Running Head: FAMILY COURT REFORM 1

Abuse and Children’s Safety in Family Courts Cathryn Couzens Pennsylvania State University

FAMILY COURT REFORM 2

Abstract Family court reform is desperately needed. Children continue to be harmed by abusers rather than protected by courts. This paper examines the ways in which family courts act in a biased manner against women and especially against mothers who allege . Courts take steps to prevent of abuse from being investigated and instead accuse mothers of alienation. Legal abuse in court of women prevents justice and transparency of facts which could protect children. Underlying social psychological concepts are discussed that lead to this bias against women. Methods of control used by abusers and court professionals in family court are presented. Suggestions for policy reform, including statutory changes, are given which have the focus of child safety. Keywords: , child custody, family court, high conflict divorce, child , parental alienation

FAMILY COURT REFORM 3

Abuse and Children’s Safety in Family Courts

Family courts often do not properly investigate abuse claims by mothers in child custody cases, especially where domestic violence is involved. This leads to decisions of custody which harm children and also separate them from their primary safe attachment figures. Mothers and experts in the field have been speaking up about this and fighting for children’s safety for years but instead they seem to be losing ground as more and more states consider equal shared parenting time presumption laws. Family violence has risen after falling for years and the devastating effects are seen on the news frequently: mothers murdered during custody exchanges, mothers and children murdered by fathers, fathers killing children entrusted to them by the courts. Judges have typically followed a standard of “best interest of the child” in determining custody, but this is too open to bias and does not focus necessarily on child safety. Gender bias in family courts often leads to poor decisions regarding child custody. Mothers in divorce proceedings who claim that their husbands are abusive, especially of the children, run the risk of being discredited regardless of the amount of evidence they have. Further, courts frequently remove custody completely from a mother who has alleged abuse, giving full custody to the father. The reasoning is that the mother must be making up the abuse to deliberately punish the father for the divorce. She supposedly just wants to keep the children from having a relationship with their father and is using abuse allegations to do this (Saunders & Oglesby, 2016). However, the same is not done for fathers who allege abuse, which is where the gender bias comes in. The specific term the courts use for this is Parental Alienation or Parental Alienation Syndrome (PAS). This has led to many children being torn from protective mothers and being raised by abusive fathers, to the tune of 58,000 per year (Kleinman & Pollack, 2017). In the more benign cases where there may be “only” emotional abuse, children grow up without their primary attachment figure, and they learn survival coping strategies to deal with the lack of emotional support. Girls frequently turn to self-harm and boys frequently to harming others. In the more severe cases, children may be molested by fathers whom the court deemed safe and many have even been killed. Concepts from social psychology can be used to illustrate the reasoning behind detrimental court policies and to help create policies that ensure that children are protected from abuse as well as ensuring that allegations are investigated fully regardless of FAMILY COURT REFORM 4 which gender parent brings up the concerns. Procedures need to allow for children’s safety while still ensuring that parents are allowed to form a bond with their children. The Problem Family courts have been proven to be biased against women in custody cases especially where there is domestic violence (Meier & Dickson, 2017). All states have passed laws saying that in cases of domestic violence, perpetrators should not get custody. So abusive fathers and their have a vested interest in making sure that situations do not get labeled “domestic violence” cases. To do this, those with this agenda have created an industry in which they educate judges and other court professionals on alternatives to abuse when abuse allegations are brought up. Parental alienation is a common term used. The argument here is that if a mother says her partner has abused her or the children, then she is doing this deliberately to alienate him from the children as a form of revenge for the divorce. Research has shown that very few mothers ever do this, less than 2% (Goldstein, 2014). The vast majority of abuse claims in researched cases prove to be true. The problem is that the court, once alienation is brought up, refuses to investigate abuse claims.

