Child Custody and Visitation Decisions in Domestic Violence Cases Daniel G. Saunders

Applied Research Forum
National Online Resource Center on Violence Against Women
Child Custody and Visitation Decisions in Domestic Violence Cases:

Legal Trends, Risk Factors, and Safety Concerns (Revised 2007)
Daniel G. Saunders, Ph.D.
In consultation with Karen Oehme
It may be hard to believe that an abusive It was presumably neutral regarding parental rights.
partner can ever make good on his threat to gain Little was known then about the negative impact of
custody of the children from his victim. After all, he domestic violence on women and children, and
has a history of violent behavior and she almost domestic violence was not originally included in the
never does. Unfortunately, a surprising number of list of factors used to determine the child’s best
battered women lose custody of their children (e.g., interest.
Saccuzzo & Johnson, 2004). This document States more recently came to recognize that
describes how this can happen through uninformed domestic violence needs to be considered in custody
and biased courts, court staff, evaluators, and decisions (Dunford-Jackson, 2004; Cahn, 1991;
attorneys and how the very act of protecting ones’ Hart, 1992; for legislative updates from 1995
children can lead to their loss. It also describes the through 2005, see NCJFCJ, http://www.ncjfcj.org/
major legal and social trends surrounding custody content/blogcategory/256/302/). Every state now
and visitation decisions and the social science lists domestic violence as a factor to be considered,
evidence supporting the need to consider domestic but does not necessarily give it special weight.
violence in these decisions. It ends with some However, since the mid-1990s, states have
recommendations for custody and visitation in increasingly adopted the custody/visitation section of
domestic violence cases. the Model Code on Domestic and Family Violence
developed by the National Council of Juvenile and
Legal Trends Family Court Judges (NCJFCJ, 1994), increasing
from 10 states using the code in 1995 to 24 in 2006
Over the past 200 years, the bases for child (NCJFCJ, 1995a; 2007). These statutes use the
custody decisions have changed considerably. The model’s wording, or similar wording, that there is a
patriarchal doctrine of fathers’ ownership of “rebuttable presumption that it is detrimental to the
children gave way in the 1920s and ’30s to little child and not in the best interest of the child to be
formal preference for one parent or the other to placed in sole custody, joint legal custody, or joint
obtain custody. When given such broad discretion, physical custody with the perpetrator of family
judges tended to award custody to mothers, violence” (p. 33).¹ Although statutes have become
especially of young children. The mother-child increasingly precise regarding definitions of domestic
bond during the early, “tender years” was violence, they may leave children vulnerable to
considered essential for children’s development. In psychological abuse when it is not included in the
the 1970s, “the best interests of the children” definition (Dunford-Jackson, 2004).
became the predominant guideline, although it Statutes also address other issues about custody
remains somewhat ambiguous (Fine & Fine, 1994). and visitation, such as standards for supervised
Child Custody and Visitation Decisions in Domestic Violence Cases (October 2007) Page 1 of 18
*The production and dissemination of this publication was supported by Cooperative Agreement Number U1V/CCU324010-02 from
the Centers for Disease Control and Prevention. Its contents are solely the responsibility of the authors and do not necessarily
represent the official views of the CDC, VAWnet, or the Pennsylvania Coalition Against Domestic Violence.
VAWnet Applied Research Forum
visitation and similar safeguards (Girdner & Hoff, manuals for judges and court managers are
1996; Hart, 1990; Jaffe, Lemon, & Poisson, 2003), available, including guidelines for selecting custody
exempting battered women from mandated evaluators and guardian ad litems (Dalton, Drozd, &
mediation (Dunford-Jackson, 2004; Girdner, Wong, 2006; Maxwell & Oehme, 2001; Goelman,
1996),² protecting battered women from charges of Lehrman, & Valente, 1996; Lemon, Jaffe, & Ganley,
“child abandonment” if they flee for safety without 1995; NCJFCJ, 1995b; NCJFCJ, 2006; National
their children (Cahn, 1991), and enabling a parent to Center for State Courts, 1997). One benchbook
learn if a person involved in a custody proceeding covers cultural considerations for diverse
has been charged with certain crimes (see populations (Ramos & Runner, 1999). A recent
Pennsylvania’s Jen & Dave Program on the Web at trend is the use of “parenting coordinators” or
http://www.jendaveprogram.us/). Some recent “special masters,” a mental health or legal
statutes make it easier for victims to relocate if professional with mediation training who focuses on
needed for safety reasons (Jaffe, et al., 2003; the children’s needs and helps the parents resolve
NCJFCJ, 1995a; 1999; see Zorza, 2000). disputes. With the approval of the parties and/or the
Other legal protections are also available. For court, they can make decisions within the bounds of
example, in one state (Tennessee), if a parent alleges the court order. The Association of Family and
that a child is exposed to domestic violence, such Conciliation Courts provide guidelines for parenting
allegations cannot be used against the parent coordinators and a discussion of implementation
bringing the allegation (NCJFCJ, 2004). In another issues (AFCC, 2006; Coates, et al., 2004). The
state (Texas), a mediated agreement can be declined guidelines require that parenting coordinators have
by the court if domestic violence affected the training on domestic violence and caution that “the
victim’s ability to make the agreement (NCJFCJ, parenting coordinator’s role may be inappropriate
2005). Some states (Massachusetts, Ohio) now and potentially exploited by perpetrators of
make the presumption that custody or visitation domestic violence who have exhibited patterns of
should not be granted to anyone who is found guilty violence, threat, intimidation, and coercive control
of murdering the other parent (for a more complete over their co-parent” (AFCC, 2006, p. 165). When
review of the above trends, including legal reforms in one parent seeks to maintain dominance over
Australia, Canada, and New Zealand, see Jaffe, et another, the parenting coordinator may need to act
al. 2003). primarily as an enforcer of the court order.
Unfortunately, courts and the mental health Another legal trend is the ordering of “virtual
professionals advising them (Johnson, Saccuzzo, & visitation” (Flango, 2003; Shefts, 2002). Web cams
Koen, 2005; Fields, in press) and lawyers (Fields, and videoconferencing can supplement face-to-face
2006) may pressure women to stay tied to their visits or replace face-to-face visits in more
abusers. In addition, “friendly parent” provisions in dangerous cases. Parents can read and play games
statutes or policies create another factor for courts with their children and help them with homework.
to assess in custody decisions, favoring the parent The practice may loosen restrictions on parents
who will encourage frequent and continuing contact moving to different communities. In one court case,
with the other parent or foster a better relationship the judge ordered each parent to purchase and
between the child and the other parent (Zorza, install computer equipment that would allow video-
1992). Despite a reasonable reluctance to co-parent conferencing (Flango, 2003). In 2004, Utah passed
out of fear of harm to themselves or their children, a law stating that virtual visitation should be
battered women may end up being labeled permitted and encouraged if available. In some
“unfriendly,” thereby increasing the risk of losing states, prisons provide virtual visitation services
their children (APA, 1996). (Pennsylvania Department of Corrections, http://
Along with legal changes, training and resource www.cor.state.pa.us/dallas/site/default.asp). Virtual
VAWnet: The National Online Resource Center on Violence Against Women www.vawnet.org
visits are untested in domestic violence cases and mediation. Many states still have “friendly parent”
are likely to require the same type of monitoring that statutes that do not recognize battered women’s
occurs with telephone and in-person visits. realistic reluctance to co-parent. Domestic violence
