by Joan Zorza, Esq.
Most family and divorce (hereinafter, "family") court judges insist that people going through custody and divorce cases are good people, but that they often behave very badly because they are so stressed out by the pressures of the separation and court dispute. 1 The reality, as Massachusetts has found, is that nothing could be further from the truth for the men who abuse their female intimate partners and children (called either "abusers" or "batterers").
Massachusetts, which has since 1978 allowed its criminal court judges to issue restraining orders against abusers, and which now requires all judges--even the family ones, to consult offender probation records whenever a petition for protection in an abuse case is filed, keeps very careful records which it periodically analyses. It has found that almost 80% of the male abusers have criminal records,2 46% for violent offenses, and 39% have prior restraining orders entered against them and 15% for violating of those orders within the first 6 months. The men with prior orders are almost equally divided between those who have repeatedly abused one victim and those who have abusing multiple victims.3 Massachusetts also was the first state in the county to create a statewide registry for orders of protection, and it also enters orders of protection onto the defendants' probation records, so that judges automatically become aware of the defendants' prior record, even his juvenile one or cases which were later continued without any finding. This is not to say that all abusive men have records or are abnormal,4 or that no female partners of abusers ever have records. However, abusive men, although they tend to be considerably older, better educated and are more likely to be white than other criminals, and hence to have been given far more breaks in the criminal justice system, are simply not the stressed out good guys as the family courts assume. Men who abuse do so as a matter of choice, as a way to assert power and control over their female partners, punish them, to be sexually aroused, or less often because they enjoy causing pain.5
In contrast, although the family courts assign at least equal blame to the men's victims, the victims are generally no different than other women, except for having been abused and suffering the effects of that abuse. Prior to being abused, battered women are no different from other women.6 It is the effects of the abuse makes them frightened and show other effects, often making them appear less credible as witnesses.7 Courts, police and prosecutors often refuse to help battered women and discourage them from pursuing cases, but then blame them for dropping their cases. In fact, battered women are no more likely to drop cases than are other victims of violent crimes who are being threatened by their abusers. What is different is that most violent criminals never reassault or even contact their victims, but the average battered woman is beaten up three times by her batterer during the pendency of a criminal domestic violence case.8 All victims threatened with further assault want to drop their cases; battered women are actually more willing than other threatened victims to pursue their cases.9
Batterers are believed in blaming victims
Men who batter are not only adept at minimizing and denying their own abusive behaviors and their responsibility for it, they are also adept at blaming circumstances or their victims, thereby shifting responsibility and projecting their own behavior onto their victims.10 Yet while alcohol,11 poverty, and other circumstances may aggravate a situation, they do not cause violence, as most people in such circumstances do not abuse. Similarly, victims are not to blame for the violence. Unfortunately, abusive men have been very successful in convincing courts and juries that their own behavior is their female victims' fault, or that their partners provoked them, or wanted the abuse, or that bad circumstances caused the abuse.
Mental health experts lack expertise in family violence
Complicating the problem is that the courts often rely on mental health experts to evaluate the parties, yet overwhelmingly those experts have never received adequate training in domestic violence or child sexual abuse; indeed, their professional schools seldom teach the subjects and 40% of those working in mental health fields in the U.S. admit they have never received any training about intimate partner violence and even fewer received training about child sexual abuse.12 The content of what little training exists in schools in continuing education programs is often questionable or outright misleading, or so short (one hour is not that uncommon over the course of a career)13 that is clearly inadequate. Guardians ad litem, who are supposed to represent the children's best interests to the court, generally lack training in any aspects of family violence or even child development.14 Only 10% of custody evaluators know enough about incest to not be dangerous in these cases.15 Without the training and sensitivity to abuse issues, few therapists and custody evaluators even screen for it or follow up when told about it. 16 When they do follow up, batterers are adept at manipulating mental health professionals, appearing very together and, if he admits the abuse, contrite and regretful, justifying his abuse or making it appear part of a substance abuse or depression problem or caused by his partner.17 All this convinces the professional that the abuse was an aberration that will be controlled in the future, although this is most unlikely.18 Mental health evaluators and guardians ad litem, having been trained in a system that blames mothers for most problems that people have,19 are particularly vulnerable to being persuaded by fathers who deny their abuse and blame their partners, with the result being that they discredit the mother's accusations and fears, and recommend that custody to go to fathers, even when the men are abusive. The result is that domestic violence is seldom considered in the vast majority of child custody determinations,20 particularly when there are allegations of physical or sexual abuse against a child.21 This is an amazing omission, given that at least 47 states and the District of Columbia require courts to consider domestic violence when making child custody determinations. (The three states which do not are Connecticut, Mississippi and Utah.)22
Judges, like mental health professionals, make the gender biased and inaccurate assumption that most domestic violence or child abuse accusations made in custody cases are falsely made for tactical gain, so take these cases far less seriously than they should.23 In fact, incest allegations are only made in 2-3% of custody cases, and mothers make few false accusations either of domestic violence24 or of child sexual abuse.25 Although no psychological test can definitively prove that someone has battered or sexually abused someone,26 many family courts require women to conclusively prove the abuse--a virtually impossible burden--or they refuse to believe that any abuse happened.
