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Published October 1, 2003 by Juvenile and Family Court Journal

Common Misconceptions in Addressing Domestic Violence in Child Custody Disputes

by Peter Jaffe, Claire Crooks, Samantha Poisson

In the United States and Canada, domestic violence is now clearly recognized as criminal behavior. Assault of intimate partners has gone from being ignored to being a major social issue on the public agenda. With this evolution, we have seen the emergence of specialized police training and interventions, changes in legislation to create easier access to court for protection and restraining orders, heightened awareness and established protocols and procedures for prosecutors, and judicial education. As part of this progress, the criminal justice system and relevant community services, together with researchers, have begun to focus on the needs of children exposed to domestic violence. Some laws and services have begun to address these needs because children are recognized as indirect victims of domestic violence. For example, in some U.S. jurisdictions, exposing children to domestic violence is considered a separate criminal offense, and in other  states, exposure to domestic violence can trigger the intervention of the child protection system.

The movement to recognize domestic violence as a crime has now extended to the family court in child custody proceedings. In these proceedings, judges are being asked to consider domestic violence as a significant factor in determining the appropriateness of a violent spouse becoming a custodial parent, or even whether such a parent should have regular unsupervised contact with children. Almost all U.S. states have changed child custody laws to either include domestic violence as a factor that judges have to consider in determining custody or have created a rebuttable presumption that a batterer will not have sole or joint custody.

In spite of legislative change, there have been resistance and difficulties in developing an integrated legal and service response that would meet the spirit of these legal reforms. Changes in legislation are often not matched by changes in actual practice in the field (Jaffe, Crooks, & Wolfe,2003).Service providers such as staff at shelters for abused women continue to document how domestic violence survivors are re-victimized and even endangered by child custody and visitation arrangements that allow batterers regular opportunities to renew threats and maintain power and control of former spouses.  

The relevance of domestic violence in child custody proceedings requires a significant paradigm shift away from prevailing notions of the increasing role of fathers, preference for joint custody and shared parenting plans, emphasis on mediation and conflict resolution, and the saliency of the “friendly parent” construct. In particular, the friendly parent construct is widely adopted by judges, family law lawyers, mediators, and evaluators to reward the parent who is most likely to promote contact and a positive relationship with children to the other parent. In domestic violence cases, an abuse victim who attempts to limit contact with an abuser may be deemed hostile and unfriendly, and punished for her protestations and hypervigilance.  

The purpose of this article is to document some of the gaps between the intended vision of legislative reforms and the reality for women and children separating from abusive men. Although we recognize that men can also be victims of domestic violence, the majority of victims who suffer serious harm and live in fear of their partners are women (Statistics Canada, 2001; Tjaden & Thoennes, 2000).Therefore, the focus of this article is on the barriers faced by these women and their children. We identify seven common misconceptions about the existence and relevance of domestic violence in the context of child custody disputes. Furthermore, the salience of these issues is illustrated by the findings from a qualitative study of 62 female victims of domestic violence involved in child custody disputes. These victims of domestic violence do not represent a random sample, but rather women who had accessed family court services after separation from an abusive partner. Participants were recruited through letters sent to women who had accessed legal aid and court assessment (evaluation) services to ascertain their interest in the study. In addition, advertisements and letters were sent to domestic violence service providers seeking participants for the research project. All women were offered transportation and child care costs and an honorarium to compensate them for their time. The women who volunteered consented to complete structured interviews and   questionnaires about their marriages and their children’s adjustment. Although this sample was not random, the women’s responses serve to illustrate issues that have been identified in the literature. Thus, after each of the following misconceptions are identified and exposed, a summary of the results of this study pertaining to that particular misconception will be provided. The practical implications of each issue will also be highlighted. 

To read full article click here (pdf)
 

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