The Court that Hurts Children

The Court that Hurts Children

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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).

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Tales of a Grotesque Guardian ad Litem, Part 3

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By Guest Contributor (Expert Witness to the Courts) Family courts could, theoretically, be antidotes to violence and be promoters of justice, as they are supposed to be.  But nowadays, a massive industry underlies American family courts, directed at going beyond even selling “justice” to the highest bidder, to outright subversion of the law. Vulnerable women […]

The post Tales of a Grotesque Guardian ad Litem, Part 3 first appeared on Foundation for Child Victims of the Family Courts.

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Tales of a Grotesque Guardian ad Litem, Part 2: Officers of the Court Facilitating the Criminal Acts of Psychopathic Predators

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By Guest Contributor (Expert Witness to the Courts) True criminals know no shame—they try to punish others by the degree to which they themselves deserve punishment. Doing so helps them to deny that they are as vile as they are—a fact that they know very intimately. This is an update on the “Guardian Ad Litem” […]

The post Tales of a Grotesque Guardian ad Litem, Part 2: Officers of the Court Facilitating the Criminal Acts of Psychopathic Predators first appeared on Foundation for Child Victims of the Family Courts.

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Someone is Mentally Ill, an Addict, or an Abuser: The Vastly Different Response in Family Court and in Life: Essay by Barry Goldstein

Does an Expert Witness Need to Speak with all Parties?

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By Barry Goldstein

During our training to teach batterer classes, we often discussed the fact that much of domestic violence is counterintuitive.  One would expect abusers to deny and minimize their abusive behavior, and they do.  One would also expect alleged victims to exaggerate or even make up false reports of DV.  Instead, it is very common for victims to minimize his abuse; take more responsibility than she deserves; and make excuses for him.  Most court professionals are not DV experts and would not even consider the very different responses from victims and abusers.

We have heard lawyers and judges question whether a DV expert should be allowed to testify if they haven’t interviewed both parties and possibly any children.  This mistake is based on the standard practice of evaluators speaking with everyone.  It is also based on a fundamental failure to understand domestic violence.  The Saunders Study is the leading research about the DV knowledge of court professionals.  It found courts should use a multi-disciplinary approach to DV custody cases.  Nevertheless, courts routinely listen to evaluators who failed to consult a DV expert and are without the DV knowledge Saunders found to be necessary.

In the real world, professionals routinely make important judgments about DV without speaking to the alleged abuser.  Doctors, therapists and DV advocates often calculate a child’s ACE score based on what the safe parent tells them.  They have found this to be highly accurate because the research confirms women rarely make deliberate false reports of abuse, particularly in the context of contested custody cases.  Similarly, advocates and law enforcement routinely use lethality or danger assessments based on the reports of the alleged victims.  These practices have proven to be helpful and accurate.  Of course, if these assessments lead to criminal charges or other court action, the alleged abuser is certainly given the opportunity to respond.

Courts Need DV Expertise

There is now a specialized body of domestic violence knowledge and research that was not available when custody courts developed their response to DV cases.  This information is critical if courts are to be effective in recognizing and responding to DV.  Saunders found court professionals need more than generalized DV knowledge.  They need knowledge in very specific topics that include screening for DV, risk assessment, post-separation violence and the impact of DV on children.  Saunders found most evaluators and other court professionals do not have this specific knowledge.  When courts attempt to make decisions in possible DV cases without the necessary DV knowledge the results are often catastrophic and frequently ruin children’s lives.

There are four parts to proper screening for DV.  The first part is to avoid non-probative factors that are often used to discredit true reports of abuse.  Common examples include the alleged victim leaves and returns, she fails to follow through on a request for a restraining order, she doesn’t have police or medical records.  These are common responses of victims for safety and other good reasons.  Another related mistake is treating an alleged abuser’s good behavior in public, including testimonials from friends, family, and colleagues as if that tells us anything about his private behavior.  In the batterer classes I taught, the men usually acted respectfully, and we were trained to understand this tells us nothing about his behavior in private.  In many cases, professionals observe an alleged abuser interacting with the children.  When they don’t show any fear, the untrained observer assumes this means he cannot be abusive.  The children understand he would not hurt them in front of witnesses, so it is safe to play with a father they still love.  The fact courts continue to discredit abuse reports based on non-probative factors demonstrates the need for a DV expert.

The second factor is simply to determine which parent is afraid of the other.  Sometimes victims challenge their abuser during litigation.  They are afraid of him but find the courage because they are trying to protect their children. When an alleged victim accepts clearly inadequate child support, this is often because she is afraid of his response if she demanded what the law requires.  Context is important, including the relative size and strength of the parties in determining the fear issue.

Most custody cases, like any litigation are settled more or less amicably.  The problem is the 3.8% of cases that require trial and often much more.  Although courts often use a high conflict approach, 75-90% of these cases are really domestic violence involving the worst abusers.  This does not mean they committed the most severe assaults, but rather he believes she has no right to leave and so he is entitled to do whatever is necessary to regain the control he believes he is entitled to and punish the mother for leaving.  Courts cannot make decisions based on statistics but should look to his actions to understand his motive.

Most parents would sacrifice their resources and preferences to benefit their children.  Accordingly, it makes sense to look to see if the father is making such sacrifices or alternatively refusing to do so.  Is the father refusing to pay child support and other child related needs or making it difficult to collect?  Is he interfering with the child’s communication with the mother?   Is he blocking therapy and other decisions that would benefit the child?  Saunders found abusive fathers use decision-making to block anything the mother wants and especially therapy because the child might reveal his abuse.  Is the father uncooperative with socialization and activities that would benefit the child?  Does the father engage in unnecessary and harmful litigation tactics?  Is he trying to gain an unfair advantage by imposing high litigation and other expenses on the mother?  Is the father willing to spend more to deprive the mother or child of something than the issue would cost him?  I had an extreme example in one case where the father canceled health insurance for the children that was fully paid by his employer.  The court treated it as an economic issue rather than proof the father was deliberately trying to hurt the mother and children.  An abuser is not likely to engage in all these bad practices but looking at the totality of the circumstances can help the court determine whether the father’s priority is the well-being of the children.

