Domestic Violence in Child Custody Cases: Increasing Safety and Wellbeing for All Family Members The Institute of Continuing Legal Education July 13, 2010 Lore A. Rogers, Michigan Domestic Violence Prevention and Treatment Board Daniel Saunders, University of Michigan School of Social Work Rebecca Shiemke, Michigan Poverty Law Program 1 Overview of Domestic Violence -Lore Rogers, Staff Attorney Michigan Domestic Violence Prevention and Treatment Board 2 Why Domestic Violence Is Relevant in Custody Disputes (Jaffe, P.G. Lemon, N. & Poisson, S.E. (2002) Child Custody Disputes and Domestic Violence: Clinical and Legal Issues. Sage, Thousand Oaks, CA) Abuse Does Not End With Separation Half of Abusers Likely to be Child Abusers Children Exposed to Abuse & Poor Role Model Undermining of Non-Abusive Parent New Relationships Likely to be Violent Lengthy Litigation as Form of On-Going Control & Harassment Higher Risk of Stalking & Homicides 3 Reasons Why Focus Tends to be on Violence Against Women (Kimmel; 2002; Saunders, 2003) Some studies find men & women use force at approximately equal rates BUT: Women tend to use violence in selfdefense, especially for severe violence & homicide Women are more severely injured physically & psychologically Women are sexually assaulted & stalked at much higher rates More difficult for women to leave 4 Definitions of Domestic Violence: Different definitions based on roles & setting Social science: “Domestic violence” – use of physical force intended to physically harm. “Domestic abuse” includes physical abuse, verbal & symbolic behavior intended to harm Criminal: “Domestic assault” is assault or assault & battery by current or former intimate partner or resident of household 5 Definitions (cont.) Many practitioners: “Domestic violence” is a pattern of physical, emotional, sexual, and/or financial abuse meant to establish or maintain control in relationship (Michigan Batterer Intervention Standards) or “a pattern of coercive control” - Many call this “battering”, which seems to fit one type of violence History: some of these terms have evolved over time 6 IDENTIFYING DOMESTIC VIOLENCE •Power & Control Wheel: Look for use of power and control tactics when exploring incident and history, and gently explore for detail •“Has there ever been a time where you felt you had to use force with your partner?” Lore Rogers •“Do you have any concerns about your own emotional and/or physical safety with the other parent?” Cook County Confidential Interview Questionnaire 7 IDENTIFYING DOMESTIC VIOLENCE •“How did you and your partner make decisions about your finances? About how you would raise your children?” Lore Rogers •“Has your intimate partner ever forced you to do something you did not want to do?” ABA Tool for Attorneys to Screen for Domestic Violence, http://www.abanet.org/domviol/screeningtoolcdv.pdf 8 IDENTIFYING DOMESTIC VIOLENCE An abuser can play the role of the victim, but does not know how to play the role of a survivor Abuser wants you to sympathize with him or her in how badly s/he has it, because the partner is (pick one): a drinker, unfaithful, bad mother, poor housekeeper, unemployed and lazy, hard to live with, drug addict, unreasonable, a nag, etc. 9 IDENTIFYING DOMESTIC VIOLENCE: DESCRIBE MEANINGFUL DETAIL Does s/he provide an understandable description of incident with details? • chronological • makes sense • not missing significant pieces of time or event Abusers won’t be able to do this – things just sort of “happen” 10 IDENTIFYING DOMESTIC VIOLENCE: DESCRIBE MEANINGFUL DETAIL Example: “We were in the bedroom, and she grabbed my keys from my pants pocket, ran to the bathroom. Then she came out of the bathroom, came at me, and we ended up on the floor.” 11 IDENTIFYING DOMESTIC VIOLENCE: ACCOUNTABILITY AND BLAME Abusers typically are not accountable for their behavior – it is someone else’s fault, usually their partner’s Survivor/victim often expresses ambivalence about partner and/or partner’s behavior (“He’s not all bad.”) – Sometimes reluctant to limit or cut off partner’s contact with children (and with herself) – Sometimes express belief that s/he deserved partner’s abusive acts 12 IDENTIFYING DOMESTIC VIOLENCE: ENTITLEMENT Abuser’s sense of entitlement often will come through to set the rules for the other partner •to punish for breaking rules (“She knew she wasn’t supposed to do that”) •to retaliate •to be mad or hurt •to not have consequences for what happened (“Why did she have to bring the police into it?”) •To possess, isolate, have access to partner 13 IDENTIFYING DOMESTIC VIOLENCE: FEAR Saying one is or is not afraid of partner is not conclusive, but is an indicator Abusers not afraid – are in control Survivor may say not afraid, won’t let him control her, but discussion reveals she alters behavior so as not to set him off Abuser’s assertion that s/he’s afraid (a rare occurrence) won’t be supported by history 14 Custody and Visitation: Risk Factors and Safety Concerns - Daniel Saunders University of Michigan School of Social Work 15 Short-Term Impact of Domestic Violence on Children Exposure to violence means SEEING or HEARING verbal or physical abuse or its AFTERMATH Emotional & behavioral problems from exposure often include: – Nightmares, flashbacks, depression – Aggressive behavior – Academic problems – Teen substance abuse & truancy Preschoolers at higher risk than older children Impact similar to being directly abused (Edleson, 1999; Graham-Bermann & Edleson, 2002; Kitzmann, Gaylord, Holt, & 16 Kenny, 2003; Wolfe, Crooks, McIntyre-Smith, & Jaffe, 2004). 