The Illusion of Protection
by Renee Beeker
In my role as an activist and advocate over the last ten years, I have encountered story after story detailing how women are unable to protect themselves or their children in custody cases where abuse is an issue, even if abuse is documented outside the arena of divorce. There seems to be a concerted effort by the family courts to gloss over the abuse, and respond as if it were only a custody, access, and/ or visitation issue, oblivious or indifferent to all the issues of protection.
The August, 2005 special issue of the journal Violence Against Women (Vol. 11, No.8) on child custody and domestic violence reports the findings of four studies involving nine states (California, Delaware, Florida, Kentucky, Massachusetts, Minnesota, New York, Rhode Island, and Washington) funded by the National Institute of Justice. This research helps validate what many advocates and activists of custody issues for mothers have known for years, and what the gender bias studies from the past 30 years showed, namely, that the courts are failing to protect women and their children when abuse is a factor in custody or visitation disputes.
As the Guest Editors' Introduction by Joan Zorza and Leora Rosen (pages 983 - 990) points out, a major result of the gender bias studies and the growing awareness of the harm of domestic violence to children is that 49 states (and Connecticut by case law) enacted laws meant to favor battered mothers in custody disputes by requiring judges to consider the domestic violence (DV) in making custody determinations. States also enacted or strengthened their order of protection (OP) laws. In addition, at least 24 states have enacted statutory presumptions that batterers not get custody. Even with such clear legislative intent to protect abused mothers and their children, all too often mothers still face the reality that they are unable to protect their children and themselves, despite the existence of substantial proof, OPs, or even with court findings of abuse.
Women Remain at Disadvantage in Protecting Themselves and Their Children
While each study focused on different issues and venues, there was one common thread throughout: Women are at a disadvantage in protecting themselves and their children in the current system; nothing has changed since the gender bias studies first documented this phenomenon in the final quarter of the last century. The current system appears to have created obstacles that prevent women and their children from finding safety, often in violation of laws meant to protect them, in part because of prevalent myths and the backlash from the fathers' rights movement. This movement has interjected the friendly parent (FP) concept and its harsher version, parental alienation (PA), as well a joint custody (JC) presumptions into custody determinations. The FP concept looks at which parent is likely to foster a better relationship between the child and the other parent as a factor in the custody determination, a factor that should never be applied when there are abuse issues. At least 31 states have statutorily enacted FP provisions (AL, AK, AZ, AR, CA, CO, DC, FL, ID, IL, IA, KS, LA, ME, MI, MN, MO, NV, NH , OH, OR, PA, TN, TX, UT, VT, VA, WI, and WY) and the concept is often used in other states. Annette M. Gonzalez & Linda M. Rio Reichmann, "Representing Children in Civil Cases Involving Domestic Violence," 39 Family Law Quarterly 197, 199 (2005)
Women Gain No Tactical Advantage From Abuse Allegations
However, contrary to the assertions of fathers' rights adherents that women use allegations of abuse to gain tactical advantage in custody disputes, the results of these studies clearly show that women are actually disadvantaged when domestic or family violence plays a part in the proceeding. Unless courts understand that they are prohibited from using JC presumptions or the PF concept against the abused parent, visitation or custody issues are more likely to be decided in favor of the identified perpetrator. The system clearly fails to protect battered women and their children; studies show that the men who batter the mothers of their children actually win more access to their children than do other men. And in states with competing JC or the FP statutes, it seems that the JC presumption and FP concept almost always win over the DV factor or even a DV custody presumption, to the detriment of battered mothers and children.
Evidentiary Rules and Practices Provide Hurdles for Abused Women
We tell victims to report abuse and to leave battering relationships and that the courts will protect them. But our laws and how the court system enforces them are set up to disarm this protection. As previously noted, in every state we have laws against DV, for obtaining OPs, and requiring that judges consider DV in custody determinations (and even have presumptions in roughly half of the states against giving custody to a batterer). One reason abusive fathers win is that we place the burden of proof squarely on the victim’s shoulders. The various state courts have different rules regarding how much evidence of abuse is necessary, how recent the abuse must have been to be relevant, and what the courts will accept as proof of abuse. This is made harder for protective mothers by the fact that fewer and fewer parents, and particularly battered women, can afford to come to court with lawyers (in some family courts only 10% have lawyers). Furthermore, many courts, as noted in the study of the New York courts, refuse to consider OPs as having any precedential weight if they were entered on the consent of the batterer. (Yet nobody warns a battered woman of this when she gets her OP, or that she will have to keep any evidence that proves the abuse for use in a later custody dispute).Other judges vacate orders when the abuser completes a batterer program (although few probation officers, many of whom average caseloads of 500, bother to check if he did). These evidentiary rules and practices operate as hurdles, making it difficult if not impossible for the victim to meet her burden.
