by Barry Goldstein
Using
Saunders’ Report to Protect Children
The
Saunders’ study establishes that the custody courts are getting an intolerably
high percentage of domestic violence custody cases wrong and this will continue
as long as the courts rely on evaluators and other professionals who do not
have the specific domestic violence training they need and refuse to use the
expertise that could be provided by domestic violence advocates and
experts.
It is
clear that the custody courts need to adopt the reforms that will make sure
children are protected, but there are significant obstacles to achieving the
needed reforms. The worst evaluators and
other professionals who are part of the cottage industry supporting abusive
fathers will fight to maintain their lucrative practices even as they earn
their money at the expense of the safety and future of children they are
supposed to protect. The abusers will
continue to seek to manipulate the court in order to continue using the custody
tactic to maintain what they believe is their right to control their partners
even after they leave. Judges and other
administrators will be reluctant to acknowledge that their long established
practices routinely place children in jeopardy.
Dan Saunders has done a substantial public service in providing
meticulous research that should explode the complacency of court professionals
who would like to believe the only problem is the complaints by protective
mothers and their supporters. Now it is
our job to use this research to change the outcomes of cases and reform a
system that is failing to protect children.
Presenting a Case with the Help of the Saunders’ Study
The
Saunders’ study highlighted an important point that may be obvious to some, but
certainly is not recognized by the professionals who run the custody
courts. Domestic violence advocates are
the group most knowledgeable about the specific topics needed to understand
domestic violence custody cases and should be viewed as the experts on domestic
violence. There are domestic violence experts
who are psychologists ( i.e. Mo Therese
Hannah, Joy Silberg), lawyers (i.e. Joan Zorza, Lynn Hecht Schafran) and judges
(i.e. Mike Brigner, Sol Gothard), but in each case it is not because of their
educational degrees or profession. They
learned about domestic violence separate from their profession which made them
so much more effective. Domestic
violence advocates work full time on domestic violence issues. They have to understand how to recognize
domestic violence and what behaviors are associated with higher lethality
because one of the most important parts of their jobs is to work with clients
to create safety plans.
Dr.
Saunders intimated that the percentage of other professionals with the needed
training is probably overstated because those who participated in the study
probably have more of an interest in domestic violence than other professionals
who chose not to participate. Advocates
have chosen a career in domestic violence.
Obviously they have not done so for financial reasons as psychologists
and lawyers who are part of the cottage industry supporting abusers have. In my experience, advocates passionately care
about their work to end domestic violence.
Dr. Mo Hannah and I had the privilege of training advocates working for
the National Domestic Violence Hotline about custody issues. It was a wonderful experience because the
advocates understood the domestic violence part so we could have a really high
level discussion about how courts respond to domestic violence and how they could
best help victims calling for assistance.
Court
professionals would benefit from learning from advocates, but so would
protective mothers. If possible,
protective mothers should start working with an advocate before seeking an
attorney or other professional assistance.
Some domestic violence agencies have legal programs, but even when they
don’t, there may be relationships with attorneys who would be supportive of
survivors. The advocates can help their
clients put together the pattern of coercive and controlling behaviors by their
abuser that will make it easier for court professionals to recognize that he is
a domestic violence abuser. They can
also identify any behaviors that demonstrate a higher risk of lethality or
other danger. Recognizing this
information is important because after the initial court documents are filed,
the survivor may not be permitted to include additional information later in
the proceeding or this information may be discredited because it was not raised
initially.
Advocates
can also come to court with their clients.
They cannot speak on their behalf, but they can provide needed emotional
support, make the judge and other court professionals understand it is a
domestic violence case and often hear things in the court room that the client
may miss in the emotion of being in court with their abuser. Occasionally I hear complaints from mothers
that the local dv agency was not helpful.
There are some agencies that still have not made custody issues a
priority and any profession includes some individuals who are less
helpful. When we started the Battered
Mothers Custody Conference, the domestic violence movement was not as
supportive as they are now. For mothers
who have had a bad experience, I would encourage them to try again or try another
agency. In my experience the local
shelter is their most important ally.
In my
opinion, domestic violence advocates are the answer to many of the problems
exposed in the Saunders’ study.
Evaluators and other court professionals do not have the training in
domestic violence necessary to understand the cases and protect the
children. We often see lawyers listening
to lawyers and psychologists to psychologists.
This denies them the multi-disciplinary approach that is needed. Many of the “domestic violence” trainings
include substantial misinformation such as information about alienation and
“high conflict” cases. The Saunders’
report established that advocates know the most about the specific domestic
violence topics court professionals need so it would make sense for advocates
to play a major role in training court professionals and participating in
discussions for the reform of the system.
