Please Judge, No !
Your Subtitle text

Reform

CRISIS IN THE CUSTODY COURT SYSTEM

STATE LEGISLATIVE REFORM PROPOSALS

By Barry Goldstein
               

       When domestic violence became a public issue in the 1970s, the custody court system adopted policies and approaches to domestic violence custody cases based upon the limited available research at the time.  Although there is substantial research available today that was unavailable when these practices were adopted, few reforms have occurred to take advantage of up-to-date research.  Recent books and articles based on the most up-to-date research have established that common mistakes by the custody court system have resulted in thousands of children being sent to live with abusers and a large majority of contested domestic violence cases being decided in a manner that places children in unsafe and unhealthy homes and often interferes with the child’s ability to reach their potential. 

       A new book that was be published in April of 2010 brings the latest research and information together in one place and establishes the harm being done to our children by the broken custody court system. The book is DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, co-edited by Dr. Maureen T. Hannah and Barry Goldstein. It uses a multi-disciplinary approach and includes chapters by over 25 of the leading experts in the US and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates.  Although these experts come from different disciplines and use varied approaches there is remarkable unanimity that the system is broken. Rita Smith, executive director of the National Coalition Against Domestic Violence (NCADV) says in her Afterward that once this book is published the common practices used by professionals in the custody court system will be properly viewed as malpractice. Accordingly it is time for the custody court system to be reformed

Many domestic violence advocates and legislators have asked for suggestions for legislation that can better protect battered mothers and their children when abusers use the custody court system to continue their abuse and control over their former partners. Below are many suggestions by Barry Goldstein that legislatures can adopt to improve the custody courts in their states. Legislatures can adopt all or some of these recommendations as they determine will work best in their state.


1. Any legislation should include strong findings about the present problems that led to the reforms.  This may be the most important part of the reforms.  Although it is the policy of every state and court to end domestic violence, the courts have largely ignored this purpose in an attempt to be “fair” to all parties.  The legislation should refer to common practices by the courts that research has shown have failed.  This will permit attorneys for protective mothers to cite these findings when courts seek to use outdated or dangerous practices.  When legislatures eliminated the “tender years” doctrine that favored mothers, they provided that each parent should be treated equally regardless of gender.  This was a fair reform, but courts have misinterpreted it to mean that the parties have equal rights to custody despite differences in parenting abilities and other factors that effect children.  Research demonstrates that if children lose their primary attachment figure (the parent who performed most of the child care during the first couple of years of a child’s life),  the child is more likely to suffer depression, low self-esteem and attempt suicide.  If a parent has engaged in domestic violence, the child is substantially more likely to later engage in a wide range of dysfunctional behavior.  Based on this research it is clear that children should be in the custody of their primary parent and never have custody with an abusive parent.  Why would any court consider taking children from the primary parent unless she was a substance abuser, engaging in criminal activity, abusing the children or some equally serious behavior?  Too often courts have believed that to be fair to both parents they must treat them equally regardless of the disparity in parenting ability.  Often fathers have been given custody based on negative remarks by the mother, superior economic circumstances or other reasons that have not been shown to affect a child’s future like the issues mentioned earlier.  In reality mothers are not treated equally as gender bias research, including studies done by the courts demonstrate widespread bias against mothers.  In practice mothers are given less credibility than fathers, but the research demonstrates mothers make deliberately false allegations only one-two percent of the time and fathers make deliberately false allegations 16 times more frequently.  Too often court professionals are manipulated by abusers and discredit mothers who are angry or emotional as a natural reaction to the father’s abuse.  The research finds judges have the further handicap of inadequately trained evaluators and other professionals who do not understand domestic violence issues, but create a false sense that there is scientific basis for their biased recommendations. Evaluators often rely on psychological tests that were not created for the population in a custody dispute and provide little or nothing relevant to custody issues.  Judges are rarely trained to see through invalid analysis by “neutral professionals.” Legislatures should make it clear that their intent is for courts to use verifiable up-to-date research and that the present practices have not done so.


