Partner Abuse in Disputed Child Custody Cases: Findings and Interventions

On December 5 & 6, the International Council on Shared Parenting (ICSP), with support from National Parents Organization, is presenting an extraordinary conference, freely available to anyone on the Internet. The conference brings together leading researchers from around the world to address a variety of issues connected with shared parenting, but with a special focus on shared parenting and domestic violence.

One of the distinguished participants in the conference is Dr. John Hamel (University of Central Lancashire, U.K.), who will address issues concerning appropriate interventions in cases of intimate partner violence (IPV). Dr. Hamel’s presentation will be part of a plenary session that begins at 4:45 pm EDT on Sunday, December 6. Below, Dr. Hamel presents valuable information on the nature of IPV, challenging some of the damaging myths about it, and he offers important advice for handling allegations of IPV in a manner that is nuanced and sensitive to children’s well-being.

Partner Abuse in Disputed Child Custody Cases:  Findings and Interventions

John Hamel, PhD, LCSW

www.johnhamel.net  johnmhamel@comcast.net

November 30, 2020

For the past three decades, I have been working with both perpetrators and victims of family violence, including intimate partner violence (IPV), among them numerous litigants involved in child custody disputes.  During this time, I have been all too well-acquainted with the ongoing debate between advocates for battered women, on the one hand, and men’s rights groups, on the other. If you believe the former, there is an epidemic of “battering dads” who, through male privilege, manipulate the Family Court system to get custody of their children.  If you believe the latter, there is an epidemic of manipulating, moms who get custody by alienating the children against the dads, or making up false abuse allegations.

These are, of course, extreme positions, and not reflective of the complex nature of IPV, family disfunction, and interpersonal conflict.  Unfortunately, the drive by some parents to win a custody battle at any cost, and the willingness of attorneys to accommodate them, has only deepened the divide, with detrimental consequences for children.  Furthermore certain myths about IPV persist:

·         Any type of IPV is “battering,” and abuse always gets worse over time

·         Women can be violent, but not controlling

·         Witnessing partner violence is the worst thing that can happen to a child in a family

·         Any police calls (even without an arrest), or existence of RO, indicates guilt

·         A 52-week batterer intervention group should be the default intervention for anyone convicted or accused of partner violence

• Empirical research exists that would shed light on these controversies, but it is not always made available to Family Court litigants. A major obstacle is that the Model Code and rebuttable presumptions about the danger of IPV to children are based on research conducted with almost exclusively battered women, skewed samples not representative of the general population or family court litigants. In fact, research that colleagues and I conducted with family law professionals across the United States, and in particular custody mediators and evaluators, have a poor understanding of IPV causes, characteristics and consequences – only slightly better than first year university undergraduates. In fact, the scholarly research literature indicates that the vast majority of IPV is situational rather than chronic “battering,” and that abusive men and women are similarly motivated. Children who witness IPV can of course be traumatized, but this depends on the seriousness and chronicity of the violence, and studies find that children are affected more deeply by direct child abuse and, in particular, emotional abuse and neglect, and sometimes simply due to the stress of having one’s parents separate and divorce. While calls to the police, or the issuance of a civil restraining order are often cited as evidence of IPV, they may also indicate Legal and Administrative Abuse (LA), especially when done around the time of separation. Finally, the 52-week batterer intervention option should be limited to cases involving chronic battering, involving repeat violence and domineering/controlling behaviors, not occasional high conflict situations that escalate and lead to lower-level violence.

My suggestions to family law professionals are as follows:

• Custody decisions and treatment suggestions should be based on a thorough assessment, based on well-established protocols and relevant social science research.

• Become as familiar as possible with the existing body of research on domestic violence and child abuse, and get ongoing training on new findings and developments in research and applications of research to practice. The “one stop shop” for reliable IPV research: The 2,657-page Partner Abuse State of Knowledge (PASK) findings can be found at www.domesticviolenceresearch.org

• Obtain training from victim advocates on topics related to the needs of battered women but some of the research in this article, and the experience of the author, indicates that victim advocates may be the least-informed stakeholders in the field, except perhaps for political officials engaging in policy design and legislation. Research by some “men’s rights” activists can also be quite misleading.

