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High rates of domestic violence exist in families referred for child custody evaluations. These evaluations can produce potentially harmful outcomes, including the custody of children being awarded to a violent parent, unsupervised or poorly supervised visitation between violent parents and their children, and mediation sessions that increase danger to domestic violence victims. Past research shows that domestic violence is frequently undetected in custody cases or ignored as a significant factor in custody-visitation determinations. Previous research also indicates that violence—and its harmful effects on victims and children—often continues or increases after separation.
Today the family law arena is increasingly identified as needing reform to protect battered women and their children (Goodmark, 2011). Research has documented the ongoing and sometimes escalating dangers faced by victims and their children after they leave violent relationships. Homicidal threats, stalking, and harassment affect as many as 25 to 35 percent of survivors who have left a violent relationship (e.g., Bachman & Saltzman, 1995; Hardesty & Chung, 2006; Tjaden & Thoennes,2000a). In addition, as many as one fourth of battered women report their ex-partners threatened to hurt or kidnap their children (e.g., Liss & Stahly, 1993). Many abusers also use the legal system to maintain contact with and harass their ex-partners (Bancroft & Silverman, 2002).
Domestic abuse survivors and their children may experience serious harm as a result of family court decisions. Offenders may be able to continue their abuse of their ex-partners and children due to unsupervised or poorly supervised visitation arrangements (Neustein & Lesher, 2005; Radford & Hester, 2006); sole or joint custody of children may be awarded to a violent or potentially violent parent rather than a non-violent one; and mediation may be recommended or mandated in a way that compromises victims’ rights or places them in more danger. Tragically, in some cases post-separation contacts end in the homicide of a mother and/or her children.(Saunders, 2009; Sheeran & Hampton, 1999). Ironically, battered mothers’ attempts to protect their children may be used against them in custody and visitation decisions.
One widely cited educational booklet from the American Judges Association states that, “studies show that batterers have been able to convince authorities that the victim is unfit or undeserving of sole custody in approximately 70% of challenged cases” (American Judges Association, n.d., p. 5)
Gender Bias in the Courts
Battered women are at higher risk of negative custody-visitation outcomes due to gender bias by courts, as documented by many federal, state, and local commissions that have studied such bias since the 1980s (e.g., Abrams & Greaney, 1989; Czapanskiy, 1993; Danforth & Welling, 1996; Dragiewicz, 2010; Meier, 2003; Zorza, 1996)4. Negative stereotypes about women seem to encourage judges to disbelieve women’s allegations about child abuse (Danforth & Welling, 1996; Zorza, 1996). A lack of understanding about domestic violence also leads judges to accuse victims of lying, blaming victims for the violence, and trivializing the violence (Abrams & Greaney, 1989;Maryland Special Joint Committee on Gender Bias, 1989).
Gender bias is frequently uncovered in custody disputes (Rosen & Etlin, 1996) and often leads to mistrust of women—in particular to the belief that they make false allegations of child abuse and domestic violence. Dragiewicz (2010) provides a comprehensive summary of gender bias reports pertaining to custody decisions. In addition to the tendency to disbelieve or minimize women’s reports of abuse, or to disregard evidence for it, Dragiewicz also describes other problems uncovered during investigations. These include mothers being punished for reporting abuse.
Half of men who batter also physically abuse their children (Straus, 1983.
Beliefs About False Allegations of Domestic Violence in Relation to Other Beliefs and Recommendations
Among evaluators, the belief that allegations of domestic violence are usually false was part of a constellation of beliefs, including beliefs that false allegations of child abuse and parental alienation by DV survivors are common. DV educators need to provide accurate information on: the rates and nature of false allegations and alienation; the ways in which survivors are reluctant to co-parent out of fear of future harm; the mental health consequences of DV; and the importance of understanding coercive-controlling forms of violence. In addition, the significant relationships between beliefs about custody and broader beliefs about patriarchal norms, justice, and social dominance suggest links to deeper values. Professional educators can use value awareness exercises that may help change beliefs and behavior. These recommendations apply to judges as well, since their beliefs about DV and custody were significantly related to the outcomes recommended in the case vignette.
