Divorce, Child Custody, and Domestic Violence

Approximately 50 percent of all first marriages in the United States end in divorce. The rate of divorce is even higher among second marriages. Approximately 1,000,000 children are affected each year by divorce. Determination of where a child will live after a parental divorce and whether the child will have ongoing contact with the noncustodial parent and on what schedule are important issues. Although only about 10 percent of first-marriage divorces where there are minor children involve a legally disputed child custody case, these are often the mostly highly contentious and hostile of situations, in which children are exposed to tremendous conflict. Accordingly, accusations of domestic violence (i.e., violence between adult intimate partners) are not uncommon in such contested custody disputes. Even when ‘‘custody’’ or primary residential responsibility for a child is not legally disputed, the presence of spousal violence significantly impacts post-divorce matters. Most notably, custody and visitation laws often promote the notion that parents should be given equal access to children as well as equal say in decision making. When parents get along well or at least are able to put aside their own differences for the sake of their children, these notions are appropriate. However, achieving equal access and decision making usually requires a high level of contact, communication, and negotiation between the parents. This can be quite difficult even in cases where there is no domestic violence. Expecting that level of cooperation to occur where there has been domestic violence may be unrealistic and potentially damaging or even life threatening for the children and the spouse-victim.

Impact of Divorce and Domestic Violence on Children

Divorce is a difficult situation for children. The effects of divorce on children can be devastating, although there are certainly broad individual differences in children’s abilities to assimilate this and other traumas in their lives. Discussion of the research on the immediate impact of divorce as well as the impact on children’s life-span adjustment is beyond the scope of this research paper. However, in general, children whose parents divorce may have additional problems, such as conduct disorders like defiance and aggression; signs of psychological maladjustment such as depression, anxiety, and fear; lower academic achievement; increased social difficulties; and poor self-concept. Evidence suggests that such problems may continue into adulthood, with adult children of divorce scoring lower on various indices of well-being. It should be noted that differences are not large between the adult children of divorced and non-divorced parents and that the two groups overlap a lot. However, in studies, some adult children of divorce report it as having been a severe stressor which resulted in substantial impairment and decline in their well-being. Adult children of divorce may display lower psychological well-being and more behavior problems. They may have achieved less education and have lower job status and a lower standard of living. Lower marital satisfaction and higher divorce rates have also been reported among adult children of divorce.

The long-term effects of divorce often result from the presence of multiple changes and problems surrounding the divorce which seem to compound children’s post-divorce negative adjustment. For instance, factors such as parental absence, economic hardship, associated life changes, poor emotional adjustment in parents, and poor parenting skills all increase the likelihood that a child will have difficulty adjusting. A child will usually have a more difficult time adjusting to the divorce when he has to move from his residence, change schools, can no longer participate in extracurricular activities due to financial constraints, loses regular contact with a parent and/or extended family members, and has to give away a pet because the new apartment complex does not allow pets. Adjustment problems may first take the form of noncompliance, aggression toward peers, and difficulty concentrating on schoolwork, which then leads to additional problems making friends with new classmates, building relationships with new teachers, and obtaining passing grades in school. More research is needed to determine under what conditions divorce is most harmful and what factors might mitigate the damage to children immediately following the divorce and later in life. One area that is quite clear in the literature is the impact of interparental conflict on children. In those cases in which a child witnesses conflict between the parents, even if nonviolent, the child will have a more difficult adjustment. Experiencing the stress and trauma of a divorce along with exposure to ongoing emotional and verbal abuse between parents or directed from one parent to another may be especially damaging to the child’s ability to function on a day-to-day basis and to continue thriving developmentally, psychologically, socially, and academically.

