juvenile and family court journal
TRANSCRIPT
National Council of Juvenile and Family Court Judges
JUVENILE AND FAMILY COURT JOURNAL
SPRING 1999 VOL. 50 • NO. 2
CUSTODY DISPUTES INVOLVING DOMESTIC VIOLENCE:
MAKING CHILDREN'S NEEDS A PRIORITY ..................................... 1
BY STEPHEN E. DOYNE, PH.D., JANET M. BOWERMASTER, J.D., J. REID MELOY, PH.D., DONALD DUTTON, PH.D.,
PETER JAFFE, PH.D., STEPHEN TEMKO, J.D. AND PAUL MONES, J.D.
SUPERVISED VISITATION IN CASES OF DOMESTIC VIOLENCE ........... 1 3
BY MAUREEN SHEERAN, B.J. AND SCOTT HAMPTON, M.A.
CHILD SUPPORT ENFORCEMENT AND DOMESTIC VIOLENCE ............ 27
BY ANNE MENARD, B.A. AND VICKI TURETSKY, J.D.
ENFORCING DOMESTIC VIOLENCE PROTECTION ORDERS THROUGHOUT
THE COUNTRY: NEW FRONTIERS OF PROTECTION FOR VICTIMS OF
DOMESTIC VIOLENCE ............. , .................................................. 39
BY JUDGE SUSAN CARBON, JUDGE PETER MACDONALD AND SEEMA ZEYA, J.D.
THE UNIFORM CHILD-CUSTODY JURISDICTION AND ENFORCEMENT ACT! AFFORDING ENHANCED PROTECTION FOR VICTIMS OF DOMESTIC
VIOLENCE AND THEIR CHILDREN .......................... .
BY BILLIE LEE DUNFORD-JACKSON, J.D.
DOMESTIC VIOLENCE FATALITY REVIEWS: FROM A CULTURI
OF BLAME TO A CULTURE OF SAFETY ............ .
BY NEIL WEBSDALE, PH.D., JuDGE MICHAEL TowN AND BYRON JOHNSON, P11.D.
DOMESTIC VIOLENCE COURTS: WHAT ARE THEY AND HOW lltOULD
WE MANAGE THEM? .
BY JUDGE AMY KARAN, SusAN KEILITZ, J.D. AND SHARON DENAI(O, J .I J
••
Special Edition on Family Violence Issues
FOREWORD
Despite more than two decades of judicial and legislative attention, family violence continues to be a concern to our
nation's juvenile and family court judges.
Seeing the need early on to develop, test, and promote improved court responses to family violence, the National
Council of Juvenile and Family Court Judges established the Family Violence Department in 1987.
In this special, Spring 1999 edition of the Juvenile and Family Court Journal, the Family Violence Department has
brought together a number of authors to examine a broad range of family violence matters. The topics of articles developed
for this issue encompass child custody, supervised visitation, child support, managing the domestic violence court docket,
adult fatality reviews, full faith and credit to protective orders, and the Uniform Child-Custody Jurisdiction and
Enforcement Act.
Because it continues to be a complex issue in our nation, family violence will remain as a focus of National Council
judicial training and technical assistance activities. It is hoped that these efforts will result in long-term, systemic change,
thus increasing safety for victims of family violence.
Louis W. McHardy, Executive Director
National Council of Juvenile and Family Court Judges
Dean, National College of Juvenile and Family Law
Custody disputes involving domestic violence: Makirig children's needs a priority
BY STEPHEN E. DOYNE, PH.D., JANET M. BOWERMASTER, J.D.,
j. REID MELOY, PH.D., DONALD DUTTON, PH.D., PETER JAFFE, PH.D.,
STEPHENTEMKO,j.D.AND PAUL MONES,j.D.
/~",
;;~)lntroduction ~ . . -'·~ .. ""
·The central th-tsTs in this article is that the justice
system needs to recognize better the special needs of chil
dren exposed to domestic violence. Even in cases where
there are no observable injuries, children's adjustment and
development can be jeopardized seriously by witnessing
one parent abusing another parent. Being raised in a cli
mate of fear, having poor models of conflict resolution, and
observing abuse of power in intimate relationships can
have long-term detrimental consequences for children and
adolescents.
Domestic violence is a widespread and pernicious phe
nomenon.1 It consists of a pattern of behaviors including,
but not limited to, the forms of abuse in Table l.
Courts in every jurisdiction decide custody disputes
based on the best interests of the child. 3 In determining best
interests, family courts typically consider a broad spec
trum of parental behaviors that affect children.4 California
Family Code § 3011, for example, specifically requires
courts to consider any history of abuse by one parent
against the child or against the other parent in deciding
issues of custody and visitation. 5 California is not alone in
this regard. Some 35 states have statutes which require
courts to consider domestic violence as a factor in making
custody determinations.6
When considering domestic violence, the entire history
of a battering parent's violence within the family-from
verbal intimidation to homicide-should be considered by
' the court to assess properly what causes harm to children,
either directly or indirectly.7 In the extreme case of spousal
. -
Table I. -~ . . '
- · _ . - Forms of Abuse · '
" _. - ,
PSYCHOLOGICAL
SEXUAL
PHYSICAL
FINANCIAL
Shouting, Swearing, Taunting, Threatening, Degrading, Demeaning, Inducing Fear, Gender Harassment, Stalking
Rape, Incest, Unwanted Sexual Touching, Date Rape, Harassment
Slapping, Shoving, Hitting, Mutilation, Stabbing, Assault, Murder
Withholding, Diverting, Embezzling, Controlling Funds2
Please see writer biographies at end of article on page 8.
