Essay by Barry Goldstein
There is a pattern in most domestic violence custody cases that would help courts understand child custody disputes better and avoid mistakes that place children in jeopardy. In most cases, during the relationship the father wanted or demanded the mother provide most of the child care. In any other type of litigation, this pattern would be recognized as an admission by the father that the mother is a good parent or else, he would have made other arrangements.
When the relationship ends, usually because the mother doesn’t want to live with his abuse or expose children to his abuse anymore, the father responds by claiming the mother is unfit. Most often he will say the mother is crazy or she is alienating the children. Absent a fall where she lands on her head, what are the chances that she suddenly became unfit just because the relationship ended and she reported his abuse? In the real world the answer is close to zero, but in family courts without the needed training about domestic violence and failing to take the time to understand the context, this unlikely event has become a frequent conclusion. Too often it is the conclusion of children’s chances for a good life.
One of the biggest obstacles to custody courts protecting children from dangerous abusers are alienation distraction tactics (ADT). Richard Gardner concocted Parental Alienation Syndrome (PAS) not based on any research, but only his personal experience, beliefs and bias. His extreme bias included many public statements that sex between adults and children can be acceptable.
The purpose of ADT is to give unscrupulous lawyers and mental health professionals an approach to favor abusive fathers in child custody disputes. The mother is the primary attachment figure and the safe parent, so under proper practices any attempt by the father to seek custody would properly be recognized as frivolous. Domestic violence is about control, including financial control, so the abusive father usually controls most of the family’s economic resources. This means if you are a court professional who wants to make a large income and indifferent about hurting children, it makes sense to rely on ADT. Gardner was the founder of the cottage industry that makes large incomes by helping abusive fathers. ADT is a major part of their manipulative tactics.
Responding to Alienation Distraction Tactics
Alienation can be real, but when used in response to reports of domestic violence or child abuse, most of the claims are false. Adverse Childhood Experiences (ACE) Studies are medical research from the Centers for Disease Control and Prevention and so unlike ADT, the findings are highly credible. ACE tells us that children exposed to domestic violence and child abuse will live shorter lives and face a lifetime of health and social problems. Accordingly, reports of abuse should be fully investigated before any claims of alienation are considered because exposure to ACEs is far more harmful than alienation.
One of the many flaws in unscientific alienation theories is the assumption that if the father has a bad relationship with a child the only explanation is that the mother is alienating the child. More likely explanations like domestic violence, child abuse, limited contact or other bad parenting are deliberately ignored. Professor Joan Meier has recommended that courts should consider evidence of DV or child abuse first because if there is abuse, we know the cause of the bad relationship and so do not need to consider an unlikely and speculative alternative.
Domestic violence and child abuse are specialized areas of knowledge. One of the major problems in the court response to child custody is the reliance on mental health professionals who are trained in psychology and mental illness but not domestic violence or child abuse. The Saunders Study from the National Institute of Justice recommends a multi-disciplinary approach which means experts in DV and child abuse should be involved when courts need to determine the validity of abuse reports.
Dr. Saunders found court professionals need training about specific topics that include screening for domestic violence. The first part is to avoid discrediting reports based on common factors that are not probative. Victims of domestic violence often leave and then return to their abusers; seek protective orders but don’t follow-through; do not have police or medical reports. They do this for safety and other good reasons. Professionals may observe children with an alleged abuser and if the children do not show fear, untrained professionals assume it means he cannot be abusive. Children understand he would not hurt them in front of witnesses. Attorneys for abusers often present friends, family and colleagues to truthfully testify that he is cooperative, peaceful and calm. In the batterer classes I taught, most of the men acted respectfully, but that told us nothing about how they acted in the privacy of their homes. Public behavior is not probative of private behavior and often only his intimate partner and children witness his abuse.
The second part is affirmative evidence of abuse. Unqualified court professionals often minimize and dismiss the issue as “he-said-she-said” because they don’t know what to look for so prefer focusing on issues more in their comfort zone. They should be looking for information that makes what he or she said more likely even if the information doesn’t prove abuse by itself. Did a victim tell friends or family about his abuse at a time when no litigation was pending? Does he have male supremacist values and actions. Is he interested in pornography which treats women as if their main value was beauty, body parts and sex? Why does he suddenly seek custody after demanding the mother provide most of the child care? Did he make rules she had to follow or else face punishment? Did she receive services from a domestic violence agency? DV organizations are severely underfunded and so must screen clients before providing services. This means the experts in the community determined she is a victim of domestic violence. DV is a painful and embarrassing topic so women do not tend to seek discussions unless they need the help.
Which parent is afraid of the other? In the batterer classes, men sometimes claim to be afraid but they were afraid she would report his abuse and were not afraid she would beat him up or shoot him. Pay attention to the difference in size and strength of the parties. Context is important to understanding DV. Look at the pattern of abuse. Abusive fathers usually engage in a wide variety of coercive and controlling behaviors. Most of the tactics are not physical or illegal, but they are coercive and demonstrate his motive. In many cases the abusive father threatened the mother that if she left, he would take the child and bankrupt her. Courts tend to ignore litigation abuse and financial abuse, but this is often the continuation of the father’s domestic violence and demonstrates his motives for seeking custody.
There is a tendency to create a false equivalency between fathers and mothers, but domestic violence is a gendered crime overwhelmingly committed by men against women in heterosexual relationships. Look at sexist and offensive language that suggests men are entitled to make the decisions; the value of women is mostly about their beauty, body parts and sex; refusal to do “women’s work;” making rules for their partners to follow; punishing their partner; and fathers who were largely uninvolved with child care during the relationship demanding custody and control.
