Despite hopeful signs that
we will ultimately integrate the findings and theories of those who study
conflict, violence, and abuse, tensions among and between them continue
to have a direct impact on the family court system. In the context of custody
and visitation, the explicit preference that children maintain significant
contacts with both parents after separation and divorce and the tendency
to see marital dysfunction as the product of conflict rather than abuse
have led specialists in partner abuse to accuse family courts of ignoring
abuse and its consequences for both adults and children.
The
1970s saw increasing divorce rates, a growing fathers' rights movement,
a new body of popular literature favoring shared parenting, [FN11]
and a new body of social science research assessing the impact of divorce
on children. [FN12] The literature and the data on which
it relied either asserted or was interpreted to assert two propositions,
one negative and one positive. The negative proposition was that children
who lose contact with their noncustodial parents after divorce are likely
to experience problems. The positive proposition was that children resist
the negative emotional fallout of their parents' divorces most successfully
when they have generous ongoing access to both parents. On the strength
of these propositions, state legislatures and family courts mobilized to
support shared parenting through joint custody, "friendly parent"
provisions, and generous visitation for noncustodial parents.
Joint
custody and friendly parent provisions are intimately related. Joint custody
legislation has taken a variety of forms. The weakest form simply makes
it explicit that joint custody is an option for judges to consider. A much
stronger form authorizes joint custody when either party requests it, even
if the other parent is opposed. A third variety authorizes joint custody
only when both parents are in agreement but makes the willingness of one
parent to accept joint custody a factor in determining which parent should
receive sole custody. This disadvantages the "unfriendly" parent,
the one who was unwilling to share custody. Some legislation creates a
presumption in favor of joint custody, and while parental disagreement
may rebut the presumption, the legislation may then favor awarding sole
custody to the "friendly" parent who is willing to share. [FN13]
According to the Family Violence Project of the National Council of Juvenile
and Family Court Judges, in 1995, 10 child custody statutes included a
public policy statement concerning a parent's ability to allow the child
an open, loving, and frequent relationship with the other parent. Eighteen
states included such provisions in the list of factors a court must consider
when determining the best interest of the child. [FN14]
Even in states without joint custody or friendly parent language in their
statutes, many judges act on the belief that shared access is best for
children and sole custody is best awarded to the parent most willing to
share the child. [FN15]
In this context, if judges,
mediators, or family service officers interpret abuse as conflict and attribute
violence to conflict rather than to abuse, they may well conclude that
shared parenting is still both feasible and desirable. The parents just
need to set aside their own issues and hostilities and focus on the best
interests of their children. Mediators, guardians ad litem, custody evaluators,
and judges confusing abuse with conflict may also conclude that the parents
who oppose shared parenting are acting vindictively and subordinating the
interests of the children to their own rather than expressing their legitimate
anxieties about their own and their children's ongoing safety. Ironically,
within the friendly parent framework, a mother's proper concern about her
abusive partner's fitness to parent will negatively affect her chance to
win custody, not his. At the same time, the abuser's willingness to share
the children, which assures his ongoing access to his partner and allows
him to continue to manipulate and intimidate her, will, within the same
framework, make him appear the more attractive candidate for custody.
New
research is eroding the basis on which joint custody provisions rest. Earlier
studies of shared parenting, which tended to reach positive conclusions,
used samples composed of couples who were highly motivated and committed
to making joint custody work for their children. [FN16]
Beginning in the early 1980s, and swelling in volume as the decade progressed,
new studies have emphasized the limitations of those early findings and
have raised a series of questions. [FN17] The most recent
studies conclude that there is no convincing evidence that joint custody
is either more or less beneficial than sole custody for most children.
[FN18] More important, from the perspective
of this article, is the finding that shared parenting is contraindicated
if the relationship between the parents is characterized by ongoing conflict.
As Janet Johnston summarizes this research,
The
category of male-controlled interactive violence is particularly troubling
because it describes a controlling male who is prepared to use force to
gain compliance and who escalates his use of force if his partner resists
his efforts at control. Yet, this man is not viewed by Johnston as a batterer.
[FN37] When she adds that violence in these cases arises
primarily out of "a conflict of interest or disagreement" [FN38]
between the spouses, it seems plausible that the conflict might be precisely
about the man's desire for control. When she talks about mutual verbal
provocation [FN39] in these relationships, the echo of
the justification so commonly used by batterers, that their partners provoked
them by asserting independence or failing to comply with (often unreasonable)
demands, makes Johnston's account uncomfortable reading for those whose
primary constituencies are perpetrators or victims of battering.
