TIMES UP!! Throw the Book at Abusers: Using DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY in Your Case

Throw the Book at Abusers: Using DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY in Your Case

By Barry Goldstein

As this article is about to be published, Joan Zorza, Nancy Erickson and I are getting ready to make a presentation to the Battered Mothers Custody Conference about how protective mothers can use our book to improve their case. We hope to provide suggestions that will lead to better outcomes than we have been seeing in the custody courts.

Integrating Research into your Case

We often do not hear about a case until it turns bad by which point a lot has happened to undermine the protective mother's position. When a mother has a chance to present the best possible case from the start, what would we want her to do?. Perhaps the first obstacle and the first opportunity is to try to convince the court to avoid the standard practices that work poorly for children and instead look to the specialized body of up-to-date research that was unavailable when many of the standard or should I say substandard practices were first developed.

At the start of the case, let the judge know it is a domestic violence case. Point out that there is a lot of recent information and research about domestic violence custody cases and your case occurs at a time when court systems are transitioning from traditional practices that have been shown to work badly for children to improved practices based on the specialized body of scientific research now available. Ask the court to be open to using best practices as established by this research as the children in the case deserve the use of practices shown to work best for children.

At the start of the case, ask the court if everyone can agree that the first priority should be the safety of the children and the second priority to create arrangements that give the children the best chance to reach their potential. It is hard to imagine a better demonstration of the best interest of the child, but routinely courts consider other factors that are far less important to children. Courts have statutes or case law that define factors that must be considered, but none of the laws would prevent courts from making these two factors that most affect children the highest priority. By raising this issue early, protective mothers focus attention on important issues instead of the false and misleading issues abusers often use to confuse the courts.

Courts usually don't give litigants much time to discuss the case during early appearances, but these statements can be made during initial appearances, motions and in bench conferences. The myth that women frequently make false allegations of abuse to gain an advantage in litigation is a common problem and it may be right to address it early in the proceeding. The mom or her attorney can mention the myth, the correct information that such deliberately false allegations occur only one or two percent of the time and the problem courts have had in responding to valid domestic violence allegations because of a widespread belief in this myth. The court should be informed of the recent Department of Justice study led by Dr. Daniel Saunders of the University of Michigan that found professionals with inadequate training in domestic violence are more likely to believe this myth and make recommendations that are harmful to children. The court can be asked to avoid appointing professionals who believe in this myth and encourage court professionals to review the up-to-date research that proves mothers rarely make false allegations.

One of the major problems in domestic violence cases is the failure of court professionals to recognize domestic violence because they don't know what to look for. Chapter 13 of the book written by Judge Mike Brigner describes false assumptions untrained professionals often make. They believe if a woman goes back to her abuser, fails to pursue her request for a protective order or doesn't have medical or police records to corroborate an allegation of abuse, the charges must be false. In reality these are normal actions of battered women who do this for safety and other good reasons particularly when they are still living with the abuser. Court professionals should avoid discrediting allegations of domestic violence based on information that is not probative.

The other major problem courts have in recognizing domestic violence is they often fail to understand the significance of much of the available evidence that supports the mother's allegations of domestic violence. Court professionals are often looking only at evidence of physical abuse because they don't understand the reasons why abusers commit domestic violence. Domestic violence involve tactics abusive men use to maintain control over their partner and enforce what they believe is their privilege to make the major decisions in the relationship. It is not a crime of passion, but rather abusers use a cost-benefit analysis in determining when and whether to abuse his partner. This is why abusers are able to control their temper if he perceives his partner did something disrespectful when they are in public and instead waits until there are no witnesses before punishing her.

At the start of a case, protective mothers and their attorneys should put together information demonstrating the pattern of her partner's abuse. This would include abusive practices including physical, verbal, emotional, financial and legal tactics. It would also include controlling tactics like isolating her from friends and family, monitoring her behavior, false allegations of cheating, rules she has to follow and attempts to prevent professionals from helping her. The pattern would also include evidence about his motivation. Court professionals are often taught to view contested custody cases as "high conflict" by which they mean each parent is acting out their anger at the former partner to such an extreme as to hurt the children. In reality most contested custody cases are domestic violence cases which cannot be settled because of the father's abuse. Abuser groups encourage fathers who had little involvement with the children during the relationship to seek custody when she leaves in order to pressure her to return, punish her for leaving and avoid child support. Accordingly evidence of motivation would include his lack of interest in the children, poor parenting skills, use of visitation and the court case to gain access to his victim and attempt to resume their relationship. The alleged abuser's attempts to send the children to stay with a third party when the mother is available to take care of them should be used to demonstrate his goal is to hurt the mother. Sexist behavior is important evidence of motivation because sexism is the cause of domestic violence. This pattern can be used at court conferences, in motions as well as trials and appeals to help the court understand the pattern of abuse. The pattern can also be used in informal discussions with court professionals like GALs or evaluators to help them recognize the father's domestic violence.

Judges and other court professionals are often hostile or at least overly skeptical of abuse allegations. They are often more open to considering information about primary attachment even if they don't understand the full implications. At the same time, protective moms dealing with devastating issues of domestic violence and child abuse and defending against abuser tactics of demonizing the victim often fail to raise the issue of primary attachment.

Primary attachment refers to the person usually the mother who does most of the child care in the first couple of years of the baby's life. This has important consequences for the well being of the child. Primary attachment is sometimes confused with continuity, but subsequent changes in the child care arrangement, including court orders giving custody of the child to the non-primary attachment figure do not change primary attachment. Primary attachment is forever and a child deprived of regular contact with her primary attachment figure is more likely to suffer depression, low-self-esteem, commit suicide when older and other harmful effects. Unless the primary attachment figure is unsafe, how could it possibly be right to place a child at such risk? Safety issues would be a parent who is a drug addict, beats the child or some similar risk and certainly would not be just making negative statements about the other parent.

