High conflict families are disproportionately represented among the population of those contesting custody and visitation. These cases commonly involve domestic violence, child abuse, and substance abuse. Research indicates that that custody litigation can become a vehicle whereby batterers and child abusers attempt to extend or maintain their control and authority over their victims after separation. Although, research has not found a higher incidence of false allegations of child abuse and domestic violence in the context of custody/visitation, officers of the court tend to be unreasonably suspicious of such claims and that too often custody decisions are based on bad science, misinterpretation of fact, and evaluator bias. As a result, many abused women and their children find themselves re-victimized by the justice system after separation.
Empirical research examining this issue is summarized below.
I. RESEARCH
Abrams, R., & Greaney, J. (1989). Report of the gender bias study of the Supreme Judicial Court of the Commonwealth of Massachusetts.
A 1989 study by the Massachusetts Supreme Judicial Court found that in cases involving custody and visitation litigation, “The interests of fathers are given more weight than the interests of mothers and children.” (pp. 62-63).
Ackerman, M. J., & Ackerman, M. C. (1996). Child custody evaluation practices: A 1996 survey of psychologists. Family Law Quarterly, 30, 565-586.
Research has found that many custody evaluators consider alienation of more significance than domestic violence in making custody recommendations. A survey of 201 psychologists from 39 states who conducted custody evaluations indicated that domestic violence was not considered by most to be a major factor in making custody determinations. Conversely, three-quarters of the custody evaluators recommended denying sole or joint custody to a parent who “alienates the child from the other parent by negatively interpreting the other parent’s behavior.”
Bemiller, Michelle. (2008). When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts. Journal of Child Custody, 5(3/4), 228-255.
Available here ($)
Abstract: The following study adds to research that examines child custody cases involving a history of interpersonal violence. This study contributes to past research by providing qualitative accounts of women’s experiences with intimate partner violence prior to custody loss, institutional abuse at the hands of the family court, and abuse experienced after custody loss. Data come from a convenience sample of 16 noncustodial mothers from northeastern Ohio. Findings support past research, which finds corruption, denial of due process, and gender bias in the family court system. Policy recommendations are made and future research directions suggested.
Bourke, D. (1995). Reconstructing the patriarchal nuclear family: Recent developments in child custody and access in Canada. Canadian Journal of Law and Society, 10(1), 1-24.
Even if a woman is awarded custody by a court, a court will generally determine that it is in the “best interests of the child” for the ex-partner to be awarded access. According to the results of one study, in nearly every case, and eclipsing virtually all other factors, access of the non-custodial parent (usually the father) was considered paramount to the “best interests of the child”. This was irrespective of the quality or regularity of his parenting.
Chesler, P. (1991, 1986). Mothers on Trial: The Battle for Children and Custody. NY: Harcourt Brace Jovanovich, Publishers.
Phyllis Chesler interviewed 60 mothers involved in a custody dispute and found that fathers who contest custody are more likely than their wives to win (p. 65). In 82% of the disputed custody cases fathers achieved sole custody despite the fact that only 13% had been involved in child care activities prior to divorce (p. 79 tbl. 5). Moreover, 59% of fathers who won custody litigation had abused their wives, and 50% of fathers who obtained custody through private negotiations had abused their wives (p. 80 tbl. 6).
The Committee for Justice for Women and the Orange County, North Carolina, Women’s Coalition. (1991). Contested Custody Cases In Orange County, North Carolina, Trial Courts, 1983-1987: Gender Bias, The Family And The Law. Author.
The Committee for Justice for Women studied custody awards in Orange County, North Carolina over a five year period between 1983 and 1987. They reported that:
“…in all contested custody cases, 84% of the fathers in the study were granted sole or mandated joint custody. In all cases where sole custody was awarded, fathers were awarded custody in 79% of the cases. In 26% of the cases fathers were either proven or alleged to have physically and sexually abused their children.”
Depner et al. (1992). Building a uniform statistical reporting system: A snapshot of California Family Court Services. Family and Conciliation Courts Review, 30. 185-206.
Among custody litigants referred to mediation, “[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]”. Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon.”
