Why the Official Rejection of PAS Matters

by Barry Goldstein

There have been a lot of stories recently about the release of the DSM-V (Diagnostic and Statistical Manual of Mental Disorders) which contains all of the officially recognized mental health diagnoses. The “fathers’ rights” groups that were created to support male supremacy and the cottage industry of lawyers and mental health professionals that make their living supporting abusive fathers aggressively lobbied the American Psychiatric Association to pressure them to include PAS in their new DSM. Their demands were denied or should I say again denied for a very important reason. There is no valid scientific research that would support or justify the use of PAS.

On the surface, not much has changed in that PAS was rejected for the DSM-IV and is also missing from the DSM-V. Nevertheless, I believe this latest rejection has very important implications. There has now been a substantial period of time since Richard Gardner concocted PAS and self-published numerous books promoting it as part of his business. Many courts have been manipulated into allowing the use of PAS despite the lack of scientific basis. Many other professionals have sought to use PAS as a way that they can support their abuser clients. We have seen the enormous harm the use of this unscientific theory has done to children. The earlier rejection could have been chalked up to the relative newness of PAS and lack of a chance to determine its validity. I would not support that assumption as it never had any valid basis and was really the product of circular reasoning and bias. Now that all this time has passed, and the proponents have had the opportunity to make whatever case they have, the rejection of PAS by the official professional organization that oversees mental health issues should be devastating to any attempt to continue relying on PAS.

No doubt those trying to preserve this vital tool for helping abusers maintain control over their victims will seek to minimize the importance of the latest rejection. Some have even sought to claim that PAS is supported by the DSM-V even though this is obviously a lie. One of the problems we have seen in custody courts is that court professionals do not closely follow current scientific research and developments so it is important for those who seek to prevent the abuse of children make the courts aware of this important development.

Regardless of the Nomenclature When Is it PAS?

PAS has quite properly received substantial criticism and many official professional organizations have condemned its use because it has no scientific basis and is commonly used to hurt children. This has led proponents to call it by other names in an attempt to avoid its notoriety. Many judges who would not admit evidence of PAS routinely accept claims of parental alienation or alienation without considering the basis of these allegations.

Regardless of the term used, if it is used to discredit or avoid investigation of domestic violence or child abuse allegations, it is in fact PAS. If it is used to justify the kind of extreme outcomes referred to by Dr. Daniel Saunders as “harmful outcomes,” in which the alleged abuser received custody and the safe, protective mothers who is the primary attachment figure is limited to supervised or no visitation, it is in fact PAS. If it is used to suggest that the child’s hostility or fear of a parent can only be explained by the mother’s alienating behavior, it is in fact PAS.

Fundamental to PAS is the assumption that most allegations of domestic violence and child abuse are false. This is the justification to avoid an investigation of the allegations and instead assume they are false. In reality, less than 2% of abuse allegations made by mothers are deliberately false. The Saunders’ study found that inadequately trained professionals tend to believe the myth that mothers often make false allegations and believe unscientific alienation theories. Significantly this misinformation leads to recommendations and outcomes that hurt children. Accordingly when professionals rely on this type of misinformation they are being influenced and really biased by PAS.

I have heard many judges and other court professionals ask someone who seeks to challenge PAS if they would admit that parents sometimes alienate children. Certainly, even in intact families parents make negative statements about the other parent. This can be even more personal and offensive when the parents are separated. This is a topic that needs clarity of thought and PAS encourages just the opposite. If this topic has any validity in the context of custody disputes, it must be limited to its impact on children. Furthermore the impact must be based on scientific research rather than speculation and assumption which is all that PAS provides.

In one notorious case, the mother was criticized for “alienating the children” because she told them that they should eat healthy foods, dress appropriately for the weather and avoid adult oriented television programs. This is really good advice that any caring parent would be expected to provide their children. It was treated as if it was alienation because the father engaged in all of these harmful parenting practices so the good advice was considered critical of the father. Alienation is frequently applied in a gender biased manner and this case provided a good example. When the court suddenly removed the children from their mother and gave the abusive father custody, he told them that they would no longer see their mother because she moved to another city. This lie came out during a supervised visitation. This was a statement that greatly upset the children and caused tremendous harm but the biased judge had no concerns about genuine alienating behavior.

In many cases the mother’s alienating behavior involves her discussion of the father’s abuse that the children had witnessed. It is important for children to know that this kind of behavior is not acceptable in our society. It is also important for children’s reality to be supported which would be undermined if what they witnessed was denied. Nevertheless many court professionals treat anything critical of the father as if it were alienation.

When we discuss issues like domestic violence and child sexual abuse there is substantial scientific research of the enormous lifetime harm that these heinous behaviors cause to children. It is this enormous harmful impact on children that ought to require courts to take these allegations seriously. Although many court professionals take alienation claims at least as seriously as abuse complaints, there is no equivalent research in terms of the harm caused to children. When a parent tells the children false stories about the other parent, the most likely result is to undermine the relationship with the parent telling the lies. Even when the lies undermine the relationship with the other parent, the effect is usually short term. In most of the cases in which PAS is used the problem in the relationship is not some false statements but significant abuse and bad parenting that damaged the relationship. The purpose of PAS is to conflate the causes of the alienation. Not only does this encourage faulty analysis, but discourages the necessary response which is for the abuser to acknowledge his mistreatment of the mother and children and change his behavior.

