PITFALLS IN ADJUDICATIONS OF CUSTODY AND ABUSE

Joan Meier, DV LEAPGeorge Washington University Law

School

D.C. Family Court Conference 2009

THREE CAUTIONARY TALES

The O CaseLong history of violence, separationsPAS evaluator treats violence as mutual conflictEvaluator sees mother’s flight to England with

children and allegations of abuse as “shameless alienation”

Repeated complaints of child abuse are “unfounded” by DHS

Court adopts alienation finding; gives custody to father. APPEAL FILED.

O Case, cont’d

Child’s new complaint of abuse is founded by DHS

Court cuts off all visitation with motherFather arrested for felony child

endangerment after recklessly evading arrest with children in truck. Court refuses to change custody

Boy calls police in terror that father may “kill me in my sleep” and father is visibly under the influence

Children are put in foster care

The H Case

Father has “rage attacks” and graphically threatens to kill mother (admits some incidents)

Evaluator does not evaluate dv but finds father harmless; mother has narcissistic personality disorder

GAL: Father not dangerous; mother controlling and factually unreliable

Court excludes expert opinions supporting risks

Court awards joint custody and warns mother against moving away

H Case, cont’d

2-year-old is sexually abused during visits DHS: “unfounded” Neutral child abuse evaluation agency

validates sexual abuse; recommends only supervised visits

Court rejects finding; reinstates unsupervised visits

Child hysterical about having to see her father again; afterwards says disturbing things about his penis and her “gina,” and has bruise on cheek

Castillo Case

Father involuntarily hospitalized for threats of suicide and depression

Mother files for sole custody when father refuses further treatment

Father threatens “the worst thing he could do to [her] would be to kill the children and not [her]”

Father tells evaluator that mother, who was physician with 6-figure salary, had “so much control over me… I was so dependent on her”

Court’s evaluator and father’s therapist find “little evidence” of risk to children (despite “repressed anger”)

Castillo, cont’d

Mother seeks two emergency orders to restrict father’s visits

Court relies on evaluations re risk. Finds mother not credible because she slept with father after threats; and allowed him access to the children

Court denies requests to limit access Mother is held in contempt for denying visit Father drowns the three children in a hotel

bathtub during unsupervised visitation, and tries to kill self. Later admits it was to hurt mother.

NB: Finally pled guilty this month.

What is Happening Here?

1. Disbelief of Women’s and Children’s Fears

Women characterized as vengeful or pathological

Children not listened to - presumed to be brainwashed or coached by mothers

Children’s emotional symptoms ignored or treated as product of brainwashing

Fathers’ emotions and denials seem credible

What is Happening?

2. Trivialization of Domestic Violence

Known violence called “situational,” mutual, or conflict-based and trivialMothers’ attempts to stop the abuse characterized as “controlling”When men denied, women and children were disbelievedChildren presumed to be brainwashedFathers’ documented problems minimized

What is Happening?

3.Evaluators Offered Unscientific Opinions Which Trivialized Abuse

Evaluators who failed to actually assess dv, child abuse, or risk, rejected womens’ and children’s fears

PAS, questionable psychological tests, and personal reactions to the parties were packaged as science (Jaffe, Dalton, NCJFCJ)

WHY?

1. Lack of real expertise in DV/CAStereotypes of batterers don’t fit the

people they are looking at Abusers are expert at eliciting sympathy (Jaffe, Dalton)

Victims may be unappealing/combativeMuch of dv is counter-intuitive (children

may love abusive parents, victims of abuse may accommodate abuser, etc)

WHY?

2. Resistance to Believing Fathers are Dangerous to Children

Powerful felt need for fathersStrong push toward joint custody and

“friendly parents”Denial of unpleasant things is natural Vengeful ex-wife an easier explanationChild sexual abuse is particularly difficult to accept

WHAT ARE THE REALITIES?

1. DV is the norm, not the exception, in custody litigation (Jaffe; Johnston; et al)

80 % of custody cases settle out of court 20 % are filed, but roughly ¾ of these

settle 4 % go to contested custody trialsIt should be no surprise that many of these

involve abuse.

Domestic violence is highly correlated with child abuse (Jaffe, Edleson)

WHAT ARE THE REALITIES?

2. Fabrication of Abuse Claims is Rare

Child abuse research consistently shows vast majority of allegations are in good faith and majority are valid.

Primary fabricators are non-custodial fathers. Children and mothers least likely to fabricate. (Trocme and Bala; Thoennes & Tjaden)

There is no empirical support for the belief that women’s abuse allegations in custody litigation are frequently fabricated

WHAT ARE THE REALITIES?

3. No scientific basis for disbelief or pathologizing of women’s fears

PAS is widely recognized as scientifically invalid (Meier)Gardner had no scientific basis for his theory that

women/children can be convinced of dangers that are objectively non-existent or that they frequently concoct blatant falsehoods about abuse

When evaluators treat women’s and children’s fears as invalid, it is typically based on PAS/PA thinking

In contrast: “Our clients are skilled liars” and adept at “justifying

their actions and making excuses” by shifting blame to their partner (Bancroft & Silverman)

HOW CAN WE DO BETTER? Require expert evaluation of abuse before

full custody evaluation Require evaluators to be genuinely skilled

in adult and child abuse (Ca. model), including lethality assessment

Do not assume women’s allegations of risk are vengeful (rather than protective)

Be suspicious of claims that women’s abuse allegations are pathological, where there is no independent mental illness history

HOW CAN WE DO BETTER, cont’d Don’t forget that partner abuse

undermines the children too (Jaffe), and that batterers are a high risk for abusive/neglectful parenting

Don’t forget that perpetrators of abuse (and victims) come in all classes, races, and walks of life

Remember that credibility can be counter-intuitive in this field – batterers are skilled presenters, and personalities tell you relatively little