U. S. Department of Justice v. Custody Court System

photo courtesy of Family Court Crisis-Abusers Getting Custody!

By Barry Goldstein

Protective mothers have been complaining about mistreatment by the custody court system, but have routinely been dismissed as “disgruntled litigants.” As recently as the beginning of the Battered Mothers Custody Conferences in 2004, there was little professional support for protective mothers. The mothers’ complaints have now been confirmed and supported by the domestic violence community, many women’s organizations, numerous governmental agencies, many in the academic community and a substantial body of research such as contained in our book DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.

Last summer at the NCADV Conference, Dr. Daniel Saunders of the University of Michigan and some of his colleagues presented their findings from a major Department of Justice study that confirms the findings in our book and other research that the present custody court practices for domestic violence cases are deeply flawed. The publication of these findings has taken longer than expected as Dr. Saunders and the Justice Department seek to carefully present the information in a clear and accurate manner, but they should soon be available on the Department of Justice web site. Many of us who seek to reform the broken custody court system are excited about this study because it should be difficult for the courts to dismiss or ignore because of where it comes from. Significantly, the findings are incompatible with a continued belief that the present practices are working for the benefit of the children the courts are supposed to protect.

Custody Courts Frequently Disbelieve Valid Abuse Complaints

Custody courts have a particularly poor record in responding to domestic violence cases. The research demonstrates that court professionals reject a high percentage of valid complaints by protective mothers. This problem has been confirmed in many ways. It is confirmed based on the frequency of mistaken outcomes. Although battered mothers make deliberately false allegations only one or two percent of the time, in contested custody cases the alleged abuser wins custody or joint custody over seventy percent of the time. Subsequent events regularly confirm courts’ mistakes. This occurs when men found safe by the court professionals are later convicted or otherwise found to have to have committed domestic violence, sexual abuse, murder or other similar crimes.

The revelations of the Courageous Kids Network further demonstrate the frequency in which courts fail to recognize valid complaints of abuse. Courageous Kids are young adults who have aged out of their custody orders and decided to speak out about the harm caused by these orders. The context is important in understanding their stories. These are cases in which the court disbelieved the mothers’ abuse allegations and gave the fathers complete control. The children have been threatened, coerced and punished if they continue to complain about their father’s abuse or seek a relationship with their mother. In other words the fathers have had tremendous assistance in silencing the children. Accordingly the children now speaking out represent a small minority of those mistreated by fathers the court believed were safe. The descriptions by the Courageous Kids demonstrate the fathers deliberately sought to hurt the mother and children based upon their belief system that the mother had no right to leave them. The children have had little or no contact with their mothers often for many years so we know the mothers could not be influencing the children’s decision to speak out about the fathers’ abuse. These are all too common examples of cases in which the court professionals failed to believe valid allegations of abuse.

The research not only demonstrates the fact that the custody courts get a large majority of domestic violence cases wrong, but also that the standard practices used by court professionals are deeply flawed and make it difficult for judges to recognize legitimate complaints about domestic violence and child abuse.

Court professionals routinely discredit allegations of abuse based upon factors that are not probative. At the same time these professionals do not understand the importance of looking to the abusers’ patterns of controlling and coercive behavior in order to recognize domestic violence. The court professionals often make the mistake of considering each incident and each allegation separately. Genuine domestic violence experts understand the importance of context in recognizing domestic violence, but the mental health and other professionals relied on by the courts do not understand the importance of context and thus make it more difficult to recognize valid allegations of abuse.

One of the big obstacles to recognizing valid abuse complaints is the common use of mental health and other professionals without expertise in domestic violence. The main purpose of considering domestic violence in custody cases is to protect the safety of children. Nevertheless the evaluators relied on by custody courts rarely know how to conduct a safety assessment or what behaviors have been associated with higher lethality and other dangers. The evaluators do not understand domestic violence dynamics and often are unfamiliar with the effects of domestic violence on children or other information based upon the specialized body of scientific research that could be used to better understand domestic violence issues and recognize truthful allegations of abuse.