2. Training of judges, children’s attorneys and other professionals relied on by the court must include the specific topics of “Recognizing Domestic Violence” “Gender Bias” and “The Effects of Domestic Violence on Children.”  The truly frightening thing about the courts’ mishandling of domestic violence custody cases is not that they get such a high percentage of cases wrong, but that they often reach a decision that is the opposite of what up-to-date research has found best provides for the safety of children and helps them reach their potential.  In the typical case the mother has provided most of the child care and has made allegations regarding domestic violence and sometimes child abuse.  The father has countered with claims of alienation.  The limited training judges and other court professionals have had does not help them know what to look for to determine domestic violence allegations, but creates a false sense of confidence so they are often not open to expertise based on up-to-date research.  Many courts use information to discredit claims of domestic violence that in fact has no probative value and then fails to know what evidence is important to confirm domestic violence allegations.  In his chapter for the book DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, Judge Mike Brigner describes his training of other judges.  The judges often ask him what to do about women who are lying. When he asks what they mean they say that she went back to her abuser, withdrew petitions for protective orders, failed to press criminal charges and didn’t go to the hospital.  There are many good reasons why women would act this way particularly when she is still living with her abuser and none of this supports the belief she is lying. Nevertheless, this widespread view of judges demonstrates how courts invalidate many honest claims of domestic violence because they are not familiar with up-to-date research.  In the same book, Judge Thomas Hornsby wrote that in his 19th year on the bench he finally learned the proper way to handle certain requests for orders of protection.  It says something positive about Judge Hornsby that he has the openness and integrity to acknowledge that he had more to learn because many judges have refused to hear genuine domestic violence experts on the grounds that the judge had many years of experience and knew everything.  Inevitably the judge then sent the children to live with an abuser. Courts often look only to conclusive evidence of physical abuse and fail to look for patterns of controlling behavior. Actions like monitoring his wife’s odometer, keeping her away from friends and family, controlling finances or insisting she do the “woman’s work” are not illegal, but they demonstrate a belief system and a practice of coercive control that educated professionals can use to recognize a pattern of domestic violence.  Courts often punish the mother for believing the father presents a danger or trying to protect her children.  This results in extreme and punitive actions against the protective mother. The problem is exacerbated by widespread gender bias in which a mother’s greater parenting skills are expected rather than rewarded and an assumption the father should be favored because the mother’s relationship with the children is stronger.  The problem with gender bias is that good people can engage in this bias without realizing they are doing so because in reality they are just relying on common stereotypes.  Every state changed its laws to at least require consideration of domestic violence evidence in custody and visitation cases in response to conclusive research of the harm of domestic violence to children.  Nevertheless courts rarely use this and updated research to understand the importance of protecting children from such abuse. Courts often create tremendous pressure and sanctions to force mothers to stop believing the father is abusive, but rarely use their authority to pressure the father to stop his abuse. Unqualified professionals often assume that once the parties separate the danger of domestic violence is ended, but in reality men commit domestic violence not because of anything the woman did, but because he feels entitled to use abusive tactics to get his way.  Accordingly children living with an abuser are likely to witness more acts of domestic violence involving the father’s future partners.   Although there is no research that negative statements by the mother create long-term harm to children, courts routinely make alleged alienation by mothers their major focus.  In reality all studies demonstrate that most prisoners grew up in homes with domestic violence and/or child abuse. In other words the present practices in the custody courts will inevitably create tremendous harm to society.  Accordingly it is critical that court professionals have not just limited general domestic violence training, but extensive and very specific training in the topics they need to respond intelligently to domestic violence custody cases.

