What Must Family Court Judges Know About Domestic Violence To Safeguard Children in Contested Cases?
Today, there is a specialized body of scientific research from highly credible sources that can be used to recognize domestic violence and child abuse and to help courts respond in ways that provide children with their best chance for a full, safe and healthy life. There are also experts who work full time on domestic violence issues and are familiar with current scientific research. The problem is that courts developed today’s practices at a time when good scientific research was unavailable. They turned to mental health professionals who are experts in mental illness and psychology for advice and expertise. We now know that domestic violence is not caused by mental illness or substance abuse so relying on mental health experts for cases involving domestic violence or child sexual abuse fails to provide the necessary expertise. Preliminary findings from a definitive study for the National Institute of Justice appear to confirm what domestic violence experts have been saying for many years. Standard family court practices may work in other types of cases but expose children to an intolerable level of abuse in cases involving reports of domestic violence and/or child sexual abuse. This failure to protect children can be expected to continue until the family courts integrate important scientific research like ACE (Adverse Childhood Experiences) and Saunders, and use a multi-disciplinary approach in the selection of experts that includes experts in domestic violence and child sexual abuse. This article will discuss ten critically important areas of knowledge that must be available to family court judges in order to protect children.
1. How to Recognize Domestic Violence: The National Institute of Justice (NIJ) in the US Justice Department commissioned the Saunders’ Study to determine whether court professionals had the needed knowledge and training to respond effectively to domestic violence custody cases. Professionals without the specific knowledge are far more likely to disbelieve true reports of domestic violence and therefore fail to protect children. Saunders determined that screening for domestic violence is one of the required areas of expertise.
Inadequately trained court professionals regularly disbelieve true reports of abuse based on non-probative factors. Common examples include victims who return to their abusers; fail to follow-up on requests for restraining orders and the lack of police or medical reports. Victims often fail to have this “proof” for safety and other good reasons. It is often unsafe to do what the professionals believe is just common sense. Another common example is when professionals observe an alleged abuser interacting with his children and they show no fear. Untrained professionals assume this means he can’t be that bad, but the children understand he would not hurt them in front of witnesses. The Saunders’ Research found that professionals without the specific knowledge needed tend to focus on the myth that women frequently make false reports and unscientific alienation theories. Even when the judge knows to avoid these errors the court may be relying on evaluators or attorneys who based their recommendations on these errors and their ignorance. Judge DeAnn Salcido revealed that judicial trainings in California included recommendations to be skeptical of mothers’ reports of abuse. We don’t know how widespread this type of misinformation is spread during judicial trainings but the myth of false reports is a strong negative influence undermining the ability of courts to protect children. Judge Mike Brigner points out that fathers in contested custody are far more likely than mothers to make false reports (see the Bala Study) and even more likely to make false denials, but it is mothers’ reports that face the most skepticism.
Domestic violence involves a pattern of tactics, usually by men, to coerce, intimidate and scare their partners to do what he wants. Most of these tactics are neither physical nor illegal. Domestic violence is caused by the beliefs and sense of entitlement of the abusers. Courts that limit their inquiry to recent physical assaults deny themselves information and evidence that can assist a court to understand the motives of the abuser. Approaches that treat this as a “he-said-she-said” dispute minimize domestic violence and undermine their ability to recognize the pattern of abuse. Best practices would be to look for a pattern of coercive and controlling behavior that might include verbal, psychological, emotional, economic and litigation abuse as well as isolation, monitoring and litigation tactics. In fairness to judges, lawyers rarely put this pattern of abuse together. Many lawyers believe whether or not it is true that judges do not want to hear evidence of abuse. This means that courts are denied the information they need to understand the case and the risks. Accordingly it is important for judges to act in ways that encourage attorneys and parties to present available evidence of domestic violence and child abuse. In light of the frequency that courts disbelieve true reports of abuse, it is important to avoid retaliating against mothers who continue to believe the father is dangerous. Not only does punishing the mothers also punish the children but it creates an atmosphere that discourages victims and attorney from offering the evidence courts need to protect children.
