FREQUENTLY ASKED QUESTIONS
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What is the
problem in the custody court system?
Thousands of children are being sent by the courts to live with abusers.
At the same time safe, protective mothers are being denied any meaningful
relationship with their children. In favoring abusive fathers, the courts
are undermining the laws and policy against domestic violence and have
contributed to the recent increase in domestic violence homicides after
years of reductions in the murder rate.
Why are the courts
making these mistakes?
Thirty years ago when domestic violence first became a public issue there
was no research available about the best ways to respond. The custody
court system like other agencies developed practices and approaches to
domestic violence cases. At the time many believed domestic violence was
caused by mental illness, substance abuse or the victim's behavior. We
now know this was wrong and it is caused by a man's belief system that he
is entitled to control his partner and make the major decisions in the
relationship. Thirty years ago domestic violence was believed to be only
about physical abuse and many thought children were not harmed unless
directly assaulted. Research has demonstrated that these and many other
assumptions used by the court system are wrong. The problem is that after
thirty years of relying on professionals who are unfamiliar with
up-to-date research, but create the false belief there is a scientific
basis for their recommendations, the mistaken approaches and information
are deeply ingrained in the judges and other professionals working in the
custody court system. Even when an attorney or witness presents the
correct information, it is often dismissed because the research
contradicts the misinformation the courts have heard so frequently.
What does the new book, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY: Legal
Strategies and Policy Issues provide?
The book includes chapters by over 25 of the leading experts in the U.S.
and Canada on domestic violence and custody. The book has a
multidisciplinary approach and includes chapters by judges, lawyers,
psychiatrists, psychologists, sociologists, journalists and domestic
violence advocates. The book is meticulously footnoted and is based on
the most up-to-date research available. It is a book by professionals for
professionals, but deals with an important public issue that has not
received the coverage it deserves.
What makes this book different from other books or articles?
There are certainly other wonderful books and articles that support the
conclusion that the custody court system is broken and sends thousands of
children to live with abusers every year. There is much research about
common mistakes the courts make in domestic violence cases. What this
book does is bring together in one place the most up-to-date research and
information about domestic violence, child abuse and custody. Some people
could argue about when the research and evidence became so overwhelming
about the failures of the custody court system that its dysfunction was
established, but whenever that point was reached, with the publication of
this book, no informed professional can pretend the system is working
properly. Now that we know the problem, responsible professionals in the
custody court system can only work to correct the frequent errors rather
than trying to defend the obvious mistakes.
Can you provide some examples of the kinds of mistakes custody courts
In his chapter for the book, Judge Mike Brigner wrote that when he trains
judges in domestic violence they often ask him what to do about the women
lying. When asked what they mean, they speak about women going back to
their abusers, withdrawing petitions for protective orders, failure to
make police reports or seek medical assistance after an alleged attack.
In reality victims of domestic violence often act as the judges said for
safety and other reasons and in no way does it suggest their allegations
were false. Another example is inadequately trained professionals often
conclude there was no abuse after observing children interacting with
their father without any apparent fear. What the children understand, but
the "experts" don't is that their father is not going to hurt them in
front of a witness, particularly someone he is trying to impress.
Unqualified professionals often rely on the myth that women frequently
make false allegations of abuse in order to gain an advantage in
litigation. In fact research shows deliberate false allegations by women
is only about 1-2%, but fathers in contested custody cases make false
allegations 16 times more often than mothers. When judges routinely
dismiss abuse allegations based on information that is not probative and
then don't know what to look for to confirm allegations of abuse,
inevitably their mistakes are frequent.
How have the problems in the custody court system affected children?
If there was a scientific basis for the mental health evaluations relied
on by the custody courts, the evaluators would be able to tell the courts
how the children's lives worked out when the approaches and
recommendations of the evaluator were followed under similar
circumstances. Unfortunately there is no such research and the evaluators
have been able to make recommendations based on their personal belief
systems and biases. We know that children who are denied a meaningful
relationship with their primary attachment figure are more likely to
commit suicide, suffer depression, low self-esteem and other problems.