3. Domestic Violence Training Should be Overseen by Domestic Violence Organizations:  There is only one profession that works full time on domestic violence issues and they work for domestic violence organizations. They typically have hundreds or thousands of hours of training in addition to working full time on these issues.  Courts often rely on “experts” with one or two hours of domestic violence training and then send children to live with abusers.  The problem is that domestic violence advocates are treated as if they are partisans because they always oppose domestic violence.  No court or government body would dream of responding to arson without relying on the expertise of the firefighting community even though firefighters are always against arson.  Every state and every court has a settled policy against domestic violence.  Domestic violence advocates understand how to recognize domestic violence and what practices work best to prevent it.  They are the most important resource in their communities regarding domestic violence. Many courts and institutions have mistakenly treated extreme groups that seek to eliminate child support, scale back or eliminate domestic violence laws and in some cases encourage sex between children and adults as an equal and counter group to domestic violence agencies. These groups have a right under the first amendment to spread their manipulation and hatred, but domestic violence is settled policy.  We no longer need to hear both sides of disputes about the Holocaust, flat earth believers, man-child sex supporters or those seeking to justify domestic violence. Obviously there are two sides to an individual case and the alleged abuser has every right to challenge the accusations.  A court must give him fair consideration, but does not have to take seriously claims that he has a right to abuse his partner (or does in response to some action he opposed).  Giving authority over training to the experts in the community will make sure the professionals get the most up-to-date research about domestic violence and hopefully help the courts start thinking of domestic violence advocates as important resources rather than partisans.  States will have to provide additional resources to domestic violence agencies to provide this important service, but they already spend money on professionals without the necessary expertise.

4. Create a Meaningful Presumption that Abusers Should Not Have Custody of Children:  Research by Lundy Bancroft, Peter Jaffe and many others has established that parents who engage in domestic violence are so harmful that children are safer and more likely to reach their potential when the safe parent has custody and the abusive parent, at least initially is limited to supervised visitation.   The National Council of Juvenile and Family Court Judges makes a similar recommendation.  Unfortunately even states that have created a rebuttable presumption limit the benefit of such requirements by applying it only to cases with a criminal conviction or other higher standards of proof.  Such laws can be even worse than no laws because courts sometimes treat the failure to meet these higher standards of proof as if it means the alleged abuser is safe.   The problem is compounded by gender bias that often causes courts to give less credibility to women than their abusers and demands a higher standard of proof from women.  The standard of proof for custody is generally some form of preponderance of the evidence, in other words probability.  If a parent has probably abused the other parent, it is probably in the best interests of the children for the safe parent to have custody.  This is particularly important in the context of the frequent problem of courts not knowing what to look for regarding evidence of domestic violence.  Accordingly states should create a rebuttable presumption that if one parent has engaged in a pattern of coercion and domestic violence tactics designed to control the other party or to make the major decisions in the relationship, the abusive parent should not be considered for custody if the other parent is safe.  The abusive parent should initially be limited to supervised visitation.  Claire Crooks, Peter Jaffe and Nicholas Bala set forth the factors that should be considered in restoring unsupervised visitation in their chapter regarding the effects of domestic violence on children in the forthcoming book DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, edited by Mo Therese Hannah and Barry Goldstein.


5. Require an Initial Screening for Domestic Violence at the Start of all Custody Cases:  In recent years, legislatures and court systems have adopted many policies to promote cooperation between parents involved in custody cases.  These include education programs, communication skills, parenting coordinators, mediators and parenting plans.  These may be appropriate for other cases, but are counterproductive and dangerous in domestic violence cases.  Some laws make an exception for domestic violence cases, but this is not effective.  Courts often think it is not a domestic violence case until the abuse is proven and pressure victims to cooperate in these programs. Similarly, when attorneys for protective mothers request that any evaluator who is appointed should have domestic violence expertise, they are often told we don’t know if it is a domestic violence case until evidence is presented.  Of course an evaluator without substantial domestic violence training doesn’t know what to look for and often misses the evidence of domestic violence.  An initial screening would not only lead to better results, but would save the courts and the parties substantial time and resources.  Many of the expenses such as for evaluators and GALs would be unnecessary and many of the issues that are raised would not matter if domestic violence is proven. In New York State fault grounds are required for divorce and courts sometimes have a bifurcated hearing on grounds for divorce.  One of the common grounds is cruel and inhuman treatment.  This is a factual hearing on limited issues and can usually be completed in a couple of hours or less.  If custody courts ordered a hearing about domestic violence at the start of the case, cases that often take many years could be resolved in a couple of hours.  Mothers rarely make false allegations of domestic violence (despite the myths and decisions that find otherwise) so this hearing would quickly resolve what are generally the worst of the worst cases.  The legislature must be clear that if the court does not find domestic violence it should stay open to new evidence that might later confirm the domestic violence allegations.  If the abuser committed domestic violence and the other parent is safe, there would be no need for the case to continue as the safe parent would receive custody and the abuser would initially receive supervised visits.  Other reforms may cost money, but this change would save substantial money and court time.  Furthermore, children and the safe parent they depend upon would be saved the trauma and expense of protracted litigation.