Emery, R. E., Otto, R. K., & O’Donohue, W. T. (2007). Custody Evaluations: Limited Science and a Flawed System. Psychological Science in the Public Interest, 6(1), 1-29.
Theoretically, the law guides and controls child custody evaluations, but the prevailing custody standard (the ”best interests of the child” test) is a vague rule that directs judges to make decisions unique to individual cases according to what will be in children’s future (and undefined) best interests. Furthermore, state statutes typically offer only vague guidelines as to how judges (and evaluators) are to assess parents and the merits of their cases, and how they should ultimately decide what custody arrangements will be in a child’s best interests. In this vacuum, custody evaluators typically administer to parents and children an array of tests and assess them through less formal means including interviews and observation. Sadly, we find that (a) tests specifically developed to assess questions relevant to custody are completely inadequate on scientific grounds; (b) the claims of some anointed experts about their favorite constructs (e.g., ”parent alienation syndrome”) are equally hollow when subjected to scientific scrutiny; (c) evaluators should question the use even of well-established psychological measures (e.g., measures of intelligence, personality, psychopathology, and academic achievement) because of their often limited relevance to the questions before the court; and (d) little empirical data exist regarding other important and controversial issues (e.g., whether evaluators should solicit children’s wishes about custody; whether infants and toddlers are harmed or helped by overnight visits), suggesting a need for further scientific investigation.
Erickson, Nancy S. (2005, Spring). Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What Does Psychological Research Tell Us? Family Law Quarterly vol 39, no. 1, p. 87-108.
Erickson notes:
The effects of domestic violence on survivors, who are primarily women, may be severe. Battered women’s advocates often note that, in custody cases, the batterer often “looks better” to the court than the victim does because he is confident and calm, whereas she is still suffering the effects of his abuse and therefore may appear hysterical, weepy, anger, or otherwise not “together.”
When a custody evaluation is conducted by a psychologist, the revised version of the Minnesota Multiphasic Personality Inventory (MMPI-2) is often used as part of the evaluation process. The MMPI-2, like other traditional psychological tests, was not designed to be used in custody evaluations and arguably should not be used for such purpose except “when specific problems or issues that these tests were designed to measure appear salient in the case.”
If it used, Erickson notes that “great care must be taken” as “a misinterpretation could result in placing custody of a child with a batterer, which could put the child at severe risk.”
Erickson reviews research on the use of MMPI evaluations with battered women and found that that the psychological stress that battered women suffer may result in MMPI scores that do not accurately evaluate their ability to parent.
Faller, K. C., & DeVoe, E. (1995). Allegations of sexual abuse in divorce,Journal of Child Sexual Abuse, 4(4), 1-25.
The authors examined 214 allegations of sexual abuse in divorce cases that were evaluated by a multidisciplinary team at a university-based clinic. 72.6% were determined likely, 20% unlikely, and 7.4% uncertain. The temporal relationship between allegations and divorce were analyzed and results revealed that in cases where CSA was judged to be likely or uncertain, in 18% of these cases divorce followed discovery of sexual abuse, in 32% cases discovery of sexual abuse followed divorce, in 34% of cases sexual abuse followed divorce, and 16% of allegations were found to be unrelated to divorce. Of the 20% of cases that were judged to be false or possibly false cases, only approximately a quarter (n = 10) were determined to have been consciously made. The remainder were classified as misinterpretations.
Faller and DeVoe found that 40 concerned parents experienced negative sanctions associated with raising the issue of sexual abuse. These sanctions included being jailed, losing custody to the alleged offender, a relative, or foster case, limitation or loss of visitation, admonitions not to report alleged abuse again to the court, Protective Services or the police, and prohibitions against taking the child to a physician or therapist because of concerns about sexual abuse in the future. None of the parents experiencing these sanctions were ones who were judged to have made calculated false allegations. In fact, sanctioned cases tended to score higher on a composite scale of likelihood of sexual abuse, and were more likely to have medical evidence than cases without sanctions.
Goelman, D. M., Lehrman, F. L., & Valente, R. L. (Eds.). (1996). The impact of domestic violence on your legal practice: A lawyer’s handbook. Washington D.C.: ABA Commission on Domestic Violence.
