The Safe Child Act
Popular assumptions in the 1970s suggested that domestic violence was caused by mental illness and substance abuse.This led courts to turn to mental health professionals, particularly psychologists to help courts respond to domestic violence. Psychologists are experts in mental illness and psychology and this is helpful to courts when those are the primary issues before the court. Mental health professionals earn their degrees with little or no training regarding domestic violence. A few workshops can be helpful but does not provide the level of expertise needed to respond effectively to domestic violence cases.
The Saunders’ Study found that domestic violence advocates have more of the specific knowledge courts need to recognize and respond to domestic violence reports than do evaluators, judges or lawyers. This makes sense because advocates are part of the only profession that works full time to prevent domestic violence. Some judges have actually refused to hear advocates based on the belief they are biased because they always oppose domestic violence. Of course that position is supported by the laws in every state.
The findings in the Saunders’ Study support a more multi-disciplinary approach and this is required in the Safe Child Act. Courts need to consider what type of expertise is needed instead of using psychologists for every issue. Some cases only require mental health expertise, but other cases may need experts in substance abuse, child sexual abuse, medical, domestic violence or other specific expertise. Many cases need more than one type of professional. An abuser might have mental illness that requires therapy, but solving his emotional problem leaves him with the beliefs that he believes justify domestic violence tactics.
It is foolish and dangerous to use the equivalent of a general practitioner for cases involving cancer or heart disease. By encouraging courts to use the type of expert the court needs in an individual case, the Safe Child Act will make the jobs of judges much easier and make children safer. In domestic violence cases, relying on advocates will be less expensive than psychologists and provide more accurate information.
Early Hearing on Abuse Issues
Many protective mothers report that their abusers threatened to bankrupt them and take the children if they dared to leave. This leads to aggressive litigation tactics that are both expensive and emotionally harmful. At the same time abusers seek to distract attention from the abuse issues with their own complaints about far less important issues. The Safe Child Act seeks to overcome these tactics by requiring an early hearing just on the abuse issues. This means that cases that now require many months or years of court time and legal expenses can often be resolved in a couple of hours. This will be a factual issue so there is usually no need for the time and expense of evaluators, GALs or discovery.
The procedure is based on recent practices in New York; the last state to require no-fault divorce. A hearing was required concerning grounds for divorce and in domestic violence cases this was limited to the issue of cruel and inhuman treatment. These hearings were usually completed in two hours or less, but more likely to result in correct decisions because all the distractions were eliminated.
If one of the parents has engaged in a pattern of controlling and coercive behavior and the other parent is safe, the research is clear about the best outcome for the children. The safe parent must have sole custody and the abuser should initially be limited to supervised visits and has the obligation to change their behavior in order to qualify for more normal visitation.
The research cited in the Saunders’ Study shows that protective mothers in contested custody cases make deliberate false reports less than 2% of the time. That does not mean mothers will win 98% of the time as there may be inadequate evidence or it may not be presented effectively. Nevertheless, if courts are using best practices, including necessary domestic violence training, this early hearing will resolve a large majority of contested cases saving the courts and the litigants substantial resources. Best of all, this procedure will resolve the most difficult cases with decisions that are more likely to protect the children.
Training Court Professionals
There is now a specialized body of research and knowledge concerning domestic violence that is available to custody courts but is significantly underused. One of the purposes of the Safe Child Act is to make sure the courts take advantage of this information so they can better safeguard children. Accordingly, judges and other court professionals need training to learn about this critical research. Some of the findings demonstrate that many of the older practices work poorly for children so judges need to discard misinformation they have heard for decades that makes it harder to recognize and respond effectively to domestic violence. Some of these practices may work well in other cases but tend to be used for all cases.
The Saunders’ Study found that advocates have the most knowledge of any profession about domestic violence and so it is important to give them a substantial role in domestic violence training. Some courts already rely on advocates for training, but in many cases judges want to learn from other judges, lawyers from other lawyers and psychologists from other psychologists. This is a practice that discourages the integration of new research as it becomes available. The Safe Child Act includes additional funding for domestic violence agencies so they can take a larger role in training court professionals and also train advocates to serve as expert witnesses.
My hope and expectation is that passage of the Safe Child Act will encourage court professionals to seek additional training because they will be required to reform their practices based on current research like ACE and Saunders. As my earlier article demonstrated the older practices tend to encourage courts to disbelieve or minimize true reports of abuse and so the outdated approaches all push the courts in directions that lead to the deaths and lessor harms to children. The training will provide judges and other professionals with knowledge they need to better protect children including when they need expert assistance and when evaluators or other experts do not have the necessary expertise regarding issues like domestic violence and child sexual abuse.
