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B. Breaking the Cycle of Violence

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Growing up in a violent family creates problems in later life because of the values, attitudes, and coping mechanisms it teaches. Children who see their own parents engage in violence, as well as children who are abused themselves, are more likely to be violent with their mates. The more violence they see, the more they will tolerate it as adults.2 Children witnessing abuse are more likely to abuse their elderly parents in the future.22 To the children in a violent family, all power appears to be on the side of the wrongdoer. The children also learn unhealthy, untrue notions of sex and love and equate relating in a sexual manner with rape, that is, as an expression of power or anger, 23

Further, there is a high correlation between spouse abuse and child abuse. One study found the rate of child abuse to be 129 percent higher in families with spouse abuse. 24 Another found that 45 percent of assaults on women are accompanied by physical assaults on a child of the family. 25 A third study found that one third of batterers and their victims beat their children; however, data from the National Center for Child Abuse and Neglect show that, in cases in which there is child abuse concurrent with spouse abuse, 70 percent is committed by the man. Thus, the victim's decision to leave the batterer often determines whether the child abuse continues; in most cases, removing the children from the battering environment ends the child abuse.27 Also, it is not unusual for batterers to sexually molest their victims' children,28 so clients should be advised to explore that possibility tactfully with their children.

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The United States Commission on Civil Rights has found that the generational cycle of violence should be broken by focusing on the children in abusive families.29 In custody cases involving domestic violence, this usually can be best accomplished by placing the children with the mother for several reasons. Men are the assailants in 95 percent of the assaults by spouses or ex-spouses against their partners, and their conduct is more apt to teach children that violence is acceptable.30 Battered women themselves usually do not come

20. MARTIN, BATTERED WIVES 23 (1976); DOBASH & DOBASH, VIOLENCE AGAINST WIVES: A CASE AGAINST THE PATRIARCHY,5 152-53, 154, 155; Pizzey, supra note 12; GELLes, The Violent HOME 172 (1972).

21. THE BATTEred Woman, supra note 18, at 146-47.
22. Davidson, supra note 10, at 116.
23. Id. at 121.

24. AMERICAN BAR ASS'N, YOUNG LAWYERS DIV., CENTER FOR CHILD ADVOCACY AND PROTECTION, 1 LEGAL RESPONSE: CHILD ADVOCACY AND PROTECTIONS 1 (June-July 1979), cited in THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE, supra note 8, at 11.

25. ROY, A CURRENT STUDY OF 150 CASES-BATTERED WOMEN: A PSYCHOLOGICAL STUDY OF DOMESTIC VIOLENCE (1979).

26. THE BATTEred Woman, supra note 18, at 27-28.

27. Layzer, Goodson, & DeLange, Children in Shelters, 9 Response 2, 5 (1986).

28. NICARTHY, GETTING FREE: A HANDBOOK FOR WOMEN IN ABUSIVE RELATIONSHIPS 31 (1982).

29. THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE, supra note 8, at 11.

30. These figures are from studies taken for the period from 1973 to 1977. U.S. DEP'T OF JUSTICE, REPORTS TO THE NATION ON CRIME AND JUSTICE5 21 (Oct. 1982).

from violent homes; batterers do. In fact, most battered women's first exposure to domestic violence is with their husbands. 32 Thus, violent behavior and tolerance for violence is less ingrained in the mothers than in the fathers. Most former victims of violence are extremely careful not to choose another violent man for an intimate relationship,33 and therefore are likely to lead violence-free lives after separating from the children's father. Abusers, on the other hand, are poor candidates for counseling, are unlikely to believe their conduct is wrong or should be changed, and therefore are less likely than their mates to break the pattern of violence. 34

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The facts can often establish the mother as the children's primary caretaker. As in all families, bonding to the mother begins before birth. Undeniable biological facts-that only the woman carries the children, undergoes childbirth, and nurses the children—"create a much higher likelihood that the mother will have a stronger psychological tie with the infant than the father at the time of birth."3 It also remains a fact that "mothers today are still more often the primary child-rearing parents" after the child's birth.37 Yet continuity of care with the primary caretaker should not be confused with constant availability. A mother who spends part of the day working may nonetheless be the child's primary caretaker, and the fact that the child spends time in day care does not alter the significance of the relationship for the child. 38

The research on parents in violent families suggests that there is likely to be a substantial difference between the batterer

31. THE BATTered Woman SYNDROME, supra note 9, at 38.
32. Id. at 35.
33. Id. at 28.

34. THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE, supra note 8, at 11. The facts of Williams, 104 Ill. App. 3d at 16, 432 N.E.2d at 375, involved extreme denial of the violence.

35. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 5477, 529 (Dec. 1984).

36. GARDNER, CHILD CUSTODY LITIGATION, A GUIDE FOR PARENTS AND MENTAL HEALTH PROFESSIONALS 5355 (1986). 37. Id. at 357.

38. See studies cited in Trudrung-Taylor, The Changing Family and the Child's Best Interests: Current Standards Discriminate Against Single Working Mothers in California Custody Modification Cases, 26 SANTA CLARA L. Rev. 759, 770 (Summer-Fall 1986).

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dren of a batterer have low self-esteem as a result of their father's verbal assaults, sarcastic criticism, and temper outbursts.* Many children attempt to control parental anger through manipulative tactics, sometimes including learning the use of sexuality as a means of winning approval.42 They may also lie to prevent the abuse or try to melt into the background to avoid confrontations that may lead to violence.43 Further, while a batterer father may take a loving interest in his young children, as they grow older he is less able to tolerate the separation and individuation necessary for the children's healthy development. He may try to exert control in the same intrusive manner that he used with the mother.44 For these reasons, the children's mother is likely to be the preferred parent, no matter what the child's age.

Minnesota and West Virginia have responded to the general findings about parent-child bonding by adopting at primary caretaker preference. They have recognized that "[c]ontinuity of care with the primary caretaker is not only central and crucial to the best interest of the child, but is perhaps the single predicator of a child's well-being about which there is agreement, and which can be completely evaluated by judges." The Utah Supreme Court has also recognized this bonding factor as "[p]rominent."46 Intermediate appellate courts in 14 other states have recognized the primary caretakerchild bond as an important factor in custody cases."

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The Uniform Marriage and Divorce Act (UMDA) uses the best interest of the child standard. 48 It does not mention the

39. GELLES,5 supra note 20, at 145-46.

40. THE BATTERED WOMAN, supra note 18, at 105-06.

41. NICARTHY, supra note 28.

42. THE BATTERED WOMAN SYNDROME, supra note 9 at 64-65.

43. THE BATTERED WOMAN, supra note 18, at 150.

44. THE BATTERED WOMAN SYNDROME, supra note 9, at 63.

45. Pikula v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985); see also Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981).

46. Pusey v. Pusey, 728 P.2d 117, 121 (Utah 1986).

47. For citations to cases in Alaska, Florida, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Missouri, New York, North Dakota, Oklahoma, Oregon, and Pennsylvania, see POLIKOFF, REPRESENTING PRIMARY CARETAKER PARENTS IN CUSTODY DISPUTES: A MANUAL FOR ATTORNEYS 15-16 (Women's Legal Defense Fund 1984). See also Burchard v. Garay, 724 P.2d 486 (Cal. 1986). 48. Uniform Marriage and Divorce Act, [Reference File] Fam. L. Rep. (BNA) 201:0001. Section 402 of the Act provides that: The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school, and community; and

(5) the mental and physical health of all individuals involved. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.

primary caretaker, but does require that courts consider the child's relationship with each parent. The primary caretaker factor is appropriate for that consideration. In Washington, a UMDA state that has not explicitly recognized the primary caretaker preference, a trial court may give "significant consideration to the child's need for a warm and loving relationship and to each parent's unique ability to fulfill that need."49 A battered woman will be more likely to have "a warm and loving relationship" with the children than the batterer.

IV. Use of Psychological Evidence

Expert psychological testimony is appropriate in child custody litigation. In determining custody, the court is typically required to consider the mental health of both parents and the children. As in other cases, it has the authority to order parties to undergo psychiatric or mental examinations.50 Independent experts as well as treating professionals may testify at trial. The following discussion reviews standards of admissibility for expert testimony as they apply to domestic violence evidence, including selecting and qualifying the expert, use of the motion in limine, preparing the expert, and coping with adverse expert testimony.

