Real World vs. Real Courts

03/24/2017 11:16 am ET

Conclusive Research Custody Courts Fail Children in Abuse Cases

In the real world, domestic violence is a catastrophic problem that causes far more harm than previously realized. The lives of at least one third of women in the United States are harmed by exposure to physical abuse and if all forms of domestic violence were considered that number would be far higher. Every day three woman are murdered by their abusive partners. The United States spends more than one trillion dollars every year to tolerate men’s abuse of women including $750 billion in health care costs.

Contrary to earlier assumptions, domestic violence is not caused by substance abuse, anger management difficulties or mental illness. Although there are cases where women assault and mistreat their male partners, domestic violence is a gendered crime based on a long history of society tolerating husbands’ abuse of their wives. The first law in the United States concerning what we would now call domestic violence said that husbands cannot assault their wives---ON SUNDAY. There is no equivalent history of wives being encouraged or permitted to discipline or assault their husbands. This history matters today because it impacts the beliefs and actions of abusers even though the laws have changed. Treating people the same despite very different circumstances is fundamentally unfair and in practice gives abusers a strong advantage.

Men use a variety of legal and illegal tactics against their intimate partners to maintain what they believe is their privilege to coerce and control their partners to make her do what he wants. Significantly his abuse is not caused by anything she did and the end of the relationship will not change his behavior. Important medical research from the CDC called the ACE (Adverse Childhood Experiences) Studies establishes that most of the harm from domestic violence is caused from the fear the abuser tactics are designed to cause which results in mothers and their children living with the fear that causes the worst form of stress. Unless there is an effective response to his abuse, this stress will lead to a lifetime of health and social problems and shorter lives.

Abusers use a variety of tactics to prevent victims from reporting their abuse. Domestic violence is painful and embarrassing which contributes to making it the most underreported crime. The lack of a timely report is not an indication that no abuse occurred. Reports by mothers concerning domestic violence and child abuse are very reliable with less than two percent being deliberately false.

In the real courts, domestic violence is often treated as if it was less significant than far less impactful issues like alienation, shared parenting, reunification, economic well-being, better schools and many other factors required to be considered. Many non-probative factors are used to minimize or deny reports of domestic violence including the lack of police or medical records; returning to alleged abuser; end of relationship, mental health of alleged abuser; lack of fear shown during supervised visits; lack of recent assaults; the success of the abuser in other parts of his life; the anger or emotion of the alleged victim; children appearing to do well on the surface; pathologizing the victim and the myth that mothers often make false reports.

Court professionals often view reports of abuse as an obstacle to cooperative parenting rather than a health and safety issue. And they blame the victim for raising the concern rather than the abuser who caused the problem. Many courts have caused lawyers and other professionals to believe judges would prefer not to hear about domestic violence and child abuse. Lawyers often refuse or discourage any attempts to present evidence of abuse. Punitive and retaliatory actions against protective mothers and professionals who advocate zealously on their behalf support a censorship against reporting abuse. Many mothers are afraid to raise abuse issues for fear of retaliation. This can have the benefit of shortening cases, but denies courts the information they need to keep children safe.

Although mothers make deliberate false reports less than 2% of the time, alleged abusers are winning 73% of abuse cases. The doctrine of stare decisis encourages courts to assume they are making the right decision as the children suffer. Courts rarely have any mechanism to review patterns of mistakes that harm children even when court decisions lead directly to child murders.

The Nature of Abuse Cases

In the real world, the most common question about domestic violence concerns why does she stay. Increasingly the answer is that she is afraid she will lose her children if she tries to leave. The most dangerous abusers have developed an unspeakably cruel tactic of seeking custody in order to regain control over their partners or punish them for leaving. Parental Alienation Syndrome was concocted by Richard Gardner in order to give unscrupulous professionals an approach to help their wealthy abusive clients. In most contested custody cases, the abuser threatened to take the children and bankrupt the mother if she dares to leave.