The final part to screening for DV is looking for the pattern of abuse.  Courts tend to focus on incidents, and that is needed for evidence, but in DV cases, it is not just that the abuser committed some incidents, but it is who he is, what he believes, and all designed to impose his will.  The pattern would include all the tactics the abuser used during the relationship and since.  This emphasizes that most DV is neither physical nor illegal.  The tactics often also include emotional, verbal, economic, and litigation abuse as well as isolating and monitoring tactics.  Including all the tactics makes more evidence available and helps courts recognize his motives.  The fact that his tactics continued after the separation demonstrates he has not changed.  Some professionals assume the end of the relationship ends his abuse, but the research found only accountability and monitoring are effective in changing abusers’ behavior.  When courts minimize or overlook abusive behavior, it serves to encourage these harmful tactics.  This is not beneficial for the children.

Risk Assessment is central to the work of DV advocates because if we can’t keep the victim safe, nothing else matters.  It is hard to believe courts haven’t made this a similar priority to protect children.  The Center for Judicial Excellence keeps records of children involved in contested custody who were murdered, mostly by abusive fathers.  Since 2008 they have found over 860 child murders.  

There are specific behaviors associated with higher risk of lethality.  These circumstances include strangulation; hitting a woman while pregnant; hurting animals; threats of murder, suicide, or kidnapping; access to guns; stalking; and the belief she has no right to leave.  I have reviewed over 1000 child custody evaluations and never saw an evaluator reference the lethality risk associated with these allegations.  The failure to focus on risk assessment results in denying and minimizing the risk from abusers.

Post-separation violence refers to two types of risks courts rarely consider.  In contested custody, fathers who had limited involvement in childcare during the relationship suddenly seek custody or shared parenting as a tactic to gain access to the victim and punish her for leaving.  Saunders found abusive fathers sometimes use visitation exchanges to harass or even assault the mother.  Abusers may use meetings or communications to try to resume the relationship or just have sex.  This might be misunderstood as romantic, but it reveals the motive for seeking custody.  Abusive litigation tactics and economic abuse are often a continuation of the father’s DV once he no longer has regular access.  Even worse, many abusers recognize the best way to hurt a mother is to hurt her children.

Abusers do not commit DV because of anything the mother said or did.  Rather, his behavior is based on his sense of entitlement and belief as the man he has the “right” to make the decisions.  This means he is likely to abuse future partners.  If he is given custody or unprotected visitation, the children are likely to witness more DV and that would prevent them from healing so they will suffer the awful consequences of exposure to multiple adverse childhood experiences.

The ACE (adverse childhood experiences) Research is peer-reviewed medical studies from the CDC.  It provides the answer to Saunders question about the impact of DV on children and goes to the essence of the best interests of children.  ACE found that children exposed to DV, or child abuse will live shorter lives and suffer a lifetime of health and social problems.  Most of the harm is not caused by any immediate physical injuries, but from the fear and stress abusers cause.  Without ACE, courts routinely minimize the harm from DV or child abuse and are deprived of the most important information.

ACE tells us that many common court practices work poorly for the children the courts are obligated to protect.  These mistakes include: refusing to consider older abuse; assuming a very young child could not be harmed by DV because they would not understand what occurred; failing to allow enough time to learn the full context and patterns; using approaches that demand the child just get over it; high conflict approaches; using shared parenting in cases where children have multiple ACEs; using unscientific alienation theories; failure to give serious consideration to supervised visitation; and failure to focus on how to reduce the fear and stress on children.

Avoiding Outdated Practices

Saunders found custody courts need to use a multi-disciplinary approach in cases where there may be domestic violence.  This means courts benefit from hearing DV experts when determining if there is DV as well as best responses.  It is puzzling why judges or lawyers could believe a DV expert must speak with an alleged abuser to provide useful information while there would be no question a party’s therapist can testify after only working with their client.  The mistake is probably based on familiarity with standard evaluator practices and a misguided sense of fairness.  

As DV expert witnesses, we often hear the alleged abuser’s voice through evaluation reports, GAL reports, court transcripts, and messages like texts or emails.  The attorneys who complain we did not speak to their clients would never have allowed us to speak with them.  Even without us speaking to the alleged abuser, the court will hear his side of the story because he will be given an opportunity to present a case.  In contrast, when courts rely on an evaluator without the needed DV expertise, the court never hears the vital DV information discussed above.  Even when there is no evaluation in a case, the judge and lawyers are relying on the many evaluations they have read in other cases that fail to consider important DV expertise.  In other words, courts will always have an opportunity to hear from both parties, but only with a DV expert can the court consider the type of life saving information described earlier.

There is a history and context that undermine the adoption of needed reforms.  Present practices, particularly concerning evaluations in DV custody cases were developed at a time when no research was available.  The popular assumption was that DV was caused by mental illness or substance abuse.  This led courts to turn to mental health professionals as if they were the experts in DV.  They are experts in psychology and mental illness, and this can be helpful particularly when there are mental health issues in addition to the DV.  Further research proved mental illness and substance abuse reduce inhibitions, so DV is more severe, but does not cause DV.  Saunders established that evaluators do not have the necessary DV expertise, but courts have been slow to use the multi-disciplinary approach needed to protect children.

At the same time, DV is about control, including financial control.  This means most of the financial resources favor abusive fathers, so courts have heard much more biased misinformation that favors abusers.  Most lawyers do not have DV expertise and many refuse or discourage presentation of DV information because they believe judges don’t want to hear them.  This is precisely the scientific research and DV expertise courts will miss without testimony from a DV expert.

There is something terribly wrong when an alienation theory based on no research, but the belief sex between adults and children can be acceptable continues to have more influence on custody courts than ACE and Saunders that are peer-reviewed scientific research from the CDC and National Institute of Justice.  The alienation theories were twice rejected by the American Psychiatric Association because there is no research to support it.  The National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders because without this vital research courts routinely deny or minimize true reports of abuse AND RUIN CHILDREN’S LIVES.

As DV experts, we can provide custody courts with knowledge of important scientific research, DV dynamics, gender bias, child sexual abuse, batterer narratives, and the importance of context.  This knowledge proves many standard court practices are harming children.  If we don’t speak to an alleged abuser, the courts will get his side of the story anyway, but if courts don’t hear from DV experts, as the research recommends, courts will never hear the information needed to keep precious children healthy, safe, and alive.

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.

