QUE SARA SARA – FAMILY COURT ATTITUDE REGARDING CUSTODY ISSUES
Definition of que será, será
: what will be, will be
Domestic violence/family terrorism is the only crime where a victim has to prove she/he is a victim. It is also a civil rights crime. Family court is not trained nor prepared to take on these cases as seen over and over again by Judges giving custody to an abuser. There are many reasons for their lack of education on who a batterer/terrorist is and who a victim is. They know law and have a pervasive belief that since they are not mental health professionals, they don’t need to know. Yet that could not be further from the truth. They preside over domestic violence cases, make decisions that last a life time, have very little training in the very topic they preside over, and are okay with their ignorance.
Yet if a mental health professional came into that very court, had the same attitude that they didn’t need to know their topic, abuse, and gave expert testimony, the judge would likely order them out of the court room. Yet this happens, every day, in family court, across America. And no one is doing anything about it across the United States. No one is holding family court accountable for its collusion with batterers, its gender bias, its promoting child abuse by giving an abuser custody; its continued mindset of we are above the law and can do what we do and no one can do anything about it. In my over 35 years of working in the field of abuse and trauma, this shocking fact, this shocking attitude, this continued ignorance and accepted “we are only judges and don’t have to learn about our subject matter” is not accepted anymore. It continues to be part of abusing women, men and children who find themselves to be victims of a terrorist. Family court is getting worse and worse, not better and better, even though the knowledge, trainers, and opportunities to improve family court are available. We know this empowers the abuser to use Family Court to their benefit and family court allows it.
HOW BATTERERS USE CUSTODY PROCEEDINGS IN FAMILY COURT TO ABUSE VICTIMS AND HOW THE COURTS CAN PUT A STOP TO IT
(This article will use gender-specific nouns and pronouns, referring to victims of domestic violence with female pronouns and referring to batterers with male pronouns. This usage reflects that fact that the vast majority of victims of domestic violence are female, and the vast majority of perpetrators of domestic violence are male. See Shannon Catalano, Intimate Partner Violence, 1993–2010, U.S. Department of Justice Bureau of Justice Statistics, http://www.bjs.gov/ © 2017 Emmaline Campbell. All rights reserved.
This paper will focus on the ways in which batterers take advantage of custody proceedings in family court to continue to abuse their victims. The batterer’s use of coercion during the custody process can take many forms. It can include demanding custody simply for the sake of staying involved in the victim’s life; forcing the victim to return to court dozens of times to prolong contact; using court-mandated visitation or custody as an opportunity to commit physical violence against the victim; intimidating the victim into conceding joint custody during coercive mediation sessions; and refusing to pay child support to force the victim back into court. This paper will address the many ways that batterers use the family court system to perpetuate abuse against their victims. At present, most family courts are unprepared to address batterers’ attempts to use the court and the legal system as a tool of abuse).
Introduction: Domestic violence batterers are master manipulators who find creative ways to abuse their victims, even after the relationship ends. Domestic violence is defined as “a pattern of behavior in a relationship by which the batterer attempts to control his victim through a variety of tactics.”
- Batterers’ tactics “are more than physical violence and induce a penumbra of threats and actions to induce fear, humiliation, social isolation, and resource deprivation.
- These tactics can include psychological and emotional abuse, destruction of property and harming of pets, forcing victims into isolation, creating economic abuse, and enforcing rigid expectations of gender roles.
- All of these tactics have one purpose: controlling the victim.
- Batterers are often very angry when victims end a relationship. When the victim leaves, she exercises her autonomy and escapes the batterer’s hold.
- Many batterers react violently to this.
- In one study, 35 percent of victims reported more severe violence after separation.
- Some batterers even kill their victims after separation. A victim’s risk of being killed by her batterer increases six-fold when she leaves her batterer.
- When a victim leaves her battering spouse and seeks to end the marriage, the batterer often does not willingly relinquish control over her. Instead, he takes advantage of the divorce and custody process as an avenue to continue his abuse.
- The Context Of Abuse: Victim And Batterer Psychology In order to understand how the family court system results in unfair outcomes for victims, it is necessary first to understand the psychological profiles of victims and abusers.Victim Psychology Abuse can make people react in unpredictable ways. Many domestic violence survivors “may present as angry, distrustful, and suspicious with all professionals related to the court proceedings. This response is a normal reaction to the trauma of abuse. (content/pub/pdf/ipv9310.pdf. 6 Jennifer Hardesty, Separation Assault in the Context of Postdivorce Parenting, 8 Violence Against Women 597, 600 (2002). 7 Id. 8 Id. at 601. Mo Hannah and Barry Goldstein, Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues 14 (2010). 10 Peter G. Jaffe & Claire V. Crooks, Understanding Women’s Experiences 2017] Domestic Violence Batterers 43)
But many judges expect victims to appear “victimized or helpless”. When victims do not appear helpless but seem angry, the court may draw adverse inferences about these behaviors and assume the victim is purposefully acting uncooperative or difficult.
**Based on these assumptions, judges may be sympathetic to the abuser and more readily believe his claims.
**Battered women may also exhibit psychological symptoms that confuse judges. Many battered women suffer from post-traumatic stress disorder (PTSD), which can lead them to display “a strange lack of affect when discussing the violence, or to giggle inappropriately.
** Declarative Memory Problems: Trauma can also affect victims’ memories, leading them to have difficulty articulating events in chronological order. Courts may misinterpret these behaviors as a sign that the victim is lying or not credible.
- Batterer Psychology Batterers often have a psychological profile that creates a positive first impression. Batterers may present as “charming, charismatic, likeable, reasonable, generous, and even flexible.”
**Batterers can be highly manipulative and carefully craft their image.
**Many batterers can be abusive at home in private, but to the outside world they appear to be caring and devoted family men.
** When judges encounter batterers in court, they are often swayed by the batterers’ accounts of events, which, in contrast to the victims’ accounts, seem reasonable and rational, and thus more credible.
**Batterers often take advantage of their likeable façade to present false narratives to the court about the abuse.
**Batterers often lie or distort facts about the abuse in court.
**Batterers may also falsely accuse victims of infidelity or sexual promiscuity, in an effort to diminish the victim’s credibility with the court.