Exposure to domestic violence may include children witnessing actual incidents of violence between parents or parent figures or seeing the aftermath of an incident such as a parent’s arrest, injuries, or emotional distress. Children may feel responsible for ‘‘causing’’ the fight, especially when a domestic violence incident appears to begin with a dispute over disciplining the child, money for children’s needs, or other child-related issues. Children may be further involved in the domestic violence when they try to intervene between their parents or when they call the police. Just as with divorce, the impact of exposure to domestic violence on children is also variable because of many factors. However, once again, children experiencing the stress of exposure to interparental violence may exhibit more externalizing and internalizing behavior problems than children who have not been exposed to such violence. Children exposed to domestic violence may show more aggressive behavior in their school and community. They may display depression, anxiety, fears, phobias, insomnia, tics, bed-wetting, and low self-esteem. In school, problems with impaired ability to concentrate and difficulty with schoolwork can occur, as well as lower overall achievement. Just as with divorce, the coexistence of multiple risk factors is more important in predicting problems than the presence of any single factor alone. Children exposed to domestic violence are likely to do more poorly when uprooted from their homes and separated from their family members and have to experience the sight of their mothers responding poorly under conditions of great stress. In addition, negative outcomes are more likely for children exposed to both domestic violence and child maltreatment. Unfortunately, children exposed to violence between the intimate partners in their lives are also at greater risk of being directly abused both physically and sexually. There is increasingly negative psychological impact on children from nonviolent interparental conflict, exposure to physical aggression between parents, and abuse directed at the children.

Needless to say, when children are exposed to both divorce and domestic violence, the immediate as well as long-term impact on their adjustment can be dramatic. With traumatic experiences such as parental divorce or exposure to domestic violence, certain factors can lessen the negative impact. In the area of domestic violence exposure, the support of a parent or other adult who models good problem solving, intact parenting and coping skills by the victimized parent, and a safe haven at school, church, or community center can all be helpful. In addition, whenever possible, minimizing other changes in the child’s life is important. The research literature regarding divorce, as well as clinical experience with families who have experienced divorce, suggests that children do best when there is a low level of conflict between parents, when they maintain contact with both parents, when each parent copes well emotionally with the divorce and remains available to the children, and when there are a minimal number of divorce-related changes in their lives (economic hardship, moving, changing schools, etc.). Unfortunately, these areas of stability that can so assist children with continuing to thrive even through adversity are especially problematic when divorce is combined with domestic violence between the parents. The characteristics of the individual child will also have a significant mitigating effect on the impact of divorce, the exposure to domestic violence, and, in some cases, the experience of child abuse.

Clearly, it is important in these situations for the court to be aware of the programs and services that may be beneficial to the victim, the batterer, and also the children. These may include intervention programs which directly address the batterer’s violence, support programs and counseling services for the victim, counseling services for the children, and financial assistance to maintain as much stability in the children’s lives as possible. Victims may have diminished capacity to parent due to their victimization. They may need support and assistance in improving their parenting competence. Continued education of volunteers and other laypeople as well as professionals about domestic violence is important as well, so that children are surrounded with understanding and supportive individuals at school and in the community.

When Battered Victims Leave

There are many reasons that battered victims do not always leave after the first sign of emotional abuse or the first battering incident. One reason is that when victims have children, it is not uncommon for the batterer to have repeatedly threatened to take them from the victim through legal means in a divorce or to abscond with the children. Victims have often been told over and over by their batterers that they are unfit and terrible parents. Threats to seek custody and constant demeaning of victims’ parenting skills often leave them fearful of leaving the violent home for fear of losing their children. The victim may also fear that even if she does not lose custody of her children, the children might not be safe in the care of the father. This may be due to ongoing concerns about the batterer’s parenting skills and his direct abuse of the children. Once she is no longer present during their time with the father, she cannot act as a buffer between the father and the children. In addition, she may fear that his emotional state will deteriorate if she leaves. In fact, the batterer may have threatened the physical safety of the victim and their children if the victim tries to leave. Battered women are at greater risk for being killed when they resist or fight back. The ultimate method of fighting back is leaving the relationship, which in many cases puts battered women at an even greater risk of being seriously physically harmed or even killed by their batterers.

