The Stop Abuse Campaign is pleased to present the seventh and final installment in our Courts vs Kids series by Barry Goldstein.
The ACE research provides an exciting ability to safeguard millions of children from a lifetime of pain and suffering through the use of prevention. Custody courts must be part of that prevention, and the courts must integrate the knowledge from ACE if they want to truly act in the best interests of children.Today there is specialized research and expertise that can recognize and respond to domestic violence and child sexual abuse. The courts didn’t have this valuable asset when they first developed responses to domestic violence custody cases. There are powerful forces based on inertia, bias and financial gain to ignore or minimize this important research. This is why the courts have been slow to integrate the ACE and Saunders’ studies. But custody courts cannot protect children from the enormous harm caused by exposure to adverse childhood experiences unless they embrace changes that may be uncomfortable but are desperately needed. Here are seven solutions that can help custody courts to act in the best interests of children for the first time.
Make the Health and Safety of Children the First Priority: Findings that exposure to domestic violence and child abuse shorten children’s lives and lead to a lifetime of health problems and risky decisions go to the essence of the best interests of children. Present practices that give judges complete discretion to decide the importance of the required factors encourages subjective judgments and excessive litigation. Custody courts can and should make the health and safety of children the first priority in all custody and visitation decisions. Other than immediate physical risks, no other factor impacts the well-being of children nearly as much as ACEs. Most abuse reports are accurate and should demand protection for children. Courts can save enormous time and resources because other factors that don’t impact the health and safety of children should never be permitted to trump the impact from abusive tactics.
Integrate ACE and Saunders into Custody Court Responses: Custody courts developed practices to respond to domestic violence at a time when no research was available. Even today, evaluators and other “experts” are rarely discredited for lack of familiarity with current research. Even worse, the Saunders’ study found unqualified professionals often focus on unscientific alienation theories, leading to recommendations that harm children. ACE and Saunders involve research from the most credible sources. The courts are long overdue in integrating this important research into their custody decisions. The American Psychological Association sought to help train its members in this critical research by including numerous presentations about ACE and Saunders at its national convention. If evaluators and other professionals the courts rely on are ignorant of this research, the well-being of children demands the courts move on to more qualified experts.
Use a Multidisciplinary Approach: The Saunders’ study demonstrates the need for a
more mutlidisciplinary approach both in the experts courts rely on in cases and for training. Psychologists and other mental health professionals are experts in mental illness and psychology but not on other specialized subjects such as domestic violence or child sexual abuse. A few workshops can be helpful for professionals to know what questions to ask, but does not provide the necessary expertise to recognize and respond to the most impactful abuse. For many years domestic violence advocates said physical abuse is often not the most harmful of the abusers’ tactics, and now the ACE research confirmed this. By gaining assistance from the experts in the specific specialties courts need, judges can better protect children. Many of the mistakes leading to the murder or further abuse of children could have been prevented with the needed expertise. Just as it would be considered malpractice for a general practitioner to try to perform brain surgery, most evaluators are similarly unqualified to respond to domestic violence or child sexual abuse. And the ACE research demonstrates that mishandling these cases is often catastrophic for the children.
Provide Specialized Courts for Abuse Cases: Most custody cases do not involve
domestic violence or serious child abuse allegations, and can be handled with standard practices presently in place. Approaches encouraging the parents to cooperate make sense in these cases. Domestic violence and child abuse cases are very different. It is dangerous to ask victims to cooperate with their abusers, and it gives the abusers a huge advantage. Courts need specialized experts to recognize and respond effectively to abuse cases. These are cases where court errors can have devastating consequences for the children. Accordingly, it makes sense to have specialized parts or courts so these cases can be treated with the care they need. The court professionals will be in a better position to recognize the patterns, understand the context and avoid manipulation. From the start, judges and other professionals will understand these are cases that can literally be a matter of life or death.
