Family courts have a long history of focusing their attention on reunifying families. This is based on the belief that children do better with both parents in their lives. This is true for a large majority of custody cases handled by the courts.
When domestic violence became a public issue in the 1970s, the courts had to develop responses at a time when virtually no research was available. Domestic violence was viewed as a problem because it undermined efforts to keep both parents in children’s lives.
Perhaps this is why the courts developed practices designed more to prevent the issue of domestic violence from interfering with the goal of keeping both parents in children’s lives than from preventing domestic violence from harming children. The responses were created based on many assumptions that turned out to be wrong. The failure to consult domestic violence advocates and a bias that viewed domestic violence as an obstacle to the goal of unified families encouraged practices that jeopardized children.
Concerns about domestic violence were limited to whether the children were physically injured. Courts turned to mental health professionals based on the belief that domestic violence was caused by mental illness or substance abuse. Courts accepted the myth that mothers frequently made false reports of abuse to gain a litigation advantage. Concerns about domestic violence ended when the parties separated or there was no recent physical assault.
Even after later research found children were harmed by witnessing domestic violence, the concern was still limited to physical assaults. Court professionals were taught that contested custody involved “high conflict cases in which the parents were angry with each other and acted out in ways that hurt their children. All of these mistaken assumptions have been disproven by highly credible scientific research, but most courts continue to rely on these outdated and discredited practices that place children in jeopardy.
The Reality Missing from Most Custody Courts
Standard custody practices that seek to encourage parents to cooperate with each other are useful in a large majority of cases, but not in the 3.8% of contested custody that are really domestic violence cases.
Most abusive fathers have harmed their children by abusing their mother, but still love their children and would not deliberately harm the children by seeking to take the children from the mother who is usually the primary parent. This is why most custody cases, even ones involving abusers, are settled more or less amicably.
A large majority of contested custody involve the worst abusers who believe the mother has no right to leave and use custody as a way to regain control and punish the mother for leaving. These cases are the most dangerous for the children and need to be approached much differently than the majority of cases with good parents who love their children.
The ACE (Adverse Childhood Experiences) Studies are highly credible medical research from the Centers for Disease Control. ACE demonstrates that domestic violence and child abuse are far more harmful than previously understood and living with the fear engendered by abusers leads to the worst kind of stress. For children this means shorter, sicker lives and a lifetime of complications. Physical abuse is not necessary to create the fear and catastrophic consequences. The common court response of asking victims to “get over it” has no chance to succeed because a court order cannot reduce the fear and stress.
The Saunders’ Study from the U.S. Department of Justice demonstrates how inadequate knowledge and training of evaluators, judges and lawyers leads courts to deny and minimize true reports of abuse. The myth that mothers often make false reports of abuse is an important factor in courts disbelieving true reports. The lack of training in post-separation violence leads courts to assume the risk ends when the relationship ends, and that older incidents of abuse do not matter. The lack of training in risk assessment means courts have trouble recognizing the danger that victims face.
Domestic violence is not caused by mental illness or substance abuse. The mental health professionals courts rely on are experts in mental illness and psychology. They can help the courts when those issues are significant to a case, but rarely have the expertise necessary to respond to domestic violence or child sexual abuse. The present practice is like using general practitioners to treat cancer or heart disease. This is why the Saunders’ Study supports the use of a multi-disciplinary approach that would include domestic violence experts.
The Safe Child Act Would Make Courts Safe for Children
The Safe Child Act was developed using the scientific research that is now available but courts have been slow to integrate. This comprehensive act is trauma-informed, multi-disciplinary and evidence based. The Safe Child Act would only apply to a small percentage of cases, but these are the cases that cause the most danger and harm to children.
Custody courts often fail to recognize the risk because the most dangerous abusers often are not the fathers who committed the most severe physical assaults.
The risks involved in most contested custody cases require that courts make the health and safety of children the first priority. Safety is provided by preventing abusers from physically assaulting the child, but the ACE Research demonstrates that non-physical abuser tactics that create fear in the mother and children also create a lifetime of health problems.
Present practices fail to consider these health issues because few courts have integrated the ACE Research. Present practices require courts to consider a large group of factors in making custody and visitation decisions. Judges have complete discretion to place the highest priority on any of the factors regardless of their impact on the children.