Spring 1999 • Juvenile and Family Court Journal 0
Custody Disputes
murder, some states, such as Pennsylvania, have statutes
precluding an award of custody to a parent who murders
the other.8 Even where there is no statutory directive, the
detriment to children from loss of a parent should be con
sidered if allegations are made that this loss is related to the
actions of the surviving parent.
Because the psychological risks to children living with
a batterer are high, there should be a rebuttable presump
tion against sole or joint custody for perpetrators of
domestic violence, even if that parent never has abused the
children directly.9
Part II of this article reviews current research and
theory concerning the characteristics of domestic violence
perpetrators, which may be relevant to the determination of
custody and visitation issues. Part III looks at how children
may be harmed by the presence of domestic violence in
their homes, even when they are not themselves physically
injured. Part IV considers the difficulties that current cus
tody dispute resolution procedures create for victims of
domestic violence and, derivatively, their children. Part V
looks at the legal standards for awarding custody in
parent/parent and parent/non-parent disputes, reviews
research on current practices which fail to take domestic
violence sufficiently into account, and argues for adoption
of a rebuttable presumption that sole or joint custody not be
awarded to parents with a history of domestic violence.
~~:: ..
;f~,!~practeristics of Perpetrators The'"personality characteristics of perpetrators-espe
cially their violent tendencies-are important in evaluating
whether it will be detrimental for children to be placed in
that parent's custody.
A. BATTERERS
Batterers do not fit a single profile. Rather, they differ
in what triggers their violence and how they rationalize their
behavior. 10 One researcher has divided wife batterers into
three subtypes: 1) those who act out anger impulsively in
the context of intimate relationships; 2) those who use vio
lence instrumentally and generally; and 3) those who
repress or over control a deep resentment. 11
Recent research also has revealed many commonalties
amongst batterers. Statistically, they tend to be male, rather
than female. 12 Batterers have pronounced needs for inter-
e Juvenile and Family Court Journal • Spring 1999
personal control, but do not possess healthy mechanisms to
generate this control. Thus, they have been found to react
with exaggerated arousal in anger to scenes of male/female
conflict. 13 A typical background for batterers includes deep
shaming experiences usually by the father of the eventual
perpetrator, insecure attachment, and exposure to violent
role models. 14 Many offenders are serial batterers, an item
of particular significance in child custody determinations.
When one violent relationship ends, it is very likely that the
perpetrator will expose the children to violence in the next
relationship. Nearly two-thirds of batterers re-offcnd. 15
B. STALKERS
Among batterers, a subgroup has been identified who
stalk women. Some members of this subgroup present the
greatest risk of domestic violence and spousal murder.
Studies indicate that more than 80% of stalking vic
tims are prior acquaintances or former sexual intimates of
the stalker. 16 Although there is no published study on the
relationship between domestic violence and stalking per se,
some experts believe it likely that the presence of domestic
violence increases the risk of stalking. 17 One source of data
supporting this theory is the fact that restraining order vio
lations increase as violence prior to separation in a mar
riage increases. 18
A recent review of all published studies on stalking
revealed that the risk of violence among individuals who stalk
ranges from 3 to 36%, with approximately one in four individ
uals (25-30%) being physically assaultive toward the object of
their pursuit. 19 About half of those who stalk threaten persons
or property. Twenty-five percent of those individuals who
make such threats are, in fact, violent toward persons or prop
erty.20 Although the homicide rate for those who stalk is less
than 2%, this is more than 200 times the current homicide rate
in the general population of the United States.21
Other research indicates that more than three-fourths of
spousal homicides occurring after separation are preceded
by behaviors consistent with the accepted definition of
stalking: a long-term pattern of threats and harassment that
causes victims to fear for their safety.22 This is a particularly
useful finding because most spousal batterers do not murder
their mates. Prior stalking may be a predictive variable
helping to identify those batterers who are most likely to
commit spousal homicide after separation.23
Stephen E. Doyne, Ph.D., et al.
Dr. Reid Meloy poses a psychodynamic theory of widely depending on the research methodology and definition
stalking motivations. According to Dr. Meloy, the typical of violence. Two recent comprehensive surveys estimate that at
stalker initially develops a narcissistic linking fantasy to the least 30% of all women will suffer from some form of violence
object, perhaps his wife or lover, in which he is special to, in an adult relationship during their life spans. 29 For 10% of the
idealized by, or destined to be with her forever. Her rejec- women, this violence is so severe they worry for their personal
tion of him in a divorce or separation stimulates deep humil- safety.30 Unfortunately, their fears may be well-founded consid
iation, which is defended against with abandonment rage. ering that the majority of female homicide victims are killed by
This intense anger fuels the pursuit of his former partner to their partners, ex-partners, or boyfriends.31
decimate and devalue her, paradoxically to restore his ideal- Although the term "domestic violence" is used most fre
ized fantasy of her. In other words, the stalker sees her phys- quently, a more accurate term is "maltreatment of women and
ical death as the death of the rejecting partner, which makes children," since they are the vast majority of the victims.32
room for the restoration in the stalker's mind of the perfect North American police forces report that 95% of the victims of
(narcissistic) fantasy of an unconditionally accepting family violence are women and children.33 Men are abused
partnerY The empirical finding of pathological narcissism also, but a large proportion of women's violence toward men
among those who stalk supports this theory.25 is in self-defense. 34 In most instances, it is men's violence
Just as stalkers carefully plan their moves, there is evi- against women which creates greater pain and suffering.
dence that batterers, in contrast to the common stereotype,
are not always out of control when abusing. In fact, a A. EXPOSURE TO ABUSE OF OTHERS
minority of batterers' heart rates actually drop and they AS EMOTIONAL ABUSE OF CHILD
become physiologically calmer as they become more vio- Although the term "violence" is usually associated with
lent. 26 This finding is consistent with research on psy- physical or sexual violence, most victims report that emo
chopathy27 and with Gavin deBecker's explanation of tiona! or psychological abuse can have the most persistent
domestic assault and murder: long-term effects. 35 Threats, demeaning or belittling com-
Though leaving is the best response to violence, it
is in trying to leave that most women get killed. This
dispels the dangerous myth about spousal killings: they
happen in the heat of argument. In fact, the majority of
husbands who kill their wives stalk them first, and far
from the "crime of passion" that it is so often called,
killing a wife is usually a decision, not a loss of control.
