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

When Safety is the First Priority

By Barry Goldstein

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

What Can We Learn from Batterer Narratives? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Professionals Without Understanding of Domestic Violence Dynamics are Unqualified 

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

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

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

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

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

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

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

Risk Assessment 

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

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

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

Recognizing Domestic Violence 

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

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

Conclusion 

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

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

Enough of a Broken Custody Court System: What Would Work Better?

By Barry Goldstein

We have spent a lot of time discussing what is wrong with the custody court system particularly as it applies to domestic violence cases. This is understandable as there are so many horrendous cases in which flawed practices lead to outcomes that destroy children, undermine the reputation of the judicial system and create substantial harm to society. By now the research is overwhelming that the standard practices work poorly for children even as the custody court professionals fail to be open to the research now available. In recent years, academicians, government agencies and others have started to join protective mothers and domestic violence advocates in an understanding of the failure of the present system. We must go past mere complaints and offer solutions to reform the custody court system to be ready when those in authority are ready to listen. Accordingly I am writing this article to offer some ideas for the needed reforms. I hope this will start a discussion that will lead to a consensus on the types of reforms needed. While there will need to be a fundamental shift in attitudes to create significant reforms, I have tried to consider both what might be possible and what would work in creating my proposals.

1. Specialized Courts for Domestic Violence and Sexual Abuse Cases: This would include any cases where there are allegations or evidence of possible domestic violence or sexual abuse. Some judges and other court professionals believe it is not a domestic violence case until the allegations are proven. This is a mistake as the courts need domestic violence expertise to recognize whether or not the allegations are true. Specialized courts would have special training for the professionals and obtain expertise by responding constantly to these cases. Hopefully it would eliminate judges who don’t want to be hearing domestic violence or sexual abuse cases or have an obvious bias. This is not a panacea as it can be a disaster when the dv judge is hostile, but it seems to have a better chance. The benefit might also be limited in rural areas where there are not enough cases for specialization. Hopefully courts that can concentrate on these cases will learn best practices and to look at the patterns to help understand the cases.

2. First Priority Safety of Children, Second Priority Arrangements that give Children Best Chance to reach their Potential: Courts generally use some version of the best interests of the child standard. This sounds like it focuses on what works best for children which would be a good idea, but in practice it has created a very subjective analysis that has failed children. Some experts have suggested an approximation standard where the relative parenting time during the relationship would be replicated after the separation. This is what the parents thought worked best for the children before the disputes over the break-up clouded the process. Exceptions could be included to protect children from dangerous parents or for a serious change of circumstance such as a serious illness or substance abuse.

Most states have legislation or court decisions that create factors the courts should consider in deciding custody and visitation. The factors are usually relevant, but there is often no priority about what is most important so we often see court professionals focus on less important factors. I had one case where the judge was more concerned that the mother dressed the girls the same like twins although they were a year apart in age than the father’s abuse which included an incident observed by the children where the father took a knife to the mother’s throat. It is hard to believe that the children’s safety is not the most important priority far above all others, but it often is given less priority. Making this the priority would suggest a risk assessment rather than an evaluation that focuses on far less important and often pretend issues. Court professionals need to learn how to better recognize domestic violence and child abuse and to avoid minimizing these dangerous behaviors. A child’s safety cannot be reasonably compared with less important factors like a fancier home, higher income or negative statements about the other parent.

Similarly, the next priority should be arrangements that give the children the best chance to reach their potential. Children who are separated from their primary attachment figure are more likely to commit suicide, suffer depression or low self-esteem. It doesn’t make sense to take this risk except for something that can be shown to severely impact children. Research also shows that children witnessing domestic violence are more likely to engage in a wide range of harmful behavior. Allegations of alienation have not been shown to have such long-term harmful effects, but courts routinely focus on such less significant issues. The benefit of focusing on arrangements that help children reach their potential is the decisions would be more objective and based on valid scientific research.

