lack of interest in the children, poor parenting skills, use of visitation and the court case to gain access to his victim and attempt to resume their relationship. The alleged abuser's attempts to send the children to stay with a third party when the mother is available to take care of them should be used to demonstrate his goal is to hurt the mother. Sexist behavior is important evidence of motivation because sexism is the cause of domestic violence. This pattern can be used at court conferences, in motions as well as trials and appeals to help the court understand the pattern of abuse. The pattern can also be used in informal discussions with court professionals like GALs or evaluators to help them recognize the father's domestic violence.

Judges and other court professionals are often hostile or at least overly skeptical of abuse allegations. They are often more open to considering information about primary attachment even if they don't understand the full implications. At the same time, protective moms dealing with devastating issues of domestic violence and child abuse and defending against abuser tactics of demonizing the victim often fail to raise the issue of primary attachment.

Primary attachment refers to the person usually the mother who does most of the child care in the first couple of years of the baby's life. This has important consequences for the well being of the child. Primary attachment is sometimes confused with continuity, but subsequent changes in the child care arrangement, including court orders giving custody of the child to the non-primary attachment figure do not change primary attachment. Primary attachment is forever and a child deprived of regular contact with her primary attachment figure is more likely to suffer depression, low-self-esteem, commit suicide when older and other harmful effects. Unless the primary attachment figure is unsafe, how could it possibly be right to place a child at such risk? Safety issues would be a parent who is a drug addict, beats the child or some similar risk and certainly would not be just making negative statements about the other parent.

Although abusers sometimes lie or exaggerate their role in child care, in many cases they don't challenge the fact the mother provided most of the child care when the child was an infant. Other times the parties' work schedules or the father's lack of familiarity with the child's development and daily activities can be used to confirm the mother as the primary attachment figure. Once this is established, it is fair to ask why a father who claims to love the child would want to separate the child from his primary attachment figure. Information about the importance of primary attachment can be provided by the attorney during court appearances and through an expert witness at trial.

For many years, and to some extent today, if a mother complains about the father's domestic violence and sought to limit his contact, the judge would ask some version of did he also assault the children. If the answer was no, the court treated the abuser as if he was just as qualified as the mother for custody and visitation. This mistaken practice was supposed to stop after every state passed laws to take domestic violence more seriously in custody and visitation cases based on research that demonstrated the harm to children of witnessing domestic violence.

Our book contains an important chapter by Claire Crooks, Peter Jaffe and Nicholas Bala about the effects of domestic violence on children and how this information should be used in fashioning custody and visitation arrangements. In discussions during court conferences and through expert testimony at trial, courts should be informed that children who witness domestic violence (see it, hear it, see the mother's injuries, feel her fear) are more likely when they grow up to engage in serious dysfunctional behaviors like substance abuse, self-mutilation, teen pregnancy, school drop-out, prostitution, crime and for boys to abuse future partners and girls to be abused by future partners. The chapter also discusses the fact that children have developmental goals in each age category and witnessing domestic violence interferes with their ability to reach these goals. When children fail to reach developmental goals this interferes with achieving future development. In young children, being present for domestic violence can affect the hardwiring of their brain with harmful consequences for the rest of the child's life.

The severe consequences of domestic violence to children have led the writers of this chapter and most other reputable experts to recommend custody to the non-abusive or less abusive parent and supervised visitation, at least initially to the abuser. Claire Crooks, Peter Jaffe and Nicholas Bala provide a detailed discussion about best practices for future visitation with the abuser. Importantly, they recommend that the burden should be on the abuser to change his behavior and demonstrate safety instead of what many courts do which is to force the mother and children to accommodate the abuser. They recommend the abusive father complete a batterer program, accept full responsibility for his abuse and not try to minimize or blame others for his abuse. The abuser must promise never to abuse anyone again and acknowledge the harm he has caused his ex-partner and children. The court would then weigh these factors in determining whether to resume unsupervised visitation with the understanding that if he commits any further abuse his visitation will end.

These experts avoid common mistakes often committed by court professionals. The end of the relationship does not also end the danger presented by the abuser. For many women this is the most dangerous time particularly when he realizes that this time she is not coming back. Over 70% of domestic violence homicides by men are committed after she has left. In other words it is not the crime of passion many unqualified professionals assume. Every year abusive fathers involved in contested custody cases kill over one hundred children often with the unwitting assistance of the courts who fail to recognize the danger. Abusive fathers often act out their belief she had no right to leave him by going after custody, not as most court professionals believe, our of love for the children, but to pressure her to return or punish her for leaving. This is what most contested custody cases are about which courts mistakenly view as "high conflict" cases.

Significantly, domestic violence is not caused by the actions of the victim, but rather the belief system and sense of privilege of the abuser. The end of the relationship does not change his beliefs so that if he receives custody or unsupervised visitation, the children are likely to witness his abuse of future partners. This will compound the harm caused by his earlier abuse. Many inadequately trained professionals mistake the lack of physical abuse after separation as an indication he is no longer dangerous. In reality the change reflects limited access to his victim. We often see him continue his attempt to control through abusive litigation strategies and other forms of abuse, and protective mothers and their attorneys need to help the courts see how his abuse continues.

