II. REASONS WHY BATTERERS USE FAMILY COURTS TO CONTINUE
THEIR ABUSE
When a couple divorces, the legal system may become a symbolic
battleground on which the male batterer continues his abuse.
Custody and visitation may keep the battered woman in a
relationship with the battering man; on the battleground, the
children become the pawns.36
After looking at how domestic violence operates as a mechanism of
control, perhaps it is not surprising to discover that batterers manipulate the
courts and their victims during dissolution, custody, and visitation
proceedings. After all, domestic violence is a pattern of behavior that is not
easily reversed, so separation alone is unlikely to break the pattern of abuse.
There are numerous reasons why a batterer chooses to use the courts and
the litigation process; many of them are explored below. Before delving
into the specific reasons, it is important to discuss the frequency with which
batterers decide to participate in family court proceedings.
As mentioned earlier, fathers who abuse are twice as likely to seek sole
custody of their children as nonviolent fathers, and notably, abusive fathers
are three times as likely to be in arrears of child support.37 In one recent
study in Massachusetts, fifteen of the forty fathers (approximately 38
percent) who sought custody received sole or joint custody of the children,
despite the fact that each and every one of these men were reported to have
abused both the mother and the child/children prior to separation and
continued to do so after separation.38 Thus, before exploring why courts
may choose to disregard a history of domestic violence,39 it is important to
note that a history of violence does not stop batterers from obtaining
custody. In fact, a history of abuse seems to increase the likelihood that the
batterer will seek custody.
So, why do batterers use family courts as a battleground at all? What is it
about the courts, and family courts specifically, that is so appealing to
them?
[because they can]
A. Only Available Contact Left
One of the most obvious reasons batterers use family courts is because it
is often the only way they can legally maintain any contact with the
survivor.40 After leaving their abuser, survivors may try to keep their
contact information private in order to keep as much distance from the
batterer as they can. They may seek formal protection through restraining
orders or civil protection orders. They may move without allowing the
batterer access to their current address or phone number. However, even if a
survivor can achieve this physical distance from a batterer, the batterer may
try to initiate contact through the courts by seeking custody of or visitation
rights with his child/children. In this way, the courtroom may present an
opportunity to prolong contact with the victim or seek contact that is not
otherwise available.41
As mentioned earlier, not all batterers who abuse the mothers will abuse
the children. Certainly, nuanced solutions exist that can provide an
opportunity for fathers, even those with a history of domestic violence, to
remain in some sort of communication with their children. Every family has
unique circumstances that can allow for a variety of solutions; however,
because the courts may be the only way and the only forum for abusive
fathers to continue abusing their former spouse and children, it is important
for courts to take a comprehensive look at each situation and to act carefully
if a history of abuse is present.
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