Endless Stupidity or Professional Self-Interest — There’s No Other Choice.
Is there some reason that anti-dv advocates just can’t get it? Is there some reason that researchers and activists keep recommending this idiocy? It’s a bad, bad, bad, bad, bad idea.Why:
(1) Supervised visitation cannot continue indefinitely, and controlling, violent, or child molesting parents aren’t going to change. So what is the point? (No. “Anger management” therapies don’t work.) It’s not a child custody solution for abusers. It’s not a solution for children who have 5, 10 or 18 years left in their childhoods. It’s a band-aid for 10 weeks, or 6 months, or whatever, and then the abusive parent will most likely go back to court, after behaving “safely” or “nicely” in the presence of supervisors, and get unsupervised visitation. The supervised visitation center will have made money, the parents will have lost money, the litigation will have remained open, the abusive parent will be even more angry and resentful, additional therapies and interventions will be recommended and tried (all as the abuse fades into the past and claimed irrelevancy), and overall, the entire situation will be even more miserable than it was before for the victims. [See comment by JG]
(2) If it is to be some kind of extended supervised visitation, then it also chains the victim family to the geographical area where the perpetrator is located in order to further what are usually non-beneficial visitation rights. The battered mother cannot relocate for job or family support, and while getting no real parenting help, and having to do it all, now also has an often inconvenient and intrusive visitation schedule to adhere to (not to mention what this does to the child’s life). The parent in supervised visitation isn’t “parenting”. Someone else is doing all the parenting. Maybe there’s a rationale for this kind of thing when the State removes someone’s children into foster care, and the parent is working out the parent’s substance abuse issues, but otherwise? Children don’t need visitation with violent or molesting parents. If they already have one safe caregiving parent, and the State is not involved, they simply don’t need this. And if we’re talking about a parent who is merely negligent but not violent or intentionally abusive, and it’s a custody issue between two parents of young children, well, then the competent parent can “supervise” in a more natural visitation setting in one or the other parent’s home or on outings until the children are old enough that the lack of judgment of the parent needing supervision isn’t an issue. That’s going to be way better as well for the children and their relationship with the supervised parent.
(3) Once supervised visitation professionals or institutions invest in facility and marketing to do this work, they become “stakeholders” whose most immediate concern will be the need to pay their bills and salaries, further their business interests, and expand. Doesn’t matter whether it’s a private business or a government budget. Doesn’t matter whether it’s a dv activist organization or a “nonpartisan charity”. Once the system and facility and employees with salaries are in place, it looks for continuing customers. There’s going to be a limit to the number of abusers, and perhaps some competition as well, so what will happen next is marketing, i.e. making a market, i.e. expanding the market. The cross-pollinating professionals they work with, the inter-disciplinary group associates and referral sources, such as custody evaluators and judges, will start sending them new kinds of business. Soon, supervised visitation gets recommended for all kinds of pretextual reasons. Such as “therapeutic visitation”, and “reunification counseling”, and “parenting training”, and as punishment for parents who badmouth each other, and for “evaluation” purposes (as if any parenting could possibly be evaluated in such an artificial setting.)
(4) Over the past two decades, supervised visitation centers have been established by abuser lobbies and parental alienation proponents, psych and interdisplinary trade promotion groups, and money-grubbing mental health professionals who can’t make a go of practice without glomming captive divorce court litigants — and who for some goddamn reason are always more clever than victim advocate groups. Once they have opened up their visitation centers, they commence doing what entrepreneurs will do: market their services, concoct new services and programs, network, and promote themselves (which in the case of these ill-advised ideas, also frequently includes getting — and justifying and maintaining — some amount of charitable or government funding.)
(5) It’s yet another big waste of the family’s money and children’s college funds via “therapeutic jurisprudence“. Because of the need to keep the facility going, and because of the lucrative therapeutic referral work, overwhelmingly, what has happened in recent years is that perfectly acceptable parents are being ordered into supervised visitation schedules for some of the most frivolous reasons. Especially those who can pay. And the whole idea just increases the load on the court system by keeping the matter alive and encouraging judges to put the decision-making off for another day. Cases under endless management, in endless float.
Note that I didn’t say that third-party supervised visitation was “never” appropriate. Supervised visitation may sometimes have its limited uses, but ONLY as a temporary arrangement. (I hesitate to admit this, because when it comes to therapeutic inverventionism in the court system, like potato chips, it seems that if you try to have just one…) One legitimate use of supervised visitation would be for times when truly serious abuse allegations have been levied against a parent, to last until a civil or criminal hearing can be held to render findings on the truth or falsity of the allegations (following which, if they’re true, there should be NO visitation).
Another limited use might be as a temporary arrangement during times when a parent is unable to exercise unsupervised visitation but reasonably is expected to be able to do so after a short transition or learning period, e.g. a young unwed father and an infant he needs to learn how to care for, or e.g. a parent who for some reason has not been in the picture and needs to transition into a relationship with a child, AND ALSO, in these latter examples when there is some very, very, VERY good reason the other parent in fact is not appropriate as the “supervisor”. (The to-be-supervised parent’s ego does not constitute a good reason, any more than it would in the de facto “supervision” of an intact family.)
So in limited situations, a child body guard or nanny parent’s helper type of supervisor might have its uses. But not where there is a violent or abusive parent. Certainly not in a case like this one. (Case worker in Palm Beach supervised visitation center talked on the telephone while father molested child.) And this one is even worse (Washington father hatchet-chopped his young sons before setting house on fire while useless superviser sat outside in her car.)
What happens if there is a shortage of visitation supervisors, or no supervised visitation centers? That’s easy. Parents who are not dangerous won’t have to suffer this nonsense. And parents who are dangerous won’t get visitation. As they shouldn’t in the first place. Supervised visitation is not for the benefit of abuse victims. It’s for the benefit of abusers, and for the benefit of therapeutic jurisprudenchers who make money off of the idea. Stop it. Stop it now.
– Troubling Admission of Supervised Visitation Records in Court
“Supervised visitation also is used as a first step toward a custody switch away from protective mothers to abusive fathers.”