A. Standards for Admission of Expert
Testimony

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Rights concluded, the "general public is unaware of the extent and the seriousness of domestic violence."53 A Harris poll found that 20 percent of American adults believe it is acceptable to beat a spouse when “appropriate."54 Nor is the effect on children of witnessing interspousal violence known to the average layperson. Some judges themselves have expressed the view that a man who beats his wife may nonetheless be a good father, 55

In criminal cases, courts have agreed that, without the help of experts, laypersons cannot understand the fear a battered woman experiences, why she is unable to leave a violent situation, and why she is often silent about the abuse. 56 Since the victim's fear, reluctance to leave, and silence about the violence until separation often become issues in custody cases involving battered women, analogies should be drawn to criminal cases.

Expert testimony can also respond to a number of judicial misperceptions that may affect the outcome of custody cases. The expert can address the batterer's attacks on the victim's emotional stability."7 Judges are rarely able to comprehend the extreme fear, sense of helplessness, and dependence that prevent women from leaving battering relationships. As a result, they often believe that battered women want court protection yet are unwilling to leave the relationship and do not deserve assistance. 58 Again, analogies to the criminal cases in which that evidence has been admitted are useful. A judge may mistakenly believe that violence will end with divorce, that battered women are masochists, or that they exaggerate the level of violence and the seriousness of their injuries to obtain

52. Rabkin & McFall, A Psychologist's View, Seattle King COUNTY BAR BULL. 8, 24 (Oct. 1982); see generally GARDNER, supra note 36, at 148, ch. 9, "Custodial Arrangements."

53. THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE, supra note 8, at 77.

54. Martin, Overview Scope of the Problem, in U.S. COMM'N ON CIVIL RIGHTS, BATTERED WOMEN: ISSUES OF PUBLIC POLICY 205 (1978).

55. NEW YORK TASK FORCE ON WOMEN IN THE COURTS, REPORT 50 (N.Y. Unified Court Sys., Office of Court Admin. 1986).

56. See, e.g., Washington State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984); New Jersey v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984); Maine v. Anaya, 438 A.2d 892 (Me. 1981); Terry v. Florida, 467 So. 2d 761 (Fla. Dist. App. Ct. 1985); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979).

57. See Part V., infra.

58. U.S. COMM'N ON CIVIL RIGHTS, UNDER THE RULE OF Thumb: BATTERED WOMEN AND THE ADMINISTRATION OF JUSTICE 556-58 (1982).

leverage in the custody dispute." A judge may disbelieve the victim because the judge is emotionally removed from the victim in court, where the victim is composed and no longer has visible injuries.60 Expert testimony can address these issues.

A final area appropriate for expert testimony is the wisdom of joint custody in cases involving domestic violence. A body of research has been amassed on the characteristics of families who fail with joint custody. An expert can assess the prospects for joint custody, given the characteristics of the family in the case. In jurisdictions where a parent's refusal to allow visitation may be used to deny custody, expert evidence on domestic violence can explain and sometimes justify the victim's reluctance to allow visitation. Also, at least one expert has suggested that a primary caretaker parent's hostility toward visitation may be temporary and in part may result from the litigation itself. Both mother and child may be acting defensively to preserve their psychological bond."

2. Expert Qualifications

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The expert must be qualified to testify based on "knowledge, skill, experience, training or education." comment to Rule 702 of the Federal Rules of Evidence adds that "[t]he fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge."64

Either a treating expert or an independent expert should specialize in domestic violence. Traditionally trained mental health professionals often believe a victim provokes assaults and that she should change her behavior in order to keep the family intact.65 Abuse victims often find that these professionals refuse to deal specifically with an acute incident of battering, and the therapists themselves admit that they may not realize they are treating a battered woman.66 The expert witness should be well acquainted with the effects of domestic violence on children and be able to discuss the nature of the stress that may affect the battered woman as a parent. Some battered women's shelters have children's advocates who can discuss these issues knowledgeably and who have the professional training and standing that the courts may require of experts. Specialized day care programs may also have professionals who qualify.

In selecting an expert, counsel should, as always, explore the following issues:

the expert's academic background and training, including specialized training;

the length of time the expert has spent in the field and the number of custody evaluations in which he or she has been involved;

⚫ the expert's published and unpublished work;

59. Fields, Wife Beating: Government Intervention Policies and Practices, in BATTERED Women: Issues of Public Policy, supra note 54, at 228, 229.