2. Impact of Domestic Violence on Children: The ACE Studies are medical research from the CDC that should fundamentally change how family courts respond to domestic violence cases. The research establishes that exposure to domestic violence; child abuse and other traumas are far more harmful than previously understood. Although custody courts tend to focus on immediate harm and physical injuries, ACE demonstrates that the fear and stress caused by living with an abuser are responsible for a lifetime of health risks and poor decisions that reduce the quantity and quality of children’s lives. Standard practices of evaluators that seek to determine how a child is doing psychologically in the present fail to consider the long-term risks especially when the evaluator is not an expert in the ACE Research. Common court practices that demand mothers and children just “get over it” have no chance to work. The court has the power to force interaction with the abuser but cannot eliminate the fear and stress this causes. Indeed aggressive and retaliatory responses by judges increase the stress that leads to a lifetime of health problems.
3. Post-Separation Violence: This is another critical topic that Saunders recommended for evaluators and other court professionals. Domestic violence is not about one incident or a few incidents. It involves a pattern of coercive and controlling behavior that is based on the abuser’s belief that he is entitled to control his partner and make the major decisions. Unfortunately, courts often use or tolerate victim-blaming approaches, but no woman can force her partner to assault or hurt her. It is not just that he committed abusive acts but that he is an abuser. Looking at the full pattern of coercive tactics will demonstrate who he is even when he has committed few if any physical assaults. The significance of this is that he is likely to have abused earlier partners and will abuse future partners. The very litigation the court is considering is usually a continuation of his abuse and is designed to pressure her to return or punish her for leaving. Courts rarely ask why a father who allowed or demanded the mother provide most of the child care during the relationship suddenly demands custody and claims the mother is unfit. All this means that if the abuser is given custody or unsupervised visitation the children will be exposed to further abuse, forced to live with the fear and stress, and therefore cannot heal to avoid the ACE consequences. . Courts need to know that only accountability and monitoring have a realistic chance of changing their behavior. Therapy can benefit most people, including abusers, but mental illness is not the cause of domestic violence so therapy should not be treated as if it is a solution to his abusive behavior.
4. Risk Assessment: Most custody cases are settled more or less amicably. There is a small group of about 3.8% of the cases that cannot be settled or repeatedly return to court. These are overwhelmingly domestic violence cases in which the worst abusers seek custody as a tactic to pressure their victim to return or punish her for leaving. These are the most dangerous cases that can result in the murder of mothers, children or bystanders and more often create the long-term harm discussed in the ACE Research. Judges do not know at the start which of these cases will fit in this category, but paying attention to factors associated with increased risk and lethality can provide an early warning about cases that require more resources and specialized expertise.
There are specific types of abuser behavior that are associated with higher risks of lethality, but the evaluators and other professionals courts usually rely on rarely possess this needed expertise or discuss risk assessment based on this knowledge. Among the common examples that suggest higher risks are assaulting a woman while pregnant; strangulation; forced or pressured sex; hurting animals; stalking; violating court orders; access to guns and the belief woman have no right to leave.
Judges should consider a party’s motive for seeking custody especially when the other parent has provided most of the child care during the relationship. Of course an abuser might lie about his history of child care so courts should not just accept what he says. Evidence that the father is trying to resume the relationship with the mother; using visitation and custody to gain access to the mother; attempting to learn about the mother from the children and demanding the mother participate in visitation exchanges or other activities are common actions of abusers using custody as a tactic.
In many cases the father threatened to bankrupt the mother if she dared to leave. This makes evidence of economic abuse especially important in proving domestic violence. Is the father willing to hurt himself financially or gratuitously harm the mother and children in order to pressure her? Does he refuse or delay paying support although he can easily afford it? Does he spend far more to avoid paying a form of support than he hopes to save? Is he engaging in aggressive litigation that is likely to force her to procede pro se? Is he deliberately reducing or hiding income to reduce the support she receives? Judge Mike Brigner has written that judges should be more willing to use the laws to level the playing field by requiring the wealthier alleged abuser to pay legal and other fees. This is especially true when his tactics demonstrate he is trying to gain an unfair advantage through litigation and economic abuse. Men who use these economic tactics are often successful in other parts of their lives and so professionals fail to recognize the danger. These are the early warning signs judges can use to prevent tragedy.
