Gender, Psychology, and Justice: The Mental Health of Women and Girls in the Legal System - Linda Wolfe 2014
Women and Family Court: Abuse and Contested Custody
Women and Girls in Various Justice Settings
Julie R. Ancis
I expected the judge to listen to all sides of the case. This was my opportunity to have my side heard and understood. Finally, a place where professionals who deal with this kind of thing would hear me out and make decisions in the best interest of my children and family. I couldn’t be more wrong.
—Mother in contested custody case, 2012
Most contested custody cases are eventually settled out of court, but a subset are essentially prolonged battles. These are the approximately 5 percent of custody cases that the courts view as high-conflict cases. Abusive ex-spouses often use family court litigation to continue to control and harass their former partner (Ancis 2012, 2015; Jaffe et al. 2008). Similarly, a Department of Justice study found that high rates of domestic violence exist in families referred for child custody evaluations (Saunders, Faller, and Tolman 2011). It is estimated that 90 percent of contested custody cases involve abusive fathers (Hannah and Goldstein 2010).
Understanding the sociocultural context of women’s experiences in family court, especially those who are subject to abusive ex-partners and -husbands, is essential to comprehending the ways in which gender intersects with other identities to impact women and children’s legal status and well-being. Effective and sensitive approaches in such cases require a level of education and training that most mental health professionals and justice officials do not receive. Consequently, ineffective and sometimes harmful decisions and interventions are implemented, resulting in secondary and tertiary trauma for women and children. While all states have statutes requiring that the child’s best interests be considered in custody and visitation decisions, a lack of understanding and bias with regard to abuse and related dynamics prevent the implementation of practices that are truly in the best interests of children and families. This chapter includes qualitative data from several studies of women who have engaged in divorce and custody proceedings. Quotations are used to illustrate themes and salient issues that arose in in-depth, semistructured, and open-ended interviews with women litigants (see Ancis and Watson 2016; Watson and Ancis 2013).
Intimate Partner Violence and Family Court
Women who decide to leave an abuser frequently do so in order to protect their children from the deleterious effects of an abusive environment (Bryan 2006). When leaving an abusive relationship, women often seek justice and protection from the legal system. Specifically, women who are married to abusive partners may seek a divorce and, if they are mothers, custody of their children. Often, however, the tactics of power and control experienced in relationships with abusers may continue to manifest during the dissolution of the relationship and pervade legal proceedings (American Psychological Association [APA] 1996; Neilson 2004; Pagelow 1993; Stahly 1999). The legal system quickly becomes another avenue and arena through which her abuser may perpetrate abuse (Taylor, Stoilkov, and Greco 2008).
Although the legal definition of abuse differs according to jurisdiction, intimate partner violence (IPV) is generally defined as behavioral patterns intended to assert or gain power and control over another (Shipway 2004). Broadly defined, IPV is not limited to physical assault, and may also encompass sexual, emotional, and economic abuse. Emotional abuse is commonly perpetuated by those with particular personality characteristics, which often include a disregard for and a violation of the rights of others, manipulativeness, deceitfulness, and a lack of remorse. Women who leave abusive relationships and are subsequently involved in prolonged and contested custody cases frequently describe ex-partners as possessing such qualities and related behaviors, behaviors that are then manifest in divorce and custody proceedings and beyond (Ancis 2012). Custody proceedings are fertile ground for the continuation of abusive maneuvers and tactics.
Moreover, many women perceive such adversarial tactics on the part of abusive and controlling exes as motivated by spite and vindictiveness, or as punishment for their leaving the relationship (Watson and Ancis 2013).
He just really wants to punish me and keep me out of her [daughter’s] life. And he was able to use the court to continue abusing me and to get power over me again. . . . This is about revenge; he wants to punish me to get back at me, and the best way for him to do that is to take what was most important to me away. And not only that, even though he’s done it, he’s still not happy. He still wants control over me. It’s like he hasn’t let go of me. Not that he loves me and wants to be married to me, but he’s very invested in being able to abuse me. (Lea, age 42, White woman)
There exist a number of ways in which abuse dynamics may continue during legal proceedings and beyond. Former husbands/partners may prolong the case through unnecessary emergency hearings, fail to supply appropriate documents, thereby leading to delays and repeated requests, and seek an increase or decrease in child support (depending upon who was the recipient). Women also describe intimidation and/or harassment tactics such as receiving hateful emails from ex-partners (Bryan 2006; Watson and Ancis 2013).
