Practices that Risk Children Baked into Court Procedures: Part 2
By Barry Goldstein
The Stop Abuse Campaign is happy to present the rest of Barry Goldstein’s piece “Practices that Risk Children Baked into Court Procedures”. Today’s piece focuses on how to fix the problem.
Standard Practices that Encourage Disbelief of True Domestic Violence Reports
- The Myth Mothers Make Frequent False Abuse Reports: The Saunders’ Study found that evaluators, lawyers and judges without the needed knowledge and training regarding domestic violence tend to focus on the myth of mothers making frequent false abuse reports and unscientific alienation theories. This leads to decisions that hurt children. Research establishes that in the context of contested custody less than 2% of abuse reports by mothers are deliberately false. The same research established that fathers in contested custody cases are 16 times more likely to make deliberate false reports. It is not that men are 16 times more dishonest than women, but rather contested custody overwhelmingly involves the worst abusers who believe they are entitled to use any tactic necessary to regain control over their partners. Parental Alienation Syndrome which is often used by other names like alienation or parental alienation because of its notoriety, is based on the false assumption that virtually every report of abuse is false. Many courts continue to use alienation despite the lack of scientific support based on the “common sense” belief that of course some parents try to undermine the relationship between the children and the other parent. One problem with this approach is that it just assumes substantial harm rather than requiring proof of specific harm. The ACE Research suggests that unless the “alienation” results in taking a parent out of a child’s life it does not rise to a health or safety issue. In most cases any damage is short-lived. Another problem is that reporting domestic violence and even making sure children understand it is wrong is not alienation and is beneficial for children to know. The myth is often self-fulfilling as professionals expecting to find false reports reach this conclusion far too frequently. When PAS is used, including by another name, the alienation is assumed from the bad relationship between father and child rather than based on proof of what the mother said or did. More likely explanations for the problem are ignored or discarded. Even when the judge knows not to believe the myth, they may be relying on evaluators or lawyers who used the myth without articulating this mistake. The myth is a poison in the court system that encourages mistakes the err on the side of risking children.
- Missing the Context: Context is critical to understand domestic violence, but fundamental jurisprudence requires that courts consider each issue and each case separately. There is nothing in the law that would prevent use of best practices to look for patterns, but this is often missed. It is conceivable that someone could commit one act of domestic violence and then stop or that an abuser can stop without effective intervention, but such scenarios are extremely unlikely. When there are one or more incidents of abuse that cannot be denied abusers will argue for this rare circumstance and professionals without an understanding of domestic violence dynamics accept this unlikely claim. Teachers routinely use common sense to know that “the dog ate my homework” is usually a false excuse, but are open to the rare exception such as a note from a parent that this actually occurred. Judges could use similar common sense if they were better informed of the dynamics.
- End of Relationship Does Not End Risk: Domestic violence tactics are not responses to incidents, but based on beliefs and entitlement to control. Many court professionals wrongly assume that the end of the relationship also ends the risk. This is why the Saunders’ Study recommends training in post-separation violence. We know the end of a relationship is the most dangerous time for a woman because 75% of women killed by their partners lose their lives after they leave. It also explains the large number of children killed by abusive fathers during custody disputes because it is the best way to hurt the mother. The litigation and economic abuse that often occurs during custody disputes is a continuation of his abuse although many professionals don’t even consider this. The Saunders’ Study found that abusers use shared decision making to maintain control and visitation exchanges to harass and assault their partners. Even if the father never abuses the mother again, the end of the relationship does not change his beliefs so he will abuse future partners. This means if children are not protected they will be exposed to more abuse.
- Economic Abuse: Economic abuse is an important form of domestic violence both during the relationship and during divorce and custody disputes. Many abusers have threatened their victims that he will bankrupt them if she ever leaves. They often are willing to hurt themselves financially in order to hurt the mothers. This is one of the purposes for aggressive litigation tactics and false reports against the mother. In custody cases abusers who controlled the finances during the relationship use this financial superiority to gain an unfair advantage. Judge Mike Brigner who has provided domestic violencel training for judges says that judges have the tools to level the playing field, but rarely do so. This leads to cases that are decided based on the financial advantages of the abuser instead of the merits of the case.
- Psychological Tests: Psychological tests were not created for the populations seen in Family Court. Instead they are designed for people with serious mental health problems. The tests are based on probabilities so under the best of circumstances the accuracy is 60% or less. Cases involving domestic violence and contentious litigation offer far worse accuracy. A particular problem is that the tests ask questions about a belief someone is following you or fears you might have. In the context of domestic violence, the answer is often yes but unless the psychologist modifies the scoring this is taken as a negative for abuse victims. Protective mothers are often labeled as paranoid or delusional for their normal reaction to their partner’s abuse. These are expensive tests that create the false illusion of a useful investigation while failing to provide any information about domestic violence.