Until these necessary reforms are accomplished, advocates can and should
serve as expert witnesses and consultants so that the vital information is
available to courts making life and death decisions.
Custody
courts have often failed to use critical thinking when deciding which
professionals to hear as expert witnesses.
They have placed most attention on the post-graduate degrees of
psychologists and other mental health professionals. This would make the witness an expert in
psychology or social work, but not in domestic violence. There are certainly cases in which this
information is useful to the court, but in domestic violence cases, domestic
violence expertise is the most important information needed. The Saunders’ report established that court
professionals often mistake their limited training in domestic violence as
providing them with the necessary understanding of domestic violence. This has led them to refuse to hear testimony
from the genuine experts with tragic consequences for the children.
Domestic
violence advocates can consult with evaluators and testify about domestic
violence issues. This will provide the
court with information it vitally needs.
Mothers who cannot afford to pay for an expert witness would have the
ability to provide the court with this information. Although the evidentiary laws vary by state,
they generally provide that someone who has substantially more knowledge of a
relevant topic than the general public based on education, training or
experience is qualified to be an expert witness. Accordingly it would be common for a mechanic
who did not graduate high school would qualify as an expert witness concerning
the repair and workings of an automobile.
Domestic Violence advocates work full time on these issues, receive
extensive training and often train others in the community. By any fair consideration they easily qualify
as an expert witness. The Greenbook
Initiative includes the practice of child protective agencies working with
domestic violence agencies in response to abuse reports that may include
domestic violence. This practice has
proven successful because it helps the caseworker recognize the domestic
violence aspects of the case and create arrangements that benefit
children. Particularly until the custody
courts create the needed reforms in response to the Saunders’ study, reliance
on advocates’ expertise will be the best and most practical way to protect
children.
I
believe one of the problems with the present custody courts is that the judges
and other professionals have heard misinformation from mental health
professionals and others throughout their careers. As court professionals hear accurate
information from advocates, I believe this will improve the knowledge of the
professionals and at least help them understand there is another way to look at
the same information. Hopefully this
will encourage professionals to start looking for patterns and to recognize the
significance of evidence they previously ignored. This will actually make their jobs easier
because they will find evidence that confirms the claims of one party in cases
that otherwise would be viewed as a he-says-she-says case.
Legal Representation
Many
protective mothers have complained about their attorneys and often have to
change attorneys or represent themselves after an attorney drains her resources
and undermines the case. The Saunders’
study confirmed the problem as private attorneys were the least likely
professionals to have the necessary domestic violence training. We often see abusers and other court
attorneys seek to use the fact that the mother has had a series of attorneys to
suggest there is something wrong or uncooperative about her when it is actually
a reflection of the difficulty in finding an attorney willing to present a
strong domestic violence case.
With
the availability of the Saunders’ study, protective mothers can discuss at the
initial meeting with a prospective attorney that there is new research from the
U.S. Department of Justice that most court professionals do not have the
necessary domestic violence training and this frequently causes mistakes that
place children at risk. Accordingly, she
wants to make sure the attorney is open to presenting a strong case based on
the father’s pattern of abuse and is willing to advise the court that the
standard court practices are working poorly for children.
The
attorney will offer a retainer agreement that will specify the payments the
attorney is to receive. This is what is
important to the attorney about the attorney-client relationship. The mother should request that the agreement
also states that the client has expressed her concern that the attorney will
advise the court of the current scientific research that present practices in
domestic violence cases are working poorly for children and that the attorney
will present the court with the available evidence of domestic violence. If the attorney objects to this kind of language
it is better to know this at the start of the case instead of after the
attorney has received substantial resources and may have undermined the
case. I am not as concerned with the
exact language as long as it expresses the general information and the attorney
does not seek to include language nullifying the intent such as saying that
failure to present the information should not affect payment of legal fees.
The
most frequent question I receive is where to find an attorney who understands
domestic violence. The Saunders’ study
confirmed that among private attorneys, the needed training is rare. This does not need to be a disqualification
if the attorney is willing to consult with experts and learn the material. I have had some cases in which a protective
mother wanted her attorney to read Domestic Violence, Abuse and Child Custody
or some of my articles. Battered mothers
may now want their attorneys to read the Saunders’ report or at least the
executive summary. I have written a book
with Elizabeth Liu to train lawyers how to present domestic violence
cases. Some protective mothers will want
their attorneys to read this book when it is published, probably the end of
this year. Some attorneys have asked to
be paid at their hourly rate for the time it takes to read the material. This is general information attorneys should
be familiar with in order to competently represent their clients in domestic
violence cases. They will benefit by
being better able to represent other clients from having read this kind of
material. Obviously they are entitled to
be compensated for reading material specifically related to the case and I can
see some compensation because the client needs them to learn the information
quickly. Again it is best to resolve this
before substantial sums are invested in the attorney. In some cases and some locations, a client
may have few options for legal representation, but the best time to determine
these issues is at the start of the case.
