The Civic Research Institute From: Domestic Violence, Abuse and Child Custody-
TEN WAYS TO KNOW THE CUSTODY COURT SYSTEM IS BROKEN
Mothers and domestic violence advocates have been complaining for many years
about problems in the custody court system that have resulted in large numbers of
children being sent to live with abusive fathers while safe, protective mothers are denied
any meaningful relationship with their children. Courts have tended to dismiss the
complaints by referring to the mothers as “disgruntled litigants.” As more concern about
the problem has been expressed and more research performed, the mothers’ complaints
have been confirmed. Early in 2010, a new book co-edited by Dr. Maureen T. Hannah
and Barry Goldstein, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY will be
published and end any doubts that there is a pattern of mistakes made in the custody court
system. These mistakes have caused thousands of cases to be mishandled and placed the
lives and well being of battered women and their children in jeopardy. The book includes
chapters by over 25 of the leading experts in the United States and Canada including
judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic
violence advocates. Although these experts come from different disciplines and
approached the issue from different directions, there is a remarkable consensus about the
problem and the solution. The up-to-date research and information now available makes
it clear that the present practices can no longer be justified and the custody court system
must create the necessary reforms to protect the safety of children and protective mothers
in domestic violence custody cases. This article will discuss ten reasons we know the
custody court system is broken and must be reformed.
- 1. Mothers’ Complaints: The problem this article seeks to discuss are cases in
which a mother who has been the primary caregiver and makes allegations of
domestic violence and/or child abuse loses custody to the alleged abuser and
receives supervised visitation or no contact with her children. These cases have
increased since federal laws designed to increase enforcement of child support
orders were passed. Male supremacist groups have encouraged abusive fathers to
seek custody as a way to avoid paying child support, to pressure his partner to
stay or punish her for leaving. The courts and the often inadequately trained
professionals they rely on, glad to see the involvement of fathers in children’s
lives often fail to recognize the tactic and motivation. Courts tend to look at each
case separately and so fail to see the patterns of mistakes in these cases.
Demonizing their victim is a common strategy employed by abusers so a court
could believe there was something profoundly wrong with an individual mother to
justify the extreme outcome. When experts look at the pattern of these cases it is
evident that the unusual circumstances needed to justify a particular outcome
cannot be as common as the results would suggest. Women and children make
deliberately false allegations of abuse between one and two percent of the time,
but the court decisions support the myth that such deliberate false allegations are common. Furthermore, domestic violence allegations are painful and embarrassing to make and require the victims to speak about uncomfortable issues and questions. Research demonstrates that allegations of domestic violence and child abuse make women less likely to obtain custody. We can’t know that an individual case was improperly decided without careful review of the case, but we know the frequency of outcomes that give custody to alleged abusers cannot
possibly be based on objective facts.
- 2. Available Research: The modern movement against domestic violence is only
about thirty years old and there was little research available when it started. We
now have extensive research to demonstrate common mistakes courts and the
often-unqualified professionals they rely on use in domestic violence custody
cases. Studies show that while evaluators believe they are considering domestic
violence in their investigation of the family, in fact most fail to do so. We have
many studies proving widespread gender bias against women in the approaches
used by the courts. Evaluators regularly use psychological testing that has little or
no relevance to the issues before the court and is gender biased. Psychologists
testifying before the courts rarely inform the judges that their results are based
upon probabilities so that factors in the case that would reduce those probabilities
can be considered. Most important to the present topic is research that considers
the accuracy of the actual court decisions. Most custody cases (over 95%) are
settled more or less amicably. The problem is with the minority of terrible cases
that continue to trial and beyond. Courts often think of them as “high conflict”
cases, but in reality these are mostly domestic violence cases. Research studies
vary somewhat on the percentage of these cases that involve abusive fathers, but
all agree the majority of such cases involve domestic violence. I believe the
studies that found 90% of these contested custody cases are caused by abusive
fathers because unqualified professionals frequently miss domestic violence. In
any event, contested custody cases should be being decided overwhelmingly in
favor of protective mothers because most of the fathers are abusive, but 70% of
the cases result in custody or joint custody to the father. This does not tell us an
individual case was wrongly decided, but does demonstrate that a large
percentage of cases are being decided in a way that is harmful for the children.