6. No Mutual Orders of Protection:  Male supremacist groups developed a tactic of seeking mutual orders of protection as a way to nullify their victims’ restraining orders.  Judges and battered women often believe there is no harm in giving the abuser an order of protection since she has no intention of violating the terms.  The problem comes when he assaults her and she calls the police.  He denies his assault and instead claims she assaulted him. The police then give her a choice of arresting both parties or neither.  Protective orders for abusers are particularly dangerous because it is a common tactic for abusers to make false complaints against their victims and we have seen frequent prosecution of female victims because the abuser made the first complaint and the prosecutor does not want to admit their initial decision was wrong.  When both parties seek protective orders, the court should look for the primary aggressor and provide protection to the party who fears and has reason to fear the other party.

7. Require Consideration of the Purpose of a Protective Order:  Courts often limit their inquiry to whether there is an allegation or proof of some criminal act.  This makes it easier for manipulative abusers to seek protective orders to prevent their victims from obtaining a restraining order or nullifying an existing order.  Courts should be required to look at the purpose of the order to protect the safety of the victim.  If the person seeking the order has no reason to fear their partner no protective order should be awarded.  This will prevent a slap in self-defense or a false accusation to be used by abusers to help them maintain control over their victims.  When abusers obtain their own protective orders they often tell their victims that this proves the police and courts won’t protect them so they better stay with him.  Our court system needs to find ways to stop helping abusers maintain control over his victims.


8. Parental Alienation Syndrome (PAS) and other unscientific theories should be outlawed from the court system:  Dr. Richard Gardner made numerous public statements supporting the practice of adults having sex with children.  He attacked Jews for convincing society to adopt laws opposing incest.  It was with this bias and belief system that Dr. Gardner concocted his Parental Alienation Syndrome.  Unlike real science which relies on tests, samples and verification, PAS was based on Gardner’s own (biased) experiences.  His work was self-published and never peer reviewed as required for genuine scientific research.  The basis of PAS is circular reasoning.  If a child doesn’t like the father (PAS is a sexist theory that is virtually only used against mothers), fears the father or opposes visitation, the only possible reason must be that the mother alienated the child from the father. Allegations of abuse made by the mother are treated as proof of alienation and therefore there is no reason to investigate her complaint.  The children are to be forced to live with the alleged abuser and the mother is at most given supervised visitation.  The children are often forced into what they afterwards describe as threat therapy where they are told how horrible their mother is and punished if they express anything positive about her.  Ironically, all this is done in an effort to stop alienation.  PAS is not recognized by the American Psychological Association or any reputable professional organization and is not included in the DSM IV which contains recognized mental health conditions.  Some psychologists have lost their licenses for supporting PAS in their findings because they are in practice diagnosing something that does not exist.  The custody court system is the only entity that permits PAS.  As PAS has been further discredited, it is often used by other names like “parental alienation” or just “alienation.”   You can tell PAS has been used by the failure to investigate or properly investigate abuse allegations and extreme outcomes taken against protective mothers.  Many children have described the horrendous abuse and harm they suffered because of PAS. They were able to reveal the results of PAS after they aged out of the custody order.  It is hard to imagine how something with so little basis and so much harm has been allowed to take such a hold of the custody court system.  The extremists that control “fathers’ rights” organizations have fought hard to support PAS because it prevents abusers from being held accountable for their abuse and instead can be used to maintain control over former partners or punish her for leaving.  Many unscrupulous mental health professionals and lawyers like to use PAS because abusers generally control the finances and thus have the resources to pay these professionals to promote this bogus theory in court.  Less than five percent of all custody cases are contested all the way to trial and often beyond.  These are the worst of the worst cases which often cannot be settled because they involve abusive fathers using custody to maintain his control.  It is in this relatively small group of cases that PAS is so common.  Respect for the court system is based upon the assumption that although they may occasionally make a mistake, we can rely on the findings of our courts and treat those findings as accurate.  This is why PAS and the crisis in the custody court system is so dangerous.  The up-to-date research is now beyond question that a large majority of these contested custody cases (almost all domestic violence cases) are being wrongly decided.  If the public cannot rely on the courts to make fair decisions, this would be a disaster.  Already many mothers have chosen to stay with their abuser and accept his beatings rather than risk going to the court system and risk losing custody.  Unfortunately, some judges and others in the court system have sought to respond to their mistakes by silencing protective mothers through gag orders, threats and punitive actions.  In some cases criminal charges have improperly been brought against protective mothers and disciplinary complaints made against professionals trying to help them.  This is a particularly dangerous response because it spreads the lack of trust in custody outcomes to other parts of the court system.  These mistakes make it critical for the legislature to make sure PAS is no longer used and to reform what we now know are outdated practices used in the custody court system. This is critical to maintain respect for our courts and laws.  It is particularly strange that conservative politicians who wish to restrict sexual activity between unmarried individuals tolerate the use of an unscientific theory designed to promote sex between adults and children.


