Best Practices For Guardians ad Litem in Domestic Violence Cases* Many years ago, three brave young children told their mother that their father was abusing them physically and sexually. The mother filed a complaint with child protective services (CPS)12 and went to family court for a protective order and custody. The father was initially limited to supervised visitation. The children told their law guardian, the judge, evaluator, and CPS caseworker what their father did, but as often happens in these cases, the professionals all assumed the mother was brainwashing the children and threatened her with loss of custody of the children if she did not stop.23 The judge ordered unsupervised visitation to resume, but before the first visit the baby sitter confronted the father in the presence of the law guardian, and the father admitted kissing the girls on their privates. The law guardian was Maria Joy Frank, and she immediately made a motion to stop the visitation, which was supported by the mother’s attorney. The judge consulted with the evaluator who said the father used bad judgment, but there was no reason to stop the visitation. During the first visit, the father penetrated the four-year-old for the first time.34 The mother’s attorney made a new report to CPS based on the father’s admission of kissing the girls’ privates. When the judge found out, he yelled and screamed at the attorney, saying the allegations had already been investigated. The new caseworker did a more thorough investigatory job and found that the father’s actions were even worse than the mother’s allegations claimed. They brought charges against the father, and he never had more than supervised visitation again.45 After the mother received custody, she invited her attorney and the CPS caseworker to a celebratory dinner. The children had gifts for the guests, but even better they had a name for them. They called them “believers” because they believed the children when the professionals whose job it was to protect them did not.56 * Copyright 2013 Civic Research Institute, Inc. This best-practices guideline is adapted with permission from Barry Goldstein and Elizabeth Liu, Representing the Domestic Violence Survivor: Critical Legal Issues; Effective Safety Strategies. (For more information about this book, visit http://civicresearchinstitute.com/rdv.html) Permission is hereby granted to distribute copies to guardians ad litem or others wanting to assist those who are being or have been abused by a current or former intimate partner. 1 CPS will be used as the generic name for state social service agencies whose responsibility is to protect child welfare. Each state’s child welfare protection system varies. 2

Barry Goldstein, Scared to Leave Afraid to Stay: Paths From Family Violence to Safety ch. 2 (2002).

3

Id.

4

Id.

5

Id.

1

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Maria Joy Frank, the attorney appointed to represent the children, initially made the same mistake as all the other court professionals in the case by disbelieving her clients’ complaints. She was caught up in a system that is broken and did not have the needed training. At the same time, she was a caring and fair individual who tried her best to act in the best interests of her clients. Even when she did not believe the allegations, Ms. Frank remained open to speaking with the mother’s side and considering information they provided. As soon as she learned what the father was doing, she immediately acted zealously to protect her clients and continued to do so throughout the remainder of the case. She often took the lead in various applications because the judge was more willing to listen to her than the mother’s attorney.67We believe that, like Maria Joy Frank, most GALs care about their young clients and want to act in their best interests. Too often, the widespread misinformation and flawed practices in the custody court system cause them to take actions harmful to their clients. The following sections detail practices that can help GALs avoid actions that harm their clients.

Being Believers Children might lie about other issues, but they almost never lie about abuse and particularly sexual abuse, which is so painful and embarrassing to speak about. It takes tremendous courage for children to report sexual abuse, which is why so many incidents go unreported. GALs must be open to reports by their clients and believe them unless there is strong evidence that disproves their allegations.

Children’s Safety Comes First Few people would argue that safety should not be the first priority in determining custody, but the custody courts routinely place children in danger because they rely on professionals without the needed training. Safety issues include the danger of children being assaulted or killed, and the risk that witnessing DV or being separated from their primary attachment figure could cause them to engage in risky behaviors. We do not encourage alienating behaviors, but such behaviors are not safety issues and should not trump them. Neither are mental health diagnoses that pathologize the victim, but have not interfered with her ability to take good care of the children. Substance abuse, drunk driving, and beating the children are obvious examples of safety issues. Courts need to avoid mistakes where nonsafety issues are used to justify giving control to abusers whose danger is not recognized because of flawed practices. Findings that evaluators and other court professionals do not have the training to screen for DV or conduct a risk assessment explain how courts can so frequently fail to protect children’s safety.7 6

Id.