“If his visitation goes well, that’s used as ‘evidence’ that he did nothing wrong in the first place, and that the accusations against him were the result of parental alienation by the mother. His unsupervised visitation is restored, following which further complaints by the mother and/or child result in the mother losing custody to the abuser, with and without the application of additional lucrative court-ordered ‘therapeutic interventions’.
“If the visitation doesn’t go well, then the difficulty with the visits is blamed on resistance and interference by the mother. This accomplishes two things: it creates an alibi for the professionals for their failed ‘reunification therapy’ or wrong recommendations in urging his continuing visitation and involvement, and it creates the same desired end-result of blaming the mother.
RETURN TO TEXT
|Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to the National Institute of Justice, U.S. Department of Justice (October 31, 2011). Principal Investigator: Daniel G. Saunders, Ph.D., Co-Investigators: Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. University of Michigan, School of Social Work, 1080 S. University Ave., Ann Arbor MI 48109-1106 USA. (“This project was supported by Grant No. 2007-WG-BX-0013 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.”)|
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.
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.
|Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to the National Institute of Justice, U.S. Department of Justice (October 31, 2011). Principal Investigator: Daniel G. Saunders, Ph.D., Co-Investigators: Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. University of Michigan, School of Social Work, 1080 S. University Ave., Ann Arbor MI 48109-1106 USA. (“This project was supported by Grant No. 2007-WG-BX-0013 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions of the research reported here are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.”)|
The Office of Violence Against Women (OVW) is the part of the US Justice Department that provides grants for programs designed to reduce and prevent domestic violence. They recently sponsored a forum for their staff and other professionals in various parts of the government to learn about the crisis in the custody court system. They heard from seven protective mothers, one very inspiring Courageous Kid and over a dozen of the leading experts in the country. It was a wonderful discussion based upon current scientific research and actual experiences and everyone seems to get it that the courts are routinely making catastrophic mistakes in failing to protect children and domestic violence survivors. The purpose of the forum was to consider the problem, causes and solutions. It was so wonderful to take part in a reality based discussion about domestic violence custody issues and to do so with people who may have the ability to promote the needed changes. And yet the next day if any of us walked into a custody court, the research and the reality that were an unquestioned part of the discussion at OVW would be missing in the pretend world that is the present custody court system.
Similarly, in December, I had the privilege of participating in a review of grant proposals concerning gender, violence and health. The Canadian Institute of Health brought leading experts in the field together to consider which grant proposals would be most beneficial to fund. This was a high level discussion in which all of the participants were familiar with current scientific research so that we could have a reality based discussion. I found it particularly interesting that the Canadian government could attract knowledgeable experts for $200 a day at the same time the courts pay or require litigants to pay thousands of dollars for a few hours to “experts” completely unfamiliar with up-to-date research who instead provide opinions based on their personal belief system and prejudices.
Our custody courts are a very insular system in which information and ideas that contradict the misinformation routinely relied on by court professionals are unwelcome. Custody courts started relying on mental health professionals at a time when no research about domestic violence was available and many people assumed domestic violence was caused by mental illness, substances abuse and the behavior of the victims. We now know the original assumptions are wrong and mental health professionals rarely have much expertise in domestic violence or child sexual abuse. Nevertheless the courts are so used to relying on professionals with inadequate training that they routinely refuse to hear genuine experts or treat their testimony with tremendous skepticism. Experts, government agencies and academicians relied on to make major decisions in the real world are treated with disrespect by the court system. Repeatedly I have heard judges suggest that when the (inadequately trained) GAL, evaluator and child protective caseworker all agree, it is unreasonable to consider any other view.
Abusers often impose a pretend world on their victims by denying and minimizing their abuse. They often blame their partners by claiming her behavior forced him to abuse her. It is often unsafe for the woman to challenge this pretend existence. Genuine experts agree that dealing with reality is an important part of the healing process after survivors leave their abusers. This makes the common court practice of cooperating with abusers to focus on pretend issues so harmful to battered mothers and their children.
Many years ago I tried to help a teenage girl whose father was sexually abusing her. She finally found a therapist she could trust and the courage to share her secret. He called the child protective agency, but their response was to remove the girl from her home so the father’s life would not be disrupted. They put her in a home for girls that included those there for criminal behavior. While at this home, she was assaulted and robbed. The caseworker refused to permit her to continue working with her therapist just when she needed him most and pressured her to recant her allegations. The caseworker threatened to send her to an even worse facility and she was also concerned about the trouble her father would face. When she recanted her allegations she was sent back to her home and forced to engage in therapy based upon the false assumption her allegations of abuse were wrong. At a time when she needed therapy in response to years of abuse, she was forced to engage in therapy to determine why she made false allegations.
More recently, I worked on a New Jersey case in which a young child reported to her mother that her father and his mother had touched her in the vicinity of her privates. She did not know the words to be more precise. The father immediately denied the allegations and claimed the mother was making deliberate false allegations. The unqualified professionals focused only on whether the child was molested or the mother made false allegations and when they could not find enough evidence of abuse after a flawed investigation assumed the allegations were false. They brought charges against the mother and eventually gave the abusive father custody and the mother supervised visitation. When the court professionals later learned of the father’s history of domestic violence and hired a qualified expert who used current research to recommend custody be restored to the mother, the court professionals ignored the information that undermined their mistaken finding. The mother was forced into therapy in which she had to prove she no longer believed the true allegations if she wanted unsupervised visitation with her daughter. Having escaped the pretend world imposed by her abuser by leaving him, the mother faced another pretend world imposed by the court.
These kinds of mistakes are common in the broken custody court system. Often they are caused by court professionals who use the bogus Parental Alienation Syndrome (sometimes by other names) to give custody to the abuser and deny normal contact with the protective mother. Some courts impose reunification therapy on the children who are taught that their dislike of their father is not because of his history of abusing them and their mother but because of the lies she has told them. Again at a time when they need therapy to heal from their father’s abuse and the separation from their primary attachment figure, they must instead engage in therapy based on pretend alienation issues. These practices work well for the bank accounts of mental health professionals, but poorly for children.