We constantly see domestic violence cases in which courts grant custody to the abusive father based on the prediction that he is the parent more likely to promote the relationship between the mother and children. Once he gains custody, he uses this control to destroy the mother’s relationship with the children. This is completely predictable as The Batterer as Parent found that all batterers engage in harmful parenting practices that include undermining the relationship with the mother. Courts that aggressively pressure and punish mothers for protective behavior that is interpreted as alienation rarely take effective measures in response to fathers’ real alienation.

Many mothers, seeing the effectiveness of alienation claims made by fathers and watching their children alienated from them make their own alienation claims. Some may even seek to use PAS. We think this is a bad idea because it provides a false sense of credibility to alienation claims that usually are just abuser tactics. A better approach is to refer to these behaviors as Domestic Violence by Proxy. These alienating and undermining tactics should really be seen as a continuation of the pattern of coercive and controlling tactics used by batterers. They are hurting the children in order to hurt the mother.

What Does it Now Mean if Litigants Seek to Claim PAS?

In the context of contested custody cases which are overwhelmingly domestic violence cases, most claims of alienation, particularly in response to abuse allegations are false and part of standard abuser litigation tactics. Of course courts are required to consider each case separately so they cannot automatically dismiss alienation claims. At the same time it is useful to consider the context and know that abuser rights groups and the cottage industry encourage fathers to make alienation claims.

Courts would be wise to evaluate alienation claims based on the impact on children. The Saunders’ study found that the extreme outcomes in which children are denied a normal relationship with their safe protective mother who has provided most of the child care during the first few years of the child’s life are always harmful to children. This is 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 possible benefit. Accordingly if a claim of alienation is used to advocate for one of these harmful outcomes, the father is acting in his interest unconcerned about the very real harm it would do to the child.

PAS is commonly used in cases involving sexual abuse allegations. The purpose is to prevent a full investigation of the allegations and just assume it is a deliberate falsehood. Since mothers make deliberate false allegations less than 2% of the time this means PAS is used to encourage mistaken conclusions most of the time. Presumably the alleged abuser knows what he did or did not do, although he may define his actions as appropriate. In most cases the mother did not witness the alleged abuse for obvious reasons so she is expressing her concern based on what the child told her or the child’s behavior. One of the common causes of sexual abuse allegations are where the father violated the child’s boundaries but did not abuse the child. This could happen where the father sleeps in the same bed or lies next to the child in putting her to sleep. The father does not realize he did anything harmful and there would be no need to restrict his access. He just needs to understand that his behavior made the child uncomfortable and must be stopped. The child might also be acting out because someone else abused her. By preventing a full investigation, a father claiming alienation makes it impossible to learn what disturbed the child. A father concerned about the well being of his child would want to know the cause even if he believes the mother is lying.

If there was a legitimate alienation claim, there would be specific evidence of what actions the alleged alienating parent took and how it impacts the children. There would also be valid scientific research about the long term harm to the children. Otherwise the court is being asked to not only consider speculation but to ignore more important issues in order to do so.

This analysis of the purpose of making the alienation claims is important because if it was done as a tactic to avoid a full investigation of the abuse complaint or to seek outcomes that would be harmful to the child, it should be treated as additional proof that the party making the alienation claims is actually an abuser seeking to use the alienation tactic to reestablish control over his victim.

What Does it Mean if Court Professionals Seek to Use PAS?

Court professionals should know that PAS is bogus and unscientific. This means that when they promote claims based on PAS they are either deliberately trying to help abusers or do not possess the training necessary to understand the harm of PAS or anything else having to do with domestic violence. It really does not matter what the reason is for their mistakes, they should not be involved in domestic violence cases.

In the case of evaluators or other mental health professionals, they should be familiar with the DSM-V. This would make them aware of the rejection of PAS because there is no scientific research to support it. Accordingly, they would be guilty of malpractice if they diagnose a condition that does not exist in the DSM. Already some psychologists have lost their licenses for this improper practice and with the latest rejection of PAS, this consequence should occur more frequently. Indeed it is only the tendency of professionals to protect fellow professionals that have discouraged investigations of these obvious violations.

The Saunders’ study found that professionals with inadequate training tended to rely on unscientific alienation theories. This in turn led to outcomes that harm children. This finding alone would demand that courts refuse to rely on mental health professionals with these biased and baseless beliefs. Although lawyers are not mental health professionals, a belief in PAS confirms inadequate training and thus should disqualify them from working on domestic violence cases. Certainly courts should immediately dismiss any “neutral” professional who seeks to make decisions based on a PAS analysis. This is true even if they seek to obscure their mistake by calling it something else.

Preventing Judges from Making a Decision Based on PAS

PAS is not used in other types of courts or for any purpose other than to interfere with investigations of abuse allegations and to help abusers regain control over their victims. Other courts follow evidentiary laws and require scientific proof which was never available. In fairness to custody court judges, many of the cases and particularly the early cases that permitted the use of PAS were based on the failure of attorneys for protective mothers from challenging PAS. This was compounded by the widespread reliance on evaluators who are part of the cottage industry that earns its living by supporting abusive fathers. These biased professionals were treated as if they were neutral and this made it more difficult to challenge their use of PAS. As time passed and PAS became all too common, the response to the lack of scientific support is often to use PAS by another name like alienation or parental alienation. Many judges reason that parents do say negative things about each other and so the concept of alienation does not require scientific support. This has permitted courts to assume that there are serious consequences to children from alienating behaviors without requiring scientific proof.