5. Domestic Violence Dynamics: In Maryland, a pediatrician, Amy Castillo sought a protective order for her children that her husband threatened to kill. The judge denied her petition after learning the couple had sex immediately before coming to court. The judge assumed the father couldn’t be that bad if they were still having sex. He never considered it might not be safe for her to refuse. The father used the access provided by the court to kill the three children.
In Connecticut, Adrianne Oyola sought a protective order for seven-month-old Aaden after the father threatened to kill the baby. The judge, and later the Connecticut court system believed they could not provide the needed protection because the father’s threat was not “continuous.” If they had understood domestic violence dynamics or consulted an expert they would have learned that once a man assaults his partner he doesn’t have to keep hitting her because she knows what he is capable of. His purpose is not to physically harm her, but rather to control and coerce her to do what he wants. Tony Moreno used the access provided by the court to throw Aaden off a bridge to his death.
These preventable murders provide tragic examples of the importance for courts to understand domestic violence dynamics. While most similar failures do not result in immediate deaths, they do lead to bad decisions that minimize or deny true reports of abuse and ruin children’s lives.
Courts need to understand domestic violence dynamics or listen to someone who does. This is something that evaluators that courts listen to rarely understand, but DV advocates focus on every day. This is one of the reasons the Saunders’ Study supports a multi-disciplinary approach. Courts need to avoid approaches that are limited to physical assaults or worse recent physical assaults. These assaults are a small part of his domestic violence and the ACE Studies confirm that it is the fear and stress caused by the pattern of abuse rather than physical injuries that cause most of the harm. This is especially true for children in the home. Courts should focus on the history of abuse; which party is afraid of the other; the pattern of abuse; which parent provided most of the child care during the relationship and the motive for seeking custody. Courts should keep in mind that many of the fathers involved in contested custody understand that the best way to hurt the mother is to hurt her children. This is why there is a pattern of child murders connected to contested custody. Abusers’ behavior is very different in the privacy of the home then in public and victims pay close attention to his words, gestures and body language in order to provide early warnings. Accordingly the partner knows her abuser better than anyone else and is best able to predict his future actions. In this context, court approaches that pressure mothers to cooperate with their abusers or punish them for objecting are a huge mistake that leads to decisions and settlements that endanger children.
6. Batterer Narratives: Abusers tend to be very good manipulators. This is how they gain control over their victims and gain support of others in the community. Court professionals often believe they can tell who is telling the truth, but abusers are very effective in fooling evaluators, judges and lawyers. One of the first things we learn as instructors in a batterer program is the importance to avoid colluding with the men in the class. We want to treat them respectfully and give them every opportunity to complete the program, but we must hold them accountable to the rules in the program. It is a constant struggle because the men can seem completely charming and cooperative.
The ability of batterers to manipulate makes it especially important for court professionals to be familiar with research on batterer narratives. Most abusers would say that it is wrong for a man to hit a woman and then they add the word “except.” The exceptions are usually if she is a (insert the slur) or if he defines her behavior as improper. Abusers believe they are entitled to control their partners and make the major decisions. To them this means the victim had no right to resist so when the abuser responds he is acting in self-defense. Batterers routinely blame their victim when they are arrested viewing the report rather than the crime as the problem. The man who groped Taylor Swift actually sued her after he lost his job because of his sexual assault. We often see abusers cry in custody court and claim they are the real victim.
Accordingly it is important for judges to keep the context in mind. Practices that seek to take short cuts to limit the discussion to the immediate incident save time but miss the context. Many of the incidents are better understood in the context of a long pattern of abuse and the fear engendered in the victim. At the same time courts can misinterpret aggressive efforts by the mother to protect her children. She is afraid, but she will do whatever she thinks is necessary to save her children. She may also be angry at the mistreatment she received first by the abuser and then the court. Research led by Dr. Jennifer Hardesty found that courts pay far too much attention to mothers’ anger and emotion all out of proportion to what it says about their parenting. Instead courts should pay attention to statements by the father that indicate his sense of entitlement, male privilege and expectation to make the decisions. Monitoring tactics, in the context of domestic violence reports are very revealing if the court understands the significance. Monitoring is really a strong admission that he is trying to control his partner.
