Are our family courts really protecting the best interests of the child?
The ACE (Adverse Childhood Experiences) Studies are often compared to the Surgeon General’s Report linking smoking and cancer because they both present highly reliable medical research that can be used to save millions of lives, and trillions of dollars and improve the quality of our lives. Society responded to the Surgeon General’s report by implementing a variety of sensible measures to discourage and prevent smoking, and this earned enormous benefits for the public.
The lead author of the original ACE Study says that prevention is also the best use for his research. We can enjoy even more significant benefits than we accomplished by discouraging smoking by using best practices to prevent domestic violence and child abuse. The family courts must play an influential role if the full benefits of the ACE Research are to support the child’s best interests.
Domestic violence is fundamentally different from most other crimes because, until recently, behavior that is now considered domestic violence or child abuse was tolerated or even encouraged. This means it is especially important to send strong messages these harmful actions are no longer permitted and to avoid responses that tend to minimize or deny true reports of abuse. Family Courts developed responses to domestic violence when no research was available, and popular assumptions suggested domestic violence was caused by substance abuse, mental illness, and the victim’s actions. This led courts to rely on mental health professionals as if they were the experts. Later research demonstrated the original assumptions were wrong, but for whatever reasons, the courts have been slow to integrate current scientific research that would make it easier to recognize and respond to true reports of abuse so that decisions could be made that reflect the best interests of the child and better protect children.
In the last ten years, over 600 children involved in contested custody have been murdered, primarily by abusive fathers.
Most child custody cases are settled amicably because both parents love their children and are willing to sacrifice personal interests for the well-being of their children. The problem is 3.8% of cases that require trial and often much more. A large majority (75-90%) are domestic violence cases involving the most dangerous abusers. These fathers believe the mother has no right to leave, so they are entitled to use any tactics necessary to regain what they believe is their entitlement to control their partners.
Inadequately trained professionals often fail to recognize the danger because most fathers have not committed the most severe physical assaults. But these abusers are willing to hurt their children by taking them from mothers who are usually the primary attachment figures, abusing the children, and in extreme cases, killing them. Courts rarely look for patterns to help understand domestic violence, but in the last ten years, over 600 children involved in contested custody have been murdered, primarily by abusive fathers.
Courts need to treat domestic violence cases differently because they are the most dangerous for children.
These are the most dangerous cases. Unfortunately, many court professionals have been taught to treat contested cases as “high conflict,” which mistakenly assumes both parents are acting out of anger towards each other and hurting the children. This leads to responses that pressure victims to cooperate with their abusers and punish them for trying to protect their children.
The most extreme abusers have been assisted by “fathers’ rights” groups and a cottage industry of lawyers and mental health professionals who have learned the best way to earn significant incomes is to promote approaches that favor wealthy abusive fathers. This works for the professionals because domestic violence is based on control, including economic control, so the abusers usually control most of the family resources.
The lesson for the courts ought to be that they need to treat domestic violence cases differently because they are the most dangerous. At the same time, the contested cases are a small percentage of all cases, so courts can make the changes necessary to protect children without disrupting their whole system. They must, however, integrate current scientific research like ACE and Saunders or they will continue destroying children’s lives.
The original ACE Research considered ten everyday adverse childhood experiences. These included three forms of child abuse, physical, sexual, and emotional, two forms of neglect, physical and emotional, and five household problems, including separation of parents, domestic violence, mental illness, incarceration, and substance abuse. The researchers were counting each ACE rather than each incident.
Domestic violence is central because it constitutes one ACE and causes emotional abuse to children, a second ACE. Men who abuse women are 40-60% more likely to abuse children physically and sexually, and domestic violence makes child neglect more likely. The other ACEs are all more likely in homes where men abuse women. One of the most crucial ACE study findings is that fear leading to stress rather than physical injuries cause most of the damage. The essence of domestic violence is that abusers use a variety of tactics to coerce, scare and intimidate the victim into doing what the abuser wants. The fear engendered in both the mother and children causes a lifetime of health and other problems.
