Clare
Dalton, When Paradigms Collide: Protecting Battered Parents and Their Children
in the Family Court System, 37 Fam. & Conciliation Courts Rev. 273
(1999).
For
the past 25 years, helping professionals have wrestled with the task of adapting
their practices to incorporate new information about abuse and responsibilities
toward its victims. Despite a growing body of helpful research, increasing
training opportunities and extensive legislative reform, significant obstacles
still confront adult and child victims of partner violence in the family court
system. This article groups those obstacles into three categories: naming
the problem, identifying victims of abuse, and prioritizing victim safety.
In each problem area, the author suggests that progress depends on increased
integration at the level of theory and increased professional collaboration
at the level of practice.
In the quarter century since a grassroots battered
women's movement put partner violence on the national agenda, members of nearly
every helping profession have wrestled with the task of integrating new information
about abuse and new responsibilities toward its victims into existing professional
paradigms and practices. For some in every profession, this process has been
exhilarating; it has infused new meaning into daily practice, and it has brought
professional norms closer to preexisting personal experience and conviction.
For a few, the process has been downright unwelcome and has been met with
overt or covert resistance. But for many professionals, perhaps most, the
relationship between new paradigms and old has been challenging and often
confusing. This has left practitioners unsure whether to credit the claims
of specialists about either the prevalence of abuse or the levels of risk
associated with it. For these practitioners, the question is not whether their
new learning is helpful but whether it applies to 5%, 20%, or 50% of their
caseloads.
The imagery we customarily use suggests that
new knowledge fills gaps in our understanding. In fact, however, we generally
prefer to construct our working understandings of the world to be cohesive
and relatively gap free. When we have to wrench those understandings apart
to make room for new information and insight, the whole structure becomes
unstable, and it takes time for a new architecture to emerge. In the interim,
we are likely to experience *274
a loss of confidence in our skills and judgment-a particularly frightening
prospect when others depend on us for support and assistance.
A cautious observer, seeking to describe how
the family court system has responded to the challenge of domestic violence,
might summarize the present situation as follows. First, we have a growing
body of research, endorsed by all the relevant professional organizations,
supporting changes designed to offer more protection to adult and child victims
of partner abuse. [FN1] On the other hand, we have barely begun to confront
the task of integrating that research and evidence into theories about divorce
or child access that support competing practices and norms. This lack of integration
at the level of research and theory tends to produce warring camps that engage
in unproductive skirmishes at conferences and to undermine integration at
the level of practice.
Second, education and training programs in
partner violence are now offered to virtually every professional constituency
involved in the family court system: lawyers, judges, family service officers,
child support enforcement personnel, mediators, guardians ad litem, and custody
evaluators. Some argue that we are reaching the saturation point with training
sessions. However, these training sessions are too often ineffective in changing
professional practice. In part, this follows from the first problem: as long
as competing literatures and bodies of research advocate competing norms and
practices, responsible professionals can still adhere to the set that was
more thoroughly and deeply embedded in their earlier professional training
and orientation to their work. In part, the problem is that the training sessions,
constrained by limited time and resources, are often superficial. They provide
precepts and illustrate them with scenarios that professionals may find unrelated
to their daily work. They often fail to take the critical step of helping
or challenging professionals to look at their cases through new eyes and to
use their new learning to discover and address abuse-related issues that previously
escaped their attention.
Third, state legislatures have been remarkably
responsive to calls for change. They have made partner violence a factor that
must be considered in custody determinations [FN2] and have created presumptions
against the grant of sole or joint custody to a confirmed abuser. [FN3] They
have increasingly warned that mediation may not be mandated if one partner
has used violence against the other. [FN4] They have supported the use of
supervised visitation centers or supervised transfers in cases involving partner
violence. [FN5] However, it is one thing to change the law or the rules at
a formal level but quite another to achieve the real goals of reform in daily
practice. Neither a legislative directive that partner violence be a factor
in custody determinations nor a rebuttable presumption against granting custody
to a batterer ensures that a guardian *275 ad litem will not be recommended or a judge will award custody
to a parent whose past abuse has gone undetected, misdiagnosed, or disbelieved.
If family service officers routinely pressure couples to mediate, and they
fail to screen for, or to recognize, partner violence, a legislative veto
of mandatory mediation in the presence of domestic violence is largely irrelevant.
Without the integration of old and new paradigms at the levels of research
and theory, without real change in the attitudes and practices of professionals,
formal change can be a largely empty promise.
In the remainder of this article, I focus on
some of the obstacles that confront the adult and child victims of partner
violence as they move through a family court system where paradigms collide.
To provide structure to this discussion, I have grouped these obstacles under
three general headings: "Naming the Problem," "Identification,"
and "Safety." To provide a concrete focus, I have chosen custody
and visitation assessments and adjudications to illustrate the obstacles and
suggest how they might be addressed.
NAMING THE PROBLEM
At the level of research and theory, there
are at least three separate bodies of learning that describe problematic intimate
relationships, test hypotheses about the sources of the problems, and suggest,
or measure the efficacy of, specific interventions. One set of literature
deals with conflict, another with violence, and a third with abuse. A prime
source of tension between specialists in partner abuse and the majority of
mental health professionals who work within the family court system is that
where the former see abuse, the latter tend to see conflict. A second difference
that contributes to this tension is that before taking a relationship out
of the conflictual category and putting it into the abusive category, the
mental health professional looks for significant evidence of a one-sided pattern
of physical violence. Those who specialize in abuse, on the other hand, understand
abusive relationships as being first and foremost about power and control.
They know that physical violence, while usually a potent residual source of
power within the relationship, may play only a small part in the overall dynamic
of control. A third related difference is that abuse specialists will always
suspect that violence in a relationship indicates the presence of a power
and control dynamic, whereas the mental health professional is quicker to
associate violence with conflict between relatively evenly matched partners.
There are recent hopeful signs of bridge building
between these disparate literatures and perspectives. In their 1996 account
of mediating and negotiating marital conflict, Desmond Ellis and Noreen Stuckless
differentiate between *276 conflict-initiated
violence and control initiated violence and offer the crucial insight that
whereas conflict-initiated violence may be relatively evenly distributed by
gender, control initiated violence is much more commonly inflicted by men
on women. [FN6] Murray Straus, a pioneer and leader in the empirical study
of family violence but someone who is considered controversial within the
domestic violence field because of his repeated findings that violence in
families is equally distributed between men and women, has recently turned
his attention to discrepant definitions of violence and the difference between
physical violence standing alone and the set of coercive and controlling behaviors
that add up to abuse. Straus notes that his own research "has been carried
out from the perspective that defines violence exclusively as a physical assault."
He recognizes that there is an important difference between violence that
results in injury and violence that does not and that physical assaults "are
not necessarily the most damaging form of maltreatment." [FN7]
Those whose primary focus is partner abuse,
Straus suggests, use a broader definition of violence (or, I might add, use
the term abuse rather than violence) to include "multiple modes of maltreatment
and the resulting injury." [FN8] Straus concludes that "it would
be ridiculous and unethical" to ignore "the psychological assaults,
sexual coercion, subjugation, and economic situation of battered women, or
the behavior of men who engage in these other forms of degradation."