Prevent the Unfair Influence of Money from Hurting Children: Economic abuse is an important part of domestic violence, and becomes even more central when the parties separate and the abuser uses litigation tactics to regain what he believes is his right to control his partner. Society and legislatures rely on the courts to help protect victims of domestic violence and their children, but abusers can undermine this purpose with many common tactics, especially economic abuse. While courts must treat each party fairly, when abusers use financial tactics to prevent a resolution based on the merits, judges must level the playing field so children can be protected. Too often a money issue is really about protecting children. Common strategies include excessive litigation designed to hurt the victim rather than benefit the abuser; hiding assets, reducing income in order to avoid paying full support; refusing to pay support or other necessary payments and destroying property. These tactics are designed to bankrupt the mother, pressuring her to return to the abuser, because now she can’t provide housing and other necessities.The abuser can win custody because he can provide better financially for the children. When the abuser runs up legal bills it often forces the victim to act pro se and thus may deprive the court of the evidence it needs to protect the children.
The Saunders’ study demonstrated how the cottage industry of lawyers and psychologists who promote approaches favoring abusers undermines the ability of courts to protect children. These professionals understand abusers typically control most of the family resources and created practices like PAS to help abusers who otherwise would have little chance of winning custody. Courts should never appoint cottage industry professionals for neutral positions because the courts are receiving biased advice. Even worse, the reliance on the cottage industry creates the appearance of corruption or worse. The cottage industry is often responsible for results that Dr. Saunders refers to as “harmful outcome” cases. These are extreme decisions in which a safe, protective mother who is the primary attachment figure is limited to supervised or no visitation and the alleged abuser wins custody. These outcomes are always wrong, because the harm of separating children from their primary parent increases children’s risk of depression, low self-esteem and suicide when older. This harm is greater than any benefit the court thought it was providing. Saunders found that in most of these cases very flawed practices led to bad decisions. The courts often disbelieve true reports of abuse and then retaliate against the mother based on claims of alienation. In many cases biased or unqualified evaluators pathologize mothers with bogus diagnoses that should be disproven by the fact that she always provided good care for the children.
The consequences of these flawed approaches are catastrophic. In Dutchess County, NY, a committee of law enforcement and other professionals investigating the response to domestic violence in the county found that victims stopped using the courts for protection because the custody courts so often helped their abusers. The committee found this was one of the causes for a series of domestic violence homicides suffered by women in Dutchess County.
Custody courts have a moral and legal obligation to protect children under their control. They cannot do this if they don’t receive the evidence needed to understand the risk to children. The ACE Studies make it critical for courts to prevent children from being exposed to adverse childhood experiences. Custody courts must be able to recognize when abusers are using economic tactics and make orders to stop and, if necessary, punish improper financial tactics. Courts must ensure that when one side has substantial financial resources, an alleged victim will have sufficient resources to obtain effective counsel and take care of the children. These remedies cannot wait until the case is resolved and findings made because the financial disparity will force the victim to capitulate- the purpose of these tactics. Courts have the authority to partially level the playing field, and this is often the only way that children can be protected.
Move Affirmatively to Impede the Unintended Influence of Bias: My Quincy book includes a chapter about the differences between men and women. It is not just the physical differences but how they are treated and the history of toleration of what we now call domestic violence. Treating people in fundamentally different positions the same is just as improper as treating people in the same position differently. Many standard custody practices favor abusive men because courts seek to treat the parties the same, despite very different quality and quantity of past parenting. Approaches looking only at individual incidents and technical violations (true or false) often miss the context. The ACE research demonstrates it is the fear caused by abusive tactics that creates most of the harm. At least 40 states have created court-sponsored gender
bias committees that have shown widespread bias, particularly against women litigants, but little has been done to change it. Aside from the cottage industry, the bias is unintended and often based on social norms or stereotypes. The concern that some judges favor fathers because so many other fathers abandon their children is well founded. I believe it is significant that abusive fathers are more likely to win custody than safe fathers. It means abuser legal tactics are all too effective. Court professionals need extra training about gender, confirmation and other common biases. Judges must encourage lawyers and litigants to bring potential bias to their attention. I believe courts that are more open in discussing bias will respond more effectively.
Use the Best Judges for the Most Important Cases: The ACE research demonstrates the enormous consequences that come from child custody decisions. A strong case can be made that this is the most important role a judge can have. We must place our best judges in this position and give them the support, resources and prestige they need and deserve. When custody courts make the best decisions for children, the work of so many other judges will become far easier.