Those men who are most violent are not at all carried
away by fury. 28
Thus, a batterer-who may be capable of spousal
murder-can present as a person not likely to lose emo
tional control, or be harmful to children. But living with a
batterer is an enormous risk to children.
/~"'..
::'-ilisks to Children from Living with a Perpetrator of Domestic Violence
The best available research has found that domestic vio
lence can have dramatic and long lasting detrimental effects on
children. Estimates of the incidence of violence in homes vary
ments, and an attempt to create a family climate of fear,
terror, and insecurity characterize this abuse.
Although many parents within violent families think
they have protected their children from the violence,
between 80% and 90% of children indicate the opposite.36
In fact, a majority of children in violent families not only
are aware of what happened, they also can give detailed
descriptions about the pattern of escalating violence.
Consequently, children who may be at their parents' bed
room door or who enter the room shortly after a violent
episode, know all too well the reality of the violence
including the emotional and physical consequences to their
mothersY When men murder their wives, children are pre
sent in approximately 25% of the cases. 38
The term "witness," connoting exposure to violence, is
not just the observation of discrete events, but rather, a child's
total experience of fear and insecurity about what happens,
what he anticipates happening, and the aftermath of physical,
sexual, and emotional abuse in the family. 39 Murder of one
spouse by another-witnessed or not-represents the horrific
extreme of exposing a child to family violence.
Spring 1999 • juvenile and Family Court journal 0
Custody Disputes
B. IMPACT OF EXPOSURE TO VIOLENCE
Exposure to violence has both short-term and long-term
consequences, depending on the children's age, gender,
stage of development, and role within the family. 40
Preschool children who are exposed to domestic violence
may suffer from nightmares or other sleep disturbances.
Often, this trauma may lead to great insecurity and confu
sion causing regressive behavior, such as excessive clinging
to adults ancl!or fear of being abandoned. 41 Constant fear
and anxiety may polarize other children .because the places
and people who should afford them the greatest
protection-their homes and parents-are the most dan
gerous.42 Moreover, children exposed to the abuse of their
mothers by their fathers may exhibit a range of internalizing
and externalizing emotional and behavioral problems. These
symptoms can continue into adolescence.
Aside from the more dramatic or visible symptoms of
being exposed to violence, children also can experience
more subtle signs of this trauma, not apparent using tradi
tional assessment and interview methodology. For example,
children who are exposed to parental violence tend to hold
beliefs that violence is an appropriate method of trying to
resolve conflicts, especially in the context of an intimate
relationship.43 Other children may see physical aggression
as an acceptable means to gain respect or control in a rela
tionship, excusable if a perpetrator is drinking, or if a victim
supposedly has done something to "provoke" him (e.g., the
house was messy or dinner not ready on time.)
Additionally, children tend to feel responsible and to
blame themselves over time for the violence.44 Moreov~r, they can feel it is their duty to protect their mothers or even
defuse their fathers' rage. Or, they may believe that if they
were perfect in their own homes, their parents would not
fight over them and cause more violence. In violent fami
lies, this pronounced sense of personal responsibility begins
at an early age and can last into adulthood. These symp
toms, as well as those previously mentioned, impede chil
dren's development and their academic and community
involvement, and directly impact their self-esteem.
Many children may feel so responsible for their
mothers' safety that they adjust their own lives in order to
protect their mothers.45 For example, some children refuse
to attend school and later receive the diagnosis of "school
phobic" for this reason. Other fearful children may go to
0 juvenile and Family Court Journal • Spring I 999
school but experience somatic symptoms such as headaches
and stomach pains so that they can return home to their
mothers. In some instances, abused mothers do not dis
courage this behavior because of their own isolation,
depression, and inability to set limits for their children.
Adolescents who have been exposed to violence tend to
develop their own unique coping strategies. At an adaptive
level, with extended family or community supports, these
young persons may attempt to separate and individuate from
the family problems, seeking more independent living and
school or vocational pursuits. Unfortunately, many adoles
cents do not have adequate skills and social supports in
place and may attempt to cope through drug and alcohol
abuse, or by running away to the street, a potentially more
dangerous environment.46 Often, they become involved in
abusive dating relationships and repeat the cycle they have
witnessed. In this regard, adolescent boys who have been
exposed to violence are more likely to be abusive them
selves. On the other hand, girls who have been exposed to
violence are less likely to question violence in a dating rela
tionship. Unfortunately, many of these adolescents do not
even realize that this violent behavior is criminal in nature
and could lead to sanctions by the court system.47
C. NEUROBIOLOGICAL CHANGES
AND DOMESTICVIOLENCE
Children neurobiologically adapt to violence, exhibiting
measurable change in the activity of their brainstems as a result
of chronic traumatic stress in violent homes. However, the very
neurobiological adapters that allow children to survive violence
may, as they grow older, result in an increased tendency to be
violent.48 Thus, living with a perpetrator of domestic violence
makes it more likely those children will grow up to be violent
themselves. In fact, in 14 of 16 studies, witnessing violence
between one's parents or caretakers is a more consistent pre
dictor of future violence than being the victim of abuse.49
The long-term impact of being exposed to domestic
violence is most apparent from retrospective studies of male
perpetrators of violence and female survivors of violence in
adult relationships. The majority of abusive husbands have
grown up in families in which they were exposed to their
fathers' abuse of their mothers. The landmark studies in this
field suggest that sons of severe batterers abuse their wives
at rates ten times the level of sons of non-violent fathers. 50
Women are less likely to seek assistance when they are
abused if they have been exposed to violence in their fami
lies of origin.51
Several important issues and cautions need to be raised
about the research on children who have been exposed to
violence. Although exposure to violence is an important
factor, it rarely happens in isolation from other stressors in a
child's life, e.g., repeated separations and disruptions, finan
cial hardships, and a lack of adequate housing or shelter. In
many circumstances a child may experience several forms
of violence aside from being exposed to his mother's vic
timization. The most conservative estimates suggest a 30%
overlap between wife assault and physical child abuse.
