This may sound like a rhetorical question but it is deadly serious and needs to be answered. New research from the National Institute of Justice found the courts give more importance to alienation than domestic violence or child abuse. This contradicts the findings from leading scientific research like the ACE (Adverse Childhood Experiences) Studies from the CDC and the Saunders’ Study from the U.S. Department of Justice.
So how can the custody court system allow a sexist theory concocted not from any research but from the personal beliefs, experience and biases of someone who made many pro-pedophile statements to have more influence on its decisions than respected scientific research from such credible sources as the CDC and U.S. Justice Department?
This clear error is much more than one or a small group of indefensible decisions. The courts’ function is to make good judgments and analysis of a variety of cases and issues brought to them. Certainly this requires courts to be able to distinguish between bogus and discredited theories when compared to scientific research that includes all the proper scientific methods required to be considered credible.
Particularly troubling is that the reliance by court professionals on this bogus theory has not been significantly reduced as more discrediting information that would have ended the reliance on any other theory became available. Normally, scientific research would have to have the kind of proof and validity provided by ACE and Saunders to even be introduced, but PAS was often admitted in the beginning because attorneys for protective mothers failed to raise proper objections. Since that time, alienation has been twice rejected by the American Psychiatric Association for inclusion in the DSM which is the compendium of all valid diagnoses. Several leading professional organizations have taken stands against its use. The National Council of Juvenile and Family Court Judges issued documents advising their colleagues not to consider PAS evidence. Good research like ACE, Saunders’ and Bala proved that many of the assumptions used to support alienation are wrong. Psychologists have lost their licenses for diagnosing something that doesn’t exist in the DSM. Any one of these developments should have ended the reliance on this bogus theory, but it has been allowed to continue to spread its poison and destroy children’s lives.
Research like ACE and Saunders’ have none of the drawbacks or questions that should disqualify alienation theories. The research comes from organizations with the best reputations and was peer reviewed and tested. In the case of ACE, at least five additional studies have been completed that support and expand upon the original findings. The ACE Studies are medical research that is used to diagnose and treat patients. It establishes that exposure to domestic violence and child abuse is far more harmful than previously realized. Physical abuse is not required to create a lifetime of harm that is significant because courts often fail to take other forms of domestic violence seriously. ACE demonstrates that alienation does not even rise to a health or safety issue unless it takes a parent completely out of the child’s life. This is rarely the case in custody cases except, ironically, when PAS is used to take the mother out of the child’s life. The Saunders’ Studies explains the specific training evaluators, judges and lawyers need in domestic violence cases. Professionals without this knowledge tend to focus on unscientific alienation theories and this leads to decisions that harm children. Some state legislators have passed legislation asking state agencies to use the ACE Research because it could dramatically reduce many illnesses and social problems. The alienation theories are not used anywhere but to help alleged abusers gain custody.
Asking the question ought to be the same as answering it in that there is no reasonable justification for this dangerous error that harms so many children. Nevertheless, I think it is worth offering a serious answer because it helps explain how the courts got so far off base and their difficulty in correcting errors in long-established practices.
Undue Influence of “Father’s Rights” Groups
Context is critical to understanding domestic violence. Most custody cases, like any litigation are settled before trial. The problem in the family courts is the 3.8% of cases that go to trial and often far beyond. Court professionals are taught to use “high conflict” approaches by which they mean the parents are angry with each other and act out in ways that hurt children. The research establishes, however that a large majority of these cases involve the most dangerous abusers who are using custody to regain control over their victims. They are the most dangerous because they believe she had no right to leave, but professionals looking only for the most severe physical assaults fail to recognize the danger.
“Father’s Rights” groups seek to create an image that they are reasonable men who just want to be treated fairly. In reality these are the extreme abusers who are involved in contested custody. Their web sites and meetings demonstrate their actual agenda is to eliminate child support, undermine domestic violence laws and in some cases make sex between adults and children legal. They are good at manipulation so they don’t reveal their real agenda to court professionals or legislators. Their first priority is to promote PAS by any name because this is their main weapon to distract attention from their abuse and put mothers on the defensive for trying to protect their children.
In the typical contested case, the mother is a safe, protective parent who has provided most of the child care. She has raised concerns about the father’s domestic violence and sometimes child abuse. During the relationship the father allowed or demanded the mother provide most of the child care, but when she leaves him and reports his abuse, he suddenly claims she is an unfit parent. In any other litigation his desire for the mother to care for the children would be seen as an admission that she is a good parent. She did not become an unfit mother because she left the father or reported his alleged abuse. The mothers in these cases make deliberate false reports less than 2% of the time and fathers are 16 times more likely to make deliberate false reports. They are even more likely to make false denials of the abuse reports. Nevertheless, the bias and misinformation has resulted in court professionals being highly skeptical of mother’s abuse claims, but are very open to the father’s allegations and denials.
