Safe Child Act section Correcting Existing Mistaken Outcomes

by Barry Goldstein

Last month my article was about legislation needed to stop custody courts from routinely sending children into the custody of dangerous abusers. My meeting with a state legislator led to her request that I prepare a proposal that would be the basis of legislation to reform the broken system. I would like to thank Toby Kleinman for her assistance in drafting this proposal. Immediately below will be my proposal for a Safe Child Act and I will then discuss why I think this would make a difference. You are most welcome to post or otherwise use this proposal and this article in support of efforts to reform the system. In fact I hope many people will take the proposal for a Safe Child Act and ask their legislators to sponsor it. 

Safe Child Act 

Purpose: Improve the Safety of Children involved in Child Custody Cases 



Correcting Existing Mistaken Outcomes 

What do we do about the tens of thousands of heartbreaking cases in which custody courts have used their standard flawed practices to separate children from safe protective mothers who usually have been their primary attachment figure and sent them to live with dangerous abusers? Courts follow the doctrine of stare decisis in all cases, not just custody or domestic violence. This mean that once they make a decision, it is binding on both parties and cannot be relitigated. There are many good reasons for this practice as constantly retrying cases because one party is dissatisfied with the results would clog the courts and waste resources. We can be sure abusers would take full advantage if they were permitted to. 

We often see cases in which the court considered allegations of domestic violence or child abuse, found against the mother and then refuse to consider new evidence that with the earlier evidence would prove the father is dangerous. The original decision might be because there was not sufficient evidence or the flawed practices prevented the court from using the evidence to understand the actual situation. The Safe Child Act would provide a solution and create the opportunity for many children to be rescued. 

The law would say that the findings that custody courts are routinely using bad practices that result in its failure to recognize valid allegations of abuse. Accordingly the passage of the law and the findings and research it is based upon constitute a change of circumstance that would permit victims of the flawed practices to have a new hearing to determine if the custody-visitation arrangement should be changed based upon the improved practices required by the law and the research about children’s safety. Once courts make a mistake and send children to live with an abuser they often refuse to return the child to the safe parent based on continuity. Basically this means that children do better when their lives are not disrupted so there is a strong tendency to leave the child with the custodial parent (of course this does not seem to be an obstacle when they want to remove children from their mothers). Continuity is a valid consideration and reasonable to be included in the factors determining custody. It is not, however a safety issue so that proof of domestic violence, child abuse or primary attachment which are all safety issues would take precedence. 

This means that courts could not refuse to provide a new hearing or consider evidence of domestic violence or child abuse despite prior denials of the allegations. In the new hearing the courts would have to use the new and improved practices mandated by the law. Hopefully this would discourage courts from continuing to send children to live with abusers because this would only make more work for the court. Most importantly, the law would give protective parents an opportunity to rescue children placed in danger by mistaken court decisions.