Although abusers sometimes lie or exaggerate their role in child care, in many cases they don't challenge the fact the mother provided most of the child care when the child was an infant. Other times the parties' work schedules or the father's lack of familiarity with the child's development and daily activities can be used to confirm the mother as the primary attachment figure. Once this is established, it is fair to ask why a father who claims to love the child would want to separate the child from his primary attachment figure. Information about the importance of primary attachment can be provided by the attorney during court appearances and through an expert witness at trial.

For many years, and to some extent today, if a mother complains about the father's domestic violence and sought to limit his contact, the judge would ask some version of did he also assault the children. If the answer was no, the court treated the abuser as if he was just as qualified as the mother for custody and visitation. This mistaken practice was supposed to stop after every state passed laws to take domestic violence more seriously in custody and visitation cases based on research that demonstrated the harm to children of witnessing domestic violence.

Our book contains an important chapter by Claire Crooks, Peter Jaffe and Nicholas Bala about the effects of domestic violence on children and how this information should be used in fashioning custody and visitation arrangements. In discussions during court conferences and through expert testimony at trial, courts should be informed that children who witness domestic violence (see it, hear it, see the mother's injuries, feel her fear) are more likely when they grow up to engage in serious dysfunctional behaviors like substance abuse, self-mutilation, teen pregnancy, school drop-out, prostitution, crime and for boys to abuse future partners and girls to be abused by future partners. The chapter also discusses the fact that children have developmental goals in each age category and witnessing domestic violence interferes with their ability to reach these goals. When children fail to reach developmental goals this interferes with achieving future development. In young children, being present for domestic violence can affect the hardwiring of their brain with harmful consequences for the rest of the child's life.

The severe consequences of domestic violence to children have led the writers of this chapter and most other reputable experts to recommend custody to the non-abusive or less abusive parent and supervised visitation, at least initially to the abuser. Claire Crooks, Peter Jaffe and Nicholas Bala provide a detailed discussion about best practices for future visitation with the abuser. Importantly, they recommend that the burden should be on the abuser to change his behavior and demonstrate safety instead of what many courts do which is to force the mother and children to accommodate the abuser. They recommend the abusive father complete a batterer program, accept full responsibility for his abuse and not try to minimize or blame others for his abuse. The abuser must promise never to abuse anyone again and acknowledge the harm he has caused his ex-partner and children. The court would then weigh these factors in determining whether to resume unsupervised visitation with the understanding that if he commits any further abuse his visitation will end.

These experts avoid common mistakes often committed by court professionals. The end of the relationship does not also end the danger presented by the abuser. For many women this is the most dangerous time particularly when he realizes that this time she is not coming back. Over 70% of domestic violence homicides by men are committed after she has left. In other words it is not the crime of passion many unqualified professionals assume. Every year abusive fathers involved in contested custody cases kill over one hundred children often with the unwitting assistance of the courts who fail to recognize the danger. Abusive fathers often act out their belief she had no right to leave him by going after custody, not as most court professionals believe, our of love for the children, but to pressure her to return or punish her for leaving. This is what most contested custody cases are about which courts mistakenly view as "high conflict" cases.

Significantly, domestic violence is not caused by the actions of the victim, but rather the belief system and sense of privilege of the abuser. The end of the relationship does not change his beliefs so that if he receives custody or unsupervised visitation, the children are likely to witness his abuse of future partners. This will compound the harm caused by his earlier abuse. Many inadequately trained professionals mistake the lack of physical abuse after separation as an indication he is no longer dangerous. In reality the change reflects limited access to his victim. We often see him continue his attempt to control through abusive litigation strategies and other forms of abuse, and protective mothers and their attorneys need to help the courts see how his abuse continues.

One of the common mistakes caused by viewing domestic violence cases through the "high conflict" lens is that courts seek to pressure victims to interact and cooperate with her abuser. Court professionals have been misled to believe that children would benefit from such cooperation. This works great for abusers who sought custody in order to gain access to his victim but is harmful to battered mothers and their children. If a father is to receive unsupervised visitation in such cases, genuine experts, like the contributors of the chapter, recommend parallel parenting. The court creates a very specific visitation arrangement which should not be changed by the parties. Each parent makes the rules during the time the children are with that parent. This limits the need for any communication to rare emergencies and has been shown to work better for children.

Mental Health Professionals

Mental health professionals were brought into custody courts to provide expertise in domestic violence cases at a time when there was a widespread belief that domestic violence was caused by mental health issues, substance abuse and the behavior of the victim. Although these assumptions proved wrong and most evaluators and other mental health professionals have little or no expertise in domestic violence and are unfamiliar with the scientific research now available, courts have continued to rely on their "expertise." The research cited in our book and elsewhere demonstrates that the involvement of mental health professionals in domestic violence cases causes more harm than benefit. Judge Marjorie Fields wrote in her chapter that she refused to appoint them and was never reversed for making custody decisions without relying on mental health professionals.

Courts often automatically seek to appoint evaluators without fully considering the purpose or benefit. Since they often come to cases with biases against protective mothers, the moms should seek to prevent such appointments or limit their role to areas in which they actually have expertise. I appreciate many judges may be reluctant to try a contested custody case without a "neutral" professional, but it is worth making a record opposing such an appointment and if necessary trying to limit their role to topics for which they have expertise. Alternatively, mothers can ask for the appointment of someone with expertise in domestic violence or at least a willingness to consult with a domestic violence expert. Ask the judge or other professional seeking such an appointment how such an appointment would help the court make its decision. If there is an actual mental health issue such as credible concerns about a parent's mental health, the appointment should limit the role to questions about the mental health condition and how it would affect parenting. None of the tests psychologists use can help determine issues like parenting ability or domestic violence and unless they are the rare evaluator with domestic violence expertise and familiarity with the specialized body of research, they really have nothing to contribute to the fundamental issue before the court. A litigant will have more credibility challenging an evaluator if she does so before there is an unfavorable report.

