Family Courts: They Hurt Children
By Barry Goldstein
Protective mothers and the professionals who have sacrificed so much to support them have said for years that the flawed practices in family courts hurt children. Most court officials have reacted defensively, often responding with victim-blaming approaches. Over the years more and more research has become available that supports protective mothers. We have now reached a point where the evidence is overwhelming and the scientific findings, which come from the most credible possible sources, are incompatible with any belief that the courts are effectively protecting children. The problem is complicated, but so many of the standard practices give court professionals little chance to recognize and respond effectively to domestic violence and child abuse cases that give courts so much trouble.
Adverse Childhood Experiences (ACE) Studies
ACE is medical research from the CDC so is highly credible. The fundamental finding is that exposure to domestic violence and child abuse is far more harmful than previously understood. Most of the damage comes from living with the fear that leads to a lifetime of health and other problems. The research also established that about one-quarter of children in the United States will be sexually assaulted by the time they reach 18.This means:
When courts try to resolve domestic violence custody cases without using the ACE Research, THEY HURT THE CHILDREN.
When courts focus only or primarily on physical injuries, THEY HURT THE CHILDREN.
When courts use approaches that ask victims to just “get over it.” THEY HURT THE CHILDREN
When courts discourage and disbelieve reports of child sexual abuse, THEY HURT THE CHILDREN.
When courts fail to create arrangements that give children exposed to ACEs the best chance to heal and reduce their stress, THEY HURT THE CHILDREN.
The Saunders’ Study
The Saunders’ Study comes from the National Institute of Justice in the US Justice Department. The purpose was to determine the knowledge about domestic violence of evaluators, judges and lawyers. Saunders found that these professionals need not just generalized training in domestic violence but specific knowledge that includes screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Professionals without this training tend to focus on the myth that mothers frequently make false reports and rely on unscientific alienation theories. These mistaken beliefs lead to decisions that hurt children.
The Saunders’ Study found that DV advocates are the professionals most likely to have the specific knowledge concerning domestic violence that courts need. This is one reason that a multi-disciplinary approach works better for children instead of just relying on mental health professionals. “Harmful outcome” cases in which the alleged abuser wins custody and the safe, protective mother who is the primary attachment figure is limited to supervised or no visitation is always against the well-being of children. Courts tend to pay more attention to mothers’ emotion and anger all out of proportion to what it says about their parenting. Shared parenting is never appropriate in domestic violence cases because abusers use decision-making authority to control their victims and visitation exchanges to harass or even assault their victims. This means:
When courts attempt to adjudicate domestic violence cases without an understanding of the Saunders’ research, THEY HURT THE CHILDREN.
When courts rely on professionals who discredit reports of abuse based on common non-probative information, THEY HURT THE CHILDREN.
When courts fail to look for the pattern of abuse, THEY HURT THE CHILDREN.
When courts rely on professionals without the specific knowledge Saunders found the court needs, THEY HURT THE CHILDREN.
When courts are influenced by the myth that mothers or children frequently make false reports of abuse, THEY HURT THE CHILDREN.
When the courts rely on unscientific alienation theories, THEY HURT THE CHILDREN.
When courts believe that mothers trying to protect their children from fathers they have experienced as abusive are harming the children, THEY HURT THE CHILDREN.
When the court assumes the end of the relationship means the abuser is safe, THEY HURT THE CHILDREN.
When courts believe responses like therapy, anger management or substance abuse treatment can effectively respond to the father’s history of abuse, THEY HURT THE CHILDREN.
When courts fail to understand that only accountability and monitoring have been shown to change abusers’ behavior, THEY HURT THE CHILDREN.
When courts assume that if a child appears to be doing well on the outside, the abuse reports must be wrong, THEY HURT THE CHILDREN.
When courts try to respond to abuse reports without a risk assessment, THEY HURT THE CHILDREN.
When courts assume the mother caused the father’s abuse or any other victim-blaming approaches, THEY HURT THE CHILDREN.
When courts fail to include experts in domestic violence and child sexual abuse in appropriate cases and professional training, THEY HURT THE CHILDREN.
When courts create or maintain “harmful outcome” cases, THEY HURT THE CHILDREN.
When courts seek to punish or silence protective mothers, THEY HURT THE CHILDREN.
When courts use high conflict approaches before determining if it is really an abuse case, THEY HURT THE CHILDREN.
When courts give alleged abusers the access they need to silence the child before abuse reports can be determined, THEY HURT THE CHILDREN.
When courts allow or even worse pressure the parties in domestic violence cases to agree to shared parenting, THEY HURT THE CHILDREN.
When courts pressure alleged victims to cooperate with their abuser instead of pressuring the abuser to stop his coercive and controlling tactics, THEY HURT THE CHILDREN.
When courts treat a mother’s fear or anger as if it says something negative about her parenting, THEY HURT THE CHILDREN.
When courts rely on professionals who make most of their income helping abusers, THEY HURT THE CHILDREN.
