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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

and the victim in both their actual bonding and capacities for future bonding to the children. A batterer's violence does not cease during the pregnancy, and injuries that may be intended to cause miscarriage are common. After the children's birth, the father's sense that he must compete with them for the mother's attention, or his arguments with her about the children, may precipitate violence. 40 Psychologists have found that the children 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.“2 They may also lie to prevent the abuse or try to melt into the background to avoid confrontations that may lead to violence. 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 a 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.

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

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




State evidence rules based on Fed. R. Evid. 708 typically require that three conditions be satisfied before expert testimony is admitted: (1) the testimony must be helpful to the trier of fact in understanding the evidence or deciding a factual issue; (2) the expert must be qualified; and (3) the state of the art in the expert's field must be sufficiently developed to permit the expression of a reasonable opinion.

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

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.

1. Helpfulness of Expert Testimony on

Domestic Violence The usual test for whether expert testimony would be helpful in a case is whether the area is beyond the ken' of the average layperson. The official comment to the federal rule suggests that the question is a common sense inquiry whether the untrained layman would be qualified" to determine the issue without the assistance of the expert. Si

Useful psychological evidence in all child custody cases concerns aspects of parents' and children's personalities that are not readily apparent. These include the personality adjustment of the parents (their emotional stability, intellectual functioning, maturity, responsibility, and self-control); their capacity to work cooperatively for the benefit of the children; identification of the children's emotional, developmental, and educational needs; identification of the parents' motives in seeking custody; and


49. See In re Marriage of Murray, 28 Wash. App. 187, 191, 622 P. 2d

1288 (1981). 50. See, e.g., FED. R. Civ. P.5 35. 51. ADVISORY COMM. ON PROPOSED RULES, NOTE TO F.R. Evid.

702, (citing Ladd, Expert Testimony, 5 VAND. L. Rev. 414, 418 (1952)) (hereinafter ADVISORY COMM., NOTE).

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leverage in the custody dispute.99 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.61 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. 62

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2. Expert Qualifications

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

The expert must be qualified to testify based on “knowledge, skill, experience, training or education.''63 The 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.'

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. 6S 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;

52. Rabkin & McFall, A Psychologist's View, SEATTLE KING COUN

TY 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



(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:


59. Fields, Wife Bearing: 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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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." Members of battering families exhibit unique clusters of behavioral characteristics, and their behavioral patterns may be predicted with a high degree of certainty.?? 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. 73

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.

Photo by Robert Serafin

the expert's participation in professional seminars or conferences, judicial or law enforcement training in domestic violence, or continuing legal educational programs; the expert's professional licenses or certificates, and what he or she did to earn them.67

Courts in criminal cases that have considered the qualifications of experts on battered women have generally found proffered experts to be qualified.

C. Preparing the Expert

3. State of the Art

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

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

69. L. Walker, Battered Women, Psychology and Public Policy, 39

Am. PSYCHOLOGIST 1178, 1179 (Oct. 1984). 70. Note, Expert Testimony Relating 10 Subject Matter of Battered

Women Admissible on Issue of Self-Defense, II SETON Hall L.

Rev. 255, 263 (1980). 71. See generally TRAUMA AND ITS WAKE: THE STUDY AND TREAT

MENT 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.

67. See generally Guerin, Selection and Preparation of Mental Health

Experts in Custody Cases, FairShare5 13 (Nov. 1985). 68. Washington State v. McDonald, 89 Wash. 2d 256, 571 P.2d 930


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78 In a


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.

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.??

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. 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. 79 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. 80

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. 81 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


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.

An adverse psychological witness should be cross-examined and perhaps excluded from the courtroom to prevent preparation against weaknesses in testimony. Psychological evidence may be undermined by showing that psychology is not truly “scientific,” that the witness's theories or testing methods are not widely accepted, or that the scope of investigation was too narrow.

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

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. I (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.


82. See FED. R. Evid. 402, 403. 83. Soukup, A Judge's View, Starile KING COUNTY Bar Bull. 9


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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the basis of contrary case law and legislation, including provisions for arrest or orders of protection in domestic violence cases, indicating a policy view that domestic violence is not acceptable behavior.

V. Addressing Common Weaknesses in a

Battered Woman's Case

stem from abuse and are likely to abate with separation from the abuser. After separation, a client may appear unstable because she moves frequently, but the moves may be necessary for her to escape the batterer. Likewise, apparent "uncooperativeness” about visitation may result from the father's use of visitation as an occasion for renewed physical or mental abuse.