**Other batterers have falsely alleged that victims had mental health or drug problems.
**Many batterers have claimed that the victim committed physical abuse against them, shifting the focus away from the victim and forcing the court to untangle the variety of abuse allegations in the case.
**Many batterers deny the abuse. Some counselors who work with batterers have noted that their clients give a “passionate and eloquent denial of the abuse and the impact of their own conduct on others.”
**Some batterers claim that their victims have manufactured the allegations of abuse in order to gain an advantage in their custody cases.
**When batterers do admit to committing abuse, they may use tactics to minimize and/or justify the violence.
**Batterers may allege that the fights the victim has described also included acts of violence committed by the victim.
**In other cases, the batterer might admit to minor acts of violence, like shoving, in order to make the more serious and denied allegations seem less credible.
**Some batterers may even use their knowledge of the victim’s psychology against her. Batterers may claim the victim’s anger and assertiveness in court demonstrate that she is not a real victim and that her abuse allegations are false.
**Other batterers focus on attacking the victim’s emotional state. In custody proceedings, batterers often claim that victims are “too unstable” to care for children, even where the instability is temporary and a direct result of the abuse. (Meier, supra note 13, at 690. 20 Laurel B. Watson & Julie R. Ancis, Power and Control in the Legal System: From Marriage/Relationship to Divorce and Custody, 19 Violence Against Women 166, 177 (2013). 21 Id. 22 Id. 23 Lundy Bancroft, Jay G. Silverman & Daniel Ritchie, Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012). 24 Meier, supra note 13, at 690. 25 Przekop, supra note 1, at 1068. 26 Id. at 1067. 27 Id. 28 Id. 29 Id. 30 Linda R. Keenan, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 424 (1985). 2017])
- Batterer-Victim Dynamics Batterers exert power over victims to undermine the victims’ autonomy while increasing their own power.
Where the victim is a mother, the batterer tends to challenge her parental authority and tries to create tensions between her and the children. As a result, she may have difficulty controlling the children’s behavior.
Evaluators often/may find that domestic violence victims are not effective parents if they cannot control the children.
Evaluators may be persuaded by a father’s portrayal of himself as a powerful figure, and the children may behave better in his care due to their fear of him. Children may even request to be placed with the batterer as a result of traumatic bonding. These behaviors often lead custody evaluators to recommend some amount of custody for the batterer. Batterers may seem more credible than victims based on their psychological profiles.
Many “judges and evaluators lacking in-depth knowledge about domestic violence and PTSD may easily be misled into trusting the calm, sincere-sounding accused’s veracity more than the ‘strange’ or emotional purported-victim’s.”
When a judge must decide whether the batterer or the victim’s account of abuse is true, the batterer’s account may win out because of a perception that he is more credible.
- How Batterer Psychology is favored by Law:
Friendly-Parent Provisions As discussed above, batterers often portray themselves as the reasonable and flexible parent.
In contrast, victims may appear rigid and uncooperative for being unwilling to maintain a co-parenting relationship with the batterer.
The National Council of Juvenile and Family Court Judges notes that “it is often legitimate for the partner of an abusive parent to try to protect the children from exposure to abuse, or to try to secure his or her own safety from the abusive.
But unfortunately, many child-custody laws are built to favor “generous” batterers over “protective” victims. According to the American Bar Association, as of 2008, 32 states included “friendly-parent” presumptions as a factor in the analysis of the best interest of the child.
Friendly-parent presumptions assume that “in all child custody cases the parent who was the most generous in sharing the child with the other parent would have a greater ability to understand and provide for the child’s needs.”
Some states, including California, have recognized that friendly-parent provisions should not be applied in domestic violence cases. However, this does not fully resolve the problem. For friendly-parent provisions not to apply, the court must first make a finding of domestic violence. If the court believes the batterer and not the victim, then the domestic violence exception does not kick in, and the friendly-parent provision still applies. Unlike California, not all states have recognized that friendly-parent provisions should be inapplicable in domestic violence cases. “Although every state has made domestic violence (‘DV’) a factor that courts must consider in custody cases, and **at least 24 have a presumption that batterers not be given custody, studies show that batterers still win custody in states with the [Friendly-Parent Provision] unless a statute clarifies that it does not apply when there is DV.”
Friendly-parent provisions create risks for the children of domestic violence abusers and continue to be applied in many cases nationally, even when one parent has had a history of perpetrating domestic violence.
- How Batterers Exploit Victim Psychology:
Parental Alienation Batterers can be adept at using the psychology of victims against them by arguing the victim has turned the children against the batterer. A widely discredited theory known as “parental alienation theory” created by a man named Richard Gardner who “made it up” and peddled it as it was truth. It is not in the DSM anywhere and has been debunked as “junk science.”
(Juvenile and Fam. Ct. Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide 19 (2004), http:// www.ncjfcj.org/sites/default/files/navigating_cust.pdf. 40 See Am. Bar Ass’n Comm’n on Domestic Violence, Child Custody and Domestic Violence by State, Child Custody and Domestic Violence by State (Feb. 2008), http://www.americanbar.org/content/dam/aba/migrated/ domviol/docs/Custody.authcheckdam.pdf. 41 Leslie M. Drozd, Kathy Kuehnle, & Lenore E.A. Walker, Safety First: A Model for Understanding Domestic Violence in Child Custody and Access Disputes, 1 J. Child Custody 75, 82 (2004). 42 Bancroft, Silverman & Ritchie, supra note 23, at 150; Cal. Fam. Code § 3170 (West 2013). 43 Bancroft, Silverman & Ritchie, supra note 23, at 150. 44 Joan Zorza, The “Friendly Parent” Concept: Another Gender Biased Legacy from Richard Gardner, 12 Domestic Violence Rep. 65, 75 (2007). 2017]
Domestic Violence Batterers and Parental Alienation Syndrome:
“alienation” has been used by batterers to claim that the victim manipulated the children into disliking the batterer. In parental alienation, a parent ostensibly “creates misrepresentations of the other parent in the child’s head in the hopes that the child will alienate that other parent.” Research shows that it is the abuser who creates fear, mistrust, and “alienation” in their own children and yet the courts don’t make the abuser prove he/she did not create it through their behaviors at home.