Evaluators
In Domestic
Violence, Abuse and Child Custody, we provided substantial research to
demonstrate the problems with using evaluators in domestic violence cases. Chapters by Robin Yeamans, Judge Marjorie
Fields and Joan Zorza demonstrated the problems unqualified evaluators are
causing. The Saunders’ study confirmed
the problem and demonstrated how the inadequate training, biases and belief in
the myth that women frequently make false allegations has contributed to tragic
outcomes. Indeed, the heart of Dr.
Saunders’ research concerned the role of evaluators in domestic violence cases.
Many
judges routinely appoint psychologists or other mental health professionals as
evaluators in domestic violence cases.
This practice was developed at a time when many assumed domestic
violence was a mental health issue. We
now understand men abuse women because of their belief system and sense of
entitlement that they should have the right to control their partners and make
the major decisions in the relationship.
Dr. Saunders specifically found that abusers often show no mental health
problems in the psychological tests they take.
This is because the beliefs that lead to domestic violence are all too
normal in this and many other societies.
At the
very least judges should take a fresh look at standard practices based on the Saunders’
study and other research. They should be
asked to make any decision on the use of an evaluator based on the specific
facts and circumstances of the case. If
there is no significant evidence that one of the parties has a mental health
issue that would interfere with parenting ability, something more than one
parent calling the other crazy, what expertise could a mental health
professional bring to the case? If there is a real mental health issue, how
does the court receive the domestic violence assistance that is critical? The Saunders’ study establishes that the
usual required domestic violence training that most evaluators and other court
professionals receive does not provide the needed expertise. Either the court needs to appoint an evaluator
with an unusual high level of domestic violence competence, such as someone who
has worked in a domestic violence program or require the evaluator to consult
with a domestic violence advocate.
The
Saunders’ report established that social workers tend to do a better job on
domestic violence custody cases than psychologists. The use of a social worker is likely to
result in lower costs, which means more assets available for the children and a
better understanding of the critical domestic violence issues in the case. It is also likely that the appointment of a
social worker will save time.
If the
court insists on appointing a psychologist as evaluator, there should be a
discussion of the use of psychological tests.
The generalized tests like MMPI that are most commonly used were not
made for the populations seen in custody courts. They provide virtually no information about
domestic violence issues. They are based
upon probability so under the best of circumstances the results apply to the
parties in the case only 55-65% of the time and in stressful contested cases or
domestic violence cases the results are even less reliable. Far more useful in domestic violence cases
are tests designed for domestic violence cases such as the Campbell Danger
Assessment.
The
Saunders’ study supports the recommendations of leading experts like Lundy
Bancroft and Peter Jaffe that in domestic violence cases in which the victim is
a safe parent, the outcome that works best for children is custody for the safe
or safer parent and supervised visitation, at least initially for the abusive
parent. Accordingly, instead of wasting
substantial time and money on evaluations, GALs and numerous court appearances,
best practices would be to schedule an early evidentiary hearing limited to the
domestic violence allegations. This
hearing will generally not take long because it is limited to domestic violence
issues. This avoids common distractions
that waste time and seek to take the focus away from the safety of
children. One of the fundamental
findings that is an underpinning of the Saunders’ study is that protective
mothers rarely make deliberately false allegations. This means that if the court provides a fair
hearing, cases that often take many months or years can be resolved in a few
hours or less and children will quickly learn who they will be living with.
Challenging Evaluators
If the
court appoints an unqualified evaluator despite your best efforts to avoid this
mistake, the Saunders’ study provides many good ways to attack a harmful
report. The earlier objections should
strengthen the mother’s position to challenge the report as she cannot be
accused of complaining about the recommendations just because they are
unfavorable. Instead she is in a
position to tell the court that the evaluator made precisely the mistakes she
sought to avoid as demonstrated by Dr. Saunders.
The
first area for challenging an evaluator during cross-examination would be
qualifications especially domestic violence training. Is the evaluator familiar with the research
found in the Department of Justice study by Dr. Daniel Saunders, The Batterer
as Parent and Domestic Violence, Abuse and Child Custody? The mother or her attorney could have
referred to this current scientific research during the course of the
evaluation. This will make the evaluator
look worse for failing to review this important information. If the evaluator did review this information
it will provide a gold mine of material to ask the evaluator about. Recommendations adverse to the mother’s
position are likely to demonstrate the evaluator did not understand the
research or failed to apply it properly.
