10 Custody Myths and How to Counter Them
MPLP Spring 2007 Family Law Section Newsletter Article
Volume 4 July 2006
10 Custody Myths and How to Counter ThemAttorneys who represent victims of domestic violence in custody matters often encounter the following false claims. To assist with overcoming these myths, the ABA Commission on Domestic Violence provides these facts and statistics for use in litigation.
MYTH 1: Domestic violence is rare among custody litigants.
■ Studies show that 25-50% of disputed custody cases involve domestic violence.
S.L. Keililz, National Center for State Courts, Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers (1997); J.R. Johnston, High-Conflict Divorce. 4 Future of Children 165(1994).
MYTH 2: Any ill effects of domestic violence on children are minimal and short-term.
■ "Children who are exposed to domestic violence may show comparable levels of emotional and behavioral problems to children who were the direct victims of physical or sexual abuse."
Jaffe, Wolfe & Wilson, Children of Battered Women (1990).
■ Adverse effects to children who witness DV are well-documented, including aggressive behavior, depression, and/or cognitive deficiencies.
Morrill, Dai, Dunn, Sung & Smith, Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother, 11 (8) Violence Against Women 1076-1107 (2005); Jeffrey L. Edleson, Problems Associated with Children's Witnessing of Domestic Violence. (1999), available at http://www.vawnet.org/ DomesticViolence/Research/VAWnetDocs/AR witness.php
■ A continuing study by the CDC has shown a significant relationship between exposure to "adverse childhood experiences" (including witnessing domestic violence) and development of adult health problems, including pulmonary disease, heart disease, hepatitis, fractures, obesity, and diabetes (not to mention IV drug use, alcoholism, sexually transmitted diseases and depression).
http: //www.acestudv.ora/ http://www.cdc.gov/od/oc/media/pressrel/r980514.htm
MYTH 3: Mothers frequently invent allegations of child sexual abuse to win custody.
■ Child sexual abuse allegations in custody cases are rare (about 6%), and the majority of allegations are substantiated (2/3).
Thoennes & Tjoden, The Extent, Ngture, And Validity Of Sexugl Abuse Allegations In Custody And Visitation Disputes, 14(2) Child Sexual Abuse & Neglect 151-63 (1990).
■ False allegations are no more common in divorce or custody disputes than at any other time.
Brown, Frederico, Hewitt, & Sheehan, Revegling The Existence Of Child Abuse In The Context Of Moritol Bregkdown And Custody And Access Disputes, 24(6) Child Abuse & Neglect 849-85 (2000).
■ Among false allegations, fathers are far more likely than mothers to make intentionally false accusations (21% compared to 1.3%)
Bala & Schuman, Allegations of Sexual Abuse When Parents Have Separated, 17 Canadian Family Law Quarterly 191-241 (2000).
MYTH 4: Domestic violence has nothing to do with child abuse.
■ A wide array of studies reveal a significant overlap between domestic violence and child abuse, with most finding that both forms of abuse occur in 30-60% of violent families.
Appel & Holden, The Co-Occurrence of Spouse and Physical Child Abuse: A Review and Appraisal, 12(4) Journal of Family Psychology 578-599(1998).
■ Other studies have shown intimate partner violence '("IPV") to be a strong predictor of child abuse, increasing the risk from 5% after one act of IPV to 100% after 50 acts of IPV.
S.M. Ross, Risk of Physical Abuse to Children of Spouse Abusing Parents, 20(7) Child Abuse & Neglect 589-98 (1996).
10 Custody Myths and How to Counter Them
MYTH 5: Abusive fathers don't get custody.
■ Abusive parents are more likely to seek sole custody than nonviolent ones...
American Psychological Association, Violence And The Family: Report Of The American Psychological Association Presidential Task Force On Violence And The Family, (1996), available at http://www. apa.ora/pi/viol&fam.html
■ .. .and they are successful about 70% of the time.