***The National Council of Juvenile and Family Court Judges has noted that the scientific community has discredited parental alienation theory and it should not be admissible in court.
Though parental alienation has been discredited, some courts continue to apply it or reference it. A recent decision in Connecticut notes that, “Like other jurisdictions, Connecticut has not passed on the issue of whether parental alienation syndrome is a reliable theory.”
In one case in Louisiana, the court drew at length from a journal article on parental alienation, quoting, “The alienated parent typically is a ‘good’ parent who has no history or physical or emotional abuse of the child, and while there may be some ‘kernel of truth’ to the child’s complaints about the rejected parent, the child’s grossly negative views and feelings are a significantly distorted and exaggerated reaction.”
Despite the fact that parental alienation has been discredited, its legacy lives on in the minds of some judges.
- Solutions Ruling on domestic violence allegations often proves uniquely challenging for judges.
Judges cannot rely on their gut instincts about whether the victim or batterer is more credible. Instead, courts must engage in careful fact-finding to determine if accusations of domestic violence are true. Courts should consider looking to the following resources for further evidence: testimony from other family members or friends, service providers, counselors, police reports, criminal case records, restraining order records, medical records, and school records.
The Status of Mediation Today:
Mediation is often praised as a less adversarial way to handle divorce and custody cases. In mediation, an impartial third party (a “mediator”) facilitates the resolution of divorce and custody disputes to reach agreement between the parties.
Supporters of mediation say that it is less costly, more efficient, and produces better outcomes than traditional custody litigation.
**However, mediation has come under significant criticism in cases of domestic violence. Mediation puts victims of domestic violence at a huge disadvantage in custody proceedings. Because of the power imbalance in the batterer-victim relationship, victims often feel disempowered when the batterer is present and unable to voice their needs or the needs of their children during mediation.
The National Council on Juvenile and Family Court Judges recommends that judges consider not requiring mediation in cases involving domestic violence, where state law allows.
Mediation can be voluntary or mandatory, depending on state law. Each state determines whether all custody disputes in the state must be mediated, or whether there are opt-out provisions or other exceptions for domestic violence or other reasons.
Fortunately, the majority of states have banned mediation in domestic violence cases. Other states allow victims of domestic violence to opt-out of mediation.
The American Bar Association reports that as of 2014, only eighteen states require domestic violence victims to. (51 Nancy Ver Steegh, Yes, No, Maybe: Informed Decision Making about Divorce Mediation in the Presence of Domestic Violence, 9 Wm. & Mary J. Women & L. 145, 170 (2003). 52 Echo Rivera, April Zeoli, & Cris Sullivan, Abused Mothers’ Safety Concerns and Court Mediators’ Custody Recommendations, 27 J. Fam. Violence 321, 321, 323 (2012). 53 Nancy Johnson, Dennis Saccuzzo, & Wendy Koen, Child Custody Mediation in Cases of Domestic Violence, 11 Violence Against Women 1022, 1024 (2005). 54 Id. 55 Jerry J. Bowles et al., Nat’l Council of Juvenile and Fam. Ct. Judges, A Judicial Guide to Child Safety in Custody Cases 25 (2008), http://www. ncjfcj.org/sites/default/files/judicial%20guide_0_0.pdf. 56 Mary Mentaberry & Maureen Sheeran, Nat’l Council of Juvenile and Fam. Ct. Judges Managing Your Divorce: A Guide for Battered Women 10 (1998), http://www.ncjfcj.org/sites/default/files/pro_se_web.pdf. 57 Id. 58 See Am. Bar Ass’n Comm’n on Domestic Violence, Mediation in Family Law Matters Where DV is Present (2014), http://www.americanbar.org/ content/dam/aba/administrative/domestic_violence1/Charts/2014%20Mediation%20Statutory%20Chart.authcheckdam.pdf.)
**49 States opt out of mediation (with five states leaving it up to the discretion of the court), without allowing them to opt out. Unfortunately, California is one of those states.
In California, mediation in custody disputes is mandatory even in cases of domestic violence. California adopted mandatory mediation in 1981 because custody cases in need of litigation heavily overburdened the family courts. In mandatory mediation, the judge plays a significantly more limited role in custody proceedings. Instead, the mediator spends time with the parties discussing arrangements. This delegation saves the court a substantial amount of time. The Judicial Council of California has examined the problems of mediation for victims of domestic violence, but determined that mandatory mediation is an essential part of keeping the family courts running in California. The Council wrote, “To suggest that mediation be made voluntary has the potential of crippling a severely burdened court system. When family law judges already report that they have insufficient time to handle grueling calendars, a suggestion that would increase that caseload by a large margin is untenable.” This is California’s position despite the fact that in the majority of other states, courts are able to manage their family law caseloads without requiring victims of domestic violence to enter mediation. California should reconsider whether the efficiency of mediation outweighs the disadvantages of forced mediation for victims of domestic violence.
- Problems with Mediation: Victims and Batterers Cannot Negotiate on Fair Terms Mediation, by its nature, is likely to produce better outcomes for batterers than for victims.
The National Council of Juvenile and Family Court Judges notes that an abuser may favor mediation because the abuser knows he can coerce the victim more easily during the process of mediation than in traditional litigation.65 This is because in relationships with a history of violence, even after the relationship ends, the victim may feel unable to assert her. (Id. 61 Id. 62 Cal. Fam. Code § 3170 (West 2013). 63 Charlotte Germane, Margaret Johnson, & Nancy Lemon, Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic Violence, 1 Berkeley Women’s L.J. 175, 178 (1985). 64 Gay Danforth & Bobbie L. Welling, Judicial Council of Cal. Advisory Comm. on Gender Bias in the Cts., Achieving Equal Justice for Women and Men in the Cal. Cts. 167 (1996), http://www.courts.ca.gov/documents/f-report. pdf.65 Bowles et al., supra note 55, at 26. 50 UCLA WOMEN’S LAW JOURNAL [Vol. 24.41 interests).