The abuser groups have made supporting alienation theories there first priority. It serves both to undermine the court’s willingness to believe the father abused the mother and/or children and provides a justification to give custody to the father when the mother has provided most of the child care and is likely a better and more experienced parent. Without this theory and the prejudice it brings to the proceedings abusive fathers would have little chance to use custody to regain control over partners who are fleeing. I believe we should be troubled that organizations seeking to justify domestic violence have far more influence over custody courts than organizations seeking to support laws and programs designed to prevent domestic violence.
The Huge Influence of Money
Control is central to domestic violence tactics and this includes financial control. Many of the fathers seeking custody in contested cases threatened the mother with losing her children and bankruptcy if she dared to leave. With most contested cases involving child custody, the abusive father generally controls most of the family resources. In many court cases, including those involving wealthy corporations, superior financial resources creates an unfair advantage that often results in cases being deciding for reasons other than the merits. In domestic violence custody cases financial considerations have poisoned the whole process.
Court professionals like evaluators and lawyers have figured out that most of the money to be earned comes from abusive fathers. Many of these professionals aggressively advertise or otherwise seek “fathers’ rights” business. After domestic violence became a public issue and society started taking its first steps to prevent domestic violence, unscrupulous professionals sought an approach they could use to help wealthy abusers. Richard Gardner concocted Parental Alienation Syndrome, not based on any research but only his personal beliefs, experiences and biases. He promoted his bogus theory by sending his self-published books to judges around the country and made a fortune testifying on behalf of abusive fathers. This was the start of the cottage industry of court professionals that make large incomes by helping dangerous abusers win custody.
They would lobby and promote PAS because it was essential to maintain their lucrative business. Some professionals would actually conduct “research” based on the initial flawed assumptions to create the illusion that research supported their claims. Other professionals in the cottage industry would review and support the baseless claims. In many cases, attorneys for the abusers and GALs would ask courts to appoint an evaluator they work with who supports PAS. The result was that judges and other court professionals would hear these false narratives from professionals who were being treated as if they were neutrals. This helped spread the poison throughout the system.
One of the reasons the cottage industry gained early success was that attorneys rarely have expertise in domestic violence and often failed to challenge PAS effectively. When PAS received criticism because it is sexist and designed to help fathers, Gardner modified his theory to include mothers and fathers although it continued to be used almost exclusively to help abusive fathers. When PAS lost credibility because of its many flaws and criticism from more reputable professionals and leading organizations, the cottage industry adapted by using PAS by another name such as alienation or parental alienation.
Many judges responded to the growing proof that there is no scientific basis for PAS by eliminating the need for scientific support. They said that clearly parents make negative remarks about the other parent. This is common sense and so there is no need for scientific justification. This would be reasonable if it was then treated as bad behavior that the courts could consider, but perhaps without thought, the courts tended to continue to use other aspect of PAS despite the lack of scientific support. This behavior, like domestic violence is not caused by mental illness so there is no need for expertise from biased mental health professionals. Even more important there is no scientific research to support the assumptions that it is the most harmful behavior a parent can engage in.
There is a reason that alienation is not an issue in any other aspect of society except as a tactic in child custody. Parents do even in intact families make negative comments about the other parent. This rarely causes any serious problem and any effect is usually short-term. Based on the ACE Research, alienation does not even reach a health or safety issue unless it results in ending the relationship with the other parent. The Meier Study that found courts treat alienation as more important to the well-being of children than domestic violence or sexual abuse found that courts fail to make a distinction between subjective and objective opinions. Thus the courts are paying more attention to the frequent subjective opinions of well-paid professionals who are part of the cottage industry than objective opinions that are based on highly credible research like ACE and Saunders.
Researchers have seen a pattern of courts giving custody to alleged abusers based on the belief the father is more likely to promote the relationship with the mother. This is based on the alienation theories and contradicts our understanding of domestic violence that the purpose of the father seeking custody is to regain control over the mother and punish her for leaving. Once the father gains custody, he uses the control to limit the mother’s contact and destroy the relationship based on domestic violence by proxy. The sexist nature of alienation theories is demonstrated by the fact courts are far less aggressive when the father’s tactics seek to destroy the mother’s relationship. Similarly, when courts create what the Saunders’ Study calls a “harmful outcome” case, which is always wrong, and allows it to continue for many months or years; this often results in destroying the relationship. In other words it is the use of the bogus alienation theories that actually deny children a relationship with the parent they most need. Ironically, when the fathers claim alienation is harming their relationship, it is almost always his abuse and other bad behavior that has caused the problems. Alienation offers an excuse to avoid working on the behavior that is really causing the problem.