Underlying Social Psychological Concepts Masculinity/Feminity The debacle in Family Court can be looked at through the lens of masculinity and femininity. There is a double standard regarding how men and women are viewed in society and this permeates the court. Historically men were allowed to have power and control over their wives and this has continued in some arenas. Women are seen as less believable and the still present power differential between them and men creates discriminatory practices in family court. Double standard. Hofstede’s cultural taxonomy and the idea of masculinity versus femininity shows that women primarily value social relationships while men place a higher value on personal success (Schneider, Gruman, & Coutts, 2012). But this then becomes a cultural expectation also. Women are expected to be better at relationships and expected to be the peacemakers. Men are expected to be breadwinners traditionally and to succeed in business. In modern American society these differences are shifting but much remains with the system of patriarchy that still exists. Within the Family Court system during a contentious divorce, the FAMILY COURT REFORM 5 dynamic of masculine and feminine cultural differences plays out in how the court professionals view the parties. When the court seeks to divide assets and divide the children for custody, the underlying assumption is that these things are the man’s property. They are part of his success. Most US courts acknowledge the right of women to 50% of the property but a subliminal attitude is that she is taking some of the man’s property. This attitude rarely shows up in standard divorce cases but is a frequent underlying attitude and oft cited argument by male parties in abuse cases. From the feminine side of things, women are seen as the glue of the family. She is the one who was supposed to have kept the family together by her relational abilities. In a way it is seen as a failure on her part that the divorce is happening. The underlying premise is that men have a right to their property and women should be keeping the family intact. This creates a double standard. Even in abuse cases, courts are reluctant to take the man’s property away from him. Children, even those who have been molested, are frequently given to fathers either full- time or 50/50. Power and control of women. When a couple divorces there is always a reason. Infidelity, growing apart, abuse, stressful situations all can lead to divorce. A high percentage of divorces relate to domestic abuse (Goldstein, 2014). As marriage expert John Gottman says, contempt is one of the best predictors of divorce. Treating a partner with contempt includes abusive behaviors such as belittling and constant criticism. Not everyone sees these behaviors as abusive but they range on a continuum. At the far end of the continuum are contemptuous behaviors that include verbal and . One of the causes is a sense of entitlement by the abusive partner. This entitlement relates to how the individual was raised. If he or she was raised in a family where this entitlement was exhibited then it was internalized and became part of their view of the world. Cultures in which men are dominant and have rights to control women teach their sons that this is normal and expected. Women are taught to submit and stay silent. The vast majority of divorces are resolved with mediation and agreements between the parties. Only about 3.8% end up being litigated in trials (Goldstein, 2014). These are considered high conflict divorces, but in reality usually reflect abusive relationships, in which power and control dynamics were used against the woman. These dynamics are also called coercive control. Since most non-abusive men recognize the value of the children living with their primary attachment figure, their mother, they usually do not fight for custody, but instead the FAMILY COURT REFORM 6 parties agree to primary custody for the mother and visitation for father. Litigated cases are those in which fathers have chosen to use the court venue as another way to gain control over the partner that he is losing through divorce as well as to keep control of his children (his property). Many methods of abuse are used to maintain this power and control abuse dynamic. Historical view. There is a lengthy documented history of gender control culturally of husbands over wives. In the past, wife beating to keep her under control was not considered a as long as it was not done on Sunday. The rule of thumb said that a man could not beat his wife with a rod thicker than his thumb (Goldstein, 2014). Such were the guidelines of male/female interaction. In the modern era, US culture has seen the atrocity of such violence and control and laws have been enacted for the safety of women. Physical acts of domestic abuse are now punishable and are made by who previously would have turned a blind eye. Historically, if women spoke up about abuse, they were blamed. There must be something in her behavior that caused her husband to abuse her. Gradually there was a shift to seeing abuse as a two-party problem. Something in the relational dynamic between the couple led to violence. Finally, some communities started holding men solely responsible for their violence toward women and that’s when assaults on women and emergency room visits started to lessen (Goldstein, 2014). Power differential between men and women. But within many systems, such gender biased viewpoints still exist. The gender bias in family courts reveals areas in which women are still allowed to be controlled and domineered. When these volatile cases are treated as “high conflict,” abuse is minimized and conflict is brought to the forefront by the very label. Rather than abusers’ attitudes and behavior being focused on and confronted, professionals hesitate to intervene, assuming this conflict to be mutual and treat it as a private matter between the parties. This has the effect of enabling the abuse and giving the abuser more power. It is assumed by courts that treating the parties equally is the most fair, but in cases of abuse, the parties are not starting from an equal playing field. There has been a power differential for years with regard to finances, decision making, physical strength, earning power, and societal support that all relate to the differences between masculinity and feminity. Traditionally women have been the nurturers of children rather than building up their careers. That has shifted for some women to where they are responsible for both, but culturally the focus still is primarily on women to be responsible for children’s wellbeing. As men have primarily been wage earners, they controlled the finances FAMILY COURT REFORM 7 and had greater earning power. Assuming equality on the parts of men and women leaves men with their greater power in these areas and leaves women to have to struggle for a voice in an arena that values power and money. As women speak out about injustices in court, their voices are squelched and they are punished with gag orders, and removal of their children (Bancroft, Silverman, & Ritchie, 2011). Belief of women as less believable and less trustworthy. While few people would admit this, it seems to be an underlying belief in these custody cases. Both Saunders, Faller, & Tolman, 2011 and Meier & Dickson, 2017 found that mothers’ testimony was consistently given less weight than fathers. This is exemplified in the fact that judges refuse to admit evidence presented by women much more often than they refuse men. Typically, what a man says is given credence. If he claims abuse or alienation by his partner, the onus is on her to prove that’s not true. Whereas if she claims he is abusive, the onus is still on her to prove it and no matter how much evidence she brings, the court may never believe her. The bottom line is that courts disbelieve women who say they’ve been abused and this is more of a mentality than a matter of lack of evidence. To prevent women speaking up about abuse, courts place gag orders on them, impound professional reports so women can’t use what’s in them, and refuse to admit evidence. Judges have barred witnesses from testifying on the mother’s behalf, testifying about abuse, and even testifying to what they’ve seen and witnessed themselves of children in their care (Bancroft, Silverman, & Ritchie, 2011). . Why did she leave him? Why did she stay so long? Why didn’t she take the kids? Why is she only bringing up abuse now? These are all victim blaming questions. The focus is on her rather than on the abuser and why did he abuse. Many of these questions are asked in court by judges who do not have knowledge of abuse dynamics. There are many reasons a woman does what she does and the primary reason is because her gut feeling tells her it’s the safest thing to do in the circumstances. But abusers use these arguments in court to discredit their victims. Since society is well versed in victim blaming of disenfranchised groups, it is no surprise that this shows up in court. Women are frequently blamed for high conflict situations and even for men’s abuse. One victim recently was placed on supervised visitation of her child because the court blames her for the conflict, which in reality is her continuing to speak up about the father’s abuse of the child, documented by photos and videos, but unseen and disregarded by the court. FAMILY COURT REFORM 8

