Essay by Barry Goldstein & Veronica York
The original sin family courts made in responding to domestic violence cases was turning to mental health professionals as if they were the experts. It is not that psychologists have nothing to contribute, but they do not have the specialized knowledge of domestic violence, child sexual abuse and other critical issues. The original mistake was based on the popular assumption at the time that DV was caused by mental illness or substance abuse. We now know the original assumptions were wrong, but courts continue to rely on these outdated practices.
In one case, Barry was asked at least 15 questions about the fact he doesn’t have a mental health degree. The academic work to obtain a mental health degree does not provide any knowledge about domestic violence or child abuse. Psychologists may try to use general psychological principles, but much about DV is counterintuitive.
The Saunders Study found court professionals need training in very specific subjects that include screening for DV, risk assessment, post-separation violence and the impact of DV on children. Most evaluators do not have this needed expertise. They often attempt to screen for DV with psychological tests that tell us nothing about DV. As a result, evaluators often use non-probative information to discredit true reports of abuse. We have never seen an evaluation that says the mother reports strangulation and if this is true there is an increased risk of lethality. Post-separation abuse analysis almost never mentions alleged abusers’ litigation and economic abuse as a continuation of domestic violence or the likelihood an abuser will assault future partners which means custody or unsupervised visitation will result in more exposure of children to domestic violence. Few evaluators are familiar with ACE or focus on the harm caused by fear and stress. This means evaluators are not using the specific knowledge Saunders says is needed to respond effectively to domestic violence. In other words, the courts are relying on professionals who routinely minimize and deny true reports of abuse. Many domestic violence cases do not include an evaluation, but the judges and other court professionals are influenced by the misinformation evaluators provided in other cases.
Few evaluators relied on by custody courts have the critical knowledge needed to recognize and respond effectively to possible domestic violence or child abuse cases. They are unfamiliar with critical scientific research like ACE (adverse childhood experiences), Saunders, Meier, Bala, gender bias or child murders in custody cases. The evaluators do not understand domestic violence dynamics or batterer narratives that help explain abuser motives. Evaluators and other court professionals are oblivious to the widespread failure of custody courts to protect children. All the mistakes caused by failing to use current scientific research minimize the harm from abuse and make it harder for courts to recognize true reports. The courts are influenced by the superior financial resources of abusers who usually control family finances, and the cottage industry of lawyers and evaluators that make large incomes by promoting practices that favor abusive fathers. The result is DV custody cases are severely tilted in favor of abusive fathers and towards risking children.
Court professionals are satisfied with the present practices, and defensive about the painful tragedies they cause. The Bartlow Study found judges and court administrators failed to create reforms in the face of preventable child murders. They thought these tragedies were exceptions. In the last 13 years, the Center for Judicial Excellence found over 800 tragic “exceptions.”
Domestic violence experts can recognize mistakes by evaluators in abuse cases. This is why Saunders found courts should be using a multi-disciplinary approach. Some judges cannot imagine how a DV expert can help a court recognize errors by evaluators regarding DV and child abuse. Saunders found DV advocates have more of the specific knowledge courts need about DV than judges, lawyers or evaluators. We quickly came up with a list of over 80 common mistakes about DV that evaluators routinely make because they don’t have the specialized DV knowledge needed. In this article, we are sharing 20 of these common mistakes. The full list of common evaluator DV errors will be available at www.Barrygoldstein.net.
Evaluator failed to make distinction between public and private behavior
Most abusers are able to control their behavior and do so in public. Attorneys for abusers often present evidence from friends, family, and colleagues about his good behavior and how he could not be an abuser. Evaluators often rely on this non-probative behavior, but mothers and children see a very different side of the abusive father in the privacy of their home.
Evaluator only considered physical abuse
The purpose of domestic violence is not to cause great pain but to coerce and control the victim. In DV custody cases there is often one or a few physical incidents and thousands of other DV tactics. The abuser does not need to keep assaulting her because once he does, she knows what he is capable of. The physical abuse can be “minor” as pushing or blocking a door and are combined with emotional, psychological and other tactics. The other types of abuse serve as a reminder of what can happen if she doesn’t obey. ACE tells us it is the fear and stress abusers cause, that does most of the harm to children. Evaluators often pay lip service to other types of abuse but mainly or exclusively focus on physical abuse. This is based on outdated beliefs from the 1970s. This mistake reduces the available evidence and minimizes the harm abusers cause.
