By Barry Goldstein
During our training to teach batterer classes, we often discussed the fact that much of domestic violence is counterintuitive. One would expect abusers to deny and minimize their abusive behavior, and they do. One would also expect alleged victims to exaggerate or even make up false reports of DV. Instead, it is very common for victims to minimize his abuse; take more responsibility than she deserves; and make excuses for him. Most court professionals are not DV experts and would not even consider the very different responses from victims and abusers.
We have heard lawyers and judges question whether a DV expert should be allowed to testify if they haven’t interviewed both parties and possibly any children. This mistake is based on the standard practice of evaluators speaking with everyone. It is also based on a fundamental failure to understand domestic violence. The Saunders Study is the leading research about the DV knowledge of court professionals. It found courts should use a multi-disciplinary approach to DV custody cases. Nevertheless, courts routinely listen to evaluators who failed to consult a DV expert and are without the DV knowledge Saunders found to be necessary.
In the real world, professionals routinely make important judgments about DV without speaking to the alleged abuser. Doctors, therapists and DV advocates often calculate a child’s ACE score based on what the safe parent tells them. They have found this to be highly accurate because the research confirms women rarely make deliberate false reports of abuse, particularly in the context of contested custody cases. Similarly, advocates and law enforcement routinely use lethality or danger assessments based on the reports of the alleged victims. These practices have proven to be helpful and accurate. Of course, if these assessments lead to criminal charges or other court action, the alleged abuser is certainly given the opportunity to respond.
Courts Need DV Expertise
There is now a specialized body of domestic violence knowledge and research that was not available when custody courts developed their response to DV cases. This information is critical if courts are to be effective in recognizing and responding to DV. Saunders found court professionals need more than generalized DV knowledge. They need knowledge in very specific topics that include screening for DV, risk assessment, post-separation violence and the impact of DV on children. Saunders found most evaluators and other court professionals do not have this specific knowledge. When courts attempt to make decisions in possible DV cases without the necessary DV knowledge the results are often catastrophic and frequently ruin children’s lives.
There are four parts to proper screening for DV. The first part is to avoid non-probative factors that are often used to discredit true reports of abuse. Common examples include the alleged victim leaves and returns, she fails to follow through on a request for a restraining order, she doesn’t have police or medical records. These are common responses of victims for safety and other good reasons. Another related mistake is treating an alleged abuser’s good behavior in public, including testimonials from friends, family, and colleagues as if that tells us anything about his private behavior. In the batterer classes I taught, the men usually acted respectfully, and we were trained to understand this tells us nothing about his behavior in private. In many cases, professionals observe an alleged abuser interacting with the children. When they don’t show any fear, the untrained observer assumes this means he cannot be abusive. The children understand he would not hurt them in front of witnesses, so it is safe to play with a father they still love. The fact courts continue to discredit abuse reports based on non-probative factors demonstrates the need for a DV expert.
The second factor is simply to determine which parent is afraid of the other. Sometimes victims challenge their abuser during litigation. They are afraid of him but find the courage because they are trying to protect their children. When an alleged victim accepts clearly inadequate child support, this is often because she is afraid of his response if she demanded what the law requires. Context is important, including the relative size and strength of the parties in determining the fear issue.
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. Although courts often use a high conflict approach, 75-90% of these cases are really domestic violence involving the worst abusers. This does not mean they committed the most severe assaults, but rather he believes she has no right to leave and so he is entitled to do whatever is necessary to regain the control he believes he is entitled to and punish the mother for leaving. Courts cannot make decisions based on statistics but should look to his actions to understand his motive.
Most parents would sacrifice their resources and preferences to benefit their children. Accordingly, it makes sense to look to see if the father is making such sacrifices or alternatively refusing to do so. Is the father refusing to pay child support and other child related needs or making it difficult to collect? Is he interfering with the child’s communication with the mother? Is he blocking therapy and other decisions that would benefit the child? Saunders found abusive fathers use decision-making to block anything the mother wants and especially therapy because the child might reveal his abuse. Is the father uncooperative with socialization and activities that would benefit the child? Does the father engage in unnecessary and harmful litigation tactics? Is he trying to gain an unfair advantage by imposing high litigation and other expenses on the mother? Is the father willing to spend more to deprive the mother or child of something than the issue would cost him? I had an extreme example in one case where the father canceled health insurance for the children that was fully paid by his employer. The court treated it as an economic issue rather than proof the father was deliberately trying to hurt the mother and children. An abuser is not likely to engage in all these bad practices but looking at the totality of the circumstances can help the court determine whether the father’s priority is the well-being of the children.
The final part to screening for DV is looking for the pattern of abuse. Courts tend to focus on incidents, and that is needed for evidence, but in DV cases, it is not just that the abuser committed some incidents, but it is who he is, what he believes, and all designed to impose his will. The pattern would include all the tactics the abuser used during the relationship and since. This emphasizes that most DV is neither physical nor illegal. The tactics often also include emotional, verbal, economic, and litigation abuse as well as isolating and monitoring tactics. Including all the tactics makes more evidence available and helps courts recognize his motives. The fact that his tactics continued after the separation demonstrates he has not changed. Some professionals assume the end of the relationship ends his abuse, but the research found only accountability and monitoring are effective in changing abusers’ behavior. When courts minimize or overlook abusive behavior, it serves to encourage these harmful tactics. This is not beneficial for the children.