Abusive fathers who use the custody tactic are the most dangerous to the mothers and children. They believe she has no right to leave so they are entitled to use any tactics necessary to regain what they believe is their male privilege to control their intimate partner. They often view their abusive actions as self-defense as it is a response to her refusal to obey him. This makes it easier for them to convince the court that they are the real victims. It is hard for untrained professionals to recognize the risk because in most cases the abusers have not committed the most severe physical assaults. They are dangerous because they are willing to hurt or even kill the children as the best way to punish the mother.

The custody tactic has been all too successful in undermining society’s efforts to prevent domestic violence. Years of progress in reducing domestic violence homicides have been stopped or even reversed because of the success of the custody tactic. In Dutchess County, N.Y., the county legislature asked a committee of professionals to review the county response to domestic violence after a series of DV homicides left nine people dead in less than a year. The committee found that many battered mothers had stopped using the courts because the judges were instead helping their abusers and putting them in even more danger. The standard custody practices, including the use of PAS were helping abusers and contributed to the increase in murders.

In the real courts, however, contested custody is viewed as high conflict cases in which the parents are angry at each other and act out in ways that hurt the children. The responses tend to encourage or even force the parents to cooperate even when this is dangerous. This creates a false equivalency between a victim of domestic violence trying to protect her children and an abuser using the court to regain access and control over his victim. The courts focus far more time and attention on cooperative parenting and alienation which have limited impact on the children while minimizing or ignoring the history of domestic violence and child abuse which will have catastrophic consequences on the children unless they are helped to heal.

Sexual Abuse of Children

Child sexual abuse is a subject in which our society and the courts have failed children in the most miserable ways imaginable. Highly credible research from the CDC establishes that one-quarter of our children are sexually abused, mostly by people they know. The methodology is important because it eliminates any possibility that the frequency was increased by false claims. The common lie and myth that children frequently make false reports is exploded by this and other good research, but inadequately trained professionals, unfamiliar with current research continue to use this obscene lie to jeopardize children.

One of the fundamental problems is that our response to child sexual abuse depends on the relationship between the alleged offender and the child. In the less than ten percent of cases in which the pervert is a stranger, the investigation is led by law enforcement. The purpose is to bring criminal charges so evidence is collected and they aggressively seek to quickly interview the potential defendant and try to get him to take a lie detector test. When the perpetrator is someone the child knows, particularly a close relative, the investigation is led by a social worker. The parents are given plenty of notice so the offender can silence the child and destroy any evidence. The purpose of the investigation is reunification so little effort is made to obtain evidence. If the case goes to family court this lack of evidence is treated as proof the mother must be coaching the child.

Child sexual abuse is the most consequential offense short of murder or catastrophic physical injury. Rape and molestation shorten lives and create a lifetime of health and other problems. Children need protection and healing in order to have any chance to recover, but flawed practices that fail to protect them doom many children to horrific lives. Clearly, as a society, we have failed to make prevention of child sexual abuse the priority it merits. Too often we have turned our heads away and failed to believe our children.

Although less than 2% of reports by mothers concerning child sexual abuse are deliberately false, custody courts disbelieve 94% of these reports. This means a large majority of children in these cases are forced to live with their rapists and often lose mothers who tried to protect them. The custody case is often the last chance to save the children, but the courts are failing.

The hostility towards sexual abuse reports is so severe that most attorneys refuse to present evidence of child sexual abuse. This is largely because they have seen the protective mothers virtually always lose these cases. Many of the standard responses are deeply flawed. The myth of frequent false reports continues to hold enormous power in these cases. The courts rarely seek professionals who have special expertise in responding to sexual abuse. The failure to bring criminal or child protective charges is often seen as proof the reports are false despite the different level of proof required. Children are rarely given the necessary time to develop a trusting relationship with the interviewer and the best practice of play therapy is often missing. Court professionals are extremely skeptical about reports concerning men who are successful in other parts of their lives. Many professionals expect strong physical evidence, but many assaults provide no physical evidence and it may no longer be available by the time the children reveal his assault. Courts often fail to take necessary action to prevent children from being silenced. Children do not understand the significance of what the abuser did to them and may be afraid they did something wrong. Accordingly they reveal what happened a little at a time and to the person they most trust which is often their mother. When more information comes out later untrained professionals view this as support of coaching and the mother is the least likely person courts will believe.

