Child Custody & Domestic Violence: A Call for Safety and Accountability
Publication Year: 2003
Child Custody and Domestic Violence: A Call for Safety and Accountability focuses on the complexity of the challenges facing judges, lawyers, legislators, and mental health professionals in developing safe and effective strategies for resolving custody disputes. Jaffe, Lemon, and Poisson integrate the most recent clinical and legal issues in the field in considering the prevalence of divorce and domestic violence as well as the relevance of domestic violence in custody disputes. The authors outline the essential differences between custody disputes with and without allegations and findings of domestic violence, and the different analysis and distinct interventions by judges, policymakers, and mental health professionals necessary in domestic violence cases.
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Why Domestic Violence is Relevant in Child-Custody Disputes
- Children of Divorce
- What is Custody?
- Domestic Violence
- High-Conflict Custody Disputes
- Custody Disputes and Domestic Violence
- Impact of Domestic Violence on Children
- Why is Domestic Violence Relevant to Child Custody?
- Chapter 2: Assessing Safety and Responsibility in Child-Custody Disputes
- Assessing Domestic Violence Issues
- What to Assess
- Whom to Assess
- Differential Approaches
- Controversial Issues
- Chapter 3: Changing Legislation and Legal Practice to Recognize Domestic Violence in Child-Custody Proceedings
- International Treaties
- United States Laws
- New Zealand
- Chapter 4: From Theory to Practice: The Varying Responses of the Court System to Domestic Violence in Child-Custody Cases
- United States
- New Zealand
- Chapter 5: A Framework for Action by Courts and Communities to Recognize the Plight of Abused Victims and Their Children after Separation
- Programs and Policy Development
To Deb for her love, patience, and help in finding some balance in my life. P. J.
To my friend Harriette Davis, her three children, and her seven grandchildren, who continue on a daily basis to be impacted by the justice system's failure to assist her in escaping an abusive relationship almost 20 years ago. N. L.
To the matriarchs in my life who showed me the many faces of courage: my mother Shirley, my grandmother Libby, and my guardian Ann. You are missed always. S. P.
Copyright © 2003 by Sage Publications, Inc.
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Library of Congress Cataloging-in-Publication Data
Jaffe, Peter G.
Child custody and domestic violence: A call for safety and accountability /Peter G. Jaffe, Nancy K. D. Lemon, Samantha E. Poisson.
Includes bibliographical references and index.
ISBN 0-7619-1825-6 (c)—ISBN 0-7619-1826-4 (p) 1. Custody of children—Law and legislation. 2. Family violence—Law and legislation. 3. Child witnesses. 4. Parental alienation syndrome. I. Lemon, Nancy K. D., 1953- II. Poisson, Samantha E. III. Title.
K707 .J34 2003
This book is printed on acid-free paper.
02 03 04 05 10 9 8 7 6 5 4 3 2 1
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Production Editor: Olivia Weber
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There has been tremendous progress in the public and professional understanding of the plight of children caught in the middle of custody disputes. The stigma attached to divorce in the past has dissipated; today, divorce and separation are understood to be painful crises in the lives of children and adults. Rather than being outcasts, children and parents have access to a host of services to counsel them through their ordeal. Friends, relatives, and colleagues at work may offer the names of helpful lawyers to resolve the dispute. Parent-education programs are available to assist parents in finding cost-effective solutions to their conflicts, and most jurisdictions in North America have mediation services.
As the findings of major research studies on children of divorce have become common knowledge (Hetherington & Kelly, 2002; Wallerstein, Lewis, & Blakeslee, 2000), social attitudes toward divorce have changed. The issue has received widespread media attention, with publications such as Time magazine devoting cover stories to children of divorce (Kirn, 2000). Although it is recognized that children may be adversely affected by divorce, there is general agreement that children's adjustment improves when postseparation conflict ends and their relationship with both parents is supported and sustained. In other words, divorce ends marital relationships, not parent-child relationships.
Today, fathers play a more active role in parenting and nurturing their children than they likely experienced with their own fathers. Both parents offer their children love, education, support, and guidance through the most critical phases of development. At the dawn of a new millennium, society and the courts often look to mothers and fathers as [Page viii]partners in raising their children, both before and after separation. Parental involvement is no longer intractably wed to gender.