Groupthink Groupthink is a phenomenon whereby individuals tend to converge on the same answer and convince each other of it. Rather than each individual critically analyzing each situation, they feed off of each other and encourage the belief without scientific basis (Schneider et al., 2012). How this is used in the family court system: Richard Gardner coined the term Parental Alienation Syndrome to describe parents, usually mothers, who use alienating behaviors to keep children from forming good relationships with the fathers. His rationale was that women do this deliberately because they are angry at getting divorced. This viewpoint was not scientifically- based but has become the basis for much of family court procedure. Further complicating things, it is frequently used to combat abuse allegations. Mothers who allege abuse either of themselves or of their children are at higher risk of having a claim of PAS thrown at them and of having it substantiated. Court professionals who subscribe to this theory use it frequently. Guardians ad litem, lawyers especially for fathers, judges, and custody evaluators all band together in the notion that this is a viable diagnosis and that they have the ability to diagnose. Professionals who are experts in PAS explain that it is not possible for the lay person to diagnose accurately. Still many court professionals do. Guardians ad litem may suggest that a certain custody situation looks like a parental alienation case and judges will agree. Or lawyers will bring it up and invariably guardians ad litem and custody evaluators will agree. Research on thousands of cases has shown that once parental alienation syndrome is brought up as a possibility on a mother’s part, it is almost always confirmed (Meier & Dickson, 2017). Again, this is done without any expert diagnosis. This groupthink mentality has the effect of a gang of court professionals against a mother and usually much lower paid . There is usually no consideration of other alternatives for what is happening in the situation. Beyond parental alienation, groupthink is seen in the other forms of abuse against mothers in court. In order to discredit her, her mental health may be brought into question. Common diagnoses, especially for abused women, such as depression and PTSD may be used as the basis for claims that she is not a healthy parent. Untrue allegations of mental illness may be levied against her. There are cases in which the father or court professionals have gotten a therapist to diagnose a mother with a mental illness, without even having met her. The most severe of these is Munchausen by Proxy. This is when a parent claims that a child has some FAMILY COURT REFORM 9 disorder, but they are either making it up for their own personal gain, or they legitimately believe it but in error. To combat abuse allegations, this diagnosis is commonly put on mothers. When these diagnoses are brought to court, the court professionals fall into the groupthink mentality and agree with each other even if other evidence disproves these diagnoses. It takes a lot of effort on the part of the mother and her therapist to turn these false diagnoses around, and often they never are. Confirmation Bias Related to groupthink is confirmation bias. Professionals that already subscribe to the idea of parental alienation syndrome and are taught what to look for in trainings sponsored by groups such as the AFCC (Association of Family and Conciliation Courts), quickly see signs in high conflict divorce cases of a mother doing what they call alienating behaviors. As soon as a mother describes some form of abuse they are quick to go to parental alienation. Once court professionals have been trained to see abuse cases as high conflict they start to see conflict everywhere. Every time a new case is brought before the court with a mother claiming that the father abused her or molested the children, court professionals’ see further “proof” of the viewpoints they were taught. Confirmation bias leads them to believe that here is yet another mother trying to alienate the children from the father, and so the abuse claims are minimized or disbelieved. The obvious rational answer for people who are not involved in this at all is: why don’t they investigate the abuse claims first? That’s a question the US Congress has been debating for the last couple years and recently the house passed H. Con. Res. 72 which states that in these cases if abuse is brought up, it should be investigated before determining custody. It’s under the guise of courts should do what is in the best interest of the child, specifically focused on child safety, meaning that if abuse is alleged, it would be in the best interest of the child to investigate the claims rather than dismiss them. Amazingly that has not been happening and a resolution was needed to specifically say that. Individual states will need to pass this as binding law in their own states and create policies specifically giving procedures to follow in these cases. However, enforcement of such a law and getting professionals away from confirming their bias about this will be difficult.