Ask the
evaluator about training concerning the specific topics Dr. Saunders believes
is necessary to be qualified to work on domestic violence cases. If the evaluator claims general dv training
or satisfying the training requirements of the state, compare this with the
findings in the Saunders’ study that satisfying these requirements do not make
someone an expert in domestic violence, and fail to prevent recommendations
that place children at risk.
Has the
evaluator been trained in how to screen for domestic violence? Where did the evaluator receive this
training? Ask specific questions. What information did you have that you
believe made the allegations unlikely to be true? Can you cite any scientific research to
support your conclusion? Did you look
for a pattern of coercive and controlling behaviors by the alleged abuser? Ask all the types of information the
evaluator received that if true would be part of the pattern? Do not permit the evaluator to just say there
are other examples. Make the evaluator
keep naming examples until he runs out of examples. Compare the examples she provides with the
examples mentioned in the report. Ask
the evaluator about other examples that the mother provided or is otherwise included
in the evidence. If you had considered
all of the examples would you have recognized this as the pattern of the
father’s abuse? Are you aware that
evaluators with inadequate domestic violence training tend to minimize the
significance of dv?
Ask if
the evaluator has any training in safety or lethality assessment. Describe what that training consisted
of. What behaviors by alleged abusers
have been shown to create a higher risk of lethality or serious injury? Keep asking until the evaluator admits he cannot
name any others. Has he ever conducted a
lethality assessment? Is there any
information in the report about a lethality assessment or the significance of
allegations about behaviors known to create greater risks? Go through other examples of behaviors
associated with higher risks particularly those alleged in the case. Were these mentioned in the report? Do you know if domestic violence advocates
routinely conduct safety and lethality assessments? Do you think it is likely they would have
recognized the dangerous behaviors that you missed? Are you aware the Saunders’ study found that
dv advocates were far more knowledgeable about topics like lethality studies
than evaluators and other court professionals?
Did you consult with a dv advocate as part of your investigation? Are you aware that the Greenbook Initiative
encourages consultation with dv advocates in potential domestic violence
cases? Since you missed several of the
behaviors known to suggest increased danger and several types of abuse that
could be part of a pattern of coercive and controlling behavior, do you think
it would have been a good idea to consult with a domestic violence
advocate?
How
often do you believe mothers make deliberately false allegations of domestic
violence or child abuse? If the
evaluator seeks to avoid the question by denying knowledge ask what her best
estimate is? Assuming the answer is more
than two percent, continue this line of questions. Can you cite any scientific research to
support your estimate? Do you know if
the Department of Justice study cited specific research about the frequency of
false reports by mothers and fathers?
Are you aware that the Saunders’ study found that evaluators and other
court professionals who believe mothers commonly make false reports had
inadequate training in domestic violence and were more likely to recommend
arrangements that place children in jeopardy?
If you had been aware of these findings would you have done anything
differently in preparing your evaluation?
Are you
familiar with the scientific research led by Nicholas Bala that is prominently
cited in the Saunders’ study? If you
knew this study found that mothers in contested custody make deliberately false
reports only 1.3% of the time, would that affect your estimate of how often
mothers make false reports? If you were
aware that father’s involved in contested custody are sixteen times more likely
than mothers to make deliberately false allegations, would that have affected
how you prepared your evaluation? Do you
think women are sixteen times more honest than men? Is it more likely that this applies only to
parents involved in contested custody cases?
Do you believe the frequency of fathers’ false allegations is because a
high percentage of contested custody is domestic violence cases? And most of these fathers are seeking custody
as a tactic to maintain control over their ex-partner? If appropriate, are you telling this court
you completed your investigation and made recommendations without considering
the father’s motivation for seeking custody?
Are you
familiar with the concept of confirmation bias?
Is it fair to say this occurs when a professional is expecting a
particular outcome and thus ignores information that undermines the expected
result and focuses on supportive information?
And professionals can engage in confirmation bias without realizing they
are doing so? Would you agree that
confirmation bias is probably one of the factors that explains the findings in
Dr. Saunders’ report that evaluators who believe women frequently make false
allegations are more likely to reach that conclusion and make recommendations
that hurt children? Be careful not to
ask questions to give the evaluator the opportunity to explain why it doesn’t
apply in your case.
Many of
the challenges to the evaluation will be specific to the case. If an evaluator recommends some form of joint
custody use statements in the report that this is harmful to children because
abusers use this to control their ex-partner.
When evaluators recommend unsupervised visitation, we can use the
findings that supervised visitation for dangerous abusers is not recommended as
often as it should be and supervised visitation for abusers is in the best
interests of the children. If there is
an issue where the mother has been angry or emotional, use findings that this
information is used far out of proportion to the significance it has regarding
parenting ability.
The
report also discussed the finding that unqualified evaluators tend to pathologize
protective mothers leading to harmful custody decisions. If someone had a genuine and serious mental
health disorder it would impact them in many aspects of their life and not just
in family court or responding to her abuser.