Use of Current Scientific Research

The ACE Research from the CDC is incredibly exciting research that is often compared to the Surgeon General’s Report linking cancer and smoking. In response to the Surgeon General, we created a public health response that has saved millions of lives and trillions of dollars. Our life expectancy and quality of life were improved by using this knowledge for prevention.

The ACE Research establishes that exposure to domestic violence, child abuse and other trauma reduces the length of our children’s lives and causes them to suffer a lifetime of health and social problems. Significantly, the greatest harm is not from the immediate physical injuries which has been our focus, but living with the fear which causes the worst kind of stress.

Domestic violence is central to the harm caused by ACEs. Domestic violence is one of ten ACEs and also causes emotional abuse which is a second ACE. Men who abuse their partners are 40-60% more likely to also commit physical and sexual abuse that are two more ACEs. Domestic violence also makes the remaining 6 ACEs more likely.

The essence of domestic violence is that abusers use a variety of tactics, most of which are neither physical nor illegal to scare and coerce their partners to do what they want. This causes the partner and any children in the home to live with fear that leads to the worst kind of stress because they have no control over when the abuser will act out.

The legislatures in three states and many communities have adopted resolutions seeking the use of this research by government entities. Children who have been exposed to one or more ACEs can still be saved from the catastrophic consequences. This will require therapy and medical treatment to respond to specific problems they are having and to reduce the fear and stress. They also must be protected from exposure to further abuse or else they cannot heal.

Our society has a long history of tolerating behavior that is now understood to constitute domestic violence and child abuse. The present levels of cancer, heart disease, diabetes, mental illness, crime, substance abuse, suicide, and many other health and social problems are based on our long tolerance of domestic violence and child abuse. The exciting promise of the ACE Research is that we will dramatically reduce these scourges and increase life expectancy if we use the ACE Research to prevent abuse.

The custody courts developed their response to domestic violence at a time when no research was available. At the time it was widely believed that domestic violence was caused by mental illness or substance abuse. This led courts to turn to mental health professionals as if they were the experts. It turns out the initial assumptions were wrong and we now have a specialized body of research that could help the courts recognize and respond to abuse cases.

Research shows that psychologists are not strong on science and this has probably contributed to the failure of the courts to integrate important research. A study for the National Institute of Justice includes preliminary findings that raise concerns courts are relying on subjective opinions. This makes their work easy for the professionals because they can just say whatever they believe and there is little accountability. The problem is their opinions are usually unsupported by good research and in many cases are contradicted by research they are unfamiliar with.

The courts routinely use approaches that ask victims to just “get over it.” They focus only on recent physical abuse and the concerns are limited to physical injuries. All of these standard approaches are contradicted by the ACE Research. The best interests of the children requires courts to focus on reducing the fear and stress caused by exposure to ACEs, but this is almost never the focus of court discussions.

The Saunders’ Study focuses on the knowledge and training of evaluators, judges and lawyers concerning domestic violence. These professionals usually have attended some training about domestic violence, but it is often presented by other professionals who are not experts in domestic violence. Bogus approaches such as alienation and high conflict are often part of the training. The Saunders’ Study found these professionals need training in specific topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children. A large number of court professionals probably a majority do not have this specific information. Those without this knowledge tend to focus on the myth that mothers often make false reports and unscientific alienation theories. These mistaken beliefs inevitably lead to decisions that hurt children.

One section of the Saunders’ Study looked at “harmful outcome cases.” These are extreme outcomes in which the alleged abuser is given custody and a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation. These decisions are always wrong because the harm of denying a child a normal relationship with their primary parent, a harm that includes increased risk of depression, low self-esteem and suicide when older is greater than any benefit the court thought it was providing. Saunders found that these decisions are based on the use of very flawed practices. Despite this research, courts continue to impose harmful outcome cases on children and often allow this mistake to continue for years.

