EXTREME CUSTODY DECISIONS THAT RISK LIVES

By Barry Goldstein

Dear Custody Court Judge:

The research is now clear that certain extreme decisions in domestic violence custody cases that have become all too common are contributing to an increase in the frequency of domestic violence homicide and other harmful consequences. This is established in the leading resources about domestic violence and custody including THE BATTERER AS PARENT by Lundy Bancroft and Jay Silverman, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY edited by Mo Therese Hannah and Barry Goldstein and the major new Department of Justice study led by Dr. Daniel Saunders of the University of Michigan. Judges should be aware of the research that demonstrates the danger of creating these dangerous decisions avoid these decisions in the future and modify existing arrangements that create substantial risks to the children.

The decisions that must be avoided and corrected are ones in which an alleged abuser is given custody and a safe, protective mother is limited to supervised or no visitation. I will more fully describe these dangerous cases below and I am not saying it can never be right to give someone custody who was accused of domestic violence or child abuse or that a mother who makes abuse allegations should never be denied normal visitation.

I will discuss the harm and danger of these extreme decisions below, but judges should be aware that these decisions are probably the largest factor in the recent increase in domestic violence homicide. Furthermore these extreme decisions are never in the best interests of children even when the court is right that the abuse allegations are false and the mother seeks to take the father out of the child's life for bad faith reasons. More commonly, the research demonstrates that court professionals who used flawed practices to justify the extreme decision also got the underlying facts wrong. Judges should look to the specialized body of research now available that can help courts make the best decisions in domestic violence custody cases. .....

Excerpts - To read the article in its entirety, please visit Barry's website.

The real problem is the 3.8% of cases that go to trial and usually far beyond. The vast majority of these cases, probably around 90% are domestic violence cases that involve the worst of the worst abusers. These are usually cases where the father had little involvement with the children during the relationship, but suddenly demands custody as a way to pressure her to return or punish her for leaving. Abusers tend to be good at manipulation and court professionals are usually happy to find a father who appears to want to be involved in his children’s lives. The flawed “high conflict” approach works great for abusers because it requires the parties to interact and cooperate with each other. This gives him the access to his victim he sought by playing the custody card. At the same time it pressures the mother to cooperate with her abuser and punishes her reluctance to interact with someone she experienced as dangerous and difficult. In other words the “high conflict” approach gives abusers a huge advantage.

The most dangerous abusers are the ones who believe she has no right to leave him. They usually respond to her leaving in one or more of three ways. They respond by killing her which is why75% of men who kill their partners do so after she has left. They respond by killing their children. In the last couple of years over 175 children have been murdered by abusive fathers involved in contested custody cases. Most often they respond by going after custody as a tactic to regain control and too often custody courts help them do so......

....The evaluators and other mental health professionals routinely relied on by the courts are not experts in domestic violence and usually unfamiliar with the specialized body of research now available. This has led judges and lawyers to be taught a lot of misinformation and continue to use outdated and discredited practices. Significantly, the Department of Justice study found many evaluators and other court professionals do not have the domestic violence training they need. Those professionals without the needed training are more likely to believe the myth that women frequently make false allegations of abuse and therefore make recommendations harmful to children.....

....The Department of Justice study found that court professionals pay far too much attention to the anger or emotion a mother displays in court in comparison to its significance in determining how good a mother she is. Similarly over forty states have had court-sponsored gender bias committees that have found substantial bias against women and particularly against mothers involved in custody disputes. One of the common forms of bias is to blame a mother for the actions of her abuser. This is exactly what a court does when it blames the mother for her emotion or anger caused by the father’s history of abuse and use of abusive litigation tactics instead of blaming him for intimidating and coercive behaviors that caused her reaction. Gender bias is often difficult to recognize because it is not done deliberately or consciously and some court professionals become extremely defensive when this issue is raised. A good remedy is to frequently consider how you would have reacted to the same situation if the genders were reversed....

As discussed earlier these decisions lead to a higher crime rate in addition to the increase in domestic violence homicide. A large majority of our prison population witnessed domestic violence or suffered direct abuse. The extreme decisions discussed in this article increase this unfortunate population. These mistakes also have a profound negative impact on society. The increased crime requires substantial expenditures in the criminal justice system as well as property losses and injuries. These mistakes also substantially increase health expenses that raise insurance rates and taxes when the government pays health costs. At the same time, by destroying or limiting the potential of these children, and others, it reduces economic output thus reducing tax revenue. 

Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com