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Article Excerpt
John and Kathy were married and had a daughter, Mary Elizabeth. (1) Both parents loved their daughter dearly. Although he never laid a hand on his daughter, John continuously battered his wife. (2) After two protective orders failed to stop the abuse, Kathy sought a divorce. (3) Not surprisingly, a bitter custody battle ensued. Despite Kathy's insistence that John's violence should prevent him from having custody or visitation, the court granted John unsupervised visitation every other weekend, one Monday per month, and three hours every Tuesday. (4) After one such visit, Kathy became worried when John did not return three-year-old Mary Elizabeth on time, so she sought police assistance. Upon investigation, police discovered John and Mary Elizabeth in John's truck in the garage at his home. Both were dead of gunshot wounds; John's gun was found in the truck. (5) John had taken anger management classes. (6)
Although this story is an extreme example of what can happen if a batterer is given unsupervised visitation with his child, (7) it anecdotally disproves the all-too-common view of courts that interspousal violence has little to do with parenting ability and thus, merits little consideration in custody decisions. Hopefully, attitudes will continue to change in recognition of the effects such abuse actually has on children.
Clearly, interspousal abuse is a hazard to victims during the relationship. What courts may fail to realize is that it continues to be a hazard to child witnesses and to victims even after the relationship has been legally dissolved. Children who witness interspousal violence often experience emotional difficulties, including anxiety, depression, increased aggression, and even Post Traumatic Stress Disorder. (8) Exposure to interspousal violence during childhood may also lead to involvement in family violence later in life. (9) Children in homes where interspousal abuse occurs are also at a much greater risk of being physically abused themselves. (10) Unfortunately, for victims, divorce is not always the end of the violence. On the contrary, separation often escalates the abuse, and joint custody and unsupervised visitation may give abusers ample opportunity to continue abusing their former spouses. (11) In addition, even if the violence between the former spouses ends after divorce and/or after courts make custody arrangements designed to minimize the contact between the victim and the abuser, there is always the risk that the children will continue to be exposed to interspousal violence if the batterer becomes involved m a new relationship. (12)
In response to the growing body of knowledge about the dynamics of interspousal violence and its effects on children, courts have begun considering interspousal violence in custody decisions. (13) Custody statutes in most states specifically list interspousal violence as a factor to be considered in custody decisions. In some states, there is even a rebuttable presumption that a batterer should not be awarded custody. (14) So, what is a batterer to do if he still wants more visitation with his children? Batterer's intervention programs (15) are one option for treatment of abusive men, and in custody cases courts may look more favorably on men who have completed such programs. (16) But how effective are such programs? Can a court rely on a batterer's completion of such a program to demonstrate that he is "cured" of his violent tendencies?
This note examines the current state of research investigating the effectiveness of such programs in an effort to determine the weight such programs should be afforded in custody decisions. Part I provides a brief overview of the history of custody law and the part interspousal violence plays in custody decisions. Part II looks at the way courts use batterer's interventions in the context of custody determinations. Part III discusses what the interventions are, and Part IV examines current research on the effectiveness of such programs. Finally, Part V provides recommendations for courts based on this research.
I. A BRIEF HISTORY OF CUSTODY LAW AND THE ROLE OF INTERSPOUSAL VIOLENCE IN CUSTODY DECISIONS
In colonial times, children were treated as the property of their fathers. (17) Gradually, as childhood became romanticized, nurture became an important goal, and as women gained some legal independence from their husbands, the presumption of paternal custody began to shift to the "tender years" doctrine, preferring the mother as nurturer. (18) In the last thirty years, however, all of this has changed; (19) statutes have become gender neutral and courts have even gone so far as to hold that a maternal preference is unconstitutional. (20)
Today, the predominant doctrine in custody law is the "best interests of the child" standard. (21) In addition, in the past twenty or so years, a new trend has developed as an extension of the "best interests" standard--a trend toward joint custody. (22) This trend reflects the belief that children are better off if they maintain relationships with both parents. (23) Much of this trend has been fueled by a strong fathers' rights movement. (24)
A preference for joint custody is particularly problematic for battered women. (25) Joint custody frequently translates into continued contact between the abuser and the victim, which all too often means that divorce is no escape from the abuse suffered during the marriage. (26) Together with a preference for joint custody, courts may apply "Friendly Parent" provisions, which prefer a parent who is willing to share custody to a parent who refuses to share. (27) Again, this policy creates a dilemma for battered women--if they refuse to share custody for fear of future abuse, a court may see them as uncooperative and may punish them for it. (28) Moreover, joint custody preferences may be used by abusers simply as a tool to further abuse their victims; even if they do not really want shared custody, they may use the threat of suing for joint or sole custody to gain more power over their victims. (29)
The American Law Institute has gone a step further than the "best interests" standard and joint custody preferences by creating a primary caretaker rule as the basis for custody decisions. (30) Under this rule, the custody arrangement would reflect the child-care arrangements during the marriage; if the mother took care of the children most of the time, she would get primary physical custody of the children. (31) This rule has some advantages that could help battered women. The rule provides greater certainty in custody outcomes. (32) This certainty could benefit battered women by reducing the ability of abusers to manipulate the highly discretionary "best interests" standard in order to gain power over their victims. Hand in hand with increased certainty is the reduction of the finger-pointing that is frequently seen when the "best interests" standard is applied. While the "best interests" standard seems to invite allegations of bad parenting, the primary caretaker rule relies on easily-ascertainable, objective evidence. (33) Accordingly, for battered women, this means that their abusers may have less of an opportunity to psychologically abuse them with accusations of unfit motherhood. It is yet to be seen whether states will accept or reject this rule.
Recognizing the dilemma of battered women in custody proceedings, Congress passed a joint resolution in 1990 encouraging states to create a rebuttable presumption that batterers should not have custody of children. (34) Fortunately, many states have heeded the call, (35) and virtually all states now either require or specifically allow courts to consider interspousal violence in custody proceedings. (36) These statutes vary widely. For example, some of the rebuttable presumption statutes apply only to considerations of joint custody, (37) while others create a rebuttable presumption that neither sole nor joint custody should be given to a batterer. (38) Some of the statutes that do not provide for a rebuttable presumption nonetheless require that interspousal violence be considered and that specific findings of fact be made if there is evidence of such violence, (39) while others merely state that interspousal violence shall be considered. (40) These statutes also vary in that some simply allow or require that any interspousal violence be considered, (41) while others require specific findings as to the effect of interspousal violence on the children. (42)
The rebuttable presumption statutes also vary widely in the amount of proof necessary to create the presumption. Some statutes require either one severe incident of violence or a pattern of violence. (43) The presumption is only triggered in other statutes when there has been a criminal conviction for interspousal violence. (44)
Statutes in many states also provide that any impairment of the victim caused by the abuse shall not be considered in determining the child's best interests. (45) Some statutes require courts to consider the safety of the victim in setting out a visitation plan. (46) Batterer's intervention may or may not be mentioned in these statutes; its role in statutes and case law will be discussed in the next section.
II. HOW BATTERER'S INTERVENTIONS FIGURE IN CUSTODY DECISIONS
Batterer's interventions may come into play in custody...
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