Accordingly, the failure to integrate ACE and Saunders means courts are frequently disbelieving true reports of domestic violence and child abuse at a time when we have learned the consequences of exposure to abuse are far more consequential than previously understood. Domestic violence custody cases are often the last chance to save the children, but the failure to integrate this important research makes it all but impossible for the courts to save the children.

Relying on the Wrong Experts

In the real world communities rely on the local domestic violence agency to provide the necessary expertise regarding preventing and responding to domestic violence. Advocates would be asked to train professionals and others in the community including law enforcement; education, health, religious community, businesses and many others. Many agencies are invited into the schools to teach students about domestic violence. The Greenbook Initiative from the National Council of Juvenile and Family Court Judges included programs where child protective caseworkers consulted DV advocates when they had cases that might include domestic violence. Communities that adopted this program found it helped caseworkers recognize and respond to domestic violence in ways that provided better protection for the children.

The Saunders’ Study found that advocates have more of the specific knowledge courts need to respond to domestic violence cases then evaluators, judges or lawyers. This makes sense because advocates represent the only profession that works full time to prevent domestic violence. The findings in Saunders support the use of a multi-disciplinary approach which would include advocates to respond to domestic violence issues.

One of the reasons advocates have a better understanding of domestic violence is that they work with many more cases and so it is easier for them to recognize the patterns that are repeated over and over. By contrast, courts often reach conclusions that are rare and highly unlikely. The advocates also understand domestic violence dynamics which explains why abusers hurt their partners and children and that they are unlikely to change without effective intervention. Advocates also are familiar with batterer narratives which helps explain the actions of the abusers.

When courts seek professional expertise they automatically turn to mental health professionals based on history and inertia. The mental health degree is highly valued even though it provides virtually no information about domestic violence. They are asked to evaluate the family by looking for mental illness in the alleged abuser and obvious difficulties in the children. The problem is DV is not caused by mental illness and children respond to abuse in many different ways including appearing to do well on the outside. This leads evaluators to disbelieve many true reports of abuse. The failure to have the specific knowledge recommended by Saunders leads professionals to dismiss true reports based on factors that are not probative. At the same time these professionals rarely look for the pattern of coercive and controlling behaviors which is the best way to recognize domestic violence.

The long history of mistakes and failure to integrate new research discourages courts from using the critical thinking that is needed including consideration of what specific type of expertise is needed. Always relying on mental health professionals is the equivalent of seeking a general practitioner to treat cancer or heart disease.

Many court professionals refuse to listen to advocates because they view them as biased. I have heard many judges say that they are biased because they are always against domestic violence. This fails to consider that this is the law in every state and is supposed to be the practice in every court. Ironically the same judges routinely rely on professionals who are part of the cottage industry that make large incomes by helping wealthy abusers. The cottage industry is both biased and ignorant, but have injected enormous poison into the court system.

Unscientific Alienation Theories

In the real world, alienation theories are rarely discussed not because parents never make negative statements about each other but because it rarely has a significant impact on the children. Negative statements are made even in intact families but the effects are usually short-lived and negligible. The American Psychiatric Association rejected inclusion of unscientific alienation theories in the DSM-V because there is no scientific basis to support it. No reputable professional organization supports PAS even by other names.

Parental Alienation Syndrome was concocted by Richard Gardner not based on any research but only his personal beliefs, experiences and biases. This included many public statements to the effect that sex between adults and children can be acceptable. It is a highly sexist theory used almost exclusively against mothers and based on the false assumption that most reports of abuse are false.

In the real courts unscientific alienation theories are given far more weight than legitimate and highly consequential problems like domestic violence and child abuse. Courts often allow mental health professionals who make large incomes by promoting bogus alienation theories to serve in “neutral” positions. They have succeeded in spreading their poison throughout the custody court system.

Even after the latest rejection of PAS for the DSM-V and the notoriety PAS has earned, courts continue to use it by calling it something else. Typically a judge will say that there are many cases in which parents say negative things about the other so regardless of the science, alienation is real and therefore they can consider evidence about it.