[FN9] On the other hand, he argues, it remains useful to investigate separately
the prevalence of physical assault, especially for those who "tend to
place ending physical violence at the top of their agenda, regardless of whether
the offender is a man, woman or child." [FN10]
Despite hopeful signs that we will ultimately
integrate the findings and theories of those who study conflict, violence,
and abuse, tensions among and between them continue to have a direct impact
on the family court system. In the context of custody and visitation, the
explicit preference that children maintain significant contacts with both
parents after separation and divorce and the tendency to see marital dysfunction
as the product of conflict rather than abuse have led specialists in partner
abuse to accuse family courts of ignoring abuse and its consequences for both
adults and children.
The 1970s saw increasing divorce rates, a growing
fathers' rights movement, a new body of popular literature favoring shared
parenting, [FN11] and a new body of social science research assessing the
impact of divorce on children. [FN12] The literature and the data on which
it relied either asserted or was interpreted to assert two propositions, one
negative and one positive. The negative proposition was that children who
lose contact with their noncustodial parents after divorce are likely to experience
problems. The positive proposition was that children resist the negative emotional
fallout of their parents' divorces most successfully when they have generous
ongoing access to both parents. On the *277 strength of these propositions, state legislatures and family
courts mobilized to support shared parenting through joint custody, "friendly
parent" provisions, and generous visitation for noncustodial parents.
Joint custody and friendly parent provisions
are intimately related. Joint custody legislation has taken a variety of forms.
The weakest form simply makes it explicit that joint custody is an option
for judges to consider. A much stronger form authorizes joint custody when
either party requests it, even if the other parent is opposed. A third variety
authorizes joint custody only when both parents are in agreement but makes
the willingness of one parent to accept joint custody a factor in determining
which parent should receive sole custody. This disadvantages the "unfriendly"
parent, the one who was unwilling to share custody. Some legislation creates
a presumption in favor of joint custody, and while parental disagreement may
rebut the presumption, the legislation may then favor awarding sole custody
to the "friendly" parent who is willing to share. [FN13] According
to the Family Violence Project of the National Council of Juvenile and Family
Court Judges, in 1995, 10 child custody statutes included a public policy
statement concerning a parent's ability to allow the child an open, loving,
and frequent relationship with the other parent. Eighteen states included
such provisions in the list of factors a court must consider when determining
the best interest of the child. [FN14] Even in states without joint custody
or friendly parent language in their statutes, many judges act on the belief
that shared access is best for children and sole custody is best awarded to
the parent most willing to share the child. [FN15]
In this context, if judges, mediators, or family
service officers interpret abuse as conflict and attribute violence to conflict
rather than to abuse, they may well conclude that shared parenting is still
both feasible and desirable. The parents just need to set aside their own
issues and hostilities and focus on the best interests of their children.
Mediators, guardians ad litem, custody evaluators, and judges confusing abuse
with conflict may also conclude that the parents who oppose shared parenting
are acting vindictively and subordinating the interests of the children to
their own rather than expressing their legitimate anxieties about their own
and their children's ongoing safety. Ironically, within the friendly parent
framework, a mother's proper concern about her abusive partner's fitness to
parent will negatively affect her chance to win custody, not his. At the same
time, the abuser's willingness to share the children, which assures his ongoing
access to his partner and allows him to continue to manipulate and intimidate
her, will, within the same framework, make him appear the more attractive
candidate for custody.
New research is eroding the basis on which
joint custody provisions rest. Earlier studies of shared parenting, which
tended to reach positive conclusions, used samples composed of couples who
were highly motivated and *278
committed to making joint custody work for their children. [FN16] Beginning
in the early 1980s, and swelling in volume as the decade progressed, new studies
have emphasized the limitations of those early findings and have raised a
series of questions. [FN17] The most recent studies conclude that there is
no convincing evidence that joint custody is either more or less beneficial
than sole custody for most children. [FN18] More important, from the perspective
of this article, is the finding that shared parenting is contraindicated if
the relationship between the parents is characterized by ongoing conflict.
As Janet Johnston summarizes this research,
Substantial amounts of access to both parents
... and frequent transitions between parents are generally associated with
poorer children's adjustment in ... those divorced families where there is
ongoing high conflict and continual disputes over the children. Where there
has been a history of repeated physical violence between parents, these children
are likely to be the most seriously disturbed. [FN19]
A crucial next step for policy makers is to
absorb these new research findings and embed them in the governinglegal standards.
At the same time, mental health professionals and legal actors in the family
court system must absorb them into their practices and into their applications
of current legal standards. Technically, no formal change in the governing
legislation is necessary even in those states that have adopted a joint custody
presumption. The presumption can always be rebutted by a showing that joint
custody is not in the best interests of the child. It serves a valuable educative
function, however, when state legislatures or appellate courts sound a cautionary
note, as some are beginning to do. [FN20] Joint custody should be an option
if both parents support it and if they are capable of cooperation, but it
should have no presumptive superiority, and it should be disallowed if the
parents' relationship is chronically conflictual or if one parent has abused
the other.
Even this change, however, will not remedy
the problems created by characterizing abuse as conflict and viewing custody
disputes within the friendly parent framework. Even if joint custody awards
are curtailed, the sole custodian must be chosen. And although states are
increasingly amending their custody statutes to insert presumptions against
the grant of joint or sole custody to parents who have abused their partners,
if the couple's relationship has been misdiagnosed as conflictual rather than
abusive, the abuser may seem the more appropriate custodian. This is particularly
so if he is more willing to tolerate generous visitation by his partner. In
this context, a "clinical typology" of "interparental violence
in disputed custody divorces" (from an article coauthored by Janet Johnston
and Linda Campbell) has heightened *279 the concerns of partner abuse specialists even as it has achieved
wide circulation and influence within both the mental health and legal communities
in the family court system. [FN21]
Johnston and her coauthor are clear about the
limitations of their work. They describe the types as "preliminary exploratory
hypotheses to be evaluated in future research, rather than as established
findings." [FN22] The typology is derived from a theoretical understanding
of interpersonal violence that appears not to incorporate the growing literature
on the intrapsychic dynamics of batterers or the interpersonal dynamics of
abusive relationships. [FN23] Interviewers were asked to assign couples to
one of the predetermined types so that the model was impervious to correction
based on any lack of fit between the typology and the couples' reports of
their experiences. [FN24] There is no indication that the clinical inferences
of the researchers were informed by any guidelines for interpreting the relationships
when the partners' accounts were discrepant. [FN25] Finally, the article is
based on two relatively small samples of divorcing parents. The authors acknowledge
that these study participants may not be representative of the full range
of abuse and violence in the divorcing population. [FN26]
The five types of violence hypothesized by
Johnston and Campbell are (1) ongoing or episodic male battering, (2) female-initiated
violence, (3) male-controlled interactive violence, (4) separation and postdivorce
violence, and (5) psychotic and paranoid reactions. [FN27] In their 1993 article,
Johnston and Campbell were not specific about the typology's implications
for custody, noting only that "differential assessment of domestic violence
is necessary when helping parents make post-divorce plans for the custody
of their children." [FN28] In a subsequent article, however, Johnston
offers a more detailed set of prescriptions, suggesting that "other factors
being equal, sole or joint residential arrangements for children are contra
indicated with a father who has engaged in ongoing or episodic battering,
as they are with any parent who is psychotic or has paranoid delusions."
