Consequences of Custody Courts Risking Children
Lord Justice Nicolas Wall, a leading family law judge in Great Britain gave a speech to a “fathers’ rights” group and said the worst thing that can be done to children is for the mother to bad mouth the father. When I mentioned this during a meeting with the Washington Post Editorial Board, an attorney on the panel mentioned he had heard judges in Maryland say the same thing. It seems obvious that when a child is murdered, raped or exposed to other adverse childhood experiences the harm is far greater. Perhaps the judges did not mean their statements literally, but it demonstrates the courts’ tendency to focus on issues like reunification, “alienation” and the rights of fathers, which inevitably undermines the focus on the well-being of children. Courts often say they are helping children by seeking to make sure children have both parents actively in their lives. The problem is, this is done on an assumption that keeping even abusive fathers in children’s lives is always beneficial. This is not an approach supported by evidence- based research.
Society has a long history of tolerating what we now call domestic violence and child abuse. The recent spate of horrific assaults by NFL players demonstrates how this history impacts children’s lives today. Commissioner Goodell was severely and properly criticized for an overly lenient response to a brutal assault by Ray Rice. The commissioner was clearly influenced by a history of mild or non-existent penalties for earlier domestic assaults because domestic violence was not viewed as a serious transgression. Adrian Peterson seemed genuinely surprised that prosecutors and the NFL thought he did something wrong by disciplining his son as he had been disciplined. In each case, these were horrific acts once permitted by husbands and fathers and today are often tolerated.
The present level of cancer, heart disease, stroke, diabetes, asthma, AIDS, mental illness, crime, substance abuse, prostitution, suicide, auto accidents and so many other serious health and social problems are based on our present level of domestic violence, child abuse and other adverse childhood experiences. There are other societal factors besides family courts that contribute to these avoidable problems, but a more informed custody court response would significantly reduce these consequences.
Contrary to common misconception, contested custody cases are overwhelmingly domestic violence cases. These are cases in which the children are in serious jeopardy for the consequences described above. These cases often provide the best opportunity to save children from the harm caused by exposure to ACEs
How many evaluators, judges or lawyers could explain how a child witnessing their father yell at the mother, use monitoring tactics or controlling the family finances can lead to the dread diseases and social problems discussed above? Certainly not the many professionals who assume only physical abuse could impact children. Professionals who don’t fully understand domestic violence inevitably focus on less important issues, and the opportunity to protect children is lost.
The essence of domestic violence is tactics that scare, intimidate and coerce the victim to do what the abuser wants. When inadequately trained professionals review various incidents of possible domestic violence, they don’t know to look at whether the action engendered fear. When abusers engage in a pattern of coercive and controlling tactics the direct victim and the children suffer enormous stress because they never know when the abuser will scare and hurt them.
Many common diseases are caused or exacerbated by stress. This is why cardiologists tell patients to reduce stress. This stress results in release of pro-inflammatories into the bloodstream that can cause a variety of health problems. It undermines the immune system, which is why cancer is a common consequence. This stress leads to eating and sleeping problems which in turn undermines other aspects of children’s health. It leads to a variety of mental health problems. Exposure to domestic violence encourages children to make harmful choices when they are older. And the many harmful consequences often interact with each other to multiply the risks.
The purpose of custody courts appointing mental health professionals in domestic violence cases is often the assumption that they can determine if the abuse is impacting children based on how the children appear to be responding. The problem is that traumatized children and adults use a variety of defense mechanisms in order to survive. Some children act out in ways that are obvious, but many others respond in different ways including doing really well on the surface. This leads evaluators to miss the harm the children are suffering.
I have heard judges say they can only act when there is concrete evidence the child has been harmed by exposure to the alleged abuse. If a young child is left alone in a car or a house, the court would take aggressive action to protect the child even if the child was not harmed. This is bad parenting that places a child at risk. Similarly, if a parent allowed a seven-year-old to drink alcohol a court would not require proof the child was doing poorly to stop this harmful parenting. The ACE research demonstrates that exposure to domestic violence and child abuse creates catastrophic short and long-term consequences. This is bad parenting that cannot be tolerated. When children have been exposed to ACE, there is a good chance they can still be saved. The custody case gives the court an opportunity to intervene and avoid the tragic consequences that come from ACE. The child will need therapy and medical treatment which means the safe parent must have full control over health decisions. The child must also be protected from further abuse which means any unsupervised interaction with the abuser can only come when the court can be confident the abusive tactics will not be repeated. Any court that wishes to consider any other arrangement should be prepared to articulate what could justify denying the child the chance to avoid the consequences from exposure to ACE.