One of the common mistakes caused by viewing domestic violence cases through the "high conflict" lens is that courts seek to pressure victims to interact and cooperate with her abuser. Court professionals have been misled to believe that children would benefit from such cooperation. This works great for abusers who sought custody in order to gain access to his victim but is harmful to battered mothers and their children. If a father is to receive unsupervised visitation in such cases, genuine experts, like the contributors of the chapter, recommend parallel parenting. The court creates a very specific visitation arrangement which should not be changed by the parties. Each parent makes the rules during the time the children are with that parent. This limits the need for any communication to rare emergencies and has been shown to work better for children.

Mental Health Professionals 

Mental health professionals were brought into custody courts to provide expertise in domestic violence cases at a time when there was a widespread belief that domestic violence was caused by mental health issues, substance abuse and the behavior of the victim. Although these assumptions proved wrong and most evaluators and other mental health professionals have little or no expertise in domestic violence and are unfamiliar with the scientific research now available, courts have continued to rely on their "expertise." The research cited in our book and elsewhere demonstrates that the involvement of mental health professionals in domestic violence cases causes more harm than benefit. Judge Marjorie Fields wrote in her chapter that she refused to appoint them and was never reversed for making custody decisions without relying on mental health professionals.

Courts often automatically seek to appoint evaluators without fully considering the purpose or benefit. Since they often come to cases with biases against protective mothers, the moms should seek to prevent such appointments or limit their role to areas in which they actually have expertise. I appreciate many judges may be reluctant to try a contested custody case without a "neutral" professional, but it is worth making a record opposing such an appointment and if necessary trying to limit their role to topics for which they have expertise. Alternatively, mothers can ask for the appointment of someone with expertise in domestic violence or at least a willingness to consult with a domestic violence expert. Ask the judge or other professional seeking such an appointment how such an appointment would help the court make its decision. If there is an actual mental health issue such as credible concerns about a parent's mental health, the appointment should limit the role to questions about the mental health condition and how it would affect parenting. None of the tests psychologists use can help determine issues like parenting ability or domestic violence and unless they are the rare evaluator with domestic violence expertise and familiarity with the specialized body of research, they really have nothing to contribute to the fundamental issue before the court. A litigant will have more credibility challenging an evaluator if she does so before there is an unfavorable report.

Robin Yeamans wrote a chapter for the book that is helpful for challenging evaluation reports and particularly conclusions based on reliance on psychological tests. The tests routinely used for custody evaluations were not created for the populations seen in custody court. The evaluators rarely tell the courts that the results are based on probability so the findings may not apply to the particular parties the court must judge. Under the best of circumstances, these tests have a probable accuracy of between 55-65%. Under common situations for which evaluations are sought such as domestic violence or a stressful custody dispute, the percentages are significantly lower. Some of these tests have a demonstrated gender bias so that the same answer is treated an negative for the mother but neutral for the father. The reliance of questionable psychological exams, inability to recognize domestic violence and other questionable practices frequently result in evaluations that pathologize protective mothers.

This information can be used in objecting to the appointment of evaluators and for cross-examination if they are appointed over objection. The book provides a substantial amount of up-to-date scientific research that can be used to question the evaluator and challenge the standard methods which are far from best practices. Evaluators can be asked if they are familiar with the authoritative research that is available. If they are the attorney can demonstrate that the evaluator failed to use the practices recommended by the research and if the evaluator is unfamiliar with this research it should be grounds to disqualify or at least challenge their credibility. Protective mothers will frequently find that the bad practices criticized by the experts who wrote the book are the same approaches used by the evaluators. Joan Zorza, Judge Marjorie Fields and others explain why a family systems approach is inappropriate in domestic violence cases, but most evaluators use this approach because they do not understand domestic violence.

The research in the book can be used not only to challenge the bad information provided to the court, but to provide the court with the accurate information it needs. The mother can use her own expert witness to discuss the scientific research available and how it would apply to the case. If the mother cannot afford an expert witness she may be able to ask a domestic violence advocate to serve as her expert witness. This would emphasize an important point we want to make that domestic violence advocates are the real experts about domestic violence and the only profession working full time on domestic violence issues. Many communities have developed a practice whereby child protective agencies work together with the local domestic violence organization. They train each other's staffs and when the child protective agency has a case that might involve domestic violence, they consult with a domestic violence advocate. These programs have resulted in a better ability to recognize domestic violence and provide solutions that work best for children. Accordingly, the use of domestic violence advocates and experts should be considered best practices. To put it another way, relying on mental health professionals without consultation with domestic violence experts should be considered malpractice.

Parental Alienation Syndrome (PAS), sometimes called parental alienation or just alienation in order to avoid a discredited term is a major cause of mistaken decisions in custody courts. Dr. Paul Fink, former president of the American Psychiatric Association wrote a chapter in the book about PAS. In his chapter he included several quotes from Richard Gardner, who concocted PAS based not on any research but on his own experience and biases. These quotes are to the effect that sex between children and adults can be beneficial. I believe many of the judges who permitted the use of PAS or its progeny are unaware of these quotes and would not wish to be associated with such offensive ideas. Nancy Erickson wrote a chapter the helps protective moms counter PAS allegations.