[FN29] In type 2 cases (female-initiated violence), fathers should be encouraged
to pursue primary custody of their children; [FN30] in type 3 cases (male-controlled
interactive violence), both parents are poor role models, but "the parent
who can better provide a violence-free environment should be considered as
the potential primary caretaker for the child," [FN31] while in type
4 cases (separation and postdivorce violence), "a range of custody plans,
including joint physical custody, are appropriate." [FN32]
The chief concern of partner abuse specialists
is that Johnston's typology will encourage serious underestimation of the
number of abusive relationships and the dangers they pose to abused partners
and children. [FN33] The problem starts with the description of ongoing or
episodic male battering as the category that "most closely resembles
the battering spouse/battered wife syndrome *280 which has been well described in the literature." [FN34]
Johnston reports that the violence in these cases "rises to dangerous,
life-threatening levels." [FN35] Does this mean that if the violence
has been less frequent than "ongoing or episodic" suggests or is
less severe than life threatening, the relationship is not a battering or
abusive one? Johnston also reports that the women who are victims of battering
"did not generally provoke, initiate or escalate the physical abuse,
at least not intentionally" and tended to be "intimidated and cowed"
unless they "did not tolerate the abuse" and left the relationship
early. [FN36] This suggests that women who choose to signal their lack of
tolerance for abuse not by leaving early but by fighting back, verbally or
physically, for some period of time, will not be viewed as victims of abuse.
Their relationships will then be assigned to other categories.
The category of male-controlled interactive
violence is particularly troubling because it describes a controlling male
who is prepared to use force to gain compliance and who escalates his use
of force if his partner resists his efforts at control. Yet, this man is not
viewed by Johnston as a batterer. [FN37] When she adds that violence in these
cases arises primarily out of "a conflict of interest or disagreement"
[FN38] between the spouses, it seems plausible that the conflict might be
precisely about the man's desire for control. When she talks about mutual
verbal provocation [FN39] in these relationships, the echo of the justification
so commonly used by batterers, that their partners provoked them by asserting
independence or failing to comply with (often unreasonable) demands, makes
Johnston's account uncomfortable reading for those whose primary constituencies
are perpetrators or victims of battering.
Finally, Johnston's willingness to recommend
shared parenting in cases of separation and postdivorce violence, seems to
rely on the assumption that violence in these cases is provoked by the stress
of separation and will be time limited. [FN40] This conclusion belies the
reality of many relationships in which longstanding abuse, primarily of a
nonphysical nature, is supplemented more aggressively with physical violence
when the partner signals her determination to leave the relationship. When
Johnston suggests that "this violent separation related behavior can
become the crucible within which a negative reconstruction of the identity
of the ... spouse is made, casting a long shadow over the postdivorce relationship
of these couples," [FN41] she risks discrediting the spouse whose new
understanding of the relationship is now more reality based after an earlier
period in which her commitment to the relationship led her to minimize or
deny the abuse or to take inappropriate responsibility for it. When she speaks
of the intolerable loss and sense of abandonment experienced by some partners
at the time of separation and divorce, [FN42] the partner abuse specialist
cannot help but think of the men who have killed their partners, their children,
and not infrequently themselves in the grip of precisely *281 these emotions. Contemplating shared custody, or even unsupervised
visitation, in cases involving "one, two or several incidents" of
violence, including "sometimes very serious ones," [FN43] seems,
from this perspective, downright irresponsible, at least without a lengthy
cooling off period during which the violent partner's behavior can be observed
and an extremely thorough assessment made of the potential for further violence.
As this clash of perspectives demonstrates,
constructive dialog is desperately needed on two fronts. Some of the conversations
must be between researchers, like Johnston, who approach these issues from
the perspective of conflict, and researchers who approach them from the perspective
of abuse. At the same time, conversations are needed between the practitioners
who have tended to ground their practices in one body of research and practitioners
who have grounded them in the other. In both cases, we need to move beyond
the professional antagonism that locks people of good will ever more firmly
into their starting positions to a professional collaboration that enables
all the participants to venture toward a larger, richer, and more differentiated
understanding.
IDENTIFICATION
There are two aspects to identification: identifying
abuse and identifying its consequences. The first aspect involves screening
on the part of the professional and disclosure on the part of the perpetrator
or victim. The professional must be able to ask the right questions, signal
his or her ability and willingness to hear the answers to those questions,
create a climate of safety and trust in which the person questioned will be
able to answer honestly, and understand the significance of the answers as
indicators or direct evidence of abuse. The second aspect involves understanding
how abuse affects those who suffer it. It involves recognizing the symptoms
associated with abuse and attributing them appropriately to their source.
Professionals within the family court system must be able to manage both aspects
of identification for adults and children. Only proficiency in this arena
will help answer the question of whether a particular case is one that can
be safely managed within the paradigm of conflict or must instead be treated
as falling within the paradigm of abuse.
ADULTS
There are many reasons why adult victims of
abuse may not talk about their experiences or may delay talking about them
until disclosure is essential *282
to their own or their children's safety. Acceptance of at least some violence
as the norm in intimate relationships; fear of what the abusers will do to
them or their children, family members, homes, or pets; loyalty to the abusers;
conviction that the abusers want to and are trying to stop the violence; determination
to solve the problem without outside intervention; economic dependence on
the abusers' incomes; unsuccessful prior attempts to enlist help; distrust
of helping agencies; shame; and certainty that those listening do not want
to hear the story - it is a powerful list.
Even when victims of abuse do disclose, they
are not always believed. When a woman asks a court for a restraining order,
she is usually either wearing the marks of violence or telling a story so
detailed and so immediate that her credibility is readily established. In
other proceedings, however, a victim may disclose abuse for the first time
in the context of a separation, divorce, or custody dispute. There may be
no precipitating act of violence, and the stories may be heard as an effort
to perpetuate the conflict that has poisoned the relationship or to gain leverage
in the contest over money and children. In this context, credibility is harder
to earn.
One problem with the generic training sessions
in domestic violence that have become a staple of the family court system
is that they tend to reinforce somewhat stereotyped notions of what it means
to be a batterer or a victim. These stereotypes in turn foster confidence
among professionals that they will recognize abuse and its perpetrators when
they see them and that they will know how to respond when the time comes.
In fact, however, much abuse goes undetected. In part, as I have already argued,
this is because professionals operate within frameworks that predispose them
to reinterpret abuse as something else. In part, the problem is that the reality
of abuse is more complex and variable than basic training sessions in partner
violence acknowledge and more commonplace than most professionals are comfortable
admitting.
When it comes to identifying the consequences
of abuse for adult victims, there is almost 20 years of research and a well-developed
literature from which professionals can draw. Battered women's syndrome remains
a contested term, but this is largely because its incorporation into law,
especially in defending women against criminal charges, has rendered it vulnerable
to mischaracterization and caricature and has resulted in definitions that
are both over and underinclusive. Outside this contested terrain, however,
there is a high level of consensus among mental health researchers and clinicians
about the range of physical and emotional sequelae women experience when they
are subjected to the patterns of controlling and coercive behavior, including
physical violence, which add up to abuse. [FN44]
One familiar cluster of symptoms is associated
with post-traumatic stress disorder. [FN45] The impact of abuse at the hands
of an intimate partner, however, *283 can go beyond psychological distress or dysfunction. The victim's
assumptions about her own vulnerability and safety are likely to change. She
may feel powerless to control the direction of her life. She often continues
to blame herself for the abuse. She may feel that she can no longer trust
her own perceptions and judgments. She may come to tolerate mistreatment that
seems intolerable to others, and she may appear crazy or masochistic to others
because the abuse creates in her the cognitive inconsistency of both fearing
and loving her partner, whose behavior is itself inconsistent. [FN46] In the
relational realm, victims of abuse often experience strong ongoing attachment
to and dependency on their abusers. [FN47] On the other hand, they may experience
significant difficulties in developing or trusting other relationships, including
relationships with professionals. [FN48]
Because the physical safety and emotional security
of both the adult victim and her children can depend so crucially on the outcome
of family court proceedings, it is critically important that adult victims
be encouraged to disclose to their lawyers, to family service officers and
mediators, to guardians ad litem and custody evaluators, and ultimately to
judges. It is equally important that they be assisted in building the record
that will substantiate their allegations and establish their credibility.