The new Department of Justice study helps explain why the evaluators and other professionals relied on by custody courts routinely fails to recognize domestic violence. The study found that most evaluators and other professionals relied on by the courts do not have adequate domestic violence training and those with inadequate training are more likely to believe in the myth that women frequently make false allegations of abuse to gain an advantage in litigation. The professionals who believe this myth, in turn are more likely to make recommendations that harm children. In other words judges have little chance to protect the children under their control as long as they rely on these unqualified professionals and tend to believe their deeply flawed analysis.

Judges often become defensive when protective mothers or their attorneys request that any evaluator or other court professional be required to have domestic violence expertise in order to be appointed. We have repeatedly seen judges refuse to listen to domestic violence experts offered on behalf of protective mothers. The courts often focus on the need for a mental health degree even though the academic training for most mental health professionals included no or virtually no domestic violence instruction and the law does not require advance degrees to qualify as an expert (a common example is a mechanic without a high school degree who can testify as an expert in automotive repair based on experience and training).

In recent years most court systems have encouraged and usually required some domestic violence training for court professionals. This is a good thing but has often been implemented in ways that undermine the purpose. Many of the trainings include substantial misinformation such as the belief most contested custody cases are “high conflict” when the research establishes a large majority are really domestic violence cases. Some of the trainings even include Parental Alienation Syndrome (sometimes by another name because of its deserved notoriety) even though it was recently again rejected for inclusion in the DSM-V because there is no scientific basis for it. Many of the trainings fail to include domestic violence advocates or other genuine experts in domestic violence.

We have also seen some really good programs used to train court professionals, but I have heard many trainers complain that some of the judges, evaluators and lawyers pay little attention to the valuable information presented. In one Queens County, New York case I cross-examined an experienced evaluator who went to a really excellent domestic violence training in order to qualify as a parent coordinator. They provided numerous excellent research studies that could have helped him recognize domestic violence and protect children. During my cross-examination it became clear he never read the research and was unfamiliar with the current scientific research he needed to understand the case. When I pressed him about the training he described it as “not a life changing experience.” This was a man who needed a life changing experience because he failed to recognize the obvious history of abuse by the father, demanded the mother cooperate with her abuser and when she continued to try to protect herself and her son, the unqualified evaluator recommended custody for the abusive father. The judge failed to discredit the evaluator based on his failure to read or consider the current scientific research provided at the training.

We need much more and better trainings for court professionals, but there is also the danger that attending trainings can give judges and other professionals a false sense of confidence in their understanding of domestic violence. The findings by Dr. Saunders and his colleagues that most court professionals have inadequate training in domestic violence confirms our concern that in most cases the professionals relied on by the court are not qualified to participate in a domestic violence case without the assistance of a genuine expert. Even if the judge has received good training the court is likely to be influenced by unqualified evaluators and other court professionals.

The failure to possess adequate training in domestic violence means that it will be difficult for these professionals to recognize and respond effectively to domestic violence, but the widespread belief in the myth that women frequently make false allegations of abuse is a bias that strongly undermines the cases of protective mothers. These mistakes result in frequent findings denying the mother’s abuse allegations which is exactly what the other research has found. If a professional believes the myth they will expect to see false allegations and without training in how to recognize domestic violence they have little chance to get these cases right and protect the children. Even worse, courts having found against the mothers because of the deeply flawed practices and biases are severely punishing mothers and children because the mothers continue to believe their true allegations despite the disbelief of the unqualified court professionals.