- 3. Battered Mothers Testimony Project and Research: Several states including
Massachusetts, Pennsylvania, California, Arizona and New York City have done
studies based on questionnaires filled out by protective mothers. These surveys
have demonstrated widespread problems in the custody court system, many
common mistakes and outcomes that fail to protect battered women and their
children. This is admittedly not scientific research as the participants are
volunteers rather than randomly selected (much of the “research” cited by male
supremacist groups comes from interviews with alleged abusers, but is often
treated as if it were valid research). Sociologists, Sharon Araji and Rebecca L.
Bosek went several steps further for their chapter in DOMESTIC VIOLENCE,
ABUSE and CHILD CUSTODY. They performed a similar study in Alaska and
then compared the results from the various states that interviewed protective mothers. The authors found the responses similar across the several state surveys. They then compared the results of the surveys filled out by protective mothers to scientific research performed by a variety of researchers using accepted scientific methods. Significantly the findings from the protective mothers are strongly
supported by the scientific research. In other words, the complaints by protective mothers that have been so often dismissed as coming from “disgruntled litigants” actually have substantial validity.
- 4. Courageous Kids: If a court system wanted to determine the validity and value
of psychological evaluations, it would look for research that examined how the
recommendations and approaches used by the evaluators worked out in the lives
of the children. Without such research there is no way to determine if the time,
money and results for evaluations are useful. In fact there is no such research and
I would certainly recommend obtaining such research if evaluations were to
continue to be used in child custody cases. The closest we have to such research
is the Courageous Kids Network. The Courageous Kids are young adults who
were forced to live with abusers by the decisions of the custody court. They are
now old enough to have escaped their abusers and are speaking out about their
experiences. The stories are painful to hear because they had to survive such
awful abuse, but life affirming as they overcame the obstacles to support each
other and help change the broken system. These heroes have spoken at judicial
trainings, legislative hearings and domestic violence conferences. Their
presentations are effective because it is all too easy to discredit protective
mothers, but hard to discredit the children for whom the courts and the
professionals are supposedly trying to help. Remember these children were
forced to live with and be influenced by the abuser. In most cases they had to
endure “therapy” designed to support the abuser and discredit the protective
mother. There are many psychological, safety and other reasons to discourage
such children from coming forward and speaking out. The fact so many
Courageous Kids have spoken out demonstrates the courts are getting large
numbers of cases tragically wrong.
- 5. Review of Bad Cases: The authors of the 25 chapters in the book have carefully
reviewed hundreds if not thousands of these cases. In their book, FROM
MADNESS TO MUTINY, Dr. Amy Neustein and Michael Lesher reviewed over
1000 cases. The Truth Commission listened to the testimony of 16 women and
reviewed records from their cases. Many other experts have studied domestic
violence cases where the alleged abuser received custody and the protective
mother received little or no contact with her children. In these cases we have
found widespread mistakes, bad practices, use of myths and stereotypes, the
failure to use up-to-date research, gender bias and outcomes that place children at
risk. The legal system works on the assumption that once a case is decided or
facts determined that the findings are established and any further consideration
should be based upon the assumption the court decided the case properly. This
assumption will lead to misinformation and inaccurate research because there is
strong evidence that most contested domestic violence custody cases and certainly those that result in custody to the alleged abuser are wrongly decided. We are
particularly concerned with the growing court practice of retaliating against
protective mothers and professionals trying to help them for exposing court
mistakes in these cases. Frequently a mother’s refusal to believe an abuser is safe
after the court fails to recognize his abuse is used to justify severe and extreme
limitations on her access to her children without regard to the harm such rulings
have on the children.