When battered women do successfully leave, this unsettles the entire twisted family balance. Battering men may fall apart when their victims leave, because their own insecurities and low self-esteem may render them unable to tolerate the rejection of a departing spouse. ‘‘Possession’’ of the children, even for brief periods, may be used by the father to torment and threaten their mother, the battering victim. The batterer may reenter an intimate relationship with another woman rapidly, creating additional stress in the co-parenting situation. Threats to seek custody of the children often continue after the separation as a way to maintain power over the other parent. If the batterer cannot reestablish control in any other way, he may in fact seek legal custody as a means to regain control. Even without seeking actual custody, ongoing conflict in the form of a variety of tactics might be manifested through the co-parenting relationship that the court requires of both the batterer and the victim. This may include such actions as constantly threatening court filings, refusing to provide basic information about the children’s care, refusing to disclose the children’s location during visitation, removing the children from school or day care randomly and without notice, threatening not to return the children after visitation, regularly returning the children late from visitation, refusing to allow the mother to speak to the children during the visitation, and many other tactics. The pattern of control does not usually end after the separation or even after the legal divorce.

Child Custody Determinations and Shared Parenting Expectations

Children’s well-being is a concern of society at large. Because the quality of parenting received throughout childhood significantly affects such well-being, the public has an interest in promoting positive parenting practices. In the divorce process, parents sometimes have difficulty maintaining the same quality of parenting, meeting the physical and financial needs of their children, and establishing a co-parenting relationship in the midst of the emotional tension that often characterizes the dissolving marital relationship. In addition, to continue effectively meeting children’s needs from two households, the roles each parent is expected to take must shift somewhat. On a practical level, the legal responsibilities for raising a child as well as the parental rights that go along with those responsibilities must be divided or clarified in some manner so that parents who share in those rights and responsibilities know what they need to do. Furthermore, this ensures that the children’s needs are met without interruption and that their right to access to their parents is similarly addressed.

Historically, children were considered the property of their fathers, who had absolute power over them as well as the legal obligation to care for them. Mothers essentially had no legal rights. Thus there was a presumption of paternal custody for a very long time, but that began to slowly shift in the nineteenth and twentieth centuries due to a variety of historical trends. These included changes in British law to suggest that children under the age of seven years should be in the primary custody of their mothers and that older children should have visitation rights with their mothers. The ‘‘tender years doctrine,’’ as it is commonly known, presumed that mothers were better able to nurture and care for children, especially young ones. In America, some states began to adopt their own statutes based on this English common law. The increasing concern for children’s rights and welfare evident in many changes in other areas of the law influenced such trends as well. Also, the Industrial Revolution led fathers and mothers into defined roles that would remain static for decades: the father as financial provider and the mother as child caretaker. Women’s increasing legal status in the United States in the early twentieth century also contributed. Essentially the maternal preference for child custody became as firmly entrenched as the paternal preference had been previously. Needless to say, exceptions have and always will occur to such trends; nonetheless, a well-established expectation that children, especially young ones, would be in the primary care of their mothers after a divorce continued for decades.

In the mid- to late twentieth century, as divorce rates began to rise and more mothers entered the workforce, the concept of a primary maternal caretaker began to weaken. More gender-neutral laws began to replace those gender-specific laws that had once been based on paternal property and later on maternal nurturance. The Uniform Marriage and Divorce Act in the early 1970s suggested a ‘‘best interest of the child’’ standard instead of a ‘‘tender years doctrine’’ as the basis for child custody decisions. Essentially it was proposed that the court give direction for the custody, care, and education of children as deemed necessary in their best interest. The court was to consider all relevant factors in making such determinations. The ‘‘best interest of the child’’ standard was adopted by states in various individualized forms. Custody decisions became based, theoretically, on consideration of the needs of the child rather than the gender of the parent. This standard asks courts to establish the custody and visitation arrangement that will best provide for the health, education, and welfare of minor children whose parents are divorcing. States have continued to operate generally under this principle, although vast differences occur in how the best interest of the child is to be determined and implemented. Even the terminology used to describe the custodial arrangements for children differ from state to state. Essentially, nearly all states distinguish on some level between legal custody and physical custody. Legal custody refers to the decision-making right and power regarding children, while physical custody refers to the physical care and supervision of the children or their living arrangements on a day-to-day basis. Legal custody is often expected to be shared by parents, although the sole right to make all decisions or decisions in a specific area regarding a child may be granted to one parent. Physical custody may range from one parent having the children the majority of the time to equal contact with both parents.