One common tactic abusers use in family court may include seeking full custody even when they were relatively absent or uninvolved as a parent (Araji and Bosek 2010; Bancroft and Silverman 2002; Watson and Ancis 2013). This tactic is often effective, as women are less likely to report abuse to authorities for fear of losing their children (Kaser-Boyd 2004). Many tactics, such as prolonging the case and pursuing full custody, are perceived as attempts to get the mothers to acquiesce and agree to unfavorable terms, especially financial terms. Custodial challenges pursued by abusive partners may be motivated by financial gain so that the economically disadvantaged and abused wife will be required to pay child support (Gender Bias Study of the Court System in Massachusetts [Gender Bias Study] 1990; Stahly 1999). Abusive former husbands/partners who are granted full custody often attempt to limit mothers’ visitation.
Bias in Family Court
A number of studies have demonstrated that relative to men, women are largely disadvantaged during divorce and custody disputes (Bemiller 2008; Heim et al. 2002; Johnson, Saccuzzo, and Koen 2005; Kernic et al. 2005; Neustein and Lesher 2005; Stahly et al. 2004). Several major studies (e.g., see Araji and Bosek 2010; Dragiewicz 2010; Saunders et al. 2011; Voices of Women Organizing Project [VOW] 2008) have described the particular gender bias and injustice that abuse survivors encounter within divorce and custody disputes. The legal system’s response to domestic violence and abuse has historically been poor (Muraskin 2012), leaving victims without sufficient protection. Family courts have been described as “badly in need of oversight and repair” (VOW 2008, 5) as they have become places in which protective mothers experience secondary trauma.
Studies related to domestic violence and contested custody cases in a number of states (e.g., Alaska , Pennsylvania , Arizona , Massachusetts , and California ; see Araji and Bosek 2010) consistently demonstrate that within family courts, women’s credibility in terms of abuse allegations was frequently questioned; evidence of abuse was disregarded, minimized, or ignored (e.g., attorneys neglected to mention abuse during cases); and women were not allowed to speak, be heard in court, or discuss domestic violence or child abuse. Women also encountered double standards for parenting (e.g., noninvolved fathers were frequently awarded custody while mothers who had been primary caretakers had to painstakingly prove parental fitness); and women were often punished for violating “friendly parent” assumptions (i.e., the premise that each parent should provide the opportunity for the other to have a loving and open relationship with the opposite parent) when reporting abuse during divorce and custody disputes (Dragiewicz 2010). As a result, decisions were made that placed children in danger (e.g., unsupervised visitation with abusive ex-partners was granted).
These findings are consistent with the pervasive biases and erroneous assumptions held by court personnel. These include beliefs that women are prone to make false allegations of abuse in custody disputes and that women tend to be emotionally unstable. Despite scientific evidence that supports their claims, women who assert allegations of child or spousal abuse are often viewed by court personnel as angry, vindictive, and overly emotional (Danforth and Welling 1996).
In fact, research suggests that fathers are more likely than mothers to make false accusations of child abuse in divorce and custody cases (21 percent versus 1.3 percent) (Bala and Schuman 2000); that childhood abuse claims are not more common in divorce and custody disputes than in other cases (Brown et al. 2000); and that childhood sexual abuse allegations in custody disputes are rare (less than 2 percent) (Thoennes and Tjaden 1990).
The Important Role of Custody Evaluators and Guardians ad Litem
Custody evaluators, also known as guardians ad litem (GALs), or special masters in some states, often play a central role in the divorce and custody disputes. They are responsible for conducting assessments, evaluations, and recommendations related to custody and visitation. Judges routinely rely upon GALs and custody evaluators to make recommendations in the “best interests” of the child(ren) (Bryan 2006). No standard definition of best interest exists. Thus, a uniform operationalization of this construct by researchers as well as practitioners is lacking (Krauss and Sales 2001). Nonetheless, all states, the District of Columbia, American Somoa, Guam, the Northern Moravia Islands, Puerto Rico, and the U.S. Virgin Islands have statutes requesting that the child’s best interest be considered in custody and placement decisions (Child Welfare Information Gateway 2013).