In any decision, temporary or permanent in which a court diverges from the result that would have been created based upon the approximation standard, the court should put in writing:

• The harm the decision will cause the child (such as primary attachment issues)
• The benefits to the child the court believes it is creating by the decision 
• Current scientific research that supports the expected benefits and supports the belief the benefits are more important to the well being of the child than the harm. 
• The basis for the factual findings 
• All significant evidence that would support a finding of a pattern of coercive control or intimidating behavior by the alleged abuser. 

These requirements would force judges to focus on the most important issues for children and to at least put in the record the evidence considered. If the judge failed to consider important evidence or minimized it, an appellate court could more easily overturn the decision. This in turn would discourage judges from making a lot of the standard mistakes we see today.

3. Early Hearing on Domestic Violence: Near the start of any custody case that includes allegations or information about domestic violence, and before any appointment of an GAL or other representative for the child or any evaluator or other mental health professional, the court will schedule a hearing limited to the question of whether or not one of the parties has engaged in a pattern of coercive, controlling or intimidating behavior towards the other party. If such a pattern is established by a preponderance of the evidence, and the non-abusive parent is a safe parent (i.e. not a drug addict, beat the kids, etc) the non-abusive or less abusive parent shall receive custody and the abusive parent shall initially receive supervised visitation. In order to resume unsupervised visitation, the abusive parent must complete a batterer program or other form of accountability (therapy, anger management, substance abuse and other similar programs that have not been shown to change abusers' behavior shall not satisfy this requirement). The abusive parent must acknowledge sole responsibility for the abuse, commit to never abusing the mother and any other intimate partner and stop all forms of domestic violence tactics. If the abusive parent satisfies these requirements the court shall have the authority to order the resumption of unsupervised visitation in whatever gradualized manner the court deems appropriate with the understanding that if the parent commits further acts of domestic violence, all visitation shall stop. If the court does not find sufficient proof of domestic violence, the case shall continue, but the court shall be open to additional evidence and events that together with the evidence initially submitted constitute sufficient evidence to support a finding of domestic violence. This idea might appeal to courts because it would save a lot of resources and court time. Cases that now take many months or years could be resolved in a few hours and children would quickly know which parent they will be living with. This would also save a substantial amount in legal and other fees thus limiting the common abuser tactic of bankrupting the mother with aggressive litigation tactics. Most important the hearing would focus on domestic violence without distraction from other less important issues that abusers often use as a tactic to avoid accountability. This should lead to better decisions.

4. Custody Decisions to rely on Valid, Current Scientific Research: Custody decisions shall be made based upon the use of valid and current scientific research. Any expert testimony must be based upon such current research. Experts qualifying to testify based upon mental health degrees and practice shall be limited to testimony concerning mental health issues. Mental health professionals shall not be used in custody cases in which no significant mental health issue exists. Degrees in medicine, psychology or social work shall not be taken as proof of expertise in domestic violence. In any cases in which there are allegations or evidence of domestic violence, no mental health professional shall testify as an expert without consulting a domestic violence advocate or other expert. In order to testify or provide other assistance to the court as a domestic violence expert, the individual must work as a domestic violence advocate or other similar position at a recognized domestic violence organization, be approved as an expert by such recognized domestic violence organization or convince the court of expertise based on training and experience in domestic violence issues and familiarity with current scientific research. Any court professional whose behavior, practices or professional approaches creates the appearance of minimizing the importance of domestic violence or opposing the state policy of seeking to end domestic violence may not be considered for any position that would be considered a neutral professional.

We see repeatedly that courts rely on mental health professionals who often have no expertise in domestic violence and either cite bogus research that has serious flaws or just use what they call their clinical experience (which means their personal beliefs and prejudices). If there is any basis for courts to hear testimony from experts it must be based on a familiarity with current scientific research such as is found in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Part of the problem is that there was no research when custody courts initially adopted current practices and so they never got into the habit or expectation of looking for current research to inform their decisions. At the same time a cottage industry has developed where court professionals have realized the abusers have control of the family finances so the way to make money is to support approaches that favor abusers. This has led to articles by abuser rights mental health professionals that are not peer reviewed or based on any valid research.