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Someone is Mentally Ill, an Addict, or an Abuser: The Vastly Different Response in Family Court and in Life: Essay by Barry Goldstein

“Shared Parenting” Places Ideology Over Children

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by Barry Goldstein

Just as custody courts developed responses for domestic violence at a time when no research was available, early proponents of shared parenting sought to experiment when there was no research about shared parenting. Initially, parents seeking shared parenting did so voluntarily, in situations where they were able to communicate and cooperate. There is now legitimate research that found co-parenting benefits children only under the best circumstances. This requires the arrangement to be voluntary; an ability to communicate; neither parent is afraid of the other; and they live nearby. There is other legitimate research that found shared parenting is harmful to children because of the constant disruptions. There is no valid research supporting shared parenting without the necessary favorable circumstances. Unfortunately, this is a mistake courts frequently make.

Most custody cases, like other litigation, are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. Court professionals have been taught to use a high conflict approach that assumes the parents are angry with each other and acting out in ways that harm the children. The research found 75-90% of these cases are really domestic violence cases that involve the most dangerous abusers. These are men who believe she has no right to leave, and who seek to use custody disputes to regain control. These are the last cases where shared parenting should be considered, but courts that have been slow to integrate important scientific research or use a multi-disciplinary approach, have trouble recognizing abuse in these cases. The use of shared parenting increases the bias to minimize or deny abuse in order for the case to be eligible for co-parenting.

The use of shared parenting has been encouraged and promoted by three groups based on their preferences and personal benefits, divorced from the well-being of children. Male supremacist groups support shared parenting because otherwise the safe, protective mother would have a strong advantage. Court professionals promote shared parenting because it creates the need for lucrative services, particularly to help hostile parties communicate. Court officials like shared parenting because they must respond to overcrowded dockets, and believe shared parenting is the only compromise both parties can be pressured to accept. In domestic violence cases, the abuser would never agree to anything reasonable, so they need to pressure and sometimes threaten the victim to settle cases. In my articles, I often need to explain problems that occurred after victims were pressured to accept co-parenting with their abuser.

Shared Parenting was Never Intended for Domestic Violence Cases

Most people, including court professionals, are unaware custody courts are having severe problems trying to respond to cases involving domestic violence or child abuse. Many protective mothers believe the courts are corrupt because the decisions and process are so unfair and catastrophic. While there is corruption with the cottage industry, courts are making harmful decisions because of their failure to use evidence-based research and unintended bias. Court officials would vehemently deny the system works poorly, but the factors that influence courts demonstrate their denials are wrong.

There is something undeniably wrong with a system in which a theory based on no research; but only the belief that sex between adults and children can be acceptable; and twice rejected by the American Psychiatric Association because of the lack of supporting research; has more influence over courts than two studies from the most credible sources, that go to the essence of what courts need to decide in custody cases involving possible domestic violence or child abuse.

Domestic violence is about control, including financial control. This means that in most contested cases the abuser controls most of the financial assets. Unscientific alienation theories were concocted and continue to be used to help cottage industry professionals make large incomes helping abusive fathers. The cottage industry lobbied to include alienation in the DSM which is the compendium of all valid mental health diagnoses. I am not aware of any other court that continues to consider a theory twice rejected by the leading professional association.

The ACE (adverse childhood experiences) Studies are peer-reviewed medical research from the Centers for Disease Control and Prevention. ACE found that children exposed to domestic violence, 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 living with the fear and stress abusers cause. Clearly, this knowledge goes to the essence of the well-being of children.

The Saunders Study is peer-reviewed scientific research from the National Institute of Justice in the US Justice Department. Saunders found court professionals need knowledge of specific subjects that include screening for domestic violence, risk assessment, post-separation violence and the impact of DV on children. Professionals without this knowledge tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. These mistaken approaches lead to recommendations and decisions that harm children. Saunders recommends a multi-disciplinary approach that would include experts in domestic violence and child abuse when those subjects are important to the custody decision.

I think it is significant that ACE is used by medical doctors to diagnose and treat patients, by therapists to treat patients, by schools to help traumatized students, and by health officials to improve public health. In contrast, the only purpose of alienation theories is to help abusive fathers gain custody. Without ACE, courts inevitably minimize domestic violence and child abuse and without Saunders, courts rely on the wrong experts and so disbelieve true reports of abuse. ACE and Saunders demonstrate that many standard court practices are mistaken. This is not neutral in the sense it applies to both parents. All the mistakes from failing to consider ACE and Saunders tilt courts in favor of abusive fathers and towards risking children. Significantly, the National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders.

The research differs on whether shared parenting is helpful or harmful in cases involving two good and loving parents. Decisions in these cases are less consequential because either parent or both parents will do their best for their children. Cases involving possible domestic violence or child abuse are very different. I interviewed medical doctors working with the ACE Research for my Quincy book. I asked them the most important question for courts to consider in these cases. When a child has been exposed to multiple ACEs, is there something we can do to save the child from the awful consequences? We can save these children, but standard court practices, particularly when promoting shared parenting prevent the responses the doctors said are necessary to save children from the awful consequences. Saunders found abusers use decision-making to block needed treatment and especially therapy because they are afraid the child will reveal his abuse. When courts require unprotected visitation without requiring the abuser to change his behavior, the child cannot heal and is doomed to a shorter, less healthy life. These contested cases are often the last chance to save the child.

Stop Using Shared Parenting in Abuse Cases

The combination of high conflict approaches and shared parenting is dangerous and too often deadly. High conflict creates a false equivalency between victims and abusers. Courts typically immediately demand co-parenting and take risks before they have time to consider the evidence of abuse or the critical context. Many court professionals immediately start promoting and pressuring for shared parenting. Victims are routinely punished if they object to cooperating with their abusers. Victim’s lawyers often tell clients not to raise abuse issues and not to object to dangerous arrangements. This results in courts making harmful decisions without ever learning about the history of abuse. This approach also serves to silence children who are exposed to the abuser. In the process, the importance of primary attachment is minimized and in some cases breast feeding is short-circuited to make sure the abuser has a “fair” amount of the child’s time.

Court professionals have repeatedly been told that children do better with both parents in their lives. This is true but is based on having two safe and loving parents. This is often not true in contested custody cases. Children need their primary attachment figure more than the other parent and the safe parent more than the abuser. When children have two good parents, they certainly benefit from a relationship with both parents. There is no valid research that children do better with 50-50 than say 70-30 or some other division.

The original idea behind shared parenting was made in total good faith. Unfortunately, it is often used for harmful purposes that bad-faith actors seek to hide. Male supremacist groups promote shared parenting as a first step towards taking children from their best parent. This is based on the ideology of “father’s rights” and a strong desire to avoid child support. The use of shared parenting often limits the needed inquiry about the history of abuse.

