Testimony to the Washington Legislature

In Opposition to H.B. 2237 and S.B. 5205 By Bandy X. Lee, M.D., M.Div.My name is Bandy Lee, and I would I would like to express my strong opposition to H.B. 2237 and S.B. 5205, which will make the crisis situation in our family courts deadlier.

I am a forensic psychiatrist and violence expert who taught at Yale School of Medicine and Yale Law School for seventeen years before transferring activities to Columbia University and Harvard Medical School. I am cofounder of the Violence Prevention Institute and president of the World Mental Health Coalition. I have served as an expert consultant for several states including New York, Connecticut, Massachusetts, Alabama, and California, and for several countries including Ireland and France, on prison reform and violence prevention programming. I helped author the United Nations Secretary-General’s chapter on “Violence against Children” in 2007 and have led a project group for the World Health Organization’s Violence Prevention Alliance since 2011. I am a recipient of the National Institute of Mental Health’s National Research Service Award and author of the textbook, Violence (Lee, 2019), over 100 scientific articles and chapters, and over 300 opinion articles on issues related to violence prevention. My clinical practice specializes in treating violent offenders, and I have served as an expert witness for criminal and civil courts in approximately seventy cases and for family court in approximately two dozen cases. I have previously testified on the dangers of family courts for the Colorado, New York State, Louisiana,
and Tennessee legislatures.

We know from scientific research that the trauma and the mental health effects of domestic violence are as severe as those for combatants in any war. For many women and children, the home is the most dangerous and deadliest place to be. That family courts are failing to recognize domestic abuse,
but routinely sending children to their abusers and severing contact with their primary caregivers, is currently one of the greatest human rights emergencies on U.S. soil— especially since this has lifelong and intergenerational repercussions.

Now, there are even greater dangers arising from “reform” efforts that actually weaponize or subvert new laws to make the situation worse. Yale Law School’s Robert Cover said: “Interpretations in law … constitute justifications for violence” (Cover, 1986).

Family court judges are granted wide “discretion” with the law, initially with good intentions, but the lack of oversight and the power to conduct all proceedings in secrecy have—much like the prison system I have studied for decades—led to disastrous results. That a world of brutality and violence
flourishes not only in prisons behind concrete walls, but also in courts of law behind sealed records and gag orders, is one of the most disturbing realities I have witnessed in my 25 years of forensic practice—especially since innocent children are the primary victims.

The statistics are stark. Three-quarters of women in the United States who are killed by their abusers are murdered after they leave the abusive relationship. Of the approximately 100,000 contested child custody cases each year in the United States, a vast majority are actually domestic
violence cases involving the most dangerous individuals our society produces. Abusive fathers are more than twice as likely to seek sole custody of their children than non-abusive fathers, and family courts award them joint or sole custody almost three-fourths of the time (Resource Center on Domestic Violence: Child Protection and Custody, 2023). Many fathers who are thus granted custody kill their children, such that a sizeable portion of the nation’s child murders by parent are the result of placement by family courts.

The Center for Judicial Excellence (2023) has tracked over 940 children murdered by a divorcing or separating parent over a fifteen-year period in the United States. A detailed study of 175 child murders by fathers in relation to contested custody showed that family courts had in many cases
given the access they needed to murder their children, over the objections of the mother (Bartlow, 2017). For every murder, there are many more suicides, and for every death, there are hundreds of injuries that require medical attention. Yet, these numbers are an undercount, as near-universal
record concealment, sometimes against the litigants themselves, makes it virtually impossible to track the true number of child murders family courts enable.

Deaths are only the extreme end, since the “soul murder” that children endure with the experience of abuse is unseen from the outside. More than 58,000 children a year are ordered into unsupervised custody by their physical or sexual abuser following divorce in the United States (Silberg, 2008). These children are maximally exposed to lifelong psychological and physical illness, substance abuse, relationship problems, vulnerability to future abuse, as well as decades of loss of life, according to the highly-respected, federally-funded nationwide Adverse Childhood
Experiences (ACE) study (Felitti et al., 2002).