Despite the above trends for improved training materials and guidelines are increasingly
protections, some parents and children believe the available for judges, court managers, custody
legal system has failed them. They may form evaluators and parenting coordinators. Recent
grassroots support and advocacy groups, such as trends include the use of “virtual visitation” and the
networks in Arizona (http://www.azppn.com/) and development of grass roots protective parent and
California (http://www.protectiveparents.com/), that advocacy organizations.
conduct court watches and help parents share
common court experiences, especially when they Parent Most at Risk for Physically and
lose custody when trying to protect children and Emotionally Abusing the Children
themselves from abuse. The Courageous Kids
Network in California makes suggestions to other Social science evidence can help establish which
children who are forced to live with an abuser or parent is most at risk to harm their children. The
molester when professionals do not believe them. most convincing evidence that men who batter their
They describe themselves as “a growing group of partners are also likely to batter their children comes
young people whose childhood was shattered by from a nationally representative survey (Straus,
biased and inhumane court rulings, which forced us 1983). Half the men who battered their wives also
to live with our abusive parents while restricting or abused their children. Abuse was defined as
sometimes completely eliminating contact with our violence more severe than a slap or a spanking.
loving and protective parent. We know how horrible Battered women were half as likely as men to abuse
it is to be forced into the arms of an abuser” (http:// their children. Several non-representative surveys
www.courageouskids.net/). A national organization, show similar results (reviewed in Saunders, 1994,
Kourts for Kids, works to better protect abused and Edleson, 2001). When battered women are not
children in the family courts by increasing awareness in a violent relationship, there is some evidence that
and education for judges, attorneys, guardians ad they are much less likely to direct anger toward their
litem, social workers, officers of the law, legislators, children (Walker, 1984). As expected, time away
and advocates (http://www.kourtsforkids.org/ from the abuser seems to benefit battered mothers
index.php?option=com_frontpage&Itemid=1). In and their children (Rossman, 2001).
2007, 10 mothers and a victimized child (now an Emotional abuse of children by men who batter
adult) and national and state organizations filed suit is even more likely than physical abuse because
against the United States with the Inter-American nearly all of these men’s children are exposed to
Commission on Human Rights. They claimed that domestic violence (Wolfe, Crooks, McIntyre-Smith,
the human rights of abused mothers and children & Jaffe, 2004). This exposure to domestic abuse by
were not protected because custody was awarded their fathers often constitutes a severe form of child
to abusers and child molesters (Klein, 2007; Stop abuse. The serious problems associated with
Family Violence: http://www.stopfamilyviolence.org/ witnessing abuse are now clearly documented (e.g.,
ocean/host.php?folder=3). Edleson, 1999; Graham-Bermann & Edleson,
In summary, courts in all states must now 2002; Kitzmann, Gaylord, Holt, & Kenny, 2003;
consider domestic violence in custody and visitation Wolfe, Crooks, McIntyre-Smith, & Jaffe, 2004).
decisions, but only about half of them make it the These include short- and long-term negative
primary consideration. Legal innovations include emotional and behavioral consequences for both
protections for survivors who need to relocate due boys and girls. However, one must be cautious
to safety concerns and exemptions from mandated about generalizing these findings to most or all
children since many children find resources that sponsored by the federal government is a notable
buffer the ill effects of the violence (Edleson, 2006). example (Dunford-Jackson, 2004; for information
Parents may not realize that their children can be see: http://www.thegreenbook.info/). On a policy
affected, even if they do not see the violence. For level, a few states allow evidence to show that the
example, children may be hiding in their bedrooms non-abusive spouse feared retaliation from her
listening to repeated threats, blows, and breaking partner and thus could not reasonably prevent abuse
objects. They may be afraid their mother will be to the child. However, most of these states impose
injured or killed and in many cases they intervene restrictions on how quickly the protective parent
physically (Edleson, Mbilinyi, Beeman, & must provide this evidence and how it must be done
Hagemeister, 2003). However, they may have other (Jaffe, et al., 2003).
reactions, such as divided loyalties toward their
parents, guilt about not being able to intervene Factors Related to Risk to the Children
effectively, and anger at their mothers for not leaving
(Margolin, 1998; Saunders, 1994). If mothers In a given custody case, a number of factors
cannot find safety, their fears and depression may may correctly or incorrectly be attributed to the risk
reduce their ability to nurture and support their of child abuse and exposure to domestic violence.
children as they normally would (Jaffe & Crooks, Several of these factors — parental separation,
2005). childhood victimization of the parents, the parents’
As a result of children’s exposure to domestic psychological characteristics, and abuser
violence, mothers may be unjustly blamed for interventions — are discussed next.
harming their children in cases where evaluators and
practitioners do not understand the dynamics of Parental Separation
abuse (Edleson, 1999). Cases are sometimes Parental separation or divorce does not prevent
labeled as a “failure to protect” since mothers are abuse to children or their mothers. On the contrary,
supposedly capable of protecting their children from physical abuse, harassment, and stalking of women
the physical and emotional abuse of their partners continue at fairly high rates after separation and
(Enos, 1996). Battered women may even face divorce and sometimes only begin or greatly
criminal charges (Kaufman Kantor & Little, 2003; escalate after separation (Hardesty & Chung,
Sierra, 1997) or removal of their children into foster 2006). Homicidal threats, stalking, and harassment
care (Edleson, Gassman-Pines, & Hill, 2006). affect as many as 25%-35% of survivors (e.g.,
However, battered women’s actions usually come Bachman & Saltzman, 1995; Leighton, 1989;
from their desire to care for and protect their Thoennes & Tjaden, 2000). In addition, up to a
children. They may not leave because of financial fourth of battered women report that their ex-
needs, family pressures, believing the children need a partner threatened to hurt the children or kidnap
father, or the fear that he will make good on threats them (e.g., Liss & Stahly, 1993), and children may
to harm the children or gain custody (Hardesty & witness violence more often after separation than
Chung, 2006; Hardesty & Ganong, 2006). They before (Hardesty & Chung, 2006). Separation is a
often leave the relationship when they recognize the time of increased risk of homicide for battered
impact of violence on their children, only to return women (Saunders & Browne, 2000), and these
when threatened with even greater violence or out of homicides sometimes occur in relation to custody
economic necessity (Anderson & Saunders, 2003, hearings and visitation exchanges.
2007). Innovative programs have been developed to Many abusers appear to use the legal system to
address these concerns by helping to coordinate the maintain contact and harass their ex-partners
actions of child protection, domestic violence, and (Bancroft & Silverman, 2002; Hardesty & Ganong,
family court systems. The “Greenbook Initiative” 2006), at times using extensive and lengthy litigation
(Jaffe, et al., 2003). Children may also be harmed if a battered woman’s psychological problems,
the abuser undermines their mothers’ authority, primarily depression and posttraumatic stress
disparages her character in front of the children, and disorder, appear to be reactions to the violence.
attempts to use the children to control the mother These problems seem to decrease as victims
(Bancroft & Silverman, 2004); this appears to occur become safer (Erickson, 2006). Many battered
