Custody and visitation decisions are among the most difficult that judges make. Whether by statute, case law, or custom, all state and tribal courts employ some form of “the best interest of the child” standard in making these decisions. A child’s physical, emotional, and psychological safety are always in his or her best interest. This tool is designed to maximize a child’s safety as you determine issues of custody and visitation and can help you
This tool will also assist you in conducting a thoughtful exploration of the child’s safety risks when abusive behavior has been part of the family fabric. Sometimes, the parties may not articulate clearly either the abuse or the child’s safety risks during litigation. Indicators may be present that require you to explore the possibility that one parent is putting the other parent or the child at risk of abuse. Because the abused parent might not directly raise issues of physical abuse or other forms of control, you will want to be aware of indicators of abusive behaviors that may alter the dynamics of the litigation process. This tool will explore the various behaviors that you might encounter, both from the controlling and abusive parent, and from the controlled and abused parent.
This supplemental guide and the attached bench cards follow your decision-making from the initial filing through drafting and enforcing the order. While much of the material is presented in procedural order, 1 there are also bench cards and chapters devoted to topics and issues that can arise throughout litigation.
The authors suggest that you first read the cards as an introduction to the topics addressed. This supplement, to which the cards are keyed, offers additional information and suggests further resources at the end of the guide, and in footnotes.
Numerous studies document the negative effects on children who are exposed to the abuse of one parent by the other. The studies provide evidence of the problems associated with their psychological, emotional, and cognitive functions, and longer-term development. 2 Children who witness violence and coercive control by one parent toward the other experience at least the same level of serious effects as those who were direct targets of the abuse. 3 The research also shows that each child’s experiences, perceptions, and responses are unique. Any intervention should be tailored to that child’s particular risk set and situation. 4
Studies also support that children are at greater risk of being abused when one parent is abused by the other parent. 5 Abuse of the children, or threatened abuse, is a powerful tool of control. 6
Abuse directly perpetrated on the child happens frequently after parental separation when the abusive parent may no longer have ready access to the other parent. This means that children are at risk post-separation even if they were never directly abused by the abusive parent previously. 7 Sometimes, abuse of a child can lead to “reconciliation” if the abused parent believes that resuming the relationship is the only way to keep the child safe. 8
As with adults who have been subjected to physical abuse or other forms of coercive control, there is no one pattern of behavior that will be observed in children who have experienced abuse, whether they were abused themselves or whether they have lived in a family where one parent has abused the other. Given the range of psychological and physical injury to a child from an abusive parent and the many elements that contribute to or delay a child’s recovery, assessing risk to the child from the abusive parent is a complex process. 9 Sometimes, child behaviors can be confusing or counterintuitive. Children who have experienced abuse might
Those children may also
Generally speaking, it is considered detrimental to a child and not in his or her best interest to be placed in sole custody, joint legal custody, or joint physical custody with the abusive parent. 11 The most important protective resource to enable a child to cope with exposure to abuse is a strong relationship with a competent, nurturing, positive adult— most often, that adult will be the non-abusing parent. 12 Providing for the physical, mental, and emotional safety of the child will include providing safe visitation by the abusive parent, if truly safe visitation can be arranged. You should award visitation to an abusive parent only if you find that adequate provisions for the child’s and the abused parent’s safety can be made, assuming that contact with the abusive parent is advised at all. 13
At-risk parents may advocate for limited or supervised contact between the abusive parent and the child; their reasons may not be clearly or easily articulated. Any allegations of abuse, whether made by the at-risk parent or the child, should be taken seriously. Often when viewed through the lens of abuse and coercive control, though, the case comes into focus. It is important that abusive parents’ access to their children occur only in safe environments or when safety of both the child and the at-risk parent can be ensured. Even if you find that the behaviors of a parent do not seem to meet the definition of “abuse” as defined in this tool, the best interest of the child standard demands that the child be placed in the custody of the more appropriate, and safer, parent.
It is important to remember that abusive behavior, often described as domestic violence, is not limited to physical violence against a parent. Physical violence is generally one of several tactics used to maintain control over another person. For purposes of this tool, we are defining abusive behavior as “a pattern of assaultive and coercive behaviors that operate at a variety of levels – physical, psychological, emotional, financial or sexual – that one parent uses against the other parent. 14 The pattern of behaviors is neither impulsive nor ‘out of control,’ but is purposeful and instrumental in order to gain compliance or control.” 15
Although the definition refers to a pattern of behavior, you may consider one incident of physical violence to be abusive behavior and therefore sufficient to put a child at risk. 16 This tool may use either the term “abusive behavior” or the term “coercive or controlling behavior” to refer to similar types of behavior patterns. Abusive or coercive behavior directed at an intimate partner, no matter how defined, can create serious safety risks for children. 17
In recent years, a growing body of social science research has addressed the wide range of violent and abusive behavior in families, documenting its severity, frequency, and injurious outcomes, and arguing about who perpetrates it and for what apparent purpose. 18 Determining the level of risk for both parent and child is a crucial first step in making custody and visitation decisions. If you have any lingering safety concerns, put protections in place that address the source of the concerns prior to ruling on custody and visitation.