9. Repeal Laws or Practices Regarding “Friendly Parent” and Joint Custody:  The idea of a friendly parent provision that would make courts favor the more cooperative parent seems reasonable on the surface.  The problem is that it is applied in a manner that favors abusers and fails to consider the long-term well-being of children.  The provision is mostly used against mothers trying to protect their children from abusive fathers.  When a mother seeks to limit contact between her children and an abusive father this is treated as being unfriendly and has been used to justify favoring abusers for custody. Numerous court sponsored gender bias commissions have complained that mothers are blamed for the father’s behavior.  In other words mothers are blamed for their normal reaction to the father’s abuse instead of holding the abuser responsible for the fear and pain he causes.  At the same time, truly unfriendly behaviors that hurt children such as excessive litigation, non-payment of child support, attempts to deport the mother, causing a foreclosure or turn-off of utilities or domestic violence are not treated as significant by courts applying “friendly parent” laws.  In addition there is no research that a mother’s belief or expression that the father is harmful has harmful consequences to children in the way that exposing children to domestic violence or depriving children of normal contact with their primary attachment figure have been proven harmful. Thus “friendly parent” laws focus courts’ attention on less important issues.  Joint custody or shared parenting seem fair and reasonable, but in practice do great harm.  An initial study of joint custody was made with a very small population and under the best possible circumstances of the parties being able to cooperate, wanting joint custody and living near each other.  The results were positive and courts loved the idea because it seemed like a good way to compromise a very difficult issue.  Later studies with larger populations demonstrated that joint custody is actually harmful to children.  For children, two homes are actually no homes.  The constant disruption in children’s lives overcame any benefit the arrangement might have and this was when the parents were able to cooperate.  In domestic violence cases joint custody is a disaster in which the abusive party uses the arrangement to have access to his victim in order to maintain his harassment and control.   Although most joint custody laws or rules provide an exception for domestic violence, this is often ignored by the courts either because they fail to recognize domestic violence or minimize its importance.  Batterers unlikely to obtain sole custody because of their limited involvement with the children seek joint custody to maintain control and limit or avoid child support.  Battered mothers are often pressured to agree to joint custody and often threatened with loss of custody or worse if she doesn’t cooperate.  The atmosphere in custody courts and the well-being of children would improve greatly if the legislatures took joint custody off the table.