Most court professionals have been trained to view contested custody cases as “high conflict” by which they mean the parents are angry at each other and act out in ways harmful to their children. Current research, however, establishes that most of these cases are actually domestic violence cases. Fathers with a long history of abuse seek custody as a way to gain access to their victim to pressure her to return or punish her for leaving. Court professionals unwittingly assist these tactics by pressuring the mother to interact and cooperate with her abuser instead of pressuring the father to stop his abuse. The normal fear, emotion and reluctance to cooperate with a man they see as dangerous is used to discredit and punish the mother. Using the “high conflict” lens makes it harder for court professionals to recognize the father’s abuse and to take it seriously.
Few court professionals have been taught about the dynamics of domestic violence or how to recognize it. We regularly see court professionals discredit domestic violence complaints for reasons that are not probative such as when women return to their abuser, withdraw protective orders or don’t have police or medical reports. The women do this for safety and other reasons, but if the professionals treat this kind of information as if it were proof of false allegations, they have no chance to recognize valid complaints. At the same time, these professionals are often only looking at incidents of physical abuse. Accordingly they fail to see the patterns of controlling and coercive behavior. They don’t pay attention to economic control, isolating behaviors, emotional abuse, monitoring their partner’s behavior or information about the abusers’ motivation. Once courts determine through these flawed practices that the domestic violence allegations are false, they generally refuse to consider additional evidence or events that support the allegations and severely retaliate against mothers who continue to believe their allegations. Significantly, when courts do recognize the father’s abuse, they rarely if ever penalize him for continuing to deny his abuse.
The pretend world created by the custody courts is supported by the popular myth that women frequently make false allegations of abuse to gain an advantage in the litigation. A new Department of Justice study led by Dan Saunders of the University of Michigan found that court professionals without adequate training in domestic violence are more likely to believe this myth and in turn make recommendations harmful to children. The myth greatly contributes to the frequent mistaken findings we see in custody courts where valid allegations of domestic violence are disbelieved. Widespread gender bias also contributes to the inaccurate decisions.
Custody courts do their worst job in responding to allegations of sexual abuse of children. Although a majority of allegations made by mothers are accurate, 85% of the cases result in custody for the alleged abuser. Even attorneys with little knowledge of domestic violence and child abuse routinely advise clients not to raise sexual abuse allegations, even with strong cases, because the courts are so reluctant to believe a father could commit such a heinous act. Sexual abuse against young children is particularly hard to prove because it is committed in private for obvious reasons and children often do not have the language to describe what their father did to them. Although many court professionals expect physical proof, most assaults do not leave physical evidence and when they do it may be gone by the time the child works up the courage to reveal the abuse. Older children often recant true allegations because the abuser has threatened to hurt them or their mother or because they don’t want someone they still love to get in trouble. Poor investigation methods by often inadequately trained professionals also impede proof of sexual abuse. When allegations are made by mothers the most likely circumstance is the allegations are true. The next most likely is that the accused did not abuse the child but engaged in boundary violations that made the child uncomfortable. Other common possibilities are that the allegations are false, but made in good faith or that the evidence is equivocal, but court professionals routinely focus on deliberately false allegations even though this is the least likely cause for the allegations. The result of these flawed practices is that courts often deny valid allegations of sexual abuse and conduct the rest of the case based upon the fiction that there is something wrong with the mother for trying to protect her child.
These common mistakes in domestic violence and child abuse cases lead to a pretend world promoted by the abuser and supported by the court in which the case is conducted based on the fiction that the mother’s allegations are false. Any attempt by the mother to provide additional information of the father’s abuse is treated as a lack of cooperation for which she is severely punished. Her only hope to have some minimal time with her children is to prove she no longer believes the true allegations she made. In other words she is back in a pretend world that she hoped to escape by leaving her abuser. Even worse, now he has complete control, supported by the court and she is not even near the children to try to protect them when he acts in a dangerous manner.
In the typical contested custody case the mother is the primary attachment figure for the child and complains about the father’s domestic violence and/or child abuse. The father counters with claims of alienation. The primary attachment figure is the parent or other caregiver who provides most of the child care during the first couple of years of a child’s life. When a child is separated from their primary attachment figure, the child is more likely to suffer depression, low self-esteem and to commit suicide when older. Accordingly it makes no sense to do this unless the primary attachment figure is unsafe such as if they were a drug addict or beat the child. At the same time children who witness domestic violence are more likely to engage in a variety of harmful behaviors when they are older and their normal development is impeded which can cause lifetime of harmful effects.
The worst custody decisions provide custody to the alleged abuser and supervised or no visitation to the safe, protective mother who is the primary attachment figure for the child. These decisions are virtually always wrong because they are based on punishing the mother for believing the father is dangerous and not on concerns for the well being of children. The findings are usually wrong because of the flawed practices, but the outcome would be wrong if the findings were correct because courts rarely weigh the harm they are causing with whatever benefit they seek to create. The harm of denying the child their primary attachment figure is far greater than any benefit the court believes it is providing. Significantly, we rarely see evaluation reports or court decisions that weigh the benefits and harm of a decision they are considering. This is the kind of result we see when courts fail to consider current scientific research in their decisions. Judges may believe the mental health professionals involved in the case provide this expertise, but the professionals relied on by the courts are rarely familiar with current scientific research and courts don’t disqualify or even discredit evaluators and other mental health professionals for being unfamiliar with current research.
Mothers partnered with abusive fathers are in an impossible situation. If they fail to protect their children from the dangerous abusers, they can lose custody for failure to protect. The mothers hear repeated messages that they should leave him, but when they do and try to protect their children, they are punished for interfering with the relationship between the children and the abusive father. The result is too many courtrooms in which courts recreate the pretend world the mother sought to escape.