In the United Kingdom, Lord Justice Nicholas Wall, who is a leading family law judge gave a speech to Families Need Fathers in which he said the worst thing that can be done to a child is for the mother to speak badly about the father. Many U. S. judges have made similar statements. I really don’t think that most judges believe that a mother calling a father an offensive name is more harmful than raping or beating a child or witnessing the father’s assault of the mother, but these statements illustrate the bias that PAS has caused. There is enormous scientific research about the catastrophic harm caused to children from witnessing domestic violence, being directly abused or being separated from their primary attachment figure. There is no valid research that would support anything close to this level of harm from alienation, but courts routinely treat these allegations as relatively equivalent and are much more believing of alienation allegations even though they are frequently false.

I believe it is important for attorneys to place these issues in context for the court. The decision by the American Psychiatric Association to reject PAS because of a lack of scientific support ought to be used to reconsider our standard judicial responses to alienation claims. This will not happen unless protective mothers raise these issues and the research aggressively. One of the fundamental problems with the court’s response to domestic violence and child abuse is that they rarely weigh the impact of these problems on children to whatever the impact would be of other far less important issues. That is one of the reasons that primary attachment and domestic violence are so often minimized by custody courts. This creates a disconnect between the courts and the best interests of children. The result is to make the best interests standard to be purely subjective and hard to appeal.

I believe many judges who allow “evidence” of PAS or alienation are not fully familiar with its origins. It is not just that it was concocted by Richard Gardner based on no research but just his personal beliefs and biases. Because it was based on his beliefs it is important for judges to know what those beliefs were. Gardner made many public statements to the effect that sex between adults and children can be acceptable. I do not think many judges would want to be associated with those beliefs. Any attempt to claim that alienation or parental alienation is different from PAS is fatally undermined if it is used to prevent a full and open investigation of the abuse allegations or to justify the extreme outcomes that Saunders and others found to always be harmful to children.

Furthermore, with the latest rejection of PAS by the American Psychiatric Association, any “expert” relying on PAS or its progeny is really telling the court that they are neither experts nor neutral. Any evaluator who is part of the cottage industry or supports PAS should be eliminated as a potential evaluator or any other neutral position.

Judges also need to be concerned about the appearances the use of PAS would cause. When the American Psychiatric Association and every other credible professional organization, including judicial organizations rejects the use of PAS, a judge would be creating an appearance of bias, ignorance or worse by permitting evidence based on PAS. Furthermore, the use of PAS frequently results in outrageous outcomes that are not based on valid evidence or the well being of children. Again this creates at least the appearance of bias or a conflict of interest. This is particularly so when the court creates an outcome current research including a study released by the U. S. Department of Justice found to always be against the best interests of children. In these circumstances that most favorable interpretation is that the judge was unqualified to handle a domestic violence case. All of these circumstances raise serious ethical concerns because judges are required to avoid even the appearance of impropriety.

Conclusion 

There was never any valid justification to permit the use of PAS by any name in the custody courts. The fraudulent use of PAS has been responsible for destroying the lives of hundreds of thousands of children. This never should have been permitted by the courts, but at the same time the courts are extremely defensive to criticism of their errors and are unlikely to acknowledge past mistakes.

Accordingly, the publication of the DSM-V should be treated as a great opportunity to ask courts to reconsider the misuse of alienation theories. The other side will not make judges aware that their favorite toy has been completely discredited. The attorneys for protective mothers must make the courts aware of this decision and start a discussion of what this means to standard court practices. Courts are not permitted to accept evidence about scientific theories that are not based on authoritative and accepted scientific research. The decision on the DSM is fundamentally incompatible with the continued use of alienation theories. This is particularly true when the theories are used to deny the primary attachment figure a normal relationship with the child or to prevent a full investigation of abuse complaints. We need to tell the courts about this and file complaints against any professionals who continue to support PAS by any name now that it has been officially discredited.

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.

Domestic Violence Safe Courts Act

By Barry Goldstein

Even when things are going well personally and professionally, you can't work on protective mother issues without regularly receiving a cruel jolt of reality from the broken court system. I just received such a jolt with the mistaken conviction of a protective mother for perjury regarding her complaints about her abuser's assault. Surely the jury could have made a better decision if they could have been told of the context that courts routinely fail to recognize domestic violence and avoided the myth most people have heard that women frequently make false allegations of abuse.

This is a classic case from the Binghamton area of New York that I used as an example of common mistakes in the custody courts in my chapter for our book. In the chapter by Judge Thomas Hornsby, he explained how in his 19th year on the bench he learned the right way to respond to certain kinds of petitions for protective orders. It takes a great deal of courage and integrity to acknowledge this need for further learning, particularly in domestic violence cases. Instead, the judge in Binghamton said he had been on the bench for fifteen years and didn't need to hear the testimony of a domestic violence expert (me). He then sent the children to live with their abusive father.