Guarding against Alienation Distraction Tactics
Saunders found that court professionals without the necessary domestic violence knowledge tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. This is the worst of all situations. They do not have the expertise to recognize abuse and they are biased to find and indeed assume alienation. These professionals should never be placed in neutral positions like evaluator or GAL. Their reports read like an illustration for confirmation bias, as they are focused only on information, they think supports findings of alienation, and extreme outcomes that place children in jeopardy.
Gender bias is widespread in family courts because it is usually unintentional and subconscious. Even good professionals use myths and stereotypes and try to help the weaker parent out of a mistaken sense of fairness. I say mistaken because it is not fair to children to saddle them with the inferior parent. A common example of gender bias is blaming victims for the actions of their abuser. Survivors have been scared and hurt by their partner’s abuse so they naturally seek to protect their children and may interpret equivocal evidence in a more negative way. Keep in mind it makes sense to be concerned that an abuser will continue to abuse. Never blame a victim for trying to protect her child.
The Meier et. al. Study found that alienation in abuse cases is applied by the courts in a biased manner so that it only favors fathers. If a professional focuses on alleged alienation by the mother, it makes sense to consider whether the father engaged in behavior that would be considered alienation if committed by the mother. Indeed, it is often a good idea to consider how an incident played out or would be understood if the genders were reversed.
Require real evidence before reaching conclusions of alienation. Typically, the parties are separated and the alleged abusive father has no personal knowledge of what occurs in the other home. ADT use assumptions, speculation and alleged hearsay from children to “prove” alienation.
The lack of a criminal conviction, even if a report was made only means his abuse would be difficult to prove beyond a reasonable doubt. Family court requires only preponderance of the evidence so holding mothers to the higher standard of proof is a common example of gender bias.
Child protective agencies engage in many common flawed practices so calling one or more reports unfounded does not prove the report was wrong and even less likely, deliberately false. Many caseworkers do not take reports made in the context of custody disputes seriously even though this widespread practice violates most agency policies. Caseworkers face heavy caseloads so investigations are rushed and often do not take the time needed to develop a trusting relationship with the child. I have even seen cases where children were interviewed in or near the presence of the alleged abuser. Caseworkers receive some training but do not have the specialized training needed for domestic violence or child sexual abuse. Indicating cases requires far more work which creates encouragement for confirmation bias. The point here is that it is a mistake for courts to take the lack of criminal or child protective findings as evidence the reports were false or evidence of alienation.
Unscientific alienation theories ask professionals to assume that if a child does not like the father or the relationship is strained, the only possible explanation is alienation. More likely explanations would include domestic violence; child abuse; frequent absences; the lack of positive interaction and the fear and stress abusive fathers create. In other courts, judges would require strong proof before finding the bad relationship was caused by alienation, but ADT has a long history which has conditioned custody court professionals to treat a bad relationship and alienation as synonymous.
When there is a bad relationship between father and child, courts routinely assume reunification is beneficial to the child. Enormous harm can be done to children by forcing reunification. The cottage industry has created reunification camps that are known for threat therapy and responsible for many deaths. The Washington Post conducted a major investigation of reunification programs and found most of these are scams. They are extremely dangerous and no court should ever consider using these mercenary programs.
A court should first consider whether reunification is safe and beneficial for the child. The child’s therapist will often be the best person for the court to hear from. Consider the extent of any trauma the father caused the child. Is the father causing more harm than good? Is it safe for the child to engage in reunification? Courts have been told constantly that children need both parents in their lives. The research to support this is based on two safe and loving parents.
In many cases it will make sense to try for reunification. ACE tells us that courts have the power to force visitation, but cannot remove the fear and stress abusers cause. Forced visitation pushes the fear and stress deeper inside the child where it will inevitably come out in more harmful ways. I have seen many cases in which the court places all of the burden for reunification on the mother and child. This is a mistake. If the father was always a loving and supportive parent and the mother told the child negative things about the father, the likely result would be to harm the relationship with the mother. In most of these cases the father has made mistakes that contributed to or caused the bad relationship. Approaches that allow the father to demand the child change and make no effort to improve himself and the relationship with the child make reunification much harder and is a process harmful to children. ADT, which seeks to hide the father’s abuse and blame the mother encourages reunification practices that are designed to fail and keep blaming the mother and child.
ADT has gushed its poison into the custody courts since the 1980s. Judges, lawyers and evaluators have spent their entire careers hearing and using the bogus practices that make it harder to recognize domestic violence and child abuse. The superior financial resources of abusive fathers means that the voices of those promoting unscientific alienation theories are much louder and frequent. Mothers are often pressured not to raise abuse issues which denies courts information they need to protect children. The cottage industry serves as a strong lobby to maintain flawed practices and block needed reforms. It is truly outrageous that peer-reviewed scientific research from the most credible sources is rarely used and unscientific ADT that was deliberately designed to help abusive fathers continues to have much more influence in the courts.
Contested custody cases are often the last chance to save children from the awful consequences from exposure to adverse childhood experiences. ACE tells us the courts should focus on reducing the fear and stress that cause so much harm to children. This requires using the specialized research and expertise about domestic violence and child abuse in order to protect children. ADT has been pushing courts in the wrong direction for more than a generation. This is why 58,000 children are sent for custody or unprotected visitation every year. In the last 13 years, the Center for Judicial Excellence found over 800 of these children were murdered mostly by abusive fathers. In many of the cases courts influenced by ADT had found the murderers to be safe. It is time courts create a priority to err on the side of protecting children and actively work to avoid being distracted by unscientific alienation tactics.
Barry Goldstein is a domestic violence author, speaker, advocate and expert witness. He is the author of six books concerning domestic violence and child custody. Barry is the author of the Safe Child Act which is a comprehensive plan based on current scientific research that can fix the broken court system and make family courts safe for children.