The biggest problem with shared parenting is that it is routinely used in inappropriate cases. Saunders found it should never be used in domestic violence cases. Even in the rare instances that a mother makes a false report, this is not the kind of case where parties are able to communicate effectively. Shared parenting was never meant for abuse cases, but with present outdated practices, courts are destroying children’s lives to promote an ideology and sense of entitlement.

Courts and legislatures need to address the failure of custody courts to integrate evidence-based research and consider the specialized expertise about domestic violence and child abuse that would help courts avoid dangerous mistakes. Until the present problems with the courts’ approach to the most consequential cases can be fixed, the last thing legislatures should focus on is expanding co-parenting arrangements that are already dangerously overused.

Some legislatures have recognized the serious problems discussed in this article. They have passed piecemeal solutions that would help children if they were properly implemented. The problem is that judges are often comfortable with familiar outdated practices and defensive about their mistakes. Repeatedly, we have seen courts work around instead of with the piecemeal reforms. Legislatures that want to protect the children in their states must support comprehensive legislation to create needed reforms. The legislation should specifically tell courts to stop using the outdated practices that harm children. The legislation must make the health and safety of children the first priority. The use of the word health requires courts to use the ACE Research because otherwise judges cannot recognize the full range of health risks. The legislation must promote the integration of important research like ACE and Saunders. The legislation must promote a multi-disciplinary approach that Saunders recommends. The legislation should provide for an early hearing limited to abuse issues to avoid distraction with less important issues and tactics. The legislation must also provide training in domestic violence as recommended in Saunders for judges and preferably other court professionals. The legislative solution is called the Safe Child Act. It is the comprehensive solution to court decisions that too often take away our children’s last chance for a full and healthy life. When legislators are ready to respond to the custody court crisis, it is much better for them to finally solve the problem rather than make it worse by further expanding shared parenting that is already overused.

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.

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Someone is Mentally Ill, an Addict, or an Abuser: The Vastly Different Response in Family Court and in Life: Essay by Barry Goldstein

Dear Judge Responding to DV Custody Cases

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by Barry Goldstein

Dear Judge,
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.

Conclusion

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.

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The Child Knows Best: The Resultant Provision of Wellbeing When the Court Hears & Rules Accordingly

The Child Knows Best: The Resultant Provision of Wellbeing When the Court Hears & Rules Accordingly

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by Genevieve Brackins, Ph.D.

Children inherently deserve to be nurtured and supported in their growth and development yet abuse all too often harms the wellbeing and development of children.[1] When a parent does not provide care and protection for a child the child may attempt self-preservation. This attempt may take the form of trying to stay beyond the reach of an abusive parent. Yet, family courts across the nation have a pattern of denying these children the basic safety they so need: observable in family courts throughout the U.S. is a pattern of forcing the child back into the vicinity of the abuser in the name of reunification where the harm can, and often does, continue.

Through these court rulings, family courts in the United States have sentenced hundreds of children to their premature deaths at the hands of the very abusers from whom the children sought respite,[2] and hundreds of thousands more to endure harmful abuse (sexual, psychological, spiritual, physical, mental, emotional, financial, or social). For twenty-four years professionals have had the benefit of the results of the Adverse Childhood Experiences Studies. Throughout this nearly quarter of a century, it has been crystal clear that the chronic stress of living with the fear and harm of an offending parent’s abuse causes a real decrease in a person’s wellbeing, produces longstanding health problems, and is likely to account for a significant decrease in the person’s life expectancy. Parental abuse of children does not cease to have an impact when the child ages out of childhood (thereby gaining the legal ability to get away/escape the abuser’s physical presence), it is a wrong that may affect a person until their dying breath.

Family court judges across the United States sentence an average of 58,000 children per year to suffer the abuser’s abuse[3] and with frequency these courts legally prohibit the child and the protective parent from having contact with one another, serving another major blow to the development and wellbeing of the child. This problem is all the more possible when judges fail to utilize trauma-informed best practices. Often, court-appointed evaluators, expert witnesses, and other professionals upon whom these judges rely, also are not practicing a trauma-informed approach. Compounding this problem, often unchecked implicit biases in these professionals adversely affect the outcomes for the child as well. Whereas an attorney or judge may choose to defined “success” as clearing a case off the docket, such “success” may be a travesty against success to the child, who may now have been handed a life-sentence of agony due to the decision of the court and the enforcement of that decision. It is beyond crucial to listen to and account for the voice of the child about their experience. The importance of the child having a court-appointed trauma-informed children’s attorney is far-reaching as is the importance of directly addressing abusers’ attorneys that run the PAS strategy against the child’s best interest. The Parental Alienation Syndrome (PAS) theory was concocted by Richard Gardner, an unabashed advocate for adults who desire access to the bodies of children for the adults’ sexual gratification via the utilization of the bodies of children. Gardner self-published his books and articles purporting his PAS theory. Never were his publications peer reviewed and the DSM-IV and DSM-V deny PAS a place in the compendiums due to the lack of validity of the Gardner’s theory of PAS. The Men’s Rights and Father’s Movements have advocated and lobbied for the acceptance of PAS and attorneys representing child abusers frequently deploy the PAS strategy.[4] Often this strategy is invoked in an attempt to prohibit the protective parent from exercising a legal right to protect the child in order that the offending parent can continue the abuse unrestrained.

While the etymology of the English word “custody”
means safe-keeping and protection, today, in effect in the U.S.,
the word dehumanizingly means legal property rights in a living human
child for the child’s parent. No more ought the family court paradigm be about
coercing children and their protective parent into accommodating the offending
parent’s abuse. Family courts across the nation must produce rulings that
reduce the fear and stress inflicted upon children by the parents who have been
harming them. The paradigm must center parents’ responsibility for and to the
child, as well as parents’ obligations to adequately meet the needs of the
child, including development needs. Now is the time for the paradigm to evolve
into one that reminds grown humans (in the form of judges, attorneys and other
professionals, parents, and society at large) that the child is just as human
as are they and they the will and needs of the child are to be recognized and
honored to the greatest extent possible.