“Custody litigation frequently becomes a vehicle whereby batterers attempt to extend or maintain their control and authority over the abused parents after separation… Be aware that many perpetrators of domestic violence are facile manipulators, presenting themselves as caring, cooperative parents and casting the abused parent as a diminished, conflict-inciting, impulsive or over-protective parent.”
Johnston, J. R., Lee, S., Olesen, N. W., Walters, M. G. (2005) “Allegations and
Substantiations of Abuse in Custody-Disputing Families.” Family Court Review, 43, 283–294.
Johnson, N. E., Saccuzzo, D. P., & Koen, W. J. (2005). Child custody mediation in cases of domestic violence: Empirical evidence of a failure to protect.Violence Against Women, 11(8), 1022-1053.
This study shows that victims of domestic violence (DV) are greatly disadvantaged when states require mediation of child custody disputes. The investigators empirically evaluated outcomes and found that mediators failed to recognize and report DV in 56.9% of the DV cases. The court’s screening form failed to indicate DV in at least 14.7% of the violent cases. Mediation resulted in poor outcomes for DV victims in terms of protections, such as supervised visitation and protected child exchanges. As a result, the capacity of mediators to focus on the child’s best interest is called into question.
Kernic, M.A., Monary-Ernsdorff, D. J., Koepsell, J. K., & Holt, V. L. (2005). Children in the crossfire: Child custody determinations among couples with a history of intimate partner violence. Violence Against Women, 11(8), 991-1021.
This retrospective cohort study examined the effects of a history of interpersonal violence (IPV) on child custody and visitation outcomes.
The investigators analyzed documentation on more than 800 local couples with young children who filed for divorce in 1998 and 1999. These included 324 cases with a history of domestic violence and 532 cases without such a history. The researchers estimate that at least 11.4% of Seattle divorce cases involving couples with dependent children involve a substantiated history of male-perpetrated domestic violence. The findings reveal a lack of identification of IPV even among cases with a documented, substantiated history, and a lack of strong protections being ordered even among cases in which a history of substantiated IPV is known to exist.
- In 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files.
- “The court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence.”
- Mothers in cases with a violent partner were no more likely to obtain custody than mothers in non-abuse cases. Fathers with a history of committing abuse were denied child visitation in only 17% of cases.
Logan, T. K., Walker, R., Jordan, C. E., & Horvath, L. S. (2002). Child custody evaluations and domestic violence: Case comparisons. Violence & Victims, 17(6), 719-42.
This study is one of the first to examine characteristics of disputed custody cases and their custody evaluation reports differences between domestic violence and non-domestic violence cases. This study selected a 60% random sample of cases with custody evaluations in Fiscal Year 1998 and 1999 (n = 82 cases). Out of the 82 cases, 56% (n = 46) met criteria for classification into the domestic violence group and 44% (n = 36) did not. In general, results indicated that although there were some important differences in court records between cases with and without domestic violence, there were only minor differences between custody evaluation reported process and recommendations for the two groups.
Lowenstein, S. R. (1991). Child sexual abuse in custody and visitation litigation: Representation for the benefit of victims. UMKC Law Review, 60, 227-82.
Sharon Lowenstein examined 96 custody and visitation disputes involving allegations of child sexual abuse from 33 states. Visitation was the principal issues in 36 cases. The father was alleged to have sexually molested their child in each of these 36 cases. Yet in two-thirds (24) of these cases fathers were granted unsupervised visitation.
Custody was the principle issue in 56 cases. In 27 of the 56 cases (48%) mothers lost custody. In 17 of these cases (63%) the mother lost custody to a father alleged to be a perpetrator. In two cases (3.6%) fathers lost custody. No father lost custody to a mother whose household included an alleged perpetrator (either the mother, a stepfather, the mother’s boyfriend, or one of mother’s relatives).
Meier, Joan. Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, A.U. J. Gender, Soc. Pol. & the Law, 11:2 (2003), 657-731, p. 662, n. 19, and Appendix.
