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TABLE OF CONTENTS

Volume 21, No. 6, November 1987

ustody Litigation of Behalf of Battered Women, by Myra Sun and Elizabeth Thomas

..563 Women lose 63 percent of all contested custody cases, and a battered woman litigating custody faces special problems; this article will examine why domestic violence argues in favor of awarding custody to the mother, and how a battered woman may win custody of her children, including such strategical considerations as joint custody, mediation, visitation arrangements, and child abduction.

Housing for Physically Disabled Persons: A Case Waiting to Happen, by Roger W. Andersen and Scott A. Steinhoff .....578 This hypothetical opinion of the Supreme Court of the State of Anywhere outlines the argument that a municipality's failure to provide housing opportunities for physically disabled persons constitutes exclusionary zoning and affirmative measures that a municipality may take to provide reasonable opportunities for physically disabled persons to reside within the community.

Health Care Access Improves After D.C.
Hospital's Hill-Burton Audits Reveal Wide-
spread Facility Noncompliance, National
Health Law Program

..592 Each Hill-Burton-assisted hospital must provide a prescribed annual dollar amount of uncompensated care to certain low-income persons under a facility allocation plan; however, numerous consumer audits have found widespread noncompliance and have been successful in recapturing large amounts of uncompensated care.

New INS Computer Verification System May Create Problems for Aliens Applying for Public Entitlements and State Legalization Impact Assistance Grants, National Center for Immigrants' Rights ............604 This column discusses a verification process purported to prevent the payment of public benefits to ineligible alien claimants and a federal block grant program to reimburse the states' costs for public assistance, public health, and educational benefits

provided to newly legalized aliens. Leveraging the Resources of the Low-Income Home Energy Assistance Program: Great Potential for Low-Income Consumers, National Consumer Law Center .............612 This column describes efforts in three states to leverage LIHEAP resources into additional assistance for low-income energy consumers through discount programs, refund of the interest value on credit balances, and providing price information to consumers.

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New Client Rights and Responsibilities Under the Food Stamp Employment and Training Program, Food Research and Action Center

.584 The Food Security Act of 1985 required each state to implement an Employment and Training program to assist members of households participating in the Food Stamp Program in “gaining skills, training, or experience that will increase their ability to obtain regular employment”'; this article describes the new rules governing client rights and responsibilities and program design that went into effect on January 30, 1987.

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Custody Litigation on Behalf

of Battered Women

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I. Introduction
II. Legal Authority Recognizing That Domestic Violence

Is Detrimental to Children
III. Overview of Psychological Research

A. Effects of Domestic Violence on Children
B. Breaking the Cycle of Violence.

C. The Battered Woman as Primary Caretaker
IV. Use of Psychological Evidence

A. Standards for Admission of Expert Testimony.

1. Helpfulness of Expert Testimony on Domestic Violence..
2. Expert Qualifications......

3. State of the Art ......
B. Use of the Motion in Limine
C. Preparing the Expert.

D. Coping with Adverse Expert Testimony
V. Addressing Common Weaknesses in a Battered Woman's Case

A. Allegations of Instability
B. Financial Circumstances.

C. Exaggerated or Unfounded Allegations of Violence
VI. Strategy Considerations

A. Temporary Custody
B. Mediation .....
C. The Custody Investigation
D. Factual Development.
E. Negotiation .......
F. Judicial Attitudes: Joint Custody, Friendly Parents, and Battered Women
G. Visitation Arrangements
H. Child-Snatching Prevention and Remedies

1. Uniform Child Custody Jurisdiction Act
2. Parental Kidnapping Prevention Act.

3. Intervention by Child Welfare Authorities VII. Conclusion......

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II. Legal Authority Recognizing That

Domestic Violence Is Detrimental to
Children

A battered woman may extricate herself from an abusive relationship only to find herself in a custody battle with her former abuser. He may argue that the violence is irrelevant to custody because it was never directed toward the children. However, violence should be a factor in a custody determination. A history of abuse of the mother by the father generally supports an award of custody to the mother.

Women lose 63 percent of all contested custody cases,' and a battered woman litigating custody faces special problems. A batterer may claim that the mother is psychologically or financially incapable of caring for the children. He may deny the severity of the violence; he may take advantage of trends toward joint custody.

This article will examine why domestic violence militates in favor of awarding custody to the mother, and how a battered woman may win custody of her children. It will review the statutory and case law supporting the view that exposure to violence is damaging to the children's best interests, and will detail psychological findings that interspousal violence has damaging effects on children. It will also discuss the general importance of the primary caretaker in the children's healthy emotional development and then discuss the purposes and admissibility of expert psychological evidence concerning domestic violence in custody cases. Finally, it will discuss such strategical considerations as joint custody, mediation, visitation arrangements, and child abduction.