Custody cases hold the potential to be about the safe-keeping and protection of the child/children whom the litigation surrounds. We know this is more likely to occur when judges hear from the child through the child’s attorney and is more likely to occur when those involved in such cases (including evaluator, visitation supervisors, the parents’ attorneys, judges, GALs, etc.) are properly and thoroughly trained to utilize trauma-informed practices and approaches (and not when such professionals say they have received such training while actually not engaging in trauma-informed practices which is a common problem). With growing public awareness about this crisis and organized strategic advocacy on the part of professionals engaged with and within this legal system, there may be changes implemented that decrease court-inflicted suffering of children while increasing the safety and wellbeing of the children.

[1] In excess of 60% of youth surveyed in The National Survey of Children’s Exposure to Violence published in 2009 were impacted by violence. 46.3% had endured assault, 24.6% were impacted by robbery, vandalism, and/or theft, 10.2% were impacted by maltreatment, and 6.1% reported enduring sexual abuse.

[2] The yearly average is seventy-five court facilitated deaths a year [Goldstein, 2021].

[3] Bala, Cynwyd, 2008. How Many Children Are Court-Ordered Into Unsupervised Contact With An Abusive Parent After Divorce? <www.leadershipcouncil.org/1/med/PR3.html>.

[4] This is even withstanding that the data reveals that when a litigating parent makes the accusation of PAS of the other parent, that the majority of the time they themselves have brought about the relational disconnect between themselves and the child [Lubit 2019].

Dr. Genevieve Brackins serves as the University of Virginia’s Maxine Platzer Lynn Women’s Center’s Education & Outreach Specialist where she oversees the Men’s Leadership Project mentoring program among additional engaged scholarship work.

Genevieve’s has presented her scholarship at Universities in Denmark, Sweden, Finland, Iceland, and Tunisia as well as a variety of states across the U.S.. She holds a Ph.D. in the Interdisciplinary Humanities from Florida State University. Her M.A. from Florida State University is focused in Cultural Studies and Postcolonial Theory. Her B.A. is a double major in Women’s Studies and Music from SUNY Oswego.

References

Center for Judicial Excellence. US divorce child murder data [online]. Available from: http:// centerforjudicialexcellence.org/cje-projects-initiatives/child-murder-data [Accessed 11 July 2019].

Bala, Cynwyd, 2008. How Many Children Are
Court-Ordered Into Unsupervised Contact With An Abusive Parent After Divorce?www.leadershipcouncil.org/1/med/PR3.html

Felitti VJ, et al, The relationship of adult health
status to childhood abuse and household dysfunction. American Journal of
Preventive Medicine. 1998; 14:245-258.

Finkelhor, David, et. al, 2009. Children’s
Exposure to Violence: A Comprehensive National Survey (Office of Juvenile
Justice and Delinquency Prevention, D.C.) [online] Available from: www.ojp.gov/pdffiles1/ojjdp/227744.pdf [Accessed 20 July 2019].

Goldstein, Barry. The
Least Worst Interests of the Child: The Only Outcome Family Courts Will
Consider [online]. Available from: barrygoldstein.net/articles/the-least-worst-interests-of-the-child. [Accessed 19 July 2019].

Hannah, Mo Therese and Barry Goldstein, 2010. Princeton: Civic Research Institute. Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues

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Open Letter to Family Court Lawyers from a Domestic Violence Expert

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by Veronica York, Domestic Violence and Child Abuse Custody Expert, Certified High-Conflict Divorce Coach

Most family court custody cases are
settled amicably. It’s only about 3.8% of cases that require trial and often
much more. These cases are typically deemed “high conflict” by family court
professionals. The reality is 75-90% of these cases are domestic violence
and/or child abuse cases. These cases must be handled differently. The “high
conflict” he said, she said approach is harming and sometimes killing children.
This approach is creating a false equivalency between a victim and an abuser,
which always favors abusers and risks children’s well-being.

The National Council of Juvenile and Family Court Judges seeks to train other judges on the current scientific research that shows standard court practices are working very poorly for children in DV custody cases. The two main studies that must be applied to these cases are the ACE Study (adverse childhood experiences) from the Centers for Disease Control and Prevention (CDC) and The Saunders Study form the National Institute of Justice in the U.S. Justice Department. Fundamentally, without ACE courts are minimizing the harm abusers cause and without Saunders, they are relying on the wrong professionals who are making recommendations and decisions that have devastating consequences for the children they are required to protect.

A Few Common Mistakes Lawyers Make in DV Custody Cases

The Saunders Study found that court professionals need more than just a general knowledge of domestic violence. They need to have knowledge of four specific areas including screening for DV, risk assessment, post separation abuse, and the impact of DV on children. If you are a family court lawyer who is being retained for cases involving DV or child abuse, you should have some knowledge in these areas to be able to effectively advocate and litigate for your client. Not having this knowledge wastes their precious time, money, and ability to protect their children.

The first most common mistake lawyers make is disbelieving true reports of abuse due to non-probative occurrences. For example, a victim of DV may leave their abuser and then return, they may have filed for a protective order and not followed through, they may have no incidents of physical violence reported to law enforcement, they may not show fear of their abuser in public, or they might have stayed with their abuser much longer than you feel anyone should. All these circumstances are common in DV relationships due to safety and other good reasons, one of which is protecting their children. However, court professionals assume these are good reasons to dismiss abuse allegations- and this is just not true.

The second most common mistake lawyers make is not asking the question “Who is afraid of who in the relationship?” The majority of DV cases involve a male abuser and a female victim. This is a statistical fact and although there are exceptions, it is important to understand that a victim of DV will give up much more than they are entitled to in these cases so they can avoid as much conflict as possible and protect their children. It is not uncommon for mothers to give up substantial financial assets, child support, and other possessions to ensure their children are protected from the abuser’s emotional and sometimes physical abuse.    

Another mistake is missing the motive of the abuser. Most courts like to assume a father is acting out of love for their children. This could not be further from the truth in DV custody cases. Family court is the most successful venue for an abusive father to continue his abuse. He knows that the best way to hurt the mother is to use the children. Their motives are in plain sight but most often missed by court professionals.