The parameters of the role of GALs are not always clear, which has led to some frustration and confusion on the part of attorneys and litigants. Similarly, statutes or codes regarding the best interests of the child vary from state to state, permitting custody decision makers wide discretion (Hall, Pulver, and Cooley 1996). Qualifications, education, and training requirements differ from state to state. While most states require some sort of training, this training remains relatively limited, ranging from several hours to a couple of days (Ancis 2015).
Due to bias and a lack of training and education, it is not uncommon for custody evaluators to draw faulty conclusions when conducting evaluations/assessments. Evidence regarding the child’s well-being, including academic and social adjustment, is ignored. In some cases, important information such as that related to the child’s age or attachment to the mother is not considered.
A major issue that emerges in assessments and evaluations involves a lack of understanding or consideration of abuse. In some cases, the father’s abuse is not taken into consideration or mentioned in GAL reports, and joint custody is recommended or custody is given to the abuser (Ancis 2012; Saunders et al. 2011).
Custody evaluators’ negative stereotypes about women and myths about abuse in the context of divorce and custody disputes often contribute to biased and unjust outcomes in family court. Custody evaluators who believe that mothers’ allegations of domestic violence (DV) are false also tend to possess other related beliefs, such as that DV survivors alienate children from the other parent; that DV is not an important factor in making custody decisions; and that DV survivors falsely allege child abuse (Saunders et al. 2011). Beliefs in patriarchal norms (i.e., women have reached equality with men) and social dominance (i.e., social hierarchies are good) are related to beliefs that alleged DV victims make false allegations and alienate their children, and that fathers do not falsely allege abuse (Saunders et al. 2011).
Moreover, custody evaluators who believe that DV allegations by mothers are false also tend to believe that children are hurt when survivors are reluctant to coparent (Saunders et al. 2011). Women who attempt to limit or block their exes’ repeated harassing behavior may be seen as discouraging communication for the sake of the child. Thus, the whole context of abuse is discounted and the protective parent is blamed.
Evaluator hypotheses about the causes and consequences of DV relate to custody beliefs. Custody evaluators who consider a husband’s coercive-controlling behavior are more likely to view DV as the cause of a mother’s psychological symptoms. They are also more likely to believe that DV is important in custody decisions, that mothers do not make false allegations, and that victims do not alienate the children (Saunders et al. 2011).
The limitations of GALs’ training have been criticized (Ducote 2002), as competent assessments of children and families typically require years of study in areas such as family dynamics, child development, testing, interviewing, diagnostics, and case conceptualization. Moreover, an understanding of cultural diversity and the way issues of race, ethnicity, gender, socioeconomic status, and sexual orientation intersect with family dynamics is crucial to sound assessment (Ancis 2004; Ancis and Jongsma 2007). In addition, issues of child abuse, personality disorders, physical disability, and substance abuse have a potentially profound impact on family systems. The limited training and experience in these areas may lead to suspect decision making (Bryan 2006; Greenberg and Shuman 2007).
Women who have been subject to lengthy custody disputes with custody evaluators describe how GALs’ conclusions do not fit with their assessments or do not take into account relevant research (Ancis and Watson 2016).
I mean it’s like . . . she would state something in her report that favored me entirely, and the end result was like, um, oh but we’re gonna give it to her father. It’s like what?! (Rita, age 43, White mother who lost custody of her children)
Psychological Theories and Assumptions That Have Informed Justice Officials and Mental Health Practitioners
Many theories and assumptions about women in general, abused women, domestic violence (DV), and the needs of children have informed the responses of the justice system and mental health professionals. Unfortunately, some of these assumptions and theories are unfounded, unsubstantiated, and harmful (Neustein and Lesher 2005).
Most importantly, women’s responses to abuse and violence are often misunderstood and misinterpreted. The tendency to minimize abuse within the court system, despite the above findings, serves to facilitate and encourage power and control tactics perpetuated by former partners. The particular personality characteristics of abusive former spouses and partners and the impact of abuse on women often lead the aggressor to be perceived as calm, cool, level-headed, logical, and believable, and the victim to be perceived as unbelievable, unstable, and overly emotional. Traumatic symptoms experienced and manifested in response to abuse may be viewed by court personnel (e.g., judges, attorneys, psychologists, GALs) as evidence that women are unstable and ineffectual parents, thereby resulting in custody being awarded to abusive spouses, some of whom are skilled at portraying themselves as virtuous and, ironically, as victims (Stahly 1999). Similarly, discrediting tactics tend to feed into preexisting gender biases that judges may possess (Harrison 2008; Winner 1996).
