Maryland child custody committee recommends specialized judges for custody cases involving child abuse or domestic violence

Hera McLeod did everything she could to protect her baby son from a father who she said had attempted to suffocate her when she was pregnant, raped her 19 year-old sister and was a suspect in killings of his mother and the mother of his other child. But it was not enough The judge in her custody case accepted her ex-husband’s favorable evaluation by a school counselor who was not certified to evaluate adults. In contrast, he did not accept a police report regarding the father’s abuse of another child in Virginia in the absence of the arresting officer. On his fifth unsupervised visit, paramedics responding to a 911 call found 15-month-old Prince naked, wet and not breathing at Rams’ home. Joaquin Rams is serving a life sentence for drowning his son.

Prince’s case is not unique. Around the country there has been a growing awareness that family courts are failing to protect children in custody cases where there is domestic violence or child abuse. Parents who attempt to protect their children from abusive ex-partners (often known as “protective parents”) are labeled as alienators or “high conflict” and often penalized and their warnings disregarded, as discussed in an earlier post by Child Welfare Monitor. The results can be tragic. The Center for Judicial Excellence has documented 758 children murdered by a divorcing or separating parent since 2008. We have no idea how many children are ordered into some type of unsupervised contact with an abusive parent: this number was estimated at 58,000 in 2008. While murder is an extreme result of bad custody decisions, the devastating results on surviving children of being left with an abuser are incalculable.

Anne Hoyer directs the State of Maryland’s Safe at Home Address Confidentiality Program for domestic violence survivors. From talking to the women she served, Hoyer became more and more concerned about how often she was hearing about judges awarding custody of children to their abusers. She worked with State Senator Susan Lee to draft legislation setting up a workgroup to study child custody court proceedings involving child abuse or domestic violence.

The legislation took effect in 2019 and the workgroup began meeting in June of that year. Chaired by the Secretary of State, who has jurisdiction over the Safe at Home program, the workgroup included four legislators, 12 other members with expertise on domestic violence, child abuse or child custody, and one parent with personal Family Court experience. On September 15, 2020, the workgroup issued its final report. It contains a summary of its findings as well as 24 recommendations designed to improve the performance of Maryland’s Family Court in protecting children involved in custody cases involving abuse or domestic violence.

The workgroup acknowledged the difficulty of making custody decisions in cases where domestic violence or child abuse are present. Abused children, domestic violence victims, and domestic abusers may all behave in counterintuitive ways. An abusive parent may make a better impression on the court than the protective parent; an abused child may deny the abuse and demonstrate attachment to the abusive parent. As a result, protective parents may be labeled as unreasonable, vindictive, or attempting to “alienate” their child from the abusive parent. Ms. McLeod described trying to abide by the advice of attorneys to express her desire that her son have a healthy relationship with his father while at the same time convincing the court that her husband was dangerous–an almost impossible tightrope to walk. The workgroup also noted that abusive parents with greater financial means often use litigation to assert continued control over protective parents and can use their superior resources to buy better representation in the court case and impose burdensome costs on protective parents.

The workgroup also expressed its concern about the widespread acceptance by courts of parental alienation claims against protective parents–a national problem. Specifically, a child’s fear or hostility toward a parent accused of being abusive by the other parent is attributed to the latter’s attempt to “alienate” the child from the other parent. The workgroup heard from Joan Meier, whose massive study on this issue has drawn much attention. Meier presented her results that indicate when a father claims alienation, the court’s likelihood of believing a mother’s abuse claim is dramatically reduced.

Professor Meier’s results also supported the conclusion that courts are now biased against mothers– in contrast to the anti-father bias that used to be prevalent in family court. For example she found that when fathers alleged that mothers were alienators, they took custody 44 percent of the time. Mothers who alleged that fathers were alienators took custody only 28 percent of the time. Fathers who were proven to have committed child physical abuse still took custody 25 percent of the time; mothers proven to have committed physical abuse were never granted custody. Experts cited additional evidence of gender bias in custody cases. Dr. Daniel Saunders presented a survey of 200 judges and 465 custody evaluators showed the prevalence of sexist myths, such as that mothers often accuse fathers falsely of domestic violence, that lead to recommendations likely to harm domestic violence victims and their children. Deborah Epstein, the Co-Director of the Domestic Violence Clinic at George Washington University Law School shared observations from many years of experience in DC Superior Court documenting routine disbelief of women’s claims of domestic abuse. (Summaries of all the presentations are provided at the end of the workgroup’s report).

Two of the most important workgroup recommendations, according to Hoyer, address judicial training and specialization. The workgroup recommended that the judiciary, in consultation with domestic violence and child. advocacy organizations, develop an ongoing training program for judges who preside over custody cases that involve child abuse or domestic violence. A judge would be required to receive at least 60 hours of training before presiding over such a case and to pursue at least 10 hours of such training every two years to continue hearing these cases. The workgroup also recommended a list of topics to be covered in the initial training, including: the impact of adverse childhood experiences on children and variations in how children respond to trauma; limitations in Child Protective Services responses to allegations and the fact that abuse may have occurred even if an investigation did not substantiate it; the impact of exposure to domestic violence on children; the effects of bias on custody decision-making; the history of parental alienation theory and its inappropriate use in child custody cases; and tools to assess children’s credibility in court.

Considering the impractically of training all circuit court judges this deeply in these issues, the workgroup recommended that a limited number of judges be specially trained to handle custody cases in which child abuse or domestic violence have been alleged or established. Moreover, the Judiciary must ensure that such cases are assigned only to Judges with this specialized training.

The workgroup made many other recommendations, including several that would change statutory language to better account for child abuse and domestic violence, impose more stringent qualifications and requirements for other professionals (lawyers and custody evaluators) involved in custody cases, and give parties access to needed resources without financial hardship. But according to Hoyer, “establishing a corps of judges who want to do this work and giving them the tools to do it is the essential foundation that will pave the way for future changes.” For example, fully-trained and specialized judges will be less likely to accept evaluations that are inadequate or performed by unqualified people.

Legislators and other workgroup members will be meeting in the weeks ahead to translate some of the recommendations into legislation to be introduced during the upcoming legislative session. Maryland’s workgroup is the first of its kind in the nation and Hoyer has received questions from many other states. Child Welfare Monitor hopes that other states will follow Maryland’s example and initiate the process for making our troubled family courts safe for children.