For starters,
loving fathers understand that children need their mothers. The most important
thing a loving father needs to do for their children is support and treat their
mother with respect. In our society, mothers are still typically the primary
care giver. This means they are the children’s primary attachment figure. To be
clear, the primary attachment figure is and always will be the person who did
most of the childcare the first two years of the child’s life. The idea that
children need both parents equally is simply not true. They need their primary
attachment figure more than the other parent and they need their safe parent
more than the abusive one. In fact, in almost all DV custody cases, during the
relationship, the father either wanted or demanded that the mother do most of
the childcare. In any other litigation this would be viewed as an admission by
the father that she is a good mother. Otherwise, he would have made other
arrangements for childcare. What are the chances that because the mother left the
relationship and reported his abuse that she is suddenly unfit or crazy? In the
real world, the answer is close to zero, but he will almost always claim that
she now has a mental issue or is alienating the children. Their motive is to
hurt the mother and punish her for leaving. This is also made clear when they
refuse to follow court orders, refuse to pay child support, withhold contact
with the children during their possession time, neglect the children, and continue
to harass, stalk, belittle, and disparage the mother. These are just some
examples of the many abusive behaviors that show their interest is what’s best
for them and their goal of hurting the mother, rather than what’s best for the
children.

Abuser Tactics in Custody Cases

If you are going to take on a custody case with alleged domestic violence or child abuse, you must be aware of abuser tactics. These tactics include lying (even under oath), counter-parenting, alienation allegations, neglectful/abusive parenting, isolation, harassment/stalking, legal abuse, financial abuse, and sexual abuse of the mother and/or children. Abusers will deny any wrongdoing unless you can prove it beyond a shadow of a doubt, even then they will blame someone else for their actions. They almost never accept responsibility unless they can spin a victim narrative and gain sympathy. They have learned that courts bend over backwards to keep fathers in children’s lives at any cost because they believe children who do not have a father in their lives are at greater risk. This is only true when the father does more good than harm. If a father is doing more harm than good, he should not be a part of their child’s life until he can change his behavior. Children can thrive with at least one loving and caring parent.

As an expert witness, the first thing we have the client do is a pattern of abuse. This is a document that lists all the tactics their abuser used during their relationship and post separation. It is imperative to show the court the pattern of behavior that has caused so much stress and fear in the victim and their children. The court tends to only focus on any physical abuse, but The ACE research tells us that most of the harm caused by domestic violence and child abuse is the fear and stress. For decades, domestic violence advocates have been saying that physical assaults are not the most harmful parts of DV.  No one paid attention to them because there was no research; they didn’t have advanced degrees; and they were women.  It turned out they were right, and the ACE Studies confirmed their understanding.  Additionally, Saunders found, domestic violence advocates understand DV issues better than any other profession. Experts know and research confirms that it is the fear and stress that leads to depression, anxiety, low self-esteem, and suicide. Not to mention, long term effects such as heart disease, cancer and a variety of other ailments and diseases.

The doctors
working on the ACE research were asked the question: “Is there something we can
do now to save these children who have been exposed to DV and child abuse?”
There answer was yes, but there are two things that need to happen. First, the
children will need therapy and medical attention as problems develop. This
means that the safe parent must have control over health decisions. Abusers use
decision making to block anything the mother wants to help their children,
especially therapy because they do not want their abuse to be exposed. Second,
the children cannot be exposed to more abuse. This means that the abuser must
be limited to supervised visits until he can change his behavior. The only
thing proven to change behavior is accountability and monitoring. The father
can be given a path to increase his visits to unsupervised, but the burden must
be on him to prove to the court that he has changed. The recommendation is for
the abuser to complete a 52-week batterer program that is focused on accountability.
Once he has completed the program, he must assure the court that he takes full
responsibility for his abuse, he understands the enormous harm that he has
caused, he promises to never abuse anyone again, and if he does, he understands
that could mean the end of his relationship with the children.

Best Practices

The first thing a family court lawyer should do when faced with a client who claims domestic violence is listen. Victims of DV need to be heard, believed, and validated.  Too often they are told by attorneys their experiences don’t matter or will not be taken seriously in court. Although, that may be the case in many courts in the United States, it’s something that needs to be changed, not tolerated. Do not ignore the abuser tactics that are causing so much stress and fear in the victim and their children. This is what causes the most harm and as an attorney you can help them get these tactics to stop in the litigation process.

Second, understand the research must be presented as soon as possible to the judge. The first thing to do is tell the judge that there is now substantial scientific peer-reviewed research from the most credible sources, that shows current court practices are harming children and you would like the judge to take a fresh look at the case considering the research. This is a reasonable request that goes to the best interest of the children.

Last, bring in a
domestic violence expert that can testify regarding the research and how it
applies to the facts and circumstances of the case. Most courts are used to
hearing from mental health professionals that conduct a psychological or
custody evaluation. They speak to both parties and the children and give the
judge the whole picture. Unfortunately, with rare exceptions, Saunders found
these evaluators do not have the needed expertise to make the appropriate
findings regarding abuse issues in these cases. They give the judge their
subjective opinion based on their own beliefs and findings. A domestic violence
expert with knowledge of ACE and Saunders can give the judge an objective
opinion based on the research, which is much more valuable for the court.

A common objection
we hear is that the DV expert did not speak to the alleged abuser or interview
the children. An expert witness should only be giving the judge one piece of
the story. The judge should hear from multiple witnesses and experts to
determine and put together the whole story and make a fair and equitable
decision. A DV expert can provide information and recommendations to the court
that they will not hear from anyone else.

All too often, they continue to
rely on the same evaluators and hear the same misinformation that is causing a
crisis in our country of children, who according to ACE, will live shorter
lives and face a lifetime of health and social problems.

Conclusion

As a protective mother, certified high conflict divorce coach, and a domestic violence, and child abuse custody expert, I have had the opportunity to speak with hundreds of other protective parents across the United States and abroad. The issues and tactics are typically the same and I can realize the patterns and identify the many errors being made in family court system today. Most judges, GALs, lawyers, and evaluators have spent their entire careers learning the wrong information as it pertains to DV and child abuse custody cases. The most significant impact is the harm being caused to the children of these cases. In addition, the financial impact on protective parents and their families is absolutely devasting. Entire bank accounts, college funds, 401K, and savings have been completely wiped out and then some. These cases are being drug out for almost a decade in some cases costing hundreds of thousands of dollars and many years off the childhood of so many precious children. This must stop.