Finally, it is important that those who assess their credibility do so understanding
that an outsider's instinctive sense of the situation may be inaccurate, influenced
by aspects of the victim's self presentation that are themselves the product
of the abuse she has suffered.
For the adult victim who can afford legal representation,
the lawyer should take the lead in this process of identification and should
be his or her client's advocate in all the contexts in which her safety may
be at issue and her credibility on the line. When the lawyer does not take
the lead, or when the victim is not represented, there is a separate responsibility
lodged directly in the other actors with whom the victim comes in contact.
Victims will not necessarily take the initiative in sharing a history of abuse
even with their lawyers, let alone with others in the system, which means
that the onus of inquiry often falls on these others. [FN49] All must screen
for abuse and must recognize that they can do so effectively only if they
offer privacy for the initial disclosure [FN50] and safety in its aftermath.
Safety in this context must include assurances about the subsequent sharing
and useof the disclosed information. [FN51]
Screening for abuse is not something most professionals
have been trained to do, and it is not a simple task. Listeners must signal
an openness to hearing the story, however painful it is. They must ask questions
that avoid generalities and labels that may be off putting. Many women, for
example, resist describing themselves as abused or battered. The professional
must ask questions across the range of emotionally, physically, and sexually
abusive *284 behaviors in order
not to miss the abusive context of a relationship in which physical violence
has played only a small part.
A victim may be incapable of delivering a coherent
account of the abuse she has experienced, especially the first time the subject
is broached and especially if she is not practiced in disclosure. The telling
may trigger intolerably painful memories, or the memories may be fragmented
and incomplete. The professional needs an understanding of the victim's ambivalence
toward her abuser, the low self esteem and self blame that lead her to take
responsibility for the abuse, or her reluctance to acknowledge the toll it
is taking on her children, in order to arrive at a balanced understanding
of the incidents the victim is describing. It may take patient work to piece
together the truth of the victim's situation.
Given the obstacles an abused client is likely
to encounter within the family court system if she tries to limit her partner's
access to their children, it is also crucial for her lawyer or others to think
strategically with her about how to build the record that will substantiate
her claims of abuse. A preliminary study conducted in 1995 suggested that
this was an area in which family lawyers often let their clients down. [FN52]
Calls to 911; police reports; restraining orders with their supporting affidavits;
convictions and criminal records; medical records; photographs of injuries
or of property damage; the affidavits of neighbors, coworkers, friends, and
family members; answering machine tapes or notes with angry messages or threats;
journals kept by the client or her children; detailed records of problems
with provisional arrangements for child transfer all these and more may provide
actors in the family court system with the documentation they need to take
the abuse seriously.
The adult victim's experience of abuse may
affect her credibility in a number of significant ways. First, her reluctance
to disclose, inconsistencies or gaps in her story, or the incremental way
in which she shares it - all produced by the traumatic nature of her memories
may raise suspicions that she is fabricating. If her interlocutor seems to
question her story or to suggest her own complicity in the abuse, the vulnerability
that leads her to doubt her own perceptions and blame herself for her situation
may leave her unable to assert her own reality and her abuser's responsibility.
If she expresses anger or even rage toward her partner, her listener may discredit
her account as the product of hostility or vindictiveness. If she directs
that anger and rage toward safer targets, which is not uncommon, she may alienate
the very people on whose assistance she depends.
Many of these difficulties illustrate a more
generic problem: the tendency to attribute to the victim personality traits
that are not permanent aspects of her character but are instead the sequelae
of abuse. Hysterical, volatile, unreliable,
*285 confused - all these adjectives become liabilities in the context
of a custody proceeding, whether the issue is veracity in a mother's description
of her past relationship or her capacity to take primary responsibility for
her children in the future. The opposite problem arises when the listener,
versed in the symptoms of post-traumatic stress disorder, discounts the victim's
ongoing fear and anxiety about her partner's behavior, attributing them to
past trauma rather than to the very real threat of escalating violence in
the volatile context of separation and divorce. The victim herself may have
difficulty deciding how much of her fear and vigilance is rational and how
much attributable to the psychological damage her abuser has inflicted. The
problem is compounded for those who seek to understand the experience secondhand
and who lack the victim's intimate knowledge of her abuser, the patterns of
his behavior, and his potential for harm.
CHILDREN
Children too have reasons to conceal violence
between their parents. Sometimes the primary motivation is loyalty, either
to the perpetrator or to a family norm of secrecy. Children can also be silenced
by shame. Sometimes children are threatened with harm if they tell, or they
simply feel unsafe sharing the information, particularly if they have no reason
to trust the persons asking the questions. Some children fear, legitimately,
that if they talk about violence in their homes they will be taken away from
both their parents. Sometimes children deny or minimize the violence, following
the lead of one or both parents. Sometimes they assume, often based on experience,
that they will be disbelieved by adults who are themselves caught up in denial
or avoidance. A particularly painful version of this disbelief, not uncommon
in the family court system, occurs when a professional concludes that the
child has been persuaded or coerced by one parent into corroborating false
allegations of abuse by the other. [FN53]
A crucial development for children in recent
years has been research into the connections between partner abuse and child
abuse and the recognition that exposure to parental violence is, in and of
itself, injurious to children. The first published articles on the problems
of children exposed to family violence did not appear until 1975. By 1980,
there were only 3 articles published. Even in 1998, a literature search turned
up only 56 articles in peer reviewed journals, supplemented by a few review
articles and a few book chapters. [FN54] Currently, only four books focus
on the children of battered women, the first published in 1990 and the last
in 1998. [FN55] Although the field is so new that many important questions
remain, there are consistent findings
*286 sufficiently impressive that many states have enacted presumptions
against the grant of joint or sole custody to confirmed partner abusers.
First, the research confirms a significant
connection between partner abuse and child abuse, with studies showing overlaps
from 20% to 100%, with a median of 59%. [FN56] Second, it demonstrates that
children witness much more violence in their homes than parents report. [FN57]
Third, it documents a significant array of problems - physical, developmental,
emotional, and behavioral - associated with witnessing abuse. [FN58] Some
of the studies have also suggested or identified variables that may mitigate
the impact of partner violence on children who witness it, including the severity
and frequency of the violence, the level of stress experienced by the mother
and her capacity to provide appropriate parenting, whether the child was verbally
or physically abused, and other characteristics of the child or of the environment
that may provide a buffer.
In the family court context, the consulting
psychologists hired by parents or the guardians ad litem and custody evaluators
assigned by the court play a pivotal role in protecting children's interests.