60. Id.

61. See Part IV.F., infra.

62. Gardner, supra note 36, at 357.

63. FED. R. EVID. 702.

64. ADVISORY COMM., NOTE, supra note 51.

65. THE BATTEred Woman, supra note 18, at 227-28. 66. Id.

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The third requirement for the admission of expert testimony is that the state of the knowledge in a given area must be advanced enough to permit an expert to render a reasonable opinion. Courts generally look to whether there has been "general acceptance" in the professional community of research in the field in making these determinations. Evidence is admissible even if it is based on a minority view, and objections go only to its weight. 68

The state of knowledge about domestic violence is highly advanced. Expert testimony on the characteristics of

67. See generally Guerin, Selection and Preparation of Mental Health Experts in Custody Cases, FAIRSHARES 13 (Nov. 1985).

68. Washington State v. McDonald, 89 Wash. 2d 256, 571 P.2d 930 (1977).

batterers and their victims has been admitted in criminal trials for about 10 years. 69 The clinical psychology research methods used by experts are considered accurate, and the area has become widely accepted as a speciality in the field of psychology.70 Battered woman's syndrome, an aspect of post-traumatic stress disorder, has been a recognized diagnostic category in the American Psychiatric Association's preeminent reference book, The Diagnostic and Statistical Manual (DSM-III), since 1980.71 Members of battering families exhibit unique clusters of behavioral characteristics, and their behavioral patterns may be predicted with a high degree of certainty.72 In fact, they are distinctly different from the traits found in families with other types of dysfunctions more familiar to laypersons, such as substance abuse.

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B. Use of the Motion in Limine

In those case in which the trial court has not been confronted with domestic violence evidence or in which there is reason to believe that the testimony may not be accepted at the time of trial, counsel may wish to consider bringing a motion in limine. The motion in limine to admit expert evidence serves three important functions. First, counsel will know before trial whether to rely on the expert. Second, it provides an opportunity to give the court a first impression of the case, based on desirable expert and supporting lay evidence (the offer of proof). Third, it allows counsel to formulate the admissibility issue carefully and leaves a solid record for appeal.

A motion in limine may be brought before trial by either the proponent or opponent of evidence. It should be made in writing, include a memorandum of authorities, and describe the offered evidence specifically. Include not only testimony, but also the expert's qualifications and all of the factual information upon which the expert's opinion is based to provide the court with a full understanding of the violence in the particular family and its psychological impact on the children. Facts to be used in hypothetical questions can be presented as an offer of proof to clarify the basis for the expert's response to the question. However, be certain that all "facts" in the offer of proof are indeed adduced at trial. Otherwise, the expert's opinion will be speculative or irrelevant.

C. Preparing the Expert

Two types of experts may testify. A professional may be appointed by the court or the parties to meet with one or more family members and to evaluate the case. Or, an expert with no first-hand knowledge of the case may testify about domestic

69. L. Walker, Battered Women, Psychology, and Public Policy, 39 AM. PSYCHOLOGIST 1178, 1179 (Oct. 1984).

70. Note, Expert Testimony Relating to Subject Matter of Battered Women Admissible on Issue of Self-Defense, 11 SETON HALL L. REV. 255, 263 (1980).

71. See generally TRAUMA AND ITS WAKE: THE STUDY AND TREATMENT OF POST-TRAUMATIC STRESS DISORDER (Figley ed. 1985). 72. In re Marriage of Collier, No. 80-3-07037-5 (Wash. Super. Ct., King County, filed July 20, 1981) (petitioner's brief and offer of proof).

73. Id.

violence research and its relation to the facts of the case.

Before using a treating mental health professional as a witness, note that the confidential psychotherapist-patient privilege, if any, will be waived. Any damaging information in the file will then be discoverable. Some courts have permitted parents to assert the privilege, but have generally limited these rulings to treatment obtained before the start of the custody case and have noted that the court can always order the litigant to undergo another evaluation.74 Other courts refuse to recognize the privilege at all in cases involving a child's placement, ruling that the need for all evidence relating to the child's best interests outweighs the policy behind the privilege.75 If the professional works for a battered women's shelter, his or her records may be excludable after in camera scrutiny.'

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In addition to the confidentiality issues, counsel should keep in mind that a treating expert's testimony may be subject to challenge for lack of objectivity; seeing only one party may produce biased observations. On the other hand, the treating expert does offer an opinion made reliable by continuous observation over a long period."

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At the outset, determine whether the expert will provide a written report and give her copies of affidavits and any psychological reports that have already been prepared. In a complex case, provide a synopsis of the facts. Well before trial, spend time to become familiar with the expert's field and opinions. Make sure the expert is familiar with the legal process (the definitions of common terms, such as custody, joint custody, and the “harm” standard for denial of visitation) and court procedures, such as giving time for objections before answering.' Some judges take testimony out of order to accommodate an expert's schedule. Review the questions that you intend to ask and their phrasing, and seek input from the expert about areas of testimony. Discuss the weaknesses in your case and the style of opposing counsel.

