American Mothers

When we look at an individual case, it is hard to be sure the decision is wrong without a careful review of the record. In most cases mothers are pathologized or demonized in order to create the appearance of a justification for the extreme actions taken. When the bad decisions backfire in a way that demonstrates even to the courts that the wrong decision was made, the defenders of the courts like to believe these cases constitute the exceptions to the usual good job done by courts. There is now a large body of research about these cases that show there are too many cases with extreme results and flawed practices to be conveniently dismissed as exceptions.

To illustrate the problem, I want to look at four of these extreme cases not because they are exceptions, but because they represent the kinds of mistakes the court system routinely makes and will continue to make until it changes practices that were developed at a time when no research was available and have proven to be detrimental to the children the courts are supposed to protect.

In a well known Kansas case that I have discussed with the protective mother Claudine Dombrowski, the father has numerous convictions for domestic violence and other crimes and a poor relationship with the daughter. Despite this, the court gave custody to the father and imposed ever greater restrictions on the mother's access to the daughter. The mother has been active in exposing the broken court system and the court has wasted large amounts of time and money seeking to remove information from the Internet and silence the mother's concerns. The court has retaliated against the mother with reductions in visitation and a variety of sanctions.

In a Maryland case the protective mother also sought to leave her abuser and when he made threats to hurt the children sought a protective order. Shortly before the mother appeared in court, she had sex with her husband. The judge, not understanding that it would not have been safe for the mother to refuse, assumed this meant the father could not possibly be dangerous and granted unsupervised visitation for the father.

The judges in California and Maryland are deeply disturbed by the outcome and genuinely sorry for their mistake. At the same time, they have defended their decisions saying they couldn't have known of the father's danger based upon the evidence in front of them. In one sense they are correct. The judges in these four cases all used the same outdated and discredited practices including the popular myth that women often make false allegations in order to gain an advantage in litigation. This contributes to the widespread inability of custody courts to recognize domestic violence and in turn led to the mistakes in these four cases and other cases endangering over 58,000 children every year.

Many communities have developed a practice in which child protective agencies team with the local domestic violence shelter. They cross-train staff and when a possible domestic violence case develops, child protective caseworkers consult with domestic violence advocates. This has resulted in child protective agencies being able to better recognize domestic violence and respond in ways that benefit the children. This should be considered best practices. DYFS recently adopted these best practices, but the New Jersey case was first investigated under the old flawed methods. The protective mother has asked DYFS and the court to take a fresh look at the original findings based upon better practices and the new research, but they adamantly refuse to consider the possibility that they made a mistake while using the old discredited practices. The judge has refused to consider any new evidence based on the up-to-date research and insists on proceeding with the case based on the unlikely conclusion that the mother's allegations are false.

At this point, the concern is that because she continues to believe the father abused the children (based on substantial evidence) and so if she had unsupervised visitation would say negative things to the children. This is the beginning and the end of the discussion by the unqualified professionals relied on by the courts. The mother is the primary attachment figure to her children, so separating her from the children creates a higher risk of depression, low-self-esteem and suicide. Where is the research that establishes what harm would be caused to the children if she made these statements and they were false? There is no such research, it is just assumed by professionals unused to looking for research to justify their beliefs and recommendations. How can we know if the alleged harm of the mother making statements about the father is greater than the established harm of taking children away from their primary attachment figure?

Until the court can cite evidence or research to support its assumptions, the extreme actions present at least an appearance of impropriety. Ironically in both cases the courts put a high priority on placing the children with the parent it viewed as most likely to promote a relationship with the other parent, but when the abusive fathers sought to deny the children a meaningful relationship with the parent the children most need (the primary attachment figure), the same priority of keeping both parents in the children's lives was no longer paramount. This is a common mistake in the custody courts and is one example of the widespread gender bias faced by mothers. In fairness, court professionals are often oblivious to the gender biased approaches they use, but tend to get angry and retaliatory when it is pointed out to them.

Certainly there are mothers whose contact with the children needs to be limited. This would be in cases where there is a genuine safety risk such as a mother who is a drug addict, physically abuses the children or has a mental illness so severe as to make her unsafe to care of the children. In the absence of such safety issues it is virtually always wrong for courts to take the extreme action of barring unsupervised visitation. This is certainly true when it is done in the context of mothers trying to protect their children from fathers they believe are unsafe. The research establishes that because of the outdated and discredited practices court professionals routinely use, a large majority of findings denying the mothers' allegations are mistaken. Even when her allegations are untrue, it is unlikely the risk she will make negative comments about the father is more significant than the harm of taking a primary attachment figure out of the children's lives. In other words the harm to the children of these visitation restrictions is almost always greater than the harm the court thinks it is avoiding.

"Otherwise as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. In this context, it is important for courts that rule against alleged victims of DV to be open to the possibility that they made a mistake. Courts should be reluctant to take punitive or retaliatory actions against mothers who continue to believe their partners abused them."

The courts in Kansas and New Jersey could have saved the children a lot of harm (and still can) by following this advice based on the most up-to-date research available.

The elephant in the room is the issue of corruption. Every time courts make decisions that appear to have no relationship to the evidence presented and make orders that cannot possibly benefit the children involved, they create the appearance of corruption. When courts seek to silence protective mothers and retaliate for criticism of the court or their abuser, they are promoting the belief that only corruption could explain these extreme and harmful decisions.

In the summer of Watergate, John Dean testified that he told Nixon about a cancer on the presidency. His assumption was that the illegal and unethical practices were committed only by Nixon's aides. It turned out that Nixon himself was the cancer on the presidency and had to be removed. Today there is a cancer on the custody court system. Some children are dying and others have their lives ruined by unjustified and extreme decisions. Rita Smith, Executive Director of the National Coalition Against Domestic Violence wrote in her Afterward to our new book that once the book is published anyone who continues to use the old practices must be understood to be committing malpractice. The four cases discussed in this article were originally decided based upon the old discredited practices. It is too late to save the children in California and Maryland. This is what happens when inadequately trained professionals rely on the myth that women frequently make false allegations.

The court system is at a crossroads. It now has the research to reform its training and practices so that they can better protect all the children. I hope they will treat the research as a gift and not an attack and use it to remove the cancer on the court system. In doing so the court system can support my view that the mistaken decisions are not based on corruption.