The mother in this case has spoken of the high price she must pay for trying to protect her children. She had suffered the loss of her children and knowing they are continuing to suffer abuse. She has been ruined financially and for the second time faces bogus criminal charges and jail. And so in honor of this dear friend and all the too many other mothers in similar circumstances, I would like to propose legislation to make it safe for battered mothers and their children when they come to court. Repeatedly, protective mothers come to court confident that the judge and other court professionals will protect them from their abusers, since the evidence as far as the well-being of the children is so clear. And repeatedly, the inadequately trained court professionals, relying on outdated information and discredited practices, most of which were adopted 30+ years ago at a time when no research was available, instead helps the abuser to maintain control over his partner and to punish her for revealing his abuse. For years we have debated solutions to these repeated tragedies, but before any reform is possible, we must make the courts safe for battered women and their children.

The Importance of Findings 

While findings do not have the force of law, they do explain the purpose of the law and the intent of the legislature. It is totally appropriate and advisable for attorneys and protective mothers to cite such findings in support of their interpretation of the law, and such considerations should be persuasive.

The findings should state very directly that the present court response is working poorly for women and children in domestic violence custody cases and that the intent of the legislature is to create fundamental changes in the way courts respond to such cases. The intent of the legislatures when they passed laws requiring courts to consider domestic violence in custody and visitation decisions was for the courts to take domestic violence seriously, based on the research that demonstrated the severe harm to children of witnessing abuse, but the outdated and discredited practices widely used in the court system have undermined the courts' ability to provide the protections and safety the legislatures thought they were creating.

The courts frequently fail to recognize valid complaints about domestic violence. Court professionals often do not have adequate training in domestic violence and often rely on mental health professionals who have little or no training or understanding about the dynamics of domestic violence. There are many normal behaviors by battered mothers that inadequately trained professionals use to discredit allegations of abuse that are not probative. At the same time courts often limit their focus to physical abuse and fail to use the evidence available to recognize the pattern of controlling and coercive behavior. Best practices require that professionals without extensive training in domestic violence (which is almost all of the professionals used in the custody courts) should consult with domestic violence advocates or other experts. Courts rarely use such best practices, and many judges, like the judge in the Binghamton case, mistakenly believe that several years on the bench is an adequate substitute for genuine expertise and familiarity with up-to-date scientific research.

The courts' response to allegations of child sexual abuse is particularly harmful. Sexual abuse is hard to prove because, for obvious reasons, there are rarely any witnesses except for the child. Young children may not have the language to describe what happened; older children are often reluctant to reveal the abuse because of threats or just out of loyalty to their abuser. Inadequately trained professionals often expect physical proof, but many forms of sexual abuse leave no physical evidence, and the delay before a child reveals the abuse may cause physical evidence to be unavailable. These professionals often expect children to discuss very painful and embarrassing events without taking the time to create a trusting relationship and to use play therapy or other techniques that work best with younger children. Experts know that children often recant valid complaints, but recantations are routinely treated as if they were convincing proof the mothers made deliberately false reports.

In an attempt to treat all parties fairly, courts often believe they must treat the parties the same. This is often expressed in the view that when parents come to court they must be treated equally. What is left out is any consideration of PAST PARENTING PRACTICES.. There is a difference between men and women, particularly in a society that continues to provide unearned yet often invisible privileges to men. Considering the differences between men and women is not unfair to men, but failing to consider them is unfair to women. The refusal of courts to speak of these differences, despite widespread gender bias confirmed by commissions sponsored by courts in over forty states and other research, results not in fairness or equality of how the courts treat the parties but in a huge advantage to men, especially abusive men.

Probably the biggest advantage given to fathers in custody cases stems from the widespread myth that women frequently make false allegations of abuse. A recent Department of Justice Study led by Dr. Daniel Saunders shows that evaluators with little training in domestic violence tend to believe this myth and thus make recommendations that work poorly for children. Of course, these false assumptions are often hidden from the judge, but if we don't speak openly about the difference between men and women, the biases in favor of men will continue to make the courts unsafe for women and children.

At the same time, studies, particularly one led by Nicholas Bala, establish fathers in contested custody cases are sixteen times more likely than mothers to make false allegations against the other parent. I want to be clear that this is not to say women in general are more honest than men; rather, this is limited to what goes on in contested custody cases. A large majority of fathers in such cases are abusers who are using the custody tactic to maintain control over former partners. It is based on the belief that she has no right to leave, so therefore, the use of any tactic, including raising false allegations, is justified. This is particularly important for prosecutors and child protective workers to realize, so that they don't place the resources and authority of the government on the side of abusers.

This problem is particularly exacerbated by the ability of abusers to manipulate other people, including professionals. Those who believe they have the ability to tell who is lying just by observing them are at even greater risk of being manipulated.

One of the fundamental mistakes made by the court system is treating contested custody cases as "high conflict," which implies that both parties are acting out their anger towards the other party through the children. In fact, most of these cases are domestic violence cases. The courts have adopted a lot of practices designed to encourage the parents to cooperate and to bring the parties together. Abusers love this, because it means forgetting about past history (his abuse) and gains him access to his victim. When mothers resist cooperating with someone who has hurt her and her child, she is viewed as unfriendly and often is severely punished. This is a prime example of blaming the mother for the actions of the father, something repeatedly uncovered by the state gender bias reports. The research establishes that the only methods that have been shown to change abusers' behavior are accountability and monitoring, but the courts, which are not used to looking to up-to-date research for answers, are doing just the opposite.

