Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues

Domestic Violence, Abuse, and Child Custody brings together experts from the US and Canada for a multi-disciplinary review of the most up-to-date research and recommendations for handling, domestic violence custody cases. The book’s 25 chapters are written by those in the know: judges, lawyers, psychiatrists, psychologists, sociologists, journalists, domestic violence advocates, and others intimately familiar with the details of these cases. These diverse experts approach the issue through the lens of different disciplines and professional experiences. Although they may not agree on every point, they do agree on at least one thing: that the family court system in this country is broken.

For more than two decades, protective mothers from every state in the country (as well as overseas) have been ordered to turn their children over into the care, and even the custody, of the children's abusive fathers. This occurs even when there is adequate evidence of child abuse, domestic violence, and other harmful behaviors on the part of the father. Courts claim to be doing this to ensure that both parents remain involved in their children’s lives after divorce or separation, but in fact, in most of these cases, precisely the opposite happens: mothers are denied any meaningful relationship, or even contact, with their children. In the meantime, male supremacist groups claim unfair treatment in the family courts, seeking shared or total custody in order to avoid paying child support and to maintain men’s traditional control over their partner and their children.

We can argue about when we should have known, but today we know the custody court system is destroying the lives of thousands of children. It will continue to do so until it adopts the reforms advocated in this well documented book. As Rita Smith, Executive Director of the National Coalition Against Domestic Violence, writes in her Afterward, now that this book has been published, those who continue to use the flawed approaches and practices addressed in this book can only be construed as engaging in professional malpractice.

When the court system, like other entities, began to respond to domestic violence as a public health concern back in the mid-to-late 1970s, there was little if any research on the effects of, or the proper societal response to domestic violence. At the time, many believed domestic violence was caused by mental illness or substance abuse or was provoked by the victim's actions. Domestic violence was equated with physical abuse, and it was believed that children were unaffected by it unless they, themselves, were directly assaulted. In recent years, these and other assumptions that the courts have long relied on have been exposed as the myths they are. Nevertheless, to this very day, the courts are operating according to these same outmoded ideas. It’s business as usual, with the courts continuing to churn out another generation of damaged children and traumatized mothers. This is the inevitable outcome of using outdated and discredited approaches to making custody decisions when domestic violence and similar factors affect the case.

One of the findings you'll learn about in this book is that, of the small fraction (5%) of child custody cases that are contested to trial and often beyond, perhaps 90% involve abuse allegations against the father. These are not good guys sincerely wanting to raise their children—these are, for the most part, batterers who want to punish, hurt, and control their exes. Another factor contributing to the surge in men’s filing for custody of their children was the federal child support enforcement law that was put into place in 1993. In the decade prior to that, male supremacist groups had begun to encourage abusers who had little involvement with the children during the relationship to seek custody as a vindictive tactic against their partner. (We cannot count how many women have told us that their abuser had threatened them with some version of, “If you leave, you’ll never get the kids!”) Courts who are certain that children do better with both parents in their lives (regardless, apparently, of how sociopathic, addicted, or mentally deranged the parent may be), are delighted to see fathers who appear to be so devoted to their children that they will fight for them in court.

Contrary to what many might assume, the people who staff our nation’s custody courts have no real expertise about topics related to children’s best interests—children's developmental needs, the mother-child attachment bond, the benefits of long-term nursing, the harms of maternal-child separation, and so forth. Judges usually aren’t required to have any education whatsoever on the major issues affecting the litigants who appear in front of their bench. Although there is plenty of published literature on such topics, such as on the effects of domestic violence on child witnesses or the developmental impact of lengthy mother-child separations--it’s hard to find anyone in the legal system, including custody evaluators, who bases recommendations on the generally accepted research on children's mental health and developmental requirements.

