One important reason many
women who are battered give for not leaving a violent relationship
is fear of losing custody of their children (Kurz, 1995). There
is certainly enough evidence from survivors' accounts that batterers
often threaten to take custody of the children to prevent the
victims from leaving the relationship or to force them back. Many
batterers admit using these tactics and, also, threatening to
challenge their victims for custody in the courts (Bancroft, 2004;
Jaffe, Lemon, & Poisson, 2003). But what evidence is. there
that they can actually make good on such threats? Because courts,
social services, and various profession als-not just the individual
parents involved-have a role in determining custody and visitation
outcomes, what is the real likelihood that a batterer can simply
"take" or win custody?
Consistent with the fears of their
clients, battered women's advocates have long maintained that
the family courts are gender biased and particularly prejudiced
against battered women, discounting the seriousness of their abuse
and even punishing women who are abused for raising legitimate
abuse and safety concerns. Fathers' rights proponents counter
that women exaggerate or falsely raise domestic violence allegations
for tactical gain. Yet as the studies in this issue show, women
do not gain anything tactically by raising domestic violence allegations.
Indeed, it is almost impossible for them to obtain court custody
orders that adequately protect themselves and their children.
Several back ground issues must be understood first, to understand
how it is possible that courts are failing to protect children,
particularly when 49 states have laws that require judges to consider
domestic violence when making custody determinations (Tucker,
2004). The background issues are (a) the custody laws and recent
changes in them, (b) the family systems frame-of-reference used
by custody evaluators that influences the perspective of family
courts; and (c) how the fathers' rights campaign has further discredited
women and especially domestic violence victims, resulting in victim
perpetrator role reversal and greater gender bias against mothers.
As the basis for custody awards changed from the "tender
years" doctrine, which favored awarding mothers custody,
at least when the children were young, to the "best interests
of the child," which increasingly favored fathers, all mothers,
and domestic violence victims in particular, were no longer guaran
teed custody just because they were mothers. Instead, mothers
have to fight for custody throughout the United States and Can
ada as if they are on a level playing field, something that most
mothers never anticipated (Taylor, Barnsely, & Goldsmith,
1996), particularly when there are laws to protect children from
being in the custody of abusive fathers.
The Model Code on Domestic and Family
Violence, which the National Council of Juvenile and Family Court
Judges adopted in 1994, included among its many provisions a chapter
on family and children. Although parts of the code are now somewhat
out dated (e.g., it barely discussed stalking, which was only
emerging as a major domestic violence issue when the Model Code
was being drafted), most of its provisions on custody and visitation
remain largely valid. Specifically, Section 401 states,
States that have adopted this provision have "presumption
laws." Sections 402 to 406 provide for safety factors involving
when visitation is appropriate and how it can be done safely,
suggesting many specific terms, from a presumption permitting
the victim to select the child's residence within or without the
state (Section 403), ordering protective setting exchanges (Section
405), or ordering visitation to occur at supervised visitation
centers (Sections 405 to 406). Many specifics in Section 405 seek
to protect the victimand child by keeping their addresses confidential,
requiring the abuser to attend and complete a batterer intervention
program, and/ or refrain for consuming alcohol or controlled substances.
Sections 407, 408(A), or its alternative 408(B) require any mediator
to be trained in domestic violence and to screen any cases referred
by a court for domestic violence. Ideally, the Code prefers that
cases involving domestic violence that was proved or alleged not
go to mediation unless the victim desires it and it can be done
safely, including by having a supportive person (who could be
an attorney or advocate) present. Although some states have adopted
the Model Code custody and visitation language, very few of them
have adopted all of the provisions as strongly.
