The first rule for doctors is to do no harm.
Custody courts often need to respond to cases of domestic violence and child abuse where one or both parents have already hurt the children. The public is largely unaware of the widespread failure of custody courts to protect children because the media has done a poor job of exposing the scandal. This has started to change with a major story from the Boston Globe exposing widespread practices that place children at risk and other major media outlets starting the investigate the problem.
In 2012, the U. S. Justice Department released groundbreaking research that helps explain why custody courts so often deny or minimize true reports of domestic violence and child abuse. The Saunders’ Study found that evaluators, judges and lawyers need more than generalized training in domestic violence. They need specific knowledge about screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Court professionals without the necessary information tend to focus on the myth that mothers frequently make false reports, unscientific alienation theories and the belief that mothers trying to protect children from fathers they found scary are actually hurting the children. These mistaken beliefs lead to outcomes that place children in jeopardy.
When courts hurt children
These are exactly the mistakes made by Judge Lisa Gorcyca in the notorious Tsimhoni case. She told the children their father could not be an abuser because he had a good reputation in the community and there were no criminal charges or protective orders. Abusers usually act very differently in the privacy of the family home than in public. Accordingly, their reputation with people who don’t know how they act towards their wives and children tell us nothing about reports of abuse. Domestic violence is grossly under-reported, so the lack of criminal charges or protective orders does not mean the abuse reports are wrong. Judge Gorcyca relied on this non-probative information and refused to consider evidence that could have helped the court recognize the father’s abuse. Instead she focused on alienation theories that were rejected by the American Psychiatric Association because of a lack of valid research. These mistakes led Judge Gorcyca to fail to protect the children from their father.
Harmful Outcome Cases
Cases when courts fail to protect children are disastrous for the children and society. The worst judges take it a step further and seek to punish mothers for trying to protect their children. One section of the Saunders’ Study included interviews with protective mothers involved in what Dr. Saunders referred to as harmful outcome cases.
These are the extreme cases in which a safe, protective mother who is the primary attachment figure for the children is limited to supervised or no visitation while the alleged abuser is given custody. These decisions are always wrong because the harm of separating children from their primary attachment figures, a harm that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was creating.
The Saunders’ Study found these bad decisions are associated with very flawed practices. Among the common mistakes Dr. Saunders and his colleagues found were reliance on inadequately trained professionals; pathologizing the victims; failure to adequately investigate abuse reports, bogus alienation theories and dishonesty from the court professionals. What happens is that the flawed practices lead courts to disbelieve true reports of abuse. The mothers continue to believe their experiences and the worst judges respond by punishing and retaliating against the mothers. The judges seem oblivious to the fact that in seeking to punish the mothers they are really punishing the children.
Deliberately Punishing the Children
A few judges with an enormous sense of entitlement and no ability to consider their own mistakes have taken their retaliation to unbelievably cruel levels. The Tsimhoni children were not parties to the case. The GAL (Guardian Ad Litem) representing them failed to advocate for the children’s position, or present evidence or information to the judge to support them. Instead the GAL, who appears to be part of the cottage industry of court professionals earning large incomes by supporting wealthy abusers advocated for the father and against the clients.
Judge Gorcyca had no authority to punish the children, because they were not parties to the proceeding and had no effective opportunity to present evidence for the judge to consider. Nevertheless, Judge Gorcyca sent them to jail (juvenile facility) to punish them because they were afraid to interact with their abusive father. She called them names and compared their actions to Charles Manson. How do you do this to traumatized children?
Judge Gorcyca tried to avoid public criticism by imposing a gag order that limited what the media and public could know. This is clearly a conflict of interest because the purpose seems to be designed to protect her personal and professional position. She could not prevent press coverage when she jailed three young children, but the gag order prevented the media from learning the full story which, possibly would have made her look even worse.
One of the many mistakes made by Judge Gorcyca was to rely on Parental Alienation Syndrome, despite its poor reputation and lack of support from any reputable professional organization. After public pressure forced her to release the children, she eventually gave custody to the abusive father and allowed him to send the children for “reunification therapy.” This is not a legitimate or recognized treatment and has been described by victims forced to participate as “threat therapy.”
Tsimhoni Case Proves Court Dysfunction
It is easy to blame a bad judge who long ago lost all sense of openness and objectivity, but the system had no ability to rescue children abused by the court. Only the media attention caused the judicial committee to investigate the judge’s outrageous actions and statements. Only her alleged lies to the committee caused them to file charges that led to her withdrawal from the case. Otherwise the judicial system was willing to defer to the trial judge despite the clear conflict of interest and outrageous behavior. Few judges would go to this extreme in harming the children, but the judiciary was unwilling or unable to protect the children. The Saunders’ Study demonstrates that many of the mistakes made by Judge Gorcyca are all too common, which is why the court abuse was allowed to continue so long.
We believe it is imperative that effective actions are taken to make sure the courts can protect children in abuse cases and restore the public’s trust in the broken system. Judges, lawyers and evaluators need to understand current research in order to recognize and respond effectively to abuse reports. The court needs a more multi-disciplinary approach that includes experts is specialized subjects like domestic violence and child sexual abuse.
The Solution is the Safe Child Act. It would require that in all custody and visitation decisions the health and safety of children must be the first priority. It would require integration of current scientific research into court practices and better training for the professionals relied on. These best practices would allow the court to correct errors that place children in jeopardy. Even better they would make it far less likely that even bad judges would consider such outrageous actions.
We must make courts safe 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.