more often after separation by the most severe women may seem very unstable, nervous, and angry
abusers (Beeble, Bybee, & Sullivan, 2007). (APA, 1996; Erickson, 2006; Crites & Coker,
Children are also likely to be exposed to renewed 1988). Others may speak with a flat affect and
violence if their fathers become involved with appear indifferent to the violence they describe
another woman. Over half of men who batter go on (Meier, 1993). These women probably suffer from
to abuse another woman (Wofford, Elliot, & the numbing symptoms of traumatic stress. The
Menard, 1994). As a result, judges should not psychological test scores of some battered women
necessarily consider the remarriage of the father as a may appear to indicate severe personality disorders
sign of stability and maturity. and mental illness. However, their behaviors and test
scores must be interpreted in the context of the
Parents’ Characteristics traumas they faced or continue to face (Dalton,
Evaluators may look to childhood risk factors of Drozd, & Wong, 2006; Dutton, 1992; Rosewater,
each parent to assess their child abuse potential. The 1987). For example, psychological test findings of
link between being abused in childhood and borderline and paranoid traits can be misleading
becoming a child abuser is not as strong as was when the impact of domestic violence is not
once thought, with about 30% of child abuse victims considered (Erickson, 2006). The psychological
becoming child abusers (Kaufman & Zigler, 1987). tactics used by abusers parallel those used against
Some evidence suggests that this link with child prisoners of war (Golding, 1999) and include threats
abuse is stronger in men than in women (Miller & of violence, forced isolation, degradation, attempts
Challas, 1981). Neither parent is likely to have to distort reality, and methods to increase
severe and chronic mental disorders (e.g., psychological dependence (Stark, 2007). Severe
schizophrenia, or bipolar disorder) (Gleason, 1997; depression and traumatic stress symptoms are the
Golding, 1999). Personality disorders, as distinct likely results (Golding, 1999). When women fear
from mental disorders, are much more likely to losing custody of children to an abusive partner, the
appear on the psychological tests of the parents. stress can be overwhelming (Erickson, 2006;
However, the parents’ personality traits and Bancroft & Silverman, 2004).
psychological disorders are generally poor
predictors of child abuse (Wolfe, 1985). In addition, Interventions for the Abuser
great care must be taken when interpreting parents’ Although there are numerous treatment
behaviors and psychological tests. Men who batter programs around the country for abusive partners
often have the types of personality disorders—such and parents, successful completion of a batterer
as anti-social, dependent, and narcissistic intervention program does not mean that the risks of
(Holtzworth-Munroe, Meehan, Herron, Rehman, & child and woman abuse are eliminated. The
Stuart, 2000)—that may keep childhood traumas evaluation of programs for men who batter is in its
and other problems hidden from evaluators and infancy, including programs for men of color
judges. (Gondolf, in press; Saunders & Hammill, 2003). A
To the extent that psychological disorders substantial proportion of women (35% on average
continue to be used to describe battered women, across a number of studies) report that physical
they can be placed at a serious disadvantage. abuse by their partners recurs within 6-12 months
Compared with the chronic problems of her partner, after treatment and psychological abuse often
remains at high levels. In controlled studies, the Joint custody can be quite beneficial for children
recidivism rates average only 5% lower for the of non-violent, low-conflict couples.³ However, joint
“treated” groups than the control groups (Babcock, custody—in particular, joint physical custody or
Green, & Robie, 2004). These results are less “shared parenting”—can obviously increase the
optimistic than those implied in the section of the opportunities for abusers to maintain control and to
Model State Statute on Domestic and Family continue or to escalate abuse toward both women
Violence (NCJFCJ, 1994) that recommends the and children. Enthusiasm for joint custody4 in the
successful completion of abuser treatment as a early 1980s was fueled by studies of couples who
condition for visitation. were highly motivated to “make it work” (Johnston,
Only two studies of programs for men who 1995). This enthusiasm has waned in recent years,
batter investigated the reduction of actual or in part because of social science findings. Solid
potential violence toward the children (Myers, 1984; evidence about the impact of divorce and custody
Stacey & Shupe, 1984). Both of these studies arrangements is difficult to find because most data
showed promising results but did not specifically are gathered at one point in time, and thus
focus on parenting issues. Special parenting statements about cause and effect are not possible
programs for men who batter have developed in (e.g., Bender, 1994). There is increasing evidence,
recent years, either as modules within existing however, that children of divorce have more
intervention programs or as stand-alone programs problems because of the conflict between the
(Edleson, Mbilinyi, & Shetty, 2003; Edleson & parents before the divorce and not because of the
Williams, 2007). divorce itself (e.g., Kelly, 1993). Johnston (1995)
In summary, contrary to what one would expect, concluded from her review of research that “highly
separation is a time of increased risk of violence, conflictual parents” (not necessarily violent) had a
abusers’ chronic problems may not be apparent, and poor prognosis for becoming cooperative parents.
the trauma from violence and continuing, intense In a study by Kelly (1993), more frequent
fears may make battered women appear “crazy.” transitions between high-conflict parents were
Furthermore, successful completion of an abuser related to more emotional and behavioral problems
intervention program does substantially reduce the of the children. If exposure to “high conflict” parents
risk of re-abuse on average. is damaging to children, then they are even more
likely to be damaged by exposure to domestic
Factors that Compromise Safety of Children violence. We now have evidence that a high
and Survivors percentage of couples labeled “high conflict” are
experiencing domestic violence, and thus attempts to
Negative outcomes for domestic violence detect domestic violence within “high conflict”
victims and their children include (1) dangerous families are crucial (for further review, see Jaffe &
offenders in contact with ex-partners and children Crooks, 2007).
due to unsupervised or poorly supervised visitation; In general, domestic violence is often not
(2) sole or joint custody of children awarded to a detected or not documented in custody/visitation
violent parent, rather than a non-violent one; and (3) proceedings (Johnson, Saccuzzo & Koen, 2005;
urging or mandating mediation that compromises Kernic, Monary-Ernsdorff, Koepsell, & Holt,
victims’ rights or places them in more danger. Such 2005). In one study that interviewed survivors with
negative outcomes are likely to be compounded for documented abuse, there were frequent failures to
women of color, lesbian mothers, survivors whose consider documentation of domestic abuse and/or
English is not proficient, and/or immigrant women child abuse in the custody decision; unsupervised
with little or no knowledge of the U.S. legal system visitation or custody was often recommended or
(Barnsley, Goldsmith, Taylor, 1996; Ramos & granted to men who used violence against their
Runner, 1999). partners and/or children (Silverman, Mesh,
Cuthbert, Slote, & Bancroft, 2004). One study than fathers (Johnston, Lee, Oleson, & Walters,
found that battered and non-battered women were 2005).
equally likely to be awarded custody; in addition, The influence of fathers’ rights groups on
offenders were just as likely as non-offenders to be evaluators and judges is unknown, but some groups
ordered to supervised visits (Kernic, et al., 2005). tend to lobby for the presumption of joint custody
Similarly, in a random sample of court cases, only and co-parenting and doubt the validity of domestic
minor differences existed between the custody violence allegations (Williams, Boggess, & Carter,
evaluation process and custody recommendations 2004). For example, the National Fathers’