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The Family Court Setting Control in Court Although physical violence against women is now illegal, lesser overt forms of coercive control are not. Methods of control in the court setting are used to denigrate women, financially ruin them, and try to break their will and mental health. Some of these methods include filing vast amounts of frivolous and falsely based motions to keep her in court for years and drain her money so that she will give up. Even after divorces are final, abusive men will take their former partners back to court repeatedly, often only letting up when the youngest child turns 18. Some women have had upwards of 500-800 motions filed against them. Unfortunately, the court does not see that by not stopping this legal abuse, they are contributing to it. Another method to control women is to declare them unfit parents. Using false diagnoses such as PAS and Munchausen by proxy, men can turn the court against mothers and remove their children, thus causing the ultimate hurt to the woman they are now set against. All of these methods are used to continue the control of women that these men feel entitled to. When these methods do not work and the court gives women full custody by seeing the abuse for what it is, some men go further and seek retribution through physical violence. The most common time for women to be murdered by abusive spouses is actually after they have left the relationship and some men continue planning revenge for years. Women instinctively know this and are alert to behaviors. Abuse Allegations It is assumed that proponents of shared parenting laws mean shared parenting between two fit parents. However, many high conflict divorce cases include an abusive spouse. Men who abuse their wives are much more likely to abuse their children (Bancroft, Silverman, & Ritchie, 2011). Abuse of all forms has been shown to have detrimental effects on the development and health of children (Felitti, Anda, Nordenberg, Williamson, Spitz, Edwards, Koss & Marks, 1998). Parents who abuse their children, even verbally or emotionally, are not providing safe nurturing homes for them. Their control in parenting leads to children living in fear of openly talking about their needs as well as teaching controlling behaviors through modeling. None of this is good for kids. In order to determine whether both parents are indeed fit, allegations of abuse have to be investigated. These also need to be weighed alongside aspects of the couple’s relationship that may point to domestic violence or coercive control. If one partner is determined FAMILY COURT REFORM 11 to be abusive or controlling, their control will likely extend to the court process and may lead them to fabricate allegations of abuse or other falsities. If both parents are not fit, then courts do need to decide best interest of children, but this would be rare. Judges generally shouldn’t need to decide what is in the best interest of the children. That’s the job of fit parents. Society usually leaves decisions regarding children up to their parents without undue government interference. How then are judges allowed to completely direct a child’s life? Instead judges should be determining whether both parents are truly fit or not by weighing the evidence, so that they can make decisions for children’s safety. When abuse allegations are brought up, they should be thoroughly investigated by an unbiased court, without regard for which gender parent brought up the concerns. Custody Frequently abusive men insist that their wives stay at home with the children rather than build a career. However, during divorce proceedings they then turn around and insist on joint parenting time or more (Goldstein, 2014). Fathers who were hardly involved in their children’s lives before divorce seek custody after in order to punish the mother for leaving. The abusive man knows that he can hurt his spouse the most by taking away the children or by preventing her from having a relationship with them. This is true parental alienation, but it is rarely used to label the people who do it most: abusive fathers. Instead the court is used against victims through control methods during and after divorce. Many children and even mothers are murdered by abusive ex-husbands. Most of these men had histories of violence and even arrests. One study showed that 95% of spousal murders were preceded by several arrests (Goldstein, 2014). But the family courts did not take those arrests and violent history into account when awarding custody and saw these men as fit parents. Knowledge of Abuse Custody evaluators and judges in general do not understand domestic violence sufficiently to make wise custody decisions in high conflict divorce cases (Saunders et al., 2011). Although they receive yearly training, it is not enough for them to successfully recognize abuse tactics in court and they fall prey to the louder more aggressive more persuasive lawyers (typically higher paid fathers’ lawyers). In cases where mothers have these lawyers, they tend to be successful. Again, this shows the masculinity/femininity divide since most divorces include a FAMILY COURT REFORM 12 higher salaried husband and a lower salaried or non income earning wife. Also, in cases where the wife earns more than her husband, there is a 60% higher chance that he will be abusive.

