PSYCHOLOGY IN COURT
The Proper Role of Mental Health Professionals in Domestic Violence Cases
http://www.thelizlibrary.org/liz/mental-health-professionals-family-court.html

by Barry Goldstein

I dedicated my first book, SCARED TO LEAVE, AFRAID TO STAY to three brave children Stephen, Serena and Brianne. When they were seven, five and four respectively, they told the judge, court appointed evaluator, their attorney and the child protective caseworker that their father was abusing them physically and the girls sexually. As happens in most of these cases, these professionals assumed the mother was brainwashing the children and warned she would lose custody if she didn't stop. The court then ordered a resumption of unsupervised visitation.

Shortly before the first visit could take place, the father was confronted by the babysitter in the presence of the law guardian and he admitted to kissing his daughters on their privates. The law guardian immediately filed a motion to stop the visitation which I supported on behalf of the mother. The judge consulted the psychiatrist who had been appointed evaluator. He said the father demonstrated poor judgment but there was no reason to stop the visitation. We later learned the father penetrated Brianne for the first time during this visitation.

When the judge refused to protect the children, I filed a new complaint with the Child Protective Service (CPS). When the judge learned of this he yelled and screamed at me saying the case had already been investigated. The new caseworker assigned to the case did a thorough job this time and learned the father had done worse than we had alleged. CPS brought charges against the father and he never again had anything but supervised visitation.

The mother invited the CPS caseworker and myself to a celebratory dinner after she won custody. The children had gifts for us, but most important they had a name for us. They called us believers because we believed them when all the professionals who were supposed to protect them didn't.

A few years later, this same evaluator was appointed to resolve any disputes in a joint custody arrangement that another abused mother had been pressured to accept. She called him after learning that the father's new wife had a mental breakdown at a child's birthday party attended by her son. The evaluator responded totally appropriately to her concerns and then said he thought when she called she was going to make allegations of sexual abuse AND HE WAS FULLY PREPARED NOT TO BELIEVE HER.

This psychiatrist was far from the worst mental health professional in the custody courts. He did not have a male supremacist agenda, did not use PAS and was actually good in cases unrelated to domestic violence and child abuse. The judges in Westchester County loved him and used him more than anyone else. Of course if he immediately discounted allegations of sexual abuse before hearing the facts, sexually abused children had no chance for protection with him as evaluator.

Mental Health Professionals in Custody Courts

Evaluators and other mental health professionals were invited into the custody court system at a time when many assumed domestic violence was caused by mental illness, substance abuse or the actions of the victim. All of these assumptions have been totally discredited, but mental health professionals continue to play a major role in domestic violence custody cases.

These mental health professionals seldom have more than a few hours of training in domestic violence. They are unfamiliar with the specialized body of domestic violence research. Despite this, they routinely ignore the ethical requirement to consult with someone expert in a topic in which they don't have expertise. Surprisingly, despite these circumstances that would make courts outside the custody arena disqualify or discredit such "experts", custody courts routinely accept their recommendations with little scrutiny. Genuine experts often find their testimony discredited or are even prevented from testifying because they are not "neutral" professionals. In reality, their ignorance and bias very much favors abusive fathers. Since they have no scientific research to rely on, the evaluators and other professionals relied on by the custody courts instead use myths, stereotypes and their personal belief system. The recommendations usually tell courts more about the beliefs and biases of the evaluator than the qualifications of the parents.

Evaluators often use psychological tests that create a false sense of a scientific basis for the recommendations. These tests were not created for the populations the courts see in custody court. They were created to determine mental illness and reveal nothing about parenting skills or domestic violence. Even with mental illness, the evaluators rarely inform the courts that the finding is based on probability. At best the tests demonstrate a 55-65% chance that someone answering the questions as the test subject would have the problem diagnosed. Even worse, this figure goes down if the subject is under stress such as a difficult custody case or domestic violence.

Of particular concern is the practice of unqualified mental health professionals pathologizing protective mothers. These professionals usually fail to recognize domestic violence because of their lack of training, unfamiliarity with up-to-date research, bias, belief in the myth that women frequently make up false allegations of abuse to gain an advantage in litigation and the manipulation by the abuser. They then create imaginary conditions like delusional or paranoid that are based solely on their own failure to recognize the father's abuse.