for domestic violence versus non-domestic violence Resource Center and Fathers for Equal Rights
cases (Logan, Walker, Jordan, & Horvath, 2002). “demands that society acknowledge that false claims
Most fathers with protection orders against them of Domestic Violence” are used to “gain unfair
were not awarded custody (Rosen & O’Sullivan, advantage in custody and divorce cases” (NFRC,
2005); however, this was not the case when mothers 2007). They state, “Fathers’ organizations now
withdrew their petitions, which may have been from estimate that up to 80% of domestic violence
pressure from their abusers. Mediators in one study allegations against men are false allegations.”
were about equally likely to recommend joint legal Consistent with what might be expected from the
and physical custody for both domestic violence and gender bias reports, female judges in one study
non-domestic violence cases; rates of supervised showed more knowledge of domestic violence and
and unsupervised visitation also did not differ greater support for victim protections (Morrill, Dai,
between violent and non-violent cases (Johnson et Dunn, Sung, & Smith, 2005). Women of color and
al., 2005). Similarly, O’Sullivan and her colleagues immigrant women can expect to be placed in
report two studies showing that a history of “double jeopardy,” as many states report racial and
domestic violence has little impact on courts’ ethnic bias in the courts, in addition to gender bias
decisions regarding visitation (O’Sullivan, 2000; (Ramos & Runner, 1999).
O’Sullivan, King, Levin-Russell, & Horowitz, Research is also illuminating the negative impact
2006). (For further review, see Jaffe & Crooks, of “friendly parent” provisions. Zorza (1996; in
2007.) press) notes that “friendly parent” statutes and
A number of reports from state and local policies work against battered women because any
commissions on gender bias in the courts have concerns they voice about father-child contact or
documented negative outcomes. For example, safety for themselves are usually interpreted as a
negative stereotypes about women, especially about lack of cooperation and thus the father is more likely
their credibility, seem to encourage judges to to gain custody. A woman might refuse to give her
disbelieve women’s allegations about child abuse address or consent to unsupervised visitation (APA,
(Danforth & Welling, 1996; Meier, 2003; Zorza, 1996). Parents who raise concerns about child
1996). A lack of understanding about domestic sexual abuse can be severely sanctioned for doing
violence leads to accusations of lying, blaming the so. The sanctions include loss of custody to the
victim for the violence, and trivializing the violence alleged offender, restricted visitation, and being told
(e.g., Abrams & Greaney, 1989). When the abuse is not to report further abuse or take the child to a
properly taken into account, court decisions that therapist (Faller & DeVoe, 1995; Neustein &
awarded abusive fathers custody are often reversed Goetting, 1999; Neustein & Lesher, 2005). Even in
on appeal (Meier, 2003). Research evidence is now jurisdictions with a presumption that custody should
growing that allegations of domestic violence are be awarded to the non-abusive parent, a “friendly
generally not more common in disputed custody parent” provision tends to override this presumption
cases; and one study shows that mothers are more (Morrill, et al., 2005). At least 32 states have
likely to have their abuse allegations substantiated statutes with “friendly parent” provisions (Zorza, in
press). “Unfriendly behaviors” generally include only behavior of men who batter means that joint custody
those of the custodial parents and not behaviors of or sole custody to him is rarely the best option for
noncustodial parents, like nonpayment of child the safety and well-being of the children. In addition
support (Zorza, in press). to their propensity for continued violence toward
The beliefs and training of custody evaluators children and adult partners, these men are likely to
and judges in relation to outcomes have received abuse alcohol (Bennett & Williams, 2003), be poor
very little attention. Evaluators and judges may need role models (Jaffe, Lemon, & Poisson, 2003), and
more information on the continued safety risks to communicate in a hostile, manipulative manner
children from abusive fathers, the likelihood of post- (Holtzworth-Munroe, et al., 2000). As noted earlier,
separation violence, risks of mediation, the the Model Code State Statute of the National
inadmissibility of Parent Alienation Syndrome Council of Juvenile and Family Court Judges states
(Dalton, Drozd, & Wong, 2006), false allegations, that there should be a presumption that it is
and the limits of criminal justice and treatment detrimental to the child to be placed in sole or joint
interventions (Jaffe, Lemon, & Poisson, 2003; custody with a perpetrator of family violence
Saunders, 1994). Ackerman and Ackerman (1996) (NCJFCJ, 1994). The model statute emphasizes
found that psychologists who conducted child that the safety and well-being of the child and the
custody evaluations did not consider domestic parent-survivor must be primary. In addition, states
violence to be a major factor in making a should repeal friendly parent provisions or, at a
recommendation. However, three-fourths of them minimum, say that they have no weight in cases
recommended against sole or joint custody to a where domestic or family violence has occurred.
parent who “alienates the child from the other parent The perpetrator’s history of causing fear and
by negatively interpreting the other parent’s physical harm, as well as the potential for future
behavior.” In a more recent study of evaluators, Bow harm to the mother or child, should be considered.
and Boxer (2003) found that many sources of A parent’s relocation in an attempt to escape
information were used in evaluations, but evaluators violence should not be used as a factor to determine
did not tend to use domestic violence screening custody. Courts sometimes label battered women as
instruments — only 30% administered specialized “impulsive” or “uncooperative” if they leave
questionnaires, instruments, or tests pertaining to suddenly to find safety in another city or state. The
domestic violence. When domestic violence was model statute specifies that it is in the best interest of
detected, it weighed heavily in their the child to reside with the non-violent parent and
recommendations. In one study of judges, those with that this parent should be able to choose the location
domestic violence education and more knowledge of of the residence, even if it is in another state. The
domestic violence were more likely to grant sole non-custodial parent may also be denied access to
custody to abused mothers (Morrill, et al., 2005). the child’s medical and educational records if such
Some states require initial and/or continuing domestic information could be used to locate the custodial
violence education for judges,5 custody evaluators, parent.
and mediators, which is essential to close the gap The model statute (NCJFCJ, 1994) states that
between professional standards and their visitation should be granted to the perpetrator only if
implementation (Jaffe & Crooks, 2005). adequate safety provisions for the child and adult
victim can be made. Orders of visitation can specify,
Recommendations for Custody and Visitation among other things, the exchange of the child in a
protected setting, supervised visitation by a specific
Some recommendations can be made based on person or agency, completion by the perpetrator of
practice experience and the growing body of a program of intervention for perpetrators, and no
research reviewed above. The past and potential overnight visitation (NCJFCJ, 1994). If the court
allows a family member to supervise the visitation, 1999). Close coordination with family courts,
the court must set the conditions to be followed lethality assessment prior to referral, and recognition
during visitation (O’Sullivan, et al., 2006). For of common abuser behaviors are some of the
example, an order might specify that the father not ingredients needed for effective operation of these
use alcohol prior to or during a visit and that the programs (Maxwell & Oehme, 2001). Programs
child be allowed to call the mother at any time (see also need to be aware of the risks of keeping
Bancroft & Silverman, 2002, for a description of detailed intake, observation, and other records