Custody Reports Gender bias is common in custody reports. There is a greater expectation of mothers to maintain a child’s health than on fathers. Custody evaluators give slack to fathers (for messy apartments, not knowing child’s friend’s names, neglecting to attend to medical needs) while demonizing mothers for less (Goldstein, 2014). Confirmation bias can also be seen in many custody reports when evaluators use their previous beliefs to apply to current situations without fully investigating facts. This leads to custody reports that include falsities, biased reporting, and recommendations for custody that leave children at risk of harm.

Policy Changes Changing Viewpoints In order for changes to take place, those in power must begin to realize how their underlying biases against women form their responses. As people become educated about the ways women have been discriminated against in family court custody cases, they can start to see how they have been complicit. The masculinity/femininity divide, the groupthink mentally of court professionals, and their own confirmation bias prevent them from seeing clearly what the problem is and how to fix it. Among good people who truly desire to help, awareness of this devastating problem brings a passionate energy to enact change. Education can take place through social media, community forums and other methods. Community Response Ultimately having a communitywide coordinated response is the goal. When enough members of a community understand the family court custody problem they can come together to brainstorm ways to solve it. Collaboration between , court professionals, domestic violence experts, the media and mental health professionals can change the culture and, in some communities, has drastically reduced domestic violence and even homicide (Goldstein, 2014). That collaborative response can also be done with family court. The most successful solutions are those in which there was a communitywide response consisting of multiple disciplines such as the court, police and domestic violence agencies. Working together they are able to address abuse and create policies to effectively deal with it. FAMILY COURT REFORM 13

