Response to ‘The ‘pre-pre-precautionary’ eradication of the American father’
To the editor,
I am an attorney who has practiced in the family courts representing survivors of domestic abuse for 37 years. I have also conducted extensive research over the years on the treatment of battered mothers and their children in the courts, teach at the City University of New York at John Jay College’s Graduate program in forensic psychology and have written extensively on this subject.
While I agree with Ms. Hyman that there are significant problems in the family courts, the answers cannot be found in disregarding allegations of abuse. Families in crisis seek the protection of the courts because of domestic abuse, substance abuse, child maltreatment, or untreated mental illness. These are wide-spread problems that exist in families from all economic, racial and ethnic backgrounds. Yet judges, attorneys and forensic mental health evaluators are poorly equipped to address the needs of families in crisis.
Since the inception of the first courts that addressed the needs of children and families in the early 20th century, these courts were plagued with insufficient funding, training, staffing and facilities. These problems were compounded because the founders of these courts viewed litigation and trials as destructive for families. Instead, they chose “therapeutic justice,” in which all the problems of the family would be heard in an informal, closed, parochial atmosphere before a small interdisciplinary team headed by an experienced judge. This judicial approach was radically different from the criminal courts which favored public, evidence-based trials. Any family court litigant who has taken off time from work to attend informal conferences frequently held without the benefit of a judge or court reporter, can attest to the delays and lack of due process protections that are part of this informality.
Nor can the problems in the family court be solved by having more forensic mental health evaluators. Researchers have repeatedly found that such evaluators had no formal graduate education in domestic violence, held significant biases against women and recommended joint or sole custody to abusers even when provided with supporting documentation.
There is also an extensive body of research which concluded that there was significant gender bias against women in the courts. One study found that battered women and their advocates were not safe in the New York City family courts, subjected to physical threats and stalking. Unfortunately, this finding was not a surprise as my clients and I have experienced similar threats.
Children are particularly vulnerable in the family courts. Despite passage of legislation in most states that provided that judges are to give “weighty consideration” to the proven existence of domestic violence during custody and visitation cases, judges have been found to favor co-parenting and joint custody. One researcher found that when judges must balance fathers’ rights against children’s, fathers’ rights frequently prevail.
Only in the last month was legislation in New York passed in honor of Kyra Franchetti, a two-year old girl shot by her father after both the custody evaluator and the judge decided that it was safe for her to have unsupervised visitation with her father. Her mother, Jacqueline Franchetti fought for years to make the legislative changes that would require judges to prioritize children’s safety.
But legislative change requires training. As someone who has conducted judicial training, I have learned that training on domestic abuse, coercive control, and child maltreatment must be mandatory for judges and court personnel. To be effective, such training must be conducted at regular intervals, the curriculum must be transparent and subject to evaluation.
When tragedies occur and children are murdered, we can look to the medical model of Mortality and Morbidity Conferences for answers, in which doctors meet to address what went wrong in their patient’s care. So too, judges, court personnel and advocates could review child fatalities that occur during the course of family court proceedings, to determine what could have been done differently.
Finally, children exposed to abuse will suffer medical, psychological and social problems for decades to come. Addressing the problems of the family courts requires an understanding of the relevant research and a willingness to put our children’s safety and well-being first.
LISA FISCHEL-WOLOVICK, JD, MSW
Author: Behind the Courthouse Doors: The Institutional Control of Children, (Oxford University Press, Expected August, 2026); and Traumatic Divorce and Separation (Oxford University Press 2018).