- Failure to Screen for Domestic Violence: The Saunders’ Study found that evaluators and other court professionals need training about how to screen for domestic violence. These professionals routinely discredit reports of abuse based on common circumstances that are not probative. Victims of domestic violence often return to their abuser; fail to follow-through on petitions for a restraining order; and don’t have police or medical records for safety and other good reasons. Unqualified professionals often fail to look for the pattern of coercive and controlling tactics that include far more than physical assault. This knowledge would provide information about the abuser’s motive for seeking custody and his history of abuse.
- Gender Bias: Some of the good judges interviewed by Dr. Dianne Bartlow in a chapter about the child murders made an interesting point that is rarely discussed openly. They said they thought some of their colleagues might favor fathers because too many other fathers abandon their children. Forty states and many districts have created court-sponsored gender bias committees. They have found widespread bias particularly against women litigants. Common examples are holding mothers to higher standards of proof, giving them less credibility and blaming victims for the actions of their abusers. In many cases courts give custody to abusive fathers based on the prediction that they are more likely to promote the relationship with the mother. Once they receive custody the abusers use the control to interfere with visitation and destroy the relationship which was their purpose in seeking custody. Courts that would have punished mothers for far less serious behavior allow many fathers to get away with genuine alienation. Judges engaging in this bias are usually unaware they are doing so, but the defensiveness of some judges discourages discussion of this important issue.
Standard Practices that Minimize the Harm from Domestic Violence
- Skepticism of Abuse Claims During Contested Custody: Problems with the societal response to domestic violence is certainly not limited to custody courts. We have seen child protective agencies refuse to investigate reports when they learn of an ongoing custody case. The few written policies promoting this bad practice have been corrected but many individual caseworkers continue to make this mistake. Courts sometimes discount reports that are unfounded by protective agencies and this is misguided. This practice is connected to the lack of training uncovered in the Saunders’ Study that believes the myth about frequent false reports.
- Minimizing the Harm Caused by Domestic Violence: The ACE Research demonstrates that the fear and stress caused by exposure to domestic violence is far more harmful to children than previously realized. But many courts and even more court professionals are unaware or unfamiliar with this groundbreaking research. Inevitably this leads courts to treat domestic violence as far less important than it is. In many cases courts focus on other issues that are far less important to the well-being of children. For children exposed to one or more ACEs, the best interests of a child must consider what the court can do to prevent the catastrophic consequences of exposure to domestic violence, child abuse and other traumas.
- The Risk of Promoting Compromise with Abusers: Custody courts could not operate with their present limited resources without being able to settle a large majority of its cases. There are many good reasons that judges, mediators and others recite to encourage litigants to reach mutual settlements. This is problematic in domestic violence cases. Abusers, by definition are not reasonable and will not sacrifice their interests for the well-being of the child. Victims are at a huge disadvantage in settlement discussions because abusers have more power and victims are dealing with the fear engendered by their partners. The problem is compounded by the need to find an arrangement that both parties can be convinced to agree upon rather than an arrangement that keeps children safe. In too many cases victims are punished or fear they will be if they insist on safe arrangements.
We now have substantial scientific research that courts can use to better protect children. We have experience with practices developed in the 1970s that unintentionally push courts towards decisions that jeopardize children. After almost forty years, these flawed practices are deeply ingrained. Abusers and the professionals who benefit financially have an interest in discouraging the needed reforms. Many of these problems have not been adequately discussed because the flaws are hidden particularly from professionals with expertise in mental health or the law, but not domestic violence.
How can it possibly be right to attempt to safeguard children:
Without integrating current research like ACE and Saunders?
Without using a multi-disciplinary approach that would include the specific expertise that is needed?
Without considering how the old practices are impacting children?
Without creating reforms in response to the hundreds of children murdered by abusive fathers involved in contested custody cases?
Without making the health and safety of children the first priority in all custody and visitation decisions?
Protective mothers are angry because the present practices routinely fail to protect their children. Judges are defensive that outrageous decisions create a widespread belief that corruption must be the cause. Children who are placed with dangerous abusers blame judges even more than their abusers. We cannot continue to allow outdated practices that support the tragic song lyrics
ONLY THE GOOD DIE YOUNG.