After the Case Has Gone Bad

I believe that if the court system were using the up-to-date scientific research available to help them handle domestic violence custody cases instead of myths, stereotypes and biases that so often dominate these cases the horrendous outcomes we constantly see would be rare. Until the courts start using best practices, however we will continue to need to respond to decisions that are tragically wrong.

Many judges smugly state that if you don't like their decision the remedy is to appeal. Of course many mothers don't have the resources for appeals and often trial courts place obstacles in the way of appeals. Poor legal work or cowardly attorneys who failed to make a record of the important evidence and issues in the case often prevents any meaningful review of the decision.

If a protective mother is able to appeal, the research in the book can be particularly helpful in framing the issues. The brief can put together all the evidence that constituted the pattern of abuse. This will include tons of evidence for which the trial court failed to understand the significance. The research in the book can be cited in an appellate brief and is particularly appropriate in an amicus brief that seeks to help the appeals court understand the societal harm caused by the discredited practices routinely relied on by trial judges. In most cases the mothers will be able to contrast the assumptions, biases and unscientific approaches used by "neutral" professionals with the accurate research provided in our book and many other sources. If the assumptions are unstated the brief can discuss them based on the context and failure to provide a proper basis for the conclusions.

The worst cases, often referred to as Custody-Visitation Scandal Cases because the outcomes are so extreme and are contrary to the evidence and the well being of children involve decisions giving custody to the abuser and supervised or no visitation to a safe, protective mother who is the primary attachment figure for the child. Cases with these extreme outcomes are virtually always wrongly decided.

One of my favorite parts of the book is a quote in Joan Zorza's chapter 14 page 26. I know the page by heart because I use it so often. "Until judges and other professionals receive the specific training they need to recognize these 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." This quote also applies to allegations of child sexual abuse for which courts often deny valid allegations and then punish mothers severely for trying to protect their children.

The best time to use this quote would be when the abuser first seeks such restrictions or the judge indicates consideration of these extreme remedies because once the decision is made courts can become defensive trying to justify their mistakes. Nevertheless I would encourage protective moms to use this quote in asking courts to modify extreme restrictions particularly when the court created the restrictions without being aware of the quote or the research in the book.

Decisions on custody and visitation can always be challenged based upon a substantial change of circumstances. When a mother cannot afford to appeal or the time for appeal has expired, this may be her only avenue to change the bad decision. In most cases the decisions were the product of the use of outdated and discredited practices and the lack of information about the up-to-date scientific research now available. I believe the availability of this information is itself a change of circumstance that justifies a reconsideration of the evidence based on the information in the book and other good sources. Mothers should be able to pick out many examples of practices and assumptions misused by court professionals that led to the mistaken decision which the research shows are practices that work poorly for children.

An even stronger argument for a change of circumstance can be made when subsequent events after the decision can be combined with the new research to create an even clearer case of changed circumstances. In many of these cases, whether or not stated directly, courts give abusive fathers custody based on the prediction that they are more likely to foster a relationship between the mother and children. The prediction of domestic violence experts would be just the opposite because they understand the father was seeking custody as a way to control the mother and punish her for leaving. THE BATTERER AS PARENT says that all batterers engage in harmful parenting practices that include undermining the children's relationship with the mother. Accordingly when the father wins custody and proceeds to interfere with the relationship either by seeking court orders or his unilateral actions, this behavior confirms the predictions of domestic violence experts and discredits the predictions that led to the decision. Our book says it is common for abusive fathers to interfere with the mothers' relationships once they get custody. The courts' handling of this common issue is another example of gender bias. If the original decision supported the mother and resulted in interference with the father's relationship, the court would severely punish the mother and yet rarely does anything in response to far more objectionable behavior by the father. The mother can raise this issue by asking the court what it would do if a mother had committed the interference this father is doing.

I am not sure how this strategy of using the research to claim a change of circumstance will work. Certainly it is allowed in other areas of the law as when advances in DNA technology lead to a reconsideration of criminal convictions. I suspect it will work in some cases and not others. It is possible that even if the court rejects the initial petition it may lead to a later relaxation of visitation in which the court provides a different justification for promoting the relationship between mother and children so as not to acknowledge its prior mistakes. As this information is presented in more courts and the professionals become familiar with the research, we hope it will lead to better decisions for all protective mothers and their children.

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

Voir Dire, Oh Dear!

By Donna R. Gore, M.A.

(Instructions in the Voir Dire Criminal Jury Process- Judicial Branch State of Connecticut)

“In a moment I will excuse you from the courtroom. Then each of you will be invited back into the courtroom one by one. (Author’s emphasis) You will be seated in the witness box and each of the lawyers will ask you question. If you do not understand the question, just say so and the lawyer will re-state it for you. Remember please, there are no right or wrong answers to these questions. In response to each question, simply give your honest response. That is all that is needed. The purpose of this questioning process is to permit the lawyers to and their clients to decide if they wish you to be a juror in this particular case.

