Imagine what a safe family court might look like
When I was in college, I did a project based on the concept of Utopia. I read several books about literary utopias and reviewed some attempts at real-life utopias. It was fun to imagine what a good community would be like.
Family courts developed their response to domestic violence at a time when no research was available. The initial assumptions proved wrong, but the courts have continued on with the flawed practices causing children to suffer. They don’t seem to have a mechanism to integrate current research to improve their approach. Scientific research now confirms family courts are getting most abuse cases wrong. With so many people sidelined because of the Coronavirus, this would be a great time to create the needed reforms. So, let’s imagine what it would look like if the court administrators updated their practices and made the courts safe for children.
Safe Family Courts
The improvements would start even before the parties entered the courtroom. Cases would be screened. The parties would fill out forms that specifically asked about any history of domestic violence (DV) including a pattern of non-physical control tactics. They would also have to reveal any protective orders or criminal charges. Cases that might involve domestic violence would be heard in a special section. The judge and other court professionals would have special training in abuse issues and the focus would be on making sure children are protected.
During the first court appearance, the judge would ask questions to determine the context of the dispute. What were the child care arrangements during the relationship? If the mother provided most of the child care and the father claims she is unfit, the court would ask how she became unfit in the short time since the relationship ended. If the father does not have a good answer, his motives will be understood. If there is good reason to believe there is a history of domestic violence the alleged abuser will need to complete an accountability program before unsupervised visits can be considered. The program will teach about Adverse Childhood Experiences (ACEs) and the harm to children from witnessing abuse.
These cases will have been screened so there is a strong chance one of the parents engaged in domestic violence and/or child abuse. Unless the indications of abuse prove wrong or the parties settle, the court will quickly schedule an evidentiary hearing limited to abuse issues.
Mothers involved in contested custody make deliberate false reports less than two percent of the time. Most court professionals are unaware of this finding and the Saunders Study found professionals without specific domestic violence knowledge tend to focus on the myth that mothers frequently make false reports. This mistaken assumption often causes courts to disbelieve true reports of abuse and therefore place children in jeopardy.
The fact that most abuse reports are true does not mean the court can assume it is true in an individual case. The parent reporting abuse has the burden to prove it by a preponderance of the evidence. This will be easier to do without distractions that seek to decontextualize the circumstances and confuse the court. This hearing will resolve most of the cases because mothers rarely make deliberate false reports. In these cases, the protective mother will be awarded custody and the abusive father would initially be limited to supervised visitation. In the rare cases where the mother is the abuser, the opposite arrangement would be ordered.
This means that cases that now take many months or years and cost tens if not hundreds of thousands of dollars can be resolved in a few hours. Understanding the nature of these cases, judges will be more likely to require the abuser to pay all expenses including legal fees. This can be ordered at the start of the case so that both parents have an equal opportunity to present their case effectively.
If the abusive father wants to obtain unsupervised visitation, he will have to complete an accountability program. After completing the program, the abuser will have the burden to prove it is safe for him to have unprotected visitation. Judges will have learned that behaving appropriately during the program and during supervision does not prove he will act safely when alone with the children.
In determining visitation, the court will consider: does the father accept sole responsibility for his abuse; does he understand the harm he causes to the children; is he committed to never abuse anyone again; and does he understand any future abuse could end his relationship with the child.
In the rare cases in which the early hearing does not resolve the dispute, the court will continue as it would in other cases. The court will continue to consider the abuse issue as new evidence may become available or abuse might continue, possibly in other forms that help the court understand the circumstances. If the court determines that the mother deliberately made a false report, the judge will weigh the harm from the false reports with the harm of denying a child a normal relationship with their primary attachment figure. The court will consider all the factors to determine the best interest of the child.
The Court Professionals
The judges would be completely retrained and the best judges would be used for the court part that responds to DV custody cases. All judges would learn about ACE, Saunders and other scientific research. They would be trained in the subjects Saunders says are needed for DV cases. This includes screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. They would also learn about DV dynamics and batterer narratives. Special training and emphasis would be made to stop gender bias and encourage open discussion about this problem.
Particularly important is the judges would learn to avoid the misinformation they have heard throughout their careers. Judges need to know that children do not need both parents equally. They need their primary attachment figure more than the other parent and the safe parent more than the abusive one. Children would be harmed if they lost their relationship with an abusive parent but they would be hurt much more to continue the relationship with an abuser. Courts should require abusers to change their behavior if they want a relationship with their children.