The same 1995 study that criticized lawyers for their handling of domestic
violence in custody cases also reported that "custody evaluators and
guardians ad litem were the professionals least trained about domestic violence
of any actors in the civil justice system." The judges, attorneys, advocates,
court administrators, court services personnel, and law professors interviewed
for the study reported that evaluators and guardians ad litem were "heavily
influenced by the social and legal policies that facilitate contact with the
noncustodial parent without regard to the risks attendant upon contact or
relationship." The interviewees also stated that the guardians ad litem
were "not guided as much by law as by their training and predilections
about appropriate post-separation custodial arrangements. Many appear[ed]
to marginalize domestic violence as a factor with significant import for abused
adults and children in custodial outcomes." [FN59] Similar concerns were
expressed in a preliminary Massachusetts study conducted in 1998. Interviewed
respondents, all lawyers or advocates working with battered women in the family
court context, highlighted their feelings that guardians ad litem did not
view domestic violence as serious, did not understand the risks associated
with mediation and couples' counseling in the face of abuse, did not appreciate
that abusers can be skilled in manipulating the courts, allowed themselves
to be manipulated by abusive partners, and tended to pathologize victims rather
than understanding how they were affected by their experiences of abuse. The
respondents also reported that many *287 guardians ad litem lacked the clinical
training needed to assess and respond to developmental and trauma issues among
the children they interviewed. They noted that guardians ad litem were often
inattentive to safety issues for mothers or children in their recommendations
for visitation and custody. [FN60]
The problems identified in both these reports
are products of the competing paradigms and values identified in the first
part of this article. Guardians ad litem and custody evaluators, along with
many consulting psychologists who belong to the same professional community,
are trained to understand family violence in terms of conflict and the needs
of children in terms of generous access to both parents. Under attack from
those whose perspective is partner abuse and its negative impact on children,
it must be tempting for mental health professionals to circle the wagons and
defend the status quo. Instead, we must integrate the concerns of both communities,
implementing protocols and recommending outcomes that will protect abused
parents and their children from further violence and trauma, while continuing
to foster strong relationships between children and those parents who can
be counted on to treat their former partners and their children with respect,
even if sources of conflict remain.
These ambitious goals require more than superficial
training for those who serve as guardians ad litem or custody evaluators.
Some states are moving toward requiring domestic violence training for all
guardians ad litem, [FN61] while other courts have informally adopted the
practice of appointing specialists as guardians ad litem in cases where abuse
is alleged. [FN62] The same requirements could be imposed on custody evaluators.
While the idea of using specialists has its attractions, and may be an expedient
interim measure, it has at least one major limitation. It allows the nonspecialist
to lag behind in his or her professional development and would inhibit the
identification of abuse in cases where an investigation is initiated before
any formal allegation of abuse has been made. Remarkably consistent findings
that at least 50% of contested custody cases involve physical violence between
the partners [FN63] suggest that every guardian ad litem and evaluator needs
expertise in partner abuse even if some of that violence is attributable
to conflict rather than abuse. The better alternative, therefore, if the two
communities can overcome their mutual suspicion and hostility, is for regular
and ongoing lines of communication to be opened between them, enriching the
understanding of both and facilitating the transformation of practice. Until
these bridges can be built, it is inappropriate for judges to rely heavily
on the recommendations of guardians ad litem or evaluators in cases that raise
issues outside their realm of expertise. [FN64]
*288 SAFETY
One reason passions run high in these debates
is that the stakes are high. Women, children, and men die each year in abuse-related
homicides. Often, the children are the continuing link between an abused partner
and the abuser, under court-ordered arrangements that guarantee the abuser's
access to his former family and their vulnerability to him. In Boston within
the last few months, a father used a visitation transfer as an opportunity
to slash his former partner repeatedly in the face and neck even though she
had taken the precaution of arranging the transfer at a busy subway station
and had brought a male friend with her for extra security. The father was
also hospitalized with self-inflicted stab wounds. [FN65] In Washington State
just before Christmas, a father shot and killed his former wife and their
two-year-old daughter, Carli, in a car parked outside a visitation center.
Staff at the center said that in interviewing the parents they had detected
no more signs of danger than in "any other of our caseload." The
father later killed himself when he was stopped by police. [FN66]
Of course, not every case involving the breakup
of an abusive relationship ends this way. And, sadly, some cases will, no
matter how the family court system responds. But every lawyer or advocate
who works closely with abused women, and every mental health professional
who specializes in assisting victims of and witnesses to violence in the home,
lives in fear that their clients will be next to be maimed or killed or to
witness the assault or death of someone they love. As professionals, they
know that they cannot always save their clients. But, their anguish at participating
in processes that leave their clients unprotected or, worse, put them at increased
risk, is both understandable and appropriate.
Some of the risk is associated with the process
itself. Any situation that brings the parties face to face is an opportunity
for violence: a mediation session, joint interviews with a guardian ad litem,
and even a court hearing, although formal settings often feel safer than informal
ones and the courthouse offers some security. Situations that require the
parties to discuss or negotiate their differences risk stirring up explosive
feelings that may precipitate subsequent violence. In truly dangerous situations,
it is even risky for the abuser to know when and where he can locate his partner.
The greatest risk to abused parents and their
children is associated with case outcomes - the judicial orders or judicially
endorsed settlements that establish custody and visitation regimes and schedules.
Since current practice often assumes that the violence in a relationship has
been driven by conflict, it seems logical that once the parties separate,
and their residual interactions are carefully structured, violence need no
longer be feared. From the *289
perspective of abuse, however, the period following the separation is a period
of extreme volatility and increased risk. [FN67] The abuser is forced to acknowledge
his loss of control over his partner and his loss of the relationship itself,
on which he may be profoundly dependent.
Every actor in the family court system should
look at every case assuming that it may involve an abusive relationship and
the potential for violence. He or she must then ask: (1) How will I find out
if violence is a possibility here? (2) How will I gauge the level of risk
involved? and (3) What steps can I take to get my job done and contribute
to an appropriate outcome while keeping everyone safe? Gauging the level of
risk is an imperfect science, but compiling a full record of past violence
and current threats is a first step. Weighing carefully the concerns of those
who have experienced the violence firsthand is a second step, and seeking
the input of specialists is a good way to develop further expertise. Counselors
with batterers' intervention programs and domestic violence specialists in
probation departments are particularly good sources because of their extensive
experience. Developing safety plans is also an imperfect science, but victims
of abuse have their own experiences to draw from. There are also those who
do safety planning daily on a professional basis who can lend their expertise.
The task requires both experience and expertise. Even experts must avoid complacency.
The visitation center where Carli and her mother died had carefully developed
protocols. But there was a flaw. Those protocols allowed Carli's father to
leave the center after he dropped her off, with no way to check that he had
left the neighborhood. He had to wait only half an hour before Carli's mother
came to pick her up. If he had been required instead to stay on the premises,
under supervision, for half an hour after Carli's mother retrieved her, they
would have made a safe getaway. If even experts can get it wrong, learners
need all the support they can get.
Security begins with knowing that every professional
in the family court system has incorporated a careful risk assessment into
his or her analysis of the case and recommendations for its disposition. It
rests on the willingness of those same actors to make safety a priority even
when safety is inconsistent with parental access. It rests on knowing that
the community has resources, like supervised visitation programs, that can
provide safe parental access even when partner access is unsafe and that involved
professionals know about those resources and are ready to recommend them.
