The Health and Safety of Children

Why Family Courts Need the Safe Child Act

Two sisters were about a year apart in age. Their abusive father complained that the mother dressed them alike as if they were twins. The father claimed this was psychologically harmful and their clothes became his prime justification for seeking custody. When the girls spoke with the judge, they told him they saw their father take a large knife to their mother’s throat. The judge decided their dress was more important and awarded custody to the father. We could not appeal because judges are given complete discretion in determining what custody factors are most important.

The legal establishment does not see the need for court reform because the professionals earn a good living and they rarely see or recognize the harm they cause to children. Some protective mothers actually oppose the Safe Child Act because they believe the courts are deliberately corrupt and the reforms in the legislation won’t make any difference. The naysayers fail to understand how requiring the health and safety of children as the first priority will fundamentally change the courts’ response to domestic violence and child abuse custody cases.

The courts know they need to protect children’s safety even if they don’t always know how to recognize incidents of abuse or potential danger. If a court believes a child is being severely assaulted or denied necessities like food or medicine, they will usually intervene to protect the child. If an abuser claims an assault was for legitimate discipline, the court will usually seek to determine if the assault was illegal. The problem is that legal discipline is often dangerous for the child’s health in addition to the risk of physical injuries. Adding the requirement to make health in addition to safety the first priority changes the discussion completely.

Health Issues Force Courts to Consider Adverse Childhood Experiences

One of the many problems with the system of evaluations by mental health professionals is that they are trying to determine how are the children doing. The assumption is that if the children are exposed to abuse, they will act out in obvious ways. Some children do, but many use a variety of defense mechanisms so that the harm is not obvious to an outsider. Then when children are having obvious problems, evaluators will sometimes attribute it to the parent’s separation instead of abuse issues.  The Adverse Childhood Experience (ACE) Study tells us that exposure to abuse will be harmful now, in the future, or both.  

In the present system a bogus theory based on no research, but the belief that sex between adults and children can be acceptable has more influence than important research studies like ACE and Saunders that are peer-reviewed and come from the most credible sources. This means many courts treat alleged alienation as if it were more harmful to children than domestic violence or child abuse.

ACE tells us that children exposed to DV and child abuse will live shorter lives and suffer a lifetime of health and social problems. This goes to the essence of the best interests of children and nothing short of immediate physical danger is more important if the courts seek to protect children. Including the health of children as a first priority forces courts to consider the ACE Research. They should have done this long ago because it will so fundamentally change standard responses to domestic violence and child abuse. Many of the standard practices have been proven wrong by ACE and will have to end when the Safe Child Act passes.

One of the fundamental findings in ACE is that most of the harm is caused by the fear and stress living with an abuser causes. This means that practices that consider only or mostly physical abuse must end. Practices that limit the time period that abusive tactics can be considered cannot continue. Accordingly, the court will have far more incidents available to consider so they can understand the pattern of abuse and it will be easier to recognize the motives of the abuser. This will include tactics that are continuing such as litigation and economic abuse. The continuation of abuse tactics eliminates the argument that the abuser has changed.

The judge who forced Kayden Mancuso to go for her fatal visitation stated in open court that just because the abuser threatened and harmed the mother doesn’t mean he would hurt Kayden. ACE tells us that when you hurt a child’s mother you are hurting the child.

The courts’ “high conflict” approach is based on a failure to understand domestic violence dynamics. The courts create a false equivalency between an abuser and the protective parent.  Refusing to cooperate with someone harming a child is in the best interests of the child. Shared parenting is never appropriate in abuse cases.  Abusers use decision-making powers to prevent any decision the mother wants, especially concerning health issues like therapy. ACE says children will need medical treatment and therapy to respond to problems as they develop and to reduce fear and stress.  Abusers do not want children in therapy where they might reveal his abuse.

The issue of primary attachment has been minimized in the courts based on an attempt to treat mothers and fathers the same. While a father could be a child’s primary attachment figure, in our still sexist society mothers provide most of the child care especially in the first years of a child’s life. Children denied a normal relationship with their primary attachment figure suffer many serious problems including increased risk of depression, low self-esteem and suicide. Accordingly, it is an important health issue that the Safe Child Act will require courts to consider.

Contrary to statements we constantly hear from court professionals, children do not need both parents equally. They need the safe parent more than the abuser and the primary attachment figure more than the other parent. Children do benefit from having both parents in their lives, but not if one of the parents is an abuser. The only proper response is to require the abuser to change his behavior if he wants a relationship with the child. Otherwise, the abuser will continue to cause more harm than good and he does not have a legal right to continue to hurt the child.

I particularly like the idea that giving the priority to health and safety changes the discussion that should occur in court. The abuser will be confronted with a basic question. What can you do to reduce the fear and stress in the children and the mother they depend on? If he claims there is nothing he can or is willing to do, he is saying he is unfit for a relationship. If he offers changes in his behavior and approach, he must immediately stop his abusive tactics which make the litigation so destructive.

Some of my friends who are protective mothers do not believe the reforms will make any difference because the courts will just ignore the law and the facts as they are widely perceived to do today. I wish my friends in the legal system could hear the appearance they have created. The Safe Child Act would end the complete discretion judges now have about which factors are most important. The cases will be reversed on appeal if a judge’s emphasis is that the abuser has a nicer home, provide a better school system, or won’t dress them like twins. I know many victims cannot afford to appeal but cases will be appealed and judges criticized by appellate courts. And then continued flouting of the law will result in judicial discipline.

I have heard many judges say that if the legislature disagreed with their handling of abuse cases, they would tell the judges by passing legislation. This is exactly what any of the state versions of the Safe Child Act does. It is a clear message that it is long past time to abandon outdated practices, unsupported by scientific research that is constantly destroying precious children’s lives. The same reforms that will prevent the over 750 child murders in the last ten years will also save millions of children from ruined lives caused by living with abuse the courts denied or minimized.

Since the first Safe Child Act legislation was introduced in Hawaii, the Stop Abuse Campaign has been the leader in trying to make this vital proposal law. Five versions of the Safe Child Act have been introduced and we expect Kyra’s Law to soon be introduced in New York. There are differences in the state proposals, but they all are based on making the health and safety of children the first priority. I have yet to hear anyone argue that any other factor is more important than the health and safety of children. The legal community in Pennsylvania was so anxious to defend the judge who sent Kayden to her death that they argued that we just have to accept there is nothing we can do to avoid some child murders. The Stop Abuse Campaign could not disagree more strongly. Come help us make the health and safety of children the first priority by passing the Safe Child Act in every state.

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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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