17 I hide under my bed when daddy hits mommy. I am scared. - “Jonathan”, age 5 18 Children’s Reactions to Fathers Children confused & ambivalent about feelings toward their fathers Some express relief father is out of house Some express sadness/longing Some children ally themselves with father and see him as a victim, especially if they have seen him arrested. Children may idealize fathers, especially if they have little contact with them. (Groves, et al., 2007) 19 Excerpts from Teen’s Letter “The past couple of years have been hard on me. It has been filled with many questions. I have been searching for answers to my questions. Why don’t my rights count? Why does the court not want to listen to me? Shouldn’t my right to be safe exceed my abusive father’s rights? . . . It made me so angry that I was being forced to visit my ‘‘father.” I hated him for what he has done to my family. He abused my brothers, my mother, and I. He didn’t just abuse us physically but mentally too. He would hurt us and make us feel like nothing. Yet, he had “Parental Rights’’ to us. . . . I have flashbacks of him on top of my brother smashing his head into the floor and my mother trying to stop it.” (Mich. Coalition Against DV Newsletter)20 Not All Children Seriously Affected - Edleson, J. Over-generalizing about impact increases risk mothers are charged with failure to protect On average children exposed show more problems than those not exposed However, within the exposed group many children show no greater problems than comparison children - 50% in some samples Protective factors in a child’s environment may prevent negative outcomes Policies need to make distinctions to avoid 21 universal “failure to protect charges” Post Separation Use of Children by Abusers (Lundy Bancroft) Blaming his absence on mother/Using children to pressure her Carrying messages (including encoded ones) to other parent Exorbitant expenditures/promises Not spending time with them or sporadic visits 22 Post Separation Use of Children By Abusers –2 (Lundy Bancroft) Undermining her parenting Talking to children about changing custody Encouraging them to disrespect her Retaliatory/intimidating custody and visitation filings Filing retaliatory child abuse reports 23 Post-separation Violence Abuse, harassment & stalking continue at fairly high rates & may increase Risk of homicide increases 25% of women had lives threatened during unsupervised visitation (Leighton, 1989) 24 Impact of Violence on Victim’s Parenting Survivors can be as nurturing as other parents BUT – From being abused many develop depression, PTSD and other problems that MAY interfere with parenting (Jaffe & Crooks, 2005) – Separation without abuse improves survivor and child’s well-being 25 Mom’s Safety = Children’s Safety Children’s safety is usually linked to their mother’s safety Enhancing mother’s safety & stability is a major avenue for children’s well-being Schechter & Edleson (1999) Center on Crime, Communities & Culture, Open Society Institute 26 Women’s decision to leave or stay Major reason for leaving: concerns over impact of violence on children AND Major reasons for staying – concern for children: – Fear financial loss – Believe the children need their father – Fear she will lose custody to likely child abuser – Fear she & her children will be stalked, abused and/or killed – Family pressures (Hardesty & Chung, 2006; Hardesty & Ganong, 2006). 27 The Many Systems-Level Traps for Survivors (Saunders, 2007) A) If I stay, I could be accused of “failing to protect” my children from violence B) If I leave quickly out of fear and do not bring my children, I will probably be accused of “abandoning” my children C.1) If I leave with my children there is a good chance my ex will stalk, harass or abuse me and my children, and my ex will find ways to use the legal system to harass me 28 C.2) If I leave & am reluctant to co-parent out of fear of past, present or future harm to myself or my child [e.g., if I want or need to relocate, keep my contact info confidential, insist on supervised visitation, am traumatized by the sight or voice of my ex] and/or C.3) If I report his threats or violence toward myself or my children, then: a) the "friendly parent" standard may be used against me, with the increased chance I will lose my children to the custody of an abuser and/or b) I will be accused of making “false allegations” of abuse and/or c) I will be labeled with “parent alienation syndrome”, with the increased chance that I will lose my children to the 29 custody of an abuser. Failure to Detect or Document DV Domestic violence often not detected or not documented in custody/visitation proceedings (Johnson, Saccuzzo & Koen, 2005; Kernic, Monary-Ernsdorff, Koepsell, & Holt, 2005). – E.g., in study of documented abuse, there were frequent failures to consider documentation of domestic abuse and/or child abuse in the custody decision (Silverman, Mesh, Cuthbert, Slote, & Bancroft, 2004). 