Needed Changes in the Law and Priorities 

One of the problems in the court system is that the standard "best interests of the child" standard is subjective and often leads to focusing on less important issues. Most states have laws or case decisions that enumerate issues the court must consider in deciding custody and visitation. Courts often focus and decide custody based on cooperation between the parties, negative statements about the other parent, financial considerations, quality of the house or apartment or other similar issues. It is not that these are not valid issues that should be considered in appropriate cases, but too often these kinds of issues trump issues that are vital to the well being of the children. The first priority must be the safety of the children. DUH! It is frightening how often this is not the priority. When there are safety issues, we need a risk assessment rather than a traditional evaluation that focuses on less important issues and often doesn't have the understanding to recognize the risks. The second priority should be arrangements that give children the best chance to reach their potential. It is hard to imagine anyone seriously objecting to these priorities, but it is not what the courts are doing today.

The research about primary attachment is not controversial. Whichever parent provides most of the child care during the first couple of years of the baby's life is the primary attachment figure and this does not change even if the living arrangements do. A child separated from their primary attachment figure is at greater risk of depression, low self-esteem, and suicidality when older. It cannot be right to impose these risks on a child unless the primary attachment figure presents a safety risk, such as someone who is a drug addict or beats the child. Negative statements about the other parent do not pose such a safety risk and have not been shown to create the long term harm of losing the primary attachment figure, but courts routinely place more emphasis on negative remarks because they have been taught to view the cases as "high conflict."

The range of harm to children from witnessing domestic violence is even greater. Such children are at increased risk for engaging in a wide variety of dysfunctional behaviors that can ruin their lives. Furthermore, domestic violence is based on a belief system so the end of a relationship is not likely to make the abuser safe. He will probably abuse future partners, so the children will witness further domestic violence if he is given custody or unsupervised visitation.

Training in domestic violence for court professionals has been a common component of the courts' response to domestic violence for many years, yet still the courts are getting a large percentage of domestic violence cases spectacularly wrong. Many judges and other professionals don't attend such trainings or don't pay attention out of a belief they already know everything or hostility to the topic. Too often the trainings have included misinformation that makes the situation worse while creating the illusion of addressing the problem.

The research that shows the frequency with which fathers in contested custody cases kill their children, often with the unintentional assistance of the court, or receive custody and unsupervised visitation despite a history of abuse ought to create an urgency for changing the status quo. The Safe Court Act must provide for the retraining of judges and other court personnel. Common misconceptions like the myth women frequently make false complaints, domestic violence ends when the parties separate, children are unaffected by witnessing abuse and mistaking domestic violence cases as "high conflict" must be addressed and corrected. Then, instead of general domestic violence training, specific topics must be taught including Recognizing Domestic Violence, Gender Bias, Effects of Domestic Violence on Children, Critical Thinking About the Use of Mental Health Professionals and More Appropriate Responses to Allegations of Child Sexual Abuse. Finally, such trainings should be sponsored or co-sponsored by an organization whose primary focus is ending domestic violence.

At the start of the movement to end domestic violence, the focus was mostly on physical abuse. But the harm to women and children is not limited to physical abuse, so there is no reason to limit the definition of domestic violence when making custody decisions. Domestic violence should be defined as a pattern of intimidating, controlling and coercive tactics by one party designed to permit that party to control their partner and make the major decisions in the relationship. These abusive actions result in the victim becoming afraid of the abuser.

Domestic violence experts are clear that in cases involving domestic violence as defined above, the best outcome for the children is custody for the non-abusive or less abusive parent and at least initially supervised visitation for the abusive parent. While many states have a presumption for this child-friendly outcome, too often it is limited by higher standards of proof or level of abuse. The harm to children is not limited to what is considered more severe abuse so there is no reason to continue such limitations on protecting children.

Particularly harmful to children is the common practice where the court fails to confirm the mother's allegations of abuse and then punishes or retaliates against the mother if she continues to believe the father is dangerous despite the court's finding. We found that when the court confirms a father's abuse, it does not further penalize him for continuing to deny his abuse, even though his continued denial is far more harmful than the mother's expressed fear of the father. This practice is bad because of the frequency that courts fail to recognize valid allegations of abuse; the harm of taking the primary attachment figure out of a child's life is far more harmful than any benefit the court thinks it is creating. The law must provide that parents will not be penalized for good faith allegations, and the practice of denying children a meaningful relationship with safe, protective parents must be discouraged.

Abusers tend to control the family finances and often use the family resources for legal and other resources while denying the same benefits to the victim. This is exacerbated by a common abuser tactic of using aggressive litigation strategies to bankrupt the victim. Courts must be encouraged to act more assertively to level the playing field by making the person controlling the family funds also provide funds for the other parent's legal needs. This will lead to fairer outcomes and discourage excessive litigation, since the abuser doesn't benefit from excessive motions if he has to pay for both lawyers.