Victims Forced to "Play Nice"
Additionally, the FP concept and threat of JC force victims to "play nice" with their abusers, often keeping them from even raising the abuse allegations (as some of the studies showed), to avoid the risk of losing custody completely to their abusers. These factors also reward lazy mediators and custody evaluators who do not bother to look for the abuse, or who seek it in ways guaranteed to chill battered women from revealing it. Yet, whether to raise the abuse poses another Catch 22 for battered women; if they do not raise it they are seen as in denial or unwilling to protect their children, and they risk losing custody of their children to the state. In some states they risk losing custody to the state when they do seek protection in the family courts because they exposed their children to the abuse.
Messages Our Laws Give to Children
Another often-ignored ramification of the JC presumption and FP concept is the clear message it sends to the children. A child may believe that if mom must work hard to get along with dad, even if it means ignoring the abuse, then maybe what dad did is not that bad. Worse, it teaches them that violent behavior wins. In addition, children become angry with the protective parent if she fails to protect them. We are sending our children very mixed messages that teach them to minimize the abuse happening in their family, a message that plays into the hands of the abuser whose goal it is to silence his victims. Worse, because our society and the judicial system are failing to respond to what is clearly criminal behavior (and often even punishing protective mothers for trying to raise the abuse issues), they are giving our children a blurred picture of what is appropriate behavior between family members. It is no wonder that our youth exhibit violent behavior today, or that the cycle of violence continues in successive generations?
"Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother" by Allison C. Morrill, Jianyu Dai, Samantha Dunn, Iyue Sung, and Kevin Smith (pages 1076 - 1107), shows clearly that even the presumption against perpetrator custody fails, especially when there are competing FP or JC statutes. They examined the states and custody determinations in the six states of Delaware, Florida, Kentucky, Massachusetts, Minnesota and Rhode Island. "It is alarming that in the state with competing provisions, sole physical custody was given more often to fathers than to mothers. Moreover, the predominant award of 'primary' physical custody to the mother ... is tantamount to shared physical custody." (p. 1101)
Failure of OPs in Custody Determinations
The New York study, "Outcomes of Custody and Visitation Petitions When Fathers Are Restrained by Protection Orders," by Leora N. Rosen and Chris S. O'Sullivan (pages 1045-1075), looked at protective orders and visitation outcomes, and documented another illusion of protection. In New York, where DV is only a factor to be considered in custody determinations (but the only listed factor in the New York custody statute), they found that the DV does not carry much weight. Rosen and O'Sullivan document that in New York, "fathers are more likely to secure visitation when the mother has a protective order than when she does not and that the court does not deny fathers' visitation in cases where the father has a history of violence against the mother" (p. 1073). Again, the limitations on what courts may consider as factual evidence of abuse came into play; by consenting to the civil OP a perpetrator prevents the underlying abuse from being considered an admission or a finding of fact, once again placing the burden of proof on the victim to reprove the abuse, long after she thought she had done so. (Editor’s Note: Discounting the res judicata aspect of consensual OPs may well be in violation of the federal full faith and credit mandate.) Why bother with OPs if they are to be ignored in custody and visitation issues, and consequently fail to provide the expected safety for the children?
Model Code's DV Presumption: An Unattained Protection
The National Council of Juvenile and Family Court Judges' Model Code on Domestic and Family Violence (Reno, NY, 1994) states, in part, that "a determination by the court that domestic or family violence has occurred raises a rebuttal presumption that it is detrimental to the child and not in the best interest of the child to be placed in the sole custody, joint legal custody or joint physical custody with the perpetrator of family violence" (See. 401). While again this sounds safe, all too often the court does not consider abuse, even when documented.