30 History of DV Has Little Impact on Court & Mediator Decisions/Recommendations Battered & non-battered women equally likely to be awarded custody; Offenders and non-offenders are equally likely to be ordered to supervised visits (Kernic, Monary-Ernsdorff, Koepsell, & Holt, 2005; Silverman, Mesh, Cuthbert, Slote, & Bancroft, 2004). Mediators about equally likely to recommend joint legal & physical custody for DV & non-DV cases & rates of supervised & unsupervised visitation did not differ between violent and non-violent cases (Johnson et al., 2005) 31 Beneath “High Conflict” Cases High percentage of couples labeled “high conflict” are experiencing domestic violence (for review, see Jaffe & Crooks, 2007). THUS it is essential to try to detect domestic violence within “high conflict” couples 32 Common Custody Evaluation Errors (Lundy Bancroft) Over-interpretation / mis-interpretation of psychological test data (e.g. MMPI) – not done in context of trauma history Not understanding impact of domestic violence on mother's parenting Misinterpretation of children’s behavior & statements – e.g. child’s identification with father’s power, divided loyalties, following father’s lead in blaming mother 33 Custody/Visitation Decisions: Abusers’ Advantages (Saunders, 2007) Psychological traits: Men who batter tend to have chronic problems, but are skilled at hiding them Survivors have more obvious trauma symptoms (PTSD, depression, “paranoia”) from – History of abuse in intimate relationship & often in childhood – Separation violence – Fear of losing children to an abuser Psychological tests & demeanor: survivor may appear “crazy” “overly-emotional” or flat affect, “hostile” “paranoid”, “borderline” 34 Promising Developments Increased domestic violence training for judges, attorneys, evaluators and other professionals Expansion of supervised visitation programs: conditions can be ordered for abuser prior to or concurrent with visitation Differential assessment & recommendations based on type and risk level of violence “Fathering after violence” programs: Opportunities to engage offenders, heal effects of abuse, and decrease abuse of ex-partner 35 Crafting Safe and Effective Orders -Rebecca Shiemke Michigan Poverty Law Program 36 Domestic Violence & Child Custody Child Custody Act MCLA 722.21 et seq. Joint Custody: a court order that requires that a child reside alternately for specific periods with each of the parents, and/or that the parents share decision-making authority about important decisions affecting the welfare of the child. Typically referred to as “physical custody” and “legal custody.” MCLA 726a(7) 37 Joint Custody - no statutory presumption, but is encouraged Court must notify parties of it. Court must consider awarding joint custody whenever requested by either parent. Court may consider joint custody when not requested by either parent. If parties agree on it, court can only override parties’ agreement on finding by clear and convincing evidence that it is not in the child’s best interests. MCLA 726a(1) 38 Joint Custody [cont.-2] In deciding whether to order joint custody, Court must determine whether it is in the best interest of the child/ren and, in so doing, must: – Weigh the best interest factors in MCL 722.23, and – “Determine [w]hether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.” 39 Promoting Child’s Best Interests in Custody and Parenting Time Decisions Child Custody Act objectives: It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. MCL 722.27a(1). Each parent should facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. MCL 722.23(j). A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health. MCL 722.27a(3). 40 The Challenge? Reconciling the mandates and policy objectives of the Child Custody Act with the issues unique to cases where domestic violence has been, and often continues to be, a factor. Safety of children and safety of abused parent both at issue. 