Evaluator fails to understand most of the harm from DV is caused by fear and stress rather than immediate physical injuries
The ACE Research is exciting because it could be used to dramatically reduce a wide range of serious illnesses and social problems. This would greatly increase life expectancy and achievement. Prevention is the key to providing these benefits and improving children’s lives. Contested custody cases are often the last chance to save children from the consequences of exposure to ACEs. In most cases the courts are not even considering this opportunity.
Evaluator assumed unfounded child protective case meant the reports of abuse are false
Caseworkers often face heavy caseloads that lead to reports of abuse being unfounded for non-probative reasons. Examples include: child refused to speak to caseworker; not enough time to investigate; failure to take cases during litigation seriously; the child is living with the safe parent; caseworker manipulated or intimidated by abuser; reliance on the myth that mothers often make deliberate false reports; and the lack of expertise regarding DV and child sexual abuse. Unfounded cases often prove to be true reports much later. Evaluators save time and resources by treating unfounded cases as if they prove the reports were wrong. Unfortunately, these practices don’t save children.
Evaluator failed to consider ACE and Saunders
Perhaps the biggest reason custody courts are failing children in abuse cases is the failure to use scientific research like ACE and Saunders. They go to the essence of the well-being of children. ACE tells us the fear and stress abusers cause will shorten children’s lives and cause a lifetime of health problems. Saunders tells us courts are relying on the wrong experts for abuse cases and this results in courts frequently disbelieving true reports of abuse. There are judges and evaluators that use ACE and Saunders and this results in better decisions for children. Most courts however rely on outdated practices that do not include this research. This mistake is not neutral. It favors abusive fathers and risks children.
Evaluator blamed mother for father’s abuse
In a safe family, if a child came home complaining about something the father did, the mother would ask the father about it. If a father heard the child was complaining about sexual abuse, he would want an investigation to find out who did it or if there was a misunderstanding such as an unintentional boundary violation. When the father is an abuser, the mother is afraid to discuss the complaint with him and the father immediately claims alienation and tries to silence the child. In these and other situations, untrained evaluators blame the mother for not cooperating and communicating. If the evaluator is part of the cottage industry, she will be called an alienator. And in each instance, it is the fear caused by the father’s abuse that created the problem, but mothers are often blamed. This is an example of gender bias that most court professionals do not have the training or humility to recognize.
Evaluator failed to recognize shared parenting is inappropriate in cases involving possible DV or child abuse
Courts promote shared parenting because laws favor it, and co-parenting is viewed as the best way to promote settlements. Shared parenting was never meant for domestic violence cases. The unequal power in DV cases makes it dangerous. Good research like Saunders says shared parenting should never be used in DV cases. Abusers use decision-making to block anything the mother wants and particularly to prevent or undermine therapy where the child might reveal his abuse. Shared parenting in inappropriate cases is great for court professionals’ bank accounts because more services will be needed but works poorly for children. Even in the rare cases where abuse reports are false, the bad relationship makes co-parenting a mistake.
Evaluator focused on how to pressure victims to accommodate the abuser instead of how abuser can reduce fear and stress
Most contested custody is really DV cases involving the worst abusers. They believe she has no right to leave so are using custody to regain control. Accordingly, they will not agree to anything reasonable. Evaluators who fail to understand DV dynamics, pressure victims and children to accommodate the abuser as the best way to promote a settlement. ACE tells us that the fear and stress abusers cause will have lifelong negative effects on the children. Accordingly, best practices require pressuring abusers to reduce the fear and stress they are causing if they want a relationship. Evaluators unfamiliar with ACE don’t even know these best practices.
Evaluator used psychological tests to screen for DV
Psychological tests were developed for people who may need to be hospitalized. They tell us nothing about domestic violence. It was originally used when many believed the false assumption that DV was caused by mental illness or substance abuse. There can be valid uses of psychological tests in some cases, but when evaluators use them to screen for DV, it says more about the ignorance of the evaluator than the circumstances of the case.
Evaluator does not understand primary attachment so recommended a harmful outcome case
Harmful outcome cases give custody to the alleged abuser and limit a safe, protective mother who is the primary attachment figure to supervised or no visitation. The Saunders Study found harmful outcome cases are ALWAYS wrong and based on flawed practices. The reason they are always wrong is that denying children a normal relationship with their primary attachment figure, a harm that includes increased risk of depression, low self-esteem and suicide is greater than whatever benefit the court thought it was providing. The frequency of these always wrong cases, a decade after Saunders was published, exposes the failure of custody courts to adopt current scientific research.
