While less is known about abusive mothers, 30% to 60% of fathers who abuse their female partners also abuse their children, and abusive fathers sexually molest their daughters at least 6 times as often as nonabusive fathers. Abused gay and lesbian parents face similar issues, plus bias from courts and helping agencies.
Contested custody cases are very costly, averaging $90,000 per abuse family and causing 27% of battered women to file for bankruptcy. Custody courts can help children by supporting protective parents to protect themselves and their children from abusive parents.
Custody And Visitation Standards
In intact families, the parents are presumed to share custody of the minor children, although a few states presume that mothers should have custody of children born out of wedlock. If parents separate and cannot reach a suitable custody agreement, courts determine physical custody (with whom the child will live, visitation arrangements, and whether children may relocate) and legal custody (who may make the major religious, educational, and medical decisions). Physical and legal custody can be shared or sole. Custody is decided based on a best interest of the child (BIOC) standard, whose criteria are codified or listed in case law. The standard is criticized as being too subjective. Appellate courts reverse custody decisions when the trial court abused its discretion, a difficult standard to meet.
Batterers’ families often fight for custody, particularly when the batterer is denied access. To win, they must meet a higher standard than the BIOC one, often the same unfitness or unavailability standard required for the child protection system to remove a child from parents. Grandparent visitation laws have been struck down in some states, but also require a higher standard than the BIOC criteria provide. When parents are not in the picture, the custody battles of nonparents are typically decided on a BIOC standard.
Domestic violence harms children, and usually escalates, or less commonly only begins, after their parents’ separation. It is involved in at least 50% to 70% of contested custody cases. Many batterers lack empathy for their children and may put their own needs before those of their children. They may also use the court process and visitation to continue the abuse, and 11% of them abduct their children.
Domestic Violence Ramifications
Many states’ laws encourage parents to have shared or joint legal or physical custody; some use shared parental rights language instead of custody and visitation. While most cooperative parents can coparent reasonably well, shared parenting increases the tension and abuse in families with violent members. At least 32 states have added “friendly parent” provisions (FPPs) to their BIOC laws that favor giving custody to the parent who will encourage the child to have a better relationship with the other parent. Although written to encourage cooperation, FPPs discourage victims from raising abuse allegations lest they be labeled “unfriendly” and lose custody, and FPPs reward abusers who reframe their partners’ protective behaviors as “unfriendly” by depriving victims of custody. Batterers may use FPPs, shared parenting, and unsupervised visitation to increase and prolong their hostility and control, and facilitate further abuse.
Laws Discourage Giving Abusers Custody
Spurred by battered women’s advocates, the findings of court gender bias studies in the 1980s and 1990s, and the model code, every state enacted gender-neutral statutes, enabling or requiring judges to consider domestic violence in their custody determinations. These laws often specifically encourage protecting victims and giving batterers restricted, supervised visitation. At least 24 states have enacted a rebuttable presumption that it is not in the BIOC to award custody to an abusive parent. Federal laws and uniform codes now permit courts to consider domestic violence in interstate custody disputes to protect victims, and require police and courts to honor and enforce custody and protective provisions issued in courts of other states, including those in protective orders.
Laws Are Not Always Implemented, Disadvantaging Victims
Although domestic violence is a BIOC factor or presumption in every state, states and judges vary in how much weight to give it. Some minimize its importance, particularly in states with FPPs, a joint custody preference or a harsh relocation standard. Others use BIOC factors like stability to disadvantage abused victims particularly when they move often or are homeless. Protective judges are thwarted from protecting victims by the paucity of supervised visitation programs. Supervision by family members may be as dangerous as unsupervised visitation.
Practices in the criminal justice system often leave victims with no record of the criminal abuse they have endured. Police may wrongfully arrest the victim, prosecutors may never charge the batterer, or courts may ultimately dispose of cases without any record of conviction. Protective orders entered by agreement of both parties may not be admissible in other cases.
In addition, mental health professionals (MHPs), who influence custody determinations in their roles as guardians ad litem, mediators, custody evaluators, and expert witnesses, often lack adequate training in domestic violence. Most were schooled in a family systems dynamic perspective, which minimizes domestic violence, assumes both parents cause it, and favors shared custody. Some advocate FPPs or more punitive, discredited theories like parental alienation syndrome to deny custody and even visitation to protective parents. Custody evaluators often give psychological tests that bias abuse victims, failing to correct for the abuse. Most courts follow the advice of MHPs, even when it is at odds with the state’s custody laws.
These practices result in many protective parents losing custody.
Visitation Problems
A child who has been abused by a parent may refuse to see the abuser, or a protective parent may refuse to allow the abuser to see the child. Rarely do mothers make deliberately false allegations of incest or domestic violence in custody cases, although courts may believe such allegations are rampant. Some courts jail protective parents or, more rarely, the children when abusers are denied access, often with the encouragement of MHPs. Children forced to visit occasionally run away, abuse themselves, or even commit suicide. Some protective parents have fled with their children hoping to protect them, only to find that they face contempt or abduction charges. Some adult children are speaking out about these injustices, and a few judges are reconsidering their approach.
New Proposed Child Custody Standard
After meeting for 10 years, the prestigious American Law Institute has proposed granting custody by the “approximation rule,” whereby each parent would presumptively receive roughly the same percentage of time spent with the child prior to the separation. The approximation rule would streamline most custody disputes, and maximize stability for children. But it is still too early to see if it will be adopted. Many MHPs oppose it, some fearful it will eliminate their jobs. Victims able to file costly appeals win custody reversals 40% of the time.
Bibliography:
- American Psychological Association. (1996). Violence and the family: Report of the American Psychological Association Presidential Task Force on Violence and the Family. Washington, DC: Author.
- Bancroft, L., & Silverman, J. G. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics. Thousand Oaks, CA: Sage.
- Jaffe, P. G., Lemon, N. K. D., & Poisson, S. E. (2003). Child custody and domestic violence: A call for safety and accountability. Thousand Oaks, CA: Sage.
- Myers, J. E. B. (1997). A mother’s nightmare: Incest. A practical legal guide for parents and professionals. Thousand Oaks, CA: Sage.
- National Council of Juvenile & Family Court Judges. (1994). Model code on domestic and family violence. Reno, NV: Author.
- Zorza, J., & Rosen, L. (Eds.). (2005). Violence against women [Special issue on child custody and domestic violence], 11(8).
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