By Barry Goldstein
Most custody cases do not involve domestic violence (DV) or child abuse so if courts need assistance, mental health professionals would be an appropriate choice. Family courts are used to relying on mental health professionals for all cases, but this is based on a long history rather than good research. What works best for children in cases where there are reports or evidence of possible DV or child abuse?
Present court responses to possible DV were developed in the 1970s when DV first became a public issue and there was little research. Popular assumptions at the time suggested DV was caused by mental illness or substance abuse, and this led courts to turn to mental health professionals as if they were the experts in DV. Mental illness and substance abuse reduce inhibitions. This means DV abusers influenced by mental illness or substance abuse commit more severe and thus more memorable incidents of abuse. This is where the mistaken assumptions came from. We now know that people will not engage in behavior that they wouldn’t ordinarily consider just because of the reduced inhibitions. In other words, only people who believe they have a right to use abusive tactics to control their intimate partners are a risk to commit DV. DV is not caused by mental illness or substance abuse. Parents can certainly benefit from treatment for mental illness or substance abuse, but these problems do not cause domestic violence behavior.
The Saunders Study found most court professionals, including evaluators, do not have the DV knowledge that courts need. This does not mean mental health professionals cannot contribute to the court’s understanding of a case. Saunders recommends a multi-disciplinary approach that includes DV experts when DV may be an issue. Their expertise is needed to help the court determine if one of the parents committed DV. This means it is a mistake to wait until a finding of DV is made before seeking the benefit of DV expertise.
Unfortunately, a cottage industry of lawyers and mental health professionals has developed to provide approaches that favor abusive fathers. This works for the professionals because DV is about control, including financial control. Most of the financial resources in DV custody cases are controlled by abusive fathers. Parental Alienation Syndrome and other unscientific theories were created and promoted to help abusive fathers take custody from good mothers and help unethical professionals make large incomes. The worst thing a court can do is appoint cottage industry professionals to neutral positions like evaluator or GAL. They do not have the knowledge about abuse that Saunders says is needed and they are biased to help abusers and promote discredited alienation theories.
There are a few wonderful mental health professionals who also have the necessary expertise to help courts understand abuse issues. Psychologists like Dr. Mo Therese Hannah, Dr. Joy Silberg, and Dr. Robin Lynch are examples of psychologists who also have the needed DV expertise. I am generalizing, based on the findings in Saunders and my experience, but most mental health professionals relied on by the courts do not have the necessary DV expertise. Most mental health professionals are not part of the cottage industry and so are trying to be fair to both parents. Inevitably, the mistakes they make favor abusers when they don’t know how to screen for DV and fail to consult with a DV expert.
The purpose of this article is to review the benefits and problems associated with courts relying on just mental health professionals or DV experts. Hopefully we can reduce the present bias for using only mental health professionals and move to the best practices found in Saunders, which requires a multi-disciplinary approach.
Mental Health Professionals Benefits and Risks in DV Cases
Mental health professionals know how to diagnose mental illness. Courts need to know if the parents or children have mental health problems. Courts would need recommendations for how mentally ill children need to be treated. Their condition might suggest custody for one parent over the other. It would emphasize the question of which parent is more familiar with the child’s providers. There might be behavior from one or both parents that exacerbates the child’s condition. The child’s condition might also explain current problems or the child’s response to particular situations.
Courts also need to know if one of the parents has a mental health condition, whether it would prevent them from being a safe parent, and how it might impact their parenting. The other parent might need to adjust their behavior, such as to avoid causing unnecessary stress to help a parent cope with their condition. DV is not caused by mental illness, but it is common for abusers to also have a mental health problem. It is critical that courts understand these are separate problems requiring separate responses. An abuser might need therapy and/or medicine for his mental health condition, but also require accountability for his domestic violence. The common present reliance on mental health professionals often results in an abuser receiving treatment for the mental illness or substance abuse, but nothing is done to respond to his history of DV or child abuse.
Mental health professionals are used to speaking to a variety of people connected to the family, reviewing documents, and organizing the facts, circumstances, and history of the family. I often find this information is helpful in understanding the case even when the professional did not have the DV expertise necessary to recognize the abuse issues in the family.
One of the most surprising findings in Saunders was that social workers tend to make better recommendations in DV custody cases than psychologists or psychiatrists. This was surprising because we usually expect professionals with more education and advanced degrees would understand cases better. One problem was that psychologists tend to rely more on psychological tests that tell us nothing about DV and were not meant for the populations seen in Family Courts. Even in 2023, we still see evaluators discount reports of abuse because the abuser is not mentally ill. Social workers have the advantage of using a more holistic approach. Evaluators often diagnose mothers who are successful in the other areas of their lives with mental health problems that really only reflect her difficulty dealing with her abuser and sometimes with court professionals she views as unwilling to protect her children. These evaluators went wrong because they missed the context.