7

Daniel G. Saunders et al., Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical Report Submitted to the National Institute of Justice, U.S. Department of Justice, Oct. 31, 2011, http://ssw.umich.edu/about/profiles/ saunddan/Custody-Evealuators-Beliefs-About-Domestic-Abuse-Allegations-Final-Tech-Report-toNIJ-10-31-11.pdf.

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Context, Context, Context Context is critical to understanding DV, but the court system routinely looks at each issue and each case separately. Abusers seek to decontextualize issues to help confuse them. Accordingly, it is important to look at each issue in the context of a long history of abuse. This helps explain the mother’s reaction and the father’s tactics. For example, it does not make sense why a father would spend so much money and fight so hard to obtain visitation and then refuse it unless there is an understanding of the context, which is that his purpose is to hurt the mother, not to see the children. It does not make sense for him to spend more money fighting against paying an expense than the expense would cost him unless it is understood that his purpose is to bankrupt and harass the mother.

Giving Both Sides a Fair Hearing There are many complaints, supported by research,8 about GALs who spend far more time with fathers and their witnesses and seem to have decided to support the fathers before ever meeting the mothers. This violates fundamental fairness and undermines the perception of initial neutrality. Accordingly, it is important for GALs to give both sides a fair chance to provide their information and answer any questions before reaching any conclusions. If a GAL decides to support one side, it should be based on the evidence available, the preferences of the children, and their safety and well-being.

Importance of Primary Attachment Primary attachment is a safety issue because children separated from their primary attachment figure are at greater risk of depression, low self-esteem, and committing suicide when they are older.9 The primary attachment figure is the parent who provided most of the child care in the first couple of years of the children’s lives. That parent continues to be the primary attachment figure regardless of later parenting arrangements. Accordingly, it is important for a GAL to investigate who is the primary parent and avoid separating the children from their primary attachment figure if at all practicable.

Maintaining Communications With Both Parents Each parent has information about the children and needs information about them. A GAL can help facilitate the sharing of needed information by maintaining communications with both parents. We often see GALs who are part of the cottage industry supporting abusive fathers or who otherwise become hostile to the mothers stop any meaningful communication with the mothers. Court professionals reach 8

Julie R. Ancis & Laurel B. Watson, “Women’s Experience With and Perceptions of Guardians Ad Litem in Divorce and Custody Disputes [tentative title],” in 2 Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues (Mo Therese Hannah & Barry Goldstein eds., forthcoming). 9 Susan Goldberg, Attachment Part Three: Attachment Across the Life Span (Nov. 2004), http:// www.aboutkidshealth.ca/En/News/Series/Attachment/Pages/Attachment-Part-Three-Attachment-acrossthe-life-span.aspx.

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spectacularly wrong conclusions because of widespread misinformation and flawed practices. Keeping communication open gives GALs who initially make a mistake, like Ms. Frank did in the “believers” story (see “Best Practices for Guardians ad Litem”), the ability to change their minds based on new information. It also avoids the appearance of bias or worse. When GALs advocate protecting their clients from abusive fathers, they should continue to communicate with the fathers in order to try to moderate their behaviors and to exchange information.

Meeting Clients Alone Children living with one or more abusive parent have learned to keep secrets. They may also have been threatened by the abuser. They may not know what normal family behavior is because they have only experienced a family that includes an abuser. GALs work on cases with children of many different ages and communication abilities. Some may not be able to speak with the GAL without the support of a trusted parent or sibling. When possible, the GAL should make arrangements to meet with each child separately. The GAL does not want the child to be silenced because of the presence of an abusive parent or influenced by the presence of a supportive parent. There is also the risk when interviewing children together that one of the children might be allied with an abusive parent and thus silence a sibling.