Before I excuse you, the attorneys will introduce themselves and each of them will make brief comments to you. They will read you a list of names of people who are in some way connected to this case, or who may come before the court as a witness. Listen carefully to the list to see if you know any of them. If you do, do not talk to others about it, but let me know when you come back on your own.

While you are under consideration as a juror in this case, do not discuss the case or reasons why you cannot serve with the others on the voir dire panel. There will be (six/twelve) jurors and two alternate jurors selected for this case.” 



The above instructions are supposedly written as if spoken/written by the presiding judge and written in a concrete and generic manner such that all prospective jurors can understand. (However, this author could argue that it could be written with better quality and clarity.) (i.e. “Let me know when you come back on your own…..” could be clarified to state, “Please inform me when you return to be questioned individually, that you may know one of the participants”.

No matter, this is not a writer’s guide and it is well known attorneys are more accustomed to writing legislative gobbledygook.

I digress from the point, that these instructions are very unique regarding voir dire procedures. *** In fact, the State of Connecticut in its most judicial and thorough manner decided long ago to be the only state in the country that guarantees each attorney the right to question potential jurors individually in State Court trials rather than the more efficient “group of box voir dire” procedure.

Connecticut has the unenviable reputation for having the slowest jury process among all 50 states. (CT General Statutes 54-82f guarantees the right to examine “… each juror outside the presence of other jurors.” Although group voir dire has been used in Federal cases or private practice since 2004, there has been an apprehension to change the statutory guarantee of juror questioning in isolation. In addition, it is extremely expensive and inefficient.

Well known Connecticut Criminal Defense Attorney, Norm Pattis, a defender of the underdog and down trodden defendants writes about this process in the CT Law Tribune, January 2010.

He refers to the trial involving my friend and fellow homicide survivor, Dr. Bill Petit, Jr. Attorney Pattis states, “Ice is melting in a New Haven Courtroom and the world has turned out to watch… Potential jurors will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months.” (Author’s Note: In fact, jury selection began on January 19, 2010 and ended on June 2nd. )

In addition to juror selection in isolation, other defendant imposed delays contributed to the torturous process for the Petit family and Connecticut citizenry.

Ne’er do well, hopelessly misunderstood and desperately drug addicted (or wanting to be drugged) defendant Hayes thought he could call the shots and manipulate the system, even requesting to “skip jury selection.” The epitome of arrogance! In the end, he could not.

The first delay occurred on Feb. 1, when Hayes was found unconscious in his prison cell after taking an overdose of prescription medication. Hayes' attorneys argued that his living conditions in prison were "inhumane," with a subsequent hearing held about the defense allegations.

On March 15, jury selection resumed, but was suspended again when Judge Blue ordered a mental health exam to determine whether Hayes was competent to stand trial. Once the court deemed he was competent, lawyers began selecting jurors again in early April. As of June 2nd, a total of 48 selection days, a panel of 12 regular jurors, six alternates, and two backup alternates were selected.

In the mix there were jurors who were excused… and even a brief hospital stay for the judge for which he profusely apologized. Prosecutors began presenting evidence in the case Sept. 13.

According to newspaper accounts, in the Steven Hayes trial, attorneys for the prosecution and defense were each allowed 38 peremptory challenges (Objections to retain the juror). Public defenders used 30 challenges while prosecutors used 29. When interviewed, Dr. Petit offered that in his opinion, 25 to 30 excellent jurors were excused in the process.

Getting back to the voire dire process itself… those who support this notion of sequestering and questioning individual juror done by one state that the potential juror, “would not be as candid” in their response if they were subjected to group observation. Another supposed reason is that a prospective juror may “make a declaration that taints the panel.”

Attorney Pattis and others beg to differ stating, “… Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a sidebar… better serving the juror’s privacy.” Attorney Pattis’ solution is to repeal the legislation or amend the state constitution.

As a homicide survivor, I have not been totally exempted from mailings and the initial jury selection process. I have been told that I could be requested to serve on a civil jury versus a criminal case if I made it through the voir dire process.

(Whether a violent crime survivor should be considered for any type of jury is a topic for another blog and serves to expose the inefficiencies of their computer systems, sharing of information and lists upon which they draw names, such as the Department of Motor Vehicles, and voter registration.)

During my last voir dire experience, when it was learned that I was a homicide survivor involving a defendant who was accused of robbery, (as was the current defendant,) a peremptory challenge was issued by the defense. My excusal may have been for other reasons such as not giving the “true answer” to the difference between “being innocent and being found not guilty.”

Upon reflection, I know the difference. However, while seated in the witness box, it sounded like a trick question to me… Perhaps I was excused as I volunteered to the judge in good conscience that although I wanted to perform my duty, my future career goal was to be a Victim Advocate by occupation… which clearly draws the line in the sand as to which side you lean toward.

What about the financial cost of juror participation? In Connecticut, if you are employed full time, your employer must pay you your regular wages for the first five days of jury service (anything more than 30 hours per week.) If you do not work full time, the State must pay you up to $50.00 per day for out of pocket expenses (with proper documentation) for the first five days of jury service only.

Starting on the sixth day of service, the state pays all jurors $50.00 per day and each subsequent day of service.

Let’s see, including the court costs, initial enormous jury pool, that’s 48 selection days X 12 jurors and two alternates. Whew! No wonder the State of Connecticut is in severe deficit!