different levels of supervision). because currently they cannot be kept confidential in
Unsupervised visitation should be allowed only family court proceedings (Stern & Oehme, 2002,
after the abuser completes a specialized program for 2007). The evaluation of visitation programs has
men who batter (APA, 1996) and does not threaten occurred only on a small scale thus far (e.g., Tutty,
or become violent for a substantial period of time. Weaver-Dunlop, Barlow, & Jesso, 2006). Finding
Practitioners need to be aware of the strong promising practices is complicated by the growing
likelihood that men who batter will become violent in recognition that not all men who batter are alike and
a new relationship and that they often use non- that interventions need to be tailored to different
violent tactics that can harm the children. Visitation types of abusers, with variations occurring by levels
should be suspended if there are repeated violations of dangerousness and the motivation to control. A
of the terms of visitation, the child is severely “think tank” of advocates and legal and mental
distressed in response to visitation, or there are clear health professionals met in 2007 to explore the
indications that the violent parent has threatened to implications of such differences for custody and
harm or flee with the child. Even with unsupervised visitation decisions (Dunford-Jackson & Salem,
visitation, it is best to have telephone contact 2007).
between parents only at scheduled times, to maintain In 2003 the Office on Violence Against Women
restraining orders to keep the offender away from of the U.S. Department of Justice began the Safe
the victim, and to transfer the child in a neutral, safe Havens program in order to increase awareness of
place with the help of a third party (Johnston, 1992). visitation/exchange programs and their community
Hart (1990) describes a number of safety planning collaborators of the special needs of domestic
strategies that can be taught to children in these violence cases. “Safety audit” reports from four
situations. demonstration sites are available, covering the role
In response to the need for safe visitation, of visitation/exchange centers in domestic violence
supervised visitation and exchange programs are cases, how to increase culturally sensitive practices,
expanding rapidly across North America. Many centers’ relationships with courts, and many other
programs follow the standards of the Supervised topics related to the infusion of domestic violence
Visitation Network, an international organization. knowledge and awareness into programming (http://
The standards include a special section on domestic www.usdoj.gov/ovw/safehavens.htm).
violence that requires policies and procedures Finally, termination of access needs to be
designed to increase safety for domestic abuse considered more seriously than in the past. Those
survivors and their children (http:// with a history of severe abuse and who have
www.svnetwork.net/Standards.html). In addition, a engaged in high levels of antisocial behavior may
number of authors and programs have described the never be able to provide the safety and nurturing
special features needed at these programs to that their children need (Jaffe & Crooks, 2005;
increase the safety of domestic abuse survivors, Stover, Van Horn, Turner, Cooper, & Lieberman,
including heightened security, staff knowledge of 2003).
domestic violence, and special court reviews In conclusion, although there is a need for much
(Maxwell & Oehme, 2001; Sheeran & Hampton, more practice experience and research, our current
4
knowledge of risk factors for continued abuse of Generally, joint physical custody is being referred to
women and children means that decision-makers here rather than joint legal custody. There is a trend
must exercise great caution in awarding custody or toward the term “shared parental rights” instead of
visitation to perpetrators of domestic violence. If “joint custody.”
visitation is granted, coordination with the courts,
5
careful safety planning, and specific conditions As of October 2006, 18 states required education
attached to the court order are crucial for lowering on domestic violence for judges (from a document
the risk of harm to children and their mothers. obtained from the National Council of Juvenile and
Family Court Judges: “State Legislation: Mandatory
Author of this document: Domestic Violence Training for Judges”).
Daniel G. Saunders, Ph.D.
Professor
Distribution Rights: This Applied Research
School of Social Work
paper and In Brief may be reprinted in its entirety
University of Michigan
or excerpted with proper acknowledgement to the
[email protected]
author(s) and VAWnet (www.vawnet.org), but may
not be altered or sold for profit.
Consultant:
Karen Oehme
Suggested Citation: Saunders, D. (2007, Octo-
Program Director ber). Child custody and visitation decisions in
Clearinghouse on Supervised Visitation domestic violence cases: Legal trends, risk
Florida State University factors, and safety concerns. Harrisburg, PA:
Tallahassee, FL VAWnet, a project of the National Resource Center
[email protected] on Domestic Violence/Pennsylvania Coalition
Against Domestic Violence. Retrieved month/day/
Endnotes year, from: http://www.vawnet.org
1
A few states set specific standards for meeting the
References
definition of “domestic violence”; for example, “con-
viction of domestic abuse” and “convicted of a felony
Abrams, R., & Greaney, J. (1989). Report of the
of the third degree or higher involving domestic vio-
Gender Bias Study of the Supreme Judicial Court,
lence.” Commonwealth of Massachusetts. Boston, MA.
2
The term “mediation” can cover many different prac- Ackerman, M. J., & Ackerman, M. C. (1996). Child
tices and is not easily defined. Although many regard custody evaluation practices: A 1996 survey of
it as always unsafe for battered women, this view is psychologists. Family Law Quarterly, 30, 565-586.
not universally held, especially if risk assessment is done
properly (e.g., Ellis & Stuckless, 2006). AFCC. (2006). Guidelines for parenting coordination:
Developed by the AFCC task force on parenting
3
Recently, however, concerns have been raised about coordination. Family Court Review, 44, 164-181.
how well joint custody works in general (e.g.,
American Psychological Association (APA). (1996).
Wallerstein, 2000).
Violence and the family: Report of the American
Psychological Association Presidential Task
Force on Violence and the Family. Washington,
DC: American Psychological Association.
Anderson, D. K., & Saunders, D. G. (2003). Leaving Bennett, L., & Williams, O. J. (2003). Substance
an abusive partner: An empirical review of predictors, abuse and men who batter. Violence Against
the process of leaving, and psychological well-being. Women, 9, 558-575.
Trauma, Violence, and Abuse, 4, 163-191.
Bow, J., & Boxer, P. (2003). Assessing allegations of
Anderson, D. K., & Saunders, D. G. (2007). The domestic violence in child custody evaluations.
postseparation psychological recovery of domestic Journal of Interpersonal Violence, 18, 1394-1410.
abuse survivors. In K. Kendall-Tackett & S.
Giacomoni (Eds.), Intimate partner violence. Cahn, N. R. (1991). Civil images of battered women:
Kingston, NJ: Civic Research Institute, Inc. The impact of domestic violence on child custody
decisions. Vanderbilt Law Review, 44, 1041.
Babcock, J. C., Green, C. E., & Robie, C. (2004).
Does batterers’ treatment work? A meta-analytic Coates, C. A., Jones, W., Bushard, P., Deutsch, R.,
review of domestic violence treatment. Clinical Hicks, B., Stahl, P., Sullivan, M. J., Sydlik, B., &
Psychology Review, 23, 1023-1053. Wistner, R. (2004). Parenting coordination for high-
conflict families. Family Court Review, 42, 246–
Bachman, R., & Saltzman, L. (1995). Violence 262.
against women: Estimates from the redesigned
survey. Washington DC: U.S. Department of Justice. Crites, L., & Coker, D. (1988). What therapists see
that judges might miss: A unique guide to custody
Bancroft, L., & Silverman, J. (2002). The batterer decisions when spouse abuse is charged. The
as parent: Addressing the impact of domestic Judges’ Journal, 27(2), 9-13, 40-43.
violence on family dynamics. Thousand Oaks, CA:
Sage. Dalton, C., Drozd, L., & Wong, F. (2006). Navigating
custody and visitation evaluations in cases with
Bancroft, L., & Silverman, J. (2004). Assessing domestic violence: A judge’s guide. Available at http://
abusers’ risk to children. In P. G. Jaffe, L. L. Baker, www.afccnet.org/pdfs/BenchGuide.pdf