Evaluator used non-probative factors to discredit reports of abuse
The Saunders Study says court professionals need to learn how to screen for DV. They need to know what information to look for but also how to avoid non-probative information. Common examples include: she returns to her abuser; she seeks a protective order but doesn’t follow up; she doesn’t have a police report or medical records. All of these are normal responses by women abused by their partners for safety and other good reasons. Another example is a professional observes the alleged abuser playing with the children and the kids show no fear. Unqualified professionals assume this means he cannot be abusive, but the children know he wouldn’t hurt them in the presence of witnesses, so it is safe to play with a father they still love. Inadequately trained professionals often use these non-probative issues to discredit true reports of abuse.
Evaluator assumes just because he hurts the mother doesn’t mean he will hurt the children
This one is scary. Evaluators, lawyers, and judges continue to say this out loud even after children have been murdered by abusive fathers because of this mistake. Fathers who abuse mothers are 40-60% more likely to also abuse the children. The worst abusers have learned the best way to hurt the mother is to hurt her children. Many evaluators never consider this.
Evaluator failed to make the health and safety of children the first priority
The health and safety of children was always the most important consideration for custody courts and the ACE Studies make this so much clearer. ACE did not make domestic violence and child abuse more harmful to children, but rather made us aware of the full harm caused by our long tolerance of behavior we now define as domestic violence and child abuse. The courts cannot allow defensiveness, inertia, ignorance of scientific research, “father’s rights,” or the incomes of court professionals to be placed above the well-being of precious children. Evaluators who fail to make children the first priority, other than with lip service, must be corrected.
Evaluator failed to understand that a father who causes PTSD to the mother or child is an unfit parent
PTSD cannot be caused from something benign. It requires the most traumatic event or a series of traumatic events such as occur with domestic violence. Abusers and too often court professionals minimize a father’s abuse to keep him in a child’s life. This is based on the belief that a child benefits from having both parents in their lives. This is usually true, but not when a parent is an abuser and certainly not if the parent was so abusive as to cause PTSD.
Evaluator failed to recognize behavior associated with higher risk of lethality
Saunders found court professionals need training in risk assessment. There are specific behaviors associated with higher risk of lethality. This would include strangulation; hitting a woman while pregnant; forced or pressured sex; hurting animals; violating court orders; threats of murder, kidnapping or suicide; violating court orders; access to guns; and the belief she has no right to leave. Cases involving these behaviors should be taken extremely seriously and evaluators have a duty to make judges aware of these risks.
Evaluator failed to consider the danger associated with offensive or threatening language based on research on batterer narratives
Most evaluators do not have the DV knowledge needed for DV cases and research about batterer narratives is therefore rarely considered. Most abusers would say it is wrong to assault a woman and then say EXCEPT. The major exceptions are she did something he defines as improper, or she is a (insert the slur). These offensive sexist terms tell women and should tell court professionals the mother is in danger. It also sends horrific messages to children. This information would help courts understand DV cases better, but not when this is never discussed.
Evaluator treats dismissal of child sexual abuse complaints as proof of coaching
The Bala Study reviewed child protective cases involving reports of child sexual abuse. This is the definitive study about false reports, and found mothers make deliberate false reports less than 2% of the time. Nevertheless, when fathers claim alienation, abuse reports are believed by the courts less than 2% of the time. The alleged abuser gains custody 85% of the time. The failure of our society and custody courts to protect children from sexual abuse is the next big scandal waiting to be exposed. When mothers raise concerns about child sexual abuse there are several possible explanations. The most likely is the report is true. Other common circumstances include: no abuse but the child was uncomfortable because of boundary violations; exposure to pornography or sexual behavior; the evidence is equivocal or a good faith but mistaken report. The least likely is coaching, but courts routinely only consider the report is true, which requires overwhelming evidence or they jump to coaching, based on assumptions rather than actual evidence. As a result, courts are often never told about sexual abuse, so that they have no chance to protect children.
