CRISIS IN THE CUSTODY COURT SYSTEM

STATE LEGISLATIVE REFORM PROPOSALS

by Barry Goldstein
When domestic violence became a public issue in the mid to late 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, ew reorms have occurred to ta!e advantage o up"to"date research. #ecent
boo!s and articles based on the most up"to"date research have established that
common mista!es by the custody court system have resulted in thousands o children
being sent to live with abusers and a large ma$ority o contested domestic violence
cases being decided in a manner that places children in unsae and unhealthy homes
and oten intereres with the child%s ability to reach their potential.
A new boo! that was be published in April o &010 brings the latest research and
inormation together in one place and establishes the harm being done to our children
by the bro!en custody court system. 'he boo! is ()*+,'-. /-)0+1.+, AB2,+ and
.3-0( .2,')(4, co"edited by (r. *aureen '. 3annah and Barry Goldstein. -t uses a
multi"disciplinary approach and includes chapters by over &5 o the leading e6perts in
the 2, and .anada including $udges, lawyers, psychiatrists, psychologists, sociologists,
$ournalists and domestic violence advocates. Although these e6perts come rom
dierent disciplines and use varied approaches there is remar!able unanimity that the
system is bro!en. #ita ,mith, e6ecutive director o the 1ational .oalition Against
(omestic /iolence 71.A(/8 says in her Aterward that once this boo! is published the
common practices used by proessionals in the custody court system will be properly
viewed as malpractice. Accordingly it is time or the custody court system to be
reormed
*any domestic violence advocates and legislators have as!ed or suggestions or
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 ormer partners.
Below are many suggestions that legislatures can adopt to improve the custody courts
in their states. 0egislatures can adopt all or some o these recommendations as they
determine will wor! best in their state.
1. Any legislation shol! in"l!e st#ong $in!ings a%ot the &#esent &#o%le's
that le! to the #e$o#'s( 'his may be the most important part o the reorms.
Although it is the policy o every state and court to end domestic violence, the
courts have largely ignored this purpose in an attempt to be 9air: to all parties.
'he legislation should reer to common practices by the courts that research has
shown have ailed. 'his will permit attorneys or protective mothers to cite these
indings when courts see! to use outdated or dangerous practices. When
legislatures eliminated the 9tender years: doctrine that avored mothers, they
provided that each parent should be treated e;ually regardless o gender. 'his
was a air reorm, but courts have misinterpreted it to mean that the parties have
e;ual rights to custody despite dierences in parenting abilities and other actors
the eect children. #esearch demonstrates that i children lose their primary
attachment igure 7the parent who perormed most o the child care during the
irst couple o years o a child%s lie8, the child is more li!ely to suer depression,
low sel"esteem and attempt suicide. - a parent has engaged in domestic
violence, the child is substantially more li!ely to later engage in a wide range o
dysunctional behavior. Based on this research it is clear that children should be
in the custody o their primary parent and never have custody with an abusive
parent. Why would any court consider ta!ing children rom the primary parent
unless she was a substance abuser, engaging in criminal activity, abusing the
children or some e;ually serious behavior< 'oo oten courts have believed that
to be air to both parents they must treat them e;ually regardless o the disparity
in parenting ability. )ten athers have been given custody based on negative
remar!s by the mother, superior economic circumstances or other reasons that
have not been shown to aect a child%s uture li!e the issues mentioned earlier.
-n reality mothers are not treated e;ually as gender bias research, including
studies done by the courts demonstrate widespread bias against mothers. -n
practice mothers are given less credibility than athers, but the research
demonstrates mothers ma!e deliberately alse allegations only one"two percent
o the time and athers ma!e deliberately alse allegations 1= times more
re;uently. 'oo oten court proessionals are manipulated by abusers and
discredit mothers who are angry or emotional as a natural reaction to the ather%s
abuse. 'he research inds $udges have the urther handicap o inade;uately
trained evaluators and other proessionals who do not understand domestic
violence issues, but create a alse sense that there is scientiic basis or their
biased recommendations. +valuators oten rely on psychological tests that were
not created or the population in a custody dispute and provide little or nothing
relevant to custody issues. >udges are rarely trained to see through invalid
analysis by 9neutral proessionals.: 0egislatures should ma!e it clear that their
intent is or courts to use veriiable up"to"date research and that the present
practices have not done so.
