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Every day I hear horrific stories of courts using deeply flawed and outdated practices that ruin the lives of protective mothers and their children.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