Ask what the evaluator did to avoid this mistake as discussed in the
Saunders’ report. Can the evaluator
explain why the Saunders’ study believes this practice hurts children?
In
cases where the evaluator disbelieves or minimizes the mother’s domestic
violence allegations ask what was done to screen for dv. The Saunders’ report says that the typical
psychological tests used in custody courts are not useful for screening
domestic violence. In most cases the
evaluator will not have used any tests that can be used to screen for domestic
violence. The DOJ study suggests this is
a strong indication that the evaluator doesn’t have the necessary training to
recognize domestic violence. In practice
this will probably apply to almost all evaluators.
The
Saunders’ study found a strong connection of sexism and belief in patriarchal
norms with a lack of adequate training and recommendations that harm
children. Be careful about asking
questions about this because this gives the evaluator a chance to deny their
bias. You can ask about specific
statements or approaches that are obviously biased such as when Dr. Marcus
referred to the mother as “hon.” This
issue can also be used when an evaluator has spent substantially more time
speaking with the father and his supporters.
This material can better be developed with the testimony of an expert
testifying on behalf of the mother.
If the
evaluator issues a report based on PAS or even alienation, there is strong
research in the Saunders’ study to challenge it. We can start by asking the evaluator if he
agrees that sex between adults and children is improper. Then ask if there is any research not based
on the belief that sex between adults and children can be appropriate (this is
what PAS is based on), that “alienating” behavior creates a safety risk. Are you aware the DOJ study found that PAS,
including by any other name has no scientific basis? Are you aware PAS was rejected for inclusion
in the DSM-V because it has no scientific basis? Are you aware that the Saunders’ study found
that evaluators with inadequate training tended to believe the myth that women
frequently make false allegations but alienation theories, particularly those
used to separate children from their primary attachment figure are based on a
belief that most dv and child abuse allegations by mothers are false? Are you aware that evaluators are starting to
lose their licenses for using PAS? Do
you know if that is because they are in affect creating a diagnosis that does
not exist? You can also ask questions
comparing the harm of separating a child from their primary attachment figure
with the harm of negative statements about the other parent. Ask for any research findings because there
is no scientific support for these standard biased practices.
Judges
In
order to encourage the judge to be open to research and practices that are
significantly different than she is used to, we need to present it in as
non-threatening way as possible.
Emphasize that this is brand new research. The message is that the judge is not being
blamed for past decisions before the research was available. If the opportunity arises we can acknowledge
that the judge might have been hampered by poor lawyering and unqualified
evaluators. Indeed that is supported by
the Saunders’ study. One of the
important points in the research is that the training required of judges and
other professionals does not provide them with the necessary domestic violence
expertise so it is important to be open to information provided by dv advocates
or other similar experts. Tell the judge
that the new research has found that most court professionals do not have the
dv training they need, often believe the myth that women frequently make false
allegations and this often leads to decisions that place children in jeopardy.
There
is strong support in the Saunders’ study to require supervised visitation for abusers. If this is what the children need it is
important to ask for this at the start of the case because once the mother
offers unsupervised visits, she is acknowledging the father is safe. Obviously the risk is that the judge treats
that request for supervision as hostile or alienating, but emphasize this is
what the research found to work best for children. Ask the court to pressure the father to stop
his abuse instead of pressuring the mother to cooperate with her abuser. This way the goal is to have the father
actively involved with the child but the way to do this is for the father to
behave in ways that benefit the children instead of sending the harmful message
that the father’s abuse is acceptable.
If the
father seeks to limit the mother to supervised visitation (assuming there is no
genuine safety issue), the response is not to focus on defending the mother but
in using his request to confirm his abusiveness and willingness to hurt the
children in order to maintain control.
In the Saunders’ study, cases in which safe mothers lost custody and
were limited to supervised or no visitation were examined to see what was wrong
with the court practices. This is
because such decisions are always harmful to the children and generally caused
by bias and a lack of training. Help the
judge see what such an outcome would look like before there is any serious
consideration of this common mistake.
Make it
as easy as possible for the judge to recognize the father’s abuse. Clearly state at the beginning of the case
that the father has a history of domestic violence. Put all of his coercive and controlling
behaviors together to help the court see the pattern. As the father engages in litigation abuse or
other abusive behaviors label these as a continuation of his pattern. Those behaviors that have been shown to
create a higher risk of lethality or other danger should be discussed. Ask the court to order a risk assessment
instead of or if necessary in addition to an evaluation. The Saunders’ study found that most
evaluators and other court professionals do not have the training to assess
safety, but this is the most important consideration in order to protect
children. Offer to provide the court
(and the other party) research that supports your claims and let the judge know
the information that will be provided.