7. Who Are the Experts: A few years ago, the Canadian Institute of Health hired me to be part of a team of experts to review grant proposals related to gender, health and violence. The purpose was different than what custody evaluators would do but also similar when the evaluation involves domestic violence cases. Unlike custody evaluators, the experts were very familiar with current scientific research and the discussions were on a much higher level than one typically sees in family courts. The experts were paid $200 a day which is far less than evaluators typically receive, but were far more knowledgeable about the subjects the Saunders’ Study would later say court professionals need to respond to domestic violence concerns.
If the courts could start over today to design a plan to utilize experts in custody cases, I believe they would create more discretion to seek the specific expertise needed in a particular case. There are many cases in which psychology and mental illness are the key issues, but in other cases expertise in child sexual abuse, substance abuse, medical issues or domestic violence might be more important. The problem is that courts developed their response to domestic violence at a time when little research was available and popular assumptions suggested domestic violence was caused by mental illness or substance abuse. This led courts to turn to psychologists and other mental health professionals as if they were the experts in domestic violence. We now know the original assumptions were wrong, but courts continue to rely on these outdated approaches.
In addition to failing to provide the specialized expertise needed for domestic violence cases, the use of the same small group of experts creates an isolated atmosphere that discourages innovation or integration of new research. Most lawyers and judges have heard the same information their entire careers and this discourages them from focusing on new ideas and knowledge. The problem is compounded by the development of a cottage industry of psychologists and lawyers who have found they can make large incomes by supporting biased approaches that favor abusive fathers. This works because domestic violence concerns control including financial control and so abusers often control most of the family resources. The misinformation and distortions provided by the cottage industry have created a poison in the system that undermines courts’ credibility and effectiveness. Ironically, courts that are skeptical or worse about information from domestic violence experts “because they are always against domestic violence,” often treat biased members of the cottage industry as if they were neutral professionals. Judges would do well to differentiate between objective and subjective opinions. Objective opinions are based on current scientific research while subjective opinions are often based on personal opinions, biases and financial interests.
8. Need for Current Scientific Research: Throughout this article, I have been discussing research from highly credible sources that goes to the essence of the best interests of children. The ACE Studies demonstrate that exposure to domestic violence and child abuse is far more harmful than previously understood and it is the fear and stress that cause most of the damage. At the same time the Saunders’ study proves that many if not most court professionals do not have the specific domestic violence knowledge needed to respond to reports of abuse. More serious consequences and less ability to recognize and believe the abuse is the worst of all possible worlds. Family courts will inevitably continue to ruin children’s lives until a concerted effort is made to integrate important scientific research.
And interesting study by Timothy Baker found that psychologists often do not have strong scientific backgrounds and this leads them to rely on unproven therapies. This may help explain why the courts’ reliance on psychologists has contributed to the failure to take advantage of important research as it comes available. The pilot study led by Joan Meier supports earlier concerns that family courts are getting a high percentage of abuse cases dangerously wrong. The failure to integrate current research is an important contributing factor.
Research involving murders is often the most reliable because there is a body and no one can claim the victim is lying about her death. Even the pattern of child murders by fathers involved in contested custody has not led to the needed reforms. The Bartlow Research found judges in the communities where these tragedies occurred did not respond with necessary reforms because they mistakenly assumed the tragedy in their community was an exception. In one California case, Judge Lemkau was sincerely upset after his decision to give the abusive father access resulted in the murder of Baby Wyatt. The judge said there was nothing he could do based on the information he had at the time. In a sense he was right; as long as courts refuse to update practices to integrate current research, judges will frequently fail to safeguard children they are responsible for. No judge wants to hurt children but the tragedies and the suffering will continue as long as inertia and defensiveness have more influence than current scientific research.
9. Gender Bias: Forty states and many judicial districts have created court sponsored gender bias committees over the last few decades to study bias against women. Although they used different mythology and provided various levels of resources, they found widespread gender bias particularly against women litigants. The studies tended to find that progress had been made in blatant gender bias such as unwanted touching or pressure for dates or sex, but bias during litigation continued in part because it is so easy for powerful men to engage in bias without realizing it. Many of the examples involve the influence of stereotypes such as the expectation that mothers would provide most of the child care. This led to holding mothers to a higher standard. Women are also given less credibility and blamed for the actions of their abusers. Courts have not made preventing gender bias a priority so it is not surprising little progress has been made. The pilot study led by Professor Joan Meier confirms that widespread gender bias still exists. Significantly a gender biased alienation theory is given more weight in family courts than important research like ACE and Saunders; Practices that minimize or deny true reports of domestic violence are further proof of the impact of gender bias.
