The Best Interests of the Child
Pro Publico recently investigated a story where a judge removed children from a mother who is probably their primary attachment figure for following a doctor’s advice to test her child for Covid. The judge, a Trump acolyte, believed the pandemic a hoax. The mother took her child, who was having breathing problems, to the hospital. The standard medical response included a Covid test to protect the child, medical staff, and other patients. The judge then declared it was in the best interests of the child to switch custody to the father.
The judge went even further and created what the Saunders Study calls a “harmful outcome” case. These are extreme decisions in which a safe, protective mother is limited to supervised or no visitation, and an alleged abuser is given custody. In some cases, the father is not abusive. Still, the harm of denying children a normal relationship with their primary attachment figure is more significant than any benefit the court thought it was providing. This harm includes an increased risk of depression, low self-esteem, and suicide when older. Harmful outcome cases are always wrong and based on flawed practices. Judges get away with harmful outcome cases by claiming they are acting in the child’s best interests.
All of the factors a court would typically be expected to consider tell us the judge’s decision was harmful to the children. The change is disruptive of the children’s lives; deprives them of their primary attachment figure; creates mental health risks, and undermines their ability to receive proper medical care. Declaring the decision in the children’s best interests changes nothing because everything about the court’s action is harmful to the children.
Objective vs. Subjective Determinations
The judge’s abuse of authority illustrates the problems of failing to use current scientific research to make decisions and relying on subjective rather than objective opinions. Usually, depending on a doctor’s recommendations and following standard medical practices would protect a parent and be strongly encouraged. No medical evidence to the contrary was admitted, but rather the judge relied on his absurd personal opinions. He also failed to consider the research about the harm his extreme actions would cause. This is an extreme case, but it illustrates a more common problem of courts relying on subjective opinions that are often disproved by credible scientific research, that the courts are unfamiliar with.
The courts have a list of factors they must consider when making decisions about child custody and visitation. In cases involving two safe and loving parents, the factors will be minor in comparison to abuse cases. Deciding between a nicer home or a home closer to the school can safely be made by subjective opinion. Decisions involving domestic violence or child abuse should be based on objective decisions.
ACE (Adverse Childhood Experiences) Research tells us that children exposed to DV or child abuse will live shorter lives and suffer a lifetime of health and social problems. This is an existential factor and nothing other than other safety risks should be viewed as the same level of importance. Exposure to abuse cannot compare with the beauty of a home or distance from the school. Objective evidence based on scientific research makes it clear the first priority must be protecting children from health and safety risks. This is the first provision of the Safe Child Act. Unfortunately, present laws and practices give judges complete discretion to ignore the research and make completely subjective determinations. This helps explain why, in abuse cases, the family courts get such a high percentage of cases dangerously wrong.
Gender Bias and Sexism
Gender bias and sexism play a harmful role in mistaking the best interests of a child. The Batterer as Parent found that all batterers including “low-level” batterers engage in harmful parenting practices that include undermining the relationship with the mother, teaching bad values like sexism, and providing a bad example. The Meier Study proved that courts are far more concerned about the alienation of fathers than mothers. This is probably because mothers tend to provide most of the child care and so have stronger relationships with their children. Courts treat the father’s relationship as more important even though the opposite is true.
Judges rarely, if ever, place importance on a father’s sexism and values that assume girls’ and women’s value is about their beauty and body parts. This harmful message can encourage boys to take actions that might ruin their lives and certainly their relationships. The message undermines the opportunity for girls to reach their full potential.
In our still sexist society, mothers provide most of the child care. This means in most cases children need their mother more than their father. Instead, courts routinely minimize the importance of primary attachment. They are willing to continue harmful outcome cases for many years although these decisions are always wrong. When a father is limited to supervised visitation because of a history of violence and abuse, courts often feel a great urgency to resume normal visitation. These mistakes are promoted by the use of subjective opinions instead of scientific research.
Unscientific Alienation Theories
The worst distortion of the best interests of children comes from unscientific alienation theories. The Meier Study found that alienation is treated by the courts as if it is more consequential than domestic violence or child abuse. It’s not! Medical research confirms DV and child abuse shorten lives and create a lifetime of health and other serious problems. There is no proof of the harm from alienation because there is no standard definition.
In the notorious Shockome case, the court treated the mother’s statements that the children should eat healthy foods, dress appropriately for the weather, and avoid adult-oriented programs as if this constituted alienation. This is really good advice that most parents would encourage, but the court objected because the father violated these good parenting practices. Other courts have claimed unintentional alienation because the father’s abuse caused fear and stress in the mother that the children inevitably noticed. This is a form of gender bias because it blames the mother for the actions of the father.
