Monday, January 25, 2010

Partner Violence and Child Custody Cases: Why Are Courts Still Giving Children to Abusers?

Partner Violence and Child Custody Cases: Why Are Courts Still Giving Children to Abusers?

Filed under: Best interest of the child, Child Abuse, Child Custody, Child Custody Battle, Child Custody Issues, Child Custody Mediation, Child Custody for mothers, Child custody for fathers, Children and Domestic Violence, Custody Evaluators, Domestic Abuse, Domestic Violence, Family Court Reform, Family Courts, Family Rights, Lazy Judges, Legal abuse, Non-custodial Mothers, Noncustodial Mothers, Parental Alienation Disorder, Parental Alienation Disorders,Parental Alienation Syndrome, custody evaluations, parental alienation — justice4mothers @ 3:58 pm

An article by Peter G. Jaffe and Claire V. Crooks, focuses on partner violence and child custody in the United States, Canada, Australia and New Zealand. To read the entire article, click here. An excerpt is presented below:

Partner violence is increasingly being recognized as criminal behavior, and assault of intimate partners has gone from being ignored as a private family matter to an important public issue. This evolution has triggered a variety of innovative interventions: specialized police training, police arrest policies, enhanced prosecution, and judicial education. As part of this progress, the criminal justice system and relevant community services, together with researchers, have begun to focus on the needs of children exposed to partner violence. A burgeoning literature on children exposed to partner violence has consistently identified negative effects on a range of child adjustment outcomes for many children (Jaffe,Wolfe, &Wilson, 1990; Kitzmann, Gaylord, Holt, & Kenny, 2003; Wolfe, Crooks, Lee, McIntyre-Smith, & Jaffe, 2003). Some laws and services have begun to address these needs by identifying children as secondary victims of partner violence. For example, in some U.S. jurisdictions, exposing children to partner violence is considered a separate criminal offense, and in other states exposure to partner violence can activate the intervention of the child protection system (Edleson, 1999).

The movement to give partner violence significant weight in the law has now extended to child custody proceedings in family court. In these proceedings, judges in many countries are being mandated to consider partner violence as a significant factor in determining the appropriateness of a violent spouse becoming a custodial parent, or even being awarded unsupervised contact with children following separation. Service providers in the front lines, such as staff at shelters for abused women, have documented how their residents have been revictimized and endangered by child custody and visitation arrangements, when they allow a batterer regular opportunities to renew threats and maintain power and control of former spouses (Leighton, 1989). In their view, child custody proceedings require a shift away from an automatically increased role of fathers, preference for joint custody and shared parenting plans, emphasis on mediation and conflict resolution, and the saliency of the “friendly parent” construct (Jaffe, Lemon, & Poisson, 2003).

In particular, the friendly parent construct has been widely adopted by judges, family law lawyers, mediators, and evaluators to reward the parent who is most likely to promote contact and a positive relationship with the other parent. In partner violence cases, a victim who attempts to limit contact with an abuser may be deemed hostile and unfriendly and be punished for her or his protestations and hypervigilance. Thus, there is a tension between two recent and important developments in the area of child custody; on one hand, we have come to recognize the important role that fathers play in raising children as a cooperative parent with mothers after separation, however on the other hand, some fathers may not qualify for this role on the grounds of being a perpetrator of partner violence and all that that implies about their parenting (Bancroft & Silverman, 2002). Although the issue of partner violence with respect to child custody may be portrayed as a gender war, there is a genuine concern about the safety of children and abused parents following separation. Because women are far more likely to be killed, injured, or living in fear following separation from an abusive partner, the focus in the field has been on abused women and their children (Johnson & Bunge, 2001). Based on our clinical and research experience with divorcing families engaged in the justice system, partner violence tends to be overlooked or minimized in an effort to settle matters as if there were two cooperative parents.

Traditionally, partner violence has been seen as a separate issue that is not relevant to the determination of child custody after parental separation. This view has begun to shift as lawyers and mental health professionals have been confronted with the potential damage abusive spouses create for their children (Bancroft & Silverman, 2002). An abusive spouse is seen to be an inappropriate role model for children and may inflict direct abuse on the child given the overlap of partner violence and child maltreatment (Edleson, 1999). As well, it is recognized that an abused woman may be most at risk of harm during separation, and require safety planning rather than forced contact with the perpetrator (Campbell, Sharps, & Glass, 2001). In fact, many observers in the field indicate that perpetrators of partner violence may utilize child custody and visitation disputes as a means of punishing and maintaining some control over their ex-spouse (Bancroft & Silverman, 2002; Jaffe, Lemon, et al., 2003).

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