Joan Meier surveyed the 2001 case law and identified 38 appellate state court decisions concerning custody and domestic violence. She found that 36 of the 38 trial courts had awarded joint or sole custody to alleged and adjudicated batterers. Two-thirds of these decisions were reversed on appeal.These cases included a case in which the perpetrator had been repeatedly convicted of domestic assault (In re Custody of Zia, 736 N.E. 2d 449 [Mass. App. Ct. 2000]); in which a father was given sole custody of a16-month old despite his undisputed choking of the mother resulting in her hospitalization and his arrest (Kent v. Green, 701 So. 2d 4 [Ala. Civ. App. 1996]); in which the father had broken the mother’s collarbone (Couch v. Couch, 978 S.W.2d 505 [Mo. App. 1998]); had committed “occasional incidents of violence” Simmons v. Simmons, 649 So. 2d 799, 802 [La. App. Ct. 1995]); and had committed two admitted assaults (Hamilton v. Hamilton, 886 S.W.2d 711, 715 [Mo. App. 1994]) . More such instances can be found in the article.
Neustein, A., & Goetting, A. (1999). Judicial Responses to Protective Parents, Journal of Child Sexual Abuse, 4, 103-122.
http://www.haworthpressinc.com/store/SampleText/J070.pdf (go to page 109 of pdf)
This study examined judicial responses to protective parents’ complaints of child sexual abuse in 300 custody cases with extensive family court records. The investigators found that only in 10% of cases was primary custody was given to the protective parent and supervised contact with alleged abuser. Conversely, 20% of the cases resulted in a predominantly negative outcome where the child was placed in the primary legal and physical custody of the allegedly sexually abusive parent. (see p. 108). In the rest of the cases, the judges awarded joint custody with no provisions for supervised visitation with the alleged abuser.
Neustein, A., & Lesher, M. (2005). From Madness to Mutiny — Why Mothers are Running from Family Court and What Can Be Done About It. (Northeastern University Press.
This scholarly book documents case after case where accusations of sexual abuse by a child resulted in forced contact with the alleged abuser, and sometimes complete termination of parental contact with a loving parent who seeks only to protect the child.
Morrill, A. C., Dai, J., Dunn, S., Sung, I., & Smith, K. (2005). Child custody and visitation decisions when the father has perpetrated violence against the mother. Violence Against Women, 11(8), 1076-1107.
This research evaluated the effectiveness of statutes mandating a presumption against custody to a perpetrator of domestic violence (DV) and judicial education about DV. Across six states, the authors examined 393 custody and/or visitation orders where the father perpetrated DV against the mother and surveyed 60 judges who entered those orders. With the presumption, more orders gave legal and physical custody to the mother and imposed a structured schedule and restrictive conditions on fathers’ visits, except where there was also a “friendly parent” provision and a presumption for joint custody. Thus it appears that a presumption against custody to a perpetrator of DV is effective only when part of a consistent statutory scheme.
Polikoff, N. D. (1992). Why are mothers losing: A brief analysis of criteria used in child custody determinations. Women’s Rights Law Reporter, 14, 175-184.
Finding that judges evidence a strong “paternal preference” in contested custody cases. When sole custody is awarded, it is awarded to the father in 50-63% of cases.
Rosen, L. N., & Etlin, M. (1996). The hostage child: Sex abuse allegations in custody disputes. Bloomington, IN: Indiana University Press.
This book challenges the presumption that allegations of child sexual abuse that arise during custody disputes are usually fabricated. Five cases are described in which children were not protected from their abuser during custody disputes, despite the existence of medical evidence of sexual abuse. In these cases, the allegations were not believed, and the children were returned to the parent who abused them.
Rosen, L. N., & O’Sullivan, C. S. (2005). Outcomes of custody and visitation petitions when fathers are restrained by protection orders: The case of the New York family courts. Violence Against Women, 11(8), 1054-1075.