Examples of variations of custody terminology from state to state include rotating custody, shared parent responsibility, primary residential responsibility, sole legal custody, sole physical custody, joint legal custody, joint physical custody, divided custody, and split custody. The term ‘‘joint custody’’ is commonly used in the state statutes and in the literature discussing topics related to child custody. Joint physical custody means that each parent is awarded significant periods of time in which the child resides with each or is under her or his care and supervision. The time might not be exactly equal, but the idea is to ensure the child frequent and continuing contact with both parents. Joint legal custody means that the parents are to share in the decision-making rights, responsibilities, and authority relating to the health, education, and general welfare of the child.

In summary, in recent decades the movement in child custody has been away from a mother-dominated custodial arrangement to greater involvement of both parents in the form of joint custody (or a similar concept). This important topic of how to ‘‘divide’’ the rights and responsibilities of parents who are not residing together, while maintaining the focus on the child, has spawned much research, scholarly writing, professional opinion statements, and parent testimonials throughout the scholarly and popular media. Most would agree that the ongoing involvement of both parents in all aspects of children’s lives is important for their growth and development. Exactly how to accomplish that goal while also providing the child with a sense of stability is the subject of much debate. Regardless of how that is done, joint-custody type of arrangements tend to work best when parents get along quite well, share information easily, live in close proximity, and cooperate at a high level. This presents substantial problems when there is violence by one or both parents.

Parents who cannot agree on custody and access are then subject to the legal criteria for determining custody outcomes adopted by their state. Many states have adopted a list of criteria to be considered by the court in determining the child’s best interests in a child custody dispute. Common criteria include the relationship of the child with each parent, the mental and physical health of the parent, the moral fitness of the parent, the desire to maintain the stability of the current arrangement, and the capacity of the parent to provide for the material needs of the child. The preference of the child is considered by some states. Additional criteria commonly used by state courts are based in the willingness of the custodial parent to allow contact with the other parent, to promote a relationship with the other parent, and to cooperate in decision making. For instance, the Florida statutes include the following criteria: (1) the parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent, (2) the willingness and ability of each parent to facilitate and encourage a close and continuing parent–child relationship between the child and the other parent. If a battered spouse is fearful of the batterer and does not feel she has the capacity to negotiate and safely compromise with him, then she is not likely to look favorable to the court in some of these areas.

Some states have recognized that policies promoting equal access and decision making may not in fact promote the children’s best interest when it exposes them to ongoing parental conflict and violence. Many states require that courts consider the history of domestic violence when making decisions regarding child custody, visitation, and decision-making powers. Even when domestic violence is to be considered in determinations of child custody and visitation, the decisions are left very much to an individual judge’s discretion. Therefore, some states have gone further and require the judge to issue written findings in the decisions about his or her consideration of the domestic violence issue. Some states have gone still further and create a presumption against the batterer having custody of the children that must be overcome if he seeks custody. In other words, once the court determines the existence of domestic violence, the batterer must show why it is still in the children’s best interest to be with him.