Furthermore, because most assessment tools used in custody evaluations were never developed to take into account the effects of domestic violence on victims, the tools distort the results to incorrectly show that most frightened victims are paranoid or have other psychiatric disorders, such as major depression, paranoid schizophrenia, dependent personality disorder, or borderline personality disorder,27diagnoses that will hurt her in any custody fight.28 Without experts able to refute the faulty diagnoses (and few battered women have the money to pay for such experts, even if any are available who are willing to criticize their colleagues), battered women and mothers of children who have been abused risk being assessed as incompetent mothers, and so lose custody. Despite myths put out by fathers that mothers always win custody cases, fathers actually win custody in 70% of custody disputes,29 and this is true even though most men who abuse women and children are far more likely than other fathers to fight for custody and engage in prolonged litigation.30
Batterers do not only manipulate mental health professionals. When batterers feel that their authority is being threatened, they escalate their violent and terroristic tactics, often threatening to kill or seriously injure their victims,31 their families, children or loved ones,32 and even themselves.33 After separation they often carry out these threats, hurting their partners 14 times as often after separation as when they were together.34 Most of these men also rape their female partners, and these rapes are more brutal than stranger rapes, and 10% of the rapes occur in from of the children.35 Batterers retaliate in many other ways as well, often being extremely imaginative and unpredictable. They are notorious in fighting for custody,36 even though most of them never paid much attention to the children while then they were together with the children's mother.37 Most batterers seek the children knowing that depriving the mother of custody is the best way to punish and hurt her.38 Batterers, who are notoriously poor at paying child support,39 also know that winning custody not only absolves them from having to pay child support, it may obligate the mothers to pay them child support, which they see as another way to hurt the women.
Batterers also retaliate by threatening their former partners and her children during visitation, or by shifting their abuse onto the children. It is quite common for batterers to begin abusing the child physically or sexually after the separation, or for such abuse to escalate, just as their violence tends to escalate after separation against their former partners.40 Many threaten to and actually abduct the children,41 and these abductions are as harmful to the children as when strangers kidnap them.42
Even when batterers have custody, they often refuse to make let the mothers to see their children. The same courts that are outraged when a mother fails to make the children available to the father seldom punish a father who denies visitation to the mother.
Some of these problems exist because of gender bias of individual judges, but other problems exist because the legislature has enacted laws that favor men. While most states (Washington State is the exception) encourage courts to consider in granting custody which parent will encourage a better relationship and frequent contact between the children and the other parent, courts consider only behaviors that mothers are more likely to do under this criteria, leaving out behaviors that men primarily do. Thus failing to pay spousal or child support, or failing when one could do so to legitimate the other parent's immigration status are not seen as hurtful. Yet what could be more harmful to a relationship with the children than depriving the other parent of adequate support or even the right to remain in the U.S. Indeed, changing custody because a parent has not paid child support is illegal in most states, yet custody is changed all the time when mothers do not give father access to their children.