As for the length, and content of actual questioning, it could be pared down in scope of to exclude, for example, questioning about the occupations of all family members.

Formulating questions to get biases can be a slippery slope. Only those most obvious are ever revealed in the span of time given. Jurors may intentionally make biased statements in hopes of being excused immediately. However, judicial personnel are not easily fooled. Those preemptory challenges are used strategically.

There are many criminal justice reforms that were put on the legislative books following the 2007 home invasion case. Some strides have been made, but a majority of those reforms have been “put on hold” as our state dipped into those funds and essentially has been “robbing Peter to pay Paul” for other programs. Will voir dire be on the priority list of changes with a new Governor at the helm? It is doubtful, as there are other more pressing needs…

We have new language to refer to criminal justice actions in Connecticut. Whether in the marble laden halls and cherry wood meeting rooms of the Legislative Office Building, on street corners or in our hometown newspapers, the term is “before/after Cheshire”, the countrified, sleepy, affluent little town once the home of this author and more recently by the Petit family (in addition to a series of Connecticut Correctional facilities) will have this indelible reputation. Such a legacy no one could have foretold….

Are we serving the best interest of families personally encountering homicide in Connecticut with our current voir dire system? Do we serve those who will be subjected to this system in the future?

Justice delayed… is justice denied when we wait for months and years to have our day in court.


Donna R. Gore, M. A.

Homicide Survivor in Connecticut

Fishing Steady Through the Storm

By Karen Rae Elkins

Sometimes the anticipation of an event is worse than the actual event, Eight empty pages put me in a state of dread. They laid on the floor next to me, staring back at me in black and white. The Evidentiary Will and Abuse Affidavit seemed like a curse, a black cloud hanging over my life. Did I really want to mull over a past with knowledge that the document before me could be used in the future? Not only no, but Hell-O'-No! The only silver lining in this black cloud would be that someone hell bent on ending my life in one way or another would spend time in jail for his actions. If he was going to plot and carry out the end of my life, I'm going to have my say, "the last word" if you want to put it that way.

I thought the Will would damage my life. As a former abused women, I'm all about damage control. I've come so far down the road from abuse to re-visit the past. My schedule was full. I was in the middle of preparing for my first fishing event that would be 189 men and me. I didn't have time to be bothered with recovery time that I was sure to need after recalling the abuse on film. After all, the truth sometimes hurts.

Violence is a hard pill to swallow. I rationalized every reason to not complete the affidavit. I contemplated just dropping out, giving up, just walking out the door and never coming back. I wanted to run, run away. I was not safe. The worst choice I could make would be to minimized the present danger. I did that too. I told myself I could get out of any situation. I just needed to be more aware of my surroundings, right? Wrong. This is the fatal mistake those who end up on CNN or FOX News make or worse, the ones who don't make the news.

Angry does not begin to touch the fire and pure disgust I felt. To my surprise I felt embarrassed and uncomfortable asking for help. I am a confident woman, and yet the uneasy feelings crept up on me. Abuse never ceases to amaze me. Just when you think you have it all going on, you discover yet another battle to be won.

I had to gather my evidence for the Will and Abuse Affidavit. I pulled the documents from past offenses from the folder. Most keep their documents in a safe place. I keep my evidence of abuse under my bed for easy access. I had not added to the folder since February of 2010. I had Sixteen precious weeks of peace.

I double clicked to open the DV folder on my computer. It stores a mixture of my life and articles written by others, it stores media evidence, photographs, written words, and sometimes my deepest thoughts. I needed a picture of the potential suspect. I went through hours of family photos to finally find one photo of him that I had not deleted.

Next I went to my journals. Most fishermen keep records of the lakes they visit. True to that nature, I have some great documentation mixed with the battles I've faced off the water. I had to put to pen several examples of abuse for the affidavit. The journal made it easy to recall dates and events. I decided to tear out three pages from my journal to add to the evidence and present them in the Will. These three pages probably hurt more than any fist. I couldn't get past the first paragraph, so I just stopped. Sure, it was an important day to remember. However, the memories were tearing me apart word by word.

I just didn't want to start filling in the blanks from the Affidavit. It was a calling I wasn't ready to answer, a major test. I could ace the test or fail to complete. I wanted to erase my past. I blamed myself. I had made bad decisions. What about my family? Once I started writing I took breaks to talk with friends. Anything to distract me from the task at hand was a welcome. The first couple of pages were the legals. I, being of sound mind, sign this document and initial each page in front of two witnesses and a notary. I would complete this section upon filling out the following pages.

The next page was pretty standard, our names, our social security numbers, the date of our marriage, our children. Our place of employment.

The meat and potatoes of the Affidavit was next. I have prepared this document in the event something happens to me. I am ..... a victim of domestic violence. I used my journals to recall the dates. I briefly stated examples of the violence I've taken from him starting with the day he fractured my face and ending with the latest event. I included violence he dealt to others. I ended the statement with the most recent event.