Robin Yeamans wrote a chapter for the book that is helpful for challenging evaluation reports and particularly conclusions based on reliance on psychological tests. The tests routinely used for custody evaluations were not created for the populations seen in custody court. The evaluators rarely tell the courts that the results are based on probability so the findings may not apply to the particular parties the court must judge. Under the best of circumstances, these tests have a probable accuracy of between 55-65%. Under common situations for which evaluations are sought such as domestic violence or a stressful custody dispute, the percentages are significantly lower. Some of these tests have a demonstrated gender bias so that the same answer is treated an negative for the mother but neutral for the father. The reliance of questionable psychological exams, inability to recognize domestic violence and other questionable practices frequently result in evaluations that pathologize protective mothers.

This information can be used in objecting to the appointment of evaluators and for cross-examination if they are appointed over objection. The book provides a substantial amount of up-to-date scientific research that can be used to question the evaluator and challenge the standard methods which are far from best practices. Evaluators can be asked if they are familiar with the authoritative research that is available. If they are the attorney can demonstrate that the evaluator failed to use the practices recommended by the research and if the evaluator is unfamiliar with this research it should be grounds to disqualify or at least challenge their credibility. Protective mothers will frequently find that the bad practices criticized by the experts who wrote the book are the same approaches used by the evaluators. Joan Zorza, Judge Marjorie Fields and others explain why a family systems approach is inappropriate in domestic violence cases, but most evaluators use this approach because they do not understand domestic violence.

The research in the book can be used not only to challenge the bad information provided to the court, but to provide the court with the accurate information it needs. The mother can use her own expert witness to discuss the scientific research available and how it would apply to the case. If the mother cannot afford an expert witness she may be able to ask a domestic violence advocate to serve as her expert witness. This would emphasize an important point we want to make that domestic violence advocates are the real experts about domestic violence and the only profession working full time on domestic violence issues. Many communities have developed a practice whereby child protective agencies work together with the local domestic violence organization. They train each other's staffs and when the child protective agency has a case that might involve domestic violence, they consult with a domestic violence advocate. These programs have resulted in a better ability to recognize domestic violence and provide solutions that work best for children. Accordingly, the use of domestic violence advocates and experts should be considered best practices. To put it another way, relying on mental health professionals without consultation with domestic violence experts should be considered malpractice.

Parental Alienation Syndrome (PAS), sometimes called parental alienation or just alienation in order to avoid a discredited term is a major cause of mistaken decisions in custody courts. Dr. Paul Fink, former president of the American Psychiatric Association wrote a chapter in the book about PAS. In his chapter he included several quotes from Richard Gardner, who concocted PAS based not on any research but on his own experience and biases. These quotes are to the effect that sex between children and adults can be beneficial. I believe many of the judges who permitted the use of PAS or its progeny are unaware of these quotes and would not wish to be associated with such offensive ideas. Nancy Erickson wrote a chapter the helps protective moms counter PAS allegations.

After the Case Has Gone Bad

I believe that if the court system were using the up-to-date scientific research available to help them handle domestic violence custody cases instead of myths, stereotypes and biases that so often dominate these cases the horrendous outcomes we constantly see would be rare. Until the courts start using best practices, however we will continue to need to respond to decisions that are tragically wrong.

Many judges smugly state that if you don't like their decision the remedy is to appeal. Of course many mothers don't have the resources for appeals and often trial courts place obstacles in the way of appeals. Poor legal work or cowardly attorneys who failed to make a record of the important evidence and issues in the case often prevents any meaningful review of the decision.

If a protective mother is able to appeal, the research in the book can be particularly helpful in framing the issues. The brief can put together all the evidence that constituted the pattern of abuse. This will include tons of evidence for which the trial court failed to understand the significance. The research in the book can be cited in an appellate brief and is particularly appropriate in an amicus brief that seeks to help the appeals court understand the societal harm caused by the discredited practices routinely relied on by trial judges. In most cases the mothers will be able to contrast the assumptions, biases and unscientific approaches used by "neutral" professionals with the accurate research provided in our book and many other sources. If the assumptions are unstated the brief can discuss them based on the context and failure to provide a proper basis for the conclusions.

The worst cases, often referred to as Custody-Visitation Scandal Cases because the outcomes are so extreme and are contrary to the evidence and the well being of children involve decisions giving custody to the abuser and supervised or no visitation to a safe, protective mother who is the primary attachment figure for the child. Cases with these extreme outcomes are virtually always wrongly decided.

One of my favorite parts of the book is a quote in Joan Zorza's chapter 14 page 26. I know the page by heart because I use it so often. "Until judges and other professionals receive the specific training they need to recognize these patterns (and as noted previously, many have such strong preconceived notions that they will not learn anything from even the best training), they must consult with genuine DV experts, particularly DV advocates. Otherwise, as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. IN THIS CONTEXT, IT IS IMPORTANT FOR COURTS THAT RULE AGAINST ALLEGED VICTIMS OF DV TO BE OPEN TO THE POSSIBILITY THAT THEY MADE A MISTAKE. COURTS SHOULD BE RELUCTANT TO TAKE PUNITIVE OR RETALIATORY ACTIONS AGAINST MOTHERS WHO CONTINUE TO BELIEVE THEIR PARTNERS ABUSED THEM." This quote also applies to allegations of child sexual abuse for which courts often deny valid allegations and then punish mothers severely for trying to protect their children.

The best time to use this quote would be when the abuser first seeks such restrictions or the judge indicates consideration of these extreme remedies because once the decision is made courts can become defensive trying to justify their mistakes. Nevertheless I would encourage protective moms to use this quote in asking courts to modify extreme restrictions particularly when the court created the restrictions without being aware of the quote or the research in the book.

Decisions on custody and visitation can always be challenged based upon a substantial change of circumstances. When a mother cannot afford to appeal or the time for appeal has expired, this may be her only avenue to change the bad decision. In most cases the decisions were the product of the use of outdated and discredited practices and the lack of information about the up-to-date scientific research now available. I believe the availability of this information is itself a change of circumstance that justifies a reconsideration of the evidence based on the information in the book and other good sources. Mothers should be able to pick out many examples of practices and assumptions misused by court professionals that led to the mistaken decision which the research shows are practices that work poorly for children.