These mistakes are often committed by mental health professionals acting in good faith, but without the proper training. Even worse is the cottage industry of unethical professionals catering to male supremacists who are often appointed by the courts despite their bias in favor of fathers. They often have close relationships with GALs and judges which help them win appointments. They have found that the money in custody is to be made by supporting abusers because controlling men have access to the family's resources. These biased professionals use bogus theories like Parental Alienation Syndrome (PAS) and support male supremacist tactics like shared parenting and "friendly parent" considerations. In some communities we have seen an outbreak of numerous cases of Munchausen Syndrome by Proxy although it is an extremely rare condition. Perhaps there should be an investigation of the drinking water in the community to see what suddenly caused the widespread outbreak of such a rare condition. In reality, we know the cause: the use of a male supremacist evaluator who specializes in Munchausen and is paid substantial sums of money for this diagnosis as a way to take children from safe, protective mothers so they can be sent to live with abusive fathers.

The Role of Mental Health Professionals

Just as good men need to speak out against sexist jokes, remarks that objectify women and to challenge male supremacists who seek to use the children in order to maintain what they believe is their male privilege to control women, good mental health professionals also must speak out against the minority in their profession who routinely hurt women and children whether out of greed, sexism or ignorance.

Most mental health professionals never go to court and most of their work does not involve domestic violence. At the same time, with domestic violence as prevalent as it is in this society, most mental health professionals will inevitably come across cases involving domestic violence. Accordingly it is important for mental health professionals to receive significant training in domestic violence in school and later as a regular part of their careers. My friend, Dara Carlin, often speaks about the fact that professionals have a certain conceit to believe any training they receive should be from those in the same profession. Thus lawyers would only learn from other lawyers and psychologists from other psychologists. Far better would be to regularly engage in multi-disciplinary training so that mental health professionals could learn from lawyers, psychologists, psychiatrists, social workers, sociologists and especially domestic violence advocates. This is why our new book, DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY contains chapters from all of these professions as well as judges and journalists.

Domestic violence experts understand that couples counseling and other practices that bring together abusers and their victims are dangerous and unethical. This is because of the unequal power the man and woman have. Consider the dilemma a victim has. If she doesn't tell the therapist about her partner's abuse, they will spend the time discussing pretend or less significant issues (like we often see in custody courts), but if she reveals his abuse, he is likely to hurt her when they leave. We have repeatedly seen mediators take on domestic violence cases even when the law specifically creates an exception for dv cases. Mediators rarely have much training in domestic violence and either don't recognize the abuse or believe their tremendous skills can overcome the problem. Whatever the mistake, the results overwhelmingly benefit abusers and harm their victims. Accordingly, good mental health professionals must make sure their professional associations have strong ethical rules that forbid the treatment or meeting of couples when one is abusing the other.

We have also seen many unscrupulous mental health professionals enter the batterer treatment industry. Of particular concern are professionals who claim their treatment can help make abusers stop his abuse. It is not just that this is a waste of money, but it is dangerous. Partners and judges are likely to make decisions based on these false assurances that these methods make him safe. Such decisions are likely to place the woman in danger. The research is now quite clear and in fact a huge amount of money has been spent (wasted) trying to establish the effectiveness of batterer programs. The only thing that has been shown to reduce men's abuse is accountability and monitoring. Batterer programs, anger management and therapy have all failed to provide any long-term reduction in men's abuse of women. Again good mental health professionals need to lobby for strong ethical standards that forbid their colleagues to make promises or imply that their treatment will change men's behavior. To be clear, I am not saying batterers should not get mental health treatment. Batterers, like everyone else have problems that can be helped by therapy, but the belief system that causes men to abuse and control women is not something likely to be changed by therapy. I should also mention that there are exceptions to this when a mental health problem causes a man's abuse, but these cases are rare.

For many years we have witnessed a phony debate about medical malpractice in which medical groups supported by insurance companies and the politicians they support (pay) demand a one-sided medical malpractice "reform" that involves taking away many of the rights and protections consumers have when they are victimized by medical malpractice. Cases in which patients appear to receive a large award are well-publicized because the special interests have the money to do so. When poor patients are denied the ability to bring valid claims or receive far less than they deserve, the public doesn't hear about these common cases because the victims don't have the resources or influence for their complaints to be heard. It is well known that a small percentage of doctors commit most of the medical malpractice. Any balanced approach to medical malpractice would include a way to discipline or otherwise stop these serial offenders from continuing their malpractice. This would save money and reduce insurance premiums the best way, by reducing the harm to the public caused by medical malpractice.