Quincy, MA and High Pointe, NC are examples of this (Goldstein, 2014). While these communities have seen success in lowering incidences of violence, custody courts have continued to make poor judgments and allowed children to remain in harmful situations. Court professionals have not been as ready to join the community wide prevention and response teams. Part of the reason is that they have been trained in handling high conflict divorces and do not see them as abusive. So, the first measure of change needed within courts is extensive training and working hand in hand with domestic violence experts. Training of Court Professionals Court professionals have been trained by the AFCC and other groups to see these cases as high conflict. If they see this as conflict they are less likely to hold abusers accountable. Yet successful communities have found that only accountability and monitoring of abusers succeeds in lowering domestic violence (Goldstein, 2014). So too in family courts, the response needs to be one of holding abusers responsible for their abusive behavior in court without seeing it as a two-person conflict to shy away from. It’s been well documented that family court professionals do not understand domestic violence even though they self-report that they think they do (Saunders et al., 2011). While most judges have had some domestic violence training, this has rarely included the levels of legal abuse seen in these high conflict divorce custody cases. Judges and custody evaluators need to understand how abusers use the court setting to continue to denigrate and control their victims through excessive court motions, false accusations and trying to remove the children from mothers as a punishment. The fathers’ rights movement has entrenched the belief that fathers are necessary in their children’s lives and so they are but not at the expense of safety. Court professionals need training to understand how ACES (adverse childhood experiences) negatively affect children health wise for a lifetime and how they can be complicit in allowing further abuse to continue if they don’t understand abuse and put safety measures in place to protect children. Collaboration with Domestic Violence Experts In order to catch the legal abuse happening in court, judges and court professionals also need to collaborate with domestic violence experts regularly on these cases. An unbiased expert should be present throughout all high conflict divorce trials and should give advice when they see methods of control and abuse taking place that the judge may not recognize. Typically, those trained in domestic violence have been called domestic violence advocates. However, an FAMILY COURT REFORM 14 advocate sounds like they are taking sides and the court doesn’t like to see that. Instead referring to them as domestic violence experts would imply that they could take the evidence in a case and speak to each party and to determine whether an actual pattern of power and control is taking place. Their voice, if respected by the court, can be invaluable in leveling the playing field and calling out the abuse that if not recognized gives the abuser such power over his victim. Statutory Changes H. Con Res. 72 has been passed in the House of Representatives and hopefully is on its way to passing in the Senate. It expresses the wish of Congress that child safety is of the highest concern with regard to custody disputes and that all family violence allegations should be assessed first before considering other matters regarding to custody. It states that all evidence should be allowed following the standards of evidentiary admissibility (H. Con. Res. 72., 2018). Further, evaluation of evidence of abuse should only be done by professionals with documented expertise in the subject matter, and states should consider having these professionals paid directly by the court (instead of by parents which currently sets them up for bias in support of the paying parent). States should adopt language in H. Con Res. 72 regarding child safety and create specific procedures to follow it such as: Evidentiary standards. The trier of fact is the judge or the jury. In family courts, this is usually one judge. Judges have to make decisions based on their rational interpretation of the law and evidence. Evidence should be admitted if it is considered relevant, which means that it would increase the believability of a particular fact to at least a slight degree (Connecticut Code, 2018). Current evidentiary standards (in Connecticut at least) allow broad latitude for a judge to dismiss evidence that seems not relevant. While training of judges on abuse tactics will help, the statute needs changing as well to reflect the dynamic of power and control used in court. Patterns must be looked at, not isolated incidents. If facts are disputed by two parties, judges must determine which view they believe more and thus allow or disallow evidence. However, if they are not knowledgeable of legal abuse tactics, they will not understand the abuser’s methods of continually undermining the reputation of his victim through convincing speeches of his version of events. Believing his story even partly can lead judges to disallow evidence necessary to get to the truth. Statutes need to be changed to include all evidence that shows a pattern of power and control, which can be determined by utilizing the expertise of domestic violence experts. Evidence should be heard and victims should be FAMILY COURT REFORM 15 believed. In criminal court, a victim’s statement is considered evidence. In family court that is not the case. Not only is her word not believed but actual physical evidence that she has is dismissed. Judges frequently do not allow character evidence or evidence of past , stating that these do not apply to the current situation. In criminal court, while most evidence of associated crimes is inadmissible, evidence of sexual misconduct is since it helps prove a pattern. Yet family court judges don’t allow it. Character evidence is not allowed that would support the extended view of a perpetrator of abuse as a future threat since that evidence would damage his image to the court. Yet with abusers, that view needs to be presented. Domestic violence is not a series of isolated incidents. It is a pattern only seen when presenting multiple episodes and multiple methods that all show the underlying power and control dynamics. If judges do not allow evidence of character and related criminal acts, they will miss seeing the pattern. And missing this pattern means they miss the realization that this pattern will continue with further manifestations of power and control over the victim through use of the legal system and using the children to hurt her. When this is seen, the propensity of domestic abusers to hurt children is more likely to be believed. Thus the policy for evidentiary standards needs to be revised to reflect the necessity of taking into account the dynamics of domestic violence. All evidence supporting the overall pattern of control must be admitted. Past behavior predicts future behavior. This must be believed in order to increase protection of children in family courts. Specifying standards of evidence, adjusted for domestic violence patterns, will help judges make decisions on what to allow. As Ray Lautenschlager states, “Judges do not lose their discretion when the evidentiary standard is changed; they get a clearer idea of what they should be doing in making considerations that will affect a child for the rest of their life.” (Lautenschlager, 2017). No gag orders. Judges often do not realize they are biased. When a mom brings up unfair treatment by the court, judges react defensively and seek to silence her allegations by placing a gag order stating that she cannot discuss the court proceedings outside of court (Goldstein, 2014). This lack of openness fosters an atmosphere in which judges can discriminate against women and not be held accountable. In some cases, judges do know what they are doing and are deliberately ruling against women out of their own biases. Policies need to be created stating that gag orders are not acceptable. FAMILY COURT REFORM 16