Failure to Identify Violence
Mary A. Kernic, Daphne J. Monary-Ernsdorff, Jennifer K Koepsell, and Victoria L. Holt concluded in their study, "Children in the Crossfire Child: Custody Determinations Among Couples With a History of Intimate Partner Violence" (pages 991-1021) that there was a lack of identification by Washington State courts of intimate partner violence (IPV) even when there was a substantial, documented history, and that abused mothers won custody no more often than other mothers. In this study, the parties were required to file parenting plans and continue to do so until they were able to come to some agreement. Of the cases where there was documented IPV, it was not noted in the divorce files. When and where were these parties screened for IPV? Since they are required to focus on producing a parenting plan in order to divorce, perhaps it slips through the cracks. While the Model Code presumption against batterers getting custody is a wonderful guide to work towards, the courts must first be informed of the documented IPV As we have seen in other studies, where there are conflicting statutes (i.e., Washington statute forcing parents to work together on parenting plans), the state offers abused mothers and children only an illusion of protection. Forty percent of the abusive fathers got JC in the Washington cases these researchers studied.
[ Editor's Note: Washington State even has appellate case law forbidding judges from using the FP concept since it is punitive and not in the child's best interest, and its legislature has repeatedly refused to enact legislation with the FP concept.]
Mediation Places Women at Greater Danger
In another study, "Child Custody Mediation in Cases of Domestic Violence," authors Nancy E. Johnson, Dennis P. Saccuzzo, and Wendy J. Koen (pages 1022-1053) look at mediation of child custody disputes. Advocates and activists alike are aware that victims should not be placed in mediation with parties who have abused them due to the imbalance of power. The California family code gives the victim the ability to have a support person present with her in medication when there are orders of protection, but a conflicting family code provision "gives the mediator ability to exclude a DV support person" (p. 1023). The researchers found• that the mediators recommended joint legal custody in virtually every case - 91.4% of the time when there was DV and only a slightly lower amount (90.0%) when there was no DV. Again, they recommended that battered mothers be given sole custody slightly less often than they did for non-abused mothers (4.9% vs. 6.9%), and seriously under-represented how little custodial time they recommended for mothers over fathers.
[Editor's Note: This study comes out of San Diego, whose courts are considered among the best in the country. Furthermore, mediators in California are probably far better and more extensively trained on DV than any others in the country, raising questions whether anything can eliminate the bias that mediators have against battered women. Readers might want to read another article by Saccuzzo and Johnson on the Web at http://ncjrs.org/Pdf files l/jrO00251.pdj)]
This study uncovered that "of the 123 mediations with an explicit current DV allegation on the court screening form, the mediator failed to account for DV in 56.9% of the reports." (pp 1032-1033). That is, the mediator ignored 70 of the explicit DV cases! Additionally, they discovered that mediators failed to address the DV despite the mediators own acknowledgment of clear indicators of DV. What is this? It's a failure on the part of the mediators to inform and protect.
Usually a mediator's recommendations are accepted by the court. According to this study, counselor or mediator recommendations directly predicted the judge's decision in 60% of the cases. Not only must victims bargain away valuable financial rights to placate their abusers, they often must unfairly compromise their custody rights to please their abusers, and sometimes even their mediators who can strip them of custody of their children. In mediation many if not most battered women are forced to give away their rights and power when they fear for the safety of their children.
While these new studies are a great revelation to the problems women, and especially abused women, are facing in our family courts, we need more research.
We also need to acknowledge that many of these reports were hampered by the lack of information in case files. Institutions with different courts, conflicting orders, multiple judges, and competing statutes, now more than ever, the judges, lawyers, mental health professionals and, indeed, everyone working in the system needs to have all the information to be able to make an informed decision regarding the health, safety, and welfare of women and children. We need to clean up our statutes to make it clear that DV safety concerns always trump JC and FP laws, and we need to think through how we deal with judges, mediators, custody evaluators, GALs and other court players who still don't get it or refuse to apply the law, whether out of laziness or because they do not consider DV to be critical. These studies are a wake up call that battered women and their children are still far from safe in our court system, and that for all of our efforts things really have not changed much since the gender bias studies documented how unfairly women are treated in our court system.
This special issue of the journal Violence Against Women is a real treasure to be cited in, and sometimes even attached to, court briefs and as supporting documentation for legislators and other policymakers. Copies can be purchased for $25 (less if 10 are more copies are ordered) from Sage Publications by calling 800-818-SAGE or faxing 805-4990871 or e-mailing them firstname.lastname@example.org
* Renee Beeker is the Director of the National Family Court Watch Project and has presented at conferences across the country on the issue of mothers and child custody. She has designed a family court observation tool that has been used in a pilot program in eight states in an effort to standardize a Family Court Watch Project across the country.