A generally positive trend in divorce processes in all states is toward non-litigious resolution of matters regarding child custody, financial support, and division of property and assets. In contrast to legal decisions imposed by judges, parents have more satisfaction with and more respect for decisions in which they have input. The opportunity to be heard and to influence the outcome of their parenting agreements often leads to greater satisfaction with the divorce process and greater likelihood of complying with those decisions. Hence, a variety of alternative dispute resolution methods have been attempted, including mediation. The mediation process is one in which a trained neutral third party helps promote decision making between the parents. This may be done with or without the presence of an attorney. The mediator assists parents in reaching agreements regarding the division of time with their children, decision making, and other responsibilities of caring for their children that become incorporated as the parenting agreement in the final divorce decree. Mediation is often less expensive, more expeditious, and more sensitive to the emotional aspects of a divorce than is litigation in a courtroom. Therefore, mediation is commonly suggested and in some jurisdictions required in family law cases before a judge will hear a case. Unfortunately, when used with people of unequal bargaining power, the result may be agreements which reflect that inequality.

Alternative dispute resolution methods are an important advancement, though in domestic violence cases they may not be better solutions, especially if the mediator or other professional involved is uneducated or unprepared to deal with such cases. It is helpful to note that specific training in domestic violence is required for mediators and mental health professionals in some states. However, even with educated professionals, the use of mediation when there is a history of domestic violence is controversial. Some would argue that the power dynamics present in the history of the couple’s relationship can never be overcome and that the victim will not only remain at an unfair disadvantage in the negotiations but her and/or the children’s safety might be compromised. There is concern that any agreement reached might be the result of intimidation, coercion, or fear of later retaliation. Some states exempt cases involving domestic violence from mandatory mediation. It should be noted, however, that this does not always provide the assistance that a victim might need. Due to lack of financial resources, the victim may be left without legal representation and thus trying to negotiate an agreement with the batterer on her own or in front of a judge who may not have knowledge of the couple’s history of domestic violence or who may not fully understand the implications of that history.

At a minimum it is expected that mediators screen for the presence of domestic violence and make a determination of whether it is appropriate to proceed. The more chronic and severe the violence, the more caution is warranted. If mediation proceeds, all available safeguards for the victim should be provided. These might include separate waiting rooms, separate arrival and leaving times, and even separate sessions for the batterer and victim. The presence of supportive third parties or court deputies in a courthouse mediation program might be necessary.

Even when children are safeguarded by statutory reference to consideration of domestic violence in child custody decisions, there are still issues with visitation between the children and the batterer that must be considered. Some cases will result in no perpetrator/child contact, some in only supervised contact, and some in a regular visitation schedule. Exposure of the child to the violence as well as to the power and control dynamics in the parental relationship must end. Whether a child’s loss of contact with the batterer father as a result of divorce or an injunction is positive or negative for the child depends on a variety of factors. These include whether the father is abusive to the child in ways other than exposing the child to domestic violence, the parent’s other parenting skills, the quality of the relationship between the father and the child, and the batterer’s ability to take responsibility for his actions. First and foremost it must be determined whether the child is safe visiting with the father. If not, denial of visitation rights to perpetrators of violence or supervised visitation should be implemented.

Unfortunately supervised visitation can be logistically difficult and often expensive when conducted by supervision programs or facilities. However, when not provided by those programs, supervised visitation is usually provided by family or friends who have not been trained to handle visitation situations that could be harmful to the child. When unsupervised visitation is either determined to be safe for the children or is ordered in spite of allegations of domestic violence, additional safety concerns are raised regarding the victim, who will have contact with the batterer when the children are exchanged between the two homes. Special consideration needs to be given to how those exchanges occur in order to minimize the opportunity for conflict. This might include exchanges at day care or school, exchanges in a public or official place such as a store or police station, or use of a monitored exchange program, which again will involve a cost. When a regular visitation schedule is court ordered in such cases, the order should be very specific with regard to the contact schedule so as to minimize the opportunity for disputes.