Mental health professionals would see a much-reduced role in family court even after they get the training they are missing. The early hearing would be held without the need for an evaluator because we know the proper outcome if one of the parents is abusive. They could be used in cases that include mental illness and domestic violence but a DV expert would also be involved. Parent coordinators would no longer be used in abuse cases because these families should not be co-parenting. The coordinators could be used in cases that do not involve abuse. The cottage industry that makes large incomes promoting approaches like unscientific alienation theories that are designed to help abusers would need to find new work.
The cottage industry would no doubt be angry about the reforms, but their only role has been to harm children. There will be an expanded role for trauma-informed mental health professionals. Children exposed to ACEs will need therapy and the family courts would be encouraging this needed treatment and requiring the abusers who caused the need to pay for the therapy.
Lawyers will need training and retraining like the other court professionals, but I believe the biggest difference will come from judges taking domestic violence and child abuse more seriously. Protective mothers justifiably complain that their attorneys refuse to advocate for them. I believe the perception that judges don’t want to hear about abuse is the main reason lawyers are reluctant to present evidence of abuse.
In other legal fields, attorneys spend enormous time and effort to learn technical details to help present their client’s case. They often know as much as the experts they need to cross-examine. Therefore, it is surprising that few attorneys have taken the time to learn about domestic violence even when it is the most important subject of many of their cases.
When judges focus on identifying abuse and protecting children, the attorneys will suddenly have a great interest in domestic violence. Perhaps my book with Elizabeth Liu, Representing the Domestic Violence Survivor will enjoy sudden popularity. When lawyers learn about DV and present the evidence effectively, it will be easier for courts to recognize true reports of abuse.
Widespread Benefits from Family Court Reform
The direct impact from family courts implementing best practices is that they will stop forcing children to interact with dangerous abusers. This means there would be a dramatic reduction in child murders that are presently being committed at a rate of over 70 per year. Abusers could no longer use co-parenting to block decisions affecting children, particularly the need for therapy and other medical treatment. Children exposed to ACEs would be able to heal from the trauma and stop living with the fear and stress that causes a lifetime of hardships.
Abusive fathers seek custody as a tactic to regain control over their victims and punish her for leaving. The widespread failure of family courts to recognize domestic violence and the motives of abusers have undermined domestic violence laws and earlier success in reducing domestic violence homicide. Successful responses to domestic violence included practices that made it easier for victims to leave their abuser. Increasingly, the answer to the question of why does she stay includes the danger of losing children to the broken custody court system.
A study for the County Legislature in Dutchess County, New York found that the flawed and biased family court practices contributed to a series of DV homicides in the county. Many victims chose not to use the courts because a judge helping the abuser made the situation much more dangerous. Mothers stayed with their abusers and accepted his beatings in order to be near their children to try to protect them. Some women did not survive this decision.
The murders of protective mothers go to the essence of the domestic violence movement but many DV organizations have failed to make child custody the priority it deserves. Family court reform would prevent many of these tragedies. Research demonstrates that only accountability and monitoring are effective in changing abusers’ behavior. This is the message family courts would be sending. Fathers who really want a relationship with their children would choose to stop their abuse. The others would stop going to court because they would be punished instead of rewarded for their despicable tactics. Boys who are protected by the courts would be less likely to grow up to abuse their partners.
The benefits from family court reform are far broader because present practices undermine the work to prevent domestic violence. The United States presently spends over one trillion dollars annually in order to let abusers prey on their victims. Much of the cost is from health costs and crime. Saving children from living with the fear and stress abusers cause saves a lifetime of health expenses. The children are also less likely to make poor choices like substance abuse and crime.
Best of all is freeing up the potential of women and children caught up in the broken custody court system. Many victims never reach their full potential because of the trauma the courts force them to live with. Many would have successful careers that help grow the economy. Some might create new businesses or industries. Some might make scientific and medical discoveries that benefit everyone.
If the reforms had come sooner, one of the children whose life was ruined when their abuser won custody might have invented a cure for Coronavirus. The harm of failing to protect children is unlimited, but so are the opportunities if we unshackle our children’s potential.
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Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.