The victim may feel compelled to capitulate to the batterer’s custody demands, even when the demands are contrary to the best interest of their child.
**The victim may fear that the abuser will retaliate if she stands up for herself—perhaps by physically attacking her after the mediation session. These fears are not unreasonable; many women report being battered after attending mediation with their abusers. The egalitarian principles of mediation cannot overtake years of reinforced behavioral patterns. “Throughout the abusive relationship, the abused spouse has been conditioned to relent, compromise, and conform to be safe from [violence]. This learned pattern of dealing with her abuser cannot be easily broken, especially in a process that requires compromise.”
These patterns make it difficult for a victim to assert herself for the first time during mediation.
Mediation is also concerning for victims because they are often not represented by an attorney in the proceedings. In traditional litigation, a victim could hire an attorney and allow the attorney to advocate on her behalf. In mediation in California, the parties’ attorneys may attend at the discretion of the mediator, but are not allowed to speak for their clients.
Mediators have a right to remove attorneys from the room if the attorney attempts to participate in the mediation. In mediation, attorneys are not allowed to support victims in the way that litigation allows. For these reasons, many people support ending the requirement for mediation in domestic violence cases.
Cal. Fam. Code § 6303(c) (West 2013). 74 Id. 75 Id. 2017] Domestic Violence Batterers states that mediation “not be mandated or referred in cases in which [domestic violence] has been alleged.”
***** Mediators are Unequipped to Handle Domestic Violence Cases Mediators are frequently not well trained on domestic violence issues, and they are typically not equipped to address the unique needs of a domestic violence victim in mediation. Certification for mediators may require very minimal training on domestic violence.
In California, mediators must receive only 16 hours of training in their first year of work and subsequently receive update training for 4 hours per year. Mediators may be unable to properly screen for domestic violence and may overlook many cases in which domestic violence is present.
In a study of mediation reports in San Diego, researchers found that the mediator only accounted for domestic violence in 43.1 percent of cases where the screening form filled out by the client had an explicit domestic violence allegation. Even in cases where a temporary restraining order had been issued and was documented in the screening form, the mediator addressed domestic violence in the mediation report only 49.4 percent of the time. Other studies have similarly found that mediators are frequently unable to identify cases involving domestic violence.
Some mediators are even hostile to claims of domestic violence. In one study, researchers found that “women who informed custody mediators that they were victims of domestic violence often received less favorable custody awards.”
Mediators may suspect that women who report domestic violence are manufacturing the allegations for custody purposes, and they may punish women who make allegations of domestic violence based on this belief.
Mediators also fail to recommend taking custody away from batterers. In the San Diego study, mediators recommended joint custody in 91.4 percent of domestic violence cases, a rate even higher than their average of 90 percent joint custody recommendation for non-domestic violence cases. Even when the father was clearly a perpetrator of abuse, he received at least some physical custody in 96.8 percent of cases. ( Johnson, Saccuzzo, & Koen, supra note 53, at 1025. 77 Mentaberry & Sheeran, supra note 56, at 12; Cal. Fam. Code § 1816 (West 2013). 78 Cal. Ct. R. 5.215(j)(2). 79 Johnson, Saccuzzo, & Koen, supra note 53, at 1033. 80 Id. 81 Rivera, Zeoli, & Sullivan, supra note 52, at 3. 82 Dennis P. Saccuzzo & Nancy E. Johnson, Child Custody Mediation and Domestic Violence, 251 Nat’l Inst. Just. J. 21, 21 (2004). 83 Johnson, Saccuzzo, & Koen, supra note 53, at 1035. 52 UCLA WOMEN’S LAW JOURNAL [Vol. 24.41)
Courts will enforce mediators’ recommendations, even when they conflict with the law. In In re Marriage of Fajota, the mediator’s report explicitly acknowledged the father’s history of domestic violence yet still made a joint custody recommendation, and the trial court followed this recommendation and granted joint custody. The court’s custody grant was later overturned on appeal for its failure to address the domestic violence issue.
**Mediators also may be unprepared to detect abusive behaviors during a mediation session. Within a mediation session, an abuser may threaten the victim through certain coded phrases or body language. Because of her history with the abuser, the victim understands that she is being threatened, while the mediator remains oblivious.
Not only can this continuation of abuse further traumatize the victim, it may intimidate her to cede ground to the batterer when negotiating her custody requests.
- Solutions : States should allow victims of domestic violence to opt out of mediation.
The majority of states already allow this. However, a number of states, including California, have not implemented this policy. California has tried to address the concerns of victims in mediation by allowing victims to meet separately with mediators. While this is a positive step towards protecting the safety of victims, it is insufficient.
The batterer frequently knows where to find the victim; if he wants to retaliate and attack her, he will be able to do it. Separate meetings do not negate the potential for future attacks. Additionally, even if the parties meet separately, the goal of mediation is for the parties to agree on some terms. When the mediator meets with the batterer, and says, “Your partner is seeking sole custody,” there is no mystery about the victim’s request. The batterer will know that the victim went against his wishes, and he can retaliate against her at a later time. In some cases, even with separate meetings, the victim may be too afraid to ask for what she and her children need, out of fear that the request will anger the batterer. ( Id. at 1038. 85 In re Marriage of Fajota, 230 Cal. App. 4th 1487, 1492–94 (2014). 86 Rivera, Zeoli, & Sullivan, supra note 52, at 4. 87 Id. 88 See Am. Bar Ass’n Comm’n on Domestic Violence, supra note 58. 89 Id. 90 Cal. Fam. Code § 3181(a) (West 1994). 2017] Domestic Violence Batterers
** If mediation is going to be conducted with couples with domestic violence histories, it is essential that mediators be highly trained on power differentials.
Some advocates believe that a mediator can deal with power imbalances by exercising his or her own power in the mediation. Under this model, the mediator lays out ground rules, chooses the topics of discussion, decides who may speak and for how long, and determines which spouse may present a proposal to the other. These mediators are trained to watch for specific behaviors indicative of power imbalances, such as threats, insults, glaring, and passivity.With proper training, it is possible for mediators to become more adept at working with couples with histories of domestic violence.