Some studies and recent reviews have estimated an overlap
up to 70%.52
Violence does not end with separation. Although the
physical violence may terminate, ongoing issues of abuse
of power and control may be played out in custody dis
putes, further compromising children's emotional and
behavioral adjustment.
/~·~
~f!roblems for Victims Created by Current __ ,;:o Custody Dispute Resolution System
Children are a central focus in decisions battered
spouses make about leaving their batterers or remaining in
abusive relationships. Battered women often cite the children
as a reason for staying with their spouses, in addition to other
factors, such as fear, economic dependency, and lack of com
munity support.53 Sometimes battered spouses are deprived
economically to the point of being left homeless. They may
be financially dependent on their abusers and may want the
presence of a father, even if he is a poor role model. They
also may fear losing the children, as many batterers threaten
their partners with taking the children away and with proving
them to be "unfit" mothers. These fears are well-founded,
since some research suggests that perpetrators of domestic
violence actually have a good chance of convincing judges
they should have custody. 54
On the other hand, some battered women may decide to
leave when they start to recognize the impact the violence
has had on their children. Most often, this decision happens
after an incident of physical or sexual abuse of the children,
or when they recognize the impact exposure to the violence
has had on their children.55
Stephen £. Doyno, Ph .D., ot at
The research on children of divorce and children
exposed to domestic violence has developed separately,
often leading to conflicting advice for battered spouses.
The general literature on the impact of divorce stresses the
negative influence of conflict on children and the positive
influence of a co-parenting relationship in which the chil
dren maintain an ongoing, supportive relationship with
both parents. This is often true for nonviolent families. In
reality, however, contested custody cases often represent a
high level of violence compared to the general population
of divorcing adults. 56 When domestic violence has been
present, a co-parenting relationship and the impact of the
ongoing conflict on the children often represent a negative
influence on the children. Many battered spouses are
advised to promote relationships and set aside past conflicts
with ex-spouses who may be a danger to them and their
children. If they do not comply, they may be deemed
"unfriendly or unfit parents" and they can lose custody to
abusive parentsY
One of the most important issues, which often goes
unrecognized by many legal and mental health profes
sionals, is that the violence does not end with separation. A
large-scale study of children of battered women in shelters
in California showed that separation tends to lead to an
escalation of violence and greater danger for their
mothers. 58 It is estrangement, not argument, which begets
the worst violence, since a majority of spousal murders
happen after women leave. 59 In fact, many courts promote
unsupervised visitation orders; and this may give abusive
spouses an ongoing opportunity to expose children to vio
lence or threats of violence. Recent clinical analysis in
Canada points to ongoing psychological abuse whereby
children become pawns in custody battles in order both to
punish and devalue their mothers and to try to rewrite the
history of abuse and parenting. 60
Paradoxically, women may not be believed when vio
lence is reported because they are seen to be exaggerating
incidents of violence as a way of manipulating the courts.
Many of these women who suffer post-traumatic stress dis
order have been labeled as histrionic or worse. For example,
a recent article discussed a supposed "Malicious Mother
Syndrome" in divorce to "explain" why some women hold
animosity toward their former husbands, blame them for all
the problems by accusing them of various behaviors, and
Spring 1999 • Juvenile and Family Court Journal 0
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Custody Disputes
attempt to keep them from seeing the children. 61 The
American Psychological Association Presidential Task Force
on Violence and the Family recently summarized the litera
ture in this area, and expressed concerns about the labeling
and pathologizing of battered women in divorce and custody
cases. When such labeling occurs, men's violence may be
minimized as only an emotional reaction to the separation.62
~-{Jii;mestic Violence Should be <~;If/Primary Consideration in
Child Custody Decisions Domestic violence plays a significant part in many cus
tody disputes and should be a primary consideration in ques
tions of both best interests and detriment to children.63 An
abusive parent often realizes, after separation or divorce, that
the most effective way to hurt or destroy the other parent is
through emotional or psychological abuse utilizing the family
courts. Generalized notions of joint custody and two equal
parents cooperatively planning for their children's future is
impossible for many couples when there is family violence. In
fact, this notion of shared custody may perpetuate the violence
and abusive power and control in family relationships.64
A. DOMESTIC VIOLENCE AND
LEGAL STANDARDS FOR CUSTODY
The best interest standard generally is applied in child
custody determinations, with the underlying notion that
there are two fit biological parents.65 In parenUnon-parent
disputes, the detriment standard is generally used to coun
terbalance the biological parent's greater legal right to the
child.66 Domestic violence frequently has been shown to be
harmful to children, whether they are abused physically or
not. 67 Therefore, regardless of which legal standard is
applicable, awarding batterers primary or joint custody
should be viewed as being either detrimental to children or
failing to satisfy their best interests.
Best Interests. In cases involving documented domestic
violence, it is presumptively in the best interests of children
to reside with a non-violent caretaker, rather than a batterer.
