THE LEAST WORST INTERESTS of the CHILD
The Only Outcome Family Courts Will Consider
The worst family court cases occur when courts determine alleged abusers are safe, and the abusers use the access granted by the court to kill a child. These murders happen about 75 times a year. The next ‘worst interests of the child’ occur when children die in their teens or twenties from tragedies like suicide, drug overdoses, and accidents. In these cases, children the court forced to live with abusers desperately sought something to relieve their pain. In the next worst cases, the children will live to adulthood, but their exposure and inability to heal from abuse results in shorter lives and a lifetime of health and social problems.
These painful outcomes are preventable, but only when courts use current scientific research to recognize and respond to domestic violence and child abuse. Only when courts rely on professionals who have the specialized knowledge about abuse cases needed to protect children. Only when they avoid high conflict approaches; a bias that favors abusers, and shortcuts that deprive courts of critical information they need.
High conflict assumes that contested custody involves two safe and loving parents who are acting out because they are angry with each other. Court professionals make a lot of money, pressuring the parents to learn to cooperate. The purpose is to create a co-parenting relationship that courts assume benefits children despite contradictory research.
In reality, 75-90 percent of contested custody cases involve domestic violence by the worst abusers. This does not mean the abusers have committed the worst physical assaults, which is what many unqualified court professionals are looking for. It means the abuser believes she has no right to leave, so he is entitled to take whatever actions are necessary to regain the control he believes he is entitled to.
This is why there are so many child murders in custody disputes. Abusers understand the best way to hurt a mother is to hurt her child. This is why the Bala Study found fathers in contested custody are 16 times more likely to make deliberately false allegations. And yet courts have far more skepticism towards mothers’ reports. And this is the real reason these cases cannot be settled.
The false assumptions lead courts to assume any claims of abuse are false or unimportant. Mothers are often punished for trying to protect their children as any good parent would. This also discourages reports, so courts don’t have the information needed to protect children.
Many mothers complain their attorneys or the judges threaten that they will lose custody if they mention the father’s abuse. This is a common statement but also a widespread attitude.
And then all the court has to consider is the least worst interest of the child.
Compelling Scientific Research
Any attempt to adjudicate custody cases involving possible domestic violence or child abuse without the benefit of ACE and Saunders can only be understood as malpractice. The American Psychological Association asked me to give four presentations about ACE and Saunders at their National Convention. The National Council of Juvenile and Family Court Judges seeks to train judges about this vital research. This research goes to the essence of the child’s best interests, so there is no reason to risk the lives and well-being of children by remaining ignorant.
The ACE (adverse childhood experiences) Studies are medical research from the Centers for Disease Control and Prevention. ACE found that most of the harm from DV and child abuse is not from any immediate physical injuries but living with the fear and stress abusers cause. This disproves many standard but mistaken assumptions courts have long used to minimize abuse. Children exposed to this fear and stress will live shorter lives and suffer a lifetime of health and social problems. Courts assume high conflict is an invitation for co-parenting, but ACE says the stress caused is inconsistent with children’s best interests.
The Saunders Study from the National Institute of Justice sought to review the domestic violence knowledge of judges, lawyers, and especially evaluators. Since domestic violence became a public issue, courts have relied on mental health professionals as if they are the DV experts. Courts tend to keep relying on the same small group of professionals. This has created an insular effect and discouraged innovation and the use of new research.
Saunders confirmed most evaluators don’t have the necessary DV knowledge to respond to DV cases. This is particularly concerning because lawyers and judges get most of their information from evaluators who themselves were found wanting. Saunders recommends a multi-disciplinary approach and the use of the specialized body of domestic violence knowledge that is now available—except in the courts.
California Illustrates Worst Interest Approach
My first national presentation and my chapter in my first book with Dr. Hannah concerned abusers’ legal tactics. One example is to provoke their victim and then use her response to create the illusion she was the abuser. The abuser in a Riverside custody dispute successfully used this tactic to manipulate the professionals in the case.
The mother is the primary attachment figure and the 2-year-old girl continued to live with her mother until the abuser successfully used this tactic to get primary residence even though the parents had shared parenting and the girl saw both parents regularly.