A few months ago, in this forum, I wrote an article about the extreme decisions we often see in domestic violence cases. These are decisions in which the alleged abuser receives custody and the mother who was the primary attachment figure is limited to supervised or no visitation. The primary attachment figure is the parent who provided most of the child care during the first couple of years of the child’s life. When children are separated from their primary attachment figure they are significantly more likely to suffer depression, low self-esteem and to commit suicide when older. It can never be right to separate children from their primary attachment figure unless she is unsafe such as a drug addict, someone who beats the kids or otherwise poses a danger. In most of these cases the father allowed or even demanded the mother provide child care until she decided to leave him. It should be obvious that her decision to leave a man she found to be abusive does not make the mother unsafe. Unqualified court professionals frequently limit the mother’s contact with her children based upon some version of alienation or pathologizing the mother based on psychological tests that were not made for the populations seen in custody cases. We know the diagnosis is not safety related because the mother functions fine in all other aspects of her life except interacting with her abuser and the court professionals supporting him. These are not safety issues so these extreme decisions can never be beneficial to the children.

The reliance on court professionals with inadequate training and belief in the myth takes place in the context of many other common mistakes discussed in earlier research. The courts cannot protect mothers and children in domestic violence cases if they cannot recognize domestic violence when it is present. The frequent decisions that harm children are confirmed by later findings and information, the extensive research court professionals routinely fail to consider and the new Department of Justice study and they provide multiple confirmations of the present inability of custody courts to recognize domestic violence and child abuse when it exists.

Misuse of Mothers’ Anger and Emotion

Let’s look at this issue from the mother’s perspective and in the context of her experience. These are domestic violence cases. The father usually has a long history of controlling and coercive behaviors and the mother has finally gained the courage and resources to leave her abuser in order to protect her children. She is fearful because of the many threats he made of what he would do if she left and knowledge that the most dangerous time for a woman is after she has left. She is angry at the way he has mistreated her and often the children. She may be worried about her ability to support and protect her children because her partner has been telling her how useless she is throughout their relationship.

Even if the father’s physical abuse ends when he no longer has access to the mother (which makes unqualified court professionals believe he is now safe), he continues his domestic violence through litigation abuse and often other ways. The abusers often use any contact provided by the court to seek reconciliation and/or to harass and attack her verbally or psychologically. Many women expect the courts to protect her children because the evidence is so overwhelming and instead find the court pressuring her to cooperate with her abuser and punishing her if she tries to protect her children from a man they have found to be hostile and dangerous. In other words she has good reason to be angry and emotional and in fact this would be a normal reaction to her experiences.

The research contained in our book and elsewhere supports this understanding and analysis. We discussed the common mistake of custody courts that treat the mother’s actions as a litigant as if they were an indication of her behavior as a parent. Over forty states and many judicial districts have created court sponsored gender bias committees. These committees have found widespread bias particularly against women litigants. One of the common examples of gender bias was blaming women for the actions of their abusers. One of the typical examples of this bias is when courts blame mothers for their anger and emotion caused by the father’s mistreatment of them and their children. In many cases the abusers deliberately harass or pressure them shortly before a court appearance is scheduled in order to obtain an emotional reaction the court is likely to misunderstand. Abusers tend to be extremely manipulative and so after their abuse that the judge does not see, come to court calm and cooperative. Court professionals are often fooled by this act.

The new Department of Justice study confirms what we said in our book and other similar research. Dr. Saunders found that court professionals frequently treat mothers’ anger and emotion as far more important than it actually is in terms of the well being of children. These professionals may be uncomfortable with the mothers’ emotions particularly if she criticizes their response to the father’s abuse. Clearly these are difficult and unpleasant issues to confront. The misinformation treating contested custody as if it were “high conflict” when it is actually domestic violence contributes to the misunderstanding of the mothers’ anger and emotion. The professionals are focused on forcing the parties to cooperate even though this is not the best approach for children. When the parties have difficulty cooperating and certainly in domestic violence cases, parallel parenting is a more effective approach for children. The problem, as demonstrated by the Saunders’ study is that these professionals are focused on their beliefs and preferences rather than research about what works best for children. The custody courts did not get into the practice of looking to current scientific research and particularly the specialized body of research about domestic violence because there was no such research when the initial court practices were developed. We now have substantial research that would help inform court decisions and avoid the frequent mistakes but court professionals rarely look to this research to help them make better decisions. This is why we rarely see custody courts weigh the benefits and harms to children of a proposed resolution. The Department of Justice study establishes that these flawed practices lead to decisions that hurt children.