Evaluator focused on unscientific alienation theories
Most custody cases, like any litigation are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. Between 75-90% of these cases involve domestic violence, which is obscured by high conflict approaches. DV is about control, including financial control which means the alleged abusive father usually controls most of the family resources. Richard Gardner understood this when he concocted Parental Alienation Syndrome (PAS). He needed an approach that could be used to help abusive fathers take custody from mothers who are the primary attachment figures. PAS was not based on any research but only Gardner’s experience, beliefs, and biases. This included many public statements that sex between adults and children can be acceptable. This was the start of the cottage industry for lawyers and mental health professionals who made large incomes by using bogus practices that hurt children. The superior financial resources and manipulation skills helped promote PAS. When it developed a deserved bad reputation, the cottage industry published new articles based on the old lack of research and changed the name to alienation, parental alienation, gatekeeping or whatever was convenient. Twice PAS, was rejected by the American Psychiatric Association for inclusion in the DSM because there is still no research to support it. The DSM is the compendium of all valid mental health diagnoses, so it is unethical when cottage industry professionals tell courts the mothers or children suffer from alienation. Despite this repudiation by the leading professional organizations and the enormous harm to children, courts continue to listen to this biased and sexist theory. The recent Meier Study from the National Institute of Justice found alienation is used in a biased way so that only fathers benefit from a finding of alienation. In most cases alienating behavior by fathers against mothers is not even discussed. This means this sexist theory with no supporting research is implemented to deny mothers due process and equal protection. In most cases, the supposed alienation is assumed rather than proven with actual evidence. The use of alienation raises ethical issues because it often creates the appearance of corruption even if the judge acts in good faith. The extreme decisions and catastrophic harm unscientific alienation theories cause children makes it hard to believe corruption isn’t involved.
Evaluator failed to recommend play therapy in disputed child sexual abuse cases
Child sexual abuse is hard to prove for some good reasons. Young children often have difficulty speaking to people they don’t know. Caseworkers and evaluators often expect children to speak about the most embarrassing and painful episode in their lives without taking the time to develop a trusting relationship. This is one cause of false claims of coaching. Best practices for young children is play therapy. The child will reveal whatever they need to through their play and artwork. This takes coaching off the table because a parent can’t coach a young child how to draw a picture or play with Legos. This is particularly helpful as inept and unscrupulous people seek to discredit reports and retaliate by claiming coaching and alienation.
Evaluator focuses on approaches asking victims to just “get over it”
Just get over it is often used to pressure children to interact with abusive parents they fear. ACE tells us this is a harmful approach. Courts have the power to force children to spend time with an abusive parent but have no ability to remove the fear and stress the abuser causes. This means the fear and stress will be pushed deeper inside the child where it will inevitably come out later in much more harmful forms. Evaluators and judges need training to avoid these dangerous mistakes.
Evaluators have legitimate expertise in psychology and mental illness. If they make mistakes, there are professional standards and other professionals who can flag their errors. These are subjects the court hears often and can make judgments about.
The problem discussed in this article concerns issued related to domestic violence and child abuse. The present evaluation system was created at a time when no research was available, and the courts have failed to update practices even after multiple research studies proved many common assumptions are wrong. Today, there is rarely an expert available in a case to recognize and correct standard mistakes evaluators make regarding abuse issues. Even if a protective mother calls a DV expert, judges may not understand that experts in child sexual abuse or domestic violence have a better understanding of their specialized areas than mental health professionals.
We are discussing clear errors that court professionals feel comfortable stating openly, but novice DV advocates would recognize immediately. There can be no dispute that abusers usually act differently in public than in private, but courts routinely base decisions on non-probative public behavior. Saunders says court professionals need training in risk assessment. Law enforcement and DV advocates have been using this knowledge for decades, but custody courts still make decisions without risk assessment.
DV advocates have told us for many decades that physical abuse is not the worst part of domestic violence. No one listened because the advocates usually do not have advanced degrees, there was no scientific research to support their knowledge, they were viewed as biased because they are always against DV, and they are mostly women. The ACE Studies confirmed the advocates were absolutely right and still the courts routinely make the outdated mistakes of focusing mainly or completely on physical abuse.
The authors of this article are not qualified to analyze a psychological test or diagnose a parent. We do know and can share with the court that psychological tests were not created for the populations seen in family court and tell us nothing about domestic violence. We quickly found over 80 common mistakes evaluators make because they do not have the needed expertise in domestic violence and especially child sexual abuse.
This is why the Saunders Study recommends a multi-disciplinary approach to DV custody cases. Custody courts have no other way to obtain needed expertise about DV and child abuse than from specialized experts. Judges, lawyers, and psychologists usually want to get any training from other judges, lawyers and psychologists. Although Saunders found DV advocates have more of the specific DV knowledge courts need, court professionals often don’t want to listen to people they view as less knowledgeable.
Psychologists usually have far more formal education than experts in DV and child abuse. Nevertheless, more than four decades since DV became a public issue, evaluators continue to make blatant DV 101 mistakes and none of the other court professionals recognize and discredit these clear errors. Children pay an awful price for the insistence by court professionals on continuing to use the same outdated practices.
Contested custody cases are usually the last chance to save children from the life-altering harm caused by exposure to ACEs. ACEs, evaluators rarely even discuss in their reports.
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.
Veronica York is a family court survivor and advocate to change the family court laws and works to educate court professionals on current scientific research such as the ACE and Saunders studies.