My last article explained why custody courts so frequently place children in jeopardy. Many of the standard practices developed in the 1970s at a time when no research about domestic violence was available continue to be common. Most of these outdated practices tend to minimize the risk and make it harder for courts to recognize true reports of abuse. Judges struggle to protect children when they don’t understand current scientific research and do not have the advantage of the right experts because courts never developed a multi-disciplinary approach.
Because we love our children and want to protect them, states must reform old practices that undermine the ability to protect children who are the subjects of custody disputes.
Outdated practices take precious years from children’s lives and cause them to suffer health and other problems that are preventable. The Safe Child Act is a comprehensive, evidence-based, trauma-informed, multi-disciplinary reform that will give judges the best chance to recognize dangers and protect children. There can be no possible justification to continue to ruin children’s lives instead of using best practices to give each child their best chance for a full, happy and fulfilling life.
The Health and Safety of Children Must Become the First Priority
Every state provides factors that must be considered in deciding custody and visitation. Most of the factors are reasonable, but weighing the factors is left to the sole discretion of the trial judge, leading to subjective determinations. Appellate courts defer to trial judges because they had a chance to observe witness demeanor. This has the effect of further reducing needed accountability.
Many years ago I had a case in which the mother would dress two sisters who were a year apart as if they were twins. The father thought this was the worst behavior imaginable and made this the focus of the custody trial. The girls told the judge they had seen their father take a knife to their mother’s throat. The judge decided that the girl’s dress was more important and gave custody to the abusive father. There was nothing we could do, because this dangerous and foolish decision was within the discretion of the trial judge.
The Safe Child Act requires courts to make the health and safety of children the first priority in all custody and visitation decisions.The ACE (Adverse Childhood Experiences) Research demonstrates that exposure to domestic violence and child abuse reduces the life expectancy of children and increases the risk of health and safety problems. Denying children normal relationships with their primary attachment figures increases the risk of depression, low self-esteem and suicide.
Obviously physical assault creates health and safety issues. A parent’s mental illness that prevented proper care of the child, substance abuse or neglect would be a health and safety issue. These are all common examples of issues that would be given the highest priority.
Abusers routinely use claims of alienation to counter abuse reports, but alienation does not rise to a health and safety issue unless it prevents the child from having any relationship with the other parent.
Context is important to understanding domestic violence. Abusers regularly use legal tactics to distract from their coercive and controlling tactics. They often manipulate court professionals. The Safe Child Act would place the focus back on the well-being of children, where it belongs. This will make it easier for judges to recognize the harm the abusive tactics cause.
Integrating Current Scientific Research
The ACE Research provides an exciting opportunity to change the world in a wonderful way. Our present level of cancer, heart disease, diabetes, mental illness, substance abuse, crime, suicide and many other health and social problems is based on the present level of what we now call domestic violence and child abuse. The fear and stress engendered by domestic violence and child abuse leads directly to catastrophic short and long-term consequences. Dr. Vincent Felitti, the lead author of the original ACE Study believes prevention is the best use for his research.
The worst abusers have developed tactics they use successfully in family courts to regain control over their victims who are trying to leave. This undermines the effectiveness of domestic violence laws while directly impacting the children affected by custody decisions.
Some judges suggest they cannot act based on the research that exposure to domestic violence will cause children harm in the future. They say this is too speculative. But courts routinely try to protect children from other risks that could be defined as speculative. A parent who leaves a young child alone, particularly in a car is likely to lose custody, even if the episode does not cause any physical harm. Many children have been sent to live with non-smoking parents because of the risk of second hand smoke. The child does not have to develop asthma or emphysema before action is taking. These are bad parenting practices that are likely to create health and safety risks, just like exposure to domestic violence.
In custody cases with a history of domestic violence and other ACEs, courts should be focusing on whether there is anything that can be done now to save the children from the horrific consequences of ACE exposure. The answer is probably yes, but the children will need therapy, medical treatment and stress reduction. We must also make sure the children are not exposed to further abuse. This means the safe parent must have total control over medical decisions and the abuser limited to supervised visits until he changes his behavior. Courts need to follow the best practices based on the ACE Research in order to give the children their best chance to recover.
The Saunders’ Study from the National Institute of Justice provided a much-needed investigation about the domestic violence training and knowledge of evaluators, judges and lawyers. Dr. Saunders found these professionals need more than generalized training. They need training in specific topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Professionals without this expertise tend to focus on the myth that mothers frequently make false reports, unscientific alienation theories and the assumption that mothers hurt their children when they try to protect them from abusive fathers. These mistaken beliefs naturally lead to recommendations and decisions that place children in jeopardy. While the Saunders’ Study did not attempt to quantify the frequency of these mistakes, these mistaken assumptions are often the focus during contested custody cases.
The Saunders’ Study also found that abusive fathers use shared parenting arrangements to regain control over their victims and harm children by doing so. They use their power to make decisions to withhold consent unless the abuser gets what he wants, and uses exchanges to assault or harass the victim. This means it is important to stop pressuring victims into shared parenting with their abusers.
The worst and most dangerous domestic violence custody decisions are what Dr. Saunders refers to as “harmful outcome” cases. These are extreme decisions in which the alleged abuser wins custody and a safe, protective mother who is the primary attachment figure for the children is limited to supervised or no visitation. These decisions are always wrong, because the harm of denying a child a normal relationship with their primary parent, a harm that includes increased risk of depression, low self-esteem and suicide when older, is greater than whatever benefit the court thought it was providing. In many of these cases the court disbelieves the mother’s abuse reports and punishes her for what the court views as alienation. These courts fail to realize that in attempting to punish the mothers they are also punishing the children. The Saunders’ Study found these outcomes are usually caused by the use of very flawed practices. These are the decisions we hear the most about because they have such devastating effects on children and also undermine the respect for the court system.
Research from the Center for Court Innovation establishes that the only response that has been shown to change abusers’ behavior is accountability and monitoring. This means that when courts attempt to respond to domestic violence with therapy, substance abuse treatment, anger management or second chances they are using ineffective approaches and placing children in danger. The failure to integrate current scientific research means that judges are asked to make life and death decisions without knowing what is effective.
Family courts did not develop practices to integrate current scientific research because this information was not available in the 1970s when present practices were developed. Responding to domestic violence is difficult under the best of circumstances, but even the best judges frequently fail to protect children when they try to make decisions without the benefit of current research. The Safe Child Act would require courts to integrate scientific research like ACE and Saunders to make sure courts have the best chance to safeguard children.