In family law, expert parenting assessments are given considerable weight. Studies show that judges have high levels of confidence in the opinions of assessors and the recommendations of mental health professionals are followed by judges a large majority of the time. [i] [ii] [iii] [iv] However, where family violence is concerned, expert parenting assessments show significant problems.
In 2021, the Rise Women's Legal Center in B.C. produced an important report pointing out serious problems with the examination of domestic violence in expert parenting assessments. [v] Their work is corroborated by several research studies, including a large scale qualitative study from the United states. [vi] [vii] [viii] [ix] [x] [xi]
It may be surprising to know that most parenting experts are not required to have specific training in domestic violence to conduct such work. Unless parenting experts seek intensive and specific training in domestic violence and more precisely in assessing domestic violence in family law parenting matters, the necessary expertise is not likely to exist. This is true regardless if the assessment is called a "risk assessment." The research findings reflect this lack of expertise; little attention is paid to domestic violence with the associated risks being ignored. [i]
Specific problems identified in expert reports include:
·A concentration on physical violence without consideration of other features such as psychological, financial and coercive control.
The view violence was historical rather than ongoing or not serious enough to be a factor in best interest determinations even when there were admissions by the perpetrator of committing acts of violence.
A disregard of children’s articulations they did not want to see a parent because of abuse. These articulations tend to be reformulated it into evidence of alienation or coaching, more so leveed at mothers than fathers.
Subjective decisions about what ‘counts’ when it comes to domestic violence, without regard to established research on risk factors associated with abuse.
The downplaying of the impacts of living with domestic violence on children and failure to understand the impact of victimization on parenting and co-parenting.
The acceptance of a perpetrator’s account even though domestic violence perpetrators are known to be highly skilled at manipulation.
Parenting experts utilized “wishful thinking” about the future rather than the present realities of domestic violence. [xiii]
Expert reports undermined victim credibility by:
Using inaccurate descriptions of violence (such as descriptions that either minimized and/or mutualized violence).
Structuring the report as he-said-she-said.
Exclusion of key evidence.
Failing to give clear descriptions of violence.
Failing to assess for perpetrator strategies.
Use of psychological testing to cast doubt on the victim’s veracity.
In the work of Coates and Faulkner (2018-2020), “Violence by fathers was minimized by casting their actions as emotions, for example, “emotional control issues” or “anger” issues, and mothers were then blamed for causing these emotions. Fathers were often credited with having “struggled” with their emotional issues. Fathers’ behaviours were rarely understood to cause the mother’s or children actions. For example, the father’s violence or abuse was rarely understood to cause the mother’s or children’s fear; rather, the mothers’ fear of violence was more frequently characterized as a personal shortcoming rather than a healthy response to the use of violence.” [xiv]
Bancroft has written prolifically on male violence. He cautions, "the majority of custody evaluators proceed on the misguided assumption that the truth or falsehood of abuse allegations, and the level of risk to children from an abusive man, can be determined by interviewing the parties and seeing who sounds truthful. If the clinical assessment indicates that the father has no major mental health problems, for example, the evaluator may declare that the abuse allegations must be false because the father doesn't fit the "profile" of an abuser - even though the reality is that no mental health profile of an abuser exists." [xv]
While international standards and guidelines for examining domestic violence in expert assessments exist, Honourable Donna J. Martinson, QC, LLM notes, "When the assessments were compared to highly regarded international standards and guidelines for parenting assessment in family violence cases, breaches of these standards and guidelines were identified." [v] As an overall criticism, expert assessments in family law contexts, have been found to obscure, discount and explain away domestic violence. [xvi]
An effective means of dismissing domestic violence is to reformulate it. The reformulation of domestic violence was identified in these studies including the reformulation of positive and protective responses by victims of domestic violence.
The Rise Women's Legal Center outlines how reformulation is seen in expert assessments in the following chart.
Inadequate assessor training and misconceptions about domestic violence place children and victim parents at further risk of harm and contribute to the finding that expert reports generally do not appropriately address family violence or future risk. Wherever possible, carefully consider a parenting experts experience and training in assessing domestic violence in family law contexts when seeking such reports.
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References:
[ii] The Scientific Basis of Child Custody Decisions (Robert Galatzer-Levy & Louis Kraus, eds., 1999); James N. Bow, J.N. & Francella A. Quinnell, A Critical Review of Child Custody Evaluation Reports, 40 FAM. CT. REV. 164 (2002).
[iii] Caplan, P. J., & Wilson, J. (1990). Assessing the child custody assessors. Reports of Family Law, 27(2), 121-134.
[iv] Ash, P., & Guyer, M. (1984). Court implementation of mental health professionals' recommendations in contested child custody and visitation cases. Bulletin of the American Academy of Psychiatry & the Law, 12(2), 137–147.
[vi] Saunders, Daniel, Faller, Kathleen, and Tolman, Richard. Custody Evaluators’ Beliefs about Domestic Abuse Allegations, 2009-2010 [United States]. Inter-university Consortium for Political and Social Research [distributor], 2015-09-30. https://doi.org/10.3886/ICPSR30962.v1