It grows with knowing that any negotiated settlement has, insofar as possible,
the genuine assent of the abused partner and the independent approval of someone
looking out for the children's welfare and that it meets basic safety requirements.
Security grows further with the knowledge that judges are ready to craft orders
with close attention to violence-sensitive recommendations and concerns
*290 and are willing to use all the flexibility and creativity the underlying
legal standards allow. Finally, it rests on the confidence that if the disposition
of the case proves inadequate, if it promotes or allows further abuse, the
individual who comes back to court seeking increased safety through modification
or enforcement of an order will be given careful and respectful attention.
CONCLUSION
It would be naive to expect that the complex
community of professionals who make up the family court system would already
have integrated fully new learning about partner abuse and new norms governing
the handling and disposition of cases involving abusive partners and their
adult and child victims. It would be equally naive to imagine that community
embracing new learning and new norms without expressing some uncertainty and
some reservations. On the other hand, it would be naive to expect that the
community of those who serve battered partners and their children would wait
patiently for integration to occur, when their clients remain at risk and
when, in their view, change is long overdue. The political successes of battered
women's advocates, which have resulted in legislative reform and important
expressions of organizational commitment, may, paradoxically, have impeded
change at the level of daily practice where professionals feel bullied by
a political agenda that they have not yet adopted as their own at either a
cognitive or an emotional level.
In this charged atmosphere, it is easy for
the different constituencies to take sides, for each side to accuse the other
of bad faith, and for neither side to listen with an open mind to what the
other has to say. Unaddressed, this dynamic can result in each constituency
talking only to itself, because the risks of being mischaracterized or ignored
by the other are too great and the chances of genuine communication across
party lines too small. And yet, if integration is to occur, these barriers
must be broken down and safe spaces created for professional collaboration.
With more attention to the conditions under which collaboration can flourish,
the competing paradigms can surely be brought to mesh instead of colliding
and the family court system can be made a safer place for those seeking to
escape abuse.
Clare Dalton is a full professor at Northeastern
University School of Law and executive director of the university's Domestic
Violence Institute. The institute is an interdisciplinary education, research,
and service organization that addresses the impact of domestic violence on
the lives of men, women, children, and the professionals who work with them.
She is currently coauthoring a teaching text, Domestic Violence and the Law,
which will be published in the year 2000 by Foundation Press.
[FN1].
Advocates for these vulnerable constituencies within the family court system
have achieved notable successes in what is still, after all, a relatively
short time span. In these efforts, they have been supported by an accumulating
body of information about the nature of abusers and of abusive relationships,
accumulating evidence about the linkages between partner and child abuse,
and accumulating research about the impact of abuse on both adult victims
and the children who witness violence. They have been ably and consistently
supported by such national entities as the National Council of Juvenile and
Family Court Judges, the American Bar Association, the American Medical Association,
and the American Psychological Association, all of which have endorsed and
adopted the new learning in their reports and recommendations. See, e.g.,
MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE (National Council of Juvenile and
Family Court Judges, 1994); D. Goelman and R. Valente, WHEN WILL THEY EVER
LEARN? EDUCATING TO END DOMESTIC VIOLENCE (ABA Comm. on Domestic Violence,
1997); THE IMPACT OF DOMESTIC VIOLENCE ON YOUR PRACTICE (D. M. Goelman et
al., eds., ABA Commn. on Domestic Violence, 1996); Howard Davidson, THE IMPACT
OF DOMESTIC VIOLENCE ON CHILDREN: A REPORT TO THE PRESIDENT OF THE AMERICAN
BAR ASSOCIATION (ABA, 1994); DIAGNOSTIC AND TREATMENT GUIDELINES ON DOMESTIC
VIOLENCE (Am. Med. Assn., 1994); VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN
PSYCHOLOGICAL ASSOCIATION PRESIDENTIAL TASKFORCE ON VIOLENCE AND THE FAMILY
(Am. Psychological Assn., 1996).
[FN2].
For a listing of statutes in 35 states requiring courts to consider evidence
of domestic violence or abuse of a spouse in custody or visitation determinations,
see, the Family Violence Project 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, 225 227 (1995).
[FN3].
In some states, the presumption is against the award of sole or joint custody
to perpetrators of domestic violence. See, e.g., Del. Code Ann. tit. 13, §
705A (1994); La. Rev. Stat. Ann. § 9:364(A) (West 1994); Okla. Stat. Ann.
tit. 10, § 21.1(D) (West 1995); N.D. Cent. Code § 14 05 22.3 (1993). In
others, the presumption is only against grants of joint custody to perpetrators
of domestic violence. See, e.g., Fla. Stat. Ann. § 61.13(2)(b)(2) (West 1995);
Idaho Code § 32 7178(5) (1994); Minn. Stat. Ann. § 518.17 subd. (2)(d) (West
1995); Wis. Stat. Ann. § 767.24(2)(b) 2.c (West 1994). Delaware and Florida
include an additional presumption that a child not reside with a perpetrator
of domestic violence. Del. Code Ann. tit. 13, § 705A(b) (1994); Fla. Stat.
Ann. § 61.13(2)(b)(2) (West 1995).
[FN4].
See A. E. Gerenscer, Family Mediation: Screening for Domestic Abuse, 23 Fla. St. Univ. L. Rev. 43, 51 n. 54 (1995);
National Center on Women and Family Law, State Laws Exempting Battered Women
From Mediation (1993).
[FN5].
See, e.g., Ariz. Rev. St. Ann. § 25 338 (1987); Ill. Stat. Ann. ch. 20, para.
505/5 (Smith Hurd 1991); Minn. Stat. Ann. § 256F.01 .08 (West 1992). The
National Council of Juvenile and Family Court Judges endorses supervised visitation
in section 406 of its 1994 Model Code on Domestic and Family Violence:
The insert appropriate state agency shall
provide for visitation centers throughout the state for victims of domestic
or family violence and their children to allow court ordered visitation in
a manner that protects the safety of all family members. The state agency
shall coordinate and cooperate with local governmental agencies in providing
the visitation centers.
[FN6].
Desmond Ellis and Noreen Stuckless, MEDIATING AND NEGOTIATING MARITAL CONFLICTS
34 46 (Sage, Thousand Oaks, CA, 1996).
[FN7].
Murray A. Straus, The Controversy over Domestic Violence by Women: A Methodological,
Theoretical, and Sociology of Science Analysis, 3 (Family Violence Research
Program of the Family Research Laboratory, University of New Hampshire, 1998).
[FN8].
Id., at 13. Significantly, the instrument developed by Straus and others to
measure the presence of physical violence in intimate relationships is called
the Conflict Tactics Scale. It has been criticized as an inappropriate instrument
for measuring the presence of abuse in relationships, and alternative instruments
have been proposed. Unfortunately, none of the alternatives has yet achieved
the level of replicability and reliability associated with the Conflict Tactics
Scale. See, e.g., M. F. Shepard and J. A. Campbell, The Abusive Behavior Inventory:
A Measure of Psychological and Physical Abuse, 7 J. OF INTERPERSONAL VIOLENCE
291 305 (1992).
[FN9].
Desmond Ellis and Noreen Stuckless, MEDIATING AND NEGOTIATING MARITAL CONFLICTS
13 (1996).
[FN10].
Id., at 14.
[FN11].