Often, the abusive parent will seek to control the at-risk parent through a mixture of criticism, verbal abuse, economic control, and isolation. The abusive parent may employ an array of other tactics, many of which may be more difficult to quantify for evidentiary purposes than physical or sexual assault. 19 Abusive behaviors within a parenting relationship are complex and often go unrecognized or unidentified in legal proceedings. 20 These behaviors, too, might not be readily or easily connected to any definition of abuse during the course of custody litigation. 21 The reactions of the at-risk parent to the abuse will be unique to the individual and the circumstances. Similarly, each child will experience domestic violence in unique ways depending on a variety of factors that include direct physical abuse of the child, his or her gender and age, the time since exposure to violence, and his or her relationship with adults in the home. Some children may show no apparent negative developmental problems despite witnessing repeated violence. 22
You may observe behavior in court that may not be readily identifiable as evidence of risk. Abusive parents and at-risk parents may behave in unpredictable ways depending on the circumstances of each case. 23 Some at-risk parents as a survival technique will minimize or deny that they have been abused, even when evidence of abuse is overwhelming. Both parents might minimize or deny the impact of the violence on the child. Or, the at-risk parent may express fear that the abusive parent will hurt the children, even if there is no evidence of prior child abuse.
As described elsewhere, there is no one pattern of behavior that you will observe in either the abusive parent or the at-risk parent. There are some behaviors, however, that indicate disrespect toward the other parent. These behaviors should raise red flags for you to determine whether they result from a pattern of control.
Often abusive parents present well, as they are skilled at maintaining control. An abusive parent might
This controlled courtroom presence of the abusive parent may contrast with the atrisk parent’s behavior.
The at-risk parent may not present as well and might
Both legal and mental health professionals acknowledge the relevance of parent-to-parent abuse and coercive control in determining the best interest of the child. 25 Family law cases involving evidence of abuse may be (and in fact, often are mistakenly) labeled “high-conflict.” Abuse cases may have high-conflict characteristics, but they require a different set of considerations in order to promote safety for the at-risk parent and child.
High-conflict cases are those intense and protracted disputes that require considerable court and community resources during litigation and possibly after. 26 They are distinguished by mutual mistrust of each partner, poor impulse control, and cycles of reaction and counter-reaction which further erode the possibility of trust. 27 In cases with abuse, on the other hand, one parent exhibits attitudes and behaviors designed to exert inappropriate control over the other parent. 28 To add to the confusion, there may be responsive violence or protective behaviors by the victim parent, which may make the case appear to be high-conflict on the surface.
[§2.6] Remember: Abusive behaviors occur in all economic levels. Low-income at-risk parents may not have access to the resources they need in order to safely leave an abusive situation with their children. Parents who experience abuse in middle- and upperclass households may have different hurdles to overcome. They may be discredited by the abusive parent who may have special status in the business or local community. In addition, wealth and education can be confused with the ability to leave an abusive situation. The reality is that control is maintained by creating fear and is not related to wealth, although many at-risk parents may not have independent access to resources within the family while in the abusive situation, even in wealthy families.
Of course, one of a judge’s primary functions is to consider the evidence, determine its credibility, and find facts based upon his or her assessment of that evidence. Often in family law matters, the temptation is to view competing or opposing evidence of abuse as “he said/she said.” This perspective can result in ruling against the parent who has the burden of proof on the theory that without additional testimony to tip the scales, the court lacks sufficient evidence to rule otherwise.
The abusive parent benefits from that perspective. Often that parent has invested effort in convincing the at-risk parent that she will not be believed if she discloses the abusive behavior. The coercive parent’s attempts to influence you in order to discount the other parent’s testimony about the abuse is a method of manipulation aimed at you, as well as the other parent.
As a judicial officer, familiarity with the dynamics of abusive behavior and coercive control will enable you to assess the testimony and other evidence, and create a plan that is in the best interest of the children. 29
Cross-allegations of abuse are not uncommon. 30 Sometimes, it is the abusive parent who raises issues of abuse in an effort to discredit the at-risk parent. To sort through this type of testimony,
The more familiar you become with the dynamics of coercive control, the easier it will become to analyze the evidence in order to determine whether a pattern of abusive behavior is present.
In the contested case, there may be sources of information that you will consider admitting into evidence, such as the reports of custody evaluators or expert witnesses. Determining whether to admit the reports or testimony into evidence and the extent to which you rely on them must be carefully considered, especially in cases where the safety of a child or a parent is at issue. 32 A good test of the source’s expertise is whether any recommendations take into account the need to protect the physical and emotional safety of the child and the at-risk parent, and whether the recommendations offered make full use of the range of available alternatives. 33 While you may have one or more expert recommendations regarding the child’s best interest, the ultimate responsibility for decision-making on issues of custody and visitation of course lies with you.
Under relevant evidentiary standards, the court should not accept testimony regarding parental alienation syndrome, or “PAS.” The theory positing the existence of PAS has been discredited by the scientific community. 35 In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert case. 36 Daubert, in which the court re-examined the standard it had earlier articulated in the Frye 37 case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. PAS does not pass this test. Any testimony that a party to a custody case suffers from the syndrome or “parental alienation” should therefore be ruled inadmissible and stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard. 38
The discredited “diagnosis” of PAS (or an allegation of “parental alienation”), quite apart from its scientific invalidity, inappropriately asks the court to assume that the child’s behaviors and attitudes toward the parent who claims to be “alienated” have no grounding in reality. It also diverts attention away from the behaviors of the abusive parent, who may have directly influenced the child’s responses by acting in violent, disrespectful, intimidating, humiliating, or discrediting ways toward the child or the other parent. The task for the court is to distinguish between situations in which the child is critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications), and situations in which the child has his or her own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. Those grounds do not become less legitimate because the abused parent shares them, and seeks to advocate for the child by voicing his or her concerns.