The Bartlow Study was a follow-up of news stories concerning the murder of 175 children involved in contested custody in a two-year period. Dr. Bartlow and her students interviewed judges and court administrators in these communities. The judges tended to be the most knowledgeable about domestic violence and often spoke eloquently about the response to abuse. When asked what the community had done to reform practices in response to the tragedy they said nothing because they assumed the murder in their community was an exception. The study demonstrates the problem when courts fail to look for patterns both within and among cases and have no methodology to correct flawed practices even when they lead to the death of a child. Another study from the Center for Judicial Excellence found over 600 child murders in contested custody cases in the last ten years. This means
When courts try to respond to domestic violence cases without an understanding of domestic violence dynamics THEIR DECISIONS MAY KILL CHILDREN
When courts try to understand alleged abusers without familiarity with research on batterer narratives THEIR DECISIONS MAY KILL CHILDREN
When courts maintain confidence in outdated and discredited practices in the face of child murders THEIR DECISIONS MAY KILL CHILDREN. And the same practices that lead to child murders more often result in ruining children’s lives and forcing children to suffer pain, stress and abuse.
Forty states have created court-sponsored gender bias committees that have found widespread bias against women and especially women litigants. Protective mothers are routinely given higher standards of proof, less credibility and are blamed for the actions of their abusers. The courts have failed to introduce systematic training and changes to prevent gender bias and so it continues. Professor Joan Meier is working on a study for the National Institute of Justice that will help establish the frequency that courts make dangerous decisions in abuse cases. One of the clear findings from the pilot study confirms that gender bias continues to be prevalent. Similar findings for mothers and fathers result in decisions far more favorable to fathers. Gender bias is especially difficult to prevent because most of the time it is unintentional and unconscious. Often it is caused by reliance on stereotypes. Good people including women frequently engage in gender bias without realizing it, but defensiveness makes it harder to recognize and discourages discussion. The Bala Study found that in the context of contested custody, mothers make deliberate false reports less than 2% of the time. Nevertheless many court professionals continue to be influenced by the myth of frequent false reports. Often the mistaken assumption is self-fulfilling. This means
When courts fail to guard against gender bias: THEY HURT THE CHILDREN.
When the courts blame mothers for their normal response to the father’s abuse: THEY HURT THE CHILDREN.
When courts require criminal convictions or CPS findings before responding to abuse: THEY HURT THE CHILDREN.
When courts give more credibility to men than women: THEY HURT THE CHILDREN.
When courts use silencing or retaliatory tactics against mothers: THEY HURT THE CHILDREN.
When courts try to justify past mistakes despite new evidence: THEY HURT THE CHILDREN.
Saving Children: The Safe Child Act
The television show MASH included an episode in which a pilot told Hawkeye how much he liked his job because he would just fly out, drop his bombs and get home with the rest of the day to enjoy. The doctor asked him to watch a surgical session in which they were operating on young children severely injured as a result of bombs. The pilot asked which side’s bombs caused the injuries and Hawkeye asked what difference it made. The pilot said it matters and Hawkeye responded not to the children.
We often have discussions about the cause of the failure of family courts to protect children. Some want to blame corruption or bad judges, but all too often it is judges who want to help the children that make decisions that ruin their lives. It is worth understanding why the courts so often make dangerous decisions, but like MASH, the cause doesn’t matter to children sentenced to more abuse and despair.
Stopping the bad decisions so children can be safeguarded is what is important. The Safe Child Act is a comprehensive approach based on current scientific research that would make family courts safe for children. The Safe Child Act would require that the health and safety of children must be the first priority for all custody and visitation decisions. The courts would be required to integrate current scientific research like ACE and Saunders. They would also use a multi-disciplinary approach that would include domestic violence and child sexual abuse experts when that was the focus of the case. There would be an early hearing limited to the issue of domestic violence and child abuse. And court professionals would receive training and retraining so they can better recognize and respond to domestic violence. This means
When courts focus on health and safety issues: THEY CAN SAVE CHILDREN
When courts integrate current scientific research they can better recognize and respond to domestic violence so THEY CAN SAVE CHILDREN.
When courts use a multi-disciplinary approach they can avoid professionals without the needed abuse expertise and focus on the issues they need help with so THEY CAN SAVE CHILDREN.
When courts create an early hearing limited to abuse issues, cases that now take many months or years can be resolved in a few hours saving enormous financial resources and improving the decisions so THEY CAN SAVE CHILDREN.
When court professionals receive new training based on current scientific research and learn to stop using outdated and discredited practices from the 70s: THEY CAN SAVE CHILDREN.
There is now a specialized body of research and knowledge that can be used by the courts to better protect children. This is important because the old practices that were adopted at a time when no research was available tilt family courts towards supporting abusers and risking children. Ignorance is not neutral because it favors the side that hurts children. There are many factors that support the inertia that maintains failed practices. The courts can use the specialized knowledge from highly credible sources to improve their practices so they can STOP HURTING CHILDREN.
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