Exposure to ACEs causes far more harm than previously understood. Older estimates suggested the United States was spending $5-8 billion on health costs related to domestic violence, but this was only considering treating the immediate wounds. We now know the total annual cost is about $750 billion, including all the long-term consequences of living with fear and stress. This means custody courts and other agencies focused on only one percent of the problem.
The annual cost of domestic violence is about $750 billion annually.
Cases where children have been exposed to ACEs are critically important because the custody case is often the last chance to protect children from the awful consequences. Exposure to ACEs reduces life expectancy and causes a lifetime of health and social problems. The critical question for the court is whether there is anything we can do now to save the children?
Doctors working with the ACE Research say the children can be saved, but it requires two responses that standard court approaches to abuse cases often prevent from happening. The children will need medical treatment and therapy to respond to problems as they develop and reduce stress. This means the safe parent must control health decisions because abusers do not want children in therapy where they might reveal the abuse. Children cannot be exposed to further abuse, or else they cannot heal. Any visitation must be supervised until and unless the abuser can demonstrate changed beliefs and behavior.
The Saunders’ Study
Courts turned to mental health professionals for expertise regarding domestic violence based on assumptions that turned out to be wrong. Mental illness does not cause domestic violence, and children exposed to abuse often do not act out in obvious ways. Mental health degrees, like legal degrees, do not include training in domestic violence. Many of these professionals have taken some workshops or other training in an attempt to learn about domestic violence. The Saunders’ Study was commissioned by the National Institute of Justice to determine whether evaluators, judges, and lawyers have the necessary knowledge to respond effectively to domestic violence custody cases.
Saunders’ found that court professionals need specific knowledge that includes screening for domestic violence, risk assessment, post-separation violence, and the impact of domestic violence on children (ACE). The training provided to court professionals often does not include these specific topics, and even when they do, some professionals pay little attention because they think they already know everything. Most of the training does not even include domestic violence advocates.
Many of the professionals who participated in the Saunders’ Study admitted they did not have the specific knowledge needed, and when tested, many who claimed the necessary knowledge were wrong. Some evaluators who claimed to screen for domestic violence said they did this using psychological tests. The problem is that these tests provide no information about domestic violence. Evaluators in the study were asked to make recommendations concerning vignettes provided by the study. Their response demonstrated that many who claimed adequate knowledge made dangerous errors. Although the participants volunteered, so it was not a random sample, it appears most professionals do not possess the specific knowledge needed to respond to domestic violence custody cases. Other research supports this conclusion. The best interests of the child must start with the child’s health and safety.
The Saunders study found that professionals without the specific knowledge recommended by Saunders tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. These mistaken beliefs lead to recommendations and decisions that harm children. Many of the worst decisions made in family courts focus on these mistaken beliefs. Researchers rarely see courts treat the focus on mistaken beliefs or failure to use current research such as ACE and Saunders as indications that the evaluators are unqualified.
Especially helpful and revealing was a section about what Saunders called “harmful outcome” cases. These are extreme decisions in which the alleged abuser wins custody, and a safe, protective mother who is the primary attachment figure for the child is limited to supervised or no visitation. Saunders found that these decisions are always wrong because the harm of denying children a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem, and suicide is more significant than any benefit the court thought it was creating. One reason for the mistake is the courts rarely compare the known risk of separating children from their primary parent with the often-speculative risk they are using to justify the extreme decision. Saunders found harmful outcome cases are caused by the use of flawed practices.
Saunders’ found that domestic violence advocates have more of the specific knowledge courts need to respond to domestic violence custody cases than the professionals courts rely on. The clear implication is that courts should use a multi-disciplinary approach.
