Experts in domestic violence and child custody have long believed Family Courts are getting a large portion of abuse cases wrong. With each new research study; media investigation and avoidable tragedy the proof is more convincing. The evidence includes both the frequency of courts making harmful and dangerous decisions and standard outdated practices that make it difficult for judges to recognize and respond effectively to domestic violence and child abuse.
The ACE (Adverse Childhood Experiences) Research comes from the Centers for Disease Control and Prevention. It found that domestic violence and child abuse are far more harmful than previously understood. Living with an abuser causes fear that leads to stress and causes shorter lives and a lifetime of health and social problems. Significantly, physical assaults are not necessary to cause these catastrophic consequences. Nevertheless, custody courts continue to focus almost exclusively on physical injuries thus missing 99% of the problem. The court professionals are rarely trauma-informed and almost never focus on how to reduce the fear and stress that can ruin children’s lives.
The Saunders’ Study from the National Institute of Justice (NIJ) in the U.S. Justice Department reviewed the knowledge about domestic violence of evaluators, judges and lawyers. 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. Professionals without this knowledge tend to focus on the myth that mothers frequently make false reports and on unscientific alienation theories. These mistaken beliefs lead to recommendations and decisions that harm children. Most court professionals do not have this specific information and so tend to focus on the harmful misinformation. A study led by Joan Meier for the NIJ found that courts are treating alienation that doesn’t even rise to the level of a health or safety risk unless it takes a parent out of the children’s lives as if it were more important than domestic violence and child abuse which often ruin children’s lives. One important factor is that courts are listening to subjective opinions from professionals who sometimes have a financial bias to their opinions instead of objective opinions that are based on good scientific research. Clearly it is hard for courts to protect children in abuse cases if the professionals do not have the specific knowledge needed.
The Meier study will definitively establish the frequency that courts favor abusers. The Bala Study which is the most important research on the subject found that mothers involved in contested custody cases make deliberate false reports less than 2% of the time. Nevertheless, in cases in which the mother reported domestic violence and/or child abuse and the father claimed alienation, fathers won 69% of the domestic violence cases; 73% of abuse cases and 81% of child sexual abuse cases. The response to sexual abuse is so flawed that only 6% of the reports were believed by the court.
I believe the research and investigations have now crossed a line so that attempts to pretend the present practices are working are like ideologues denying climate change. There are hundreds of cases of child murders by fathers involved in contested custody cases. In many cases the court gave the murderer the access needed to kill the child, but judges in the communities where the tragedies occurred said no reforms had been implemented as a response because they assumed the murder in their community was an exception. Several media investigations have found widespread failure to protect children in part because the court professionals had not integrated current research. For many of us the findings that courts frequently fail to protect children is old news. I want to explore what happens when a court mistakenly rules in favor of the abuser and thereafter uses practices that undermine their ability to learn they made a mistake.
Res Judicata on Steroids
Res Judicata is a fundamental legal doctrine designed to avoid retrying the same issues over and over. The idea is that once an issue has been decided by the court, the decision is final, aside from appeals and cannot be relitigated. This is a good idea that saves courts and parties enormous time and resources. One could imagine how abusers would otherwise never accept a decision they don’t like. In the context of child custody and visitation decisions can be reconsidered based on a change of circumstance. We often see abusers gain control by court order and use the control to destroy the relationship with the mother. This is exactly what would be expected when the court made a mistake and ruled in favor of an abuser. One of the fundamental problems in domestic violence cases is that context is critically important but courts routinely use the principles of res judicata and collateral estoppel to avoid taking a fresh look at the findings based on subsequent events that came after the bad decision. This undermines a court’s ability to recognize a change of circumstances or the initial mistake, but in practice the problem is much worse.
Custody courts routinely retaliate against mothers for trying to protect their children and seek to punish the mothers for what the courts often mistakenly believe are deliberate false reports. They fail to consider that in order to punish the mother they are also punishing the children. They create what the Saunders’ Study calls “harmful outcome” cases. These are extreme decisions in which a safe, protective mother is limited to supervised or no visitation and the alleged abusive father gains total control. These outcomes are always wrong because the harm of denying a child a normal relationship with their primary attachment figure, 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. It is based on very flawed practices that usually include a failure to consider current research. Often the court accepts subjective opinions from professionals unfamiliar with current research. The fact there are so many harmful outcome cases and many courts allow the restrictions to continue for years is further proof of the broken system..
