Essay by Barry Goldstein
Adverse Childhood Experiences (ACE) Studies are medical research from the Centers for Disease Control and Prevention. ACE tells us that exposure to trauma is far more harmful to children than previously understood and has lifelong consequences unless preventive responses are taken soon enough. There are ten ACEs. Having parents who are mentally ill or engage in substance abuse are two of the ACEs. Exposure to domestic violence, emotional abuse, physical abuse and sexual abuse are four of the other ACEs. All six of these ACEs are frequently relevant to child custody cases, but most courts fail to consider the ACE Research. As a result, they take mental illness and substance abuse far more seriously than domestic violence and child abuse.
Behavior that we would now consider domestic violence and child abuse has been tolerated for thousands of years. The present levels of cancer, heart disease, diabetes, mental illness, substance abuse, suicide and many other health and social problems are based on this history of DV and child abuse. The ACE Research is so exciting because if we reduce family violence, society would enjoy a substantial decrease in the illnesses and social problems described above and this would increase our life expectancy. Dr. Vincent Felitti, lead author of the original ACE Study now believes prevention is the best use for his research especially in our family courts. DV custody cases are often the last chance to save the children involved in these cases and family courts that fail to consider ACE and other important scientific research routinely throw away the children’s last chance.
A court might call a parent mentally ill and tolerate the other parent using the term crazy or worse. This would be allowed even without a valid diagnosis. Someone with a substance abuse problem would be labeled as an addict, alcoholic or substance abuser. Each term is intended to describe who the person is rather than an individual act or one part of that person. Fathers who commit domestic violence have usually committed hundreds or thousands of DV tactics and child abusers have often committed many abusive acts, but family courts usually limit the discussion to a few incidents rather than reaching the broader characterization.
Someone who commits acts of domestic violence or child abuse is quite properly referred to as an abuser. This is an important part of understanding ACE because interacting with your abuser is likely to cause the fear and stress that cause so much harm to children and adult victims. One of the charges against me that led to the suspension of my law license was that I referred to the abusive father as an abuser.
By the time I entered the case, the father had committed thousands of acts of abuse. He had been arrested and the mother had received a protective order. Nevertheless, the biased judge repeatedly said he didn’t realize it was an abuse case. I decided to help him by referring to the father as an abuser so the judge would understand our position. The judge ordered me not to use the term until he was proven to be an abuser. So, I stopped until we presented the evidence that confirmed he was an abuser and then I resumed. Again, the judge ordered me to stop using this term until the court made a determination which would never happen. I started referring to the father as an alleged abuser. The judge never objected to this normal and common designation until more than a year later when he filed the retaliatory bar complaint against me. The judge had no objection when the attorney for the father referred to my client as a liar, alienator and an ugly woman.
How Family Courts Treat Some ACEs Differently
Mental illness can have far different levels of seriousness. Many diagnoses would not undermine the ability to parent safely; while other diagnoses should be disqualifying. Victims who suffer PTSD as a result of their partner’s abuse can still be good parents, but a partner who causes PTSD is dangerous and unqualified. We know this because only very severe abuse could cause PTSD.
Evaluators in DV custody cases frequently recommend therapy for one or both parents. This is reasonable as most people can benefit from therapy and it certainly helps when someone has been traumatized by an abuser. The problem comes when victims are pathologized because evaluators fail to recognize the father’s abuse or consider the context. Unqualified evaluators may recommend therapy for the abuser in response to his domestic violence. This is a common mistake for evaluators unfamiliar with the research who don’t know DV is not caused by mental illness.
Similarly, evaluators are willing to recommend treatment for parents suffering from substance abuse. While some evaluators may minimize addiction, many will recommend therapy and a program like Alcoholics Anonymous. In cases involving serious mental illness or addiction, evaluators will limit visitation, usually to supervised visits, until the treatment can change the harmful behavior. This is appropriate because these parents are likely to do serious harm to their children.
Central to the courts’ response is the professionals they rely on. Mental illness is at the heart of the expertise of mental health professionals. They are used to diagnosing mental illness and proscribing treatment. They are also familiar with substance abuse and comfortable recommending appropriate responses. The problem for family courts is that they are not similarly expert concerning domestic violence or child sexual abuse. These are very specialized issues which is why The Saunders Study from the National Institute of Justice recommends a multi-disciplinary approach. If courts routinely turned to DV advocates and professionals who treat child sexual abuse full time, the court response to domestic violence and child abuse would be very different and much more effective.
