Kyra’s Law, a gift to children
Most people are not aware that family courts are getting most custody cases involving reports of abuse wrong. Even worse, almost all the mistakes work against protecting children. Court professionals are oblivious to their frequent errors because it is an insular system that fails to integrate crucial scientific research and uses the same small group of “experts” who do not have the specialized body of knowledge they need about domestic violence and child abuse.
The flawed practices relied on by family courts repeatedly result in tragedy. Kyra Franchetti was a two-year-old girl who became one of the over 750 children involved in contested custody cases who were murdered mostly by abusive fathers. Jacqueline Franchetti fought through her unbearable pain to seek reforms so other children would not lose their right to a full and healthy life.
Kyra’s Law is a comprehensive plan based on the critical scientific research courts are mostly ignoring. The same mistakes that lead to murders of children more often allow them to live but expose victims to a childhood of abuse and a lifetime of the health and social problems caused by exposure to adverse childhood experiences.
The Bartlow Study asked judges and court administrators what reforms they have developed in response to the child murders the courts facilitated. The shocking answer was none because they all assumed their local murder was an exception. The courts also didn’t create reforms as an ever-larger body of research confirms many of their practices are mistaken. Professionals in the insular system don’t see the problem so it is up to legislatures to save the children. Kyra’s Law will protect the children in New York and demonstrate how to save children in other states and countries. Here are the provisions that will work this miracle. Thank you, Jacqueline, and thank you, Kyra!
Life-Saving Provisions in Kyra’s Law
The First Priority is the Health and Safety of Children: The heart of Kyra’s Law is the requirement that in all custody and visitation decisions, children’s health and safety must be the first priority. This seems obvious, and courts could do this under present law, BUT THEY DON’T. Courts are required to consider a group of factors, and judges have complete discretion to focus on whatever factor they think is most important. This is not a problem in the vast majority of cases involving two safe and loving parents.
Most custody cases, like any litigation, are resolved more or less amicably. The problem is the 3.8% of cases requiring trial and often much more. A vast majority of these cases involve the worst domestic violence (DV) abusers; which is why these cases cannot be settled. These involve abusive fathers who believe she has no right to leave and seek to manipulate custody courts to regain what they believe is their entitlement to control their partners. They are willing to hurt the children in order to win the cases and hurt the mothers which is why these cases are so dangerous.
Court professionals are taught to treat these as “high conflict” cases by which they create a false equivalency between protective mothers and abusive fathers. They assume both parents are angry at each other and acting out in ways that hurt children. This leads to many practices that often enrich court professionals designed to force the parties to cooperate. In practice, instead of requiring the abuser to change his behavior to have a relationship with the children, the mother and children are pressured to cooperate and interact with their abuser, and the mother is punished for trying to protect her children. High conflict approaches discourage courts from considering the abuser’s motivation, making it harder to recognize true reports of abuse.
Including the health of children is especially important. The ACE (Adverse Childhood Experiences) Research found that children exposed to DV or child abuse will live shorter lives and suffer a lifetime of health and social problems. Most of the harm is caused by the fear, and stress abusers cause rather than immediate physical injuries, which is often all the courts will consider. The ACE study goes to the essence of children’s best interests, but courts routinely ignore the most important factors because they are unfamiliar with the ACE study. This provision puts ACEs into the heart of custody discussions and provides accountability because bad decisions can be reversed if courts fail to focus on children’s health and safety.
Encourage the Use of Important Scientific Research: Without the ACE Research, courts inevitably minimize the harm from domestic violence and child abuse. Without Saunders, the courts use the wrong experts and so disbelieve true reports of abuse. The failure to use scientific research is not neutral in the sense that it applies to both parents. All of the resultant mistakes tilt courts in favor of abusive fathers and towards risking children. This is exactly what the Meier Study found in the context of other research.
The National Council of Juvenile and Family Court Judges seeks to train judges about the ACE and Saunders studies. The courts should have integrated this research years ago, but most courts have failed to do so. Many parts of Kyra’s Law encourage or require courts to use this vital research. Assemblyman Andrew Hevesi’s sponsor memorandum of support states the need to include this research even more forcefully, and attorneys for protective mothers can cite that memo in future cases.
Promote a Multi-disciplinary Approach: The Saunders Study recommends a multi-disciplinary approach that would include domestic violence and child sexual abuse experts when those are relevant issues in the case. Kyra’s Law would encourage these best practices to help courts recognize and respond to abuse.