An even stronger argument for a change of circumstance can be made when subsequent events after the decision can be combined with the new research to create an even clearer case of changed circumstances. In many of these cases, whether or not stated directly, courts give abusive fathers custody based on the prediction that they are more likely to foster a relationship between the mother and children. The prediction of domestic violence experts would be just the opposite because they understand the father was seeking custody as a way to control the mother and punish her for leaving. THE BATTERER AS PARENT says that all batterers engage in harmful parenting practices that include undermining the children's relationship with the mother. Accordingly when the father wins custody and proceeds to interfere with the relationship either by seeking court orders or his unilateral actions, this behavior confirms the predictions of domestic violence experts and discredits the predictions that led to the decision. Our book says it is common for abusive fathers to interfere with the mothers' relationships once they get custody. The courts' handling of this common issue is another example of gender bias. If the original decision supported the mother and resulted in interference with the father's relationship, the court would severely punish the mother and yet rarely does anything in response to far more objectionable behavior by the father. The mother can raise this issue by asking the court what it would do if a mother had committed the interference this father is doing.

I am not sure how this strategy of using the research to claim a change of circumstance will work. Certainly it is allowed in other areas of the law as when advances in DNA technology lead to a reconsideration of criminal convictions. I suspect it will work in some cases and not others. It is possible that even if the court rejects the initial petition it may lead to a later relaxation of visitation in which the court provides a different justification for promoting the relationship between mother and children so as not to acknowledge its prior mistakes. As this information is presented in more courts and the professionals become familiar with the research, we hope it will lead to better decisions for all protective mothers and their children.

Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site www.Domesticviolenceabuseandchildcustody.com

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Rates At Which Batterers Receive Custody

by Joan Meier, Esq.

One statement in Breaking the Silence: Children’s Voices that has provoked controversy was my statement that “the studies are showing” that up to 2/3 of accused or adjudicated batterers receive joint or sole custody in court.  While no empirical study can definitively determine a universal statistical rate, the key point is that the research consistently shows that accused and adjudicated batterers receive joint or sole custody disturbingly often.  This confirms the anecdotal experience of domestic violence attorneys and victims around the country.  The following research supports this perspective.


I. A History of Domestic Violence is Common among Contested Custody Cases.

The remarkably consistent research on this issue is compiled in my previously-issued statement , Research Indicating that the majority of cases that go to court as ‘high conflict’ contested custody cases have a history of domestic violence (Nov.  9, 2005).

One good example is a study cited by Janet Johnston, a leading researcher of parental alienation, which found that, among custody litigants referred to mediation, “[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]”.  Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon.” 
- Janet R. Johnston, “High-Conflict Divorce,” The Future of Children, Vol. 4, No. 1, Spring 1994,  165-182) citing Depner et al., “Building a uniform statistical reporting system:  A snapshot of  California Family Court Services,“ Family and ConciliationCourts Review (1992) 30: 185-206


II. Domestic Violence Perpetrators are More Likely to Contest Custody than Non- Abusers.

The American Psychological Association’s Presidential Task Force on Violence in the Family, the leading review of the research as of 1996, found that men who abuse their partners contest custody at least twice as often as non-abusing fathers.  They are even more likely to contest custody if the children are boys.
- American Psychological Association Presidential Task Force on Violence in the Family (1996) at p. 40.


III. Accused and Adjudicated Batterers Receive Joint or Sole Custody Surprisingly  Often.

The research on this has only emerged in the past few years and most studies have been small and local.  Nonetheless, they document disturbing trends, which surprised even me when I first discovered them.


A. Multiple studies have documented gender bias against women in custody litigation.

Contrary to the conventional wisdom that women are favored in custody litigation, both the experiences of battered women and the empirical research are showing that women who allege abuse are deeply disfavored in custody courts.

The Massachusetts Supreme Judicial Court Gender Bias Task Force was one of the first states to document the gender bias against women in family courts.  This court-initiated study expressly found that “our research contradicted [the] perception” that ”there is a bias in favor of women in these decisions.”  Moreover, it found that “in determining custody and visitation, many judges and family service officers do not consider violence toward women relevant.”  The Court’s study further found that “the courts are demanding more of mothers than fathers in custody disputes” and that “many courts put the needs of noncustodial fathers above those of custodial mothers and children.” 
- Gender Bias Study of the Court System in Massachusetts, 24 New Eng.L.Rev. 745, 747, 825, 846 (1990)

More recently, and since the evolution and widespread adoption of “parental alienation syndrome,” a multi-year, four-phase study using qualitative and quantitative social science research methodologies by the Wellesley Centers for Women found “a consistent pattern of human rights abuses” by family courts, including failure to protect battered women and children from abuse, discriminating against and inflicting degrading treatment on battered women, and denying battered women due process.  Histories of abuse of mother and children were routinely ignored or discounted.
-  Wellesley Centers for Women Battered Mothers’ Testimony Project, Battered Mothers Speak  Out:  A Human Rights Report on Domestic Violence and Child Custody in the Massachusetts  Family Courts (Nov. 2002)(hereafter “BMTP”), Executive Summary at 2.

A comparable study by the Arizona Coalition Against Domestic Violence found that most of the women surveyed felt the history of abuse was not taken seriously and that they were ignored, disrespected and discriminated against by court personnel. 
- Arizona Coalition Against Domestic Violence, Battered Mothers’ Testimony Project:  A Human  Rights Approach to Child Custody and Domestic Violence (June 2003), pp. 47, 49, 6.

A study of the Domestic Relations Division of Philadelphia Family Court conducted by the Philadephia Women’s Law Project in cooperation with the court, found that litigants are often denied due process, and that applicable legal standards are “not always observed, particularly in the consideration of abuse in custody proceedings, leaving families at risk.”
- Tracy, Fromson & Miller, Justice in the Domestic Relations Division of Philadelphia Family Court:   A Report to the Community, DOMESTIC VIOLENCE REPORT, Vol. 8, No. 6 (Aug/Sept. 2003), p. 94.