See, e.g., Mel Roman and William F. Haddad, THE DISPOSABLE PARENT: THE CASE
FOR JOINT CUSTODY (Holt, Rinehart & Winston, New York 1978); Miriam Galper
Cohen, COPARENTING: SHARING YOUR CHILD EQUALLY: A SOURCE BOOK FOR THE SEPARATED
OR DIVORCED FAMILY (Running Press, Philadelphia 1978); Isolina Ricci, MOM'S
HOUSE, DAD'S HOUSE: MAKING SHARED CUSTODY WORK (MacMillan, New York 1980);
Ciji Ware, SHARING PARENTHOOD AFTER DIVORCE: AN ENLIGHTENED CUSTODY GUIDE
FOR MOTHERS, FATHERS AND KIDS (Viking Press, New York 1982).
[FN12].
Particularly influential in this context was Judith S. Wallerstein and Joan
B. Kelly, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE
(1980).
[FN13].
For a more detailed discussion of these different options, see J. Schulman
and Valerie Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislation
and Its Implications for Women and Children, 12 GOLDEN GATE L. REV. 538, 546
553 (1982).
[FN14].
The Family Violence Project 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, 201 (1995).
[FN15].
Joan Zorza, "Friendly Parent" Provisions in Custody Determinations,
26 CLEARINGHOUSE REV. 921, 923 (1992).
[FN16].
Janet Johnston, Children's Adjustment in Sole Custody Compared to Joint Custody
Families and Principles for Custody Decision Making, 33 F.C.C.R. 415 (1995).
[FN17].
Were the beneficial outcomes due to joint custody itself, for example, or
to the fact that parents managing shared parenting were more cooperative and
psychologically healthier or better educated and wealthier? Should mental
health professionals recommend, or courts order, joint custody when one or
both parents oppose it? Id., at 416.
[FN18].
Id., at 421.
[FN19].
Id., at 421.
[FN20].
For an account of 11 states in which a cautionary note specific to cases involving
domestic violence is sounded through legislation, see the Family Violence
Project 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, 200 201 (1995). California, the first state to adopt a
joint custody presumption in 1979, (Cal. Civ. Code § 4600.5(a) (West 1979))
repealed it in 1989 (Cal. Civ. Code § 4600(d) (West Supp. 1989)). Utah, one
of the last states to adopt a joint custody presumption, in 1988 (§ 30 3
10.2(1)), repealed it only two years later in 1990. For an account of the
legislative histories in these two states, see Thronson v. Thronson (810 P.2d.
428 (Utah App. 1991)).
[FN21].
J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence
in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190 (1993). For an
example of the typology's influence, see the visitation risk assessment guidelines
distributed nationally by the publishers of this journal: Arline Rotman et
al., Domestic Violence Visitation Risk Assessment (Association of Family and
Conciliation Courts, 1984).
[FN22].
Id., at 193. This caveat has not always been heeded by those who have enthusiastically
adopted their framework.
[FN23].
Two recent examples of highly readable books on battering men and battering
relationships, authored by respected researchers in the field, are Donald
G. Dutton, THE BATTERER (Basic Books, New York 1995), and Neil S. Jacobson
and John M. Gottman, WHEN MEN BATTER WOMEN: NEW INSIGHTS INTO ENDING ABUSIVE
RELATIONSHIPS (Simon & Schuster, New York 1998).
[FN24].
J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence
in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN25].
See, e.g., R. P. Dobash, R. E. Dobash, K. Cavanagh, and R. Lewis, Separate
and Intersecting Realities: A Comparison of Men's and Women's Accounts of
Violence against Women, 4 VIOLENCE AGAINST WOMEN 382 (1998).
[FN26].
J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence
in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN27].
Id., at 193 198.
[FN28].
Id., at 199. The authors do conclude that mediation is clearly inappropriate
in cases of ongoing or episodic male battering or in cases involving psychotic
and paranoid reactions. They suggest it can probably be managed, with appropriate
adaptations, in other cases a finding clearly at odds with the consistent
recommendations of partner abuse specialists. Id.
[FN29].
Janet Johnston, Domestic Violence and Parent Child Relationships in Families
Disputing Custody, AUST. J. OF FAM. L. 12, 21 (1995).
[FN30].
Id., at 21.
[FN31].
Id., at 22.
[FN32].
Id.
[FN33].
For a more thorough critique, see R. L. Bancroft, A Critical Look at Janet
Johnston's Typology of Batterers, 4 DOM. VIOLENCE REPTR. 1 (1998).
[FN34].
J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence
in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN35].
Id., at 194.
[FN36].
Id.
[FN37].
Id., at 195 196.
[FN38].
Id., at 195.
[FN39].
Id.
[FN40].
Id., at 196 197.
[FN41].
Id., at 197.
[FN42].
Id.
[FN43].
Id.
[FN44].
One respected authority on this subject is psychologist Mary Ann Dutton, from
whose work the following summary borrows. Mary Ann Dutton, EMPOWERING AND
HEALING THE BATTERED WOMAN: A MODEL FOR ASSESSMENT AND INTERVENTION (Springer,
New York 1992). Another is Judith Lewis Herman, whose book TRAUMA AND RECOVERY
(Basic Books, New York 1992) draws powerful connections between the experiences
of women in long term abusive relationships, combat veterans, and prisoners
of war.
[FN45].
A victim of past abuse may experience disproportionate fear and terror triggered
by events that remind her of abusive incidents. She may find that at a physical
level these stimuli result in overarousal a pounding heart or difficulty
breathing. She may have other somatic complaints, either directly associated
with the physical abuse she has suffered or produced by the ongoing stress
that results. She may suffer intrusive flashbacks or dreams, which essentially
force her to reexperience the abuse, or she may develop avoidance responses
that assist her in minimizing or denying awareness of her abuse or numbing
her feelings about it. She may experience heightened anxiety and find herself
hypervigilant and constantly suspicious. She may be overwhelmed with anger
or rage or, on the other hand, with grief and depression. She may have difficulty
sleeping or concentrating, find her functioning impaired, or take refuge in
addictive behaviors. She may labor under the burden of shame or lowered self
esteem. Mary Ann Dutton, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL
FOR ASSESSMENT AND INTERVENTION, 59 65 (1992).
[FN46].
Id., at 65 68.
[FN47].
This mirrors the response of kidnap victims or political prisoners to their
captors. The phenomenon has been called traumatic bonding and has been analogized
to the similar Stockholm syndrome reported among hostage survivors. See id.,
at 57 58. See also D. Dutton and S. Painter, Traumatic Bonding: The Development
of Emotional Attachments in Battered Women and Other Relationships of Intermittent
Abuse, 6 VICTIMOLOGY 139 155 (1981), and F. M. Ochberg, Victims of Terrorism,
41 J. OF CLIN. PSYCHIATRY 72 74 (1980).
[FN48].
Mary Ann Dutton, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL FOR ASSESSMENT
AND INTERVENTION, 69 (1992); Judith Lewis Herman, TRAUMA AND RECOVERY 136
(1992).
[FN49].
A 1995 report criticized the bar for its failure to handle appropriately domestic
violence issues that arise in the context of custody cases. The problem begins,
the report suggested, with a failure to identify clients with experiences
of abuse. The Family Violence Project 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, 213 (1995).
[FN50].
A mediator who never interviews the parties separately or a guardian ad litem
who conducts only joint interviews with a child's parents cannot expect to
hear the abused partner's account of abuse in the relationship.
