Dear Judge Responding to DV Custody Cases
by Barry Goldstein
The National Council of Juvenile and Family Court Judges seeks to train other judges about important scientific research like ACE (adverse childhood experiences) and Saunders. We now have a specialized body of research and knowledge about domestic violence and child abuse that can help courts recognize true reports of abuse and craft responses that help protect children.
The purpose of this letter is to ask the court to be open to considering the research and avoid standard approaches the research demonstrates work poorly in domestic violence custody cases. Most custody cases are settled more or less amicably. The problem is the 3.8% of all cases that require trial and often much more. The research shows that 75-90% of contested custody are really domestic violence cases. These cases involve abusers who believe she has no right to leave, and they are often willing to hurt the child to protect their “rights.”
Many present practices were developed over 40 years ago at a time when little research about DV was available. It was based on the assumption that DV is caused by mental illness or substance abuse. The research demonstrates these assumptions were wrong, but courts have been slow to modify the practices. Mental health professionals are experts in psychology and mental illness but not DV or child abuse. Every year, 58,000 children are sent for custody or unprotected visitation with dangerous abusers and since 2008, The Center for Judicial Excellence found over 850 children involved in contested custody have been murdered, mostly by abusive fathers.
ACE is peer-reviewed medical research from the CDC. ACE found that children exposed to DV, child abuse and other traumas will live shorter lives and face a lifetime of health and social problems. Most of the harm is not from any immediate physical injuries, but from the fear and stress abusers cause. This means practices that minimize older abuse; limit inquiries to physical abuse; assume the end of the relationship ends the risk; or ask children to just get over it have no chance to work.
Contested custody cases are usually the last chance to save children from the awful consequences. Medical doctors say children exposed to multiple ACEs can avoid the harm, but it requires two responses standard court practices prevent. The children will need medical treatment and therapy to respond to problems as they develop and to reduce the fear and stress. This means the safe parent must control health decisions because abusers use decision-making to block anything the mother wants and particularly to prevent or undermine therapy because the child might reveal his abuse. Shared parenting in these cases ends the child’s chance for a full and healthy life.
The second response the doctors say is needed is that the children cannot be exposed to more abuse or situations that renew the fear and stress. This means any visitation must be supervised until the abuser changes his behavior. When courts rush to resume or continue normal visitation without requiring fundamental changes by the abuser, courts take away the child’s chance for a full and healthy life. Fundamentally, without ACE, courts inevitably minimize the harm from DV and child abuse and err on the side of risking children.
The Saunders Study is peer-reviewed scientific research from the National Institute of Justice in the US Justice Department. The purpose was to review the domestic violence knowledge of judges, lawyers and especially evaluators. Saunders found court professionals need more than generalized knowledge about DV. They need knowledge about specific subjects that include screening for DV, risk assessment, post-separation violence and the impact of DV on children. Professionals without this specific knowledge tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. This leads to recommendations and decisions that harm children. Most evaluators fail to screen for domestic violence in an effective way and judges and lawyers have spent their careers influenced by evaluator’s misinformation about DV and child abuse. As a result, Saunders found most court professionals do not have the specific DV information they need for DV custody cases. DV advocates have more of the specific DV information courts need than judges, lawyers, or evaluators. This makes sense because they are the only profession to work full time on domestic violence prevention and safety. Saunders recommends courts use a multi-disciplinary approach that would include DV and child abuse experts when this is important to the case. Without Saunders, courts routinely rely on the wrong professionals for DV cases and so often disbelieve true reports of abuse.
The first part of screening for DV is to avoid discrediting true reports based on non-probative factors. Common examples include: the mother left an alleged abuser, but returned; she sought a protective order, but didn’t follow-up; she has no police or medical reports; the professional failed to differentiate between an abuser’s public and private behavior; the child appears to be doing well on the surface; and a child shows no fear interacting with the alleged abuser in front of a professional. These are all common responses for safety and other reasons and tell us nothing about the validity of reports about abuse.
Instead, courts should consider which parent is afraid of the other parent. Courts should consider the motives of the alleged abuser. Is there evidence that the purpose of his tactics is to maintain power and control; coerce the victim to do what the abuser wants and based on the belief that the man has the right to make the decisions? The court should then look for the pattern of coercive and controlling behaviors. Most DV is neither physical nor illegal. This means there is much more evidence of DV available when we know what to look for. Common tactics include emotional, psychological, economic, litigation and physical abuse, plus stalking, monitoring, isolating and similar tactics.
Risk assessment refers to the fact that there are many common DV tactics that are associated with increased risk of lethality. These tactics should be taken even more seriously. Examples include strangulation, assaulting a woman while pregnant; hurting animals; forced or pressured sex; threats of murder, suicide, or kidnapping; stalking; access to guns; and the belief she has no right to leave. I have reviewed over 1000 evaluations and have never seen an evaluator report something like, “the mother alleges the father strangled her, and if this is true it raises serious concerns of potential lethality.” This failure is a common example of minimizing the risk from an abuser.
