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