May 1, 2015 by Robert Franklin, Esq, Member, National Board of
Directors, National Parents Organization
The Association of Family and Conciliation Courts has put up its proposed guidelines that will supplement its existing Model Standards of Practice for Child Custody Evaluations. The draft guidelines are meant to inform and educate custody evaluators regarding “Determining and Accounting for the Effect of Intimate Partner Violence on Children and Parenting.” The AFCC is calling for public comment on the proposed guidelines.
Oddly enough, the task force that produced the draft guidelines was assembled in 2011, but the draft is dated 4/1/15. The public has only until May 6 to comment. The AFCC’s guidelines will likely be utilized by courts and custody evaluators across the country. Indeed, one source in Arizona told the National Parents Organization that courts there would use them, no questions asked.
That means it is imperative that shared parenting advocates submit comments as soon as possible. Put simply, the proposed supplemental guidelines are a barely veiled attack on shared parenting generally and fathers in particular. What follows is a brief analysis and critique of the AFCC draft. I hope that this blog will serve as a guide to comments made to the AFCC.
Because the definitions of Intimate Partner Violence are more or less already etched in stone, there’s no need to comment on them. But suffice it to say that, by “Intimate Partner Violence,” the AFCC means behavior that need not be violent nor engaged in between intimate partners. With that sort of semantic precision, what follows should come as no surprise.
First, the draft is plainly aimed at instructing custody evaluators to find IPV in as many cases of child custody as possible. Is there a case in which neither partner alleges violence and no objective evidence appears? The draft urges the evaluator to not be deterred. For example:
A child custody evaluator shall follow an intimate partner violence screening protocol in every case, including those where no allegations or judicial findings of intimate partner violence have been made.
The purpose of screening is to uncover signs that intimate partner violence is or may be an issue for a family. (Emphasis in the original)
Even when it appears that intimate partner violence is not involved or has little impact on children or parenting, an evaluator should apply additional scrutiny.
On page seven, custody evaluators are informed that the denial of perpetration, the denial of victimization and the denial by witnesses that IPV occurred are no reasons to conclude that no IPV has occurred or may occur. The same conclusion is to be drawn from an absence of objective evidence such as medical records, police records, photographs, witnesses, etc.
Meanwhile, virtually any behavior on the part of a child can be considered to be an indicator of IPV somewhere in the family. Therefore, behaviors as unremarkable and disparate as “developmental delays,” “health risks,” “defiance,” “oppositional behavior,” “behavior problems at school,” “anxiety,” “moodiness,” “apathy,” “anger,” “uncertainty,” “responsibility,” “difficulty concentrating,” “difficulty processing new information,” “diminished self-confidence,” “insecurity,” “headaches,” “stomach aches,” “allergies,” “low grades,” and dozens of others, all may indicate IPV according to the AFCC’s draft. That perfectly healthy, normal children living in perfectly peaceful homes regularly exhibit those behaviors as a natural part of growing up is nowhere mentioned by the AFCC. But if the scores of behaviors, normal and abnormal aren’t enough, the draft has another:
No obvious problems, such as a child who appears to be functioning well, but could demonstrate problems later.
In short, anything or nothing can indicate IPV.
As to what the draft identifies as “risk factors” for IPV perpetration, two salient points stand out. First, the absence of any risk factors is not to be considered by the custody evaluator to mean that there is no risk of IPV. Second, a remarkably wide array of behaviors constitute risk factors for IPV perpetration.
A screening protocol should identify known indicators of risk, danger, and potential lethality for the purpose of risk assessment, safety planning, and further investigation. The custody evaluator should recognize that the presence of one or more of the example indicators listed below does not conclusively establish risk nor does their absence conclusively establish lack of risk:
What are some of those risk factors? Risk factor (d) informs custody evaluators that the refusal to “take responsibility” for one’s IPV perpetration and/or avoiding arrest for same constitute risk factors for future perpetration.
Nowhere does the AFCC draft consider the possibility that a person might have reason to disagree with a finding of IPV perpetration. Given the astonishingly broad definition of IPV, it wouldn’t be surprising to find a father justifying, say, his repeated attempts to get his wife to spend less of the family’s hard-earned income. Regardless of how reasonable his efforts may have been, according to the AFCC, he’s committed IPV and, if he disagrees, is considered to be a risk for future “violence.”
The catchall, “other risk factors” for future IPV perpetration includes “recent separation,” i.e. exactly the thing that virtually every couple does prior to divorcing. Another finds the presence in the home of children who aren’t the biological children of one of the parents to be a risk factor. That of course means that every step-parent who gets divorced is a risk factor for IPV. Yet another is “unemployment.” So if Mom or Dad has been a stay-at-home parent, he/she is a risk factor for IPV as is any parent who’s temporarily out of a job.