In fairness to the custody courts, they were forced to develop practices to respond to domestic violence cases at a time when no research was available. Many other entities were slow to understand the best ways to respond to domestic violence. Police officers were trained for many years to separate the parties when called to a home and have the abuser walk around the block to calm down. Eventually they switched to a pro-arrest policy after research demonstrated this practice was ineffective. Domestic violence homicides were reduced as communities moved towards practices designed to hold the abuser accountable. Even domestic violence agencies have not always been as supportive of protective mothers as they deserved, but with the increase in Custody-Visitation Scandal Cases and increase in domestic violence homicides as a result of mothers staying with their abusers because of the dangers created by custody courts, the domestic violence community has made child custody an important priority. It has taken a while for academicians to realize the harm in common custody court practices. Initial research supported shared parenting, but more comprehensive research has demonstrated shared parenting is harmful to children even when there is no domestic violence, but too often it is used in domestic violence cases because court professionals have difficulty in recognizing domestic violence. Current scientific research confirms complaints by protective mothers that the custody courts are mistreating them and harming their children. Government agencies now seem to understand the custody courts are harming children. Their understanding is based upon the research now available. The problem is that child custody issues have historically and constitutionally been left to the states and their courts.
Psychologists and other mental health professionals engaged in research have come to understand the harm of the standard practices in domestic violence custody cases. Most mental health professionals are not involved in the custody court system, but have failed to impose ethical standards on mental health professionals involved in questionable practices in the custody courts. The professional associations have permitted ethically challenged psychologists and other professionals to make recommendations unsupported by current scientific research, engage in biased practices that favor abusers and make diagnoses that are not found in the DSM IV because they don’t exist. Although ethical considerations would require the professionals to consult with experts on subjects in which they don’t have expertise, like domestic violence, the professionals in custody courts routinely fail to consult domestic violence experts, wrongly believing they have this expertise. This has led to frequent mistakes in domestic violence custody cases. These unqualified mental health professionals have played an important role in misleading custody courts and creating an illusion that there is a scientific basis for the mistaken practices commonly used in custody courts
by Barry Goldstein, NOMAS Child Custody Task Group
Mothers and domestic violence advocates have been complaining for many years about problems in the custody court system that have resulted in large numbers of children being sent to live with abusive fathers while safe, protective mothers are denied any meaningful relationship with their children. Courts have tended to dismiss the complaints by referring to the mothers as “disgruntled litigants.” As more concern about the problem has been expressed and more research performed, the mothers’ complaints have been confirmed. Early in 2010, a new book co-edited by Dr. Maureen T. Hannah and Barry Goldstein, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY will be published and end any doubts that there is a pattern of mistakes made in the custody court system. These mistakes have caused thousands of cases to be mishandled and placed the lives and well being of battered women and their children in jeopardy. The book includes chapters by over 25 of the leading experts in the United States and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates. Although these experts come from different disciplines and approached the issue from different directions, there is a remarkable consensus about the problem and the solution. The up-to-date research and information now available makes it clear that the present practices can no longer be justified and the custody court system must create the necessary reforms to protect the safety of children and protective mothers in domestic violence custody cases. This article will discuss ten reasons we know the custody court system is broken and must be reformed.
- Mothers’ Complaints: The problem this article seeks to discuss are cases in which a mother who has been the primary caregiver and makes allegations of domestic violence and/or child abuse loses custody to the alleged abuser and receives supervised visitation or no contact with her children. These cases have increased since federal laws designed to increase enforcement of child support orders were passed. Male supremacist groups have encouraged abusive fathers to seek custody as a way to avoid paying child support, to pressure his partner to stay or punish her for leaving. The courts and the often inadequately trained professionals they rely on, glad to see the involvement of fathers in children’s lives often fail to recognize the tactic and motivation. Courts tend to look at each case separately and so fail to see the patterns of mistakes in these cases. Demonizing their victim is a common strategy employed by abusers so a court could believe there was something profoundly wrong with an individual mother to justify the extreme outcome. When experts look at the pattern of these cases it is evident that the unusual circumstances needed to justify a particular outcome cannot be as common as the results would suggest. Women and children make deliberately false allegations of abuse between one and two percent of the time, but the court decisions support the myth that such deliberate false allegations are common. Furthermore, domestic violence allegations are painful and embarrassing to make and require the victims to speak about uncomfortable issues and questions. Research demonstrates that allegations of domestic violence and child abuse make women less likely to obtain custody. We can’t know that an individual case was improperly decided without careful review of the case, but we know the frequency of outcomes that give custody to alleged abusers cannot possibly be based on objective facts.
- Available Research: The modern movement against domestic violence is only about thirty years old and there was little research available when it started. We now have extensive research to demonstrate common mistakes courts and the often-unqualified professionals they rely on use in domestic violence custody cases. Studies show that while evaluators believe they are considering domestic violence in their investigation of the family, in fact most fail to do so. We have many studies proving widespread gender bias against women in the approaches used by the courts. Evaluators regularly use psychological testing that has little or no relevance to the issues before the court and is gender biased. Psychologists testifying before the courts rarely inform the judges that their results are based upon probabilities so that factors in the case that would reduce those probabilities can be considered. Most important to the present topic is research that considers the accuracy of the actual court decisions. Most custody cases (over 95%) are settled more or less amicably. The problem is with the minority of terrible cases that continue to trial and beyond. Courts often think of them as “high conflict” cases, but in reality these are mostly domestic violence cases. Research studies vary somewhat on the percentage of these cases that involve abusive fathers, but all agree the majority of such cases involve domestic violence. I believe the studies that found 90% of these contested custody cases are caused by abusive fathers because unqualified professionals frequently miss domestic violence. In any event, contested custody cases should be being decided overwhelmingly in favor of protective mothers because most of the fathers are abusive, but 70% of the cases result in custody or joint custody to the father. This does not tell us an individual case was wrongly decided, but does demonstrate that a large percentage of cases are being decided in a way that is harmful for the children.
- Battered Mothers Testimony Project and Research: Several states including Massachusetts, Pennsylvania, California, Arizona and New York City have done studies based on questionnaires filled out by protective mothers. These surveys have demonstrated widespread problems in the custody court system, many common mistakes and outcomes that fail to protect battered women and their children. This is admittedly not scientific research as the participants are volunteers rather than randomly selected (much of the “research” cited by male supremacist groups comes from interviews with alleged abusers, but is often treated as if it were valid research). Sociologists, Sharon Araji and Rebecca L. Bosek went several steps further for their chapter in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. They performed a similar study in Alaska and then compared the results from the various states that interviewed protective mothers. The authors found the responses similar across the several state surveys. They then compared the results of the surveys filled out by protective mothers to scientific research performed by a variety of researchers using accepted scientific methods. Significantly the findings from the protective mothers are strongly supported by the scientific research. In other words, the complaints by protective mothers that have been so often dismissed as coming from “disgruntled litigants” actually have substantial validity.