- 6. Parental Alienation Syndrome: PAS is a bogus theory created based on the personal biases of Dr. Richard Gardner. His books were self-published and never
peer reviewed. It is used only in domestic violence custody cases to prevent or
shorten investigations of the father’s abuse. PAS assumes that if a child expresses
negative feelings about the father or doesn’t want visitation, the only possible
explanation is that the mother alienated the child and the solution is to force the
child to live with the abuser and have at most supervised visitation with the
protective mother who has been the primary attachment figure for the child. PAS
is not recognized by any reputable professional organization and does not appear
in DSM IV, which contains recognized diagnosis. Dr. Paul Fink, past president of
the American Psychiatric Association wrote a chapter for the book in which he
demonstrates the invalidity of PAS. Dr. Fink points out that Richard Gardner
made numerous statements complaining that society takes child sexual abuse too
seriously and that sex between adults and children can be appropriate. This
explains why PAS is so often used to give custody to fathers who have sexually
abused their children. Dr. Fink points out that psychologists are starting to lose
their licenses for using PAS in evaluations. They are, in effect diagnosing
something that does not exist. Thousands of the cases in which alleged abusers
won custody was based upon the discredited PAS or PAS by a different name.
Any case in which “evidence” of PAS was allowed was likely wrongly decided.
- 7. Gender Bias: The Truth Commission recommended that rather than training professionals with general domestic violence information, all professionals should
have training in Gender Bias, Recognizing Domestic Violence and the Effects of
Domestic Violence on Children. This is because they found that many of the
mistakes made in these cases were caused by a lack of understanding of these
basic concepts. At least 40 states and many other districts and communities have
created court-sponsored gender bias committees. They have found widespread
gender bias and particularly in domestic violence custody cases. Among the
common problems were blaming victims for their abuser’s behavior, burdening
women with higher standards of proof and giving fathers more credibility than
mothers. Other research, including the chapter in the book by Molly Dragiewicz
has made similar findings. In one New York case the court gave custody to an
abuser and denied the protective mother any contact with the children after the
evaluator used and the judge supported a certainty standard for the mother and
probability standard for the father. Few litigants could win a case when faced
with a certainty standard. At least 15-20 different judges were asked to review
this clear example of gender bias (the different standards were stated in the evaluator’s report and repeatedly challenged in the transcript), but every judge
failed to correct this obvious error. Lynn Hecht Schafran wrote a brilliant article
“Evaluating the Evaluators” that illustrates the problem. The article describes a
new psychologist asked to perform an evaluation on a young family. She went to
the father’s apartment and found it a complete mess with no food in the
refrigerator. She wrote the father lives in a typical bachelor apartment. She went
to the mother’s apartment and found it to be somewhat messy, but not as bad as
the father’s. She had food in the refrigerator, but not as much as preferable. The
evaluator wrote the mother lives in a messy apartment with inadequate food. The
evaluator had a supervisor because she was new and the supervisor asked if she
saw what she had done. The evaluator could not believe she had engaged in
gender bias and quickly corrected the report. The article is valuable because it
demonstrates that professionals acting in good faith (including women) can easily
engage in gender bias without realizing it because of the sexism and stereotypes
so prevalent in our society. How can anyone reasonably believe the courts are
reaching fair decisions in domestic violence custody cases when gender bias is so
common?
- 8. Failure to Recognize Domestic Violence: Many of the mistakes custody courts
make have to do with failing to recognize domestic violence. In fairness some of
the problem is caused because victims or their attorneys fail to present the
necessary evidence. Unqualified professionals often discount allegations of abuse
based upon information that represents a normal and reasonable response to his
abuse. In the book, Judge Mike Brigner writes about training judges in domestic
violence. They often ask him how to respond to all the cases where women are
lying about domestic violence. When he asks what they mean, they cite cases
where women go back to their abuser, withdraw petitions for a protective order,
fail to file police complaints or don’t seek medical care. In reality there are safety
and other explanations for women’s response to domestic violence and none of
these examples should be used to assume her complaints are false. At the same
time they use information of limited value to discount domestic violence,
professionals fail to use helpful and relevant information to understand the pattern
of domestic violence tactics. Too often the professionals are interested only in
physical abuse. They fail to consider a variety of controlling and coercive tactics.
They don’t understand the significance of a woman’s fear of her partner.
Domestic violence advocates are the only professionals that work full time on
domestic violence issues. The advocates receive more training and have more
knowledge of domestic violence then the professionals relied on by the courts.