The study also found that courts are not limiting abusers to supervised visitation as often as would benefit children. Shared parenting is harmful in domestic violence cases because abusers use decision-making to regain control over victims by refusing to agree on any decision unless it is their choice and using visitation exchanges to harass or even assault their victims. Saunders also found court professionals treat mothers’ anger and emotion out of proportion to what it says about their parenting ability.
25 Common Dangerous Mistakes Caused by Failing to Use Current Research
- Asking abuse victims to just “get over it.”
- Minimizing the entire harm caused by domestic violence and child abuse.
- Assuming the end of a relationship ends the risk from an abuser.
- Assuming abuse that is not recent has little impact on children.
- Focusing only on physical abuse.
- Failure to understand the significance of the fear and stress caused by abuse.
- Failure to focus on the assistance and protection children need to heal from exposure to abuse.
- Mistaken assumptions that very young children cannot be harmed from witnessing domestic violence.
- Pressuring victims to interact and cooperate with their abusers.
- Failure to use a multi-disciplinary approach to domestic violence and child abuse cases.
- Using non-probative factors like returning to an alleged abuser, not following up on a request for a protective order, or failing to have police or medical reports to discredit reports of abuse.
- Failure to look for a pattern of coercive and controlling behavior to recognize domestic violence.
- Failure to consider which party is afraid of the other in adjudicating domestic violence.
- Failure to guard against the ability of abusers to manipulate witnesses and professionals.
- Failure to consider factors associated with a higher lethality risk in resolving domestic violence.
- Failure to consider an alleged abuser’s past and future relationships when investigating reports of domestic violence.
- Treating an alleged abuser’s good behavior in public as if it provides proof of his behavior in private.
- Treat evaluators who fail to discuss ACE and Saunders or are unfamiliar with the research as if they are qualified to respond to domestic violence cases.
- Treating any professional who recommends a harmful outcome case as if they are qualified to respond to domestic violence cases.
- Failure to discuss which parent is the primary attachment figure and how that affects the children regarding the possible outcomes.
- Failure to guard against gender-biased approaches and assumptions.
- Failure to understand the importance of holding abusers accountable.
- Recognizing that court professionals that focus on the myth that mothers frequently make false allegations or unscientific alienation theories reveal more about their lack of qualifications for domestic violence cases than the circumstances.
- Failure to understand that child sexual abuse is far more common than previously realized, and most abuse is committed by someone the child knows.
- Assumptions that men who are successful in other parts of their lives are unlikely to abuse women and children.
Custody cases involving reports or evidence of domestic violence or child abuse are often the last chance to save children from the catastrophic consequences of exposure to adverse childhood experiences. Current scientific research would make this difficult and important job so much easier.
The ACE study comes from the Centers for Disease Control and Prevention and Saunders from the National Institute of Justice in the United States Justice Department. It is hard to imagine why court officials have been slow to integrate this highly credible research. The ACE study demonstrates that exposure to domestic violence is far more harmful than previously understood. Saunders demonstrates that many and probably most of the professionals in the courts rely upon denying and minimizing true reports of domestic violence because they do not have the specific knowledge needed. The evaluators often focus on less important issues because they do not know how to screen for domestic violence.
Many court administrators would claim they are already using best practices. The highly respected National Council of Juvenile and Family Court Judges has encouraged its members to use the ACE study and Saunders for many years. Some judges and other court professionals already use these best practices. And yet the common mistakes are committed frequently. Ignorance of this research is not neutral because it applies to both parties. The inability to recognize abuse and the tendency to minimize the risk help abusers and harm children.
There is no good reason to continue outdated practices that endanger children. The dangerously slow integration has been caused by defensiveness, inertia, lawyers and evaluators who profit from present practices, and a reluctance to accept the enormous harm present practices are causing.
The ACE study is exciting because it shows how we can use knowledge to reduce cancer, heart disease, diabetes, mental illness, crime, suicide, substance abuse, and many other health and social problems.
Family courts must stop being an impediment to this progress. Surely the best interests of the children require practices that save children from these scourges.
Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.