“Why should domestic violence against a mother affect a father’s visitation?”

Objections to Kyra’s Law prove it is needed

“Why should domestic violence against a mother affect a father’s visitation?”

A state legislator approached about Kyra’s Law sent the draft to a friend who is an experienced family law attorney. This question was the first of many problems and objections he posed. In fairness, it is a question many, if not most, judges, lawyers, and evaluators would raise. The answer is easy, but the problem is troubling. If court professionals do not know the answer to this question, they also do not know how to protect children in domestic violence custody cases.

The ACE (adverse childhood experiences) Studies are medical research from the Centers for Disease Control and Prevention. Ten ACEs increase children’s risk of health and social problems while reducing their life expectancy. Most of the harm comes from living with the fear and stress abusers cause rather than from any immediate physical injuries focused on by courts. This goes to the essence of the best interests of children except in broken court systems that fail to consider ACE.

The domestic violence (DV) that the family law attorney was dismissing is just one of the ACEs that harms children. DV may also cause a child to fear the loss of their primary caregiver, or to fear for their own safety, emotional abuse, and emotional neglect are also ACEs. Accordingly, the attorney and most of his colleagues routinely dismiss behavior that causes enormous harm to children because the professionals are unfamiliar with the most important research for their work.

Pennsylvania is considering similar legislation called Kayden’s Law. The judge in Kayden’s case said that just because the father abused and threatened the mother doesn’t suggest a risk to Kayden as long as he hadn’t assaulted Kayden. The father used the access granted by the judge to kill Kayden and then himself.

The court professionals do not understand DV dynamics and consequently have no sense of abusers’ motives. Most custody cases settle more or less amicably. The problem is the 3.8% of cases that require a trial and often much more. Courts treat these cases as “high conflict,” which assumes both parents are equally responsible. The research shows that a large majority of contested cases involve the most dangerous DV abusers. These are men who believe she has no right to leave, so they are entitled to do anything necessary to regain their “right” to control. These abusers are willing to hurt or even kill their child as the best way to hurt the mother. Courts never consider this risk; even as abusers that the courts ruled safe murder more children. Courts don’t create reforms in the face of these unbearable tragedies because they assume their local murder was an exception.

The Insularity of Family Courts

The family law attorney knew that Kyra’s Law is based on scientific research like ACE and should have realized domestic violence experts drafted it. Yet, he assumed he understands the issue better. He heard inaccurate information throughout his career, probably from mental health experts who know little about domestic violence, and could not imagine that his information was wrong.

Attorneys routinely devote enormous time and effort to understand complex scientific, medical, or other technical subjects central to individual cases. Nevertheless, attorneys rarely make a similar effort to understand domestic violence or child sexual abuse issues even though they may encounter these issues dozens or even hundreds of times.

One obstacle to treating DV as a specialized subject is that most court professionals have had some domestic violence connections. They might be a victim or offender or know someone who is. I have heard judges, lawyers, and evaluators refuse to listen to information about domestic violence from genuine experts throughout my career because they believe they already know everything. These professionals inevitably make basic mistakes, as did the family law attorney discussed earlier.

Another obstacle is that there was no research at the time family courts developed their response to domestic violence custody cases. Courts turned to mental health professionals for expertise based on a popular misconception that mental illness or substance abuse causes DV. The courts never changed their response after the original assumptions proved wrong. Court professionals never got into the habit of turning to new scientific research as it became available.

Financial considerations are still another factor that has discouraged the introduction of information that would help protect children. Domestic violence is about control, including financial control. In most abuse cases, the abuser controls most of the family finances. This was the cottage industry’s incentive to develop and promote approaches to favor abusers who are their clients. In most communities, courts use the same small group of “experts.” As a result, professionals have little incentive to use new research when the old methods are so profitable. 

Saunders found courts can use a specialized body of domestic violence knowledge to recognize true reports of abuse better and protect children. The family courts, with rare exceptions, are not using this vital information. Court professionals like the attorney mentioned earlier are completely confident as they repeat misinformation harmful to children, and they have the influence to discourage needed reforms.

Kyra’s Law Is the Solution

Domestic violence cases are fundamentally different than any other type of custody case. These are the cases in which mothers and children are killed, and more often, ruin children’s lives. They are cases in which one parent believes the other parent has no right to leave and believes they are justified in advocating for outcomes that hurt children. They are cases in which domestic violence has caused a severe disparity in resources, so the abuser has an unfair advantage in court. Many aspects of DV are counterintuitive, making it harder for professionals who don’t work full time on DV issues to understand the circumstances.

The attorney’s false assumption that children are not affected by their mother’s abuse illustrates why the court system has been unable to respond to the many preventable tragedies and new research to fix the system’s dangerous problems. The courts accept many other wrong assumptions without question.

ACE and Saunders demonstrate that courts should abandon many standard practices because they are harmful to children. These practices include:

  •  the belief that only physical abuse matters and only recent abuse matters
  • high conflict approaches
  • the assumption that DV is caused by mental illness or substance abuse
  • asking victims to get over it
  • promoting shared parenting in DV cases
  • failure to use a multi-disciplinary approach
  • tolerating gender bias
  • assuming children always benefit from both parents in their lives
  • reliance on unscientific alienation theories
  • belief in the myth that mothers and children frequently make false reports
  • failure to provide a risk assessment
  • failure to consider which parent is afraid of the other
  • failure to focus on the fear and stress of children
  • failure to look for the pattern of abuse
  • treating good public behavior as proof of good private behavior
  • extreme skepticism in response to reports of child sexual abuse
  • using blame-the-victim approaches

 and many other mistakes that push courts towards favoring abusers instead of erring on the side of protecting children.

I have heard many judges say that if the legislature did not like the current practices, they would say so. Courts do not disqualify “experts” proven unfamiliar with vital research like ACE and Saunders or even treat them as less credible. I have heard many court professionals refuse to listen to DV advocates because “they are always against domestic violence.” Of course, the law and the courts are supposed to be against domestic violence. Too often, DV reports are viewed as an obstacle to the shared parenting the court is pushing for instead of important information that this is not a case for co-parenting.

Kyra Franchetti is an angel who reminds us of why we must do this work and why we cannot continue to allow courts to continue to use outdated and discredited practices that every day place children in jeopardy. No judge wants to see children murdered, but no judge has been willing and able to use the child murders and the new research to create the reforms needed the make courts safe for children. 

I never had the privilege of meeting Kyra, and I never will. Still, I cannot see her picture without melting into tears. I know there are too many other Kyras and other children suffering after being silenced. When an experienced family law attorney cannot imagine the profound harm domestic violence does to children and judges treat Kyra’s tragic death as an exception, we know the courts need help if they are going to protect children. Only the legislature can safeguard children by passing Kyra’s Law.

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