Life and death in the Family Courts

Tilted to favor abusers and harm children       

For decades, protective mothers and domestic violence experts have believed family courts mishandled custody cases involving domestic violence or child abuse. Abusive fathers and the cottage industry that helps them seemed always to be able to manipulate the courts.  And the harm to children was unbearable. The scientific research is now available, and the mothers were right. Outdated and discredited practices used in the family courts tilt cases in favor of abusers and risking children.

Family courts treat contested custody cases as “high conflict” by assuming both parents are acting out in ways that hurt the children. However, the research tells us that most contested custody cases are domestic violence involving the most dangerous abusers. This does not mean they committed the most serious assaults, but they believe she has no right to leave, so they are entitled to use whatever tactics are necessary to regain what they believe is their right to control their partner. These are the most dangerous cases.

The ACE (Adverse Childhood Experiences) Studies are medical research from the Centers for Disease Control and Prevention, so highly credible. ACE says that children exposed to domestic violence or child abuse will live shorter lives and suffer a lifetime of health and social problems. Most of the harm is caused not from the immediate physical injuries courts usually focus on, but from the fear and stress abusers cause.

The Saunders Study comes from the National Institute of Justice in the US Justice Department, so again highly credible scientific research. Saunders found that judges, lawyers, and evaluators need more than the generalized information they receive about domestic violence (DV). They need specific knowledge that includes screening for DV, risk assessment, post-separation violence, and the impact of DV on children. Without this information, professionals tend to focus on unscientific alienation theories and the myth that mothers frequently make false reports of abuse. These mistaken assumptions lead to recommendations and decisions that harm children. Most court professionals do not have the domestic violence knowledge they need.

Although the National Council of Juvenile and Family Court Judges seeks to train judges about ACE and Saunders, most courts fail to consider this vital research when making decisions in abuse cases. Without ACE, courts routinely minimize the harm from domestic violence and child abuse, and without Saunders, they are likely to disbelieve true reports of abuse.

Forty states and many judicial districts have created court-sponsored gender bias committees. They have done their work over many decades using various methods, and they also have found widespread gender bias, particularly against women litigants. Typical examples are giving women less credibility, holding women to a higher standard of proof, and blaming mothers for their abusers’ actions.

As Saunders suggests, the myth that mothers make frequent false reports is a significant factor in the courts’ dangerous tilt. The Bala Study, cited in Saunders, found that mothers involved in contested custody cases make deliberate false reports less than 2% of the time. Bala also found that fathers involved in contested custody are 16 times more likely to make willful false allegations of abuse. This might sound mistaken until we remember that most fathers in contested custody are the most dangerous abusers. Based on the gender bias research, the courts give higher credibility to the gender far more likely to make false reports.

In the typical contested case, the father wanted or demanded the mother provide most child care during the relationship. After the mother decided to leave her abuser and report his abuse, the father demands custody and claims the mother is unfit. In any other litigation type, the court would understand the father’s long preference for the mother’s child care as a substantial admission; she is a fit parent. It is not impossible in an individual case that she could suddenly become unfit after leaving her abuser, but this is extremely rare in the real world.  

Based on Bala, mothers’ reports of abuse would be false less than 2% of the time. It might be even less frequent because we are dealing with fit parents. It is conceivable there are cases without sufficient proof or some unusual consequence. However, if the courts are acting in children’s best interests, one would expect protective mothers to prevail at least 95% of the time.

The Harm to Children

When courts fail to consider scientific research, rely on the wrong professionals, fail to prevent gender bias, and continue using outdated practices, courts will inevitably make bad decisions. In abuse cases, these mistakes are often dangerous. The same errors that sometimes result in a child murder more often let the child live but force them to suffer more abuse, with horrific consequences for the rest of their lives.

I am offering two cases to illustrate how the courts fail to protect children and the enormous harm this causes. Both cases are typical in that the mother was the primary attachment figure.  She provided most of the child care during the relationship, and the father only sought custody when the mother sought to end the relationship. There was clear evidence of domestic violence and child abuse in both cases, but the court minimized the father’s abuse.

