How ‘High Conflict’ approaches by courts obscure the danger to children 

Researchers know that most contested child custody cases are really domestic violence cases involving the most dangerous abusers.

Domestic violence experts know contested custody cases involve the worst abusers; men who believe she has no right to leave. These are the cases where women, children and bystanders lose their lives.

Judges and other court professionals have never developed a practice of listening to researchers and domestic violence experts about potential domestic violence cases. Instead, they assume contested cases are “high conflict” cases and create a false equivalency between abusive fathers and mothers trying to escape their abuse. The mistaken framework strongly contributes to the frequent disasters courts permit.

A father’s abuse of the mother and children was so severe that the court limited him to supervised visits. This is highly unusual because of the strong bias to keeping even dangerous abusers in children’s lives. The abuser sent a chilling note with his child support check.

He said he would kill the mother and children after the next court appearance. That way they would all be together again. The abuser warned the mother not to tell the police because they would not believe her and he would get away with his threats as he had previously. This is the essence of abusers’ motives for seeking custody. She has no right to leave. Public officials won’t take the risk he poses seriously and he has the ability to avoid accountability. 

In contested custody cases, threats by abusive fathers to destroy mothers by taking the children, bankrupting her or killing the family are common. The threats in this case were unusual only because he put it in writing in a form easily proven. Even with damning evidence and the danger of catastrophic consequences, the mother was told to return on Monday before any arrest or prosecution would be considered.

Researchers have learned that most custody cases are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. Overwhelmingly, these are domestic violence cases involving the most dangerous abusers. And ¾ of women murdered by their abusers are killed after she leaves.

Domestic violence advocates look at the patterns in these cases and so have a greater understanding of the risks. This is an important part of their job because safety is their first priority. The Saunders Study from the National Institute of Justice says court professionals need training about risk assessment. Advocates have this knowledge but court professionals rarely do.

In most contested cases, the mother is the primary attachment figure. The abusive father allowed or even demanded the mother provide most of the child care. In any other part of the court system, this would be understood as an admission that the mother is a safe and good parent. 

The mother did not suddenly become unfit because she left her abuser or reported his abuse. A father that loved the children would not risk the harm of separating children from their primary attachment figure. The father’s tactics of trying to minimize the mother’s time with the children says nothing about the mother and everything about the father’s motive for seeking custody despite minimal child care experience. Court professionals using high conflict approaches just assume the father is acting out of love for the children.

We live in a society that tells victims to leave their abusers and blames them for staying. The most common domestic violence question is why did she stay. Increasingly, one of the most important answers is she is likely to lose her children if she leaves. High conflict demands cooperation between the parents so victims are punished for trying to protect their children from fathers they experienced as scary.

The courts use the same practices in the vast majority of cases involving two safe parents as they do in the most dangerous cases. The Saunders Study found many and probably most evaluators and other professionals do not know how to recognize abuse or the harm it causes. The victim’s fear is viewed as an obstacle to shared parenting rather than a warning to avoid an arrangement that is always wrong in abuse cases.

Gender bias: The abusers’ motive is the courts’ blinders

He told his wife that he brought her here from Russia so she has no right to leave. He also said she would never get away from him. This clearly states the typical abuser motivation for seeking custody in contested cases. They often express this privately to their victim when she is thinking of leaving, but rarely admit it to the court as this abuser did.

This admission should have made it easy for the judge and other court professionals to recognize the risk he posed. The judge in the case often bragged about his domestic violence expertise but claimed he didn’t even know this was a domestic violence case. Sexism and gender bias permeated the judgment of the judge and other professionals in the case and this contributed to the failure to learn from the abuser’s admission.

Shockome was a New York State case where a court-sponsored gender bias committee had recently confirmed widespread gender bias particularly against women litigants. The Committee on Women in the Courts found that mothers faced a higher standard of proof, less credibility and were blamed for the actions of their abusers. This case featured all three examples of gender bias.

The Saunders Study would later establish that court professionals without the needed domestic violence knowledge tend to focus on the myth that mothers frequently make false reports of abuse. This was a major focus of the court even before any evidence was presented. The mother had been pressured to accept shared parenting with her abuser. When the mother was forced to obtain a protective order after the father’s continued abuse, she was the one blamed for interfering with the arrangement the judge demanded. 

The unqualified evaluator used the normal probability standard of proof for the father, but held the mother to a higher certainty standard. On cross-examination, the evaluator admitted the father probably abused the mother throughout the relationship; the children probably witnessed his abuse and the mother’s PTSD was probably caused by the father’s abuse. This was not considered sufficient to protect the mother and children as long as the father denied his abuse.

