For decades, protective mothers have been complaining that family courts are tilted to favor abusive fathers and that they face corruption. Court officials have tended to respond defensively and dismissed the domestic violence victims as disgruntled litigants. Over the years an ever growing collection of research, media investigations and preventable tragedies have supported the mothers’ position, but in a form of confirmation bias, court officials have ignored inconvenient findings.
In my first book with Mo Hannah, Sharon K. Araji, and Rebecca L. Bosek wrote an interesting chapter in which they looked at surveys of protective mothers in five states which showed consistent court failures to protect children. It might be easy to dismiss the research because mothers with bad outcomes might be biased, but the authors compared the mother’s complaints with credible research and found the findings supported the mothers. The courts were routinely treating the mothers as if they were not credible but the scientific findings supported other research that found protective mothers rarely make deliberate false complaints.
The ACE (Adverse Childhood Experiences) Studies from the CDC demonstrated that domestic violence and child abuse are far more harmful than previously understood and that physical abuse is not required to ruin children’s lives. In other words the courts have been minimizing the seriousness of DV and child abuse and basically ignoring non-physical tactics. Despite the research, courts are still not focused on reducing the fear and stress from abuser tactics that cause children so much harm. And most of the standard court practices undermine the needed healing.
The Saunders’ Study was designed to consider the knowledge and training about domestic violence possessed by evaluators, judges and lawyers. The Study found many of these professionals do not have the specific knowledge necessary to respond to domestic violence. Those without the needed training tend to focus on the myth that mothers frequently make deliberate false reports and unscientific alienation theories. These mistakes lead to outcomes that harm children. Five years after the release of the Saunders’ Study these mistaken assumptions continue to predominate. Saunders also looked at harmful outcome cases in which alleged abusers win custody and safe, protective mothers are limited to supervised visitation. These decisions are always wrong and based on flawed practices but remain common in the family courts.
A study from the Leadership Council found the courts were sending 58,000 children for custody or unprotected visitation with dangerous abusers every year. Dr. Joy Silberg studied turn-around cases in which courts initially gave custody to an abuser who was later proven dangerous despite the trial court’s predictions. Dr. Dianne Bartlow interviewed judges in communities where 175 children were murdered by fathers involved in contested custody. The courts failed to create reforms in response to the tragedies because they all assumed the murder in their community was an exception.
Boston Globe reporters investigated a pattern of failure in Massachusetts custody courts and their child protective agency. They used a case in which a father found to have sexually abused his daughter was awarded custody in order to punish a mother for trying to leave the state. The reporters found the failure of professionals to use the Saunders’ research led to many of the dangerous decisions. Reporter Laurie Udesky interviewed professionals and victims in nine states and found a pattern of courts granting custody to dangerous abusers. Joaquin Sapien of Pro Publico found widespread failures among NY evaluators.
Professor and Founder of DV LEAP Joan Meier sought to resolve the dispute by gathering national empirical data that could not be dismissed as a local specific study that might not apply nationally. Her “pilot study” of nationwide family court outcomes in cases involving alienation and abuse claims produced stunning – and disturbing – results. On the strength of that data, the National Institute of Justice in the US Justice Department provided a grant to her and a respected team of experts to support a more in-depth and scientific study of family court outcomes. Professionals working in the field have been looking forward to seeing the findings from this extensive research into thousands of cases, which is expected to be available in the next year. In the meantime, Professor Meier has just released a long-awaited article describing the findings from the pilot study of 240 cases around the country.
The Meier Research
In the batterer program I teach in, we have been running institutes for many years. The participants are mostly professionals who want to learn how to run a NY Model program in their communities. We used to run a sample class to give attendees an idea of what a class looks like and would ask the male participants to play the men in the class. Despite warnings, many inevitably acted out in a disrespectful manner because they thought this was how the men in the class would act. This was based on the stereotype of an abuser who acts angry, disrespectful and out of control. In reality the men in our classes usually act respectfully both because that is their normal public behavior and they know there would be consequences if they misbehaved in class. We have learned that if a man acts inappropriately in court or in class they are almost certainly abusing their partner, but if they act respectfully, as most of the men do it tells us nothing about their behavior in the privacy of their homes. This is important to understand because courts often assume a father’s appropriate behavior in court or other public places proves they are safe based on abuser stereotypes.