Another way to moderate power imbalances in mediation is to allow the victim to bring an attorney to advocate on her behalf. “Research in Maine has shown that the presence of attorneys moderates power imbalances and decreases the likelihood of unfairness. The attorney can act as a support person and as a spokesperson for the victim.” Under the California Family Code, attorneys are not allowed to advocate for their clients during a mediation, and can be excluded from mediation by the mediator. This provision should be changed to allow for attorneys to attend mediation sessions and speak on behalf of their clients, especially in cases of domestic violence.
- Litigation Abuse:
While mediation poses problems for victims, litigated custody battles also create opportunities for abuse. “Litigation abuse” is defined as the batterer’s use of the court system as a tool of coercive control over the victim.
Batterers often pursue litigation abuse as a tactic for several reasons: it is one of the few remaining ways that they can control a victim after separation, it can drain the victim’s financial resources, and family courts allow for parties to demand many hearings.
- Litigation as the Only Contact Left:
Litigation abuse is a common tactic for batterers because it is often the only way left for batterers to stay in contact with their victims. After the end of a relationship, a victim typically try to put distance between herself and the batterer. But when a batterer files a motion in court, the victim is forced to respond. (Ver Steegh, supra note 51, at 186. 92 Id. 93 Id. 94 Id. at 200. 95 Cal. Fam. Code § 6303(a) (West 2013). 96 Bowles et al., supra note 55, at 22. 97 Przekop, supra note 1, at 1061. 54 UCLA WOMEN’S LAW JOURNAL [Vol. 24.41).
**Even if a victim has a restraining order or criminal protective order against the batterer, if the batterer files a motion to modify custody or visitation, then the batterer may get the chance to see the victim in court.
Financial Motives for Litigation Abuse Litigation is expensive. Batterers may pursue custody litigation in order to financially drain their victims, as custody litigation is costly. A study of custody expenses for battered women found that their average court-related costs exceeded $90,000. These expensive proceedings are often a hardship for battered women, as women’s income tends to decrease significantly after divorce. One study noted that the average post-divorce per capita income of wives and children approximates 68 percent of their before-divorce per capita income; whereas, the per capita income of husbands increased by 182 percent after divorce.”
Victims of domestic violence are also likely to face even more dire economic conditions than other women going through divorce. Victims of domestic violence may also have suffered from economic abuse throughout the marriage, where the abuser prevented the victim from having money of her own or hid the family’s money from her. By the time of divorce, she may have very limited financial resources left. When abused women are forced to spend all of their resources on fighting custody proceedings, it may seriously impact their ability to stay away from the batterer. Some research has found that when victims have limited resources to pay for legal representation, they may return to their abusive relationships at a rate of around 50 percent.
Batterers may thus coerce victims into returning to the relationship by draining them of economic resources, leaving victims without other options for financial stability. Victims may also lose their jobs as a result of litigation abuse. If the victim is constantly required to appear in court to attend hearings, she may miss many days of work.
While most employers will excuse a few absences, if the victim continues to miss work for months on end, she may risk losing her job. (Id. 99 Id. 100 Bancroft, Silverman & Ritchie, supra note 23, at 141. 101 Hannah and Goldstein, supra note 9, at 14–24. 102 Przekop, supra note 1, at 1062–63 (referring to Marsha Garrison, Equitable Distribution in New York: Results and Reform, 57 Brook. L. Rev. 621, 720 tbl.55 (1991)). 103 Susan L. Pollet, Economic Abuse: The Unseen Side of Domestic Violence, 83 N.Y. St. B.A. J. 40, 41 (Feb. 2011). 104 Jaffe & Crooks, supra note 10, at 10. 105 Przekop, supra note 1, at 1083. 2017] Domestic Violence Batterers 55
Frequency of Motions Allowed in Family Court:
Court processes are easy for batterers to exploit because family court proceedings typically lack finality and are susceptible to frequent motions for updates and changes. In most areas of law, final judgments and settlements end litigation, but verdicts in family court are open to frequent modifications.
Because custody agreements are formulated based on the child’s best interest and based on the situation of each parent, as the child’s interests change or a parent’s situation changes, opportunities to revise the custody agreement arise.1 Batterers may petition for changes to custody every time there is a minor change in the child or parent’s situation.
Power Differentials in Representation:
While batterers commonly hire attorneys to represent them in custody proceedings, most victims do not. Many victims cannot afford to hire an attorney. This places victims at a serious disadvantage in custody proceedings. Parents represented by attorneys are more likely to be awarded custody than parents who are not so represented. Without an attorney, victims may have trouble navigating the court system and understanding court rules and procedures.
Even if neither parent can afford an attorney, the batterer can use the power differential between himself and the victim to his advantage in court. When both parents proceed pro se, the batterer is allowed direct access to the victim in and out of court. The batterer negotiates custody directly with the victim, which allows him a substantial amount of contact. The batterer may also be able to cross-examine the victim on the witness stand in court, often a traumatic experience for the victim.
- Tactics of Litigation Abuse:
Litigation provides many opportunities for batterers to abuse victims. “Such measures [have] included requests for emergency hearings, multiple charges of contempt, failing to supply appropriate documents, and accusations against the participants.”
**The National Council of Juvenile and Family Court Judges notes that abusive parents frequently make multiple appearances “seeking to undo orders that they perceive to be unfavorable to them, even in the absence of any change in circumstance between hearings.”
Batterers may request continuances or otherwise seek to postpone final judgment. Each time the batterer files a motion, he has another opportunity to continue his reach into the victim’s life.
Family courts can, on their own authority, order the party bringing excessive motions to pay the attorney’s fees and costs of the opposing party. Courts also have other options to discipline a batterer who files excessive motions. Courts can ban the batterer from filing any further actions or motions against the victim without permission from the court, find the batterer in contempt of court, or refer the batterer’s attorney for disciplinary action.
In one such case, the California Court of Appeal wrote that the batterer’s appeals were “[T]otally devoid of merit and were brought merely to continue an ongoing harassment of his ex-wife over custody of their child. . . . His actions are a sham, frivolous in nature, an abuse of the court system and deserving of an appropriate sanction.” The court imposed financial sanctions on the batterer and ordered him to pay attorney’s fees to the victim. If the batterer files frivolous actions against the victim in another civil court, victims have the option to fight back through their own legal processes.
