Essay by Barry Goldstein
How would a typical family court analyze a case in which they believe a safe mother who is the primary attachment figure has failed to promote the relationship with a father the mother believes is dangerous and abusive? In many ways, this is the typical custody case the courts would call “high conflict,” and experts familiar with current scientific research would call a DV custody case.
Throughout their legal careers, judges have heard children do best with both parents in their lives. This is certainly true when both parents are safe and loving, but this is rarely true in DV custody cases. The problem is worse when courts conflate the benefits to children of relationships with both parents as if it means children need both parents equally. The research is clear, children need their primary attachment figure more than the other parent and the safe parent more than the abusive one.
The courts place such a high priority to keep fathers in children’s lives that they often sacrifice the child’s relationship with a mother the child needs so much more. This is the worst possible trade for a child. Courts create a catastrophic arrangement by severely restricting the mother and creating a harmful outcome case. We also see this outcome when courts give the father the power and control that he uses to destroy the relationship between the child and mother.
Domestic violence experts know context is critically important in recognizing domestic violence. Abusers and their attorneys routinely seek to decontextualize an incident in order to shift blame. Courts often undermine their ability to understand the context to save time. Practices in which courts arbitrarily create strict time limits benefit abusers for this reason. Victims need time to explain the context including the fact that many standard court practices favor abusers. Victims need time to explain the research and how the failure to differentiate abusers’ public and private behavior or the mistake of treating DV cases as high conflict. Abusers need only deny their partners’ reports and allow the court to use the flawed practices that tilt decisions against protecting children.
In most DV custody cases, the father wanted or demanded the mother provide most of the childcare. In any other court, this would be properly understood as an admission by the father that the mother is a good parent. Otherwise, he would have sought other arrangements. When the mother leaves and reports his abuse, abusive fathers often respond by seeking custody and claiming the mother is unfit. The charge is usually that she is crazy and/or alienating. What are the chances a mother suddenly became unfit because the relationship ended, and she reported his abuse? In the real world the answer is close to zero, but family courts that fail to use good scientific research and rely on the wrong experts often reach this unlikely conclusion. Courts rarely discuss or consider this obvious context that strongly supports mothers.
Primary attachment is non-controversial and used in many areas of childcare and welfare. The parent who provided most of the childcare during the first two years of a child’s life is and always will be their primary attachment figure. This is important to consider in family courts because the child needs their primary parent more than the other parent. Denying children a normal relationship with their primary parent increases the risk of depression, low self-esteem, and suicide. In most of these cases, the child is used to looking to the primary parent for most of their needs. This parent usually knows the child’s needs and providers better than the other parent. Accordingly, there are many non-controversial factors that should favor the primary parent.
There are two major paths that courts take when they trade the children’s safe, primary parent for an alleged abuser who has far less parental skill and knowledge. They are explained in the Saunders Study and the Meier Study that both come from the National Institute of Justice. The harmful outcomes are another illustration of the problem with family courts attempting to resolve DV custody cases without the benefit of current scientific research.
The Saunders Study includes a section on “harmful outcome” cases. These are extreme decisions in which the alleged abuser is given custody and a safe, protective mother, who is the primary attachment figure, is limited to supervised or no visitation. This is exactly the extreme remedy from the original “Parental Alienation Syndrome” that has been discredited even by many members of the cottage industry. Saunders found harmful outcome cases are ALWAYS wrong and based on flawed practices. The reason they are always wrong is that the harm of denying children a normal relationship with their primary parent is greater than any benefit the court thought it was providing. Saunders found these tragic mistakes are caused by using flawed practices. In many, if not most cases, the opposite outcome would have worked best for the children. Common flaws include reliance on unscientific alienation theories; pathologizing the victim; failure to use the right experts for a DV case; gender bias; and disbelieving true reports of abuse. I have never seen a harmful outcome case in which the court weighed the certain harm of denying children a normal relationship with their primary attachment figure with whatever speculative benefit the court thought it was providing.
One of the findings from the Meier Study was that alienation is being applied in a gender biased manner in addition to the problems caused by unscientific alienation theories. When courts believe the father was alienated, it provides a big advantage to fathers and helps them win custody. When the court believes the mother was alienated, the finding has no effect on the outcome. Part of the problem is that domestic violence is about control, including financial control. This means abusive fathers often control most of the family’s financial resources. This helped create the cottage industry of lawyers and mental health professionals that have a financial incentive to promote approaches that favor abusive fathers. Their voices have been far louder than those of victims. The superior financial resources help explain why courts so often make alienation findings in favor of abusive fathers.
The unscientific alienation theories were deliberately designed to help fathers. Accordingly, it often assumes alienation; pathologizes attempts to protect children and fails to consider more likely causes of a bad relationship such as DV, child abuse, or other poor parenting. The theories deliberately ignore alienating tactics by fathers such as avoiding child support; using fun activities as bribes; material advantages; and talking about how much the father misses the children. In our still sexist society, mothers usually do most of the childcare and so have a closer relationship with the children. One common example of gender bias is for court professionals to ignore or minimize fathers’ alienating practices. These tactics are better understood as DV by proxy because it is a continuation of the father’s DV by using the children.