Professional evaluators. Judges have typically recognized as experts anyone with a masters or doctorate degree who expresses expertise on the subject matter. However, these professionals do not necessarily possess knowledge of the dynamics of abuse, domestic violence or child sexual abuse. In order to evaluate the evidence accurately, evaluators need to be documented experts in the particular field in question. For allegations of child sexual abuse, experts in that field need to be called in to evaluate evidence and do forensic interviews in a fashion that reflects best practice. For example, in this case, children must be able to develop a trusting bond with an evaluator who over time (and several interviews) is able to gain the rapport needed for a child to disclose. It has been current practice for one or two forensic interviews to be done, possibly by different interviewers, and the lack of disclosure used against mothers. The assumption is that no disclosure means abuse did not happen and mother is making it up, but this is not what science shows (Kleinman & Pollack, 2017). No impounding of reports. Once evaluators have made reports available to the court, these should be also accessible to the parties involved. Some parents become pro se, especially mothers as their funds dwindle due to legal abuse. Impounding reports and leaving them available only to court professionals or lawyers prevents mothers from being able to utilize the reports in their own defense. Courts frequently use the reason that they do not wish to leave the children’s names open to defamation, so they wish to keep reports confidential, but this should not include the parents who by necessity require the information in the reports to make their case. Impounding reports, instead of helping children, has allowed them to be further mistreated by courts (Goldstein, 2014). Barring this practice will allow transparency so that allegations are understood and children are protected. Further Reforms Psychological testing. Historically as courts looked to understand abuse cases, they turned to mental health professionals who generally had little or no training in domestic violence (Goldstein, 2014). As standard psychological tests began to be done, they would invariably show mental illness in victims such as depression, anxiety, paranoia and PTSD. On the other hand, abusive men frequently pass psych tests. Abusers started using these results as a way to prove that the mother was unfit and the court should give the father custody. Because of this, some women refuse to take the tests, but then are punished by removal of custody or forced into supervised visitation. This policy of ordering psych tests for both parties in a case of suspected FAMILY COURT REFORM 17 abuse needs to change. The first tests done should be to determine current levels of safety. MOSAIC is a lethality assessment that can determine the level of safety of a victim. If the score is high, there is a high likelihood of the abuser murdering her (Mosaic Threat Assessment, n.d.). Using this as a starting point, courts should implement safety measures such as providing additional security officers to accompany victims and allowing victims to leave the courthouse several minutes before the abuser. Beyond physical lethality, tests should also be done to determine patterns of power and control. These domestic violence screening quizzes include questions to determine emotional abuse. Results from these tests can help the court determine whether domestic violence is present and can corroborate evidence. Personality tests should also be done on alleged abusers since a high percentage of them have personality disorders such as and borderline personality disorder. Understanding these disorders and how they lead to abuse can help courts keep women and children safe. Implement approximation standards. For many years courts followed the tender years doctrine that stated that young children would do best with their mother as primary custodian. As fathers’ rights groups have become more vocal, this has been replaced with a tendency to give parents equal parenting time. However, some experts believe that approximation standards should be used instead. This would include a court figuring out the percentage of time each parent spent with the child pre-divorce and using this as the standard for parenting time post- divorce. The rationale is that children were used to parent/child roles and the primary caretaker should be consistent to avoid disrupting children’s attachment. Approximation standards would remove the argument that the second parent should be more involved post-divorce, which often happens simply to gain more control or to decrease child support payments. The focus here should be on “best interest of child” defined here as “most consistent with pre-divorce parenting time” and “least disruptive to pre-divorce attachments.” Frequently custody is used as a battleground. Fathers (typically) may push for more parenting time since they will pay less in child support. Children are then taken care of by nannies or day care, when they may have previously been in the care of their mother. In extreme (but increasingly more common) custody cases, the mother’s parenting time is removed completely and she is either supervised or forbidden contact with children. This severs the child’s attachment to mother, leading to a host of problems in children down the road. The best presumption should be to keep the parenting FAMILY COURT REFORM 18 time distribution the same as it was pre-divorce. This would remove the conflict over who gets the kids what percent of the time. Supervised visitation. Children's safety should be the first priority. The ACE study has shown the detrimental long-term effects of abuse on children (Felitti et al., 1998). Using this as a standard, procedures should be developed and systems created to keep children safe from abuse. Research has shown that only accountability and monitoring stop abuse (Goldstein, 2014). The best practice for dealing with allegations is to remove the children from the alleged abuser’s care and place them solely with the safe parent (non – alleged abusive) while investigating (Kleinman & Pollack, 2017). Supervised visitation can ensure that the children still maintain a connection to the parent under investigation. Legal abuse tactics need to be understood so that false abuse allegations from the abusive parent are not preemptively levied at the safe parent. Many cases exist in which this happened and supervised visitation was given to the safe parent, while the abusive parent was given no limitations with the children. For some abusers, their desire to control and hurt their spouse will lead them to try to get the kids removed from the mother’s care even if he himself is also receiving supervised visitation. He would rather the children go into foster care than be with their mother. With the courts gender bias of believing fathers more than mothers, one family had the children removed from both parents and placed in the care of the alleged abusive father’s best friend after the court pressured the mother to accept this plan. If abuse is substantiated against fathers, it is oftentimes the plan for them to receive supervised visitation for a time which then leads to unsupervised visitation when they show that they behave okay to the children under supervision. Most abusers are successful at acting appropriately while supervised, so this is not a good measure of change. Instead past behavior should indicate the court’s decision. For fathers where sexual abuse has been substantiated, they should continue to receive supervised visitation. Where there has been a history of other forms of abuse such as emotional abuse, primary custody for the safe parent with every other weekend for the abusive parent may work. The children then would have the benefit of time with both parents, while spending the majority of their time with their safe primary attachment figure, usually the mother. Research has shown that spending every other weekend with their father, for example, can still lead to a strong relationship with him. But if the mother has primary custody and the majority of parenting time, FAMILY COURT REFORM 19 the children will do better (Kleinman & Pollack, 2017). A set up like this allows for interaction with their father while still minimizing the opportunity he will have to undermine their mother or separate the children from her. It also allows the mother the majority of parenting time to instill a value system and help with recovery efforts of the children that an abuser will not do, such as counseling. Many abusers if given joint custody refuse to allow the children to have counseling (Bancroft, Silverman, & Ritchie, 2011). Equal parenting time should only be used in cases where there is no abuse and where both parents were significantly involved in the children’s day to day lives pre-divorce. These would usually be cases where parents have agreed and settled out of court anyway. Conclusion The current family court system has been proven to be discriminatory against women, especially in cases where women allege abuse by their partners. In high conflict divorces, courts too often turn a blind eye to allegations raised of abuse of children. Rather than investigate these claims, courts blame mothers and accuse them of lying, trying to separate fathers from children, or creating conflict. They are frequently punished by removal of their children either in part or completely and given supervised or no visitation. Underlying reasons for this behavior on the part of courts is the cultural view of masculinity and femininity, with the historical and current perceived, but often untrue, differences. Groupthink has the whole court thinking through the lens of parental alienation, rather than viewing other options, such as the possible validity of abuse claims. Confirmation bias also plays a part in judges and court professionals belief system that stemmed from biased beliefs and was reinforced through training. Courts need to be revamped to include better domestic violence training of judges and evaluators and to allow domestic violence experts to be a greater part of the process. Statutory and evidentiary standards need to be updated, as do procedures for when the court encounters a high conflict divorce case. As long as victims are blamed, in whole or in part, for the “conflict,” the abuse will continue, and children’s safety is at risk. Courts, and society in general, need to stop looking through the lens of women being men’s property, being less than men, being more responsible for a family’s well-being. They should be afforded the same rights in family court that are given to men and they should be able to trust that the courts are looking out for their children’s safety above all things.

