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

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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