I was happy to be back to the legal evidence. I filled the blanks of Police Reports, Protection Orders, Divorce Decree, and weapons he is known to own. Then it gets pretty personal concerning my abuser. Does he take medications. Is he in treatment for any reason. Does he use illegal drugs or have a drinking problem. I would have never thought to include such important information. I met two witnesses in front of a notary, everyone signed the legal document and I was off to the church the final requirement to be included in the affidavit.

When you are on the firing line, just shoot. So it was lights, camera, action, shoot. One of the local churches agreed to film my testimony. Standing in front of the camera, I held the Affidavit up. I stated that the document had been witnessed and signed by a notary. Then I went page by page, just reading my statement. From start to finish it was a mere 6 minutes. I didn't miss a beat. I thanked the church and headed to work. The release I felt was wonderful. The dread I felt was my battle. What he meant for evil, I have used for good. I've given copies of my Will to two trusted friends and it will be added to a library of the affidavits of women who have championed the task of completing there story of abuse.

You see, before I prepared the affidavit, I had a bad fishing tournament. I tried to focus on fish, but it just didn't happen. It was that dark cloud... It seemed like everything that could go wrong, did. I ripped the trolling motor off the boat, weathered a bad storm and only caught one fish, be it a big fish, but just couldn't connect a hook with a fish. Even so, I held my head high because nothing stopped me from breaking new ground in the area of abuse and in fishing. I'm in the league of fishermen, literally. I say with confidence that I wouldn't change a thing even if I could. Why? After it was all said and done, affidavit complete, I went back to the lake again to fish yet another tournament. I caught my share of fish and more big fish! My hand literally looked like a brillo pad from bite marks. I could do no wrong. It was amazing. I caught all of my fish on one rod, the purple and white rod dedicated to victims of abuse. It's inscribed with the words fish steady. I got rid of the black cloud.

Abuse is complicated, demanding, and often leads to more questions than answers until you complete the affidavit. It's a strategy to be included in your fight. Not only is is documentation should anything potentially happen to you, It is, "Six minutes to freedom".

Until next time, fish steady my friends, and I will do the same. much love your way. karen

Editors Note:  Please see the re-enactment of the video testimony used in preparing the Evidentiary Abuse Affidavit.  If you are leaving a violent relationship you need to have the safety plan outlined in the book by Susan Murphy-Milano, "Time's Up: A Guide on How to Leave an Abusive and Stalking Relationship."

Too many wait too long!  Don't wait, just do it!

Courts Awarding Custody to Abusers and Domestic Violence Homicides Is There a Connection?

By Barry Goldstein

          

      The research establishing that the custody court system is broken and has a pattern of mishandling domestic violence cases is now overwhelming.  The new book, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, I co-edited with Dr. Mo Therese Hannah brings all the most up-to-date research together in one place.  It includes a multi-disciplinary review of the relevant professional fields by the leading experts in the US and Canada.  The meticulous citations provide overwhelming proof that common mistakes and the use of myths, stereotypes and gender bias have resulted in thousands of children being sent to live with abusers.  At the same time recent statistics about domestic violence homicide confirm an increase in the murder rate after many years of reductions.  Many have been quick to assume the increase is caused by the poor economy, but in this article, I want to look at what, if any role the problems in the custody court system are having on domestic violence homicides.

Lack of Research on Success of Court Outcomes 

      The court system operates upon the assumption that once a case is decided, the facts are established and the outcome is accurate.  This assumption may have contributed to the failure to seek research on the validity of court decisions in domestic violence custody cases.  It certainly has contributed to a common problem we see that once a court makes a mistake in a domestic violence case there is a pattern of courts failing to use new information to correct the initial errors made by judges and other court professionals.
      The criminal court system has received substantial criticism as an increasing number of defendants convicted of murder, some of whom were sentenced to death were later found to be innocent.  The improvement of scientific tests for DNA and other new evidence has helped courts correct errors after homicide convictions.  In context, such wrong convictions appear to be very rare, but are extremely serious because it results in adults losing the rest of their lives.
      In contrast, a large majority of domestic violence custody cases are wrongly decided with abusive fathers receiving custody or joint custody at least 70% of the time in contested custody cases.  Even when the safe parent receives custody, the court usually fails to protect the children from unsupervised visitation with the abuser.  In contrast to murder convictions that affect defendant's adult lives, the wrong decisions in custody cases often destroy or damage children's entire lives.
      Court's started relying on mental health professionals in domestic violence custody cases at a time when there was no research and many believed domestic violence was caused by mental health problems, substance abuse and the victim's behavior.  Although all of these assumptions proved wrong, the courts continue to rely on mental health professionals even when there are no legitimate mental health issues in the case.  These professionals rarely are familiar with up-to-date research and often substitute their personal beliefs, biases, myths and stereotypes for the scientific research now available.  Many use a family systems approach which is totally inappropriate in domestic violence cases.  These mistakes lead to the minimization of the importance of domestic violence and unsafe outcomes.
      If evaluations had any validity, the "experts" would be able to tell the court how the approaches used in a particular case had worked in other cases.  In fact there is virtually no such research.  Only in the custody courts can "experts" routinely give their opinions when there is no research to support them.  In contrast we have solid research about the harm of taking children from their primary attachment figure or forcing them to live with abusers.  There is no such research about "alienation" which courts tend to pay much more attention to even though the effects on children are minimal or non-existent.  The closest thing we have to research about custody outcomes are the Courageous Kids.  These are children who were sent to live with alleged abusers and have now aged out of the custody order.  The children are now young adults  and describe disastrous experiences as a result of the common practices used in the custody courts.
      Similarly, the court has not commissioned studies to see how its decisions in domestic violence custody cases have worked out.  Anecdotally we have seen many cases in which fathers courts found safe were later convicted or otherwise proven to have engaged in physical assault and sexual abuse.  We have also seen many bad outcomes for children forced to live with alleged abusers.  I strongly recommend systematic studies of the outcomes of child custody decisions.