In dealing with separation and divorce, legal and mental health professionals assist in the development of parenting plans in which both parents play an active and meaningful role. Messages of “coparenting” and “shared parenting” are promoted and viewed as very much in keeping with the best interests of children post-separation. Several research studies have found that children adjust better in joint custody postseparation arrangements than in sole custody arrangements. Although there is an obvious bias in this research because less conflictual divorces make for better adjusted parents and children at the outset, there is a general agreement among the public and professionals that cooperation and coparenting is much better than litigation and postdivorce acrimony. The popular press has even promoted “happy” divorces for which parents can find lawyers who will “collaborate” rather than litigate (Underwood, 2002).
Over the past 25 years, many families have benefited from court reforms and legislative changes promoting joint custody and shared parenting arrangements. This progress has come with a genuine desire to improve the quality of children's postdivorce experience. At the same time, there remains considerable debate on the accessibility and effectiveness of various forms of legal and clinical remedies and interventions. New controversies and challenges have emerged around such issues as parental mobility (Irving & Benjamin, 1996), grandparent rights (Shaffer, 2001), and the increasing rate of same-sex parent separation (Hartman, 1996). Few issues, however, have sparked more passionate public discussion than custody disputes involving allegations of domestic violence.
This book focuses on the complexity of this issue and the challenges facing judges, lawyers, legislators, and mental health professionals in developing safe and effective response strategies. Most separating parents are able to resolve their disputes over custody and visitation with minimal intervention from the legal and mental health systems (Johnston, 1994). As authors, we endorse the active and meaningful postseparation involvement of both parents with their children, in the absence of a history of domestic violence. However, the presence of domestic violence within a custody dispute demands a different analysis and distinct interventions by judges, policymakers, and mental health professionals.
[Page ix]This book is neither for nor against mothers or fathers. It is directed to the safety and security of separating parents and children in circumstances of domestic violence. Its intended audience is legal and mental health professionals who provide services to divorcing parents and who should be alerted to the unique dynamics and aftermath of domestic violence. This book may also be helpful to those who have found their lives and their children's lives affected by domestic violence, and can assist close friends and relatives providing support for victims of domestic violence to broaden their understanding of the issues.
Chapter 1 provides an overview of the terrain, including the prevalence of divorce and domestic violence, the relevance of domestic violence in custody disputes, and the intensity of the debate surrounding this subject. Chapter 2 focuses on the evaluation of the meaning of domestic violence allegations in custody disputes for mothers, fathers, and children. Special effort is made to assist those attempting to determine whether a history of violence exists within a family. The chapter also addresses such thorny issues as parent alienation syndrome, false allegations, and mutual abuse. Chapter 3 reviews the relevant legislation and guidelines applicable to custody disputes involving domestic violence in four countries: the United States, Canada, New Zealand, and Australia. Chapter 4 outlines significant judicial decisions in these four countries, the scope of which highlights the inconsistency and unpredictability of recent judgements and reveals how well-intended legislation does not always produce the desired outcome. Chapter 5 ends the book with recommendations for legislative improvements, increased training for legal and mental health professionals, enhanced services and programs, and the development of new policies to deal with domestic violence in custody disputes.[Page x]
Although this book took 4 years from inception to publication, the time delays were well spent. The legal and mental health concerns of our clients invariably took precedence over precious writing time. The positive by-product of the delay is that it gave us countless additional hours to do research and ground our thoughts in the clinical feedback from our clients around the challenges they face in the court system, as well as the dilemmas posed by professionals in our training sessions. The three of us benefited from several conferences on children exposed to domestic violence where we role-played in mock trial situations the many difficult issues that judges, lawyers, and custody evaluators face on a daily basis. Through our countless e-mails and phone conversations we believe we have been able to produce a valuable resource that can be digested readily by individuals representing a variety of disciplines and viewpoints, including frontline advocates and parents trying to make sense of their courtroom situations.