&. T#aining o$ )!ges* "hil!#en+s atto#neys an! othe# &#o$essionals #elie! on
%y the "o#t 'st in"l!e the s&e"i$i" to&i"s o$ ,Re"ogni-ing Do'esti"
Violen"e. ,Gen!e# /ias. an! ,The E$$e"ts o$ Do'esti" Violen"e on
Chil!#en(. 'he truly rightening thing about the courts% mishandling o domestic
violence custody cases is not that they get such a high percentage o cases
wrong, but that they oten reach a decision that is the opposite o what up"to"date
research has ound best provides or the saety o children and helps them reach
their potential. -n the typical case the mother has provided most o the child care
and has made allegations regarding domestic violence and sometimes child
abuse. 'he ather has countered with claims o alienation. 'he limited training
$udges and other court proessionals have had does not help them !now what to
loo! or to determine domestic violence allegations, but creates a alse sense o
conidence so they are oten not open to e6pertise based on up"to"date research.
*any courts use inormation to discredit claims o domestic violence that in act
has no probative value and then ails to !now what evidence is important to
conirm domestic violence allegations. -n his chapter or the boo! ()*+,'-.
/-)0+1.+, AB2,+ and .3-0( .2,')(4, >udge *i!e Brigner describes his
training o other $udges. 'he $udges oten as! him what to do about women who
are lying. When he as!s what they mean they say that she went bac! to her
abuser, withdrew petitions or protective orders, ailed to press criminal charges
and didn%t go to the hospital. 'here are many good reasons why women would
act this way particularly when she is still living with her abuser and none o this
supports the belie she is lying. 1evertheless, this widespread view o $udges
demonstrates how courts invalidate many honest claims o domestic violence
because they are not amiliar with up"to"date research. -n the same boo!, >udge
'homas 3ornsby wrote that in his 19
th
year on the bench he inally learned the
proper way to handle certain re;uests or orders o protection. -t says something
positive about >udge 3ornsby that he has the openness and integrity to
ac!nowledge that he had more to learn because many $udges have reused to
hear genuine domestic violence e6perts on the grounds that the $udge had many
years o e6perience and !new everything. -nevitably the $udge then sent the
children to live with an abuser. .ourts oten loo! only to conclusive evidence o
physical abuse and ail to loo! or patterns o controlling behavior. Actions li!e
monitoring his wie%s odometer, !eeping her away rom riends and amily,
controlling inances or insisting she do the 9woman%s wor!: are not illegal, but
they demonstrate a belie system and a practice o coercive control that educated
proessionals can use to recogni?e a pattern o domestic violence. .ourts oten
punish the mother or believing the ather presents a danger or trying to protect
her children. 'his results in e6treme and punitive actions against the protective
mother. 'he problem is e6acerbated by widespread gender bias in which a
mother%s greater parenting s!ills are e6pected rather than rewarded and an
assumption the ather should be avored because the mother%s relationship with
the children is stronger. 'he problem with gender bias is that good people can
engage in this bias without reali?ing they are doing so because in reality they are
$ust relying on common stereotypes. +very state changed its laws to at least
re;uire consideration o domestic violence evidence in custody and visitation
cases in response to conclusive research o the harm o domestic violence to
children. 1evertheless courts rarely use this and updated research to
understand the importance o protecting children rom such abuse. .ourts oten
create tremendous pressure and sanctions to orce mothers to stop believing the
ather is abusive, but rarely use their authority to pressure the ather to stop his
abuse. 2n;ualiied proessionals oten assume that once the parties separate the
danger o domestic violence is ended, but in reality men commit domestic
violence not because o anything the woman did, but because he eels entitled to
use abusive tactics to get his way. Accordingly children living with an abuser are
li!ely to witness more acts o domestic violence involving the ather%s uture
partners. Although there is no research that negative statements by the mother
create long"term harm to children, courts routinely ma!e alleged alienation by
mothers their ma$or ocus. -n reality all studies demonstrate that most prisoners
grew up in homes with domestic violence and@or child abuse. -n other words the
present practices in the custody courts will inevitably create tremendous harm to
society. Accordingly it is critical that court proessionals have not $ust limited
general domestic violence training, but e6tensive and very speciic training in the
topics they need to respond intelligently to domestic violence custody cases.
A. Do'esti" Violen"e T#aining Shol! %e O0e#seen %y Do'esti" Violen"e
O#gani-ationsB 'here is only one proession that wor!s ull time on domestic
violence issues and they wor! or domestic violence organi?ations. 'hey
typically have hundreds or thousands o hours o training in addition to wor!ing
ull time on these issues. .ourts oten rely on 9e6perts: with one or two hours o
domestic violence training and then send children to live with abusers. 'he
problem is that domestic violence advocates are treated as i they are partisans
because they always oppose domestic violence. 1o court or government body
would dream o responding to arson without relying on the e6pertise o the
ireighting community even though ireighters are always against arson. +very
state and every court has a settled policy against domestic violence. (omestic
violence advocates understand how to recogni?e domestic violence and what
practices wor! best to prevent it. 'hey are the most important resource in their
communities regarding domestic violence. *any courts and institutions have
mista!enly treated e6treme groups that see! to eliminate child support, scale
bac! or eliminate domestic violence laws and in some cases encourage se6
between children and adults as an e;ual and counter group to domestic violence
agencies. 'hese groups have a right under the irst amendment to spread their
manipulation and hatred, but domestic violence is settled policy. We no longer
need to hear both sides o disputes about the 3olocaust, lat earth believers,
man"child se6 supporters or those see!ing to $ustiy domestic violence.