Typically, I get
involved in a case way too late, the mother has already spent her life savings
on lawyers who did not know how to fight for them, they have lost their
children to their abuser, or they are still being continually harassed and
abused by the court system even after several years going through the
litigation process.  It takes time to
help them, undo mistakes, and consult with their counsel to turn these cases
around. In contrast, just this past March of 2022, I did have a mother who
contacted me before she left her abuser. I was able to help her choose her
lawyer, bring in an expert, and help her navigate communication, documentation,
and strategy. Her case is now settled. From start to finish it took four months
and much less money than it would have otherwise. It really proved that having
the right knowledge, understanding the research, and finding a lawyer that is
willing to listen, work with an expert, present the research, and advocate for
her made all the difference in the world. Not only to her, but more importantly
to her two young sons.

v york profile photo

After a 20-year sales and marketing career in the Television Industry, Veronica York felt a passion and calling to make a career change. Due to her own experience with a “high conflict” custody battle that started in 2018, she realized that the best interest of children was not the priority in the family court system. Children are suffering unnecessarily due to outdated practices of judges, lawyers, evaluators, and other court professionals.

Veronica completed the High Conflict Divorce Coach Certification Program founded by Tina Swithin in March 2021 and immediately started her coaching practice. In addition to helping her clients navigate their custody battles, she works with Barry Goldstein, a leading expert witness in contested custody cases involving domestic violence and child abuse. Barry and Veronica work together to educate court professionals by exposing them to current scientific research such as the ACE and Saunders studies. This research strongly supports protective mothers’ cases and encourages reform of practices that work poorly for children. Veronica also serves as the Advocacy Coordinator at the Center for Judicial Excellence.

Veronica has advanced training in family law mediation, writes articles and performs speaking engagements on the topic of contested custody in domestic violence and child abuse cases. She also does training for family court professionals on the misuse of parental alienation and the tactics of Post Separation Abuse during a divorce.

www.yorkcfs.com

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Expert Witness Testimony to the Colorado Legislature, July 2022

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By Guest Contributor (Expert Witness for the Courts) After two decades of serving as an expert witness in criminal and civil courts, I have only recently become aware of the situation in family courts.  Nothing prepared me for what I was to find. Yale Law School’s Robert Cover emphasized the distance between abstract interpretations of […]

The post Expert Witness Testimony to the Colorado Legislature, July 2022 first appeared on Foundation for Child Victims of the Family Courts.

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Someone is Mentally Ill, an Addict, or an Abuser: The Vastly Different Response in Family Court and in Life: Essay by Barry Goldstein

Family Courts’ Worst Trade for Kids: Safe Primary Attachment Figures vs. Abusers with “Rights”

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Essay by Barry Goldstein

How would a typical family court analyze a case in which they believe a safe mother who is the primary attachment figure has failed to promote the relationship with a father the mother believes is dangerous and abusive? In many ways, this is the typical custody case the courts would call “high conflict,” and experts familiar with current scientific research would call a DV custody case.

Throughout their legal careers, judges have heard children do best with both parents in their lives. This is certainly true when both parents are safe and loving, but this is rarely true in DV custody cases. The problem is worse when courts conflate the benefits to children of relationships with both parents as if it means children need both parents equally. The research is clear, children need their primary attachment figure more than the other parent and the safe parent more than the abusive one.

The courts place such a high priority to keep fathers in children’s lives that they often sacrifice the child’s relationship with a mother the child needs so much more. This is the worst possible trade for a child. Courts create a catastrophic arrangement by severely restricting the mother and creating a harmful outcome case. We also see this outcome when courts give the father the power and control that he uses to destroy the relationship between the child and mother.

Domestic violence experts know context is critically important in recognizing domestic violence. Abusers and their attorneys routinely seek to decontextualize an incident in order to shift blame. Courts often undermine their ability to understand the context to save time. Practices in which courts arbitrarily create strict time limits benefit abusers for this reason. Victims need time to explain the context including the fact that many standard court practices favor abusers. Victims need time to explain the research and how the failure to differentiate abusers’ public and private behavior or the mistake of treating DV cases as high conflict. Abusers need only deny their partners’ reports and allow the court to use the flawed practices that tilt decisions against protecting children.

In most DV custody cases, the father wanted or demanded the mother provide most of the childcare. In any other court, this would be properly understood as an admission by the father that the mother is a good parent. Otherwise, he would have sought other arrangements. When the mother leaves and reports his abuse, abusive fathers often respond by seeking custody and claiming the mother is unfit. The charge is usually that she is crazy and/or alienating. What are the chances a mother suddenly became unfit because the relationship ended, and she reported his abuse? In the real world the answer is close to zero, but family courts that fail to use good scientific research and rely on the wrong experts often reach this unlikely conclusion. Courts rarely discuss or consider this obvious context that strongly supports mothers.

Primary attachment is non-controversial and used in many areas of childcare and welfare. The parent who provided most of the childcare during the first two years of a child’s life is and always will be their primary attachment figure. This is important to consider in family courts because the child needs their primary parent more than the other parent. Denying children a normal relationship with their primary parent increases the risk of depression, low self-esteem, and suicide. In most of these cases, the child is used to looking to the primary parent for most of their needs. This parent usually knows the child’s needs and providers better than the other parent. Accordingly, there are many non-controversial factors that should favor the primary parent.

There are two major paths that courts take when they trade the children’s safe, primary parent for an alleged abuser who has far less parental skill and knowledge. They are explained in the Saunders Study and the Meier Study that both come from the National Institute of Justice. The harmful outcomes are another illustration of the problem with family courts attempting to resolve DV custody cases without the benefit of current scientific research.

The Saunders Study includes a section on “harmful outcome” cases. These are extreme decisions in which the alleged abuser is given custody and a safe, protective mother, who is the primary attachment figure, is limited to supervised or no visitation. This is exactly the extreme remedy from the original “Parental Alienation Syndrome” that has been discredited even by many members of the cottage industry. Saunders found harmful outcome cases are ALWAYS wrong and based on flawed practices. The reason they are always wrong is that the harm of denying children a normal relationship with their primary parent is greater than any benefit the court thought it was providing. Saunders found these tragic mistakes are caused by using flawed practices. In many, if not most cases, the opposite outcome would have worked best for the children. Common flaws include reliance on unscientific alienation theories; pathologizing the victim; failure to use the right experts for a DV case; gender bias; and disbelieving true reports of abuse. I have never seen a harmful outcome case in which the court weighed the certain harm of denying children a normal relationship with their primary attachment figure with whatever speculative benefit the court thought it was providing.

One of the findings from the Meier Study was that alienation is being applied in a gender biased manner in addition to the problems caused by unscientific alienation theories. When courts believe the father was alienated, it provides a big advantage to fathers and helps them win custody. When the court believes the mother was alienated, the finding has no effect on the outcome. Part of the problem is that domestic violence is about control, including financial control. This means abusive fathers often control most of the family’s financial resources. This helped create the cottage industry of lawyers and mental health professionals that have a financial incentive to promote approaches that favor abusive fathers. Their voices have been far louder than those of victims. The superior financial resources help explain why courts so often make alienation findings in favor of abusive fathers.