If a batterer files a frivolous motion against a victim in a federal court, the victim can ask the judge to sanction the batterer under Rule 11 of the Federal Rules of Civil Procedure.
This rule allows judges to deter abusive conduct in the courts and can result in monetary damages being awarded to the victim of the litigation abuse. Most batterers’ claims against victims are filed in state courts, and thus the Federal Rules of Civil Procedure do not apply. However, some state legislatures have enacted analogous provisions.124 116 Id. 117 Bowles et al., supra note 55, at 22. 118 Id. 119 Id. at 23. 120 Hannah & Goldstein, supra note 9, at 14–27. 121 In re Marriage of Kim, 208 Cal. App. 3d 364, 373 (1989). 122 Przekop, supra note 1, at 1088. 123 Id. 124 How Anti-SLAPP Laws Work, Domestic Shelters (Nov. 4, 2015), https:// 2017] Domestic Violence Batterers
Twenty-eight states, including California and Massachusetts, have enacted “anti-SLAPP” (Strategic Litigation Against Public Participation) laws, which protect individuals from being sued frivolously.
For example, the Supreme Judicial Court of Massachusetts applied the Massachusetts anti-SLAPP law in a 2002 case. In that case, the court sanctioned an ex-boyfriend who filed a civil complaint against his ex-girlfriend to retaliate against her after she filed for a restraining order. Applying the state’s anti-SLAPP provision, the court determined that the burden shifted to the ex-boyfriend to demonstrate, by a preponderance of the evidence, that the ex-girlfriend’s petition was “devoid of any reasonable factual support or any arguable basis in law.” The court, finding no such evidence, ordered the ex-boyfriend to pay the ex-girlfriend’s costs and attorney’s fees. More courts can take advantage of these provisions to deter batterers from committing litigation abuse.
Custody is the area of family law most susceptible to abuse from batterers. Because of the high stakes for the victim and children in custody proceedings, batterers can take advantage of the victim’s fear and demand significant custody rights for the purpose of staying involved in the victim’s life indefinitely.
- 1. Batterers’ Threats About Custody:
Even before the first court appearance in a dissolution proceeding, the batterer may have already made threats about custody to abuse and control the victim. Many batterers threaten that if the victim leaves, the batterer will be able to take the children away through a custody action. This is one of several common threats that batterers make to try to stop their victims from ending the relationship.
“In a pilot study of 94 battered women’s experiences with child custody, batterers’ threats to keep the women from leaving included hurting the children (25 percent), kidnapping the children (25 percent), and taking the children through a custody action (35 percent). In this sample, 20 percent of the women reported returning to the batterers at least once because of these threats.”(Batterwww.domesticshelters.org/domestic-violence-articles-information/how-antislapp-laws-work#.Vv7aAZMrLfZ. [https://perma.cc/Q6N3-GCXF]. 125 Id. 126 Fabre v. Walton, 436 Mass. 517, 524 (2002); see also S.A. v. Maiden, 229 Cal. App. 4th 27 (2014). 127 Fabre, 436 Mass. at 524. 128 Id. at 525. 129 Marsha B. Liss & Geraldine Butts Stahly, Domestic Violence and Child Custody, in Battering and Family Therapy: A Feminist Perspective 175, 181– 58 UCLA WOMEN’S LAW JOURNAL [Vol. 24.41).
Batterers make threats involving custody because such threats effectually scare victims into staying with the batterer.
- Custody Does Go to Batterers:
Batterers’ threats about custody are not hollow; custody does frequently go to batterers. While in many cases victims do receive full custody, many batterers continue to receive joint custody. A project in Massachusetts found that out of 40 men who had abused their wives and children, 15 were granted sole or joint physical custody by the courts. Batterers are more likely to seek custody of children than non-batterer fathers.
Some researchers have found that men who abuse their partners contest custody at least twice as often as non-batterer fathers.
Batterer fathers tend to stay highly involved in children’s lives after divorce, in contrast to the general trend of fathers gradually disengaging from their children following divorce.
Despite laws that require judges to consider domestic violence in their decisions, many judges still wish to give some amount of custody to batterers. A general belief exists in some courts that joint custody is in the best interest of children, despite the fact that no studies have shown that joint custody leads to better outcomes for children in families with a history of domestic violence.
Other scholars suggest that courts continue to give joint custody to batterers to reassure the batterer he “still has a central role to play in the child’s life.”136 This prioritization of the batterer’s needs over the needs of the children and victim is highly troubling and pervasive.
- Custody Gives Batterers a Tool for Abuse: When batterers are granted custody, they can use the children as a mechanism to stay involved in the life of their victims. (Marsali Hansen & Michèle Harway eds., 1993). 130 Daniel G. Saunders, Research Based Recommendations for Child Custody Evaluation Practices and Policies in Cases of Intimate Partner Violence, 12 J. of Child Custody 71, 82 (2015). 131 Domestic Violence Legal Empowerment and Appeals Project, Rates at Which Accused and Adjudicated Batterers Receive Sole or Joint Custody (2013), http://www.dvleap.org/LinkClick.aspx?fileticket=97ddo5pFEso%3D&tabid=1118 [https://perma.cc/S3C4-DU25]. 132 Id. 133 Id. 134 Jennifer L. Hardesty & Lawrence H. Ganong, How Women Make Custody Decisions and Manage Co-Parenting with Abusive Former Husbands, 23 J. of Soc. & Pers. Relationships 543, 554 (2006). 135 Bancroft, Silverman & Ritchie, supra note 23, at 150. 136 Dalton, Carbon & Olesen, supra note 15, at 22. 2017]
In one study, 70 percent of domestic violence victims interviewed reported that batterers used the children to stay involved in the victims’ lives. Batterers granted joint custody often use custody as an excuse to stay in communication with the victim. Because of the history of the power dynamics between the couple, batterers “tend to use the power of joint parenting to exert control over the other parent.”