Children impacted by domestic violence are more likely to engage in a wide
range of dysfunctional behavior. Nevertheless, the courts, in contested
domestic violence cases frequently take children from their primary
attachment figure and give custody to abusive fathers. The closest we
have to research are the Courageous Kids. These are children who were
forced to live with abusers, but have aged out of the custody order and
are now speaking out about their experiences in hopes to reform the courts
and in some cases to protect younger siblings. Even though the abuser had
custody and control of the children, they describe awful childhoods in
terms that bring audiences of professionals to tears.
Why has this problem lasted
One of the chapters was written by Garland Waller, Professor of
Communications at Boston University and producer of award winning
documentaries. Her chapter describes the failure of the media to expose
the pattern of mistakes in domestic violence custody court cases.
Journalists, like other professionals have little or no training in
domestic violence and often don't know who the experts are. The media has
been unwilling to spend the resources needed to investigate cases or
particularly look for patterns to these cases. The media has trouble
understanding the cases and does not want to risk lawsuits. The public
would never tolerate the widespread and avoidable abuse of children, but
they can't react until the media informs the public of the ongoing
scandal. It will be interesting to watch the media response now that the
research has established the court system is broken.
Aren't psychologists and other mental health professionals the experts in
That was the assumption the custody court system made thirty years ago
when many believed domestic violence was caused by mental health problems,
substance abuse and the victims behavior. Although each of those beliefs
has proven wrong, the courts still use mental health professionals as if
they were the experts. Until recently psychiatrists, psychologists and
social workers could complete their academic career without any domestic
violence training. Even today most mental health professionals relied on
by the custody courts have at most a few hours of training in domestic
violence. They rarely have familiarity with up-to-date research on
domestic violence and don't treat it as the important issue the research
and laws demand. They often use a family systems approach which is
totally inappropriate for domestic violence cases. Ethical requirements
say mental health professionals should consult with an expert when their
case involves issues in which they don't have expertise, but this
requirement is routinely ignored on the false belief that they understand
the issue. The courts continue to accept evaluator's recommendations
despite all the problems with their lack of knowledge. The only
profession that works full time on domestic violence issues are domestic
violence advocates. They are treated as partisans even though they have
extensive training and knowledge of up-to-date research and the law and
policy of every state and court is to prevent domestic violence. Mental
health professionals can play a proper role in custody cases in which
there is substantial evidence that one of the parents or children has a
mental condition that significantly affects the care of the children.
Limiting their role to subjects in which they have expertise would save
the courts and litigants a lot of time and money and most important give
the courts a better chance of making the right decision.
What can the
courts do to better protect children?
Judges and other court professionals should receive extensive training not
just generally in domestic violence, but specifically about Recognizing
Domestic Violence, Gender Bias and The Effects of Domestic Violence on
Children. They should use the most up-to-date research to understand the
cases and what arrangements work best for children. They need to be open
to the fact that the present system is not working and many of the past
assumptions and decisions have been spectacularly wrong. They need to
stop using harmful approaches like parental alienation syndrome, friendly
parent or shared parenting. Domestic violence cases should be treated
differently than other cases and practices that might work in other cases
are harmful in domestic violence cases. They should understand that in
domestic violence cases one of the best things we can do FOR CHILDREN is
to help the mother heal. Courts need to look for and recognize abuser
tactics like excessive litigation, seeking custody to control the mother,
attempting to bankrupt the mother, using access from custody or visitation
to harass the mother or seek to pressure her to return and isolating her
from friends, family or professionals trying to help her. Courts should
be pressuring the alleged abuse to stop using coercive tactics instead of
pressuring the victim to "get over it." Domestic violence advocates
should be viewed as community resources rather than partisans. Their
expertise should be used in the training of judges and other