These bad practices not only severely harm children, but impose censorship that undermines the court’s ability to learn it made a mistake. The court often demands the mother stop raising issues about the father’s abuse in order to prove they are “safe” for normal visitation. The courts are assuming that the alienation they believe she engaged in causes the worst possible harm to children, but this is not based on any valid research. Instead it is based on a bogus theory that has been rejected by every reputable professional organization with relevant expertise. This creates an impossible situation as often happens when the abusive father continues to use abusive tactics including to limit the mother’s contact with the child. If the mother seeks to share this information with the court it is used to justify continued supervision and if she is silenced, she cannot help her child. These flawed practices deny courts the information they need to correct past errors.
The silencing also has a direct negative impact on children. A child involved in a bitter custody dispute and often subject to domestic violence and direct child abuse needs therapy and should be able to discuss whatever issues are important. The court findings, however, and the control by the alleged abuser serve to limit any therapy based on the often false assumption that no abuse was committed. In sexual abuse cases the therapy might be about why the child made a false report instead of very real sexual abuse. These children feel like they have been punished for telling and learn the lesson that they should stay silent. This makes them especially vulnerable if they are abused by someone else and predators are particularly skillful at finding vulnerable victims.
The use of Res Judicata makes sense in most court cases where the right finding is made in the vast majority of cases. It is particularly problematical in domestic violence custody cases now that the research establishes that a large majority of these cases are wrongly decided and the bias is towards risking children.
Saving Children in Wrongly Decided Abuse Cases
Although rare, there have been groups of cases in which some mistake or impropriety led to the wrong result in these cases. In criminal cases the errors usually require that the conviction be vacated. In civil cases there usually is some opportunity provided to the party harmed by the mistake. The Supreme Court has many times expanded fundamental rights and the next question is typically whether to apply the change retroactively. The decisions have gone both ways depending on the circumstances and impact. Another factor in whether and how to correct bad decisions is a practical one concerning how it will impact a court system with limited resources.
The problems in the custody court system are unprecedented because it involves hundreds of thousands of cases over more than a generation. The costs of retrying many of those cases would be astronomical, but the consequences of failing to try to save the children would be catastrophic. The risk-benefit analysis would almost certainly eliminate any reconsideration of cases where the children are no longer minors, including for compensation. The crux of the issue is can protective mothers seek a modification now that it is established that the courts were using flawed practices that tilted the discussion and the decisions towards abusers.
I believe there is a strong legal argument for allowing victims of the bad practices to at least have one fair day in court. Present law provides that parents can seek modification of custody and visitation based on a change of circumstance. The weight of the new research and investigations, particularly after most courts failed or refused to integrate current research should be seen as a change of circumstances. Judges would have to close their eyes to the proof that past practices routinely failed children to deny a new hearing. There is also an important ethical consideration because judges are obligated to avoid even the appearance of impropriety. Any effort to deny or minimize the research that proves their standard practices hurt children will create a clear appearance of bias in trying to justify and minimize past mistakes.
Formulating a solution will have to take into account the resources available and the fact that there are many differences in the size and practices of each court. An ideal solution would be to create special courts or hearing officers in which the judges and other professionals have substantial expertise in domestic violence. This would allow the other judges to continue hearing their ongoing cases, albeit using updated approaches so that present cases will not have to be retried. In more rural areas this approach may not be practical. The point will be to give victims a fair chance to have a new hearing on custody and visitation issues in which past denials of abuse reports do not undermine the ability to prove the truth of these reports.
I find that what makes the failures in the custody courts so hard for me to tolerate is that on this planet, children get just one chance for a happy and successful life. The abusers are to blame for ruining children’s lives, but family courts could save most of the children if they implemented best practices based on current scientific research. I continue to be shocked that courts have not responded to the many cases in which they gave abusive fathers the access they needed to kill their children. More often the children will die early from mental illness, suicide or the effects of substance abuse all related to exposure to adverse childhood experience. More often the children will die later, but sooner than necessary because of a variety of health problems associated with exposure to ACEs. More often the children will underachieve and suffer a variety of health problems that undermine their enjoyment of their lives as a result of living with the fear and stress abusers cause.
A turning point for me was when I interviewed doctors working with the ACE Research for my Quincy book. I asked the question that goes to the essence of the best interests of the child and should be the focus of the court professionals when considering possible abuse cases. Is there anything we can do now to save children exposed to ACEs from the catastrophic consequences from living with an abuser? Their answer was yes. THEIR ANSWER WAS YES! The doctors said there was a good chance these precious children could still be saved. But the courts that are failing children are not even considering this fundamental question. They are instead listening to professionals who do not even understand the risks.
There are times in our lives when asking a question should be the same as answering it. Should the courts give children that they initially failed a chance to recover? What is the value we place on their one chance for a full and successful life? When one considers the children in deciding if protective mothers should be given a chance to modify mistaken past decisions, the answer is easy.