Custody Disputes Involving Domestic Violence:

Making Childrens Needs A Priority

Stephen E. Doyne, Ph. D. December 6, 2002

Objectives: Understand


  

The detrimental, emotional, and physical effects of family violence on children The characteristics of the abusive personality The legal standards for determining custody How elevating childrens needs protects them from harm in cases involving domestic violence: the Brown-Simpson guardianship Browndispute

Definitions: Domestic Violence

Psychological Shouting, swearing, taunting,
threatening, degrading, demeaning, inducing fear, gender harassment, stalking Sexual Rape, incest, unwanted sexual touching, date rape, harassment Physical Slapping, shoving, hitting, mutilation, stabbing, assault, murder

Financial Withholding, diverting, embezzling,

controlling funds

Prevalence in California
How often in child custody mediation? Alexa Hurst* found:
  

Most parents reported prior violence in relationship For 76% of cases at least one parent reported at least one indicator of inter-parental violence. interParents often reported multiple violent behaviors

* Senior research analyst, Center for Families, Children and the Courts surveyed 54 of Californias 58 County Court systems (data from 2812 custody mediation cases)

Types of Violence Reported

Pushing, hitting Threats Weapons used Sexual assault No report of violent behavior
66% 48% 17% 13% 29%

Types of Violence


Mothers reported inter-parental violence intermore than fathers 48% mothers and 25% fathers reported there was physical violence in family 37% mothers and 30% fathers reported current or prior restraining order and application for orders.

Types of Violence
 

Parent demographics not closely related to reported domestic violence Parents often reported children had witness interinterparental violence Parents in cases reporting inter-parental violence interoften didnt report domestic violence to mediators 76% cases reported at least one indicator of interinterparental violence About half of cases reporting violence had current restraining orders also met in separate sessions

Batterers - No Single Profile



Dutton divided wife batterers into three subtypes (Dutton)

1. 2. 3.

Act out anger impulsively in context of intimate relationship Use violence instrumentally, and Repress or over-control a deep resentment over-

 

Statistically male rather than female. Pronounced needs for interpersonal control, but dont have healthy mechanisms to generate control

Batterers


Typically, background includes deep shaming experiences by father of eventual perpetrator, insecure attachment and exposure to violent role model (Dutton) Significant to child custody determinations is that many offenders are serial batterers Nearly two-thirds of batterers re-offend twore-

Risk Factors
  

Alcohol used during violence Substance abuse during violence Substance abuse as on ongoing mental disorder Major mental disorder (bipolar, schizophrenia, or other psychotic state, personality disorder)

Stalkers


80% of victims are prior acquaintances or former sexual intimates (Meloy) Experts believe the presence of domestic violence increases risk of stalking Though homicide rate for stalker is less than 2%, this is more than 200 times the current rate in the general population of the U. S. ThreeThree-fourths of spousal homicides after separation are preceded by stalking behavior: a long-term longpattern of threats and harassment that causes fear for safety (Walker & Meloy)

The Gift of Fear



Batterers arent always out of control when abusing. For some, heart rates drop and they become physiologically calmer This is consistent with research on psychopathy and with Gavin deBeckers explanation of domestic assault and murder:
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 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. (Gavin deBecker)

Risks to Children


Domestic Violence can have dramatic and longlong-lasting detrimental effects (Jaffe) More accurate term for domestic violence is maltreatment of women and children North American police forces report that 95% of the victims are women and children

Risks to Children


Though parents in violent families think they protect their children, 80 to 90% of children indicate the opposite is true Majority of children in violent families are aware of what occurred and can give detailed descriptions of the pattern of escalation When women are murdered by husbands, children are present approximately 25% of the time (Crawford & Gartner)

Risks to Children
The term witness or exposure to violence is not just observation of discrete events. Its a childs total experience of fear and insecurity of what happens, what they anticipate and the aftermath of physical, sexual and emotional abuse. (Jaffe)

Impact of Exposure


Preschool children may suffer nightmares or other sleep disturbances Others polarized by constant fear and anxiety. Places and people who should give greatest protection are most dangerous Also can experience more subtle signs of trauma seen using assessment and interview methodology Children exposed to parental violence hold beliefs that violence is appropriate to resolve conflicts, especially for intimate relationship (Jaffe)

Impact of Exposure


 

 

Others see physical aggression acceptable to gain respect or control in a relationship. Excusable if drinking or if victim provoked Children feel responsible. Blame self Many feel responsible for mothers safety They adjust their lives to protect mother Some refuse to attend school and later are diagnosed school phobic Adolescent boys more likely to abuse themselves Girls less likely to question violence in dating

Neurobiological Changes


Children neurobiologically adapt, exhibiting measurable change in brainstem activity because of chronic traumatic stress in violent homes (Perry) Neurobiological adapters that allow child to survive may result in increased tendency to be violent (Perry) In 14 of 16 studies, witnessing violence between parents more consistently predicts future violence than being a victim of abuse. (Hotaling and Sugarman) Violence doesnt end with separation. Ongoing issues, abuse of power and control, may play out through custody disputes, compromising childs emotional and behavioral adjustment.