Five states have adopted laws that require consideration of a batterer's violence as a factor in intrafamily custody determinations. Arizona and Florida statutes explicitly recognize that spousal abuse is detrimental to the children's best interests; Illinois law similar and includes child abuse as well.2 In Arizona and Florida, and in California if a civil order of protection has issued, the court must consider supervised visitation or generally order that visitation arrangements protect the victim and the children. Two other states, Colorado and Kentucky, make domestic violence a defense to a claim that the victim abandoned the child.

Further, a growing body of case law allows evidence of spousal abuse to be admissible in custody determinations, regardless of whether the children witnessed or were old enough to be aware of the violence. In contexts other than parental custody disputes, courts have similarly held that a batterer's violence—usually after he has murdered the mother--has rendered him unfit to exercise parental control over the children.“

The facts themselves may show conduct toward the mother that could be found detrimental to the children. Children

Myra Sun is a Staff Attorney with the National Center on Women and Family Law, 799 Broadway, Room 402, New York, NY 10003, (212) 674-8200. Elizabeth Thomas was formerly a Staff Attorney with Evergreen Legal Services, Seattle, WA, and is now in private practice.

2. Ariz. Rev. Stat. $ 25-332B; Fla. Stat. ANN. § 61.13(2)(b)(2);

Ill. Rev. Stat. ch. 40, $ 602(a)(6). 3. Cal. Civ. Code § 4601.5. 4. See Colo. Rev. Stat. § 14-19-124(4); Ky. Stat. ANN. $

403.270(2). 5. See Bertram v. Kilian, 331 Wis. 2d 2022, 394 N. W.2d 773 (App.

Ct. 1986); Desmond v. Desmond, 134 Misc. 2d 62, 509 N.Y.S.2d 979 (Fam. Ct. 1986); Williams v. Williams, 104 III. App. 3d 16, 432 N.E.2d 375 (1982); In re Marriage of Snyder, 241 N. W.2d 733 (lowa 1976). See also Runsvold v. Runsvold, 61 Cal. App. 2d 731 (1943) (involving abuse of the mother in the children's

presence). 6. See, e.g., In re Juvenile Appeal 84-6, 2 Conn. App. 705, 483

A.2d 1101 (1984); Heath v. McGuire, 306 S.E.2d 741 (Ga. Ct. App. 1983); In re Welfare of Scott, 244 N.W.2d 669 (Minn. 1976); In re Sarah H., 106 Cal. App. 3d, 165 Cal. Rptr. 61 (1980); In re Ditter, 322 N.W.2d 642 (Neb. 1982).

Copyright © 1987 National Center on Women and Family Law. All rights reserved.

1. Weitzman & Dixon, Child Custody Awards: Legal Standards and

Empirical Patterns for Child Custody, Support und Visitation After Divorce, 12 U.C. Davis L. REV. 472, 503, 506, 509 (Summer 1979).

may have been injured attempting to intervene; they may have suffered disruption of their routine, such as when the father's violence occurred at a late hour and interrupted their sleep. The mother's injuries may have forced her to move from the household altogether or impaired her ability to prepare meals, transport the children, or otherwise provide day-to-day care. If the victim and children left the home due to violence, the children may have missed school or suffered other academic problems.

When there has been harm to the children, courts have been critical of abusers who deny their responsibility for the injury. The abuser may not see, or may choose to ignore, his responsibility for the harm that the children suffer from violence. For example, he may blame the victim for leaving with the children, even though their departure was prompted by his own misconduct. If the victim left without the children, the batterer may claim that she abandoned them and, if he has temporary custody, deny her visitation, conduct that in itself is disapproved by the courts.? To the extent that an abuser's violence destabilizes the children's day-to-day lives, it is detrimental to their best interests and should militate against a custody award to him.

A child's social development is damaged from exposure to witnessing domestic violence. Most children are aware of it. Initially, these children experience trauma, shock, fear, and guilt. When a violent incident occurs, they may either try to intervene, subjecting themselves to possible injury, or respond with “immobilized shocked staring, with running away and hiding, or bedwetting and nightmares.":10 Preschool-aged children present intense fear, screaming, and resistance to going to bed, identifying nighttime with the occurrence of violence." As children grow older, they feel guilty about their inability to prevent the violence, lose respect for their apparently helpless mother, and feel anger toward her. Boys are aggressive and disruptive, fighting with their siblings and schoolmates; girls become clinging, withdrawn, passive, and anxious. "2

Children of all ages also present somatic complaints, ranging from insomnia, diarrhea, and generally higher rates of illness in infants' to higher incidence of colds, sore throats, abdominal pain, asthma, headaches, and bedwetting for older children.'4 Part of the pattern of spousal abuse may itself involve sleep or nutritional deprivation for the mother or children." Not surprisingly, then, children who are exposed to violence between their parents also experience delayed development of speech, motor, and cognitive skills, and their school performance may suffer. 16

It is true that most children of divorce suffer emotionally and physically as a result of their parents' separation. However, Judith Wallerstein, one of the few researchers to track such children over a period of time, has found that children actually benefit when they are geographically separated from psychiatrically disturbed parents." This finding is consistent with Walker's 1979 study of children who formerly lived in violent homes; they expressed great relief at living with one parent.