To encourage respectful interaction during the course of litigation, you may wish to
To ensure safety during the course of litigation when you suspect that one parent has been controlled by the other parent, you may wish to
As a judge, you may take steps that require a parent to act or to refrain from action. One of the most important steps you can take when you recognize abuse is to remind yourself that the abusive parent must be held accountable for the abusive behaviors. Remember that the source of the family’s problems is not immaturity or poor communication, but rather that one parent and the child are very much at risk of being abused by the other parent. If you can make the at-risk parent and child safe, their lives and behaviors will improve. Assigning accountability to the controlling parent and not permitting it to be shifted to the at-risk parent is the best and safest approach you can take. 40
In cases involving family violence, parents may relocate to perpetrate or escape abuse, often taking children across state lines. This may create confusion about which state should make or modify custody decisions. To help courts decide these jurisdictional issues, all states and the District of Columbia adopted the Uniform Child Custody Jurisdiction Act (UCCJA). Most states have replaced the UCCJA with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 41 The UCCJA and UCCJEA set standards for determining when a state can appropriately exercise jurisdiction in cases involving custody and visitation decisions. The acts also require states, except in limited circumstances, to enforce custody judgments issued in other states.
The federal Parental Kidnapping Prevention Act 42 (PKPA) and the full faith and credit provisions of the Violence Against Women Act 43 (VAWA) also may apply in child custody proceedings.
Other federal or international laws and treaties also may come into play. 44 It is important to familiarize yourself with these laws, particularly when dealing with pro se litigants in family violence cases. 45
A state court may exercise jurisdiction to make an initial custody decision if it has one of the following (in order of priority):
Home state jurisdiction. Home state refers to the state in which a child has lived for at least six consecutive months immediately prior to commencement of the current case. If home state jurisdiction in your state is relied on as the basis for an initial custody decision, your state will have continuing jurisdiction to make future custody determinations for that child so long as at least one parent continues to live in your state.
Significant connection jurisdiction. To have significant connection jurisdiction, the court must find that the child and at least one parent or person acting as parent have a significant connection with your state and substantial evidence is available in your state concerning the child’s care, protection, training, and personal relationships. A state may exercise significant connection jurisdiction if no other state has home state jurisdiction or if the child’s home state has declined to exercise jurisdiction.
Last resort jurisdiction. This applies if no other state has home state or significant connection jurisdiction, or all other states having jurisdiction have declined to exercise jurisdiction.
A state may exercise temporary emergency jurisdiction if the child has been abandoned in the state, or it is necessary to protect the child because the child, child’s sibling, or parent is subjected to or threatened with mistreatment or abuse. A court may exercise temporary emergency jurisdiction even if it is not the child’s home state and the child does not have a significant connection with the state. Abuse of a parent is significant to a child’s welfare and is often a reason for a court to exercise temporary emergency jurisdiction.
If a court exercises temporary emergency jurisdiction to protect a child from harm, no other court has issued a custody decision, and a custody proceeding has not been commenced in a state with jurisdiction, the child custody determination will remain in effect until an order is obtained from a state having home state, significant connection, or last resort jurisdiction. If no other state exercises jurisdiction, the orders made pursuant to temporary emergency jurisdiction may become final orders. If a custody proceeding has been commenced or a custody decision has been made in another state, your temporary emergency order is truly temporary. It should remain in effect long enough to allow the petitioner to seek an order from the original court. When two states are involved, you must communicate with the court in the other state to resolve the emergency and protect the parent and child.
A court in one state may not modify another state’s custody judgment or decree unless the new state has acquired home state or significant connection jurisdiction and the court of the initial state
It is important to communicate with other courts in these circumstances, using the express procedures of the judicial communication statutes enacted in your state. You should discuss whether the other court still has jurisdiction, which court is the most convenient forum, and which court can provide the best protection for the at-risk parent and child.
If you issued an initial custody decision and the parent and child move to another state, you may be contacted by a judge in the new state about jurisdictional issues. This is a good time to review your case file to determine if it contains indicia of coercive control or other abusive behaviors. Sometimes in hindsight, certain behaviors or strategies will indicate abuse that initially went unnoticed.
[§5.4] Remember: Under the Violence Against Women Act, custody orders entered as part of civil protection orders must be given full faith and credit if the orders were issued after notice and an opportunity to be heard in the issuing state. Consider checking your local statutes to see how your jurisdiction handles jurisdictional issues.
Parents relocate for reasons other than to escape or perpetrate violence. For example, a parent who has been abused may move closer to supportive family members or for financial reasons. The same jurisdictional laws apply to these moves except that temporary emergency jurisdiction may not be available. 46
Tribal courts vary in their responses to custody issues and family violence. As sovereign nations, tribes have their own laws addressing civil protection orders, custody and visitation, and parent-child relationships. If you have a case involving Indian children or jurisdictional issues with a tribe, you should communicate with the tribal court.
Often, one of the parties requests that the court enter an interim order of custody or visitation at the outset of a case. In cases where the pleadings or affidavits in support of such a request contain allegations that raise safety concerns, or you have such concerns for some other reason, you should consider scheduling a hearing, even if your jurisdiction allows temporary or emergency custody and visitation rulings without a hearing. The hearing can provide you with an opportunity to gather important information and conduct a safety assessment.
Some examples of concerning allegations are:
As with the initial filing, you may not have substantial evidence before you at this stage; nevertheless, you may observe statements or behaviors that trigger your concern for a child’s physical, emotional, or mental health with one or the other of the parents. Though coercive control can be subtle and the things that concern you are only nuances, they should not be disregarded. They serve to keep you alert for other indicia as the case progresses.