The judge gave custody to the father based on a sexist alienation theory and allowed him to move with the children to Texas. By the time the courts in Texas could take jurisdiction it was too late to save the children. The court ordered custody for the mother and therapeutic visitation to repair the damage caused by the father. The effort had to be abandoned because the relationship could not be salvaged. 

The father’s admissions demonstrated his motive to use custody to punish the mother for leaving. He succeeded by poisoning and alienating the children from a mother they previously enjoyed a close relationship with. This was real alienation and not the bogus kind courts so often rely on.

Children can’t live with high conflict approaches

The judge in the Kayden Mancuso case was a strong supporter of the high conflict approach. He also had little experience in family law matters and knew next to nothing about domestic violence. The father had a long history of violence and abuse. Seven-year-old Kayden expressed her fear of visiting her father after she witnessed his assault on a family member.

The judge viewed Kayden’s fear as an obstacle to the preferred shared parenting relationship instead of a warning it was a bad idea. Unaware of domestic violence dynamics or the pattern of abusers hurting and killing children as the best way to hurt the mothers; the judge said the father’s abuse of the mother said nothing about how he would treat his daughter.

The mother asked that any visitation be supervised in order to protect Kayden. Based on the high conflict approach, the judge assumed both parents were equally responsible for the problems in the family. The father used the access provided by the judge to murder Kayden. He then left a note on her body saying the mother deserved this before killing himself.

The judge and the local court system were saddened by the tragedy, but not enough to learn from their errors or investigate needed reforms. The influence of high conflict was so strong that the judge continued to blame both parents equally for the tragic events. None of the court officials figured out that the father’s note revealed his motive and demonstrated they fundamentally misunderstood the case.

Conclusion

High conflict is a tool courts are using with rules about how to respond to contested cases. Unfortunately, it points courts in the wrong direction. Most contested custody cases involve domestic violence in which abusive fathers are seeking to manipulate the court in order to regain what they believe is their right to control their victims. High conflict assumes both parties are safe parents and equally beneficial for the children. The approach blames and punishes victims when they try to limit contact with a man they have experienced as frightening.

Instead of erring on the side of protecting children, high conflict errs on the side of risking children. Judges would be the first ones to tell us that they must look at each case individually and so cannot make rulings based even on good research that most contested cases involve abusive fathers. Few judges, lawyers or evaluators have the domestic violence knowledge recommended by Saunders and needed to recognize and respond effectively to domestic violence cases. This means they have no ability to recognize when the direction promoted by high conflict approaches is wrong.

When I was a boy, thinking about becoming a lawyer, I enjoyed watching Perry Mason episodes. Inevitably, they would focus on the killer’s motives. Other parts of the legal system still do, but not the custody courts. The unspoken assumption of high conflict approaches is that the father is acting out of love for the children and the mother is acting from anger at the end of the relationship. 

Custody courts need to consider what is the real motivation of the parties. This can be difficult to understand because abusers usually seek to hide their motives and most court professionals do not understand domestic violence dynamics or batterer narratives.  

In this article, I discussed three cases in which the abusers clearly revealed their motives. This should make it easy for the court to recognize the father is an abuser and this is what the mother is attempting to escape. The Shockome case and Kayden murder involved particularly bad judges. They had no ability to move beyond the mistaken assumptions in the high conflict approach even in the face of direct admissions. In Kayden’s case even the note on the lifeless body of an innocent child failed to help the judge understand the father was solely responsible.

In most cases, the abuser’s motives will not be as obvious or directly stated. Courts will need to consider the context and evidence to recognize his purpose. Why is he claiming the mother is unfit after wanting her to provide most of the child care during the relationship? Why would he spend more money fighting support or a child’s expenses than the amount at issue? Why does he seek time with the child when he is unavailable? What is he doing to reduce the fear and stress of the child and the mother the child depends on? Which parent is afraid of the other? Typically, abusers seek custody to pressure the mother to return or punish her for leaving. Is there evidence that would support this scenario?

The high conflict approach pushes court professionals in the least likely direction. It provides rules to follow that too often serve as a substitute for the evidence or a consideration of the motives. Many judges would have been able to make the right decision in the extreme examples I provided in this article.

I find it frightening that children’s lives could be ruined even in cases where the court knows the cruel motives of an abusive father. The high conflict approach makes it possible for courts to get even the easiest cases wrong. This leaves little chance for courts to protect children when the father hides his motive and the court does not possess the needed domestic violence expertise to recognize the danger. Our children deserve a better approach.

Barry Goldstein
Barry Goldstein

Research Director

Barry Goldstein is a nationally recognized domestic violence author, speaker and advocate.
Barry has written some of the leading books about domestic violence and custody.
Authors express their own opinions which do not necessarily reflect the opinions of the Stop Abuse Campaign.
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