The Batterer as Parent by Lundy Bancroft and Dr. Jay Silverman is one of the most authoritative books about DV and custody. The authors found all batterers, including “low level” (non-physical) abusers engage in harmful parenting practices that include undermining the relationship with the mother, teaching bad values (sexism) and serving as a bad example. Courts often make the mistake of assuming alleged abusers seek custody out of love for the children. Their motives often include regaining what they believe is their right to control their victim, make the decisions, and punish the mother for leaving. Shared parenting is often the first step towards total control and abusers usually use any power courts provide to destroy the relationship with the mother. This is a problem courts rarely consider because few court professionals understand DV dynamics.
What Does the Worst Trade Look Like?
The mother was such a good parent that she won the Mother-of-the-Year Award in Dutchess County, NY because other parents learned to improve their parenting from watching her. She created innovative ideas to involve her children in cultural, athletic, and entertainment activities. The children loved their mother and were deeply attached to her. The abusive father was rarely involved in caring for the children and viewed it as “women’s work.” He said he couldn’t change his daughter’s diapers because he might get aroused.
The case was assigned to a sexist judge who was a strong supporter of shared parenting and unscientific alienation theories. The judge forced a “settlement” for shared parenting. When the father assaulted the mother, another judge gave the mother custody and limited the father’s visitation. The sexist judge was angry at the change. He resumed shared parenting without allowing the mother to speak at the hearing, and soon created what Saunders would later call a harmful outcome case. Even the judge admitted the mother was an outstanding parent, but instead focused on alienation. The alienation included the fact the boy’s therapist called child protective services (over the mother’s objection because she was afraid of the reaction), and the mother said the children should eat healthy meals, dress appropriately for the weather and avoid adult-oriented TV programs. These statements were considered alienation because the father engaged in all of these bad parenting behaviors.
The effect on the children was demonstrated by the description of the daughter by the school nurse. When she lived with her mother, the girl would skip around school, holding another girl’s hand, smiling, and giggling. After she had to live with her father, the girl walked alone, head down and very sad. She kept going to the nurse with various ailments until the father “solved” the problem by forbidding her to see the nurse.
The father was allowed to move to Texas with the children which served to isolate them even more. The evil judge kept the case as long as possible to prevent anyone else from correcting his mistakes. Eventually, Texas took jurisdiction and quickly recognized the mother should have custody. They arranged for therapeutic visitation to restore the mother’s relationship. By this time, the father had so destroyed the mother’s relationship that it could not be salvaged.
One would think that the release of the Saunders Study and other important research would prevent extreme decisions that ruin children’s lives. Last week, I was scheduled to testify in another harmful outcome case. A convicted abuser was given custody years ago and a safe, protective mothers who is the primary attachment figure is limited to supervised visitation. Without listening to what I could say, the judge decided anything I could say would be irrelevant. The fact the court had imposed an extreme decision that a National Institute of Justice Study found to be ALWAYS wrong is not something the court needs to hear. In reality, the judge didn’t want evidence on the record that demonstrated the catastrophic mistake the court made. The father is already far along in his efforts to successfully impose DV by Proxy. The judge created an unprincipled decision that creates the appearance of bias, conflict of interest, or worse.
In these and many other cases, the court’s attempt to keep both parents in the children’s lives led to substituting the less involved and often dangerous parent for the better parent who the children need most. Imagine, in the Dutchess case, if the facts were as the judge wanted to believe. Imagine, the father did not have a history of abuse and was at least an adequate parent. And imagine that for no good reason, the mother was deliberately trying to alienate the children. The court’s decisions guaranteed that the children would have only one parent. Even with the most favorable assumptions for the father, there could be no question that the children needed their mother more and it was in their best interests for the mother to be granted custody.
Saunders found that shared parenting does not work in DV custody cases, but the judge might in good faith believe the children would benefit with shared parenting. Once the judge became convinced that only one parent could have custody, he decided to punish the mother for her supposed lack of cooperation. The judge failed to realize that in seeking to punish the mother, he was really punishing the children. The judge’s biased and ignorant approach meant the children would never get the help they needed to overcome the ACEs they were exposed to. The children are likely to live shorter lives and face a lifetime of health and social problems. They certainly had a more painful and unpleasant childhood. The judge destroyed their potential.
I wrote earlier that domestic violence experts understand the context is critical to understanding DV custody cases. The judges in the two cases discussed above and in many others are so used to following insular court practices and assumptions that ACE and Saunders prove wrong, that they miss the context, even after the courts’ goals become impossible.
Children only do better with both parents in their lives when both parents prioritize the well-being of their children instead of their sense of entitlement and control. Shared parenting is an ideological goal that is often harmful in contested custody cases. It might help courts settle cases; it certainly helps court professionals increase their incomes, but non-evidence-based decisions often remove the last chance for children to have full and successful lives.
As mentioned earlier, children need their primary parent more than anyone else on the planet. Courts that fail to use current scientific research routinely focus on unscientific alienation theories and don’t know how to recognize true reports of abuse. When courts focus on ideological goals, they take their eyes off the best interests of the children. Widespread gender bias helps fathers and hurts children. Gender-biased alienation approaches miss alienating behaviors by abusers but assumes alienation that is really an effort to protect children. Gender bias that minimizes primary attachment, obscures a critical factor in the well-being of children.
The family courts started their response to DV custody cases with reasonable mistakes because the research wasn’t available. Over the years, the mistakes became so ingrained that courts are often hostile to the important research that could better protect children. This is what happened in the two cases described in this article and many others. Ending the worst trades for children is long-past due.
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.