- Courageous Kids: If a court system wanted to determine the validity and value of psychological evaluations, it would look for research that examined how the recommendations and approaches used by the evaluators worked out in the lives of the children. Without such research there is no way to determine if the time, money and results for evaluations are useful. In fact there is no such research and I would certainly recommend obtaining such research if evaluations were to continue to be used in child custody cases. The closest we have to such research is the Courageous Kids Network. The Courageous Kids are young adults who were forced to live with abusers by the decisions of the custody court. They are now old enough to have escaped their abusers and are speaking out about their experiences. The stories are painful to hear because they had to survive such awful abuse, but life affirming as they overcame the obstacles to support each other and help change the broken system. These heroes have spoken at judicial trainings, legislative hearings and domestic violence conferences. Their presentations are effective because it is all too easy to discredit protective mothers, but hard to discredit the children for whom the courts and the professionals are supposedly trying to help. Remember these children were forced to live with and be influenced by the abuser. In most cases they had to endure “therapy” designed to support the abuser and discredit the protective mother. There are many psychological, safety and other reasons to discourage such children from coming forward and speaking out. The fact so many Courageous Kids have spoken out demonstrates the courts are getting large numbers of cases tragically wrong.
- Review of Bad Cases: The authors of the 25 chapters in the book have carefully reviewed hundreds if not thousands of these cases. In their book, FROM MADNESS TO MUTINY, Dr. Amy Neustein and Michael Lesher reviewed over 1000 cases. The Truth Commission listened to the testimony of 16 women and reviewed records from their cases. Many other experts have studied domestic violence cases where the alleged abuser received custody and the protective mother received little or no contact with her children. In these cases we have found widespread mistakes, bad practices, use of myths and stereotypes, the failure to use up-to-date research, gender bias and outcomes that place children at risk. The legal system works on the assumption that once a case is decided or facts determined that the findings are established and any further consideration should be based upon the assumption the court decided the case properly. This assumption will lead to misinformation and inaccurate research because there is strong evidence that most contested domestic violence custody cases and certainly those that result in custody to the alleged abuser are wrongly decided. We are particularly concerned with the growing court practice of retaliating against protective mothers and professionals trying to help them for exposing court mistakes in these cases. Frequently a mother’s refusal to believe an abuser is safe after the court fails to recognize his abuse is used to justify severe and extreme limitations on her access to her children without regard to the harm such rulings have on the children.
- Parental Alienation Syndrome: PAS is a bogus theory created based on the personal biases of Dr. Richard Gardner. His books were self-published and never peer reviewed. It is used only in domestic violence custody cases to prevent or shorten investigations of the father’s abuse. PAS assumes that if a child expresses negative feelings about the father or doesn’t want visitation, the only possible explanation is that the mother alienated the child and the solution is to force the child to live with the abuser and have at most supervised visitation with the protective mother who has been the primary attachment figure for the child. PAS is not recognized by any reputable professional organization and does not appear in DSM IV, which contains recognized diagnosis. Dr. Paul Fink, past president of the American Psychiatric Association wrote a chapter for the book in which he demonstrates the invalidity of PAS. Dr. Fink points out that Richard Gardner made numerous statements complaining that society takes child sexual abuse too seriously and that sex between adults and children can be appropriate. This explains why PAS is so often used to give custody to fathers who have sexually abused their children. Dr. Fink points out that psychologists are starting to lose their licenses for using PAS in evaluations. They are, in effect diagnosing something that does not exist. Thousands of the cases in which alleged abusers won custody was based upon the discredited PAS or PAS by a different name. Any case in which “evidence” of PAS was allowed was likely wrongly decided.
- Gender Bias: The Truth Commission recommended that rather than training professionals with general domestic violence information, all professionals should have training in Gender Bias, Recognizing Domestic Violence and the Effects of Domestic Violence on Children. This is because they found that many of the mistakes made in these cases were caused by a lack of understanding of these basic concepts. At least 40 states and many other districts and communities have created court-sponsored gender bias committees. They have found widespread gender bias and particularly in domestic violence custody cases. Among the common problems were blaming victims for their abuser’s behavior, burdening women with higher standards of proof and giving fathers more credibility than mothers. Other research, including the chapter in the book by Molly Dragiewicz has made similar findings. In one New York case the court gave custody to an abuser and denied the protective mother any contact with the children after the evaluator used and the judge supported a certainty standard for the mother and probability standard for the father. Few litigants could win a case when faced with a certainty standard. At least 15-20 different judges were asked to review this clear example of gender bias (the different standards were stated in the evaluator’s report and repeatedly challenged in the transcript), but every judge failed to correct this obvious error. Lynn Hecht Schafran wrote a brilliant article “Evaluating the Evaluators” that illustrates the problem. The article describes a new psychologist asked to perform an evaluation on a young family. She went to the father’s apartment and found it a complete mess with no food in the refrigerator. She wrote the father lives in a typical bachelor apartment. She went to the mother’s apartment and found it to be somewhat messy, but not as bad as the father’s. She had food in the refrigerator, but not as much as preferable. The evaluator wrote the mother lives in a messy apartment with inadequate food. The evaluator had a supervisor because she was new and the supervisor asked if she saw what she had done. The evaluator could not believe she had engaged in gender bias and quickly corrected the report. The article is valuable because it demonstrates that professionals acting in good faith (including women) can easily engage in gender bias without realizing it because of the sexism and stereotypes so prevalent in our society. How can anyone reasonably believe the courts are reaching fair decisions in domestic violence custody cases when gender bias is so common?