5. Avoid Gender Biased Practices: Domestic violence and sexual abuse are gendered crimes. Repeated court-sponsored gender bias committees and other research have found widespread gender bias against women and particularly women litigants in child custody cases. The Constitution and our sense of fairness require men and women to be treated equally under similar circumstances, but failure to consider the fundamental differences between men and women is a violation of equal protection and fundamental fairness. Accordingly, practices that require mothers and fathers to be treated the same regardless of past parenting are not in the best interests of children and should not be permitted. Custody and visitation decisions should be made based upon the needs and well being of the children rather than the "rights" of the parents. Gender bias is often unconscious so judges must be open to concerns of mothers that they or other court professionals have engaged in gender bias and the use of gender biased approaches should require appeals courts to overturn the biased decisions.

6. Accountability: GALs, evaluators and other appointed court professionals shall not have immunity from civil lawsuits in connection with their work. If the evidence demonstrates the lawsuit was brought as part of a pattern of coercive, intimidating and controlling behavior towards their intimate partner, the defendant will be entitled to reimbursement of legal fees and expenses. Judges shall have a qualified immunity provided they avoid gross negligence, deliberate and unjustified retaliation or violation of a party's civil rights. Before a lawsuit can be brought against a judge, the party must obtain permission from a commission set up to review potential lawsuits against judges. A majority of the commission shall not be part of the legal profession. No one shall take part in review of a proposed lawsuit who has appeared or is likely to appear before the judge or has other professional connection that would create an appearance of bias. The commission or panel making the decision must include someone who is an expert in domestic violence.

In addition to other issues normally reviewed by judicial conduct committees, the committees shall investigate allegations of gender bias, retaliation for criticism of the judge or the court and a lack of understanding of domestic violence issues. Aside from other considerations, these issues will be investigated to determine if the judge needs retraining in these issues. A majority of the committees shall not be part of the legal profession and no one should participate in consideration of a complaint who has or might appear before the judge or have other potential conflicts. States shall provide sufficient funds so that significant issues raised in complaints shall be investigated. Lawyers shall not be subject to discipline for good faith criticism of the court or a judge and the court system shall take steps to avoid creating the appearance of retaliation for such criticism.

I know many mothers who have been cruelly mistreated by abusive judges would like to remove all immunity for judges. In practice this would not work well for protective mothers and there are legitimate justifications for judicial immunity. If all immunity was eliminated, the abusers would be the ones filing lawsuits because they have the resources and judges would be afraid to do the right thing. We need to create meaningful accountability for court professionals without interfering with legitimate protections. I remember reading an article by a psychologist in which he pointed to the low rate of findings against evaluators in complaints by litigants and concluded it proved the complaints were mostly frivolous. He never considered that psychologists are judging themselves and have a strong bias against these complaints. It really demonstrates why a majority of those reviewing complaints against any of the professionals cannot be from the profession being reviewed.

7. Economic Abuse: Custody courts shall take steps to prevent the outcome of custody cases to be decided by the relative resources of the parties. Courts shall level the playing field where one party has control of most of the family resources by ordering the wealthier parent to contribute to the other parent's legal expenses. In cases in which a pattern of coercive, intimidating and controlling tactics is established, the abusive parent shall be responsible for all expenses made necessary by their abuse. Courts shall consider economic abuse in considering allegations of domestic violence.

Abusers often threaten their victims that if she dares to leave he will bankrupt her and go after the children. Judges and other court professionals are often untrained in the use of economic abuse and rarely take steps to prevent this unfair strategy or use it to help understand the pattern of abuse. If courts were to respond aggressively to this tactic they would save a lot of work and court time because the abusers would no longer have an incentive to pursue a lot of frivolous claims and strategies.