Domestic violence agencies have very limited resources so they are forced to
screen clients before providing services. Accordingly when a woman is receiving
services from a domestic violence agency, it is a strong indication that she is a
battered woman, but many professionals fail to consider this information.
Although seeking custody to pressure a mother to return or punish her for leaving
is a common abuser tactic, few courts consider why a father with limited
involvement with the children prior to separation suddenly demands full custody.
Similarly unqualified professionals often fail to consider evidence that a man believes his partner has no right to leave is a strong indication of his motivation in seeking custody. How can courts be expected to decide domestic violence
custody cases appropriately if they don’t know what to look for when determining the validity of domestic violence allegations?
- 9. Effect of Domestic Violence on Children: Every state has passed laws designed
to promote greater consideration of the effects of domestic violence on children.
Some states require domestic violence to be considered in making custody and
visitation decisions and others create a presumption against custody for abusers
(although often the laws or the courts require a level of proof or create other
restrictions that limit the effectiveness of these laws). Prior to these laws, when a
protective mother asked to limit the father’s contact with the children because of
domestic violence, the judge would ask some version of “Does he also abuse the
child?” If the answer was no, the court treated the father as if he was just as
appropriate for custody and visitation as the mother. The change in laws was
based on overwhelming research that children witnessing domestic violence were
harmed as much as children directly abused. The research found these children to
be at substantially greater risk of a wide range of dysfunctional behaviors when
they were older. In other words, domestic violence is a serious form of child
abuse. We have found, however that courts frequently place greater reliance on
other custody factors that have far less consequences to the safety and well being
of children. In fairness, the courts are not solely to blame as legislatures have
passed laws like “friendly parent” factors and failed to make domestic violence
and safety the primary factors in custody determination. There is no research that
“alienating” statements or attitudes by one parent to the children has the kind of
serious long-term harm of domestic violence and yet many of the cases reviewed
focus far more attention on alleged alienation. When mothers respond normally
to their partner’s abuse with fear or attempts to protect the children, courts
frequently treat this as the most important issue in deciding custody. This is a
common example of what was discussed in gender bias reports in that the mother
is held responsible for her reaction to the father’s abuse instead of holding the
father responsible for his abuse. This type of mistake is at the heart of the
common mistakes made by custody courts and does not serve the best interests of
the children. If children are having problems as a result of the father’s abuse,
unqualified professionals often blame the divorce and separation instead of his
abuse. They often recommend cooperation and interaction between abuser and
victim that is the opposite of what is healthy for children, but often benefit the
fathers’ cases. When children appear to be doing well, inadequately trained
professionals mistakenly assume this means the abuse allegations are false. Some
children respond to abuse by trying to be perfect and take on adult
responsibilities. Many years later the harm of the father’s abuse comes out in
debilitating ways. Similarly children will often behave well with abusers and act
out with their mothers because they know she is the safe parent. This is often
misunderstood and courts reach the false conclusion that the father is the better
parent. As long as the courts fail to understand the long-term harm to children of placing them with abusers, the courts will continue to make decisions that ruin children’s lives.
- 10. Extreme Results: If a court were to give custody to a protective mother and limit
the father to supervised visitation because of his domestic violence, it would be
following the recommendations of up-to-date research. In other words there is a
scientific basis for such an outcome. The researchers weigh the harm of
restricting the children’s contact with their father and the harm the father is likely
to cause with unrestricted visitation and the message sent to the children by
awarding normal visitation with someone they know abused their mother.
Instead what we are seeing is alleged abusers receiving custody and protective
mothers having supervised or no visitation. Obviously, in these cases the courts
are assuming the mother’s allegations of abuse are false. They justify the
visitation restrictions by their concern the mother will continue to believe she was
abused and say negative things about the father. Where is the research that the
harm to the children of hearing such statements is greater than the harm of being
denied a normal relationship with their mother? Even in intact families the
children often hear negative comments about the other parent. In other words,
these extreme court decisions are based upon the belief systems and biases of
court professionals and not up-to-date research. Many children have been denied
any contact with their mothers in these cases. Ironically fathers are often granted
custody based on the belief they are the friendlier parent and will promote the
relationship between the mother and children, but he proceeds to terminate all
contact once he has control. Many courts that jumped all over mothers for
requesting the court restrict the father’s access have done nothing in the face of
the father preventing visitation or other contact between mother and children.