Traumatic Bonding & Best Interests

 

Judges faced with paradox inherent in dynamics Courts often presented evidence showing special risks children face when placed with abuser. Risks to physical safety and emotional developmental needs. Court appointed experts downplay domestic violence and tell jurists child has close bond with parent who committed violence. Children may say they Just want to go home.

Traumatic Bonding & Best Interests



Apparent bonding between perpetrators and their children, battered or not, explained by traumatic bonding. Occurs when intermittent maltreatment patterns produce strong emotional attachments.
(Dutton)

This is reason many battered spouses stay in abusive relationships. Similarly, children may appear emotionally close to violent parent because they are afraid of them.

Problems for Victims



With current system of custody dispute resolution children are central focus in decisions about leaving batterer or staying trapped in abusive relationship Battered women cite children as reason to stay with spouse. Also, fear, economic dependency, self-blame selfand lack of community support (Hilton) Researchers suggest perpetrators have good chance of convincing judge they should have custody (Zorza) A co-parenting relationship and the impact of the coconflict on children often represents a negative influence on children

Problems for Victims



Battered spouses advised to promote a relationship and set aside past conflicts with ex-spouse, who may exbe a danger to themselves and children. If they dont, deemed unfriendly or unfit parents and can lose custody to abusive parent (Zorza) An important issue often unrecognized. Violence does not end with separation Large study of children of battered women in California shelters shows separation leads to escalation of violence and greater endangerment for mother (Jaffe) Estrangement, not argument, begets worse violence. A majority of spousal murders happened after the woman leaves. (deBecker)

Adverse Childhood Experiences (ACE) Study

Vincent Felitti, M.D., surveyed 17,421 adults at Kaiser Permanente Dept. of Preventative Medicine, San Diego. Determined that childrens exposure to adverse childhood experiences(ACEs) is the best predictor of physical health and longevity.

ACE Study


ACE experiences include psychological, physical and sexual abuse Household dysfunction includes exposure to substance abuse, mental illness, maltreatmaltreatment of mother/stepfather, criminal behavior Respondents defined as exposure to a category that responded yes to one or more questions in that category

ACE Study
Dr. Felitti found a strong graded relationship between the breadth of exposure to abuse or household dysfunction during childhood and multiple risk factors for several leading causes of death in adults.

ACE Study
Those with four or more categories of childhood exposure compared to none. A direct association between number of childhood exposures and risk factors to:
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Smoking Severe obesity Depressed mood Suicide attempts Alcoholism Illicit drug use Sexually transmitted disease Ischemic heart disease Cancer Stroke Chronic bronchitis Emphysema Diabetes

Domestic Violence a Primary Consideration

 

Abusive parents often realize after separation that most effective way to hurt other parent is emotional or psychological abuse using family courts Effective January 1, 1998, California Family Code was amended to elevate importance of safety concerns in child custody determination. The following provisions were 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 courts 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 perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.

Legal Standards for Custody



Best interest standard generally applied, with notion of two fit biological parents Domestic violence shown harmful, whether children are physically abused or not Residence with batterer as primary or joint custodian meets legal standard: detrimental to children as well as not in best interest

Legal Standards for Custody



California law requires courts to consider any history of abuse by one parent against the child or other parent To ensure safety and well-being, a finding of wellabuse by one parent of the other needs more than consideration. It needs elevation over other best interest factors.

Legal Standards for Custody



Court should consider acts and patterns of physical abuse inflicted on other persons, as well as fear of physical harm Survey of psychologists in 39 states shows custody evaluators seldom consider domestic violence in making recommendations (Ackerman) Three fourths of evaluators recommended denying sole or joint custody to parent who alienates child by negatively interpreting other parents behavior

Legal Standards for Custody



Women may not be believed, but may be seen as exaggerating incidents of violence reported to manipulate courts Recent article discusses Malicious Mother Syndrome in divorce Parental Alienation is often used as a defense by perpetrators

Brown Simpson Amicus Curiae Brief



Purpose Educate the court about enormous risks children face living with a batterer Advocate for a rebuttable presumption against sole or joint custody for perpetrators Demonstrate how the trial court ignored pertinent research by:
  