8. The Importance of Context: Context is critical to understanding domestic violence issues. Accordingly custody courts shall avoid practices where each incident or issue is reviewed separately so that the context is hidden. Even where courts have made decisions denying domestic violence or similar allegations, this shall not prevent the court from examining new or additional examples or evidence of domestic violence in the context of the previous evidence rejected in an earlier decision. Similarly courts should be open to considering earlier evidence in the light of current research not previously considered. We have frequently seen courts give custody to alleged abusers on the assumption they were more likely to promote the relationship with the mother and once they gain control undermining or destroying the relationship. This behavior should be used to demonstrate the original assumptions were wrong and support the allegations of abuse because it demonstrates his motivation. Nevertheless, courts that severely punish mothers for asking courts to limit contact with dangerous fathers routinely do nothing when the fathers not only ask the court to interfere with the mother’s relationship, but unilaterally take actions to limit contact between the mother and children.

9. Review of Catastrophic Outcomes: A Catastrophe Review Commission shall be established to review events occurring after a decision in a domestic violence custody case that demonstrate the predictions made in the custody decision were catastrophically wrong. This would include cases where an alleged abuser found safe by the court later kills a child or intimate partner, is convicted of sexual abuse, child pornography, a domestic violence crime or other similar event that makes it likely the original decision was tragically wrong. A domestic violence expert shall be part of any panel reviewing these cases. The panel shall issue a public report that includes the names of the parties and professionals involved in the case, findings and recommendations. One of the problems we see is that unless a father immediately kills the children there are no consequences to judges making dangerous decisions. If they knew later events could trigger an investigation that could place the court’s mistakes in the context of some tragedy they might be afraid to take the chance.

10. Protective Parent Act: No penalty or retaliation shall be imposed for a good faith report of domestic violence or child abuse. A determination that a report of domestic violence or child abuse is not supported by sufficient evidence to confirm the allegation shall not by itself be used as proof that the allegation was deliberately false or to discredit the person making the allegation. The myth that women often make false allegations has led inadequately trained court professionals to create a punitive and retaliatory response to allegations of abuse. The decisions usually cause more harm to children than any expected benefit. Sexual abuse allegations are particularly difficult to prove. Inadequate proof, particularly in the context of common poor investigation practices do not mean the allegations were deliberately false, but too many court professionals fail to understand the distinction.

11. Courts May Not Consider Theories Based on Myths: No theories or approaches based on the myth that women frequently make false allegations of abuse shall be considered in a custody case. No professional who expresses a belief in this myth shall be qualified to participate as a neutral professional in a custody case. A determination of a belief in this myth can be made by explicit statements or implicitly from the actions and approaches of the professional. Parental Alienation Syndrome and its progeny like “friendly parent” approaches are based on the belief almost all allegations of abuse are false. The same is true of PAS by other names such as alienation or parental alienation. These bogus theories have prevented adequate investigation of abuse allegations by assuming they are false. This reform would prevent the harm caused by these unscientific practices. It would not prevent courts from considering actual evidence of specific behaviors and the effects of proven behaviors.

12. Record Keeping: Courts shall keep records that will be available on its web site providing information for each judge about how many custody cases included allegations of domestic violence or child abuse and how many the judge upheld. This will further be divided by gender. The court will also keep records of requests for protective orders and the numbers upheld by each judge. This will not invade anyone’s privacy as the names of the cases will not be provided. We know that only one or two percent of abuse allegations made by mothers are deliberately false (some additional ones may not have sufficient proof) so that if a specific judge is consistently finding against what we know have to be valid allegations, it will establish the judge needs retraining or to be removed from sitting on a bench handling domestic violence cases. I believe just posting this information will discourage judges from making arbitrary and harmful decisions.

13. Use of Best Practices by Child Protective Agencies: Child protective agencies shall work together with a local domestic violence agency and obtain training for their staff from them. The caseworkers shall consult with domestic violence advocates or other domestic violence experts when working on any complaint in which there is information the case might involve domestic violence. Many local communities have created a partnership between child protective and domestic violence agencies. These have worked well by helping to recognize domestic violence and respond in ways that benefit children. This should be considered best practices and illustrates that a mental health degree does not demonstrate expertise in domestic violence so these professionals should be consulting with domestic violence advocates or other experts.