Saunders found that most evaluators do not have the specific DV knowledge that is needed. They rarely know how to screen for DV, understand risk assessment, post-separation violence, or the impact of DV on children. They tend to provide the court with subjective opinions that fail to include important research like ACE (adverse childhood experiences) and Saunders.
ACE is peer-reviewed medical research from the Centers for Disease Control and Prevention. It found that children exposed to DV, child abuse and other trauma will live shorter lives and face a lifetime of health and social problems. Most of the harm from DV and child abuse is not caused by any immediate physical injuries, but from the fear and stress abusers cause. Saunders found that most court professionals do not know how to screen for DV and so make recommendations that harm children. This research goes to the essence of the best interests of children. This is why the National Council of Juvenile and Family Court Judges seeks to train other judges about ACE and Saunders. It is really malpractice to try to respond to DV custody cases without ACE and Saunders.
Many standard beliefs and practices used in custody courts and encouraged by mental health professionals are proven wrong by ACE and Saunders. This includes failing to understand an abuser’s good public behavior is not probative of his private behavior, high conflict approaches, focusing only on physical abuse, asking children to just get over it, assuming older abuse doesn’t matter, the myth mothers frequently make false reports, the assumption children need both parents equally, the failure to focus on reducing the fear and stress abusers cause, and reliance on biased and unscientific alienation theories.
The mistakes that are routinely made because of the failure to integrate ACE and Saunders are not neutral in the sense they apply to both parents. All of the mistakes help abusers and place children at risk. They are exacerbated by the fact DV is about control, including financial control. This means in most cases, the abuser controls most of the family’s financial resources. As a result, courts have heard much more from the abuser’s side and this misinformation is used by judges and lawyers in other cases. Courts rarely use their authority to level the playing field or require abusers to pay costs, including legal fees made necessary by their abuse. It is a standard abuser legal tactic to use economic and litigation tactics to bankrupt their victim, but courts rarely recognize or counter these tactics. The problem is further exacerbated because attorneys for abusers are comfortable with aggressive tactics despite their harm to children but many attorneys for victims are afraid to present evidence of abuse. All of these factors prevent courts from receiving the evidence they need to make safe and healthy decisions.
Mental health professionals have the advantage of having worked with the present practices for years and are comfortable adhering to these practices. The negative is that courts have no effective way to integrate new practices and knowledge. Courts tend to use the same small group of evaluators and other professionals, and this encourages an insular atmosphere. If courts regularly relied on expert witnesses from a nearby college or university, they might hear more of the latest research and improved practices that are available. The first ACE Study was published in 1998 and Saunders was published in 2012. There is something wrong when an unscientific alienation theory, twice rejected by the American Psychiatric Association has more influence over the courts than peer-reviewed scientific research from the most credible sources like ACE and Saunders. ACE is used by medical doctors to diagnose and treat patients, it is used by therapists to treat patients, public health officials use ACE for a variety of public policy issues and schools use ACE to help traumatized students. The only purpose for alienation theories is to help abusers take custody from good mothers.
We often see confirmation bias in evaluations because evaluators are used to outdated practices and have expected findings that either promote shared parenting or punish mothers seeking to protect their children. There have been numerous court-sponsored studies that have found widespread gender bias against mothers. Gender bias is often found in evaluations and court decisions because it is so hard to have an open discussion about this critical issue without defensiveness or retaliation. The recent Meier Study confirmed courts have made little progress on this issue.
Domestic Violence Experts Benefits and Risks in DV Custody Cases
The Saunders Study found that DV advocates have more of the specific knowledge courts need than judges, lawyers, or evaluators. This is especially important because this knowledge is needed for courts to recognize true reports of abuse and the Meier Study confirmed that custody courts disbelieve reports of domestic violence and child abuse far more often than the reports are untrue. Courts cannot protect precious children if they cannot recognize reported abuse.
DV experts know how to avoid discrediting true reports based on common situations that are not probative. We know to consider the alleged abuser’s motives, the pattern of abuse, and which parent is afraid of the other. I have read more than one thousand evaluations and have never seen an evaluator discuss the significance of abusive tactics that are associated with higher risk of lethality. How can we protect children without providing a risk assessment? Most DV experts are trauma informed and familiar with ACE and Saunders. It should be viewed as malpractice for courts to try to adjudicate DV custody cases without this vital information.
Fundamentally, without ACE, professionals inevitably minimize the harm from abuse and, without Saunders, they frequently disbelieve true reports of abuse. Most DV advocates can calculate the children’s ACE score. This tells the court the risk to the children if they are not protected. Abusers tend to be very manipulative and have great success fooling court professionals. A very common example is taking the abuser’s good public behavior and success in other parts of his life as if it were probative about abuse reports. DV experts are also aware that only accountability and monitoring have been shown to change abusers’ behavior. We often see mental health professionals recommend therapy or anger management that have no impact on DV in an attempt to respond to DV. This creates the illusion of responding without doing anything useful.