)bviously there are two sides to an individual case and the alleged abuser has
every right to challenge the accusations. A court must give him air
consideration, but does not have to ta!e seriously claims that he has a right to
abuse his partner 7or does in response to some action he opposed8. Giving
authority over training to the e6perts in the community will ma!e sure the
proessionals get the most up"to"date research about domestic violence and
hopeully help the courts start thin!ing o domestic violence advocates as
important resources rather than partisans. ,tates will have to provide additional
resources to domestic violence agencies to provide this important service, but
they already spend money on proessionals without the necessary e6pertise.
C. C#eate a Meaning$l P#es'&tion that A%se#s Shol! Not Ha0e Csto!y
o$ Chil!#enB #esearch by 0undy Bancrot, Deter >ae and many others has
established that parents who engage in domestic violence are so harmul that
children are saer and more li!ely to reach their potential when the sae parent
has custody and the abusive parent, at least initially is limited to supervised
visitation. 'he 1ational .ouncil o >uvenile and Eamily .ourt >udges ma!es a
similar recommendation. 2nortunately even states that have created a
rebuttable presumption limit the beneit o such re;uirements by applying it only
to cases with a criminal conviction or other higher standards o proo. ,uch laws
can be even worse than no laws because courts sometimes treat the ailure to
meet these higher standards o proo as i it means the alleged abuser is sae.
'he problem is compounded by gender bias that oten causes courts to give less
credibility to women than their abusers and demands a higher standard o proo
rom women. 'he standard o proo or custody is generally some orm o
preponderance o the evidence, in other words probability. - a parent has
probably abused the other parent, it is probably in the best interests o the
children or the sae parent to have custody. 'his is particularly important in the
conte6t o the re;uent problem o courts not !nowing what to loo! or regarding
evidence o domestic violence. Accordingly states should create a rebuttable
presumption that i one parent has engaged in a pattern o coercion and
domestic violence tactics designed to control the other party or to ma!e the ma$or
decisions in the relationship, the abusive parent should not be considered or
custody i the other parent is sae. 'he abusive parent should initially be limited
to supervised visitation. .laire .roo!s, Deter >ae and 1icholas Bala set orth
the actors that should be considered in restoring unsupervised visitation in their
chapter regarding the eects o domestic violence on children in the orthcoming
boo! ()*+,'-. /-)0+1.+, AB2,+ and .3-0( .2,')(4, edited by *o
'herese 3annah and Barry Goldstein.
5. Re1i#e an Initial S"#eening $o# Do'esti" Violen"e at the Sta#t o$ all
Csto!y Cases2 -n recent years, legislatures and court systems have adopted
many policies to promote cooperation between parents involved in custody
cases. 'hese include education programs, communication s!ills, parenting
coordinators, mediators and parenting plans. 'hese may be appropriate or
other cases, but are counterproductive and dangerous in domestic violence
cases. ,ome laws ma!e an e6ception or domestic violence cases, but this is
not eective. .ourts oten thin! it is not a domestic violence case until the abuse
is proven and pressure victims to cooperate in these programs. ,imilarly, when
attorneys or protective mothers re;uest that any evaluator who is appointed
should have domestic violence e6pertise, they are oten told we don%t !now i it is
a domestic violence case until evidence is presented. ) course an evaluator
without substantial domestic violence training doesn%t !now what to loo! or and
oten misses the evidence o domestic violence. An initial screening would not
only lead to better results, but would save the courts and the parties substantial
time and resources. *any o the e6penses such as or evaluators and GA0s
would be unnecessary and many o the issues that are raised would not matter i
domestic violence is proven. -n 1ew 4or! ,tate ault grounds are re;uired or
divorce and courts sometimes have a biurcated hearing on grounds or divorce.