- Failure to Recognize Domestic Violence: Many of the mistakes custody courts make have to do with failing to recognize domestic violence. In fairness some of the problem is caused because victims or their attorneys fail to present the necessary evidence. Unqualified professionals often discount allegations of abuse based upon information that represents a normal and reasonable response to his abuse. In the book, Judge Mike Brigner writes about training judges in domestic violence. They often ask him how to respond to all the cases where women are lying about domestic violence. When he asks what they mean, they cite cases where women go back to their abuser, withdraw petitions for a protective order, fail to file police complaints or don’t seek medical care. In reality there are safety and other explanations for women’s response to domestic violence and none of these examples should be used to assume her complaints are false. At the same time they use information of limited value to discount domestic violence, professionals fail to use helpful and relevant information to understand the pattern of domestic violence tactics. Too often the professionals are interested only in physical abuse. They fail to consider a variety of controlling and coercive tactics. They don’t understand the significance of a woman’s fear of her partner. Domestic violence advocates are the only professionals that work full time on domestic violence issues. The advocates receive more training and have more knowledge of domestic violence then the professionals relied on by the courts. Domestic violence agencies have very limited resources so they are forced to screen clients before providing services. Accordingly when a woman is receiving services from a domestic violence agency, it is a strong indication that she is a battered woman, but many professionals fail to consider this information. Although seeking custody to pressure a mother to return or punish her for leaving is a common abuser tactic, few courts consider why a father with limited involvement with the children prior to separation suddenly demands full custody. Similarly unqualified professionals often fail to consider evidence that a man believes his partner has no right to leave is a strong indication of his motivation in seeking custody. How can courts be expected to decide domestic violence custody cases appropriately if they don’t know what to look for when determining the validity of domestic violence allegations?
- Effect of Domestic Violence on Children: Every state has passed laws designed to promote greater consideration of the effects of domestic violence on children. Some states require domestic violence to be considered in making custody and visitation decisions and others create a presumption against custody for abusers (although often the laws or the courts require a level of proof or create other restrictions that limit the effectiveness of these laws). Prior to these laws, when a protective mother asked to limit the father’s contact with the children because of domestic violence, the judge would ask some version of “Does he also abuse the child?” If the answer was no, the court treated the father as if he was just as appropriate for custody and visitation as the mother. The change in laws was based on overwhelming research that children witnessing domestic violence were harmed as much as children directly abused. The research found these children to be at substantially greater risk of a wide range of dysfunctional behaviors when they were older. In other words, domestic violence is a serious form of child abuse. We have found, however that courts frequently place greater reliance on other custody factors that have far less consequences to the safety and well being of children. In fairness, the courts are not solely to blame as legislatures have passed laws like “friendly parent” factors and failed to make domestic violence and safety the primary factors in custody determination. There is no research that “alienating” statements or attitudes by one parent to the children has the kind of serious long-term harm of domestic violence and yet many of the cases reviewed focus far more attention on alleged alienation. When mothers respond normally to their partner’s abuse with fear or attempts to protect the children, courts frequently treat this as the most important issue in deciding custody. This is a common example of what was discussed in gender bias reports in that the mother is held responsible for her reaction to the father’s abuse instead of holding the father responsible for his abuse. This type of mistake is at the heart of the common mistakes made by custody courts and does not serve the best interests of the children. If children are having problems as a result of the father’s abuse, unqualified professionals often blame the divorce and separation instead of his abuse. They often recommend cooperation and interaction between abuser and victim that is the opposite of what is healthy for children, but often benefit the fathers’ cases. When children appear to be doing well, inadequately trained professionals mistakenly assume this means the abuse allegations are false. Some children respond to abuse by trying to be perfect and take on adult responsibilities. Many years later the harm of the father’s abuse comes out in debilitating ways. Similarly children will often behave well with abusers and act out with their mothers because they know she is the safe parent. This is often misunderstood and courts reach the false conclusion that the father is the better parent. As long as the courts fail to understand the long-term harm to children of placing them with abusers, the courts will continue to make decisions that ruin children’s lives.
- Extreme Results: If a court were to give custody to a protective mother and limit the father to supervised visitation because of his domestic violence, it would be following the recommendations of up-to-date research. In other words there is a scientific basis for such an outcome. The researchers weigh the harm of restricting the children’s contact with their father and the harm the father is likely to cause with unrestricted visitation and the message sent to the children by awarding normal visitation with someone they know abused their mother. Instead what we are seeing is alleged abusers receiving custody and protective mothers having supervised or no visitation. Obviously, in these cases the courts are assuming the mother’s allegations of abuse are false. They justify the visitation restrictions by their concern the mother will continue to believe she was abused and say negative things about the father. Where is the research that the harm to the children of hearing such statements is greater than the harm of being denied a normal relationship with their mother? Even in intact families the children often hear negative comments about the other parent. In other words, these extreme court decisions are based upon the belief systems and biases of court professionals and not up-to-date research. Many children have been denied any contact with their mothers in these cases. Ironically fathers are often granted custody based on the belief they are the friendlier parent and will promote the relationship between the mother and children, but he proceeds to terminate all contact once he has control. Many courts that jumped all over mothers for requesting the court restrict the father’s access have done nothing in the face of the father preventing visitation or other contact between mother and children. Rapists and even murderers frequently receive some supervised visitation and yet mothers who sought to protect their children from an abuser are completely cut off from their children. The extreme outcomes faced by protective mothers are unsupported by any research, but demonstrate serious flaws in the custody system.
Now That We Know the Custody Court System Is Broken
Now is not the time for blame or attacks. As the Schafran article demonstrates, it is all too easy for good and caring people to fail to understand and recognize gender bias and domestic violence. In the book, Judge Hornsby writes that in his 19th year on the bench he finally understood the proper way to handle requests for protective orders. The judge’s humility, integrity and openness should serve as a model to the legal community as it responds to the clear information and research that the present court practices are mistreating protective mothers and their children. I was recently at a domestic violence conference in Hawaii where a court official was asked a question implying serious problems in the court system. She responded by saying if someone didn’t like a decision they could appeal. To her credit she later acknowledged that many people don’t have the money for such an appeal. This official fell into the trap of responding defensively to criticism. The challenge for the custody court system is to be open to the up-to-date research even though it finds the courts have made widespread mistakes in its handling of domestic violence custody cases. The medical community faced a similar situation in responding to research that found avoidable mistakes were responsible for 100,000 deaths each year in our nation’s hospitals. For years, fear of lawsuits, discipline and damaged reputation caused the medical profession to ignore, deny and seek to place blame on others. Finally they realized this was a losing strategy. Doctors, nurses and hospitals have now come together to correct the problems with more openness and accountability. Lives have already been saved from implementation of this approach and the campaign to prevent such avoidable errors. Rather than harm the medical community’s reputation, this campaign has increased the respect for the medical community. I believe if the legal community makes a similar effort to apply the latest research and create a campaign to avoid the kinds of tragic mistakes that have ruined the lives of so many women and children, the campaign will improve the reputation of the legal system. The promotion of the safety of battered mothers and their children is not and should not be considered a partisan issue.