Taking Time to Develop Trusting Relationships With Clients In DV cases, there can be many factors that discourage children from sharing information about abuse with their GALs especially in sexual abuse cases. GALs should avoid assuming that the failure or refusal of children to reveal abuse proves that the mother’s allegations are false. GALs need to take the time to develop trusting relationships with their clients and permit the children to reveal information in the most comfortable way. It is important for GALs to explain that the relationships are confidential, and the children can share information without the GALs revealing it to the parents or others. At the same time, there might be information the children want to be revealed but cannot do so directly. GALs should be aware that when children are living with allegedly abusive fathers, it is particularly difficult for them to reveal his abuse, and, in fact, they may make false statements about the mothers in order to protect themselves from the fathers’ retaliations. It is also common for children who have been abused to continue to love their abusers, recant valid complaints, and to seek to protect someone who is hurting them.

Importance of Looking for Patterns One of the reasons for the failure of court professionals to recognize valid complaints of DV is a tendency to look at each incident and each case separately. Judges and other professionals often complain about the difficulty of understanding what they view as he-said-she-said cases. DV experts understand the best way to recognize DV is to look for patterns (see chapter 4 in this volume). Best practices are to look not just at incidents of physical abuse, but any incidents of controlling and coercive behavior, even if the behavior is legal. Physical, psychological, verbal,

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economic, and litigation abuse should all be looked at. Isolating behaviors should also be looked at and why a father who had little involvement in caring for the children suddenly demands custody or even tries to limit the mother’s contact with the children should be considered. This will usually provide substantial evidence that court professionals otherwise miss.

Being Aware of Problems With Evaluations The reliance on mental health professionals for evaluations on DV cases has been shown to work poorly for children. The evaluators rarely have expertise in recognizing safety risks to children.10 They also rely on psychological tests that were not created for the populations seen in custody court and at best are accurate 55 to 65 percent of the time. Evaluators repeatedly pathologize safe, protective mothers who have always provided good care for their children (see chapter 7 in this volume).11 Accordingly, GALs should be reluctant to seek evaluations in DV cases and view any recommendations with substantial skepticism.

Consulting With Domestic Violence Advocates In recent years, evaluators and other court professionals have been required to receive some DV training. This often gives these professionals a false sense of confidence in their abilities to respond to DV cases. The latest research confirms that this confidence is misplaced because most evaluators (and other professionals) have been found to possess inadequate training in DV, which results in recommendations that harm children.1213The main purpose of considering DV in custody and visitation decisions is to protect the safety of the children. This should include both preventing direct assaults and creating circumstances that have been shown to encourage children to act in ways that place them at risk. In order to make an informed decision, courts and court professionals need to understand what behaviors by abusers are associated with higher risk and lethality, and they need to possess an understanding of DV dynamics, the ability to recognize DV, an awareness of the effects of DV on children, and knowledge of batterer narratives to avoid manipulation by abusers. Many court professionals have none of this specific training, and few have all of the necessary training. This is an important reason the courts continue to take unnecessary risks with children. Many child protective agencies have responded to similar problems by developing a program, supported by the National Council of Juvenile and Family Court Judges, for caseworkers to consult with DV advocates on possible DV cases. This has helped the caseworkers better recognize DV cases and create arrangements that benefit children. This should be considered best practices.13 GALs can adopt their own best practices and better protect their clients by making it a habit to consult with local DV advocates or other genuine 10

Saunders et al., supra note 7.

11

Robin Yeamans, “Urgent Need for Quality Control in Child Custody Psychological Evaluations,” in Mo Therese Hannah & Barry Goldstein eds., Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues (2010) [hereafter DVAC], ch. 21. 12

Saunders et al., supra note 7.

13

See Susan Schecter & Jeffrey L. Edleson, Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice: Recommendations From the National Council of Juvenile & Family Court Judges Family Violence Department, available at http://www.thegreenbook. info/documents/Greenbook.pdf.