The research is very clear that women rarely make false allegations of abuse. They do so only one or two percent of the time, but there is a widespread myth that abuse claims are frequently false. At the same time, fathers involved in contested custody cases are sixteen times more likely to make false allegations. Prosecutors, in particular, need to be trained about this common tactic so that they can avoid being manipulated to help an abuser continue his abuse as the prosecutor in the Binghamton case mistakenly did. Similarly, child protective workers, lawyers and judges need training with this information. We have seen many child protective workers refuse to investigate allegations by mothers involved in contested custody cases on the (false) assumption she is trying to gain an advantage in the litigation, but take seriously (false) allegations by fathers involved in contested custody. Obviously, each case must be investigated separately, but they need to be familiar with the research so they can understand the context.

Many communities have developed practices where child protective agencies work together with the local domestic violence agency. They cross-train each others' staffs and when child protective caseworkers have a case that may involve domestic violence, the worker consults with a domestic violence advocate. This has resulted in a greater ability to recognize domestic violence and respond in ways that benefit children. This should be considered best practices. Similarly, ethical considerations require psychologists and psychiatrists to consult with experts in areas they are not familiar with. Few court-appointed mental health professionals are experts in domestic violence but they rarely consult with domestic violence advocates or experts and courts do not discredit them for failing to do so. The law should require such consultations which must be understood as best practices.

The research shows the widespread use of mental health professionals in contested custody cases is problematical. Psychologists rely on psychological tests that were not created for the populations seen in custody courts and are based on probability, so that under the best of circumstances the results apply to only 55-65% of the parties, but this percentage is even lower in cases involving domestic violence. Frequently, we see mothers discredited because of results that show defensiveness, fear and other normal reactions to their partner's abuse. When courts fail to recognize the abuse, mothers are pathologized as paranoid or delusional when there is no pathology in other parts of their lives. Accordingly courts must use much more critical thinking in the use of mental health professionals. This expense and delay should only be used when there are genuine mental health issues involved in the case. In cases involving allegations of domestic violence or child abuse, a risk assessment using probation or other investigators and domestic violence experts familiar with lethality risks would be more useful.

Courts can save substantial time and money by having an early evidentiary hearing on allegations of domestic violence. The sole issue is whether the allegations are valid. If they are, the non-abusive or less abusive parent receives custody and the abuser initially receives supervised visitation. There is no need for evaluations, GALs or the consideration of less important issues that often distract attention from issues that most affect children. Cases that now take many months or years can be resolved in a few hours and children will quickly know who they will be living with which allows them to start the transition and healing process more quickly.

Conclusion 

We have a court system that is failing to protect battered mothers and their children because they are relying on outdated and discredited practices and beliefs that were developed at a time when no research was available. Every year, the custody courts are sending 58,000 children to abusers for custody or unprotected visitation. And every year abusive fathers involved in contested custody cases kill at least one hundred precious children, often with the unwitting assistance of courts using these standard flawed practices. Legislators and judges cannot justify continuing practices that are working so badly for our children and must operate with an urgency to reform the broken system.

These outdated and discredited practices have allowed abusers to enlist the court system to help them maintain control over their victims after they try to leave and in many cases courts continue the abuse by punishing mothers trying to protect her children. We have examined thousands of disturbing cases like the one in Binghamton where safe protective mothers are severely punished in retaliation for attempting to protect their children. The mothers lose custody and often are restricted to supervised or no visitation. They face financial ruin, court sanctions, contempt and even jail. Many prosecutors like the one in Binghamton are manipulated by abusers to bring bogus charges against protective mothers. A review of these extreme outcomes demonstrates that these decisions are almost always wrong.

Urgently, we need a law to make it safe for protective mothers to come into our courts. Our courts and our laws were designed to provide safety for battered women and we must make this true in practice instead of just theory. We must make sure that the court system can no longer be used and manipulated by abusers to retaliate and punish mothers for the crime of seeking to keep their children safe.

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.

DOMESTIC VIOLENCE SAFE COURTS ACT 

WHEREAS: The custody court system is broken resulting in thousands of children being sent for custody or unprotected visitation with abusers and hundreds of children and battered women being murdered because of the frequency with which courts fail to recognize the common abuser tactic of seeking custody in response to their victim leaving as a way to maintain control or punish her for leaving, and

WHEREAS: The custody court system adopted practices to respond to domestic violence when it first became a public issue and no research was available. These standard practices work poorly for children but have become deeply ingrained so that the courts continue to rely on outdated and discredited practices that hurt children, and

WHEREAS, The custody courts routinely fail to recognize valid allegations of domestic violence because they discredit the charges based on normal responses victims made to the abuse and fail to look for the pattern of coercive, intimidating and controlling behavior that experts understand is the hallmark of domestic violence, and

WHEREAS, The custody court system does a particularly poor job in responding to allegations of child sexual abuse rejecting 85% of such allegations although a majority of the allegations are true. These mistakes are caused by the widespread use of poor practices and bias and the reluctance to believe someone successful in other parts of their lives could do something so heinous. The courts exacerbate this common mistake by frequently retaliating against safe, protective mothers who made good faith allegations of abuse by denying the children a meaningful relationship with their mother, and

WHEREAS, Research establishes that court professionals with inadequate training in domestic violence routinely rely on the common myth that women frequently make false allegations of abuse to gain an advantage in the litigation. Courts usually fail to discredit professionals who rely on this harmful myth, and