A random sample of custody and visitation petitions filed in New York City Family Courts in 1995 was used to examine outcomes of mothers’ Order of Protection (OP) Petitions in relation to parents’ custody and visitation petitions. Fathers restrained by OPs were more likely to secure visitation orders (64%) than not. In contrast, 80.8% of fathers’ custody petitions were dismissed when they were restrained by OPs. Fathers’ custody petitions were most likely to be ordered when mothers’ OP petitions were withdrawn. Mothers were most likely to secure custody when their OP petitions were ordered or withdrawn. Courts rarely denied petitions. Those that did not result in court orders were either withdrawn by the petitioner or dismissed by the court (most likely because of failure of the petitioner to appear in court). This pattern has negative implications for battered women who may be vulnerable to pressure or threats from abusive ex-partners.
Saccuzzo, D. P., & Johnson, N. E. (2004). Child custody mediation’s failure to protect: Why should the criminal justice system care? National Institute of Justice Journal, 251, 21-23.
Available at http://ncjrs.org/pdffiles1/jr000251.pdf
The researchers looked at mediations in which the parties could not reach a mutual agreement. They compared 200 mediations involving charges of DV with 200 non-DV mediations. Joint legal custody was awarded about 90% of the time, even when domestic violence was an issue. Mothers alleging domestic violence only received primary physical custody 35% of the time.
Attorneys who represented mothers at these proceedings said that they often advised their clients not to tell the mediator about domestic abuse. After looking at the results of such mediations, the researchers determined that the attorneys’ advice may well be justified; women who informed custody mediators that they were victims of domestic violence often received less favorable custody awards.
Stahly, G. B. (1990, April). Battered women’s problems with child custody. In G. B. Stahly (Chair), New directions in domestic violence research. Symposium conducted at the annual meeting of the Western Psychological Association, Los Angeles. [Cited in Liss, M. B., & Stahly, G .B. (1993). Domestic violence and child custody. In M. Hansen, & M. Harway (Eds.), Battering and family therapy: A feminist perspective (175-187). Thousand Oaks, CA : Sage.]
Sociologist Geraldine Stahly, PhD., surveyed battered women’s shelters in order to gather information on extent of custodial problems encountered by women seeking shelter services. Of the more than 100,000 women reported on by the shelter staff, 34% reported the batterer threatened to kidnap their children; and 11% of batterers had actually kidnapped a child. In 23% of cases batterers had threatened legal custody action, and in 7% of the cases known to the shelter staff, such actions had already been filed.
In 24% of the cases, the battering man used court-ordered visitation as an occasion to continue verbal and emotional abuse of the woman, and in 10% of the cases, physical violence continued. Shelter staff reported numerous cases in which courts granted unsupervised visitation in spite of evidence of physical abuse of the child (12,401 reported cases) and child sexual abuse (6,970 reported cases).
Stahly, G. B., Krajewski, L., Loya, B. Uppal, K., Farris, W., Stuebner, N., Evans, K., German, G., & Frias, F. (n.d.). Family violence impacts child custody: A study of court records.
Researchers at California State University, San Bernardino, examined the relationship between custody disputes and allegations ofo family violence in 147 randomly selected family court files of divorce involving children. The cases examined occurred during 1998-2002 in four courts in three counties of Southern California. They found that violent fathers were less likely to seek sole custody than battered mothers. However, violent fathers were just as likely as nonviolent fathers to file for sole custody. Surprisingly, in the cases where violent fathers did pursue sole custody they were more likely to prevail than were non-violent fathers.
Stahly, G. B., Krajewski, L., Loya, B. Uppal, K., German, G., Farris, W., Hilson, N., & Valentine, J. (2004). Protective Mothers in Child Custody Disputes: A Study of Judicial Abuse. In Disorder in the Courts: Mothers and Their Allies Take on the Family Law System (a collection of essays), electronic download available at http://store.canow.org/products.php?prod_id=3
To better understand the problems that protective parents face in the legal system, researchers at California State University, San Bernardino, are performing an on-going national survey. To date, over 100 self-identified protective parents have completed the 101-item questionnaire. The study found that prior to divorce, 94% of the protective mothers surveyed were the primary caretaker and 87% had custody at the time of separation. However, as a result of reporting child abuse, only 27% were left with custody after court proceedings. 97% of the mothers reported that court personnel ignored or minimized reports of abuse and that they were punished for trying to protect their children. 45% of the mothers say they were labeled as having Parental Alienation Syndrome (PAS). Most protective parents lost custody in emergency ex parte proceedings (where they were not notified or present) and where no court reporter was present. 65% reported that they were threatened with sanctions if the “talked publicly” about the case.