Just as good doctors need to challenge their incompetent colleagues, mental health professionals must stop those of their colleagues who make a living helping abusers while destroying the lives of protective mothers and their children. I recently read an article by a psychologist arguing that evaluators should be given immunity. He pointed out that his colleagues face a far larger number of professional complaints than those working in other areas and that 99% of the complaints are dismissed. He thought that meant the complaints were frivolous and never considered it is because those reviewing the complaints are themselves psychologists who have a personal interest in dismissing the complaints.

Parental Alienation Syndrome is an unscientific theory concocted by someone who supported sex between adults and children. It is not recognized by any reputable professional organization and is not listed in the DSM IV which contains all recognized mental health conditions. It is a tactic used by abusers and their supporters to stop investigations of domestic violence and child abuse complaints and instead give custody to the abuser and little or no contact to the safe protective mother. PAS, which is sometimes also referred to as parental alienation or just alienation because PAS is so discredited is responsible for destroying the lives of thousands of children. Recently at least three psychologists have lost their licenses for using PAS because they are in effect diagnosing something that does not exist. Good mental health professionals need to make sure that this kind of enforcement of professional ethics occurs more frequently. Similarly, evaluators who fail to consult with domestic violence experts on cases with domestic violence allegations, fail to consult with sexual abuse experts when there are allegations of sexual abuse, are unfamiliar with up-to-date research about domestic violence, engage in myths, gender bias, stereotypes and other similar errors must be disciplined. The reputations of all mental health professionals and the entire profession are harmed when unqualified and prejudiced evaluators are permitted to mislead the courts and harm children.

Use of Mental Health Professionals in DV Cases

Many of my friends and colleagues who have seen the harm caused by mental health professionals in the custody court system want to eliminate any role for them in custody decisions. This position is completely understandable because these professionals have done far more harm than good. If the choice is between continuing the present use of mental health professionals or eliminating them altogether, children would certainly benefit from ending their role. This should help good mental health professionals understand the tremendous harm being done to the reputation of all mental health professionals of remaining silent while unethical or incompetent evaluators and others destroy children's lives with impunity.

Nevertheless, I believe the research supports a role in custody cases for mental health professionals if the present harmful practices are stopped. The courts should use more critical thinking about the purpose of involving mental health professionals in a case and not automatically appoint evaluators just because it is a disputed custody case. Judges and lawyers should consider what specific information they need, whether such information is specifically in the expertise of mental health professionals and in making an appointment limit the investigation to the specific information needed. Evaluators or therapists can be used when there is good reason to believe one of the parents or the children have a mental health condition that significantly affects the ability to parent the children. Mediation can be appropriately used if the court is confident no domestic violence issues exist. If any allegations of domestic violence have been made at any time, one parent is afraid of the other or there are any other reasons to believe one parent has abused the other mediation is not safe or appropriate. Many courts in this and other contexts take a position that until domestic violence is proven, it is not a domestic violence case. This is wrong and causes a lot of problems. Courts need to use domestic violence expertise to first determine whether or not one of the parties has committed domestic violence.

When there are allegations of domestic violence there will rarely be any need for mental health professionals. The court needs to have a factual hearing about the validity of these allegations. If the allegations are true and the other parent is safe (which specifically has nothing to do with "alienation" issues), the only proper outcome is custody for the safe parent and at least initially supervised visitation for the abusive parent. This approach avoids the time and expense of hearing evidence about other issues that shouldn't affect the outcome if domestic violence is confirmed. Furthermore since at least 98% of domestic violence allegations by mothers are accurate, a hearing limited to this issue will completely resolve custody and visitation issues in the case.

If mental health professionals are going to retain a role in custody cases, they must create the following reforms to avoid the tragedies caused by widespread inappropriate practices.

1. In any cases involving domestic violence allegations the mental health professional must consult with a domestic violence expert.

2. Mental health professionals who work with custody courts will have training in recognizing domestic violence, gender bias and the effects of domestic violence on children.

3. Mental health professionals who work with custody courts will take steps to avoid manipulation by abusers and confirmation bias.

4. The mental health professionals will be familiar with the specialized body of up-to-date research about domestic violence.

5. Mental health professionals will never use unscientific or unproven theories such as Parental Alienation Syndrome and its progeny.

6. Mental health professionals will not use psychological tests that were not created for the population seen in family court and when using psychological tests will make the court and the parties aware of what percentage accuracy the tests provide. The professionals will also be required to make sure the scoring of such tests is not compromised by gender bias.

Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah, Ph.D., of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY, published 2010.