Cottage Industry Supporting Abusive Fathers

We often hear complaints about corruption in the custody court system. This belief is supported by the many cases in which courts make findings that are far removed from a fair evaluation of the evidence and decisions that seem to be disconnected from the well being of the children involved. There are cases of outright corruption such as the Garson case in Brooklyn, New York, but more often, I believe courts create the appearance of corruption because of bias, ignorance and deeply flawed practices. One of my concerns with complaints about corruption is that it makes it harder for judges in the broken system to hear the complaints and create the reforms that are needed. An important contributing factor to the widespread belief in corruption is the cottage industry that has been created to support abusive fathers.

Most contested custody cases involve abusive fathers seeking custody as a tactic to pressure their victims to return or punish them for leaving. Domestic violence is all about control so these abusive fathers usually have controlled the family finances and have these resources to support their custody litigation. Some lawyers and mental health professionals have figured out that they can make a large income by supporting practices and approaches that support abusers. We often see them advertise as supporting “fathers’ rights.” In many cases we see fathers’ attorneys and GALs promoting the appointment of evaluators who support abusive fathers. It is particularly frustrating when judges refer to these professionals who regularly support abusers as “neutral professionals.”

Protective mothers often have no chance when these biased professionals are appointed regardless of how strong their cases may be. Many of the mothers have complained that the evaluators and GALs make misrepresentations to the court in order to justify findings in favor of the abusive fathers paying their fees. When such professionals lie to the court about the evidence or to justify fees they did not earn, the mothers are justified in complaints suggesting corruption.

Many of these biased professionals strongly support PAS despite a lack of scientific justification. Significantly, PAS is based upon the assumption that virtually every complaint by mothers about the father’s abuse is deliberately false. The Department of Justice study found a problem with inadequately trained professionals who believe the myth that women frequently make deliberately false allegations of abuse. The unqualified professionals supporting PAS are even worse assuming that virtually all such allegations are false. The courts have virtually no chance of making the right decision if they treat such biased professionals as having any credibility.

The Department of Justice study’s contribution to this issue is a finding that evaluators working for the court or the county made recommendations that worked better for children than those of evaluators in private practice. When Dr. Saunders described this finding at a workshop during the NCADV Conference I asked him if he thought the findings supported our concerns about the cottage industry that has developed to support abusive fathers. He agreed this was a good interpretation. Evaluators working for the court or county are not paid extra for each evaluation so they have no incentive to favor the wealthier parent.

Professionals often have fundamental conflicts of interest. Medical doctors who schedule tests or procedures will earn money from performing the services they recommend. Tests may be scheduled to shield the doctor from potential lawsuits rather than to benefit the patient. Lawyers who recommend going to trial, starting a lawsuit or making a motion will earn money when the client takes their advice. Similarly, mental health professionals benefit financially when patients accept recommendations for more services. The conflict of interest is largely unavoidable and the professionals are expected to have the integrity to act in their client’s best interests instead of their own. Unfortunately some of the evaluators and lawyers, particularly those supporting abusive fathers have not fulfilled this ethical obligation.

We have repeatedly seen problems in custody courts with mental health professionals and particularly ones sympathetic to abusive fathers making recommendations requiring protective mothers to use their unwanted and unneeded services. We see these biased professionals pathologizing mothers who have always taken good care of their children with diagnoses that are clearly wrong. This would include the frequent finding of rare conditions such as Munchausen Syndrome by Proxy, conditions like paranoia or delusional based on the mothers’ continued belief in the father’s abuse despite the failure of the court professionals to recognize his abuse and other emotional problems that magically seem to affect only her relationship with her abuser and the court. They seem oblivious to the fact that that she does fine in other parts of her life that under any unbiased circumstances would rule out the claimed diagnosis.