Even after the divorce case has been resolved legally, ongoing disputes may still arise, especially when shared parenting is the outcome. An individual who was once able to use coercion, intimidation, or violence to resolve disputes or to get his way will have great difficulty reaching agreements and compromises. In these scenarios, services such as co-parenting counseling, cooperative parenting programs, and parenting coordination are sometimes considered. Once again, such services may place the victim and children at risk if the batterer’s history of violence and other abuse are not addressed with the help of appropriate services. In those situations in which the court believes that a regular visitation schedule and shared parenting is appropriate in spite of the allegations of domestic violence, it may at least be necessary to assign specific areas of decision-making responsibility to the victim-parent to minimize the areas subject to issues of power and control. In addition, ongoing judicial monitoring might be the only alternative in those situations for addressing ongoing disputes rather than any mental health or alternative dispute resolution approaches.

Domestic violence may present in different patterns, a full discussion of which is beyond the scope of this research paper. However, from a judicial standpoint, when weighing issues of child custody and visitation in the context of some type of domestic violence allegation, it is important to ascertain as well as possible what type of abusive relationship occurred between the parents, as that may guide case management decisions. Each pattern of violence can affect children’s development and the nature of their relationships with their mothers and their fathers in different ways. Of course, if a professional has all of the available information about both parents, it may not be difficult at all to distinguish the pattern or type of abuse; however, this occurs only rarely. The suggestions above may be useful for any intimate relationship in which there has been physical violence and/or conflict resolution that centered primarily or solely around power and control, though this research paper is concerned primarily with those cases in which there has been ongoing or episodic male-initiated battering against wives and mothers which began early in the relationship and continued intermittently or continuously throughout the duration of the marriage. These men’s physical attacks can be quite severe and they may become extremely dangerous when their wives separate from the marriage. In the midst of separation or divorce, they tend to deny or minimize their abuse and place blame for their violence on their wives, which can have serious consequences regarding the custody and safety of their children.

Read more about Domestic Violence Law. Also check the list of domestic violence research topics or all criminal justice research topics.

Bibliography:

1. Berhrman, Richard, ed. ‘‘The Future of Children.’’ Children and Divorce 4, no. 1 (1994). The David and Lucile Packard Foundation.
2. ———. ‘‘The Future of Children.’’ Domestic Violence and Children 9, no. 3 (1999). The David and Lucile Packard Foundation.
3. Dutton, M. A. Empowering and Healing the Battered Woman: A Model for Assessment and Intervention. New York: Springer Publishing Company, 1992.
4. Gelles, R., and D. Loseke. Current Controversies on Family Violence. Newbury Park, CA: Sage Publication, 1993.
5. Jaffe, P., D. Wolfe, and S. K. Wilson. Children of Battered Women. Newbury Park, CA: Sage Publications, 1990.
6. Johnston, J., and L. Campbell. Parent–Child Relationships in Domestic Violence Families Disputing Custody. Newbury Park, CA: Sage Publications, 1993.
7. Kaser-Boyd, N., and F. Mosten. The Violent Family: Psychological Dynamics and Their Effect on the Lawyer– Client Relationship. Thousand Oaks, CA: Sage Publications, 1993.
8. Magana, H., and N. Taylor. Child Custody Mediation and Spouse Abuse: A Destructive Study of a Protocol. Newbury Park, CA: Sage Publications, 1993.
9. Maxwell, J. Mandatory Mediations of Custody in the Face of Domestic Violence: Suggestions for Courts and Mediators. Thousand Oaks, CA: Sage Publications, 1999.
10. Medline Plus website. http://www.nlm.nih.gov/medlineplus/divorce.html (accessed August 27, 2013).
11. O’Keefe, M. Predictors of Child Abuse in Maritally Violent Families. Thousand Oaks, CA: Sage Publications, 1995.
12. Thoennes, N., P. Salem, and J. Pearson. Mediation and Domestic Violence: Current Policies and Practices. Thousand Oaks, CA: Sage Publications, 1995.