In fact, research has suggested that psychological profiles of abused women tend to demonstrate elevated scores on the Depression, Psychopathic Deviate, Paranoia, and Schizophrenia subscales of the Minnesota Multiphasic Personality Inventory—2 (Erickson 2006; Kahn, Welch, and Zillmer 1993; Rhodes 1992). Once they have established safety, however, their scores on these subscales return to those associated with general norms (Kaser-Boyd 2004).
Characterizations of protective parents as “vindictive,” “hysterical,” “paranoid,” “manipulative,” and the trash-can diagnosis of “borderline” perpetuate a belief that women should not be believed or have their concerns considered as valid. Such characterizations and pseudoscientific terminology are used to deflect or deny concerns about abuse and neglect. Expert evaluations in family court often refer to protective mothers as unstable, “paranoid-delusional,” narcissistic, and histrionic (Neustein and Lesher 2005). Such characterizations are used to rationalize a loss of custody and even visitation (Neustein and Lesher 2005). Protective parents are portrayed as fabricating and likely to continue to “undermine” children’s relationship with the father.
Mediation interventions, use of the “friendly parent” standard, and the demand for cooperation between biological parents are not only ineffective but potentially harmful. Instead of understanding that protective mothers have valid concerns about children’s safety, women are sent the message to “get over it,” ignore or deny their concerns, and encourage a friendly relationship between the children and their father no matter the circumstances.
A particularly harmful diagnosis that has been used to trump allegations of abuse is Parental Alienation Syndrome. Parental Alienation Syndrome has been generally defined as a child’s denigration of a parent without justification. The creation of Parental Alienation Syndrome, otherwise known as “PAS,” is partly the result of two major trends: (1) a backlash against sexual-abuse survivors who disclosed the abuse and (2) an increase in the divorce rate in North America when both parents and child custody assessors became more likely to notice signs of child abuse (Caplan 2004). In recent years, use of the term “PAS” has been extended to include cases of all types in which a child refuses to visit the noncustodial parent, whether or not the child’s objections entail abuse allegations.
Richard Gardner (1985, 1987), the creator of the concept and term, argued that the majority of children in child custody litigation suffered from the so-called disorder of Parental Alienation Syndrome. His focus was almost exclusively on mothers turning a child against the father, allegedly in order to obtain or retain custody of the child. According to Gardner, “evidence” of PAS includes a parent who refuses to force the children to visit their father (even when an abuse allegation is still being investigated) or a mother’s and/or child’s hesitancy to be interviewed in the presence of the father, the latter being alleged to result from manipulation by the mother. Children’s inability or unwillingness to provide details of abuse is also used as evidence of PAS, even though that inability or unwillingness could actually be related to trauma reactions or fear of retaliation by the abuser, possibilities not acknowledged by Gardner. Gardner claimed that many reports of child sexual abuse in the context of divorce cases were false allegations, a belief unsubstantiated by research (Meier 2009).
Gardner’s (1998b) questionable ethics and clinical judgment are reflected in the following: (1) he recommends joint interviews with an accused father and child in which the father directly confronts and “cross-examines” (242) the child about the allegation, and (2) he interprets a child’s overt expression of fear of possible retaliation by the father as evidence of the child’s embarrassment about lying rather than as possibly a valid fear of a truth-telling child whose father is abusive.
Despite the fact that PAS has been discredited by the American Psychological Association (APA), the National Council on Juvenile and Family Court Judges (NCJFCJ), and every major legal and psychological body as unscientific, the construct continues to be utilized in court so that the accuser’s sanity and parenting ability are questioned, and the rights of the “alienated” parent become the focus of the case, rather than the needs of the child (Caplan 2004). Sometimes the PAS construct is used under a different label, such as “Malicious Mother Syndrome” (MMS) (Turkat 1997), “parental alienation,” or just “alienation” (Goldstein 2016).