)ne o the common grounds is cruel and inhuman treatment. 'his is a actual
hearing on limited issues and can usually be completed in a couple o hours or
less. - custody courts ordered a hearing about domestic violence at the start o
the case, cases that oten ta!e many years could be resolved in a couple o
hours. *others rarely ma!e alse allegations o domestic violence 7despite the
myths and decisions that ind otherwise8 so this hearing would ;uic!ly resolve
what are generally the worst o the worst cases. 'he legislature must be clear
that i the court does not ind domestic violence it should stay open to new
evidence that might later conirm the domestic violence allegations. - the abuser
committed domestic violence and the other parent is sae, there would be no
need or the case to continue as the sae parent would receive custody and the
abuser would initially receive supervised visits. )ther reorms may cost money,
but this change would save substantial money and court time. Eurthermore,
children and the sae parent they depend upon would be saved the trauma and
e6pense o protracted litigation.
=. No Mtal O#!e#s o$ P#ote"tion2 *ale supremacist groups developed a tactic
o see!ing mutual orders o protection as a way to nulliy their victims% restraining
orders. >udges and battered women oten believe there is no harm in giving the
abuser an order o protection since she has no intention o violating the terms.
'he problem comes when he assaults her and she calls the police. 3e denies
his assault and instead claims she assaulted him. 'he police then give her a
choice o arresting both parties or neither. Drotective orders or abusers are
particularly dangerous because it is a common tactic or abusers to ma!e alse
complaints against their victims and we have seen re;uent prosecution o
emale victims because the abuser made the irst complaint and the prosecutor
does not want to admit their initial decision was wrong. When both parties see!
protective orders, the court should loo! or the primary aggressor and provide
protection to the party who ears and has reason to ear the other party.
7. Re1i#e Consi!e#ation o$ the P#&ose o$ a P#ote"ti0e O#!e#2 .ourts oten
limit their in;uiry to whether there is an allegation or proo o some criminal act.
'his ma!es it easier or manipulative abusers to see! protective orders to
prevent their victims rom obtaining a restraining order or nulliying an e6isting
order. .ourts should be re;uired to loo! at the purpose o the order to protect
the saety o the victim. - the person see!ing the order has no reason to ear
their partner no protective order should be awarded. 'his will prevent a slap in
sel"deense or a alse accusation to be used by abusers to help them maintain
control over their victims. When abusers obtain their own protective orders they
oten tell their victims that this proves the police and courts won%t protect them so
they better stay with him. )ur court system needs to ind ways to stop helping
abusers maintain control over his victims.
F. Pa#ental Alienation Syn!#o'e 3PAS4 an! othe# ns"ienti$i" theo#ies shol!
%e otla5e! $#o' the "o#t syste'2 (r. #ichard Gardner made numerous
public statements supporting the practice o adults having se6 with children. 3e
attac!ed >ews or convincing society to adopt laws opposing incest. -t was with
this bias and belie system that (r. Gardner concocted his Darental Alienation
,yndrome. 2nli!e real science which relies on tests, samples and veriication,
DA, was based on Gardner%s own 7biased8 e6periences. 3is wor! was sel"
published and never peer reviewed as re;uired or genuine scientiic research.
'he basis o DA, is circular reasoning. - a child doesn%t li!e the ather 7DA, is a
se6ist theory that is virtually only used against mothers8, ears the ather or
opposes visitation, the only possible reason must be that the mother alienated
the child rom the ather. Allegations o abuse made by the mother are treated as
proo o alienation and thereore there is no reason to investigate her complaint.
'he children are to be orced to live with the alleged abuser and the mother is at
most given supervised visitation. 'he children are oten orced into what they
aterwards describe as threat therapy where they are told how horrible their
mother is and punished i they e6press anything positive about her. -ronically, all
this is done in an eort to stop alienation. DA, is not recogni?ed by the American
Dsychological Association or any reputable proessional organi?ation and is not
included in the (,* -/ which contains recogni?ed mental health conditions.
,ome psychologists have lost their licenses or supporting DA, in their indings
because they are in practice diagnosing something that does not e6ist. 'he
custody court system is the only entity that permits DA,. As DA, has been
urther discredited, it is oten used by other names li!e 9parental alienation: or
$ust 9alienation.: 4ou can tell DA, has been used by the ailure to investigate or
properly investigate abuse allegations and e6treme outcomes ta!en against
protective mothers. *any children have described the horrendous abuse and
harm they suered because o DA,. 'hey were able to reveal the results o DA,
ater they aged out o the custody order. -t is hard to imagine how something
with so little basis and so much harm has been allowed to ta!e such a hold o the
custody court system. 'he e6tremists that control 9athers% rights: organi?ations
have ought hard to support DA, because it prevents abusers rom being held
accountable or their abuse and instead can be used to maintain control over
ormer partners or punish her or leaving. *any unscrupulous mental health
proessionals and lawyers li!e to use DA, because abusers generally control the
inances and thus have the resources to pay these proessionals to promote this
bogus theory in court. 0ess than ive percent o all custody cases are contested
all the way to trial and oten beyond. 'hese are the worst o the worst cases
which oten cannot be settled because they involve abusive athers using
custody to maintain his control. -t is in this relatively small group o cases that
DA, is so common. #espect or the court system is based upon the assumption
that although they may occasionally ma!e a mista!e, we can rely on the indings
o our courts and treat those indings as accurate. 'his is why DA, and the crisis
in the custody court system is so dangerous. 'he up"to"date research is now
beyond ;uestion that a large ma$ority o these contested custody cases 7almost
all domestic violence cases8 are being wrongly decided. - the public cannot rely
on the courts to ma!e air decisions, this would be a disaster. Already many
mothers have chosen to stay with their abuser and accept his beatings rather
than ris! going to the court system and ris! losing custody. 2nortunately, some
$udges and others in the court system have sought to respond to their mista!es
by silencing protective mothers through gag orders, threats and punitive actions.
