Adjudicating Domestic Violence Custody Cases: What Judges Must Know

06/14/2017 09:35 am ET Updated Jun 16, 2017

Warning to Judges: Attempting to adjudicate custody cases involving reports of domestic violence and/or child abuse without understanding current scientific research or relying on a multi-disciplinary approach will jeopardize the health and safety of children even if you have been using the old practices for many years.

Current scientific research and media investigations have now reached a tipping point that establishes the present practices used to respond to domestic violence custody cases frequently endanger children and their abused mothers. An earlier study by the Leadership Council found that every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers. Dr. Dianne Bartlow followed: up on news stories over a two-year period that found fathers involved in contested custody cases murdered 175 children. In many of these cases, the courts, using the outdated practices first developed in the 1970s, provided the access the fathers needed to murder their children.

In response to anecdotal reports and other research, Professor Joan Meier decided to gather empirical evidence about the frequency with which abusers prevail in custody disputes. The pilot study results are in; a fuller study is in progress and the final results will be released later this year. The pilot study found that fathers accused of abuse are winning 73% of their cases. It thus appears that since under 2% of mothers have been found to fabricate allegations, in a large majority of domestic violence custody cases the courts, using outdated practices are sending children to live with their abusers and rapists. Research about the frequency with which courts favor abusers and the use of flawed practices that obscure domestic violence and child abuse are incompatible with any continued belief that the present practices are safe for children.

Research and Investigations Establishing the Urgent Need for Reforms

1. Adverse Childhood Experiences (ACE) Research: The ACE Research comes from the Centers for Disease Control and Prevention so is highly credible medical research. It establishes that domestic violence is far more harmful to children than previously understood. The children will live shorter lives and suffer more health and social problems throughout their lives unless courts intervene effectively. The largest risks are not the physical injuries that courts tend to focus on, but the fear and stress that abuser tactics cause. This means approaches that ask mothers and children to just get over it have no chance to work. Courts that do not understand the full harm caused by exposure to family abuse or limit their focus to recent physical incidents are missing more than 90% of the harm. Giving abusers a say in health decisions will prevent children from receiving the needed treatment and requiring unprotected visitation denies children any opportunity to heal. In other words the most common responses courts use take away children’s last chance for a healthy life with the opportunity to reach their full potential.

2. Saunders’ Study: The Saunders’ Study comes from the NIJ in the US Justice Department so again a highly credible source. Custody courts turned to mental health professionals for expertise at a time before we knew that domestic violence is not caused by mental illness. Most of the mental health professionals relied on by the court have now taken some workshops or courses in an attempt to acquire the needed knowledge about domestic violence. The fundamental purpose of the Saunders Study was to determine if evaluators, judges and lawyers have the necessary knowledge to respond to domestic violence cases. The Study found that these professionals need very specific knowledge that includes screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. Professionals without this specific information tend to focus on the myth that mothers often make deliberate false reports, unscientific alienation theories and the assumption that mothers’ efforts to protect children from fathers they experienced as scary are actually hurting their children. Professionals with these mistaken beliefs tend to make recommendations that harm children. Saunders did not attempt to quantify the percentage of professionals who have the necessary knowledge but the frequency of cases focused on the mistaken beliefs suggests the use of unqualified professionals is widespread. The Saunders’ Study found that domestic violence advocates have more of the knowledge about domestic violence that family courts need than the other professionals and supports a more multi-disciplinary approach that would include experts in domestic violence and child sexual abuse when those are important issues in the case.

An important and alarming section of the Saunders’ Study concerned what Dr. Saunders refers to as “harmful outcome” cases. These are extreme decisions in which alleged abusers win custody and safe, protective mothers who are the primary attachment figures for the children are limited to supervised or no visitation. These decisions are always wrong because the harm of denying children a normal relationship with their primary attachment figure is greater than whatever benefit the court thought it was providing. The Saunders’ Study found that harmful outcome cases are caused by the use of flawed practices often involving unscientific alienation theories. The frequency of these mistaken decisions confirms that courts are relying on unqualified professionals. Even more disturbing, we have seen many cases in which judges leave these bad decisions in place even after the Saunders’ findings are provided to the court.

3. Joan Meier Research: The final Meier research will involve a review of thousands of reported cases in which one parent (mostly mothers) raised concerns about domestic violence and/or child abuse and/or a parent (mostly fathers) claimed alienation. The pilot study found the fathers won 69% of the domestic violence cases and 81% of child sexual abuse cases. The courts disbelieved 94% of child sexual abuse reports. The lopsided preference for fathers occurred despite other studies that found mothers rarely make deliberate false reports.

The Meier research also found some of the reasons, or more accurately mistakes that lead courts to jeopardize children. In the cases studied, courts treated alienation as if it was more important to the well-being of children than domestic violence and child abuse. This would seem to confirm the failure of court professionals to understand the ACE findings. The courts also seemed to make no distinction between subjective and objective opinions from experts the courts listened to. It is easier for the professionals to just offer their personal opinions, but in many if not most cases those opinions are unsupported and sometimes even contradicted by current scientific research. This mistake seems to explain why alienation was given far more importance than any valid research would support. As will be discussed later, Meier found widespread gender bias that contributed to the success of abusive fathers.