B. Studies show Accused and Adjudicated Batterers Receiving Sole or Joint Custody  Surprisingly Often.

My own survey of the case law in 2001 identified 38 appellate state court decisions concerning custody and domestic violence.  To my astonishment, 36 of the 38 trial courts had awarded joint or sole custody to alleged and adjudicated batterers.  Two-thirds of these decisions were reversed on appeal.
- Meier, Domestic Violence, Child Custody, and Child Protection:  Understanding Judicial  Resistance and Imagining the Solutions, A.U. J. Gender, Soc. Pol. & the Law, 11:2 (2003), 657-731, p. 662, n. 19, and Appendix.

These cases included a case in which the perpetrator had been repeatedly convicted of domestic assault;  in which a father was given sole custody of a16-month old despite his undisputed choking of the mother resulting in her hospitalization and his arrest;  in which the father had broken the mother’s collarbone;  had committed “occasional incidents of violence”;  and had committed two admitted assaults.   More such instances can be found in Meier, supra.

The American Judges Association has found that approximately 70% of batterers succeed in convincing authorities that the victim is unfit for or undeserving of sole custody.  Another way of saying this is that 70% of batterers obtain sole or joint custody.
- American Judges Association, “Domestic Violence and the Courtroom:  Understanding the Problem . . . Knowing the Victim”    http://aja.ncsc.dni.us/domviol/page5.html  (at “Forms of Emotional Battering. . . Threats to Harm or Take Away Children”)


A survey of battered women by the Arizona Coalition Against Domestic Violence found that courts awarded joint or sole custody to the alleged batterers 56-74% of the time (depending on the county).  Many of these cases involved documented child abuse or adult abuse.
- Arizona Coalition Against Domestic Violence, Battered Mothers’ Testimony Project:  A Human  Rights Approach to Child Custody and Domestic Violence (June 2003), pp. 33-34, 47-49

A study of 300 cases over a 10-year period in which the mother sought to protect the child from sexual abuse, found that 70% resulted in unsupervised visitation or shared custody; in 20% of the cases the mothers completely lost custody, and many of these lost all visitation rights.
- Neustein & Goetting (1999), “Judicial Responses to the Protective Parent’s Complaint of Child  Sexual Abuse,” Journal of Child Sexual Abuse 8 (4): 103-122.

The Wellesley Battered Mothers’ Testimony Project found that 15 out of 40 cases resulted in sole or joint physical custody to the fathers, all of whom had abused both the mother and the children.
- BMTP, supra at Appendix A.

The Massachusetts Supreme Judicial Court Gender Bias Task Force found that 94% of fathers who actively sought custody received sole or joint custody, regardless of whether there was a history of abuse.  While fathers received primary physical custody 29% of the time, mothers received primary physical custody in only 7% of the contested cases.  The Study also cited other research which similarly found that fathers who sought custody received primary physical custody 2/3 of the time, with mothers receiving it less than ¼ of the time; and another study which found that fathers seeking custody received joint or sole custody 79% of the time, with mothers receiving sole custody in only 15% of those cases (compared to fathers’ sole custody in 41% of the cases). 
- Gender Bias Study at 831-832 and citing Middlesex Divorce Research Group relitigation study and Phear et al., 1983.

While the Massachusetts study and those it cited were not able to identify what proportion of the contesting fathers were batterers, the studies cited in my other Statement indicate consistently that 75% of cases have a history of domestic violence, with a substantial proportion of severe violence.  Hence, it is likely that a substantial proportion of the fathers receiving joint or primary physical custody in this study had committed domestic violence.
- Meier Statement, Research Indicating that the Majority of Cases that go to Court as ‘High Conflict’ Contested Custody Cases have a History of Domestic Violence (Nov. 9, 2005).

Battered Mothers Gain Fair Attorney Client Terms at Conference (Albany, New York)


Battered Mothers Gain Fair Attorney Client Terms at Conference

Attorney, legislator and author Karen Winter opened the 8th Battered Mothers Custody Conference in Albany, New York reviewing attorney billing practices.

Attorney, legislator and author Karen Winner opened the 8th Battered Mothers Custody Conference in Albany, New York with her presentation, “How to Think Like a Lawyer on Legal Billing Issues”, on Friday afternoon January 7, 2011. Winner is well known for her report on family law abuses in Marin County, California which was published during 2000. She developed a Statement of Rights & Responsibilities for use between attorneys and their clients in 1993. The Statement of Rights & Responsibilities was subsequently incorporated into New York State law and was utilized as a model by many other states as well.

Good Attorneys Respect Client Rights

The hallmark of a good attorney is one that establishes expectations at the outset of the business relationship and understands that mutual respect is essential. Winner’s Statement of Rights & Responsibilities for clients include: appropriate, respectful treatment; avoidance of a conflict of interest; competency; fair billing practices; an expectation to be kept informed of the status of your case; a right to privacy; ethical conduct, and; an equal opportunity for representation. If the state you live in has not incorporated a similar Statement of Rights & Responsibilities, be aware the statement can be incorporated by copy into a retainer agreement negotiated with an attorney.

Good Attorneys Zealously Represent Client Interests

The attorney client relationship is a precarious balance of sharing the most intimate details of life with someone who is in business to make a living from dispatching heartache as effectively as possible. Conflicts of interest occur as a result of personal relationships, spousal or business relationships that are frequently not revealed by attorneys. Cronyism can play a part as well. Some small towns’ “business as usual” legal practices frequently include improper ex parte communication or enmeshment of business opportunities.

Some attorneys project that social graces and professionalism require a personal need to “play nice” with other attorneys. They may also choose to placate the judge by avoiding unpopular points of view, thereby putting their need for social acceptance ahead of their obligation to zealously represent their clients’ best interests. It isn't unusual to hear, “That's the way it's done here...” Just like any medical diagnosis, in a crisis, your legal diagnosis merits a second opinion. If you live in a small town where there are only a few attorneys, you can make a request for an “objective memorandum” on the issues you are trying to resolve.

