In no other area of family law are battered women and their children inadvertently subjected to greater physical and emotional harm than in the child custody and visitation context. Battered women are often forced to participate in custody arrangements that require mediation, unsupervised custody and visitation, and
other types of exchanges that leave them and their children vulnerable to continued abuse and control at
the hands of their batterers. Women who try to protect themselves and their children by seeking sole custody or modifications in custody arrangements such as cessation of visitation, supervised visits, or who flee with their children are penalized by having custody taken away and given to their batterers. Despite the perception that mothers always win custody, when fathers contest custody, they win sole or joint custody in 40% to 70% of the cases.1 Indeed, even in cases where abuse is reported, a batterer is twice as likely to win custody over a non-abusive parent than in cases where no abuse is reported. 2 Domestic violence
While there is no uniform law that governs child custody, all states use the same standard in determining custody arrangements, called the “best interest of the child” standard. Under that standard, courts look at a number of factors in determining what type of custody arrangement would best suit the child’s physical, intellectual, moral, and spiritual needs. Most states have separate statutes governing child custody and domestic violence. Although many states require the court to consider domestic violence in making temporary or final custody determinations, others do not. Moreover, a number of state custody
statutes make no mention of domestic violence as a factor to be considered in making custody awards. Of
equal concern are joint custody provisions that do not take into account how domestic violence puts both the
survivor and her child/children at further risk. See the section of this Legal Resource Kit entitled
“State Custody Laws That Consider Domestic Violence” for a complete list of custody statutes in the
different states. Indeed, for the battered woman, the custody and visitation processes often become a means by which a batterer furthers his abuse through attempts to continue to maintain control. Most forms of shared custody and visitation involve some type of proximity or contact between the battered woman and her abuser during the exchange of the child between parents. During these exchanges battered women are often subjected to verbal and physical harassment, stalking, assault, and threats, including the threat of child kidnapping.4 Women who deny visitation or who go to court to request a modification or supervised visitation in order to protect themselves and their children are frequently accused of trying to alienate the
child from the abusive parent.
Myths and Facts About Domestic Violence and Child Custody
The unfair treatment of battered women in custody disputes results from myths about the impact of domestic violence on women and children, as well as the widespread failures of civil protection agencies in taking women’s experiences seriously. Here are some of the common myths that persist:
Myth: It is easy for a battered woman to leave her abuser or to stop the abuse.
Fact: Fear of losing her children, pressures from religious communities to stay in the relationship, financial
dependence, the insensitivity and unresponsiveness of the justice system, and the escalation of abuse that occurs when women try to leave make it difficult for a woman to separate from her abuser. Even when a battered woman appears to “just accept” the violence, she is often making different attempts to avoid and stop the violence. Such attempts include complying with (or anticipating) a batterer’s demands, demanding that the batterer stop hisabuse, orchestrating the environment (e.g., keeping children quiet), leaving the home, calling the police, and fighting back with or without weapons.5
Myth: Battered women who take their children and flee an abusive relationship are safe from further harm.
Fact: Studies find that domestic violence escalates when battered women leave their abusers, and that
terminating a relationship results in a greater risk of fatality for battered women and their children.6 This
abuse takes the form of threats and actual violence to the mother and her children. Further, women and their
children risk additional (and sometimes fatal) harm during court ordered visitation or joint custody
arrangements. This occurs as many batterers discover that the children are a means of continuing the abuse of
a former partner. Five percent of abusive fathers threaten to kill their children's mother during visitation
with their children and 25 percent of abusive fathers threaten to harm their children during visitation.7
Myth: Domestic violence between parents does not impact their children
Fact: While most mothers in abusive relationships take precautions to shield their children from the harmful effects of violence, it is extremely difficult for them to protect their children from witnessing or
experiencing abuse. It is estimated that 87% of children who come from homes plagued by domestic violence
actually witness the abuse.8 Most children are adversely impacted by the abuse, although how they are affected may vary. Research suggests that child witnesses of domestic violence are more likely than other children to feel helpless, fearful, depressed, and anxious. They suffer both emotional and physical developmental problems, and are more likely than children who do not grow up in homes plagued by domestic violence to suffer from anxiety, low self-esteem, and depression.9 Many experts believe that child witnesses of domestic violence internalize the fear and trauma that results from witnessing violence, and are themselves likely to become perpetrators of violence in the future.10
Myth: Abuse of one parent by another parent does not mean that the abuser poses any harm or danger to the children.
Fact: While research results vary, studies have found that child abuse occurs in 25% to 70% of the families that experience domestic violence.11 Further evidence linking domestic violence to the heightened risk of harm to children can be found in a report to the Florida Governor’s Task Force on Domestic and Sexual Violence, which identified over 300 domestic violence fatalities in 1994; 73 of those victims were children. Most of the children were killed by their biological fathers. In some cases, male abusers killed their entire families, including themselves.12
Myth: Batterers who seek custody do so out of love for their children and a desire to be good parents.
Fact: Abusive fathers continue to abuse and exert control over women after separation by vigorously pursuing custody of the couple’s children.13 Batterers are twice as likely as non-physically abusive fathers to seek sole custody of their children,14 and frequently refuse to pay child support as a way to continue the financial abuse and dependence of the mother.15
Myth: Battered women raise the issue of abuse in an attempt to turn their children against the other parent in order to gain sole or primary custody.