Concluding Simpson didnt fit profile of a batterer Not looking at the fathers history of domestic violence Not admitting murder evidence; not addressing possibility that Simpson murdered the mother

CoCo-Authors
   

J. Reid Meloy, Ph.D. Don Dutton, Ph.D. Peter Jaffe, Ph.D Janet Bowermaster, J.D.

Counsel
 

Stephen Temko, CFLS, CALS Paul Mones, LLB

Organizations
  

Public Law Center California Womens Law Center California Alliance Against Domestic Violence

Others
 

Professor Nancy K. D. Lemon National Council of Juvenile and Family Court Judges

Evidence: Murder Issue



Relevance of the Evidence

The murder of Sydney and Justins mother was an extraordinarily violent act showing callous disregard. If Simpson committed the crime, that information and highly relevant to whether the children should be returned to him. As Commissioner Schulte observed, it would fly in the face of reason to conclude otherwise. We by no means must conclude that Simpson committed the crime to say that if he did, the fact was certainly relevant to show a propensity toward violence on his part. It is clear then that evidence of whether Simpson killed Sydney and Justins mother was not only relevant to the termination of the guardianship, it was so relevant that it could not reasonably be ignored.

Possible Waiver


The trial judge stated she did not consider evidence of the murder issue because the guardians counsel had, in effect, waived it No such waiver on record. Question of whether Simpson killed mother, Nicole, was raised a number of times prior to judges ruling to exclude any evidence on the point

Burden of Proof


California courts have looked to overall fitness of parent in construing guardianship termination statute To distill over 50 years of case law explicating section 1601 (and predecessor statute):
The burden in a guardianship termination proceeding is not, as the trial judge assumed, upon the guardians to show clear evidence it would be detrimental to return child to natural parent. Rather, it is upon the parent to show overall fitness*

The trial judge applied the wrong burden of proof in this guardianship termination case
*Kassandra H., supra, 64 Cal.App.43th at pp. 1239-1240 1239-

Effect of Trial on Proceeding



Unfair to guardians to preclude them from introducing evidence of murder A court cannot shut its eyes to any threat just because it may have been the subject of a proceeding in a different forum*

*In re Benjamin D., supra, 227 Cal.App.3dd.at p.1470

Resolution of Doubt


As judges, we are charged with ascertaining the truth of the most important aspects of a case Any doubt whether the murder issue had been raised should have been resolved in favor of hearing it Legal logic does not have to defy common sense

Time Considerations


 

Besides waiver, court also gave undue consumption of time as reason to avoid considering murder issue This is simply untenable Trial judges discretionary authority to manage evidence doesnt extend to arbitrarily refusing to consider the most salient issue in the case

Violence Against First Wife



Guardians werent allowed to introduce evidence of violence against Marguerite prior to 1975 Judge was within her discretion to exclude evidence but, with proper showing, could have admitted evidence Any propensity toward domestic violence is highly relevant for childrens welfare

Factors Court Must Consider

  

The murder issue Propensity toward domestic violence Uprooting of children if removed from Simpsons custody Positive effects of continuing the guardianship Children's own views

Reassignment on Remand


Must address removal of Commissioner Schulte and reassignment of case to Judge Stock. No statute allows a presiding judge of superior court to remove a court commissioner without finding good cause. The constitutional empowerment of a commissioner to act until final determination could easily be rendered a dead letter

Nicoles Diaries


Guardians tried to put diaries into evidence of domestic violence. In 1966 Legislature enacted section 1370 of Evidence Code to provide that threats of physical abuse would not be excluded as hearsay. Prejudicial error not to admit diaries and let parties argue their weight and interpretation. They were relevant to domestic violent and Simpsons ability to control his temper.

Conclusion
 

Children are ate great risk living with perpetrator of domestic violence. Whether they have been abused directly or not, they experience the same psychological fears and may be traumatically bonded to batterers,even expressing a preference to live with them. In the case of spousal murder, these children may suffer secondary abuse, adopting pattern of emotional compliance because they may fear the penalty for misbehaving could be physical harm or death.

Conclusion


However, the greatest future harm children face living with a batterer is that they may live to experience the surviving parent beat another partner, recycling the climate of fear that is so detrimental to children. If they remain with a batterer, the same neurobiological adaptations that help them psychologically survive the traumas associated with domestic violence make it more likely they will grow up to be violent themselves. To prevent future detriment, childrens safety and will being should be elevated above rights of biological parents. If the justice system cannot assure childrens safety, the cycle of violence will continue.

W. H. Auden

I and the public know what all school children learn, those to whom evil is done do evil in return.