The father twice got the mom arrested for striking back at him. In both cases, there was video. The mother also had the father arrested for genuine domestic violence. The father played the victim to the hilt, crying in court and claiming to be afraid of the mother although he is far bigger and stronger.
California has a process in which there are a number of initial appearances without any chance for the court to hear the full story or the context which is so critical for understanding domestic violence. Some of the appearances concerned each party’s restraining order. No effort was made to find out the primary abuser so instead, the court focused on the false equivalency we see in high conflict approaches.
I was qualified and permitted to testify at two of the hearings. I was able to testify about ACE and Saunders and some factual matters but information about the primary abuser had to wait for a custody trial. In the interim, the father used shared parenting to abuse and control the mother and make false charges against the mother. The father repeatedly violated existing orders with impunity.
Without any chance to hear critical information, the court continued down the high conflict path. They required the parties to go for mediation despite the history of domestic violence. The purpose is to reach a settlement and since an abuser will not consider anything in the child’s best interests only what the abuser wants is taken seriously. The mother’s prior attorney warned us the judge was likely to follow the mediator’s recommendation.
The mediator has no background in DV, child abuse, or the research. And she clearly took no precautions about being manipulated. The mother asked the mediator to speak with me but she refused.
At the final hearing, I was ready to testify but never got the chance. The mediator accepted the father’s lies that the mother violated an order that the father actually violated. The judge gave the mother no chance to present evidence. This would have been evidence we were stopped from offering at earlier hearings in order to wait for the custody hearing.
Instead, the judge followed the mediator’s extreme retaliatory recommendation and created what the Saunders Study calls a harmful outcome case. This is when an alleged abuser is given custody and a safe, protective mother is limited to supervised or no visitation. Saunders found that these decisions are always wrong and caused by the use of flawed practices.
The reason this decision is always wrong is that the harm of denying a child a normal relationship with her primary attachment figure, which includes increased risk of depression, low self-esteem, and suicide when older is greater than any benefit the court thought it was providing.
Clearly, none of the court professionals had any of this information when they made a decision likely to ruin a toddler’s life. They were using practices that at best seek the least worst interest of the child. This court did far worse. States and courts need to change practices so that the best interests of the child can be considered and ordered.
Here is some of what I would have told them if I was ever given a chance. It proves the father who was given control over a precious child is the primary abuser.
- The mother has received assistance from domestic violence agencies. These agencies are substantially underfunded and so have to screen potential clients before providing services. This means the experts in the community confirmed the mother is a DV victim. She reported the father’s abuse before any litigation which supports her reports.
- During the relationship, the father wanted or demanded the mother provide most of the child care. In any other type of litigation this would be understood as an admission she is a good mother. She did not suddenly become unfit because she left her abuser and reported his abuse.
- I listened to a tape of an argument between the parents. The father was yelling and screaming and making the rules. Clearly, he is not afraid of the mother and is using coercive control. The father’s verbal attack caused the baby to cry but the father did not try to comfort her.
- During a zoom court hearing, while I was testifying, the father’s loud and aggressive tactics caused the mother to be intimidated. I observed that the mother’s voice went lower and she was afraid to ask me questions we had agreed on.
- Some of the mother’s friends and relatives made statements that she discussed his abuse and expressed her fear long before any litigation.
- One of her friends gave a statement that she witnessed the father verbally abusing the mother.
- In another incident that the father was taping, he was yelling at the mother for not taking care of the baby the way he preferred. His behavior caused the baby to become hysterical but the father did not stop to comfort her. It was clear his purpose was to create evidence rather than help his daughter.
- The mother constantly accepted more of the blame than she deserved, minimized the harm, and continued to try to preserve her marriage even though it was a lost cause. This is a typical response of abused women.
High conflict approaches, like so many other standard practices, are proven wrong by the scientific research courts have failed to integrate. Protective mothers and their advocates have long complained the courts are severely tilted in favor of abusive fathers and risking children. The present outdated and flawed practices limit courts in abuse cases to only consider the worst interests of the child.
Childhood Trauma Affects Your Future Health
Answer these ten confidential questions developed with the CDC and understand your warning signs
Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.