Failure to Make Children's Safety the First Priority 

      Abusers tend to be extremely manipulative and they have had great success in misleading the courts, legislatures and media.  The men who control "fathers' rights groups are extremists whose goals include eliminating child support, repealing domestic violence laws and in some cases permitting sex between adults and children.  Obviously, if they said this to courts, they would get nowhere.  Instead they disguise their goals by seeking seemingly fair objectives like "shared custody" "friendly parent" protections and equal treatment of parents.  Who could object to such reasonable requests?
      The abusers are saying that when parents come to court for custody and visitation the parents should be treated equally regardless of the past parenting, parenting skills or history of abuse.  Of course they don't mention the last part.  Imagine if a group demanded that everyone receive equal income regardless of their contributions to increasing society's resources.  Liberals and Conservatives would deride such a demand as communism.  If we would not be willing to divide money without consideration of contribution, why would anyone take seriously a proposal to divide something so much more precious, our children, without consideration of the contributions the parents made to the well-being of the children before coming to court?
      In the new book, we present our information based upon our belief that safety of children should be the first priority and arrangements that give children the best chance to reach their potential should be the next priority.  The public would be shocked that this is not the priority in the present custody court system.  Most states use the best interest of the child standard for custody and visitation decisions, but this tends to be extremely subjective.  Even when legislation favors safety issues, we have found courts often pay more attention to less important factors like parties' income, remarriage and "friendly parent" provisions.  In fact in states that have mandated friendly parent consideration, children are even more likely to be sent to live with abusers.
      Compounding the failure of legislatures and courts to demand safety be the highest priority in custody cases, judges and the professionals they rely on rarely have the training they need to recognize domestic violence or child abuse.  Judge Mike Brigner frequently trains other judges about domestic violence.  In his chapter for the book, he describes how judges often ask him what to do about women who are lying.  When asked what they mean, they refer to women who return to their abuser, withdraw petitions for a protective order, fail to make police complaints or have hospital records.  In fact none of this is probative as battered women often act this way for safety and other reasons particularly when they are still living with their abuser.   Similarly many professionals observe fathers and children interact and if the children show no fear they believe this proves the allegations of abuse are false.  What the children understand is that their father will not hurt them with witnesses present, particularly ones he is trying to impress.  In fact they could be punished if they showed fear.
      Male supremacist groups often refer to sexual abuse allegations as the "atomic bomb" of child custody.  In reality when sexual abuse is alleged, even when strong evidence supports the allegation, the alleged abuser usually wins custody.  In research unrelated to custody, it is well established that by the time children reach the age of 18, one-third of the girls and one-sixth of the boys have been sexually abused.  Although the stereotypical rapist is a stranger in a raincoat, most rape and sexual abuse is committed by someone the victim knows, often the father.  Furthermore children rarely lie about sexual abuse because it is so painful and embarrassing.  Nevertheless, custody courts have proven to be so hostile to allegations of sexual abuse that attorneys regularly discourage these charges because they usually work against the protective mother.  Courts are reluctant to believe a father could do something so heinous, particularly if the father is successful in other parts of his life.
      With courts relying on inadequately trained professionals who quickly discount valid abuse complaints based on information that is not probative, there is little chance for them to recognize abuse and therefore be able to protect children.  The research bears this out with courts mishandling contested custody cases (most of which involve abusive fathers) and sending thousands of children to live with abusers.