For two of us (P. J. & S. P.), working at the Centre for Children & Families in the Justice System, this book would not have been possible without the support of the Atkinson Foundation, who funded a 3-year research project examining the plight of abused women and children seeking refuge from batterers and safety in the court system. The voices of women and children from this research, as well as our clinical work, form the foundation for many of the ideas outlined in this book. This book would not have been completed without the encouragement of staff and board members at our Centre. In particular, we received adept assistance from Andrea Finlay in helping with the literature review and organizing hundreds of references; Karen Chalmers provided expert clerical support in the many revisions of the document and broad shoulders in times of setback; and Peggy Sattler provided invaluable assistance in editing our original manuscript for greater clarity.
[Page xii]We continue to receive phone calls and e-mails from abused women across North America who are desperately seeking our help in having a custody evaluator, lawyer, or judge understand their unique circumstances in the aftermath of domestic violence. The experiences of these women have been echoed in many jurisdictions around the world. It is always striking that when the three of us discuss the plight of abused women and children it seems almost irrelevant whether one of us is in London, Ontario, or Berkeley, California. Domestic violence and revictimization through the court system knows no jurisdictional boundaries. We wrote this book for abused women, their children, and the multiple professionals they come into contact with in the court system.
For all the abused women who continue to call and e-mail us, seeking help with complex and lengthy custody battles in a confusing, expensive, and often biased legal system, we wish we could give each one of you the help you and your children truly need. We hope this book will help prevent some of the stories you have told us from happening to more mothers and children.
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About the Authors[Page 193]
Peter G. Jaffe, Ph.D., is the Founding Director (1975–2001) and Special Advisor on Violence Prevention of the Centre for Children and Families in the Justice System of the London Family Court Clinic. He is also a member of the Clinical Adjunct Faculty for the Departments of Psychology and Psychiatry at the University of Western Ontario, former chair of the Board of Directors of the Battered Women's Advocacy Centre, and past Chairperson and a founding board member of the Board of Directors for the Centre for Research on Violence Against Women and Children. He gives presentations on domestic violence and violence prevention to teachers, students, lawyers, judges, police, doctors, clergy, and various community groups. He has collaborated with the Family Violence Department of the National Council of Juvenile and Family Court Judges and the Family Violence Prevention Fund in developing innovative training programs on domestic violence for judges across the United States. He is the recipient of many awards and grants, author of numerous research articles, and coauthor of four books on the subject of children exposed to domestic violence, including the landmark publication Children of Battered Women (coauthored by D. Wolfe and S. Wilson and published by Sage in 1990).
Nancy K. D. Lemon, J.D., is a consultant to the California Center for Judicial Education and Research (CJER), with whom she developed curricula for new judges and for court employees. As an undergraduate, she helped create the first University of California Women's Studies major and received a B.A. with honors from the University of California at Santa Cruz in 1975. Following her graduation from Boalt Hall School of Law (University of California at Berkeley) in 1980, she specialized in domestic violence legal issues. Since 1988, she has taught Domestic Violence Law at Boalt, where she wrote Domestic Violence Law, the first published curriculum on this topic, published in 1996 and [Page 194]2001. While working at various nonprofit agencies around the San Francisco Bay Area from 1981 through 1993, she represented hundreds of battered women, obtaining restraining orders and advocating for them within the civil and criminal justice systems. She has been active with the Policy and Research Committee of the California Alliance Against Domestic Violence since 1984 and has consulted on numerous pieces of legislation. She is the Associate Editor of Domestic Violence Report, a U.S. bimonthly national publication, and has published many books and articles in this field. She has worked with other attorneys as a trial consultant and has testified as an expert witness on domestic violence issues.
Samantha E. Poisson, M.Ed., is Clinical/Research Services Coordinator at the Centre for Children and Families in the Justice System of the London Family Court Clinic and is currently completing her doctorate in education in applied psychology at the University of Toronto. She has published articles and chapters on family violence, research, and custody and access issues, including “Domestic Violence and High-Conflict Divorce: Developing a New Generation of Research for Children” in the book Domestic Violence in the Lives of Children, edited by S. Graham-Berman and J. Edleson. Her teaching experience has involved presentations and workshops involving prosecutors, family lawyers, social workers, and advocates for abused women and children. As well as her active involvement in research and training, she has worked extensively in the area of child-custody assessments and provided expert testimony in Ontario, New Brunswick, and Saskatchewan.