The damage to a child from living in a violent household, even if the child is not abused himself or herself, should not be underestimated. “This child is, for all intents and purposes, exposed to the same milieu as the battered child."19

III. Overview of Psychological Research

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Psychological studies have revealed three fundamental, interrelated reasons why a battered woman is likely to be a better custodian than her abusive mate. First, a wife-beater's violence damages the emotional health of the couple's children. Second, placing the child with the batterer perpetuates the cycle of violence by exposing them to an environment in which violence is acceptable behavior. Third, the mother probably has better parenting skills because she is more likely to have been the children's primary parent. The following paragraphs review research data showing that, normally, it is in a child's best interest that custody be awarded to the mother when domestic violence has occurred.

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It is well documented that an abuser's violence toward his mate tends to cause a variety of psychological problems for their children.

A. Effects of Domestic Violence on Children

9. See L. WalkER, THE BATTERED Woman SYNDROME 559 (1984)

(87 percent of mothers reported that children know about the violence) (hereinafter The BATTERED WOMAN SYNDROME): Pagelow. Children in Violeni Families Direct and Indirecı Victims in YOUNG CHILDREN AND THEIR FAMILIES5 55 (Hill & Barnes eds. 1982) (76 percent of mothers reported that the children were physically

present during beatings, and others heard them). 10. DAVIDSON, CONJUGAL CRIME: UNDERSTANDING AND CHANGING

THE WIFEBEATING PATTERN 119 (1978). 11. Hilberman & Munson, Sixty Ballered Women, 2 VICTIMOLOGY:

AN INT'L J.5 460, 463 (1977-78). 12. DAVIDSON, supra note 10, at 120-21; Pagelow, supra note 9, at

59; Hilberman & Munson, supra note 11, at 463; Pizzey,
SCREAM QUIETLY OR THE NEIGHBORS WILL HEAR 67 (1974);
Alessi & Hearn, Group Treatment of Children in Shelters for
Battered Women, in BATTERED WOMEN AND THEIR FAMILIES

(Roberts ed. 1984). 13. Alessi & Hearn, supra note 12, at 52. 14. Hilberman & Munson, supra note 11, at 463; Alessi & Hearn,

supra note 12, at 52; Pagelow, supra note 9, at 59. 15. Alessi & Hearn, supra note 12, at 51. 16. Westra & Martin, Children of Buttered Women, MATERNAL

Child NURSING J. 41, 52 (1984). 17. Wallerstein, Summary of Past and Current Research Findings 2

(Feb. 1984) (unpublished manuscript). 18. L. WALKER, THE BATTERED Woman 30 (1979) (hereinafter THE

BATTERED WOMAN). 19. Westra & Martin, supra note 16, at 50.

It is well documented that an abuser's violence toward his mate tends to cause a variety of psychological problems for their children. This damage takes the forms of immediate trauma and delayed social development, a pattern of somatic responses to the abuse, and the learning of unhealthy attitudes. The United States Commission on Civil Rights concluded that “children in spouse abuse situations suffer at least as much as other family members.'

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7. See Part VI.F., infra. 8. U.S. COMM'N ON CIVIL RIGHTS, THE FEDERAL RESPONSE TO

DOMESTIC VIOLENCE 11 (Jan. 1982) (hereinafter THE FEDERAL RESPONSE TO DOMESTIC VIOLENCE).

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B. Breaking the Cycle of Violence

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 children who are abused themselves, are more likely to be violent with their mates. 20 The more violence they see, the more they will tolerate it as adults.-' 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

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, 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

C. The Battered Woman as Primary

Caretaker

anger.23

The parent to whom the children primarily look for day-to-day physical care, emotional nurturing, and approval is a significant figure to them. Most mental health professionals believe that attachment to the parent who performs these tasks, the primary caretaker, is

man.

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

26 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, so clients should be advised to explore that possibility tactfully with their children.

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

the essential cornerstone for a child's healthy emotional development. At the earliest stage, it is critical to the child's learning to place trust in others and to have confidence in her own capacities. Later, it plays a central role in the child's capacity to establish emotional bonds with other persons.

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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.”. It also remains a fact that “mothers today are still more often the primary child-rearing parents” after the child's birth." 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

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, I LEGAL RESPONSE: CHILD
ADVOCACY AND PROTECTION 5 I (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 JUSTICES 21 (Oct. 1982).

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 III. 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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