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 Mothers and domestic violence advocates have been complaining for many years about problems in the custody court system that have resulted in large numbers of children being sent to live with abusive fathers while safe, protective mothers are denied any meaningful relationship with their children.  Courts have tended to dismiss the complaints by referring to the mothers as “disgruntled litigants.”  As more concern about the problem has been expressed and more research performed, the mothers’ complaints have been confirmed.  Early in 2010, a new book co-edited by Dr. Maureen T. Hannah and Barry Goldstein, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY will be published and end any doubts that there is a pattern of mistakes made in the custody court system.  These mistakes have caused thousands of cases to be mishandled and placed the lives and well being of battered women and their children in jeopardy.  The book includes chapters by over 25 of the leading experts in the United States and Canada including judges, lawyers, psychiatrists, psychologists, sociologists, journalists and domestic violence advocates.  Although these experts come from different disciplines and approached the issue from different directions, there is a remarkable consensus about the problem and the solution.  The up-to-date research and information now available makes it clear that the present practices can no longer be justified and the custody court system must create the necessary reforms to protect the safety of children and protective mothers in domestic violence custody cases.  This article will discuss ten reasons we know the custody court system is broken and must be reformed.

  1. Mothers’ Complaints:  The problem this article seeks to discuss are cases in which a mother who has been the primary caregiver and makes allegations of domestic violence and/or child abuse loses custody to the alleged abuser and receives supervised visitation or no contact with her children.  These cases have increased since federal laws designed to increase enforcement of child support orders were passed.  Male supremacist groups have encouraged abusive fathers to seek custody as a way to avoid paying child support, to pressure his partner to stay or punish her for leaving.  The courts and the often inadequately trained professionals they rely on, glad to see the involvement of fathers in children’s lives often fail to recognize the tactic and motivation.  Courts tend to look at each case separately and so fail to see the patterns of mistakes in these cases.  Demonizing their victim is a common strategy employed by abusers so a court could believe there was something profoundly wrong with an individual mother to justify the extreme outcome.  When experts look at the pattern of these cases it is evident that the unusual circumstances needed to justify a particular outcome cannot be as common as the results would suggest.  Women and children make deliberately false allegations of abuse between one and two percent of the time, but the court decisions support the myth that such deliberate false allegations are common.  Furthermore, domestic violence allegations are painful and embarrassing to make and require the victims to speak about uncomfortable issues and questions.  Research demonstrates that allegations of domestic violence and child abuse make women less likely to obtain custody.  We can’t know that an individual case was improperly decided without careful review of the case, but we know the frequency of outcomes that give custody to alleged abusers cannot possibly be based on objective facts.
Available Research: 
he modern movement against domestic violence is only about thirty years old and there was little research available when it started.  We now have extensive research to demonstrate common mistakes courts and the often-unqualified professionals they rely on use in domestic violence custody cases.  Studies show that while evaluators believe they are considering domestic violence in their investigation of the family, in fact most fail to do so.  We have many studies proving widespread gender bias against women in the approaches used by the courts.  Evaluators regularly use psychological testing that has little or no relevance to the issues before the court and is gender biased.  Psychologists testifying before the courts rarely inform the judges that their results are based upon probabilities so that factors in the case that would reduce those probabilities can be considered.
Courts often think of them as “high conflict” cases, but in reality these are mostly domestic violence cases.  Research studies vary somewhat on the percentage of these cases that involve abusive fathers, but all agree the majority of such cases involve domestic violence.  I believe the studies that found 90% of these contested custody cases are caused by abusive fathers because unqualified professionals frequently miss domestic violence. 
Battered Mothers Testimony Project and Research: 
Review of Bad Cases: 
Many other experts have studied domestic violence cases where the alleged abuser received custody and the protective mother received little or no contact with her children.  In these cases we have found widespread mistakes, bad practices, use of myths and stereotypes, the failure to use up-to-date research, gender bias and outcomes that place children at risk.
Parental Alienation Syndrome:
PAS is a bogus theory created based on the personal biases of Dr. Richard Gardner.  His books were self-published and never peer reviewed.  It is used only in domestic violence custody cases to prevent or shorten investigations of the father’s abuse.  PAS assumes that if a child expresses negative feelings about the father or doesn’t want visitation, the only possible explanation is that the mother alienated the child and the solution is to force the child to live with the abuser and have at most supervised visitation with the protective mother who has been the primary attachment figure for the child. 
Gender Bias: 
he Truth Commission recommended that rather than training professionals with general domestic violence information, all professionals should have training in Gender Bias, Recognizing Domestic Violence and the Effects of Domestic Violence on Children. 
At least 40 states and many other districts and communities have created court-sponsored gender bias committees.
Lynn Hecht Schafran wrote a brilliant article “Evaluating the Evaluators” that illustrates the problem
Failure to Recognize Domestic Violence: 
Unqualified professionals often discount allegations of abuse based upon information that represents a normal and reasonable response to his abuse.
Effect of Domestic Violence on Children:
Every state has passed laws designed to promote greater consideration of the effects of domestic violence on children.  Some states require domestic violence to be considered in making custody and visitation decisions and others create a presumption against custody for abusers (although often the laws or the courts require a level of proof or create other restrictions that limit the effectiveness of these laws).  Prior to these laws, when a protective mother asked to limit the father’s contact with the children because of domestic violence, the judge would ask some version of “Does he also abuse the child?”  If the answer was no, the court treated the father as if he was just as appropriate for custody and visitation as the mother. 
Extreme Results: 
f a court were to give custody to a protective mother and limit the father to supervised visitation because of his domestic violence, it would be following the recommendations of up-to-date research.  In other words there is a scientific basis for such an outcome. 
Obviously, in these cases the courts are assuming the mother’s allegations of abuse are false.  They justify the visitation restrictions by their concern the mother will continue to believe she was abused and say negative things about the father. 
Where is the research that the harm to the children of hearing such statements is greater than the harm of being denied a normal relationship with their mother?  Even in intact families the children often hear negative comments about the other parent.  In other words, these extreme court decisions are based upon the belief systems and biases of court professionals and not up-to-date research.  Many children have been denied any contact with their mothers in these cases.  Ironically fathers are often granted custody based on the belief they are the friendlier parent and will promote the relationship between the mother and children, but he proceeds to terminate all contact once he has control.  Many courts that jumped all over mothers for requesting the court restrict the father’s access have done nothing in the face of the father preventing visitation or other contact between mother and children.  Rapists and even murderers frequently receive some supervised visitation and yet mothers who sought to protect their children from an abuser are completely cut off from their children.  The extreme outcomes faced by protective mothers are unsupported by any research, but demonstrate serious flaws in the custody system.
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