10. Saving Children Exposed to ACEs: If family courts were truly focused on the best interests of the child, in cases where children have been exposed to adverse childhood experiences, the preeminent question would be: Is there anything we can do now to save the children from the catastrophic consequences from exposure to ACEs? The answer is yes, but it requires approaches that focus on reducing the fear and stress the children are living with because of their exposure to domestic violence and child abuse.
These children will need therapy and medical treatment both for specific problems as they develop and to reduce the fear and stress. They must also be safeguarded from exposure to further abuse because they cannot heal or reduce the stress when they are afraid of further abuse. Unfortunately standard court responses to domestic violence cases demand the opposite of what the medical research says the children need.
Courts continue to pressure victims to co-parent with their abuser and give him at least a veto over medical decisions. Abusers do not want children in therapy where they might reveal the abuse. They also seek to minimize and deny the harm they caused so oppose medical treatment made necessary by their abuse. The Saunders’ Study found abusers use shared decision-making to control their victims but courts continue to promote shared parenting in domestic violence cases. Post-separation violence establishes that men who abuse one partner are likely to abuse future partners. This means that if the abusive father is given unsupervised visitation the children will be exposed to more abuse. The ACE Research establishes this means the children will live shorter lives with a lifetime of health and other problems. Court professionals should ask themselves how this can possibly be in a child’s best interest.
When I attended P.S. 17 there was a sign engraved in the auditorium that said “Knowledge is Power.” For children depending on our custody courts, knowledge is safety. The patterns that are available within cases and among cases as well as current scientific research can be used to give children their best chance for a full and healthy life. This information was not available when courts first developed their response to domestic violence custody cases. But that is no reason to exclude this vital information now.
Our system of jurisprudence is based on the belief that if two parties present their best cases, the truth will emerge. This generally works well and has led our judicial system to be respected around the world. A good case could be made that family court cases involve the most important decisions for our nation because they strongly influence the success of our children. Unfortunately many factors undermine the ability of family courts to make good decisions in domestic violence cases. The judiciary has failed to recognize the problems and the children suffer the consequences.
Domestic violence is about control including financial control. This means the abuser usually has far greater resources. Victims often cannot afford an attorney or lose their representation before the trial starts. Abusers are also more likely to be able to afford expert witnesses and other costs that provide an advantage in litigation.
As the Saunders’ Study found, many court professionals do not have the needed knowledge about domestic violence. This is not a neutral factor that affects the parties equally but rather provides an additional advantage to the parent most likely to harm the children. Even worse, many attorneys fail or refuse to present evidence of abuse because they do not understand the significance, have personal beliefs similar to abusers or believe the judge doesn’t want to hear this information. In some cases they have a conflict of interest where they are afraid that aggressively representing a protective mother as they are ethically bound to do would harm other cases in front of the judge or their career.
And for a variety of historical and other reasons court professionals are not keeping up-to-date on current scientific research. This is profoundly harmful to protective mothers because judges are supposed to use common sense. Unfortunately many aspects of domestic violence are counter-intuitive. These many flaws as applied to domestic violence cases result in courts using misinformation that professionals have heard throughout their careers.
Among the false assumptions that are common include: mothers often make deliberate false reports; the end of the relationship ends the risk; only physical abuse matters; only recent abuse matters; children need both parents equally; domestic violence is caused by mental illness, anger management, substance abuse or the actions of the victim; alienation is more important than domestic violence or child abuse; and a mental health degree provides expertise about domestic violence. Every day these and other false assumptions that any genuine expert would know is wrong are used to justify bad decisions that destroy children’s lives.
The status quo is a disaster for the children. There can be no reasonable objection to courts integrating research like ACE and Saunders or using a multi-disciplinary approach so the courts can benefit from expertise in the specific subjects the case needs. I hope court administrators will start using the research to implement needed reforms, but in the meantime any judge can use the information in this article to better protect children.
Authors express their own opinions which do not necessarily reflect the opinions of the Stop Abuse Campaign.
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