10. Discourage the use of Evaluators when no Credible Proof of Mental Illness is Available:  There are some wonderful mental health professionals who have contributed their skills and learning to help end domestic violence. Most of the mental health professionals used by the courts, however, have little or no training or expertise in domestic violence and have contributed to the present crisis.  The use of mental health professionals after domestic violence became a public issue was started at a time when no research was available. Many experts now argue to eliminate any role for the mental health profession in custody cases and particularly cases involving allegations of domestic violence.  With rare exceptions, domestic violence is not caused by mental illness and the psychological tests often used by evaluators tell us little about domestic violence or parenting ability.  The involvement of mental health professionals in the custody process delays the cases and adds tens of thousands of dollars to the expense.  Unless there is persuasive evidence that one of the parties or the children have a mental illness that affects the ability of a parent to provide proper care for the children, the laws should discourage the use of mental health professionals in such cases.

11. Reform or Change the Best Interest of the Child Standard:  The problem with the best interest of the child standard is that it is extremely subjective and in practice has been subject to manipulation. The American Law Institute and others have suggested an approximation standard.  Absent a safety issue, the time the children spend with each parent would approximate the time they spent with each parent before separation.  This would save a lot of money because it would be a factual issue that should be simple to determine.  When the parents were together and presumably wanted what was best for the children, they determined how the children’s time should be divided.  Presumably parents that loved their children would not have placed them in danger by leaving them with a parent they now claim is unfit.  This is the kind of logic courts generally use for many topics, but not custody.  If a legislature wants to continue the best interest standard, it should define the term better based upon up-to-date research now available.  It would seem obvious that the first priority should be the safety of the children, but today this is treated as just one of many factors and less important factors such as friendly parent or financial ability are often treated as if they were more important than safety.  The second factor should be giving children the best chance to reach their potential.  It is hard to imagine why these are not now considered the most important factors in determining a child’s best interest. This reform would mean that factors that have been demonstrated to affect the long term well-being of children such as domestic violence, child abuse and primary attachment would be given priority over less important considerations.

12. Children Should Have the Right to Speak to the Judge:  One of the problems we have seen in bad custody cases is GALs advocating for an abusive father despite the wishes of the children.  Accordingly it is important that children over a certain age should have a right to tell the judge directly how they feel and other information they think is important.

13. Gender Bias Must be Grounds for Reversal:  The court systems in over forty states and many districts have appointed gender bias commissions.  They have yielded consistent results that gender bias against women is widespread and specifically mothers face a higher standard of proof than fathers, are given less credibility and are blamed for the actions of their abusers.  A glaring example of this bias occurred in the related Shockome and Goldstein cases in New York State.  The record states directly that the court used a certainty standard for the mother and the correct probability standard for the father. A certainty standard is even higher than the beyond a reasonable doubt required in criminal cases.  No mother, no matter how wonderful could meet a certainty standard.  It is hard to imagine a clearer violation of fundamental due process and equal protection rights, but more than a dozen different judges reviewed the case and they all deferred to the trial judge based on the fact that he had observed the demeanor of the witnesses.  When a judge engages in gender bias his judgment cannot be fair.  Most examples of gender bias are not as blatant and obvious as this.  Frequently we will see a court pressure a mother and then take custody from her because she continues to believe she or the children were abused and asks the court for protection while complying with the court orders. After the abuser is given custody, he violates visitation orders and tells children that their mother moved away, doesn’t love them or similar lies and the court does nothing to safeguard the mother’s visitation.  If the courts fail to prevent obvious examples of gender bias, how can they protect against more subtle forms of gender bias that are easily missed by those with inadequate training?  Women cannot get a fair hearing when they are subjected to gender bias and the research demonstrates this in the unfavorable outcomes of domestic violence custody cases.  This is why we recommend mandatory training regarding gender bias, but legislatures should go further and require cases to be reversed when a trial court engages in gender bias.  Removing the judge who engaged or tolerated gender bias from the case should be considered because we have seen many courts attempt to justify their past mistakes instead of being open to new evidence in domestic violence cases.

14. When Courts Rule Against Allegations of Domestic Violence, Require Written Explanations for the Decision:  One of the reasons we know something is wrong in the custody court system is that although women make deliberate false allegations of domestic violence one or two percent of the time, the custody court finds against these allegations frequently.  In any given case, the court could be absolutely right because it could be one of the exceptions.  When we look at the pattern it is easy to see the courts are doing something wrong. The requirement to provide a written explanation would focus judges on what the basis for their decision is and permit appellate review.  This would be particularly helpful in the context of research about recognizing domestic violence where courts often discount allegations for reasons that are not probative and miss important evidence because they don’t understand the significance.  I believe just having this requirement would reduce the frequency of court mistakes on this issue.