Friendly Parent Statutes
The friendly-parent standard works against survivors because any concerns they voice about father-child contact or safety for themselves are usually interpreted as a lack of cooperation (Zorza, 1996).
Survivors are therefore placed in a no-win situation: If they do not report abuse, then protections for them and solid grounds for custody are not available; yet reporting the abuse may be viewed as raising false allegations in order to gain advantage in divorce proceedings (Dore, 2004). Research shows that parents who raise concerns about child sexual abuse can be severely sanctioned for doing so (Faller & DeVoe, 1995). The sanctions include loss of custody to the alleged offender, restricted visitation, and court orders not to report further abuse or take the child to a therapist (Faller & DeVoe, 1995; Neustein & Goetting, 1999; Neustein & Lesher, 2005; Voices of Women, 2008). In practice, friendly-parent provisions, together with statutes presuming joint custody, tend to override presumptions against awarding joint legal custody with the abuser (Morrill, Dai, Dunn, Sung, & Smith, 2005).
Further compounding victims’ experiences are contradictory messages from criminal courts, family courts, child protection investigations, and visitation services (Hester, 2009). For example, criminal courts support victims’ testimony about the abuse, but in family court the same testimony might be interpreted as non-cooperation. To overcome these inconsistencies some states have introduced integrated DV courts (Aldrich & Kluger, 2010).
Labeling Survivors as “Alienating Parents”
Similar to the emphasis on cooperative parenting, use of the label “parent-alienation syndrome” (Gardner, 1998) or, more recently, “parental-alienation disorder” (Bernet, 2008; Bernet, von Boch-Galhau, Baker, & Morrison, 2010) can also place battered women in a no-win situation.
Battered mothers are vulnerable to these labels when they make formal child abuse allegations or raise concerns about the possible abuse of the children by an ex-partner. Many child abuse professionals believe that mothers coach their children to make false allegations in contested custody disputes (Faller, 2007).
Practitioners who apply parent-alienation syndrome (PAS) or parent-alienation disorder formulations tend to automatically label a parent as an “alienator” without a thorough investigation of the allegations (Brown, Frederico, Hewitt, & Sheehan, 2000; Brown, Frederico, Hewitt, & Sheehan, 2001; Meier, 2009). As a result, battered mothers may be viewed as both pathological and abusive.
Fathers’ Rights Groups
The influence of fathers’ rights groups on evaluators and judges is unclear outside of anecdotal accounts (Kurth, 2010). Some types of groups lobby for the presumption of joint custody and co-parenting and doubt the validity of most domestic violence allegations(Dragiewicz, 2008;Williams, Boggess, & Carter, 2004). For example, the National Fathers’ Resource Center (NFRC), along with Fathers for Equal Rights, “demands that society acknowledge that false claims of Domestic Violence are used to gain unfair advantages in custody and divorce cases” (NFRC, 2006). They further state:
Fathers’ organizations now estimate that up to 80% of domestic violence allegations against men are false allegations. Since society offers women so many perks for claiming that they are victims of DV (we call these perks “warm milk and cookies”), false or staged DV allegations now appear to be even more frequent in family court cases than false sex abuse allegations. . . . Simply stated, women know, and are often advised by their attorneys, that if they want to get custody of the children, they had better try to nail dad with some sort of domestic violence accusation (NFRC, 2006).
Underlying the patriarchal beliefs and victim blaming are likely to be deeper, “core” beliefs (i.e. general, value-laden beliefs) about justice and equality. For example, the belief that the world is basically a just place has been related to various forms of victim blaming or denigration. It asserts that good things can happen only to good people and bad things can happen only to bad people (Rubin & Peplau, 1975). Likewise, holding a basic belief that hierarchies are an inherent part of society (Sidanius & Pratto, 1999) and having inequality as a core value (Ball-Rokeach, 1976) are related to beliefs supporting gender inequality.
In 2007, ten mothers and a victimized child (now an adult) and national and state organizations filed suit against the United States with the Inter-American Commission on Human Rights. They claimed that the human rights of abused mothers and children were not protected because custody was awarded to abusers and child molesters (Klein, 2007).
Child Custody Evaluators' Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence - Knowledge and Custody-Visitation Recommendations Final