Hawaii is known as an island paradise, but not for children forced to live with their abusers. Hawaii was the first state to introduce the Safe Child Act, which would make the courts safe for children. Andrew Willis and I met with the chief judge because of his opposition to the needed legislation. The judge had no objections to the provisions but said it was not needed because the courts already do everything right.

While we were in Hawaii for the trip, another judge switched custody to an abusive father who had caused the girl’s brother’s death and caused her to lose her spleen.  The danger came from the father’s failure to ensure their sickle cell anemia was treated.  The child had been scheduled for medical treatment that day, but the father instead took her to the mainland while child protective agencies desperately searched for the child. Not long thereafter, the courts gave another abusive father the access he needed to kill his son.

In the case where I served as an expert, the abusive father quit his job when the parties separated and deliberately took a lower-paying job. He then waged an aggressive litigation strategy and manipulated the court to force the protective mother to pay much of his legal fees. The judge failed to recognize that economic abuse is an integral part of domestic violence and that his deliberate reduction in income helped expose his motives. The court’s mistake made the litigation far more acrimonious and lengthier.

The father’s attorney managed to manipulate the court to appoint an evaluator who was probably part of the cottage industry and undoubtedly biased and unqualified for a domestic violence case. Most domestic violence is committed in private for obvious reasons, but many court professionals use statements from family and friends who never see the family in private settings to discredit reports of domestic violence. The evaluator was totally unfamiliar with important research like ACE and Saunders and instead discredited DV reports based on non-probative information.

Instead, the evaluator made one of the mistakes discussed by Saunders and focused on unscientific alienation theories. This is a mistake made by professionals who do not know how to screen for DV. There was a long pattern of coercive and controlling behavior by the father. The abuser took the position that he was never wrong and blamed everything on the mother.

The research demonstrates that the arrangement that works best for children in cases like this, where the father abused the mother and children, is custody for the safe parent and supervised visits for the abuser, at least until he changes his behavior. Court professionals consistently hear children need both parents equally. In reality, children need their primary attachment figure more than the other parent and the safe parent more than the abuser. Nevertheless, courts routinely try to keep abusive fathers in children’s lives without understanding their consequences.

The court insisted on a shared parenting arrangement and pressured the mother to agree to a harmful settlement. Her danger; the court could punish her for trying to protect her children. The oldest child was willing to visit her father, but the two youngest and especially the middle child was afraid of their father. The child most impacted by the father’s abuse often refused to go for visits, and the father tried to treat it as alienation.

The father could have worked with the therapist to improve his relationship but was only interested in having things his way. The father continued to file complaints against the mother, and eventually, the court ordered the middle child to be physically taken for visitation by his father.

This is another example of the problems with courts trying to resolve abuse cases without the benefit of the ACE Study. Courts have the power to force visitation but cannot remove fear and stress. This pushes children into survival mode where the stress is pushed deeper inside the child and will inevitably come out in much more harmful ways. The court retraumatized all of the children. They are all in much greater jeopardy now and in the future, because the court failed to take advantage of scientific research to understand the risks.

The second case took place in Pennsylvania with a judge who had little experience in family law and was clueless about domestic violence. He stated that he did not want to handle these cases and had no business making decisions in trials that are a matter of life and death.

The abusive father had a long history of domestic violence and other violence. One of his crimes involved biting off part of a man’s ear. The daughter had seen him assault another relative and was afraid to visit with him. The abuser had also physically assaulted the mother.  There was no dispute. He was dangerous.

The judge was taught to view these cases through a “high conflict” lens. This approach works poorly in domestic violence cases because it creates a false equivalency between an abusive father and a protective mother. The mother is blamed for trying to protect a child in response to the father’s scary and intimidating behavior. The judge said that just because the father assaulted the mother doesn’t mean he would hurt the child. This is a fundamental mistake common in family courts. ACE tells us that most of the harm from abuse is caused by living with the fear and stress an abuser caused. The consequences can include reduced life expectancy and a lifetime of health and social problems. It is hard to imagine anything that goes more to the heart of the best interests of children. The judge said Kayden would just have to get over her fear.