Another way that some men retaliate is by having their parents join in the fight for custody or visitation (of course, some grandparents, often the ones from whom their son learned to be abusive in the first place, do this spontaneously). Fortunately, this was made much harder by Troxel v. Granville43, the recent U.S. Supreme Court decision which struck down Washington State's grandparent visitation statute that permitted visitation against the wishes of the parents. Both batterers and paternal grandparents and batterers also often file false or trumped up charges against their daughters-in-law or sons' girlfriends to get them in trouble and discredit them, most often with child protection agencies, but also alleging welfare or immigration fraud or criminal activity, but also in court.44
Another reason that courts have not been quicker to catch on about men's projecting their own behaviors onto their victims45 and vindictiveness against their former female partners is that while they speak very negatively about their former partners, they generally speak very positively about their current ones.46 This is typical of men, but few courts or mental health practitioners are aware of it, and are fooled into thinking the men must be objective, and thus what they say about their former partners must be accurate. Yet once the men break up with their current partners they will start publicly devaluing.
Some courts are wising up to men's retaliatory tactics, because many involve abusing the courts. Many abusers learn that cross or counterclaims often cancel out their victims; prior claims, and that filing contempts shifts the focus to their victims.47 Most batterers know they can bring criminal and contempt charges at no expense to the abusers, but they take an enormous financial and emotional cost on their victims. The result is that many abusive men drag on the litigation and file spurious claims openly acknowledging they are trying to drive their victims onto welfare or into homelessness; half of all homeless women and children in the U.S. are homeless because of domestic violence.48 Occasionally it is only when the abuser accuses the judge or other court players of impropriety or attacks them or those helping their partners, such as shelter workers,49 that the court catches on to their tactics. Unfortunately, some judges (and other court players, including mental health experts) become too frightened50 or vicariously traumatized51 to act sufficiently to believe or act to protect battered women. However, most abusers are far too savvy to make such accusations, attacking only their former partners.
When courts blame victims and fail to hold abusers accountable, they reinforce abuser behavior, subvert justice, disempower the victims, teach children that abusive behavior is permissible and may even be rewarded, and reinforce the cycle of violence.
1. ABA Center on Children and the Law & State Justice Institute, A Judge's Guide: Making Child-Centered Decisions in Custody Cases, 4 (Chicago, IL: ABA, 2001).
2. James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses, 89 (Boston, MA: Northeastern University Press, 1999).
3. Donald Cochran, Sandra Adams & Patrice O'Brien, From Chaps to Clarity in Understanding Domestic Violence, 3 Domestic Violence Report 65, 77-78 (1998). ).
4. American Psychological Association , Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family, 37 (Washington, DC: Author, 1996). [Hereinafter, APA.] ).
5. Evan Stark & Anne H. Flitcraft, Spouse Abuse. In Violence in America: A Public Health Approach, 123, 132-33 (Mark L. Rosenberg & Mary Ann Fenley, eds., New York: Oxford Press, 1991); Ola W. Barnett & Alyce D. LaViolette, It Could Happen to Anyone, 63 (Thousand Oaks, CA: Sage, 1993). ).
6. Stark & Flitcraft, supra note 6, at 140-44. ).
7. Id., at 134. ).
8. Joan Zorza, Battered Women Behave Like Other Threatened Victims, 1(6) Domestic Violence Report 5 (August/September 1996). ).
9. APA, supra note 4, at 37. ).
10. Id., at 81-82. ).
11. Barnett & LaViolette, supra note 5, at 77. ).
12. Felicia Cohn, Marla E. Salmon, & John D. Stobo, Confronting Chronic Neglect: The Education and Training of Health Professionals on Family Violence, 3-5 to 3-8 and 4-5 (Washington, DC: National Academy Press, 2001). ).
13. Id., entire book; APA, supra note 3, at 13. ).
14. APA, supra note 4, at 102. ).
15 . John E.B. Myers, A Mother's Nightmare Incest: A Practical Guide for Parents and Professional, 104 (Thousand Oaks, CA: Sage, 1997). ).