Some courts have recognized these difficulties. In Pikula v. Pikula,9 for example, the court implicitly rejected the trial court's finding that the mother, a formerly battered woman who planned to live with her sister until she could get a job, would “subject the children to considerable instability.'' Blake, 9 a New York appellate court held that the trial judge abused his discretion when he faulted the mother for taking the children to a battered women's shelter.

,,96 In Blake v.

Three arguments are commonly made by batterers to support their claims for custody. These are that the mother is psychologically unstable, that she is financially incapable of caring for children, and that her allegations of violence are exaggerated or unfounded. Expert testimony may refute the batterer's claims, and some case law exists that is sensitive to the low-income battered woman's difficulties.

B. Financial Circumstances

A. Allegations of Instability

Batterers often state that their mates are psychologically too unstable to provide a suitable home for children. They may cite both the victim's slowness or ambivalence in leaving the violent situation and her frequent moves after leaving as proof of her instability

Batterers often state that their mates are psychologically too unstable to provide a suitable home for children.

Some statutes expressly authorize the trial court to consider the parties' relative financial circumstances in making custody determinations, 98 as does case law.99 Use of this factor discriminates, arguably unconstitutionally, against women as a class. In 1985, families headed by women were three times more likely to live below the poverty line than other families. 100 Families headed by women had the lowest median income, $13,660, compared to $22,622 earned by male-headed families, and $36,431 for two-parent households. Il For families with young children, the contrast is even starker: In 1984, 72.5 percent of female-headed households with children under six years old lived at annual incomes of less than $10,000, while only 30.8 percent of the comparable male-headed households lived at this income level. 102

Women who do work are segregated in low-paying jobs, and even within those occupations they earn less, earning about 64 cents for every dollar earned by a man. In 1981, female sales workers earned about one fourth the median income of males in the same field; female service workers earned about half the income of their male counterparts; female clerical workers earned less than two thirds what male clerical workers earned. 104 Data specific to the region can demonstrate similar inequality in men's and women's incomes locally. Seen from this perspective, a woman's lower income is a result of eco


An expert can help the court understand why the mother stayed so long in the violent environment that she now condemns. The most common reason to stay is “for the children." A woman may feel that her children should have a father, that their schooling and friendships should not be disrupted, and that it is impractical to take the children if she leaves. *9 A woman often denies the impact of violence on her children.” The woman may also stay because she believes a batterer's threats to her relatives and close friends." Finally, she may stay because of the batterer's threat to take the children, a threat that she has reason to believe in light of his history of violence, the unresponsiveness of the legal system, her own lack of funds to hire an attorney to defend a custody suit, and her lack of funds to find a stolen child. 92

Allegations of a mother's emotional instability may well be founded in the evidence. Battering causes unending stress, anxiety, and constant agitation bordering on panic. 93 Victims become dominated by the problems and pain of domestic violence and may be temporarily too worn down and needy to give much attention to their children. 94 However, expert testimony may demonstrate that these problems are situational; they

95. Pikula, 374 N.W.2d 705. 96. Id. at 710. 97. Blake v. Blake, 106 A.D.2d 916, 483 N. Y.S.2d 879 (1984). 98. See, e.g., N.D. CENT. CODE $ 14-09-06.2. 99. See, e.g., Albergottie v. James, 470 A. 2d 266 (D.C. 1983). 100. U.S. DEP’T OF LABOR, FACTS ON U.S. WORKING WOMEN, FACT


THE UNITED STATES: 1985 at 1 (Current Population Reports,


ED STATES: 1984 at 75 (Current Population Reports, Series P-60,



THE UNITED STATES: 1982 (Current Population Reports, Series
P-60, No. 140).

89. DOBASH & DOBASH, supra note 20, at 148. 90. THE BATTERED WOMAN, supra note 18, at 150. 91. Id. at 75. 92. Hendrickson & Schulman, Trends in Child Custody Law: What It

Means for Women 32 (National Center on Women and Family

Law 1981). 93. DAVIDSON, supra note 10, at 120. 94. BATTERED WOMEN: IssuES OF PUBLIC POLICY, supra note 54, at

158, 529 (response of Elaine Hilberman).

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