WHEREAS, Research establishes that a large majority of contested custody cases cannot be settled because they involve abusive fathers, custody courts have been taught to treat these cases as "high conflict" by which they mean both parents are acting out of anger at their ex-partner and hurting the children in the process. This faulty assumption leads to courts failing to recognize the domestic violence and punishment of mothers for trying to protect themselves and their children, and

WHEREAS, Research establishes that fathers in contested custody cases are sixteen times more likely than mothers to make false allegations than mothers, court personnel are usually ignorant of this research and manipulated by abusers to believe false allegations. Prosecutors, judges, child protective caseworkers and other similar professionals need training to avoid being manipulated to help abusers continue to punish their victims, and

WHEREAS, There are real and legitimate differences between men and women particularly with respect to domestic violence and parenting. Repeatedly, courts have misconstrued the policy to treat mothers and fathers equally to mean regardless of past parenting. If one parent has provided most of the child care and is the primary attachment figure or one parent has been abusive, it is not in the best interests of the children to treat the parents equally, and

WHEREAS, As a result of these and many other common mistakes and outdated practices, the court system has made it unsafe for protective mothers and their children to seek assistance of the courts to protect them from abusers. This law is designed to change the failed practices in order to make sure victims of abuse will be safe in our court system and not subject to retaliation for trying to protect themselves and their children.

1. Definition: For purposes of custody and visitation determinations and consistent with the harm caused to children in witnessing domestic violence, domestic violence are tactics one intimate partner engages in against the other intimate partner. The purpose of the tactics is to coerce, intimidate and control the abuser's partner so that the abuser can make the major decisions in the relationship. Domestic violence is not limited to physical assaults and includes emotional, psychological, financial and litigation abuse. Most domestic violence is legal, but effects children negatively so that the courts should consider these tactics. Domestic violence also includes tactics to isolate the victim from friends, family and professionals who might provide support and assistance. Context is critically important in understanding domestic violence and acts that look the same may be very different because of the context and affect of the tactics. Court professionals must look at the pattern of domestic violence tactics in order to recognize domestic violence and consider which partner is afraid of the other partner as a result of the abusive tactics.

2. The best interests of the child: The first priority in custody and visitation decisions shall be the safety of the child. Risk assessments and lethality studies are more useful in considering a child's safety than traditional evaluations. The second priority in custody and visitation decisions shall be arrangements that give the child the best opportunity to reach their potential Research establishing the long term harm for children who witness domestic violence or to be separated from their primary attachment figure provide the kind of information needed to properly consider what arrangements are most likely to help children reach their potential.

3. Any court considering custody, visitation, orders of protection, criminal, tort or any other issues that involve a determination of whether domestic violence was committed or the proper response to domestic violence shall look at the specialized body of knowledge and research available such as contained in DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY, co-edited by Mo Therese Hannah and Barry Goldstein, THE BATTERER AS PARENT, written by Lundy Bancroft and Jay Silverman, the Department of Justice Study led by Daniel Saunders, the many books and articles cited in these works, and other similar examples of scientific research about domestic violence particularly in the context of child custody. If a court uses expert testimony or reports in such cases, such experts shall be expected to be familiar with this up-to-date research about domestic violence. Such experts will either possess substantial expertise about domestic violence or consult with someone who has such expertise.

4. Any court professionals with responsibility for cases that involve issues related to domestic violence shall undergo retraining concerning domestic violence. Such retraining will include information about common mistakes made as a result of using the common outdated and discredited practices used in custody and other courts and the harm such practices have caused. The retraining will also focus on avoiding common myths about domestic violence such as the myth women frequently make false allegations to gain an advantage in litigation, that abusers are no longer dangerous after the relationship ends, that only physical abuse affects children and that children always do better with both parents in their lives. The new training shall include how to recognize domestic violence, gender bias, the effects of domestic violence on children, critical thinking in the use of mental health professionals and appropriate responses and practices regarding allegations of child sexual abuse. The required training shall be sponsored or co-sponsored by an organization whose primary function is working to end domestic violence.

5. Based upon the serious harm witnessing domestic violence causes children, most experts recommend that where courts find by a preponderance of the evidence that one party has engaged in a pattern of coercive, intimidating and abusive behavior, the non-abusive or less abusive parent shall receive custody of the children and the abusive parent shall at least initially be limited to supervised visitation. In custody cases in which there are allegations of domestic violence, the court will quickly schedule an evidentiary hearing limited to the issue of domestic violence. There is no need for the appointment of an attorney for the children or an evaluator as the hearing is limited to whether or not the allegations of domestic violence are true. If the allegations are proven by a preponderance of the evidence the non-abusive or less abusive parent shall receive custody and the abusive parent shall initially receive supervised visitation. If the allegations of domestic violence are not proven by a preponderance of the evidence, the court shall remain open to later additional evidence which taken together with the earlier evidence becomes sufficient to establish the allegations of domestic violence.