Good Attorneys Have Fair Billing Practices

In many states, attorneys are required to bill within sixty days or forfeit their fees. If you have never been billed by your attorney, you are not legally obligated to pay the bill. However, in the interest of fairness, it isn’t unreasonable to balance how many tasks your attorney has performed for you without charging you. A client should consider several issues before they ‘nickel and dime’ each line item on the attorney’s invoice. Did the attorney forget to bill for an appearance or a letter to your benefit in the past? Is the business relationship generally fair? If so, it may be better to let an oversight slide. It's appropriate to ask your attorney to define appropriate benchmarks for your case to help you fairly gauge their performance and to allow for a reasonable anticipation of the length of time and expense related to your legal issues.

If you entered into an attorney client relationship while you were overwhelmed by the circumstances that led to your asking for representation, once you catch your breath, you can go back and request that your attorney renegotiate the terms of their retainer. If your case transitions, for instance, from a custody case to a child support modification, these separate legal actions are appropriate opportunities to address the incorporation of the Statement of Rights & Responsibilities. A retainer should reflect the scope of work that is actually being performed.

Good Attorneys Arbitrate Billing Disputes

If a client finds addressing financial issues emotionally traumatic or too difficult to understand, it's perfectly reasonable to request that a trusted family member or friend temporarily assist while addressing billing issues. Attorneys are required to maintain contemporaneous records to justify their billing practices. If you're addressing an error in billing, your attorney should be willing to rectify it. If you are being billed for administrative and clerical tasks at the attorney's hourly rate, it's time to address billing practices.

If you come to an impasse with your attorney about their billing practices, request arbitration. In New York State, an attorney who does not provide arbitration papers to a client objecting to a bill, may be subject to forfeiting their fees. In many cases attorneys are required to present their bills to the court for approval of fees. They must be reasonable, itemized, as well as substantiated. If they are not, then a judge has the right to reject the billing or reduce it to more reasonable fees.

Good Attorneys Protect Battered Mothers

Understanding and preserving client rights and responsibilities is particularly important to battered mothers. The controversial nature of obtaining fair, equitable and protective provisions from the courts is a more difficult task for victims of domestic violence. The laws of evidence are not consistently applied within the family courts as they are in other areas of the law. A family law judge is allowed to dictate many aspects of a divorce or custody action without challenge, and are given immunity if they are mistaken.

The discretion of judges, custody evaluators and other legal participants is much more subjective and it is not subject to the same scrutiny by appellate courts. An attorney that is not diligently representing the interests of a battered mother, while draining her financial resources, can deliver negative consequences that last for generations to her children.

To include a copy of Section 1210.1 of the Joint Rules of the Apellate Division (22NYCRR§1210.1):

You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.

You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.

  • You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.
  • You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.
  • You are entitled to have your legitimate objectives respected by your attorney including whether or not to settle your matter (court approval of a settlement is required in some matters).
  • You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.
  • You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.
  • You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

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Battered Mothers: No Longer Silenced!! Eighth Annual Battered Mother's Custody Conference

Battered Mothers: No longer silenced. - ©iStockphoto.com/AtnoYdur

Battered Mothers: No longer silenced.

The Battered Mother's Custody Conference focuses on legal and human rights issues surrounding divorce and custody cases for victims of domestic violence.

The Eighth Battered Mother’s Custody Conference: held in Albany, New York January 7 through January 9, 2011. The conference was founded by Mo Therese Hannah, Ph.D. of Albany, New York and Liliane Heller Miller of Charlotte, North Carolina in 2003. Dr. Hannah’s most recent publication was as co-editor of “Domestic Violence, Abuse, and Child Custody: Legal Strategies and Policy Issues” with Barry Goldstein, which was published in 2010.

The conference brings a laser focus to the little known phenomenon of battered mothers losing custody of their children to their abusers in divorce and custody cases. The conference focuses on both domestic and international aspects of the issue; scholarly research; and legal and human rights cases related to domestic violence and child custody cases. Members bring international advocates together once a year. Twenty-eight advocates are scheduled to make presentations at this year's conference.

In a society that sees itself as progressive, and a champion of the needs of the disenfranchised; domestic violence continues to cover the United States in a cloak of disgrace. Many individuals are led to believe that if a victim of domestic violence seeks the aid of police, social service agencies, or sincerely pursues leaving a dangerous marriage through divorce, that the end of her nightmare is close at hand. However, once inside the judicial system, asking for help becomes a myth, as victims of domestic violence do not fare well.

According to attorney Joan Meir in a 2005 article published on “Stop Family Violence Now” (Meier), within U. S. divorce and custody cases, contested cases by abusers result in fully seventy percent (70%) of abusers receiving custody of the couple’s children. Trends like these as well as an increase in petitions protesting the violation of human rights to the Inter America Human Rights Commission, tell a different story.

Ironically, the U.S. was once seen as a safe harbor and respite from injustice in other parts of the world. The U.S. was petitioned as the grantor of political asylum to world citizens suffering from unfair political and legal persecution. Yet, the tide began to turn when the first U. S. citizen was granted asylum from the United States by The Netherlands in 1994.

Holly Ann Collins appealed for protection from an abusive ex-spouse and the right to raise her three children in The Netherlands. Scheduled to appear this weekend, Ms. Collins and her son Zachary Collins will discuss their experience. Now grown, Ms. Collins’ children serve as advocates for the plight of children caught in the middle by the court systems. Her daughter Jennifer Collins founded CA3, “Children Against Court Appointed Child Abuse” in 2008.