14. Response to Child Sexual Abuse Allegations: In any child custody case that included allegations of child sexual abuse or charges against a parent who raised concerns about child sexual abuse and the court decides to give temporary or permanent custody or joint custody to the alleged abuser, the court, in writing shall specify the following: What was the evidence that supported the sexual abuse allegations; what is the evidence that proves no sexual abuse occurred; what is the evidence that proves no boundary violation occurred; what is the evidence that the complaint was made in bad faith; what is the harm of changing custody of the child; what is the benefit of changing custody, what can be done to secure the benefit without creating the harm or minimizing the harm

No type of child custody case is mishandled worse than ones with sexual abuse allegations. By the time children reach the age of eighteen, one-third of the girls and one-sixth of the boys have been sexually abused. The stereotypical abuser is a stranger, but most rapists and molesters are someone the victim knows and for children it is often their fathers. Nevertheless 85% of sexual abuse allegations result in custody for the alleged abuser. Clearly a large percentage of these cases are wrongly decided and spectacularly so. Courts routinely use flawed practices in responding to these allegations. These reforms will force courts to at least consider important issues that are often missed in the emotions of these cases. Hopefully it will discourage courts from granting custody to abusers and punishing good faith allegations.

15. Responses to Child Sexual Abuse Allegations: Courts shall use best practices in considering allegations of child sexual abuse such as use of play therapy in young children, providing sufficient time for a child to build a trusting relationship with the interviewer before expecting the child to reveal whatever happened; considering the context of domestic violence in the case, understanding children often recant truthful allegations for a variety of good reasons and the need to avoid silencing the child.

Child sexual abuse allegations are difficult to prove under the best of circumstances. The crime is not committed in front of witnesses for obvious reasons. Most sexual abuse does not leave physical proof (although inadequately trained professionals often expect it) and when physical proof is available it is often lost by the time the child reveals the abuse. Society is uncomfortable with the subject and court professionals don’t want to believe a father could do something so heinous, particularly if he is successful in other parts of his life. Accordingly it is important that professionals investigating the allegations use best practices and avoid being influenced by the myth that women frequently make false allegations. At the same time professionals should consider if the child’s reaction was caused by boundary violations or some innocent behavior.

16. Providing Necessary Information in Court Applications: In any application to a court for a change in the custodial arrangement, the applicant will provide information about any arrests or convictions for domestic violence or child abuse crimes and any prior protective orders against the party. Any misrepresentation or omission of material information required under this section shall result in the dismissal of the application and reversal of any relief granted based upon the misleading application.

We have seen common abuser tactics where they make false allegations and ex-parte applications for a change of custody. Frequently mothers lose custody without any opportunity to challenge the allegations. Courts can be unaware of a history of domestic violence and child abuse. By the time the mother has a chance to challenge the decision the children are living with the father and the court is reluctant to uproot them again. If the application fails to inform the court of these critical issues, the petition must be dismissed and the children returned.

17. Retraining Court Professionals: In conjunction with the current scientific research that establishes widespread mistakes and bad practices in responding to domestic violence custody cases and the reforms developed to respond to the problem, court professionals shall be retrained based upon current scientific research. Among the topics to be included in the retraining shall be:

1. Most contested custody are domestic violence cases and not "high conflict" cases.

2. How to Recognize Domestic Violence

3. Gender Bias

4. The Effects of Domestic Violence on Children

5. The Need to Limit Mental Health Professionals to their Actual Expertise

6. The Proper Way to Respond to Sexual Abuse Allegations.



Court professionals have received a lot of misinformation that contributes to the bad custody decisions we see in domestic violence cases. Judge Mike Brigner and I have written an article designed to train judges. These six areas constitute frequent mistakes made by judges and other court professionals that lead to decisions that are harmful to children. A big part of the problem is that many judges and other professionals have a false confidence in their knowledge of domestic violence issues and are not open to hearing information based upon the current scientific research now available. Hopefully by making major reforms in the courts’ response to domestic violence cases it will send a powerful message that court professionals need to take a fresh look at this subject and be open to the expertise now available.



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

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

By Barry Goldstein

          

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

Lack of Research on Success of Court Outcomes 

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

Failure to Make Children's Safety the First Priority 

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

Connection Between Court Mistakes and Increased Homicide Rate

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

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