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In preparing the expert, counsel should remember that, under the liberalized rules of evidence, hypothetical questions are permitted but not required to elicit an expert's opinion.1 A smoother flow of testimony may result if the expert testifies that he or she relied on facts made known to the expert before the hearing to formulate an opinion. The facts relied upon by the expert need not themselves be admissible in evidence; they need only be facts reasonably relied upon by experts in the field. Thus, expert testimony on domestic violence may be based on otherwise inadmissible evidence, such as hearsay concerning the father's violent behavior towards others or violence among his family members. However, the facts forming

74. See, e.g., Husgen v. Stussie, 617 S.W.2d 314 (Mo. Ct. App. 1981); Simek v. Superior Court, 117 Cal. App. 3d 169, 172 Cal. Rptr. 564 (1981); Roper v. Roper, 336 So. 2d 654 (Fla. Dist. Ct. App. 1976); D. v. D., 260 A.2d 255 (N.J. Super. Ct. 1969); Barker v. Barker, 92 Idaho 204, 440 P.2d 137 (1968).

75. Atwood v. Atwood, 550 S. W.2d 465 (Ky. 1976); In re Von Goyt, 461 So. 2d 821 (Ala. Civ. Ct. App. 1984); In re Dodge, 28 Wash. App. 486, 628 P.2d 1343 (1981).

76. See Pennsylvania v. Ritchie, 107 S. Ct. 989 (1987) (setting forth appropriate procedures for child abuse counselor-victim confidentiality in a criminal case).

77. George, Benefitting from an Expert Witness, SEATTLE KING COUNTY BAR BULL. 1 (Oct. 1982).

78. Id.

79. Rabkin & McFall, supra note 52, at 8.

80. George, supra note 77, at 13.

81. See ADVISORY COMM., NOTE, supra note 51.

the basis for the opinion, although not independently admissible, may be elicited in direct or cross-examination of the witness. If a hypothetical question is used, it, too, is not restricted to information in the record, although a conjectural, speculative, or irrelevant hypothetical question may be objectionable.82 The expert should assess the impact of various alternative custody decisions on the children and should try to talk common sense, using nontechnical language and examples.83

D. Coping with Adverse Expert Testimony

If an adverse expert has little background in domestic violence, his or her opinion may be undermined by revealing the biases of his or her education. Court-appointed social workers or conventionally trained psychologists, psychiatrists, and counselors often lack the special training needed to identify domestic violence and its causes and treatment. Indeed, some traditional views, such as those of Freud, hold that women are masochists and may be treated as property. Moreover, training in traditional methods of treatment desensitizes professionals to reports of violence in multi-problem families, causing them to downplay the significance of violence.

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As always, expert testimony must be used with caution. Not all of the research on domestic violence is favorable to a victim's bid for custody. For example, the phenomenon of learned helplessness and victims' common expectation of being "rescued" by some other person do not enhance parenting ability. Some studies have found defects in mothers' parenting abilities, especially in the use of physical discipline.87 Parenting defects may arguably arise from the abuse and be ameliorated by parenting classes and separation from the batterer. The victim's decision to leave the batterer is itself beneficial to the children. By contrast, the batterer's flaws as a parent arguably stem from abusive behavior that he is unwilling to acknowledge; the prospects for improvement in his parenting are dim. Studies also show that "half of all wives will experience some form of spouse-inflicted violence during marriage, regardless of race or socioeconomic status.' This statistic may suggest that domestic violence is a common experience and that, therefore, expert testimony concerning domestic violence should not be admitted. Worse yet, the statistic may be used to argue that, because domestic violence is so common, it is an acceptable form of behavior and is not a ground to deny custody to a batterer. The latter argument should be rejected on

82. See FED. R. EVID. 402, 403.

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83. Soukup, A Judge's View, SEATTLE KING COUNTY BAR BULL. 9 (Oct. 1982).

84. THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE, supra note 8, at 36.

85. Id. at 37.

86. George, supra note 77, at 13-14.

87. See authors and studies cited at notes 9-12, supra.

88. LANGLEY & LEVY, WIFE BEATING: THE SILENT CRISIS 11-15.

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