15. Keep Records of Judges Findings Against Abuse Allegations:  As discussed above a court could correctly rule against an allegation of domestic violence, but if the court is making such findings in more than a small percentage of the cases, it is likely the court is doing something wrong. Administrative judges could use this information to provide the judge with further training or other assistance or assign the judge to cases that don’t involve domestic violence.  The public could learn which judges understand domestic violence and take it seriously.  This is another reform that would probably cause judges to improve their handling of domestic violence cases.

16. Accountability for Judges:  Many people who see the frequency of judges sending children to live with abusers in cases where the evidence overwhelmingly supports custody to the protective mother have complained about a lack of accountability for judges. Courts  sometimes impose gag orders supposedly to protect the children but often to silence criticism of the judge. The media rarely cover domestic violence custody cases unless they result in a murder. Even when a judge has to seek re-election, the voters are rarely aware of his or her actions and practices because their decisions are protected by privacy issues.  Agencies created to respond to questions about judicial ethics are usually controlled by other members of the legal system that have an interest in protecting their colleagues and judges they might appear before in the future.  These agencies are often severely underfunded.  In other words virtually all the avenues of obtaining any kind of accountability for judges are effectively blocked.  In fairness judges are human and allowed to make mistakes, even mistakes that destroy lives.  Judges are often working with crowded calendars, inadequate training and unfortunately few of the professionals relied on to help the judge have sufficient training to recognize and respond to domestic violence.  It is particularly disturbing to see judges make a mistake on a domestic violence case and then use the court’s powers to silence the victim and retaliate if she continues to try to protect her children. Protective mothers have faced vindictive contempt motions, gag orders, jail, false criminal prosecution, unnecessary supervised visitation or no visitation and attacks on professionals seeking to help her in retaliation for her continued belief in the father’s abuse or criticism of the judge’s mistakes.  We have found some spectacularly inappropriate and abusive behavior on the part of some judges, but there is no effective system of accountability to protect the victims. Keeping records of court decisions failing to find domestic violence as recommended earlier is one method of accountability.  States must improve the oversight of judges so that commissions responding to complaints have the resources to make an adequate investigation and include enough public members so valid complaints are not ignored.  Improved training particularly regarding gender bias for judges and the professionals they rely on will also help to reduce the ethical problems surrounding the mishandling of domestic violence cases.

17. Child Protective Agencies Should Consult with Domestic Violence Agencies when Domestic Violence is Suspected:  Some communities with the help of grants have developed programs involving a partnership between child protective agencies and domestic violence agencies.  The agencies can provide each other with training that helps both agencies.  Most important, child protective agencies develop a relationship with domestic violence advocates and consult with the advocates who sometimes go with them to the homes in cases where domestic violence issues contribute to the problems in the family.  The domestic violence advocates can help child protective workers recognize domestic violence they otherwise would have missed so that children can be better protected.  This is the kind of best practices approach that should be used by all child protective agencies.

18. Domestic Violence Ombudsman:  The premise of this legislative proposal is that domestic violence includes a body of research and knowledge that is highly specialized.  One of the major causes of mistakes in domestic violence cases is  that judges or professionals they relied on thought they understood domestic violence issues and therefore did not seek the assistance of genuine experts.  Better training will help judges and others, but it will not make them experts. Accordingly, a domestic violence ombudsman working in each court could help prevent the avoidable tragedies we see too often.  The ombudsman could obtain research articles and books so the judge and other professionals would have access to this information.  They could help arrange needed trainings and make sure the trainers are genuine experts.  The ombudsman could participate in settlement and other conferences to make sure the discussions are based on an understanding of the domestic violence issues. This would discourage conferences that pressure protective mothers to agree to unsafe arrangements and instead focus attention on the need for abusers to change their behavior.  The ombudsman could help courts come up with safe arrangements (i.e. developing visitation exchanges that avoid contact between the parents).  If a court engaged in outdated or harmful practices, the ombudsman could bring this to the court’s attention (with copies to the parties so there are no ex parte issues).  The ombudsman can also be the liaison with various providers so that courts could know what services are available in domestic violence cases and which providers act in a safe and ethical manner. They could also accept complaints from domestic violence victims or others and share this information when it is necessary to avoid tragic consequences.    The exact functions may vary based on ethical issues and openness of the judges, but just having this position will focus attention on the need to take domestic violence seriously and that the present practices have resulted in needless tragedies.  Hopefully when the court system is more fully reformed and the courts have a better appreciation of the need for the resources domestic violence agencies provide, the need for an ombudsman will be reduced.

