Silent No More! Your Silence Will Not Protect You!

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your silence will not protect you. -audra lourdesFeeds:PostsCommentsChild Custody and Visitation Decisions in Domestic Violence Cases by Daniel G. Saunders, Ph.D. (Revised 2007)
12/06/2009 by Claudine Dombrowski

Note: Cross posted from [wp angelfury] A Human Rights Issue-Custodial Justice.

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Child Custody and Visitation Decisions in Domestic Violence Cases

Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns (Revised 2007)

Daniel G. Saunders, Ph.D.


In consultation with Karen Oehme


It may be hard to believe that an abusive partner can ever make good on his threat to gain custody of the children from his victim. After all, he has a history of violent behavior and she almost never does. Unfortunately, a surprising number of battered women lose custody of their children (e.g., Saccuzzo & Johnson, 2004). This document describes how this can happen through uninformed and biased courts, court staff, evaluators, and attorneys and how the very act of protecting ones’ children can lead to their loss. It also describes the major legal and social trends surrounding custody and visitation decisions and the social science evidence supporting the need to consider domestic violence in these decisions. It ends with some recommendations for custody and visitation in domestic violence cases.

Legal Trends

Over the past 200 years, the bases for child custody decisions have changed considerably. The patriarchal doctrine of fathers’ ownership of children gave way in the 1920s and ’30s to little formal preference for one parent or the other to obtain custody. When given such broad discretion, judges tended to award custody to mothers, especially of young children. The mother-child bond during the early, “tender years” was considered essential for children’s development. In the 1970s, “the best interests of the children” became the predominant guideline, although it remains somewhat ambiguous (Fine & Fine, 1994). It was presumably neutral regarding parental rights. Little was known then about the negative impact of domestic violence on women and children, and domestic violence was not originally included in the list of factors used to determine the child’s best interest.

States more recently came to recognize that domestic violence needs to be considered in custody decisions (Dunford-Jackson, 2004; Cahn, 1991; Hart, 1992; for legislative updates from 1995 through 2005, see NCJFCJ, http://www.ncjfcj.org/content/blogcategory/256/302/). Every state now lists domestic violence as a factor to be considered, but does not necessarily give it special weight. However, since the mid-1990s, states have increasingly adopted the custody/visitation section of the Model Code on Domestic and Family Violence developed by the National Council of Juvenile and Family Court Judges (NCJFCJ, 1994), increasing from 10 states using the code in 1995 to 24 in 2006 (NCJFCJ, 1995a; 2007). These statutes use the model’s wording, or similar wording, that there is a “rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence” (p. 33).¹ Although statutes have become increasingly precise regarding definitions of domestic violence, they may leave children vulnerable to psychological abuse when it is not included in the definition (Dunford-Jackson, 2004).

Statutes also address other issues about custody and visitation, such as standards for supervised visitation and similar safeguards (Girdner & Hoff, 1996; Hart, 1990; Jaffe, Lemon, & Poisson, 2003), exempting battered women from mandated mediation (Dunford-Jackson, 2004; Girdner, 1996),² protecting battered women from charges of “child abandonment” if they flee for safety without their children (Cahn, 1991), and enabling a parent to learn if a person involved in a custody proceeding has been charged with certain crimes (see Pennsylvania’s Jen & Dave Program on the Web at http://www.jendaveprogram.us/). Some recent statutes make it easier for victims to relocate if needed for safety reasons (Jaffe, et al., 2003; NCJFCJ, 1995a; 1999; see Zorza, 2000).

Other legal protections are also available. For example, in one state (Tennessee), if a parent alleges that a child is exposed to domestic violence, such allegations cannot be used against the parent bringing the allegation (NCJFCJ, 2004). In another state (Texas), a mediated agreement can be declined by the court if domestic violence affected the victim’s ability to make the agreement (NCJFCJ, 2005). Some states (Massachusetts, Ohio) now make the presumption that custody or visitation should not be granted to anyone who is found guilty of murdering the other parent (for a more complete review of the above trends, including legal reforms in Australia, Canada, and New Zealand, see Jaffe, et al. 2003).

Unfortunately, courts nd the mental health professionals advising them (Johnson, Saccuzzo, & Koen, 2005; Fields, in press) and lawyers (Fields, 2006) may pressure women to stay tied to their abusers. In addition, “friendly parent” provisions in statutes or policies create another factor for courts to assess in custody decisions, favoring the parent who will encourage frequent and continuing contact with the other parent or foster a better relationship between the child and the other parent (Zorza, 1992). Despite a reasonable reluctance to co-parent out of fear of harm to themselves or their children, battered women may end up being labeled “unfriendly,” thereby increasing the risk of losing their children (APA, 1996).

Along with legal changes, training and resource manuals for judges and court managers are available, including guidelines for selecting custody evaluators and guardian ad litems ( Dalton, Drozd, & Wong, 2006; Maxwell & Oehme, 2001; Goelman, Lehrman, & Valente, 1996; Lemon, Jaffe, & Ganley, 1995; NCJFCJ, 1995b; NCJFCJ, 2006; National Center for State Courts, 1997). One benchbook covers cultural considerations for diverse populations (Ramos & Runner, 1999). A recent trend is the use of “parenting coordinators” or “special masters,” a mental health or legal professional with mediation training who focuses on the children’s needs and helps the parents resolve disputes. With the approval of the parties and/or the court, they can make decisions within the bounds of the court order. The Association of Family and Conciliation Courts provide guidelines for parenting coordinators and a discussion of implementation issues (AFCC, 2006; Coates, et al., 2004). The guidelines require that parenting coordinators have training on domestic violence and caution that “the parenting coordinator’s role may be inappropriate and potentially exploited by perpetrators of domestic violence who have exhibited patterns of violence, threat, intimidation, and coercive control over their co-parent” (AFCC, 2006, p. 165). When one parent seeks to maintain dominance over another, the parenting coordinator may need to act primarily as an enforcer of the court order.
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