Unscientific alienation theories falsely assume that most reports of abuse are lies. It assumes alienation is a mental health issue even though the American Psychiatric Association rejected alienation because there is no supporting research. Fundamentally alienation theories assume that if a father has a bad relationship with children the only possible explanation is it must be the mother’s fault. The research confirms this conclusion is usually wrong. The most common flawed practice that causes harmful outcome cases is the reliance on unscientific alienation theories. Courts that rely on alienation say they are acting in the best interests of the children, but this is a subjective decision almost always contradicted by the good scientific research the courts have failed to incorporate into their standard practices.
Is Co-Parenting in the Best Interests of Children?
There is legitimate research that would support shared parenting under the best of circumstances. More reliable research says co-parenting is bad for children because it is disruptive, they often have what they need at the wrong home, and having two homes is really no home. Some state laws encourage or require courts to favor co-parenting in non-abusive cases.
The only cases in which there is any supportive research that shared parenting is in the best interests of children involve two parents who are able to cooperate, can communicate without fear, and live nearby. Most state laws exempt DV cases from shared parenting. Saunders found that abusers use shared decision-making to block anything the mother wants especially therapy. Abusive fathers also use exchanges to harass or assault their victims. Accordingly, it is never in a child’s best interest to have co-parenting when there are reports of DV or child abuse.
The problem is that courts see shared parenting as the best way to promote settlements and some court professionals find it increases their incomes because of the need for extra services. The Pro Publica story did not discuss any abuse in the cases discussed, but the fathers’ reactions in taking advantage of the pandemic suggest at least some were abuse cases where co-parenting was never in a child’s best interests.
During better times, abusers cause problems through co-parenting that result in children coming home with bruises, bellyaches, or colds. During the pandemic, the same neglect or abuse can result in a deadly infection and of course enormous fear and stress in the mother and children. Disputes over medical care become more critical and the pandemic is used as an excuse not to return the children. Co-parenting in these cases may be in the best interests of the courts but certainly not for the children.
The judge discussed in the Pro Publico article has done enormous harm to the children involved and really should not be a judge. He developed beliefs based on disinformation, refused to test them with good medical science, and created extreme outcomes based on propaganda. This illustrates the problem of granting judges almost unlimited discretion. Ethical complaints were filed and potentially he might be reversed, but in the meantime, the children are suffering and the trauma may not be reparable. He felt free to indulge his extremist views because there is little accountability available for judges.
Judges generally have immunity from lawsuits for good reasons. They need to make the decision they believe is best for the children without worrying about being sued. As a practical matter, abusers have more resources and fewer inhibitions than protective mothers so are far more likely to sue judges. Judicial ethics committees could discipline a judge, but they are usually severely underfunded and controlled by the legal community that has an interest in protecting judges. Appeals could provide some accountability but victims often have inadequate resources to appeal and wide discretion makes it hard to win deserving appeals.
The last thing judges want is to be on the front page of the newspaper. This usually happens only with the worst tragedies and judges never expect this to happen to them. Even worse, court systems immediately defend judges who caused child murders even when their errors were egregious. With the release of substantial scientific research exposing frequent court errors in abuse cases, the media has reported on judicial scandals as with the Pro Publica article, but these stories are still rare. Most judges are able to spend decades on the bench and do enormous harm to children without much exposure.
Who wouldn’t want courts to act in the best interests of children? The problem is that labeling bad decisions as best for children doesn’t make it so. Courts need to use good scientific research when it is available. Judges and other court professionals need training about the specialized body of domestic violence knowledge the Saunders Study says they need. Subjective opinions are insufficient when the health and safety of children are at risk. The legal system also needs to take precautions so that the superior financial ability of one party does not determine the outcome. Judge Mike Brigner wrote that courts have the authority to level the playing field, but are not using those powers. Surely it is in the best interests of the child for courts to have all the information they need to make a good decision.
The factors states require courts to consider work in cases involving two good and safe parents. These are the cases courts handle well. In abuse cases, the first priority must be the health and safety of children. Judges should not be given unlimited discretion to focus on less important factors for cases that are the most dangerous for children. Judges and the judicial system could use present laws to make sure children are protected. They have not done so and have become extremely defensive even in the face of the most excruciating tragedies.
Accordingly, legislatures must force courts to actually act in the best interests of children, particularly for the most dangerous cases. The Safe Child Act says that the health and safety of children must be the first priority. It requires that courts use current scientific research, retrain judges, and other court professionals, and use experts who have the needed specialized knowledge about domestic violence and child abuse. Only then can we make sure that Domestic Violence custody cases are finally decided in the best interests of children.
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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.