-n some cases criminal charges have improperly been brought against protective
mothers and disciplinary complaints made against proessionals trying to help
them. 'his is a particularly dangerous response because it spreads the lac! o
trust in custody outcomes to other parts o the court system. 'hese mista!es
ma!e it critical or the legislature to ma!e sure DA, is no longer used and to
reorm what we now !now are outdated practices used in the custody court
system. 'his is critical to maintain respect or our courts and laws. -t is
particularly strange that conservative politicians who wish to restrict se6ual
activity between unmarried individuals tolerate the use o an unscientiic theory
designed to promote se6 between adults and children.
9. Re&eal La5s o# P#a"ti"es Rega#!ing ,F#ien!ly Pa#ent. an! 6oint Csto!y2
'he idea o a riendly parent provision that would ma!e courts avor the more
cooperative parent seems reasonable on the surace. 'he problem is that it is
applied in a manner that avors abusers and ails to consider the long"term well"
being o children. 'he provision is mostly used against mothers trying to protect
their children rom abusive athers. When a mother see!s to limit contact
between her children and an abusive ather this is treated as being unriendly
and has been used to $ustiy avoring abusers or custody. 1umerous court
sponsored gender bias commissions have complained that mothers are blamed
or the ather%s behavior. -n other words mothers are blamed or their normal
reaction to the ather%s abuse instead o holding the abuser responsible or the
ear and pain he causes. At the same time, truly unriendly behaviors that hurt
children such as e6cessive litigation, non"payment o child support, attempts to
deport the mother, causing a oreclosure or turn"o o utilities or domestic
violence are not treated as signiicant by courts applying 9riendly parent: laws.
-n addition there is no research that a mother%s belie or e6pression that the
ather is harmul has harmul conse;uences to children in the way that e6posing
children to domestic violence or depriving children o normal contact with their
primary attachment igure have been proven harmul. 'hus 9riendly parent: laws
ocus courts% attention on less important issues. >oint custody or shared
parenting seem air and reasonable, but in practice do great harm. An initial
study o $oint custody was made with a very small population and under the best
possible circumstances o the parties being able to cooperate, wanting $oint
custody and living near each other. 'he results were positive and courts loved
the idea because it seemed li!e a good way to compromise a very diicult issue.
0ater studies with larger populations demonstrated that $oint custody is actually
harmul to children. Eor children, two homes are actually no homes. 'he
constant disruption in children%s lives overcame any beneit the arrangement
might have and this was when the parents were able to cooperate. -n domestic
violence cases $oint 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 $oint custody laws or rules provide an e6ception or
domestic violence, this is oten ignored by the courts either because they ail to
recogni?e domestic violence or minimi?e its importance. Batterers unli!ely to
obtain sole custody because o their limited involvement with the children see!
$oint custody to maintain control and limit or avoid child support. Battered
mothers are oten pressured to agree to $oint custody and oten threatened with
loss o custody or worse i she doesn%t cooperate. 'he atmosphere in custody
courts and the well"being o children would improve greatly i the legislatures too!
$oint custody o the table.
10. Dis"o#age the se o$ E0alato#s 5hen no C#e!i%le P#oo$ o$ Mental Illness
is A0aila%le2 'here are some wonderul mental health proessionals who have
contributed their s!ills and learning to help end domestic violence. *ost o the
mental health proessionals used by the courts, however, have little or no training
or e6pertise in domestic violence and have contributed to the present crisis. 'he
use o mental health proessionals ater domestic violence became an public
issue was started at a time when no research was available. *any e6perts now
argue to eliminate any role or the mental health proession in custody cases and
particularly cases involving allegations o domestic violence. With rare
e6ceptions, domestic violence is not caused by mental illness and the
psychological tests oten used by evaluators tell us little about domestic violence
or parenting ability. 'he involvement o mental health proessionals in the
custody process delays the cases and adds tens o thousands o dollars to the
e6pense. 2nless there is persuasive evidence that one o the parties or the
children have a mental illness that aects the ability o a parent to provide proper
care or the children, the laws should discourage the use o mental health
proessionals in such cases.