The Saunders’ Study found that evaluators, judges and lawyers without the specific training in domestic violence they need tend to focus on the myth that mothers frequently make false reports. This is not based on valid research, but rather the stereotype of the woman scorned or the angry woman. The Bala research which is based on several studies established that mothers involved in contested custody make false reports less than 2% of the time. Fathers in the same cases are 16 times more likely to make false reports and yet gender bias studies found courts routinely treat fathers as if they were more credible than mothers.
A large majority of contested custody cases are really domestic violence cases involving the most dangerous abusers. Abusers, professionals who make large incomes helping them and abuser organizations have developed many practices to help abusive fathers use the family courts to regain control when their victims try to leave. The most dangerous abusers are those who believe she has no right to leave. This is why ¾ of women killed by their abusers are murdered after they leave. It is also why fathers involved in contested custody kill so many of their children, often with access provided by the courts. The courts are not recognizing the danger these men pose because they usually have not committed the most severe physical assaults and do not fit the stereotypes court professionals look for. Accordingly, almost all of the abuse reports from mothers are true and the ACE Study established that the risks to children are life-changing. This is the context in which Joan Meier co-authored a new article based on the results of her Pilot Study.
Results of Meier Pilot Study
Contrary to popular assumptions, mothers do not gain an advantage by making abuse reports. I have often heard abusers and their advocates refer to sexual abuse reports as a “nuclear bomb” designed to tilt cases in mothers’ favor. Results from the pilot study provide a more realistic and troubling account. When mothers raise abuse issues and fathers counter with claims of alienation, fathers win 72% of the time. They win 73% of cases involving domestic violence reports; 69% of child abuse cases and 81% of child sexual abuse cases. Indeed courts disbelieved 94% of child sexual abuse reports. In the context of other studies establishing that deliberate false reports are rare, this means in a majority of domestic violence custody cases the courts are sending children to live with dangerous abusers and rapists.
Many years ago I represented a mother whose children told her that their father was physically and sexually abusing them. The mother did everything she was supposed to do. She filed family court petitions for custody and a protective order and reported the father’s abuse to Child Protective Services. Initially the father was limited to supervised visits while the case was investigated. The children told their attorney; the evaluator; the judge and the caseworker what their father had done but as often occur in these cases, the professionals charged with protecting the children assumed the mother was coaching the children. The judge ordered normal visitation to resume and threatened to take the children if the mother continued to encourage the children to lie. Before the next visitation could occur, the father was confronted by the family baby sitter in the presence of the law guardian and admitted to kissing his daughters on their privates. The law guardian immediately made a motion to stop the visitation and I supported her motion. The judge consulted with the evaluator who said the father showed bad judgment but there was no reason to stop the visitation. During the first visitation the father penetrated the four-year-old for the first time. I called CPS to make a new report because they were unaware of the father’s admission during the first investigation. When the judge heard about my report he screamed and yelled at me saying it was already investigated and they found nothing. The new caseworker did a more thorough investigation and learned the father had done even worse than we believed. CPS filed charges against the father and he never had anything but supervised visits again.
The mother won custody and invited the caseworker and me to a celebratory dinner. The children had gifts for us but most special was their name for us. They called us believers because we believed them when all the professionals who were supposed to protect them failed to do so. I learned there is no greater honor than to be called a believer. All these years and all these rapes and molestations later, the pilot study confirms that family courts continue to be populated by unbelievers.
The pilot study found that it is really father’s allegations of alienation that continues to be the most powerful weapon to take custody from protective mothers who are usually the primary attachment figures. When courts believe a father’s claim of alienation, fathers win about 95% of the cases regardless of whether the mother claims abuse or not. Even when the court believed the mother’s abuse report they would rule for the father if they also believed his alienation claim. This is particularly disturbing not only because domestic violence and child abuse are so much more harmful than alienation, but it is likely when abuse is confirmed that it is the real cause of any alienation.