Rapists and even murderers frequently receive some supervised visitation and yet
mothers who sought to protect their children from an abuser are completely cut
off from their children. The extreme outcomes faced by protective mothers are
unsupported by any research, but demonstrate serious flaws in the custody
system.
Now That We Know the Custody Court System Is Broken
- Now is not the time for blame or attacks. As the Schafran article demonstrates, it is all
too easy for good and caring people to fail to understand and recognize gender bias and
domestic violence. In the book, Judge Hornsby writes that in his 19th year on the bench
he finally understood the proper way to handle requests for protective orders. The
judge’s humility, integrity and openness should serve as a model to the legal community
as it responds to the clear information and research that the present court practices are
mistreating protective mothers and their children. I was recently at a domestic violence
conference in Hawaii where a court official was asked a question implying serious
problems in the court system. She responded by saying if someone didn’t like a decision
they could appeal. To her credit she later acknowledged that many people don’t have the
money for such an appeal. This official fell into the trap of responding defensively to
criticism. The challenge for the custody court system is to be open to the up-to-date research even though it finds the courts have made widespread mistakes in its handling of
domestic violence custody cases. The medical community faced a similar situation in
responding to research that found avoidable mistakes were responsible for 100,000 deaths
each year in our nation’s hospitals. For years, fear of lawsuits, discipline and damaged
reputation caused the medical profession to ignore, deny and seek to place blame on
others. Finally they realized this was a losing strategy. Doctors, nurses and hospitals
have now come together to correct the problems with more openness and accountability.
Lives have already been saved from implementation of this approach and the campaign to
prevent such avoidable errors. Rather than harm the medical community’s reputation,
this campaign has increased the respect for the medical community. I believe if the legal
community makes a similar effort to apply the latest research and create a campaign to
avoid the kinds of tragic mistakes that have ruined the lives of so many women and
children, the campaign will improve the reputation of the legal system. The promotion of
the safety of battered mothers and their children is not and should not be considered a
partisan issue.
Every state and every court system has rules and laws against domestic violence.
- Although some fringe male supremacist groups object to these laws, society has spoken
and there is no longer any legitimate dispute about whether domestic violence should be
tolerated. If a community had a rash of arson fires and the courts and legislature wanted
to figure out how to respond they would seek the expertise of the experts. The experts
are the firefighting community because they know best how to recognize arson, prevent it
and respond to arson. No one would ever accuse the firefighters of being partisan because they are always against arson. In responding to domestic violence the experts are the domestic violence community. They are the only profession working full time on
domestic violence issues and know how to recognize domestic violence, the best ways to
prevent it and the harm it causes. Too often the courts have failed to take advantage of
this community resource because they viewed domestic violence advocates as partisans.
The validity for this claim ended when society determined it would no longer tolerate
domestic violence and passed laws to enforce this determination. The crimes of arson
and domestic violence are treated differently because arson has always been a crime and
domestic violence is a relatively new crime and most firefighters are men and most
domestic violence advocates are women. In this still sexist society what women say is
not treated with the respect and value that what men say is. The domestic violence
community is an important and valuable resource that the court system can benefit from
as it applies the up-to-date research to practices that are now discredited. The legal
system must use this research to launch a re-evaluation of its response to domestic
violence custody cases so that custody courts become a safe place for battered mothers
and their children. We are ready to work with them to help accomplish society’s goal of
ending domestic violence.
Barry Goldstein is the author of SCARED TO LEAVE AFRAID TO STAY. He has been an instructor and supervisor in a NY Model Batterer Program for 10 years. He was an attorney representing victims of domestic violence for 30 years. He now provides workshops, judicial and other trainings regarding domestic violence particularly related to custody issues. He also serves as a consultant and expert witness. His new book,
DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, co edited with Dr. Maureen T. Hannah will be published early in 2010. For more information, visit his web site at Barrygoldstein.net
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