11. Re$o#' o# Change the /est Inte#est o$ the Chil! Stan!a#!2 'he problem with
the best interest o the child standard is that it is e6tremely sub$ective and in
practice has been sub$ect to manipulation. 'he American 0aw -nstitute and
others have suggested an appro6imation standard. Absent a saety issue, the
time the children spend with each parent would appro6imate the time they spent
with each parent beore separation. 'his would save a lot o money because it
would be a actual issue that should be simple to determine. When the parents
were together and presumably wanted what was best or the children, they
determined how the children%s time should be divided. Dresumably parents that
loved their children would not have placed them in danger by leaving them with a
parent they now claim is unit. 'his is the !ind o logic courts generally use or
many topics, but not custody. - a legislature wants to continue the best interest
standard, it should deine the term better based upon up"to"date research now
available. -t would seem obvious that the irst priority should be the saety o the
children, but today this is treated as $ust one o many actors and less important
actors such as riendly parent or inancial ability are oten treated as i they were
more important than saety. 'he second actor should be giving children the best
chance to reach their potential. -t is hard to imagine why these are not now
considered the most important actors in determining a child%s best interest. 'his
reorm would mean that actors that have been demonstrated to aect the long
term well"being o children such as domestic violence, child abuse and primary
attachment would be given priority over less important considerations.
1&. Chil!#en Shol! Ha0e the Right to S&ea7 to the 6!ge2 )ne o the problems
we have seen in bad custody cases is GA0s advocating or an abusive ather
despite the wishes o the children. Accordingly it is important that children over a
certain age should have a right to tell the $udge directly how they eel and other
inormation they thin! is important.
1A. Gen!e# /ias Mst %e G#on!s $o# Re0e#sal2 'he court systems in over orty
states and many districts have appointed gender bias commissions. 'hey have
yielded consistent results that gender bias against women is widespread and
speciically mothers ace a higher standard o proo than athers, are given less
credibility and are blamed or the actions o their abusers. A glaring e6ample o
this bias occurred in the related ,hoc!ome and Goldstein cases in 1ew 4or!
,tate. 'he record states directly that the court used a certainty standard or the
mother and the correct probability standard or the ather. A certainty standard is
even higher than the beyond a reasonable doubt re;uired in criminal cases. 1o
mother, no matter how wonderul could meet a certainty standard. -t is hard to
imagine a clearer violation o undamental due process and e;ual protection
rights, but more than a do?en dierent $udges reviewed the case and they all
deerred to the trial $udge based on the act that he had observed the demeanor
o the witnesses. When a $udge engages in gender bias his $udgment cannot be
air. *ost e6amples o gender bias are not as blatant and obvious as this.
Ere;uently we will see a court pressure a mother and then ta!e custody rom her
because she continues to believe she or the children were abused and as!s the
court or protection while complying with the court orders,. Ater the abuser is
given custody, he violates visitation orders and tells children that their mother
moved away, doesn%t love them or similar lies and the court does nothing to
saeguard the mother%s visitation. - the courts ail to prevent obvious e6amples
o gender bias, how can they protect against more subtle orms o gender bias
that are easily missed by those with inade;uate training< Women cannot get a
air hearing when they are sub$ected to gender bias and the research
demonstrates this in the unavorable outcomes o domestic violence custody
cases. 'his is why we recommend mandatory training regarding gender bias,
but legislatures should go urther and re;uire cases to be reversed when a trial
court engages in gender bias. #emoving the $udge who engaged or tolerated
gender bias rom the case should be considered because we have seen many
courts attempt to $ustiy their past mista!es instead o being open to new
evidence in domestic violence cases.
1C. 8hen Co#ts Rle Against Allegations o$ Do'esti" Violen"e* Re1i#e
8#itten E9&lanations $o# the De"ision2 )ne o the reasons we !now
something is wrong in the custody court system is that although women ma!e
deliberate alse allegations o domestic violence one or two percent o the time,
the custody court inds against these allegations re;uently. -n any given case,
the court could be absolutely right because it could be one o the e6ceptions.
When we loo! at the pattern it is easy to see the courts are doing something
wrong. 'he re;uirement to provide a written e6planation would ocus $udges on
what the basis or their decision is and permit appellate review. 'his would be
particularly helpul in the conte6t o research about recogni?ing domestic violence
where courts oten discount allegations or reasons that are not probative and
miss important evidence because they don%t understand the signiicance. -
believe $ust having this re;uirement would reduce the re;uency o court
mista!es on this issue.