[FN51].
Different actors have differing amounts of discretion, of course, over the
disclosure of information. A victim's lawyer can absolutely assure his or
her client that information will not be shared outside their relationship
unless the client approves both the content and the context of the disclosure.
The mediator who is persuaded that a history of abuse disclosed by its victim
makes mediation inappropriate may be able to terminate mediation without explicitly
informing the abusive partner that the decision is based on the partner's
disclosures. The guardian ad litem who is also a social worker, on the other
hand, may be a mandated reporter with respect to child abuse over and above
his or her responsibility to act in the best interests of the child. If abuse
is to provide the basis for a judicial ruling, then it must inevitably become
part of a public record. However, even when there is little or no room for
maneuver about what must be disclosed, there may still be important discretionary
decisions about the process and context of disclosure, and this residual discretion
should always be used to protect the safety of victims.
[FN52].
The Family Violence Project 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, 214 (1995).
[FN53].
One author has given a label to the supposed phenomenon of mothers intentionally
alienating their children from their fathers in divorce cases, pathologizing
it under the rubric parental alienation syndrome. R. Gardner, THE PARENTAL
ALIENATION SYNDROME: A GUIDE FOR MENTAL HEALTH AND LEGAL PROFESSIONALS (Creative
Theraputics, Cresskill, New Jersey 1992). However, "no research data
support even the existence of such a syndrome or the claim that false allegations
of abuse are prevalent in divorce cases.... In fact, just the opposite seems
to be true." P. G. Jaffe and R. Geffner, Child Custody Disputes and Domestic
Violence: Critical Issues for Mental Health, Social Service, and Legal Professionals,
CHILDREN EXPOSED TO MARITAL VIOLENCE: THEORY, RESEARCH AND APPLIED ISSUES,
371, 380 81 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., APA, Washington
D.C. 1998).
[FN54].
This summary appears in George Holden, Introduction: The Development of Research
into Another Consequence of Family Violence, CHILDRENEXPOSED TO MARITAL VIOLENCE
3 4 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998).
[FN55].
Peter Jaffe, David Wolfe, and Susan Wilson, CHILDREN OF BATTERED WOMEN (Sage,
Newbury Park, CA, 1990); ENDING THE CYCLE OF VIOLENCE: COMMUNITY RESPONSES
TO CHILDREN OF BATTERED WOMEN (E. Peled, P. G. Jaffe, & J. L. Edelson,
eds., Sage, Thousand Oaks, CA, 1995); GROUPWORK WITH CHILDREN OF BATTERED
WOMEN: A PRACTITIONER'S MANUAL (E. Peled & D. Davis, eds., Sage, Thousand
Oaks, CA, 1995); CHILDREN EXPOSED TO MARITAL VIOLENCE (G. W. Holden, R. Geffner,
& E. N. Jouriles, eds., 1998).
[FN56].
G. W. Holden, Introduction: The Development of Research into Another Consequence
of Family Violence, CHILDREN EXPOSED TO MARITAL VIOLENCE, 1, 10 (G. W. Holden,
R. Geffner, & E. N. Jouriles, eds., 1998).
[FN57].
P. G. Jaffe and R. Geffner, Child Custody Disputes and Domestic Violence:
Critical Issues for Mental Health, Social Service, and Legal Professionals,
CHILDREN EXPOSED TO MARITAL VIOLENCE, 371, 374 (G. W. Holden, R. Geffner,
& E. N. Jouriles, eds., 1998): "Although many parents within violent
families think that they have protected their children from the violence,
between 80% and 90% of children indicate the opposite.... At the extreme,
when women are murdered by their husbands, children are present in approximately
25% of the cases."
[FN58].
These problems include attention deficit disorder; externalizing problems
such as aggression, anger, conduct disorder, cruelty to animals, destructiveness,
oppositional behavior and noncompliance, and drug and alcohol use; internalizing
problems such as anxiety, depression, excessive clinging, fears, shyness,
low self esteem, passivity and withdrawal, self blame, sadness, and suicidal
tendencies; symptoms of post traumatic stress disorder such as flashbacks,
nightmares, anxiety and hypervigilance, sleep disturbances, numbing of affect,
and guilt; separation anxiety; social behavior and competence problems such
as poor problem solving skills, low empathy, deficits in social skills, acceptance,
and perpetration of violence in relationships; school problems such as poor
academic performance, poor conduct, and truancy; somatic problems such as
headaches, bedwetting, insomnia, and ulcers; and obsessive compulsive disorder
and other assorted temperamental difficulties. This list is drawn from O.
W. Barnett, C. L. Miller Perrin, and R. D. Perrin FAMILY VIOLENCE ACROSS
THE LIFESPAN, 141 42 (Sage, Thousand Oaks, CA, 1997). It seems that younger
children are more likely to exhibit somatic complaints and experience greater
distress, while older children are more likely to experience one or more specific
externalizing or internalizing problems. Whether and how a child's gender
affects his or her response to parental violence is not yet clear, despite
some intriguing preliminary studies. George Holden, Introduction: The Development
of Research into Another Consequence of Family Violence, CHILDREN EXPOSED
TO MARITAL VIOLENCE 7 9 (G. W. Holden, R. Geffner, & E. N. Jouriles,
eds., 1998).
[FN59].
The Family Violence Project 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, 220 (1995).
[FN60].
Preliminary Report of the Guardian ad Litem Assessment Project, Massachusetts
Chapter of the National Association of Social Workers' Committee on Domestic
Violence and Sexual Assault, January 1998.
[FN61].
See, e.g., Supreme Court of Missouri, Standards With Comments for Guardians
ad Litem in Missouri Juvenile and Family Law Matters, Standard 16.0.
[FN62].
The Child Witness to Violence Project at Boston Medical Center in Boston,
Massachusetts, for example, has been retained as guardian ad litem by Massachusetts
probate and family courts in cases involving domestic violence.
[FN63].
See J. Pearson, Mediating When Domestic Violence Is a Factor: Policies and
Practices in Court Based Divorce Mediation Programs, 14 MEDIATION QUARTERLY
319, 320 (1997), and sources there cited.
[FN64].
The Massachusetts Supreme Judicial Court took a different position in Custody
of Vaughn, 422 Mass. 590, 598 n.10, 664 N.E.2d 434, 439 n.10 (1995):
We would hesitate a long time before suggesting
that in cases such as these, not only must both sides produce expert witnesses,
but they must be experts in family violence. A qualified clinical psychologist
with experience in family matters will ... have encountered this issue in
his training and, unfortunately, all too frequently in his clinical practice.
The two studies referenced above in notes 59
and 60, however, suggest that encountering the issue does not necessarily
translate into competence in assessing or responding to it and that some level
of specific expertise is indeed a requirement for practice in this specialized
field.
[FN65].
Beth Daley and Zachary R. Rowdy, T stop attack hurts 4: Rush hour crowd views
bloody melee, BOSTON GLOBE, B1, Oct. 20, 1998.
[FN66].
George Tibbets, Wash. Woman Couldn't Escape Husband, Associated Press, Dec.
21, 1998.
[FN67].
See, e.g., "Understanding Abuse After Separation," in Violence and
the Family: A Report of the American Psychological Association Presidential
Task Force on Violence and the Family, 39 40 (APA, Washington D.C. 1996).
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OF DOCUMENT