Early Hearing Limited to Abuse Issues: This provision requires a hearing within 60 days of the start of the case that is limited to issues of domestic violence and child abuse. By avoiding distractions abusers like to use concerning far less important issues, courts have a better chance of recognizing the abuse. When DV or child abuse is proven, the court must use best practices which means custody for the safe parent and at most supervised visits for the abuser. I want to emphasize that this provision only applies to the small percentage of cases with reports of abuse. In some other states, opponents have deliberately misunderstood this provision to make it seem as if it was burdensome to the court. In reality, this provision should resolve most abuse cases because mothers rarely make deliberate false reports. Cases that now take many months or years can be resolved in a few hours. This saves the parties money and the courts substantial resources.
Abusers Should Pay the Costs they Make Necessary: The Batterer as Parent recommends that abusers should be required to pay for any expenses they make necessary. Kyra’s Law encourages courts to award victims legal fees and other costs caused by the abusers. Courts can also make interim awards before the final decision. In addition to providing relief to survivors, this provision will benefit innocent parties and the courts by discouraging abusers from continuing their standard abuser legal tactics. Eventually, court dockets will become much less crowded, which benefits everyone.
No Penalty for Good Faith Reports: The present broken system frequently retaliates against protective mothers for good faith reports about abuse. This risk often prevents courts from hearing information they need to protect children. Courts often assume that the only possible findings are the report is true or the mother is an alienator. Unless the alleged abuser can prove bad faith, the courts will no longer be able to punish mothers for trying to protect their children.
Courts Must Stop Relying on Unscientific Theories: Unscientific alienation theories were created without any research and were designed to help wealthy abusers and the cottage industry of professionals seeking to make large incomes on the backs of children. The Saunders Study found unqualified professionals are the ones using these bogus theories. The American Psychiatric Association refused to include unscientific alienation theories in the DSM, which is the compendium of all valid mental health diagnoses. Despite overwhelming research, the courts have failed to remove this poison that often destroys children’s lives. Kyra’s Law will force custody courts to require good science before considering these sexist theories.
Training and Retraining Judges and other Court Professionals: The Saunders Study found there is now a specialized body of domestic violence knowledge courts need to respond effectively to domestic violence custody cases. They need very specific knowledge that includes screening for DV, risk assessment, post-separation violence, and the impact of DV on children. Most judges and other professionals do not have this necessary information. Instead, they are used to many standard practices that the ACE and Saunders studies tell us are mistaken. This is why they get such a large majority of abuse cases dangerously wrong. And they have a false sense of confidence in present flawed practices so they are often unreceptive to new ideas and research.
Kyra’s Law will require judges and other court professionals to receive the training that they need. They will be required to learn about the topics Saunders says are important and learn why many present practices are so harmful to children. No judge wants to hurt children, but they did not protect Kyra and so many other children because they don’t have the knowledge and training needed for abuse cases.
Many judges have told me that if the legislature did not like what they are doing, they would tell them by passing new legislation. I have seen many court professionals assume they knew everything about DV while making blatant errors. The courts have not created reforms in response to new research that disproves their practices or the most unbearable tragedies like what a judge did to Kyra. Kyra’s Law tells the courts that the present failed practices are intolerable because of the harm to children. One of the benefits of passing this reform is that professionals who now seek to avoid training will instead want the training because they have to learn how to implement the new law.
Kyra’s Law for New York’s Children
Kyra Franchetti was an adorable little girl who should have had the right to a full life. I disagree with the NY court system about a lot of things and I am sure 28 months is not a whole life. I will never understand how the preventable death of Kyra and so many other children did not cause the courts to reexamine their practices. Why do they force Jacqueline Franchetti to courageously relive the worst time of her life to try to save other children?
The same mistakes that have led to more than 750 child murders in the last ten years also harm so many more children who initially survive. Some will die in their teens or twenties from suicide or drug overdoses. Others will die before their time from cancer, heart disease, or other diseases related to the fear and stress courts find tolerable, but children don’t. Still, others will survive longer but live their lives with pain, sadness, more illness, and less enjoyment and accomplishment.
If the courts were starting now, they would support the kind of practices included in Kyra’s Law. The problem is that there is now a long history and court leaders are highly defensive. They turn their heads away from research that would make their jobs easier and children’s lives safer and healthier. They treat child murders as if they were exceptions.
The courts have demonstrated over decades of preventable tragedies that they will not take the lead in investigating the problem or creating needed reforms. This is why Jacqueline is speaking with legislators instead of playing with Kyra. A child’s funeral is the worst possible event. We need to pass Kyra’s Law to stop these preventable tragedies.
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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.