15. :ee& Re"o#!s o$ 6!ges Fin!ings Against A%se Allegations2 As discussed
above a court could correctly rule against an allegation o domestic violence, but
i the court is ma!ing such indings in more than a small percentage o the cases,
it is li!ely the court is doing something wrong. Administrative $udges could use
this inormation to provide the $udge with urther training or other assistance or
assign the $udge to cases that don%t involve domestic violence. 'he public could
learn which $udges understand domestic violence and ta!e it seriously. 'his is
another reorm that would probably cause $udges to improve their handling o
domestic violence cases.
1=. A""onta%ility $o# 6!ges2 *any people who see the re;uency o $udges
sending children to live with abusers in cases where the evidence
overwhelmingly supports custody to the protective mother have complained
about a lac! o accountability or $udges. .ourts sometimes impose gag orders
supposedly to protect the children but oten to silence criticism o the $udge. 'he
media rarely cover domestic violence custody cases unless they result in a
murder. +ven when a $udge has to see! re"election, the voters are rarely aware
o his or her actions and practices because their decisions are protected by
privacy issues. Agencies created to respond to ;uestions about $udicial ethics
are usually controlled by other members o the legal system that have an interest
in protecting their colleagues and $udges they might appear beore in the uture.
'hese agencies are oten severely underunded. -n other words virtually all the
avenues o obtaining any !ind o accountability or $udges are eectively bloc!ed.
-n airness $udges are human and allowed to ma!e mista!es, even mista!es that
destroy lives. >udges are oten wor!ing with crowded calendars, inade;uate
training and unortunately ew o the proessionals relied on to help the $udge
have suicient training to recogni?e and respond to domestic violence. -t is
particularly disturbing to see $udges ma!e a mista!e on a domestic violence case
and then use the court%s powers to silence the victim and retaliate i she
continues to try to protect her children. Drotective mothers have aced vindictive
contempt motions, gag orders, $ail, alse criminal prosecution, unnecessary
supervised visitation or no visitation and attac!s on proessionals see!ing to help
her in retaliation or her continued belie in the ather%s abuse or criticism o the
$udge%s mista!es. We have ound some spectacularly inappropriate and abusive
behavior on the part o some $udges, but there is no eective system o
accountability to protect the victims. Geeping records o court decisions ailing to
ind domestic violence as recommended earlier is one method o accountability.
,tates must improve the oversight o $udges so that commissions responding to
complaints have the resources to ma!e an ade;uate investigation and include
enough public members so valid complaints are not ignored. -mproved training
particularly regarding gender bias or $udges and the proessionals they rely on
will also help to reduce the ethical problems surrounding the mishandling o
domestic violence cases.
17. Chil! P#ote"ti0e Agen"ies Shol! Conslt 5ith Do'esti" Violen"e
Agen"ies 5hen Do'esti" Violen"e is Ss&e"te!2 ,ome communities with
the help o grants have developed programs involving a partnership between
child protective agencies and domestic violence agencies. 'he agencies can
provide each other with training that helps both agencies. *ost important, child
protective agencies develop a relationship with domestic violence advocates and
consult with the advocates who sometimes go with them to the homes in cases
where domestic violence issues contribute to the problems in the amily. 'he
domestic violence advocates can help child protective wor!ers recogni?e
domestic violence they otherwise would have missed so that children can be
better protected. 'his is the !ind o best practices approach that should be used
by all child protective agencies.
1F. Do'esti" Violen"e O'%!s'an2 'he premise o this legislative proposal is
that domestic violence includes a body o research and !nowledge that is highly
speciali?ed. )ne o the ma$or causes o mista!es in domestic violence cases is
that $udges or proessionals they relied on thought they understood domestic
violence issues and thereore did not see! the assistance o genuine e6perts.
Better training will help $udges and others, but it will not ma!e them e6perts.
Accordingly, a domestic violence ombudsman wor!ing in each court could help
prevent the avoidable tragedies we see too oten. 'he ombudsman could obtain
research articles and boo!s so the $udge and other proessionals would have
access to this inormation. 'hey could help arrange needed trainings and ma!e
sure the trainers are genuine e6perts. 'he ombudsman could participate in
settlement and other conerences to ma!e sure the discussions are based on an
understanding o the domestic violence issues. 'his would discourage
conerences that pressure protective mothers to agree to unsae arrangements
and instead ocus attention on the need or abusers to change their behavior.