The information provided by this book isn’t necessarily new, but it is all up to date. We also believe that the findings in this book are conclusive. Still, we want to be clear that our interest isn’t in attacking the court system; rather, what we wish to do is to work with the system. We hope to form a genuine collaboration with the courts and others charged with protecting our nation’s most vulnerable citizens. Our only agenda is for courts to use the most up-to-date research available to inform their decisions and make the safety of children the highest priority. We would like to work with judges and other court professionals to provide them with the information that was unavailable thirty years ago, when many of the current practices were first developed.

We must also say a word to the media. One of the chapters is written by Garland Waller, an award winning documentary film producer and professor of communication at Boston University. Her chapter speaks about the failure of the media to expose a crisis that has endangered so many of our children. Domestic violence experts emphasize the importance of looking for patterns and remembering the context of information. Journalists have been reluctant to publicize individual cases because it is hard to know the truth when the facts are disputed and when court findings are so often wrong. It is difficult to detect these patterns in a single case, but it is easy to see the patterns when we look at hundreds or thousands of cases and see obvious mistakes leading to dangerous outcomes.

Now that we have the evidence to prove that the United States family court system is broken, will the media do its job by picking up the story and making the public aware of what is going on? Of course, any one case can be called “controversial,” since it’s assumed that both parties have equally valid arguments to make. But domestic violence is hardly a controversial topic, and there is but one valid position to take on it, which is that it is harmful and unacceptable and must be stopped. In fact, every courthouse and every state legislature claim to work on behalf of victims of domestic violence. Now that we’ve proven the existence of these problems, will the media use its might to enlighten the public about this national scandal, compared by many to the investigations of sexual abuse among clergy to educate the public about these tragic outcomes? If the children whose lives have been ruined through bad decision-making by a family court judges had instead been made deathly ill by a bacteria living inside the cream of Oreo cookies, the media would have been all over the story. There would be public outrage, and rightly so, especially if it were then discovered that the FDA had known the cookies were bad but allowed them to be consumed in school lunchrooms across the country.

Is this ever-growing phenomenon of childless mothers and motherless children no less worthy of our intense collective scrutiny? Will anyone listen? Will you?

Now that we know that the custody courts are broken, what are we going to do about it?

In a trend that started in the 1980s, and increasingly since then, family court judges across the U.S. have ordered thousands and thousands of children into unsupervised visitation with abusive biological fathers. In many cases, mothers have been denied any form of custody, with some losing all contact with their children. In the last few years, attorneys and social service advocates have met to address this issue at the annual Battered Mother’s Custody Conference. This book brings together the expertise and perspective of more than thirty contributors to BMCC in a comprehensive resource that arms advocates with the best thinking and most effective legal strategies in the battle to protect mothers and families from a system that often fails to address abuse and sometimes actually worsens the problem.

Domestic Violence, Abuse, and Child Custody presents insights and hands-on practice guidance from the leading experts on child custody cases that involve intimate partner violence and child abuse. Chapter authors address the prevalence of these problems, the complex reasons why protective mothers lose custody of their children, the things court agents and other professionals often do that contribute to bad outcomes, and the corrective measures that must be put into place to ensure legal protections for abused women and their children.

  • Understand the harm caused by all types of abusive behavior, whether physical, verbal, financial, legal, or other forms.
  • Guide the representation of protective mothers through research, case law, and consultation to improve case outcomes. 
  • Establish the paramount importance of children’s safety beyond all other priorities that may emerge in a child custody case.
  • Provide judges with new insight into the dynamics of violence, recognize when experts and other types of witnesses are providing testimony based on myths, stereotypes, and discredited theories, and provide an empirically based, real-world rationale for orders emphasizing the safety of protective mothers and the accountability of batterers.

Written with the expressed goal of helping battered mothers assert their rights to a safe family life free from violence, the contributors to this book take a firm stand against so-called “balanced” points of view that attempt to explain or justify abusive behavior. This book is grounded in the belief that battering is never justified, and batterers are not entitled to “equal rights” to custody when the safety of a child is in question. Advocates who share that view will find this book a uniquely compelling ally in protecting and defending the rights of battered mothers.

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