Custody Courts Aren't Believing Kids: Part II

In this second part of Barry Goldstein’s series, the former attorney, long-time domestic violence advocate and editorial advisor for DomesticShelters.org talks about decisions made in custody courts that allow abusers to continue to abuse and sometimes even kill. You’ll find Part I here.

The research is clear: only accountability and monitoring are effective in reducing domestic violence (DV) crime. This is why all the other approaches have failed to make a difference. Communities that have taken domestic violence seriously and implemented an approach based on accountability and monitoring have been rewarded with a dramatic reduction in DV crime.

In my book, The Quincy Solution, I wrote about the successful practices in Quincy, Mass.; Nashville, Tenn.; and San Diego. These communities used approaches based on strict enforcement of criminal laws, protective orders and probation rules. They made it easier for victims to leave their abusers and created a coordinated community response so that professionals and other communities could work together to prevent domestic violence. The local media covered these effective practices and in doing so sent a message that abusers could now expect meaningful consequences if they committed domestic violence crimes. Abusers got the message and so DV crime declined. In Quincy, a county that had averaged five to six DV homicides per year enjoyed several years in a row with no murders.  

Unfortunately, the leaders in these three communities retired or took other jobs and some of the good practices were abandoned. As a result, the DV crime rate went up but not to the previous levels. This provides further evidence for the effectiveness of accountability and monitoring. Now that Adverse Childhood Experiences (ACE) and other research demonstrate the harm from tolerating domestic violence is so much greater than previously understood, it is even more important that we implement the practices that have been successful in preventing domestic violence.

Child Custody Reform Must be Part of the Solution

Bill Delahunt, the prosecutor who helped create the Quincy Model, noticed that victims stopped cooperating when their abusers sought custody. This did not derail the success in Quincy because at the time abusers seeking custody was a rare tactic. Today, it is a standard abuser tactic for the most dangerous abusers to seek custody and custody courts rarely consider their motive.

Like any litigation, most child custody cases are settled more or less amicably. The problem is the 3.8% of cases that require trial and often much more. Between 75%-90% of contested custody cases involve abusive fathers who believe the mother has no right to leave so they are entitled to use any tactic necessary to regain what they believe is their entitlement to control their partners. Domestic violence is about control including economic control. Accordingly, a cottage industry of lawyers and mental health professionals has developed to promote approaches that favor wealthy abusers. Most abusers using the custody card have not committed the most severe physical abuse which is what the courts look for so they fail to recognize the risk.

The courts routinely use a high conflict approach that creates a false equivalency between abuser and victim. The courts pressure the victim to cooperate with her abuser instead of requiring the abuser to change his behavior if he wants a relationship with the children. In many cases mothers are punished for trying to protect their children.

Perhaps the most extreme use of the high conflict approach occurred in Pennsylvania. The judge refused to protect Kayden Mancuso from her abusive father. The judge said the father’s threats against the mother had nothing to do with Kayden. When Kayden expressed fear of her father after seeing him assault a relative, the judge told her to get over it.

The father killed Kayden during a visit authorized by the judge and placed a note on her body before killing himself.  The note expressed satisfaction that the mother would suffer from this murder.  This is the essence of why abusive fathers seek custody even when their response doesn’t go as far as murder. Even after the murder and the note, the judge learned nothing and continued to blame both parents.

Custody courts developed practices to respond to domestic violence at a time when no research was available. We now have substantial research that would help judges recognize domestic violence and respond effectively to protect children. The research comes from highly credible sources like the CDC and U.S. Justice Department. Nevertheless, the courts have continued to rely on their outdated practices and a small group of professionals who are experts in psychology and mental illness but not domestic violence or child sexual abuse.

In one extreme case from New York Family Court, a 3-year-old boy convinced his best friend to go into the bedroom and take off his clothes. By the time the best friend’s mother found them, the boy’s penis was sore from trying to push it up his friend’s bottom and he peed all over the friend’s back. This was after the boy complained that his father made him play the “penis game.” The evaluator, who claims to be an expert in child sexual abuse dismissed these events as the boys “playing doctor.”

Dutchess County, New York is one of many communities with a particularly bad response to DV custody cases. Dutchess provides important information because the county legislature asked a citizen’s committee of professionals to investigate the county response to domestic violence. They appointed the committee in response to a series of DV homicides that left nine people dead in less than a year.  

One of the most important findings was that the courts, and particularly the custody courts, were viewed as so biased for abusive fathers that many mothers either never went to court or quickly stopped because they determined it was safer trying to deal with their abuser alone than to have the judge helping him. The successful practices in Quincy and other communities made it easier for victims to leave.  he failed practices in custody courts make it harder. The committee found the flawed custody practices contributed to the series of homicides. Nationally, after decades of reductions in DV homicides, the decline has been reversed and the ability of the worst abusers to manipulate custody courts and regain control is a major factor in the reversal.

Editor's Note: This article is part of #YourVoice, an ongoing column published on this website by individual contributors in their own personal capacity and that involves the opinions, recollections and/or information provided by such contributors, and which does not necessarily reflect the official policy or position of this website. Barry Goldstein is a nationally recognized domestic violence author, speaker and advocate. He is the author of five of the leading books about domestic violence and child custody including The Quincy Solution: Stop Domestic Violence and Save $500 Billion. Barry is the research director for the Stop Abuse Campaign and co-chair of the child custody task group for NOMAS. He has served as an instructor in a NY Model Batterer Program since 1999 and serves on the Editorial Advisory Group for DomesticShelters.org.