Even in cases where the murder of a couple’s children was the ultimate tragic result, injustice has proven extremely difficult to remedy within U.S. Courts for mothers plagued by domestic violence. In 2005 the U.S. Supreme Court ruled in Town of Castle Rock, Colorado v. Jessica Gonzales, that the state of Colorado was not obligated to enforce the restraining order that was issued to protect Jessica Gonzales' family from her ex-husband, Simon Gonzales. The murder of her three daughters at the hands of their father was battled out in U. S. courts for five years.

Gonzales made ten requests over a ten hour period of time asking police to enforce her restraining order against Simon Gonzales, but they repeatedly put her off. Ultimately her ex-husband opened fire into the police station with an assault weapon, was killed, and her daughters were found dead in his bullet riddled car in front of the police station.

With both protection and justice denied by her own country, Ms. Lanahan (formerly Gonzales) filed a complaint with the Inter America Human Rights Commission protesting the violation of her human rights. The case, Jessica Ruth Gonzales v. USA, was accepted for argument by the IAHRC in 2007.

Subsequently at least ten more victims of domestic violence have filed petitions protesting the violation of their human rights against the United States with the IAHRC.

Their cases known as (Dombrowski et el v US 2007) are currently pending acceptance.

While the United States never ratified the signed agreement making it accountable to the IAHRC for human rights offenses, hope remains that if justice will not motivate the U. S. government to take protective action on behalf of battered mothers and their children, shame will.

Meier, Joan. “Rates at Which Batters Receive Custody”. Stop Family Violence, a Project of the Tides Center. NewYork, NY. November 30, 2005. stopfamilyviolence.org

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Author Lundy Bancroft Teaches Battered Mothers to Fight Back – BMCC, Albany NY

Leading author and therapist Lundy Bancroft teaches battered mothers to fight back at the 8th Battered Mothers Custody Conference in Albany, New York 1/7/11

The 8th Battered Mother’s Custody Conference featured author and activist Lundy Bancroft, who has for more than a decade addressed the issues of battered mothers who lost custody to their abusers in family courts. Well known as the founder of the Battered Mothers Testimony Project in Massachusetts, Bancroft is also the author of three books on the dynamics and subsequent effects of domestic violence. He was the winner of the 2004 Pro Humanitate Award from the North American Resource Center for Child Welfare, for his book, “The Batterer as Parent”.

Battered Mothers Fight Myths

The past seven Battered Mother’s Custody Conferences validated and quantified an emergent judicial and human rights crisis in our family courts. Judges are delivering abused children to the very abusers that their protective mothers painstakingly escaped. For the first time in the conference’s history, Bancroft introduced fighting back against this injustice as the theme for this year’s conference meetings and speakers.

The prevailing myth is that once out of an abusive marriage, the mother is now safe from her abuser. But the truth is that 75% of women who are injured or murdered by their abusers suffer the attack within the first thirty days of escaping the relationship[1]. Despite the divorce, many women endure ongoing torment by their former spouse and abuser because they are permanently connected through their common children.

An abuser stalking, threatening, and torturing the mother, and abusing their children in order to hurt her, are very common realities. The courts perceive repeated requests for protection as strategic chicanery and often fail to validate an ongoing threat to the mother.

Paradoxically, many battered mothers are in the unenviable position of being challenged by Child Protective Services to ‘leave their abusive marriage to protect their children’, despite the statistical odds of their own demise, and the unlikelihood that law enforcement will provide or enforce protective orders. Once embroiled in the family court systems, the battered mothers are marginalized and accused of lying to gain unfair advantage over abusive fathers.

No amount of presenting the actual facts and figures seems to gain these protective mothers and their children safe harbor. Judges and other legal participants routinely place children with their abusers. There are both domestic and international human rights implications to this issue with more than 1,000 families a week now facing this crisis; Bancroft’s expertise is needed more than ever[2].

Battered Mothers Fight Courts

The first shock a protective mother must overcome is the reality that the justice system does not exist within the family court system. On television, in our classrooms, and in the news, the myth that our legal system is fair and just is promulgated. Many protective mothers discover that the truth is that the rules which apply in a criminal court or in business related civil cases are not applied in family courts. Rules of evidence and consequences for challenging the status quo are harsh and unpredictable. Judges have unilateral discretion to define what happens, how it happens and whether she is even allowed to tell anyone else about the court’s orders.


A protective mother stripped of her children, is also stripped of her right to parent; her right of free speech; her right of protection; and her right to protest these injustices. Our Bill of Rights is frequently ignored, and the judicial system affords immunity for the legal participants including Judges, Child Custody Evaluators, Child Protective Services, and Law Enforcement Agencies. If they misjudge, and the battered mother or her children die, then no one is accountable. Do you risk contempt of a court order in an attempt to protect your children?

Battered Mothers Fight Child Abuse

Often the abuser begins to deliberately alienate the protective mother from her children, telling the children that she abandoned them, did not want to mother them, lies about his abuse, or fails to parent them effectively. The child begins to doubt their own ability to perceive reality. They may feel a forced sense of loyalty to their abuser. If the children do not follow his lead and mistreat their mother, what are the physical and emotional consequences they suffer at the hands of the abusers?

Bancroft advises protective mothers and their support systems to remember that the purpose of the fight is to keep as close to your children as possible. Keep things calm, remind them that you love them. Rather than debate which parent is “right” in a never ending battle for the right to exist without the abuser’s influence – ask your child, “What do YOU think?” Maintain the child’s ability to read the situation, assess it and come to an independent conclusion. When the abuser misrepresents a mother’s feelings or actions, correct the lie, and encourage the child to rely on their own personal experience with their mother.

Battered Mothers Fight Isolation

Many Americans erroneously believe family court dynamics are identical to other courts’ standard of evidence in the United States. Therefore they come to the conclusion that a mother who loses custody in civil proceedings must have done something to deserve the loss. The stigma of losing one’s child is an isolating experience. The battered mother finds the experience so painful that she abandons any attempt to explain what happened to her.