Family courts’ denial of abuse allegations is highly consequential, since child abuse and neglect are very common. According to the Centers for Disease Control and Prevention (CDC), one in five Americans were sexually molested as a child, one in four were beaten by a parent to the point of leaving a mark on the body, and one out of eight witnessed their mother being beaten. Five children die per day from abuse in the United States, and four will have involved a parent. Almost one in three abused and neglected children will later abuse their own children, continuing this horrible
cycle of abuse—and family courts may be a contributor to worsening trends (Friedman, 2019).

In a disproportionate number of family court cases, the “protective parent” loses custody for simply bringing up the abuse, thus stripping the children not only of their primary attachment figure and primary support, but the number one mitigating factor that could help them heal from the abuse. The result is that there is no greater tragedy for growing children, no greater loss for loving parents, and studies now show that large numbers of protective parents, usually mothers, die (Thomas, 2023).

Child abuse not only affects the current levels of violence in society but has measurable impacts on the levels of heart disease, cancer, obesity, high blood pressure, mental illness, substance abuse, crimes, suicides, and life expectancy (Petruccelli et al., 2019). The economic cost of child
abuse and neglect in the United States was estimated at 592 billion dollars in 2018 (Klika et al., 2020).

In spite of all this, a U.S. Department of Justice-commissioned study found that “domestic violence is frequently … ignored as a significant factor in determinations of custody and visitation” (Saunders et al., 2011). Indeed, pervasive practices of family courts knowingly granting the abusive parent primary custody or unprotected parenting time has tragically not only gone undetected—but have become increasingly extreme in their unchecked abuses. Furthermore, biases against women, children, and allegations of abuse endemic in family courts help dangerous individuals, especially men, to weaponize the courts as instruments of their abuse. Family courts have essentially crafted a subculture that sharply deviates from mainstream society, quickly turning child custody disputes into a surreal, upside-down situation where abuse does not exist, violence is “good” for the child, and attempts to protect children are labeled as “mental illness.”

Tactical theories designed to defeat mothers and children reporting abuse, such as “parental alienation,” are discredited elsewhere but thrive in the context of family courts. This hypothesis, originally based not on research but on the personal biases of Richard Gardner, has been debunked scientifically and denounced by reputable medical, psychiatric, and psychological associations— as well as, most recently, the United Nations (2023). Yet, this “pseudo-concept” continues to dominate as a strategy abusers use to manipulate family courts and is being exported internationally at
alarming rates. It enables the abuser to portray that child sexual, physical, and psychological abuse is made up and the children rejecting him are “coached” by the primary caregiver to “alienate” him, rather than being a survival mechanism against his harmful actions.

According to a notable study by Prof. Joan Meier (2020) of 240 electronically published court opinions, when courts believe a father’s claim of alienation, fathers win about 95 percent of the cases regardless of whether or not the mother claimed abuse. If there were domestic violence reports, they won almost three-fourths of cases, and were especially successful with child sexual abuse reports (four-fifths). Indeed, the study found that courts disbelieved 94 percent of the child sexual abuse reports when, in fact, studies have repeatedly established that not only is
deliberate false reporting rare—as little as 0.1 percent (U.S. Department of Health and Human Services, 2010)—but that child abuse is greatly underreported. False allegations of “parental alienation,” on the other hand, are almost exclusively on the part of the abuser.

As a result, whether through ignorance or willful blindness, bad decisions have become the norm in family courts. A major National Institute of Justice-sponsored family court outcomes study came to the astonishing conclusion that if all family court custody decisions were reversed, they would be
more correct (George Washington University, 2018). A cottage industry of lawyers and poorly-qualified “experts”, backed by abuser groups (which call themselves men’s rights or father’s rights groups) has developed because in domestic violence cases, the abusers usually control the money, and it is more lucrative to help the abusers. The most dangerous abusers use children as pawns to torment protective parents or to gain child support, seize marital assets, and even incarcerate protective parents, with shockingly high rates of success. The greatest casualties are the children, who suffer immeasurably and not only lose the opportunity ever to reach their full potential but in large part become the next generation of angry murderers and rapists, not to mention destroyers of their own lives.

