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Michigan Court’s Tsimhoni Case Requires Evidence Based Reforms

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Michigan Court’s Tsimhoni Case Requires Evidence Based Reforms

By Barry Goldstein and Sheila Kathleen McCoy

First published in ICBA Briefs May 2016

To the casual observer, the Michigan Circuit Court’s response to the Tsimhoni case seems outrageous. In that parenting time case, three innocent children were sent to jail, compared to Charles Manson and sent for reunification treatment that has been described by some victims as threat therapy.

 

Judge Lisa Gorcyca, who sought to punish the children, finally left the case, but only after a judicial commission accused her of lying to them about the facts. The new judge reviewed the file and has now allowed the children to enjoy normal visitation with their safe, protective mother. Judge Gorcyca became angry with the children, aged 14, 10 and 9, after they refused her order to have lunch with their father. The children explained that they had seen their father assault their mother. The father claimed alienation and the judge appeared to be strongly influenced by this bogus theory that assumes any problems in relationships between fathers and children can only be explained by alienation.

 

For experts familiar with current scientific research this case is much worse and should require serious reforms so custody courts will not re-traumatize more children. The outrageous actions of the court were a product of biased and inadequately trained professionals unfamiliar with research that could have helped them protect instead of harm the children.

 

The Michigan courts have been influenced by the assumption that children need both parents equally. In reality children need their safe parent more than the abuser and the primary attachment figure more than the other parent. This leads the courts to pressure battered mothers and children to cooperate with their abusers instead of forcing abusive fathers to change their behavior if they want a relationship with the children.

 

To that effect, the courts are sending the children off to fend for themselves in dangerous situations without protection. In Tsimhoni, the children did not want to have parenting time with their father, and the court punished them and their mother for this position.

 

Generally, the courts’ misconception must be fixed – it cannot protect the abuser to spite the protective parent, nor punish the children for not wanting to live with abuse.

 

Problem: Widespread Lack of Effective Domestic Violence Training

 

In 2012 the US Department of Justice released a groundbreaking research study concerning the knowledge of evaluators, judges and lawyers regarding domestic violence. The study was led by Dr. Daniel Saunders and his colleagues at the University of Michigan. They found that court professionals need more than generalized training in domestic violence. Instead they need training in specific topics that include screening for domestic violence, risk assessment, post-separation violence and the impact of domestic violence on children.

 

Judge Gorcyca told the children she didn’t believe their reports of their father’s domestic violence because their father had a good reputation in the community and there were no criminal convictions or protective orders. The clearly inadequately trained judge was relying on information that is not probative. Abusers act very differently in public than at home so his reputation is protected. That is the usual profile of an abuser and it tells us nothing about how he treats his family. Domestic violence is the most underreported crime for victims’ safety and other good reasons so the lack of police reports or protective orders does not disprove reports of a history of abuse.

 

Significantly, the Saunders’ Study found that professionals without the needed information tend to focus on the myth that mothers frequently make false reports, unscientific alienation theories and the belief that mothers hurt children when they seek to protect them from fathers they have experienced as scary. These mistaken beliefs, relied on by Judge Gorcyca lead to outcomes that harm children. In other words the decision by the court says more about the ignorance of the inadequately trained professionals than the circumstances in the case.

 

Judge Gorcyca created what the Saunders’ study calls a “harmful outcome” case. These are extreme results in which the alleged abuser is given custody and a safe, protective mother who is the primary attachment figure for the children is limited to supervised or no visitation. These outcomes are always wrong because the harm of denying children 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. The Saunders’ research found that “harmful outcome” cases are caused by the use of very flawed practices.

 

How can the Michigan court system have allowed such an outrageous arrangement which may have permanently scarred the children? One of the problems with the best interest of the child standard is that it encourages highly subjective decisions.

 

Judge Gorcyca refused to consider evidence that undermined her beliefs and was free to act based on her bias and ignorance. Appellate courts tend to defer to trial judges because they have the benefit of observing the demeanor of the witnesses. If the decision did not create such notoriety and if the judge did not appear to lie to the judicial commission she probably could have continued to allow the torture of the children.

 

Solution

 

The ACE (Adverse Childhood Experiences) Research is medical research from the Centers for Disease Control and Prevention that should fundamentally change the custody court response to domestic violence and child abuse.

 

The essential finding is that children exposed to domestic violence, child abuse and other traumas will live shorter lives with more illness and injury. Significantly physical abuse is not necessary as it is the fear and stress that causes most of the harm.

 

This research is exciting because it means we can dramatically reduce cancer, heart disease, diabetes, mental illness, substance abuse, crime, suicide and other health and social problems by taking domestic violence and child abuse more seriously.

 

It would be easy to just blame Judge Gorcyca for the horrific mistreatment of the Tsimhoni children but the problem is far more systemic. The Safe Child Act would require custody courts to integrate important new research like ACE and Saunders. It would require a more multidisciplinary approach which is supported by the Saunders’ study. The health and safety of children would become the first priority in all custody and visitation decisions. An early hearing limited to abuse issues would allow courts to resolve cases in an hour or two that now take many months and years. This will save enormous resources for the court system and for litigants. It will prevent common abuser tactics to drain resources from victims and their children. Most of all, the Safe Child Act will help the courts recognize true reports of abuse and save Michigan’s children from preventable adverse childhood experiences.

 

The Michigan Legislature has had House Bill 4480 before it since April 2015, and it is still pending. That bill intends to change the view of the court on its review of custody and parenting time in relation to domestic violence.

 

Pursuant to MCL 722.23, the “Best Interest Factors” that are considered in custody cases (j) states “The willingness and ability of each of the parties to 15 facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.”

 

Proposes added language reads “A COURT SHALL NOT CONSIDER NEGATIVELY FOR THE PURPOSES OF THIS FACTOR ANY ACTION TAKEN BY A PARENT TO PROTECT A CHILD OR THAT PARENT FROM THE CHILD’S ABUSIVE PARENT.”

 

At this time the courts continually disfavor a parent that is claiming abuse, even though the next factor (k) states: “Domestic violence, regardless of whether the violence was 21 directed against or witnessed by the child.” This is more often ignored than not, and the courts appear to favor bad dads who are abusive, and treat them as the victims instead.

 

This must change for children to be protected by the courts. Michigan can never make up to the Tsimhoni children the enormous pain and trauma the court allowed to be inflicted on them. The least we can do is learn from this tragic case to make sure other children will be protected in the future.

 

 

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Sheila K M

 

Sheila Kathleen McCoy appears at seminars to speak on various legal issues, particular Domestic Relations and Domestic Violence. She owns and operates McCoy Law, PC in the Greater Lansing area while litigating in numerous counties. McCoy is a graduate of Detroit College of Law – MSU and has been a guest speaker at that college, Thomas M. Cooley Law School, Michigan State University School of Journalism, and numerous organizations with regard to domestic violence.

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