Essay by Barry Goldstein
The American Justice System is based on the belief that when each side is given the opportunity to make their best case, the court will reach a fair decision. The obvious problem is when parties have widely disparate financial resources, particularly when only one party can afford an attorney. Courts have sought to respond by providing attorneys for defendants facing serious criminal charges. This doesn’t apply to civil cases where wealthy individuals and corporations often enjoy an unfair advantage. Tobacco companies were able to avoid accountability for the deaths they caused for decades by using their superior financial advantages, including extensive and excessive discovery to bankrupt victims’ families.
Unequal financial resources is especially difficult for child custody cases because most contested custody involve domestic violence (DV) abusers. DV is about control, including financial control, so in most contested cases, the abusive father controls most of the family’s financial resources. Judge Mike Brigner wrote a chapter in my first book with Dr. Mo Therese Hannah in which he said courts have the authority to level the playing field by ordering the wealthier parent to provide legal fees for their victim, but courts are reluctant to use this authority. The Batterer as Parent is one of the leading books about DV and child custody. One of their recommendations is that courts should require abusers to pay any costs made necessary by their abuse.
Three Standard Practices Preventing Fair Consideration of DV Custody Cases
I have identified three standard court practices that demonstrate a double standard in the treatment of mothers and fathers. Each practice clearly occurs in almost all DV custody cases; is unquestionably wrong; has continued for decades; undermines the ability of courts to provide a fair trial; and harms children:
- Attorneys for alleged abusers are allowed to engage in aggressive tactics, often designed to bankrupt or frighten the mother; include personal and gratuitous attacks on the mother; seek to use the court to continue controlling and punishing the victim and requesting relief that would be harmful to children. At the same time, attorneys for protective mothers are often afraid to present evidence of abuse, especially sexual abuse; pressure mothers to accept dangerous settlements and are influenced by the danger of courts disliking, punishing, and retaliating against mothers trying to protect their children.
- A sexist theory that is not based on research; has twice been rejected by the American Psychiatric Association for inclusion in the DSM which is the compendium of all valid mental health diagnoses; and was created based on the heinous belief that sex between adults and children is acceptable, has far more influence on the courts than peer-reviewed scientific and medical research from highly credible organizations like the Centers for Disease Control and Prevention and the National Institute of Justice in the US Justice Department.
- Forty states appointed court-sponsored gender bias committees that have found widespread gender bias against women litigants that includes holding women to a higher standard of proof, giving women less credibility, and blaming mothers for the actions of their abusers. The recent Meier Study confirmed that courts have made little progress in preventing gender bias.
Abusive fathers have always enjoyed superior financial resources to promote their case and their cause. Many hired criminal attorneys to defend against criminal charges and used the same aggressive attorneys in their custody case. They demanded a higher standard of proof for DV and often convinced courts the lack of a conviction meant the reports were false. This contributed to the gender bias of higher standards of proof against protective mothers.
Vindictive abusers who believe mothers have no right to leave were willing to use their superior financial resources and hurt their children, if necessary, to regain control and punish their victims. Unscrupulous lawyers and mental health professionals, like Richard Gardner were attracted to create a cottage industry to help wealthy abusers. This was the origin of unscientific alienation theories and other bogus practices created to help abusive fathers gain custody.
Many standard court practices and false assumptions were developed from the cottage industry and have become deeply ingrained. The practices have been proven wrong by important research like ACE (adverse childhood experiences) and Saunders, but courts continue to be more influenced by bogus theories. The faulty practices include: high conflict approaches for DV cases; keeping fathers in children’s lives as the highest priority; false claims that shared parenting benefits children in DV cases; minimizing primary attachment; belief in the myth that mothers frequently make false reports of abuse; failing to treat DV and child sexual abuse as specialized areas of knowledge; assuming the end of the relationship ends the risk of DV; minimizing or denying the harm to children from exposure to DV; assuming older abuse doesn’t matter; assuming very young children are unaffected by DV; asking mothers and children to just get over it; and reliance on unscientific alienation theories.
Gender bias was hidden in plain sight making it difficult to address the problem. The courts routinely emphasized the value of fathers and minimized the need for mothers and the importance of primary attachment. This encouraged a focus on father’s rights and ideological approaches rather than the well-being of children. The Saunders Study discussed harmful outcome cases that were always wrong, but all too common. These were cases in which many abusive fathers gained custody from safe, protective mothers based on flawed practices. Even worse, the courts punished mothers for seeking to protect their children. No one seemed to notice that punishing mothers also punished the children.
In almost all the DV custody cases, there is a pattern in which during the relationship, the father wanted or demanded the mother provide most of the childcare. In any other type of litigation, this would be correctly understood as an admission by the father that the mother is a good parent. When the mother sought to leave her abuser and reported his abuse, the standard abuser tactic is to claim she is unfit, usually claiming she is crazy or alienating. In the real world, the chance the mother suddenly became unfit is close to zero, but in family court it has become a common finding.
“Fathers’ Rights” groups have worked together with the cottage industry to develop strategies to help abusive fathers win custody and help the cottage industry earn large incomes. They particularly sought the appointment of cottage industry professionals to “neutral” positions like GAL or evaluator. This means biased professionals who don’t understand abuse are making powerful recommendations to courts and mothers have no chance to protect their children.
These male supremacist groups claim that the dispute in family court is between mothers and fathers, but the real dispute is between the vast majority of men and women who want children to be protected against the most extreme male supremacists whose real agenda is undermining DV laws, ending child support, and in some cases allowing child sexual abuse.
Courts have a legitimate interest in promoting settlements and new attorneys are encouraged to find ways to reach agreements. Unfortunately, this works in a very harmful way in family courts. The goal for mediators is not to find the best or fairest arrangement, but rather the outcome both parties can be convinced to agree to. Abusive fathers have nothing to lose by being unreasonable and their purpose is to hurt the mother. It is safe for abusers to make dangerous demands, but mothers are often pressured and punished for trying to protect their children. Most of the pressure is put on mothers and in many courts her refusal to agree to risking her children is treated as her being uncooperative. Settlement discussions are supposed to be off the record, but many court practices result in punishing the protective mother.
Judges never came together to create an approach to hurt mothers or develop an unfair system. No judge wants to hurt children. The superior financial resources discussed earlier encouraged the use of the wrong professionals, ones without the specialized knowledge about DV and child abuse. The cottage industry also helped promote many practices that became standard, which help abusive fathers and increase the risk to children. This means the harm is not limited to the cases in which cottage industry professionals participate.
The National Council of Juvenile and Family Court Judges is a respected judicial organization. They seek to teach other judges about ACE and Saunders because this knowledge would make it easier for courts to recognize and respond to DV custody cases. Unfortunately, most courts continue to try to respond to the most consequential and specialized cases without the needed research or specialized expertise.
The three mistaken, but common court practices, described above demonstrate there are serious problems with the court response to DV custody cases. A Study by the Center for Judicial Excellence found that in the last 13 years parents, mostly fathers, involved in contested custody cases murdered over 800 children. Every year courts send 58,000 children for custody or unprotected visitation with dangerous abusers. Judges and court administrators interviewed about the child murders in their communities have repeatedly dismissed the local tragedy as an “exception.”
I can understand why court professionals would be defensive. I can understand the difficulty with a crowded court docket. Continuing the three clearly mistaken practices and so many others cannot continue to be an option. Judges cannot articulate a justification for maintaining the three practices discussed above. The horrific outcomes and failure to use proper practices including current scientific research create the appearance of corruption. This makes the continuation of present practices unethical. The harm to our children makes these practices intolerable.
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.