& A. J. Cunningham (Eds.), Protecting children
from domestic violence: Strategies for community Danforth, G., & Welling, B. (Eds.). (1996). Achieving
interventions. NY: Guildford. equal justice for women and men in the California
courts: Final report. Judicial Council of California
Barnsley, J., Goldsmith, P., & Taylor, G. (1996). Advisory Committee on Gender Bias in the Courts.
Women and children last: Custody disputes and the San Francisco, CA: Judicial Council of California.
family “justice” system. Vancouver, BC: Vancouver Available at http://www.courtinfo.ca.gov/programs/
Custody & Access Support & Advocacy Association. access/documents/f-report.pdf
Available from: Vancouver Status of Women, #309-
877 E. Hastings St., Vancouver, BC, V6A 3Y1 ph: Dunford-Jackson, B. L. (2004). The role of family
604-255-6554. courts in domestic violence: The U.S. experience. In
P. G. Jaffe, L. L. Baker, & A. J. Cunningham (Eds.),
Beeble, M. L., Bybee, D., & Sullivan, C. M. (2007). Protecting children from domestic violence:
Abusive men’s use of children to control their Strategies for community interventions. New York,
partners and ex-partners. European Psychologist, NY: Guildford.
12(1), 54-61.
Dunford-Jackson, B. L., & Salem, P. (2007). AFCC
Bender, W. N. (1994). Joint custody: The option of and NCJFCJ cosponsor wingspread think tank on
choice. Journal of Divorce and Remarriage, 21, domestic violence and family courts. Madison, WI:
115-131. Association of Family and Conciliation Courts.
Retrieved August 3, 2007, from http://afccnet.org/
members/2007jun-Domestic_Violence_and_Family_
Courts_Think_Tank.asp
Dutton, M. A. (1992). Empowering and healing the Enos, P. (1996). Prosecuting battered mothers: State
battered woman: A model for assessment and laws failure to protect battered women and abused
intervention. New York, NY: Springer. children. Harvard Women’s Law Journal, 19, 229.
Edleson, J. L. (1999). Children’s witnessing of adult Erickson, N. S. (2006). Use of the MMPI-2 in child
domestic violence. Journal of Interpersonal custody evaluations involving battered women: What
Violence, 14(8), 839-870. does psychological research tell us? Family Law
Quarterly, 39(1), 87-108.
Edleson, J. L. (2001). Studying the co-occurrence of
child maltreatment and domestic violence in families. Faller, K., & DeVoe, E. (1995). Allegations of sexual
In S. A. Graham-Bermann & J. L. Edleson (Eds.), abuse in divorce. Journal of Child Sexual Abuse,
Domestic violence in the lives of children: The 4(4), 1–25.
future of research, intervention, and social policy.
Washington, DC: American Psychological Fields, M. D. (2006). Lawyering skills training for
Association. DV representation: Tips from a retired judge.
Domestic Violence Report, 12(1), 1-2, 11-12.
Edleson, J. L. (2006). Emerging responses to children
exposed to domestic violence. Harrisburg, PA: Fields, M. D. (in press). Getting beyond: “What did
VAWnet, a project of the National Resource Center she do to provoke him?”: Comments by a retired
on Domestic Violence/Pennsylvania Coalition Against judge on the Special Issue on Intimate Partner
Domestic Violence. Available at http:// Violence, Custody and Visitation. Violence Against
new.vawnet.org/category/Main_Doc.php?docid=585 Women.
Edleson, J. L., Gassman-Pines, J., & Hill, M. B. Fine, M. A., & Fine, D. R. (1994). An examination
(2006). Defining child exposure to domestic violence and evaluation of recent changes in divorce laws in
as neglect: Minnesota’s difficult experience. Social five western countries: A critical role of values.
Work, 51, 167- 174. Journal of Marriage and the Family, 56, 249-263.
Edleson, J. L., Mbilinyi, L. F., & Shetty, S. (2003). Flango, C. R. (2003). Science and technology for
Parenting in the context of domestic violence. San judges. Trends in 2003: Virtual visitation—Is this a
Francisco: Judicial Council of California, new option for divorcing parents? Williamsburg, VA:
Administrative Office of the Courts, Center for National Center for State Courts. Retrieved May 17,
Families, Children & the Courts. Available at http// 2007, from http://www.ncsconline.org/WC/
www.courtinfo.ca.gov/programs/cfcc/resources/ Publications/KIS_SciJud_Trends03.pdf
publications
Girdner, L. (1996). Mediation. In D. M. Goelman, F.
Edleson, J. L., Mbilinyi, L. F., Beeman, S. K., & L. Lehrman, & R. L. Valente (Eds.), The impact of
Hagemeister, A. K. (2003). How children are domestic violence on your legal practice: A
involved in adult domestic violence: Results from a lawyer’s handbook (pp. 17-21). Washington, D.C.:
four city telephone survey. Journal of Interpersonal ABA Commission on Domestic Violence.
Violence, 18(1), 18-32.
Girdner, L., & Hoff, P. M. (1996). Parental
Edleson, J. L., & Williams, O. J. (2007). Parenting abduction. In D. M. Goelman, F. L. Lehrman, & R.
by men who batter women: New directions for L. Valente (Eds.), The impact of domestic violence
assessment and intervention. New York, NY: on your legal practice: A lawyer’s handbook (pp. 11-
Oxford University Press. 16). Washington, DC: ABA Commission on Domestic
Violence.
Ellis, D., & Stuckless, N. (2006). Domestic violence,
DOVE, and divorce mediation. Family Court
Review 44, 658–671.
Gleason, W. J. (1997). Psychological and social Holtzworth-Munroe, A., Meehan, J., Herron, K.,
dysfunctions in battering men: A review. Aggression Rehman, U., & Stuart, G. (2000). Testing the
and Violent Behavior, 2, 43-52. Holtzworth-Munroe and Stuart (1994) batterer
typology. Journal of Consulting and Clinical
Goelman, D. M., Lehrman, F. L., & Valente, R.L. Psychology, 68(6), 1000-1019.
(Eds.). (1996). The impact of domestic violence on
your legal practice: A lawyer’s handbook. Jaffe, P. G., & Crooks, C. V. (2005). Understanding
Washington, DC: American Bar Association. women’s experiences parenting in the context of
domestic violence. Available at http://
Golding, J. (1999). Intimate partner violence as a risk www.vaw.umn.edu/documents/commissioned/
factor for mental disorders: A meta-analysis. Journal parentingindv/parentingindv.html
of Family Violence, 14, 99-132.
Jaffe, P. G., & Crooks, C. V. (2007). Assessing the
Gondolf, E. (in press). Culturally focused batterer best interests of the children. In J. L. Edleson & O.
counseling for African American men: A clinical trial J. Williams (Eds.), Parenting by men who batter:
of re-assault and re-arrest outcomes. Criminology New directions for assessment and intervention.
and Public Policy. New York, NY: Oxford University Press.
Graham-Bermann, S. A., & Edelson, J. L. (Eds.). Jaffe, P. G., Lemon, N. K. D., & Poisson, S. E.
(2002). Domestic violence in the lives of children: (2003). Child custody and domestic violence.
The future of research, intervention and social Thousand Oaks, CA: Sage.
policy. Washington, DC: American Psychological
Association. Johnson, N. E., Saccuzzo, D. P., & Koen, W. J.
(2005). Child custody mediation in cases of domestic
Hardesty, J. L., & Chung, G. H. (2006). Intimate violence: Empirical evidence of a failure to protect.
partner violence, parental divorce, and child custody: Violence Against Women, 11, 1022-1053.
Directions for intervention and future research.
Family Relations, 55, 200–210. Johnston, J. R. (1992). High-conflict and violent
parents in family court: Findings on children’s
Hardesty, J. L., & Ganong, L. H. (2006). A grounded adjustment, and proposed guidelines for the resolution
theory model of how women make custody decisions of custody and visitation disputes. Section III:
and manage co-parenting with abusive former Proposed guidelines for custody and visitation for
husbands. Journal of Social and Personal cases with domestic violence. Corta Madera, CA:
Relationships, 23, 543-563. Center for the Family in Transition.
Hart, B. J. (1990). Safety planning for children: Johnston, J. R. (1995). Research update: Children’s
Strategizing for unsupervised visits with batterers. adjustment in sole custody compared to joint custody
Unpublished manuscript, Pennsylvania Coalition families and principles for custody decision making.
Against Domestic Violence. Available at http:// Family and Conciliation Courts Review, 33, 415-
www.mincava.umn.edu/hart/safetyp.htm 425.
Hart, B. J. (1992). State codes on domestic violence: Johnston, J. R., Lee, S., Olesen, N. W., Walters, M.
Analysis, commentary and recommendations. G. (2005). Allegations and substantiations of abuse in
Juvenile and Family Court Journal, 43, 1-81. custody disputing families. Family Court Review, 43,
284-294.
Kaufman, J., & Zigler, E. (1987). Do abused children