The unscientific alienation theories were deliberately designed to help fathers. Accordingly, it often assumes alienation; pathologizes attempts to protect children and fails to consider more likely causes of a bad relationship such as DV, child abuse, or other poor parenting. The theories deliberately ignore alienating tactics by fathers such as avoiding child support; using fun activities as bribes; material advantages; and talking about how much the father misses the children. In our still sexist society, mothers usually do most of the childcare and so have a closer relationship with the children. One common example of gender bias is for court professionals to ignore or minimize fathers’ alienating practices. These tactics are better understood as DV by proxy because it is a continuation of the father’s DV by using the children.

The Batterer as Parent by Lundy Bancroft and Dr. Jay Silverman is one of the most authoritative books about DV and custody. The authors found all batterers, including “low level” (non-physical) abusers engage in harmful parenting practices that include undermining the relationship with the mother, teaching bad values (sexism) and serving as a bad example. Courts often make the mistake of assuming alleged abusers seek custody out of love for the children. Their motives often include regaining what they believe is their right to control their victim, make the decisions, and punish the mother for leaving. Shared parenting is often the first step towards total control and abusers usually use any power courts provide to destroy the relationship with the mother. This is a problem courts rarely consider because few court professionals understand DV dynamics.

What Does the Worst Trade Look Like?

The mother was such a good parent that she won the Mother-of-the-Year Award in Dutchess County, NY because other parents learned to improve their parenting from watching her. She created innovative ideas to involve her children in cultural, athletic, and entertainment activities. The children loved their mother and were deeply attached to her. The abusive father was rarely involved in caring for the children and viewed it as “women’s work.” He said he couldn’t change his daughter’s diapers because he might get aroused.

The case was assigned to a sexist judge who was a strong supporter of shared parenting and unscientific alienation theories. The judge forced a “settlement” for shared parenting. When the father assaulted the mother, another judge gave the mother custody and limited the father’s visitation. The sexist judge was angry at the change. He resumed shared parenting without allowing the mother to speak at the hearing, and soon created what Saunders would later call a harmful outcome case. Even the judge admitted the mother was an outstanding parent, but instead focused on alienation. The alienation included the fact the boy’s therapist called child protective services (over the mother’s objection because she was afraid of the reaction), and the mother said the children should eat healthy meals, dress appropriately for the weather and avoid adult-oriented TV programs. These statements were considered alienation because the father engaged in all of these bad parenting behaviors.

The effect on the children was demonstrated by the description of the daughter by the school nurse. When she lived with her mother, the girl would skip around school, holding another girl’s hand, smiling, and giggling. After she had to live with her father, the girl walked alone, head down and very sad. She kept going to the nurse with various ailments until the father “solved” the problem by forbidding her to see the nurse.

The father was allowed to move to Texas with the children which served to isolate them even more. The evil judge kept the case as long as possible to prevent anyone else from correcting his mistakes. Eventually, Texas took jurisdiction and quickly recognized the mother should have custody. They arranged for therapeutic visitation to restore the mother’s relationship. By this time, the father had so destroyed the mother’s relationship that it could not be salvaged.

One would think that the release of the Saunders Study and other important research would prevent extreme decisions that ruin children’s lives. Last week, I was scheduled to testify in another harmful outcome case. A convicted abuser was given custody years ago and a safe, protective mothers who is the primary attachment figure is limited to supervised visitation. Without listening to what I could say, the judge decided anything I could say would be irrelevant. The fact the court had imposed an extreme decision that a National Institute of Justice Study found to be ALWAYS wrong is not something the court needs to hear. In reality, the judge didn’t want evidence on the record that demonstrated the catastrophic mistake the court made. The father is already far along in his efforts to successfully impose DV by Proxy. The judge created an unprincipled decision that creates the appearance of bias, conflict of interest, or worse.

Conclusion

In these and many other cases, the court’s attempt to keep both parents in the children’s lives led to substituting the less involved and often dangerous parent for the better parent who the children need most. Imagine, in the Dutchess case, if the facts were as the judge wanted to believe. Imagine, the father did not have a history of abuse and was at least an adequate parent. And imagine that for no good reason, the mother was deliberately trying to alienate the children. The court’s decisions guaranteed that the children would have only one parent. Even with the most favorable assumptions for the father, there could be no question that the children needed their mother more and it was in their best interests for the mother to be granted custody.

Saunders found that shared parenting does not work in DV custody cases, but the judge might in good faith believe the children would benefit with shared parenting. Once the judge became convinced that only one parent could have custody, he decided to punish the mother for her supposed lack of cooperation. The judge failed to realize that in seeking to punish the mother, he was really punishing the children. The judge’s biased and ignorant approach meant the children would never get the help they needed to overcome the ACEs they were exposed to. The children are likely to live shorter lives and face a lifetime of health and social problems. They certainly had a more painful and unpleasant childhood. The judge destroyed their potential.

I wrote earlier that domestic violence experts understand the context is critical to understanding DV custody cases. The judges in the two cases discussed above and in many others are so used to following insular court practices and assumptions that ACE and Saunders prove wrong, that they miss the context, even after the courts’ goals become impossible.

Children only do better with both parents in their lives when both parents prioritize the well-being of their children instead of their sense of entitlement and control. Shared parenting is an ideological goal that is often harmful in contested custody cases. It might help courts settle cases; it certainly helps court professionals increase their incomes, but non-evidence-based decisions often remove the last chance for children to have full and successful lives.

As mentioned earlier, children need their primary parent more than anyone else on the planet. Courts that fail to use current scientific research routinely focus on unscientific alienation theories and don’t know how to recognize true reports of abuse. When courts focus on ideological goals, they take their eyes off the best interests of the children. Widespread gender bias helps fathers and hurts children. Gender-biased alienation approaches miss alienating behaviors by abusers but assumes alienation that is really an effort to protect children. Gender bias that minimizes primary attachment, obscures a critical factor in the well-being of children.

The family courts started their response to DV custody cases with reasonable mistakes because the research wasn’t available. Over the years, the mistakes became so ingrained that courts are often hostile to the important research that could better protect children. This is what happened in the two cases described in this article and many others. Ending the worst trades for children is long-past due.

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.

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