In many states, courts making determinations of best inter
ests in custody proceedings are required to consider any
history of abuse by one parent against the child or against
the other parent.68
0 juvenile and Family Court journal • Spring 1999
In order to ensure the safety and well-being of chil
dren, however, a finding of abuse by one parent against the
other needs more than just to be considered. It needs to be
elevated over other best interest factors in disputed custody
cases. This can be accomplished by a legal presumption
denying joint or sole custody to a parent with a history of
domestic violence.69 The National Council of Juvenile and
Family Court Judges70 and the American Bar Association71
have recommended adopting such a presumption.
Because domestic violence rarely occurs as an isolated
incident, application of such a presumption must be applied
broadly. The court should consider the acts and patterns of
physical abuse inflicted by the abuser on other persons, not
limited to children and the abused parent, as well as the fear
of physical harm reasonably engendered by this behavior.
Even then, discrete acts of abuse do not convey accurately
the risk of continuing violence, the likely severity of future
abuse, or the magnitude of fear precipitated by the com
posite picture of violent conduct. Rather, the broader pattern
of abusive and controlling behaviors must be considered in
deciding whether to apply the presumption.
Detriment. In cases of spousal murder, where the custody
dispute is typically between a surviving biological parent and
non-parents, non-parents seeking custody generally must
prove by clear and convincing evidence that an award of
custody to the natural parent would be detrimental to the
child and that custody to the non-parent would be in the
child's best interest.72
In cases where domestic violence has been present in the
past, it is clearly detrimental for a child to reside with a bat
terer, especially a batterer who has murdered the child's other
parent. 73 This is true even if the child appears to have a "close
bond" with the parent who has committed the violence.74
Current Practice. Research indicates that custody evaluators
seldom consider domestic violence when they make child
custody recommendations. A survey of psychologists from 39
states who conducted custody evaluations indicates that
domestic violence was not considered a major factor in
making custody determinations, except as a possible rational
ization for not recommending joint custody.75 Even then, it
was seldom listed as a determining factor. When the psycholo
gists were asked for three to five reasons that would most sup-
Stephen E. Doyne, Ph.D., et al.
port not recommending joint custody,
family/domestic violence was the
second least likely reason.76
AUTHOR'S ADDRESS However, it is important to
remember that living with
domestic violence only makes it
more likely children will repeat the
cycle of violence thernselves. 80 In
fact, children who grow up in abu
sive homes are more at risk for
Of more concern was the finding
that over three-quarters of the cus
tody evaluators recommended
denying sole or joint custody to a
parent who "alienates the child from committing violence themselves,
the other parent by negatively interpreting the other parent's both within and outside their own farnilies. 81
behavior."77 This latter finding indicates that custody evalu-
ators may be more likely to blame the parent seen as more
hostile and uncooperative and, thus, deny that parent sole or
joint custody even in cases where the hostile or uncoopera
tive parent was leaving an abusive relationship.
Application of a rebuttable presumption against cus
tody to perpetrators of domestic violence would help bring
current practices more in line with our best knowledge
about the effects of domestic violence on children. It also
would prevent perpetrators of domestic violence from ben
efiting from their violent, abusive conduct in cases such as
spousal murder where custody of the children may be
awarded to the murderer.
B.TRAUMATIC BONDING AND BEST INTERESTS
Judges in custody cases often are faced with a paradox
inherent in the dynamics of domestic violence. On one
hand, courts are presented with evidence showing special
risks children face when they are placed in the custody of
an abuser, risks not only to their physical safety, but also to
their emotional and developmental needs. On the other'
hand, court-appointed experts, who may downplay
domestic violence, may tell jurists that the children in a
given case have a "close bond" with a parent who has com
mitted domestic violence. In fact, the children even may
say they "just want to go horne."
The apparent closeness between perpetrators of
domestic violence and their children, whether battered or
not, can be explained by the concept of "traumatic
bonding."78 Traumatic bonding occurs when intermittent
maltreatment patterns produce strong emotional attach
rnents.79 This phenomenon is the very reason some battered
spouses stay in abusive relationships. Similarly, children
may appear emotionally close to violent parents because
they are afraid of them.
C. SPOUSAL MURDERAND DETRIMENT TO CHILDREN
Psychological detriment to children caused by the
murder of a parent is indisputable and irreparable. When
addressing the question of detriment, courts should examine
the totality of evidence related to current and future harm to
the children. 82
A majority of female homicide victims are killed by
their partners, ex-partners, or boyfriends.83 However, in
domestic disputes, there are numerous pre-incident indica
tors associated with spousal violence and murder. Gavin
deBecker has described the pre-incident behaviors as sig
nals. Noting that they will not be present in every case, he
cautions there is reason for concern if several of the indica
tors listed in Table 2 are present.
If this pattern of violent behaviors is found to be char
acteristic of the parent seeking custody, the court should
examine the totality of the evidence before deciding upon
custody. That is, the children's safety and well-being should
come first, above the rights of a violent parent.
/~' :~~~IJjJnclusion
Children can b~,;~I:~eat risk living with a perpetrator of
domestic violence. Even if they have not been abused directly
they may experience the same psychological fears and be
traumatically bonded to the batterer, even expressing a prefer
ence to live with him. In the case of spousal murder, these
children may suffer "secondary abuse," adopting a pattern of
emotional compliance because they fear the penalty for mis
behaving could be physical harm or death. However, the
greatest future harm children face living with a batterer is that
they may live to experience the abusive parent beat another
partner, recycling the climate of fear that is so detrimental to
children. Moreover, if they remain with a batterer, the same
neurobiological adaptations that help them psychologically
Spring 1999 • juvenile and Family Court Journal 0
Custody Disputes
survive the traumas associated with domestic violence may
increase the likelihood they will grow up to be violent them
selves. Daughters may be more likely to accept violence as an
inevitable part of intimate relationships.