The average cost of the court proceedings was over $80,000 and over a quarter of the protective parents reported being forced to file bankruptcy as a result of filing for custody of their children. 87% of the protective parents believe that their children are still being abused; however, 63% have stopped reporting the abuse for fear that contact with their children will be terminated. Eleven percent of the children were reported to have attempted suicide.
Stahly, G .B., Oursler, A., & Takano, J. (1988, April). Family violence and child custody: A survey of battered women’s fear and experiences. Paper presented at the annual meeting of the Western Psychological Association, San Francisco. [Cited in Liss, M. B., & Stahly, G .B. (1993). Domestic violence and child custody. In M. Hansen, & M. Harway (Eds.), Battering and family therapy: A feminist perspective (175-187). Thousand Oaks, CA : Sage.]
In this pilot study of battered women’s experiences with child custody (n = 94), mothers reported that their batterer frequently used threats against the children in an attempt to keep the woman from leaving them. Twenty-five percent of battered women reported that their batterer threatened to hurt the children, 25% reported that he threatened to kidnap the children, and 35% reported that the batterer threatened to take the children away through a custody action.
Suchanek, J., & Stahly, G. B. (1991, April). The relationship between domestic violence and paternal custody in divorce. Paper presented at the annual meeting of the Western Psychological Association, San Francisco.
Suchanek and Stahly examined 150 randomly selected files of marital dissolution from a Southern California district courthouse between 1980 and 1989. They found that dissolution cases in which violence toward the woman had been asserted (usually in support of a restraining order) were significantly more likely to include custody disputes. In fact, when there were allegations of violence perpetrated by the father, he was twice as likely to seek sole physical and legal custody of the children and just as likely to win. Thus, violence did not appear to make a difference in how courts determined custody. Fathers who were alleged to be violent were no less likely to win custody than fathers with no allegations of violence.
Sutherland, T.J. (2004). High-conflict divorce or stalking by way of family court? The empowerment of a wealthy abuser in family court litigation. Linda v. Lyle – A case study. Massachusetts Family Law Journal, 22(1&2) 4-16.http://www.mincava.umn.edu/reports/linda.asp
Virtually all coverage of high-conflict divorce assumes both parents are the source of the conflict. This article argues that some high-conflict divorces are actually the manifestation of stalking behaviors by wealthy domestic abusers. Provides a case analysis of Linda v. Lyle – Linda was married to Lyle for 22 years. He was a violent spousal and child abuser. Despite the fact that a volume of CPS reports had accumulated against Lyle, he obtained sole custody of their son. Linda was given visitation but Lyle frequently prevented her from seeing her child. To date, the case has litigated for approximately 6 years without respite. Lyle is quite wealthy and Linda, who was a homemaker, has been left homeless and is a pro per litigant facing two attorneys. The court blamed her for the protracted litigation because she attempted to reestablish a relationship with her child.
Waits, K. (1998). Battered women and their children: Lessons from one woman’s story. Houston Law Review, 35, 29-108.
http://www.omsys.com/fivers/Rkw18349#Rkw18349
Documents in detail the personal story of one battered woman’s experience in the family court system. Shows how a man who had abused both his wife and kids ended up with full custody of his young son and unsupervised visitation of his other children. The nonabusive mother (who had previously been the children’s primary caretaker) was given probationary custody of her daughter and other son. The judge threatened the mother saying “If you do one thing to disrupt visitation, I’ll take your daughter and give your ex-husband custody of her too.” The mother regained custody of her son only after her ex-husband’s new girlfriend reported him to the police for physically abusing the boy. Notes that many judges, psychologists and lawyers want to believe in a just world and thus allow themselves to be fooled by batterers.
Walker, L. & Edwall, G. (1987). Domestic violence and determination of visitation and custody in divorce. In D. J. Sonkin (Ed.), Domestic violence on trial: Psychological and legal dimensions of family violence (pp. 127-152). New York: Springer.