APA’s authoritative “Report on Violence in the Family” pointedly criticizes the misuse of PAS in domestic violence cases and unequivocally finds that there is no scientific evidence of such a “syndrome.” In 1996, the APA Task Force on Violence and the Family published a widely disseminated and relied-upon report titled “Violence and the Family.” It is based on a comprehensive review of the literature and research on violence in the family. The report states, among other things,
When children reject their abusive fathers, it is common for the batterer and others to blame the mother for alienating the children. They often do not understand the legitimate fears of the child. Although there are no data to support the phenomenon called parental alienation syndrome, in which mothers are blamed for interfering with their children’s attachment to their fathers, the term is still used by some evaluators and courts to discount children’s fears in hostile and psychologically abusive situations. (40)
Because of the PAS tactic, abused children have been placed in the hands of their abusers. According to the Leadership Council, each year, over fifty-eight thousand children are ordered into unsupervised contact with physically or sexually abusive parents following divorce in the United States. It has been reported that the PAS strategy was used in a large number of these cases. Women who speak up about a father’s abusive behavior and are not viewed as promoting a positive relationship between a child and the father risk such a scenario (Hannah and Goldstein 2010). Courts fail to recognize valid complaints about domestic violence and sexual abuse as a result of discredited theories such as PAS and related practices. As a result, alleged abusers are given custody of the children, and protective mothers are limited to supervised visitation or no visitation (Goldstein 2016; Saunders et al. 2011).
She did find him [i.e. the father] in contempt on four counts and found him to be abusive in front of the child, and that he was a poor role model, and a bunch of other things, and that he was stalking, harassing, and abusing me. And she stopped the visitation because there was an open child abuse investigation. And that child abuse investigation was for a head injury, and they did have findings of abuse, which has been completely swept under the table where they said that his explanation of the head injury was not plausible. And they said there were findings of abuse. So we have findings of abuse, and they’re still threatening with parental alienation. (Sue, age 47, White mother)
Other unsubstantiated and unscientific theories that women have brainwashed or used their children to spite their exes, gain attention, or project their sexual frustrations have been promulgated in family court. This includes accusing protective mothers of psychosis or paranoid delusions in the area of sexual abuse even when there is no history of such diagnosis or no indication that such a diagnosis exists in otherwise high-functioning women (Neustein and Lesher 2005). Invoking mental illness when a protective parent makes abuse allegations and then punishing her by taking away custody and/or visitation is unique to family court. A mental illness diagnosis indicates that her beliefs about sexual abuse are directly correlated with actions designed to prevent a relationship between the children and father, no matter the results of an assessment of abuse. That is, she has no control over her actions, as she is mentally ill. The effects of such diagnosis are devastating.
Specific Social and Psychological Concerns
The social and psychological costs of divorces and custody disputes, particularly with an abusive ex, are profound. A study of women’s psychosocial experiences, during and after divorce custody disputes, revealed a range of psychological reactions (Ancis, Neelerambam, and Watson 2009). Emotional disempowerment was prevalent during the dispute. Depression, lack of hope, feeling a loss of control, frustration, and constant anxiety were common reactions. Increased vigilance was also common. This included the sense that one’s life was being examined under a microscope. Women described having to be very careful about their behavior, their words, and their interactions with others, including their own children. This reaction was common even among women who had been on the receiving end of infidelity and abuse. Women tended to feel that those making important decisions held them to a higher standard. Attorneys emphasized that their behavior had to be “lily white,” which was further confirmed by their experiences with custody evaluators and psychological and courtroom experiences.
The stress associated with potentially losing custody of one’s children often left women questioning themselves and in a constant state of anxiety. Self-blame was prevalent among abused women, particularly when dealing with a system that denied or questioned whether the abuse actually occurred, as well as downplayed the psychosocial significance of such abuse. Those who lost custody were emotionally devastated.
When I lost the custody after that emergency hearing I just felt like, it’s hard to even put into words what I felt like, but it was like she died. I was so, it was just beyond horrible. And I remember that night I went into her room and I was laying in her bed in her room and just feeling like my life was forever changed, and my daughter has been taken away from me and given to this horrible, abusive man and I can’t even protect her anymore. . . . I just wanted to die. The pain was just beyond anything; it was so horrible. And I feel like, I mean it’s probably horrible to lose custody anyway, but the fact that I was so in fear for her life and her mental well-being because she was with this man that I had tried to protect her from and I couldn’t. (Rachel, age 42, White woman)
Mounting attorney and legal fees served as a constant source of stress. Limited finances prevented women from taking a more offensive position or even defending themselves adequately. Difficulties with work were also prevalent. Decreased work performance was related to fatigue, loss of concentration, and time and energy spent in legal matters.