The less important factors are reasonable to consider in the majority of cases where both parents are safe. In abuse cases however, if we cannot keep the children safe and healthy, nothing else matters. As I said at the start of this article, children cannot benefit from a relationship with an abuser unless they stop.
There is nothing in the present law to prevent courts from using the knowledge from current research like ACE and Saunders to better protect children. The problem is that most courts fail to use this research and so repeatedly place children in jeopardy. The Safe Child Act therefore requires courts to use this life-saving research.
Based on the Saunders’ Study, the Safe Child Act requires courts to use a multi-disciplinary approach. The mental health professionals the courts usually rely on rarely have the level of expertise needed to recognize and respond to domestic violence and child sexual abuse. These professionals instead focus on less important issues they are more familiar with and often disbelieve true reports of abuse. Not only does reliance on professionals with inadequate understanding of abuse place children at risk but often results in courts retaliating against safe mothers trying to protect their children.
The Safe Child Act includes additional funding for domestic violence agencies so they can play a greater role in helping courts respond to domestic violence cases. The Saunders’ Study found that domestic violence advocates have more of the knowledge courts need about domestic violence than the professionals the courts usually listen to. The additional funding will permit advocates to participate in training judges and other professionals and serve as expert witnesses. Professionals need to learn about current scientific research, domestic violence dynamics and other topics recommended in the Saunders’ Study. They also need to learn that many common assumptions are wrong and cannot be permitted to continue to poison the court’s understanding of domestic violence and child sexual abuse.
The Safe Child Act also includes a provision for an early hearing just for these most dangerous abuse cases which is limited to evidence concerning reports of abuse. Abusers routinely use a variety of less important issues to distract attention from domestic violence and child abuse. Their issues do not matter if reports of abuse are true because the harm to children from exposure to domestic violence and direct child abuse is so much greater. If the court finds abuse, there is no need to proceed on the case because the research is clear that the safe parent must have custody so the children can receive necessary treatment and abusers should initially be limited to supervised visits until they can prove to the court that they have changed their behavior.
Since deliberately false reports by mothers occur less than 2% of the time, this early hearing will take a few hours or less and will resolve most cases that now take many months or years.
This approach will benefit everyone who deserves assistance. The children will more quickly know who they will be living with. The litigants will save substantial financial resources now wasted on unproductive litigation. This is especially important in domestic violence cases where a standard abuser tactic is to bankrupt their victims through aggressive litigation tactics. The money can instead be available for the care and education of the children .
The court system benefits because the shortened cases save enormous judicial resources. Best of all this approach will increase the likelihood of protecting children because the court can focus on the most important issue for children. In New York a similar hearing on grounds for divorce that was limited to claims of cruel and inhuman treatment was much more likely to get the issue right because there were no distractions. The only ones who do not benefit from this approach are abusers who have been successful manipulating the courts and professionals making large incomes on the misery of children.
Contrary to popular misconceptions, children do not need both parents equally. They need their primary attachment figure more than the other parent and they need the safe parent more than the abusive one. This last statement is an objective conclusion based on valid scientific research while the misconception is based on subjective opinion uninformed by current research. There is, of course a benefit for children to have both parents in their lives, but this benefit is negated if the parent engages in domestic violence or child abuse.
Assumptions that the risk stops with the end of the relationship or because there were no recent physical assaults is a misconception based on ignorance of current research. The only response that has been shown to change abusers’ behavior is accountability and monitoring, but this is a response family courts rarely consider because few court professionals are aware of this research.
The ACE research has been compared to the Surgeon General’s report linking smoking to cancer. Both medical studies provided the exciting prospect of a significant reduction in cancer, heart disease and other serious illnesses. The ACE research establishes that the children who are the subjects of the small group of domestic violence custody cases will live shorter lives with more health and social problems unless we change our practices to better recognize and respond to the fear and stress caused by exposure to abuse. In today’s courts this concern is usually not even part of the discussion because courts are using outdated practices that do not reflect the valuable research now available.
A custody dispute is often the last chance to save the children. They need therapy and medical treatment to respond to present problems and to reduce the stress they are living with. Children cannot be exposed to further abuse or else doctors cannot reduce the harmful fear and stress.
When courts give abusers a veto on health decisions or permit unsupervised visitation without requiring them to go through accountability and monitoring, the children are denied their last chance for a full, happy and successful life. While many adults who will benefit the Safe Child Act is for our children.
Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.