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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 d'scuss 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.

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.

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 and Visitation After Divorce, 12 U.C. Davis L. REV. 472, 503, 506, 509 (Summer 1979).

II. Legal Authority Recognizing That Domestic Violence Is Detrimental to Children

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 is 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.4

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

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 Ill. App. 3d 16, 432 N.E.2d 375 (1982); In re Marriage of Snyder, 241 N.W.2d 733 (Iowa 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).

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.

III. Overview of Psychological Research

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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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. 12

Children of all ages also present somatic complaints, ranging from insomnia, diarrhea, and generally higher rates of illness in infants13 to higher incidence of colds, sore throats, abdominal pain, asthma, headaches, and bedwetting for older children.14 Part of the pattern of spousal abuse may itself involve sleep or nutritional deprivation for the mother or children. 15 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

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 Violent Families Direct and Indirect 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).


11. Hilberman & Munson, Sixty Battered 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 Battered Women, MATERNAL CHILD NURSING J. 41, 52 (1984).

17. Wallerstein, Summary of Past and Current Research Findings 2 (Feb. 1984) (unpublished manuscript).


19. Westra & Martin, supra note 16, at 50.


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 as 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 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.


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


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


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).



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.31 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

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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.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).


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).

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. 39 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.41 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 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.47


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

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the quality of the parent-child relationship.52 The presence of domestic violence pertains to all of these areas.

The personality traits of batterers and their victims and the effects of violence on their children are not a matter of common knowledge. As the United States Commission on Civil

The personality traits of batterers and their victims and the effects of violence on their children are not a matter of common knowledge.


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.' 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. 57 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."


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.


leverage in the custody dispute. 59 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."

2. Expert Qualifications


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."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 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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