Custody disputes were particularly stressful, as participants had assumed the majority of the parenting responsibilities. Many described their exes’ pursuit of custody as a form of retaliation for the participant initiating the divorce, or as a financial bargaining tactic. Furthermore, divorcing women’s low self-esteem and psychological trauma made them more vulnerable to their husbands’ and attorneys’ attempts to influence them and thus more likely to accept unsatisfying or grossly inequitable offers, perhaps in an effort to avoid being revictimized, a result also described by Bryan (2006).
For many women, the conclusion of the process felt liberating. While some women described relief that the legal dispute was over, those who lost custody reported continued pain and distress. Participants described increased feelings of depression, low self-esteem, self-doubt, and distrust of others. Some described anger and difficulty coming to terms with the outcome of the proceedings.
Women described a lack of trust and disrupted interpersonal relationships after the process, as well as the inability of others to understand their experience. Participants, especially those who lost custody of their children after being the primary caretaker for many years, described changes in their relationship with their children. This extended into relationships with individuals in the community that were previously based on family events and activities. They described the loss associated with fractured ties with their community.
My relationships really waned because you don’t really have a lot of free time, and then when you’re in the thick of it, you don’t really feel like talking about it because you’ve talked about it until you’re blue in the face with your attorney, you’ve had to write it down, you’ve had to think about it, you’re confronting it on a daily basis; and so you just want the world to kind of go away. (Trina, age 43, White woman)
For many participants, the legal dispute left them in financial straits. The financial debt made it difficult, if not impossible, to pursue future legal issues as needed. Some found it difficult to maintain financial security and experienced guilt because of an inability to afford certain things for their children.
Physical difficulties both during and after dispute included a general deterioration in health and irregular eating habits and sleep patterns. The women also described changes in their weight as a result of stress and as a protective measure.
Gender and Multiculturally Sensitive Strategies
This chapter outlined the ways in which abusers perpetuate the dynamics of power and control in family court; the pervasive gender bias in family court; and the use of unscientific psychological theories and assumptions about women, particularly as pertains to survivors of domestic violence or those who allege sexual abuse. The chapter also described the role of GALs and other custody evaluators and the psychological and behavioral effects for women in prolonged custody cases.
Below are recommendations for mental health professionals and court professionals who often are called upon to assess, evaluate, counsel, consult, or provide expert testimony in such cases.
Recommendation #1: Avoid cookie-cutter approaches.
Family court recommendations often rely on formulaic, cookie-cutter approaches to custody and visitation schedules. Some jurisdictions have guidelines and suggestions for custody determinations and visitation schedules, or parenting plan guidelines, that are ostensibly based on research but that are arbitrary. Even when research on children is presented, the suggested parenting and scheduling options are not necessarily empirically based or directly linked to empirical research. For example, while a three—five-year-old may be able to tolerate longer periods of separation from attachment figures than a two-year-old, how this may translate to alternate weekends and one evening a week for a noncustodial parent is unclear. The degree to which the context or particular circumstances (e.g., abuse, violence, neglect, or who the primary caretaker has been) are factored into the plan is often left to the discretion of the custody evaluator and, finally, the judge. So, an infant whose primary caretaker has always been the mother, for example, may now be shuffled back and forth on a regular basis, thereby disrupting the attachment bond between the child and his/her primary caretaker.
At base is the need to truly consider the best interests of the children, as is the supposed standard in many jurisdictions. The APA Guidelines for Child Custody Evaluations in Family Law Proceedings (2010) indicate that psychologists strive to base any recommendations on the psychological best interests of the child. Issues such as who is the primary caretaker, to whom is the child most psychologically attached, what will be the impact of separating the child from his or her primary attachment figure, and what are the short- and long-term psychological and physical costs of granting access or custody to an abuser are essential to consider. Such questions put the child’s well-being first.
Recommendation #2: Be cautious about pathologizing.
There is a tendency in family court to psychologize and pathologize survivors of abuse and mothers of survivors rather than to identify perpetrators and hold them accountable. PAS, for example, shifts attention away from the potentially dangerous behavior of the parent seeking custody to that of the custodial parent. The person who may be attempting to protect the child is instead presumed to be lying and emotionally poisoning the child. A mother’s normal and valid responses to custody disputes, especially when there is abuse, is often taken as further evidence of her instability, vindictiveness, and hysteria. Legitimate and valid reactions to stress and trauma, such as abuse and custody disputes with abusive ex-partners/husbands, particularly when one is the primary caretaker, are often seen as proof of women’s instability and are used to rationalize a change in custody. Moreover, court personnel are unduly persuaded by manipulative former spouses (Gender Bias Study 1990; Meier 2009; Winner 1996).