This supports initial restrictions on the father’s access to the
children and the mother. By letting the
judge know early in the case that there is substantial evidence and research to
support the claim the father is dangerous it may discourage the court from
making dangerous initial decisions. Once
the court makes a mistake, the judge is often reluctant and defensive when
later information demonstrates the harm created by the initial decision.
After the Case Goes Bad
If
there is still time to appeal, you can cite the Saunders’ report in support of
the appeal. There are likely to be numerous
mistakes the court made that are covered in the report. I would emphasize that there is no reason for
the court to defer to the trial court because the trial court did not have this
critical research. The mistakes
described in the report lead to harmful outcomes for children so a court using
best interests of the child should consider this research in making its
decision.
More
common will be cases in which the court has already made a decision that is
harmful to the children and an appeal would be too expensive or it is too late
to appeal. I believe the release of the
Saunders’ study, by itself creates a change of circumstance that would justify
asking the court to take a fresh look at the case based on the research in the
report that was previously unavailable to the court. Protective mothers could cite specific
approaches and practices used by the custody court that the Saunders’ report
demonstrates harm children. Surely the
judge is not going to claim to have already known the court was using bad
practices so the best interests of the children demand the court reexamine the
facts and circumstances based on this new research from the United States
Department of Justice. If there are
factual changes in circumstances such as the father using the control given him
by the court to undermine the mother’s relationship with the children, this can
be used together with this research.
Many of
the cases that need to be corrected involve the extreme outcomes in which
alleged abusers receive custody and safe, protective mothers are limited to
supervised or no visitation. The
Saunders’ study included interviews with 24 mothers who were victims of these
outcomes. Dr. Saunders interviewed the
mothers as part of the study in order to understand the kinds of mistakes made
that lead to these harmful outcomes. To
say this more directly when the mother is safe, these outcomes are always
wrong.
More
specific to the case would be to show how the professionals demonstrated their
lack of adequate domestic violence training.
In many of the cases the evaluator and other court professionals failed
to find domestic violence because they did not know how to screen for it. The Saunders’ studies specifically raises
concern where evaluators use general psychological tests like MMPI which tell
us virtually nothing about domestic violence and fail to use needed screening
tools like the Campbell Danger Assessment.
“Evaluators using general measures of personality-psychopathology were
more likely to recommend sole or joint custody to the abusive father in the case vignette.” (Report, P.
15).
This
also contributed to the common problem of safe mothers being pathologized
through the use of psychological tests that were not made for the populations
seen in custody court. “Some of the
standard tests may also measure and confuse psychological distress or
dysfunction induced by exposure to domestic violence with personality disorder
or psychopathology.” (Report, P. 133). Until there is more and better training and
courts reform their outdated practices, this will be an important point that
can be made in almost every domestic violence case. This can be supported by the failure of the
court professionals to consider the pattern of coercive and controlling
behaviors that includes tactics far beyond just physical assaults.
In
cases in which mothers lost custody because they were wrongly pathologized by
the misuse of psychological tests, the response can include, “One guidebook for
judges cautions that ‘Generally…psychological testing is not appropriate in
domestic violence situations. Such
testing may misdiagnose the non-abusive parent’s normal response to the abuse
or violence as demonstrating mental illness, effectively shifting the focus
away from the assaultive and coercive behaviors of the abusive parent’ (Dalton,
Drozd, & Wong, 2006, p. 20). Not
surprisingly, evaluators using these measures were less likely to have received
information on screening for domestic violence and assessing
dangerousness.” (Report, P. 124).
Few of
the evaluators or court professionals have the needed training in assessing
safety which is critical because it means they don’t know how to protect
children’s safety. This can be
emphasized when there are allegations of specific acts that have been shown to
create a higher level of lethality or serious danger. Among the common examples would be hitting
mother while pregnant, strangulation, hurting animals, unconsented sex,
violating laws and orders and threats of suicide, kidnapping or murder. Other related circumstances such as
availability of guns, mental illness, substance abuse and tactics that seek
custody as a way to pressure the mother to return further increase the risk. The evaluator or other professional could
conclude the allegations are false, but if they have the needed training would
at least mention that these concerns are significant because of the correlation
with higher risk of lethality.
These
critical mistakes will be present in virtually every case because the
professionals relied on by the court do not have the training or expertise
necessary to handle domestic violence cases.
Many other types of mistakes are common and can be used to support an
application for modification of the custody-visitation arrangement based on changed
circumstances. The Saunders’ study found
a connection between a lack of training, belief in the myth that women
frequently make false allegations and recommendations that place children at
risk. Accordingly if the evaluator or
other professionals made any statements suggesting they believe or relied on
this myth, this would be proof of their inadequate training and bias. Sometimes the statements will not be direct
but can be implied from the circumstances.
