Differentiating Types of Domestic Violence: Implications for Child Custody

• Author: Nancy Ver Steegh
• Position: Associate Professor of Law
• Pages: 1379-1431

Nancy Ver Steegh, J.D., M.S.W. is an Associate Professor of Law at William Mitchell College of Law in St. Paul, Minnesota.

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I Introduction

Family Courts have traditionally turned a blind eye to domestic violence or have minimized its significance. Custody disputes involving domestic violence have been forced into a one-size-fits-all paradigm, an erroneous and potentially life-threatening approach. What is required is a differentiated approach based on careful screening of cases for the presence of domestic violence and thoughtful consideration of the clinical and legal implications.¹ Child custody determinations are based on the fiction that families with a history of domestic violence are all alike. However, researchers, scholars, and practitioners increasingly agree that families experience and children are exposed to different types of domestic violence. These types of violence involve distinctly different phenomena-they are not simply separate points along a single continuum of abuse.

This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence child custody statutes.

Application of the typology leads to the conclusion that child custody courts could more effectively protect children through identification and consideration of the type of domestic violence a family has experienced. To this end, three significant procedural and substantive law reforms are recommended. First, courts should adopt Differentiated Case Management in order to identify cases involving domestic violence, and to the extent possible, distinguish the type of violence experienced. Second, child custody court procedures andPage 1380 services should vary depending on the needs of the individual family and type of violence experienced. Under the current one-size-fits-all approach, some families are referred to procedures and services that are unsafe for them while other families, who could benefit from those very procedures and services, are discouraged from using them. Third, current domestic violence-related child custody statutes should be amended to include language that targets perpetrator patterns of coercive control. Current statutes are not drafted with sufficient precision to adequately protect children.

Domestic violence typologies should, of course, be approached with caution because typologies can be inappropriately manipulated to justify discounting the needs of some victims and children. All cases of domestic violence are serious and important; saying that they are not all the same does not diminish this fact. Families experiencing domestic violence are different from one another, but every case requires concentrated attention. By analogy, a heart attack is different and requires different treatment from cancer, but both are serious conditions requiring medical attention.

Domestic violence situations can be life-threatening, and the typology discussed in this article is theoretical in nature. It should be considered from a "what if" perspective, rather than viewed as ready for immediate implementation. Experienced professionals often have difficulty detecting the existence of domestic violence-let alone accurately discerning the type of violence involved. Nevertheless, viewing child custody law and procedure through the lens of a domestic violence typology provides the opportunity to reexamine commonly-held assumptions, open cross-disciplinary communication, and spark creative thinking about fresh approaches to a complicated and intractable problem.

This article is divided into five sections with the introduction constituting Part I. Part II presents a domestic violence typology and related social science research. Part III focuses on how and when families should be linked to child custody procedures (such as parent education and mediation) and services (such as supervised visitation and parent coordination) through Differential Case Management. Part IV surveys current child custody statutes (including the legal definitions of domestic violence, domestic violence as a best interests factor, joint custody and "friendly parent" provisions, presumptions against custody awards to violent parents, and termination of parental rights) and suggests specific statutory amendments aimed at protecting children more comprehensively. Part V recommends how custody cases involving specific types of domestic violence should be handled.

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II Differentiating Types of Violence

A Contradictory Research Suggests the Existence of Different Types of Domestic Violence

Despite intense study, researchers, scholars, and practitioners fail to agree upon the most basic facts about domestic violence. This state of affairs stems in part from the multi-disciplinary nature of domestic violence. Each professional group approaches the problem from a different viewpoint using different sets of analytical tools. Researchers focusing on one aspect of the problem may not grasp the significance of other research and professionals adhering to a particular world view may have difficulty assimilating contrary information from other schools of thought.² This has resulted in the creation of individual "silos" of information with no mechanism for constructing a comprehensive view.³ Unfortunately, our knowledge about domestic violence reflects this fractured approach to the problem.⁴

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Disquieting inconsistencies, as well as major contradictions, are either ignored or become the subject of rancorous cross-professional debate. For example, for the past twenty-five years, researchers have engaged in an intense debate concerning how often assaults occur and whether men and women are equally violent. The controversy stems from the contradictory findings of various studies. Epidemiological "family conflict" studies show higher overall assault rates⁵ with nearly equal rates of assault by men and women.⁶ In contrast, so-called "crime" studies and police call data show lower overall annual assault rates⁷ and much higher rates of assault by men than by women.⁸

The "family conflict" studies have been criticized by service providers and some feminist scholars who challenge the methodology of the studies, particularly the use of reliance on the Conflict TacticsPage 1383 Scale.⁹ These critics believe that the studies focus too heavily on specific acts of aggression and too little on resulting injury and the context of the behavior.¹⁰ "However, both groups of researchers agree that women are ten times as likely as men to be injured as a result of domestic violence."¹¹ Differences also stem from definitional issues. The family conflict researchers define domestic violence narrowly in terms of physical assault, while service providers and clinical researchers define it broadly to include all types of maltreatment.¹²

In the final analysis, despite the high level of acrimony, these studies may not actually contradict each other. As Murray Straus¹³ explains, researchers may in fact be observing and measuring different phenomena. He asserts that both groups of researchers are correct. They are merely studying different populations experiencing different types of violence. He speculates that, "these two types of violence probably have different etiologies and probably require different types of intervention."¹⁴

Researcher Michael P. Johnson¹⁵ has taken the process of integrating competing studies to its...