Financial control is frequently part of coercive behavior and can be sufficient in itself to maintain control over the entire family. Controlling finances can also be a method of limiting the other parent’s ability to parent effectively. For example, abusive parents might want to pay family expenses directly, rather than make support payments to the other parent. More typically, financial control appears as part of a complex of controlling behaviors. 48
At this stage, you may feel that you do not have sufficient information to make a decision on custody and visitation based upon the pleadings or other evidence presented. As long as you have unresolved safety concerns, you should refrain from any decision. Steps you can take to move toward the certainty you need include
Whenever you have concerns regarding the safety of a child or a parent, you should consider protective measures such as professionally supervised visitation or limited access by the abusive parent if there are no formal supervised visitation centers in your community. You could order enrollment and strict attendance in a certified treatment program for the abusive parent. 49 While compliance with a treatment program order does not ensure that an abusive parent has changed the concerning behavior, non-compliance can be a clear indicator that a parent does not respect boundaries. Not respecting rules and boundaries (including the terms of your orders) is often characteristic of individuals who engage in tactics of coercive control.
It is troublesome to consider that the individuals who appear before you may be causing harm to their children, whether they are doing so directly or indirectly. The earlier in a case that you recognize signs of coercive and controlling behaviors, the earlier you can take steps to create safety for the child and the at-risk parent. Often, you may be able to recognize signs of abuse at the very beginning of a case, long before an evidentiary hearing is calendared.
It is important to review thoroughly the content of the pleadings as well as the litigants’ court history very early on. Even though most judges feel the pressure of a busy docket and know that the claims pled and remedies requested may change during the course of the litigation, taking time to consider carefully the information that initial filings contain is a good use of resources. In fact, spending time considering what is – and what is not – contained in the pleadings may save substantial time as the litigation proceeds. The earlier you become aware that safety may be a consideration in the case, the earlier you can issue appropriate orders.
For example, was cruelty or abuse alleged in the pleadings? Allegations of abuse must be taken seriously as a warning sign that household members could be unsafe. Of course, the parties will have to provide evidence to the court to support any claim of abuse; yet, the fact that one party has made the allegations should alert you to be mindful of safety issues. At this stage of the litigation, you simply want to be aware of the fact that abuse has been raised and that further exploration on your part is required.
You might consider obtaining a history of prior court proceedings by the parties. Information contained in civil protection orders, prior family court pleadings, and criminal records might indicate that the family is high-risk and that the children might not be safe. Even though it is far too soon for findings in the case, it is important at this stage to be alert to the fact that safety is a likely factor.
The absence of allegations of abuse or the absence of requests for sole custody does not mean that safety risks are not present. For any number of reasons, victims of abuse may fail to disclose the abuse in their initial pleadings; among them, a fear of increasing the level of dangerousness, 50 embarrassment or shame, or advice from an attorney that asserting such claims may be detrimental to their case or delay resolution. Continuing to be sensitive to safety risks as the case proceeds will help you make appropriate safety assessments.
Requests to exclude one parent substantially from any form of shared parenting may be made for one of two reasons: the abusive parent might be attempting to control the litigation and the at-risk parent by requesting sole physical custody or sole decision-making authority regarding the child; 51 or, if abuse has occurred, the abused parent may be making the request as a safety strategy for both the abused parent and the child. In essence, either parent’s request for sole custody may be a warning that family members have experienced abuse. Because there may be safety concerns underlying the request for sole custody, explore the reasons behind the request prior to making any determination about custody or visitation.
[§7.5] Remember: Performing a sufficient initial safety assessment is critical to good decision-making. Paying attention to potential safety issues at the outset of the case reduces the risk of harm to abused family members and helps ensure that the court proceeds in a positive direction. Early assessment and intervention also result in a savings of time for the court later. Additional hearings in order to put safety measures in place at a later time, when access issues break down, are potentially avoided. Careful scrutiny through a safety lens early on can help ensure that the best interest of the child is met.
A number of strategies are available to control the discovery process and enhance safety:
When you determine that a situation requires a third-party professional and the safety of the child or a parent is at issue, it is critical that you appoint professionals who are qualified. It is essential that any53 professional brought into such a case, in whatever capacity, has extensive training in the dynamics of abuse and coercive control. As stated earlier, this pattern of behaviors is complex. Abuse and the responses to it are sometimes counterintuitive, susceptible to misinterpretation, and can lead to serious harm to the parent who is the target of abuse and to any child exposed to it.
Many jurisdictions require a pretrial conference to narrow the trial issues and settle those issues on which the parties agree. Your jurisdiction might require the parents to meet to discuss settlement prior to appearing at the pretrial conference. In cases where a protection order is in effect, you might amend the meeting requirement so that only the attorneys meet, if both parents are represented. To require the parties to come face-to-face where a protection order specifically prohibits such an event sends mixed messages to the parents, sets up a potential power imbalance between them, and can increase the level of harm to the at-risk parent.
Whenever you draft a pretrial order, be as clear and specific as possible. In cases where coercive control does exist, the abusive parent will likely use every contact with the other parent as an opportunity to continue the abuse. Therefore, the less room for contact or for differing about the meaning of a term of your order, the greater the safety. In some cases, where risk is high, you may need to provide for no contact between the parties or between the abusive parent and child, at least at this stage of the proceedings.
[§8.5] Suggestions: In appropriate cases, consider an award of substantial attorneys fees at the outset of the case. This corrective action is important where, for example, the abusive parent controls access to the financial information or controls the purse strings, so the at-risk parent lacks the means to finance necessary discovery.
A parent who uses tactics of coercive control may find litigation to be an effective means of controlling the other parent. 55 Contact with the at-risk parent is critical to effectuating control strategies, and family court processes allow many opportunities for contact. Often court proceedings are the only contact available if the two parents are living separate and apart, with a protection order in place.