Batterers may “gain access to victims by manufacturing reasons to ‘discuss’ child rearing or by insisting upon joint attendance at school events, parent-teacher meetings, or medical appointments. They can also withhold consent for a child’s counseling, medical procedures, and extra-curricular school events.”
In this way, batterers stay involved in the victims’ lives and continue to abuse them. Batterers can use custody as an opportunity to pass threatening messages through children and back to their mothers.
Other batterers manipulate victims through disrupting child care routines. In some cases, batterers deliberately upset family routines to punish victims for the separation. In one case, a mother reported that the batterer would show up in the middle of the child’s nap time in order to disturb the family.
Other batterers have frequently failed to appear for scheduled visits or arrived late.
These disruptions disturb the family routine and leave the mother and children feeling disoriented. One mother described such disruptions, stating, “We were splitting up, but he was still controlling my life. One author notes that such disruptions contain “a powerful message about the abuser’s ability to continue to disrupt his or her partner’s life, and the necessity that it be arranged around the abuser’s needs.” ( Ruth E. Fleury-Steiner et al., “No Contact, Except . . .”: Visitation Decisions in Protection Orders for Intimate Partner Abuse, 11 Feminist Criminology 3, 4 (2014). 138 Saunders, supra note 130, at 82. 139 Id. at 82–83. 140 Judith Wuest et al., Intrusion: The Central Problem for Family Health Promotion Among Children and Single Mothers After Leaving an Abusive Partner, 13 Qualitative Health Res. 597, 602 (2003). 141 Hardesty & Ganong, supra note 134, at 555. 142 Wuest et al., supra note 140, at 602. 143 Id. at 605. 144 Id. 145 Id. 60 UCLA WOMEN’S LAW JOURNAL [Vol. 24.41).
Courts should seriously consider the risks of granting any amount of custody to a batterer. All states have enacted statutes that require courts to consider domestic violence evidence in custody cases, and about half have a rebuttable presumption against giving custody to a batterer.
**In California, Family Code Section 3044 reads: “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to [Family Code] Section 3011.
This presumption may only be rebutted by a preponderance of the evidence. Rebuttable presumption statutes provide an excellent way to prevent abusive parents from obtaining custody of children. This presumption is triggered if one parent was convicted of domestic violence against the other parent or if any court has found that the parent committed domestic violence against the other parent or the children. One study found that in states with a rebuttable presumption statute, more custody orders were granted to the victim-mothers, and the batterer-fathers’ visits were limited through restrictive conditions and a structured schedule.
If a batterer does receive some form of custody, courts can still work to protect the victim from excessive in-person contact with him. To avoid unnecessary and potentially abusive communication between the victim and the batterer, courts can work out a custody plan in advance that contains a very detailed and precise visitation order, so there is no need for ongoing interpretation. A detailed visitation order will prevent the batterer from exploiting any vagueness for the purpose of contacting the victim or bringing the victim back to court to resolve the dispute.
Courts should also consider implementing supervised exchange agreements. In a supervised exchange agreement, the abuser does not collect the child directly from the victim, but instead from a third-party, such as the child’s school.
This remedy can be excellent when the abuser does not pose a threat to the child directly, but direct exchanges with the victim could be problematic and conflict-provoking. This method also avoids re-traumatizing the victim by lessening the constant in-person contact between her and the abuser and reducing the chance that children will witness physical abuse.
- Supervised Visitation:
- The Uses of Supervised Visitation Sometimes a judge does not feel that it would be safe for a child and a batterer to be alone together, but the judge still wants to keep the batterer involved in the child’s life. In these cases, courts may assign supervised visitation.
Supervised visitation is contact between a child and a parent that takes place in the presence of a third party, who monitors safety during the contact. Supervised visitation is common in cases of domestic violence. Studies have found that many batterers are granted supervised visitation with children, even when there is a substantiated claim of domestic violence.
**One study found that 80 percent of fathers with a known history of domestic violence still received visitation. Supervised visitation can encompass a range of services, including, at its most intensive level, one-to-one supervision with a trained observer present at all times.
There are also less intensive options for supervision available, including exchange supervision, under which only the transfer of children at the start and end of visits is monitored.
Supervised visitation can be a good resource for courts that wish to keep a batterer in the child’s life. Supervised visits occur in a safe setting, where the batterer cannot physically harm the child. If the batterer initiates aggressive or manipulative behaviors, the supervisor can intervene.
Supervised visits can also reduce a victim’s anxiety about the child’s contact with the batterer, because the victim knows that the batterer is being carefully monitored. Battered women report feeling less anxiety after the court has instituted supervised visitation.
Supervised visitation still has its limitations:
First, there are concerns that many supervisors at supervised visitation centers have not been well-trained in detecting abusive behaviors.
A supervisor must be trained to be vigilant to not only signs of physical abuse, but also verbal or emotional abuse.
Second, supervised visitation is not a universal solution that works for every case. Advocates worry that courts assign supervised visitation too readily, without addressing fundamental questions about whether it is in the best interest of the child to continue to have contact with the batterer.
Third, supervised visitation is always a temporary measure, and courts must have a plan for what will happen when the supervised visitation period ends.
Courts should continuously evaluate the batterer’s progress throughout supervised visitation and ensure total compliance before awarding the batterer any custody.
Courts should not transition a batterer from supervised visitation to unsupervised visits merely because the cost of supervised visitation is high; the court should only end supervised visitation when there is evidence that it is safe for the batterer to be alone with the child.
- The Risk of Supervised Visitation Becoming a Tool of Abuse:
Sadly, though many parents use supervised visitation as a chance to reconnect with their children, some batterers use supervised visitation as an opportunity to continue to abuse their ex-partners. While supervised visitation centers address some of the problems of batterer abuse, some forms of abuse are still possible inside the visitation center.
Even though a batterer may not be able to physically hit the child in the visitation center, he may be able to exhibit other abusive behaviors.
Some batterers have passed threatening notes to their children at supervised visitation centers.
Some batterers have whispered threats to their children, out of hearing range of visitation center staff.