FAMILY SYSTEMS DYNAMIC
For many reasons, battered women are particularly
disadvantaged in custody disputes with their abusers; This will
probably come as a surprise to those who have worked with domestic
violence on the criminal justice side. However, it is important
to note that the family court system uses a different frame of
reference for domestic violence, having been strongly influenced
by "family systems" professionals and not those with
a criminal justice framework. Despite laws in every state that
criminalize violence, family systems professionals perceive the
violence as a break down in communication and not as a crime deliberately
perpetrated by one individual. Even when violence is recognized,
it is not regarded as salient to children (e.g., he may be a violent
hus band, but could still be a good father; Bancroft & Silverman,
2002). Those in the family court system often repeat the myth
that the pressure of divorce makes good people behave badly, whereas
those in the criminal court system are more likely to recognize
that many, if not most batterers, are the same defendants returning
to court repeatedly and often against new victims and with new
crimes (Klein, 2004).
Ironically, when legislators and mental health professionals
finally realize that domestic violence can hurt the children,
they may blame the mothers for not having left sooner to protect
the children. Rather than recognize that children are most resilient
when they have a strong relationship with their abused mother,
they often recommend that custody be awarded to the state or to
the batterer (Dunford-Jackson, 2004).
These disadvantages to battered women are further
com pounded because batterers are far more likely to fight for
custody than are other fathers. They do so often with no prior
interest in the children or real interest in winning, but rather
to control, hurt, or demoralize or impoverish their victims, waging
intensive cam paigns against them (Bancroft & Silverman, 2002;
Jaffe et al., 2003). Often, these campaigns emotionally and financially
wear out battered women, or exhaust or even frighten their attorneys,
with the result that many women end up giving up, being sold out,
or having insufficient money to continue the endless court battles
(Bancroft & Silverman, 2002; Jaffe et al., 2003).
The family systems outlook dominates among those
who do mediation, act as custody evaluators, or are appointed
as guardians ad litem to represent the children's best interests,
most of whom are mental health professionals. Large numbers of
the mental health professionals who make or at least greatly influence
the custody decisions are still untrained in and lack a real understand
ing of the dynamics of domestic violence (Bancroft & Silverman,
2002; Cohn, Salmon, & Stobo, 2002). The judges and lawyers
practicing in family and divorce courts repeatedly hear the family
sys tems perspective from the experts who are supposed to be knowledgeable
in mental heath issues, including domestic violence, and they
typically adapt or seldom challenge the perspective.
Despite the Model Code, mediation is increasingly
practiced in most states when custody or visitation is in issue,
and often mediation is mandatory. States vary in who does the
mediation, whether they are outsiders who must be paid or whether
they work within the court system, usually at no financial cost
to the parties involved. Mediation tends to favor fathers regardless
of the method of mediation used (Bancroft & Silverman, 2002;
INFLUENCE OF THE FATHERS' RIGHTS MOVEMENT
The Fathers' Rights movement has loudly proclaimed
that men are disadvantaged in custody disputes, even though court
gender bias studies almost always found that most mothers win
custody largely by default. Yet in airing their grievances, they
have been successful in portraying batterers as victims, and this
was given legitimacy through surrogate professionals such as Dr.
Richard Gardner, who developed Parental Alienation Syndrome (PAS),
a junk science that has no scientific basis (American Psychological
Association, 1996). PAS turned the table on the victim, making
her the aggressor, and urged not only that she be denied custody,
but often even visitation. Even when PAS is not explicitly used,
the belief that victims fabricate abuse allegations may still
underlie decisions to give custody to the batterer, particularly
when incest is alleged (Myers, 1997; Rosen & Etlin, 1996).
One way is through the gentler sounding "friendly parent"
laws and provisions that direct courts to give custody to the
parent who encourages a better relationship between the child
and the other parent, provisions that greatly disadvantage mothers
and silence battered women who seek to protect themselves or their
children. The fathers' rights movement has pushed many states
to adopt joint or shared parenting presumptions. Most states with
friendly par ent provisions or joint or shared custody presumptions
seldom clarify to courts that such provisions should have no weight
in cases where there is domestic violence, often resulting in
the abuse being given lower or no weight.
THE STUDIES REPORTED
This issue reports the results of four studies-all
funded by the National Institute of Justice-that, for the first
time, present systematically collected empirical evidence on the
custody crisis facing battered women in America.