The plain goal of these guidelines is to encourage evaluators to conclude that IPV is occurring, has occurred or is likely to occur in as many divorcing couples as humanly possible. Never mind that there’s no evidence of IPV or that everyone in the family denies it. Never mind that all family members behave within the normal, expectable limits of people in their stressful situation. Never mind that children whose parents are divorcing may be upset by the fact. No, the aim is to find that someone in the family has perpetrated or is likely to perpetrate IPV and the others to be victimized by it.
And who is that likely perpetrator? The draft vacillates between scrupulously gender-neutral language and overtly anti-father claims, but the gist is clear enough.
For example, the draft guidelines themselves are a project of the AFCC “in consultation with” the Battered Women’s Justice Project. Unsurprisingly, the fact that half or more of all IPV is committed by women appears nowhere in the guidelines.
So, while the draft appropriately cautions against exercising bias in the evaluation process, it goes on to identify gender bias as “arising from a culture of sexism and violence against women that can normalize abuse and discrimination.” The idea that our culture does no such thing and in fact does the opposite appears nowhere. Nor does the idea that VAWA for two decades failed to acknowledge the fact of male victims or female perpetrators of IPV or to make services available for either. Nor does the fact that the idea of IPV as a gendered phenomenon has been scuttled by much scrupulous research. Nor does the idea that, if violence against either sex is “normalized,” it is violence against men and boys by, among other sources, the DV industry and the federal government.
In the same vein, the AFCC goes on to mention as biases to be avoided “maternal inequality and devaluation, attitudes to divorce that stigmatize mothers and/or roles and practices that elevate fathers and diminish maternal authority and bonds.”
The people writing this draft apparently actually believe that, in some way, this culture and the family courts in it “devalue” and “stigmatize” mothers while “elevating” fathers. Really. How do they do those things? That of course goes unsaid. Somehow fathers being routinely denied custody of or access to their kids constitutes “elevating” fathers. Draconian child support laws, I suppose, do the same. The utter refusal to enforce fathers’ meager visitation rights must do likewise, as do adoption laws that encourage the taking of children from fathers. Popular culture that portrays mothers as saints and fathers as demons falls right into line. I could go on, but it’s apparent that the people writing this either haven’t the most basic knowledge of the realities of family courts or are happy to mislead.
That they tell custody evaluators to be on the lookout for largely non-existent bias against mothers while ignoring actual bias against fathers is beyond disgraceful.
Another notion that pervades the draft is that, if there is IPV, it must impact child custody and access. That is, there is no form of IPV, regardless of how trivial, how distant in time, how occasional, how non-injurious, that shouldn’t affect an evaluator’s recommendation regarding custody and access. That of course contradicts social science that has long recognized that there are many parental behaviors that, while far from ideal, shouldn’t result in depriving a child of its parents. Some parents spank their children and that’s generally regarded as bad parenting. But should their child never see them again? If both parents do it, should the child go to foster care and the parents have their rights terminated?
Few would argue for such a harmful and unnecessary outcome, but the AFCC draft recognizes no gradations of less than ideal adult behaviors, either toward the child or toward each other.
And what about the rather important items that appear nowhere in the guidelines? Since the draft is all about IPV, you’d think there’d be a mention of false allegations and how they strongly indicate a parent who’s willing to abuse the kids by lying to keep them from the other parent. After all, Kruk, citing Birnbaum and Bala, and Allen and Brinig, states “False allegations of abuse are prevalent in child custody disputes…” But the guidelines make not a single mention of them.
Parental alienation is also missing from the draft. That’s doubly strange since the AFCC itself devoted an entire edition of its journal to parental alienation. That followed closely on the heels of a survey of AFCC members who all but unanimously agreed on the existence of PA. And, since parental alienation is widely regarded in the mental health community to be a form of child abuse, you’d think it would make up a significant part of the guidelines for custody evaluators. After all, if one is to advise a court on the best parenting arrangement post-divorce for a child, surely one should be adept at identifying the behaviors associated with parental alienation. But the draft is entirely silent on this most vital of matters.
The AFCC’s draft guidelines have the power to do much harm to children who need both parents in their lives following divorce. They are plainly aimed at, wherever possible, concluding that IPV has occurred and separating children from one parent, usually their father. We already do far too much of that and should be hard about the task of reform. The AFCC guidelines seek to make a bad status quo worse.
Please comment. Here’s the link to the AFCC site.
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