Every state and every court system has rules and laws against domestic violence. Although some fringe male supremacist groups object to these laws, society has spoken and there is no longer any legitimate dispute about whether domestic violence should be tolerated. If a community had a rash of arson fires and the courts and legislature wanted to figure out how to respond they would seek the expertise of the experts. The experts are the firefighting community because they know best how to recognize arson, prevent it and respond to arson. No one would ever accuse the firefighters of being partisan because they are always against arson. In responding to domestic violence the experts are the domestic violence community. They are the only profession working full time on domestic violence issues and know how to recognize domestic violence, the best ways to prevent it and the harm it causes. Too often the courts have failed to take advantage of this community resource because they viewed domestic violence advocates as partisans. The validity for this claim ended when society determined it would no longer tolerate domestic violence and passed laws to enforce this determination. The crimes of arson and domestic violence are treated differently because arson has always been a crime and domestic violence is a relatively new crime and most firefighters are men and most domestic violence advocates are women. In this still sexist society what women say is not treated with the respect and value that what men say is. The domestic violence community is an important and valuable resource that the court system can benefit from as it applies the up-to-date research to practices that are now discredited. The legal system must use this research to launch a re-evaluation of its response to domestic violence custody cases so that custody courts become a safe place for battered mothers and their children. We are ready to work with them to help accomplish society’s goal of ending domestic violence.
This is Really Hard to Believe- Barry Nolan I am sitting in a room filled with women who were beaten, and violated in terrible ways. The room is not in Bosnia, or some far flung third-world hell-hole. I am in a function room in a hotel in Albany at the Battered Mothers Custody Conference.
Written by Barry Nolan
Thursday, 15 January 2009 09:14
This is really hard to believe. I am sitting in a room filled with women who were beaten, and violated in terrible ways. The room is not in Bosnia, or some far flung third-world hell-hole. I am in a function room in a hotel in Albany at the Battered Mothers Custody Conference. 
Many of the women around me are sobbing now, as a child tells her story. “My father beat me” she begins. Well, she is not a child now actually, but she is a child to me. She is a poised, attractive young woman named Jennifer Collins  who is a survivor of child abuse and of a Child and Family Court System that betrayed her and her brother, just as it betrays children across this country every day when it orders children to live full time with an abusive parent.
I know you do not believe me. And that makes me realize that this is the experience that these women who surround me have all had. No one believes them. No one believes this can happen.  But it does. Sometimes this happens despite voluminous evidence, eyewitnesses and medical records that the child has been beaten, even raped and sodomized by a parent seeking custody. Sometimes the courts do this even if the parent seeking custody has been convicted of, or admitted to domestic violence or sexual assault. I know you don’t believe me. But you would believe Jennifer if you were here.
It is a strange world in Child and Family court. For instance, even as much energy in the wider world goes into efforts to make certain that sex offenders have no access to children, that they can’t live near a school and walk near a playground, in this odd little corner of our judicial system, courts routinely order children to “reunite” with a sexual predator parent who hurt them. All in the name of “family re-unification”.
I know this sounds impossible. It is against all common sense. This is America after all. But come sit here with me, and listen to this woman/child tell her story. She has “aged out” of the system and is no longer under the thumb of a court that tells her she must be silent. There is a whole group of courageous kids  like Jennifer who are old enough now to tell their story to you, face to face. Jennifer’s story is a pip. And it is pretty typical.
Jennifer tells us about her mother Holly and her dad. He was a batterer who beat Holly. And he beat the children. Jennifer moves her story along quickly to the day when her older brother, then about 4, tried to intervene as dad was beating mom. Dad threw the son against the wall and fractured his skull. There is much more. But I will move the story along quickly to what happens when Holly finally decided to leave this man who beat her and the children. She fled that terrible house, only to find herself in house of mirrors. The Child and Family Court system.
It is almost as if none of the people who run the Child and Family Court system ever read about or learned a single thing from sad saga of the Catholic Church’s sexual abuse scandal. It’s like they never heard about how victims of physical or sexual abuse are often silenced by their own sense of shame. How their terrible stories can sometimes finally come pouring out in torrents. It may be years later, but it is no less true. This is not theory. This is fact. We have all watched these sad dramas on the 6 O’clock news.
But, uniquely in Child and Family Court, if allegations of physical or sexual abuse are raised during a divorce where custody is an issue, the allegations are used, not against the perpetrator, but against the victim. There is this invented thing, a bit of junk science called “Parental Alienation Syndrome”. It basically says that any time a woman raises the issue of physical or sexual abuse, of herself or the children in the midst of a custody dispute, she is just trying to make the man look bad and make the children hate him. She must be lying.
Look, I am not a fool. I know people lie. I know some women lie. I know people say awful things about each other in divorces. I have watched Jerry Springer just like you. But I have also watched “To Catch a Predator” and I know “respectable” people can do horrible things. So, do a thought experiment here. Pretend you are a woman who had finally left an abusive relationship, taking your children with you. If your controlling soon-to-be ex-husband sought to get full custody of the children as one last slap at you, what would you say? OK? Sure, that sounds fair? Fat chance.
The thing a real court would do when this happened is to consider all the evidence, and talk to all the witnesses. Witnesses like the children. They were after all, there when “it” happened. This is what a court would do if a stranger were accused of beating them. Or raping them. But this is not what the Child and Family Court system does.