There are two parts to post-separation violence and neither have to involve physical violence. DV custody cases usually involve abusers using custody to regain control over the victim and punish her for leaving. Saunders found abusers sometimes use exchanges to harass or even assault their victims. More commonly, we see economic and litigation abuse as part of the cases. Courts often dismiss the issue as typical to litigation, but it means the abuser has not changed.
Significantly, abusers do not hurt their victims because of anything she said or did. This means they are likely to abuse future partners. If they already have a new partner, he is likely to treat her well because he needs her testimony, but eventually will resume his abusive tactics. This means children will witness more DV and therefore cannot heal.
At least 40 states and many judicial districts have created court-sponsored studies of gender bias. They have used a variety of methods over four decades but have found widespread bias against women litigants. Common examples include holding women to a higher standard of proof, giving mothers less credibility, and blaming the victim for her normal reaction to the father’s abuse. This is a difficult problem to overcome because gender bias is usually unintentional and subconscious. At the same time the needed discussions are discouraged because of the risk that reporting gender bias may result in defensiveness or even retaliation. The Meier Study from the National Institute of Justice found courts have made little progress in overcoming gender bias. A good way to check for gender bias is to ask how a situation would have played out if the genders were reversed.
Sexist alienation theories were deliberately developed to help abusive fathers gain custody. Richard Gardner and the cottage industry of lawyers and mental health professionals needed an approach to justify changing custody from safe, protective mothers who are the primary attachment figures to abusive fathers who often had little involvement in childcare during the relationship. Gardner concocted Parental Alienation Syndrome (PAS) for this purpose based on no research, but only his personal experience, beliefs, and bias. This included many public statements that sex between adults and children can be acceptable. I don’t believe judges would have wanted to be associated with this theory if they were aware of the heinous basis for its creation. DV is about control, including financial control. This means in most contested custody cases, the abusive father controls most of the financial resources. The cottage industry developed for these financial reasons and the financial incentive has contributed to custody courts receiving frequent and aggressive misinformation, particularly about alienation.
Gardner sought to include PAS in the DSM-IV which is the compendium of all valid mental health diagnoses. The American Psychiatric Association rejected it because there is no scientific research to support alienation. PAS developed a deserved bad reputation, particularly that it clearly is not a syndrome, and Gardner committed suicide. The cottage industry sought to continue using PAS but wrote articles offering a slightly milder version and used different names such as alienation, parental alienation, or gatekeeping. The cottage industry and male supremacist groups lobbied aggressively to include unscientific alienation theories in the DSM-V which is the present compendium. It was again rejected because there is still no valid research to support the theory. I am not aware of any other court that continues to rely on a theory that has been twice rejected by the leading professional association.
There is an interesting finding in the Meier Study. They found that when courts believe a father is being alienated, this provides a strong boost for the father and helps them gain custody. When the court believes the mother is alienated, it has no effect on the outcome. This means unscientific alienation theories are being applied in a gender biased manner that violates due process and equal protection. What is really happening is that in our still sexist society, mothers continue to provide most of the childcare and therefore have a stronger relationship with their children. Court professionals are less worried about the mothers’ relationship and so pay less attention to alienating behavior by fathers. This is another example of unintentional gender bias.
Some judges have suggested they don’t need research because common sense tells us that parents do make negative statements about each other. This is true, even in intact families. This approach would be acceptable if the courts didn’t then accept the rest of unscientific alienation theories. These theories assume a bad relationship with the father could only be caused by alienating behavior. More likely causes include DV, child abuse, limited involvement, or other bad parenting practices. The theories seek to ASSUME alienation based on speculation about what the mother must be saying. The father rarely has personal knowledge of what is said in the privacy of the mother’s home but are often allowed to speculate. The findings rejecting unscientific alienation theories from the DSM-V means it is caused by bad behavior rather than mental illness. This means that mental health professionals, and especially the cottage industry have no special expertise to inform the court. The alienation theories assume alienation creates the worst possible harm to children. In intact families, negative statements rarely have long-lasting effects. A false statement against one parent is more likely to hurt the relationship with the parent making the false statement. ACE demonstrates that domestic violence and child abuse have far more harmful consequences. There is no valid research that demonstrates the harm from alienation because there is no standard definition of alienation. The purported research, based on the original bogus PAS finds harm to children that is more likely caused by DV and child abuse. Indeed, Gardner assumed that almost all reports of abuse by mothers or children are false. Objective research like the Bala Study found mothers in contested custody cases make deliberate false reports less than 2% of the time.
A recent decision by the Oregon Psychology Board is particularly helpful in understanding the use of unscientific alienation theories in custody courts. A custody evaluator used other language in the DSM-V to claim alienation is supported in the DSM-V. This is false because it was specifically rejected despite aggressive lobbying. The evaluator was disciplined for diagnosing something that doesn’t exist (in the DSM-V). Hopefully more cottage industry professionals will face accountability and stop poisoning custody courts with their biased theories.