The ACE Research [Adverse Childhood Experience Study] demonstrates that children exposed to domestic violence will live shorter lives and suffer more illness and injuries. Other than immediate physical harm, there is nothing that goes more directly to the best interests of a child and yet family courts have been slow, at best, to integrate ACE and other important research. The murders of 175 children by fathers involved in contested custody did not lead to the needed reforms because court officials thought the tragedy in their community was an exception. We have a moral debt to those children and part of our response must be to provide new training for court professionals based on the research and expertise that could have saved these children.
Benefits of the Safe Child Act
The Safe Child Act is a comprehensive, evidence-based proposal that will save children from catastrophic consequences and yet 95% of custody cases will not be affected. This is because in most cases the parents love their children and are willing to sacrifice their interests for the benefit of their children. The standard practices the court system has developed are appropriate for these cases.
The Safe Child Act focuses on a far smaller group of cases involving domestic violence, child abuse and other adverse childhood experiences that will have a profound harmful impact on children unless we change the trajectory of their lives. A very large majority of contested custody cases involve domestic violence committed by the most dangerous abusers. These are men who believe their partners had no right to leave so they are justified in using any tactic including hurting the children in order to regain control. These abusers usually have not committed the worst physical abuse and are very good at manipulation so the present practices often fail to recognize the risk.
Child custody is a controversial topic and too often common misconceptions take hold. This is not a dispute between mothers and fathers, but between the large majority of good mothers and fathers wanting children to be protected and a small group of abusers seeking to use the custody courts to regain control over their victims and undermine domestic violence laws. Context is important in defining domestic violence. In criminal cases or for protective orders, the definition is based on statutes that often require physical abuse. In custody cases, the definition should be based on how particular behavior impacts the children now and in the future. The ACE Research establishes that it is the fear and stress caused by living with abuse that causes most of the damage, but many courts continue to focus mainly on physical injuries.
The recent spate of domestic violence and child abuse offenses by NFL players shined a light on the problem that many acts that are now considered domestic violence and child abuse were widely considered acceptable even a generation ago. These beliefs continue to harm our children today. It could be depressing, but it also provides an enormous opportunity. The present level of cancer, heart disease, diabetes, mental illness, substance abuse, crime, suicide, dropping out of school and many other serious health and social problems is based on the present level of domestic violence and child abuse. This means that if we take advantage of research now available we can significantly reduce these scourges of society.
Other parts of society have an important role to play in preventing domestic violence and child abuse, but the custody courts have an important opportunity to save the children under their control. The Safe Child Act gives the courts the tools and understanding to better recognize and respond to abuse and make the well-being of children the first priority. Instead of pressuring victims of domestic violence to cooperate with their abusers, best practices would force abusers to stop their harmful tactics if they want a relationship with the children.
The costs of implementing the Safe Child Act are small and offset by the savings. Ultimately, the reduction of ACEs will dramatically reduce health and other costs to provide substantial savings. The costs concern the training needed for judges and other court professionals. The Safe Child Act provides additional funding for domestic violence agencies so their advocates can take a greater role in providing training concerning domestic violence and expertise in court cases. This training should replace other training by professionals who have less domestic violence expertise but generally charge higher fees. The other significant immediate savings comes from the early evidentiary hearing that should substantially shorten most contested cases.
The United States spends $750 billion every year on health costs caused by domestic violence. We also spend about $200 billion on crime costs related to domestic violence. Many direct victims and their children never reach their economic potential which further undermines our economy. Each state pays a proportionate cost for permitting domestic violence crimes to continue. The Quincy Solution is a group of best practices that led to dramatic reductions in domestic violence crime in communities like Quincy, Nashville, and San Diego. Bill Delahunt, the District Attorney who was a leader in the original Quincy Model noticed that victims stopped cooperating when their abusers sought custody. Society cannot enjoy the enormous benefits of stopping domestic violence as long as the worst abusers continue to manipulate custody courts to regain control over their victims. Many women stay with their abusers and accept the beatings because they are afraid they might lose their children if they try to leave. This is why the custody courts had to be part of the Quincy Solution. The Safe Child Act will stop the misuse of our custody courts by abusers.
Protecting children is the most important benefit of the Safe Child Act. The ACE Research demonstrates that exposure to domestic violence is far more consequential than previously understood. The harm might not be obvious when evaluators make their reports, but sooner and later the fear and stress will impact the children’s health and happiness throughout their lives. The ACE Research explains what we can do now for children exposed to ACEs to give them their chance for a full and successful life. Today, the needed responses are not part of the standard custody court practices. The Safe Child Act will change the atmosphere in the courts and give judges the tools to recognize abuse and respond effectively.
“All we are saying is give kids a chance.”
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Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.