Jennifer, the survivor, tells us of the day the representative of the court came to take her away from her mother and take her to live at her dad’s. How she clung desperately to her mother’s leg, until they pried her fingers loose, lifted her up, carried her away, and compelled her to live with the man who would beat her. Jennifer tells us how her mother, desperate beyond all measure, kidnapped the children, spirited them away to the Netherlands, where they became the first Americans to be granted asylum. How she lived in a refugee camp, with refugess from Somalia and Sierra Leone, people who had to learn how to use toilets and forks. How this was better than “home”. This was a step up. She was with her mom.
Jennifer lived in exile for 14 years. She finally “aged out”. The court has no jurisdiction now. And so Jennifer had the freedom to come home, to America, to this room where I sit, surrounded by women who are now weeping with joy and cheering for Jennifer’s mom for being so brave and for Jennifer for telling her story to this room full of people who know her story is true. Because the same thing happened to them. So they believe her.
I believe her, too.
 The Battered Mothers Custody Conference is a national public forum to address the many complex issues facing battered women and their advocates as they strive to protect themselves and their children in and out of family court during divorce, custody, and visitation disputes.
 Small Justice is a video that follows paralegal Diane Hofheimer and her attorney husband as they represent three women, all loving mothers, who have lost custody of their children to men with demonstrated histories of sexual abuse and domestic violence.
 The Courageous Kids Network is an organization dedicated to stopping the continuing assault on children’s human right to live free from abuse.
 American Children Underground blog chronicles the story of Jennifer Collins, who spent 14 years in hiding with her mother and brother after receiving asylum in the Netherlands.
from the October 14, 2009
States must reform a system that too often awards custody to the abusive parent.
San Rafael, Calif – When a parent harms his or her own child, family courts are supposed to step in and safeguard the victim.
Can you imagine what a tragedy it would be if courts awarded custody to the wrong parent – the abuser?
Actually, according to one conservative estimate, more than 58,000 children per year are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States.
The fact that this type of scandal is taking place in the American justice system defies the imagination. Not since the Roman Catholic Church pedophile scandal has the US seen this level of institutional harm inflicted on innocent children.
Consider the case of Jonea Rogers, a hairstylist from Marin County, Calif. During her costly divorce, she sought help from numerous law enforcement, child protection, and family court authorities to protect her daughter from what medical evidence and reports by the child and her baby sitter suggested could be ongoing neglect or sexual abuse or both by the girl’s father or grandfather.
None of the authorities she approached would effectively intervene to protect her daughter. So in 2000, Ms. Rogers eventually felt that she had no choice but to flee with her child to protect her.
More than three years later, this protective mother was caught and jailed for five months, while her daughter was immediately handed over to her alleged abusers. Rogers faced criminal charges for violating a court order by fleeing with her child. After considering the evidence in her case, a jury of her peers completely exonerated her of all wrongdoing.
The very same evidence that exonerated her in the criminal court had been called “frivolous” by the family court judge and disregarded. Despite her acquittal, Rogers was never granted custody of her daughter, who lives with her alleged abusers to this day. She is now forced to pay a fee to visit with her daughter a few times a month in a supervised visitation facility.
As we see in many cases across the country, even when physical or sexual abuseof children is alleged during a divorce, American family courts routinely award custody to the parent with an established record of domestic violence restraining orders, child abuse, neglect, alcoholism, addiction, dangerous mental illness, or a combination.
Meanwhile, the child’s other parent, commonly referred to as the “protective parent,” is typically demonized by court professionals as an “alienator” for bringing evidence of child abuse to the court’s attention.
This happens because the reigning paradigm in family courts across the country is an unscientific, discredited theory known as “Parental Alienation Syndrome,” orPAS.
PAS and its many derivatives suggest that the parent who asks the court to protect his or her child by limiting the alleged abuser’s access to that child is “alienating” the child from the other parent.
The theory suggests that a parent “coaches” a son or daughter to fabricate false abuse allegations, and the court’s attention immediately shifts away from investigating an alleged crime and instead focuses on the “uncooperative parent” who refuses to share custody of the child with the alleged abuser or molester.
PAS is tricky for the courts because parents in heated custody battles often badmouth each other and sometimes exaggerate claims of neglect, and children overhear their parents complaints about each other. Though rare, false allegations of abuse do occur. Research on child sexual abuse indicates that close to 98 percent of children who claim sexual abuse in the context of a high conflict divorce are telling the truth, yet family courts routinely proceed as if the opposite were true.
Protective parents not only lose custody of the children they are trying to protect, but they lose their life savings, too. Many cannot even afford a lawyer to represent their interests, but are saddled with hefty supervised visitation fees and often threatened with a loss of custody if they object to paying the bevy of court-appointed experts that the judge assigns to their case.
Fees quickly add up to tens or even hundreds of thousands of dollars. Many such parents go bankrupt, making court appeals impossible. The family law “machine” operates as Big Business, and a sophisticated cottage industry has sprung up that appears to be preying on desperate parents and children who are trying to escape family violence.
Four factors conspire against protective parents:
- 1. Family law judges are granted broad discretion in their decision making;
- 2. Juries are nonexistent in most family law courtrooms;
- 3. Costly appeals are out of reach for most litigants; and
- 4. Children are not afforded a voice in these important proceedings that determine their future. As a result, nothing short of a major overhaul of the family court system will suffice.
Here in California, home to some of the most egregious cases, the Center for Judicial Excellence and its partner organizations in the Safe Child Coalition recently worked with State Sen. Mark Leno (D) of San Francisco to unanimously pass an audit request through the California legislature to address this growing problem.
The request asks the state auditor to investigate the procedures used by family courts to appoint, train, evaluate, and discipline the plethora of professionals they use in cases in Marin and Sacramento counties.
The legislature should also pass two sensible bills in 2010. Assemblyman Jim Beall (D) of San Jose has proposed a bill that would outlaw PAS in state family courts, and a bill by Assemblywoman Fiona Ma (D) of San Francisco would allow children to have a voice in family court proceedings.
Other states must open their eyes to this problem. Family courts are being manipulated in ways that tragically undermine their mission.
We must ensure access to justice for all who find themselves in our nation’s family courts. There are at least 58,000 reasons to get serious about reform today.
Kathleen Russell is a cofounder and staff consultant to the Center for Judicial Excellence in Marin County, Calif.
Source The Christian Science Monitor.