The Court that Hurts Children
By Barry Goldstein
Custody courts cannot protect children when they permit a biased theory, designed to help abusive fathers take custody from good mothers and twice rejected by the American Psychiatric Association because there is no research to support it, to have more influence over the courts than ACE (adverse childhood experiences) and Saunders that are peer-reviewed scientific studies that go to the essence of the well-being of children and come from highly credible sources.
The ACE Studies are peer-reviewed medical research sponsored by the Centers for Disease Control and Prevention. The original ACE Study was released in 1998 and there have been at least five additional ACE Studies that confirm and expand the original findings. ACE is used by doctors to diagnose and treat patients, therapists for trauma-informed treatment of patients, public health officials use ACE to help traumatized survivors, and educators use ACE to help traumatized students. The only purpose of unscientific alienation theories is to help abusive fathers take custody from safe, protective mothers and help the cottage industry earn large incomes.
ACE would tell the court that children exposed to domestic violence, child abuse and other trauma will live shorter lives and face a lifetime of health and social problems. Most of the harm is not from any immediate physical injury, but from living with the fear and stress abusers cause. Doctors working with the ACE research can help courts understand that contested custody in DV cases is often the last chance to save children from a lifetime (often a shorter lifetime) of illness and pain. In order to save these children, they will need medical treatment and therapy to respond to health problems as they develop and reduce the stress which will cause most of the harm. The children also cannot be exposed to more abuse or frightening situations or else they cannot heal. When courts insist on giving an abuser shared decision-making, they prevent the children from receiving the treatment they need. Abusers particularly do not want the children in therapy where they might reveal his abuse. When courts assume keeping abusers in children’s lives is beneficial, they expose children to more abuse and stress. These standard court responses remove the last chance for children to have a full and successful life.
The Saunders Study was sponsored by the National Institute of Justice in the US Justice Department. The purpose was to determine the domestic violence knowledge of judges, lawyers, and evaluators. Saunders found court professionals need more than generalized training in DV. They need specific knowledge that includes screening for DV, risk assessment, post-separation violence, and the impact of DV on children. Professionals without this information 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. Saunders found DV advocates have more of the DV knowledge courts need than court professionals and most judges, lawyers and especially evaluators who do not have the DV expertise they need. Saunders recommends a multi-disciplinary approach that in potential DV cases must include a DV expert.
Fundamentally, without ACE, courts routinely minimize the harm from DV and child abuse and without Saunders they rely on the wrong professionals and so disbelieve true reports of abuse. Many standard court assumptions and practices were proven wrong by ACE and Saunders but continue to be relied on by courts.
Domestic violence is about control, including financial control. This means that in most DV cases most of the family’s financial resources are controlled by the abusive father. This factor led to the creation of the cottage industry of legal and mental health professionals who promote bogus theories such as alienation to help abusers gain custody. This financial advantage is a huge legal advantage and courts have been reluctant to use their authority to level the playing field. Abusers routinely use economic and litigation abuse to bankrupt their victims so that many victims wind up representing themselves. Courts do not seem to notice the tactics, use the information to recognize abusers’ motives, or take action to guarantee a fair trial. The superior economic resources of abusers result in judges and other court professionals hearing far more misinformation than the actual research that courts badly need.
The tilt is further encouraged by the response of attorneys. Lawyers for abusers are comfortable acting aggressively even when it misleads the court and places children in jeopardy. At the same time, many attorneys for mothers refuse or discourage their clients from presenting evidence or research about DV. Many courts have failed to understand mothers’ attempts to protect their children and have responded by punishing protective mothers who are the primary attachment figures for the children. Judges rarely consider that aside from missing true reports of abuse, the retaliation discourages lawyers from providing courts with the information needed to protect children in other cases.
The Meier Study is an outcome study designed to measure how courts respond to alleged DV, child abuse, and alienation. In the context of other research, Meier supports the conclusion that custody courts support abusive fathers far more than the evidence would justify. This is to be expected given the information discussed earlier.
In the last 15 years, a study from the Center for Judicial Excellence found over 900 children involved in contested custody have been murdered mostly by abusive fathers. In many cases, judges disbelieved or minimized reports of abuse and gave the killers the access they needed. The Bartlow Study asked judges and court administrators in the communities that suffered these murders what the court had done to make children safer in response to the local tragedy. The shocking answer was nothing because they all assumed the murder was an exception. I find it distressing that even the murder of a child does not overcome the defensiveness and insularity that has prevented needed reforms including the use of ACE and Saunders.
Children who physically survive their time controlled by custody courts are not out of the woods. Many of these children die in their teens or twenties from suicide or a drug overdose. Other children will later die early from cancer, heart disease or other diseases that are caused or exacerbated by the stress ACE focuses on. People who were never in custody court die from similar tragedies so we cannot know if an individual death was caused by the poor practices courts use in responding to abuse cases. There is no doubt, however, that many children’s lives are being ruined because courts are more willing to maintain the status quo than introduce ACE and Saunders.
I wrote an article based on a true story of a mother who saved her son by punching a mountain lion who attacked him. She was viewed as a heroine because the danger was from a wild animal instead of a wild abuser. The story illustrates the maternal instinct to protect children. Only in the courts that hurt children is this instinct viewed as harmful and severely punished. Some of the most heart wrenching stories I hear involve extreme decisions separating mothers from children and children from mothers. Courts make this tragic mistake because they are relying on flawed and biased practices. The Saunders Study and Kayden’s Law would tell courts of their mistake if only courts would consider scientific research instead of subjective opinions. Many, if not most, children will never recover from these extreme and retaliatory decisions. No judge wants to hurt children, but without the research they will continue to do so.
One of the reasons DV experts understand abuse issues better than other professionals is that we look at the patterns. Judges and court administrators miss the patterns because they are handling all custody cases. Most cases involve two good and loving parents and the standard court practices work well in those cases. This makes it harder for courts to recognize the 3.8% of contested custody cases that require a very different response. 75-90% of these cases are really DV cases in which an abusive father who often had limited involvement with the children during the relationship seeks custody or shared parenting (as a first step) to regain control and punish the victim for leaving.
It is a mistake to treat cases with two safe parents the same as cases with an alleged abuser. High conflict approaches are biased in favor of abusers because they create a false equivalency between victim and abuser. There is now a specialized body of knowledge and research that is needed in abuse cases, including to determine if there is abuse. Any attempt to decide possible abuse cases without the benefit of ACE and Saunders is malpractice.
Any effort to reform court practices in order to protect children must include ACE and Saunders. Many court officials seek to block any legislation they view as limiting their discretion. The National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders because it goes to the essence of the well-being of children. I have never heard a judge or court administrator explain the justification for failing to make sure the knowledge in ACE and Saunders is used to understand these cases and protect children.
I don’t write this article out of anger or to criticize anyone. I am writing out of profound pain and sadness. The worst part of this work is the constant stream of preventable tragedies that never stop. We fight on a case-by-case basis, but as long as courts maintain the ignorant and biased practices that err on the side of protecting abusers and ruining children’s lives, the unbearable tragedies will continue. Please tell me how courts that hurt children can continue to try to respond without the benefit ACE and Saunders.
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.
(Thanks to Veronica York for her suggestions that improved this article).