become abusive parents? American Journal of
Orthopsychiatry, 57, 186-198.
Kaufman Kantor, G., & Little, L. (2003). Defining the Maxwell, M. S., & Oehme, K. (2001). Strategies to
boundaries of child neglect: When does domestic improve supervised visitation services in domestic
violence equate with failure to protect? Journal of violence cases. Available at http://
Interpersonal Violence, 18, 338-355. www.mincava.umn.edu/documents/commissioned/
strategies/strategies.html
Kelly, J. B. (1993). Current research on children’s
postdivorce adjustment: No simple answers. Family Meier, J. (1993). Notes from the underground:
and Conciliation Courts Review, 31, 29-49. Integrating psychological and legal perspectives on
domestic violence in theory and practice. Hofstra
Kernic, M. A., Monary-Ernsdorff, D. J., Koepsell, J. Law Review, 21, 1295.
K., & Holt, V. L. (2005). Children in the crossfire:
Child custody determinations among couples with a Meier, J. (2003). Domestic violence, child custody,
history of intimate partner violence. Violence and child protection: Understanding judicial resistance
against Women, 11, 991-1021. and imagining the solutions. American University
Journal of Gender, Social Policy, and Law, 11,
Kitzmann, K. M., Gaylord, N. K., Holt, A. R., & 702.
Kenny, E. D. (2003). Child witnesses to domestic
violence: A meta-analytic review. Journal of Miller, D., & Challas, G. (1981). Abused children as
Consulting and Clinical Psychology, 71, 339-352. adult parents: A twenty-five year longitudinal
study. Paper presented at the National Conference
Klein, A. (2007). United States sued for granting for Family Violence Researchers, University of New
abusers child custody. National Bulletin on Hampshire.
Domestic Violence Prevention, 13, 1.
Morrill, A. C., Dai, J., Dunn, S., Sung, I., & Smith, K.
Leighton, B. (1989). Spousal abuse in metropolitan (2005). Child custody and visitation decisions when
Toronto: Research report on the response of the the father has perpetrated violence against the
criminal justice system (Report No 1989-02). mother. Violence Against Women, 11(8), 1076-1107.
Ottawa, Ontario: Solicitor General of Canada.
Myers, C. (1984). The family violence project:
Lemon, N., Jaffe, P., & Ganley, A. (1995). Domestic Some preliminary data on a treatment program for
violence and children: Resolving custody and spouse abuse. Paper presented at the Second
visitation disputes. San Francisco, CA: Family National Conference for Family Violence
Violence Prevention Fund. Researchers, University of New Hampshire.
Liss, M. B., & Stahly, G. B. (1993). Domestic National Center for State Courts. (1997). Domestic
violence and child custody. In M. Hansen, & M. violence and child custody disputes: A resource
Harway (Eds.), Battering and family therapy: A handbook for judges and court managers.
feminist perspective (pp. 175-187). Thousand Oaks, Williamsburg, VA: Author. [National Center for State
CA: Sage. Courts, 300 Newport Avenue, Williamsburg, VA
23185].
Logan, T. K., Walker, R., Jordan, C. E., & Horvath,
L. S. (2002). Child custody evaluations and domestic National Council of Juvenile and Family Court Judges
violence: Case comparisons. Violence and Victims, (NCJFCJ). (1994). Model code on domestic and
17(6), 719-742. family violence. Reno, NV: NCJFCJ. [National
Council of Juvenile and Family Court Judges,
Margolin, G. (1998). The effects of domestic violence University of Nevada, P.O. Box 8970, Reno, NV
on children. In P. K. Trickett & C. Schellenbach 89507]. Available at www.ncjfcj.org/images/stories/
(Eds.), Violence against children in the family (pp. dept/fvd/pdf/modelcode_fin_printable.pdf
57-101). Washington, DC: American Psychological
Association.
National Council of Juvenile and Family Court Judges National Fathers’ Resource Center (NFRC). (2007).
(NCJFCJ). (1995a). Family violence in child custody Domestic violence. Retrieved December 16, 2006,
statutes: An analysis of state codes and legal from http://www.fathers4kids.com/html/
practice. Family Law Quarterly, 29, 197-228. DomesticViolence.htm
National Council of Juvenile and Family Court Judges Neustein, A., & Goetting, A. (1999). Judicial
(NCJFCJ). (1995b). Custody and visitation responses to the protective parent’s complaint of
decision-making when there are allegations of child sexual abuse. Journal of Child Sexual Abuse
domestic violence. Reno, NV: NCJFCJ. [National 8(4), 103-122.
University of Nevada, P.O. Box 8970, Reno, NV Neustein A., & Lesher, M. (2005). From madness to
89507]. mutiny: Why mothers are running from the family
courts—And what can be done about it. Lebanon,
National Council of Juvenile and Family Court Judges NH: Northeastern University Press.
(NCJFCJ). (1999). Family violence: Legislative
update, Vol. 5. Reno, NV: NCJFCJ. [National O’Sullivan, C. S. (2000). Estimating the population at
Council of Juvenile and Family Court Judges, risk for violence during child visitation. Domestic
University of Nevada, P.O. Box 8970, Reno, NV Violence Report, 5(5), 65-66, 77-79.
89507].
O’Sullivan, C. S., King, L. A., Levin-Russell, K., &
National Council of Juvenile and Family Court Judges Horowitz, E. (2006). Supervised and unsupervised
(NCJFCJ). (2004). Family violence: Legislative parental access in domestic violence cases: Court
update, Vol. 10. Reno, NV: NCJFCJ. [National orders and consequences. Final technical report
Council of Juvenile and Family Court Judges, submitted to the National Institute of Justice, March
University of Nevada, P.O. Box 8970, Reno, NV 2006.
89507].
Ramos, M. D., & Runner, M. W. (1999). Cultural
National Council of Juvenile and Family Court Judges considerations in domestic violence cases: A
(NCJFCJ). (2005). Family violence: Legislative national judges benchbook. San Francisco, CA:
update, Vol. 11. Reno, NV: NCJFCJ. [National Family Violence Prevention Fund.
University of Nevada, P.O. Box 8970, Reno, NV Rosen, L. N., & O’Sullivan, C. S. (2005). Outcomes
89507]. of custody and visitation petitions when fathers are
restrained by protection orders: The case of the New
National Council of Juvenile and Family Court Judges York family courts. Violence Against Women, 11(8),
(NCJFCJ). (2006, revised from 2004 version). 1054-1075.
Navigating custody and visitation evaluations in
cases with domestic violence: A judge’s guide. Rosewater, L. B. (1987). The clinical and courtroom
Reno, NV: NCJFCJ. application of battered women’s personality
assessments. In D. Sonkin (Ed.), Domestic violence
National Council of Juvenile and Family Court Judges on trial (pp. 86-96). New York, NY: Springer.
(NCJFCJ). (2007). State legislation: Rebuttable
presumption that a perpetrator of domestic Rossman, B. B. R. (2001). Longer term effects of
violence shall not have sole custody, joint legal children’s exposure to domestic violence. In S.
custody, or joint physical custody. Current through Graham-Bermann & J. L. Edleson (Eds.), Domestic
06/21/06. Unpublished document, Department of violence in the lives of children. Washington, DC:
Family Violence, National Council of Juvenile and American Psychological Association.
Family Court Judges. University of Nevada, P.O.
Box 8970, Reno, NV 89507.
Saccuzzo, D. P., & Johnson, N. E. (2004). Child Stern, N., & Oehme, K. (2002). The troubling
custody mediation’s failure to protect: Why should the admission of supervised visitation records in custody
criminal justice system care? NIJ Journal, 251. proceedings. Temple University Law Review, 75(2),
Available at http://ncjrs.org/pdffiles1/jr000251.pdf 271-312.
Saunders, D. G. (1994). Child custody decisions in Stern, N., & Oehme, K. (2007). Increasing safety for
families experiencing woman abuse. Social Work, battered women and their children: Creating a
39, 51-59. privilege for supervised visitation intake records.
University of Richmond Law Review, 41(2), 499-
Saunders, D. G., & Browne, A. (2000). Intimate 534.
partner homicide. In R. T. Ammerman & M. Hersen
(Eds.), Case studies in family violence (2nd ed.). Stover, C. S., Van Horn, P., Turner, R., Cooper, B., &
New York, NY: Plenum. Lieberman, A. F. (2003). The effects of father
visitation on preschool-aged witnesses of domestic
Saunders, D. G., & Hamill, R. (2003). Violence violence. Journal of Interpersonal Violence,
against women: Synthesis of research on offender 18(10), 1149-1166.
interventions. Report to the National Institute of
Justice, U.S. Department of Justice. Available from Straus, M. A. (1983). Ordinary violence, child abuse,
National Criminal Justice Reference System, NCJ and wife beating: What do they have in common? In
201222. Available at http://www.ncjrs.org/ D. Finkelhor, R. J. Gelles, G. T. Hotaling, & M. A.
Straus (Eds.), The dark side of families: Current
Sheeran, M., & Hampton, S. (1999). Supervised family violence research (pp. 213-234). Newbury
visitation in cases of domestic violence. Juvenile and Park, CA: Sage.
Family Court Journal, 50, 13-26.
Thoennes, N., & Tjaden, P. (2000). Full report of
Shefts, K. R. (2002). Virtual visitation: The next the prevalence, incidence, and consequences of
generation of options for parent-child communication. violence against women: Findings from the
Family Law Quarterly, 36, 303-327. National Violence Against Women Survey. NCJ
183781, November 2000, Research Report. Available
Sierra, L. (1997, December). Representing battered at http://www.ojp.usdoj.gov/nij/pubs-sum/181867.htm
women charged with crimes for failing to protect
their children from abusive partners. Double-time Tutty, L., Weaver-Dunlop, J., Barlow, A., & Jesso, D.
5(1-2). [Newsletter of the National Clearinghouse for (2006). An evaluation of the Community Safe
the Defense of Battered Women, 125 S. 9th Street, Visitation Program: Updated 2006. Calgary, AB:
Suite 302, Philadelphia, PA 19107]. RESOLVE Alberta. Available at http://
www.ucalgary.ca/resolve/reports/2006/2006-05.pdf
Silverman, J. G., Mesh, C. M., Cuthbert, C. V., Slote,
K., & Bancroft, L. (2004). Child custody Walker, L. E. (1984). The battered woman
determinations in cases involving intimate partner syndrome. New York: Springer.
violence: A human rights analysis. American Journal
of Public Health, 94, 951-957. Wallerstein, J. (2000). Unexpected legacy. New
York, NY: Hyperion.
Stacey, W. A., & Shupe, A. (1984). The family
secret: Family violence in America. Boston: Williams, O. J., Boggess, J., & Carter, J. (2004).
Beacon Press. Exploring the role of abusive men in the lives of their
children. In P. G. Jaffe, L. L. Baker, & A. J.
Stark, E. (2007). Coercive control: How men Cunningham (Eds.), Protecting children from
entrap women in personal life. New York, NY: domestic violence: Strategies for community
Oxford University Press. interventions. New York, NY: Guildford.
Wolfe, D. A. (1985). Child-abusive parents: An