The problem with the father’s relationship with Kayden and the reason for the litigation was the father’s abuse and violence. Nevertheless, the judge made the common mistake of blaming both parents equally. Accordingly, the judge insisted on giving the father shared parenting and unprotected visitation despite the risks.

The father used the access provided by the court to kill Kayden and then himself.  On Kayden’s lifeless body, the father left a note saying he was glad the mother would suffer because of the murder. With the note, the father confirmed the research that the worst abusers seek custody to regain control and punish the mother for leaving. What message and what evidence could possibly be clearer? Nevertheless, even after the murder, the judge continued to blame both parents equally based on the high conflict approach. The court system and legal community immediately came to the defense of this judge. Without bothering to investigate if reforms could be created to better protect children, the court was more concerned with denying responsibility than protecting other children. Their response demonstrated the necessity of intervention by the legislature.

Now We Know for Sure

Good scientific research like ACE and Saunders proves that many standard family court practices are mistaken. They are not neutral in the sense that they apply equally to mothers and fathers or victims and abusers. All of these harmful approaches tilt courts in favor of abusers and against protecting children. Advocates for protective mothers were anxiously awaiting the Meier Study because it could confirm the problem family courts have when trying to respond to custody cases involving possible domestic violence or child abuse.

The Meier Study reviewed over 4,000 published cases that involved reports of domestic violence, child abuse, or alienation. Among other information, the research would tell us how often reports of abuse or alienation were believed by the court and how often alleged abusers and alleged victims prevailed. Knowing the outcome percentages in combination with other research provides an important advance in our knowledge of the courts’ response to abuse cases. A court could correctly rule in favor of alleged abusers anywhere from 0 to 100% of the time, depending on the evidence and circumstances in the cases.

Family Courts get 55% of mothers’ domestic violence reports wrong; 79% of their child sexual abuse reports wrong, and 62% of all abuse reports by mothers wrong.

The research discussed at the start of this article provides the context to compare what are most likely the best outcomes for children with the actual outcomes. The Meier Study was the first to provide empirical proof that courts across the country and over a 10-year period, tilt strongly in favor of alleged abusers.

When I compare the percentages the Meier Study found the courts are believing abuse reports by protective mothers with the percentages that would occur if the courts were using best practices based on other research, the results are startling. When mothers report domestic violence, they are believed only 43% of the time, 19% when they report child sexual abuse and 36% for all abuse reports. This means Family Courts get 55% of mothers’ domestic violence reports wrong; 79% of their child sexual abuse reports wrong, and 62% of all abuse reports by mothers wrong. The tilt results in protective mothers losing custody 22% of the time when they report DV, 56% of the time for reports of child sexual abuse, and 28% for reporting any abuse. This means mothers and children are punished for reports of abuse courts failed to believe because they never consider available scientific research.

In fairness, these are my estimates based on the frequency of deliberate false reports. It is reasonable that the numbers might be slightly different based on the burden of proof; superior financial resources of most abusive fathers, and the possibility that other significant factors, including mothers’ deficits, might change the outcome. Nevertheless, even if the exact percentage of harmful decisions is slightly less, it would not change the fundamental finding that the courts are getting most abuse cases wrong and that the mistakes are titled in ways that harm and endanger children.

Even worse, in cases in which a parent’s abusive behavior exposed children to multiple ACEs, the first priority should always be the child’s safety and ability to heal. This would require sole custody and decision-making with the safe parent and supervised visitation for the abuser. Saunders found courts are not requiring supervision of abusers as often as needed. I estimate that courts make the decision truly in the child’s best interest less than 5% of the time, which means they are mishandling 95% of abuse cases.

And still, even in the face of the most unbearable and preventable tragedies, the courts usually act defensively and have little interest in considering reforms or integrating highly credible scientific research that would make children safer and healthier. This is demonstrated by the courts’ failure to create reforms in response to child murders or based on the benefit of new scientific research.