Giving family courts further legal ammunition could prove catastrophic. In Washington State, the Superior Court Judges Association (“SCJA”) is proposing significant changes to RCW 26.09.191,considered the most important statute governing parenting plan decisions in cases involving
physical, sexual, and emotional abuse. House Bill 2237 adopts this proposal, and the companion bill, Senate Bill 5205, retains the original version proposed by SCJA that eviscerates the existing statute and case law protections for survivors of domestic violence seeking relief in family court. It does so by creating even more room for judges to remove children from their protective, non-abuser parent, and for the first time in decades, by allowing perpetrators of domestic violence to share decision-making with their victims. It makes it lawful for family court judges to remove children from non-abuser parents with mental health diagnoses such as anxiety or posttraumatic stress disorder (PTSD), which are common consequences of being a victim of violence. Family Violence Appellate Project (FVAP, 2024), a leader in creating protections in case law for domestic violence survivors in family law, recently published a memo and line-by-line interpretation of the inherent dangers of this abuser-friendly proposal. For the protection of endangered children and their loving parents, and to prevent further family court- related deaths,

H.B. 2237 and S.B. 5205 should not pass.

References

Bartlow, R. D. (2017). Judicial response to court-assisted child murders. Family and Intimate Partner Violence Quarterly, 10(1), 7-54.

Center for Judicial Excellence (2023). Child Safety First: Preventing Child Homicides During Divorce, Separation, and Child Custody Disputes. San Rafael, CA: Center for Judicial Excellence. https://centerforjudicialexcellence.org/2023/07/17/cje-releases-child-safety- report/

Cover, R. M. (1986). Violence and the word. Yale Law Journal, 95, 1601-1629.

Family Violence Appellate Project (2024). Advocate for Comprehensive Family Court Reform— Oppose Shortsighted Changes. Oakland, CA: Family Violence Appellate Project. 

Felitti, V. J., Anda, R. F., Nordenberg, D., Williamson, D. F., Spitz, A. M., Edwards, V., and Marks, J. S. (1998). Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study. American Journal
of Preventive Medicine, 14(4), 245-258.

Friedman, G. (2019, September 18). Fatal Court: ‘The Harm to Children in the Nation’s Family Courts Has Reached Crisis Proportions.’ Deseret News. https://www.deseret.com/2019/9/17/20805882/fatal-family-court-parental-rights-custody-battles-child-deaths-harm-center-for-judicial-excellence

George Washington University (2021). Draft Summary: Overview of Family Court Outcomes Study. Washington, DC: National Institute of Justice. https://www.ojp.gov/pdffiles1/nij/grants/302141.pdf

Klika, J. B., Rosenzweig, J., and Merrick, M. (2020). Economic burden of known cases of child maltreatment from 2018 in each state. Child and Adolescent Social Work Journal, 37, 227- 234.

Lee, B. X. (2019). Violence: An Interdisciplinary Approach to Causes, Consequences, and Cures. New York, NY: Wiley-Blackwell.

Meier, J. S. (2020). U.S. child custody outcomes in cases involving parental alienation and abuse allegations: What do the data show? Journal of Social Welfare and Family Law, 42(1), 92-105.

Petruccelli, K., Davis, J., and Berman, T. (2019). Adverse childhood experiences and associated health outcomes: A systematic review and meta-analysis. Child Abuse and Neglect, 97, 104127.

Resource Center on Domestic Violence: Child Protection and Custody (2023). Facts. Reno, NV: National Council of Juvenile and Family Court Judges. https://rcdvcpc.org/facts.html

Saunders, D. G., Faller, K. C., and Tolman, R. M. (2011). Child Custody Evaluators’ Beliefs about Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations. Washington, DC: U.S. Department of
Justice. https://www.ojp.gov/pdffiles1/nij/grants/238891.pdf

Silberg, J. (2008). How Many Children Are Court-Ordered into Unsupervised Contact with an Abusive
Parent after Divorce? Baltimore, MD: Leadership Council. http://www.leadershipcouncil.org/1/med/PR3.html

Thomas, E. (2023). Family courts: Children forced into contact with fathers accused of abuse.
BBC. https://www.bbc.com/news/uk-66531409

United Nations (2023). Custody, Violence against Women and Violence against Children: Report of the
Special Rapporteur on Violence against Women and Girls, Its Causes and Consequences, Reem Alsalem.
New York, NY: United Nations. https://www.ohchr.org/en/documents/thematic-reports/ahrc5336-custody-violence-
against-women-and-violence-against-children

U.S. Department of Health and Human Services. (2010). Child Maltreatment 2010. Washington, DC: U.S.
Department of Health and Human Services. http://www.acf.hhs.gov/programs/cb/stats_research/index.ht