Risk Assessment is central to the work of DV advocates because if we can’t keep the victim safe, nothing else matters. It is hard to believe courts haven’t made this a similar priority to protect children. The Center for Judicial Excellence keeps records of children involved in contested custody who were murdered, mostly by abusive fathers. Since 2008 they have found over 860 child murders.
There are specific behaviors associated with higher risk of lethality. These circumstances include strangulation; hitting a woman while pregnant; hurting animals; threats of murder, suicide, or kidnapping; access to guns; stalking; and the belief she has no right to leave. I have reviewed over 1000 child custody evaluations and never saw an evaluator reference the lethality risk associated with these allegations. The failure to focus on risk assessment results in denying and minimizing the risk from abusers.
Post-separation violence refers to two types of risks courts rarely consider. In contested custody, fathers who had limited involvement in childcare during the relationship suddenly seek custody or shared parenting as a tactic to gain access to the victim and punish her for leaving. Saunders found abusive fathers sometimes use visitation exchanges to harass or even assault the mother. Abusers may use meetings or communications to try to resume the relationship or just have sex. This might be misunderstood as romantic, but it reveals the motive for seeking custody. Abusive litigation tactics and economic abuse are often a continuation of the father’s DV once he no longer has regular access. Even worse, many abusers recognize the best way to hurt a mother is to hurt her children.
Abusers do not commit DV because of anything the mother said or did. Rather, his behavior is based on his sense of entitlement and belief as the man he has the “right” to make the decisions. This means he is likely to abuse future partners. If he is given custody or unprotected visitation, the children are likely to witness more DV and that would prevent them from healing so they will suffer the awful consequences of exposure to multiple adverse childhood experiences.
The ACE (adverse childhood experiences) Research is peer-reviewed medical studies from the CDC. It provides the answer to Saunders question about the impact of DV on children and goes to the essence of the best interests of children. ACE found that children exposed to DV, or child abuse will live shorter lives and suffer a lifetime of health and social problems. Most of the harm is not caused by any immediate physical injuries, but from the fear and stress abusers cause. Without ACE, courts routinely minimize the harm from DV or child abuse and are deprived of the most important information.
ACE tells us that many common court practices work poorly for the children the courts are obligated to protect. These mistakes include: refusing to consider older abuse; assuming a very young child could not be harmed by DV because they would not understand what occurred; failing to allow enough time to learn the full context and patterns; using approaches that demand the child just get over it; high conflict approaches; using shared parenting in cases where children have multiple ACEs; using unscientific alienation theories; failure to give serious consideration to supervised visitation; and failure to focus on how to reduce the fear and stress on children.
Avoiding Outdated Practices
Saunders found custody courts need to use a multi-disciplinary approach in cases where there may be domestic violence. This means courts benefit from hearing DV experts when determining if there is DV as well as best responses. It is puzzling why judges or lawyers could believe a DV expert must speak with an alleged abuser to provide useful information while there would be no question a party’s therapist can testify after only working with their client. The mistake is probably based on familiarity with standard evaluator practices and a misguided sense of fairness.
As DV expert witnesses, we often hear the alleged abuser’s voice through evaluation reports, GAL reports, court transcripts, and messages like texts or emails. The attorneys who complain we did not speak to their clients would never have allowed us to speak with them. Even without us speaking to the alleged abuser, the court will hear his side of the story because he will be given an opportunity to present a case. In contrast, when courts rely on an evaluator without the needed DV expertise, the court never hears the vital DV information discussed above. Even when there is no evaluation in a case, the judge and lawyers are relying on the many evaluations they have read in other cases that fail to consider important DV expertise. In other words, courts will always have an opportunity to hear from both parties, but only with a DV expert can the court consider the type of life saving information described earlier.
There is a history and context that undermine the adoption of needed reforms. Present practices, particularly concerning evaluations in DV custody cases were developed at a time when no research was available. The popular assumption was that DV was caused by mental illness or substance abuse. This led courts to turn to mental health professionals as if they were the experts in DV. They are experts in psychology and mental illness, and this can be helpful particularly when there are mental health issues in addition to the DV. Further research proved mental illness and substance abuse reduce inhibitions, so DV is more severe, but does not cause DV. Saunders established that evaluators do not have the necessary DV expertise, but courts have been slow to use the multi-disciplinary approach needed to protect children.
At the same time, DV is about control, including financial control. This means most of the financial resources favor abusive fathers, so courts have heard much more biased misinformation that favors abusers. Most lawyers do not have DV expertise and many refuse or discourage presentation of DV information because they believe judges don’t want to hear them. This is precisely the scientific research and DV expertise courts will miss without testimony from a DV expert.
There is something terribly wrong when an alienation theory based on no research, but the belief sex between adults and children can be acceptable continues to have more influence on custody courts than ACE and Saunders that are peer-reviewed scientific research from the CDC and National Institute of Justice. The alienation theories were twice rejected by the American Psychiatric Association because there is no research to support it. The National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders because without this vital research courts routinely deny or minimize true reports of abuse AND RUIN CHILDREN’S LIVES.
As DV experts, we can provide custody courts with knowledge of important scientific research, DV dynamics, gender bias, child sexual abuse, batterer narratives, and the importance of context. This knowledge proves many standard court practices are harming children. If we don’t speak to an alleged abuser, the courts will get his side of the story anyway, but if courts don’t hear from DV experts, as the research recommends, courts will never hear the information needed to keep precious children healthy, safe, and alive.