empirical review and analysis. Psychological
Bulletin, 97(3), 462-482.
Wolfe, D. A., Crooks, V. L., McIntyre-Smith, A., &

Jaffe, P. G. (2004). The effects of children’s
exposure to domestic violence: A meta-analysis and
critique. Clinical Child and Family Psychology
Review, 6, 171–187.
Wofford, S., Elliot, D., & Menard, S. (1994).

Continuities in marital violence. Journal of Family
Violence, 9, 195-226.
Zorza, J. (1992). “Friendly parent” provisions in

custody determinations. Clearinghouse Review, 26,
921-925.
Zorza, J. (1996). Protecting the children in custody

disputes when one parent abuses the other.
Clearinghouse Review, 29, 1113-1127.
Zorza, J. (2000). The UCCJEA: What is it and how

does it affect battered women in child-custody
disputes. Fordham Urban Law Journal, 35, 909-
935.
Zorza, J. (in press). The “friendly parent” concept –

Another gender biased legacy from Richard Gardner.
Domestic Violence Report.
Resources for Battered Mothers
Helping Children Thrive: Information for Supervised Visitation: Information for

Mothers who Have Left Abusive Mothers, 2007
Relationships, 2004 Family Violence Prevention Fund
by Linda Baker & Alison Cunningham 383 Rhode Island St. Suite #304
Centre for Children & Families in the Justice San Francisco, CA 94103-5133
System http://fvpfstore.stores.yahoo.net/supervised-
London Family Court Clinic visitation-information-for-mothers.html
254 Pall Mall St., Suite 200
London, Ontario N6A 5P6 Canada Managing Your Divorce: A Guide for
http://www.lfcc.on.ca/index.htm Battered Women, 1998
National Council of Juvenile and Family Court
When Dad Hurts Mom: Helping Your Judges
Children Heal the Wounds of Witnessing P.O. Box 8970
Abuse, 2004 Reno, NV 89507
by Lundy Bancroft http://www.ncjfcj.org/images/stories/dept/fvd/
New York, NY: G.P. Putnam’s Sons pdf/managing_divorce.pdf
Little Eyes, Little Ears: How Violence

Against a Mother Shapes Children as They
Grow, 2007
by Alison Cunningham & Linda Baker
Centre for Children & Families in the Justice
System
London Family Court Clinic
254 Pall Mall St., Suite 200
London, Ontario N6A 5P6 Canada
http://www.lfcc.on.ca/index.htm
In Brief:
Child Custody and Visitation Decisions in Domestic Violence Cases:
Legal Trends, Risk Factors, and Safety Concerns
· Approximately half of all state laws make a presumption that it is harmful to the child and not in the best
interest of the child to be placed in sole custody or joint physical or legal custody with the perpetrator of
domestic violence. In the remaining states, domestic violence is merely one factor in a list of factors that
must be considered in custody and visitation decisions.
· States have increasingly provided protections for battered women in the divorce process, for example
exempting them from mandated mediation, protecting them from charges of “child abandonment” if they
flee for safety without their children, and making it easier for them to relocate if they are in danger.
· Despite a reasonable reluctance to co-parent out of fear of harm to themselves or their children,
battered women may end up being labeled “unfriendly,” thereby increasing the risk of losing their
children because there may be a “friendly parent” statute that favors the “cooperative” parent.
· A recent trend is the use of “parenting coordinators” or “special masters,” a mental health or legal
professional with mediation training who focuses on the children’s needs and helps the parents resolve
disputes. They can make decisions within the bounds of the court order but it is important that they have
training on domestic violence and realize when they need to act primarily as an enforcer of the court
order.
· Another recent trend is the use of “virtual visitation.” Web cams and videoconferencing can supplement
face-to-face visits or replace face-to-face visits in more dangerous cases.
· When parents believe the legal system has failed them, they sometimes form grassroots support and
advocacy groups. They may conduct court watches and help parents share common court experiences,
especially when they lose custody when trying to protect children and themselves from abuse.
· Half the men who batter their wives also abuse their children, a rate twice as high as that of battered
women.
· Emotional abuse of children by men who batter almost always occurs because nearly all of these men
exposed their children to domestic violence, and such exposure often has traumatic and lasting effects.
· Mothers may be unjustly blamed for harming their children through “failure to protect,” since mothers
are supposedly capable of protecting their children from the physical and emotional abuse of their
partners.
· Parental separation does not prevent abuse to children or their mothers. Indeed, physical abuse,
harassment, and stalking of women continue at fairly high rates after separation and divorce and the risk
of homicide increases. Attempts to undermine the mothers’ authority and to disparage her in front of the
children also increase.
· Men who batter often have chronic but well hidden psychological disorders and problems stemming
from childhood traumas that are often not apparent to evaluators and judges; on the other hand,
battered woman’s psychological problems, primarily depression and posttraumatic stress disorder,
appear to be reactions to the violence.
In Brief: Child Custody and Visitation Decisions in Domestic Violence Cases (October 2007) www.vawnet.org
· Successful completion of an abuser intervention program does not substantially reduce the risk of re-
abuse. Special parenting programs for men who batter are growing in number but remain untested.
· A high percentage of couples labeled “high conflict” are experiencing domestic violence, and thus
attempts to detect domestic violence within “high conflict” families are crucial. Unfortunately, domestic
violence is often not detected or not documented in custody/visitation proceedings.
· Contrary to common belief, allegations of domestic violence are not generally more common in disputed
custody cases. When allegations are made, one study found that mothers are more likely to have their
abuse allegations substantiated than fathers.
· Evaluators and judges may need more information on the continued safety risks to children from abusive
fathers, the likelihood of post-separation violence, risks of mediation, the inadmissibility of Parent
Alienation Syndrome, and the limitations of criminal justice and treatment interventions.
· The past and potential behavior of men who batter means that awarding joint custody or sole custody to
them is rarely the best option for the safety and well-being of the children.
· Visitation should be granted to the perpetrator only if adequate safety provisions for the child and adult
victim can be made. Orders of visitation can specify, among other things, the exchange of the child in a
protected setting, supervised visitation by a specific person or agency, and completion of an intervention
program for perpetrators.
· Visitation should be suspended if there are repeated violations of the terms of visitation, the child is
severely distressed in response to visitation, or there are clear indications that the violent parent has
threatened to harm or flee with the child.
· Some professional standards developed for supervised visitation/exchange programs contain a section
on domestic violence that requires policies and procedures designed to increase safety for domestic
abuse survivors and their children. In addition, the U.S. government is providing technical assistance to
increase the awareness of visitation/exchange programs and their community collaborators of the special
needs of battered women and their children.
In Brief: Child Custody and Visitation Decisions in Domestic Violence Cases (October 2007) www.vawnet.org

Child Custody and Visitation Decisions in Domestic Violence Cases Daniel G. Saunders

Uploaded by

Copyright:

Available Formats

Child Custody and Visitation Decisions in Domestic Violence Cases Daniel G. Saunders

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Child Custody and Visitation Decisions in Domestic Violence Cases Daniel G. Saunders

Uploaded by

Copyright:

Available Formats

Applied Research Forum

National Online Resource Center on Violence Against Women

Child Custody and Visitation Decisions in Domestic Violence Cases:

Daniel G. Saunders, Ph.D.

In consultation with Karen Oehme

Kaufman, J., & Zigler, E. (1987). Do abused children

Wolfe, D. A. (1985). Child-abusive parents: An

Wolfe, D. A., Crooks, V. L., McIntyre-Smith, A., &

Wofford, S., Elliot, D., & Menard, S. (1994).

Zorza, J. (1992). “Friendly parent” provisions in

Zorza, J. (1996). Protecting the children in custody

Zorza, J. (2000). The UCCJEA: What is it and how

Zorza, J. (in press). The “friendly parent” concept –

Resources for Battered Mothers

Helping Children Thrive: Information for Supervised Visitation: Information for

Little Eyes, Little Ears: How Violence

You might also like