• Be wary of findings and conclusions from anyone who insists on identifying as a “feminist” researcher. There is no reason to doubt the feminist credentials of scholars who have argued against the gendered perspective and who are just as likely to be women as men, or more so (29 of the 42 PASK scholars were women). The rights of men or women are not the issue when it comes to research. Research is either accurate or it is not, and political beliefs or a fervent belief in a cause is hardly advanced by theoretically-biased, poorly designed, or methodologically weak research.

• Attorneys: In court, challenge the credentials of witnesses who claim to be experts in the area of intimate partner abuse (whether you are hiring that expert or the other party is doing so). When possible, have them complete a brief questionnaire on basic intimate partner abuse knowledge such as the one used by Hamel et al. Do not accept them unless they score well over 50% correctly. Ask the expert about the PASK findings. If he or she is not sure what you are referring to, question the neutrality or source of knowledge and opinion. For someone who claims to be an expert in the field of domestic violence to be unfamiliar with PASK is akin to a doctor who has never heard of the Physician’s Desk Reference.

• Challenge the use or admissibility of any research that appears to have a strong gender or ideological bias by asking the expert to specify what type of sample the study was based upon. Samples using battered women and men in perpetrator treatment are inherently skewed and generalize neither to the general population nor disputed child custody cases.

• The most-informed and unbiased data sets, such as PASK, provide a general fund of knowledge that can reduce gender bias among family court professionals, and increase the likelihood of better-informed custody decisions. However, there is no substitute for a thorough assessment of the facts because all cases are different. Assessments involving allegations of domestic violence should be thorough, and follow best practice protocols, such as those advanced by Ackerman and Gould.

• Attorneys: Challenge the conclusions of mediators and evaluators when their recommendations against custody are based on incomplete information or are overly cautious. Specifically, how well were the allegations corroborated, and by whom? The mere issuance of a temporary restraining order may mean something, or it may not; it does not necessarily indicate that anyone is actually in danger. This is particularly true if the temporary restraining order was issued ex parte. What was the form and how severe was the alleged abuse, and, of consequence, what was the particular pattern in which it unfolded? If the term battering was used, was it used correctly? Battering should not be confused with any particular incident of physical violence. A pattern of physical and/or emotional abuse over several years and across multiple relationships may be of far more concern than occasional incidents of violence accompanied by low levels of coercive abuse, or violence that was restricted to the period following separation, especially when one parent is suddenly prevented from seeing his or her children.

• Remember that children can be just as affected by parental conflict as by witnessing parental violence, and that intimate partner abuse is not the only type of family dysfunction. Did the mediator or evaluator consider the impact on the children of chemical dependency and child physical abuse, endangerment and maltreatment in addition to witnessed PV or conflict? What about the impact of separation and divorce? How did they weigh these factors and determined why one or another has greater consequences for the child? A good question to ask is, “Is the reduced exposure to a partner-aggressive parent offset by damage to the child caused by restricting his or her access to that parent if he or she is otherwise loving and able to meet that child’s needs?

REFERENCES

Ackerman, M., & Gould, J. (2015).  Child custody and access.  In B. Cutler & P. Zpf (Eds.),

APA handbook of forensic psychology, volume I:  Individual and situational influences in criminal and civil contexts (pp. 425-470).  Washington, D.C.:  APA.

Austin, W. (2001).  Partner violence and risk assessment in child custody evaluations.  Family Court Review, 39 (4), 483-496.

Dutton, D., Hamel, J. & Aaronson, J. (2010).  The gender paradigm in family court processes:  Re-balancing the scales of justice from biased social science. Journal of Child Custody, 7 (1).

Hamel, J. (2016).  In the best interests of children:  What family law attorneys should know about domestic violence.  Journal of the American Academy of Matrimonial Lawyers, Vol. 28, 201-228.

Hamel, J., Desmarais, S.L., Nicholls, T.L., Malley-Morrison, K., & Aaronson, J. (2009, July).

Domestic violence and child custody:  Are family court professionals’ decisions based on erroneous beliefs?  Journal of Aggression, Conflict and Peace Research, 1(2), 37-52.

Harman, J., Kruk, E., & Hines, D. (2018).  Parental alienating behaviors:  An unacknowledged form of family violence.  Psychological Bulletin, 144 (12), 1275-1299.

Johnston, J., Walters, M., & Olesen, N. (2005).  Is it alienating parenting, role reversal, or child abuse?  A study of children’s rejection of a parent in child custody disputes.  Journal of Emotional Abuse, 4 (4), 191-218.