41 Michigan’s Best Interest Factors for Custody Decisions MCL 722.23 The sum total must be considered, evaluated and determined by the court A. Love, affection, other emotional ties existing between the parties involved & the child B. Capacity, disposition of parties to give child love, affection & guidance, & to continue the education & raising of the child in his / her religion or creed C. Capacity, disposition of parties to provide the child with food, clothing, medical care & other material needs. D. Length of time child has lived in a stable, satisfactory environment, & desirability of maintaining continuity E. Permanence, as a family F. Moral fitness of the parties unit, of the existing or proposed custodial home or homes G. Mental & physical health of H. Home, school, & community the parties record of the child I. Child’s reasonable preference, if the child is old enough to express one J. Willingness/ability to facilitate, encourage the child’s close, continuing relationship with the other party L. Any other factor the court considers relevant in a particular case K. Domestic violence, regardless of whether directed against or witnessed by the child 42 Determining Custody When establishing custody: “Best interests of the child” govern. MCL 722.23. Courts must make specific findings on each best interest factor. Overall v Overall, 203 Mich App 40 (1994). Courts are not required to give equal weight to each factor. McCain v McCain, 229 Mich App 123 (1998). 43 Best Interest Factors & Domestic Violence Although domestic violence is only one factor, show how such conduct affects each factor. Examples… 44 Factor (b): capacity and disposition to give love, affection, guidance Abusive behavior is not indicative of love and affection. Abusive behavior is inappropriate role modeling. 45 Factor (d): stable, satisfactory environment Lack of stability due to perpetrator’s use of violence. Undesirable to continue abusive environment. 46 Factor (f): moral fitness Use of violence against family members is morally unfit. Use of violence affects parental function. 47 Factor (g): mental and physical health Survivor’s PTSD or depression from the abuse often affect ability to parent. Abusers tend to have chronic psychological problems, but are skilled at hiding them. Show that the survivor has sought appropriate treatment to limit affect of mental health on ability to parent. 48 Factor (j): “friendly parent” standard Survivors have a reasonable reluctance to coparent out of fear of harm to themselves or their children. Yet may end up being labeled "unfriendly," or “uncooperative.” Thereby increasing the risk of losing their children if “friendly parent” standard weighted more heavily or domestic violence is discounted or undetected. (Saunders, 2007) 49 Factor (k): domestic violence Need not be “directed against or witnessed by the child.” Evidence of pattern of abuse, threats & violence. Abuser’s use of violence, fear and humiliation actively interferes with continuity of a nurturing relationship between abused parent and child. This directly and negatively impacts the child, even if the child has not directly witnessed abuse. 50 Joint Custody & Domestic Violence Is joint custody in the child’s best interests? 1. Joint custody is not supported by the sum total of the best interest factors. (See previous slides) 2. Most abusers are unwilling to “cooperate and generally agree” in joint decision making: No equal bargaining power No interest in negotiating differences Cooperation provides continued contact and opportunity for further abuse 51 Why sole legal custody matters Generally, a parent “shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence.” MCL 722.31 (100-mile rule) However - The rule “does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.” MCL 722.31(2) An abused parent with sole legal custody need not seek court approval to move more than 100 miles within the state. 52 Parenting Time & Domestic Violence Safety concerns: – Access to victim and child – Opportunity for continued violence – Continued violence has negative effect on child exposed – Exposes child to perpetrator’s subsequent violent relationships 53 Parenting Time Orders Use the statute: Frequency, duration and type (9 factors): – Reasonable likelihood of abuse or neglect of child during parenting time. – Reasonable likelihood of abuse of parent in the exercise of parenting time. Specific terms Reasonable terms or conditions that facilitate orderly and meaningful exercise. MCL 722.27a(6), (7), (8) 54 Orders... Sample terms: – Avoid non-specific provisions – “reasonable parenting time” “as agreed to by the parties” – Instead, use specific terms – “the first and third weekend of every month” “from Friday at 6:00 pm until Sunday at 6:00 pm” 55 Orders... Consider supervised parenting time: – Supervised visitation center is preferred for the most severe cases. – Otherwise, consider a professional, relative or friend. – Order the abuser to pay any required fee – Consider batterer intervention treatment during supervision. 