6. The available scientific research establishes that the only responses that have been shown to change abuser's behavior are accountability and monitoring. Accordingly, anger management, therapy and substance abuse treatment shall not be used in response to abusive behavior, but may be used for other problems. When the court orders supervised visitation in response to a finding of domestic violence, in order to be considered by the court for unsupervised visitation, the offender must complete a batterer program, acknowledge responsibility for the abuse, promise never to commit domestic violence again and express to the children the wrongness of the abusive behavior. If the offender is granted the privilege of unsupervised visitation and commits any further acts of physical abuse to a partner or children, the unsupervised visitation shall be permanently ended.

7. While both parties should always be treated fairly, there are substantial differences between mothers and fathers and the attempt to treat both parties the same by ignoring these differences has led to widespread mistreatment of protective mothers in custody cases. Numerous flawed surveys by researchers unfamiliar with domestic violence have sought to gauge the relative abuse by men and women by counting the hits. In doing so they have missed the fact that men are generally bigger and stronger, hit harder and cause more serious injury. They have missed the fact that men and women hit each other for different reasons. Men hit to maintain control and to make the major decisions in the relationship and women hit in self-defense and to stop his abuse. There are exceptions, but these are the most frequent reasons. Most important it is very common for women to be afraid their partner will hurt or kill her so that she will do what he wants and it rarely happens that men are similarly afraid of female partners. When courts equate a woman's assault in anger and frustration from a long history of abuse with the man's assault as part of a long pattern of coercive and intimidating behavior they misunderstand the case. Similarly in our still sexist society women tend to do most of the child care and are usually the primary attachment figure. When courts ignore these circumstances in an attempt to treat both parties equally, they actually discriminate against the mother. Similarly practices that punish women for their anger or emotion after being abused or allow themselves to be manipulated by abusers further give unfair advantages to men. This is why gender bias committees appointed by courts in over forty states have found widespread favoritism towards men. Courts must be conscious of the difference between men and women and strive to avoid gender bias. As gender bias is often invisible to those engaging in it, judges shall encourage litigants and professionals to express concerns about gender bias and avoid retaliating for such complaints.

8. Financial control and abuse is often an important part of the pattern of abuse. Abusers often maintain an unfair advantage in court by virtue of having control of the family resources. This is often compounded by aggressive litigation strategies designed to bankrupt the victim. Courts shall take appropriate actions to level the playing field so that if one party is using family assets to pay legal and other fees, or has access to other resources, that party shall pay similar expenses for the alleged victim's legal fees.

9. The courts shall use more critical thinking in determining whether to use mental health professionals as experts and to limit them to their areas of expertise. Courts shall not routinely appoint mental health evaluators in all contested custody cases. Such appointments shall be limited to cases where there is credible information to suggest one of the parents has a mental disorder that may interfere with the care of the children or other issues that require mental health expertise. Psychological testing was not created for the populations seen in custody court and shall not be used to make determinations about domestic violence. In cases involving allegations of domestic violence or child abuse, if courts require a professional investigation they shall use risk assessments and lethality studies rather than evaluations.

10. The only profession that works full time on domestic violence issues is domestic violence advocates. It is the policy of this state and of the courts to work to prevent domestic violence. Accordingly domestic violence advocates shall be treated by the courts as a community resource and not as if they were partisans. Communities that have programs where child protective agencies and domestic violence organizations work together have proven that consultation with domestic violence advocates helps the caseworkers recognize domestic violence and make recommendations that work best for children. Court professionals shall consult with domestic violence advocates when considering cases with allegations involving domestic violence.

11. The myth that women frequently make false allegations of abuse is unsupported by valid scientific research, but has been relied on by unqualified professionals in ways that place children in danger. The courts shall discredit any professionals who rely on this sexist myth and avoid appointing them to represent children or conduct evaluations or other services. Any theories based on this myth shall also be discredited.

12. The use of "friendly parent" theories has proven harmful to children because of its frequent use in domestic violence cases. This theory shall never be used in cases involving allegations of domestic violence. Any use of this theory must be modified so that the "unfriendly behavior" applies not just to actions that mothers would be more likely to engage in but also to behaviors more likely to be committed by fathers. Actions like failure to pay child support, failure to cooperate on immigration and visa issues, refusal to supply medical insurance and other similar behaviors must be considered if courts use "friendly parent" theories.

13. The policy in this state and for the courts is to prevent domestic violence. Courts shall do everything in its power to make it safe for victims of domestic violence and their children to come to court. Courts must avoid being manipulated by abusers or to help abusers control or punish their partners for leaving. Prosecutors must obtain training about the common abuser tactic of making false criminal complaints against their victims. Prosecutors should attempt to speak with both sides if practicable and to use their discretion not to use the powers and authority of their office to help an abuser maintain control over the victim. Courts must seek to avoid retaliatory actions against mothers seeking only to protect the safety of themselves and their children. When courts believe the alleged victim has violated laws or orders it must also consider the benefits and harm to children that any action it might consider would have.

14. Large numbers of children are living with abusive and inappropriate parents as a result of common mistakes custody courts have made in response to domestic violence cases. In particular these courts have not relied on up-to-date research and have often relied on inadequately trained professionals. The new research available and recognition of the frequency of serious mistakes in these cases shall be considered a change of circumstances for purposes of petitions designed to correct the earlier errors even if the time to appeal has expired or the appeal failed. The court system may develop expedited, but fair alternate procedures to hear applications for correction of mistakes in earlier domestic violence cases.