Mental health professionals and justice officials need to educate themselves about the dynamics of violence and its potential impact on a protective parent’s emotional and behavioral response so as to not unduly pathologize women. Most women in divorce and custody cases do not falsely claim abuse. Rather, abuse is often the impetus for divorce. Women who are still married when disclosure of child sexual abuse occurs are often advised by protective services to take the child, leave the abuser, and file for divorce. So, often, disclosure of abuse leads to divorce, not the reverse.
Recommendation #3: Understand the research on women, domestic violence, child abuse, and impact on children.
The relationship between childhood sexual abuse and a host of symptoms in children, including posttraumatic stress disorder, behavior problems, and poor self-esteem, has been established (see Kendall-Tackett, Williams, and Finkelhor 1993). Moreover, childhood emotional abuse and neglect predict emotional and physical distress as well as lifetime exposure to trauma in adult women (Spertus et al. 2003).
Despite the fact that research also demonstrates a relationship between witnessing adult domestic violence and a host of behavioral, emotional, and cognitive-functioning problems among children (Edleson 1999), family courts often minimize the harmful impact of children’s witnessing violence in the home (Hannah and Goldsten 2010). In fact, judgments about custody and visitation have ignored the impact of domestic violence on custody decisions or have minimized the effects of abuse (Araji and Bosek 2010; Hannah and Goldstein 2010).
Mental health professionals and justice officials must be educated about abuse, violence, and its impact on parenting. Batterers often increase their use and threats of violence during and following custody actions (Hart 1998). So, contrary to a common misperception among courts, parents’ separation does not end the violence. Moreover, mental health professionals and courts must understand the immediate ill effects on children of witnessing domestic violence, as well as the long-term effects. Courts must be careful that friendly-parent provisions or other best-interest factors not be given greater consideration over domestic violence as a factor in custody decisions (Hornsby 2010). The National Council of Juvenile and Family Court Judges (NCFJCJ 1994) and the American Bar Association (1994) have both recommended placing abuse of one parent against another over other best-interest factors in contested custody cases. If this recommendation is followed, joint or sole custody would be denied to a person with a history of DV.
Recommendation #4: Understand the limits of evaluations.
Child sexual abuse may take a long time to uncover. In the majority of cases, there are no overt signs. Fondling and inappropriate touch do not reveal themselves in obvious ways. Moreover, children are often threatened not to disclose abuse. Abusers may keep children silent by saying things like, “Don’t tell mommy about this. She will get mad at you. You won’t get to see me anymore if you tell, and I will be mad at you.” “I love you; we have a special relationship that others would not understand.” The manipulations of abusers teach children to associate abuse with love and affection. Threats are also invoked, such as “I will send your dog away if you tell anyone.” Denial and disassociation are common among abused children, which can result in a range of unpredictable reactions (Corwin et al. 1987). Fear, self-blame, and difficulty talking about the abuse are some of the reasons why victims do not disclose.
Understanding child development and related cognitive levels of children is essential for those interviewing or counseling children. Unfortunately, those with limited to no training in child development who interview children may misinterpret the child’s expressions. Children’s concrete thinking or lack of ability to think abstractly impacts responses, as does their sense of time.
In cases of alleged child abuse, it is important to order a comprehensive evaluation by a competent professional specializing in child sexual abuse. Interviewers must be able to understand the ways in which children’s developmental stage, as well as the context and process of forensic interviews, influence whether and how children disclose abusive experiences (Fivush and Shukat 1995; Lamb, Sternberg, and Esplin 1995; Walker 1993). Careful analysis and attention to scientific rigor is needed. A one-time, fifteen-minute assessment, which is often all that overburdened, underresourced court systems can manage, does not suffice. Moreover, each situation needs to be judged on a case-by-case basis.
Recommendation #5: Be aware of cognitive bias and consider alternative explanations.
Research on heuristics and cognitive bias offers insight into the types of mistakes and misinterpretations that custody evaluators may make. For example, confirmatory bias may occur when an evaluator develops a hypothesis early in his or her process, finds data to support it, confirms the hypothesis, and then stops testing it against new or different data that might undermine the hypothesis or effect a change of mind.