56 Orders... Order can mandate interventions prior to or concurrent with supervised visitation or exchange: – Parent education groups – Fathering after violence programs – Substance abuse assessment and/or treatment – Abuser intervention programs 57 Orders... Consider tiered parenting time with interventions: 1. Supervised visitation center 2. Professionally-supervised off-site 3. Mutually acceptable lay supervisor 4. Brief unsupervised day visits 5. Longer unsupervised day visits 6. Overnights 7. Standardized parenting time 58 Orders... Specify pick-up and drop-off: – Supervised exchanges through a supervised visitation center – Curb-side at parent’s home; do not exit car – A neutral, protected location, such as a police station or public place – By named third parties 59 Orders... Specify safe means to communicate: – Electronically – Through attorneys – Through a third party – Note: Be sure this provision doesn’t conflict with provisions of any PPO 60 Orders... Consider prohibitions/conditions: – No alcohol before or during parenting time – Limit access to firearms – No disparaging comments about other parent – Successful completion of batterer intervention program 61 Orders... Build in enforcement mechanisms: – Permit cancellation if parent fails to show on time – Permit cancellation upon evidence of violation of conditions – Require a bond to assure compliance 62 63 Alternative Dispute Resolution/Mediation in Divorce & Custody Cases General advantages of ADR: Faster Preserves financial resources Preserves privacy Retains parties’ control Results in agreements that may be more readily enforceable Challenges with ADR in cases involving D.V: Gives abusers access to survivors Gives abusers opportunities to harass and intimidate survivors May require survivors to reveal sensitive information Prerequisites for successful ADR are generally lacking (imbalance in power, access to information) Is likely to produce an agreement that does not attend to a survivor’s needs or concerns 64 SCAO Mediation Screening Protocol “When domestic violence is present, the case should be presumed inappropriate for mediation.” However, the screening questions help to identify those cases with domestic violence that can mediate in a safe, fair and non coercive manner. In such cases, the protocol also suggests appropriate safeguards. 65 Thank you for your attention!! Comments & questions are welcome! 66 Additional Resources Praxis International: http://www.praxisinternational.org/ Family Violence Department, Nat’l Council of Juvenile & Family Court Judges: http://www.ncjfcj.org/dept/fvd/ Minnesota Program Development: The Duluth Model: http://www.duluth-model.org/ Leadership Council on Child Abuse & Interpersonal Violence: http://www.leadershipcouncil.org MINCAVA Electronic Clearinghouse http://www.mincava.umn.ed Minnesota Center Against Violence & Abuse 67 “Parent Alienation Syndrome”: 20 Year Legal & Scientific Analysis Jennifer Hoult, J.D., "The evidentiary admissibility of parental alienation syndrome.” Children's Legal Rights J. 2006. Precedent holds PAS inadmissible Most legal reviews are negative, e.g. “diagnosis” of truth takes on role of fact finder Not scientifically reliable or valid Circular reasoning: presumes pathology, parental contribution & no justification Hoult counters claims of PAS originator that 50 legal decisions & 23 peer reviewed articles support PAS 68 PAS Criteria Ambiguous & Thus Can Be Found in Following Cases Severe child abuse Alienation caused by severe psychiatric illness No contribution by “alienating” parent “Alienating” parent defends her legal rights Adaptive or developmentally normative alienation Mutual parental denigration 69 Dallam. S. J., & Silberg, J. L. (Jan/Feb 2006). Methods for determining veracity of abuse allegations are seriously biased in favor of alleged child molester when applying PAS Paradox: The concerned custodial parent's attempts to obtain professional assistance protecting the child constitute evidence of "alienation”. Alienated parent’s behavior is not evaluated Attorney Richard Ducote (2002) “ . . . the increased existence of valid evidence of true sexual abuse leads Gardner and his devotees to more fervently diagnose 'PAS.' Thus, 'PAS' is the criminal defense attorney's dream, since the greater the proof of the 70 crime, the greater the proof of the defense." Multiple Reasons Children Reject Parents A child's actual experiences of child abuse or lack of parental warmth from the rejected parent are as important as “alienating” behavior by other parent. (Johnston & Kelly, 2004) Abuse – including bullying, humiliation & verbal assault Anger/hurt at parent’s decision & manner of divorce Worry/sympathy for left behind parent Loyalty conflicts Disruptions in school & peer activities Boredom when visiting a parent Jealousy & resentment about involvement of new partners 71 & step-siblings (Johnston, J. 2005) Prevalence Non-lethal: – 22% of women – 7% of men reported physical assaults by a current or former spouse, cohabiting partner, boyfriend or girlfriend, or date in their lifetime (NVAWS Tjaden & Thoennes, 2000, nationally representative survey of 8,000 people) Lethal:1,159 women murdered by intimates; 385 men murdered (2004, U.S. Department of Justice's Bureau of Justice) Domestic Violence Offenses reported in Michigan in 2004: 72,796 men; 25,620 women (Uniform Crime Reports) 72