When both parents are pro se, court processes permit them direct access both in and out of court. When the abusive parent has legal representation, frequent court hearings reinforce the imbalance of power for unrepresented, at-risk parents and run up legal costs for at-risk parents who have retained counsel. For the at-risk parent, multiple pretrial appearances tend to maximize emotional trauma and increase the risk of losing employment by requiring time away from work.
Pretrial restrictions on custody and visitation are an especially powerful trigger for abusive behavior. Very often, abusive parents make multiple appearances seeking to undo orders that they perceive to be unfavorable to them, even in the absence of any change in circumstance between hearings. In addition, abusive parents may make multiple requests for continuance or otherwise seek to postpone final judgment. A final judgment will provide one less means of access to the at-risk parent and possibly to the child.
Most jurisdictions, including tribal courts, favor resolution of disputes without the need for litigation. Many family law courts automatically refer a dispute regarding children to some form of mediation. Mediation may even be mandatory in your court for all child custody matters.
To be successful, mediation requires an equal balance of power across the table. Situations that involve coercion, whether physical violence has occurred, are generally not suited for mediation. Although there are circumstances under which mediation can be configured to maximize safety, it is best avoided in cases where coercion and safety are factors for either a parent or a child. 56 This is so even if no civil protection order has been entered in the case.
Mediation assumes that if communication skills can be improved, the parties will be able to work together. 57 However, abuse is not a communication problem. Indeed, any communication between the parties may increase the safety risks for the at-risk parent by providing opportunities for control by the abusive parent.
In many cases involving coercion and abuse, mediated agreements do not save the court’s time or the parties’ money down the road. If one party controlled the terms of an agreement, then litigation is likely to ensue in the future. A party who felt in control of the mediation is likely to advocate for ongoing mediation should problems arise in the future, perpetuating that party’s position of power.
As one of the gatekeepers to the process, you can order other options when mediation is inappropriate for a given case. Most mediation statutes and orders contain an “opt-out” provision where safety issues are of concern. 58 If your mediation statute, standing order, or policy recommends but does not mandate mediation, consider not requiring the parents to mediate their child custody and visitation issues. Since mediation is often ordered at the beginning of a case, it is important that you take the time to review pleadings and conduct an inquiry before ordering any contact between the parties. Where the parties are represented by counsel, you can ask the attorneys whether the case is appropriate for mediation, although not all attorneys are sensitive to the risks of mediation in abuse cases. An at-risk parent might opt for mediation if that parent is assured that the process can be made safe. Remember that pro forma orders of mediation, without any inquiry into the appropriateness of the order, can increase safety risks as well as create more work for the court in the future when mediated agreements break down. 59
If your decision is to order mediation, you can improve its safety by
While collaborative law has been a useful tool for settlement of many family cases, it is generally inappropriate for cases involving coercive control. The process requires frequent in-person meetings between clients and counsel. If the matter does not resolve, the parties must hire separate counsel to litigate, making the process appropriate primarily for parties with means. The negotiation sessions provide opportunities for exercise of ongoing control by the coercive parent. The presence of counsel does not diminish the frequency or impact of the coercive behavior. Like mediation, the process can incorporate safety measures, such as the use of videoconferencing and representation by counsel who are well-trained in the dynamics of coercion and violence. The expense, the lack of understanding of some family law lawyers in the dynamics of domestic violence, and the ongoing contact between the controlling and the target parent make this process inappropriate in domestic violence cases.
In cooperative law, the same lawyers who negotiate on behalf of the clients are permitted to litigate the case if negotiations fail. This process may be even more dangerous to the atrisk parent because negotiations carry the awareness that litigation will follow if the at-risk parent does not cooperate. The process could easily be used by the coercive parent to gain informally information that may be used against the at-risk parent during litigation. The atrisk parent is often best protected through the parallel process of formal discovery and negotiations through counsel.
[§9.6] Remember: An abusive parent might favor mediation or other forms of alternative dispute resolution. The abuser knows that contact with the at-risk parent is an effective means of continuing coercion. Often, an at-risk parent will agree to mediation or other processes believing that the mediator will somehow be able to correct the power imbalance during the process. An at-risk parent who agrees to mediation or other alternative forms of dispute resolution must be made aware of the attendant risks. It may be that the burden of explaining these risks and incorporating safety precautions falls to you.
Ideally, all parents would be able to resolve their child custody and visitation disputes in a manner that provides for safe and healthy relationships among all concerned. It may seem that adults would prefer to make for themselves such crucial decisions as the custody and visitation arrangements. We reason, therefore, that a settled case is better than a tried one. Such assumptions rarely hold true where one parent has subjected the other to coercive control. As indicated earlier, where there is an imbalance of power, the more powerful parent will often prevail in negotiations. The parent who feels threatened or coerced into settling the custody matter is unlikely to admit so in court, especially in the presence of the abusive parent. Any inquiry into the voluntariness of an agreement’s execution where coercive control exists is inherently unreliable, even though it may be required in your jurisdiction. Your obligation to review the agreement for appropriateness does not end because the case is uncontested or has settled. As a judge, you are in a unique position to determine whether the plan is appropriate for the parents and is in the best interest of the child, given their particular circumstances.
In non-abusive relationships, parents often work out child-centered arrangements for custody and visitation. Parents in non-abusive relationships frequently work out plans that provide each parent with substantial, but not necessarily equal, time with the child. Child-centered parents often recognize that for a variety of reasons, the child will thrive by spending more time at the residence of one or the other of them; and that those time allocations are likely to change in the future to accommodate the child’s developmental needs. Parents in non-abusive relationships must work through the difficult adjustments that come with separation but ultimately focus on the best interest and the particular needs of their child.