It is important that evaluators remain open-minded about the possibility of multiple explanations for events. For example, in many custody disputes, it is assumed that a child who is estranged from one parent was unduly influenced by the other parent. However, children may have valid and significant reasons to be fearful or angry (NCFCJ 1994). That is, they may be reacting to a violent, neglectful, or abusive parent (Kelly and Johnston 2001).
Faller (1998) has written that PAS fails to take into account alternative explanations for the child’s and the mother’s behavior, including the veracity of allegations and the mother having made an honest mistake. For example, a parent who refuses to force the children to visit their father (even when an abuse allegation is still being investigated) or does not “cooperate” with a court-ordered assessment is assumed to be involved in PAS rather than possibly perceiving accurately or even reasonably believing that the father or assessor may be biased against her child. Continual testing and checking one’s assumptions and remaining aware of potential biases are of primary importance to informed and ethical decision-making practice.
Recommendation #6: Do not rely solely on expert opinion.
Although expert testimony is often useful, decision makers need to do their homework rather than rely uncritically on experts’ views. This is particularly true in fields such as psychology and psychiatry, where even experts have a wide range of differing views, and professionals sometimes offer opinions beyond their expertise. An overreliance on experts who offer options that overstep the boundaries of their knowledge and competence and do so with the impression that their views are empirically validated is dangerous. Moreover, experts who rely on outdated and unfounded theories and assumptions are all too common. Their reliance on attorneys and courts for referrals and evaluations often creates a type of dual relationship that limits or interferes with objectivity.
Interestingly, while the majority of judges and attorneys prefer psychologists to social workers as custody evaluators (Bow and Quinnell 2001), social workers are more likely to believe that DV is an important factor when making custody-visitation decisions and that victims do not make false allegations, alienate children, or hurt them when they resist coparenting (Saunders et al. 2011).
Coupled with the limited training, another problem is that there is no accepted body of standards and guidelines or uniform model of practice that all GALs must follow (Ducote 2002). Practice guidelines developed by the Association of Family and Conciliation Courts (AFCC 1994) and the American Psychological Association’s (APA) Guidelines for Custody Evaluations in Divorce Proceedings, formulated for psychologists, are “aspirational” in nature and not mandatory. As a result, many authors have criticized the methodology and usefulness of custody evaluations (Melton et al. 1997; O’Donohue and Bradley 2006).
Training in DV and the dynamics of abuse should be mandatory for all custody evaluators, court professionals, and GALs. This training must go beyond the superficial and include education about the power and control tactics that abusers engage in before, during, and after divorce and/or custody disputes. Other information should include the psychological, emotional, and behavioral impact of abuse on survivors and children, including survivors’ staying with or returning to the abuser for a variety of reasons such as fear of losing one’s children.
Recommendation #7: Promote reform.
Despite reports and articles documenting horrible abuse against child victims of domestic violence, significant reform in custody courts is lacking. Bartlow (2016) and her students interviewed judges and court administrators to explore court reform practices after the deaths of children by abusive fathers. Although the judges interviewed demonstrated substantial knowledge about domestic violence, no reforms were created as they assumed that the tragedy in their community was an exception. Inadequate training and the myth that women often make false allegations compound this belief.
Reforms would include mandatory judicial training in every state on the dynamics of abuse. Judges with little to no experience, understanding, or training are required to respond to domestic violence cases. Some states have specialized courts that handle domestic violence cases, making it more likely that court professionals will recognize patterns within and between cases (Bartlow and Goldstein 2016). Multidisciplinary teams such as those of mental health professionals and child and domestic violence experts are also warranted. Making the health and safety of women and children a priority would help to reduce negative practices that adversely impact their lives.
The chapter has outlined the sociocultural context of women’s experiences in family court, particularly those who have experienced abuse by ex-partners or -husbands. Power and control dynamics experienced in the course of the partnership often continue to manifest during family court proceedings. A lack of understanding of abuse, coupled with myths and unsubstantiated theories, on the part of mental health professionals and judicial officials results in women’s disadvantage in family court. GALs and other custody evaluators often lack training and education in domestic abuse, leading to faulty conclusions and recommendations regarding custody and visitation. Moreover, reform in the custody court system that takes into account scientific research on domestic violence is needed. Empirically informed strategies are needed to minimize the pathologizing of abuse survivors and avoid cookie-cutter approaches to family court decisions.
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