The reliance on unscientific alienation theories has done enormous harm to children, but also to the reputation of family courts. It is outrageous that an unscientific theory, twice rejected by the American Psychiatric Association has more influence in the courts than ACE and Saunders that are peer-reviewed scientific research from highly credible sources. ACE is used in many areas of society to benefit individuals. It is used by medical doctors to diagnose and treat patients; therapists to treat patients; schools to help traumatized students and public health officials to support reductions in diseases and social problems. ACE is often compared to the Surgeon General’s Report linking smoking and cancer. Both studies can be used to discourage harmful behavior (smoking, DV and child abuse) and in doing so save millions of lives and trillions of dollars. In contrast, unscientific alienation theories are only used to help abusive fathers gain custody.
The parent who provides most of the childcare in the first two years of a child’s life is and always will be the primary attachment figure. In most cases this parent is the one the children turn to when they need assistance; the primary parent is usually the better parent based on more practice and knows the children’s providers as well as their needs and strengths. Denying children, a normal relationship with their primary attachment figures increases the risk of depression, low self-esteem, and suicide. The importance of primary attachment is often minimized by custody courts in part because of gender bias.
There is a section in the Saunders Study about harmful outcome cases. These are extreme decisions in which the alleged abuser receives custody and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. Saunders found harmful outcome cases are ALWAYS wrong and based on the use of flawed practices. The reason they are always wrong is the harm from denying children a normal relationship with their primary parent is greater than any benefit the court thought it was providing. In most cases, the flaws used by the court resulted in an arrangement that is the opposite of what works best for children.
Context is critically important in recognizing domestic violence. Courts often miss the context in an attempt to save time because of crowded dockets. Decontextualizing is a common abuser tactic. They seek to start the story immediately after their abuse and simply describe the victim’s response. At early hearings, courts often limit the discussion to the immediate issue and in doing so miss the long history of abuse. Arbitrary time limits for presenting a case are not neutral as they are intended. Victims need more time to explain the context and explain (as in this letter) that many standard practices favor abusers. The alleged abuser need only deny the alleged abuse and encourage courts to maintain the biased practices.
In the typical DV custody case, the father wanted the mother to provide most of the childcare during the relationship. In any other court, this would properly be understood as an admission by the father that the mother is a good parent, or else he would have sought a different arrangement. When the mother seeks to leave her abuser and report his abuse, fathers often retaliate by seeking custody and claiming the mother is suddenly unfit. They often claim the mother is mentally ill and/or alienating. What are the chances a mother suddenly becomes unfit because the relationship ended, and she reported his abuse? In the real world the chances are close to zero, but custody courts that fail to use current scientific research, rely on professionals without the needed DV expertise and miss the context often make this unlikely finding.
The use of shared parenting has pushed the court towards an ideological approach and away from the best interests of children. This was one of the purposes of the male supremacist groups that have pushed for equal parenting. There is a legitimate argument for shared parenting in cases with two good and safe parents. This was never intended for use in DV custody cases. The most favorable research for shared parenting says it can be beneficial for children when both parents want shared parenting; the parents can communicate effectively; neither parent is afraid of the other and they live nearby. This does not apply to DV custody cases. Saunders found shared parenting is never appropriate in DV custody cases.
One of the problems with “high conflict” approaches is that it immediately pushes the parents for co-parenting even though in most cases it would be a mistake. High conflict creates a false equivalency between a safe, protective mother who is the primary attachment figure and an abusive father. In many cases, victims are punished for trying to protect their children and the desire to save court time is substituted for the desire to keep children safe.
ACE and Saunders demonstrate that many standard court practices and many standard evaluation practices are harmful to children. The resultant mistakes are not neutral in the sense that they apply equally to both parents. All the mistakes caused by a failure to use current scientific research help abusive fathers and place children in additional risk. Practices that minimize the harm from DV and child abuse and make it harder for courts to recognize true reports of abuse are harmful to children.
Expert witnesses are the only witnesses allowed to give their opinions. Family courts rarely differentiate between subjective and objective opinions. Subjective opinions work great for the experts, particularly from the cottage industry because they just have to say what they believe or what supports their client. Cottage industry professionals do not have the specific knowledge Saunders says is needed and are biased in favor of abusive fathers. They should never be permitted to serve as neutral professionals. The subjective opinions are often contradicted by the research the experts fail to consider. Objective opinions are much more useful for courts because it is evidence-based information that focuses on what works best for children.
Dr. Vincent Felitti, lead author of the original ACE Study believes prevention is the most important use for his research, especially in Family Court. This research is so exciting because it can be used to reduce cancer, heart disease, diabetes, mental illness, substance abuse, suicide, crime and many other health and social problems. It is especially important for courts to use this knowledge in cases that are likely to be the last chance to save children from the awful consequences of exposure to multiple ACEs.
Barry Goldstein is a domestic violence author, speaker, advocate and expert witness. He is the author of six books concerning domestic violence and child custody. Barry is the author of the Safe Child Act which is a comprehensive plan based on current scientific research that can fix the broken court system and make family courts safe for children.