In the 20th century, 40 states and many judicial districts created court-sponsored gender bias committees. They used widely different approaches over many years but found widespread gender bias. Common examples included giving men more credibility, holding women to higher standards and blaming mothers for the actions of their abusers. The Meier research found that this gender bias has continued so that fathers are treated much better by courts under similar circumstances. One of the judges interviewed for the Bartlow Study regarding child murders said she believed her colleagues unintentionally gave fathers an advantage because so many other fathers had abandoned their children. One of the difficulties in preventing gender bias is that it is rarely intentional and easy to commit without realizing it. At the same time, judges and other professionals are likely to react highly defensively to concerns about gender bias which discourage reports when women are mistreated.
Abuser groups have been successful in convincing court professionals that fathers must be treated the same as mothers regardless of past parenting. We often hear judges say that children need both parents equally. A more objective consideration would recognize children need their safe parent more than the abusive parent and the primary attachment figure more than the other parent. “High conflict” approaches demand mothers and children “get over it” but the ACE Research proves this cannot work. The courts can order the parties in interact but cannot force mothers and children to remove the fear and stress that cause so much harm to children. Removing the fear and stress would require the abuser to change his behavior, but this effective solution is rarely the focus of these cases.
If courts were more focused on avoiding gender bias they might be less willing to accept the sexist alienation theories. I believe it is significant that the courts give more weight to a bogus theory that supports abusive fathers than important and credible research from the CDC and U.S. Justice Department that would help courts better protect children and the abused mothers they depend on.
Reliance on Unqualified Professionals
The response family courts created to domestic violence custody courts got off to a bad start because virtually no research was available. They relied on popular assumptions that turned out wrong such as the belief that domestic violence was caused by mental illness and substance abuse; the risk ended when the parties separated; and the courts only needed to worry about physical assaults. These mistaken assumptions led courts to turn to mental health professionals as if they were the experts in domestic violence. While the professionals who were part of the cottage industry promoted PAS with the false belief that most abuse reports were lies, evaluators who were trying to act in good faith did not have the knowledge and training to recognize and respond to domestic violence. This gave biased professionals like Gardner a clear field to mislead and miseducate the courts. While evaluators acting in good faith took a more balanced and less extreme approach, they failed to challenge the baseless theories.
The courts most often rely on psychologists for evaluators. A study led by Timothy Baker found that psychologists do not tend to be well-educated in science and often engage in treatment and practices unsupported or even contraindicated by current research. This may help to explain why the courts have failed to integrate current scientific research that would make it easier for courts to recognize and respond to domestic violence and child abuse.
One such study led by Dr. Daniel Saunders for the National Institute of Justice found that domestic violence advocates have more of the specific knowledge courts need concerning domestic violence. The research supports a multi-disciplinary approach to child custody. Mental health professionals are experts in psychology and mental illness and can provide valuable assistance to the courts when those issues predominate. Even after taking a few courses or workshops they are not experts in issues like domestic violence and child sexual abuse. There is now a specialized body of knowledge about these abuse topics and it is all too easy for professionals without the needed expertise to make recommendations that harm children. The present practice is the equivalent of relying on a general practitioner when a patient has cancer or heart disease. Genuine experts in domestic violence and child abuse know that most reports of abuse are true and the basis for PAS is fundamentally flawed.
Failure to Integrate Current Scientific Research
Domestic Violence, Abuse and Child Custody was designed to put together all the important research about domestic violence in one convenient place. Mo Hannah and I hoped that this would make it easier for attorneys and other court professionals to access this information to help integrate it into the court system. We hoped that the findings in the Saunders’ Study that demonstrated most court professionals do not have the specific knowledge about domestic violence needed to protect children would lead to integration of this research. When I gave four presentations at the national convention of the American Psychological Association in 2014, I hoped it would lead to the use of ACE and Saunders in the courts. Each time we have been disappointed.
PAS was introduced into the family courts by lawyers and psychologists that had a strong financial interest in promoting a theory to help their abuser clients. Lawyers for protective mothers could and should have brought ACE, Saunders and other important research to the courts’ attention. Unlike PAS, these studies have all the requisites to be accepted into evidence. The problem is that few attorneys have the necessary knowledge about domestic violence so they are unfamiliar with this information. Even when clients do the research and ask their attorneys to present the research the attorneys often discourage or refuse to offer this evidence. The attorneys do not understand the significance of this research, but have repeatedly seen mothers punished for presenting evidence of abuse. They are concerned it will harm the case. There is also an ethical issue that has received little attention. Many attorneys are afraid that the judges do not want to hear about abuse and presenting this evidence would undermine their relationship and future cases with the judge. This creates a conflict of interest because the lawyers are undermining one client’s case in order to help their careers and other clients.