To overcome the stigma, the battered mother may attend conferences like the annual Battered Mother’s Custody Conference; join Facebook Causes; and support websites related to healing from and fighting domestic violence; connect with other people with like experiences; and research what is happening in other parts of the country. Books like those published by authors Lundy Bancroft, Mo Therese Hannah, Barry Goldstein, Amy Neuman, Michael Lesher, Wendy Murphy, Karin Huffer and others can provide specific legal, emotional and political strategies to effect change.

Battered Mothers Fight Human Rights Injustices

Political initiatives are reflected in the progress of landmark legal cases in human rights; follow the outcome of cases such as Jessica Ruth Gonzales v. USA, as well as other international cases concerning domestic violence under consideration by the Inter America Human Rights Commission. The U. S. Supreme Court upheld the Castle Rock, Colorado Police Department’s refusal to enforce a protective order against Simon Gonzales that resulted in the murder of their three children. Gonzales (now Lanahan) is protesting the violation of her human rights.

As the first U. S. Citizen to receive political asylum from The Netherlands, Holly Collins and her three children fled the United States in 1994 to be free of domestic violence when they could not obtain protection from family courts. Ms. Collins plans to return to live in the U. S., just as her youngest child reaches adulthood. How our country responds to the knowledge that a mother was forced to flee her own country for protection will be an important barometer of progress.


[1] Indiana Law School Protective Order Project, “What is Domestic Violence?” Website. Referenced January 12, 2011. http://www.law.indiana.edu/pop/domestic_violence/

[2] Silberg, Joyanna, “How Many Children Are Court -Ordered Into Unsupervised Contact With an Abusive Parent After Divorce?”, The Leadership Council on Child Abuse & Interpersonal Violence, Press Release. September, 22, 2008, http://www.leadershipcouncil.org/1/med/PR3.html, referenced January 12, 2011

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How Narcissists/Batterers Abuse Children During Divorce

Narcissistic Parents Emotionally Abuse Children. - Arvind Balaraman / FreeDigitalPhotos.net

Narcissistic Parents Emotionally Abuse Children. -

Narcissists often use children as pawns during and after divorce. Learn to identify this emotional abuse of children caught in the middle.

The emotional abuse by a narcissist is pervasive and insidious. It impacts not only the narcissist’s spouse but his or her children as well. Once divorce proceedings begin, the narcissist’s abuse will likely escalate. Narcissists will use any means possible to gain control of the situation or to make themselves look better. Children become perfect pawns for narcissistic parents to use against their spouses. Identifying how narcissistic parents abuse their children is the first step to devising strategies to minimize abuse and help children cope.

Using Children as Pawns in Divorce

Narcissistic parents will often seek custody of children during a divorce even if previously they were not involved parents. It’s important to them to appear to be the better parent. Also, if they have custody of the children, it gives them another way to continue to control and abuse their spouse.

If narcissists don’t get custody of the children, after divorce, they may use visitation as a means of control and harassment. They may ask for many changes to visitation schedules to accommodate optional work, social and vacation events. Most often these requests will be to not to have the children when they are scheduled to. Narcissists may refuse to accommodate the spouse’s requests even when the requests are made for the benefit of the children.

Narcissists may also be late in picking up the children for visitation or not picking them up at all. They may make last minute changes and expect to be accommodated. When they are not, they will cite this as an example of how unreasonable their spouse is. Narcissists may also take advantage of third parties such as school, daycare or friends and family who don’t know the agreements made with the other parent. It’s important to note that all of these tactics by the narcissist have nothing to do with the best interest of the children. It’s simply a way for the narcissist to play games and have control.

Emotional Abuse by a Narcissistic Parent

Narcissists will use people in whatever way in necessary to get what they want. This world view also applies to their children. They will abuse their children regardless whether they stay married to the other parent or not. During and after divorce, a narcissist’s emotional abuse of his or her children may seem more direct or blatant. Quite often, this is simply another tactic employed by narcissists to further control their former spouse. Unfortunately, the children pay the price for the narcissist’s games.

Narcissists are masters of lying. They will lie to their children and distort reality the same as they do to everyone else. Often, narcissists will sacrifice their children’s well-being in an attempt to save face. This leaves the children feeling confused and unsure of their own reality and judgment. Narcissists will ask their children to lie for them, keep secrets and to spy on the other parent.

Narcissistic parents do not respect their children’s desires. They may make promises to the children in order to gain compliance from the child, then refuse to honor the promises. Children may miss out on birthday parties, sporting events or other activities important to them in order to accommodate the narcissistic parent’s wishes. The children soon learn that what they want is not important when with the narcissistic parent.

Coping with a Narcissistic Parent

It’s important to understand that it’s impossible to control a narcissist’s behavior. Neither the narcissist’s spouse nor children are responsible for his or her behavior. Narcissists are who they are. The best the other parent can do for their children and themselves is to separate themselves as much as possible from the narcissist.

First and foremost, former spouses of narcissists need to seek professional support for themselves and their children. It’s important that both children and spouses of narcissists have someone outside the situation to support and validate their feelings and reality while trying to cope with a crazy-making narcissist.

Spouses also need to hire a lawyer who understands narcissism and how to best deal with it in court. It’s often best for abused spouses to seek full custody of the children. They should, however, be prepared to offer reasonable visitation. In addition, spouses of narcissists will do well to put as many negotiation points about the children as they can think of in the divorce decree. These include visitation, pick-up times, phone calls, school activities and vacations. It may seem excessive or restraining but in the long run these written agreements will often be easier than constantly renegotiating with an unreliable and emotionally abusive former spouse.

Divorce is never easy on children. Coping with a narcissistic parent makes a stressful situation even more difficult. Learning to identify the games narcissists play can help parents to minimize the emotional abuse children suffer at the hands of a narcissistic parent.


Bancroft, Lundy. When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witnessing Abuse. New York: Berkley Books, 2004.

Hotchkiss, Sandy. Why is is Always About You? The Seven Deadly Sins of Narcissism. New York: Free Press, 2002.

Skerritt, Richard. Surviving the Storm: Strategies and Realities for Divorcing a Narcissist. Kennett Square, PA: Dalkeith Press, 2009.

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