Some of these mistakes are clearly deliberate and qualify as corruption. Other cases may involve bias and ignorance and a lack of the needed qualifications as the Saunders’ study demonstrates. When the professionals who are part of the cottage industry engage in gender bias they usually do so without realizing it. Many actually believe in the theories and practices they use despite a lack of scientific basis. Some of this can be explained by confirmation bias where the professional focuses on information or accusations that support what the professional expects to find and ignores information that undermines their theories and assumptions. We see this kind of mistake frequently in domestic violence custody cases and the mental health professional is often unconscious that they are engaging in confirmation bias. In fact they are likely to become defensive and angry at the suggestion. The Department of Justice study demonstrates the harm of using professionals who are part of the cottage industry and the need for custody courts to screen court professionals to avoid relying on them. Even worse, courts often use these unqualified professionals to train other court professionals. This can only serve to spread misinformation which makes it harder for court officials to recognize the problems demonstrated by the Saunders’ study and other current scientific research.

Conclusion

The custody court system tends to look at each case and each issue or event in a case separately. This is based on a belief that just because a man slapped his wife on Monday does not mean he punched her on Friday. The court system uses stare decisis which means once a case or an issue has been decided the same parties cannot relitigate it. There are good reasons for these practices, but they work poorly in domestic violence cases because of the importance of context in understanding domestic violence. We often see cases where the court denies allegations of domestic violence and they may even have been right if there was insufficient evidence. Naturally the abuser continues his abusive behavior so more evidence becomes available, but many courts refuse to hear the new evidence or refuse to consider it in the context of the previous evidence because those issues were previously litigated. In doing this the court is denying itself the ability to recognize the pattern of the father’s abuse and protect the children. Domestic violence experts are confident that the custody court system is broken because we see the pattern of mistakes and harmful decisions, but the powers in the court system are offended at the criticism and cannot believe the problem because they refuse to look at the patterns.

The findings of the Department of Justice study, by itself, provides convincing documentation that the custody court system is getting a large majority of domestic violence custody cases wrong. It would be impossible for courts to get most cases right when most of the court professionals have inadequate domestic violence training, those with inadequate training tend to believe the myth that women frequently make false allegations, the courts are placing too much weight on mothers’ anger and emotion and the evaluators who earn additional money through appointment in custody cases are making decisions more harmful to children then those who do not have a financial incentive. This study was not made in a vacuum, but was produced in the context of a substantial and growing body of scientific research that establishes the custody courts are making bad decisions in contested custody cases that endanger children. The research also establishes that the standard practices used in the custody courts are deeply flawed and outdated.

I am hopeful that a study coming from the U. S. Department of Justice will be harder for the custody court system to ignore. They have a strong reputation and can only be considered neutral. Furthermore, the courts frequently seek grants and other funding from the Department of Justice. Protective mothers and their attorneys can cite this research and it should be harder for the courts to ignore. I can’t wait until it is published on the DOJ web site.

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

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

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

By Barry Goldstein

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

Integrating Research into your Case 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mental Health Professionals 

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

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

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

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

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

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

After the Case Has Gone Bad

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

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

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

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

One of my favorite parts of the book is a quote in Joan Zorza's chapter 14 page 26. I know the page by heart because I use it so often. "Until judges and other professionals receive the specific training they need to recognize these patterns (and as noted previously, many have such strong preconceived notions that they will not learn anything from even the best training), they must consult with genuine DV experts, particularly DV advocates. Otherwise, as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. IN THIS CONTEXT, IT IS IMPORTANT FOR COURTS THAT RULE AGAINST ALLEGED VICTIMS OF DV TO BE OPEN TO THE POSSIBILITY THAT THEY MADE A MISTAKE. COURTS SHOULD BE RELUCTANT TO TAKE PUNITIVE OR RETALIATORY ACTIONS AGAINST MOTHERS WHO CONTINUE TO BELIEVE THEIR PARTNERS ABUSED THEM." This quote also applies to allegations of child sexual abuse for which courts often deny valid allegations and then punish mothers severely for trying to protect their children.

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

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

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

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

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