To prevent future detriment, children's safety and
well-being should be elevated above the rights of violent
parents. What is needed most to ensure children's protec
tion in custody cases where there has been domestic vio
lence is a new commitment to prioritize children's safety
as an essential cornerstone of the justice system. This com
mitment must be indicated clearly by legislation, policy
development, training, and specialized resources. If the
Stephen E. Doyne is a forensic psychologist in independent practice in Lajolla, CA.
justice system cannot assure children's safety, the cycle of
violence will continue.
This article is an outgrowth of an amici curiae brief
submitted by the authors on behalf of themselves and sev
eral supporting organizations in the 0.1. Simpson
guardianship case, reported at Simpson v. Brown, 67 Cal.
App. 4th 914, 79 Cal. Rptr. 2d 289 ( 1998 ). The dispute in
that case was between the father who allegedly had killed
the children's mother and the mothers parents.
The authors gratefully acknowledge the Public Law Center,
California Women s Law Center, and the California Alliance
Against Domestic Violence for their support in this effort.
Janet Bowermaster is a professor of family law and domestic violence at California Western School of Law in San Diego, CA.
J. Reid Meloy is an associate clinical professor of psychiatry at the University of California, San Diego, School of Medicine and a forensic psychologist in
independent practice.
Donald Dutton is a psychologist and professor of psychology at the University of British Columbia in Vancouver, British Columbia.
Peter Jaffe is a psychologist and Executive Director of the London Family Court Clinic, and adjunct associate professor of psychology & psychiatry at the University
of Western Ontario, London, ON.
Stephen Temko is a California attorney who is a certified specialist in family law and appellate law.
Paul Mones is an attorney specializing in children's rights and family violence-related homicides.
8 juvenile and Family Court Journal • Spring 1999
Stephen E.. Doyne, Ph.D., et a/.
Table 2.
Pre-Incident Indicators Associated with Spousal Violence and Murder
I. The woman has intuitive feelings that she is at risk.
2. At the inception of the relationship, the man accelerated the pace, prematurely placing on the agenda such things as commitment, living together, and marriage.
3. He resolves conflict with intimidation, bullying, and violence.
4. He is verbally abusive.
5. He uses threats and intimidation as instruments of control or abuse.
6. He breaks or strikes things in anger. He uses symbolic violence.
7. He has battered in prior relationships.
8. He uses alcohol or drugs with adverse affects.
9. He cites alcohol or drugs as an excuse or explanation for hostile or violent conduct.
I 0. His history includes police encounters for behavioral offenses.
I I. There has been more than one incident of violent behavior.
12. He uses money to control the activities, purchases, and behavior of his wife/partner.
13. He becomes jealous of anyone or anything that takes her time away from the relationship; he keeps her on a "tight leash," requires her to account for her time.
14. He refuses to accept rejection.
15. He expects the relationship to go on forever.
16. He projects extreme emotions onto others even when there is no evidence that would lead a reasonable person to perceive them.
17. He minimizes incidents of abuse.
18. He spends a disproportionate amount of time talking about his wife/partner and derives much of his identity from being her husband, lover, etc.
19. He tries to enlist his wife's friends or relatives in a campaign to keep or recover the relationship.
20. He has inappropriately surveiled or followed his wife/partner.
21. He believes others are out to get him. He believes that those around his wife/partner dislike him and encourage her to leave.
22. He resists change and is described as inflexible, unwilling to compromise.
23. He identifies with or compares himself to violent people in films, news stories, fiction, or history. He characterizes the violence of others as justified.
24. He suffers mood swings or is sullen, angry, or depressed.
25. He consistently blames others for problems of his own making; he refuses to take responsibility for the results of his action.
26. He refers to weapons as instruments of power, control, or revenge.
27. Weapons are a substantial part of his persona.
28. He uses "male privilege" as a justification of his conduct.
29. He experienced or witnessed violence as a child.
30. His wife/partner fears he will injure or kill her. She has discussed this with others or has made plans to be carried out in the event of her death.84
Spring /999 • juvenile and Family Court Journal 0
Custody Disputes
Endnotes
According to a 1996 report prepared for the California Department of Health Services, domestic violence - both reported and unreported - occurs an estimated four million times a year, with two million of these incidents being severe assaults. MARGARET A DALTON, DOMESTIC VIOLENCE IN CALIFORNIA: A STATUS REPORT TO THE CALIFORNIA DEPARTMENT OF HEALTH SERVICES 3 ( 1996) - The report also estimates that as many as one-third of emergency room visits relate to domestic violence and apparently, one-fifth to one-fourth of pregnant women seeking prenatal care are in a battering relationship. /d. Further, medical care to victims of
Martin, Children of Battered Women, 10 MATERNAL CHILD NURSING J. 41, 49-50 (1981). This is why experts in the field point out that domestic violence should be more properly termed violence against women and children since the majority of victims are women and children. Peter Jaffe, Children of Domestic Violence: Special Challenges in Custody and Visitation Dispute Resolution, in DoMESTIC VIOLENCE AND CHILDREN: RESOLVING CUSTODY AND VISITATION DISPUTES, A NATIONAL JUDICIAL CURRICULUM 19-21 (Nancy K.D. Lemon ed. 1995).
domestic violence costs an estimated $1.8 billion dollars per 8 23 PA. CONS. STAT. ANN. § 5303 (b.2) provides: year. /d. Currently, domestic violence is the leading cause of injury to women ages 14 to 44, more common than automo-bile accidents, muggings and rapes combined. Antonia C. Novello, The Domestic Violence Issue: Hear Our Voices, AM. MED. NEWS, March 23/30, 1992, at 25.
2 DONALD DUTTON, THE DOMESTIC ASSAULT OF WOMEN:
"No court shall award custody, partial custody or visitation to a parent who has been convicted of murder ... of the other parent of the child who is the subject of the order, unless the child is of suitable age and consents to the order."