Your review of agreements that provide for equal physical time with the child should include the following considerations:
These questions are not exhaustive. There may be additional considerations as you review each case and each agreement. You may want to consider the same questions when drafting your decisions and orders.
Often parents have a difficult time distinguishing between their needs and those of the child. You may be the only one who is reviewing the agreement from the child’s perspective.
Some jurisdictions presume by statute that parents shall have equal decision-making authority on issues involving the child. Most presumptions, appropriately so, include exceptions for cases where there is a history of abuse.
Joint decision-making arrangements put the parents in the position of having to communicate frequently and directly with each other. This contact allows the pattern of abuse and control to continue, and perhaps even encourages it to escalate, since the abusive parent now has a court order that supports contact and forces decision-making with the at-risk parent. Likewise, “joint decisions” in these situations are often no more than the coercive parent dictating what will happen. Joint decision-making arrangements may present children with the opportunity to learn that abusive behavior is an effective and appropriate tool of control, which is not in their best interest.
Your review of agreements that call for joint decision-making should include the following considerations:
Agreements giving sole physical custody or sole decision-making authority to one parent likewise should attract the court’s heightened attention. You will need to review the history of both the case and the family. Sole custody and sole decision-making authority may well be an appropriate solution in a case where a parent or child has experienced abuse, but can be harmful or dangerous if allocated to the abusing parent. When you are presented with agreements that allocate custody and decision-making exclusively to one parent, you should inquire:
No single answer determines whether you should approve the agreement. You will need to consider all of the circumstances of the particular case and may at times reach unexpected results. For example, where an at-risk parent agrees to a change in custody of a child, it may be that the at-risk parent is attempting to minimize the extent of the abuse in order to secure some level of future safety and security. 60 Likewise, an at-risk parent could agree to one child residing with the abusive parent in order to secure the safety of the other children.
It can be tempting to allow requested relief when the other parent does not appear in court. However, a party’s non-appearance does not relieve you of your obligation to review the requests in light of the best interest of the child. This is particularly so when the relief requested changes an existing order of custody or visitation.
The inquiries suggested above for sole custody requests are appropriate in the uncontested case as well. In addition, where a party fails to appear and you have concerns that the nonappearing party may be an at-risk parent, you might
There is no evidence that mediated or settled agreements in cases involving abuse are better for the parties or the court. When a party signs an agreement out of fear, that case is likely to return to the court repeatedly. Often, the agreement breaks down because the atrisk parent recognizes that the agreement, when implemented, either is not in the child’s best interest or is unsafe.
Alternatively, it is not unusual for an abusive parent to bring the case back on the court’s docket whenever the other parent questions decisions, or makes decisions, no matter how trivial, without consultation.
Whenever you have concerns about an agreement or uncontested matter, consider asking the parents why the intended arrangement is in the best interest of the child. You may find that an at-risk parent answers your questions from a conviction that the agreement is not, in fact, in the child’s best interest. In the final analysis, if you have misgivings about whether the terms of an agreement are best for the child, you are not bound to accept the agreement.
For several reasons, both parents will benefit from clear, precise orders complete with detailed findings of fact and conclusions of law. Findings provide clarity to the parents. Conclusions explain to counsel and the parents the legal underpinnings of your decision. Making your reasoning clear from the beginning of the case through final judgment offers the best assurance that the relief you have shaped actually will occur. Well-crafted findings and conclusions will not only support you in the event of an appeal, they could prevent an appeal.
You can enhance safety by making clear to the abusive parent what past abusive behavior you find inappropriate and that such behavior must be modified before you will consider any change in your order. The at-risk parent will feel supported in requests for safety considerations and will be on notice about what behavior changes you require of the other party. Future judicial officers will benefit from the guidance that findings of fact and conclusions of law will give them, should they preside over related contempt or modification proceedings.
Making findings of fact about past behavior may also be necessary to support or rebut certain statutory presumptions regarding the best interest of the child. Some of the statutory presumptions that might require findings of fact and conclusions of law are
Your findings will be best understood if they are comprehensive. The best findings might encompass
Always connect your findings and conclusions to the safety and best interest of the child. When findings wrap around the child, positioning each finding to support the child’s best interest, they are difficult to dispute. You will want to make reference to the testimony and other evidence that supports each finding. The same method is helpful in drafting conclusions of law. When you draft conclusions that support every detail of your judgment, you will know that you are on solid ground for enforcement and appeal.
In matters where abuse is an issue, extensive findings of fact and conclusions of law can assist the parties to understand the factual and legal basis for your decision. When you take the time to write extensive findings of fact and conclusions of law, the parties are more likely to see that you considered their evidence and positions. When litigants believe that they received a fair hearing, they are more likely to comply with the order, even if the result was not what they hoped.
You may initially be concerned that extensive findings might provide a party with grounds to appeal. In abuse cases, the more carefully you set out the parties’ history, the pattern of abuse, the resulting family dynamics, and the best interest of the child, the more likely an appellate court will understand the factual and legal underpinnings for your decision. Should the matter be appealed, you will have an extensive basis for your decision, which will enhance its chances of being affirmed.
All in all, there is no downside to careful drafting of findings and conclusions.
It can be beneficial in every case to state, with specificity, the custody arrangement and any schedule for visitation. In cases that involve coercive control, such a schedule is imperative, and the more detailed, the better. The family will be safer and be less likely to return to court if the order or judgment anticipates and speaks to as many situations as possible. Attention to detail can reduce or eliminate the need for contact between the parties.