Mental health professionals often focus on an alleged abuser’s mental health and ability to control his behavior as if this were probative. DV experts understand DV is a gendered crime (even though there are rare cases where the woman assaults or mistreats the man). Evidence of the alleged abuser’s sense of entitlement, male privilege, and expectation to control women is important to understanding DV, but routinely missed by other professionals. Research about batterer narratives reveal that the use of offensive, sexist language gives abusers permission to hurt women. Non-abusers may have an interest in pornography, but it makes it more likely the man is an abuser.
Alleged victims often minimize the harm from their partner’s abuse and take some of the responsibility they don’t deserve. Many victims do not even realize that the father’s behavior constitutes abuse. DV experts understand the fear victims have is important to understanding the case. Victims are more likely to share information with DV experts who would be more likely to understand. This helps courts make more informed decisions because more information would be available.
Just as mental health professionals provide courts with valuable information they cannot receive elsewhere, but usually fail to provide needed DV information, DV experts also provide courts valuable information they are otherwise not receiving, but cannot provide information about psychology, mental illness, or from speaking to all the parties and collaterals. PTSD is a common mental health problem for victims of DV and child abuse. DV experts can recognize possible symptoms but cannot diagnose PTSD. DV experts can share the research about PTSD. Post-Traumatic-Stress-Disorder can only be caused by the most severe and horrific incident or a series of traumatic events such as occurs with DV or child abuse. If an alleged abuser caused PTSD, the court knows his denials and minimizations are false. A man whose abuse was so severe as to cause PTSD is an unfit parent. I have actually seen some evaluators fail to provide this information to the court or even claim the factor favors the abuser. This provides another example for the importance of a multi-disciplinary approach.
DV experts do not have the ability to require alleged abusers to speak with them. Attorneys for alleged abusers often try to use this to prevent courts from hearing the information DV experts can supply, and on rare occasions courts allow themselves to be manipulated by the attorneys. This is probably because courts are used to evaluators that claim to provide the full story. There are now three government-sponsored studies that have found serious problems with evaluations in DV custody cases because few evaluators have the necessary DV expertise.
Without speaking with the alleged abuser, DV advocates make judgments about whether someone is a victim of DV for purposes of providing shelter, advocates and law enforcement create a risk assessment, and advocates and medical professionals determine the ACE score for children. These findings tend to be far more accurate than court findings because they are performed by professionals with the needed DV expertise. A good argument could be made that avoiding the manipulation of abusers improves the accuracy of the findings. Fundamental fairness requires courts to hear the alleged abuser’s side of the case, and this is already done. Abusers usually have far more resources and more freedom to aggressively press their case than their victims do. Barring DV experts who could not speak with the alleged abuser does not provide a fairer balance for the court but rather prevents the court from hearing vital information and research the court will otherwise be missing.
In the last 15 years, more than 950 children involved in contested custody cases have been murdered. In many of the cases, the court failed to recognize true reports of abuse and gave the killer the access he needed to murder the child. The Bartlow Study asked judges and court administrators in the communities where the murder occurred what reforms they created in response to the murder to make children safer. The shocking response was nothing because they all assumed the local tragedy was an exception.
The immediate murders are just a small part of the harm caused when courts minimize or deny true reports of abuse. Just yesterday, I learned about a boy a court failed to protect from an abusive father. He died at 25 of a drug overdose. His mother is a dear friend who has helped so many protective mothers but could not save her own son in a system that refuses to use available DV expertise. Another good mother with terminal cancer gave up and turned to assisted suicide because a court helped the abusive father punish her by denying contact with her daughters. In other cases, children the courts failed to protect committed suicide in their teens and twenties. ACE tells us that many other children will die early from cancer, heart attacks and other diseases caused or exacerbated by the fear and stress custody courts rarely consider. This is not a time to get defensive about practices that are harming so many children.
The original mistake was to turn to mental health professionals as if they were also experts in domestic violence. The mistake was understandable because no research was available. Now we have ACE and Saunders and the ability to safeguard precious children. Saunders recommends courts should use a multi-disciplinary approach that includes DV experts. Courts need to be open to better practices supported by scientific research that can help courts recognize and respond to abuse issues. “This is not the way we always responded” is not a proper justification for courts to deny themselves the needed expertise.
The rules to qualify as an expert witness set the bar very low. Typically, an expert witness by education, training or experience must have expertise in a relevant subject far superior to a layperson. Mechanics without a high school diploma would routinely qualify to testify about automotive issues. A therapist for one party would qualify even though she never met the other party or the children. Most witnesses provide the court with only part of the story, but that doesn’t prevent them from testifying.
Children are dying and court decisions are ruining other children’s lives. Mental health professionals have useful information that helps courts, but they usually do not have expertise in abuse issues or the knowledge of critical research like ACE and Saunders. This is the critical information courts need to protect children. No judge wants to hurt children but when courts find excuses to avoid the knowledge they need, innocent children inevitably pay the price.
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.