While it is true there is alienation, even while admitting there is no scientific support the courts are accepting other parts of PAS that they just rejected. The lack of scientific support means it is not caused by mental health issues so there is no reason to spend large sums of money for psychologists to create a diagnosis the American Psychiatric Association determined does not exist. The courts are instead responding to bad behavior which they can recognize without the need for biased professionals pathologizing anyone who raises concerns about abuse. As we saw earlier, the flawed practices often lead to denial of true reports of abuse and then the victims are falsely labeled as alienators. The courts are also accepting the baseless assumption in PAS that alienation is the most harmful possible behavior.

The ACE Research comes from the Centers for Disease Control and Prevention. It was peer reviewed and at least five additional studies have confirmed and expanded the original findings. The ACE Research establishes that alienation does not even rise to the level of a health and safety issue unless it results in ending a relationship with the parent and child. Ironically the punitive approach supported by PAS is far more likely to take a parent out of a child’s life. In practice the courts are using a theory rejected by the leading professional associations while failing to integrate research from the CDC that has the highest possible credibility.

Consequences of Using Outdated and Discredited Practices

The most successful response to domestic violence occurred in Quincy, Massachusetts where the implementation of a group of best practices resulted in a dramatic reduction of domestic violence crime and especially murders. This became known as the Quincy Model and was based on taking domestic violence seriously. District Attorney, Bill Delahunt noticed that victims stopped cooperating when their abusers sought custody. This did not prevent success in Quincy because at the time it was a rare tactic. Today it is a standard abuser tactic and yet the courts rarely consider the motive of the father even when he had little involvement with the children during the relationship.

The successful use of this custody tactic by abusers undermines society’s efforts to prevent domestic violence and is a major factor preventing victims from leaving. As in Dutchess County, some of the women forced to stay in order to try to protect their children do not survive this decision. And the support the courts provide to abusers increases their sense of entitlement thus encouraging them to commit even more crimes.

Even worse, the failure to protect the children of abusers who are using this tactic shortens and often ruins their lives. The ACE Research establishes that living with the fear from witnessing abuse shortens lives and creates a lifetime of health and social problems. There is nothing that goes more to the essence of the best interests of the children. And yet almost two decades after the first ACE Study was released few court professionals are familiar with this vital research and discussion of how to reduce the children’s fear and stress is rare.

Contrary to popular misconceptions, children do not need both parents equally. They need the safe parent more than the abusive one and the primary attachment figure more than the other parent. Domestic violence, child abuse and other factors that impact children’s health and safety are by far the most important issues for the well-being of children. Nevertheless, new research from the National Institute of Justice demonstrates that courts place more value on alienation issues that have no impact on health and safety than issues of domestic violence and child abuse. As mentioned earlier, many of the worst diseases and social problems are significantly more common in the United States because of the court’s failure to save these children.

In fairness, most custody cases do not involve dangerous abusers. This means the courts could be doing well in most of their cases, providing a false sense of confidence that the system is working. The abuse cases are the most important because these are the ones that destroy children’s lives unless the courts can recognize and respond effectively to the abusers’ tactics. No judge wants to hurt children, but courts have little chance to save children when they do not use current research or a multi-disciplinary approach.

In one New Jersey case, “Lucy” told her mother that her father and grandmother had touched her inappropriately. The court and child protective used many of the standard flawed responses to reports of child sexual abuse which resulted in custody for the abusive father and supervised visits for the safe, protective mother who is the child’s primary attachment figure. In other words the court created a harmful outcome case that is always wrong. At the first supervised visit, Lucy had a letter for her mother. Lucy said she was sorry she was such a bad girl. She knew she was a bad girl because telling what her father did to her resulted in the worst punishment of her life—she lost her mommy. You can be sure she will never make that mistake again which means if anyone hurts her, even a stranger, we will never find out. So Lucy spent her childhood living with the fear and stress that comes from abusers and could not receive the therapy she needed because everyone pretended she was coached. I am sure this was not the lesson any of the inadequately trained professionals wanted to give Lucy, but this is what happens when children are not believed. Like 94% of child sexual abuse victims, Lucy was betrayed by a flawed system that is tilted to favor abusers. We have to reform the broken system because in the real world, Lucy was a good girl.


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