19. Judges cannot Decide Motion about their own Recusal:  Many of the worst cases involve judges engaged in gender bias or angry that a litigant would challenge the court’s rulings.  While some states require a different judge to decide a motion for recusal, many states permit a judge to decide a motion about the propriety of their own actions.  This obviously presents a conflict of interest and can create the appearance of impropriety.  Accordingly better practice would require that a different judge review a motion for recusal.


20. No Immunity for Evaluators and Gals:  Many of the worst domestic violence cases we have seen have involved evaluators and GALs (law guardians) who have become advocates for the abuser and lost all sense of objectivity or the best interests of the children.  Although professional ethics require psychologists who are not domestic violence experts (which covers most psychologists) to consult with someone with such expertise, this is rarely done.  Frequently these professionals substitute their personal beliefs and biases for up-to-date research or the best interests of the children.  There is often a financial incentive to take this approach as abusers generally have more money available because they control the family’s finances.  In many cases sexist children’s attorneys recommend sexist evaluators to obtain the recommendations they want.  When the children are inevitably harmed, these professionals have immunity to shield them from lawsuits for the harm they caused.  In many communities it is just one or two evaluators that get most of the custody work and inflict most of the harm.  If victims had the ability to sue and collect damages it would discourage such improper behavior and make other evaluators and lawyers aware of the importance of being familiar with up-to-date research and applying such research to their cases.


21. Create a Method to Correct Past Mistakes:  The research has now demonstrated beyond question that the courts are making serious mistakes in a large majority of contested domestic violence custody cases.  There has probably never been another time in our nation’s history when the court system could not be trusted to at least get most of any group of cases right.  Many court officials have sought to justify or minimize the mistakes, but the consequences are too serious to leave the cases wrongly decided and risk our children’s future.  Res judicata is an important legal principle that is necessary in order to avoid relitigating cases over and over.  Custody cases are unusual in that custody and visitation can always be reconsidered based upon a change of circumstances.  One of the problems we have seen is that once a court denies the mother’s allegations of domestic violence, courts often refuse to consider new evidence in the context of past evidence.  Accordingly courts often refuse to consider new evidence that provides proof the past decisions were a mistake.  This approach is clearly wrong because context is so important in domestic violence cases.  Courts should be looking for a pattern of coercive and abusive behavior in order to recognize domestic violence.  Accordingly evidence of additional acts of abuse or interference with the mother’s relationship with her children after obtaining custody would be important to consider in the context of past evidence of domestic violence.  At minimum, legislatures should require courts to re-examine domestic violence findings in light of new information.  Even better would be to set up an administrative agency or specialized court to review cases in which domestic violence and/or child abuse allegations were denied and custody was awarded to the alleged abuser.  These cases should be reviewed because most of them were decided in ways that place children in jeopardy and reduce their chances of reaching their potential. This is because most of these cases are decided based on discredited practices and without the use of up-to-date research.  The court or administrative agency should be staffed with domestic violence experts who can recognize mistakes by the trial court.  At the very least they should be able to order a new trial if there is good reason to believe the court made serious errors.  I appreciate courts will not like the extra work and lack of finality, but I believe by creating this method of correcting the past mistakes, the legislature will send an important message that courts must stop using practices that place children in jeopardy. Hopefully once the reforms take place and court professionals have better training, these reviews will no longer be necessary.

Website Builder