Information you should request of the parties before the close of the hearing:
If you determine that the case involves a parent with a history of violent or coercive behavior, then you will want to consider
Supervised visitation or exchange is preferred where you have found that one incident of abuse or a pattern of abuse was present in the family. 62 Supervised visitation or exchange is also preferred where a parent has abused third parties, including former intimate partners or other children. Many supervised visitation centers have the training and experience to provide services specifically for domestic violence cases. If you do not have a supervised visitation center in your area, local advocates or domestic violence law enforcement might help you develop some creative solutions. Rarely will family members be appropriate supervisors.
Asking staff or counsel to contact supervised visitation centers to obtain copies of their hours of operation and their visitation rules and regulations will give you helpful ideas for drafting an order that sets out the guidelines of supervision. In some situations, it simply will be too unsafe for either the child or one of the parents for you to order visitation. You will want to make sure that you set out your findings carefully to support any termination, suspension, or restrictions on visitation.
The best interest of the child demands that the safest and healthiest environment possible be created for the child’s development. Your orders can accomplish not only safe visitation and custody, but provide maximum nurturing for the child.
Accountability and consequences for the abusive parent can be effective tools for stopping the abusive behavior and improving the safety of the other family members. Enforcement proceedings afford valuable opportunities to control abusive behavior and shift the balance of power away from the abuser.
Abusive parents generally have carefully manufactured a situation that facilitates and, in their minds, justifies their behavior. When the justice system fails to hold abusive parents accountable, especially when their behavior has been revealed to the court, it reinforces their belief that there are no real consequences for their actions. Because the abusive parent now sees the court as a collusive partner, he or she may have no reason to think that the court will hold him or her accountable to obey any of its orders. This result puts both the child and the at-risk parent in an extremely dangerous position. 63
There will be times when the at-risk parent violates an order. As with decision-making at other critical points in the case, context is everything. In order to intervene effectively, it is important to understand the effect that coercive control has had on the at-risk parent and the context within which any violation of your order occurred. 65 For example, an at-risk parent may violate an order to protect the child’s physical or emotional safety, particularly if the child was abused during a visit. Equally important is that you evaluate any new allegations of abuse to avoid placing the at-risk parent in the no-win position of choosing between non-compliance and failing to take action to halt further abuse.
If a parent files for contempt for what appear to be trivial infractions, that parent may be using the legal process as a tool to continue the coercive control. To enhance party safety, protect the at-risk parent from financial obligations resulting from the other parent’s behavior, and prevent the use of your court as a tool for coercion. Also, inquire into facts behind any alleged contempt with both parties, and the intent of the complainant, where possible. While the answers may not alleviate any contempt finding, it may prompt you to consider revising a prior order.
While child custody and visitation issues can be difficult ones, there are strategies that can guide you in making appropriate and effective decisions. Familiarity with the dynamics of abuse will clarify and simplify custody and visitation cases where domestic violence, sexual assault, dating violence, or stalking may be an issue. Being familiar with the dynamics of abuse and the tactics of coercive control, through observation of the family and review of the supporting literature, can assist you in making appropriate child-centered orders that maximize safety.
Remember: Like adults, children who are exposed to violence respond in a variety of ways.
Abuse committed directly against a child, or violence committed in the child’s presence, can make a child more vulnerable to a variety of adverse consequences. Some signs can be:
Emotional abuse can be as damaging as physical abuse in destroying the child’s self-confidence and self-esteem. Being in the presence of offensive and abusive behavior is not in the best interest of the child. Research shows that children who have been subjected or exposed to violence in their homes have a better chance of minimizing the harm sustained to them if all systems intervene, maximizing their exposure to supportive roles with caring adults, especially the non-violent parent, and minimizing the exposure to the violence and its accompanying behaviors.
If your findings of fact support the conclusion that abusive behavior has occurred in the presence of the child, or toward the child, consider ordering no visits or only supervised visitation with clear guidelines and controls and appropriate interventions for the abusive parent. Monitor progress and ease contact restrictions if you determine that the interventions are proving effective and if safety permits. In the alternative, limit visitation until conditions are met.
While psychological testing of the child or parents may be helpful to raise issues within the family or individual psychological needs, testing is not determinative of whether an individual is an abusive parent or an at-risk parent. No psychological test exists that can accurately determine whether a parent is abusive.
Abusers often will use only as much coercion as is necessary to maintain control over the other parent or the child. Some common methods of control that may come into evidence are:
Remember: It is important to get an overall picture of the family’s dynamics and history. Look for behaviors or patterns of behavior that may have emerged over time.
Remember: When there is conflicting testimony, fact-finding requires more than simply determining credibility; it requires you to assess bias, motive, and the perspective of the parties.
Cross-allegations of abuse are not uncommon. Sometimes, it is the abusive parent who raises issues of abuse in an effort to discredit the at-risk parent. To sort through this type of testimony,
As you assess bias, motive, and the perspective of the parties, you will be tempted to consider the in-court behavior of the parties as evidence of whether abuse has occurred. Do not assume that either an abusive parent or an at-risk parent will act or respond in uniform, stereotypical, or predictable ways. For example, in court,
An abusive parent might
An at-risk parent might
Remember: The attorneys appearing before you and the third-party professionals whom you rely on for information may not be trained to detect or elicit evidence of abuse.
The at-risk parent or child may be re-traumatized by the presence of the abusive parent, which may affect how and whether their testimony is presented. Techniques exist that can help you get the information you need and control the presentation of evidence. Consider using these even when one or both parties are represented by counsel.
A note about using interpreters: If the at-risk parent is giving testimony through an interpreter, keep in mind that translations are often not exact, and the details of the abuse may not be completely reported. Follow-up questions by the court can fill in gaps in information.