4. Bartlow Research Concerning Child Murders: Research concerning murders tends to be highly reliable because no one can accuse the victim of lying about their murder. Dr. Bartlow interviewed judges and court administrators in the communities where the tragedies were committed. The judges who agreed to participate tended to be the most informed and interested about domestic violence which is why they took the time to be interviewed. Their discussion of domestic violence custody cases was informative. And yet, these good judges said no reforms were created in response to the tragedy because they all assumed that the murder in their community was an exception. Context is critically important to understand domestic violence and this response illustrates the problem of court professionals failing to look for patterns within and between cases.

The same lack of understanding of domestic violence dynamics and natural defensiveness that create decisions that allow fathers to murder their children also undermines the ability of courts to learn from these mistakes. In Maryland, Dr. Amy Castillo had marital relations with her husband immediately before going to court seeking a protective order for her children. The judge decided that if they were still having sex the father could not be that dangerous. The father used the access to drown the three children. The judge never considered it might have been unsafe for the mother to refuse.

In Connecticut the judge gave the abusive father access to seven-month-old Aaden Moreno. He used this access to throw the baby off a bridge to his death. Afterwards the judge and court administrators tried to justify the mistake by saying there wasn’t a continuous threat as required to justify a protective order. If they learned about domestic violence dynamics, the court professionals would understand that abusers do not need to keep assaulting their victims. Once they commit an assault she knows what he is capable of and often non-physical abusive tactics can be used to remind her to behave.

In California, the judge repeatedly called Katie Tagle a liar when she tried to present proof that the father had threatened to kill Baby Wyatt. After the father used the access provided by the court to kill the baby, the judge was sincerely sorry, but said there was nothing he could have done based on the information he had at the hearing. In a sense he was correct in that as long as courts rely on the outdated practices developed in the 1970s when no research was available, courts cannot protect children. Significantly, the judge assumed the mother was lying not based on actual evidence but based on inadequate training as discussed in the Saunders’ Study.

We now have a specialized body of knowledge concerning domestic violence, and professionals, rarely used by custody courts, with the expertise to recognize and respond to domestic violence. It is these objective practices, supported by good research that can be used to save children. And the same practices that would prevent murders would more often save children from the consequences of living with adverse childhood experiences.

5. Gender Bias: Towards the end of the last century forty states and many judicial districts created court-sponsored gender bias committees. They found widespread bias against women and particularly women litigants. Mothers were given less credibility, a higher standard of proof and blamed for the actions of their abusers. Gender bias is difficult to respond to because it is usually not done deliberately, but many people are highly defensive when told of their bias. This discourages victims and professionals from raising this concern with powerful judges. One of the judges interviewed by Dr. Bartlow suggested many of her colleagues bend over backwards to keep fathers in children’s lives because so many other fathers abandon their children. Now the new Meier Study found that under similar circumstances fathers are far more likely than mothers to win the case. This is not surprising because little was done in response to the earlier studies to prevent this bias.

6. Media Investigative Reports: For many decades the media failed to cover the problems in family courts that often lead to decisions that harm children. Perhaps the research now available that confirms the problem has encouraged investigative reporters to investigate custody cases involving abusers. The Boston Globe sponsored an investigation led by Nestor Ramos and Evan Allen. They focused on Massachusetts cases and reported on a case in which a girl was sent to live with the father who sexually abused her. The reporters found that the failure to integrate the Saunders’ Study contributed to the court failures and this is a problem in every state. Laurie Udesky spent two years investigating court failures for the G. W. Williams Center for Independent Journalism. She interviewed over thirty parents in nine states and experts concerning current research. She found widespread flawed practices that place children in jeopardy. Reporter, Joaquin Sapien is leading an investigation for Pro Publico that already has exposed widespread failures of evaluators in New York. These and other respected media outlets have ongoing investigations that undoubtedly will find still more problems in the family court system.

Conclusion

Some of the judges interviewed by Dr. Bartlow spoke about how their state does a wonderful job in responding to abuse cases but other states they have worked with are doing much worse. In every case, the “good” state was responsible for many avoidable bad decisions. Some of the judges said they could not imagine their colleagues giving custody to dangerous abusers. In reality the bad decisions were made because the judges failed to believe true reports of abuse. When we met with an influential Hawaiian judge, he said the state did not need the Safe Child Act because his courts are already doing everything right. Almost at the moment we spoke with him, another judge made a dangerous decision that placed the life of a Hawaiian girl in jeopardy.

The findings made by ACE, Saunders and Meier are incompatible with defensive beliefs that family courts are doing a good job when responding to abuse cases. I have been looking for a way to bring this research to the attention of court professionals who have the authority to create the needed reforms. I sent a letter to the National Council of Juvenile and Family Court Judges and National Center for State Courts putting together the research and media reports discussed in this article. I was pleased to receive positive responses from both organizations. They expressed appreciation for my work in putting the information together and arranged phone calls to discuss the needed reforms. The National Council put together a team to work with the Stop Abuse Campaign to discuss the issues and collaborate with us to try to make the courts safer for children exposed to one or more ACEs.

I believe the tipping point was reached years ago, but with the addition of the Meier Study, no reasonable professional acting in good faith can deny the need for reforms that include integrating current research and using a more multi-disciplinary approach to protect children in abuse cases.

For thousands of years, society has tolerated behavior that we would now call domestic violence and child abuse. The ACE Research establishes that our current levels of cancer, heart disease, diabetes, mental illness, crime, substance abuse, suicide and many other diseases and social problems are based on our long history of tolerating domestic violence and child abuse. The exciting part of ACE is the promise that we can significantly reduce these scourges of society. The family courts have an important role to play in achieving these benefits. The research and the well-being of our children demand that every judge take a fresh look at standard practices based on all the research that is now available to help protect our precious children.

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