American Judges Foundation, Domestic Violence and the Court House: Understanding the Problem...Knowing the Victim, available at http://aja.ncsc.dni.us/domviol/page5.html
■ Allegations of domestic violence have no demonstrated effect on the rate at which fathers are awarded custody of their children, nor do such allegations affect the rate at which fathers are ordered into supervised visitation, (i.e. abusers win unsu-pervised custody and visitation at the same rate as non-abusers)
Kemic, Monary-Emsdorff, Koepsell & Holt, Children In The Crossfire: Child Custody Determinations Among Couples With A History Of Intimgte Partner Violence 11(8) Violence Against Women, 991-1021 (2005).
MYTH 6: Fit mothers don't lose custody.
■ Mothers who are victims of DV are often depressed and suffering from post-traumatic stress disorder, and as a result, can present poorly in court and to best-interest attorneys and/or custody evaluators.
J.M. Golding, Intimate Partner Violence As A Risk Factor For Mental Disorders: A Meta-Analysis, 14 Journal of Family Violence 99-132 (1999); Kernic, Monory-Ernsdorff, Koepsell & Holt, Children In The Crossfire: Child Custody Determinations Among Couples With A History Of Intimate Partner Violence 11 (8) Violence Against Women 991-1021 (2005).
MYTH 7: Parental Alienation Syndrome ("PAS") is a scientifically sound phenomenon.
■ The American Psychological Association has noted the lack of data to support so-called "parental alienation syndrome," and raised concern about the term's use.
American Psychological Associotion, Violence And The Family: Report Of The American Psychological Associgtion Presidential Task Force On Violence And The Family, (1996), available at http://www. apa.org/releases/passyndrome.html
MYTH 8: Children are in less danger from a batterer/parent once the parents separate.
■ Many batterers' motivation to intimidate and control their victims through the children increases after separation, due to the loss of other methods of exerting control.
Lundy Bancroft & Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (2002); Langford, Isaac & Kabat, Homicides Related to Intimate Partner Violence in Massachusetts 1991-1995. Peace at Home (1999).
MYTH 9: Parents who batter are mentally ill, OR Parents with no evidence of mental illness cannot be batterers.
■ Mental illness is found only in a minority of batterers.
Gondolf, MCMI-III Results for Batterer Progrgm Pgrticipants in Four Cities: Less "Pothological" Than Expected. 14(1) Journal of Family Violence 1-17 (1999); Gelles R. & Straus M, Intimate Violence (1988) (reporting that mental illness gccounts for only 10% of abusive incidents).
■ Psychological testing is not a good predictor of parenting capacity.
Brodzinsky, On the Use and Misuse of Psychological Testing in Child Custody Evaluations, 24(2) Professional Psychology:Resegrch gnd Practice 213-219 (1994).
■ Mental health testing cannot distinguish a batterer from a non-batterer.
O'Leary, Through g Psychological Lens: Personolity Traits, Personality Disorders, and Levels of Violence, in Current Controversies on Family Violence 7-30 (Gelles & Loseke, eds.,1993).
MYTH 10: If a child demonstrates no fear or aversion to a parent, then there is no reason not to award unsupervised contact or custody.
■ Children can experience "traumatic bonding" with a parent who abuses the child or their other parent, forming unusually strong but unhealthy ties to a batterer as a survival technique (often referred to as "Stockholm Syndrome").
Lundy Bancroft & Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics, 39-40 (2002); Herman, Trauma and Recovery (1992).
The ABA Commission on Domestic Violence publishes its Quarterly e-Newsletter four times a year in electronic format. Subscriptions are free to all interested parties, and are distributed via e-mail and by download from the Commission website. Largeprint editions are available upon request. Quarterly e-Newsletter includes substantive articles by experts in the field, resources and tools for representing survivors of domestic violence, and caselaw updates and trends. The ABA hereby grants permission for copies of the materials herein to be made, in whole or in part, for classroom use in an institution of higher learning or for use by not-for-profit organizations, provided that the use is for informational, non-commercial purposes only and any copy of the materials or potion thereof acknowledges original publication by the ABA including the title of the publication, the name of the author, and the legend "Reprinted by permission of the American Bar Association. All rights reserved."
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The materials contained herein represent the opinions of the authors and should not be construed to be those of either the American Bar Association or the Commission on Domestic Violence unless adopted pursuant to the bylaws of the ABA. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.
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Copyright © 2006 by the American Bar Association
American Bar Association Commission on Domestic Violence