Some batterers do not use supervised visitation to focus on the children at all, but instead remain focused on their victims. For example, some batterers use visitation as a chance to gather information about victims to plan an assault or stalking by asking the children about their mother’s address, job, or routines.
In addition, the visitation center itself can give the batterer an opportunity to attack. The batterer knows that his victim will be present at the supervised visitation center to drop off her children. He can plan an assault accordingly, or follow her home after a visit. In one case, a woman was murdered in the parking lot of a supervised visitation center while bringing her child for visitation.
Courts should consider assigning supervised visitation only in cases where it would be healthy for the child to continue to have contact with the batterer. In cases where the batterer has a history of using manipulation or emotional abuse, child-parent conversations must be actively monitored by a trained supervisor.
Courts should receive status updates on how supervised visitation is going and not hesitate to end visitation if the batterer behaves inappropriately.
Supervised visitation centers must ensure their facilities and parking lots are safe for domestic violence victims and their children. Extra security guards should be stationed in the parking lots when domestic violence victims will be dropping off their children. Visitation centers also must take care to ensure a batterer is not able to follow a victim home after pick-up at the visitation center.
- Child Support:
- Child Support as a Tool of Abuse:
For many families, court-ordered child support is an important tool to help families stay financially stable after divorce. But in domestic violence cases, child support payment disputes can give batterers another opportunity to try to exert control over their victims.
Many victims, out of fear of the batterer, are afraid to file for the child support that their children need. One victim said that going after child support from her batterer “would be like poking a stick at a snake.”
Many women report lowering or waiving their requests for child support because they feared further physical violence. Research on child support awards indicates that the more fear a mother has of the father, the lower the child support award will be. After an initial award of a low amount of child support, many women are afraid to return to court to ask for an increase, even if their children’s needs have increased since the award.
Batterers may use child support disputes as a bargaining chip in their divorce arguments with their victims. Batterers often focus on the balance between child support and custody. When a father takes on a larger share of the custody, often his child support obligation is reduced. Some batterers may petition the court for custody, even though they do not want custody. They do so solely in order to reduce their child support payments.
These custody requests often make victims afraid for their children’s safety, and may make victims more likely to acquiesce on other demands.
Some batterers may even ask for custody specifically to retaliate against the mother, because she requested child support.
A batterer may also use child support obligations as an excuse to stay very involved in the victim’s life. Some batterers may feel that paying support gives them a right to dictate how the victim should live.
Batterers may ask the children questions about the victim’s lifestyle, in order to look for reasons to bring her back to court for a proceeding seeking a reduction in child support. Even when mothers do file child support claims against batterers and win, the batterers often fail to pay.
According to some research, batterers are more likely than non-batterers to fail to pay child support.
Batterers may lie to the court about their income or move from job to job frequently to avoid being forced to pay child support. Denying child support to victims is a form of economic abuse that leaves the victims without the means they need to take care of their children. Some victims have reported that batterers use this form of financial abuse as a revenge tactic. Batterers may know that in order for child support awards to be enforced, “on a practical level, women are required to initiate proceedings first to locate the father and then to seek legal redress.” Many victims may be afraid to push the batterer to pay child support, out of fear that he may physically harm them or otherwise retaliate.
Child support in cases of domestic violence requires the court to carefully consider the appropriate amount of child support that should be awarded. Even if the victim is requesting a low award of child support, the court should consider the possible factors in her decision and make an independent judgment about the appropriate award. When batterers fail to pay child support, the court must strictly enforce the child support obligation. Batterers may avoid paying child support in order to prolong the court case and require the victim to initiate further proceedings.
Courts should take the first instance of a failure to pay child support seriously and not hesitate to find batterers in contempt of court. See Cal. Fam. Code § 4065 (West 2013) (allowing courts to accept a lower-than-usual child support amount by stipulation of the parties, but requiring the court to consider certain factors first). 198 See Cal. Fam. Code § 290 (West 2013). 66 UCLA WOMEN’S LAW JOURNAL [Vol.
The ease and frequency with which batterers take advantage of the custody process to bully and abuse their victims is deeply troubling. Family courts must take a proactive role in preventing abuse through the legal system. Family court judges and mediators should attend trainings on the psychological profiles of batterers and victims, so they are more capable of identifying domestic violence histories in court or in mediation sessions. Family court judges and mediators should vigilantly watch for abuse throughout the mediation process, and all states should allow domestic violence victims to opt out of mediation. In litigation, judges should remain aware of the possibility of litigation abuse, and sanction batterers who file frivolous motions. Courts should be wary of granting custody or visitation to batterers, and if they do, courts should carefully structure all agreements to decrease the need for contact between the parties. When courts award child support in domestic violence cases, judges should ensure that the batterer does in fact pay and that victims do not have to repeatedly face the batterer to enforce payment. Steps like these will help family courts ensure greater access, fairer outcomes, and increased safety for victims of domestic violence and their children.
Permalink https://escholarship.org/uc/item/31z272j1 Journal UCLA Women’s Law Journal, 24(1) Author Campbell, Emmaline Publication Date 2017 DOI 10.5070/L3241036415 Copyright Information Copyright 2017 by the author(s). All rights reserved unless otherwise indicated. Contact the author(s) for any necessary permissions. Learn more at https://escholarship.org/terms Peer reviewed eScholarship.org Powered by the California Digital Library University of California 41 HOW DOMESTIC VIOLENCE BATTERERS USE CUSTODY PROCEEDINGS IN FAMILY COURTS TO ABUSE VICTIMS, AND HOW COURTS CAN PUT A STOP TO IT Emmaline Campbell*. (Meier, supra note 13, at 690. 20 Laurel B. Watson & Julie R. Ancis, Power and Control in the Legal System: From Marriage/Relationship to Divorce and Custody, 19 Violence Against Women 166, 177 (2013). 21 Id. 22 Id. 23 Lundy Bancroft, Jay G. Silverman & Daniel Ritchie, Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012). 24 Meier, supra note 13, at 690. 25 Przekop, supra note 1, at 1068. 26 Id. at 1067. 27 Id. 28 Id. 29 Id. 30 Linda R. Keenan, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 424 (1985). 2017]
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.
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.
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.
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.