'he ombudsman could help courts come up with sae arrangements 7i.e.
developing visitation e6changes that avoid contact between the parents8. - a
court engaged in outdated or harmul practices, the ombudsman could bring this
to the court%s attention 7with copies to the parties so there are no e6 parte
issues8. 'he ombudsman can also be the liaison with various providers so that
courts could !now what services are available in domestic violence cases and
which providers act in a sae and ethical manner. 'hey could also accept
complaints rom domestic violence victims or others and share this inormation
when it is necessary to avoid tragic conse;uences. 'he e6act unctions may
vary based on ethical issues and openness o the $udges, but $ust having this
position will ocus attention on the need to ta!e domestic violence seriously and
that the present practices have resulted in needless tragedies. 3opeully when
the court system is more ully reormed and the courts have a better appreciation
o the need or the resources domestic violence agencies provide, the need or
an ombudsman will be reduced.
19. 6!ges "annot De"i!e Motion a%ot thei# o5n Re"sal2 *any o the worst
cases involve $udges engaged in gender bias or angry that a litigant would
challenge the court%s rulings. While some states re;uire a dierent $udge to
decide a motion or recusal, many states permit a $udge to decide a motion about
the propriety o their own actions. 'his obviously presents a conlict o interest
and can create the appearance o impropriety. Accordingly better practice would
re;uire that a dierent $udge review a motion or recusal.
&0. No I''nity $o# E0alato#s an! Gals2 *any o the worst domestic violence
cases we have seen have involved evaluators and GA0s 7law guardians8 who
have become advocates or the abuser and lost all sense o ob$ectivity or the
best interests o the children. Although proessional ethics re;uire psychologists
who are not domestic violence e6perts 7which covers most psychologists8 to
consult with someone with such e6pertise, this is rarely done. Ere;uently these
proessionals substitute their personal belies and biases or up"to"date research
or the best interests o the children. 'here is oten a inancial incentive to ta!e
this approach as abusers generally have more money available because they
control the amily%s inances. -n many cases se6ist children%s attorneys
recommend se6ist evaluators to obtain the recommendations they want. When
the children are inevitably harmed, these proessionals have immunity to shield
them rom lawsuits or the harm they caused. -n many communities it is $ust one
or two evaluators that get most o the custody wor! and inlict most o the harm.
- victims had the ability to sue and collect damages it would discourage such
improper behavior and ma!e other evaluators and lawyers aware o the
importance o being amiliar with up"to"date research and applying such research
to their cases.
&1. C#eate a Metho! to Co##e"t Past Mista7es2 'he research has now
demonstrated beyond ;uestion that the courts are ma!ing serious mista!es in a
large ma$ority o contested domestic violence custody cases. 'here has
probably never been another time in our nation%s history when the court system
could not be trusted to at least get most o any group o cases right. *any court
oicials have sought to $ustiy or minimi?e the mista!es, but the conse;uences
are too serious to leave the cases wrongly decided and ris! our children%s uture.
#es $udicata is an important legal principle that is necessary in order to avoid
relitigating cases over and over. .ustody cases are unusual in that custody and
visitation can always be reconsidered based upon a change o circumstances.
)ne o the problems we have seen is that once a court denies the mother%s
allegations o domestic violence, courts oten reuse to consider new evidence in
the conte6t o past evidence. Accordingly courts oten reuse to consider new
evidence that provides proo the past decisions were a mista!e. 'his approach
is clearly wrong because conte6t is so important in domestic violence cases.
.ourts should be loo!ing or a pattern o coercive and abusive behavior in order
to recogni?e domestic violence. Accordingly evidence o additional acts o abuse
or intererence with the mother%s relationship with her children ater obtaining
custody would be important to consider in the conte6t o past evidence o
domestic violence. At minimum, legislatures should re;uire courts to re"e6amine
domestic violence indings in light o new inormation. +ven better would be to
set up an administrative agency or speciali?ed court to review cases in which
domestic violence and@or child abuse allegations were denied and custody was
awarded to the alleged abuser. 'hese cases should be reviewed because most
o them were decided in ways that place children in $eopardy and reduce their
chances o reaching their potential. 'his is because most o these cases are
decided based on discredited practices and without the use o up"to"date
research. 'he court or administrative agency should be staed with domestic
violence e6perts who can recogni?e mista!es by the trial court. At the very least
they should be able to order a new trial i there is good reason to believe the
court made serious errors. - appreciate courts will not li!e the e6tra wor! and
lac! o inality, but - believe by creating this method o correcting the past
mista!es, the legislature will send an important message that courts must stop
using practices that place children in $eopardy. 3opeully once the reorms ta!e
place and court proessionals have better training, these reviews will no longer
be necessary.
Fo# 'o#e in$o#'ation /a##y Gol!stein "an %e "onta"te! at /a##yG;<=aol("o' o#
>?@AB@CAC?@D( His 5e% site is /a##ygol!stein(net