Causes of Dangerous Outcomes
How could a judge find evidence that confirms child abuse or domestic violence and yet treat alienation as if it were more important. This contradicts the ACE medical research which ought to be persuasive in comparing the impact on children. I have heard many court administrators say their judges are getting the training they need, but this finding demonstrates all too many judges do not understand the ACE Research, and this ignorance leads to dangerous decisions.
I believe the finding that courts are treating alienation as if it were more consequential than domestic violence and child abuse indicates a shortcoming in the use of expert witnesses. The courts fail to differentiate between objective and subjective opinions. Subjective opinions are easier for the experts because they just have to state their personal opinions. The problem is that they are often unsupported or even contradicted by credible scientific research they may be unfamiliar with. Parental Alienation Syndrome and other unscientific theories assume that alienation is the worst possible experience for children. This is unsupported by any valid research, but has been repeated so often by professionals, many of whom have a financial interest in promoting bogus claims that the misinformation is deeply entrenched. This is no academic discussion because this misconception is being used to destroy thousands of children’s lives.
One of the most important findings from the pilot study is that gender bias continues to influence and indeed permeate the family courts. PAS is a gender biased theory that was deliberately designed to help abusive fathers gain custody. Although some protective mothers also claim alienation (better described as DV by Proxy) it is mostly a tactic abusive fathers use to manipulate the courts. In every category alienation was more helpful of the fathers’ position. When alienation was claimed, fathers won 70% of the time compared to mothers 50%. When their alienation claims were credited fathers won 95% of the time and mothers won 80%. Even when the alienation claim was not credited, fathers won 37% of the time but mothers only 11%. When alienation was alleged custody was switched to the father 50% of the time and to the mother 28% of the time. When alienation claims were believed by the court fathers won custody 69% of the time compared to 50% for the mothers. When fathers’ alienation claims were not credited mothers still lost custody 25% of the cases while a denial of mother’s claims resulted in fathers losing 10% of the time. Perhaps it is not surprising that a theory concocted and promoted by male supremacists would favor men, but this research suggests courts need to be conscious of the biased way it is routinely applied. I wonder if an equal protection or due process argument could be made to prevent the use of alienation at least as presently implemented.
Gender bias is such a difficult issue because good people engage in it without intending to, but often become defensive when the issue is raised. I had worked in the battered women’s movement for 17 years when I first came to the batterer program I teach in. It was painful and difficult when staff and other instructors gave me the gift of telling me about my offensive words and conduct. The pilot study by Joan Meier again demonstrates that gender bias in the custody courts is widespread.
Mothers are held to higher standards because we expect mothers who provided most of the child care to be better parents. Courts bend over backwards to keep fathers in children’s lives because so many other fathers abandon their children. We keep hearing that children need both parents equally. In reality children need the safe parent more than the abusive one and the primary attachment figure more than the other parent. The research establishes that mothers’ complaints are far more credible than fathers’ but court professionals are influenced by the myth that mothers frequently make false reports. The Pilot Study shows how when parents are in the same position, courts favor fathers by significant margins. And the family courts give enormous influence to a theory that was concocted not from any research but from the personal beliefs of someone who made many public statements accepting sex between adults and children while virtually ignoring highly credible research from the CDC and US Justice Department.
These errors are of far more than academic interest. Some of these mistakes lead directly to child murders. More often these bad practices cause children to suffer unspeakable pain and anguish. Most of these children will never reach their full potential during the only life they will have on this planet. And the ACE Study tells us that exposure to the true reports the courts routinely fail to recognize will shorten their lives and undermine their health.
In many ways the findings in the Pilot Study, particularly if it is confirmed in the final Meier Study complete the circle that makes it impossible to deny the courts are getting a large percentage of abuse cases wrong. The research demonstrates the courts are using outdated approaches that give them little chance to recognize and respond effectively to reports of domestic violence and child abuse. At the same time, research like the Pilot Study confirm the courts are making decisions in a large number of cases that fail to protect the children.
Personally, I appreciate the hard work, passion and integrity Joan Meier has brought to this investigation. The Pilot Study is a huge advance and I expect the final study will again confirm what the real experts have long understood. The family courts in this and many other countries are hazardous to children’s health. And it has to stop. I know this because I’m a believer.
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