PSYCHOLOGICAL AND CRIMINAL JUSTICE PERSPECTIVES 9 In 1994, the National Council of Juvenile and Family Court Judges adopted a Model Code on Domestic and Family violence which stated:
3
4
5
6
7
3-10 (1995).
JoHN DE WITT GREGORY ET AL, UNDERSTANDING FA1\1ILY LAW 371 (1993); State Divorce Laws, FAM. L. REP. (BNA) Reference Edition 401 :001-451:001 (1989) Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW &: CONTEMP. PROBS. 226, 236 (1975).
Thomas J. Reidy et al., Child Custody Decisions: A Survey of Judges, 23 FAM. L. Q. 75 (1989); Jeff Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 FAM. L. Q. 1 (1984); Jessica Pearson & Maria A Luchesi Ring, Judicial Decision-making in Contested Custody Cases, 21 J. FAM. L. 703 (1982-83).
CAL. FAM. CODE§ 3011 (West 1994 & Supp. 1998) provides that in determining the best interest of the child the court shall, among any other factors it finds relevant, consider the health, safety, and welfare of the child and any history of child abuse or domestic violence by one of the parents.
Family Violence Department of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L. Q. 197. 199 (1995).
Children do not have to be victims of abuse to suffer emotional detriment from living with a batterer. In fact, children raised in a home in which spousal abuse occurs experience the same fear as battered children. Westra &
0 Juvenile and Family Court Journal • Spring 1999
"In every proceeding where there is, at least, at issue a dispute as to custody of a child, a determination by the court that domestic or family violence has occurred, raises a rebuttable 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 a perpetrator of family violence." MODEL CoDE ON DoMESTIC AND FAMILY VIOLENCE §40 1 at 33 (Advisory Committee of the Conrad N. Hilton Foundation, Model Code Project of the Family Violence Department 1994) [hereinafter MODEL CODE].
10 Donald Dutton et al., The Role of Shame and Guilt in Intergenerational Transmission of Abusiveness, 10 VIOLENCE AND VICTIMS 121 (1995).
11 Donald Dutton, Profiling Wife Assaulters: Some Evidence for a TrimodalAnatysis, 3 VIOLENCE AND VICTIMS 5 (1988).
12 Russell Dobash et al., The Myth of Sexual Symmetry in Marital Violence, 39 Soc. PROBS. 71,74-75 (1992).
13 DUTTON, supra note 2, at 94.
14 Donald Dutton et a!., Antecedents of Borderline Personality Disorder Organization in Wife Assaulters, 11 FAM. VIOLENCE 131 (1996).
15 DUTTON, supra note 2, at 25.
l!l Reid Mdoy, ,)'!a/king (Obsessional Following): A Review of Son II' l're/iminary Sludies, I AGGRESSION AND VIOLENT Bl~lli\YIOI< 147, 162 (1996).
I I I ,en ore Walker & Reid Meloy, Stalking and Domestic Violence, in THE PSYCHOLOGY OF STALKING: CLINICAL AND FORENSIC PERSPECTIVES 140-159 (Reid Meloy ed., 19l)R).
IR /d.
19 Meloy, supra note 16, at 158.
20 /d.
21 !d. at 158-159.
22 Walker & Meloy, supra note 17, at 141. See also, Ann Browne, Violence in Marriage: Until Death Do Us Part?, in VIOLENCE BETWEEN INTIMATE PARTNERS: PATTERNS, CAUSES, AND EFFECTS 48 (A. Cardarelli ed., 1997).
23 !d.
24 !d.
25 Reid Meloy and Shayna Gothard, A Demographic and Clinical Comparison of Obsessional Followers and Offenders with Mental Disorders, 152 AM. J. OF PSYCHIATRY 258, 262 ( 1995).
26 Neil S. Jacobson et a!., Affect, Verbal Content, and Psychophysiology in the Arguments of Couples with a Violent Husband, 62 J. OF CONSULTING & CLINICAL PsYCH. 982, 986 (1994).
27 T. MILLON ET AL. (EDS.) PSYCHOPATHY: ANTISOCIAL, CRIMINAL, AND VIOLENT BEHAVIOR ( 1998).
Stephen E. Doyne, Ph.D., et a/.
Problems of Battered Women, 31 CANADIAN J. OF PSYCHIATRY 625, 628 (1986).
37 Einat Peled, The Experience of Living with Violence for Preadolescent Child Witnesses of Women Abuse (1993) (unpublished doctoral dissertation, University of Minnesota (Minneapolis).
38 M. CRAWFORD & R. GARTNER, WOMAN Kll-LING, INTIMATE FEMICIDE IN ONTARIO: 1974-1990 (1992).
39 Jaffe, supra note 7, at 21-22.
40 !d. at 21.
41 !d.
42 Jaffe, et al., supra note 36, at 625-629.
43 Jaffe, supra note 7, at 22.
44 !d.
45 !d.
46 !d.
47 !d.
48 Bruce D. Perry, Incubated in Terror: Neurodevelopmental Factors in the "Cycle of Violence," in CHILDREN IN A VIOLENT SOCIETY 127 (Joy D. Osofsky ed. 1997).
49 Gerald T. Hotaling & David B. Sugarman, An Analysis of Risk Markers in Husband and Wife Violence: The Current State of Knowledge, 1 VIOLENCE AND VICTIMS 101, 101-124(1986).
50 Jaffe, supra note 7, at 21-22. 28 GAVIN DEBECKER, THE GIFT OF FEAR: SURVIVAL SIGNALS '
THAT PROTECT Us FROM VIOLENCE 183 (1997).