Fact: This allegation is often leveled at women who are simply trying to make judges aware of separation violence, their children’s concerns, and other abuses by the batterer. These assertions may be in the form of so-called “syndromes” like “Parental Alienation Syndrome” (PAS) or “Divorced Mother Syndrome.”16 Regrettably, however, judges, guardians ad litem, and court-appointed custody evaluators often rely on these theories to discount the very real fears and concerns that battered women and their children bring before the court.17See the section in this Legal Resource Kit on the “A Guide to Parental Alienation Syndrome” for information on how to address these assertions (212) 226-1066
Legal Resource Kit: Domestic Violence and Child Custody
The Impact of Domestic Violence on Children
Copyright © 2005 Legal Momentum.
In recent decades, our society has slowly and reluctantly begun to lift the veil of secrecy surrounding family life and intimate relationships to reveal the shocking pervasiveness of domestic violence. Studies have shown
that more women are abused by their husbands or boyfriends each year than are injured in car accidents,
muggings, or rape.81 Nearly one in every three adult women experiences at least one physical assault by a
partner during adulthood.82 An estimated 4 million American women experience a serious assault by an
intimate partner during an average year.83 Although these statistics reflect the large number of women who are battered by their intimate partners, the numbers only begin to account for the population of women who suffer from domestic violence, which frequently includes psychological abuse and patterns of coercion and control that may not be reflected in these statistics. Women who experience domestic violence fail to report the crime to law enforcement personnel six times more often than do women who experience violence that is perpetrated by a stranger.84
II. Spouse Abuse and Child Abuse
Psychological studies have found a significant overlap between spouse abuse and child abuse. For example, one survey found that 45% of assaults on women are accompanied by physical assaults on a child in the
family,85 and an article revealed that in 30% to 60% of families where either child abuse or spouse abuse was identified, the other form of violence was also present.86
III. Children Caught in the Crossfire
Whether they are the intended targets of the abusive parent or not, children are harmed both physically and
psychologically by the abuse of their mothers. Batterers often deliberately abuse children both physically and
verbally, in order to hurt and control the mothers. Children are also accidentally harmed by blows or flying
objects aimed at their mothers, by seeing their mothers abused, and by the constant disruption that such abuse causes. There are several additional ways that children experience adult domestic violence. These include hitting or threatening a child while in its mother’s arms, taking the child hostage in order to force the mother to return to the home, forcing the child to watch assaults against the mother or to participate in the abuse, and using the child as a spy or interrogating him or her about the mother’s activities.87 Children are also told by their abusive fathers that if not for their mother’s behavior their families would be together.88 This is frequently an attempt to put pressure on the mother through the children to return to
the batterer or to drive a wedge between the mother and her children.89
IV. Witnessing the Aftermath of Violence
In addition to seeing, hearing, or being directly subjected to physical violence, many women and their children describe the aftermath of a violent event as traumatic. Children may be forced to see their mother injured and in need of help, may have to live with a father who alternates between physical violence and loving care, may witnesspolice intervention to remove a father from the home, or may have to move to a shelter for battered women.90 They may observe blood, bruises, torn clothes, broken glass, and injuries to their mother’s person as well as experience an atmosphere of tension and fear in their homes.91 Any
definition of “witnessing violence” must include all of these various ways in which children experience a violent event.92 They may see the violence or be used as a part of it. Even when they are not present, children often are aware of the violent event and experience its aftermath.93 Reports by battered mothers indicate that 87% of children witness the abuse.94 Many children actually see their father, stepfather, or mother’s boyfriend not only beat their mothers but rape them as well.95 Although some parents believe that they succeed in shielding their children from the batterer’s aggression, children often provide detailed accounts of the very events which adults report they did not witness.96 Reports by children and by adults of their memories of childhood experiences indicate that parents severely underestimate the extent to
which their children are exposed to violence.97
V. Physical and Emotional Effects of Domestic
Violence on Children Subjecting children to their mother’s victimization is a form of emotional abuse. Exposure to threats of injury, suicide attempts, verbal assault, and threats to kill evoke in children a combination of intense feelings,98 including: fear that their mother will be killed, guilt at not stopping
the violence, divided loyalties, and anger at their mother for not leaving.99 Even one episode of violence can
produce post-traumatic stress disorder in children.100 Batterers must be held responsible for causing such
trauma in children.101 Studies indicate that children who witness their fathers beating their mothers suffer emotional problems, including slowed development, sleep disturbances, and feelings of helplessness, depression, and anxiety. Many of these children exhibit more aggressive, antisocial, fearful, and inhibited behaviors. They also show lower social competence than other children.102 Children from homes
where their mothers were abused have also shown less skill in understanding how others feel and in examining situations from the other’s perspective when compared to children from non-violent households.103 Research has found that many of these children also suffer somatic symptoms. They are hospitalized more, have more colds and sore throats, and are more prone to bedwetting than children from homes without violence.104 Witnessing abuse as a child also has long-term effects. In one study, witnessing violence as a child was associated with adult reports of depression, low self-esteem among women, and trauma-related symptoms among men.105 Studies also indicate that growing up with domestic violence increases the likelihood that a child will grow up to abuse his spouse.106
VI. Abuse by Battered Women
Battered women may displace their anger at their abusers onto their children. In one study, sixteen percent of women who lived with an abusive man reported that they directed their anger toward their children. Five percent expressed this anger through violence.107 However, data from the National Center for Child Abuse and Neglect show that where there is child abuse concurrent with spouse abuse, 70% of the
violence is committed by the man.108 In most cases of child abuse, removing the children from the batterer’s
environment and placing them with the mother ends the abuse.