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experts. This will help GALs make better decisions while improving their understanding of DV issues. The advocates have exactly the knowledge and information that court professionals are missing.

Considering Motivation of Nonprimary Parents Court professionals are often so pleased to see a father appear to want involvement in his children’s lives that they fail to consider his motivation. This undermines the ability of these professionals to understand the case because many abusive fathers seek custody as a tactic to pressure the mother to return or to punish her for leaving. This should be seen as a continuation of the abuser’s DV tactics and demonstrates serious risk for the children. The GAL should investigate why a father who had limited involvement caring for the children suddenly demands custody after his partner decides to leave. Similarly, given the harm of separating children from their primary attachment figure, why does the other parent seek to take this risk with the children’s well-being? If the father permitted or even required the mother to provide the child care during the relationship, what changed, besides her decision to leave him, to make her an unqualified parent? There can be valid answers to these questions, and the GAL should give both parents a chance to respond. This may also lead to important evidence such as threats the father made to seek custody if she left him, attempts to use the contact with his former partner provided by the litigation to reunite with her, or to harass her.

Avoiding Being Manipulated by Abusers Batterers tend to be extremely manipulative. This is how they maintain control over their victims. There is significant research about batterer narratives that can help professionals avoid manipulation. Batterers use common strategies to deny, minimize, excuse, and justify their actions. They often use patriarchal explanations and are willing to show emotion or cry to convince someone of their sincerity.14 Inadequately trained professionals frequently cite standard abuser narratives to justify believing his false denials. People who believe they can tell if someone is telling the truth from observing them are especially vulnerable to being fooled. The problem is compounded when a woman’s normal emotional and angry response to his abuse is used against her. Current research establishes that court professionals tend to place too much emphasis on this issue in ways that work poorly for children.15

Using Critical Thinking to Avoid Being Influenced by Common Half Sentences Most court professionals are familiar with two common but incomplete statements. They have heard that children do better with both parents in their lives, but the rest of the sentence should include the phrase “unless one of the parents is abusive.” Professionals who miss the full statement often pressure victims to cooperate with their 14 Molly Dragiewicz, Equality With a Vengeance: Men’s Rights Groups, Battered Women, and Antifeminist Backlash ch. 4 (2011). 15

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Saunders et al., supra note 7.

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abusers and punish them for a reluctance to do so. They also hear that children need both parents equally, so courts should treat each parent the same. This statement leaves out the phrase “regardless of past parenting.” Children need their primary attachment figure more than the other parent, and they need the safe parent more than the abusive one. GALs must use critical thinking to avoid hurting their clients by blindly accepting common but incomplete analysis.

Letting Abusers Make Admissions Batterers have a sense of entitlement and a belief system that justifies their behaviors. They often do not realize that their actions are unacceptable. In speaking with a GAL or other professional, they might say something like “you know how women are” (particularly to a male), and if the professional gives them a chance, they may make statements that constitute admissions about the abuses. This is a tactic well-trained police officers use and could easily work for GALs.

Pressuring Abusers to Stop Their Abuse, Not Pressuring the Mothers to Cooperate With Their Abusers It is not safe for healthy victims of DV to interact or cooperate with their abusers. The idea that pressuring victims to cooperate with their abusers benefits children is misplaced. Research establishes that the best thing to do for children is to help their mothers heal.16 Better practice is to pressure the abuser to stop his abuse and make the contact he is seeking with his children conditioned on changing his behavior. As long as he continues his abusive behavior, the benefit for children of spending time with their father is outweighed by the harm of his abuse. Indeed all batterers engage in harmful parenting practices that include undermining the relationship with the mothers, teaching bad values (sexism), and setting poor examples.17 Only by ending his abusive behavior can a father make sure the children receive a net benefit from his involvement in their lives. This is why leading experts recommend that when DV is established, the safe or safer parent receives custody and the abusive parent receives supervised visitation.1819

Sharing Research to Settle Cases GALs who have read current scientific research are aware of the profound harmful effects to children of separating them from their primary attachment figure or witnessing DV. Litigants will not have read this research, but they should intuitively understand that removing a child from the primary parent would be harmful. In the course of communicating with alleged abusers, GALs should share this 16

Lundy Bancroft, Jay G. Silverman, & Daniel Ritchie, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (2d ed. 2011) at 237. 17

Id. at 38-39, 60-66.