16. Edward W. Gondolf & Ellen W. Fisher, Battered Women as Survivors, 133-34 (New York: MacMillan, 1998). ).
17. Id, at 132. ).
18. Id., at 81. ).
19. Barnett & LaViolette, supra note 5, at 9-10. ).
20 Joan Zorza, Domestic Violence Seldom Considered in Psychologists' Custody Recommendations, 2 Domestic Violence Report, 65 and 68 (1997).
21. Myers, supra note 15. Mothers of abused children are themselves blamed for the abuse and traumatized by it and other's reactions. See, e.g., Betty Joyce Carter, Who's to Blame? Child Sexual Abuse and Non-Offending Mothers, 188 (Toronto, Ontario: University of Toronto Press, 1999). ).
22. Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Redefining Families, Reforming Custody Jurisdiction, and Refining Support Issues, 34 Family Law Quarterly 607, 652 Chart 2 (2001).).
23. A Typical Week of Restraining Orders in Massachusetts,1(4) Domestic Violence Report 3, 4 (April/May 1996). ).
24. APA, supra note 4, at 12. ).
26. Myers, supra note 15, at 46-48.
27. Edward W. Gondolf, Addressing Woman Battering in Mental Health Services, 81 (Thousand Oaks, CA: Sage, 1989). ).
28. Barnett & LaViolette, supra note 5, at 74; Gondolf, supra, note 16, at 81. ).
29. Ruth I. Abrams & John M. Greaney, Report of the Gender Bias Study of the Supreme Judicial Court [of Massachusetts], 62-63 (1989), also citing similar findings from California and the entire nation. ).
30. APA, supra note 4, at 40. ).
31. David Adams, Identifying, Assaultive Husbands in Court: You Be the Judge, 33 Boston Bar Jounal, 23-24 (July/August, 1989). ).
32. Id.; Barnett & LaViolette, supra note 5, at 50.
33. Donald Dutton & Susan K. Golant, The Batterers: A Psychological Profile, 49 (New York: BasicBooks, 1995). ).
34. Caroline Wolf Harlow, Female Victims of Violent Crime, 5, Dept. of Justice, Bureau of Statistics, NCJ-126826 (January 1991). ).
35. Ptacek, supra note 2, at 74; Lenore E. Walker, The Battered Woman Syndrome, 48 (New York: Springer Publishing Co., 1984); Jacquelyn Campbell, Community Nursing Department, Wayne State University College of Nursing, Nursing Assessment for Risk of Homicide with Battered Women (1986). ).
36. Barnett & LaViolette, supra, note 5, at 50; APA, supra note 4, at 100; Marsha .B. Liss & Geraldine Butts Stahly, Domestic Violence and Child Custody, in Battering and Family Therapy: A Feminist Perspective, 175, 179 & 181 (Marsali Hansen & Michèle Harway, eds., Thousand Oaks, CA: Sage, 1993) ).
37. Catherine Kirkwood, Leaving Abusive Partners, 54-55 (1993); Einat Peled & Duane Davis, Groupwork with Children of Battered Women: A Practitioners' Manual, 8 (Thousand Oaks, CA: Sage, 1995). ).
38. Liss & Stahly, supra note 36, at 179. ).
39. Id., at 181; Mildred Daley Pagelow, Family Violence, 311 (1984). ).
40. Harlow, supra note 35. ).
41. Geoffrey L. Grief & Rebecca L. Hager, When Parents Kidnap 4 (1992). ).
42. Id., at 205-206. ).
43. 530 U.S. 57 (2000). ).
44. Zorza, supra note 21, at 68 & 75. ).
45. Dutton & Golant, supra note 34, at 105. ).
46. David Schuldenberg & Shan Guisinger, Divorced Fathers Describe Their Former Wives: Devaluation and Contrast, Women and Divorce/Men in Divorce: Gender Differences. In Separation, Divorce and Remarriage, 61-87 (Haworth Press, 1991). ).
47. Jeffrey L. Edleson & Richard M. Tolman, Intervention for Men Who Batter: An Ecological Approach, 31 & 34 (Thousand Oaks, CA: Sage, 1992). ).
48. Joan Zorza, Woman Battering: A Major Source of Homelessness, 25 Clearinghouse Review, 421 (!991). ).
49. Ptacek, supra note 2, at 63. ).
50. Id. ).