Domestic Violence in Child Custody Cases: Increasing Safety and Wellbeing for All Family Members

1. 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

2. Overview of Domestic Violence-Lore Rogers, Staff AttorneyMichigan Domestic Violence Prevention and Treatment Board

3. 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

4. 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 self-defense, 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

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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”

11. 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.”

12. 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

13. 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

14. 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

15. Custody and Visitation: Risk Factors and Safety Concerns- Daniel SaundersUniversity of Michigan School of Social Work

16. 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, & Kenny, 2003; Wolfe, Crooks, McIntyre-Smith, & Jaffe, 2004).

18. I hide under my bed when daddy hits mommy. I am scared. - “Jonathan”, age 5

19. 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)

20. 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)

21. Not All Children Seriously Affected - Edleson, J. Over-generalizing about impact increases risk mothers are charged with failure to protect On averagechildren 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 universal “failure to protect charges”

22. 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

23. 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

24. 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)

25. 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

26. 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

27. 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).

28. 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

29. 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 custody of an abuser.

30. 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).

31. 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)

32. 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

33. 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

34. 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”

35. 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

36. Crafting Safe and Effective Orders-Rebecca ShiemkeMichigan Poverty Law Program

37. Domestic Violence & Child CustodyChild 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)

38. 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)

39. 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.” Joint Custody[cont.-2]

40. 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).

41. 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.

42. Michigan’s Best Interest Factors for Custody Decisions MCL 722.23The sum total must be considered, evaluated and determined by the court

43. 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).

44. Best Interest Factors & Domestic Violence Although domestic violence is only one factor, show how such conduct affects each factor. Examples…

45. 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.

46. Factor (d): stable, satisfactory environment Lack of stability due to perpetrator’s use of violence. Undesirable to continue abusive environment.

47. Factor (f): moral fitness Use of violence against family members is morally unfit. Use of violence affects parental function.

48. 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.

49. Survivors have a reasonable reluctance to co-parent 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) Factor (j): “friendly parent” standard

50. 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.