November 21, 2013
By Robert A. Franklin, JD, Director, National Parents Organization

On Tuesday, November 12, the U.S. Department of Justice announced the selection of four family courts to participate in the “Family Court Enhancement Project.” The purpose of the Family Court Enhancement Project is to alter family court practice and procedures when domestic violence and/or child abuse is alleged in child custody proceedings. The courts are located in Illinois, Oregon, Minnesota and Delaware.

The Family Court Enhancement Project is a joint project of the Office on Violence against Women, which is part of the Department of Justice; the Battered Women’s Justice Project; the National Council of Juvenile and Family Court Judges; and the National Institute for Justice. In the words of the press release issued on Tuesday, the Family Court Enhancement Project “is designed to determine what family court procedures, practices and structures related to custody and visitation can help keep victims of domestic violence and their children safe from further violence and trauma.”

“In order to maintain safety for the entire family, it is crucial that judges weigh the dynamics of domestic violence and its impact on both adults and children when making custody and visitation decisions,” said OVW Acting Director Bea Hanson. “Ensuring the safety of domestic violence victims and their children during and after court proceedings is an essential component of the FCEP. This project will provide guidance to courts around the country in implementing proven procedures and practices that keep victims and children safe.”

Repeated calls to the Office of Violence Against Women by the National Parents Organization regarding the Family Court Enhancement Project and the claims made by the press release have so far produced no response. Written questions emailed by National Parents Organization to the U.S. Justice Department’s Office of Public Affairs are being treated as a Freedom of Information Act Request.

The position papers published by the Battered Women’s Justice Project leave the strong impression that the determination of “family court procedures, practices and structures related to custody and visitation can help keep victims of domestic violence and their children safe from further violence and trauma” has already been made. Those papers reveal a mindset that is frankly at odds with the known facts about domestic violence and child abuse. Put simply, virtually no mention is made of male victims and no skepticism is evinced of mothers’ claims of abuse.

For example, one paper entitled “Mind the Gap: Accounting for Domestic Abuse in Child Custody Evaluations,” constituted an attack on mental health professionals, custody evaluators, and guardians ad litem. who provide opinions to family courts regarding custody. While no one would argue that those professionals are above reproach, fewer still would claim, as the Battered Women’s Justice Project paper does, that they’re insufficiently pro-mother. After all, U.S. Census Bureau data show that 84% of primary and sole custodians of children are mothers.

The Battered Women’s Justice Project paper “The Dangers of Presumptive Joint Custody” resorts to outright dishonesty when it claims that bills that seek to establish a presumption of joint custody “bypass the application of the best interest of the child standard.” Even a casual reading of the many bills that have come before state legislatures shows the opposite to be true. For example, there’s this one that’s currently before the Nebraska unicameral legislature that plainly conditions custody on the best interests of the child.

Given that, it becomes clear that the intention of the Battered Women’s Justice Project is to further entrench mothers as primary custodians of children while further marginalizing fathers. That’s the exact opposite of what family courts should be doing.

In the first place, family courts should be making every effort to keep both parents meaningfully connected to their children following divorce. The scientific literature strongly favors maintaining strong relationships between children and both their parents as best for children, mothers, and fathers. As Edward Kruk, PhD, Associate Professor of Social Work at the University of British Columbia, wrote in 2011, “a multitude of studies show that father absence more than any other single factor is associated with children’s compromised social and emotional well-being.”

Indeed, Linda Nielsen, EdD, Professor of Educational & Adolescent Psychology, Wake Forest University, writing here in The Nebraska Lawyer, debunked 10 common myths about shared parenting. Some of those myths the Battered Women’s Justice Project accepts as true. For example, the Battered Women’s Justice Project only embraces shared parenting arrangements when they’re agreed to by both parents. But Dr. Nielsen shows that as many as 85% of parents successfully sharing custody had not originally wanted to do so.

Writing here in Psychology Today, Dr. Kruk outlined 16 advantages of shared parenting including its preservation of strong parent-child relationships, its tendency to reduce parental conflict, its reflection of the desires of the children of divorce, its tendency to reduce parental alienation, its ability to guide judicial decision-makers and others. All of those benefits are amply supported by current social science, some of which Dr. Kruk cites here. Sadly, the Battered Women’s Justice Project acknowledges none of that research.

It is of course true that family courts must pay close attention to claims of domestic violence and child abuse in determining custody. State statutes governing custody decisions invariably include the issues of interpersonal violence and child abuse as important considerations in custody cases. But the Family Court Enhancement Project proceeds on the assumption that family courts are, as a rule, failing to adequately address domestic violence and child abuse. Strangely, it offers little to substantiate the claim.

In fact, for at least two decades attorneys practicing in family courts have admitted that allegations of abuse are routinely made for the sole purpose of gaining an advantage in custody cases. Studies by, for example, Margaret Brinig and Douglas Allen, reveal that it is mothers who make the lion’s share of allegations of abuse in custody cases and that well over half of those are ruled to be “unfounded.” Why then would the Battered Women’s Justice Project ignore even the possibility that abuse allegations might be false?

And, as Drs. Donald Dutton and Tonia Nicholls show here, the approach to domestic violence taken by the Office of Violence Against Women and the Battered Women’s Justice Project is more of an ideological stance than a scrupulous scientific approach to the problem. That approach ignores the enormous volume of research showing men and women to be equally perpetrators and victims of domestic violence. In so doing, it rejects out of hand therapeutic treatment for male perpetrators and all treatment for female ones on the assumption that women don’t abuse their spouses.

Perhaps worse is the fact that, nowhere in the publications of the Battered Women’s Justice Project is there any reference to the fact that, as shown year after year by the Administration for Children and Families of the Department of Health and Human Services, that it is mothers acting alone who commit about 40% of the child abuse and neglect that occurs in the United States. When a mother’s boyfriend is added to the mix, that percentage rises to almost 60%. Fathers acting alone, by contrast, commit between 18% and 20% of the abuse and neglect of children.

In short, the Department of Justice has chosen an organization to institute change in how family courts treat allegations of abuse in child custody proceedings. That organization has an established track record of ignoring female violence against men and assuming that every allegation of abuse by a woman is true. The Battered Women’s Justice Project seeks to impose its worldview on the subject on family courts despite the fact that that worldview is not informed by the reliable science on domestic violence or family structure and child well-being.

The money to be spent on this project must be saved; the project itself must be scrapped. We must deal honestly with issues, including abuse, in child custody cases, and do our best to keep both parents actively involved in their children’s lives post-divorce. The Family Court Enhancement Project is an attempt to further marginalize fathers in the lives of their children and to do so using shaky assumptions and a rejection of sound social science. It must be stopped.

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