18

Id. at 256-57; see also Claire V. Crooks et al., “Factoring in the Effects of Children’s Exposure to Domestic Violence in Determining Appropriate Postseparation Parenting Plans,” in DVAC, supra note 11, ch. 22.

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information with them. Some fathers will love their children enough to abandon the custody disputes in order to avoid harming their children. Others might drop their attempts at custody knowing the GALs are aware of this information, so they would have little chance to win custody under the circumstances in the cases. This can lead to settlements that benefit the children and save family finances. If, instead, the father seems not to care about the harm he is doing, this will provide important information to the GAL.

Proper Responses to Sexual Abuse Allegations The custody court system has a serious problem with its response to sexual abuse allegations. Many people, including professionals, have trouble believing that people who are successful in other parts of their lives could do something so heinous. This bias also contributed to the failure of the Catholic Church, Penn State, and Syracuse University to stop the sexual abuse of children for far too long. Although mothers rarely make deliberately false allegations, and a majority of their allegations in custody cases are true, 85 percent of sexual abuse cases result in custody for alleged abusers.19 Child sexual abuse is particularly hard to prove because the acts are rarely committed in front of witnesses for obvious reasons. Many forms of abuse do not leave physical evidence, and any physical evidence is often gone by the time the child reveals the abuse. Unqualified professionals used in custody courts often fail to develop a trusting relationship with the children before asking what happened, dismiss allegations for nonprobative reasons, and fail to use play therapy with younger children. These mistakes are compounded by a widespread practice of punishing mothers who made good faith allegations by removing the children from their care. GALs should be aware of the common flaws in the response to child sexual abuse and take steps to see that best practices are used to protect their clients.20

Gender Bias Studies in over forty states and many judicial districts have found widespread gender bias against women litigants.21 Even women professionals sometimes engage in gender bias. It is hard for the person engaging in this bias to detect it because it is often unconscious. GALs should periodically consider whether some of their actions unintentionally are based on gender bias. One good way to avoid this mistake is to consider what the response would have been if the genders of the parties were reversed.22 19 Amy Neustein & Michael Lesher, From Madness to Mutiny: Why Mothers Are Running From the Family Courts—And What Can Be Done About It (2005). The information in the book was supplemented with an interview of Michael Lesher by Barry Goldstein. 20

Barry Goldstein & Elizabeth Liu, Representing the Domestic Violence Survivor: Critical Legal Issues; Effective Safety Strategies, ch. 13 (2013). 21

Molly Dragiewicz, “Gender Bias in the Courts: Implications for Battered Mothers and Their Children,” in DVAC, supra note 11. 22

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For more information, see id.

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Advocating for Children’s Preferences GALs may actively work against their clients’ preferences or refuse to find out what they want. This does enormous damage to the reputation of the judicial system. Obviously, with very young children, GALs needs to act in what they believe is in their clients’ best interests. Similarly if a child’s request is not voluntary, it is appropriate for a GAL to use his/her best judgment. If the child is seeking something that is unsafe, the GAL should inform the court of the child’s wishes while advocating for the client’s safety. In virtually all other cases, GALs must support their clients’ preferences and advocate for them despite their personal opinions.

This best-practices guideline is adapted with permission from Representing the Domestic Violence Survivor: Critical Legal Issues; Effective Safety Strategies by Barry Goldstein and Elizabeth Liu. For more information about this book, visit http://civicresearchinstitute.com/rdv.html Permission is hereby granted to distribute copies, without charge, to guardians ad litem or others wanting to assist those who are being or have been abused by a current or former intimate partner.

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