29 Jaffe, supra note 7, at 19-21.
51 GELLES & STRAUS, supra note 34, at 18-20; Lenore E. Walker, Psychology and Violence Against Women, 44 AM. PSYCHOL. 695, 697-98 (1989).
30 K. Rodgers, Wife Assault: The Findings of a National 52 Jaffe, supra note 7, at 22-23. Survey, 14 JURISTAT 1, 1-22 (1994).
53 N.Z. Hilton, Battered Women's Concerns About Their 31 Jaffe, supra note 7, at 19. Children Witnessing Wife Assault, 7 J. OF INTERPERSONAL
VIOLENCE 77,78 (1992). 32 !d. at 20.
54 Joan Zorza, Woman Battering: A Major Cause of 33 !d. Homelessness, 25 CLEARINGHOUSE REv. 421, 426 (1991).
34 RICHARD GELLES & MURRAY A. STRAUS, INTIMATE 55 Hilton, supra note 53, at 83. VIOLENCE 18-20 (1988).
56 Janet R. Johnston & Linda Campbell, Parent-Child 35 Jaffe, supra note 7, at 21-22. Relationship in Domestic Violence Families Disputing
Custody, 31 FAM. AND CONCILIATION CTS. REV. 282, 285 36 Peter Jaffe et al., Emotional and Physical Health (1993).
Spring 1999 • Juvenile and Family Court Journal e
Custody Disputes
57 Joan Zorza, "Friendly Parent" Provisions in Custody Determinations, 26 CLEARINGHOUSE REv. 921,925 (1992).
58 Jaffe, supra note 7, at 24.
59 DEBECKER, supra note 28, at 184.
60 Jaffe, supra note 7, at 24.
61 !d.
62 American Psychological Association Presidential Task Force on Violence and the Family, IssuEs AND DILEMMAS IN FAMILY VIOLENCE 13-15 (1996).
63 Effective January 1, 1998, for example, the California Family Code was amended to elevate the importance of safety concerns in child custody determinations. The fol-lowing provision was added:
(a) The Legislature finds and declares that it is the public
policy of this state to assure that the health, safety, and
welfare of children shall be the court's primary concern
in determining the best interest of children when making
any orders regarding the custody or visitation of children.
The Legislature further finds and declares the perpetra-
tion of child abuse or domestic violence in a household
where a child resides is detrimental to the child. CAL.
FAM. CODE § 3020 (West 1994 & Supp. 1998).
64 !d.
65 See Flathers v. Flathers, 948 S.W.2d 463, 466 ( Mo. Ct. App. 1997); Naomi R. Cahn, Reframing Child Custody Decisionmaking, 58 OHIO ST. L. J. 1, 17 (1997).
66 See Kroics v. Kroics, 705 So.2d 1302, 1304 (La. Ct. App. 1998); Ross v. Hoffman, 372 A.2d 582, 586-87 (Md. 1977); Cahn, supra note 65, at 14.
67 See supra notes 29 to 52 and accompanying text.
68 S~e, e.g., COLO. REV. STAT. ANN. § 14-10-124 (West 1994), ILL. ANN. STAT. ch. 750, para.5/602 (SmithHurd 1994), KY. REV. STAT. ANN. § 403.270 (Michie/Bobbs-Merrill 1994), MO. ANN. STAT. § 452.375 (Vernon 1994), NEB. REV. STAT. § 42-364 (1995), N.J. STAT. ANN. tit. 9, § 9:2-4 (West 1995), 23 PA. CONS. STAT. ANN.§ 5303 (1994), and VA. CODE§ 20c124.3 (Michie 1994). The Family Violence Department, supra note 6, at 225-27, column I.
69 Custody codes in several states and the District of Columbia establish rebuttable presumptions related to
4D Juvenile and Family Court Journal • Spring /999
domestic violence. See, e.g., ALA. CODE § 30-3-133 D.C. CODE ANN.§ 16-914, DEL. CODE ANN. TIT. 13, § 705A, FLA. STAT. ANN. § 61.13, HAW. REV. STAT. § 571-46, and N.D. CENT. CODE § 14-09-06.2. See also Dinius v. Dinius, 564 N.W.2d 300, 302 (N.D. 1997); Zuger v. Zuger, 563 N.W.2d 804, 809 (N.D. 1997); and MODEL CODE, supra note 9, § 401 at 33.
70 MODEL CODE, supra note 9, § 401 at 33.
71 The ABA recommended that: "custody not be awarded, in whole or in part, to a parent with a history of inflicting domestic violence, that visitation be awarded to such parent only if the safety and well-being of the abused parent and children can be protected, and that all awards of visitation incorporate explicit protections for the child and the abused parent." Howard Davidson, The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association, 1994 A.B.A. CENTER ON CHILDREN AND THE LAW 15.
72 Guardianship of Stephen G., 47 Cal. Rptr. 2d 409, 418 (Cal. Ct. App. 1995) .
73 See supra notes 29-52 and accompanying text.
74 See infra notes 78-79 and accompanying text.
75 Marc J. Ackerman & Melissa C. Ackerman, Child Custody Evaluation Practices: A 1996 Survey of Psychologists, 30 FAM. L. Q. 565, 576-82 (1996).
76 !d.
77 !d.
78 Traumatic bonding is the development of strong emo-tiona! ties between two persons, with one person intermit-tently harassing, beating, threatening, abusing or intimidating the other. DUTTON, supra note 2, at 190.
79 !d. at 191.
80 Perry, supra note 48, at 124-149.
81 DUTTON, supra note 2, at ix.
82 Guardianship of Phillip B., 188 Cal. Rptr. 781, 790 (Cal. Ct. App. 1983) .
83 Jaffe, supra note 7, at 20; GELLES & STRAUS, supra note 34, at 18.
84 oEBECKER, supra note 28, at 175.