One More Battleground: Domestic Violence, Child Custody, and the Batterers' Relentless Pursuit of Their Victims Through the Courts

• Publication year: 2011

§ Spring / Summer 2011-#14. One More Battleground: Domestic Violence, Child Custody, and the Batterers' Relentless Pursuit of their Victims Through the Courts

Washington Seattle Journal For Social Justice
Volume 9, No. 2
Spring / Summer 2011

One More Battleground: Domestic Violence, Child Custody, and the Batterers' Relentless Pursuit of their VictimsThrough the Courts

Mary Przekop(fn1)

Introduction

He's forced me to go back to court endlessly. I can't remember how many motions we have on our docket. There's got to be 150. Every time I turned around for years, there was another piece of paper coming in the mail from the courts.

-Sonia, a mother interviewed by the Battered Mothers' Testimony Project(fn2)

Sonia's story is just one example of common situations faced by women who are escaping abusive relationships.(fn3) She and her former husband, Michael, fought for custody of their son, Luke. Sonia had police reports "that clearly documented [Michael's] violence against his new wife."(fn4) Those reports indicated not only that Michael was abusing his new wife, but also he was abusing her in front of Luke. There was additional evidence that while in Michael's care, Luke had "exhibited severe behavioral problems. . . including sexually assaulting a girl."(fn5) Sonia made repeated efforts to show the judge and guardian ad litem this evidence:

When we went into court and when Michael was looking for sole custody, I told [the judge] that I felt that Luke was in a violent home and was in danger of being harmed, and [the judge] wouldn't have anything to do with it. He wouldn't listen to me. I had documents there that I wanted to show him but he refused to look at them . . . . [A] few weeks later, [he] gave Michael sole legal and physical custody of Luke.

I called up [the guardian ad litem] and said, "Did you know [Michael] was arrested for assault and battery, assault with a dangerous weapon, and mayhem and domestic violence on his wife?" and he admitted that he did . . . . I said, "Please go to the police station and talk to the police. I've had concerns about what's going on." He refused to go. He refused to call the police station.(fn6)

In Sonia's case, the evidence was never considered, and she lost custody of her son to Michael. For whatever reason, the court found such evidence irrelevant to its custody determination. Without being present at the hearings or privy to the court records, we don't know all the factors that may have weighed against Sonia's right to custody, however, the court's decision to ignore the abuse altogether is inherently flawed. This case indicates two common problems: an abuser's behavior may be ignored by courts, and an abuser can continue abusing the mother and child in custody proceedings by forcing the mother back into the court "endlessly"-as Sonia described above.

No matter how much we have learned over the years, no matter how many advances are made, domestic violence continues at a staggering rate in the United States. Approximately one-third of women in the United States will be physically assaulted by an intimate partner sometime during adulthood.(fn7) According to the Department of Justice, one million women are beaten, raped, or murdered by intimate partners every year.(fn8) And, although survivors(fn9) of domestic violence have begun to find help through protective orders, enhanced police response, and criminal prosecutions, there is evidence that even these tools are prone to some substantial problems.(fn10) Additionally, family pressure, lack of financial resources, absence of community support programs, and fear of retaliation keep many women feeling trapped in violent situations.(fn11)

Sadly too, if children are present in these relationships, they not only witness the abuse (as Sonia's son did), but they often become victims of the abuse themselves. Anywhere between 50 and 70 percent of children growing up in violent homes will be physically abused.(fn12) Women in these situations are inevitably caught in a catch-22. If the woman stays, she risks further abuse to her and her children. on the other hand, separating from an abusive partner may lead to other problems. It is a myth that simply leaving an abuser will solve the problem, that simply getting away from him will free them of the violence. In truth, a woman escaping an abusive relationship has a 75 percent greater risk of severe injury or death than a woman who remains with her abuser.(fn13)

The high rate of continued physical violence after separation is only one problem a woman may face after escaping an abusive partner. Even if survivors of abuse succeed in leaving their abusers, there is another arena in which an abuser can continue his abuse: family court.(fn14) If a batterer wants to, he can turn dissolution, child support, custody, and visitation proceedings into a nightmare; he can turn the courts into a new forum that allows his abusive behavior to continue.

If there are children present in the abusive relationship, she is unlikely to give into his custody demands and will continue to fight for her children while they are at risk, even after she's given into all of her abuser's other demands during the separation and/or dissolution process. Because of this, survivors of domestic violence who are trying to escape their abusers often find themselves trapped in family courts, trying to retain custody of their children. Sadly, experience shows that they often fail-courts frequently grant visitation and custodial rights to fathers despite a history of violence against mothers.(fn15)

In fact, abusive fathers are more than twice as likely to seek sole custody of their children as are nonviolent fathers.(fn16) And, with studies confirming that courts award sole or joint custody to fathers in 70 percent of all custody cases, then statistically speaking, it is undeniable that men who abuse women can and do end up with control over the children after the relationship is over.(fn17) Thus, family court has become one of the final and often unavoidable battlegrounds between survivors and their abusers.(fn18) Through a variety of tactics, batterers have found ways to manipulate the justice system and abuse the process in order to further coerce and control survivors and their children.

This article examines the unfortunate prevalence and often unpunished abusive behavior perpetrated by batterers in our family courts, what the behavior looks like, and why it continues unabated. Although the focus will be in the family court setting (particularly in visitation and custody disputes), the majority of the discussion is applicable to any part of the justice system where a history of domestic violence is present. In order to understand why batterers use the courts as a forum for abuse, it is helpful to discuss domestic violence generally. Part I provides this background and lays out some of the prevailing definitions of domestic violence. Parts II and III look more specifically at the batterers who engage in this behavior, discussing why they engage in such behavior and what tactics they commonly use to continue abusing their former partners in the courts. Part IV acknowledges that the court may also play a role in failing to address the problem. This section discusses how, in some ways, courts may even foster and perpetuate the abusive behavior. Part V explains the effect that abusive litigation has on survivors and their children. Part VI provides a review of the remedies currently available to both survivors and the courts when batterers abuse the system and explains why these remedies have failed to adequately address the problem thus far. Finally, Part VII suggests a few potential solutions to the problem-ways in which the courts can better utilize these already existing remedies with more focused judicial education and the implementation of more nuanced approaches to family disputes.

An important point to mention at the outset, which will also be discussed again in the final section of the article, is that a tension can arise when trying to address these abusive tactics of batterers. There are ways in which courts and survivors can attempt to proactively address these abusive tactics; however, in trying to control and limit an abuser's behavior, courts and survivors could be, at the same time, violating the batterer's constitutional right to access the courts. Just as the mothers in these situations have a right to protect themselves and their children from abusive behavior, the batterers have a right to use the court system as it was intended-as a place to resolve conflict-though that right is not unlimited. In that same vein, judges have a right and a duty to control those who appear before them, but they cannot unduly restrict anyone's access to the courts, particularly in divorce proceedings.(fn19) So, while judges might be justified in their reluctance to impede a batterer's access to the courts, they also have a duty to ensure fair and just proceedings. Thus, a tension arises between the role of the judges and the rights of the litigants before them.

I. Background

It is commonly accepted among social scientists that "knowing how domestic violence operates is important in understanding how women might succeed in decreasing it."(fn20) Therefore, being able to identify and distinguish between types of conflict can help courts differentiate "normal and functional" conflict from conflict...