In one case the CPS caseworker accused the mother of making deliberately
false allegations to gain an advantage in the case. The findings, however confirmed the mother’s
complaint was accurate but CPS did not consider the father’s acts as abusive. In another case involving sexual abuse
allegations, the court professionals considered only the possibility the child
was abused or the mother made a deliberate false report. They never considered the likely possibility
that the child’s reaction was based on a violation of her boundaries or a good
faith report that could not be confirmed.
In
other cases, court professionals may have relied on information that is not
probative. Common examples are when they
rely on the fact the mother returned to her abuser, failed to follow-up on
petitions for a protective order, did not have police or medical reports or the
children showed no fear when interacting with their father in front of
witnesses. The use of any of these facts
to support a finding against abuse allegations would demonstrate inadequate
training in screening domestic violence.
Another
common mistake is a belief that the danger ends when the parties separate. This might also be expressed in the fact that
the father has not physically assaulted the mother since the parties separated
and he had limited or no access to her.
This would demonstrate a lack of understanding of post-separation
violence which is one of the specific areas Dr. Saunders found evaluators and
other professionals need. One of the
likely dangers is that the father will abuse future partners and if he has
custody or unsupervised visitation, the children will witness still more
domestic violence. Any recommendation to
give the father custody or unsupervised visitation without discussing this risk
should be understood as proof the professional is missing critical domestic
violence training.
“Similar
to the emphasis on cooperative parenting, use of the label “parent-alienation
syndrome” (Gardner, 1998) or, more recently, “parental-alienation disorder”
(JBernet, 2008; von Boch-Galjau, Baker, & Morrison, 2010) can also place
battered women in a no-win situation.
Battered mothers are vulnerable to these labels when they make formal
child abuse allegations or raise concerns about the possible abuse of the
children by an ex-partner. Many child
abuse professionals believe that mothers coach their children to make false
allegations in contested custody disputes (Faller, 2007). As noted earlier, they may even face court
sanctions and lose custody as a result of raising such concerns (Faller &
DeVoe, 1995). However, research
indicates that although false allegations may occur more frequently in
divorce-access disputes, the non-custodial parent (usually the father), not the
custodial parent (usually the mother) tends to make more false reports (Trocme
& Bala, 2005). Practicioners who
apply parent-alienation syndrome (PAS) or parent-alienation disorder
formulations tend to automatically label a parent as an “alienator” without a
thorough investigation or the allegations (Brown, Fredercio, Hewitt &
Sheehan, 2000; Brown Frederico, Hewitt & Sheehan, 2001; Meier, 2009). As a result, battered mothers may be viewed
as both pathological and abusive.”
(Report, P. 22-23). This quote
can be used where the court’s mistake was based on alienation theories. The Bala research can be used when court
professionals fail to have the proper skepticism of allegations made by
allegedly abusive fathers.
In
cases in which the judge or other court professionals insisted on shared
custody or attacked the mother for objecting to sharing custody with her
abuser, consider, “Of particular concern was the relatively high percentage of
evaluators who recommended that the victim receive physical custody, but that
legal custody be shared by the parents.
Evaluators must understand the potential negative implications of this
arrangement, given the likelihood that many abusers will use the arrangement to
continue their harassment and manipulation through legal channels (Bancroft
& Silverman, 2002; Jaffe, Lemon & Poisson, 2003; Zorza, 2010). Abusers can gain access to victims by
manufacturing reasons to ‘discuss’ child rearing or by insisting upon joint
attendance at school events, parent-teacher meetings, or medical appointments. They can also withhold consent for a child’s
counseling, medical procedures, and extra-curricular school events.” (Report, P. 130).
The
Saunders’ study found a correlation between a belief by evaluators and other
court professionals that mother’s attempts to protect children was harmful and
claims of “alienation” with beliefs by professionals that domestic violence is
not important, women frequently make false allegations and men are entitled to
control their partners. Accordingly,
courts should carefully scrutinize findings based on “alienation” and the
mother’s fear of the father, particularly when her allegations of domestic
violence or child abuse were not thoroughly investigated. Punishing mothers for seeking to protect
children from their fathers or continuing to believe the father is dangerous
are common examples of gender bias because she is being blamed for her normal
reaction to the father’s abuse. Courts
should seek to avoid these common mistakes and discredit evaluators and GALs
who support these errors.