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References

Bancroft, L., Silverman, J., & Ritchie, D. (2011). The batterer as parent: Addressing the impact of domestic violence on family dynamics. Thousand Oaks, CA: Sage Publications.

Connecticut Code of Evidence (2018). Retrieved from: https://www.jud.ct.gov/Publications/Code2000.pdf.

Felitti, V., Anda, R., Nordenberg, D., Williamson, D., Spitz, A., Edwards, V., Koss, M. & Marks, J. (1998). Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The adverse childhood experiences (ACE) study. American Journal of Preventive Medicine, 14(4), 245-258.

Goldstein, B. (2014). The Quincy solution: Stop domestic violence and save $500 billion. Bandon, OR: Robert D. Reed Publishers.

H. Con. Res. 72. (2018). Expressing the sense of Congress that child safety is the first priority of custody and visitation adjudications, and that State courts should improve adjudications of custody where family violence is alleged. Retrieved from: https://www.congress.gov/bill/115th-congress/house-concurrent- resolution/72?q=%7B%22search%22%3A%5B%22h+con+res+72%22%5D%7D&s=1&r =7

Kleinman, T. & Pollack, D. (2017). Domestic abuse, child custody, and visitation. New York, NY: Oxford University Press.

Lautenschlager, R. (2017). The case for family law reform. Retrieved from: http://www.ohiofamilyrights.com/Reports/White-Papers/Case-for-Family-Law- Reform/TheCase.pdf.

Meier, J. & Dickson, S. (2017). Mapping gender: Shedding empirical light on family courts’ treatment of cases involving abuse and alienation. GW Law School Public Law and Legal Theory Paper No. 2017-43. FAMILY COURT REFORM 21

Mosaic Threat Assessment Systems. (n.d.). Retrieved from: https://www.mosaicmethod.com/.

Saunders, D. G., Faller, K. C., & Tolman, R. M. (2011). Child custody evaluators' beliefs about domestic abuse allegations: Their relationship to evaluator demographics, background, domestic violence knowledge and custody-visitation recommendations. Retrieved from Social Science Premium Collection Retrieved from http://ezaccess.libraries.psu.edu/login?url=https://search-proquest- com.ezaccess.libraries.psu.edu/docview/9728255?accountid=13158

Saunders, D. G., & Oglesby, K. H. (2016). No way to turn: Traps encountered by many battered women with negative child custody experiences. Journal of Child Custody: Research, Issues, and Practices, 13(2-3), 154-177. Schneider, F., Gruman, J., & Coutts, L. (2012). Applied social psychology: Understanding and addressing social and practical problems. Thousand Oaks, CA: Sage Publications.