Remember: Parties may move to or from your jurisdiction for reasons concerning the safety of a child or parent.
Your local statutes and rules will govern procedures for establishing jurisdiction and for communicating with judges in other jurisdictions.
If a parent has relocated to escape abuse, it is important to identify the reasons behind the relocation as you ascertain jurisdiction. Questions you can answer to determine jurisdictional issues include:
If safety is an issue and you do not have concurrent jurisdiction, consider requesting the home court to defer jurisdiction to you.
Before proceeding with the substantive hearing, you should inquire
Even if abuse is not apparent, consider whether the family’s history supports the relocating parent’s safety concerns. For example:
Being sensitive to the escalation of non-physical forms of abuse can assist you in determining safety risks to the child.
Remember: Issues of safety may exist that need to be addressed between the time of initial filing and the final order.
At this stage of the case, there may be very little or no evidence regarding safety issues, but safety issues may nonetheless exist. If a temporary order will be in place prior to the issuance of the final order, you may wish to take steps to ensure the safety and best interest of the child.
What you can do:
Emergencies can exist that require an immediate decision prior to notice being received by one of the parties.
An emergency order for custody will be appropriate where
Ultimately your decision should be based on what is safest for the parties.
Sometimes, a parent will take the child out of the jurisdiction for his or her safety or that of the child. While you may find that removal of the child was inappropriate, it is essential that you address the underlying safety concerns that caused the parent to relocate. If you determine that a child who has been inappropriately removed is with the safe parent, consider fashioning an order that is least disruptive to the child.
Remember: Determining whether safety is an issue is the necessary first step in all custody and visitation cases.
A few factors that might require you to explore the family’s safety issues further include:
Keep in mind that none of the above factors is determinative of which party is or may be abusive. The factors are indicators, however, that abuse may be present in the family and that further inquiry is warranted to determine the existence or source of the abuse.
Are there allegations that have raised safety concerns?
IF YES: There are suggested measures you can take, such as:
IF NO: Proceed in your usual fashion, with the understanding that safety issues may emerge over time. Periodically, you may want to check court information systems for any orders of protection or other pending civil and criminal cases.
Remember: Abusive parents often use the pretrial process as a tool of coercion and continued abuse.
Abusive parents often file excessive motions, requests for discovery, and other pleadings so that the at-risk parent must make frequent court appearances or incur increased expenses.
You can protect the at-risk parent and control the litigation by
When making temporary, interim, or emergency custody orders, you can maximize safety for the child and the at-risk parent by
Sometimes ex parte orders are requested by the coercive parent who is seeking to maintain control over the other parent or the child. When presented with an ex parte request for custody, take steps to explore whether there are ulterior motives for filing the ex parte motion.
Remember: Abusive parents often use the pretrial process as a tool of coercion and continued abuse Remember: Abusive parents often use the pretrial process as a tool of coercion and continued abuse Remember: Mediation is generally not appropriate where safety issues (domestic violence, stalking, coercion, or sexual assault) of a parent or child are identified.
Many jurisdictions mandate mediation of child custody and visitation disputes; some exempt cases where safety to one parent is a factor.
Although safety risks, abuse, or coercion might not be identified at the point of initial filing, risk issues might arise as the case proceeds. You should examine whether cases labeled “high-conflict” are appropriate for mediation, since many high-conflict cases have abuse or coercion as a component.
Does the case before you have abuse of a parent as a component?
If YES: Mediation is generally not an appropriate form of resolution.
If NO: Periodically review the case for safety issues because disclosures of abuse often occur over time.
Remember: An agreement might have been coerced, even though the matter appears to be uncontested.
Some warning signs that the agreement was the result of coercive control might be:
What you can do if the agreement seems unreasonable or you suspect there could be issues of unequal bargaining power:
Actively obtaining the information you need to make an informed decision does not compromise your neutrality.
Factors to consider:
Remember: All jurisdictions require abuse to be considered as part of a custody determination.
Determining which parent is or historically has been the primary caregiver is important to the decision-making process. Interruption of a child’s routine or bonding may have negative consequences to development and well-being. You may wish to ask:
Remember: In all custody and visitation decisions, be sure to support your conclusions and judgment with appropriate findings of fact.
In applying your jurisdiction’s best interest standard to your conclusions of law, keep in mind
Even if you determine that the evidence does not trigger a presumption of custody, it may support a conclusion that contact with one parent is not in the best interest of the child.
Joint physical custody and joint decision-making authority are not appropriate where there is evidence of one parent emotionally, sexually, physically, or mentally abusing or controlling the other parent.
“Friendly parent” statutes are usually not applicable where one parent has abused the other.
Although it is one of the most difficult decisions you make, consider ordering no contact between a child and parent, even on a trial basis, when
Remember: Precision and attention to details minimize the need to return to court and can enhance safety by reducing the need for contact between the parents.
When safety of a parent or child is an issue:
Remember: Make certain your order does not conflict with the terms of an existing protection (or other) order.
Enforcement of orders and holding abusers accountable for violations is critical to assuring that the child and the at-risk parent remain safe.
You can help keep children and the at-risk parent safe by
Remember: Not respecting rules and boundaries is part of abusive behavior, and abusers often use non-compliance with orders to continue control over the child and the other parent.
Sometimes it is the at-risk parent who violates the court order. If you have identified the at-risk parent and that parent violates the order, you should inquire:
Even if you find that the information you receive is not sufficient to excuse the non-compliance, the responses may assist you in determining whether some revision of the order is necessary to protect the at-risk parent or child.
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