The crisis in the Family Courts

Every year 58,000 children are sent for custody or unprotected visitation with dangerous abusers. In the last ten years, over 750 of these children were murdered, mostly by abusive fathers the courts believed were safe. New research confirms the courts are getting 55% of custody cases wrong when mothers report domestic violence; 79% wrong when mothers report child sexual abuse and 62% wrong for all abuse cases. Few court professionals are aware of these shocking statistics so there is no effort to reform the broken system.

Most custody cases are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. These are domestic violence cases in which the most dangerous abusers seek to manipulate courts to regain what they believe is their right to control their victims. Overwhelmingly, the abusers are successful. These are the cases where mothers and children are murdered and more often children’s lives are ruined by court-mandated exposure to more abuse. These cases are often the last chance to save children, but courts continue to use the same “high conflict” approach they use for safe parents.

The Saunders Study found there is now a substantial body of specialized domestic violence knowledge that could help courts recognize and respond to abuse cases. The courts rarely bother to consider this research. Even the most gut-wrenching child murders facilitated by the courts’ flawed practices do not lead to reforms. Repeatedly the court system responds to these preventable tragedies by defensively rushing to defend the judge.  The mistakes that led to the tragedy are ignored or perhaps not even understood. The Bartlow Study found judges in communities that suffered a child murder dismissed the tragedy as an exception.

Flawed Practices Beget Flawed Outcomes

The ACE (adverse childhood experiences) Studies are peer-reviewed, medical research from the Centers for Disease Control and Prevention. ACE says that children exposed to domestic violence and child abuse will live shorter lives and suffer a lifetime of health and social problems. Most of the harm comes not from any immediate physical injuries but from living with the fear and stress abusers cause. ACE establishes that one-quarter of the children in the United States will be sexually abused by the time they reach 18.  The methodology eliminated any possibility of false reports which is the myth that helps rapists and abusers get away with their heinous crimes.

ACE goes to the essence of the best interests of a child. Without ACE, courts inevitably minimize reports of domestic violence and child abuse. Courts routinely treat a child’s fear as an obstacle to the co-parenting arrangements they demand instead of proof the child must be protected from the abuser. The horrific frequency of child sexual abuse confirms the courts routinely disbelieve true reports.

The Saunders Study is peer-reviewed research from the National Institute of Justice in the US Justice Department. Saunders demonstrates that most judges, lawyers, and especially evaluators that the courts rely on do not have the necessary domestic violence knowledge. Saunders found court professionals need very specific information that includes screening for DV, risk assessment, post-separation violence, and the impact of DV on children. Professionals without this knowledge tend to focus on the myth that mothers frequently make false reports and unscientific alienation theories. This misinformation leads to recommendations and decisions that harm children.

Without Saunders, courts routinely rely on the wrong professionals for abuse cases and so disbelieve true reports of abuse. The National Council of Juvenile and Family Court Judges seeks to train judges about ACE and Saunders, but this represents a small minority of judges.

The Meier Study found that unscientific alienation theories that are based on no research but only Richard Gardner’s belief that sex between adults and children can be acceptable has more influence on the courts than ACE and Saunders. It doesn’t seem to matter that the unscientific alienation theories were rejected by the American Psychiatric Association for the DSM-V because there is no scientific support. As a result, courts are more concerned about bogus alienation claims than domestic violence and child abuse which destroys children’s lives.

Family Courts developed their response to domestic violence at a time when no research was available. At the time popular assumptions suggested DV was caused by mental illness and substance abuse. This led courts to rely on mental health professionals who are experts in psychology and mental illness but not DV or child abuse. Decades later, the judges and lawyers have spent their entire careers hearing misinformation that is now deeply ingrained. Expert witnesses are allowed to give their opinions and these are usually subjective opinions. This allows professionals to say whatever they believe or what supports their clients. Objective opinions based on credible research would be far more helpful.

ACE and Saunders prove that many practices courts have relied on for decades are mistaken and lead to dangerous outcomes. These flawed practices include: primary focus on physical abuse; assumption older abuse doesn’t matter; approaches that require victims to “get over it”; “high conflict” approaches; use of co-parenting in abuse cases; reliance on professionals who are not trauma-informed; minimizing the harm of DV and child abuse; failure to recognize the significance of fear; limiting experts to mental health professionals; relying on professionals unqualified for DV cases; continuing to impose harmful outcome cases; failure to use risk assessment; assuming the end of the relationship ends the risk; failure to focus on the impact of DV on children; and assuming children benefit from having abusers in their lives.

The Worst of All Worlds

Many protective mothers have walked into family courts seeking help. They believed all they had to do was tell the judge what the abusive father was doing and their children would be protected. Instead, they were retraumatized by courts that fail to use the specialized body of knowledge that would help courts understand the case. Domestic violence is about control, including financial control, so a cottage industry of lawyers and mental health professionals has developed to help wealthy abusers. They have had an enormous and pernicious influence on the courts. Protective mothers routinely find themselves under attack and with limited resources to protect their children.

The legal establishment does not believe there is a problem. The professionals are making good incomes and the court decisions silence the victims. The flawed practices are not neutral in the sense that they apply to both parents equally. The ignorance and mistakes all tilt courts to favor abusive fathers and toward risking children. The idea of erring on the side of protecting children seems foreign to the courts. The highly credible research and the unspeakable pain of children’s premature deaths have not caused court leaders to take a fresh look at outdated practices.

Experts in domestic violence and child abuse will continue to tell courts about the research and the enormous harm they are causing. Unfortunately, it does not look like they are open to creating the necessary reforms. This means the legislatures must step in to require reforms the courts should have adopted long ago. It may be that the continuing murders of children will convince legislators to mandate the needed reforms.  But that is such a high price to pay for the courts’ failure.