Clearly lawyers need to be better educated about domestic violence and bar associations need to discuss this ethical issue. At the same time judges need to avoid actions and statements that cause attorneys and litigants to avoid submitting important information to the courts. This self-censorship results in courts not having the information they need to protect the children. Practices in which courts retaliate against protective mothers for raising concerns about the father’s abuse or lawyers for zealously advocating for their clients must be eliminated. Significantly, a common form of retaliation against mothers is what the Saunders’ Study calls harmful outcome cases. These decisions are always wrong and are based on flawed practices.
The other way to bring this vital information into the courts would be through the judiciary. When I participated in a roundtable discussion co-sponsored by the National Council of Juvenile and Family Court Judges and OVW in the US Justice Department they asked us to submit one article we thought would be helpful. After reading my article about the ACE Research, one judge said she wanted to go back to the family court because the information would be so helpful in responding to the cases. The National Council has provided articles and training about ACE and Saunders. This is helpful, but it seems that only the best judges want the training and are eager to learn from cutting edge research.
Judicial organizations have to set a new tone that encourages courts to be trauma-informed. Changing outdated practices, such as the Safe Child Act would accomplish would encourage more judges to pay attention to trainings because they would have to implement the new practices. It would also discourage bad judges from refusing to consider evidence about current research. Often they make these bad decisions because they don’t want information in the record that demonstrates their earlier decisions in the case are harmful.
When domestic violence first became a public issue, courts did not look to current research to inform their decision because no research was available. As a result most courts never developed the practice of looking to research to inform their decisions. Now that this research is available, these practices have to change. Significantly knowledge of current research would discourage reliance on unscientific alienation theories.
No Mechanism to Review How Present Practices Are Working
Res Judicata is an important legal maxim that avoids constantly relitigating issues that are decided. This means that absent an appeal the court system will assume every issue was correctly decided. Appeals are of limited effectiveness in domestic violence custody cases because victims rarely have the resources to mount an effective appeal and appellate courts tend to defer to trial judges on factual issues based on the ability to observe witness demeanor.
Judicial economy requires creating a final resolution of issues, but what happens when courts make mistakes? Joy Silberg created a study of “turnaround” cases in which courts eventually learned that an abuser the court decided was safe was really dangerous. Dianne Bartlow studied cases in which judges disbelieved mothers’ reports and gave fathers the access they needed to kill their children. In other cases, alleged abusers the courts found safe were later convicted of assault, rape or murder. Dr. Bartlow found the judges assumed the tragedy in their community was an exception, but the Meier Study demonstrates that courts routinely rule in favor of dangerous abusers. The Saunders’ Study found that harmful outcome cases are always wrong and yet there are thousands of these extreme and dangerous decisions. The use of bogus alienation theories and failure to consider current research certainly contributes to these catastrophic errors.
The courts do not have an effective procedure to determine how often they make bad decisions that endanger children. A few states will investigate child murders but the focus in not on the custody court. The Saunders’ Study was designed to determine whether evaluators, judges and lawyers have the necessary domestic violence knowledge. Many, if not most of these professionals do not have the specific knowledge needed and this finding is incompatible with any satisfaction with present practices and results. There was good research from the Leadership Council and Dianne Bartlow about frequent and dangerous mistakes, but the Meier Study was designed to definitively determine the frequency courts give access to dangerous abusers. Meier established this occurs in a majority of the abuse cases the courts consider, but even this understates the dangers.
Experts in trauma and domestic violence recommend that in abuse cases the safe parent receive custody and the abuser should at least initially be limited to supervised visits. Based on the ACE Research, the best way to save a child who has been exposed to one or more ACEs is to give the safe parent control over all health decisions and stop any exposure to further abuse. Abusers do not want the child in therapy where they may reveal his abuse. I have not seen specific research, but I believe courts follow these recommendations less than 5% of the time.
For some reason, the avalanche of research from the most credible sources and horrific catastrophes that could have been prevented have not yet convinced the court system to create the needed reforms. If they do not believe the outside sources, the least they could do is create their own study or investigation to confirm or deny the concerns of so many credible sources. The failure to take these concerns seriously creates an appearance that they do not want to know they failed the children. A credible investigation, like the one provided by Joan Meier will show that relying on unscientific alienation theories and failing to integrate current research are significant factors in the widespread failure to protect children.