Saunders confirmed that most evaluators do not have the specific domestic violence knowledge courts need. Taking a few workshops or seminars does not provide the needed knowledge and expertise to respond to domestic violence. Many evaluations acknowledge they cannot determine the DV issue and so focus on other, less important issues that the evaluator is more comfortable with. Other evaluators disbelieve true reports of domestic violence because they don’t know what to look for or they are focused on unscientific alienation theories. Even when the evidence of abuse is so clear that the evaluator agrees the father committed domestic violence, it is either minimized so as not to interfere with the desired shared parenting arrangement or they recommend therapy or anger management that do nothing to change the abusive behavior.
The Research says that only accountability and monitoring are effective in changing abusers’ behavior. Domestic violence is different than most crimes because until recently it was not treated as a crime. Accordingly, it is critical that courts send a message that domestic violence will now result in serious consequences to the abuser. There are already serious consequences to the victims.
Best practices in DV custody cases would be to initially limit the abuser to supervised visits. They should be required to complete an accountability program which can be a batterer program that focuses on accountability. If they complete the program, the abuser can seek unsupervised visits based on parallel parenting. Saunders found shared parenting is never appropriate in DV custody cases. The abuser should have the burden to prove he is safe and will cause more benefit than harm to the children. The court should consider: does the father take full responsibility for his abuse; does he understand the enormous harm he caused the children; is he committed to never abusing anyone again and does he understand any further abuse could end his relationship.
A Fairer Family Court Response to ACEs
A child’s ACE score is based on one point for each ACE they experienced and not each incident. Each ACE is not necessarily equal in the harm and there is good reason to believe DV and child abuse are the most harmful because they lead directly to the fear and stress ACEs cause. The almost exclusive reliance on mental health professionals creates a bias to find mental illness and substance abuse because these are subjects, they are more used to responding to. When the professionals are unfamiliar with ACE and Saunders and refuse to consult DV advocates, the resulting mistakes make it harder for courts to recognize DV and child abuse.
There is substantial unintended bias built into the present family court response to DV custody cases. Court-sponsored gender bias committees have found widespread gender bias against women litigants. The recent Meier study confirmed courts have made little progress to overcome this problem. Confirmation bias pushes courts to make findings of what they want or expect to see. This means high conflict approaches encourage a false equivalency between victims and abusers and its hard for courts to believe wealthy or successful fathers would commit abuse. The failure to consider important scientific research like ACE and Saunders tilts decisions in favor of abusive fathers and against protecting children. The overreliance on mental health professionals emphasizes issues of mental health and substance abuse while making it harder to recognize domestic violence and child abuse. Mental health professionals fail to recognize the distinction between mental health and domestic violence issues and so focus on therapeutic solutions when accountability is needed.
The problem is exacerbated by frequent economic inequality. Domestic violence concerns control, including financial control so that abusers usually control most of the family’s financial resources. The history of domestic violence and fundamental fairness would support court orders to level the playing field, but custody courts rarely take effective action to make sure both sides have the opportunity to present their full case. It is a standard abuser tactic to seek to bankrupt their victims. This often results in protective mothers forced to go to trial pro se. The result is courts do not receive information they need to understand the case and the risks the children face.
The unintended bias from these standard practices is compounded by the intentional bias of the cottage industry. As mentioned above, abusive fathers usually control most of the resources because of their control. This means if you are a lawyer or mental health professional who wants to make a lot of money and doesn’t care about hurting children, using approaches that favor wealthy abusive fathers can be very lucrative. This has led courts to hear a lot of aggressive and often false arguments in favor of abusers. The whole alienation scam that has had such a pernicious effect on the courts and ruined thousands of children’s lives has been promoted by the cottage industry. It is absurd that a theory that was created not based on any research, but only the belief that sex between adults and children can be acceptable; and has been twice rejected by the American Psychiatric Association for inclusion in the DSM which is a compendium of all valid mental health diagnoses is more influential in the courts than peer-reviewed scientific research like ACE and Saunders that comes from the most credible sources.
All of the flawed and outdated practices family courts regularly rely on have supported biases that favor abusive fathers and push courts to err on the side of risking children. This is the exact opposite of the best interests of children they are supposed to be following. There is inertia because the outdated practices have been used so long. There is defensiveness because court professionals, like any humans are reluctant to recognize they have been making mistakes and hurting children for a long time. The Bartlow Study asked judges in communities where court decisions led to child murders what they have done to reform their practices in response to the local tragedy. The shocking answer was none because they all assumed the murder was an exception. In the last 13 years there have been over 800 such exceptions. The same mistakes that lead to murders, more often result in a childhood exposed to the fear and stress abusers cause and an adulthood filled with pain and sickness ACE could help courts prevent. It is long past time to discuss this problem openly and create the needed reforms. Children continue to pay the price for court officials who are unwilling to face the harms they are causing.
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.