The question as to how many battered women lose
custody of their children cannot be answered simply because the
custody laws and practices governing normal custody arrangements
vary from state to state, with the result that there are many
different standards of comparison among the different jurisdictions.
For example, in Florida, joint custody is the preferred arrangement,
but parents may petition the court for sole custody in special
circumstances. In addition, the data collected from courts typically
involve contested custody cases, in which men who batter their
intimate partners are likely to be overrepresented because they
more often contest custody (American Psychological Association,
1996). There are also the issues of legal custody versus physical
custody and restricted or structured visitation, or conditions
placed on visitation.
The studies in this issue deal with some of these
multiple issues, with data collection having occurred in 9 of
the 50 states. This is by no means the last word, but hopefully
it is the first.
The first study in this issue was conducted in Washington
State, which has the unusual requirement that all divorcing parents
must file a parenting plan with the court. One parent files the
plan, and the other is given an opportunity to respond. If both
agree, the plan goes forward. If they do not agree, responses
go back and forth until a plan is reached, either through mediation
or a judicial decision. Domestic violence cases never go to mediation.
It was not possible to distinguish contested cases from this database.
Washington does not favor joint custody, and custody mostly goes
to mothers (about 90%). Battered and nonbattered women did not
differ on custody. Restricted visitation was more likely to be
imposed on batterers rather than on nonviolent fathers, but only
when the violence was known to the court. A great deal of documented
violence was not known to the court.
Although the solution for Washington State may seem
simple (to find ways to better inform the court about histories
of vio lence), this may not necessarily be a good idea. We need
to know more about how this information is used and why victims
may not want the court to know about it. The second study, conducted
further south in San Diego, found that revealing information about
domestic violence could potentially backfire against a victim.
That study, which compared custody mediation in cases with and
without domestic violence, found that mediators who reported being
aware of the existence of domestic violence in the relationship
were less likely to recommend protected child exchanges than those
who did not. Domestic violence victims were, at best, given comparable
protection to nonabused victims; at worst, they received less
A third study, conducted in New York Family Court,
found that information about domestic violence does not appear
to influence the court at all. This court almost never denied
a custody or visitation petition, and no fathers enjoined by an
order of protection (OP) were denied custody or visitation. Indeed,
fathers enjoined by OPs were significantly more likely to get
visitation than those who were not. The most likely reason is
that fathers can get arrested, charged with contempt in family
court and with a crime in criminal court, if they violate an OP
to have visitation with their children unless they obtain a visitation
order, and the OP is limited by that visitation order. Fathers
restrained by OPs, therefore, may be more persistent in their
efforts to obtain visitation orders than fathers not restrained
The fourth and final study in this issue deals with
an evaluation of the efficacy of the Model Code in facilitating
equitable custody outcomes for battered women. The study found
that the Model Code seems to be having a positive effect in states
where it has been enacted, except in a state with competing provisions.
This was perhaps one of the most disturbing results to emerge
from these studies. In Florida, a state that has enacted the Model
Code, but also has a competing "friendly parent" provision~
violent fathers were more likely to get sole custody of their
children than the mothers who were the victims of domestic violence.
Even in Model Code states, there were still a fairly large number
who did not get custody, and they got no benefit in states that
also had friendly parent provisions. However, we do not know in
how many instances the court was aware of the history of violence.
Thus, one of the things we still need to know is
how courts obtain, interpret, and use information on domestic
violence-for example, from custody evaluators, mediators, guardians
ad litem, and other professionals. In addition, we need to know
more about education of judges, custody evaluators, mediators,
and guardians ad litem on domestic violence, and specifically
the content of the curricula that are used to educate each of
these professionals. More information needs to be developed on
the effects of friendly parent provisions on domestic violence
victims and also presumptions favoring joint custody.
Hopefully, this issue will signal the beginning
of a mission to develop information that will help policy makers
and practitioners find ways to solve this vexing problem.
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