Reforming the Broken Custody Court System
For
many years custody court officials confidently responded to complaints from
protective mothers by minimizing and rejecting their concerns. In some cases they suggested there must be
something wrong with a woman who believed all of the court professionals were
wrong. Now the United States Department
of Justice has produced a comprehensive study that not only confirms what
protective mothers have been saying that the courts are getting a high
percentage of domestic violence custody cases wrong, but that most of the
professionals relied on by the courts, and particularly the evaluators do not
have the training or understanding of domestic violence necessary to help
courts make an informed decision concerning the well being of children. The present outdated and discredited
practices give judges little chance to protect children. This has resulted in courts sending 58,000
children for custody or unprotected visitation with dangerous abusers every
year. During a two year period starting
in 2009 we know of news stories of 175 children murdered by fathers involved in
contested custody cases, often with the unwitting assistance of the courts
whose most important purpose is to protect these children. With the tragic outcomes and the clear
findings in the Saunders’ study, administrative judges cannot justify the
status quo and we must use the DOJ report and other research to make sure the
needed reforms are implemented. There
must be an urgency for creating the reforms because every day courts using the
flawed practices place children in jeopardy.
We need
to bring the research from the Saunders’ study to the attention of the court
system and ask the courts to implement the reforms needed to protect
children. Dr. Saunders stated very
clearly that contrary to the beliefs of most judges, the present training
practices do not provide the expertise necessary. Locally I would encourage protective mothers,
domestic violence organizations and other interested parties to request meetings
with the local administrative judge. The
purpose is not to speak about individual cases which would raise ethical
issues, but the need for the court to use the new research to reform practices
that have been shown to hurt children.
Nationally, leaders of the dv and protective mothers’ movement need to
contact national organizations of judges and create a dialog to promote
implementing the reforms suggested by the Saunders’ report. If you can’t promote a meeting, at least
write to the administrative judge, provide the information about the Saunders’
report and ask how the court will respond to this research.
Similarly,
we can speak with our state legislators, provide this research and ask them to
help protect the children. Hearings on
the problem would be helpful because it would attract attention to something
the media has failed to expose. Ask the
legislators to consider the Safe Child Act that I wrote about recently. If they have any interest in sharing in the
$500 billion savings by dramatically reducing dv crime they can implement what
I call Quincy Model 2.0. Surely in these
hard economic times there is no justification for continuing the trillion
dollar abuser subsidy.
I am
frequently contacted by mothers who want to go public with their stories. They need to be careful because courts often
retaliate when their bad practices are exposed.
Of course they claim to be doing this to protect the children they sent
to live with abusers. The media has been
missing in action with respect to the frequent tragedies caused by the standard
flawed practices in the custody court system.
They often do not want to write about something they view as he-said-she
said and are not willing to invest the resources to establish individual
decisions were wrong or even outrageous.
Even when they can be pretty confident the court failed the children
they are reluctant to write a story that could risk a lawsuit.
The
Saunders’ report could be used to promote better coverage. They should have more confidence in writing a
story based on a report issued by the United States Department of Justice. The report does not speak about specific
named cases but rather a pattern of bad practices that place children in
jeopardy. I would encourage you to
contact your local media, make them aware of the significance of the Saunders’
report and ask them to help expose the scandal.
They may want to discuss specific cases, particularly local cases to
illustrate the problem, but using the research and the pattern of mistakes should
strengthen what mothers are saying and give them greater credibility. It also means mothers do not need to go into
all the details of their case which undermines their efforts to attract
attention. Instead they can show how the
problems cited in the Saunders’ report were the same mistakes made in your
case. It is helpful when seeking
publicity to include the local dv agency or a dv expert that will give the
story even more credibility.
I would
also like to encourage people to discuss the Saunders’ report and the general
problems in the custody court with family, friends and community members. You never know when someone you are speaking
with may have an important contact or special interest in the subject. No one wants to see children suffer (aside
from the abuser) so this is something members of the community are likely to
care about. If you are comfortable
perhaps you can discuss the problem at a community event or offer to speak at
different clubs or service organizations.
Only the other side benefits by keeping the failures in the custody
courts a secret. At the same time I
would encourage you to speak about the problem in ways we can be heard. I know many court professionals have done
many despicable things and we often are very angry. Saying what we want to say may feel good, but
it can undermine our ability to be heard.
I also
recognize that we have been disappointed so many times before. It is hard to be optimistic even in the face
of overwhelming research that supports everything we have been saying for all
these years. Nevertheless it is
important that we convey the message that this is an earthshaking event. In effect the United States Department of
Justice is acknowledging that our justice system is failing our children. We can understand the causes and work on
solutions but no one should tolerate standard practices that deny our children
the opportunity to be safe in their home and reach the potential God gave them
when they were born.
Barry Goldstein is a nationally recognized domestic violence
expert, speaker, writer and consultant.
He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE
and CHILD CUSTODY. Barry can be reached
by email from their web site www.Domesticviolenceabuseandchildcustody.com
