When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System


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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.


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.


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.


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,


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.

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