Connection Between Court Mistakes and Increased Homicide Rate

      The media has done a poor job of covering the crisis in the custody court system and particularly the pattern of mistakes that result in thousands of children forced to live with abusers.  Local media cover tragedies involving murders and murder-suicides of family members, but little effort is made to look at the patterns of these tragedies.  On February 11, 2010, the National Coalition Against Domestic Violence and Center for Judicial Excellence issued a press release about two crimes in California where divorcing dads killed eight and nine-month-old babies after the courts ordered visitation despite concerns for the babies' safety.  Those who follow this issue see frequent stories of abusive fathers killing children, partners and themselves.  Most of the time there is a connection to custody and divorce proceedings, but the media usually fails to emphasize these causes.  The Dastardly Dads blog chronicles these painful cases and in doing so makes it easy to see the patterns of court practices that lead to these tragedies.  Judges and the court professionals they rely on are very aware of research that children do better with both parents in their lives, but often give less consideration to the research that this is not true if one of the parents is abusive.
      I want to be careful here because a lot of misinformation has entered the public debate out of ignorance and bias.  We have seen numerous flawed studies reported in the media purporting to find women abuse men with similar frequency as men abuse women.  Closer review of these studies demonstrate a failure to consider the severity of the assault, seriousness of injury, purpose such as self-defense, context (as part of a pattern of controlling behavior) and sexual abuse which is overwhelmingly committed by men. We don't have definitive research to determine what percentage of domestic violence homicides and child murders are caused by the crisis in the custody court system, but there is research beyond the anecdotal evidence of individual murders and murder-suicides.
      Although we know there have been many fathers who used access provided by court orders or the failure of courts to restrain his access, how do we know they would not have killed anyway?  This is similar to issues surrounding protective orders.  Some people say they are only a piece of paper and cannot protect the victim.  This view is supported by too many cases where a woman with a protective order was murdered by her ex-partner.  The research, however demonstrates that although protective orders do not prevent all homicides, women with protective orders are safer than those without this protection. 
      The government has used a lot of scarce resources to determine the effectiveness of batterer programs, anger management and therapy to prevent domestic violence.  None of these programs has been shown to reduce men's abuse of women, but unsupported claims continue to be made by those who have a financial stake in these programs.  The only response research has demonstrated to reduce domestic violence is accountability and monitoring.  Custody courts emphasize the promotion of a father's relationship with the child rather than holding him accountable for his abuse.  They sometimes send abusers to some form of program or therapy.  If this was used for accountability it might be useful, but generally they use the false assumption that completion of the program means he is then safe.  In other words custody courts are using approaches that the research demonstrates work against the safety of women and children.
      The modern movement to end domestic violence has resulted in making it easier for women to obtain criminal prosecution, protective orders, divorce, financial support, shelter and community support.  As women had access to these resources and particularly after communities adopted policies to hold men accountable, the domestic violence homicide rate was reduced.  Significantly, those communities that were stricter in enforcing accountability benefitted with even more dramatic reductions in domestic violence homicide.  Although murders of men and women by their intimate partners went down, surprisingly, the number of men's lives saved was much higher than for the lives of women.  Why would laws and practices designed to protect women have a bigger affect in saving men's lives?  Before the reforms, some women believed the only way to get away from his abuse was to kill him.  The added resources gave her other ways of leaving him.  This conclusion is supported by research that demonstrates men and women kill their intimate partners for different reasons.  Men kill to maintain control and so no one else can have her and women kill in self-defense and to stop his abuse (there are of course exceptions).  This is supported by the fact that 75% of men who kill their partners do so after she has left or is trying to leave.
      Abusive men, who believe she has no right to leave were upset at the reforms that made it easier for victims to leave their abusers.  These male supremacists developed tactics to maintain what they believe is their right to control their partners and make the major decisions in the relationship.  The cruelest tactic has been to hurt the children.  We see this in the murder or abuse of children by their fathers, but more frequently in fathers who had little involvement with the children during the relationship suddenly seeking custody when she tries to leave.  The courts have been slow to recognize or respond to this tactic and instead pressure mothers to keep the father in the children's lives regardless of his abusiveness.  Instead of pressuring the father to stop his abuse, courts routinely punish mothers for trying to protect the children.  Ironically, in an attempt to keep both parents in the children's lives, courts often deny children a meaningful relationship with their mother when she continues to believe the father is harming her children.  In almost all of these cases the mother was the primary parent and the safe parent.  As mothers and domestic violence advocates have recognized the harm and unfairness in the present custody court system, more and more mothers are staying with their abusers and accepting his beatings in order to be near their children so they can protect them.  Inevitably, some of these mothers do not survive this decision.
      In the batterer classes I teach, we often talk about how boys are taught it is ok for men to abuse women.  The men often object and say they were told not to hit girls.  They are right that boys are not told to abuse women.  Instead they see their father mistreat their mother with no consequences to the father and this gives them the message that society allows men to abuse women.  Children know much more about the father's abuse in the home than we think they observe so when the custody courts ignore the father's abuse to give him custody or unsupervised visitation, this reinforces harmful messages.  Children pay much more attention to the behavior they see then what they are told.  In minimizing and failing to recognize the father's abuse, courts are encouraging men to continue their abuse.  This is especially harmful when abusers successfully manipulate the courts to abuse the mother.  The research demonstrates that abusive men use a cost-benefit analysis in deciding whether to abuse their partners.  By seeking to support fathers' involvement with their children REGARDLESS OF THEIR HARMFUL BEHAVIOR, the courts are reinforcing harmful attitudes and behaviors.
      The flawed and outdated practices used in the custody courts are causing tremendous harm to children and society.  If the bad decisions in these courts did not result in any deaths of mothers and children they should still be reformed.  We have significant anecdotal evidence and research on related issues that makes it likely some of the murders and murder-suicides could be prevented if the custody courts made better use of the up-to-date research now available.  No one  wants to be known as the judge who hurts children or receive publicity when an abuser the judge protected kills the mother and/or children.  I would urge that research be started to determine how often custody court mistakes result in the deaths of the children they are supposed to protect.  In the meantime, I hope judges will stop sending children to live with abusers.

Barry Goldstein is a domestic violence speaker, writer and advocate.  He is co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.